DE LONG HOOK & EYE CO. v. FRANCIS HOOK & EYE & FASTENER CO.

DE LONG HOOK & EYE CO. v. FRANCIS HOOK & EYE & FASTENER CO. (Circuit Court of Appeals, Second Circuit. March 7, 1906.) No. 260. Teade-Marks and Trade-Names — Unfair Competition — Similitude in Dress of Goods. Certain forms and styles of cards, used by defendant and containing hooks and eyes of its manufacture as dressed for market, held not to have such similitude to those of complainant as to constitute infringements or to make a case of unfair competition, and others held to infringe. Appeal from the Circuit Court of the United States for the Western District of New York. For opinion below, see 139 Fed. 146. Edmund Wetmore and W. C. Strawbridge, for appellant. C. E. Rushmore, for appellee.. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. We have carefully examined the proofs in this case, which involves merely a question of infringement. That question turns upon numerous details, varying in different exhibits, and it would not be profitable to enter into a minute discussion of the evidence. We think complainant’s Exhibit No. 6, being the one with center label “See that hump” printed in red, is thereby differentiated so much from the cards of the defendant that the latter have not’ a sufficient similitude to constitute them infringements of such card (Exhibit No. 6). And the decree should be modified accordingly, as the defendant has not infringed as to them. The decree is further modified in so far as it enjoins the white cards bearing white hooks of the “Adelaide,” “Niagara,” “Waldorf,” and “Astoria” brands, since they are differentiated by their color from complainant’s cards, which are blue. We are also of opinion that defendant’s Niagara cards with the black hooks are sufficiently differentiated in details of collocation from complainant’s cards to escape the charge of infringement. We are also of the opinion that cards of defendant, which do not otherwise infringe, do not become infringements merely because defendant affixes invisible eyes to them in the way shown in the Ex-' Mbit “C. C. A. No. X March 1906,” filed with this opinion. With these modifications, we affirm the opinion below, without costs to either party.