191 F. 979 | 7th Cir. | 1911
By a preliminary injunctional order appellants are restrained from making and selling suction cleaners of a certain type. No patent for mechanism or process or product or design is involved. Nor is infringement of trade-marks or trade-names alleged. Unfair competition in trade is the sole basis of the case.
Appellee, prior to the bringing of this suit, was marketing a suction cleaner that bore a plate carrying the trade-name “Richmond” and the name and address of appellee as maker. At the same time appellants were putting out a 'cleaner of identical mechanical principles and arrangement of parts, of identical form, and of identical color. To appellants’ cleaner- was affixed a name-plate much larger than appellee’s, as large as could well be attached, displaying conspicuously a red cross and the words in large capitals, “The Pope Electric Cleaner, Made by-the Pope Co., Chicago, U. S. A.”
Appellee was senior in the field; and the affidavits may warrant a conclusion that appellants deliberately copied the mechanism, form, and color of appellee’s cleaner with a view of sharing in the trade. built up by appellee’s pushing of the “Richmond.” As appellants’ trade-mark, trade-name, and name and address of maker, were unmistakably distinguished from appellee’s, infringement must rest upon appellee’s exclusive right to the mechanics and the form and the color of its cleaner or one or more of them.
Mechanically the cleaner is this: At the bottom is a mouth-piece, to rest upon the carpet or other material to be cleaned. Next above the mouth-piece is a rotary fan, inclosed in the necessary casing. Just above the fan, and on the same perpendicular axis, is an electric motor in a ventilated casing. To the top of the motor casing a' detachable handle is affixed at an angle of about 45 degrees from the per
In form the mouth-piece is common and old, antedating appellee. To be efficient, the inner surface of the fan casing has to be cylindrical. If the casing is to be cut from metal of even thickness, as it comes in sheets, the outer surface, too, cannot be other than cylindrical. As the motor is of less diameter than the fan (from proper mechanical relations of power), the motor casing naturally (from motives of economy in materials and labor) is a smaller cylinder. The ventilating opening in the motor case, the dust opening in the fan case, the handle, the bag, the electric connections, are all either in their inevitable or best possible mechanical locations. In short, appellee uses the most efficient and most economically manufactured form into which the mechanical combination can probably be embodied. Not a line, nor a curve, not a mark, not a bit of superfluous material, for embellishment or distinction. Nothing but the name-plate. If appellants should be required to give a square or hexagonal or other than cylindrical form to the outer surface of the casings, considerations of cost of the superfluous material and labor might prevent them from competing with appellee in the manufacture and sale of a mechanism that was equally open to both. In the Singer Case, 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118, the Supreme Court held that at the expiration of a machine patent the utilitarian form in which the patentee had embodied his mechanical combination also became public property. No difference in principle is perceived between a machine that after a period of 17 years becomes free for common use and one that has been such all the time.
Aluminum is the metal used. Its advantages in strength, in durability, in lightness of weight, and in freedom from tarnish have led to its adoption for various utensils and tools. Appellee can have no monopoly of its use for this tool. In both cleaners the metal is unpainted. If appellants should be compelled to paint their cleaner a distinctive color, they would increase their manufacturing cost and would also lose one of the main advantages of a metal that was as open to them as to appellee and that was as obviously the best as a material as the cylinder,was as a form.
Development in a useful art is ordinarily toward effectiveness of operation and simplicity of form. Carriages, bicycles, automobiles, and many other things from diversity have approached uniformity through the utilitarian impulse. If one manufacturer should make
Order reversed, and cause remanded for further proceedings not inconsistent with this opinion.