43 F. 450 | U.S. Circuit Court for the District of Eastern Missouri | 1890
(orally.) We have the same difficulty in these cases in regard to the Webster’s Dictionary controversy that we had in the case of ■ Stephens v. Overstolz, post, 465, (just decided.) The difficulty is that the parties demur to the whole bill, and of course if there is any one thing in the bill that is good, — that is to say, if the bill taken altogether entitles the complainant to some kind of relief, — the demurrer should be overruled. If a party in chancery or in a law case wants to demur to a particular part of a bill or declaration, he should not frame his demurrer as is done in this instance, so as to call the whole bill in question. ,
I am not clear but what there may be a right of action growing out of the alleged fact that the defendants have appropriated the device of an open book, which device the complainants have hitherto been in the habit of using on their advertisements, circulars, letter heads, etc. This device of the open book, as we understand it, is also used by the defendants on théir letter heads, circulars,- etc. That device so appropriated by defendants may not be a trade-mark; but I can see no good reason, no honest reason, why the defendants should use the same mark or device on their letter heads, advertisements, and circulars, which the com-' plainants are using. It looks as though there might be enough in this fact stated in the bill, to prevent the court from sustaining a general de
1 want to say, however, with reference to the main issue in the case, that it occurs to me that this proceeding is an attempt to establish the doctrine that a party who has had the copyright of a book until it has expired, may continue that monopoly indefinitely, under the pretense that it is protected by a trade-mark, or something of that sort. I do not believe in any such doctrine, nor do my associates. When a man takes out a copyright, for any of his writings or works, he impliedly agrees that, at the expiration of that copyright, such writings or works shall go to the public and become public property. I may be the first to announce that doctrine, but 1 announce it without any hesitation. If a man is entitled to an extension of his copyright, he may obtain it by the mode pointed out by law. The law provides a method of obtaining such extension. The copyright law gives an author or proprietor a monopoly of the sale of his writings for a definite period, but the grant of a monopoly implies that, after the monopoly has expired, the public shall be entitled over afterwards to the unrestricted use of the book.
There is some hesitation among my brethren and myself, as above indicated, whether, taking the bill as a whole, and considering all of its averments, a general demurrer ough t to he sustained. The defendants use the words “Webster’s Dictionary ” or “ Webster’s Unabridged Dictionary,” placed in the same relation to their publication that the complainants place it. The date of defendants’ publication on the title-page is given as of the year 1890, when, in point of fact, the book that they are publishing is a reprint or a photolithographic copy of the edition of Webster’s Dictionary of 1847. The defendants also use the device of an open hook on advertisements and circulars, relating to their publication, as before alluded to. Now, taking all of these allegations together, there may he some evidence of a fraudulent intent on defendants’ part to get the benefit of the reputation of the edition of Webster’s Dictionary which the complainants are publishing, and it may possibly be that, in consequence of the facts averred, the public are deceived, and that the complainants are damaged to some extent. We think, therefore, that this is one of those cases where, as the facts are stated in the complaint, the interests of justice would be best subserved by requiring the defendants to answer, so that there may be a full and fair investigation of the law and facts upon a final hearing.
The demurrer in this case, as we understand it, is not to special portions of the bill or particular allegations, but goes to the whole bill, and asserts that it contains no averments warranting equitable relief of any sort. We are unable, at this time, to fully assent to that view; but, at the same time, we do not wish to be understood as declaring definitely that the complainant is entitled to equitable relief. I will say this, how
It does not appear tha,t the complainants have asked for a preliminary injunction in this case, and we have less reluctance, on that account, in overruling the demurrer. The case is not one in which we would grant a preliminary injunction, if one was asked, on the present showing.