ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Opinion of the Court.

nothing that sanctions the argument that an offender against it shall be deprived of redress for a civil injury on the plea that he has been guilty of an infraction of that act which gives a remedy to one injured in his business or property against the transgression of the law, and does not suggest that one who has taken the property, infringed the trademark or patent of another, or refused to pay debts because of an alleged transgression of the Sherman Act by the creditors, can invoke that act as a defense to liability either in suits in tort or contract Independent Baking Powder Co. v. Boorman (C. C. 130 Fed. 726; Connolly v. Union Pipe Co., 184 U. S. 540; 22 Sup. Ct. 431, 46 L. Ed. 679.

[789] The proofs further show that the defendants are guilty of unfair competition, in passing off through their agents and employés defendants' product labeled "Certosa " as and for " Ceresota " flour, in misrepresentation as to the place of manufacture of their flour as labeled, the grade or quality thereof, and that it was made from Minnesota and Turkey wheat when it was not so in fact, and also in selling and offering their "Certosa " flour as spring wheat flour, which sells at a higher price than flour made from winter wheat.

[ocr errors]

Defendants also have infringed complainant's registered trade-mark. In defendants' application for registration of "Certosa as a trade-mark, which was denied by the Patent Office, defendants made oath August 2, 1906, that they used that brand "in commerce among the several states," and made a like admission in their answer.

Complainant is entitled to a decree protecting it against the use of the word "Certosa " as a name for defendants' flour, because the use thereof for that purpose infringes complainant's trade-mark right both at common law and under the act of Congress providing for registration of trademarks; that defendants have been guilty of unfair competition to the injury of complainant's business and rights. Complainant is also entitled to a perpetual injunction as prayed, and an accounting of damages and profits with respect to both trade-mark infringement and unfair competition, with costs to be taxed.

10870°-S. Doc. 111, 62-1, vol 3—49

Syllabus.

[104] MOTION PICTURE PATENTS CO. v. LAEMMLE ET AL.

SAME v. PANTOGRAPH CO.

(Circuit Court, S. D. New York. March 7, 1910.)

[178 Fed. Rep., 104.]

PATENTS (8 297)-SUIT FOR INFRINGEMENT-PRELIMINARY INJUNC TION-PREVIOUS ADJUDICATION.-Where the validity of a patent has been adjudicated by the Circuit Court of Appeals, and infringement is conceded, a preliminary injunction should issue against defendants, unless the court is convinced of the probability that, had the new evidence been before the Circuit Court of Appeals, its conclusion would have been different, or a claim by defendant that complainant is without title is sustained."

[Ed. Note. For other cases, see Patents, Cent. Dig. § 488; Dec. Dig. § 297.

Effect of prior adjudication as to validity of patent in Circuit Court of Appeals, see notes to National Cash Register Co. v. American Cash Register Co., 3 C. C. A. 565; Thomson, Houston Electric Co. v. Hoosick Ry. Co., 27 C. C. A. 427; United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.] MONOPOLIES (§ 21)-COMBINATIONS IN RESTRAINT OF TRADE-DEFENSE TO SUIT FOR INFRINGEMENT OF PATENT.-That a complainant is itself, or is a member of, a combination in violation of the federal anti-trust statute, is not a defense available in an ac[105] tion for the infringement of a patent, nor does it show a defect in complainant's title.

[Ed. Note. For other cases, see Monopolies, Cent. Dig. § 15; Dec. Dig. 21; Patents, Cent. Dig. §§ 451, 489.]

In Equity. Suits by the Motion Picture Patents Company against Carl Laemmle and the Independent Moving Pictures Company of America and against the Pantograph Company, respectively. On motions for preliminary injunctions. Granted in part.

Richard N. Dyer, for complainant in first suit.

Philip Farnsworth, for complainant in second suit.

Emerson R. Newell, for defendants.

a Syllabus copyrighted, 1910, by West Publishing Co.

Opinion of the Court.

NOYES, Circuit Judge.

The validity of the patent in suit has been adjudicated by the Circuit Court of Appeals for this circuit (Edison v. American Mutoscope & Biograph Co., 151 Fed. 767, 81 C. C. A. 391), and infringement on the part of the defendant corporations is conceded. Consequently a preliminary injunction should issue, unless this court is convinced (1) of the probability that, had the evidence of new disclosures and uses been before the Circuit Court of Appeals, its conclusion would have been different; or (2) that the complainant is without title to the patent.

The evidence concerning the Levison disclosure and the Greene patent or invention is, however, insufficient to convince me that, had it been introduced in the former case, a different conclusion would probably have been reached. I am also of the opinion that the charge, if established, that the complainant is itself, or is a member of, a combination in violation of the federal Anti-Trust statute, is not a defense available in an action for the infringement of a patent, and fails to show a defect in the complainant's title.

