American Fork & Hoe Co. v. Stampit Corporation

• Decision Date: 13 January 1942
• Docket Number: No. 8784.,8784.
• Parties: AMERICAN FORK & HOE CO. v. STAMPIT CORPORATION.
• Court: U.S. Court of Appeals — Sixth Circuit

125 F.2d 472 (1942)

AMERICAN FORK & HOE CO. v. STAMPIT CORPORATION.

No. 8784.

Circuit Court of Appeals, Sixth Circuit.

January 13, 1942.

Frank M. Slough and John T. Scott, both of Cleveland, Ohio (Frank M. Slough, of Cleveland, Ohio, on the brief), for appellant.

James R. McKnight, of Chicago, Ill. (James R. McKnight and Harry L. Peters, both of Chicago, Ill., and Homer H. Marshman, of Cleveland, Ohio, on the brief), for appellee.

Before ALLEN, HAMILTON, and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

This is an appeal from a portion of a decree holding Patent No. 1,937,775, issued to S. P. Neuhausen December 5, 1938, valid but not infringed. The District Court also held that the appellant, by the manufacture and sale of a particular rake subsequent to the issuance of the Neuhausen patent and subsequent to the manufacture and sale of rakes under the patent by the appellee, had engaged in unfair competition. The court found:

"The rake made and sold by defendant appellant * * * is similar to that manufactured and sold by complainant appellee, among other things in color and shape, has the same number of teeth, the teeth being of the same length and spacing and formed in the same manner, is the same width, the cross member is of the same depth, the flange of the same width and the rake is similar thereto in general combination of details and appearance as to be likely to cause confusion in the purchasing public."

A permanent injunction was issued, restraining the appellant from manufacturing, selling or offering to sell rakes such as those described in the finding.

The appeal does not attack the holding as to validity and infringement of the patent. The sole question is whether the court erred in finding the appellant guilty of unfair competition, and in issuing the decree based upon that finding.

As a preliminary question, appellant urges that the complaint did not plead a cause of action resting on unfair competition, but merely alleged aggravation of patent infringement because of the claimed copying by appellant of details of construction of appellee's rake, and that within the doctrine announced by this court in Troy Wagon Works v. Ohio Trailer Co., 6 Cir., 272 F. 850, independent relief on account of unfair competition should not be granted here.

The allegations with respect to unfair competition are as follows:

"Complainant further alleges upon information and belief that said defendant acquired or caused to be acquired genuine rakes of complainant's manufacture embodying the invention of the patent in suit, and with said genuine rake as a model before it, proceeded to construct infringing rakes embodying therein not only the patented features of complainant, but copying and simulating non essential details such as shape, size, materials, color, design, and the various combinations thereof to such an extent as to enable it to palm off on the public its rakes as and for the genuine rakes of complainant's manufacture; the appearance of defendant's rakes thus copied not only being of such near resemblance to complainant as made under the patent aforesaid as to likely deceive the public to purchase one for the other but to make it almost impossible for the ordinary purchaser or user to distinguish one from the other, thus aggravating the unlawful infringement aforesaid by such unfair, fraudulent and deceptive imitation of complainant's rake; and that such unfair and deceptive methods in competition with the complainant have been carried on by the defendant in connection with, arise out of, and are a part of defendant's infringing acts aforesaid."

These allegations do not plead an independent cause of action for unfair competition. While the holding in the Troy Wagon Works case, supra, supports appellant's contention that an injunction upon that ground cannot therefore be granted, the objection must be overruled because of the more liberal rules of procedure now applicable. The action was instituted December 20, 1938, and all proceedings are governed by the new Federal Rules of Civil Procedure, effective September 16, 1938, 28 U.S.C.A. following section 723c. Rule 15, which squarely applies, reads as follows:

"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues."

Here the issue of unfair competition was tried in open court, and no objection was made by appellant to the admission of the evidence upon which the District Court relied for its decision. The pleadings might have been amended, even after judgment, to conform to the evidence; but since failure to amend does not affect the result as to issues tried, we conclude that in absence of any motion attacking the complaint, and in absence of objection to the evidence, the complaint is to be considered as having duly charged an independent cause of action in unfair competition.

Appellant urges that the court abused its discretion in overruling its motion for rehearing. Since the notice of appeal did not include the order overruling the motion in its designation of the matter from which an appeal was taken, we have no jurisdiction to consider it. Assuming that we had such jurisdiction, the claim of error has no merit, no abuse of discretion being shown.

The appellant is on surer ground when it urges that the decree must be reversed on the merits for lack of proof of an exclusive right to the particular shape or design of rake manufactured. Since no question is made as to infringement, it is necessary for the appellee to establish its claimed exclusive right in some other manner than under the patent. No trade-mark or trade name is involved, and appellee's case therefore depends primarily upon whether this record shows that its rakes are sought by the public because they are manufactured by the appellee, and not because of their own peculiar quality, that is, whether this form of rake...