perform'substarttially'the'same functionjandin the same way, and with like results, cit there is no infringement. See the above authorities.: to· the .facts in the present citse,it follows Applying these the bill ituist be
3'OHNSON et 01.
(CfrcuU Court, N.D. Nuw Yqrk. December
PATBNTS FOR INVBNTIONS-INPRINGBllBNT-PRBLIHINARY INllfflC'l'ION., .
A preliminaty injunction to restrain the manufacture of an alleged infrtngement of a patent will not be granted when the paMnt has never been adjudicated, and there is inadequate proof of public acquiescence, and the infringement is denied; and defendants have been engaged in the manufacture for a long time without opposition, and have an extensive business, while the complainants have owned the patent for only three months, and defendants are not shown to be pecuniarily irresponsible; and the effect of an agreement not to manufacture the pateuted article, signed by one of defenl'4mts, is !!'t least as to the other defendants.
In Equity. 'Motion for.a preliminary injunction. .,. The complainants are the owners ofletters patent No. 226,668, granted to Nicholas A. Menaar) April 20, 1880, for an improvement in tea-kettles. Thepatent was assigned to the complaihant in the autumn of the present year. The action is founded upon the patent, and also upon an agreement made by the defendant, Schuyler Aldrich, in the spring of 1884, in which is the following covenant: "I will not at any time hereafter within the life of the letters patent, without the license of the owners of the'said letters patent, manufacture and tea-kettles which are covered and claimed in the claims of the said letters ,patent." The complainant$insist that this agreement estops the defendants from contesting the validity of the patent. The kettle now complained of as an infringement, which the defendants have made since 1886, is oia somewhat different construction from the one manufactured by the defendant Schuyler Aldrich, prior to the agreement. The defendants contend that the present construction does not infringe. The patentee, Mena:ar, was employed by the defendants during the time these kettles were being manufactured. in infringing upon The bill alleges that the defendants have been the patent since the spring of 1884. The defenses, as foreshadowed ,in the affidavits, are that the patent is anticipated and' void for want of novelty and inventioll; that the defendants do not infringe; that the defendant Schuyler Aldrich was induced to enter into the agreement referred to by fraudulent representations; and, finally) that the court has no jurisdiction of the action, which is, in reality, a suit upon the covenant) and not upon the patent. James A. Allen and George Wing, for complainants. Antonio Knauth, for defendants.
COXE, J., (after stating the facts as above.) An injunction should not il!sue at this stage of the litigation) for the following reasons: Firat. The
patent has never been adjudicated, and the proof of public acquiescence Second. There is a controversy upon the question of infringement. Third. The structures complained of have peen made by the defendants since 1886, without opposition from the owners of the patent. Fourth. The complainants have owned the patent for about three months only. It is hardly possible, therefore, that they have built up an extensive business under it. Fifth. The defendants have been for years in the business, and will be seriously injured by an iI\iunction. Sixth. There is no proof that the defendants are pecuniarily irresponsible. Seventh. The instrumentof wpich an estoppel is predicated was executed by one of the defendants only, and it is, at least, doubtful whether the other defendants, who did not,sign it, can be bound by its provisions. The motion is denied.
(C(reuU Oowrt, E. D. Penmywanf.a. October 29,1889.)
Uo OF WORn "COLuMBIA." Plaintiff claimed as a tradj3-mark for flour barrels the word "Columbia," which had been for years in common use fol' many purposes as a trade-mark. Held that, as the defendant's testimony, ,though not very full, seemed to show such a use for flour barl'el$, and as the plaintiff had not rebutted it, his claim to the word could not be sustained.
Where trade-marks on a certain merchandise contained in the same form of package are very numerous and similar, the rule is that some care must be exercised to distinguish onEl trade-mark from another; and if! this oare being exercised, the difference Is easily distinguishable, the second traae-mark does not infringe. (Syllabu8 bil thB Court.) ,
Bill for Injunction and Account for Infringement ofTrade-Mark. P. H. Gu.nckel and Strawbridge &: Taylor, for plaintiff. James A. Alcorn and Johm, G. Johnson, for defendant. Before MoKENNAN and BUTLER, JJ.
BUTLER,J. The plaintiff claims an ,exclusive right to the word lumbia" in brands for flour barrels; andl charges the defendant with latingthis right, and also with imitating his brands in which the word is used. We do not think he is sustained by the proofs. The exclusive right claimed is not satisfactorily shown. The word "Oplumbia" is popular, andin common use for many purposes. That it should have been adopted long ago in branding flour barrels is quite probable; and the testimony seems to show that it was, both in the eastern and western sections of this country. If it be said the defendant's testimopy in this respect, is not as full as it might be, the same may be said of the plaintiff's. The defenda.nt went far enough to the plaintiff to further proof. No more neilJ be said respecting this branch of the case.