that, to the intending pi1rchasers, the distinguishing mark of complainants' soap would be rather the. distinctive naJ;lle, than the size, color, or shape. It would be ilJlp<Jssible to confound "Rose de France" with ''La Parisienne," though, as was suggested on the argument, "La Parisienne" might also become "Rose de France." It has not been made to appear thatatly one ,has in fact been deceived or induced by similarity,to buy the soap sold by defendants for that of the complainants. The testimony of Goldman does not go so far. He asked for La Parisienne soap. The saleswoman inquired if it were glycerine soap, and, upon receiving an affirmative reply, produced ia bar of glycerinesoop, saying:
"This is the same as La Parisienne, but it h.as 'Ro,se de France' on it. Sometimes they put those words on it, ,and .sometimes 'La Parisieune'; but it is the same soap, made bY the same firm. 'WiIlit do?"
Goldman answered "Yes," and took away the soap, to be marked an exhibit in the cause. It does not appear that Goldman was deceived. He does not say that he was induced to buy defendants' soap because it was like that of complainants in name, shape, size, or color, or any other similarity. So far as his deposition is any guide to, his motive, the purchase was made in despite of the difference of name to which his attention was specifically directed, and solely upon the unauthorized representation of a saleswoman, anxious to make sale to a customer, that the Rose de France and La Parisienne were manufactured by the same firm. This assertion might have been made with regard to any glycerine soap having not only a totally dissimilar name, but in every respect of forin; color, and size differing from that of complainants. The facts presented in this case do not fmnish a sufficient foundation upon which to base a right to a preliminary injllnetion restraining defendants from making sale of soap such, as is described, upon the ground of deceit, or that by so doing they unfairly compete in trade with the complainants. The motion will be denied.
COLLIERY ENGINEER CO. v. UNITED CORRESPONDENCE SCHOOLS CO. et at (Circuit Court, S. D. New York. April 4, 1800.)
COPYRIGHT-INFlUNGEMEN'r-LI'l'ER,\.RY!'ltODUOTION OF EMPI,OYE.
The literary product of a salaried employe, the result of compilations made In the course of' his employment, becomes the property of the employer, who may copyright it, and when so copyrighted the employe has no, more right than a stranger to copy or reproduce it; hut he is not debarred from making a new compilation from the same original sources, nor, in so doing, from ,!lIaking use of the experience and information gained In his employment. . '
SAME-SUI't .'OR PJR,\.CY":':')?RET,IMIN,\.RY INJUNOTION.
A preliminary Injunction will not he granted on ex parte affidavits in a 8uitfor the of a copyright pUhIlcation, where the fact of piracy is n<it clear, but the question will be left. for determination on a full hearing. ' .
Suit for infringement of copyright. junction.
On motion for preliminal'y in-
COLLIERY ENGINEER CO. V. UNITED CORRESPONDENCE ,CHOOLS CO.
Livingston Gifford and George H. Pettit, for the motion.
LACOMBE, Circuit Judge. The great bulk of the papers filed on this motion and the difficulties inherent in the nature of the questions involved have delayed this decision, greatly to the court's regret, far beyond the time originally intended. It is manifest that the various pamphlets declared upon are proper subjects of copyright. It seems equally clear that, under his contract, which made it Ewald's duty while a salaried employe of complainant, inter alia, to compile, prepare, and revise the instruction and question papers, the literary product of such work became the property of the complainant, which it was entitled to copyright, and which, when copyrighted, Ewald would have no more right than any stranger to copy or reproduce. There is a strong Pquity in fa,'or of complainant, arising out of the fact that defendants' circular of information opens with statements evidently calculated to induce a belief that thl'ir sehool is the same as, or else a successor of, the l'omplainant's. The motion, however, must be decidl'd, not upon collateral equities, but al'cording to the principles of the law of copyright. The fundamental question is one of faet, viz. are defendants' pamphlets compilations borrowed to a substantial extent from complainant's copyrighted compilations, or are thl'y independent comlpilations from the original sources? In view of the affidavit of Mrs. Gross, the direct evidence of piracy given by Roden should not be accepted as conclusive upon preliminary motion. The judge who hears the l'ause at final hearing will have the benefit of cross-examination of both witnesses, and can decide whose is the more truthful statement. There are undoubtedlv very many elosely parallel passages. If the first work were original, it entirely clear that the second is a copy; but the first work is itself a compilation, using largely the language of the original books, from whit'h it is taken. :Moreover, the very nature of the subjeet-matter treated of in both series-arithmetic, algebl'u, geometry, trigonometry, etc.