A. B. Dick Co. v. Hawthorne

97 F. 990, 1899 U.S. App. LEXIS 3357

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: October 12, 1899
• Status: Published

Opinion

LACOMBE, Circuit Judge.

The circumstance that complainants did not put their notice of restriction upon, the outside of the packages sold in England materially weakens their position upon this application, because the affidavits presented by the defendants create a conflict of testimony, and this court does not, as a rule, grant a preliminary injunction where there is such conflict. Nevertheless, the court is strongly persuaded that, although the affidavit of the purchaser In England is a plausible one, it will turn out, when testimony is taken and Hie right of cross-examination exercised, that he had good reason to believe that the complainants uniformly restricted the use of their goods sold in England, so as to forbid their resale In the United States. The care with which this individual’s affidavit is framed seems to indicate that cross-examination may be expected to elicit testimony favorable to the complainants. The application for preliminary injunction, therefore, will be denied, upon the condition that defendants file each month a sworn statement of the sale of any of the paper described in the moving affidavits, with names and addresses of purchasers, and prices paid.