PROCTOR & GAMBLE CO. V. GLOBE REFINING CO.
his own behalf, and distinctly stated and admitted in his testimony in chief that he was 'sIJOrt' in the sum exceeding $(iOO of the money-order funds; but, in answer to a question by bis counsel, the defendant said that he intended to return the funds to the government, and had no intention to defraud it. The defendant further stated and admitted in his testimony in chief that he issued postal money orders without receiving cash therefor at the time of issuance, and that he would thereafter collect the proceeds of the postal money orders."
Taking the judge's statement as supplementing the bill of exceptions in a very necessar'y particular, we are of opinion that the requested charge was properly refused for the reason given by the trial judge, to wit, "It is incorrect in law, and, besides, it ignored the second count in the indictment, and called for an acquittal without regard to the second count." As a matter of fact, very few embezzlements are committed without the intention of the embezzler at some future time to make good his appropriation. Counsel for plaintiff in error in this court gave little attention to the above-mentioned assignment of error, but contended that this court, undel' its rules, will notice a plain error upon the face of the record, although the same is not assigned; and then proceeded to argue that the verdict of the jury is ambiguous and indefinite, and deprives the plaintiff in error of a substantial right, because the jury did not find whether the $832.63 embezzled belonged to the money-order fund or to the postal-revenue fund,-two distinct funds; and cited sections 4042, 40 44, 4045, 4049, 4050, and 4051, Rev. St. U. 8., and section 3, p. 406, Supp. Rev. St. U. S. Under am rule we may notice any plain error on the face of the record, although the same is not assigned. The error suggested here is by no means plain on the face of the record, but what does appear to be plain is that, as the plaintiff in error was sentenced to the minimum penalty, under sections 4046 and 4053, if any error of the kind suggested was committed,on which we express no opinion.-the error was not prejudicial to the plaintiff in PITor. A satisfaction of the judgment will fully protpct the plaintiff in error as to all the matters charged in both counts in the indietment. The judgment of the circuit court is afllrmed.
PROCTOR & GAMBLE CO. v. GLOBE REFINING CO. (Circuit Court of Appeals, Sixth Circuit. March 7, 1899.) No. 598!
UNFAIR COMPETITION-PRELIMINARY INJUNCTION-REVIEW.
To justify an appellate court in reversing an order refusing a preliminary injunction against alleged unfair trade, it must be clearly apparent that the discretion of the trial court has been improvidpntly exercised. The cardinal rule upon the subject of unfair competition in trade Is that no one shall. by imitation or any unfair device, induce the public to believe that the goods he offers for sale are the goods of another, amI tllPrehy appropriate to himself the value of the reputation which the other has acquired for his own products or merchandise. l
1 As to unfair competition, see note to Scheuer v. Muller, 20 C. C. A. 165, and supplementary note to Lare v. Harper, 30 C. C. A. 376.
92 FEDERAL REPORTER.
BAME-LABELS-WORDS OR MARKS USED TO INDICATE SUPERIORITY OR POPULARITY.
One cannot make an exclusive appropriation of words or marks which he puts upon his goods, and which simply indicate their superiority or popularity, or universality In use, and no more.
4. SAME-IMITATION OF WRAPPER-DESIGNS COMPARED.
Oomplainant manufactured soap, which it sold in packages having a yellow wrapper, on one side of which was printed in black letters the words "Every Day Soap," together with the name and location of the maker. There was also a small, circular figure containing a representation of a moon and stars on a black ground. Defendant put up Its soap in packages of similar size and shape, having a yellow wrapper, on one face of which was a black ground containing only the words "Everybody's Soap," in letters formed by the yellow paper of the wrapper showing through the black field of the label. The print and figures displayed on the sides and back of the wrapper bore no resemblance to anything on complainant's, and the name and location of the maker were conspicuously shown on one side of the package. Held, that an order refusing complainant a preliminary injunction would not be disturbed.
Appeal from the Circuit Court of the United States for the District of Kentucky.
On the 8th day of November, 1897, the Proctor & Gamble Company (the appellant here) filed its bill In the circuit court for the district of Kentucky against the Globe Refining Company, complaining that the latter was infringing a trade-mark belonging to the complainant, impressed upon a wrapper or label used for covering cakes of washing soap alleged to be known to the trade as "Every Day Soap," by using on soap manufactured by the defendant a wrapper or label containing the words "Everybody's Soap." Oertain other features wherein defendant's label was charged to be an imitation of the complainant's were stated in the bill. To this bill the defendant filed an answer, and on November 11, 1897, the complainant moved for a preliminary injunction, and the motion was heard on the bill and answer and affidavits filed by the respective parties, and some further evidence taken in open court, which latter was preserved, and is' found in the record. On the 4th day of December following, the court granted a temporary injunction, as prayed for. One week thereafter, December 11, 1897, the complainant filed an amended and supplemental bill, further alleging the use by the defendant of another label which had been substituted for the first, and complaining of the new label as being an infringement of the complainant's trademark, and, independently of that, of its employment by the defendant as involVing unfair competition In trade, in that it was devised and used for the purpose of inducing purchasers thereof to believe that in buying the soap of the defendant, so labeled, they were buying the complainant's soap. '.rhe defendant on December 27, 1897, filed its answer to the supplemental bilL 'l'hereupon the complainant made a further motion for a preliminary injunction against the new label. This motion was heard on the pleadings, aftidavits and testimony taken in open court as above stated. It was held by the court that the new label was not an infringement of the label of the complainant, and that the use of it was not unfair competition in trade, and complainant's motion for an injunction was accordingly overruled. From this order the complainant appeals. There was no appeal from the order allOWing the injunction on the original bill, and the order denying the injunction a2'uinst the use of the second label is the only matter for review.
