408
FEDERAL REPORTER,
vol. 42.
-th&m:()iBttll1El '01 the Sea atmosphere. Therefore the picture is pasted 'upon: it.·' that boxes are used for a purpose other than that of protection and conveyance,in transportation? It is not contended that any part of the box is used but the lid. Is the lid used? The picture is used; and it is on the lid. If it was not on the lid, it WQlilld be insi4·e the box; the child would take it out, and place it on the lid, or on,1he floor, a table, OJ: anythipg else large enough to support it. Is it a justifiable conclusion that,. because the manufacturer pastes a picture. Qq,the lid instead of putting it inside, and allowing the child, whenheopeJ)s the box,. to place the picture on the lid, that the box, or . any part of for any other ;purpose than of tnmsportatlon? I donQt hesitll.te to say to you that in the judgment of tbe court it is Jlot. The qpestion is one of fact, however, and is for you; but it seems to me to be so plain that I am not only justified in saying this, but called upQnto say it.. It is the pictilre that is used; it is not _the lid of the _box, any more than the"ljd oUhebox would be ul;led.if it was merely _,employed as a support for the paper by ,the child. The picture belongs in the set.. If not on the outside oftbe box, it would be inside. Of what importance is it whether it is attltchced to the lid of the box, in so .far;astlle use of the picture is concerned? The other pictures are used; they are all su bject to the necessity of being placed upon a support. It is for YO.u to say wheth.er it would be just to conclude that this box, becau,se one of the pictures.is pasted upon the surface, to avoid the necessity of'!arnishipg, is dt'signedfor other use than that of transportation. In the judgment of the court it is not, but the question is for you, !1nd you will decide it. The provision ofthe statute is intended to punish. a pllrty who uses coverings for the double purpose of importation and II subsequent and other use, and must have a reasonable construction, not a forced one. It subjects importers to the payment of a penalty ,and unless it is clear they have violated the law they should not be thus punished. The case differs altogether in its aspects from the case previously decided. Martindale v. Cadwalader, 'ante, 403. :1 '
Verdict for plaintiff.
FROSTet
ale
tI. RINDSKOPlI'
et ale
(Circuit Court, E. D. New York. L
April Term, 1890.)
TRADE-YARD-WHAT WILLBB PROTECTBD...."WARRBN HOSE SUPPORTBR."
... While the words "Warren Hose Supporter," when .used· alone, may not CODstitute a valid trade-mark, yet when used in connection with a cut of a hose supporter engaged with a stocking, and placed. as labels, on boxes containing hose supporter/l, they are suftlciently arbitrary to fairly denote the origin of the goods, and are entitled to proteetionas a trade-mark. :'While,after the expiration of a patent, anyone has the right to manufacture the -at1.icle, and. to designate it by the name by which it has become known to the pUblIc,yet no one has the right to represent in any manner that his goods are actually .manufactured by the. p a t e n t e e . -
2. PATENTS :POR .INVENTiON8--ExpmATION-RIGHT8 OJ' PA'l'IllNTBB.
FROST". BINDSKOPF.
409 ;
8.
TRADE MARJt8-'lNFRINGEMlINT.
Atrade-mlJ,rk consisting of the wor,ds "Warren HO$ll Supporter," and a out of a stocking'. is infringed by another in all reapectll similar, except that the word" Warranted" in substituted for" Warren...
a hose supporter engaged with
In Equity. On, bill for injunction. GilJJert M. Plympton, for orators. H.A. We8t, for defendants.
