IlACBETB: t1. BRADDOCK GLASS 00.
Frederick ll-,Gillinder makes affidavit that he severed Ills connec. tion with the firm in 1888, before final decree, and that he has Bot been connected with the manufacture or sale of chimneys since that date. The master will inquire and report upon this, and will ascertain whether Frederick R. Gillinder is responsible for the manufacture or sale of the infringing chimneys here involved. The objection to the motion founded on the failure to flerve an injunction subsequently to the decree is, under the circumstances, without substance.
MACBE'l'H et aI. v. BRADDOCK GLASS CO., Limited, et at (Circuit Court, W. D. Pennsylvania. Juiy 5, 1890.)
PATENTS FOB INVENTIONS CISIONS. INJUNCTION . . EFFECT OF PRIOR DE'
In Equity. Bill by :Macbeth & Co. against the Braddock GlMS Company, LiJ::D.ited. and others, for infringement of letters patent No. 14,373, granted October 30, 1883, to George A. Macbeth, as assignee of Henry Dietrich, .for designs for lamp chimneys. Heard on motion for preliminary injunction. Granted. James L Kay and George B:. Ohrlaty, for the motioD. W. L. Pierce, contra.
On a motion for a preliminary injunction against the infringement of letters patent No. 14,373, issUed October 30, 1883, to George A. Macbeth, for a design for lamp cWmneys, the court will not disregard poor decisions sustaining the patent, upon new evidence, consisting of. the affidavits· of five persons, resting entirely In personal recollection after the expiration of eight or ten years as to the date of certain alleged prlor uses, when there are other affidavits fixing a later date,and the latter are strongly corroborated by circumstances. . .
ACHESON, Circuit Judge, (orally.) The patent in suit haa already been sustained at final hearing in two hotly-contested casesFirst, by this court in Macbeth & Co. v. Evans & CO.,1 and then by the circuit court of the eastern district of Pennsylvania, in Macbeth v. Gillinder, 54 Fed. Rep. 169; in which cases it was held also that the patent was infringed by ornamentation similar to that appearing on the top edge of the lamp chimneys manufactured by the defendant cottnpany, of which Exhibits Nos. 1 and 2 are samples. Upon this state of facts, then, under the general rule of law applicable here, the complainants are entitled to a preliminary injunction . against the present defendants. . But, notwithstanding the priOl" adjudications, it is now asserted by the defendants that as early , as the year 1882, before the patent in suit was applied for, o,r the patented design was produced by Dietrich, the fine crimping of the top edge of lamp chimneys, producing the bead·like ornamentation of as an infringement, was openly and extensively practiced at the Independent C01Ilpany's glassworks, in the city of PittsburKh, and the affidavits of five persons have been odfered
· No opinion rendered.
in evidance',w, establiahthe. 'tlmtb. ofthe'l :a1lega,ti()D. Now, if slichwere bldeed the,[fact, ithl'vel"Y.renulJ.'ka,ble that it was Jlot shown at the 'hea.1'ingr (bef&re,thil!!;lWurt, in the fall of, 1884, upon theimotion :fM:a pl'e1iminary the. Evans suit. That case wasone.ot notorlety, 8.lld,e:i:ciWd, great interest in the trade, and the application for 8o,preliminMY Uijunction was most earnestly resisted. But, 'if this alleged prio'l' use was by any means OlVerlooked at the preJimtnaary,hearing, hoW is it to be accounted for that it was not set up as a defense at the final hearing, if the defendants' witnesses are correct in what they state ? After a careful consideration of all the affidavits, my conclusion is that these witnesses are mistaken in respect'to "time. Evidently they testify from mere recollection, for the particular lac,ta of which they speak as fixing dates have no necessary or natural relation to the main fact here biquestion. On the other hand; the statement of Michael Ward, Sr.,th,E! manager Company's glassworks, that the ft:neerimping, withtlie bead-like' eitect was first introduced there of 1884, and after he had been shown 'a specimen of pearl-top chinlneys, is entitled to great weight. Mr. Ward's strongly corroborated by that other rebutting and also by an entry in Charles Fischer's books, so that, upon the whole; I am entirely conyi:qced that the defendan1;s' witnesses. are at, fault ,as to their as to the design to the patented deslgn,tltst camemto use at the rndependent Glass Company's year '1884, instead of 1882, as works, 'a.ri,d that in' faet it was in' they now think. ' ", , , ' , , ' , ' I have only toad<1 that, in my opinion, the specimen of the defendant No.8, is an infringement equally with Exhibits No.1 and No.2, and that the injunction should embrace all three. Let a preliminary injunction issue against the defendants, in with these views. Sur Rule for Attachment for Contempt of Court.
