L.E. Waterman Co. v. Modern Pen Co.
| Decision Date | 14 May 1912 |
| Docket Number | 208. |
| Citation | 197 F. 534 |
| Parties | L. E. WATERMAN CO. v. MODERN PEN CO. |
| Court | U.S. Court of Appeals — Second Circuit |
On Petition for Rehearing, May 28, 1912.
Alexander S. Bacon, for appellant.
Samuel S. Watson, for appellee.
Before WARD and NOYES, Circuit Judges, and HOLT, District Judge.
In our opinion the testimony upon the final hearing was not substantially different from that presented by the affidavits which were before us in the former record. The most important additions to that record consist of the Italian decree and the testimony concerning the Lockwood transactions, but we agree with the conclusions of the district judge that those items do not materially change the situation.
The case before us, then, is practically the case which came up before, and we are not convinced that our conclusions reached at that time were erroneous, or that the final relief granted should vary from the preliminary relief which we then regarded as proper, except in one particular.
The record clearly demonstrates the confusion arising from the use by the defendant of the name 'A. A. Waterman & Co.' in the pen business in view of its similarity to the name of the complainant. The defendant has the right to use the name, but the complainant and the public have the right to insist that provision be made for minimizing the confusion arising from such use so far as practicable. We think that the suffix required in the decree appealed from tends to characterize the defendant's product as inferior to that of the complainant and is unduly prejudicial to it. The defendant should, however, distinguish its goods from those of the complainant, and, in our opinion, should do so by employing after the name 'A. A. Waterman & Co.' or A A. Waterman,' the words 'not connected with the L. E Waterman Co.' This notice should be sufficient to put the public upon inquiry. We think it all that the facts of the case require, but it is the very least they do require.
The decree appealed from will be modified by striking out the words 'not connected with the original 'Waterman' pens,' and inserting in lieu thereof the words, 'not connected with the L. E. Waterman Co.'
The costs of this court and the costs of the lower court arising after our decision upon the former appeal will be divided equally between the parties. Costs of the lower court accruing before that time are awarded to the complainant.
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