Plomb "Lawsuit Tools" Production Timeline Revisited + Plomb Catalog Dating

The last time I did a Plomb research “deep dive”, the goal was to move the Pebble Period production timeline back to 1944, in the heart of WWII, bucking the Plomb collector community’s conventional wisdom cited for many years on early Plomb collectors’ sites, and later, on Alloy Artifacts (AA), that it started in 1945, after WWII. Subsequent advertising research by twertsy bolstered the timeline move. That thread can be read here.

The subject of this thread is also production timeline related, this time focusing on the so-called “Lawsuit” (“dual-branded”, “Plomb-Proto”, or “Transition”) tools – and the goal is to suggest that it should be moved to the right. Plomb “lawsuit tools” have always been a topic of discussion, including GJ. See the ‘Plomb Tool Picture’ thread, linked here, starting around page 165 back in February 2018, and revived now and then ever since.

As I have said before, the question of when these tools were actually made is largely an academic topic but just the kind of debate that will occupy the minds of Plomb collectors who have more tools than answers to puzzles.

Why am I renewing it now?

Tin Medic - he of the famous NAF midget set – recently bought a very cool Plomb Tool Company Proto Tool News flyer. He sent a few of us some scans and I immediately lost a few days of time. Besides its coolness factor, the 8-page flyer also happens to lend some very strong and interesting evidence to the “lawsuit tools” production timeline investigation.

His flyer prompted me to dig even deeper than I had before. I reviewed the Dec 6, 1948 TIME magazine article that AA and TA both cite, and also the January 17, 1949 TIME magazine and Spring 1949 Duke University School of Law periodical articles that, as far as I know, only Tools Archive (TA) cites.

I also examined the actual United States Patent and Trademark Office (USPTO) documentation for the Proto trademark for the first time (shame on me for taking AA’s word for it!), discovering some crucial “fine print” details that I have never seen discussed before on Van Natta, AA, GJ, or anywhere else.

SUMMARY OF THE ISSUE SO FAR

Section Three of the Plomb History guide on the Van Natta Brothers website, an excellent early predecessor to AA for Plomb collecting info, states, “in 1948 Pendleton started marking his tools ‘PROTO -Mfg. by Plomb Tool Co.,’ and advertised them in that manner.” No rationale for the date is provided.

AA dates the “lawsuit tools” to 1948, based explicitly and exclusively on the fact that when Plomb submitted their first trademark application for the Proto name (February 2, 1948), they claimed first use on January 23, 1948.

The TA timeline dates “lawsuit tools” to 1949. The TA rationale was based on three key sources: the TIME and Duke Law School articles cited above, period advertising, and the tools themselves.

(POST 1 of 9)

ANALYSIS

For this study, I have addressed each category of research in turn, distinguishing previous information, new information, and new analysis.

Media and Scholarship

Law and Contemporary Problems, School of Law, Duke University, Vol. 14, No. 2 (Spring 1949), dedicated to the subject of “Trademarks in Transition”, contained an articled by Sigmund Timberg entitled, “Trade-Marks, Monopoly, and the Restraint of Competition.” In Footnote 38 of this article, which refers back to a statement in the main text about “small-business disadvantage”, following a discussion about “commercial-linguistic developments that need not necessarily result in a strictly demonstrated anti-trust violation”, the author cites a pair of TIME magazine articles (December 6, 1948, and January 17, 1949) to support his point. Both articles concern the Plumb v. Plomb lawsuit.

See Pic 1 for the Duke Law journal excerpt.

See Pics 2 through 5 for photos of the TIME magazine articles and respective covers.

This footnote and the TIME magazine articles themselves provide a very concise and credible timeline of events between 1926 and January 1949. I urge you to read the actual articles at this time, and return to my study, but the long and short of it is that the articles indicate that Plomb closed down in December 1948 due to the November 16, 1948 contempt suit, planning to appeal the decision Mr. Pendleton referred to as a “lemon” (and claiming that the cost ”to change over to a new trademark” would be $1,000,000). Sometime in January 1949, Plomb re-opened with what TIME and the Duke Law journal both refer to as a “new” trademark that Mr. Pendleton called “lemonade” and a “temporary expedient” with an estimated cost of $130,000.

Neither the TIME magazine or Duke School of Law articles mention that on January 13, 1949 Plomb was back in court for the fourth time. See case 171 F2d 945, linked here, compliments of notlob. This case was the decision on Plomb’s appeal. It’s difficult to decipher, but in general upholds most of the Plumb suit decree. The Van Natta site, obviously using a different source with more detailed terms, states, “in 1949 a settlement was reached permitting Plomb to mark products with the word "Plomb" and advertise "Proto tools, formerly Plomb tools" both until Mar 25 1950. For this concession Plomb was permitted to retain the profits from sale of tools marked "Plomb" but, was also required to forfeit $250,000 in non-interest bearing notes which were tax deductible. Plomb Tool Co. estimated a net loss of $155,000 under tax rules at that time.”

The numbers are less interesting to me than the premise.

