Lovell-McConnell Mfg. Co. v. Waite Auto Supply Co.
| Decision Date | 22 July 1912 |
| Docket Number | 16. |
| Citation | 198 F. 130 |
| Parties | LOVELL-McCONNELL MFG. CO. et al. v. WAITE AUTO SUPPLY CO. |
| Court | U.S. District Court — District of Rhode Island |
Horatio E. Bellows, of Providence, R.I., and Geo. Cooper Dean, of New York City, for complainants.
J Jerome Hahn, of Providence, R.I., and C. A. L. Massie, of New York City, for defendant.
This is a petition for preliminary injunction against alleged infringement of letters patent Nos. 923,048, 923,049, and 923,122, to Hutchinson, May 25, 1909. The patents relate to mechanically actuated diaphragm horns or alarms. Certain of these horns were sold to the defendant with a label attached thereto, in the following terms License.
Lovell-McConnell Mfg. Co., Makers, Newark, New Jersey, U.S.A.
The instrument contained in this box is marked with and identified by its Serial No. . . . , is made by us under United States patents, granted March 14, 1899, No. 620,958; March 31, 1908, No. 883,643; May 25, 1909, Nos. 923,048 923,049, and 923,122; May 3, 1910, Nos. 956,898, and 957,161; design patents January 19, 1909, Nos. 39,785 and 39,786, and February 2, 1909, No. 39,801; and is licensed and sold only under and subject to the following conditions assented to by purchase, and controlling all sales and uses thereof, any violation of which license conditions revokes and terminates all rights and license as to this and all other instruments of makers in violator's possession, and subjects violator to suit for infringement of said patents, without further notice.
(1) The instrument contained herein is licensed for use and sale only when sold at retail or to buyers for use at a price not less than $ , and only for such time as our name plate, registered trade-mark and serial number shall remain unaltered and clearly legible thereon, and only when seller and buyer acknowledge that the above mentioned patents are valid as to all the claims thereof, and that the instrument is licensed under and covered by said patents.
(2) Dealers may sell to other dealers having actual notice of and assenting to the conditions of this license, but may not sell to any one designated by the makers as objectionable, and may not alter, erase, detach or conceal any of makers' marks notices, licenses, tags or labels applied to the within instrument or to this box containing it.
(3) No deduction, discount, rebate, premium or bonus shall be allowed or given in connection with any sale or transfer at retail except that a 5% discount may be allowed where sale is made for cash.
(4) No license whatever is granted for purchase or sale by any one who has been notified that he is objectionable to makers; nor for purchase by or through, or sale by or to, any person, company, concern or association which offers or affords purchasers or users any membership, profit sharing or co-operative right or privilege.
(5) Purchase, sale or acceptance of this instrument is acceptance of and agreement to perform the conditions above stated.
Lovell-McConnell Mfg. Co., Makers. Miller Reese Hutchinson, Patentee.
The bill alleges that by purchase, by acceptance, and by resale the defendant is a purchaser who has repeatedly and specifically acknowledged the validity of said patents, and that by reason of the premises the defendant is now estopped to deny the validity of said patents. The bill also alleges that the defendant signed a supplemental selling license wherein it acknowledged its familiarity with complainants' system of selling horns under conditional licenses. It is charged that the defendant has advertised and sold, and threatens to continue to advertise and sell, automobile horns, designated as the 'Newtone' horn, made by another manufacturer, but embodying said inventions, in infringement of the rights of complainants.
The bill prays an injunction against manufacture, use, or sale of the complainants' horns known as 'Klaxon' and 'Klaxonet' horns, of the kind purchased by the defendant from complainants, and also for an injunction against the use or sale of the 'Newtone' horn or any similar horn at the same time that it uses, advertises, or sells the horn manufactured by complainants, and also against purchasing complainants' horns without special written permission of the complainants, etc.
The license states that the instrument is licensed under conditions assented to by purchase, that any violation of these conditions revokes and terminates all rights and license as to this and all other instruments of makers in violator's possession, and subjects violator to suit for infringement of patents without further notice. Paragraph 1 is in part to the effect that the instrument is licensed only when seller and buyer acknowledge the validity of the above-mentioned patents. Paragraph 2 in part provides that dealers may not sell to any one designated by the makers as objectionable; paragraph 4, that no license is granted for the purchase or sale by any one who has been notified that he is objectionable, etc.
The patents in suit have not been adjudicated, nor is general acquiescence shown. These complainants are prosecuting in the Eastern district of New York a suit upon these patents against the manufacturer of the Newtone horns, the Automobile Supply Manufacturing Company, wherein a preliminary injunction was denied. See ...
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