Gorham Mfg. Co. v. Di Salvo

HAZED, District Judge. What has already been said in the actions against F. & M. Weintraub (post) and against A. Schmidt & Son (196 Fed. 955), regarding the validity of complainant’s trademark and infringement, applies in this action. The defendants, besides selling silverware, keep an antique shop. It is quite believable that connoisseurs in silverware, when seeing the complainant’s trade-mark impressed on what they assume to be a secondhand piece of silverware, would be misled into buying it in the belief that it was complainant’s production. It is not altogether unlikely that a dealer in secondhand silverware might have in his possession silverware spuriously marked without his knowing it, or having a dishonest intention to palm it off for something different than it really is. It is shown without contradiction, however, that the defendants have on sale in their store a large quantity of silverware, and that upwards of 40 pieces of various sizes, at the time of the examination by complainant’s lawyer, bore the counterfeit marking of the trade-mark in question. It is evident that the complainant’s witness was not deceived by the sale to him, as presumably he was aware that he was not receiving genuine silver, or, at least, silver of the fineness of complainant’s manufacture ; yet, as the record stands, it may fairly be supposed that the defendants will sell the spurious product for the genuine unless restrained. There is no evidence showing that the silver-plated articles in the defendants’ store came from F. & M. Weintraub; but, nevertheless, under the doctrine of Gannert v. Rupert, 127 Fed. 962, 62 C. C. A. 594, and Florence Manufacturing Co. v. J. C. Dowd & Co., 178 Fed. 73, 101 C. C. A. 565, proof of confusion, deception, or injury to any marked extent is unnecessary, and complainant is entitled to protection from threatened infringement. Lever Bros. v. Pasfield (C. C.) 88 Fed. 484; Low v. Fels (C. C.) 35 Fed. 361. A decree of injunction may be entered, without an accounting.