The only explanation for the January 13, 1949 legal action is that the “lemonade” and the “$130,000” “temporary expedient” solution “to resume business” that Mr. Pendleton mentioned in the second TIME article, repeated in the Duke Law journal article, and both pertaining to the November 16, 1948 decision, had to refer to something that still included the word “Plomb.” In other words, the dual-branded tools. In the known superset of all collected Plomb tools, to what other tools could Mr. Pendleton possibly be referring in order “to resume business”? They certainly couldn’t be the ‘PLVMB’ only tools they had already been producing, or the ‘PROTO’ only tools they would be making when the conversion was more permanently and institutionally complete in 1950. And, if Plomb had already been making the dual-branded PRVTV-PLVMB tools throughout 1948, his reference to a “new trademark” would not make sense, and his reference to a “temporary expedient” would have to refer to something else. What? Grinding the PLVMB off the dual-branded tools? There aren’t enough examples to justify a year of production and grinding.

My reading is that 9th Circuit Court, which must have been waiting with baited breath over the holdiays, did not think too highly of Mr. Pendleton’s dual-marked PRVTV-PLVMB quick fix when the tools hit the bricks in January 1949.

(POST 2 of 9)

Tools

Some important facts about the “lawsuit tools” themselves:

- Markings on DOE, DBE, and flare wrenches and drive tools in this era take one of only two forms as far as I know:

(1) When forged-in, ‘PLVMB’ and ‘PRVTV’ are never marked on the same side of the tool. That means that Plomb did not need to modify existing dies; they only need to add a die for the flip side.

(2) When ‘PLVMB’ and ‘PRVTV’ are marked on the same side of the tool (or on a single uniform tool like a socket), they are always stamped, a process that does not require a new forging die.

In my interpretation, these all seem like just the kinds of approaches that might be part of what Morris Pendleton had in mind when he referred to a quick cheap solution. It bears emphasizing again that Pendleton said this – in response to the November 16, 1948 contempt suit, in January 1949.

- Note that drive tools include 1/2-inch and 3/4-inch drive only.

In my interpretation, a limited production run also seems like just the kind of approach that might be part of what Morris Pendleton had in mind when he referred to a quick cheap solution.

- Markings on DOE, DBE, and flare wrenches and drive tools in this era do not have date codes.

AA and some collectors point to the 1948 date codes on adjustable pipe and crescent type wrenches made by the J.P. Danielson plant as evidence of 1948 production, but a closer and more thorough examination of these tools proves inconclusive.

While the date codes and the size of the wrench are always forged-in (i.e., inarguably original to the wrench upon its creation), the other markings are not. Some of the JPD plant tools also have the Plomb branding forged in. Some have the Plomb branding stamped in. But all of the JPD plant tools we have examined so far have the Proto branding stamped in. None of the tools have the Proto branding forged-in.

Why is that? If Plomb had conceived of the dual-branding idea and was manufacturing and marketing dual-marked Plomb-Proto tools in January 1948, why didn’t they have J.P. Danielson forge that marking in?

Perhaps because that would’ve required a more expensive re-tooling than filling in the brand part of the die. Forging them as blanks, with no branding information, and stamping the branding information into the shank seems like just the kind of thing that might be part of what Morris Pendleton had in mind when he referred to a quick cheap solution.

There is no doubt that all the adjustable type wrenches were forged by J.P. Danielson in 1948, as the date codes indicate, but Todd and I maintain that they could’ve been held over in legal limbo and stamped with the PRVTV name (or PENENS or P&C, as the case may be) and sold in 1949.

Note that I own a Plomb forged-in PLVMBALVY (no PRVTV markings) adjustable wrench with a forged-in February 1948 date code. While this is the latest I know of, there could be later we just don’t know of. If Plomb was having J.P. Danielson forge adjustable wrenches as blanks in January 1948, with PRVTV-PLVMB stampings applied afterward, why would they still be making PLMVBALOY wrenches a month later?

(POST 3 of 9)

Advertising

The overwhelming bulk of trade journal and magazine advertising introducing the “Proto” brand dates to 1949. These ads ran in every periodical of the day, from Popular Mechanics to Farm Journal, from Hardware Age to Industry and Power, all making references to the “big news” of the name change. A Todd-generated Google search string for viewing hundreds of examples can be found at this link here. For more examples, see several that notlob has generously posted on a recent related thread linked here.

If the Proto name had been stamped on tools since January 1948, as Van Natta and AA claim, why the ad blitz in 1949? And why would it be considered “big news” in 1949, a year later?

To be objective and thorough, a few ads mentioning Proto Tools in October and again in December 1948 have been found, in newspapers, as well as Popular Science. A few examples can be seen here and here.

These very late 1948 ads seem completely separate from, oblivious to, and perhaps presaging the need for the all-out name change ad blitz that followed in 1949. Furthermore, their late date seems much more problematic for the AA position that Plomb had been selling Proto marked tools since January 1948. Without advertising them for nine (9) months? That’s highly unlikely.

Note that the “Lawsuit” era Proto ads are not the same. There are two distinct types.

All the October-December 1948 timeframe ads are invariably the “PRVTV MFD. BY PLVMB” type.