Humphrey & Davie and Wm. Henry Brown, for appellant. Richards, Baskin & Ronald, for appellee. Before TAFT and LURTON, Circuit Judges, and SEVERF..NS, District Judge.
PROCTOR k GAMBLE CO. V. GLOBE REFINING CO.
. SEVEREKS, District Judge, having stated the case as above, delivered the opinion of the court. Upon this appeal the appellant relies not so much upon the infringement of its trade-mark as upon its complaint that the use by the defendant of its label is an unfair competition in trade. To the question whether it is so or not, the briefs and arguments of counsel are mainly directed. This being an appeal from an order denying a preliminary injunction, the question to be determined is whether the discretion of the court below was improvidently exercised and not whether, upon the final hearing, upon full view of all the facts in the case, this court would, upon the evidence before it, reach the same conclusion as that of the court below. Duplex PrintingPress Co. v. Campbell Printing-Press & Manufacturing Co., 16 C. C. A. 220, 69 Fed. 252; Garrett v. T. H. Garrett & Co., 24 C. C. A. 173, 78 Fed. 472. To justify this court in reversing an order of this kind, is must be quite clearly apparent that a mistake was committed by the court below. Ritter v. Ulman, U. S. App. 263, 24 C. O. A. 71, and 78 Fed. 222. By the test applicable to such an appeal, we proceed to consider what appear to us to be the material facts of the controversy, so far as they can be ascertained from the record of the proceedings before the circuit court. This involves principally a comparison of the labels of the respective parties involved in the second application for an injunction, but incidentally it will be proper to give some attention to the label used by the defendant before the injunction was granted upon the original motion; it being insisted by the appellant that, by reason of the defendant's having diverted in part the trade of the complainant by the use of its first label, the use of the second label, which it is charged is only a colorable variation of the first, enables the defendant more effectually to absorb the complainant's business. The packages in which the respective parties put up their soap for the market are similar in form and size, being about 4 inches long, 2i inches wide and 1i inches thick. The label of the complainant, printed upon the wrapper on the upper flat surface of the cakes, consisted in large part of the words "Every Day Soap"; the first two words being in large, fancy letters, in a curved line in the upper part of a rectangular space about the size of the cake, and the word "Soap," also in large, fancy letters, under the former words. In the lower left-hand corner is a circular figure about three-fourths of an inch in diameter, in the resemblance of a full moon bearing a human face within it looking to the left; the rest of the contents of the circle being a black field, with 13 white stars thereon. At the right of this, and extending across three-quarters of the length of the label, are the words "Proctor & Gamble," and under these the word "Cincinnati," all in good-sized letters. There is some additional matter of ornamentation. All the foregoing characters were stamped or printed upon the face of light-yellow paper. Upon one edge of the cake, or rather upon the wrapper where it covers the side of the cake, there were printed the warda, "Manufactured at Ivorydale," "Factories conducted on the profit-
sharing plan," in two lines on a rectangular space about three inches long and half an inch wide, of the same light-J'ellow color. The rest of the complainant's wrapper is of a darker color, filled with an obscure, uniform ornamentation. The first of the defendant's labels (being the one the use of which was enjoined) was of the same color as the complainant's, and bore upon its face, in large letters, the words "Everybody's Soap"; the letters being in about the same style as the complainant's, and formed in a very similar manner. There was a circular figure of the same size in the lower left-hand corner, but filled with different characters. At the right hand of this, where the complainant printed the words "Proctor & Gamble," the defendant printed the words "Globe Refining Co." Underneath this was "Louisville, Ky.," instead of "Cincinnati" in the complainant's label. On the wrapper along both edges of the cake was printed other matter, having no resemblance to that of the complainant's. This wrapper had been in use for a few weeks only when the original bill was filed, and was thereupon discontinued. 'l'he defendant had been previously engaged for a much longer time in the manufacture and sale of the same or similar soap. The defendant's second label (the one now in question) was adopted, as the defendant claims, to obviate the objections which had been made to the use of the first. The wrapper was of the same color as before. The label on the upper surface of the cake was black, except where lettered. It bore the words "Everybody's Soap"; the word "Everybody's" being in script; the letter "E" being a capital, and the rest in ordinary style, though all were of good size, and plainly readable at some distance. 