(JUly 5, 1892.)
OmU,AM. The, above rule,rests on two points.-First, whether the ,Ii!uch as Exhibits No.4 and Felix & MarstQu,No. 4, made by defendants, are an infringement of the Dietrich patent in SUit; and, whether the defendants are guilty otviolation of the, injunction by the dUlposal of the enjoined court has no ,doubt whatever but that the 20·crimp chimstock. ney is' as much an infringement as the chimneys Braddock Nos 1, 2, and 3 enjoine.9,but itllasdepided to look upon this rather in the light of an inconsiderate, than of a willful, act As. to,1;Jle second 'point, there is a possibility 'that the ,chimneys might have the hands Of Felix & Marsboughti.p. ton than 1h+ou,gh,the Braddock Glass C0IJ.\pany, and the court has to give the defendants the benefit of every doubt, so that ,we' W,UI not hold therngnilty9fcontempt. We will therefore make an order discharging the rule, 'and ordering that the defendants pay the costs of the investigation.
IMPROVED FIG SYRUP CO. V.' CALIFORNIA FIG SYRUP CO.
IMPROVED FIG SYRUP CO. et aL v. CALIFORNIA. FIG SYRUP 00. (Circuit Court of A.ppeals, Ninth Circuit. No. 70. JanUlU'Y 30,.1893.)
TRADE-MABK-EQUITY-DECEIVING TIlE PUBLIC.
While a court of equity will not protect a trade-mark batred on m!srepresentat!on and deceit, and intended to deceive and defraud the f,ublic. yet where the test!mony in an act!on to enjoin an infringement falls to show that plaintiff hllB attempted to practice any fraud, or imPOse upon and damage the public, the court will not refuse to extend its aid.
B.um-WIIAT WILL BE PROTECTED-"SYRUP OF FIGS."
The phrase "Syrup of Figs" adopted by the manufacturer to designate a medical preparation, composed in part of fig syrup, and which, durIIJg a course of trade, has become known to the public by such name, indicates the origin of the preparation, rather than ita quality or nature. and consti· tutes a valid trade-mark.
The use, to designate a medical preparation, of the phrase "Improved Fig Syrup" upon bottles, wrappers, and devices, resembling in appearance asimllar preparation manufactured and sold under the name of "Syrup of Figs," and calculated to deceive and mislead the public, will be enjoined as an infringement of trade-mark.
Appeal from the Circuit Court of the United States for the Northern District of California. In Equity. Suit by the California Fig Syrup Company against the Improved Fig Syrup Company and others to enjoin the infringement of a. trade-lilll.rk. A demurrer to the bill was overruled, (51 Fed. Rep. 296,) and the circuit court subsequently made an order continuing a temporary restraining order against defendants. Defendants appeal. Afllrmed. John L. Boone, for appellants. Warren Olney, (paul Bakewell, of oounsel,) for appellee. Before GILBERT, Circuit Judge, and MORROW and BEATTY, District Judges. BEATTY, District Judge. This is an appeal from an order of the circuit court of the northern district of California, continuing a. temporary restraining order against appellants pendente lite. It appears from the complaint that the appellee for a number of years last past has been engaged in the manufacture and sale of a liquid medical preparation, designated by it as "Syrup of Figs;" that such designation has been pressed upon the bottles containing the preparation, and printed upon the paper boxes containing the bottles, and that, through such and other means during a long course of trade.. the medicine has become known to the public as "Syrup of Figs," a.1Bo as "Fig Syrup," and appellee's name as "California Fig Syrup Co.," "Fig Syrup Co.," and "Syrup of Fig Co.," to such an extent that business letters concerning the same refer to it and appellee by such names and terms; that appellee was the first to. manufacture. such preparation, and to adopt and ue the name 80 given to. it; that, subsequently, the appe11aIlta