SESSIONS V. GOUI,D.
1001
SESSIONS v. GOULD et al. (Circuit Court of Appeals, Second Circuit. P ATENTS-INFRINGEMENT-TRUNK FASTENERS.
October 16,1894.)
The Taylor patent, No. 203,860, for trunk fasteners, construed as to the second claim, which is held to be valid. and to have been infringed by defendants. Sessions v. Gould, 49 Fed. 855, 60 753, affirmed.
SESSIONS v. GOULD et al. (Circuit Court of Appeals, Second Circuit. ApPEAL-JUDGMENT IN CONTEMPT PROCEEDINGS.
October 16, 1894.)
An appeal from an order compelling defendants to pay a fine made upon motion to have defendants punished for contempt for violating an interlocutory injunction must be dismissed; for, if the order is to be treated as part of what was done in the original suit, it is interlocutory, and can only be corrected upon an appe<al from- the final decree, or, if such order is to be treated as an independent proceeding, it is, in effect, a judgment in a criminal case, reviewable only upon writ of error.
FEDERAL REPORTER,
vol. 63.
Appeal from the Circuit Court of the United States for the Southern District of New York. ,was a blU" ,by John H. Sessions against William B. Gould and others for Infringement of letters patent. A preliminary injunction was obtained (49 Fed. 855), and, on motion ,tl} have defendantsvrtnjshed. for contempt for violating the same, defendants were orderoo a fine of $500. From such order defendants appealed to this court. Arthur v. Briesen, for appellants. Charles.E. Mitphell (John P. Bartlett, of counsel), for appellee. , Before Circuit Justice, and WALLACE and SHIP(Jircuit Judges. , WAtLACE, Circuit Jlidge. Tpe. complainants in an equity suit in qircuit court,to restrain. an'iIifrfngement of a patent obtained an inter19cutory ipjunction, and sdbsequently, ,insisting that the .had the injUnction, by a motion in the have the defenda:nts for c9otempt. The elr, an entitled in the cause, pay a defendants, by l\Il 'upon the the co,p:rt them gnilty of disobeying the injunction: · . '.", , ' , ','. ,' · .· ' , ' ", ':,.'," If the order compl'amed of is to be treated'lis part of what was done in the original suit, it is interlocutory in, the cause, andean only' be O()I'reeted in, this court upon an appeal foom the' final decree. Hayes. v.Fjscp.er, U.· S. W v. U. S. 14, 7 , Sup. Ct.'81l-If the order is to be 'treated as an iil,dependent pro' ceeding, it is, in effect, a judgment in a criminal case·. New OrleanB v. New YOI'kMaJl Co., 20 Wall. 387; Ex parte 7 Wheat. 39. isnp doubt of the jurisdiction 0'1 this court, under section 6 of the act to drcuit .courts of appeals (26 Stat. 826), to acmtninal judgment, not a'. convicti?n of a capital .' or crime, it only do so upOn a. writ of error. common-law is not removed by an appeal, and ,'b.filof .e;ceptions necessary to procure a review ona "writ of erl'/)rqf any'errors which do not 'the face of the . record.Sl1ltmarsh v.Tuthill, 12 Hdw. 387; Kearney'v. Denn, 15 Wall. 51; Knapp v. Railroad Co., 20 Wall. 117; K:errv;'Olampitt, 95 U. S. 188. As there is no writ of error or bill of exceptions in the record, we are not <¥tlled upon to dedde Whether the order is a Crimi. nal judgment. . We are' Without jUrisdiction' to entertain the. appeal, .and it must accordingly be dismissed.
CUERVO
v.
LANDAUER.
1003
CUERVO v. LANDAUER et al. (Circuit <;Jourt, S. D. New York. September 7, 1894.) 1. 2. TRADE-MARK-INJUNCTION AGAINST INFRINGEMEN'r-INNoCENT INFRINGER.
Injunction will not be refused because defendants bought boxes with infringing labels on them without knowing of the infringement. Injunction will not be refused because defendants have made no sales. where it appears that they bought for the purpose of selling, and would have done so but for complainant's suit. Injunction will not be refused because complainant was not the original designer or owner of the trade-mark, but succeeded to the 'rights of a firm which owned it.
SAME-DEFENSES.
8.
SAME-ORIGIN OF COMPLAINANT'S OWNERSHIP.
This-was a suit by G. Garcia Ouervo against Julius Landauer others to enjoin the infringement of a trade-mark in certain cigarbox labels. Heard on motion for preliminary injunction. Jones & Govin, for complainant. Weed, Henry & :Meyers, for defendants. LACOMBE, Circuit Judge. Thisis an application to enjoin violation of complainant's trade-mark in certain labels for cigar boxes. That the alleged infringing labels are imitations of is self-evident upon inspection. In fact, so close is the resemblance that, the absence of any .affid.avit by designer of the labefs found III defendants' posseSSIOn, It may faIrly be aSJSumed that were intentionally devised to simulate the complainant's labels, and thus confuse the identity of the goodS' sold under their That defendants did not know that the labels, which they bought, as they aver, from a cigar-box maker, were infringements, is nO reason for refusing the relief prayed for. The owner of a mark is entitled to protection against ignorant as as malicious infringers. Nor is 'the fact that no actnal sale is shown material. It is manifest on the papers that defendants bought the boxes thus labeled to sell with their cigars, and that, but for coItlplainant's appeal to the courts, they would have offered them for sale. Nor is there any force in the defendants' contention th:!l.t complainant is not the original designer and owner of the trademark. The cases cited, viz. Stachelberg v. Ponce, 23 Fed. 430 ; Medicine 00. v. Wood, 108 U. S. 218, 2 Sup. Ot. 436,-do not applty. In the case at bar, complainant, at the time of the adoption of trade-mark, was the manager of the business, and continued in that position until 1872, when he became a partner in the firm, and c()ptinued as such partner with the original Manuel Garcia until when the latter retired from business, leaving complainant as sole proprietor thereof. Why these circumstances should deprive him the protection of the courts when the trade-mark, which is a paM; of the assets of the business to which he succeeded, is it is difficult to perceive. See Fulton v. Sellers, 4 Brewst. 42. :Preliminary injunction is continued until trial. .
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