Westinghouse Electric Corp. v. Free Sewing Mach. Co., No. 12277.
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
| Writing for the Court | DUFFY, , and MAJOR and HASTINGS, Circuit |
| Citation | 256 F.2d 806 |
| Parties | WESTINGHOUSE ELECTRIC CORPORATION, Plaintiff-Appellant, v. FREE SEWING MACHINE CO. and Apsco Products, Inc., Defendants-Appellees. |
| Docket Number | No. 12277. |
| Decision Date | 23 June 1958 |
256 F.2d 806 (1958)
WESTINGHOUSE ELECTRIC CORPORATION, Plaintiff-Appellant,
v.
FREE SEWING MACHINE CO. and Apsco Products, Inc., Defendants-Appellees.
No. 12277.
United States Court of Appeals Seventh Circuit.
June 23, 1958.
James O. Smith, Chicago, Ill., John J. Cassidy, Jr., Chicago, Ill. (McDermott, Will & Emery, Chicago, Ill., of counsel), for plaintiff-appellant.
Douglas C. Moir, Chicago, Ill., Edward J. Wendrow, R. Lawrence Storms, Chicago, Ill., Karl C. Williams, Rockford, Ill. (Winston, Strawn, Smith & Patterson, Chicago, Ill., Williams, McCarthy & Kinley, Rockford, Ill., of counsel), for defendants-appellees.
Before DUFFY, Chief Judge, and MAJOR and HASTINGS, Circuit Judges.
DUFFY, Chief Judge.
The complaint herein charges unfair competition and trade-mark infringement. Plaintiff alleges the use by defendants of the mark "Free-Westinghouse" infringed its trade-mark "Westinghouse."
On June 27, 1957, plaintiff moved for a temporary injunction. The Court took no action on this motion until December 19, 1957 when a decree was entered which enjoined defendants from "directly or indirectly advertising or representing, by implication, innuendo or in any manner whatsoever, that their products embody any product manufactured by the plaintiff." However, the motion for a preliminary injunction was, in all other respects, denied, and it was affirmatively ordered that defendants be permitted to continue using the name "Free-Westinghouse" until the further order of the court. No findings of fact or conclusions of law were filed except as are contained in a very brief memorandum which the court filed on the day the decree was entered. Claiming the decree was wholly inadequate to give effective relief, plaintiff appealed.
Since 1886 plaintiff has continuously used its registered mark "Westinghouse" on its electrical products. Westinghouse
In this opinion, we shall ignore co-defendant Apsco Products, Inc.
Prior to 1918 and 1919, Free was well known in the sewing machine business, having manufactured and sold treadle sewing machines. "Free" had been the registered trade-mark of defendant Free since 1901. During 1918-1919, engineers of plaintiff and defendant worked together to create an electrical sewing machine. As a result, the so-called "built-in" or "turtle-back" motor was developed. Plaintiff patented this motor and entered into an agreement with Free whereby Westinghouse would manufacture the motors and Free was to manufacture the sewing machines. In some respects the direct evidence in this record as to the details of this agreement is meager. Defendant claims that during the negotiations an officer of plaintiff said with reference to the use of both names "Let's try it and see how it works out." Plaintiff maintains that the General Sales Manager of defendant suggested that the trade-mark of each company, to-wit: "Free" and...
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