224
84 FEDERAL REPORTER.
"There Is no such diversity of the subject-matter embraced In the assault upon the two patents that they cannot be conveniently considered together; and although it may be possible that one patent may be sustained, and the other may not, yet it is competent for the court to make it. decree in conformity With such finding. It seems to us in every way appropriate that the questlon.of the validity of the two patents should be considered together."
With the adjudications to which I have referred, and the principle which they plainly enunciate, in mind, I have carefully examined the present bill, in connection with the printed books and papers, which, upon the argument, it was agreed should be taken to constitute a part of the bill itself. This examination has led me to the conclusion that there is no reason fo.r SUppOsiL'g that the infringement cbarged of the several copyrights in question, as well as of the alleged tradename or trade-mark, and, in short, every subject-matter proposed for investigation, may not conveniently, and most conveniently, be considered together; and, if each of the alleged iLfringements had been made the subject of a separate suit, it is, I think, very doubtful, at least, whether it would not have been the duty of the court to decline to entertain such separate suits, without requiring their consolidation. Case v. Redfield, 4 McLean, 529, Fed. Cas. No. 2,494. I do not deem it necessary to decide the particular point presented by the fourth assignment. Whether or not the allegation ill' the bill that the copyrighted books are capable of conjoint use is "obviously untrue," or, if. true, is of any materiality, are questions upon which my judgment is to no extent based. It rests upon the broader consideration which I have, I think, sufficiently adverted to. The demurrer is overruled, with leave to answer sec. reg.
HARPER et al. v. HOLMAN et al.
(Circuit Court, E.· 'D. Pennsylvania.
December 29, 1897.)
1. 2.
EQUITY-PRELIMINARY INJUNCTION-WHEN GRAN'l'ED.
A preliminary injunction will not be awarded except in a plain case.
EQUITY-PRELIMINARY INJUNCTION-UNFAIR COMPET1TION-TITLE TO BOOK.
Although a preliminary injunction will not be awarded where, in the opinion of the court, an alleged infringement of copyright by tbe defendant, in the text of a book pUblished apd sold by him, has not been so clearly established as to exclude substantial doubt, yet the defendant will be restrained pendente lite from making use of a title to his publication which in its "essential portion" imitates the title of the complainants' publication in a manner adopted for the purpose of misleading and calculated to mislead ordinary purchasers. USE OF COMPJ,AINANTS' TITLE.
S.
In such a case the prior use of the "essential portion" of the title of · complainants' book is not a valid objection to the exclusive right claimed by the complainants.
This was a suit ill' equity by Harper & Bros. against William A. Holman and others, trading as A. J. Holman & Co., for alleged infringement of complainants' right in the name of a book, and also for an infringement of their copyrights. A demurrer to the bill was heretofore overruled. See 84 Fed. 222. The cause is now heard upon a motion for a preliminary injunction.
HARPER V. HOLMAN.
