1 F.2d 460 | N.D. Ga. | 1924
(after stating the facts as above). The foregoing ca.se coming on for a hearing, pursuant to rule nisi heretofore issued therein, after hearing the testimony and arguments of counsel, and counsel having stipulated in open court that the court pass on all questions of law and fact and render a final order and decree therein, it is therefore ordered and decreed as follows:
I. The court finds that for many years plaintiff has used as a trade-mark for brick of its manufacture the arbitrary word “llyiex.” By reason of the use of said name and the products sold thereunder, the name “Hy-tex” has come to denote in the market and among purchasers and consumers of brick the goods manufactured and sold by the complainant company, and that mark was duly registered in the United States Patent Office on June 23, 1914.
II. The court finds that many years after complainant’s product, under the trademark “Hy-tex,” had become known, and after said trade-mark had become identified and associated with plaintiff and its product, and after plaintiff’s registration thereof, the defendant put upon the market bricks, which it stamped with the word “Hytest,” which the court finds to be a color-able imitation and infringement of complainant’s registered trade-mark “Hy-tex”; said infringing mark having been used by the defendant without authority from the plaintiff on goods of the same descriptive properties in commerce among the several states of the United States.
It is therefore adjudged and decreed that" the defendant, Stevens, its officers, agents, servants, and employees, be and they are hereby perpetually enjoined and restrained from using or employing in the advertising, offering for sale, or sale of brick, or goods of the same descriptive properties, the colorable imitation “Hytest” of plaintiff’s registered trade-mark “Hy-tex,” or any other colorable imitation or like word: Provided, however, the defendant shall have 120 days from date of this order within which to sell or dispose of its product now on hand and manufactured by it prior to the granting of this order.
And it is further ordered, adjudged, and decreed that the said complainant, having waived an accounting of profits and damages, do recover of the defendant the sum of $1 and its costs and charges and disbursements in this suit, to be taxed.
