GILMORE V. ANDERSON.
that the several words and devices were the complainant's trade-mark. The sUEreme court held, at trial term, (1 N. Y. Supp. 313,) that the complainant was not entitled to the exclusive use of the name, but that the picture was his trade-mark. The court, at general term, (8 N. Y. Supp. 671,) reversed the judgment, and held thaHhere was l1otrade.:mark in the picture. It is thus obvious that the idea which first presented itself to the complainant's counsel, as it is also the first which would naturally present itself'to :;tllY one, without a of the facts Oil both sides, was that the question was one relating to trademarks. and it is necessary to dissociate from the case the ideas which belong to trade-mark cases. If the name" Old Sleuth" or "Old Sleuth Series," coupled with a picture of the detective called "Old Sleuth," was a belonging to the complainant, the whole representation upon the cover of the defendants' books would he 'easily held to be an unlawful use of the trade-mark, and, in connection with the use of the words and names, a court might not improperly be led to enjoin against the use of a picture purporting to be a picture of "Old Sleuth." But there is no trade-mark feature in the case, and the question simply is whether the later picture, taken by itself, is a copy of or was borrowed from, or is an imitation more or less close of, the complain-' ant's picture, or is a colorable variatiOn therefrom, so as to be an infringement. That the defendants got the idea from the plaintiff :of having a. picture to represent the common hero of all the stories, an apparently dressed in an old-fashioned garb and style, and having a shrewd face, is probably true. But the two pictures are dissimilar. The attitude, the general expression, and the general ap'pearance bfthe two figures are unlike,' and not only unlike, but Very different. The variations are more than colorable. Thedefendahts' picture is not an imitation, but their designer took the plaintiff'l. idea, and worked it out in a different way. I do not tind an infringement, and the bill 'should be dismissed.
C",,"cuit Court, S. D. New Yor7c. Hay 5,1t!OO.
COPYRIGHT-INFRINGEMENT-ACCOUNTING I!'OR PltOI!'ITS.
Defendant printed about 17,000 books infringing plaintjjf's copyright, sold 1,000 at 2S cents each; gave away 1,000, and sold or the restat 56JA, cents each. Ilis accou,nt-books had been sold for paper stock before suit, began, ana many books received in llxchange became comparatively worthle!\s through no fault of his, but how many: C9!1ld not. be told, nor llow much he re,ceived from sales of those so reo ceived. that he must have in order,to make a profit. . Beta, that the eVldencefailed to show any prOfit. '. '.'
In Equity. On exceptions to master's report, 38 Fed. Rep. 846. Oharles O. Burlingham, for complainant.
SHIPMAN, J. The decree in this case directed the master to ascertain and report the profits which accrued to the defendants by reason of their infringement of the plaintiff's copyright. 38 Fed. Rep. $4Q. The mastE;lr has reported in regard to the defendant AndersoIl, wpo was the publisher of the infringing book, that, while the expense side of the account can be ascertained, the proofs do not enable an ascertainment of how much Anderson received from the sales, and there is therefore a failure to prove that he realized any gains, profit, or advantage. The complainant has taken fonr exceptions to so much of the report as relates to Anderson, the object of each exception being to poillt ol;lt that the master was mistaken in his conclusion. ,My study of the evidence has led. me to surmise that Anderson made 3: pecuniary profit from the sales of the book. I hav\3, been, therefore, seeif that suspicion or belief can be verified, and if any parof profit. can be found by trustworthy evidence, and have ;the. conclusion that the mast,er was right, and that the excepbe overruled. Anderson's books of account were sold for stqskbeforethe, suit was brought. He printed between 16,000 J7,POQcopies of the. Alger ,book, gave away 1,000 copies; sold 1;,000 mor(3 at about 23 cents per copy, and sold or exchangeq. the rest at, 56! per copy. How many of these 14,000 or 15,000 copies he exch,anged for school7books, which ,became comparatively worthless, he Dot and he does not tell how much he received in money ;books whichbe r,eceived in exchange. He says that the sales less tha Il 10,OOO copies, and he cannot swear that there we,reover,6,OOO copies; that he exchanged a great many copies for and a large part of the l:Jooks taken in exchange were sold at aIle cent per pound. His expense acqount can be ascertained with reasonable certainty, but the inability to know what he received for this uncertain number which was exchanged constitutes the defect in the proofs. In the ascertainment of actual profits, these exchanges for goods, which subsequently turned out, through no want of business skill or enterprise in the owner, to be worthless, stand upon the same footing as sales which became uncollectible. If there was any evidence that Anderson could have sold the schooL-books, if he had acted promptly and with business enterprise, or if the actual market value of the schoolbooks, at the time of the exchange, was known, the'case would present a different state of facts. Placing the expense account at the lowest figl,lres;which. it can reasollllbly bear, he should hayereceived $6,770, in order tou1ake·a Pfofit.'.If his cash' receipts amounted to $8,000, he a 'profit, for his estimate of the expenses is plainly t091argej bntthere. are no adequate means of determining in any reliable manner what sUm ''he did ,The ex()eptions are overrwEld. .