J. This suit is brought against alleged imitators of a consisting of the words "Warren Hose Supporter," and a cnt of a hose supporter engaged with a stocking, used by the orators, under the firm name of the Warren Hose Supporter Company, on labels on boxes of hose supporters in selling them·. The orators have dealt in these goods in connection with patent No. 135,899, dated February 18, 1873, and granted to Elisha Foote for grain bands and bag ties, and No. 159,291, dated February 2, 1875, and granted to Andrew Warren, for stocking and skirt holders. The cut of the supporter in the orators' trade-mark represents it as patented under the date·of the Foote patent. Their goods have long been known as "Warren Hose Supporters." The defendants insist that this is not such a trade-mark as to be the sUbject of exclusive use; that the use of the representation of a patent is so!leceptiveasto preclude protection; andthat they have the right to represent: their goods to be the Warren Hose Supporters, and have done no more. Perhaps, as argued for the defendants, the words "Warren Hose, alone would not constitute a valid trade-mark; but, in connection withthe cut, they appear to be more than merely descriptive,and sufficiently arbitrary to denote fairly the origin of the goods when Ifsed for that purpose. McLean v. Fterning,96 ,U. S. 245; Hostetter v. Adams, 20 Blatch!. 326, 10 Fed. Rep. 838; Stocking Co. v. Mack, 21 Blatchf. 1, 12 Fed. Rep. 707. . That when the defendants make' what are known as "Warren Hose Supporters" they have the right to designate them as such seems to be 0:1. v. Jitame, clear. Fairbanks v. Jacobus, 14 Blatchf; 337; 21 Blatchf., 431, 17 Fed. Rep. 623. But this does not include the right to represent in any manner that tneirgoods others. This is shown by the reasoning of these cases, and by others on the same subject;·· SingerManuJ'g Co. v.June ManuJ'g 00.,41 Fed. Rep. 208;8ame v. Bent, Id.214. The defendants use the word "Warranted" in place of "Warren," with the cutot a hose supporter engaged with a stocking. similar to that of the orators' label.·· They suggest that they use that word to indicate that they have the right to sell these hose supporters. Such use of the word is hardly necessary for that purpose; and the waut <>fa better' excuse leaves room for an· inference that it is used·for its similarity to the corresponding word in the orators' libel, and the deand quanfendants have so' placed numbers and words, tity, in similarity those on the orators' labels,a8to lead in the'direction6fthe'cbnclusi'OIi that nlethodical imitation of those labels waS interided.<>Mhnujacturing' Co.v. Ludeling, ,23 22: Fed,. Rep. WHEELER,
823.·. This,amounts, to, than showing .forth what the wares, are." be an inwlltional settingof,tli'eorators' markctothedefendants'wares to make them pass for the orators' wares. Tlle Foote patent did not expire till lately, since this suit was begun. A part of the Warren Hose Supporter may have been ane,\\" use of'the deyice covered by it. The supporter is not so clearly,outside of it as t6 make the reference to it a fraud. As the case stands, ,and is now the orators seem to be entitled to a decree making the preliminary injunction perooan,ent, and an account of profits. Let a det,heteooporary injqnction permanent,and for an account of beentere4.
to
PIRKL ,0..1
v.
SMITH
et
at CONSTITtTTliiS INrnmGB:MIiiN'l'·
I : :
(Circuit ,Oowrt, E. D. New York.
1.
a.
. 'Under24 U. at LargE/, 0. 105, whicbgiv6s tbe owner of .a design patent an . .adtion 'for the sale as well' as the manufaoture of gOOds to whiQh the design ahall . " have been applied without bis Ucense, the owner is entitled to recovel', on showing .an sale'of goods'after his patent went into effeot, though they may have lleen manufaotured betoretbat time; and though the manufacturer may have been ,. the existence :of ,tb,epatent. providing that anyone Who violates' any of its proVisions' shalt be liable, to the ownerc>t the patent '\iJ:lthe amount of 1250, "and for the ex,oesS,of ,pl'ofit above tb,atamo1.l1l,t, !lnd tb,at"tp,eful1 amoupt 9f suob liability" may be tecovered by'an action a,t18\\1oron bill to restrain the' infringement,: the owner may recover the t2ilO, though,beshows no mllas,ure of profits due to thed8!llgn . Thtl 'lta,tute' INFRINGIIIMIiiNT. '.' . . '. '
PA!f:Iiil.'Ts.,J\>n
In' E1quity. ' QIl bill for injunction. WiUiam,K. Olcott, for,complainant. Keith, defendants. WH)l:ELtim, ,J.. ,Thlss1.litisbrought design patent ,No. da.ted May 1, to a window-guard. Tile defendants admit t4M wi\l90",v-guarus Q{ this were ordered of them in, March, 1888, spd \ieljyered by the,m ,in July,1888., but deny that they patentl:>efoJ'ethe delive,:y, an4.s11ch knowledge is not sh<.iwn.;; proyid!*! that for,t.lny: person other than the owner of a, patent {oJ,' al1¢.sign , without license,: to aPply the dElS,ign, or any, colorable rimita.tiontb,ereQ.', "f.oI Jl.ny ufacture f-pr the purpose of sale, Qrto: lieU or :expose farllale !lny article of.mallwacture to whioh liuchdesigJ;l;,or shall,; witb,outtile of the owner, have been applied; knocwingthat ,so applied," shall, during tbl:l te.rmof thfl ,patent, be anli: tllat any personvio...illi9ns, ,or either of them, '.'shall beli,a.ple in the aooo11nt iaIJ,dfi-fty, qollars," anq for the of profit above