O'Sullivan Rubber Co. v. Genuine Rubber Co.

287 F. 134, 1923 U.S. App. LEXIS 2314

• Court: Court of Appeals for the First Circuit
• Decided: February 13, 1923
• Docket: No. 1601
• Status: Published

Opinion

PER CURIAM.

After giving due consideration to this case, we are of the opinion that the plaintiff is entitled to an injunction restraining the defendants as follows:

From manufacturing, distributing, selling, or offering for sale, or having in their possession:

• 1. Any rubber heels having the design or arrangement of the words and letters of the heels - attached to the bill of complaint and marked “Exhibit F, Defendants’ Heels,” or any colorable modification thereof.

2. Any heel boxes having the appearance, color, and verbal and pictorial design and lettering of the box attached to the bill of complaint herein and marked “Exhibit G, Defendants’ Box,” or any colorable modification thereof.

3. Any rubber heels bearing upon them, in curves as on plaintiff’s heel, Exhibit A, the words “Safety Cushion,” or either of them, whether or not in combination with the word “Genuine” or any other word. The size and character of the type used shall bear no resemblance to that on plaintiff’s heel, Exhibit A, and the word “Genuine,” if used, shall be accompanied by the words “The” and “Co.’s.,” to read “The Genuine Co.’s.”

4. Any boxes or containers or cartons of the color of plaintiff’s box, Exhibit D, attached to the bill of complaint herein, or of defendants’ box, Exhibit G, attached thereto, or of any color resembling the color of plaintiff’s said box, or any boxes, containers, or cartons having upon them a picture of a rubber heel and a slanting bar or panel.

5. Any boxes or containers bearing the word “Genuine” in combination with the words “Safety Cushion,” or either of them, unless the word “Genuine” is accompanied by the words “The” and “Co.’s.,” to read “The Genuine Co.’s.”

The District Court has found, upon the taking of testimony, that there is no probable cause to believe that an accounting would show damages and profits that would bear any reasonable proportion to the cost and denied an accounting.

We see no occasion to disturb the finding, and, as it disposes of this branch of the case, it is unnecessary to consider the questions discussed by counsel in their briefs and at the argument. G. & C. Merriam Co. v. Ogilvie, 170 Fed. 169, 95 C. C. A. 423.

The decree of the District Court is vacated, and the case is remanded to that court, with directions to enter a decree in accordance with this opinion; neither party recovers costs in this court.