J. F. Rowley Co. v. Rowley

• Decision Date: 17 February 1912
• Docket Number: 86 (1,565).
• Parties: J. F. ROWLEY CO. v. ROWLEY. [1]
• Court: U.S. Court of Appeals — Third Circuit

193 F. 390

J. F. ROWLEY CO. v. ROWLEY. ^[1]

No. 86 (1,565).

United States Court of Appeals, Third Circuit.

February 17, 1912

Frank Ewing, for appellant.

J. H Roney, for appellee.

Before GRAY, Circuit Judge, and BRADFORD and YOUNG, District Judges.

GRAY Circuit Judge.

This is an appeal from a decree entered by the Circuit Court for the Western District of Pennsylvania, overruling exceptions to a master's report on an accounting, and confirming said report.

A suit in equity was brought in the court below by the appellant alleging unfair competition by the appellee in the use of the name 'Rowley' in the manufacture of artificial legs the name 'Rowley' being also the surname of the appellee. After hearing, the court granted an injunction restraining the appellee from the use of the name 'Rowley' in any manner in connection with the sale and manufacture of artificial legs. From this decree an appeal was taken to this court, and by it the case was remanded to the court below, with instructions to modify the decree, so as not to absolutely prohibit the use of the name 'Rowley,' but allowing the use of that name with initials, provided that an explanation was attached thereto. 161 F. 94, 88 C.C.A. 258. In conformity to this instruction, the court below reformed its decree by granting a perpetual injunction--

'against the defendant, his agents, employes, servants or by any one acting on his behalf, restraining him and them from making and selling any artificial limbs in imitation of the goods made and sold by the plaintiff, in which the dress, covering, or appearance is such that it would likely deceive the public or prospective purchasers; from mailing letters or circulars such as would deceive the ordinary purchasers into believing that the defendant's goods were the plaintiff's goods; from the use of the name 'Rowley' without initials in any manner whatsoever in the manufacture or sale of artificial limbs; from the use of the name 'Rowley' with initials in any manner whatsoever in the manufacture and sale of artificial limbs, unless in each and every instance in which the name is so used, it is accompanied by explanatory words sufficient to clearly distinguish the goods manufactured from the goods of the complainant. And it is further ordered, adjudged and decreed that the plaintiff recover from the said defendant the damages sustained in or by reason of unfair competition, and also profits gained and savings made or realized by the defendant by reason of unfair competition so practiced, and that this cause be referred to H. D. Gamble, master, to take, state and report an account of damages and profits under and in accordance with this decree. And it is ordered that the costs of the case, including the costs of accounting, be divided between the parties.'

From this decree the appellant, as defendant below, again took an appeal to this court, complaining that the court below, in making the decree, had not conformed to the letter or spirit of the former decision of this court. This court, however, being of opinion that the court below in its decree had conformed to both the letter and spirit of the instructions given by this court, in remanding the case, affirmed the said decree as entered. 171 F. 415, 96 C.C.A. 371.

In accordance with the decree thus affirmed, that the plaintiff recover from the said defendant the damages sustained in or by reason of said competition, and also the profits gained and savings made or realized by the defendant, by reason of unfair competition, reference was made to a master to take state and report damages and profits in accordance with the decree. The matter then went...