O'Sullivan Rubber Co., Inc. v. Genuine Rubber Co.

• Decision Date: 13 February 1923
• Docket Number: 1601.
• Citation: 287 F. 134
• Parties: O'SULLIVAN RUBBER CO., Inc., v. GENUINE RUBBER CO. et al.
• Court: U.S. Court of Appeals — First Circuit

287 F. 134

O'SULLIVAN RUBBER CO., Inc., v. GENUINE RUBBER CO. et al.

No. 1601.

United States Court of Appeals, First Circuit.

February 13, 1923

Frederick P. Fish, of Boston, Mass. (Alfred H. Hildreth, of Boston Mass., and Clinton H. Blake, Jr., of New York City, on the brief), for appellant.

Arthur P. French, of Boston, Mass., for appellee Genuine Rubber Co.

John W Clapp, pro se.

Before BINGHAM and JOHNSON, Circuit Judges, and BREWSTER, District judge.

PER CURIAM.

After giving due consideration to this case, we are of the opinion that the plaintiff is entitled to an injunction restraining the defendants as follows:

From manufacturing, distributing, selling, or offering for sale or having in their possession:

1. Any rubber heels having the design or arrangement of the words and letters of the heels attached to the bill of complaint and marked 'Exhibit F, Defendants' Heels,' or any colorable modification thereof.

2. Any heel boxes having the appearance, color, and verbal and pictorial design and lettering of the box attached to the bill of complaint herein and marked 'Exhibit G, Defendants' Box,' or any colorable modification thereof.

3. Any rubber heels bearing upon them, in curves as on plaintiff's heel, Exhibit A, the words 'Safety Cushion,' or either of them, whether or not in combination with the word 'Genuine' or any other word. The size and character of the type used shall bear no resemblance to that on plaintiff's heel, Exhibit A, and the word 'Genuine,' if used, shall be accompanied by the words 'The' and 'Co.'s.,' to read 'The Genuine Co.'s.'

4. Any boxes or containers or cartons of the color of plaintiff's box, Exhibit D, attached to the bill of complaint herein, or of defendants' box, Exhibit G attached thereto, or of any color resembling the color of plaintiff's said box, or any boxes, containers, or cartons having upon them a picture of a rubber heel and a slanting bar or panel.

5. Any boxes or containers bearing the word 'Genuine' in combination with the words 'Safety Cushion,' or either of them, unless the word 'Genuine' is accompanied by the words 'The' and 'Co.'s.,' to read 'The Genuine Co.'s.'

The District Court has found, upon the taking of testimony, that there is no probable cause to believe that an accounting would show damages and profits that would bear any reasonable proportion to the cost and denied an accounting.

We see no occasion to disturb...