Thayer Telkee Corp. v. Davenport-Tayler Mfg. Co.

• Decision Date: 15 December 1930
• Parties: THAYER TELKEE CORPORATION v. DAVENPORT-TAYLOR MFG. CO.
• Court: U.S. District Court — Southern District of New York

46 F.2d 559 (1930)

THAYER TELKEE CORPORATION v. DAVENPORT-TAYLOR MFG. CO.

District Court, S. D. New York.

December 15, 1930.

Hammond & Littell, of New York City, for plaintiff.

Seward Davis, of New York City, for defendant.

COXE, District Judge.

This is a motion for a preliminary injunction. The action is for patent infringement and unfair competition. The patents sued on are 1,740,048, issued December 17, 1929, for improvements in keyboards to hold keys, and particularly "a new type of hook strip" for retaining keys, and 1,770,327, issued July 8, 1930, for improvements in drawer cabinets for use in filing keys.

The defendant was formerly sales agent of the plaintiff in the exclusive distribution of the plaintiff's products in the United States, east of Denver, under a five-year agreement, terminable for "any good and sufficient cause." This agreement was terminated by consent on June 1, 1929, and immediately thereafter the defendant commenced the manufacture and sale of a full competing line of keyboards and key cabinets in all respects substantially similar to the products it had previously sold for the plaintiff.

The plaintiff's products have always been marketed under the trade-mark "Telkee", and the different articles manufactured by the plaintiff contain a small gilt plate with the name and address of the plaintiff and "Telkee" appearing thereon in moderate sized letters. Similarly, the defendant's cabinets and keyboards have a small gilt panel painted on the cover or front, about one-third the size of the plaintiff's plate.

At the time of the termination of the sales agreement on June 1, 1929, the application for patent 1,740,048 was still pending in the Patent Office, the patent itself not issuing until December 17, 1929. The second patent, 1,770,327, issued July 8, 1930, on an application filed January 29, 1930. Immediately upon the issuance of this latter patent, No. 1,770,327, the defendant withdrew from the market its drawer cabinet in various sizes, in which plaintiff's hook strips were utilized, and no opposition is made now to the issuance of a preliminary injunction with respect to such cabinets. The defendant insists, however, that the wall cabinet it is now selling is not an infringement of the plaintiff's patents, for the reason that the key hooks are formed by punching narrow tongues from the front panel of the keyboard, and are not integral parts of the label pocket strips. It is also contended that the patents are void for anticipation and lack of invention; and in substantiation of these defenses many patent references as well as a number of alleged prior uses are disclosed in the answering papers.

In view of this showing, I do not think the case is one for the issuance of a preliminary injunction for patent infringement. Simson v. Blancard (C. C. A.) 22 F.(2d) 498; Boyce v. Stewart (C. C. A.) 220 F. 118. The case stands differently, however, with respect to the charge of unfair competition, and on that branch of the litigation I am satisfied that the plaintiff is entitled to preliminary relief. Enterprise v. Landers (C. C. A.) 131 F. 240; Rushmore v. Manhattan (C. C. A.) 163 F. 939, 19 L. R. A. (N. S.) 269; Yale & Towne v. Alder (C. C. A.) 154 F. 37; Wesson...