Globe-Wernicke Co. v. Safe-Cabinet Co.

92 Ohio St. (N.S.) 532

• Court: Ohio Supreme Court
• Decided: May 25, 1915
• Docket: No. 14560
• Status: Published

Opinion

It is hereby ordered that the judgments and decrees heretofore made and entered by this court herein be and they are hereby set aside and held for naught; coming now to enter the judgment and decree which should have been made and entered by the court of appeals upon the facts disclosed by the record and found by said court, it is hereby ordered, adjudged and decreed that the plaintiff in error, The Globe-Wernicke Company, either - directly or indirectly through its officers, agents, servants, attorneys and employes, and each and all of them, be and they hereby are forever and permanently enjoined and restrained, in connection with the sale or offering for sale, or advertising, of containers or cabinets which are or purport to be adapted for the filing and preservation of documents, papers or other articles, and which are now made or sold by the defendant in error, The Safe-Cabinet Company, from in any way, manner or form directly or indirectly making use of or employing or causing to be made use of or employed by the following, to-wit:

The words “The Safe-Cabinet” or “Cabinet Safe” either alone or in conjunction with other words;

Containers or cabinets which in their collocation of shape, design and color, decoration or general appearance, so resemble the containers or cabinets heretofore sold or offered for sale by The Safe-Cabinet Company, defendant in error, or by The Globe-Wernicke Company, plaintiff ,i'n error,- as the same have been exemplified in this cause by exhibits marked “Plaintiff’s exhibit, Plaintiff’s cabinet,” and “Plaintiff’s exhibit, Defendant’s cabinet,” as to be calculated to mislead or deceive the public or intending purchasers of the defendant in error’s product into the mistaken belief that goods not made by it are in fact the product of The Safe-Cabinet Company, defendant in error;

From continuing to issue, publish or distribute a catalogue entitled “Plaintiff’s exhibit, defendant’s cabinet No. 911,” or any other circular or advertising matter calculated to mislead or deceive The Safe-Cabinet Company’s customers, intending purchasers, the public or the trade into the mistaken belief that the goods advertised by such circular or advertising matter are in fact the goods of The Safe-Cabinet Company, the defendant in error;

From palming off or passing off or substituting or attempting to palm off, pass off or substitute any containers or cabinets of like nature or purpose with those hereinbefore indicated, which are not made or sold by the defendant in error, The Safe-Cabinet Company, as and for the product of The Safe-Cabinet Company; from making or using, or causing to be macle or used, any statements, representations or devices, whether by word of mouth, advertising matter, catalogues, pamphlets or lettering on windows, signs or other advertising space, or otherwise, howsoever, which by the false or misleading character or purpose thereof, or by the nature and character of such advertising or lettering, as aforesaid, are calculated to mislead or deceive the customers of The Safe-Cabinet Company, intending purchasers, the public or the trade into the belief that the goods sold, or offered for sale, or so advertised by the plaintiff in error, The Globe-Wernicke Company and its officers, agents, servants, employes, or any one acting or claiming through or under them, or by their authority, are the product of The Safe-Cabinet Company, the defendant in error, and from every violation of said rights of the defendant in error, and from all acts constituting unfair trade or unfair competition in connection with or in respect to the business and trade of the defendant in error, The Safe-Cabinet Company, as found by the court of appeals herein.

It is further ordered that the Master heretofore designated and appointed by the court of appeals be and he hereby is directed to take the testimony of witnesses, make examination of all documents, books and papers that may in any manner aid or enable him to state an account between said parties, plaintiff in error and defendant in error, of the gains and profits made by The Globe-Wernicke Company, plaintiff in error, by reason of the sale by it of metal containers such as that exhibited in “Plaintiff’s exhibit, defendant’s cabinet” by the said acts of unfair competition in trade found by the court of appeals, together with such damage or damages as the defendant in error, The Safe-Cabinet Company, may have suffered by reason of the wrongful acts in that behalf on the part of The Globe-Wernicke Company, plaintiff in error; and for that purpose the Master is hereby authorized and empowered to subpoena witnesses with or without a duces tecum, and to compel the attendance of witnesses and the production of books, papers and other documents, and in the event of the non-compliance with any such subpoenas or orders, to certify the same to the court of appeals to be dealt with according to law; said Master is further ordered and directed to make a separate finding of fact and of law from the testimony and the law applicable thereto, and to report the testimony so taken, together with his findings of fact and. of law, to the court of appeals without unnecessary delay.

With the modifications herein made, the judgment, order and decree of the court of appeals herein is affirmed. — Reporter.