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Elbers v. Chicago Printed String Co.

March 18, 1930


Appeal from the District Court of the United States for the Eastern District of Wisconsin.

Author: Page

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PAGE, Circuit Judge.

Appellee, called plaintiff, at Chicago, and appellants, called defendants, at Milwaukee, each manufactured ribbon-like wrapping twine, wound and sold on a spool, that in use is inserted in a holder. The holder was given to purchasers of the twine.

Plaintiff's charge is that defendants' holder is so like plaintiff's that its use constitutes unfair competition. On a showing by affidavits and exhibits, a temporary injunction was ordered. After changes made in defendants' holder, plaintiff filed a supplemental bill, alleging that the changes were colorable only, and the court granted a second injunction. The legend under plaintiff's exhibits below show what they are: []

Those spools and holders, as well as numerous other spools and holders, are before us, so that we know, first hand, wherein they are similar.

A salesman for plaintiff made an affidavit, stating conversations with a merchant at Pontiac, Ill., and with one at Canton, Ill., concerning transactions they said they had had with defendants. The Canton merchant also made an affidavit concerning the purchase of twine from defendants, and a Minneapolis merchant made an affidavit concerning a like purchase of twine from an agent of defendants. So far as the facts are related in those affidavits, we deem them unimportant. Their stated conclusions as to similarity between the spoolholders are not, while we have all of the exhibits before us, very persuasive.

The spoolholder is not like a container that is emptied and discarded, but is a machine into which, by manipulation of certain parts, the loaded spool is inserted and the empty spool removed. The relation of the spool to the holder is discussed, and three of the four exhibits shown on opposite page and most of the physical exhibits before us, show the spool in the holder. The spool and the holder are only used together, and should be considered together.

It is urged that defendants have made their spool so that it just fits plaintiff's holder.The exhibits disclose that plaintiff has made its spool so that it fits defendants' old holder, used several years before plaintiff made its holders, and it also fits other holders that had been on the market for twenty-five years.

It is also urged that defendants painted their holder a crinkled green in imitation of plaintiff's holder. Defendants admit that about fifteen of the alleged offending holders were so painted, but plaintiff put in evidence a crinkled green holder, used by defendants long before plaintiff so painted its holder. Although defendants still use the crinkled form of painting, it is of yellow, or red, on a blue base, and does not resemble plaintiff's holder.

Besides the painting of the holder, there are several prominent features that strongly appeal to the eye.

First is the base. We do not see how one being familiar with figures 1 and 2 above, could mistake either figures 3 or 4 for either of them. Figure 1 has a long straight front, and figure 2 has the corners cut out, so that what otherwise would be an oblong, with a bulging front, is a sort of cross. In defendants' figure 3 the front is irregular, with slight indentations at the corners. In figure 2 all corners and edges are sharp, whereas in figure 3 they are all rounded. Defendants' present form, figure 4, is octagonal, and almost an oval.

In the exhibits, the knife-carrying standard comes up from the back, and the knife head stands over the center of the spool, much the same in the four exhibits. The conspicuous thing is that the knife head in figure 1 is built up of two nickled plates, held together with bolts. In figure 2, the knife head is a painted, round, cast-iron disk, with a slot in it. In figures 3 and 4, the knife head is an irregular, oblong piece of painted iron, cast as a part of the standard, with a slot that resembles a camel's mouth.

The spool in figure 2 has metal ends, in two colors, covered with printing. The spool in figure 3 is small, with pasteboard ends, without printing. In figure 4, the spool is larger, with pasteboard ends, with no printing, other than that on a small red paper wafer, upon which is defendants' name and ...

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