I think it’s more reasonable to interpret the 1948 ‘PRVTV’ (plomb bob O’s) trademark and the late 1948 ‘PRVTV’ ads as Plomb seeing the writing on the wall just before Plumb - vis-a-vis the 9th Circuit Federal Court, actually put it there on November 16, 1948. It looks to me like they trotted out their new ‘PRVTV’ trademark almost as if they didn’t think anyone would notice, for a limited trial run, perhaps in anticipation of the cheap quick fix December 1948 re-tooling effort mentioned by Mr. Pendleton to TIME magazine. In fact, I think ‘PRVTV’ may have been introduced only in ads, in the 1948 catalog, and on packaging (decals, stickers, etc). Giving the tools a new name on paper, but changing nothing on the tools. Other facts suggest this may have been the initial plan all along.

It often goes unnoticed that Plomb actually submitted a second TM application, for ‘PROTO’ (no plomb bob O’s), in December 1948. Much more on the importance of these TM’s, the timing of the second submission, and even more importantly, their submission statements in a later section. For now, note that all the ads that appear in 1949 and early 1950 are invariably the “PROTO” (no plomb bob O’s) type, reflecting the second TM, and keep that in mind when reading my TM section.

(POST 4 of 9)

The Plomb Tool Company Proto Tool News Flyer

About Tin Medic's flyer.

Pic 1 is the cover. Note the date: H-4975 September-October 1949, Vol. 3, No. 5.

Pic 2 provides an example of the “BIG NEWS.” Nothing new here; we have hundreds of other similar examples in 1949, as discussed above.

Pic 3 is the kill-shot.

Note that the whole point of this page of the flyer is to ping hardware stores that are delinquent in returning a white card to certify that they had “covered or replaced obsolete trademark decals and signs with new PROTO TOOLS labels.” In the process, it describes the scale (“160,000,000 ad appearances”) and purpose (“creating acceptance and demand for PROTO”) of the all-out “twelve month” program that Todd and I had only been able to interpret previously from the number and tone of ads he was finding. Again, if Plomb had been making and selling tools marked with the Proto name since January 1948, a massive 12-month program to educate their merchandising industry about the Proto name as “big news” and a decal, sticker, and signage replacement and conversion program with follow-ups to uncooperative stores in October 1949 would be not just one but nearly TWO YEARS too late!

There’s no way to know for sure how long they were into the “twelve month program” when this Proto Tool News issue (Sep-Oct 49, Vol. 3, No. 5) was published, but given the reminding tone, this clearly wasn’t the first issue. My hunch is that the twelve months that reference is directly related to the year they were apparently given – which was end of February 1949 to end of February 1950 – to comply with the court order.

(POST 5 of 9)

A Brief Note on How to Date All Plomb Publications During The “Lawsuit” Period, and Beyond

One secondary effect of my research was deciphering the 4-digit numbers (e.g., 4888) that can be seen on all Plomb Tool Company publications in this time period, including catalogs, supplements, flyers, and ads. The first two digits (48 in my example) are obviously the year. The second two digits (88 in my example), a unique identifier, almost certainly used by their publications department for handy reference by writers, artists, editors, copyeditors, and marketing agents, are without a doubt sequential. (Maybe everyone already realized this; I didn't.)

Because some of the publications are also dated it allows us to sequence (and therefore generally date!) the publications that are not dated.

An advertising timeline…

-----------------------------------------------
Plomb Catalog 4820, copyrighted 1948, is undated in terms of a month, but it has to come sequentially before Ad 4847. This catalog has PRTVT TVVLS, PLVMB TVVL CVMPANY on the cover. No tool figures in the catalog are marked. The markings that have appeared on the same figures in previous catalogs (all PLVMB) have been vanquished. Based on difference between 4820 and 4847, and Supplement 4933, which is dated May 1949, I am estimating at least Spring 1948.

Ad 4847 appears in a December 16, 1948 newspaper. It has the PRVTV TVVLS, PLVMB TVVL CVMPANY type.

Ad 4884 appears in an October 1948 Popular Science magazine. It is the PRVTV TVVLS MFD. BY PLVMB TVVL CVMPANY type.

Ad 4888 appears in a January 1949 Popular Mechanics. It must have been running in late December 1948 prior. It is the PRVTV TVVLS MFD. BY PLVMB TVVL CVMPANY type.

Plomb Tools Supplement 4933 is dated May-June 1949. ‘PROTO formerly PLVMB’ type marketing.

Ad 4946, Ad 4962 (dated July 49), and Ad 4965 (dated July 49) are all the ‘PROTO formerly PLVMB’ type.

4975, dated Sep-Oct 1949, is the Plvmb Tool Co PROTO TOOL News flyer.

Ad 4984 is an undated ‘BIG NEWS! PROTO formerly PLVMB’ type.

Ad 4987 is an undated ‘BIG NEWS! PROTO formerly PLVMB’ type.
----------------------------------------------------------------

And that in turn helps us understand the production timeline better.

(In time I will go back and add links to images of all these, most of which have been posted elsewhere on GJ already.)

(POST 6 of 9)

The Trademark Argument – Dispelled

Last but certainly not least, a double-check by me on AA’s Plomb trademark research reveals that they paid less attention to detail than required, apparently missing several crucial facts which seriously undermine their conclusions.

