Set-O-Type Co. v. American Multigraph Co.

Decision Date05 February 1932
Docket NumberNo. 5993.,5993.
Citation55 F.2d 800
PartiesSET-O-TYPE CO. v. AMERICAN MULTIGRAPH CO.
CourtU.S. Court of Appeals — Sixth Circuit

G. H. Wells, of Dayton, Ohio, and L. C. Spieth, of Cleveland, Ohio (E. H. & W. B. Turner, of Dayton, Ohio, and Cannon, Spieth, Taggart, Spring & Annat, of Cleveland, Ohio, on the brief), for appellant.

C. K. Arter and Ashley Van Duzer, both of Cleveland, Ohio (McKeehan, Merrick, Arter & Stewart and George William Cottrell, all of Cleveland, Ohio, on the Brief), for appellee.

Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.

HICKS, Circuit Judge.

Appeal, under section 129 of the Judicial Code, 28 U. S. C. § 227 (28 USCA § 227), from an order denying a preliminary injunction. The amended bill sought to enjoin appellee from engaging in certain alleged unfair trade practices. The gravamen of the bill is that appellant manufactured and sold under the name of "Set-O-Type," a device for setting cold movable type in printing segments at typing speed; that it also manufactured type and other equipment for use in connection with the machine; that appellee, prior to the advent of Set-O-Type had manufactured and sold printing devices known as "Multigraph," and type for use therein; that upon the introduction of Set-O-Type appellee entered upon a systematic plan to injure and destroy appellant's business, and that to forward its unlawful scheme it, through its representatives, committed many overt acts and made many unfair representations, both orally and in writing, concerning appellant's business. The bill alleged that appellee's agents represented to the trade that appellant was underfinanced, that it was selling type at a ruinously low price, and that it could not continue in business; that appellee falsely represented that it would shortly place upon the market a cheaper and more efficient typesetting machine than Set-O-Type; that it owned patents upon a machine called "Compotype"; that without any other purpose than to block Set-O-Type sales it brought suit against appellant in which it claimed that Set-O-Type infringed its Compotype patents; that it advised prospective purchasers of Set-O-Type of the pendency of the suit; that afterward, in furtherance of its fraudulent purpose, it dismissed its patent suit and in bad faith entered into a contract with appellant whereby it became the exclusive selling agent for Set-O-Type machines and products; that in accordance with the contract it ordered from appellant five hundred Set-O-Type machines and two hundred thousand boxes of type to be delivered, during the year ending June, 1930, according to a certain schedule; that, although appellant sought to comply with this contract, appellee had no intention of complying, but that it wrongfully and intentionally succeeded by means thereof in causing appellant to tie up a large portion of its capital in its products, and in destroying appellant's sales organization; that it made no good-faith effort to sell Set-O-Type machines; that it accepted only three hundred and twenty of the machines and refused to accept the remainder; that after its breach of the contract it fraudulently continued by pamphlets and directory listings to represent that it was the sales agent for Set-O-Type products; that it leased a number of the Set-O-Type machines remaining in its hands to prospective Set-O-Type purchasers for the purpose of destroying Set-O-Type sales; that for the same purpose it furnished erroneous instructions for the operation of Set-O-Type machines and defective type for use therein; that it threatened to continue its unlawful practices until the bill was filed, and that its acts and conduct caused irreparable loss to appellant without adequate remedy at law.

The answer put in issue all the material allegations of the bill. The motion for a preliminary injunction was heard upon affidavits introduced by appellant and counter and rebuttal affidavits.

In denying the preliminary injunction the court said: "I do not find in the bill of complaint and affidavits in support of the motion sufficient basis for the injunction relief sought. American Malting Co. v. Keitel (C. C. A.) 209 F. 351, 355." Appellant interprets this expression as indicating the court's mistaken viewpoint that an injunction may not issue merely to restrain trade libel and slander, and that equity was therefore without jurisdiction. Such deduction is not altogether clear because it is quite probable that if the court entertained such view it would have transferred the cause to the law side. Equity Rule No. 22; Rice & Adams Corp. v. Lathrop, 278 U. S. 509, 514, 49 S. Ct. 220, 73 L. Ed. 480; see Meccano, Ltd. v. John Wanamaker, 253 U. S. 136, 141, 40 S. Ct. 463, 64 L. Ed. 822. But for the present, assuming such conclusion, we think the bill entitled to a broader interpretation. The relief sought was the protection of appellant's business from injury caused, as alleged, by the carrying out of a premeditated scheme of unfair competition....

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7 cases
  • Cincinnati Bengals, Inc. v. Bergey
    • United States
    • U.S. District Court — Southern District of Ohio
    • May 14, 1974
    ...injury and of convincing the Court that the balance of injury favored the granting of the injunction, Set-O-Type Co. v. American Multigraph Co., 55 F.2d 800 (6th Cir., 1932). Probability of success on the trial must also be shown, H. E. Fletcher Co. v. Rock of Ages Corp., 326 F.2d 13 (2d Ci......
  • Caron Corporation v. Maison Jeurelle-Seventeen
    • United States
    • U.S. District Court — Southern District of New York
    • September 7, 1938
    ...of the proceeding, will not find that there has been an infringement by the defendant of plaintiff's trademark. Set-O-Type Co. v. American Multigraph Co., 6 Cir., 55 F.2d 800; National Commodities Co. v. Viret, 2 Cir., 296 F. 664; Lektro-Shave Corporation v. General Shaver Corp., 2 Cir., 92......
  • Upjohn Company v. Finch
    • United States
    • U.S. District Court — Western District of Michigan
    • July 10, 1969
    ...injury and of convincing the Court that the balance of injury favored the granting of the injunction, Set-O-Type Co. v. American Multigraph Co., 55 F.2d 800 (6th Cir. 1932). Probability of success on the trial must also be shown, H. E. Fletcher Co. v. Rock of Ages Corp., 326 F.2d 13 (2d Cir......
  • Zebelman v. Chrysler Corporation, 68 C 398(2).
    • United States
    • U.S. District Court — Eastern District of Missouri
    • October 14, 1968
    ...hearing. The facts offered to support a temporary injunction should be fully and definitely disclosed. See Set-O-Type Co. v. American Multigraph Co., 55 F.2d 800 (6th Cir. 1932). It would be an abuse of judicial discretion to grant a temporary injunction based upon only the allegations of C......
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