Florence Mfg. Co. v. Dowd
| Decision Date | 08 May 1911 |
| Docket Number | 262. |
| Citation | 189 F. 44 |
| Parties | FLORENCE MFG. CO. v. DOWD et al. |
| Court | U.S. Court of Appeals — Second Circuit |
A. Bell Malcomson (Martin Conboy, of counsel), for appellants.
Macleod Calver, Copeland & Dike, for appellee.
Before COXE, WARD, and NOYES, Circuit Judges.
The mandate directing that a decree be entered in accordance with the decision of this court is dated April 21, 1910. On May 13, 1910, a decree was entered in the Circuit Court without objection by the defendants although a copy of the decree with notice of settlement was served upon defendants' solicitor. After the settlement of the decree the defendants' solicitor agreed upon Mr. Shields as master to take the accounting and was present at the hearings before the master on May 25th, June 10th, July 13th and 14th. The defendants appeared, filed their account, and submitted themselves for examination. On September 17, 1910, a motion was made for resettlement of the decree, which was denied on October 5th thereafter. It was not until November 12, 1910 one day less than six months from the entry of the decree that this appeal was taken.
An examination of the record has made it unnecessary for us to consider the motion to dismiss and we have concluded to dispose of the appeal on the merits. The instruction of this court to the Circuit Court, after the cause was remanded, was to enter a decree in conformity with our opinion. This meant of course, the ordinary decree proper when a case of unfair competition has been established. The Circuit Court did not need to be informed of the details of such a decree. The decree entered, in its essential features, is correct. Some verbal changes might have been made with propriety and doubtless they would have been, if the attention of the court had been called to them; but there is nothing in the decree which justifies its reversal.
The acts of the defendants which warrant the finding of infringement are clearly stated in the decree, namely, selling
'tooth brushes, each of which they have placed in a box on which appears in conspicuous printed letters the word Sta-Kleen in imitation of the complainant's word Keepclean as charged in the bill of complaint.'
The decree further states:
'That the defendants herein have so dressed their goods that they may be mistaken for the goods of the complainant and in so doing have infringed upon the exclusive rights of the complainant in the dress and appearance of the boxes or packages in which the complainant's goods are contained.'...
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Wolf Bros. & Co. v. Hamilton-Brown Shoe Co.
... ... Fairbank Co. v. Windsor ... et al. (C.C.A.) 124 F. 200, 61 C.C.A. 233; Florence ... Mfg. Co. v. Dowd et al. (C.C.A.) 189 F. 44, 110 C.C.A ... 608. And so this court held on ... ...
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Municipal Street Sign Co. v. City Street Sign Corp., 236.
...and for, those of plaintiff. John H. Woodbury, Inc., v. William A. Woodbury Corporation et al., D. C., 23 F.Supp. 162; Florence Mfg. Co. v. Dowd et. al., 2 Cir., 189 F. 44. It is true that the Vice President of the defendant, while in the employ of the plaintiff, made the application with t......
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