Sivut kuvina

Opinion of the Court.

running or blurring, and so as to make well-defined and ornamental figures. The product is a desirable imitation' of figured goods in ordinary colors, and having what may be called a 'cloth surface,' and all the colors and beauty of appearance of such ordinary dress and similar goods, with the valuable quality, in addition, of capacity to resist or repel moisture." The claim was for "a waterproof fabric for dress and other goods, having a surface of the described waterproof composition, and impressed with figures and colors, as set forth."

It is difficult to see wherein the invention of Aldrich differed in any important or patentable feature from these prior devices. Aldrich may be entitled to a patent for his composition, but the patent in question is not for a rubber fabric printed or stamped with designs in any particular ink or compound, but in any ink composed in whole or in part of rubber, etc., with or without sulphur or other vulcanizing material. While the patent is for a manufacture or product, it is for a product resulting from a specified process of printing or stamping in an ink of this general description. The composition used by Brigham is described as made up of ten pounds of indiarubber in its natural condition and thirty pounds of whiting as a basis. For black goods, lamp-black is added; for white goods, two pounds of zinc-white; for a red color, vermilion is used, and for other colors, other mineral pigments. But in all cases the rubber and whiting constitute the bulk of the mass, though other known equivalents for rubber may be used, and the ingredients are ground together and then dissolved in benzine.

The ink or compound of Aldrich is composed of different ingredients, of which, however, rubber and naphtha appear to constitute the basis, and the alleged patentable feature consists in printing or stamping ornamental designs with this compound upon a rubber cloth or fabric. There does not. seem to be any essential difference in the two patents, the main difference being in the composition used by Aldrich, which is not made the subject of his patent. If, as is claimed by the plaintiff, the invention of Brigham was a practical


Statement of the Case.

failure and abandoned, the evidence is equally clear that Aldrich, after putting the goods upon the market for a year and a half, abandoned the business and has not resumed it. There does not seem to be much to choose between them in this particular.

This case is substantially like that of Underwood v. Gerber, ante, 224, decided at the present term, in which the patentee claimed a fabric coated with a composition composed of a precipitate of dye matter, in composition with oil, wax or oleaginous matter, without claiming the composition of this matter. The patent was treated as one for applying the composition to paper, and was found to be without novelty. The decree of the court below, will, therefore, be




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Irrespective of any question of trade-marks, rival manufacturers have no right, by imitative devices, to beguile the public into buying their wares under the impression that they are buying those of their rivals.

The proofs establish that there was no intention on the part of the appellees to impose their thread upon the public as that of the plaintiff in error, or to mislead the dealers who purchased of them.

When the letters patent to Hezekiah Conant, protecting " a new design for embossing the ends of sewing-thread spools" expired, the public became entitled to use them for the purpose for which the assignee of Conant used them.

THIS was a bill in equity by the firm of J. & P. Coats, of Paisley, Scotland, to enjoin the defendants, the Merrick Thread Company, a Massachusetts corporation, and Herbert F. Palmer, its managing agent in New York, from infringing plaintiffs' trade-mark, and unfairly competing with them, by simulating

Statement of the Case.

certain labels and symbols used by the plaintiffs upon the ends of wooden spools upon which sewing thread is wound.

The bill set forth in substance that plaintiffs had, since 1830, been engaged in the manufacture and sale of sewing threads on spools, and since the year 1840 the thread made by them had been and still was sold largely in the United States; that since about the year 1869 said firm had also been engaged in the manufacture of thread at Pawtucket, in the State of Rhode Island; that their business was very large and valuable, and their thread was well known to the trade as "J. & P. Coats' thread;" that all the thread manufactured by plaintiffs, which is wound on spools of 200-yard lengths, had been and still was composed of six separate strands twisted together, known as "six-cord" thread, and was designated upon their labels and wrappers as" Best Six Cord." That about the year 1842, the name "J. & P. Coats," with the quantity reeled on each spool, and the words "Best Six Cord," with a designating number, were placed upon a circular black and gilt label upon the end of every spool, and had always been one of the designating trademarks of the plaintiffs in the United States; that in 1869 they adopted the idea of embossing upon the natural wood and upon the outer edge of the heads of the spools numerals corresponding with those upon the paper labels pasted upon the centre of said spool heads, the object of such embossing being to show the number of the thread in case the paper label showing such number should be defaced or removed, and also to give a distinctive appearance to the plaintiffs' spools, and to indicate the origin and manufacture of the thread. The bill further averred that on the 9th of February, 1875, plaintiffs registered as a trade-mark at the Patent Office the central label of paper, and the peripheral band of natural wood, embossed with an ornamental design of crossed lines and central stars, with intermediate spaces, in which were embossed numerals corresponding to those in the centre of the label.

