106 F. 168 | 7th Cir. | 1901
During the term at which a decree is rendered it is, of course, competent for a party to ask a modification; but a construction of the decree in respect to matters outside the issues it is irregular to ask or to grant. The party, however, who invokes such action may not question the result merely because of the irreg-
The cross appellants insist that the court erred in holding the word “Carrom” to be a descriptive word which could not be made a trademark for a game board. The word “Carrom” or “Carom” is without •doubt descriptive of a certain game at billiards, and is defined to be “the hitting of two or three balls in succession by the cue ball from finé stroke of the cue.” The word is not, however, descriptive of the
After the decree liad been rendered, (he defendants adopted for use a new advertisement and illustration of their game boards, designated in the record as “Defendants’ Exhibit Defendants’ Xew Illustration,” and “Exhibit Defendants’ Xevv Rules,” and by a petition, with copies attached, asked the court that they be permitted to use such new illustrations and advertisements. The court decreed thereon that the defendants might rightfully use (.he “Exhibit. Defendants’ Few Rules” without change, and that they might right
“A court of equity does not sit as an arbiter to determine in advance upon other and changed labels which the infringer may adopt to avoid the condemnation of the court,” and that “the court ought not to say how near the infringement may lawfully approximate the label of the complainant, but should cast the burden upon the guilty party of deciding for himself how near he may with safety drive to the edge of the precipice, and whether it be not better for him to keep as far from it as possible.”
We do not now pass upon the question whether these new advertisements and rules use the word “Carrom” in a purely descriptive sense, or whether the word is úsed as the name of the game. There inay be some ground for holding the latter in the prominent and displayed print of the word “Carrom.” It will be time enough for the court to determine the question when presented upon issues properly framed and the evidence taken thereunder.
The complainants also assert error in that the decree denied them ' compensation for past unfair competition. In this respect, also, vwe think the court was in error. The decree declares that the defendants, by their imitation of the complainants’ advertisements, had been guilty of deceiving purchasers and the public into believing that the game boards of their make were the game boards made •by the complainants. It declares an invasion of the complainants’ ■ rights, and the complainants are entitled, upon proper proof, to compensation to the extent of the invasion.
Upon the appeal of the defendants below the decree is "affirmed. ' Upon the appeal of the complainants below the decree is reversed, • and the cause remanded, with directions to the court below to enter a decree in conformity with this opinion.