Champion Spark Plug Co. v. Reich, 2979.

• Decision Date: 28 June 1951
• Docket Number: No. 2979.,2979.
• Citation: 98 F. Supp. 242
• Parties: CHAMPION SPARK PLUG CO. v. REICH et al.
• Court: U.S. District Court — Western District of Missouri

98 F. Supp. 242

CHAMPION SPARK PLUG CO. v. REICH et al.

No. 2979.

United States District Court W. D. Missouri, W. D.

June 28, 1951.

P. L. Edwards, Kansas City, Mo., for plaintiff.

Charles V. Garnett, Kansas City, Mo., for J. F. Reich.

Leroy J. Marts, Kansas City, Mo., for Mary Holst.

REEVES, Chief Judge.

This action was on a motion of the plaintiff to require J. F. Reich, Lois E. Reich and Mary Holst to show cause why they should not be punished for contempt of court by "selling, offering for sale and advertising for sale used spark plugs of plaintiff's original manufacture which have been repaired, reconditioned or otherwise treated to improve their appearance or usefulness without first removing therefrom plaintiff's trade-mark and type marks, by marking or stamping on the containers for said plugs the name `Champion' or an abbreviation thereof, and by making use of plaintiff's trade-mark `Champion' in advertising said plugs for sale, all in violation and contempt of the injunction entered herein on or about the 4th day of November, 1941."

Pursuant to this show cause order, a hearing was had and extensive testimony taken by affidavit and otherwise, touching the conduct of the several parties cited in relation to the injunction heretofore issued in the above cause.

The evidence disclosed that after a former decree of this court, the defendant J. F. Reich, was adjudged a bankrupt and thereby avoided the payment of a judgment obtained against him by the plaintiff. The wife of the said defendant, Lois E. Reich, then took over and for a time operated the business of repairing spark plugs originally manufactured by the plaintiffs and others. Because of problems confronting the defendant and his wife, Lois E. Reich in turn transferred the business to Mary Holst who is now operator of the business originally instituted and carried on by the defendant, J. F. Reich. Mary Holst was an employee of both the defendant J. F. Reich while he was operating the business and later an employe of Lois E. Reich when she in turn operated the same business. Mary Holst was familiar with many of the problems confronting J. F. Reich and his wife Lois E. Reich.

The defendant or his wife still owns the machinery and the property where the machinery is located and where the business is being carried on. Both Mr. and Mrs. Reich aid and assist Mary Holst in sundry ways in carrying on the business. Mary Holst, however, asserts by affidavit and otherwise that such business is carried on wholly independently of the defendant J. F. Reich and his wife Lois E. Reich and that her independent course relieves her of such connection with the defendant, J. F. Reich or Lois E. Reich as to make her amenable to this contempt proceeding.

If she is amenable to this proceeding, then it is oblivious from other testimony that the repairing and reconditioning of used and discarded spark plugs is not in conformity with the injunction heretofore issued and with the rulings made in the case of Champion Spark Plug Company v. Sanders, 2 Cir., 156 F.2d 488 and the same case (on affirmance) reported 331 U.S. 125, 67 S.Ct. 1136, 91 L.Ed. 1386. This is true for the reason that the metal shell of the repaired or reconditioned spark plug is not covered with paint or lacquer as required by said injunction and opinion; neither are the words "repaired" or "used" placed upon the repaired or reconditioned spark plugs in such way as to challenge the attention of the purchaser. Moreover, the repaired or reconditioned spark plugs were not placed in packages or cartons with legends that would correctly inform the public of the facts as to the repairs and the individual responsibility therefor. It appeared that the said Mary Holst shipped such repaired spark plugs in large numbers in wooden boxes without any markings whatever and that the distributors were at liberty to palm such repaired and reconditioned spark plugs off upon the public as new spark plugs put out by the plaintiff and other manufacturers.

1. The first question for decision in the case is whether Mary Holst was in privity with the defendant, J. F. Reich, or his wife, Lois E. Reich.

That there has been a disposition to avoid strict compliance with the injunction heretofore issued in the case can hardly be questioned, and, as the Supreme Court in United States v. Bryan, 339 U.S. 323, loc. cit. 334, 70 S.Ct. 724, 732, 94 L.Ed. 884, said in an analogous case, in quoting from and giving credit to Judge Learned Hand of the 2nd Circuit: "`The question is no less than whether courts must put up with shifts and subterfuges in the place of truth and are powerless to put an end to trifling. They would prove themselves incapable of dealing with actualities if it were...