Champion Spark Plug Co. v. Reich, 2979.

• Citation: 49 F. Supp. 903
• Decision Date: 12 March 1943
• Docket Number: No. 2979.,2979.
• Parties: CHAMPION SPARK PLUG CO. v. REICH.
• Court: U.S. District Court — Western District of Missouri

49 F. Supp. 903

CHAMPION SPARK PLUG CO. v. REICH.

No. 2979.

District Court, W. D. Missouri, W. D.

March 12, 1943.

Wilber Owen (of Owen & Owen), of Toledo, Ohio, and Arthur C. Brown and

Claude A. Fishburn, both of Kansas City, Mo., for plaintiff.

Johnson & Garnett and Charles H. Thompson, all of Kansas City, Mo., for defendant.

REEVES, District Judge.

The defendant has filed exceptions to the special master's report and recommendations. When the case was argued on such exceptions the parties were granted ten days to file briefs in support of their several contentions.

Under date of February 11, 1943, defendant's counsel submitted a letter in lieu of brief, wherein it is stoutly contended that the plaintiff is not entitled to an accounting of profits under the peculiar facts of the case. In support of this contention the case of Champion Spark Plug Co. v. Emener, D.C., 16 F.Supp. 816, is cited.

The plaintiff has filed a brief covering the several points raised by the defendant in his formal exceptions.

The special master's report has been carefully examined in the light of the exceptions. References to pertinent facts have been made.

1. The contention made by the defendant by letter dated February 11, 1943, is untenable in view of the proceedings heretofore had. By memorandum opinion dated July 16, 1940, this court said: "It is my conclusion that plaintiff is entitled to a decree as prayed in its bill of complaint, but it is not entitled to an injunction, in view of the present attitude of the defendant. This means that the plaintiff is entitled to a decree upholding its patents and for costs and damages for infringements or unfair competition." 34 F.Supp. 414, 415.

A decree was accordingly entered. The plaintiff appealed from that portion of the decree denying an injunction. The remainder of the decree became final. The Court of Appeals reversed the ruling only on the injunction but in all other respects expressed approval of the decree. 8 Cir., 121 F.2d 769. The court at this time would have no right to set aside the definite findings heretofore made and the judgment which has long since become final and conclusive on the parties. Moreover, the original opinion pointed out that the defendant had clearly and intentionally infringed plaintiff's trademark. This makes inapplicable Champion Spark Plug Co. v. Emener, supra.

The defendant acknowledged that the finding was correct and evinced a disposition to conform to the ruling of the court. He did this in order to avoid an injunction. Believing that the defendant had made his operations conform to the law an...