Witlithe' defenda;nts'po$ition is this:that'the article: 'not Citrdcl6thing, but it was pieces of card clothing firmly secu:red·to ironflatsbyrneansof rivets; in other words, it was card clothing: made, or manufactured into something else, of which card clothing forined.one oithe elements. The treasury decisions cited by the defendants do, no'!:, it seems to'me, apply to this case. They would be more applicable if'the cardiolbthinghadbeenseparated, when imported, from the:flatS'f but, it havink'beeu firmly united to the flats in the manner descriOedititis no longer the card clothing of oommerce, but it has bec6mea.ihewarticle of manufacture.n seems totmethatthia Cl:lse comes within Itbetrectmt decision of this court'in BirtweU v. SaltonstaU, 39 Fed. the authorlHes there oited, and Ido not think it necessary to again go over the same ground. Let judgmentibe entered for the, plaintiffs for amount claimed. Judgment for plaintiffs.
'{(74.rcuit coUrt, !':..' ,.
,f.;
N.D.'New ,', ,"
I.'
,.
December 80,1889.) ,
'"',, ' ,,' , Where and lold for yeara M IlLigb,tntng BayKnives," and the word has been registered M a trade-mark by the manufacturers of these knivelll they may enjoin the sale of "Lightning :pattern :u :Elay"JU)ivel.1'. thewqrd Illightn>lUg"not being merely descriptive of the quanty or oharacteristics of the knives. 2. B A M E . , . """, '.. Letters patent No. 112,400, iSllued to.George F.Weymouth Maroh7, 1871, having expired, the owners of suoh patent have no eltolUllive til use the :words mouth's Patent "as a trade-mark, because it was the descriptive name by which the hay-knives became known to the public.
In.Eq\1ity... " ,OhaMlll. I>r.ew, for C6tnplainant. :lAreno1?o,'J!ne, for defendant. ,i
,
":!
'The facts :ih this 'case, as appears by 'the"agreed state-. t!l\8.fpAl'ties;,: as:lfoUows: ..IDram Holt, ?f .in ,tIle state began the'ma.nufaetuI'e of hay-kmvesm the early paTt 1871, dartMn oithe United StaMs granted to Geotige: \F\J rw,eymotitb\ of 'Dre13deri, Me., dated March 7,' 18;71, and the said Hiram Holt being the owner of said letters in th'e mbnthof May, 1872, after he had become, the owner oltsrQid :patent;and'began said Hiram Holt devised, as' I1anie mahufabturedby him tinder the said letters pS,tenl, tlle;wotd"lightning," aDd',he-' began to use inn his said' bnsinesS' 'On the 21'st day of May, 1872.1ri May, 1879, he assbciated Holt, as a co-pal'tller,and thereafter transacted: the' same business under the style of "Hiram Holt & I" until 9th day ,WALLAt!a!:j'Jr. ,;
pf
:their bllUlirtess,and." assigned the use thasll.i<i word "lightning,": as applied to hay-knives, as far as the said firm had the right to assign it, to of·the state ()[·Maine. The said from the 21st day name "lightning" was and has been of May,1872, by;;the said l!iral)l1 Holt,: the said Hira,m Holt & Co., and the cOlIl;plaiI:\.ant down to the present time, their practice being, down to timec;>f the expiration of said. letters patent, on March 7, 1888, to print in bronze letters, On a narrow $tripof dark-colored, glazed paper, which was attached to each of said hay-knives, the word "lightning," in connection with other words, viz., "Lightning Hay·Knife, manufactured byH,IramHolt, [or· Hiram· Holt & Co., or. Hiram Holt Company,] East Wiltqn, Franklin COUJ;lty, Maine. WeYmouth's Patent,"--and after the expiration of said patent,onthe 7th of March, 1888, it was the .practice of the complainant to use-the word "Hghtning" in connection with .said other words, and iQ the ,same mllnner, except that: after "Weymouth's PatElnt" there WM added the following: ,"March 7 j1871. Reissued; April; 20 t ,1886;" and,ithas,also been their practice to stencil the words "One Dpzen Solid Cast-SteelLightning Hay-Knives. Weymouth's Pat. ent"7""'"on boxes contawing .numbers of said hay.knives. Hay-knives manufactqred by the complainant and its predeeessnraiu. the.same busi.. ness, and bearing the same name, including the words "Weymouth1s Patent," are w.ell known to the trade; and said goods and name, including the words ",Weymouth's Patent," are well known to the trade; and said goods. and name,includipg.the words "Weymoutb'sPatent," have been extensively advertised from the year 1872 to the 'present time by. the complainant, and ,the former owners of said business and patent;· and they: have also exported to Great Britain and Canada, and sold