Keystone Type Foundry v. Portland Pub. Co.

• Decision Date: 16 July 1910
• Docket Number: 628.
• Citation: 180 F. 301
• Parties: KEYSTONE TYPE FOUNDRY v. PORTLAND PUB. CO.
• Court: U.S. District Court — District of Maine

180 F. 301

KEYSTONE TYPE FOUNDRY v. PORTLAND PUB. CO.

No. 628.

United States Circuit Court, D. Maine.

July 16, 1910

N. & H B. Cleaves, S. C. Perry, and Venable, Baetjer & Howard, for respondent.

PUTNAM Circuit Judge.

This is a bill in equity, resting entirely upon alleged common-law rights, and claiming jurisdiction in this court simply on account of the variance of citizenship between the complainant and respondent. The complainant is a well-known type founder, and the respondent is alleged to be, to a certain extent, engaged in the same business, either as a founder or as a seller of type. At this point we will say that, while for certain purposes there may be a difference between type as type and the faces of type, we use the word 'type' to cover the entire thing to which this proceeding relates. The complainant devised a style of printing, using peculiar type therefor, of which the following is an example:

(Image Omitted)

For the purpose of doing printing according to the foregoing design the complainant devised and manufactured type adapted thereto. The whole topic, including the invention of the style of printing shown, and of producing the type to accomplish the printing, involved a very considerable expense, and, undoubtedly, a large degree of ingenuity and care. The type as manufactured by the complainant was known in the market as 'Caslon Bold.' The respondent put on the market type corresponding to that made by the complainant, and for the same purpose for which the complainant made their type. In some instances, at least, the respondent in its correspondence, and perhaps otherwise spoke of its type as 'Caslon Bold.' This may have been without any special intention in reference thereto; but such is the fact which we are bound to consider. The complainant further maintains that the type manufactured by the respondent is of inferior quality, which is immaterial as this case is presented.

There is no claim on the part of the complainant to be protected with reference to the style of typography produced by the type. Whether it has a right to maintain a claim of that sort we do not consider. So far as that is concerned, the present case is purely negative. In the same line, the plaintiff does not seek to restrain printing by the respondent, although it is apparent that the printing which we exhibit could not be produced except by type as manufactured and devised by the plaintiff, or something substantially the same. Neither does it claim any trade-mark whatever, except so far as contained in the words 'Caslon Bold'; neither does it prove any 'dressing up' by the respondent for the purpose of passing off inferior type, or any type, as the type of the plaintiff. The fact is that, as the case stands, the style of typography shown having been devised, the matter of producing the type to accomplish it was a mechanical detail, which could in no way involve anything colorable, or anything indicating especially an attempt to imitate in any direction.

Under the circumstances, the case seems very simple. The type in question has no characteristics in particular, except that of utility; and, if the bill could be sustained, the plaintiff would obtain a perpetual patent for a useful article, running indefinitely, without any assistance from the Patent Office of the United States. On putting the proposition in this form, it is so clearly met by the law that it needs no discussion.

Among all the cases cited by the complainant the one which it apparently urges on us with the most confidence, and the one which at first sight comes the nearest to its propositions is Estes v. Frost Company, decided by the Circuit Court of Appeals for this Circuit on February 8, 1910, reported in 176 F. 338. Estes v. Frost Company, however, belongs to an ordinary class of cases involving a...