DERK MFG. CO. v. NORTHAMPTON TEXTILE CO., 40 F.2d 266

BUFFINGTON, Circuit Judge. This case arises out of a motion for a preliminary injunction to prevent alleged infringement of a design patent for a small table cover. The judge found the identity of the defendant’s and the plaintiff’s table scarfs. -We entirely agree with that conclusion. He found, however, that neither the plaintiff’s nor defendant’s scarfs were made to resemble the design patent and refused the injunction. Thereupon this appeal was taken. We are of opinion the injunction should have been granted.

The border surrounding defendant’s mat is a minor part of its design, but the eye-cateh elements of the inner part of the mat stand out in bold relief and embody the characteristic and distinguishing features of the design patent. Turning to the dominating elements of such patent we find that, with the exception of the supporting branches covered with leaves, which neither manufacturer has in his design, the defendant has copied the distinguishing features of the design patent in the minutest details.

The central figure has the exact diamond-shaped ornamentation of the design patent, and its arched border around such diamonds is identical. It has also the seven shell-like characters at the bottom. Surmounting the described diamond-shaped part, defendant has two branching scrolls, and between them is an exact reproduction of the interior form of decoration of the design patent. Above the diamond-shaped figure and within the said scrolls is an um-like structure, the interior of which is identical with the design, as also are its two side projections and as well the foliated structure on the top.

They all are copied with minute exactness from the design. On either side of this latter figure are the large enveloping scrolls, which are reproduced in every detail, and leading up from the scroll is an arched figure, which, with its interior decoration, the defendant has also copied. These different elements, all of which go to make a dominating impression or the high lights, so to speak, of the design are found in the defendant’s structure. We think it is a ease where injunctive relief should be granted.

The record will, therefore, be remanded to the court below, with instructions to enter such injunction pending the further hearing of the case. Before sending down the mandate, counsel have leave to appear before us within ten days to aid in settling the amount of the injunction bond required by us to be given by the plaintiff.