E.B. Estes & Sons v. George Frost Co.

• Decision Date: 08 February 1910
• Docket Number: 836.
• Citation: 176 F. 338
• Parties: E. B. ESTES & SONS v. GEORGE FROST CO.
• Court: U.S. Court of Appeals — First Circuit

176 F. 338

E. B. ESTES & SONS v. GEORGE FROST CO.

No. 836.

United States Court of Appeals, First Circuit.

February 8, 1910

Alexander D. Salinger, for appellee.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

ALDRICH District Judge.

In this case of alleged unfair competition it seems quite plain that the decree of the Circuit Court should be affirmed. The competition complained of has reference to the wooden buttons of the defendants which are finished in imitation of rubber. Manifestly, the purpose of finishing the buttons in rubber was to deceive an unsuspecting public into thinking they were buying the garter or hose supporter with the rubber button attachment. The precise ground upon which the Circuit Court based the decision was that the button was intended to simulate the plaintiff's patented article, and by reason of the simulation to replace it in the art; and we think that court properly characterized such an intention, carried into effect through manufacturing and placing the goods upon the market, as unfair competition and as a wrongful act, whether done before or after the expiration of the patent.

In respect to the question of deceit this case is within the principle of Church v. Proctor, 66 F. 240, 13 C.C.A 426, and G. & C. Merriam Company v. Ogilvie, 159 F 638, 88 C.C.A. 596, 16 L.R.A. (N.S.) 549, again, 170 F. 167 95 C.C.A. 423, decided in this circuit, which fully recognize the idea that members of the public are entitled to know what they are buying, and that a purpose to create imitations or similitudes calculated in themselves to deceive, or making false characterizations calculated to deceive, amount to an imposition, and that when a deceptive article is purposely brought into competition with the genuine it amounts to unfair competition.

The whole trend of modern decision is in the direction of making it clear, whether in respect to food, drink, or wearing apparel, that placing adulterations and imitations upon the markets, with the purpose of deceiving members of the public who buy, as they do oftentimes upon casual inspection, into buying something for what it is not, is a business which is not countenanced by the law, and when with such deceptive purpose things are brought into situations of competition with the genuine that the competition is unfair. Such rules of law are in a large sense based upon the idea that the public in its relation to business and business in its relation to the public, in respect to the necessary and useful articles of life and trade,...