Robinson v. S. & B. Lederer Co.

BROWN, District Judge. The complainant’s evidence fails to show a violation of the injunction by any of the individual defendants. It establishes, however, the fact that the defendant corporation, since the granting of the preliminary injunction, has sold watch chains to which were attached swivels that infringe the complainant’s patent According to the weight of evidence, the violation of the injunction was not willful or intentional. The value of the swivels is so small that there appears to have been no pecuniary motive for a deliberate 994 violation of the injunction. Nevertheless, it was the duty of the defendant to take effective measures to prevent a confusion of goods manufactured before the injunction with those made or sold after-wards, and, as it has failed to do so, carelessness or oversight cannot serve as an excuse, though it may be considered as affecting the amount of the penalty. The case of Westinghouse Air Brake Co. v. Christensen Engineering Co. (C. C.) 121 Fed. 562, seems to be directly in point. As the injury to the complainant, in whose favor the injunction was granted, gives a remedial character to the contempt proceeding, and as the punishment is to secure to the complainant the right which the court has awarded him (see Bessette v. W. B. Conkey Co., 194 U. S. 324, 328, 329, 24 Sup. Ct. 665, 48 L. Ed. 997; Robinson on Patents, § 1219), I am of the opinion that, while the penalty should be such as will induce greater carefulness in the future, it should be measured by the amount of damage which the complainant has sustained through the defendant corporation’s disobedience together with the costs and legal expenses incurred by the complainant upon this application. In case the amount cannot be agreed upon by counsel, the amount will be fixed upon further hearing. An order may be entered accordingly.