Purer & Company v. Aktiebolaget Addo
| Decision Date | 29 May 1969 |
| Docket Number | No. 22037.,22037. |
| Citation | 410 F.2d 871 |
| Parties | PURER & COMPANY and Phillip Purer, Appellants, v. AKTIEBOLAGET ADDO and Addo Machine Company, Inc., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Joseph W. Fairfield (argued), Ethelyn F. Black, Alfred W. Omansky, Beverly Hills, Cal., for appellants.
G. William Shea (argued), of McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for appellees.
Before HAMLEY and HAMLIN, Circuit Judges, and PLUMMER,* District Judge.
This action was commenced in the United States District Court for the Central District of California by appellees to obtain a preliminary injunction, a permanent injunction, damages for patent infringement, trademark, infringement and unfair competition, and for costs and attorneys' fees.
The case was tried by the court without a jury. Judgment was entered enjoining appellants from engaging in unfair competition and infringing appellees' patents and awarding appellees the sum of $36,905.17 as reasonable costs and attorneys' fees. From this judgment, a timely appeal was taken.
The United States District Court had jurisdiction under 28 U.S.C.A. § 1332 and 28 U.S.C.A. § 1338. This court has jurisdiction under 28 U.S.C.A. § 1291.
Appellants' first specification of error relates to the ruling of the trial court allowing certain exhibits into evidence over objections. Included in these are certain financial reports of Addo which were admitted into evidence as appellees' Exhibits 3, 4 and 48.
Exhibit 3 is Addo's financial report for 1965. It consists of twenty-three pages apparently printed in the Swedish language with a five-page summary in English. This exhibit was admitted to show that Addo was a world-wide organization.
Gunnar Agrell, the president of Addo, testified without objection to facts which sufficiently established the worldwide nature of Addo's business activities. During the trial, counsel for appellants conceded that Addo was a worldwide organization.
In the absence of a showing that the admission of Exhibit 3 was inconsistent with substantial justice or that appellants' substantial rights were affected, the asserted error must be disregarded.
Exhibit 4 is a summary of Addo's records prepared by the accounting department pursuant to Gunnar Agrell's instructions. Exhibit 48 is a computation of the advertising expenditures of Addo Machine Company for the years 1963 through 1967 prepared at the request of Mr. George Agrell.
Exhibits 4 and 48 were relevant to an issue of fact which remained to be litigated.1 They were properly admitted into evidence. Section 1509, California Evidence Code.2
No request was made by appellants for the production of the original records from which the summaries were made. Consequently, the trial court was not called upon to exercise its discretion as to whether or not the records should be produced for inspection. See Baker and Ford Co. v. United States, 363 F.2d 605, 607 (9th Cir. 1966).
Appellants assert that plaintiffs' Exhibits 8, 9, 10, 11, 13, 14 and 16 referred to as the Lindeteves-Jacoberg correspondence, the photographs marked plaintiffs' Exhibits 12a-12h inclusive and 44a, and Exhibits 17, 18 and 43, referred to as the Tokyo-Denki letters, were improperly admitted into evidence. They further assert that as a result thereof there is no evidence to support the court's findings of fact 23, 24, 25, 26, 27, 28, 29, 30, 31 and 50.
Gunnar Agrell, president of Addo, testified in substance and without objection to the following facts. He first heard of Toshiba Adding Machine Model BC-4001 in 1960 or 1961. In 1960, Addo received a brochure of Model BC-4001 from Lindeteves-Jacoberg.
After receiving a letter from Lindeteves-Jacoberg dated December 12, 1962, he went to Stockholm to the Swedish Export Association and asked them to get the information about Japanese firms copying Swedish products. This information was later supplied to him and Addo then decided to go through diplomatic channels through the Swedish Embassy in Tokyo to the Japanese authorities. Addo's decision was made known to Lindeteves-Jacoberg by a letter dated January 11, 1963. A reply was received from Lindeteves-Jacoberg by letter dated May 15, 1963. Addo then decided to buy a Model BC-4001 adding machine and did buy one through Lindeteves-Jacoberg in Japan. On June 28, 1963, Addo received a letter dated June 26, 1963, which had attached or enclosed a letter dated June 13, 1963 from Lindeteves-Jacoberg's Tokyo office to the charges d'affaires of the Embassy of the Kingdom of Sweden at Tokyo.
