Substantially the only point at which the defendant contends that infringement of these two patents is avoided is that in its modified construction the hinge of the flap plate is not located above the axis of the keys. The Kroenlein claims in suit call for the hingeable mounting of the flap plate 'above and in proximity to the fulcrum mounting of the several key levers.' The Hardick claim in suit says, 'said flap plate having its hinge mounting at one of the edges above and in proximity to the fulcrum mounting of the several key levers.' To avoid infringement and, possibly, better to hold the keys in position (although I do not see just how it does this) the defendant put the hinge of its flap plate five-thousandths of an inch below the fulcrum mounting of the keys and now rests its claim of noninfringement on this five-thousandths of an inch difference, admitting that it would infringe if the hinge were the smallest fraction of an inch above.
It is hardly necessary to resort to the doctrine of equivalents to find infringement. The maxim de minimis might also well apply. Provided the hinge of the flap plate is in close enough proximity to the key levers near their fulcrum, the whole matter of its precise location, up or down, has not the slightest effect upon the way in which it performs its function of tensioning and holding the keys in place. It might be quite otherwise if this were a precision instrument but it is a child's toy and it seems to me that in spite of a departure invisible to the naked eye the infringement is clear.
The plaintiff, Western, is a manufacturing corporation with its plant at Jackson, Michigan. Prior to 1945 its business had consisted of making parts for other manufacturers and it had never made a finished article of any kind for sale to the public. Kamkap, Inc., was an incorporated sales organization having its place of business in New York.
In the latter part of 1945 Western and Kamkap (the latter originally acting in conjunction with a corporation called Cinderella Mfg. Co.) made arrangements for the manufacture and marketing of toy cash registers. Western acquired the Berry patent, which the inventor had been trying unsuccessfully to exploit for 14 years, and Cinderella, backed by Kamkap, advertised and marketed some 100,000 units during the years 1945 and 1946.
At the end of 1946 Cinderella dropped out and Kamkap continued to market the item. It contracted to buy from Western 475,000 units to be shipped in monthly installments during the year 1947 and Western agreed to ship direct to Kamkap's (the 'purchaser's') customers and not to sell the toy or any other toy to anyone other than Kamkap.
During 1947 Kamkap sold, principally to jobbers, chain stores and mail order houses, 335,000 units- a volume of business apparently highly satisfactory and profitable to Western.
At the end of 1946 Western, having come to the conclusion that it would be more profitable to get rid of Kamkap and sell directly, refused to renew the contract for the following year, as it had the right to do, and thereafter sold through another agency.
Faced with the loss of its source of supply and the profitable market which had been built entirely through its efforts, Kamkap promptly made arrangements with the defendant Kemline, a manufacturing corporation controlled by it, to make toy cash registers for it and, by May, 1948, was selling in competition with Western. It is this competition which Western seeks in this action to restrain as unfair.
Western bases its case chiefly upon what it alleges is a confusing similarity in the appearance of the two toys, charing that the defendant deliberately copies the plaintiffs' for the purpose of appropriating its goodwill. The trouble with this contention is that there is no evidence of any association in the mind of the public between the dress and appearance of the goods and Western as the manufacturer. During 1945 and 1946 the toys were sold under the trade name 'Tom Thumb' and a trade-mark in the form of a decalcomania on the base of the cash registers was used which prominently displayed that name and also 'Cinderella Mfg. Co., Jackson, Michigan.' During 1947 the same decalcomania was used except that 'Kamkap Inc.' appeared instead of 'Cinderell' and also the words, 'Factory, Western Stamping Co., Jackson, Michigan.' On some, but not all, the metal base was stamped with Western's name but very faintly so as to be hardly distinguishable without the aid of a glass. During 1947 Kamkap had a Post office address at Jackson, Michigan. There is no evidence that Western ever spent any money in advertising the toy, in connection with its own name or otherwise.
Since the end of 1947 Kamkap has not used the Tom Thumb trade-mark or trade name or anything like it. Western has continued to use the trade name and, I believe, the trade-mark without the name of Kamkap. I am satisfied that at no time did Kamkap intend its buying public to believe that its machine was manufactured by Western. The most extreme inference which can be drawn from the plaintiffs' evidence, if it is all accepted as true, is that Kamkap made no effort after the termination of its contract with Western to advise buyers that the cash registers which it was selling were now being made by a different manufacturer.
Kamkap did display some Western cash registers at the New York toy show in 1948, after the relation between the parties had been broken, but it still hand a large number of Western's machines, which it had the right to sell, and there is no evidence that it used these samples to take orders for the machine manufactured by Kemline.
In an action to restrain unfair competition based almost entirely on an alleged similarity in the appearance of goods the plaintiff must show that the appearance of the goods has acquired a clearly secondary meaning and come to mean his goods. 63 C.J., page 455. There must be some appropriation of or injury to the plaintiff's intangible property in his good will and business reputation- at least in the absence of evidence of flagrantly fraudulent intent. As a matter of fact, Western's real grievance is that Kamkap is competing with it and causing it to lose sales in a field in which competition is free. It would not be of the least help to Western for the Court to require Kampkap to mark its goods 'Not manufactured by Western Stamping Co.' and yet that is about as far as the Court could go in a case like this. With the exception of the order in which the numerals appear on the keys, whatever copying has been done is in functional and structural features. The color red is particularly adapted to children's toys and is certainly open to use by all.
The conclusion is that the cause of action for unfair competition cannot be sustained.
An order for judgment in accordance with the foregoing may be submitted.
© 1992-2004 VersusLaw Inc.