299 F2d 573 Sweetwater Rug Corp v. J & C Bedspread Company

299 F.2d 573

SWEETWATER RUG CORP. and Cobble Bros. Machinery Co., Inc., Plaintiffs-Appellants,
J. & C. BEDSPREAD COMPANY, Inc., Defendant-Appellee.

No. 180.

Docket 27121.

United States Court of Appeals Second Circuit.

Argued February 5, 1962.

Decided February 23, 1962.

Appeal from the United States District Court for the Southern District of New York; William B. Herlands, Judge.

Plaintiffs appeal from a judgment dismissing their action for a declaratory judgment.

Harry Price, New York City, for plaintiffs-appellants.

George E. Faithfull, New York City, Ernest P. Rogers and Thomas C. Shelton, Atlanta, Ga., for defendant-appellee. Davis, Hoxie, Faithfull & Hapgood, New York City, and Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, Ga., of counsel.

Before SWAN, WATERMAN and MARSHALL, Circuit Judges.


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Plaintiffs' action sought (1) a declaration that two United States patents issued to Joseph K. McCutcheon are invalid and not infringed; (2) an order restraining defendant from threatening or issuing warning notices to the trade or to customers or suppliers or associates of plaintiffs; and (3) an accounting for damages and profits. Defendant moved to dismiss the action for lack of an indispensable party, namely, the patentee. In a well reasoned opinion Judge Herlands granted the motion.


The judgment is affirmed on the opinion below, 198 F.Supp. 941.