Stevens v. Continental Can Co., 14693.

Citation308 F.2d 100
Decision Date28 September 1962
Docket NumberNo. 14693.,14693.
PartiesBernice STEVENS, Plaintiff-Appellee, v. CONTINENTAL CAN CO., Inc., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Rockwell T. Gust, Jr., and Harold A. Ruemenapp, Detroit, Mich. (Butzel, Eaman, Long, Gust & Kennedy, Detroit, Mich., on the brief; Rockwell T. Gust, Jr., Harold A. Ruemenapp, Detroit, Mich., of counsel), for appellant.

Frank C. Sibley, Detroit, Mich., for appellee.

Before WEICK and O'SULLIVAN, Circuit Judges, and BOYD, District Judge.

O'SULLIVAN, Circuit Judge.

This is an appeal by defendant-appellant, Continental Can Company, Inc. from a $30,000.00 judgment entered upon a jury verdict, in favor of plaintiff-appellee Bernice Stevens. Plaintiff claimed that defendant appropriated and used, in the sale of picnic type paper plates and cups, a decorative scheme originated by her and communicated in confidence to one of defendant's employees. She relied upon an implied agreement by defendant to compensate her for such alleged original idea should defendant elect to use it.

Her idea consisted of a design for paper plates and cups with a simulated wood grain background upon which were superimposed log-marks.1 Her evidence showed that this idea was communicated in confidence to an official of defendant on September 21, 1956 and that later in 1956 she delivered to defendant sketches of paper plates and cups depicting her decorative scheme. In 1958, defendant began marketing its "Chuckwagon" series of paper plates and cups. These items contained certain characters, either cattle brand marks or log marks superimposed upon a simulated wood grain background. They were sold in cartons having drawings of cowboys and other western-type figures on them and describing their contents as "Chuckwagon Bondware." Defendant marketed about one million dollars worth of its Chuckwagon series of plates and cups. To provide the jury with a measure of damages, plaintiff introduced in evidence, over defendant's objection, a contract which, in 1959, and during the pendency of the lawsuit, she obtained from American Lace Paper Co. By the terms of this contract that company agreed to pay her a royalty of 3% of its selling price on all articles sold by it incorporating her designs for place mats, doilies, napkins, etc., embodying by their decoration an historical motif of the lumbering industry. Under this contract she had been paid a total of $206.09 at the rate of $41.22 per design. The jury's award obviously resulted from its allowance of a 3% royalty upon the total sales by defendant of its Chuckwagon series. A representative of American Lace Paper Company testified that the type of contract which his company made with plaintiff was unprecedented and was not usual in the industry. He knew of no other such contract ever having been made. The only other evidence of the worth of plaintiff's design came from one of defendant's employees who said that his company had never paid more than $1500.00 for any decorative design purchased by it.

Defendant asserted, in bar of plaintiff's claim, that her idea was not novel and was already in use in the production and sale of similar merchandise; and that the use of the decorative combination of cattle brand marks on a wood grain background for its Chuckwagon series was conceived and developed by its own staff prior to and unaided by any ideas conveyed to it by plaintiff.

The District Judge submitted for the jury's determination whether plaintiff's design was novel at the time she disclosed it, whether defendant used her idea or design and benefited therefrom and whether plaintiff's idea or design was disclosed in confidence to an agent of defendant under circumstances which reasonably indicated to defendant that plaintiff would be compensated for her idea or design if the defendant used it. On the question of damages he advised the jury that the evidence presented two measures for arriving at plaintiff's damages, the flat fee of $1500.00 testified as standard by defendant's witness, and the 3% royalty fee arrangement provided in plaintiff's 1959 contract with American Lace Paper Company. He stated that "Neither of these is binding upon you as jurors. You are instructed to use them for guidance as you see fit in arriving at what, in your opinion, is a proper measure of damages." Defendant's motion for a directed verdict at the conclusion of plaintiff's proofs, its like motion at the close of proofs, and its motion for judgment non obstante veredicto and for a new trial, were denied.

Defendant here seeks reversal upon the following four grounds: First, that the undisputed evidence established that the idea of superimposing brand marks/log marks on a wood grain background was not novel, was publicly known and already employed as a decorative design on merchandise similar to that here involved; Second, that the undisputed evidence established that defendant's own staff independently conceived and developed the decorative design for its Chuckwagon series of paper plates and cups; Third, that the District Judge erred in failing to give defendant's proffered instruction on its claim of independent conception; and, Fourth, that the District Judge erred in instructing the jury as to the measure of damages it could consider. On its points One and Two, defendant asks reversal with direction to enter judgment for defendant. It asks for a new trial on grounds Three and Four. Because we believe that defendant was entitled to a directed verdict on point One, we do not decide any of the other points raised.

Under familiar rules, in considering the sufficiency of plaintiff's evidence to make a case for the jury, we view it in its most favorable light, indulging on plaintiff's behalf all inferences legitimately drawn therefrom.

