The opinion of the court was delivered by: LA Buy, District Judge.
Plaintiffs have filed a motion for preliminary injunction to
restrain defendants from manufacturing and selling a mop sold
under the trade-mark Kleen-Rite which is alleged to infringe on
plaintiffs' mop manufactured and sold under the trade-mark New
Art. As was stated in Sinko Tool & Mfg. Co. v. Casco Products
Corporation, 7 Cir., 1937, 89 F.2d 916, 921:
"* * * This court in Standard Elevator v. Crane Elevator Co.,
7 Cir., 56 F. 718, 719, said:
"`It would, we think, be most unsafe to determine this
controversy without full and orderly proof. * * *'"
and further stated the requirements to support a temporary
injunction are clear proof of infringement and defendant's
inability to respond in damages.
The motion of the plaintiff is predicated upon a presumption of
the validity of the patent as a result of the acquiescence of the
trade, shown by affidavits where notices of infringement were
honored in at least one instance and ultimately honored by
consent decrees in other instances. Also there are affidavits
setting out efforts to secure financial information about
defendants and the failure of such efforts. In further support of
the motion is the undisputed fact that defendant had been prior
to the alleged wrongdoing, the exclusive sales representative of
the plaintiff in a designated territory. Submitted also are
exhibits of patents which are construed by patent counsel for
each of the litigants in relation to the Rogers patent in suit.
In Ganter v. Unit Venetian Blind Supply Co., D.C.Cal. 1949,
87 F. Supp. 338, the court said: "Courts of Appeal have warned
against disposing of patent litigation summarily. Bowers v. E.J.
Rose Mfg. Co., 9 Cir., 1949, 149 F.2d 612. It is not the policy
of our courts to dispose, on hearings for a temporary injunction,
of causes, the final disposition of which requires a trial. To
grant an injunction pending suit in a patent suit is to grant to
the plaintiff the most essential portion of his relief. We should
not do so unless convinced that the defense is really sham." And
in the Sinko case, supra, it was held that clear proof of
defendants' inability to respond in damages are required to
support preliminary injunction. See also Lawrence v. St. Louis
Ry. Co., 1927, 274 U.S. 588, 47 S.Ct. 720, 71 L.Ed. 1219. It has
also been held that mere infringement is not reasonably clear,
even if the validity of a patent has been determined in other
suits, no temporary injunction should issue, and a trial court
exercises properly its discretion in refusing it to await the
results of a full and final hearing. Diamond Power Specialty
Corp. v. Bayer Co., 8 Cir., 1938, 95 F.2d 541.
For the above reasons, the court is of the opinion the
plaintiff's motion for preliminary injunction should be denied.
An order in accord therewith has this day been entered.
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