Pic 1 is the Plomb trademark (TM) application for PRVTV (with plomb bob shaped O’s), filed Feb 2, 1948, and granted (#501,030) on July 13, 1948.

Note that the statement makes no mention of Plomb applying the trademark to tools. In fact, it explicitly only mentions packaging (“tags or labels affixed to the containers for the goods”).

As far as I am aware, this point has not been noted by anyone (including Van Natta site, AA, etc) before. Needless to say, it matters.

Pic 2 is the Plomb TM application for PROTO (now with stylized letters, no plomb bob shaped O’s), submitted December 14, 1948, and granted (#530,257) on September 5, 1950.

Note that Plomb added a mess of tools to which the trademark would apply (I have actually truncated the list in the left column to make it fit).

Note that their first TM application took four (4) months to process and grant. This one took nineteen (19) months. Given the date of its submission - a week after being sued by Plumb for the third time, and a month before that suit was upheld by decree for the fourth time - it’s not too difficult to imagine it being held to a much more intense sense of due diligence on the part of the US Patent and Trademark Office.

Note also and much more significantly that Plomb is now (on December 14, 1948!) saying that the trademark has been applied to not only packaging, but also “impressed or stamped on the goods.” They are still claiming first use of the trademark in January 1948, but we already know from the first TM application that such first use didn’t include the tools themselves at that time. The timing of this submission (mid December 1948) makes perfect sense, coming 4 weeks after the Plumb contempt suit of November 16, 1948 (which I think prompted Plomb’s ill-fated quick fix dual-branding ‘PRVTV MFD. BY PLVMB’ solution) but before the stay and decree of January 13, 1949 (which prompted, finally, a total capitulation effort by Plomb).

Again, as far as I know, these last two points are new points and have not been noted by anyone (Van Natta site, AA, etc) before.

Pic 3 is the Plomb TM amendment for the original TM (#501,030), changing PRVTV to PROTO, effective November 15, 1949. I think Plomb took this step as a stop-gap measure in case something fouled up their second TM application, which took, as I noted above, almost two years to grant and had still not been granted at the time they took this measure.

Based on the TM’s, Plomb was not – by their own admission, on their own TM paperwork, making any tools containing a Proto marking, of any style TM (pointy plomb bob O’s or not), until at least December 14, 1948.

(POST 7 of 9)

TIMELINE REVISITED

Now that I have gone through all the rationale, a “lawsuit tools” timeline reads a lot cleaner like this…

- In 1926, Fayette R. Plumb legally objected to and scuttled a Plomb Tool Company attempt to trademark the name “Plomb”.

- In March 1947 Plumb sued Plomb in an L.A. Federal district court and won; Plomb had a year (or until March 1948) to stop using its name as a trademark.*

- On February 2, 1948, Plomb applied for a ‘PRVTV’ TM that it said it was using on paper, tags, decals, etc only.

- On July 13, 1948, Plomb was awarded the ‘PRVTV’ TM that it said it was using on paper, tags, decals, etc only.

- In October 1948, Plomb started running ads consistent with their on-paper-only TM application using ‘PRVTV TVVLS MFD. BY PLMVB’ as a theme.

- On November 16, 1948, Plumb sued Plomb again for contempt, and the court ordered Plomb to comply with the previous March 1947 order, and to pay Plumb any profits it made during the year after March 1948 (the date it was supposed to have complied by).*

- In December 1948, Plomb closed down to re-tool for a solution to the November 16, 1948 contempt lawsuit that was called a temporary expedient and estimated to cost $130,000.

- On December 14, 1948, Plomb applied for a ‘PROTO’ TM that it now said it was using on packaging and tools **.

- In early January 1949, Plomb re-opened.

- On January 13, 1949, Plomb lost an appeal against Plumb (171 F2d 945), and Plomb was apparently given until March 1950 to fully comply with the previous March 1947 court order to cease and desist using “Plomb” as a trademark.

- Throughout 1949 Plomb embarks on a massive advertising and merchandising education and conversion blitz introducing ‘Proto Tools’. While they were making and selling the dual-branded tools, they must have been re-tooling across their plants to remove ‘Plomb’ completely in 1950.

* I don’t have copies of any documents related to the March 24, 1947 lawsuit or the November 16, 1948 contempt of court lawsuit. I am repeating the terms that Van Natta and AA report.

** Note again that the ‘PROTO’ (no pointy plomb bob O’s) TM Plomb applied for in December 1948 was not granted until September 1950, and note that there are no ‘PROTO (no pointy plomb bob O’s)-PLVMB’ dual-branded “lawsuit” tools. While the December 1948 TM application added “goods” (i.e., tools) to the USPTO record for what Plomb said they were applying the Proto TM to, it’s only reasonable to interpret that they were using the ‘PRVTV’ (pointy plomb bob O’s) version that had been granted in 1948 for the dual-branded production that began no earlier than late December 1948, at best, and more likely January 1949.

(POST 8 of 9)

I was thinking of tacking this on to the end of DD T/A’s ‘PRVTV TVVL CV’ thread, but that thread is about the aftereffects of the transition to Proto, not the timeline itself, and, it not being my thread, I didn’t want to disrupt or re-vector it.

