Crescent Tool Co. v. Kilborn & Bishop Co.
| Decision Date | 13 November 1917 |
| Docket Number | 26. |
| Citation | 247 F. 299 |
| Parties | CRESCENT TOOL CO. v. KILBORN & BISHOP CO. |
| Court | U.S. Court of Appeals — Second Circuit |
This is an appeal from a temporary injunction granted by the District Court for Connecticut on the 25th day of January, 1917 restraining the defendant pendente lite from manufacturing and selling its adjustable wrenches. The facts as set forth in the affidavits are substantially as follows:
The plaintiff is a New York corporation, organized in 1907 for the purpose of manufacturing tools, and has since that time been engaged in the manufacture among other things of pliers and wrenches. In December, 1908, it put upon the market an adjustable wrench, and has widely advertised the same from that time to the present. The wrench, on account of its appearance and new and original shape, pleased the public and its sales grew rapidly from year to year, so that it became known to the jobbing trade and retailers and consumers as the 'Crescent' type of wrench. Its main structural features were all old in detail. It was adjustable to bolts and nuts of different sizes somewhat after the manner of a monkey wrench, but it was nevertheless quite different mechanically from a monkey wrench. It had a straight handle of web and rib construction, spreading slightly from the neck to the end, with a hole in the end of the web by which it could be hung up. No adjustable wrench of precisely the same character had ever appeared upon the market. There had however, been adjustable wrenches, some with straight handles, some with web and rib curved handles, and there had been other tools with straight web and rib handles, somewhat broader at the end than at the neck. Plaintiff's name is plainly printed upon the web of the handle in raised letters.
The defendant is a Connecticut corporation, organized in 1896 and engaged in the manufacture of wrenches and other hardware for some 18 years past. Some time in 1910 it began the manufacture of an adjustable wrench, which it called its 'K & B 22 1/2 degrees adjustable. ' This is substantially a direct fac simile of the plaintiff's wrench, with the exception that the defendant's name appears upon the web in place of the plaintiff's as follows: 'The Kilborn & Bishop Company, New Haven, Connecticut, U.S.A.,' in distinct raised letters. The defendant made no effort to imitate the boxes or packages of the plaintiff's wrench, nor did it use the word 'Crescent' in any way in its sale; but it did begin selling the goods in general competition with the plaintiff's wrenches until the order issued herein.
There is evidence in the correspondence between the plaintiff and its customers that confusion has arisen between the plaintiff's wrenches and the defendant's, customers having supposed that the Kilborn & Bishop wrench was a Crescent, but there was no evidence that the defendant in any way facilitated this confusion.
Harrie E. Hart, for appellant.
J. William Ellis, of Chicago, Ill., for appellee.
Before WARD and ROGERS, Circuit Judges, and LEARNED HAND, District judge.
The cases of so-called 'nonfunctional' unfair competition, starting with the 'coffee mill case,' Enterprise Mfg. Co. v. Landers, Frary & Clark, 131 F. 240, 65 C.C.A. 587,...
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Haeger Potteries v. Gilner Potteries
...v. Doris Silk Corp., 2 Cir., 35 F.2d 279, certiorari denied, 1929, 281 U.S. 728, 50 S.Ct. 245, 74 L.Ed. 1145; Crescent Tool Co. v. Kilborn & Bishop Co., 2 Cir., 1917, 247 F. 299. But where "likelihood of deception" and hence a secondary meaning is shown, the prior user is entitled to injunc......
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