ing Gorham Co. v. White, 14 Wall. 511) said: "Two trade-marks are substantially the same, in legal contemplation, if the resemblance is such as to deceive an ordinary purchaser, giving such attention to the same as such a purchaser usually gives, and to cause him to purchase the one, supposing it to be the other." The resemblance need not be such as would deceive persons who should see the two marks placed side by side. Seixo v. Provezende, 1 Ch. App. 192, 195. "Similarity, not identity," said Judge Bradley in Celluloid Manuf'g Co. v. Cellonité Manuf'g Co., 32 Fed. 94, 97, "is the usual recourse when one party seeks to benefit himself by the good name of another. What similarity is sufficient to effect the object has to be determined in each case by its own circumstances. We may say, generally, that a similarity which would be likely to deceive or mislead an ordinary, unsuspecting customer is obnoxious to the law." Applying that standard, and considering the nature and circumstances of the case, Judge Bradley there held that the name, "Cellonite Manufacturing Company," was sufficiently similar to that of the "Celluloid Manufacturing Company" to amount to an infringement of the latter trade-name.

The material facts of the present case are these: Nearly 40 years ago the plaintiff, Alexis Godillot, Jr., devised and adopted as a trade-mark a monogram composed of the letters "A" and "G" tastefully combined. Thereafter this trade-mark was constantly used in the United States by the plaintiff, and by others acting under him, upon and in connection with the sale of groceries, food prod ucts, and kindred articles. During the whole of the named period, and down to the present time, the plaintiff has owned and conducted factories in France in which fancy groceries were and are prepared for market in the United States and elsewhere; and in connection with this trade the plaintiff has uninterruptedly used, and is now using, said trade-mark. This trade-mark has been printed in different colors and sizes upon labels which have been applied to boxes, cases, and other packages of goods, and has been impressed in glass bottles, pottery, tin boxes, etc., containing merchandise, and it has become well and favoraby known in the trade here and abroad. the year 1884 the plaintiff sold to Thurber, Whyland & Co. said trade-mark for use in the United States, and the interest of that firm in the trade-mark afterwards passed to its successor in the grocery business the Thurber-Whyland Company. On April 30, 1894, the receivers of the last-named company resold and conveyed to the plaintiff the interest in the trade-mark which he had sold to Thurber, Whyland & Co. Since the date of this reconveyance the plaintiff has been engaged in the city of New York in the grocery business, and has been using therein said trade-mark. After the plaintiff had become reinvested with the whole title to the trade-mark, on June 29, 1894, the receivers of the Thurber-Whyland Company sold the goods of that company to Thomas H. Wentworth, Jr., who subsequently sold and transferred the same to the defendant corporation, the American Grocery Company, and that company has since been engaged in the grocery business in the city of New York, in

In

the same building formerly occupied by the Thurber Whyland Company and its predecessors, and advertises itself as the successor of that company. Before the commencement of this suit the defendant adopted, and began using in its business, a monogram trademark composed of the letters "A" and "G" and "Co.," and the evidence shows that it has already applied the same to a brand of cigar, a brand of whisky, and upon a calendar advertising a particular brand of coffee; and it is also proved that the defendant intends to use the same upon its letter heads and other stationery, and as its corporate seal, and the defendant here asserts its right to use said monogram as its trade-mark in its business generally.