Addo eventually received from Japan the Model BC-4001 adding machine which had been purchased by Lindeteves-Jacoberg. Mr. Agrell saw the machine when it arrived in Sweden. He inspected it to see whether there was any model number. It was Model 4001.
The machine was taken to Addo's laboratory and photographed on orders from Mr. Agrell. At the same time, photographs were made of an Addo-X 341E. He saw the two machines side by side and inspected the photographs after they were taken. At the trial, Mr. Agrell was able to identify from the photographs which machine was the Toshiba Model BC-4001 and which was the Addo-X 341E although it was difficult to do so because the machines were so similar.
The photographs were then sent to Lindeteves-Jacoberg. Thereafter, Addo received a report from Lindeteves-Jacoberg as to what was done with the pictures. In the report, certain recommendations were made as to what further action Addo should take. By a letter dated April 15, 1964, Lindeteves-Jacoberg forwarded Addo a copy of a report it had received from the Royal Swedish Embassy at Tokyo.
After receiving this document, Addo wrote Tokyo Denki on April 28, 1964 on the subject of Model BC-4001. Mr. Agrell saw this letter before it was sent. No answer was received so in July of 1964 another letter was sent to Tokyo Denki requesting a reply. Mr. Agrell also saw this letter before it was sent.
By a letter dated November 25, 1965, Tokyo Electric Company acknowledged receipt of Addo's letter of April 1964. It is evident from this letter that it is a reply to Addo's letter to Tokyo Denki dated April 8, 1964. The letter refers to Tokyo Electric Company's adding machines Model BC-4001 and BC-4011. It recites that the sale of BC-4001 had been discontinued in May of 1965 and Model BC-4011 had been substituted in its place in April of 1965. A photograph of the substitute machine, Model BC-4011, was enclosed.
The record establishes that Tokyo Electric Co., a subsidiary of Toshiba, was the manufacturer for appellants, and that Purer & Company was sales agent for Tokyo Electric Company.
Appellants having failed to raise objection to Mr. Gunnar Agrell's testimony at the trial, the objection is deemed waived. Washington State Bowling Prop. Ass'n v. Pacific Lanes, Inc., 356 F.2d 371, 381 (9th Cir. 1966).
The presumption on appeal is that the trial judge disregarded incompetent evidence and relied upon competent evidence. Pursche v. Atlas Scraper & Engineering Co., 300 F.2d 467, 488 (9th Cir. 1961); cert. den. 371 U.S. 911, 83 S.Ct. 251, 9 L.Ed.2d 170; rehearing denied, 371 U.S. 959, 83 S.Ct. 499, 9 L.Ed.2d 507.
The letters from Addo to Tokyo Denki were authenticated by the testimony of Gunnar Agrell, and the letter from Tokyo Electric Company was self-authenticating as a reply. See California Evidence Code, Sections 1420 and 1421; Conner v. Zanuzoski, 36 Wash.2d 458, 218 P.2d 879, 883.
Mr. Agrell's undisputed testimony and the exhibits properly admitted into evidence provide substantial evidence in support of the court's findings 23, 24, 25, 26, 27, 28, 29, 30 and 50.
The court's finding number 31 is a misstatement, in that the record clearly reflects that Tokyo Electric Co., by its letter of November 24, 1965, did reply to Addo's letter of April 28, 1964. However, whether Addo wrote Toshiba and did or did not receive a reply is immaterial. This fact is not recited in the pretrial conference order as an issue of fact remaining to be litigated and it is not an issue necessary to a determination of this case. In the absence of a showing of prejudice by appellants, this misstatement by the trial court must be disregarded.
Appellants object to the admission of the Dun & Bradstreet report, Exhibit 39, on the ground that it is hearsay and not admissible into evidence.
Gunnar Agrell testified that he first learned that Purer & Company had originally been incorporated as a California corporation under the name of Tokyo Electric Company International when he got the Dun & Bradstreet report sometime in July of 1965.