'l'he word "Soap" was in plain type, in smaller letters, and both were arranged in a similar relation to each other and to the surface of the label as the words "Every Day" and "Soap" in the complainant's label, except that the word "Everybody's" was straight, instead of circular, running from near the lower left-hand to the upper right-hand corners, and the word "Soap" filled the space in the lower right-hand corner. The color of the letters was light yellow, and the letters appear to consist of the wrapper itself showing through the black field of the label surrounding them. There was no circle in the lower left-hand corner, as in the complainant's label and the first of the defendant's, and there was no name of the manufacturers and their place of business, as in those. There was scarcely any ornamentation, the whole being of plain style. On one side of the cake upon the wrapper was printed in black letters the words, "Everybody's Soap," "made by" "Globe Refining Co., Louisville, Ky.," in three lines; and on the other, "Everybody's Soap," "Best, goes farthest," in two lines. The rest of the wrapper was filled with pictures of a cavalcade, illustrating how all classes and peoples glorify "Everybody's Soap." Having given this somewhat minute description of the labels which make the ground of the controversy, it remains to consider whether there was fair ground for the conclusion of the court below that a preliminary injunction should be denied. The sharp competition in business of recent years has brought about a great increase in suits of this character, and the decisions
therein have rapidly multiplied. It would be a difficult task to harmonize them upon the principles which all of them recognize. This is because of such an infinite variety in the facts and circumstances with which the courts have had to deal,-a variety perhaps not surpassed in the field of any other department of judicial labor. The decisions, hO\vever, do undoubtedly help to sharpen the judgment, and often shed a line of light whkh leads one on to a just conelusion. Each depends upon its own facts and circumstances, and must be decided upon the application thereto of settled principles which have received no substantial modification in recent years. The cardinal rule upon the subject is that no one shall, by imitation or any unfair device, induce the public to believe that the goods he offers for sale are the goods of another, and thereby appropriate to himself the value of the reputation which the other has acquired for his own products or merchandise. Canal Co. v. Clark. 18 Wall. 811; Coats v. Thread Co., 149 U. S. 562, 13 Sup. Ct. 966. The substance or rule is well understood, and it is unnecessary to make extensive citation of cases which have recognized it. It sometimes happens that the labels or characteristic marks which manufacturers use upon their goods are catchwords designed to attract purchasers, and to inspire the belief that theirs excel all others in merit, or that in popular estimation they are of superior quality. It will not do to say that any one manufacturer mav exclude all others from the use of labels or marks which, differing in terms and characteristies, are honestly designed and used to obtain the same advantages. In other words, one cannot make an exclusive appropriation of words or marks which he puts upon his goods, and which simply indicate their superiority or popularity, or universality in use, and no more. If he could, he might thus absorb a privilege which is common to all. Corbin v. Gould, 138 U. S. 308, 10 Sup. Ct. 812; Coats\'. Thread Co., 149 U. S. 562, 18 Sup. Ct. 966; Lawrence Mfg. Co. v. TenneBSee .Mfg. Co., 188 U. S. 587, 11 Sup. Ct. 896. There is room for a question as to whether the labels of these parties are not of that dass,-a question which we do not decide. The complainant charges, and there is proof tending to show the fact, that after the defendant adopted its first label the trade of the complainant at Louisville, which prior to that time had been very large, fell off in a great degree. The second label had been in use only a few days when the supplemental bill was filed, and there eould not have been an opportunity to test its effect upon the trade. But the increase, if there was any, of the defendant's business, may have been the legitimate effect of its adoption of a "taking" description of its soap, which it was entitled to put upon its goods without trespassing upon the complainant's privilege of doing the same thing. The complainant alleges, among other things, that it has for many years put up its soap in the form, size, and color of package in which it now does, and that from these peculiarities and its label the public have thereby become familiar with its goods; and it is further charged that the defendant imitates its package, in the form and size of it. as well as the color of the wrapper. But, if it were conceded that the complainant could acquire an exclusive privilege to the USe of
such characteristics, it is notshQwb. that theil'practice in respect to' either the form or size of the cake or the color of the wrappel' was peculiar to themselves, and non constat that other manufacturers, including the defendant, were accustomed to put up their goods in the same style in respect to these peculiarities. This part of the cail " stands on the same footing as did the black and gold labels on the ends of the spools whereon the plaintiff's trade-mark was printed in the case of Ooats v. Thread 00., supra; such labels having become common property. Aside from these features, there are not many points of similarity. The principal one is the use in both labels of the word "Every" in the complainant's, and as a component part of the word "Everybody's" in the defendant's, upon the wrapper on the upper surface of the cake, which is the only place where it occurs on the complainant's package. But in this context it should be noted that all the letters on this surface of the package are printed in black, upon a light-yellow ground, while on the defendant's the letters are light yellow on a black ground. In the complainant's the letters are in the similitude of type-written letters ornamented, while the defendant's are in script. On the defendant's label the figure of moon and the characters exhibited therein by the complainant's is not shown, and the name of the manufacturer, which on the complainant's label is quite plainly shown, is not printed on the defendant's. 