By its Order of July 15, 1974,
Red Lobster is a Florida corporation operating or franchising about 80 restaurants in Florida and in several other states along the Atlantic seaboard of the United States. New England is also a Florida corporation which operates about 20 restaurants mainly in Florida, and several at locations near Red Lobster restaurants. Jurisdiction was asserted
The relief sought by the complaint was a declaratory judgment that: (1) no conflict exists between plaintiff's use of the name "Red Lobster" and its design and defendant's use of "New England Oyster House" and its design; (2) plaintiff has a right to use a picture of a lobster in connection with its restaurant operations; (3) plaintiff's federal registration No. 965,272 is valid and is plaintiff's property, and (4) defendant's opposition No. 53,411 in the United States Patent Office should be dismissed and the Patent Office directed to issue a registration of plaintiff's pending applications for Class 100 registration of its mark, so as to permit restaurant services under said mark.
We find no error in the trial court's holding
As pointed out, both Red Lobster and New England were Florida corporations, so that further amendment in order to assert common law unfair competition diversity jurisdiction could not be sought. Red Lobster could rely only on the federal claim of infringement under the Lanham Act, which the opposition before the Patent Office would not support. Merrick, supra; Homemakers, Inc., supra; Acme Feed Mills, Inc. v. Quaker Oats Co., D.C.N.C.1970, 313 F.Supp. 1156.
The district court's Order of Dismissal for lack of subject matter jurisdiction is