Plaintiff, Mrs. Stevens, had been interested for many years in the early history of Michigan's lumber industry. She has done considerable research into the subject. Included in her gathered material were the styles of a large number of log marks used by the logging companies to identify their logs. All of such log marks, however, were matters of public record in the counties of Michigan and had been compiled into books available at public libraries. Inasmuch as log marks were impressed usually upon the ends of logs, whenever logs were photographed or otherwise portrayed, the log mark always appeared upon a wood grain background. Mrs. Stevens testified that log marks on wood graining was as old as the Revolutionary War. Sometime prior to September 21, 1956, Mrs. Stevens had talked with the Harvey Paper Co. of Sturgis, Michigan, about its manufacturing a paper place mat in accordance with a design prepared by her. This design included a sketch of a lumbering scene surrounded by a border of log marks. The evidence does not disclose whether that company ever used her design. From her contact with the Harvey Company came the suggestion that she visit Continental Can Company to see if that company might, in some way, use her material on paper cups and plates. On September 21, 1956, she came to the Chicago office of defendant and saw its acting sales office manager, one Morrison. To him she showed various materials gathered in her research of the Michigan lumber industry — photographs of old scenes, historical text material, a sheet with a collection of log marks, and other miscellaneous items. She suggested that the "lore of the lumber industry" might be exploited in the decoration of paper cups and plates. While with Morrison, she sketched some log marks on a paper cup and a plate. She later forwarded additional material to Morrison including a sketch of cups and plates with log marks on a wood grain background. Her material was returned to Mrs. Stevens in December, 1956, with advice that Continental was unable to enter into her suggested promotion of the lumber industry motif.

When plaintiff was with Morrison, she announced to him that she was giving him her information in confidence. She stated that at that time she asked Morrison if he were deciding would he "pick this" and he replied that he would if the decision were up to him, but that he would have to confer with other officials of the company. She said that she told him she expected compensation if defendant should use "it" and that Morrision replied that "he did not know if, when — if they took it or not, what the percentage would be."

Defendant's art department considered that the marks on the paper plates and cups it produced were cattle brands. Plaintiff conceded that there is no difference between a cattle brand and a log mark; that "a mark by itself, or a design does not mean anything. If it is on a cow it is a cattle brand. If it is on a sheep it is a sheep brand. If it is on a log it is a log mark." She stated that she could not say that the markings on the plates and cups on defendant's Chuckwagon series were not in fact cattle brands although she states that some such marks were similar to some log marks in her collection. The word "Chuckwagon" could apply to a lumber industry motif as well as to a western motif. Plaintiff testified that the use of brand marks as part of a western motif decorative scheme was old. She said she did not go to defendant to sell it the western motif. That motif, she said, had been thoroughly exploited, that "crackerjack boxes, popcorn boxes, cereal boxes, television ads and everything else, had had all kinds of Western cattle brands, cowboys motifs, on them for years."

It was undisputed that competitors of defendant had, prior to plaintiff's visit to it, manufactured and marketed paper plates and cups with a simulated wood grain background and that defendant had done so itself. Also, prior to such visit, some flavors of Sealtest Ice Cream were marketed in paper cartons which had a wood grain background with cattle brands superimposed thereon. Such a decorative scheme was displayed in advertising material...

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12 cases
  • Kozar v. Chesapeake and Ohio Railway Company
    • United States
    • U.S. District Court — Western District of Michigan
    • 23 d5 Outubro d5 1970
    ...Inc., 330 F.2d 706 (6th Cir. 1964); Weekes v. Michigan Chrome & Chemical Co., 352 F.2d 603 (6th Cir. 1965); Stevens v. Continental Can Co., 308 F.2d 100 (6th Cir. 1962), cert. denied 374 U.S. 810, 83 S.Ct. 1702, 10 L.Ed. 2d John Kozar had been an employee of the defendant for over thirty-fi......
  • Baut v. Pethick Construction Company
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    • U.S. District Court — Middle District of Pennsylvania
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    ...person asserting the right and not already in use. William A. Meier Glass Co. v. Anchor Hocking Glass Corp., supra; Stevens v. Continental Can Co., 6 Cir. 1962, 308 F.2d 100. That plaintiffs' design embodies elements long in use does not of itself negate originality or novelty. Rather, the ......
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    • 6 d2 Agosto d2 1991
    ...misappropriation of an idea unless the idea is novel. 3 Nimmer on Copyright § 16.01 at 16-4 (1990). See also Stevens v. Continental Can Co., Inc., 308 F.2d 100, 104 (6th Cir.1962), cert. denied, 374 U.S. 810, 83 S.Ct. 1702, 10 L.Ed.2d 1034 (1963) (in order for an idea to be a protectable pr......
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    • U.S. Court of Appeals — Sixth Circuit
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    ...The idea of fashion-coordinated designs on binder covers does not appear to meet the test of novelty required in Stevens v. Continental Can Co.,308 F.2d 100 (6th Cir. 1962). There the plaintiff's concept was to place a wood grain design on paper plates and cups. We held that even if wood gr......
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