236 F.2d 144 (2nd Cir. 1956), 335, Joshua Meier Co. v. Albany Novelty Mfg. Co.

Docket Nº:335, 23866.
Citation:236 F.2d 144, 111 U.S.P.Q. 197
Party Name:JOSHUA MEIER COMPANY, Inc., Plaintiff-Appellant, v. ALBANY NOVELTY MANUFACTURING CO., Defendant-Appellee.
Case Date:July 30, 1956
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 144

236 F.2d 144 (2nd Cir. 1956)

111 U.S.P.Q. 197

JOSHUA MEIER COMPANY, Inc., Plaintiff-Appellant,

v.

ALBANY NOVELTY MANUFACTURING CO., Defendant-Appellee.

Nos. 335, 23866.

United States Court of Appeals, Second Circuit.

July 30, 1956

Argued April 10, 1956.

Page 145

Morton Amster, New York City (Simon Queen, Boston, Mass., of counsel on the brief), for defendant-appellee.

Before CLARK, Chief Judge, and HINCKS and LUMBARD, Circuit Judges.

LUMBARD, Circuit Judge.

The plaintiff and defendant in this action are both engaged in the manufacture and sale of display and photograph albums, transparent sheet holders, card and passport cases, book covers and similar items. The plaintiff is a New York corporation; the defendant is a Massachusetts corporation doing business in New York. The plaintiff complains of the defendant's copying of portions of its copyrighted trade catalog and of its use of various registered and unregistered trademarks. Judge Noonan denied plaintiff's motion for a preliminary injunction and from this order plaintiff appeals.

The plaintiff's complaint set out four causes of action. The first alleged infringement of the plaintiff's copyrighted trade catalog. The plaintiff and defendant sell many items which are substantially the same. In 1951, 1952, and 1953 the plaintiff published catalogs numbered 52, 53, and 54 respectively. Each of these catalogs was registered with the Register of Copyrights and contained the statutory copyright notice. The plaintiff's catalogs consisted primarily of descriptions of the various items it offered for sale together with photographs of some of the items, price lists, catalog numbers, and other information of interest to prospective customers. In December 1954 the defendant published its own 'Anco Catalog of Visual Displays' similarly describing the items it offered for sale. The plaintiff alleges that much of the material contained in the defendant's catalog, particularly its descriptions of display albums, card cases and other articles of merchandise, was copied from the plaintiff's catalogs.

For its second cause of action the plaintiff alleged the infringement of two registered trademarks. Since 1937 the plaintiff has used as a trademark 'V.P.D.' the initial letters of the words 'Visible Protects Displays.' These letters are prominently featured in plaintiff's catalog, in some instances as part of the words they represent, and in other instances merely in the form of 'V.P.D.'

Page 146

The trademark 'V.P.D.' was registered in 1938. In December 1954, the defendant commenced to use the letters 'A.V.D.' representing 'Anco Visual Displays.' This mark is prominently featured in the defendant's catalog, but it always appears with the letters arranged vertically and the word 'Anco' spelled out horizontally after the initial letter 'A.' The plaintiff alleges that the defendant's use of 'A.V.D.' infringes the plaintiff's mark 'V.P.D.'

The plaintiff has also used since 1950 the name 'Spel-Binder' to identify its display albums. 'Spel-Binder' was registered as a trademark in 1952. Since December 1954, the defendant has used the name 'Speed-Binder' to designate similar articles of merchandise. Plaintiff alleges that 'Speed-Binder' infringes 'Spel-Binder.'

For its third cause of action the plaintiff alleges...

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