THE J. D. PErER&.
et al. v.
(D£StrictOourt, N. D. CaU!ornf..a.
COLLISION-BETWEEN STEAM AND SAIL-EvmmrpE.
April 5, 1890.)
A steamer and sloop were approaching neal'ly end on; the former going 10 miles an hour. the latter 6. The master and watchman of the steamer testified that the· sloop was fj.rst seen 3 miles distant, and 1 point on their starboard bow. both, lights being visible; t'\1at the steamer kept lier course for 2 or 3 minutes, when, the sloop's red lfght disappearing, they altered their course one-half point to port, exposing their green light, and kept this course for a few minntes, when the sloop, being about 100 yards away, changed her course, and c.ame up into the wind, exposing her red light; that the steamer stopped and backed, but was struck on her starboard bow by the sloop's port. The three persons on the sloop denied hav,ing changed their course. Held, that the steamer had not sustained the burden on hevto show that the collision was not her fault.
In Admiralty. Suit in admiralty by J. Mazeas and others against the D. Peters and the California Navigation & Improvement Company. D. T. S1tllivan. for Pillsbury &; Blanding, for claimants. ' " HOFFMAN, J. On the mornIng of November 17,1889, a CUITEild between the sloop Solferino, of the burden of 19.66 tons, and the steam,;boat J., D. Peters. The course of the sloop was W. N. W.; that of the steamer, -about E; S·. E. Thee vessels were thus approaching each other'riearlyend on: Each vessel discovered the other-at a distance of two and a half or thr.eemiles. The sloop was, as stated by the mastel' one point on his starboard bow, three miles off. It is obvious that the collision was caused by gross negligence or mismanagement on the part of one or both of the vessels. In all cases of collis-i ion. between steamer8 and sailing vessels, the former are presumptively in fault; for it is the right of tbe sailing vessel to keep her course, arid the "duty of t.he steamer to adopt such as 'will avoid . her." St. John v. 10 How. 557; The Oregmt v. Rocoa,18 How. 572. In Leavitt Vi Jewett, 11 Blatchf. 421, Judge WOODRUFF, affirming the decision ofBJ_ATCHFORD,J., observes: ; "It was the duty of the steamer to keep:out of the way of the sailing vessel, which seen by her. or oUg'ht to have been seell by heriat a suJfleient. distance, aml room was for any Which the steamer desired to makeJ'or the pllrpose.8he dfdnot avoid :t,hesch90ner, For the collision which eUsued. she is presumptively responsible. 1 '.fhe burden ohlJecusIng the collision r6fjts upon her; She has attempted such, excuse by imputing to the schooner a change of'coul'se defeating her own measures, claimed 'to' have been properly taken.' Such change of course is denied by the witnesse.s from the schOoner. * * * It. i8nQb el'loughthat the steamer has, upon ,this sole ground of defense.' I« * *, lam conto h<M that the d(lfense is not satisfactorily In. theljingUl;lge of the caSll8 cited from the supraw.ecourt'l' the defense l;Dust alm.ostcollclusively , -