Meccano, Limited, v. John Wanamaker, New York
| Decision Date | 15 April 1918 |
| Docket Number | 40. |
| Citation | 250 F. 450 |
| Parties | MECCANO, Limited, v. JOHN WANAMAKER, NEW YORK. |
| Court | U.S. Court of Appeals — Second Circuit |
J Chester Johnson and Pliny W. Williamson, both of New York City (H. A. Toulmin, of Dayton, Ohio, of counsel), for appellant.
C. A L. Massie and Ralph L. Scott, both of New York City (Reeve Lewis, of Washington, D.C., of counsel), for appellee.
Before WARD and ROGERS, Circuit Judges, and LEARNED HAND, District judge.
The bill in this case charges the defendant, which is a seller only: First, with infringement of United States letters patent No. 1,079,245 for perforated plates to be used in constructing working models in toys; second, for infringement of the manuals of instruction as to making toys out of the perforated plates in connection with angle pieces, wheels and fastening devices, sold with each outfit copyrighted, one on June 22 and the other on August 14, 1911; third, with unfair competition in connection with the sale of the American Model Builder outfits. A similar bill was filed in the Western Division of the Southern District of Ohio against the manufacturer of the American Builder outfit and its Eastern sales agents who supplied the present defendant with it. It was so proceeded in that case that the patent was held valid and infringed, the copyrighted manuals infringed, and the defendant guilty of unfair competition. The opinion is reported in (D.C.) 234 F. 912. The District Judge, following very naturally the adjudication of the District Court in Ohio, granted a preliminary injunction, and this is an appeal from that order.
Upon appeal to the Circuit Court of Appeals in the Ohio case the decree was reversed so far as it held the patent valid, and affirmed as to copyright infringement and unfair competition. It is reported in 246 F. 603, 158 C.C.A. 573.
We concur fully with the opinion of the Circuit Court of Appeals for the Sixth Circuit as to the invalidity of the patent, and think it unnecessary to do more than to refer to it on that point.
To justify a preliminary injunction on the other grounds the case ought to be very clear. Wright Co. v. Herring-Curtiss Co., 180 F. 110, 103 C.C.A. 31. Upon the question of copyright infringement and unfair competition, we think the case not clear. The District Judge said:
'I do not think the books containing plates or the covers or other ornamentation of the catalogues of the defendant are sufficiently similar to those of the complainant to mislead the public, but the appearance of the plates themselves and the system of construction have been so deliberately taken from the complainant that they are misleading, and come within the decisions of Enterprise Co. v. Landers (C.C.) 131 F.R. 240; Yale & Towne Co. v. Adler, 154 F.R. 37 (83 C.C.A. 149); Rushmore v. Manhattan Works, 163 F.R. 939 ); Prest-O-Lite Co. v. Davis, 215 F.R. 349 (131 C.C.A. 491).'
The complainant cannot obtain a monopoly for all time of perforated plates of the lengths having equidistant holes and intervening spaces which it first used. These are functional feature of the units of construction which any one is at liberty to use. Of course it cannot claim a monopoly of constructing the particular models or toys which it has made, as, for example, wheelbarrows, bridges, cranes, Ferris wheels, trucks, etc.
Assuming that the public associates plates of this description with the complainant as a source, and that there is likely to be confusion because of similarity of the outfits, it is a question whether it is entitled within the decision of the Supreme Court in Singer Co. v. June, 163 U.S. 169 16 Sup.Ct. 1002, 41 L.Ed. 118, to more protection than that outfits made by others should be advertised and sold as the product of the makers under names and in packages which do not simulate the complainant's. This is true of the outfits which the defendant sells. The name of the complainant's is 'Meccano' and of those sold by the defendant 'American Model Builder.' They are advertised as made by the American Mechanical Toy Company, and sold in dissimilar packages. So in the nature of things, the constructing elements and the things constructed being the same, the plates illustrating them and the instructions...
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