'J'he print and characters displayed on the sides and back of the defendant's wrapper bear no resemblance to anything on the complainant's. On one side of the complainant's the place of manufacture is stated to be Ivorydale. On the defendant's it is stated as at Louisville, Ky., and the name of the manufacturer, "Globe Refining: Co.," is distinctly shown. Thus, on each wrapper the name of the respective manufacturers is conspicuously shown, and this is one of the important means of identification. P. Lorillard Co. v. Peper, 30 C. O. A. 496, 86 Fed. 956, 959, By the sight of the package, or by hearing the distinctive appellation read, customers would in general, if not universally, identify the goods they were buying. It is hardly conceivable that anyone familiar with the appearance of the complainant's packages, who looked to the article he was purchasing to see whether it was the same, could fail to notice the difference, on the defendant's package being offered to him. The retail dealer would, beyond doubt, know the difference. Both seller and buyer would know that manufacturers generally put up their goods in the same shape and style, and the slightest inspection of the other chaI> acteristics would indicate the difference. If the consumer called fo'r "EveryDay" soap, and the retailer supplied him with "Everybody's" soap, it would be a fraud for which the defendant would not be liable, l1S was pertinently said by }Ir. Justice Brown in Coats v. Thread Co., already cited. And in passing we observe that what is mainly relied on in the present case as the imitation so injurious to the complainant, namely, the use of the word "Every," is not more likely to produce confusion with purchasers than were the use of the words "Best Six Cord" on the black and gold labels of the parties in the case just referred to, where an injunction was denied. But it is said that the evidence shows that the defendant's officers studied how
PROCTOR & GAMBLE CO. V. GLOBE REltINING CO.
closely they might approximate the complainant's label without exposing themselves to suit, and that this indicates a purpose to purloin the complainant's good will. The evidence does show that such consultations took place in reference to the first label, but it is also shown that on discontinuing that they took legal advice in regard to the making of a new one. If they were intending to devise a new label which might attract purchasers by an alluring advertisement, they might lawfully do this, if they made it in such a form and style as would not lead purchasers to think they were buying the complainant's goods. The evidence does not clearly show that there was bad faith in devising the new label. It is not inconsistent with an honest pur-pose. .A. feature of this kind existed in the well-reasoned case of Sterling Remedy Co. v. Eureka Chemical & Manufacturing Co., 70 Fed. 704,-a case cited by Judge Barr in his opinion, which is found in the record,-but it was not regarded as of controlling weight. In that case the controversy was over trade-marks employed on remedies for curing the habit of using tobacco. 'rhe prominent word on the complainant's label was "No-to-bac." That of the defendant's was "Baco-curo." It was insisted that the first word in the latter was so nearly idem sonans with the last word or syllable in the first, and that being the significant part of the expression, it was likely to attract trade which rightfully belonged to the complainant. But the court held otherwise, in view of the other differing features of the case. This judgment was affirmed by the circuit court of appeals for the Seventh circuit. Sterling Remedy Co. v. Eureka Chemical & Manufacturing Co., 25 C. C. A. 314, 80 Fed. 105. Much reliance is placed upon the decision in the case of Garrett v. T. H. Garrett & Co., 24 C. C. A. 173, 78 Fed. 472, where this court reversed an order refusing a preliminary injunction. In tha t case the complainants had long been in the manufacture and sale of a snuff which bore the brand and was known to the trade as "Garrett's Snuff," and had a high reputation. The defendants organized a corporation with 350 shares, and took in one T. H. Garrett, with shares, in order. to give color to the employing the word "Garrett" in their corporate name. The corporation thereupon engaged in the snuff business, and sold their product as "Garrett's Snuff." We quote from the opinion of the court, at page 474, 78 Fed., and page 174, 2·1 C. C. A.:
"The labels and devices used by the defendant company under its original organization were, in their general design and appearance, clos!:! imitations of complainants' labels and designs. The cans, packages, labels, and wrappers of complainants were almost literally copied by the defendant company, excepting that ''1'. H. Garrett, Louisville, Ky.: was substituted for 'tV. E. Garrett, Philadelphia.' 'rhe color of defendant's labels was the same as that of complainants'. The type used for the printed matter on the labels was similar in general appearance, arrangement, and general effect."
From this it appears that the only material difference between the labels of the parties, or otherwise shown upon their packages was in the initials of the word "Garrett," and the place of ture. In the present case, as we have shown, the points of resemblance are few, and the differences many, and the latter exist in
important features. It has been said that it is the resemblances that should be looked at, rather than the differences. But the existence of the latter negatives the former, and it is necessary to take both into view, in order to get a correct picture of the whole. Mr. Justice Brown said in delivering the opinion of the court in Coats v. Thread 00.:
''The differences are less conspicuous than the general resemblance between the two. At the same time, they are such as could not fall to impress themselves upon a person who examined them with a view to ascertain who was the real manufacturer of the thread."