225
George L. Rives, Josiah R. Sypher, and Augustus T. GurUtz, for complainants. Hector T. Fenton, for respondents. DALLAS, Circuit Judge. The plaintiffs have moved for an injunction pendente lite to restrain the defendants-First, from continuing an alleged violation of oo-pyright; and, second, from using, in cunnection with any book whatever, the name or designation "The Fram ExpeditioD'-Nansen in the Frozen World." 1. A preliminary injunction will not be awarded except in a plain case; and, upon careful consideration of the proofs as now presented, I cannot say that the infringement of copyright alleged has been so clearly established as to exclude substantial d{mbt upon that subject. It must not be supposed that I have reached a final conclusion upon this matter; but, while I deem it inexpedient to enter at this stage upon a discussion of the question, I may say that I am not now entirely satisfied that the text of the defendants' publication was not derived from sources which they were at liberty to use. 2. But, even upon the assumption that the defendants may lawfully put their volume unon the market in competition with those of the plaintiffs, equity requires such oompetition to be fair, and that the work of the defendants shall not be so named, advertised, or offered for sale as to indicate that it is that of the plaintiffs. McLean v. Fleming, 96 U. S. 245; Estes v. Williams, 21 Fed. 189; Estes v. Leslie, 27 Fed. 22; Association v. Howard, 60 Fed. 270. The titles of the conflicting books are not ideL'tical, and it is not necessary that they should be; but in that part which may we]] be called, in the words of Mr. Justice Clifford, the "essential portion," the imitation is manifest, and in connection with the other facts proved, especially as to the method of sale adopted by the defendants, and their instructioL.s to their agents, is certainly such as would, I think, lead ordinary purchasers of the defendants' book to suppose that they were buying that of the complainants; and it is difficult to escape conviction that this result was foreseen and intended. McLean v. Fleming', supra; Estes v. Leslie, supra; Manufacturing Co. v. Trainer, 101 U. S. 65 et seq., per Clifford, J., dissenting. The prior use of the words "Farthest North," as shown, is not a valid objection to the exclusive right now claimed by the plaintiffs (Estes v. Worthington, 31 Fed. 1540); and the doctrine of the cases with respect to the use of words or names which are descriptive of quality and the like is ir..applicable. The title used by the plaintiffs is, as is usual, indicative of the nature and contents of their book; but the defendants' imitation of it is applied to a volume which it does not aptly designate or describe, and its selection, instead of one more appropriate, can effect no object but to mislead purChasers, and deprive the plaintiffs of the reward earned by their enterprise and expenditures. A decree for a preliminary injunction, in accordance with this opinion, will be entered. 84F.-15
84 FEDERAL REPORTER. THE H. C. GRADY. BLACK DIAMOND COAL-MINING CO. v. THE H. C. GRADY (LOUGH· ERY,
(District Court, N. D. California. COSTS IN ADMIRALTY CASES-DoCKET FEE.
Where a number of libels against the same vessel are copsolidated, and heard at the same time, and represented by the same proctor, but one proctor's docket fee should be allowed.
This was an intervening libel by Frank Loughery in the cause of the Black Diamond Coal-Mining Company against the steamer H. C. Grady. The suit was consolidated with various others against the same vessel, and all were heard together. The cause is now before the court on exceptions to the action of the clerk in disallowing a docket fee for the intervener's proctor. D. T. Sullivan, for intervener. DE HAVEN, District Judge. This suit having been consolidated with others against the steamer H. C. Grady, and final hearing in all of said actions having been had at the same time, but one proctor's docket fee should be allowed in the cases represented by the same proctor. The Medusa, 47 Fed. 821. The exceptions to the action of the clerk in disallowing docket fee for proctor of said intervener are overruled. NATIONAL HARROW CO. v. HENOH et al.
(Circuit Court, N. D. New York.
January 3, 1898.)
MONOPOLIES-COMBINA'l'ION 011' PATENT OWNI£Rs-INFRINGEMENT SUIT.
A combination among manufacturers of spring-tooth harrows, whereby a eorporation, organized for the purpose, becomes the assignee of all patents owned by the various manUfacturers, and executes licenses to them, 80 as to control the entire business and enhance prices, is void both as to the assignments and licenses, so that the corporation cannot maintain a suit against one of its assignors who violates the agreement, for Infringement.
This was a bill in equity by the National Harrow Company against Samuel N. Hench and others for alleged infringement of a patent. Risley & Love, ror complainant. Co()kinham, Sherman & Martin and Strawbridge & Taylor, for defendants. COXE, District Judge. This is an equity suit for the infringement of letters patent, granted to the defendants and by them assigned to the complainant. The bill is in the usual form. The demand is for an injunction and an accounting. The plea alleges that the defendants assigned the letters patent in question to the complainant as part of an unlawful agreement, which was void as in restraint of trade and as against public p<>licy, and that it was declared void by the