there, continuously to the present time, said goods, all fromt4El y,oor bearing said label, inthe manner above described. On :the 24th day of June, 1882, the said firm applied for the registration of the said word "lightning" as a trade-mark in the United States patent office, and de. posited therein a statement an(lwritten declaration, made under oath, of Hiram Holt, a member of said firm, and the same was duly registered in the patent-office on the 1st day of August, 1882{!and a certificate, numbered 9,583, was issued ther,eon. Said certificate was subsequently assigned to the complaiIllint, and the assignment' duly recorded in the patent-office of the United States. The defendants,: prior to the time,o{ theflling,of the bill of complaint in this cause, and subsequent, till., the 9th day of April, 1887, and subsequent to the assignment of said'certificate of registration to the complainant, painted oncertain made by them, said knives being similar.to those made by the complainant and their predecessors under the said Weymouth patent, words as f(mows: "'Lightning'Pattem,Hay-Knife, Solid Cast-Steel;" suchkniyes, bearing said words, were advertised for sale by the defendants at the of them were80ld', ·:aJ};iot use within! the· times aforesaid, United States. The "Lightning" WIlol3 mOre rapid in its operations than any former knife. The i.nallU-
when the
, I'EDERALRElJOR'1'ER,
vol. 41.
factured by the complainant was, after the adoption of'said name and its application to said knife, extensively known to the trade as the "Light. ning Hay..Knife." Upoldhese facts, it should be heldthatthe complainants have a valid Rsapplied to hay-knives similar to trade-mark in the word those to 'which they have applied it ; 'that the trade-mark is valid, both at comm<m.law and by the act of congress of March 3, 1881; that the word is, Dot merely descriptive of the quality or characteristics of the artiple to which it has been applied; and that they should have a decree for an injunction to restrain' the defendants from violating their trademark in the word, and for an accounting. ' It is also held thllt the complainants have no exclusive right to use the 'words "Weymouth's Patent" as a trade-mark, because they are the which was given to such hay-knives when they were first madA and sold, and the name by which they have become recognized and dealt in by the public; and that after the patent expired all persons had the right to deaHn the artiple by that name, and also to print the name upon the article. These conclusions are but the application offa.miliar law to the facts of the case, and ,it would be quite superfluous to indulge in any extended discussion of trie authorities.' If the case of Manvfacttbring Co. v. 'Marwfacturing Co., 32 Fed. Rep. 99;contains any opinion opposed to the view that the defendants have' tberight to print the words "Weymouth's Patent!' upon ves sold 'by them similar to the patented article,lit.is not acceded to, and is antagonistic to the cases of Fairbanks HElatchf. 337, and Battery Co. v. Electric Co., 23 Fed. Rep. 276. The complainants have done nothing to prejudice their right to protection by printingou their hay-knives, after the patent expired, the words "Weymouth's Patent,gl'anted March 7, 1871, reissued April 20, 1886," there being no evidence tha.tthe patent was not reissued as stated. as this representation could not mislead the public.
et al.
fl. WmE
F ABItIC Co.
'(Oircuit Oou,rt. N. D. NeuJ York. December 24,1889.) P"-Tlmft roR INVENTrON-CONSTRUdTION OF CLAIM. Letters patentNo. 804,154, issued August 26, 1884, to Wickwire and another, are fortheproooss of "applying a liquid solution or colnpound "to the rollers overwhich , wire cloth'was passed, for the purpose of drying the paint on the cloth, and pre',ve;iting, it" adhesion to the rollers. The specifications stated that "any liquid solution: or which will adhere to the rollers, and at the saine tilne repel paint; ,jwDnld do, but that a solution of soap in water was fouhd preferable. Held, thatthe"Patent was: for ,the use of some other solution than mere water, as that use of ,was well-I\:nown, 81ld the use pf water for drying the paint, and preventing tts adhesion to theroHers, was no in'friJigement. '
;In Equity., Bill for infringement' of' letters patent. R. H. Duell;farcoInplainants. ' Ha1e,OolJien, &:,}JucKbiJJ, for defendant. '