And see the observations of Mr. Justice Lamar in Corbin v. Gould, 133 U. S., at pages 312,313, 10 Sup. Ct. 312. Upon the whole, we are satisfied that at least there was no "plain error" in the order of the circuit court, and it is accordingly affirmed.
AMERICAN GRAPHOPHONE CO. v. NATIONAL GRAMOPHONE CO. et al.
(Circuit Court of Appeals, Second Circuit.)
PATENTS-PRELIMINARY INJUNCTION-RECORDING A:/(D HEPRODUCING RECORDS.
& Tainter patent, No. 341,214, which claim covers a loosely-mounted or
A preliminary Injunction against infringement of claim 21 of the Bell
gravity reproducer In a machine for recording and reproducing speech, held to have been granted on a misunderstanding of the scope of a prior decision.
Appeal from the Circuit Court of the United States for the Southern District of New York. This is an appeal from an order of the circuit court for the Southern district of New York (90 Fed. 824) which granted an injunction pendente lite against the infringement of claim 21 of .letters patent No. 341,214, to Bell & Tainter, for the instrument called the "Grapho· phone." The instrument which was found to infringe is known as the "Berliner Gramophone," and is described in letters patent Nos. 372,786 and 564,586. Charles E. :rvIitchell, Howard W. Hayes, Gustav Bissing, and Horace Pettit, for appellant. Philip Mauro and Richard N. Dyer, for appellees. Before WALLACE and SHIPMAN, Circuit Judges. SHIPMAN Circuit Judge. The Bell & Tainter patent was before the circuit court for the Southern district ofNew York upon final hearing in a suit of the present complainant against Leeds and others. 87 Fed. 873. The order pendente lite was granted upon the theory that the complainant's construction of claim 21 had been positively adopted by this court in the Leeds Case, and the only question upon this appeal is whether that theory was well founded. It is therefore necessary to ascertain the scope of the decision. The history of the Bell & Tainter invention indicates that it started in experiments to improve the Edison phonograph of 1879, which resulted in the abandonment of Edison's process of indentation upon a pliable material, and the substitution therefor of the cutting or engraving the record in the form of a groove, with slopin.... walls, in a waxy substance, and also
PALMER V. KNIGHT.
in the substitution, in place of a rigid reproducer, of one so loosely mounted that, resting against the tablet by gravity, it was guided by the record, and followed the elevations and depressions in the groove. The two improvements of importance with respect to claims 19 to 22 were said to be:
"The new material for a sound record upon which vertically undulating grooves, with sloping walls, were engraved by a cutting style; and the reproducer which rested upon these grooves by gravity, and moving along them, imparted to a second diaphragm the vibrations incident to the elevations and depressions of the bottoms of the groove."
Upon the question of infringement in the Leeds Case, there was no serious controversy. The defendants insisted that sound records formed in wax or wax-like material were old,-an issue which was decided against them. Inasmuch as the court might be of opinion that claims 19, 20, and 21 related merely to the loosely-mounted reproducer, the defendants made the point that such a reproducer, capable of automatically adjusting itself to the record grooves, was also old; but this proposition was not sustained. Upon the question of the construction of the claims, Judge Grosscup, in the Amet Case, 74 Fed. 78B, did not think that the universal joint in the gravity reproducer made it a patentable invention, but that the combination which included the reproducer with the new record-that is, the grooved tablet having the record as described in the patent-was patentable. The circuit judge did not thoroughly agree with Judge Grosscup, and thought that the loosely-mounted reproducer might be patentable by itself; but the case did not call for a decision of that question, and therefore directed a decree in the form adopted in the Amet Case. Berliner used for his original record plate a zinc plate covered with a thin, fatty film, which, after the film along the lateral line made by the stylus has been removed, is placed in an etching bath. "'nen the groove has been etched, the zinc plate is electroplated with copper, and the plate impresses the sound record into a hard-rubber plate, which has been softened by heat. The hard-rubber plate is the tablet which contains the record. The adjudieation in the Leeds Case was not an adequate basis for an order for an injunction pendente lite against the Berliner deviee, for it relates to the infringement of claim 21 by the use of the dual improvements of Bell & Tainter, and was not intended to go further and deeide the status of a deviee whieh did not contain a tablet of their new material for a sound record. The order of the circuit court is reversed, with costs.
(Oircuit Oourt, E. D. Pennsylvania. :B'ebruary 28. 1899.)
A claim for a hammock or bed bottom of woven fabric, having suspension loops "formed of unwovt'n portions of the threads of the warp of the fabric, substantially as herein described," is not infringed by a hammock, in whieh the suspension loops are formed from the perfectly woven piece of fabric composing the body of the hammock.
92 FEDERAL REPORTER. 'rbe Palmer patent, No. 271,510, for an improvemc'nt in hammocks or bed bottoms, construed, and: held not infringed as to claims 1, 2, and 4.
