Pope Automatic Merchandising Co. v. McCrum-Howell Co.
| Decision Date | 27 July 1911 |
| Docket Number | 1,752. |
| Citation | 191 F. 979 |
| Court | U.S. Court of Appeals — Seventh Circuit |
| Parties | POPE AUTOMATIC MERCHANDISING CO. et al. v. McCRUM-HOWELL CO. |
Frederick A. Brown, for appellants.
Hillary C. Messimer, for appellee.
Before GROSSCUP and BAKER, Circuit Judges, and SANBORN, District judge.
By a preliminary injunctional order appellants are restrained from making and selling suction cleaners of a certain type. No patent for mechanism or process or product or design is involved. Nor is infringement of trade-marks or trade-names alleged. Unfair competition in trade is the sole basis of the case.
Appellee prior to the bringing of this suit, was marketing a suction cleaner that bore a plate carrying the trade-name 'Richmond' and the name and address of appellee as maker. At the same time appellants were putting out a cleaner of identical mechanical principles and arrangement of parts of identical form, and of identical color. To appellants' cleaner was affixed a name-plate much larger than appellee's, as large as could well be attached displaying conspicuously a red cross and the words in large capitals, 'The Pope Electric Cleaner, Made by the Pope Co., Chicago, U.S.A.'
Appellee was senior in the field; and the affidavits may warrant a conclusion that appellants deliberately copied the mechanism form, and color of appellee's cleaner with a view of sharing in the trade built up by appellee's pushing of the 'Richmond.' As appellants' trade-mark, trade-name, and name and address of maker, were unmistakably distinguished from appellee's, infringement must rest upon appellee's exclusive right to the mechanics and the form and the color of its cleaner or one or more of them.
Mechanically the cleaner is this: At the bottom is a mouth-piece, to rest upon the carpet or other material to be cleaned. Next above the mouth-piece is a rotary fan, inclosed in the necessary casing. Just above the fan, and on the same perpendicular axis, is an electric motor in a ventilated casing. To the top of the motor casing a detachable handle is affixed at an angle of about 45 degrees from the perpendicular.
In the fan casing is an opening around which one end of a cloth bag to receive the dust is fastened; the other end being attached to the handle; these parts, with the switch, socket, and cord for supplying current to the motor, making up a combination that has many advantages and that probably is the best mechanical arrangement for a vacuum cleaner that is to be carried about as a single tool. But in the absence of a patent this particular combination must be viewed as the culmination of a mechanical evolution, to the equal benefits of which all society is entitled. Indeed, appellee does not deny appellants' right to use the exact...
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...than that of the unobtainable patent in the ratio of eternity to seventeen years. Id. (quoting Pope Automatic Merchandising Co. v. McCrum-Howell Co., 191 F. 979, 981-82 (7th Cir.1911). The Supreme Court has explained By applying trade dress to goods produced by one other than the trade dres......
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A FRAGILITY THEORY OF TRADEMARK FUNCTIONALITY.
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