Kontes Glass Company v. Lab Glass, Inc.

• Decision Date: 23 February 1967
• Docket Number: No. 15892.,15892.
• Citation: 373 F.2d 319
• Parties: KONTES GLASS COMPANY, Appellant, v. LAB GLASS, INC., Cenco Instruments Corporation, Edward B. Brown.
• Court: U.S. Court of Appeals — Third Circuit

373 F.2d 319 (1967)

KONTES GLASS COMPANY, Appellant, v. LAB GLASS, INC., Cenco Instruments Corporation, Edward B. Brown.

No. 15892.

United States Court of Appeals Third Circuit.

Argued November 1, 1966.

Decided February 23, 1967.

Arthur H. Seidel, Philadelphia, Pa. (Seidel & Gonda and Joel S. Goldhammer, Philadelphia, Pa., Thomas Tuso, Vineland, N. J., on the brief), for appellant.

James C. McConnon, Philadelphia, Pa. (Henry N. Paul, Jr., Paul & Paul, Philadelphia, Pa., I. Irving Silverman, Myron C. Cass, Silverman & Cass, Chicago, Ill., Donald Palese, Palese & Palese, Camden, N. J., on the brief), for appellees.

Before GANEY, SMITH and FREEDMAN, Circuit Judges.

OPINION OF THE COURT

FREEDMAN, Circuit Judge:

This is an appeal from the denial of a preliminary injunction. The scope of our inquiry on review is limited to the narrow question whether the court below abused its discretion. Bieski v. Eastern Automobile Forwarding Co., Inc., 354 F. 2d 414 (3 Cir. 1965); Graham v. Triangle Publications, Inc., 344 F.2d 775 (3 Cir. 1965); Industrial Electronics Corp. v. Cline, 330 F.2d 480, 483 (3 Cir. 1964); Joseph Bancroft & Sons Co. v. Shelley Knitting Mills, Inc., 268 F.2d 569 (3 Cir. 1959); Warner Bros. Pictures, Inc. v. Gittone, 110 F.2d 292 (3 Cir. 1940).

Appellant, Kontes Glass Company, and appellee, Lab Glass, Incorporated, are competing manufacturers of scientific glassware. Kontes seeks a preliminary injunction which would restrain Lab Glass from distributing its current merchandising catalogue and would require it to deliver up all copies of that catalogue in its possession or control. It alleges copyright infringement, trademark infringement and unfair competition, on the grounds that certain of the illustrations in the Lab Glass catalogue were copied from various copyrighted catalogues of Kontes and that Lab Glass also improperly used the name "Duall" in advertising a tissue grinder sold under the same name by Kontes, and improperly used another name, "Flexi-Disc" in advertising a type of chromatographic glassware apparatus which Kontes sold under the trademarked name "Chromaflex."

In denying the motion for a preliminary injunction, the court below noted that Kontes had made no showing of irreparable injury, which is the essential prerequisite to a preliminary injunction. 250 F.Supp. 193, 195, 197 (D. N.J.1966). The decision of the court does not clearly appear to have amounted to an abuse of discretion simply because, as Kontes contends, Lab Glass's actions permitted it to arrive in competition with Kontes earlier than it would have done if it had not copied Kontes' catalogue. Nor is this altered by Kontes' claim of the importance of the catalogue in the sale of merchandise. Although these factors bear indirectly on the question whether the damages Kontes has sustained are measurable, Kontes has made no effort to demonstrate that they make it impossible to compute its damages with any precision, and we cannot say that they are sufficient, without more, to demonstrate this and to raise it above the formidable barrier of showing irreparable injury.

In attacking the denial of its motion for preliminary injunction, Kontes also contends that the court below believed that it was seeking to enjoin all of Lab Glass's catalogues, whereas it was seeking only to enjoin Lab Glass's current catalogue, and that it also believed that Kontes...