OR BED BOTTOMS. . .
This was a 'suit in equity by Isaac E. Palmer against Abraham C. Knight for alleged infringement of a patent for an improvement iii hammocks or bed bottoms. Dickerson & Brown, for complainant. A. B. Stoughton, for respondent. DALLAS, Circuit Judge. This is a suit upon letters patent No. 271,510, dated January 30, 1883, granted to the complainant for an improvement in hammocks or bed bottoms. The defendant is charged with infringement of claims 1, 2, and 4, which are as follows:
"(1) A hammock or bed bottom of woven fabric, having suspension loops at its ends, formed of unwoven portions of the threads of the warp of the fabric, substantially as herein described. (2) A hammock or bed bottom, having its composed of doubled portions of a woven fabric, and having said doubled portions united by a series of suspension loops formed of unwoven portions of the same warps, which enter into the weaving of the doubled fabric, substantially as herein described." "(4) A hammock constructed or provided with a pocket for the reception of a pillow, substantially as herein described."
The invention covered by claims 1 and 2 relates wholly to suspension loops, and its fundamental characteristic resides in the provision for forming those loops of unwoven portions of the warps of the fabric. Loops may be said to be thus formed when they are made either of portions of the warp which have not been woven, or of fabric from which, after weaving, the weft threads have been removed. But, however obtained, the material of the loops must be unwoven threads of the warp. That of the defendant is and remains a completely woven fabric. This difference cannot be regarded as formal, for the claims, in terms, pronounce it to be substantial. It cannot be stigmatized as evasive, for it is not within the line of conflict. If the defendant attains the object which Palmer had in view, he does so by means which Palmer either did not perceive, or, perceiving, did not claim. Instead of forming his loops as described in the complainant's specification, the defendant forms them from the perfectly woven piece of fabric which constitutes the body· of the hammock. Whether they are better or worse than those of the patent is unimportant. They are not made in accordance with its instructions. They are not substantially the same loops. They are not infringing. The validity of the fourth claim need not be questioned, but the nature of its subject-matter, and the prior art as well, require its restriction to the particular pocket described; that is to say, to a pocket "made integral with the main portion of the hammock, and * * * formed by folding over the end portions of the fabric on itself, and then sewing or othrrwise securing the doubled or folded portion by lines of stitching." Common knowledge and common sense repel the, notion that inventive genius was required to provide a hammock with any pocket at all, whether for the reception of a pillow or of anything else; and the pre-existing devices exhibited
GAITLEY V. GREENE.
in the proofs show that the idea of equipping similar constructions with a receptacle for a head rest was not wholly new with the complainant. The defendant·s pocket is not made integral with the main portion of the hammock, and formed by folding over the end portions of the fabric on itself, but is made of a separate piece of material, which is independently united to the main portion. III my opinion, it does not infringe. The bill will be dismissed, with costs.
GArTLEY v. GREENE.'
(Circuit Court, N. D. New York. No. 6,310.
February 27, 1899.)
The idea of providing a coiled-wire handle for implements which come in contact with beat, thus permitting a circulation of air, insuring sufficient coolness of the handle to permit of ready manipulation at all times, being once embodied in practical form, the subsequent work of fitting such handles to the bails of different vt'sseIs. and adjusting them to new environments, involves mere mechanical skill. The Gaitley patent, No. 338.506, for a bail for lifting and carrying kettles, is void for want of invention.
This was a suit in equity by John E. Gaitley against William F. Greene for alleged infringement of a patent for a kettle bail. Nelson Davenport, for complainant. George A. Mosher, for defendant. COXE, District Judge. This is an equity suit founded upon letters patent, No. 338,506, granted March 23, 1886, to the complainant for a new kettle bail. The patentee's object was to provide a novel bail for lifting and carrying kettles, and similar vessels, whereby the handle of the bail will remain sufficiently cool to permit the bail to be manipulated at any time. The claim is as follows:
"A kettle bail formed with two bends to produce abutments or shoulders, and provided with a separate coiled handle or grasp bearing at its ends against the bends, and through which coiled handle or grasp the bail cenand loosely passes, substantially as described."
The idea of providing a coiled-wire handle for implements which come in contact with heat, thus permitting the circulation of air and insuring sufficient coolness of the handle to permit of ready manipulation at all times, was a novel one, and he who first put the idea into practical form was, without doubt, entitled to the rewards of an inventor. 'When, however, the embodiment of this fundamental idea once became pUblic property, the subsequent work of fitting the handle to the bails of different vessels and adjusting it to new environments, seems to be within the domain of the skilled mechanic. The prior art shows that bails for kettles precisely similar to the bail of the patent, with the single exception that they were made of a continuous piece of wire instead of two pieces as in the complainant's
structure, had long been known. It is difficult to understand how invention can be based upon the construction of the bail and handle separately. But It is not necessary to determine the question, for this feature was also old. It is shown in several patents in the prior art, notably in the prior patents to the complainant. If the claim be strictly limited to the enumerated elements, which limitation appears to have been required by the examiner as a condition precedent to granting the patent, the defendant does not infringe, for the reason that the ends of the grasp do not bear against the abutments or bends of the bail. The court prefers, however, to rest the decision upon the defense of want of invention. The bill is dismissed.
