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

• Decision Date: 04 April 1905
• Docket Number: 29.
• Citation: 136 F. 866
• Parties: E. REGENSBURG & SONS v. JUAN F. PORTUONDO CIGAR MFG. CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

136 F. 866

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

No. 29.

United States Circuit Court, E.D. Pennsylvania.

April 4, 1905

Briesen & Knauth, for complainant.

C Andrade, Jr., for respondent.

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 upon 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

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