Prest-O-Lite Co., Inc. v. Acetylene Welding Co.
| Citation | 259 F. 940 |
| Parties | PREST-O-LITE CO., Inc., v. ACETYLENE WELDING CO. et al. |
| Decision Date | 08 August 1916 |
| Court | U.S. District Court — District of New Jersey |
Keyes Winter, of New York City, for plaintiff.
William Greenfield, of Newark, N.J., for defendants.
The evidence conclusively establishes that the defendant Acetylene Welding Company, for a considerable period of time before and after the filing of the bill in this case, was engaged in the practices which have heretofore been held by this court, in Prest-O-Lite Co. v. Bournonville, 260 F. 440, 442, 446, to constitute an infringement of plaintiff's trade-mark, as well as unfair competition. The plaintiff, as against that defendant, is therefore clearly entitled to an injunction as broad as that which was preliminarily granted in this case. But I am now convinced that the mere removing of the name 'Prest-O-Lite' from tanks will not completely prevent deception on the purchasing public, to whom the appearance of the tank is often the controlling guide. Hence I think that, in addition to the other precautions required to be taken to prevent deception, and which are mentioned in the preliminary injunction, the defendant must be required, before offering for resale any Prest-O-Lite tanks, which have been refilled by it, to paint them a different color than plaintiff uses. The plaintiff is also entitled to all damages which it has suffered by reason of the Acetylene Welding Company's unlawful acts, and to an accounting of any profits which the latter has realized therefrom. Indeed that the plaintiff is entitled to such relief is not seriously disputed.
The important question is whether it is entitled to any relief against the two individual defendants. They were directors and officers of the defendant corporation during the time the unlawful acts were done. To understand their connection with the company, the extent of their participation in the unlawful acts, and thus to determine whether any relief may be afforded the plaintiff against them, it is necessary to consider the circumstances under which the company was incorporated and what transpired before. Prior to February 1912, Camille Bournonville and his wife, Ida, began the business of refilling tanks which had been manufactured and placed upon the market by the plaintiff. A suit was thereupon instituted in this court against them by the plaintiff alleging that in doing so they were infringing certain patents of which the plaintiff was the licensee, and a preliminary injunction was granted therein. In February of the following year that injunction was dissolved, because of a decision of another court that the patents, upon which the suit was based, had expired. Shortly after the injunction was dissolved, the place of business in which the Bournonvilles had been carrying on their business was destroyed by an explosion. They then began the erection of a new plant, and, being in need of capital to complete it, they induced the defendant Leonard Lorentowitz to invest some money in the business. This he did to the extent of $2,500. The other Lorentowitz, who is a son of Leonard Lorentowitz, invested nothing.
Before the corporation was formed, and on July 1, 1913, a suit was instituted against the Bournonvilles to restrain them from refilling tanks originally placed upon the market by the plaintiff, without in all cases removing from such tanks the word 'Prest-O-Lite' wherever it appeared thereon, and on July 18th, a preliminary injunction was granted by this court to that effect. On July 20th the defendant corporation was formed. The incorporators were the two Bournonvilles and the two Lorentowitzes. One-half of the capital stock was divided equally between the Bournonvilles, and the remaining one-half between the Lorentowitzes; the son apparently taking only one share to qualify him as a director. The directors were the incorporators. Camille Bournonville was the president and general manager. Leonard Lorentowitz was the treasurer and signed all checks, and John Lorentowitz was the secretary. The company carried on business under this management and with these officers and directors until the month of September, 1914, when a final decree was entered in the suit pending in this court against the Bournonvilles adjudging that the refilling of tanks originally placed upon the market by the plaintiff, without removing the name 'Prest-O-Lite' therefrom, was unlawful. Shortly thereafter Camille Bournonville retired from active participation in the business, and in April of the following year his stock, as well as that of his wife, was purchased by Leonard Lorentowitz. During all of the period of time in which Bournonville was in control, the defendant was undoubtedly doing the acts which the preliminary injunction forbade the Bournonvilles to do. In addition there was maintained at the side of the plant a large sign, on which the word 'Prest-O-Lite' was conspicuous, announcing that 'Prest-O-Lite tanks' were there exchanged.
According to the testimony of...
To continue reading
Request your trial
-
Matzger v. Vinikow
...an accounting, he must bear the expense thereof, if he fail to establish on reference that profits were realized (Prest-O-Lite Co. v. Acetylene Welding Co. D. C. 259 F. 940). But where an injunction is had against unfair competition, willfully conducted by the defendant with knowledge of th......
-
National Geographic Soc. v. Classified Geographic
...for acts of unfair competition. Federal Trade Commission v. Standard Education Soc., 2 Cir., 86 F.2d 692; Prest-O-Lite Co. v. Acetylene Welding Co., D.C., 259 F. 940. Respecting the plaintiff's remedy, it would be impossible from the evidence before me to arrive at any satisfactory conclusi......
-
Hitchcock v. American Plate Glass Co.
... ... Co. v. William Clark Co., 55 N.J.Eq. 658, 37 A. 599; ... Prest-O-Lite Co. v. Acetylene Welding Co., Leonard ... Lorentowitz, et al., 259 F. 940 ... ...
-
Breese v. Tampax, Inc.
...of the corporation. And see National Geographic Soc. v. Classified Geographic, Inc., D.C., 27 F.Supp. 655; Prest-O-Lite Co. v. Acetylene Welding Co., D.C., 259 F. 940; Hitchcock v. American Plate Glass Co., 3 Cir., 259 F. 948; Saxlehner v. Eisner, 2 Cir., 147 F. The cases cited by defendant......