UNITED S'fATES PLAYING-CARD CO. v. SPALDING et al. (Circuit Court, S. D. New York. February 24, 1899.)
PATENT SUITS-SCOPE OF IKJUNCTION-PERSONS NOT PARTIES.
In a suit against dealers in an infringing article, the manufactnrers thereof assumed the defense, but without becoming technical parties. The injunction granted ran against the dealers, by name, and their officers, etc., workmen, "and manufacturers." Held, that the injunction bound the latter only as agents and manufacturers of the defendants. and they were not in contempt for manufacturing- for other dealers haying no connection with defendants. In re Lennon, 17 Sup. Ct. 658, Wli U. S. 548, distinguished.
This was a suit in equity by the United States Playing-Card Company against A. G. Spalding & Bros. for infringement of a patent. The cause was heard on motion to punish for contempt for alleged violation of an injunction heretofo,re granted. Arthurv. Briesen, for the motion. Fred. L. Chappell and W. G. Howard, 'WHEELER, District Judge. The defendants are dealers in duplicate whist trays (among other things) in New York, and sold trays made and furnished by Illing Bros. & Everard, of Kalamazoo, Mich., and by Cassius M. Paine, of Milwaukee, Wis., which have been adjudged in this cause to be infringements of a patent belonging to the plaintiff. These manufacturers assumed the defense of the suit. An injunction was issued, which ran to "you, the said A. G. Spalding & Bros., and your officers, trustees, directors, managers, servants, agents, attorneys, and workmen, and manufacturers." This is a motion for an attachment aguinst all for contempt of the injunction. Spalding & Bros. appear to have fully respected the injunction. The manufacturers appear to have made what are alleged and claimed to be infringements, and to have sold them to dealers in other parts of the country, without relation to Spalding & Bros. in any way. The counsel for the plaintiff· urges that these manufacturers, having assumed the defense of their customers, are bound by the adjudication, and liable for violation of the injunction anywhere, as if they were parties of record. Tbis seems to be correct as to the conclusiveness of what bas been decided, but that does not make them liable upon
GINNA V. MERSEREAU MFG. CO.
the decree, as the parties of record would be. Execution would not run against them for profits, damages, or costs decreed. The injunction is a judicial writ, issued upon the decretal order. Notice of the order would bind those to whom the writ would run, and who would be included with them, before the writ itself should be issued; but it would not affect anyone any further than the writ would. As this writ runs to the agents and manufacturers of Spalding Bros., these manufacturers are said to be everywhere, and always while it remains in force, within its terms. But they are included in the writ, not as agents and manufacturers of everybody with whom they might do business, but as agents and manufacturers of Spalding Bros.; and, as what they have now done in this behalf has no connection with or relation to Spalding Bros., they do not appear to have done any of it, within the prohibition of the writ. If they had done it in aid in any way of a violation by Spalding Bros., upon the supposition of which this proceeding may have been commenced, the question would be very different. Cases are cited in which language is used that by itself might indicate that anyone, any\vhere, having knowledge of an injunction, might not do what would violate it if done by those included within it; but, as understood, none of them go outside the scope of the injunction itself. That of In re Lennon, 166 U. S. 548, 17 Sup. Ct. 658 (at page 554, 1G6 U. S., and page 660, 17 Sup. Ct.), is as broad as any; but it must be read, as it was used, with reference to the case, which was against a locomotive engineer, the servant of a corporation enjoined about hauling cars, who was not named in the suit or tbe injunction, nor served upon, but had notice. The case does not show that he would have been held if he had done the same thing, after the notice, upon another road. The proceeding itself is in nature criminal. and the foundation of it should not be extended by any doubtful construction. An amendment of the order and injunction is suggested; but that, if allowable, could not affect this question now. Motion denied.
GIX:\'A et a1. v. MERSEREAU MFG. CO. (Circuit Court of Appeals, Third Circuit. No. 38.
January 25, 1899.)
The Hipperling patent, No. 281.;;08, for an improvement in machines for double-seaming the head and bottom of rectangular shaped tin cans, must, in view of the prior Atkinson patent, Xo. 279.853, be confined to the particular form of construction shown; and the second and third claims are not infringed by a machine made under the Adriance patent, No. 472,284.