The bill further charged the defendant, the Merrick Thread Company, with being the manufacturers of both the “threecord" thread, a thread of inferior grade, and also of "six

Counsel for Appellees.

cord" thread on spools in length of 200 yards; that for the three-cord thread the defendants used paper labels, wholly unlike, in color or design, to any labels used by the plaintiffs, but that in selling in competition with the plaintiffs the sixcord thread, they used labels upon the spools made in colorable imitation of the plaintiffs', and intended as a counterfeit of their designs and trade-mark, the object being to so imitate the general appearance of plaintiffs' thread that the same may pass into the hands of tailors, illiterate men, and others buying at retail and using sewing thread, as the genuine thread of plaintiffs.

In their answer the defendants denied the material allegations of the bill, and that the marks, embossment and labels used by the Merrick Thread Company were a simulation or infringement upon the plaintiffs' labels and trade-marks, but, upon the contrary, averred that they had endeavored to mark their goods so that no one could mistake their origin, and that their labels were so different from those of the plaintiffs and other manufacturers that they were plainly distinguishable from them by ordinary purchasers. They further averred that the use of embossing the number of the spool thread on the wood of the spool head around the paper label was, on April 5, 1870, patented as a design to one Hezekiah Conant, which patent had long since expired, and alleged that since such expiration the defendants had the free right to use such design, including any paper label which was not in and by itself an infringement of any lawful trade-mark of the plaintiffs.

On a hearing in the court below upon pleadings and proofs the bill was dismissed, (36 Fed. Rep. 324,) on the ground that defendants were not shown to have made an unlawful use of the plaintiffs' labels. Plaintiffs thereupon appealed to this


Mr. Frederic H. Betts for appellants.

Mr. W. C. Witter, (with whom was Mr. W. H. Kenyon on the brief,) for appellees.

Opinion of the Court.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

The gravamen of the plaintiffs' bill is contained in the allegation that the defendants have been guilty of an unlawful and unfair competition in business, in that they have been infringing the rights of plaintiffs in and to certain marks, symbols and labels, by selling in competition with the plaintiffs a spool thread of "six cords" put up on spools of 200 yards' length, which thread is not manufactured by these plaintiffs, but is put upon the market and sold among retailers and customers, as well in the city of New York as in other and distant parts of the United States, as and for the thread of the plaintiffs, by reason of the labels, marks, and devices upon the spools whereon the said thread is wound.

It will be observed in this connection that no complaint is made of the conduct of the defendants with respect to any other thread than that of six cords put up in spools of 200 yards in length, notwithstanding that both plaintiffs and defendants have been long engaged in the manufacture of thread of several different sizes and lengths. Nor is it alleged that defendants have used any other means of imposing their thread upon the public as that of the plaintiffs, except by the imitation of their device upon one end of the spool. The dissimilarity between the labels on the other end of the spool is so great that it is not and could not be claimed that any intent to imitate existed.

It is admitted, however, that six-cord spool cotton is the thread most largely used for domestic consumption, and, put up on spools of 200 yards' length, in numbers from 8 to 100, is best known and purchased by the great mass of consumers; and that it is as manufacturers of this description of thread that the plaintiffs are and have for a long time been known throughout the country.

The controversy between the two parties then is reduced to the single question whether, comparing the two designs upon the main or upper end of the spool, there is such resemblance as to indicate an intent on the part of defendants to put off

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