MILLBURN MILLS v. Meister

• Decision Date: 02 December 1940
• Parties: MILLBURN MILLS, Inc., v. MEISTER et al.
• Court: U.S. District Court — Southern District of New York

37 F. Supp. 231

MILLBURN MILLS, Inc., v. MEISTER et al.

District Court, S. D. New York.

December 2, 1940.

Pennie, Davis, Marvin & Edmonds, of New York City (Willis H. Taylor, Jr., of New York City, of counsel), for plaintiff.

George J. Beldock, of New York City (Abraham Wilson, of New York City, of counsel), for defendants.

MANDELBAUM, District Judge.

The plaintiff has heretofore moved for summary judgment and a preliminary injunction against the defendants. The subject matter of the litigation involves primarily a Christmas stocking manufactured and sold by the plaintiff, and one manufactured and sold by the defendants, which stocking is covered by United States Letters Patent No. 120,161. The defendants, by cross-motion, moved against the plaintiff for a preliminary injunction against the continuance by the plaintiff of certain alleged enumerated acts. The plaintiff's motion was heard and decided by Judge Clancy, November 22nd, 1940, and a formal order and judgment was entered on November 29th, 1940. The defendants' cross-motion was heard by this court on November 26th, 1940.

I have reviewed the entire proceeding had before Judge Clancy, as well as the one presently before me. I feel that there is little for me to decide. The principal questions have been disposed of. What has been left open by the prior decision I can properly consider. Among other things, Judge Clancy decided the following (I quote from the conclusions of law):

"1. The plaintiff, by manufacturing or selling its article is not infringing the defendants' patent. Judgment to this effect can be awarded summarily for no evidence can change the design of either. * * *"

"3. Plaintiff is entitled to an injunction against the defendants * * * from representing in any way that the plaintiff's stocking infringes the patent rights whatever they may be of the defendants in United States Design Letters Patent No. 120,161, by reason of its manufacture or sale of its stocking or by threatening any of the plaintiff's customers with prosecution or punishment based on any such claim of infringement."

In the order and judgment entered on November 29th, 1940, it appears that the plaintiff's motion for summary judgment on the defendants' first and second counterclaim was denied, the court being in doubt as to whether they stated a cause of action for infringement or unfair competition; the court also denied the plaintiff's motion for summary judgment for unfair competition interposed in its...