The opinion of the court was delivered by: SCHOONMAKER
1. Plaintiff, Simmons Company, is a Delaware corporation.
2. Defendant Royal Bedding Company is a copartnership composed of defendants Max Cantor and Max Yahr.
3. Defendants Max Cantor and Max Yahr are persons residing in the Western District of Pennsylvania.
4. For many years plaintiff has been engaged in the manufacture of bedroom furniture and furnishings, including mattersses, which said articles for many years last past have been distributed and sold by the plaintiff throughout the United States, including the Western District of the state of Pennsylvania.
5. In the year 1925, plaintiff invested large sums of money in special equipment and facilities for manufacturing inner spring construction mattresses of high quality, and on or about June 10, 1925, selected as a name for said mattresses the arbitrary and distinctive mark "BeautyRest," which mark plaintiff applied to labels sewn to the outer covers of said inner spring construction mattresses. Said mattresses so marked and labeled during the past eight years have been shipped by plaintiff from various manufacturing points in the United States to all states of the Union, including the state of Pennsylvania.
6. Between one and two millions of said mattresses bearing plaintiff's "BeautyRest" label have been sold and shipped by plaintiff throughout the United States since the year 1925, and plaintiff has expended over $4,000,000 in extensively advertising and otherwise promoting the sale of said mattresses, bearing the "BeautyRest" mark.
7. The value of the said trade-mark "BeautyRest" to the plaintiff may fairly be estimated as approximating the amount expended in advertising the same.
8. In its advertising of said "BeautyRest" mattresses, plaintiff has always prominently featured the suggested retail price, which said retail price since about the year 1928 plaintiff has always placed prominently on the label of its mattress. Said suggested retail price between June, 1925, and January 1, 1932, was always $39.50, and the wholesale price was about $20. On or about January 1, 1932, the suggested retail price of the "BeautyRest" mattress was lowered to $33.75.
10. The trade-mark "BeautyRest" in connection with mattresses was registered by plaintiff in the United States Patent Office under the Act of February 20, 1905, as amended (15 USCA § 81 et seq.), on January 12, 1926, certificate No. 207,821, and plaintiff is the sole and exclusive owner of the said registration.
11. The defendants, since June 1, 1932, have manufactured in the state of Pennsylvania about 250 mattresses to which they have applied a woven label not bearing the name of any manufacturer or vendor, but bearing prominently the word "Beauty Sleep," price $39.50. In no place did said mattresses of defendants bear the name of any manufacturer.
12. Between June 1, 1932, and November 10, 1932, defendants sold some of said mattresses to concerns located outside of the state of Pennsylvania and said mattresses were shipped by defendants from the state of Pennsylvania to the establishments of said purchasers in other states. About 250 ...