Plastilite Corporation v. Airlite Plastics Co.

Decision Date25 February 1975
Docket NumberCiv. No. 73-0-149.
PartiesPLASTILITE CORPORATION, a corporation, Plaintiff, v. AIRLITE PLASTICS CO., a corporation, Defendant.
CourtU.S. District Court — District of Nebraska

COPYRIGHT MATERIAL OMITTED

Louis Strom and H. Robert Henderson, of Omaha, Neb., for plaintiff.

Bruce D. Vosburg, of Omaha, Neb., for defendant.

MEMORANDUM

DENNEY, District Judge.

This matter comes before the Court for decision subsequent to a trial to the Court on the merits which was held on October 7 and 8, 1974. Plaintiff claims patent infringement, trademark infringement, and unfair competition arising out of defendant's unauthorized manufacture and sale of fishing bobbers closely resembling those manufactured by the plaintiff. The defendant, by answer, claimed that plaintiff's patent and trademark were invalid and not infringed, and counterclaimed for treble damages under the antitrust laws.

Pursuant to F.R.Civ.P. 52, the Court makes the following specific findings of fact:

FINDINGS OF FACT—PATENT INFRINGEMENT

1. Frederick A. Lambach filed a patent application on a fishing bobber on July 24, 1963.

2. On August 4, 1964, patent number 3,142,930 was issued to Frederick Lambach.

3. On October 23, 1965, an application for a reissue patent was filed by Frederick Lambach. Reissue patent number 26,096 was issued. For the purposes of this case, the "reissue" nature of the patent is not important, since the claims (1 & 2) in question here have remained unchanged. See Appendix A.

4. On July 19, 1963, Frederick Lambach assigned his rights in the patent application to Plastilite Corporation, the plaintiff in this case.

5. The bobbers of patent 3,142,930 were first sold in late 1962 by the plaintiff.

6. For the purposes of this suit, the bobber of patent 3,142,930 teaches two improvements. First, the plunger on the top of the bobber contains an annular groove into which the free end of a wire hook is receivable. Second, the bottom of the bobber has formed therein two parallel spaced apart embossments.

7. The annular ring facilitates assembly of the bobber, and the use of the bobber by a fisherman.

8. The two embossments serve to more securely grip the fishing line when it is attached to the bottom of the bobber.

9. Frederick Lambach invented the 3,142,930 bobber in December, 1960.

10. Frederick Lambach worked for the defendant until August, 1960, when he resigned from the defendant corporation and commenced working for the plaintiff.

11. Defendant manufactured and sold bobbers having two parallel spaced apart embossments on the bottom in the late 1950's and early 1960's.

12. On July 8, 1964, the plaintiff, through its attorney, Mr. H. Robert Henderson, advised defendant that a plunger having an annular groove but with two walls thereacross would not be an infringement.

13. Thereafter, until approximately 1965 or 1966, the defendant manufactured bobbers having a groove with two walls. Since then, defendant's bobbers have been manufactured with only one wall across the annular groove in the plunger.

14. The patent examiner considered the following references as constituting the prior art:

A. Patent number 2,758,410 issued to C. A. Cowsert on August 14, 1956. His patent taught the use of a sleeve arrangement, in a fishing bobber, where the sleeves coacted to accurately guide the plunger. See Appendix B.
B. Patent number 2,876,581 issued to L. Schmidt on March 10, 1959. This patent taught the use of a series of holes arranged in an arc, where the free end of the wire hook could be selectively received in any of the holes. The holes were of varying depths to accommodate fishing lines of different diameters. See Appendix C.
C. Patent number 2,876,582 issued to L. Schmidt on March 10, 1959. This patent taught the use of a wire member which slidably engaged the plunger. The wire member extended from the axial wire typically found in spherical bobbers. Thus, in operation, the hook attachment means (e. g., the end of the axial wire) was urged to rotate with the plunger. The wire hook was thus automatically kept in alignment with the receiving hole. See Appendix D.
D. Patent number 2,965,999 was issued to G. M. Marsh on December 27, 1960. This patent teaches the use of a plunger that is keyed to the float body so as to be non-rotatable. In addition, the fishing line passed axially through the bobber. The line was secured by an off-center hook, receivable into a single hole in the plunger. See Appendix E.

15. Plaintiffs Exhibit Number 61 is a spherical bobber bearing the inscription "Buckeye Bait Corp., Miamisburg, O." This bobber has a 270° arcuate groove in the plunger for receiving the free end of the wire hook. Between the ends of the groove is a hole for receiving the free end of the wire hook. The depth of the groove is such that the wire hook will slidably contain the fishing line. However, the depth of the hole is such that the fishing line is gripped by the wire hook.

