233 F. 112 | S.D.N.Y. | 1916
(after stating the facts as above). [1,2] In cases of this character the question is always in the nature of a compromise between the plaintiff’s security in his trade and the annoyance and expense imposed upon the defendant by im
In the case at bar there is no danger of losing sight of the distinction suggested, if the test be applied of nonfunctional features, because a buyer will not choose a spark plug because its appearance pleases his fancy. However, I am not satisfied that any part of the defendant’s plug is nonfunctional and could be changed without some sacrifice, or at least some chance of sacrifice, to its real mechanical value. The fact that in earlier plugs the shell electrode was not bent'up has some force, yet the bend has some functional plausibility, and I am not prepared to .take from the defendant that feature. The lengthening of the porcelain is another feature, possible perhaps, but not certainly without some question, since it adds to the plug’s fragility. More may be said for lengthening the hex; but I think there are better and sufficient ways to distinguish the plugs than by imposing this requirement upon the defendant. It seems to me rather that if the defendant be required to change the color of the plug it will be a more certain means of distinction, and will avoid the need of any mechanical change in what is a quite legitimate competition. If, for example, the whole shell and bushing be nickeled, which could be done at the trifling cost of 35 cents per 1,000 and if a quarter-inch band of color be run around the top of the porcelain, which would add little or nothing more to the cost, ,it seems to me that not even a careless buyer would be misled. If he bought such a plug, I think he would be genuinely indifferent to its maker.
These changes impose some burden upon the defendant, yet the cost is not substantial, and the gain to the plaintiff may be real. To couple these changes with an elongation of both shell and porcelain would, it is true, add something, the appearance being thus wholly reorganized in form and color ; but a' buyer who was so careless as not to observe
A question was raised at the trial of the kind of nickeling which might serve. It is enough to observe that the time which counts is the moment of purchase. If the plug has a different color then, it is enough, however the color changes thereafter. On this account the defendant will be free to adopt any other distinctive color than nickel on the shell and bushing nut, whether it wears off or not. If it chooses, it may dip the shells in any coloring material.
Furthermore, it must be understood that any protection to which the plaintiff is entitled depends altogether upon its monopoly of the Ford motor factory equipment. In its direct competition for the Ford business the defendant may copy the plaintiff’s plugs to the minutest detail, because the Ford Motor Car Company cannot be misled as to the manufacturer with whom it deals. If the defendant or any one else by such competition can secure a substantial part of the equipment of that car, so that any given buyer may get either the plaintiff’s or some one else’s, it would obviously be unjust to assume that, in seeking to replace his plugs with those which he originally got, he must want the plaintiff’s plugs. The decree will be held open at the foot for modification upon proof of such a change.
Courts often decline in decrees in such cases to indicate what features of the defendant’s make-up need be changed; but there appears to be no necessity of throwing the parties to a proceeding in contempt, when the matter turns altogether upon the precise distinction which will in the end be accepted. It has been,the custom in this district to provide more specifically the conditions upon which the defendant may compete, and I shall follow that custom in this case.
Therefore the decree will provide that the defendant will be enjoined from selling its “Mosler Superior” plug as at present organized, unless it change the color of the shell and bushing nut, and of the 'porcelain, so as to distinguish their appearance. I will at present go no further than to provide for such changes generally. The color of the shell and porcelain are at the defendant’s option, so they be distinctive, and the porcelain be not marked in red in any way. The amount of the color on the porcelain, whether over the whole, or by a band, and, if so, the width of the band, I will also leave open. I have suggested a quarter-inch band at the top, and it rather seems to me that it should be so, but I am not ready finally to tie the defendant quite so closely as that, except that the name “Mosler” must be retained, or, in the case of plugs made for jobbers, the name of the jobber, or some trade-mark, in letters other than red, which shall be unlike “Champion X.”
The decree will also provide for application at the foot in case any other maker shall secure a part of the Ford equipment business.
On Motion to Settle Decree.
A hearing has been had for the settlement of' the decree in these cases, in which the plaintiff objects to the limitation of the injunction in respect of my permitting the defendants to furnish the Ford Motor Company with plugs made of a color precisely like their own. They -suggest that precisely similar plugs in form and finish furnished to the Ford Motor Company may become a means of confusion. The defendants thereupon accepted the suggestion of the plaintiff that the decree should include sales to the Ford Motor Company, provided that the requirement that the porcelain should be colored with a circular band be omitted. To this the plaintiff has agreed, and therefore the decree will simply require the defendants to color the shell and bushing nut with nickel or in some other appropriate way, and to retain upon the porcelain the name of the dealer or of the maker in some other color than red.
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