Prest-O-Lite Co. v. Avery Lighting Co.

• Decision Date: 18 May 1908
• Citation: 161 F. 648
• Parties: PREST-O-LITE CO. v. AVERY LIGHTING CO.
• Court: U.S. District Court — Northern District of New York

161 F. 648

PREST-O-LITE CO. v. AVERY LIGHTING CO.

United States Circuit Court, N.D. New York.

May 18, 1908

Walter H. Chamberlin, for defendant.

RAY District Judge.

On the 25th day of December, 1906, the Concentrated Acetylene Company registered its trade-mark, 'Prest-O-Lite,' stating it had been continuously used in the business of the corporation since October, 1904, and:

'The class of merchandise to which the trade-mark is appropriated is class 6, chemicals not otherwise classified and the particular description of goods comprised in said class upon which said trade-mark is used is illuminating gas in portable tanks for supplying automobile headlights, boat lights, etc. The trade-mark is displayed on the tanks containing the gas by attaching thereto a metallic plate on which the same is shown.'

By order of the court, the said company, on due application changed its name to 'Prest-O-Lite Company.' Since its organization the complainant company has been extensively engaged in the manufacture and sale of acetylene gas for use on automobiles, which it sells to and distributes to its customers in cylindrical tanks so constructed, the complainant claims, that the maximum amount of gas is delivered in the smallest bulk consistent with safety. Complainant's tanks of special construction and patented are tightly packed with asbestos, which is porous and fireproof, and a certain definite volume of liquid acetone which has the property of absorbing acetylene gas under pressure to an amount many times its volume. The effect is that each tank is filled with this porous asbestos into which has soaked equally throughout the tank a certain definite amount of acetone, and, when the tank is charged with acetylene gas, it is absorbed by the acetone equally all over the tank in amounts proportionate to the heat under which the tank is charged. The result is that, properly packed and charged, there are no spaces within the tank where the gas can collect under pressure and cause combustion. To the side of these tanks, filled with Prest-O-Lite gas, is affixed a removable metallic plate bearing the trade-mark of complainant, 'Prest-O-Lite,' with other words, and these in this condition are sold by complainant to the dealers and users, but never without the gas. The metal cylinder itself is not destructible, and can be used for years; but the safety valves and other parts get broken, the asbestos settles, the acetone between depleted, the gas is exhausted after a little time, and empty spaces are left in which the gas under great pressure congregates, or settles and becomes liable to explode. Hence the asbestos and acetone become a material part of the tank itself, and some skill and judgment is required in refilling and recharging. Each tank is numbered, and complainant company keeps a correct record of the amount of acetone contained in each tank, and, when a tank requires refilling with gas after use, it is possible, and not very difficult, by referring to these records, to properly recharge and refill the tank and restore its maximum efficiency. In the absence of these records, the tanks cannot be so restored to usefulness except by a crude and imperfect method and not, as a rule, to its full efficiency. As a rule it is necessary to recharge or refill a tank after about 40 hours use. In order to facilitate the sale of its acetylene gas, the complainant makes it an invariable practice and a part of its business to take back any of these tanks of its own manufacture when it has become exhausted of gas, or otherwise depleted in its parts, and give in exchange therefor, for a small additional compensation, a Prest-O-Lite tank filed with Prest-O-Lite gas and acetone to the maximum quantity; the tank being newly copper plated with all broken or missing parts restored. Complainant company has also established at large expense pumping plants throughout the country, and numerous agencies, so that a user, without difficulty, can obtain a newly filled and perfect tank in place of his exhausted one.

The engraved plate used by complainant on all its tanks, until about a year ago, read as follows:

Prest-O-Lite Gas Tank.

Manufactured solely by The Prest-O-Lite Company, Indianapolis, Indiana.

No. . . . .

Exclusive licenses under patents No. 619,552-661,401-664,383-727,609.

Other patents pending.

Each plate has a different number. For about a year past a plate has been attached to these tanks reading as follows:

Prest-O-Lite Gas Tank. No. . . . .

The Prest-O-Lite Co.

New York-- Boston-- Indianapolis-- San Francisco-- Toronto.

Patented Dec. 25th 1900-- May 12th 1903.

Notice this device is sold and purchased for sale and use only when charged with gas by the undersigned. No license is granted to use or sell this device when charged by anyone else and no license is granted to anyone else to recharge this device. Any sale or use of this device when sold or used in violation of this condition and limited license will be considered as an infringement of letters patent of the United States under which this device is made and sold and all parties so selling and using this device contrary to the terms of this limited license will be treated as infringers of said letters patent and render themselves liable to suit for injunction and damages without further notice. This license is good so long as this plate remains upon the device. Any erasures or removals of this plate will be considered a violation of the license.

A

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