168 F. 61 | 2d Cir. | 1909
As presented here, the case involves a single-point. Defendant concedes the validity of the patent, and does not question the propriety of the injunction. The complainant concedes that defendant, when he committed the infringement complained of, had no actual notice of the patenting of the design. All there is left to determine is whether the complainant gave the statutory notice provided for in section 4900, Rev. St. (U. S. Comp. St. 1901, p. 3388).
The design was used by complainant in two ways, upon a belt and upon a hatband. To all the belts which he made and sold he affixed
“When, from the character of the article this [affixing on the article] cannot be done by affixing to it, or to the package wherein one or more of them Is enclosed, a label containing a like notice.”
We do not think it can be fairly held that the label inside on the lining of the hat was affixed to the band, nor that the hat was a package within which one or more bands was inclosed. Inasmuch as complainant admits that no labels other than these were affixed to anything, he has failed to make sufficient proof of notice to entitle him to recover damages, profits, or statutory penalty.
The decree is reversed, with costs of this appeal, and cause remanded, with instructions to decree for injunction only with costs in Circuit Court.