nDQ.u. ,REPORTER, vol.
(Circuit OOOrl,8. D. New York. Maroh 18, 1899.)
1; 'ComIlm'l'-FIO'1'lTIous One wbo doesbusines8 uDder a ooilventlonalor.ll.ctltlous partM1'8blp name may obtain.a valid oopyright under tbat' name, and may sne to restrain an infringement thereof w1tqQut averring the filing of the certill.cate required by the New York statutes. I. · ..\. bill for infringement of. copyrlgbt, wbtch avers that two copies of the book , ,were d!lposlted in the librarian's office at Washington wltbln 10 4ays after publicatlQu, wltbout'&11eglng that the book was publilihed within a reasonable time after the depoliitof tJie copy of the title.
IpJl:quity. Suita for infringement of copyright. the bills. Overruled. Cox, for plaintiffs. Jarnea A. Whitney, fordefendanta.
On demurrer to
SHIPMAN, District Judge. These are demurrers to the plaintiff's bills in equity to restrain the alleged infringement of a copyright. The matters demurred to are the same in each bill, and the demurrers are, mutatiunut.andiA, identical. Each bill alleges that the authors of a book enti-tled"Scribner's Statistica!! Atlas of the United States" assigned all their ,right, title, and interest therein, before publicatidn and before de. positing a printed title thereof with the proper officor, to Charles Scribwho then constituted.and was the sole member of the firm of Charles Scribner's Sons, who, being such sale member, did the various acts re. quired to copyright the book in the name of Charles Scribner's Sons.' Subsequently Arthur H; Scribner became a member of said firm, which has, continued to: publish, said book. Tile main ground of the demurrer is th8t;no valid copyright exists, because Chllrles Scribner was engaged in business a fictitious name, that no lawful jUl'Itification for the use ofsaid name is alleged, and tha't "he' should have caused the copy- ' takeidn hisindividualnrime. It appears from the bill that th,eaj;llignee and owner was, for a time, doing bUBllless under the name of Cryarles Scribner's Sons, and during this periOd ,he hought the right to obtain a copyright upon the ;book which he apparently proposed to publish, and did thereafter pubhsh, inssid business. At common law, indh'iduals are permitted to "carryon business under any llume or style which they may choose to adopt," (Manham v. Sharpe, 17 C. B., N. S., 442;) and, "if persons trade or carryon business under a name, style, or firm, whatever may be done by them undtlr that name is as "alid as ifreal names had been used," (1 Lindl. Partn., Ewell's Ed., 208.) In some of the states of this country, the use at a conventional or fictitious firm name is regulated or controlled by codes or statutes. I do not know whether the New York statutes in regard to the filing of certificates
to the:-circumstances oLMr. Sori:Bner's case,but, assuming that t:heydo, it was not necesssry to Rver in the bill that such certificates had been filed. An omission' to file a ·Certificate would have no effect upon the title of property which' he had bought in the name of the firm. If he were the ,sole member,he became possessed of the title to the (:Opyright. Cases.cited in 1 LindLPartn. 8l1p'1'a. It ,will be observed that the act of April 29, 1833, whidhwas designed to prevent: the use ·of tious pal'tnemhip names, was . repealed in' chapter 593 of the Session LaWtl ofl88&. ,The second gronnd af which is stated.in the brief is that .the bill simply alleges that Mr. Scribner deposited within 10 days sfteD publication, in the librarian's offioe'at Washington, two eopies of the book, whereas it should also have alleged that the book was published within a reasonable time after the deposit of the COPY' of the title. Theaverment,s in the bill state.acomplianoe with the statutGry provisions, and. follow the lanK\lagtl of the statute, and are more full than those in precedents which have received the sanction of high authority. Curt. Eq. Prea.'38. The demurrers are overruled, with costs, and leave to answer outhe.next succeeding
GoULD et· at
(OIrcuU court, S. D. New P"'or7c.
When th,.QOQ.l't is satisfied that defenqouts intend tQmanufacture an,} sen an Inarticle, a injunction W;ill issue, :it. is immaterial whether they have 8J..ready made actull.l sale&, or bav.e. oDly given out samples of·thegooda whioh they oft¥to,selL", ,:,
.oil ImmoN8-IN1'RIlI'GB:MEl'lT-PEBLmnUllT INI11lIlOTIOlf.
The defenses of prior publio use, and th_t the patentee appropriated the ideas and modeia of tbe real Inventor, and falsel5'! averred tbemto be his own, should not be disposed of on parte aftIdavits under a motion. f,,, a preliminary lnjunotion, butslioUld be reserved for 1inall1ear1ng.
Although the. patent sued upon Is evidently a narrow one, and there appears a possibilit1 that on final hearing it may be foilnd to' be without patentable Invention, yet the 'presumption created by-the when reinforced by long publio , acquiescence, is sumcient to warrant a preliminary injunction.
, In Equity" Suit by John H. Sessions against William B. Gould and others for infringement of·letters patent No. 203,860, issued May.21, 1878, to Charles A. Taylor,for an "improvement in trunk fixtures." alld assigned to complainant June 1, 1878;. and letters patent No. 255,122, issued March 21, 1882, to John H. Sessions, Jr., "for trunk fAAteners," and assigned.tothe complainant July. 1, 1888. Heard on motionJor a p1eliminary injunotion. . Granted. OhaB. K'Mitchell, for complainant. BrieBen Knauth, for defendants.