Appeal from the Circuit Court of the United States for the District of New JerseY. This was a suit in equity by Stephen A. Ginna and Richard A. Donaldson the Mersereau Manufacturing Company for alleged infringement of a patent for an improvement in machines for manu·
92 FEDERAL REPORTE1\.
tacturing tin cans. The circUit court dismissed the bill (69 Fed. S44), .and the complainants have appealed. Rowland Oox, for appellants. Edwin H. Brown, for appellee. Before DALLAS, Oircuit Judge, and BUTLER and KIRKPAT· RICK, District J udgea. DALLAS, Oircuit Judge. By the bill in this case, the defendant below, is the appellee here, was charged with infringement of letters patent No. 281,508, dated July 17, 1883, issued to the appellants as assignees of William Hipperling, the inventor. The nature of the invention covered by the patent is sufficiently and accurately stated in the opinion of the learned judge in the court below, and thedaims alleged to have been infringed are there set forth at length. It is needless, therefore, to restate these matters here. Several errors are assigned, but the only point insisted upon as ground for reversal is presented in the brief of argument for the .appellants, as follows:
"What we conceive to be the error or the court below Is that his honor held the Atkinson patent, 10 called, describes a successful machine, by reason or the i!xlstence or which the patent in suit must be narrowly construed, so as to exelude derendant's machine."
This proposition properly presents the only question in the case, but we cannot affirm it. Our independent examination of the subject has brought us all to the same conclusion as wasreached in the court below. The Atkinson machine was not a failure. It was susceptible of improvement, and it was improved both by Hipperling and by Atkinson himself. Hipperling may justly be accorded the credit due to an improver, but he clearly was not the first to devise a practical machine for double-seaming rectangular cans. It follows that his monopoly must. be limited to his specific construction, and, being so restricted, it is clear that the appellee has not impinged upon it. The authorities are sufficiently cited in the opinion of the court below, and our views upon both the law and the facts are so well indicated in that opinion as to render further statement of them unnecessary. The language of Mr. Justice Bradley, quoted from the decision in Loom Co. v. Higgins, 105 U. S. 580, does not support the contention which the learned counsel for the appellants has based upon it. We agree that it was certainly a new and useful result to make a machine produce a much larger number of cans per day than it had ever before produced, and that the combination of elements by which this was effected would be invention sufficient to form the basis of a patent; but we cannot agree that the improvement made by Hipperling could form the basis of a patent for anything more than the particular means by which that improvement was attained. Admitting that Hipperling made it possible to doubleseam, in· any given time, more cans than it had been possible to double-seam in the same time with the Atkinson machine, yet, inasmuch as Hipper-ling's contrivance was but an improvement, he did not, by devising it, entitle himself to the pre-existing subject-matter to which it related. The decree of the circuit court is affirmed.
ROOD V. EVANS.
ROOD et al. v. EVANS et al. (Circuit Court, E. D. Pennsylvania.
March 6, 1899.)
Infringement may be avoided, however nearly approached, if the subject-matter of the grant be not substantially taken; but, if the principle of the invention be appropriated, liability for infringement cannot be evaded on the ground that the mechanism employed does not, in form and structure, precisely correspond with that described in the patent. The Hood & Vaughan patent, No. 383,914, for improvements in machines for shaving skins or hides, covers a very meritorious invention, and the claims should be so construed as to adeqnately protect it. The claims therefore constrned, and held infringed.
SAME-MACHINES FOR SHAVING HIDES.
This was a suit in equity by John Rood and o,thers against Robert Evans and others for alleged infringement of a patent for improvements in machines for shaving skins or hides. Charles N. Butler and Charles C. ::Morgan, for complainants. Henry E. Everding, for respondents. DALLAS, Circuit Judge. This suit is brought upon letters patent No. 383,914, dated June 5,1888, issued to John Rood and Ira Vaughan, for improvements in machines for shaving skins or hides. In the specification it is stated that the "present invention relates to improvements in a machine for shaving skins, such as shown in the United States patent No. 339,323, granted to John Rood, said improvements relating more particularly to the cutter cylinder, the knives of which are differently arranged from those in said patent." The prior Rood machine was not successful, and this was mainly due to the fact that it would not shave a skin or hide without leaving marks on the surface shaved. The correction of this defect was the principal object of the present invention, and accordingly the attention of the inventors was directed chiefly to the cutter cylinder, the knives of which they so arranged that in their operation the objectionable marking would not occur. In this lies the gist of their invention. As is said in the specification, they devised a cutter cylinder with its knives so arranged that "no mark will remain on the hide or skin after it has been operated on by them, and during the operation of shaving said hide or skin it will be kept in a smooth state, owing to the arrangement of the knives." This cutter cylinder is specifically claimed as follows:
"(3) The cutter cylinder having the two series of knives, as described, arranged in a spiral direction on the external surface of said cylinder, the direction of each series being opposite to or the reverse of that of the other series, and the knives of each series extending froIu one end of the cylinder to and beyond the middle of such longitudinally thereof until they abut each against the other, SUbstantially as shown and described."
The cutter cylinder alone is not operative. To constitute a complete machine, other devices are requisite, and accordingly the patentees, while discarding some of the parts theretofore used, proceeded to organize the essential entire mechanism, by combining with their peculiar cylinder the pressure roller and the sharpening wheel