16. Plaintiff's Exhibit Number 61 Buckeye Bait Bobber is of uncertain origin and the Court cannot find that this bobber was in the public domain prior to 1963 when the plaintiff's patent application was filed.

17. Frederick Lambach had a patent search conducted prior to the filing of a patent application. The patents discovered in the search have not been identified as such and introduced into evidence.

18. Upon Lambach's application for a reissue patent, the patent number 3,060,621, issued on October 30, 1962, to L. Schmidt, was included in the prior art.

19. The Schmidt patent teaches the use of a collar on the wire hook, located between the plunger and the fixed end of the spring. Thus, the two wire hooks can be automatically and sucessively disengaged.

20. A patent numbered 2,895,255 was issued on August 18, 1958, to H. B. Irwin. This patent discloses a circumferential groove having friction producing projections therein, for gripping a fishing line. The two sides of the groove are urged together by a spring.

FINDINGS OF FACT—TRADEMARK INFRINGEMENT

1. Red and white were the traditional colors used in fishing floats. In October or November of 1966, the plaintiff decided to use the colors orange (top) and yellow (bottom).

2. Bobbers having the new colors were first sold in interstate commerce on or about February 1, 1967.

3. Application for trademark was filed on June 27, 1967, for the color combination yellow and orange for fishing floats.

4. The registration was issued on January 14, 1969, bearing registration number 863,462.

5. By decision dated August 21, 1973, the Trademark Trial and Appeal Board ordered that registration 863,462 "be cancelled in due course." Airlite was not a party to cancellation proceedings. Cancellation number 9,990.

6. Plastilite has appealed the decision of the Trademark Trial and Appeal Board to the United States Court of Customs and Patent Appeals. Notice of appeal was filed on October 19, 1973.

7. On January 9, 1975, the United States Court of Customs and Patent Appeals affirmed the decision of the Trademark Trial and Appeal Board. Patent Appeal No. 74-556, Cancellation No. 9,990.

8. Plaintiff experienced $104,000 increase in sales from 1966 to 1967, at least part of which resulted from the color trademark.

9. Defendant began using colors substantially the same as plaintiff's trademarked colors in the latter part of 1967.

10. Plaintiff expended approximately $174,000 in printing brochures, from 1966 to 1973, which featured the trademarked colors.

11. There is testimony (in the form of depositions) from distributors to the effect that the plaintiff's colors are known to fishermen who buy and use plaintiff's bobbers. In addition, the fishermen are said to associate the trademarked colors with the plaintiff.

FINDINGS OF FACT—ANTITRUST DEFENSE (MISUSE)

1. Plastilite supplies more than 50% of the domestic market in plastic fishing bobbers.

2. Airlite supplies approximately 50% of the domestic market in plastic fishing bobbers.

3. The selling prices of plaintiff's and defendant's bobbers are virtually identical.

4. Defendant would suffer economically if required to go back to the two wall design, and/or if forbidden from using the colors yellow and orange.

5. Plaintiff and defendant are the only domestic manufacturers of plastic fishing bobbers. However, there are foreign manufacturers who compete in domestic markets.

Most of the facts stated above were proved without substantial contradiction. Finding # 17 is exceptional, since it required a searching examination of the trial testimony, the exhibits, and the depositions received into evidence. Almost every witness was asked about plaintiff's Exhibit No. 61 Buckeye Bait Bobber. Karl Louis testified that he first saw the bobber many years ago. Jerome Buening regularly attended trade shows and testified that he couldn't remember seeing the bobber at trade shows. In his deposition, Charles Cowsert stated that he was the sole proprietor of Buckeye Bait; that his company made bobbers identical to plaintiff's Exhibit No. 61 from 1949 to 1952; that in 1959 he moved his company from Miamisburg, Ohio, to Council Grove, but did not change the address on the bobber molds, since the molds were expensive. The Court does not consider this testimony of sufficient persuasiveness to meet defendant's burden of proof. In addition, the Cowsert deposition indicates that the bobber was patented and that Cowsert purchased the patent from someone whose name he doesn't remember. If such a patent existed, the defendant had the burden of finding that public record and introducing it into the record. The fact that no such patent was found diminishes the credibility of Cowsert's testimony.

CONCLUSIONS OF LAW

After careful examination of the prior art (Patents numbered 2,758,410; 2,876,581; 2,876,582 and 2,965,999), the Court finds that the patent in suit is valid. The prior art indicates that inventors sought to solve two separate problems. Schmidt (582)...

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