VAN KANNEL REVOLVING DOOR CO. v. AMERICAN REVOLVING DOOR CO., 215 F. 582

MACK, Circuit Judge. This is an appeal from a decree denying a preliminary injunction and, on motion, dismissing a bill of complaint. The bill sought to gain protection against the use by' defendant of a certain geometrical figure, the phrase “Always closed,” and a certain picture, in connection with the manufacture and sale of revolving doors.

It alleged that the geometrical figure or design was a valid trademark owned by plaintiff, used by it for years in connection with its advertising matter and applied by it to revolving doors; that the phrase “Always closed” had for eight years been used by it as a trade-name or trade-mark in its advertising and had been impressed on the doors themselves; that for years it had used a certain picture of a revolving door in place, as shown in its copyrighted catalogue attached as an exhibit to the bill, which, it was alleged, had become identified in the minds of architects, builders, and the public with its (the plaintiff’

s) doors. The alleged wrongdoing consisted in the use by defendant of the design, phrase, and picture, as shown in the following cut, published by the defendant in a trade periodical. The picture of the door here shown is similar to that in the plaintiff’s catalogue.

It was agreed on the hearing for preliminary injunction that plaintiff had owned and conducted its business under a certain patent for revolving doors until the patent expired some years before the advertisement in question, and it was alleged in the bill that a consent decree had theretofore been entered against defendant for infringment of this patent. Appellant urges that the bill is good as alleging; First. Infringement of a trade-mark, the geometrical design. Second. Infringement of the trade-mark or trade-name “Always closed.” Third. Ünlawful simulation qf the picture.

None of these contentions Can be upheld for the following reasons: First. Even if the geometrical figure used by defendant be deemed substantially similar to plaintiff’s, both are mere cross-sectional views of the door of the expired patent and, except that they indicate four instead of three doors, are practically identical with one of the illustrations (Figure 3) of the patent. Inasmuch as defendant may now make the door, it,may illustrate it in its advertisements.

It is therefore unnecessary to consider whether a design of this character, not arbitrary or fanciful, but in a sense illustrative of the thing itself, could, in any event, be protected as a trade-mark. Second. The words “Always closed” are clearly merely descriptive of a revolving door in place and performing its proper function. Third. The picture shows only a conventional revolving door, one that defendant may make and therefore may illustrate. Fourth.

While, therefore, plaintiff can have no exclusive rights in design, phrase, or picture, nevertheless it is entitled to protection against such use of them by defendant as would constitute fraudulent or unfair competition with it. The bill alleges that “by its wrongful acts above set forth the defendant has diverted to itself trade and custom to which plaintiff was entitled and that it otherwise would have received.” Clearly this is insufficient to sustain a bill to restrain unfair competition.

Defendant’s acts, as set forth in the bill, are not wrongful and cannot be made so by mere characterization; the trade is open to all honest competition; that plaintiff “was entitled” to it does not negative defendant’s equal right to secure it by lawful means. The decree must therefore be affirmed.