An injunction against the corporation defendants may therefore issue. The proof of personal infringement by the defendant Laemmle is, however, deemed insufficient to warrant the issuance of an injunction against him, and it is denied. But this action is without prejudice to the right of the complainant to renew its application, in case future acts of personal infringement are disclosed.

This case seems to be fully presented upon the affidavits, and it is assumed that the complainant will desire to appeal from this order to the court which, in view of its previous decision, can best pass upon the matter. Such an appeal being privileged, a speedy hearing can be obtained. I am inclined to suspend the issuance of the injunction until after the determination of the appeal, provided (1) the appeal is brought on for a hearing at the May session of the Circuit Court of Appeals; and (2) that the corporation defendants furnish an adequate bond to pay damages and account for profits during the pendency of the appeal, if it is unsuccessful. If the issuance of the injunction is not sus

Syllabus.

pended pending appeal, a bond by the complainant to answer all damages occasioned by the issuance of the injunction would seem proper.

Counsel may present memoranda and affidavit upon these suggestions and the amount of bonds necessary for the protection of the respective interests.

[117] WARE-KRAMER TOBACCO CO. v. AMERICAN TOBACCO CO. ET AL.o

(Circuit Court, E. D. North Carolina. March 8, 1910.)

[178 Fed. Rep., 117.]

COURTS (§ 277)-FEDERAL COURTS-DISTRICT OF SUIT-DETERMINATION OF QUESTION.-The question whether a suit in a federal court is maintainable in the district where brought, under the statute, may be raised either by motion to set aside the service of process or by special demurrer, where a special appearance is made for that purpose only, and before pleading to the merits; but the right is waived by filing a general demurrer or pleading to the merits.

[Ed. Note. For other cases, see Courts, Cent. Dig. § 818; Dec. Dig. § 277.

Waiver of right as to district of federal court in which suit must be brought, see notes to Memphis Sav. Bank v. Houchens, 52 C. C. A. 192; McPhee & McGinnity Co. v. Union Pac. R. Co., 87 C. C. A. 34.] COURTS (274)-FEDERAL COURTS-DISTRICT IN WHICH SUIT MUST BE BROUGHT.-An action against a corporation in a federal court for a common-law tort can be maintained only in the district of plaintiff's residence, or that in which defendant is incorporated, and such requirement cannot be avoided by joining in the same complaint another count stating an entirely separate cause of action of which the court has jurisdiction, nor by stating a joint cause of action against such defendant and another which is an inhabitant of the district and may be there sued; the cause of action being several as well as joint.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 274.] MONOPOLIES (§ 28)-PLEADING (§ 364)-ACTION FOR DAMAGES UNDER ANTI-TRUST ACT.-In an action under Anti-Trust Act July 2, 1890,

For opinion overruling demurrer to amended complaint (180 Fed. Rep. 161) see post, page 780.

Syllabus copyrighted, 1910, by West Publishing Company.

Opinion of the Court.

c. 647, § 7, 26 Stat. 210 (U. S. Comp. St. 1901, p. 3202) to recover damages for an alleged unlawful conspiracy or combination in restraint of interstate trade and commerce, owing to the complicated nature of the case and the numerous elements which may enter into such a comspiracy, the plaintiff must be given liberal latitude in his pleading, and matter will not be stricken from his complaint on motion under a state statute as "irrelevant and redundant," unless it is clearly so; but matter which is manifestly purely evidentiary will be stricken out.

[Ed. Note. For other cases, see Monopolies, Dec. Dig. § 28; Pleading, Dec. Dig. § 364.]

Action by the Ware-Kramer Tobacco Company against the American Tobacco Company and the Wells-Whitehead Tobacco Company. On special demurrer to complaint and motion to strike out matter as irrelevant and redundant. Demurrer sustained, and motion sustained in part.

F. A. Daniels, C. C. Daniels, and F. A. Woodard, for plaintiff.

Aycock and Winston, Junius Parker, and F. L. Fuller, for defendants.

[118] CONNOR, District Judge.

It appears upon the face of the complaint: that the plaintiff is a corporation, chartered and organized under and pursuant to the laws of the state of Virginia, having its principal office in the city of Norfolk in said state. That the defendant American Tobacco Company is a corporation chartered and organized under and pursuant to the laws of the state of New Jersey, having a branch office in the city of Durham, in the Eastern district of North Carolina, with a resident agent upon whom process in said district may be served. The defendant Wells-Whitehead Tobacco Company is a corporation chartered and organized under and pursuant to the laws of the state of North Carolina, having its principal office in the town of Wilson in said district.

The action is brought against the defendants jointly, and the complaint, complying with the provisions of the Code of Procedure of North Carolina, sets forth, separately, two causes of action. In the first it is alleged: That the plaintiff

« ÀÌÀü°è¼Ó »