25 F.2d 716 | 2d Cir. | 1928
Upon the appeal from the decree pendente lite, we said that the plaintiff was entitled to “the exclusive right to carry on the business in the United States with the right of protection of a court of equity from interference by the German corporation.” We further said that “the sale was as complete as if it were a voluntary conveyance; * * * it is not the case of a sale in invitum.” In the opinion we did not specify in just what respeets the “interference” of the defendants should be forbidden, but into our mandate we incorporated a form of order which was to be “substantially” followed. The decree entered upon the trial incorporates the provisions of that order in its details, but, if its language be taken with
While we are not disposed to reconsider the substance of a decision deliberately made upon the same showing, and the decree must therefore be in general affirmed as it stands, the order pendente lite was not intended to be used literally in drafting the decree. In saying that our order should bo “substantially” followed, we left some latitude to the District Court, and under the decree now on appeal it is very hard to see how the defendants could successfully compete with the plaintiff or any other manufacturer. People are not likely to buy goods whoso origin they ^cannot find out, and nobody asserts that the defendants may be altogether forbidden to sell within the orbit of their old American branch. Our first decision plainly presupposed that they might, and the law is so settled (Trego v. Hunt, [1896] A. C. 7), even when the transfer is voluntary.
The defendants indeed argue that the decree goes too far in unconditionally forbidding them to adopt as their corporate stylo one which contains the names of any of the individuals who remain honestly connected with the business. Howe Scale Co. v. Wyckolf, Seamans, Benedict Co., 198 U. S. 118, 25 S. Ct. 609, 49 L. Ed. 972; Knoedler v. Glaenzer, 55 F. 895 (C. C. A. 2) 20 L. R. A. 733. They insist that the courts require no more in such cases than that the vendor shall so distinguish the names as to insure against confusion. Donnell v. Herring-Hall-Marvin Safe Co., 308 U. S. 267, 28 S. Ct. 288, 52 L. Ed. 481; Waterman Co. v. Modern Pen Co., 235 U. S. 88, 35 S. Ct. 91, 59 L. Ed. 142; Walter Baker, etc., Co. v. Sanders, 80 F. 889 (C. C. A. 2); Andrew Jergens Co. v. Bonded Products Corp., 21 F.(2d) 419 (C. C. A. 2); Myers Co. v. Tuttle (C. C.) 183 F. 235. Moreover the exception in eases where the defendant has adopted a name merely for the purposes of fraud does not apply to this ease. Rogers Co. v. Wm. Rogers Co., 70 F. 1019 (C. C. A. 2); Clark Thread Co. v. Armitage Co., 74 F. 936 (C. C. A. 2). Although we cannot go so far as to allow such a corporate style without in substance reversing our earlier decision, it seems to ns that the protection 'of the defendants in the right to compete at all, which we recognized, requires that they shall be allowed to describe their goods by the true name of their maker. So far as this changes the terms of the order pendente lite, we will modify the decree.
The decree as entered will stand, but a clause will be added after the words: “The circular symbol containing the capital letters ‘O A K’ signifying Orenstein-Arthur Koppel.” This clause will read as follows: “But nothing in the foregoing shall be understood to prevent the defendants from describing the goods sold by them to the trade in advertisements, catalogues, circulars, and otherwise, as manufactured in Germany by the German house of Orenstein-Arthur Koppel, or by whatever be the name of the maker when the goods are sold. Provided, however, that when the goods are so described the name of their maker is to bo accompanied by the suffix, ‘not connected with the Koppel Industrial Car & Equipment Company.’ ”
Decree modified as above, and, as modified, affirmed.
