Singer Mfg. Co. v. Seinfeld
| Decision Date | 05 April 1937 |
| Docket Number | No. 305.,305. |
| Citation | 89 F.2d 35 |
| Parties | SINGER MFG. CO. et al. v. SEINFELD. |
| Court | U.S. Court of Appeals — Second Circuit |
Gifford, Scull & Burgess, of New York City (George F. Scull and William F. Wilder, both of New York City, of counsel), for plaintiffs-appellants.
Markewich & Null, of New York City (Milton Friedman and Jerome G. Rosenhaus, both of New York City, of counsel), for defendant-appellee.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The plaintiffs are respectively the manufacturers and the exclusive distributors and retailers of the well-known Singer sewing machines, their parts and accessories. They will be referred to herein indiscriminately as the plaintiff. The defendant is a former employee of the plaintiff who for some years has maintained his own store in New York City where he has sold Singer sewing machines, their parts and accessories, together with those of other manufacturers. Some of the Singer machines he has sold have been new and apparently were obtained with the connivance of unfaithful employees of the plaintiff as its policy is not to sell new machines to dealers, keeping the supplying of new machines to users an exclusive function of its own.
The plaintiff has established by long usage, and also registered in the Patent Office as long ago as 1908, its trade-mark "S." Its exclusive right to that trade-mark in respect to sewing machines and their accessories is not questioned here. Nor is its right denied to have the defendant refrain from making any misleading use of that letter or of "Singer Sewing Machines" or "Singer Machines" in connection with his business. He has already been enjoined from so doing.
In an action in equity between these parties in the District Court for the Southern District of New York a consent decree was entered on February 29, 1924, enjoining, inter alia, the defendant perpetually "from making or causing to be made or assisting in making any misleading use of the letter `S', `Singer Sewing Machines' and `Singer Machines', or any similar letter or sign calculated to be mistaken therefor, or confused therewith, in connection with the manufacture and sale of any sewing machine, sewing machine needles and parts, and other sewing machine accessories." Jurisdiction was retained and leave granted the plaintiff to "apply at the foot of this decree for such other, further or additional relief as may hereafter be deemed necessary * * *."
On June 25, 1936, the plaintiff applied for an order adjudging the defendant in contempt for violation of the above mentioned decree and for a supplemental injunction. A hearing upon affidavits supplemented by the taking of testimony in open court was had which resulted in the failure of the court to adjudge the defendant in contempt and the denial of the supplemental decree, "without prejudice to a new suit seeking the same relief as sought in said motion for a supplemental injunction." The plaintiff appealed.
It appeared that the defendant conducted a store at No. 321 West 125th street, in New York City not far from one of the stores of the plaintiff. He was in poor health and his daughter was in charge for him. New and secondhand sewing machines of various makes, including the Singer, were dealt in together with their parts and accessories. Above the display window on the street was a large sign "Singer Machines," and on the window itself was a sign consisting of the word "Singer" in what looked somewhat like the cut-off top curve of a large letter "S" over a straight bar in which appeared "2 Spool."
There was testimony, which was contradicted, to the effect that customers had bought used Singer machines at the defendant's store in the belief that they were new in reliance upon representations made in behalf of the defendant that the store itself was one of those maintained by the plaintiff. The trial judge was satisfied that these customers had made such purchases in...
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...purely colorable differences. John W. Gottschalk Mfg. Co. v. Springfield Wire & Tinsel Co., 1 Cir., 90 F.2d 468, 472; Singer Mfg. Co. v. Seinfeld, 2 Cir., 89 F. 2d 35, 37; Better Packages v. L. Link & Co., 2 Cir., 68 F.2d 904, 905; Wachs v. Balsam, 2 Cir., 38 F.2d 50, 52; Armstrong v. De Fo......
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