TUBULAR HEATING & v. CO. v. MT. VERNON FURNACE & MFG. CO.
| Decision Date | 04 December 1924 |
| Docket Number | No. 2185.,2185. |
| Parties | TUBULAR HEATING & VENTILATING CO. v. MT. VERNON FURNACE & MFG. CO. et al. |
| Court | U.S. District Court — Eastern District of Illinois |
COPYRIGHT MATERIAL OMITTED
Glennon, Cary, Walker & Murray, of Chicago, Ill., and Arthur E. Paige, of Philadelphia, Pa., for plaintiff.
Luke E. Hart, of St. Louis, Mo. (Hart & Hart, of St. Louis, Mo., on the brief), for defendants.
LINDLEY, District Judge (after stating the facts as above).
An injunction is not the appropriate remedy for past infringement of a trade-mark, and is to be used only for the prevention of further injury, when such injury is actually threatened. If a defendant has in good faith ceased infringement before suit brought, and the plaintiff has had full opportunity to learn of said action, and if the court is convinced that further infringement is not intended, or is not reasonably to be apprehended, it should refuse the injunction, and dismiss the bill. Kennicott Water Softener Co. v. Bain, 185 F. 520, 107 C. C. A. 626 (C. C. A. 7th Circuit).
The only question in the present case is whether, assuming that the trade-mark of the plaintiff is valid, that the defendants have infringed and that the infringement had ceased before the bill was filed, which is clearly proved, the plaintiff, when the bill was filed, did have any reasonable ground to believe that the infringement would be repeated. The defendant corporation left nothing undone that a reasonably prudent person might have done to show that it had actually abandoned the use of the word "Master," and intended never to use the same again. It advised its traveling men, its dealers, and the public generally, that it had abandoned the word "Master," and that it had substituted therefor the word "Vernois," and it placed in the trade journals full-page advertisements, stating the same facts, and giving the reason for such action. It not only abandoned the word "Master," but it immediately began to endeavor to create good will and value in the trade-name "Vernois." True it is that the then attorney for the defense did not at once dismiss the appeal, but the correspondence between the attorney and the defendant shows, beyond peradventure, that he had been told to dismiss the appeal, and the defendant's officers believed that he had done so, and had no knowledge to the contrary until after the decision of the Examiner had been affirmed by the Assistant Commissioner of Patents.
Had the plaintiff believed that the appeal was being...
To continue reading
Request your trial
-
Steccone v. Morse-Starrett Products Co.
...were not made by defendant but were made by dealers over whom this court has no jurisdiction. "See Tubular Heating & Ventilating Co. v. Mt. Vernon Furnace & Mfg. Co., D.C., 2 F.2d 982, 983. "I further find that defendant has not complied with the order of this Court requiring him to indicat......