The opinion of the court was delivered by: WELSH
On September 19, 1951, the motion of plaintiff for preliminary injunction was argued and submitted to the Court for decision. Now the Court, after examining the briefs and the whole record, makes the following
1. Plaintiff, Sharnay Hosiery Mills, Inc., is a manufacturer of ladies' hosiery.
2. Defendants are the owners of United States Letters Patent No. Des. 151,732 issued November 16, 1948 for a design for ladies' hosiery, said patent being hereinafter referred to as the Bley Patent.
4. After joinder of issue the instant motion to enjoin defendants from threatening or otherwise annoying or harassing it (plaintiff) or its retail customers was filed.
5. Defendants' Exhibit H-1 is representative of stockings made and sold by defendant, Sanson Hosiery Mills, Inc., under the Bley Patent. It appears from the affidavits, requests for admission, etc., that plaintiff's Exhibit A and defendants' Exhibits B-1 to B-12 inclusive are representative of some of the different styles of stockings made and sold by plaintiff, Sharnay Hosiery Mills, Inc.
6. Defendant, Sanson Hosiery Mills, Inc., sells the patented stockings under its registered trade-mark 'Picturesque' and 'Picture Frame Heel'.
7. Prior to the appearance of the stockings of the Bley Patent on the market, nearly all stockings worn by women embodied a conventional type of heel and foot-sole reinforcement having at the back thereof either a plain rectangular or triangular configuration or a patch tapering upwardly to a narrow top. The Bley invention revitalized the old conventional reinforcement, bringing out its latent possibilities and converting it into an attractive design. What had heretofore constituted a mere wear-resistant reinforcement, largely functional and often relatively unsightly in appearance, was transformed into an ornamental feature of such appeal to the purchasing public that it was an immediate success.
8. Following the success of the Bley stocking and the wide public acceptance thereof, numerous infringements appeared throughout the country. The infringements have been so extensive that the patent owners have been compelled to take vigorous action in order to protect their rights under the patent. Accordingly, the defendants have notified all persons deemed to be infringers of the Bley Patent of their patent rights, and have brought numerous infringement suits.
9. In many instances retail establishments have been responsible for the widespread infringement of the Bley Patent, and accordingly such retail establishments have been notified of defendants' patent rights.
10. In general the infringement notices sent by defendants have not been directed to the customers of particular manufacturers, nor have they been limited to particular styles or designs of alleged infringing hosiery. Such notices have been sent to all persons deemed to be infringers of the Bley Patent, wherever found.
11. At the time of the hearing on the instant motion forty-three suits brought on the Bley Patent had been terminated by the entry of consent judgments decreeing the patent to be valid and infringed. The defendants in said forty-three suits have paid substantial sums to the defendants herein as liquidated damages. Additionally, the patent has been litigated and found to be valid and infringed in the case of Sanson Hosiery Mills, Inc., v. Glen Raven Knitting Mills, Inc., D.C., 95 F.Supp. 134 and 4 Cir., 189 F.2d 845, 847.
12. In the opinion of Judge Soper in the aforementioned suit against Glen Raven, the following statement appears: 'Thirty-eight photographs on exhibit show unabashed attempts to copy, and most of them do not display even an attempt to introduce a subtle variation to the design.' One of the thirty-eight photographs thus referred to by Judge Soper (plaintiff's Exhibit G-30 in the Glen Raven case; defendants' Exhibit B-12 in the instant case) is a photograph of a stocking of the type made and sold by plaintiff, Sharnay ...