American Pin Co. v. Berg Bros.

188 F. 683, 1911 U.S. App. LEXIS 5216

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: May 31, 1911
• Status: Published

Opinion

EACOMBE, Circuit Judge.

The acts complained of are sales by defendant of books and eyes fastened on cards, which are imitations of the complainant’s card, called the “Dorcas.” It is alleged that defendant’s cards, called the “Comet,” so closely resemble complainant’s that purchasers are liable to he deceived, and to mistake the one for the other. Samples of the cards are in evidence, and arc far more illuminative of tlie issue than any written description could possibly be.

Complainant’s affidavits sufficiently show that its style of card was gotten up in 1902, and that since then they have been sold in very-large numbers in many different parts of the United States. These averments are not controverted by the affidavits of defendant’s witnesses to the effect that there are many department stores in which they are not to he found on sale. It is contended that complainant is not entitled to a preliminary injunction, because no proof is given of specific instances in which some individual purchaser has been deceived. Such proof is not necessary, where the imitation is so close that it is apparent that confusion must result. That is the situation here. No closer simulation of the form, coloring, lettering, and general features of the package lias been found in any case which has come before this court in very many years.

Preliminary injunction may issue as prayed.