270 F. 576 | 7th Cir. | 1921
There is but one question — a a question of fact — requiring our consideration: Has appellant so conducted its business as to justify the court, in refusing it relief against appellee’s misconduct? •
As to the appellee’s position, no possible view of the evidence can support any of its various grounds for relief. Its business practices are so unworthy as to leave no alternative for the court. To it certainly the doors of a court of equity should be closed. For, not satisfied with copying appellant’s swing and putting it. on the market as its own, it simulated appellant’s name and finally resorted to gross misrepresentations to the trade that find no semblance of justification in its explanations.
But appellee’s gross misconduct will avail the appellant nothing if in the operation of its business, it, too, resorted to misrepresentations concerning a patent not justified in fact. Dishonest business practices by an unscrupulous competitor cannot justify a resort to similar methods by one honestly conducting a legitimate business that has been worthily
And this is unfortunately what occurred. Appellant resorted, in a milder way, to the unworthy practices of its rival. It tried to bulldoze the trade by misrepresentations concerning patent protection which did not exist. It circularized the trade asserting control of the baby swing that it sold when in fact no patent had been issued. In other ways which we need not recite it forfeited its right to the court’s protection against the unfair and unworthy methods of its rival.
“He who comes into equity must come with clean hands.” This maxim applies to the business man who has a legitimate business as well as to the business parasite who first steals another’s name, then his business, and finally attempts to deceive the retail trade by false and fraudulent representations respecting the existence and the protection of a patent.
Appellant’s misrepresentations heretofore referred to dealt with an article (a baby swing) which was also manufactured by a competitor and to which appellant applied its trade-mark. The defense of unclean hands, therefore, extends not only to the unfair methods of competition, but also to the alleged infringement of the trade-mark. Clinton E. Worden & Co. v. California Fig Syrup Co., 187 U. S. 516, 528, 23 Sup. Ct. 161, 47 L. Ed. 282; Manhattan Medicine Co. v. Wood, 108 U. S. 218, 2 Sup. Ct. 436, 27 L. Ed. 706; Pidding v. Howe, 8 Simons, 477; Feather Cloth Co. v. American Feather Cloth Company, 4 De G., J. & S. 137, 142, affirmed 11 H. L. Cases, 523; Hogg v. Maxwell, L. R. 2 Ch. 316; 26 R. C. F. 902-906.
The decree is affirmed.