-is such that similarities of definition, explanation, and examples are not so persuasive as they might be were the subjed history, literature, art, law, etc. Besides, it is thought that, although E'Yald was not at liberty to reproduce so much of his work as had been copyr-ighted by the employers for whom it was prepared, eyen by availing of his reeollection of the contents of the copyrighted pamphlets, he was not debarred, after his contract terminated, from making a new compilation, nor from using the same original- sources of information, nor from availing of such information as to the needs of students and the best methods of getting in mental touch with them as he may have acquired while superintending complainant's school. And it lIlay well be that defendants' information in that regard has tended lai'gely to produce similarity of form and arrangelIlent without direl'tly borrowing from the original pamphlets. As to the respeetive eirculars of information, mueh of the similarity arises from the eireul1lstanee that defendants have closelr followed the eomplainant's sYl'tem of teaehing, whidl, of course, is' not, as a system, protected by thp statute. Very mudl of the matter contained in the defendants' circl1lar is found in the first UllCOpjTighted
edition of the cf)mplainant's; but there are nevertheless 'many passages which seem to have been conveyed from thecopyr.igllted edition. The answer to the question of fact upol1 which the case turns is not full to the ab?ve entirely clear. Even set forth 1 some of the resembll:tnces the two sets of pubhcation$ are strongly indicative of pirac;r. But a preliminary injunction, such as is prayed for, would be' practically a judgment in advance of hearing, working irreparable, damage to defendants; and it is thought best to relegate the question to final hearing;' Cross-examination may give so clear a conviction as to the direct evidence as to enable the court, to weigh the circumstantial evidence more correctly.
DUFF MFG. CO. v. KALAMAZOO RA):LROAD VELOCIPEDE & CAR CO.
(Circuit Court, W. D. Michigan. S. D.
1. PATENTs-PRELnUNARY INJPNCTION. ,'
August 3, 1898.)
Where a patent ha!! been sustained by the circuit court of appeals in another circuit aftet 'R sertOU!! contest, the court will award a preliminary injunctioll, if infringement is clear, aud postpone to the final hearing all questions relating to the of tbepa,.tent, unless there is, new evidence so clear and persuasiye In .character, as to leave no fair doubt such former decision was erroneous, and would have beep. different If the new 'matter had been before the court. ' ,The Barrett patents, Nos. 455,993 arid 527,1()2, for a jacking apparatus, construed on motion, for preliminary injunction, and held valid and infringed; tbe former as to claims 1 and 6, and the latter as to claim 19.
ApPARATUS:' " '"
This was a suit in equity by the, Duff ManUfacturing Company against the, Kalamazoo Railroad Velocipede &' Car < Company for alleged infringement of'letters patent No. 455,993, granted July 11, 1891, and No. 527,102, granted Oct<!ber 9, 1894, both to Josiah Barrett, for a jacking apparatus. ' The claims ihvolved are 1 and 6 of the earlier patent, and 19 of the later one. The cause Was heard on a motion for' preliminary injunction. Kay & Totten, for complainant. Howard, Roos & Howard, for defendant,. SEVEImNS, District Judge. A motion is made ill this case for a preliminary injunction to restrain the defendant from manufacturing or selling a certain kind of lifting jacks, whid} are, alleged to be infringements of the patents of the complainant. It apppar8 from examination that the claims in the complainant's patent8 here sued on have been the subject of litigation in the federal courts of thl' Third where their validity has sustained by the cireuit court and the circuit court of appeals upon re,cords nearly as full as the present in respect to the defense of anticipatiDn. Manufacturing Co. v. Forgie, 57 Fed. 748,78 Fed. 626; Id., 26 C. C. A. 654, 81 Fed. 865. Upon that point the question was quite elaboratel,)' considerpd, and evidentl,}' upon a bona fide record and strenuous controversy. The general rule of comity requires this court, in such circumstances, to