I don’t know if I have this all figured out or not. But at the very least, I hope I gave everyone something new to think about. Maybe some new leads to chase. New holes to fill.

As always, I invite comments, thoughts, more information, different analysis, etc, especially the substantiated kind. If I have made any factual errors or omissions, please point them out. If I have any loose ducks running about, please help me get them in line. If I have faulty logic, argue.

Todd – pending your acceptance, and additional developments based on discussion, lots of new material for the next incarnation of TA!

I will be at a college ‘Parents Weekend’ starting this afternoon, with limited access or time to reply until at least late Sunday.

(POST 9 of 9)

Just to fling something at the wall, in soccer dive style, could Plomb claim it cost $130,000 to simply and expediently grind the name off tools marked Plomb, and sell them without paying Plumb? While there are also other reasons for grind tools, it seems a lot of them come from this transitional era.

Here's some photos of a catalog I have. Catalog 4922-m to be specific. The copyright date is 1949 and the price list is dated January 3, 1950. Round "o' s" on the cover but still marked "issued by plomb tool company". None of the tool drawings show any branding.





Sent from my iPhone using Tapatalk

Hi Slew,

Real quick before 'midnight madness' (at 9pm!?)...

I considered that. See Post 2 of 9, end of second last paragraph. Grinding the 'PLVMB' off as a routine step in the mfgring process would be relatively cheap (maybe extra manpower), but would've resulted, over the course of a year, in a magnitude or two more surviving examples, imo. We wouldn't even think of them as uncommon oddities. But the biggest problem is that assumes they were making dual-branded tools in '48 to begin with, which everything else (TM statement, ads, etc) defies.

I'm thinking more along the lines of a month immediately after getting wind of only having to pay for Plomb marked tools.
Ground WF tools also pose a question, as they were presumably provided to the military without warranty, unless Snap On really beat them at the negotiating table.

Ah, yes. But his quote seems more expansive than that case. In broadest terms. Also, per Van Natta, terms allowed Plvmb in 49. More later.

I got 2 PM's saying the thread is either too long or confusing, asking me for a short, declarative summary of what it all means, without all the reference details.

Okay, fair enough. I'm on a phone, so here is the nutshell:

All "lawsuit tools" are '49 tools. In Feb '48, with the Mar '48 deadline from the 1st Plumb suit (Mar '47) approaching, Plomb suddenly trademarks Proto, FOR PAPER ONLY, & plasters it on everything - catalog, merchandise tags, decals, stickers, & containers, etc - EXCEPT the tools, no doubt thinking this kind of re-branding will appease Plumb & the court & save their name & costs. It doesn't. In Nov '48, Plumb sues for contempt & wins. Plomb faces stiff financial penalty, but is given until Mar '50 to comply. In Dec '48, Plomb appeals the decision, trademarks Proto again - this time for marking on the tools themselves, & closes its doors to do an expedient re-tooling. In Jan '49, Plomb re-opens with tools bearing Proto brand AND company name. This similar though more permanent approach to the Proto tags, stickers & decals approach has the same goal - re-brand, but keep the company name on the tools. It doesn't work, either. In Feb '49 Plomb loses in court for the last time, but they are allowed to make the Proto-Plomb tools until Mar '50 deadline. Technically, the Proto-Plomb tools could be as old as 14 Dec '48, the date of the tool marking trademark submission, and perhaps even as old as Nov 15 '48, the date of the contempt decision. Unlikely given the shutdown for retooling. And, Plomb literally had no reason to make them before that decision (trying the paper re-branding approach first), which the USPTO and advertising facts don't support anyway.

I love that **** cover of that Proto catalog -- a fore bearer of the bikini models posing with Mac Tools, Snap On, etc. on sales literature and calendars.

Private Lugnutz said:

I got 2 PM's saying the thread is either too long or confusing, asking me for a short, declarative summary of what it all means, without all the reference details.

Click to expand...

Here's my request for more details! I hope to have some additional info to add in the near future.

Awesome news! (Full admission - I was hoping notlob, who turned up the Feb '49 decision, could find the earlier court cases, too. I queried him. Glad he's on it, looking forward to seeing how it jibes.)

We'll see what my "Deep Plomb" research digs up.

BTW, I assume "Shop Kink" must have meant something different in 1949?

Private Lugnutz said:

I got 2 PM's saying the thread is either too long or confusing, asking me for a short, declarative summary of what it all means, without all the reference details.

Click to expand...

Lugz, I haven't been able to spend as much time here on GJ lately, but read through this last night. Thank you for the detailed research and for sharing all this. I reference information like this often.

My pleasure.

As we have discussed elsewhere, historical research here on GJ is often of University quality (or better) and while it may be reported in greater depth than some of the readers may desire, it is of true historical value. Documenting this historical record serves a wider audience than just tool collectors. This thread will likely be used to guide or document academic papers written on trademark law in the future.

Keep up the good work!

Provincial said:

As we have discussed elsewhere, historical research here on GJ is often of University quality (or better) and while it may be reported in greater depth than some of the readers may desire, it is of true historical value. Documenting this historical record serves a wider audience than just tool collectors. This thread will likely be used to guide or document academic papers written on trademark law in the future.

