here (defendants' Exhibits B-1 to B-12). Under such circumstances we think that defendants' use of the Glen Raven opinion, particularly since its use had been advised by counsel, was justified and proper.
(c) By inserting their announcement in the Women's Wear Daily the defendants again demonstrated their fair attitude toward all those deemed to be infringers. The defendants in said announcement offered to release wholesalers and retailers, not already involved in litigation, from liability for past infringement of the Bley Patent upon their mere assurance that they would cease further sales of infringing hosiery.
Conclusions of Law
1. The defendants as owners of the Bley Patent have the legal right to notify infringers of their (defendants') patent rights and to warn them that unless they cease their acts of infringement measures will be taken to protect and enforce said patent rights.
2. The defendants not only have the right to notify and to warn infringers at the wholesale and manufacturer levels but also to notify and warn infringers at the retail level. Birdsell v. Shaliol, 112 U.S. 485, 5 S. Ct. 244, 28 L. Ed. 768; Triangle Conduit & Cable Co., Inc. v. National Electric Products Corporation, 3 Cir., 138 F.2d 46.
3. No limitation is placed on the right hereinbefore mentioned except that the defendants are forbidden to act in bad faith with the sole purpose of driving plaintiff out of business. A. B. Farquhar Co. Ltd. v. National Harrow Co., 3 Cir., 102 F. 714; Virtue v. Creamery Package Mfg. Co., 8 Cir., 179 F. 115, affirmed 227 U.S. 8, 33 S. Ct. 202, 57 L. Ed. 393; Clip Bar Mfg. Co. v. Steel Protected Concrete Co., D.C., 209 F. 874, affirmed 3 Cir., 213 F. 223; Wallerstein v. Christian Feigenspan, Inc., 215 F. 919; Aralac, Inc. v. Hat Corp. of America, 3 Cir., 166 F.2d 186 and Cheney Co. v. Cunningham, D.C., 37 F.Supp. 224.
4. The plaintiff failed to meet its burden of establishing that defendants' notices to plaintiff's retail customers were given in bad faith with the intention of destroying plaintiff's business.
5. Accordingly, the motion of plaintiff for preliminary injunction will be denied.
6. In view of the within holding it will be unnecessary to determine whether or not defendants' conduct has caused or will cause damage to plaintiff's business.
An order denying the motion of plaintiff for preliminary injunction will be prepared and submitted.
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