Celebrity, Inc. v. Trina, Inc., 5445.
| Decision Date | 30 March 1959 |
| Docket Number | No. 5445.,5445. |
| Parties | CELEBRITY, INC., Plaintiff, Appellant, v. TRINA, INC., Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Jordan B. Bierman, New York City, with whom Bierman & Bierman, New York City, was on brief, for appellant.
Max Schwartz, Providence, R. I., with whom Arthur H. Feiner, Providence, R. I., was on brief, for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
This is an appeal by the plaintiff under 28 U.S.C. § 1292(1) from an order of the United States District Court for the District of Rhode Island denying the plaintiff's motion for a preliminary injunction.
In its complaint the plaintiff alleged that it was in the business of selling folding travel mirrors, that the defendant who is engaged in selling similar mirrors had maliciously and in bad faith sent to the plaintiff's customers telegrams "threatening said customers with suits for infringements of unissued patents and also threatening suits against the `copier' of said Defendant's mirror." The defendant admitted sending a telegram which stated in part: The defendant denied that the telegram had been sent in bad faith and further alleged that "patents (were) pending" on its travel mirror. The defendant also asserted a counterclaim against the plaintiff on the grounds that the plaintiff by copying its mirror and offering it at lower prices had unfairly competed with it.
At the hearing held on the plaintiff's prayer for a preliminary injunction, the only evidence offered by the plaintiff was two affidavits, one of which indicated that no patents existed on the travel mirror in question and the second of which affidavits, by the president of the plaintiff, asserted among other things that its "good name and business reputation have been and are being severely and irreparably damaged by the distribution of the aforementioned telegram and letters" and "unless Defendant * * * is required to issue a retraction of the false charges of infringement contained in the letters and telegrams above referred to, irreparable harm and damage to Plaintiff's business reputation will continue." The defendant's vice president also testified and it was conceded by plaintiff that the defendant had originated the travel mirror and that it had been copied by the plaintiff.
The district judge stated that he would grant a preliminary injunction only if there were compelling equities in the plaintiff's favor and that such compelling equities did not exist in this case.
The plaintiff in this appeal urges us to reverse the district court's denial of its motion for a preliminary injunction. It also asks that this court order defendant to issue telegrams of retraction of its claims to the same customers to whom the defendant's notices had been sent. Although it is not clear from the record before us, we assume that the request relating to telegrams of retraction, although apparently not embodied in the motion for preliminary injunction, was presented to the district judge and was denied by him. In any event, it is an integral element of the preliminary injunctive relief desired by the plaintiff. Thus viewed, it appears that the temporary relief sought is both prohibitory and mandatory in form. Insofar as the mandatory aspect of the requested...
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