390 F.2d 113 (1st Cir. 1968), 7021, Automatic Radio Mfg. Co. Inc. v. Ford Motor Co.

Docket Nº:7021.
Citation:390 F.2d 113
Party Name:AUTOMATIC RADIO MFG. CO., Inc., et al., Plaintiffs, Appellants, v. FORD MOTOR COMPANY, Defendant, Appellee.
Case Date:March 05, 1968
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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390 F.2d 113 (1st Cir. 1968)

AUTOMATIC RADIO MFG. CO., Inc., et al., Plaintiffs, Appellants,

v.

FORD MOTOR COMPANY, Defendant, Appellee.

No. 7021.

United States Court of Appeals, First Circuit.

March 5, 1968

Heard Jan. 3, 1968.

Page 114

Worth Rowley, Washington, D.C., with whom Roger P. Stokey, Walker B. Comegys, Jr., Goodwin, Procter & Hoar and Englander, Englander & Englander, Boston, Mass., were on brief, for appellants.

Claude R. Branch, Boston, Mass., with whom Conrad W. Oberdorfer, Thayer Fremont-Smith, Boston, Mass., Richard B. Darragh, Dearborn, Mich., and Harvey S. Kronfeld, Philadelphia, Pa., were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

This is an appeal from a denial of a preliminary injunction sought by a manufacturer of automobile radios, Automatic Radio Mfg. Co., Inc. (Automatic), 1 against Ford Motor Company (Ford), to restore its competitive position in the automobile radio market pending the outcome of a private antitrust suit seeking treble damages and injunctive relief under sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26, for alleged violations of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, and section 3 of the Clayton Act, 15 U.S.C. § 14.

Automatic is a substantial manufacturer of custom car radios adapted to fit into the dashboards of particular models and makes of automobiles. Its radios are designed for use in most of the models of the major United States automobile manufacturers. Its immediate customers are distributors who resell the radios to new car dealers. In the instant case, its ultimate customers are Ford car dealers. For years its radios and installation kits have been sold to many of these dealers, particularly in the eastern part of the United States, for approximately $10 less than the cost of a Ford radio installed at the factory.

Until 1964, each Ford model had the same basic instrument panel whether the car was equipped with a radio or not. If an automobile was ordered without a factory installed radio, the opening for the radio was covered by a 'knockout plate'. The dealer could easily remove the plate and, using the accessories contained in kits, install either a Ford radio or one manufactured by appellant or other producers. In the fall of 1964 Ford changed its dashboard styling in two of its models. In cars equipped with factory installed radios a 27 inch wide plastic dashboard cover, with openings for various dashboard gauges and radio knobs, buttons and dial, was used. In cars ordered without radios, the same plastic dashboard cover was used except that it was partly imperforate; it had no openings masked with a 'knockout plate' where a radio would otherwise be located. If a dealer wished to install a Ford radio, the perforated cover, with holes for a radio, would be furnished with the installation kit without extra charge. If a dealer wished to buy a perforated cover separate from a kit, the

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price ranged from $5 to $7.67. 2 With the introduction of the 1967 Mercury and Deluxe Comet, Ford extended its styling changes and used a different kind of imperforate cover, apparently more difficult to duplicate.

While the inclusion of a perforated cover free of extra charge in the Ford installation kit reduced or in some cases eliminated the price advantage previously enjoyed by Automatic, appellant complains that it is further prejudiced by the time and expense necessary to tool up for and produce its own replicas of Ford's perforated covers. This delay allegedly causes it to miss out on the lucrative first sales months of...

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