If

The above-cited adjudications-including the case of Gorham Co. v. White, 14 Wall. 511-lead to the conclusion that the plaintiff is entitled to an injunction to restrain the use by the defendant of the trade-mark it has adopted. I think that there is substantial identity between the two trade-marks, within the meaning of the authorities. To say the very least, an unsuspecting purchaser would probably be misled. It may be, indeed, that, when the two monograms are laid side by side for inspection, they are distinguishable from each other. But, as we have seen, this is not the true test of infringement. it were, then no trade-mark would be safe from piracy. The comparatively small letters, "Co.," in the defendant's trade-mark, to the eye of a casual observer, might well be taken to be part of the ornamentation. There is no good reason for such a close imitation of the plaintiff's trade-mark, and no justification therefor. Moreover, the circumstances surrounding this case are peculiar, and tend to the impugnment of the defendant's good faith. The defendant is conducting its business at the old stand where the plaintiff's trademark was so long used. Practically, it is the successor of the Thurber-Whyland Company. It has the former customers of that concern, who were accustomed to regard the A. G. monogram as designating the plaintiff's French goods. If the suggestion that the defendant chose the name "American Grocery Company" with the ulterior purpose of adopting a monogram trade-mark in imitation of the plaintiff's trade-mark be rejected, still, even in the use of its own name, fair competition requires that it avoid an unnecessary, confusing, and hurtful resemblance to a rival's long-established trade-mark, and this obligation the law will enforce. Chas. S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462, 39 N. E. 490; Meyer v. Dr. B. L. Bull Vegetable Medicine Co., 7 C. C. A. 558, 58 Fed. 884. It is a matter of no consequence that the plaintiff's trade-mark registry of November 3, 1874, was for "French Fancy Groceries" only. That registered trade-mark is not the foundation of this bill. The plaintiff sues upon his common-law trade-mark. Nor is it a satisfactory answer that heretofore the plaintiff has not applied his trade-mark to any of the three particular articles of merchandise upon which the evidence shows the defendant has used its trademark. Carroll v. Ertheiler, 1 Fed. 688; Collins Co. v. Oliver Ames & Sons, 18 Fed: 561. The defendant claims the right to the unrestricted use of its trade-mark. That it intends to exercise that al

leged right to the fullest extent appears, not only by the terms of its registered trade-mark, but by other proofs.

The claim that, by virtue of the sale of the stock of goods of the Thurber-Whyland Company by the receivers of that company, an implied license to use the A. G. trade-mark, generally, passed to the purchaser, is unfounded. The receivers had previously, for a large money consideration, sold and reconveyed to. the plaintiff all the interest which the Thurber-Whyland Company had in the trade-mark. When they subsequently sold the stock of goods of the concern, they had no right or title in or to the trade-mark, and they did not attempt to invest their vendee with such supposed license. Of course, the purchaser of the goods acquired the right to resell those particular goods with the marks they bore, and this no one disputes. Let a decree be drawn in favor of the plaintiff.

NATIONAL CO. et al. v. BELCHER.1

(Circuit Court of Appeals, Third Circuit. January 24, 1896.)

No. 38.

1. PATENTS-ANTICIPATION-DUPLICATION OF PARTS.

Where a description of a single traveling cable for controlling the operation of an elevator contained a suggestion that the device might be duplicated, but without any statement or description of a means for uniting the two parts into an operative combination, held, that this was not an anticipation of a true combination of two traveling cables, so arranged as to make the action of one counterbalance and harmonize with the other. 8. SAME-EXPERIMENTS OF EXPERTS.

Evidence by a trained mechanic that by following the suggestions of a prior patent, in respect to the duplication of the device therein described, he produced without difficulty a device substantially identical with that of the patent sued on, is not to be lightly accepted, since, being acquainted with the present art, he would naturally follow the suggestions thereof, or perhaps introduce suggestions of his own mind. 68 Fed. 665, reversed. 8. SAME.

A patent obtained by the original and first inventor of a device is not Invalidated by the fact that he induced another person, who was about to apply for a patent, to delay making his application, because he feared it might cause litigation and delay in the patent office.

4 SAME-PRIORITY OF INVENTION-ADMISSIONS.

On a question of priority as between two inventors, the fact that one of them participated in the application of the other, and took an interest under it, would seem to constitute a conclusive acknowledgement of priority.

8. SAME-ELEVATORS.

The Reynolds patent, No. 317,202, for a device for controlling the operation of elevators, held valid, entitled to a reasonably liberal construction, and infringed. 68 Fed. 665, reversed.

6. SAME.

The Reynolds patents, Nos. 456,122 and 458,917, for devices for controlling the operation of elevators, held vold because of anticipation and want of invention. 68 Fed. 665, affirmed.

Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.

a Rehearing denied March 13, 1896,

This was a suit in equity by the National Company and Otis Bros. & Co. against Thomas H. Belcher for alleged infringement of certain patents relating to devices for controlling the operation of eleComplainants appealed from a part of the decree below (see 68 Fed. 665) which declared certain of the patents sued on to be void.

vators.

James H. Raymond, for appellants.

Ernest Howard Hunter, for appellee.

Before ACHESON, Circuit Judge, and BUTLER and WALES, District Judges.

BUTLER, District Judge. The suit was brought to recover compensation for the infringement of seven patents; three of them being Nos. 317,202, 456,122, and 458,917, granted to George H. Reynolds, another No. 183,055, granted to Philip Hinkle, and another No. 228,107, granted to Charles R. Otis, all for improvements in elevators and the means of operating them. The claim based on two other patents included was withdrawn.