Keep up the good work!

Click to expand...

I agree wholeheartedly. This looks like it could be the beginning of a Master's thesis on Proto tool history. Fantastic work, Lugz!

Brian

Private Lugnutz said:

Tools

Some important facts about the “lawsuit tools” themselves:


AA and some collectors point to the 1948 date codes on adjustable pipe and crescent type wrenches made by the J.P. Danielson plant as evidence of 1948 production, but a closer and more thorough examination of these tools proves inconclusive.

While the date codes and the size of the wrench are always forged-in (i.e., inarguably original to the wrench upon its creation), the other markings are not. Some of the JPD plant tools also have the Plomb branding forged in. Some have the Plomb branding stamped in. But all of the JPD plant tools we have examined so far have the Proto branding stamped in. None of the tools have the Proto branding forged-in.

Why is that? If Plomb had conceived of the dual-branding idea and was manufacturing and marketing dual-marked Plomb-Proto tools in January 1948, why didn’t they have J.P. Danielson forge that marking in?

Perhaps because that would’ve required a more expensive re-tooling than filling in the brand part of the die. Forging them as blanks, with no branding information, and stamping the branding information into the shank seems like just the kind of thing that might be part of what Morris Pendleton had in mind when he referred to a quick cheap solution.

There is no doubt that all the adjustable type wrenches were forged by J.P. Danielson in 1948, as the date codes indicate, but Todd and I maintain that they could’ve been held over in legal limbo and stamped with the PRVTV name (or PENENS or P&C, as the case may be) and sold in 1949.

Note that I own a Plomb forged-in PLVMBALVY (no PRVTV markings) adjustable wrench with a forged-in February 1948 date code. While this is the latest I know of, there could be later we just don’t know of. If Plomb was having J.P. Danielson forge adjustable wrenches as blanks in January 1948, with PRVTV-PLVMB stampings applied afterward, why would they still be making PLMVBALOY wrenches a month later?

(POST 3 of 9)

Click to expand...

This is an interesting hypothesis, that I happen to agree with.

I recently held in my hand a 4" adjustable made by JP Danielson. It was stamped "P&C" but clearly visible in the background was the name "Plomb" that had been ground down. I did not look for the date code.

There's no telling how many adjustable wrenches were in the Plomb inventory prior to the lawsuit, or the dates of manufacture, but applying "Occam's Razor", the simplest explanation for dual marked adjustable wrenches is that Plomb took existing inventory of "Plomb" marked wrenches and re-branded them to fill existing orders. As it appears in the case of the aforementioned P&C wrench. I would surmise that the 48 date codes were holdovers from the lawsuit, probably re-branded in 49-50 until existing stock was used up.

I'm curious. Does anyone have non-ground adjustable wrenches with 1949-50 date codes?

Brian

Thanks, guys. Our predecessors paved a nice path, but this is another good example of why it's sometimes good to go back and question.

Provincial said:

This thread will likely be used to guide or document academic papers written on trademark law in the future.

Click to expand...

I wouldn't go that far - but I appreciate your appreciation. (I will admit it was gratifying to see that Mr. Stimberg, the author or the Duke Law School piece, was obviously on Plomb's side!)

Rileysan said:

I recently held in my hand a 4" adjustable made by JP Danielson. It was stamped "P&C" but clearly visible in the background was the name "Plomb" that had been ground down.

Click to expand...

Very interesting, Brian.

Hey Lugz, can you add " and gallery" to the title so we can see what people have?
Im a collector of these too.

I wonder why Plomb didn't just brand all their hammers with P&C once Plumb started turning the screws on them. It would have been easy to do, and with some advertising like the Proto transition most customers would have accepted it easily. After all, they would have been grabbing the hammers off the same displays with the hammer section labelled P&C.

It was probably an ego thing with Pendelton.

They could have kept calling them Paschall after the hammer company they owned.

You may wish to go to the National archives for the record on appeal in the 9th Circuit and then the full file from the District Court, once you have a docket number. That will give you transcripts, affidavits, etc of the parties and not just a short, almost summary opinion. There is probably a way to avoid going to LA, SF or the salt mines, but I don't know what it is.

pfaustus said:

There is probably a way to avoid going to LA, SF or the salt mines, but I don't know what it is.

Click to expand...

I'm working on it...

POST 1 of 5

As ̶t̶h̶r̶e̶a̶t̶e̶n̶e̶d̶ promised…

A few weeks ago RagTopTA showed up on the main Plomb thread with a few more Paschall hammers to add to his massive Plomb/Paschall hammer collection, and it revitalized some questions and concerns I have always had about the “party line” in the Plomb collecting community regarding the roots of the Plumb v. Plomb dispute.

To summarize, the conventional wisdom holds that there was some kind of deal struck between Plumb and Plomb back in 1926 in which Plumb agreed to let Plomb use their name on anything except ball-pein hammers, that’s why Plomb acquired Paschall, and that’s why all Plomb ball-pein hammers are branded Paschall, not Plomb.

