Columbia Engineering Works v. Mallory

147 P. 542 | Or. | 1915

Mr. Justice Harris

delivered the opinion of the court.

The complaint, in effect, charges that the size and general outward appearance of the block made by defendant, the number 1118 on the shell of the block, making the parts of the pulley interchangeable with the corresponding parts of plaintiff’s make, and coloring the sheaves red, constituted the elements of simulation. The pulleys specifically mentioned in the complaint and received in evidence as exhibits are plaintiff’s No. 18 and defendant’s No. 1118, although each party manufactured different sizes.

The shell of the block numbered 18 by plaintiff is solid so as completely to cover one-half the side of the sheave. The mold in which the shell of the pulley block is cast is so made that across the face of the shell, in raised letters and figures, the following plainly appears: “Columbia 18 Extra Skookum, Pat. Dec. 5, 1905” — and raised in a similar manner, for the purpose of reinforcing the shell, a band or strip extends from the hub along the middle of the shell and to the shackle.

The pulleys manufactured by defendant are placed on the market with two styles of pulley blocks. One block has a solid shell covering more of the side of the inclosed sheave than does No. 18 made by the plaintiff ; and across the face of this shell in raised letters and figures much more distinct than in No. 18 the following appears: “Mallory’s Steel Block No. 1118.” The other style made by defendant has an open or skeleton shell. The defendant has a copyrighted trademark thus <m>. On the face of this skeleton shell plainly appears the trademark <m> and the number 1118. The manner in which this skeleton shell is reinforced, when compared with the reinforcement appearing on No. 18, is a matter of contrast, rather than comparison. The trademark used by defendant is indented in the rim of the sheave. As is to be expected, the .functional parts of all the pulleys are similar. The defendant manufactured different grades of sheaves and, like plaintiff, used different colors to designate the grades. Mallory explains the use of red by saying that notwithstanding he suggested yellow for the manganese sheaves, the machine-shop, where the first blocks were made, painted them red. He is corroborated by Mathew Walch, who testified that he was connected with the machine-shop mentioned; that “Mr. Mallory suggested yellow for the manganese, but we didn’t like the color, and we painted them red, without any further notice.” The plaintiff was the only other dealer that painted manganese sheaves red.

1. The plaintiff also objected to the extended hub adopted by defendant, but the uncontradicted evidence is to the effect that pulleys having an extended hub were first made by C. B. Borquist, a pulley manufacturer. The defendant has distributed catalogues and advertised extensively, and his pulleys are advertised as “Diamond ‘M’ Blocks.” It appears from the catalogues issued by defendant that at the bottom of each page is the printed direction “order by number,” and that different numbers designate different pulleys, as shown by the cuts, some of the numbers being 1112, 1018, 1218, 1134, 1234, and 1118.

The defendant, who is a subsequent manufacturer, cannot palm off his goods as those of his rival, the plaintiff, and escape the restraining hand of equity. It is not necessary to show by specific instances that purchasers have actually been deceived; but a court of conscience is justified in stamping the brand of commercial piracy upon the wares of defendant if he puts them upon the market in such form and manner as to deceive the purchasing public into the belief that such wares were made by plaintiff: Fuller v. Huff, 104 Fed. 141, 144 (43 C. C. A. 453, 51 L. R. A. 332); Duniway Publishing Co. v. Northwest Printing Co., 11 Or. 322 (8 Pac. 283).

“Rival manufacturers may lawfully compete for the patronage of the public in the quality and price of their goods, for the beauty and tastefulness of their inclosing packages, in the extent of their advertising, and in the employment of agents, but they have no right, by imitative devices, to beguile the public into buying their wares under the impression they are buying those of their rivals”: Coats v. Merrick Thread Co., 149 U. S. 562, 566 (37 L. Ed. 847, 13 Sup. Ct. Rep. 966, 967).

The rule is even more stringent than thus far stated, for the doctrine of probability prevails. A terse statement of the scope and extent of the rule governing unfair competition is found in 38 Cyc. 773:

“In order to make out a case of unfair competition, it is not necessary to show that any person has been actually deceived by defendant’s conduct and led to purchase his goods in the belief that they are the goods of the plaintiff, or to deal with defendant thinking he was dealing with plaintiff. It is sufficient to show that such deception will be the natural and probable result of defendant’s acts. But either actual or probable deception and confusion must be shown; for, if there is no probability of deception, there is no unfair competition. In close cases, where the deceptive tendency is not clear, equity will withhold its hand until actual deception has resulted. Mere possibility of deception is not enough.”

If it is probable that the ordinary buyer in the ordinary course of business will be deceived into buying the pulleys of defendant with the belief that he is purchasing the pulleys of plaintiff, then equity, in the interest of common business honesty and integrity, will interpose a restraining hand: McLean v. Fleming, 96 U. S. 245, 251 (24 L. Ed. 828). No hard-and-fast rule can be laid down by which to determine what conduct will amount to unfair competition, because it is to a large extent a question of fact; the ultimate test being whether the public is likely to be deceived.

2. The evidence does not disclose a single instance of actual deception. It is difficult to understand how anyone could be misled if he ordered from the catalogue of defendant, because the catalogue makes prominent the fact that defendant manufactures <5?> Logging Blocks. Two cuts of pulley No. 1118 are shown, and at the top of the page in display type is printed “Diamond M Trip Line Blocks.”

The pulleys in dispute are used chiefly and almost exclusively in logging operations. No logger who testified said that the color of the sheave carried with it. in his mind, any suggestion of the origin of the sheave. Most of the loggers testified that they paid no attention to the color. The primary object of painting the sheaves red was to denote manganese as the quality: Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 547 (34 L. Ed. 997, 11 Sup. Ct. Rep. 396). From a consideration of the evidence, the most that can possibly be said is that the trade came to know red sheaves as being made of manganese. Anyone had the right to manufacture manganese sheaves.

The person buying upon inspection is served with notice of the origin of the pulley the moment he looks at the shell, because he could not help seeing the words “Mallory’s Steel Blocks” on one shell and <3> prominently displayed on the other; and on the full width of the rim of the sheave appears the indented trademark used by the defendant.

The essence of the whole inquiry is whether deception is likely or probable. From the evidence submitted we conclude that deception is not likely or probable.

3. Complaint is also made because defendant advertised: “Our sheaves and pins fit your old blocks.” The making and selling of repair parts for other logging pulleys is not an act of unfair competition, if there is no deception, and if the goods are not put out as the goods of another. The sheaves and pins mentioned plainly refer to ‘ ‘ our ’ ’ or the sheaves and pins made by Mallory, and not made by some other dealer: Bender v. Enterprise Mfg. Co., 156 Fed. 641 (84 C. C. A. 353, 13 Ann. Cas. 649, 17 L. R. A. (N. S.) 448).

The decree is affirmed. Affirmed.

Me. Chief Justice Mooee, Me. Justice McBeide and Mr. Justice Bean concur.