The circuit court sustained the suit as respects the patent to Otis, and dismissed it as respects the others named. An appeal was taken to so much of the decree as relates to the three Reynolds patents.

Are these patents valid; and has the respondent infringed them? As respects No. 317,202, the first in order of time, the alleged invention is described as follows:

"My invention is applicable to the devices or hand gear whereby the operation of the change or reversing valve in elevators is controlled by the attendant in the car or cab, and is applicable to hydraulic or steam elevators in which these devices are connected with and serve to shift the main change or reversing valve directly, and also to those hydraulic elevators in which the said devices are connected with an auxiliary or pilot valve, and by shifting the latter control the admission of water or other fluid to and its exhaust from a controlling cylinder or cylinders containing a piston or pistons, on which the water or liquid acts to move the main valve.

"My invention relates to elevators in which the movement of the valve is accomplished by shifting a lever or hand gear, which is arranged on the car and which occupies a stationary position relatively to the car as the latter rises and falls.

"The invention consists in novel combinations of parts hereinafter described, and pointed out in the claims."

The claims read as follows:

"1. The combination, with the car or cab and its controlling valve, of a lever or hand gear on the car or cab, and occupying a stationary position relatively thereto as it travels, sheaves, g, g', and bearings therefor arranged at the bottom of the shaft and adapted to move upward and downward, other sheaves, h, h, at the top of the shaft, flexible connections passing around these sheaves from the top to the bottom of the shaft and connected at their one end with the said lever or hand gear on the car or cab, and connections between the valve and the movable bearings for the sheaves, g, g', at the bottom of the shaft, through which the movement of the lever or hand gear on the car and the rising movement of one or other of the sheaves, g, g', will effect the shifting of the valve, substantially as herein described.

"2. The combination, with the car or cab, and its controlling valve, of a beam fulcrumed at the bottom of the elevator shaft, connected with said valve and provided with sheaves, g, g', sheaves, h, at the top of the elevator shaft, a lever or hand gear occupying a stationary position on the car or cab as it travels, and flexible connections attached at their one end to said lever or hand gear and thence passed downward under the sheaves, g. g', then upward over the sheaves, h, and weighted at their other end, substantially as herein described."

In considering the question of validity it is unnecessary to enter upon a description of elevators, the means employed to operate them or a historical review of the art to which they belong. Prior to the Reynolds patent No. 317,202, the operating devices employed consisted in some instances of a single stationary cable with its attachments, in others of two separate stationary cables with their attachments, and in others of a single traveling cable with the necessary attachments. None of these devices secured complete control of the car; and the object of Reynolds was to accomplish this important object.. He sought to do it through the introduction of an additional traveling cable combined and worked in harmonious conjunction with the old one, by the means and in the manner he describes. That he was the first to introduce a double cable device, so combined and arranged as to make the action of the one counterbalance and harmonize with that of the other, is, we think, clear. It is not seriously contended that such a device was ever used until he applied it. Two stationary independent cables, as before stated, and a single traveling cable, had been used, but neither device bore any material resemblance to Reynolds' either in arrangement or operative effect. There is no justification for the assertion that Baldwin's device, with a duplication of his cable, would anticipate Reynolds'. The duplication without the addition of Reynolds' lever and other elements of his device, would be useless. The value of Reynolds' invention arises from the unification of the cables and their harmonious and counterbalancing action, secured by the connecting devices he employs. Baldwin himself ackowledged the novelty and superiority of Reynolds' device, in the interference proceedings referred to in the record; and while we do not attach much importance to this acknowledgment, we are satisfied that it was correct. It is urged, however, that a German patent granted to one Lampe describes Reynolds' invention. This patent shows a device with a single traveling cable; and suggests that it may be duplicated. A duplication would result, however, in two independent devices simply, just as would a duplication of Baldwin's device. He does not suggest a combination or any means of making one. In so far as appears the suggestion to duplicate was of no value; no one ever acted upon it; indeed, it does not appear that Lampe's device itself was ever used. It is earnestly contended, however, that any competent mechanic in carrying out the suggestion would combine the two cables as Reynolds has done, and thus produce a device indentical with his. To sustain this contention the respondent relies on the testimony of his witness Noble, who says that by following Lampe's directions he made a device which is identical with Reyn