Steiff v. Gimbel Bros.

COXE, Circuit Judge. The question involved upon this appeal is a close and interesting one but in view of our former decision in Steiff v. Bing, involving animals identical in appearance, we think the burden should be upon'the defendants to prove that the animals which they purchased from Bing, were not copied from those designed by the complainant. In other words, these defendants should not be permitted to sell to the public the toys which we held could not be sold by their vendor, until they have proved by witnesses who can be cross-examined-that their animals were made without any aid from the complainant’s animals. So far as the present record is concerned, we have little doubt that the person who designed the animals sold by the defendant had before him similar animals 'designed by the complainant’s employes. The similarity is too great, even in minute details, to be the result of accident. In this way Bing has dispensed with original research. It has not been necessary for him- to employ persons of originality and genius. Mere copyists and mechanics were all that he required. In this case, as in the former case, we cannot avoid the conclusion that the Birig toys were made with the Steiff toys as models. The small points of difference such as placing the orange patch of the terrier on the right instead of the left side rather accentuates the intent to get all of the advantages of the complainant’s design without expending any original thought or labor thereon. To state the situation in a few words, we think that after a preliminary injunction has been sustained by this court, the sale of the prohibited goods which are in all respects similar to those condemned should cease until the defendant has proved by witnesses who can be cross-examined that the defendant’s goods were not copied from the complainant’s. It may be that it can do this, but until it does it should suspend its sales. Enterprise Mfg. Co. v. Landers, Frary & Clark (C. C.) 124 Fed. 923; on appeal 131 Fed. 240, 65 C. C. A. 587; Yale & Towne Mfg. Co.' v. Alder, 154 Fed. 37, 83 C. C. A. 149. The order is reversed.