Weiner v. National Tinsel Mfg. Co.

• Decision Date: 24 October 1941
• Docket Number: No. 7592.,7592.
• Citation: 123 F.2d 96
• Parties: WEINER et al. v. NATIONAL TINSEL MFG. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

123 F.2d 96 (1941)

WEINER et al. v. NATIONAL TINSEL MFG. CO.

No. 7592.

Circuit Court of Appeals, Seventh Circuit.

October 24, 1941.

James A. Hoffman and Wm. A. Strauch, both of Washington, D. C., for appellant.

Ralph W. Brown, of Milwaukee, Wis., for appellees.

Before MAJOR and MINTON, Circuit Judges, and LINDLEY, District Judge.

MAJOR, Circuit Judge.

This is an appeal from an order, entered December 11, 1940, awarding a preliminary injunction, enjoining the defendant from the use of the trade names "Tye-Ad-String" and "Ribbontye" in simulation of the names "Print-Ad-String" and "Ribbonette" by which plaintiffs' similar products were known and designated. In compliance with the order, plaintiffs gave bond in the sum of $5,000 to protect the defendant from all damages and costs which might be adjudged against the plaintiffs by reason of any wrongful or improvident issue of the injunction.

The injunction was predicated upon a verified bill of complaint, affidavits and exhibits. The complaint filed June 25, 1940, charged the defendant with trade-mark infringement and unfair competition. It was disclosed that for twenty-five years prior to the institution of the suit plaintiffs had been engaged in the manufacture and sale of advertising tape used for tying packages. The product is a ribbon-like, cotton tape upon which the user may cause its name to be printed, with accompanying advertising matter. It is not a woven fabric, but consists of glued cotton yarn. The tape was manufactured in two grades, the cheaper or courser grade being known as "Print-Ad-String" and the finer grade as "Ribbonette." It was shown that plaintiffs, during the years they had been engaged in the manufacture and sale of this product, had, from a small beginning, developed into a large and prosperous business. Throughout the years they had carried on an extensive advertising campaign, and for the past five years had expended for such purposes, more than $25,000 annually. Their volume of business for the past five years has averaged in excess of $900,000; they have 28,000 customers and employ numerous salesmen who semi-annually visit every city in the country having a population of 5,000 or more.

About May 1, 1940, the defendant commenced the sale of a flat, ribbon-like tape under the name of "Tye-Ad-String" and "Ribbontye." The former name was applied to a coarser grade of tape corresponding to the plaintiffs' coarser grade "Print-Ad-String" and the latter name was applied to a better grade of tape corresponding to plaintiffs' "Ribbonette." Admittedly, when defendant commenced the sale of its product under the names in question, it had knowledge and was familiar, not only with plaintiffs' product, but the trade names under which it had been sold for many years.

Defendant argues its case here as though the appeal was from an order finally adjudicating the controversy on its merits. Such is not the case. The court properly, by its findings and conclusions, left open for further consideration and future determination, the merits of the controversy. We intend to do likewise. In fact, an appeal from an order of the nature here involved presents only the narrow question as to whether the District Court abused its discretion in allowing plaintiffs' motion for a preliminary injunction. Selchow & Righter Co. v. Western Printing & L. Co., 7 Cir., 112 F.2d 430; Independent Cheese Co. v. Kraft Phenix Cheese Corp., 7 Cir., 56 F.2d 575. In the latter case, this court, 56 F.2d on page 575, said:

"* * * It is the exercise of judicial discretion by the District Court which is the subject of review. If its discretion was not abused, or stating it differently, if its discretion was not improvidently exercised, its injunctional order will not be reversed upon appeal. Alabama v. United States, 279 U.S. 229, 230, 49 S.Ct. 266, 73 L.Ed. 675."

We do not agree with defendant's contention that the assailed order was improvidently granted. On the other hand, we are of the opinion that the record fully supports the court's action. We do not deem it necessary to enter into...