Here is how AA summarizes it…



The explanation on the old Ed Boudinot Plomb collectors website (now hosted by the Van Natta Brothers) is more elaborate…



The Proto website is the most declarative…



Since this involves trademarks, here is what Ed Boudinot & his contributors said on that subject…



Here is what the Proto website says…



And finally, even Wikipedia gets in on the action…



At least Wiki cites a source, which, ironically happens to be the December 6, 1948 TIME magazine article I already posted in post #2 on Page 1 of this thread. Here is the pertinent paragraph…



My problem is that this narrative contradicts key facts that are part of the historical record. Conversely, there is no historical record that supports this narrative as far as I have been able to find or determine.

POST 2 of 5

Let’s unpack the facts first, followed by the questions and concerns those facts beg…

While trademarking the Plomb name may have been outside or beyond the attention and focus of Alphonse Plomb and his original blacksmithing partners in 1907, as the Proto and Van Natta websites describe it, it certainly didn’t escape the business-minded orientation of Morris Pendleton, John’s son, who became General Manager of the company in 1924. He filed a trademark application on October 3, 1925.



It’s unclear if the content managers for the Proto website and Ed Boudinot & Co were unaware of the trademark application or if they intentionally left it out of their historical summaries. Either way, the omission is problematic.

According to the USPTO, the Plomb TM was registered (#235,067) on November 8, 1927, and then “subsequently cancelled or invalidated.”



Note that it does not say “withdrawn.” The difference is important. There are no records in the Proceedings, Prosecution History, or Attorney Correspondence folders.

Page 2 (the signature page) of the Statement has a ********* smear in it, unfortunately, that almost makes it look like it was redacted.



Exacerbating that issue is that loooooong list of tools that the Plomb Tool Company claims to have been making under the “PLOMB” trademark.



Note that there are no hammers of any kind listed. Plenty of other striking tools, but no hammers – of any kind. In a list that painstakingly comprehensive (e.g., not sufficing with merely “chisel,” but citing each different type of chisel…), that couldn’t have been an oversight.

Between the time Plomb filed for their TM (late 1925) and the time it was granted - at least granted temporarily long enough to be given a registration number (late 1927), Plomb had acquired Paschall Tool Company (in late 1925, this document is dated 1926 but it covers 1925).

POST 3 of 5

But, I can’t find any record of Paschall making ball-pein hammers prior to their acquisition by Plomb. What they were exclusively known for, and advertising like mad in trade journals as early as 1891 (see Hendricks’ Commercial Register), was a lathe attachment used for axle squaring, keyseating, slotting, and grooving, increasingly aimed in the early 1920’s at auto repair shops. They finally got around to patenting the device in 1919.



Maybe because they had just won a $15,000 contract from the government to supply the attachments to the Navy and the Merchant Marines.



For example, here is an excerpt from the products section of the 1920 Chilton’s. This is the only place Paschall shows up.



Now here is the hammers page from the same Chilton’s. No Paschall.



Things didn’t change by 1922, when Paschall was still advertising the lathe attachment, and not hammers.



I highly suspect that decision to “assume control” of Paschall was a factory and machinery expansion strategy, not a product acquisition, as this 1926 LA Times article implies.

POST 4 of 5

As many of you Plomb guys are aware, Plomb included one of these lathe attachments in their 1928 catalog, along with a No. 120 fender hammer made by Paschall, and a notice that explained that Paschall was now owned by Plomb.



Note that there are no ball-pein hammers offered in the Plomb 1928 catalog. The 1929 Plomb catalog includes the No. 120 Paschall fender hammer, and now also No. 121, 122, and 123 Paschall fender hammers. Note that the Paschall line of fender hammers is in addition to Plomb’s own line of Plomb-branded fender hammers, a brass fender hammer, and a brass hammer. Again, no ball-pein hammers. The earliest record I have of Paschall ball-pein hammers in a Plomb catalog is 1932.



That seems to jibe with the Proto website, which says the primary goal of the Paschall acquisition was production expansion, adding a ball-pein line was secondary.

Given all those facts, here are my questions:

- If Plumb was supposedly only concerned about ball-pein hammers (which is the whole premise of the 1926 Plumb/Plomb agreement narrative), why would it care about the TM of a company with a similar name that wasn’t making any hammers?

- Also, having successfully prevented Plomb’s TM, why would Plumb feel any compunction whatsoever about making any deals with Plomb, let alone a deal about the ball-pein hammers they weren’t yet making or having made for them by Paschall?

- Lastly, having just lost their TM attempt, why would Plomb be in any position to compel Plumb to strike a deal of any kind - including a backroom deal on a handshake - for any reason?

Plomb was holding NO negotiating cards, it wasn’t Plumb’s authority to grant Plomb any rights to begin with (the USPTO does that…), and there is no such thing as a ‘conditional’ TM (in this case, ostensibly, for everything but hammers or ball-pein hammers) for the USPTO to grant Plomb rights to. There was no Plomb TM, period! And there certainly was no reason for the USPTO, Plumb and Plomb to even talk about rights being granted to Plomb for making hammers under the Paschall name, since hammers branded Paschall would as a matter of course pose no risk of infringement whatsoever to the Plumb TM! In other words, Paschall-branded hammers would require no negotiations and no agreement from Plumb.