The pretrial conference order entered December 12, 1966 recites as an admitted fact that defendant Purer & Company is a California corporation organized under the name Tokyo Electric Company International in June 1964, and changed its name to Purer & Company by an amendment of its articles of incorporation filed December 8, 1964.
There is nothing contained in the court's finding 56 that was not testified to by Mr. Agrell and admitted by appellants in the pretrial order. It is presumed that the court's finding was based on the competent evidence in the case.
If the court erred in admitting this document, we are convinced from our review of the record that appellants were not prejudiced thereby and the error, if any, was harmless.
Plaintiffs' Exhibits 29, 30 and 32 consisted of inter-office correspondence between Gunnar Agrell and his brother George. They were admitted in evidence for the purpose of showing the state of mind of Gunnar Agrell, the president of Addo, and not for the truth of their contents.
Plaintiffs' Exhibits 53, 54, 55, 56 and 57 are letters reflecting the reaction of Addo machine dealers to literature received from appellants regarding their Tokyo Electric adding machine. These exhibits were not...
To continue reading
Request your trial
-
McLinn, Matter of
...is bound by the trial court's findings unless the appellant demonstrates that a finding is clearly erroneous. See Purer & Co. v. Aktiebolaget Addo, 410 F.2d 871, 878 (9th Cir.), cert. denied, 396 U.S. 834, 90 S.Ct. 90, 24 L.Ed.2d 84 (1969). The rule recognizes that the district court is in ......
-
Carter-Wallace, Inc. v. Davis-Edwards Pharmacal Corp.
...This has been construed in practice to mean that he must prove invalidity by "clear and convincing evidence." Purer & Co. v. Aktiebolagat Addo, 410 F.2d 871 (9th Cir. 1969); Eimco Corp. v. Petersen Filters & Engineering Co., 406 F.2d 431 (10th Cir. 1968); Copease Mfg. Co. v. American Photoc......
-
United States v. Wolfson, Crim. A. No. 1909.
...& Orendorff Co., 61 F. 804, 806 (C.A. 7, 1894); Winel v. United States, 365 F.2d 646, 648 (C.A. 8, 1966); Purer & Co. v. Aktiebolaget Addo, 410 F.2d 871, 876 (C.A. 9, 1969), cert. den. 396 U.S. 834, 90 S.Ct. 90, 24 L.Ed.2d 84 (1969). However, a gloss has been placed upon this by the case of......
-
Carter-Wallace, Inc. v. Riverton Laboratories, Inc.
...of, this action and that venue is properly laid in this district. 28 U.S.C. §§ 1338(a), 1400(b) (1964 ed.); Purer & Company v. Aktiebolaget Addo, 410 F.2d 871 (9th Cir. 1969); Pre-Trial Order, para. 3A Prior to the trial of this action by the court, sitting without a jury, the matter of pla......
-
Authentication
...room; accordingly, the exhibit was properly authenticated and admitted as evidence under Rule 901(a). Purer & Co. v. Aktiebolaget Addo , 410 F.2d 871 (9th Cir. 1969). Letters which are received in reply to another letter and which refer to that fact are self-authenticating . Elements The el......
-
Authentication
...room; accordingly, the exhibit was properly authenticated and admitted as evidence under Rule 901(a). Purer & Co. v. Aktiebolaget Addo , 410 F.2d 871 (9th Cir. 1969). Letters which are received in reply to another letter and which refer to that fact are self-authenticating . §520 Writings: ......
-
Authentication
...room; accordingly, the exhibit was properly authenticated and admitted as evidence under Rule 901(a). Purer & Co. v. Aktiebolaget Addo , 410 F.2d 871 (9th Cir. 1969). Letters which are received in reply to another letter and which refer to that fact are self-authenticating . §520 Writings: ......
-
Authentication
...room; accordingly, the exhibit was properly authenticated and admitted as evidence under Rule 901(a). Purer & Co. v. Aktiebolaget Addo , 410 F.2d 871 (9th Cir. 1969). Letters which are received in reply to another letter and which refer to that fact are self-authenticating . Elements The el......