, FEDERAL REPORTER,
, ,LACOMBE, Circuit ,Judge. The 'question liISto such a: compound as ;tl'iiiJ qe\ng ,iWproperly described Bs' 'a.' coal-tltr, because some is, by testImony, whIcn shows thll.t It,Om pItch, expressly, en,umerated as one of the coal-tar products, 'oiits. stituents 'have been eliminated. I do not think it was the intention of congreea,to,restrictthese paragmphs to products or prepamtions in which the entite'·constit.uents of' coal-tar, still remained, simply changed in some' ,wliy: .9r other' by , Not is it partil,lularly material that other substances have been tithe. determil}.ing'characteristic oftha ,proQ,uot or prElparation is, something which it has received from cool.tar" and: this the testimony shows. .For these reasons the decision appraisers is reversed., The articles should be classified 83,aspreparati6nl'of coal-tar, (not col?tsor dyes,)and .not "tntler broad desisnatiop, pi theot4er'paragrapb as "h·Oal'''ds" ,,' "., , c
I I( .-, I,: .. _, ,
,':,:\ " " , ' . ,: ',',
" :.',' ':.
(",;,;.: .:,; :
' : :'.
" ' /. 6n,thereare (loubts as. to \\>4e.tbertbere is aUlnftfil,gement. and a promp,to "1IB&1· earing is assurea, a prelimlnary'injunction will be denied.·' "
the, UllmIllolld . against the for infri'ngeinent of shoe buckle· ·klefl,f,4Jmwption for a ,preliwiolll"Y injunction. Inj,qnction refuliled. :GeorfJ8 W. Hey" for plaintiff. ' , . ' ,, ", for dllfondnnt.
i : Li.;\ .
'fh,is9i11 In equity, the, al· paten,t.'No. 301,884, 4ated,July 15, 1884, E,J;mg and.JQ4lephO. HatllInopd, Jr." fqr, a shoe .clasp; The present hea:ring wlls.upona motion fora temporary injunction.,iTheJ clasp. :'plit?ntwas?escribed' andithe 'patent was construed'itl theOpInlOn'ofthls 'court In Buckle Co. V.' Hathaway, 48 Fed. Rep. $pp;a1)d in, a this court a motion for the 'same 4S·W,ed.Rep. Tpl3 buckleo! ,madeunCiler, .1ettersplltt,nt No. 418,\)24, dated January 7, 1890,UJ John Nase"and"consistsof.two plates., firmly, riveted together at tli<e fOMiVll.rdend, ntthe/:nthet end. l;'l:he',upper plateisbifurcated at its rear end, so as 'to farnfrearwardlyextelrding Rqns. "The tongue is provided with flattened, which. are the journaled in angular flanged bearings, formed b,y benging tbe leged,:i1M"rlj:tgement
HAMMOND BUcXLE dO.
GOODYEAR RUBBER CO.
lower plate upward at right angles, and the upper plate is cut through oralotted in each of the rearward extensions, permitting the upwardly extending ends or lips of the lower plate to project through the slots." The pivots ofthe tongue pry apart the two leaves of the tongue-plate in opening the clasp, and the upward projections of the under plate are and must be long enough to be retained in the slots in the upper plate when the clasp is opened, so that the tongue shall not slip out from the tongueplate. When the tongue engages with the catch-plate, the latter is pulled over the bifurcated extensioDs of the upper plate, and rests upon the upwardly projecting ends of the lower plate, which constitute one side of the bearings in which the tongue is pivoted. These projections support the catch-plate when strain is applied oy the pull of the tongue upon it. The bifurcated extensions of the double-leaved tongue-plate of the patented buckle were for the purpose "of forming supports, upon which thecat,ch-plate is drawn as the is closed, and which prevent the catch-plate from changing its position." The plaintiff and its experts think,that each plate of the defendant's buckle extends rear· wardJy beyond the pivots, and that both plates form the supports which aredeEtcribed in ,the patent. It is not clear to me that the arms of the lower plate extend rearwardly of the pivot in the sense in which. that language is used in the patent. The ends of the lower plate form the bearings for the tongue, and are turned upward at rightangles; and it does not seem to me, though I do not assertit positively, that the rearward extension beyond the pivot of the lower plate of the patented buckle exists in the defendant's buckle, as cOlltemplated in the patent, thongh it may nominnlly exist. Upon the question of inlringement, it is to be premised that the aretic buckle patents and the