. 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. .... . . ' ..
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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
THE JULIA FOWLER.
think there is any infringement,· and it is not shown. that any purchaser has ever been deceived ,in buying the underwear made by the Beach Manufacturing Company for the underwear made by the complainant .company. Bill dismissed..
HANSEN 'V. THE JULIA FOWLER.
Ooun, S. D. New York. January 28. 1892.)
HAu OF VB88BL-AOQUIlIS-'
wasemploied in scraping the mainmlist of the' 3'utfa Fj>wler,oIj ',surrounding tb,e: m!'8t, the ropebolding the ·triangle,br,oke; '. precl,pitating libelant to the deck, .and capsing injuries,to recover fQr which ,this , suit was brought.' The evidence showed that the rope was old and spliced;'an4' .i ,thatthll attention.of the maUl. who rigged the triangle and was.in oharge.of thet , work. hl'd been callild to character before the It also appeare4,tqat., all the men considered the rope of doubtful sufliciency;but that they cOntinued' the'work without objection, without de1ijBj1dmganew.rope,and there was lIP evi-: dence to show a new one.would not have been furnished them had they; asked.forit. ' Held; that this was an acquiescence in the wrongful, act of the mate, charging libelant also with negligence. Four hundred dollars damages awarded.
In Admiralty. Libel.by S. ;ijansenagainst the schaoper Julia Fowler for personal injuries. Decree for libelant. Carpenter & Mosher,. for libelant. Henry D. HotchkWs,for claimant. B:aOWN, District Judge. On the 7th of August, 1891, theUbe1ant, a -seaman on board the Julia Fowler, was at work with two others scraping the mainmast on triangulal' frame-work of wood surrounding. the mast, which had. beep ,rigged up by the mate of the vesselfof them to sit on while at work. One side of the triangle waS' held by the end· of the main throat-halliard, which gave way while the libelan,t was at work, so that he fell upon the deck and suffered injuries ,which Up to the present time have disabled him from work. The above libel is filed to recover his damages, alleging negligence in that the halliard was known to be unfit for the purpose. ' . The evidence shows that the triangle was rigged up undeL' the immediate direction and inspection of the mate; that the .halliard was broken a.t a splice; that it had not been used for the same. purpose before, and was unfit and insufficient to support the three men who were sent to work in the triangle in the way that it was rigged, namely, to .sustain the triangle by a single line, or purchase, ini'ltead' ofllavingthe line rove through the three sheaves of the block above, and. the two .sheaves of a block below" .which would'have divided the weight among live the same line. The master, who at the time