E. Regensburg & Sons v. Juan F. Portuondo Cigar Mfg. Co.

• Decision Date: 29 December 1905
• Docket Number: 15.
• Citation: 142 F. 160
• Parties: E. REGENSBURG & SONS v. JUAN F. PORTUONDO CIGAR MFG. CO.
• Court: U.S. Court of Appeals — Third Circuit

142 F. 160

E. REGENSBURG & SONS v. JUAN F. PORTUONDO CIGAR MFG. CO.

No. 15.

United States Court of Appeals, Third Circuit.

December 29, 1905

GRAY Circuit Judge.

The material facts in this case are sufficiently set forth in the opinion of the learned judge of the court below, in which we concur, and which we quote in full as follows:

J. B McPHERSON, District Judge. The complainant, a New York corporation, engaged in the manufacture and sale of cigars seeks to restrain the defendant from using a certain kind of band around its cigars, on several grounds:

1. Because the defendant's band infringes the complainant's patent for a similar device.

2. Because the defendant's band infringes the complainant's trade-mark, namely, the same band for which the patent was taken out.

3. Because, in view of the prior use of the complainant's band the defendant is guilty of unfair competition by the use of its own device.

Both bands are dark brown, differing very little from the color of a cigar wrapper, and the lettering upon both is white. The following figure shows the complainant's band:

(Image Omitted)

And the defendant's band, which differs in shape and lettering is shown upon the following reproduction:

(Image Omitted)

1. The complainant is now the owner, by assignment, of patent No. 715,512, granted to M. Regensburg on December 9, 1902, upon an application filed on March 19th of that year. The subject of the invention is an improvement in 'cigar bands made of paper or like material, one end of which is provided with an adhesive substance, so as to adapt it to be pasted upon the other end of the band. ' The object of the invention is stated to be 'to provide an improved cigar band of the above-indicated class, which will be so constructed as to protect the cigar wrapper from contact with the adhesive portion of the band, and to materially reduce the time and labor necessary for applying the band to a cigar. ' The specification describes the band in the following language, and recounts the advantages that may be expected therefrom:

'The improved cigar band, as shown in detail in Fig. 2, consists of a strip of paper or like flexible material, A, which at one end, A3, is narrow and provided with a coating, A1, of any adhesive, such as mucilage, while that portion which the said adhesive is adapted to come when the band is folded around the cigar, as shown in Fig. 1, is materially wider than the portion carrying the adhesive, A1. This wide portion, which may be tapering, as shown, is indicated at A2, * * * , indicating two acute-angled side pieces of this tapering portion. In the particular construction shown in the drawings the adhesive, A1, is located at the extreme end of the band, and the enlargement, A2, is likewise located at one end of the band. I desire it to be understood, however, that such location is not absolutely essential, the main object being to provide an enlargement at that portion of the band which comes in contact with the portion carrying the adhesive, A1.

'In applying my improved cigar band the wide portion, A2, is first placed upon the wrapper of the cigar, and then the band is folded around the cigar, so as to bring the portion with the adhesive, A1, upon the wide portion, A2. The connection is made in the usual way by moistening the adhesive.

'A material advantage of constructing the cigar band as above described resides in the fact that there is no danger of pasting the portion with the adhesive even partly upon the cigar wrapper, since on account of the enlargement, A2, it is not absolutely necessary to place the adhesive or coated end in an exactly central position. This of course also enables an operator to perform the work of applying the bands much more rapidly and with a certainty of satisfactory results. With the adhesive cigar bands as generally made there is always some danger of pasting the adhesive portion of the band partly on the cigar wrapper, and the result is that the mucilage or other adhesive may impart an unpleasant flavor to a portion of the cigar. Besides, since a portion of the band adheres to the wrapper there is danger of injuring the wrapper when removing the band. All this is avoided by my invention, and as there is no need of exercising great care in pasting the adhesive end actually upon the center of the other end portion of the band, the operation can be performed much more rapidly than with the usual style of cigar band.

'Another advantage of my improved form of cigar band is that it may be very rapidly torn off a cigar without injuring the wrapper. This will be clearly shown by reference to Fig. 1. Those portions of the band which project sidewise from the adhesive portion, A1, can be readily taken hold of and lifted from the wrapper, so as to enable the user to tear the band without any danger of damaging the wrapper.'

The claim is as follows:

'As a new article of manufacture a laterally flexible paper cigar band one end of which is broader than its body and than the other end, the narrow end carrying adhesive substance on its inner side, so that it may overlap the broad end and be secured thereto, the broad end allowing the adhesion with the narrow end within a considerable radius and furnishing projections extending laterally for detaching...