modifications of the same general type of clasp b'ockles are so numerous that the scope of each patented improvement must be a narrow one, and differences inIJonstruction which are apparmay make patentable differences,: It has been heretofore ently held upon this patent that the mere facts. that the upper plate of an leged infringing buckle is a spring-pl;:Lte,and· that the .lower plate does not extend rearwardly of the pivot, do not prevent infringement, provided the bifurcated upper plate extends on both sides of the tongue rearto afford a bearing surface for the catch-plate. The defendant's buckle has an additional peculiarity of construction. If the sugg(>stion which has been made is correct, the lower plate does not extend rearwardly of the, pivot, and the catch-plate rests upon its upturned ends, whereas the catch-plate of buckle, D, in the Hathaway CaBe,rested directly upon, and was supported, by,theupper plate. In tbisbucklethe catch-plate is directly supported by the upwardly projecting sides ·ofthe bearings in which the tongue is journaled. The position oftHe·defendant is thatit, is not indirectly flupportedby the upper plate, hut that the extensions of that plate are ior the purpose of protecting 'or walling in the upturned ends of the under, rIate, so that they shallnot,be drawn away,and thus permit the pivots of the tongue to slip dutfl'QIn their bearings. . '!. '
. I do not decide that there is no infringement, but Lthink there are, such in regard to the question that a temporary injunction should riot be granted; especially as assurances were given thatapxompt final hearing can be had. The case is in such narrow limits that theseassurances can be fully carried out.
JAROS HYGIENIO UNDERWll:AR
(Oircuit Oourt, D. Ma88achiusettS.
February 15, 1892.) .
. 'An: underwear. trade-mark, consisting (>f.a sun surrounded by, rays, having a di.. ..tfnptly. 'lD.arked hUIll.SIl face, lLnd fJ,-eqMntly, thoug!\ notnecessll,rily, b,earillg. th!l Words" is L,1fe; not infr1ngEld by a. symbOl having an imperfect outline, but wHose characteristic feature isa circle: inmos, ,. somewhatresembUng 1a,1)tjl ,never ,il!g8i lDonogram,: the r the words" W but B1- way. having the name of the mahufacturing 'j:lompany using it. .... . . ' ..
, /, ,t:
I ' .
Ini\Equity'. Suitj by: the Jaros:Hygiemo Underwear:Oompanyagainst Ste'phenB. Sim()nsandothers, fqldnfringement of atmde-mark, ',Bill disIl1issed., '. , . , William. P. Preble, Jr. ,for oomplainant. '" Oharles L. defendants.
. OoL'r,Oircuit Judge. This. suit is for the infringement ora. trade-ma.rk representing the sun. The bill alleges that the complainant, tbe Jaros HygieniCl' Underwear, Oompany, is a corporation, the Ij;Lws,of -the state of New York, and, a citizen of that' state. The evidenoo discloses>that the trade-mark in cQntroversyis the property ofthe Jaros Hygienic Underwear OOl'llpany,> a corporation organized under the 1aw.s of .the state of Illinois, and located, and doing; business at Chicago, Ill. There is no evidence going to prove that the. complainant company ceeded,to the property and rights of the Illinois company. Upon the. record as it stands, therefore, the complainant has ,not. proved anytiUe to the trade-mark in question. The trade-mark consists of a symbol of the sun, surrounded by' rays. This mark is frequently used with the words" Warmth is Life" ,on the face of.the sun,' but this is not an essen, tial feature. The trade-mark shows the sun as a circular body, with a distinctly marked face, comprising eyes, nose, and mouth. The real defendants in this case are the Beach Manufacturing Companydf'Hartford, (}Jonn., the Dominal defendants being their selling agents.' While the.design which the Beach Ma9ufacturing Company use u,pon their underwear has an imperfect outline,which might be called the rays of the sun, yet the distinctive characteristic of theirilabel or mark, is their monogram, inserted in the cen.ter 'of a circle.. Theyd<) not use the words "Warmth is Life." They print inprominentcharactere upon the labeJ ·thewords "THe .Beach M'f'g Co., Hartford,Conn;" Considering the striking differences between the 'two designs, I do not