So what could the terms of this supposed agreement possibly be? Plomb agreed to not put their name on the same tools Plumb makes – in exchange for what from Plomb?! What could Plumb possibly get out of an agreement like that?

The whole thing makes no sense to me.

Now let’s fast forward to 1947...



Speaking only theoretically, if – as TIME, Wiki, AA, Boudinot, and Proto all say/imply – there was some kind of legally-binding agreement back in 1926 in which Plomb somehow convinced Plumb to somehow let the USPTO somehow grant Plomb rights to use the Plomb name (without a TM!) on anything but ball-pein hammers (even though they weren’t even making them yet!), where the hell is a record of this agreement?

And wouldn’t you expect that agreement to be referenced, as having been broken, and how it was broken, if – as TIME, Wiki, AA, Boudinot, and Proto all say/imply – that was the reason for the Plumb v. Plomb lawsuits in 1947 and 1948?

On March 24, 1947, the Decree by the District Court of the U.S. for the Southern District of California, Central Division, makes no mention of any kind about any 1926 agreement, let alone it being broken.

Neither does the November 16, 1948 Decree by the same court, which held Plomb in contempt of court, re-ordered them to comply with the earlier decree, and fined them.

Also, note that most of the litigation documents in those cases refer to “tools” or “hand tools”, generically. The closest the legal terminology comes to narrowing it down is “files, hammers, and other tools the same as or similar to those listed in plaintiff’s catalogue number 41.” While that mentions hammers, it doesn’t specify “ball-pein hammers,” exclusively, the inclusion of “files” by name makes it clear this is not just about hammers, let alone ball-pein hammers, and “other tools” is an awfully inclusive catch-all in an already big “or similar to” basket.



Again, speaking only theoretically, even if the agreement (however nonsensical!) about ball-pein hammers was a handshake, and there would be no record of it, isn’t it just as likely that the source of the story was apocryphal to begin with? A one-sided myth that evolved, as most of them do, from head shed sotto voce water cooler babble into factory-wide company scuttlebutt, because it happens to paint Plomb in the most favorable light?

The facts are that Plomb wasn’t making any hammers when they filed their TM application in 1925, they weren’t getting them from the recently acquired Paschall in 1926, they weren’t selling them in 1927 when their TM was scuttled by Plumb, there is no record of them selling ball-pein hammers until 1932, and at the least, 1930, and there is no mention of a prior agreement about Paschall-branded ballpein hammers when Plumb sued Plomb in 1947, and again in 1948.

So what gives?

I have seen others cite the existence of the ‘Paschall’ branded hammers as evidence - by deduction - of an agreement. ‘Why would Plomb do that if they didn’t have to?’ goes that argument. It’s possible that in Plomb’s interpretation, ball-pein hammers were the only product they thought they had in common with Plumb, and they unilaterally decided to brand them ‘Paschall’ as a way of appeasing Plumb and avoiding conflict. Such a strategy would require no agreement from Plumb. Also, as noted earlier, the Paschall brand was not used exclusively on ball-pein hammers, it was also used on fender hammers. As far as I know, Plumb wasn’t making fender hammers. So the whole Paschall brand could be one red herring of a false deduction. Something Plomb did without any regard for Plumb simply to distinguish products made in the old Paschall plant.

It seems to me that Plomb simply ignored the lack of an official TM, deciding to continue using Plomb as a de facto TM in practice (except for ball-pein hammers). And it makes perfect sense to me that Plumb didn’t care or didn’t care enough to challenge Plomb’s continued use of a name that looked and sounded very much like their own as a TM (without actually having one!) until Plomb became the biggest hand tool maker on the planet.

I welcome any and all comments, thoughts, ideas, potential explanations, etc. I have no stake in this one way or another. I just can't avoid the issues.

LUG: looks like another good read when I get some time so i'm earmarking it and will read and maybe comment later.

thanks for putting all the effort into finding out the facts!!

have a great weekend!!

Private Lugnutz said:

It seems to me that Plomb simply ignored the lack of an official TM, deciding to continue using Plomb as a de facto TM in practice (except for ball-pein hammers). And it makes perfect sense to me that Plumb didn’t care or didn’t care enough to challenge Plomb’s continued use of a name that looked and sounded very much like their own as a TM (without actually having one!) until Plomb became the biggest hand tool maker on the planet.

Click to expand...

Lugz, thanks as always for laying out all the facts and the reference material. Your post above is pretty much how I sum it up also. I think Plomb finally got on Plumb's radar after rapid growth with military contracts and acquisitions. Plumb likely saw the Paschall branding as just a red herring especially since Plomb was talking about it openly in their literature. If you are sitting in the offices at Plumb you are thinking, "whats next?, axes, hatchets, would Plomb dare make a plumb bob?". Did any of the law suit material prevent Plomb, post Proto name change, to use the plomb bob triangles? Seems like it would have been tempting since it was such a major part of Plomb markings.

Your research seems to support that. The initial trademark rebuke, plomb ignoring the issue for many years, then passing it off as alphonse being a free spirit, when they probably were aware of the issue all along.

I notice that in the 1948 PR∇T∇/PL∇MB catalog they didn’t offer any ball pein hammers whatsoever. Lots of other varieties, though.
-Don