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crued at the time the motion was made and to remand the second cause to the Supreme Court of the state of New York; the costs to be paid by the defendant railroad company.
COXE, Circuit Judge, dissents.
WARREN et ux. V. OREGON & W. R. CO. et al. f
Under Laws Wash. 1899, p. 299, § 18, as construed by the Supreme Court of the state, a tax deed is prima facie evidence, not only of the validity of the deed and order under which the sale was made, but also of the regularity of all prior proceedings.
[Ed. Note. For other cases, see Taxation, Cent. Dig. $$ 1556–1569; Dec. Dig. $ 789.*] Appeal from the Circuit Court of the United States for the Western Division of the Western District of Washington.
Suit in equity by A. R. Warren and Daisy W. Warren, his wife, against the Oregon & Washington Railroad Company and others. Decree for defendants, and complainants appeal. Reversed.
O. G. Ellis, John D. Fletcher, and Robert E. Evans, for appellants.
ROSS, Circuit Judge. This suit was commenced for the determination of conflicting claims to certain real estate situate in Pierce county, state of Washington; the complainants alleging their ownership of the property by virtue of two deeds executed by the treasurer of that county in pursuance of a sale of the property to them for delinquent taxes under and by virtue of a decree of the superior court of Pierce county, foreclosing a lien for taxes thereon. The answer of the defendants put in issue the alleged title of the complainants, but admitted:
"That the plaintiff A. R. Warren made a pretended purchase of said real estate, with other property, from Pierce county, a legal subdivision of the state of Washington, at a pretended public sale of real estate held on the 230 day of August, 1902, in the city of Tacoma, Pierce county, Washington, which sale purported to be held pursuant to a pretended real estate tax judgment entered in the superior court of the state of Washington for the county of Pierce on the 12th day of August, 1902, in proceedings to foreclose tax liens upon real estate in said county, being tax case No. 851 of the files of said court, and a pretended order of sale issued by said court, and that thereafter plaintiff A. R. Warren received from the treasurer of said Pierce county, Washington, a certain paper writing purporting to be a tax deed, and purporting to grant and convey to the said A. R. Warren, his heirs and assigns, forever, the real estate described in said first cause of action, together with other property, which deed was dated the 23d day of August, 1902, and filed for record on the 25th day of August, and was recorded in Book 190 of Deeds, at page 292, of •For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexos
| Rehearing denied March 11, 1910.
the records of Pierce county, Washington ; but this defendant denies that said pretended order of sale was duly issued, or issued at all, and denies that said pretended purchase by said Warren and sale by said county conveyed to said Warren, or to his coplaintiff, Daisy W. Warren, or their community, any right, title, or interest in said real estate, or any part thereof, and denies that any judgment was ever entered in said cause. That this defendant denies that under or by virtue of said pretended tax deed, or at all, plaintiffs, or either of them, became entitled to the possession of said real estate or any part thereof, and denies that at the time of the commencement of this suit, or at any time, plaintiffs, or either of them, were or are entitled to the possession of said premises, or any part thereof. That no certificate of delinquency of said property, or any part thereof, was ever signed, executed, or issued, or filed in the office of the clerk of said superior court, no valid service by publication or otherwise was ever made or had in said proceeding, and said superior court was without jurisdiction to make or render any judgment or order in said cause, and said tax proceedings, so far as they affect said property, and each and every part thereof, are null, void, and of no effect."
Similar denials and allegations are made in the answer in respect to the other cause of action stated in the bill, covering the other of the real property in controversy. The answer also set up the specific action and proceedings therein culminating in the judgment so questioned.
The complainants, to prove their claim of title, introduced in evidence the two tax deeds, but not the judgment or order of sale pursuant to which the sale was made. In giving judgment for the defendants the court below held, in effect, that the deeds constituted no evidence of any judgment or order of sale, and, consequently, that the burden rested upon the complainants to otherwise prove the validity of such judgment and order. In the absence of a statute regulating the effect of tax proceedings, that would undoubtedly be the correct rule; but there are statutory provisions in the state of Washington upon the subject, which, as construed by the Supreme Court of the state, would seem to hold that a tax deed is at least prima facie evidence, not only of the validity of the deed and order under which the sale is made, but also of the regularity of all former proceedings. See Laws Wash. 1899, p. 299, § 18; Laws Wash. 1897, p. 190, § 114; Laws Wash. 1875, p. 72, § 41; Ward v. Huggins, ? Wash. 620, 32 Pac, 740, 1015, 36 Pac. 285; Rowland v. Eskeland, 40 Wash. 253, 82 Pac. 599; Miller v. Henderson, 50 Wash. 200, 96 Pac. 1052; Carson v. Titlow, 38 Wash. 196, 80 Pac. 299. See, also, Ontario Land Company v. Yordy, 212 U. S. 152, 29 Sup. Ct. 278, 53 L. Ed. 449; Wilfong v. Ontario Land Company, 171 Fed. 51, 96 C. C. A. 293.
The judgment is reversed, and the cause remanded to the court below for a new trial.
E. B. ESTES & SONS V. GEORGE FROST CO.
(Circuit Court of Appeals, First Circuit. February 8, 1910.)
TRADE-MARKS AND TRADE-NAMES ($ 70*)—UNFAIR COMPETITION-FRAUDULENT
IMITATION OF PATENTED ARTICLE.
Complainant, as exclusive licensee, made hose supporters having a rubber button, which was protected by a patent covering the use of rubber as the material, and advertised and sold the same under the trade-name of “Velvet Grip." Defendant made wooden buttons for similar use, col. ored to imitate rubber and used by other manufacturers on hose supporters which were sold to the public as rubber button supporters, and some times as "Velvet Grip" supporters. Held, that such sales constituted unfair competition.
[Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. $ 81; Dec. Dig. $ 70.*
Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]
Appeal from the Circuit Court of the United States for the District of Massachusetts.
Suit in equity by the George Frost Company against E. B. Estes & Sons. From a decree granting a preliminary injunction, defendant appeals. Affirmed.
See, also, 156 Fed. 677.
Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.
ALDRICH, District Judge. In this case of alleged unfair competition it seems quite plain that the decree of the Circuit Court should be affirmed. The competition complained of has reference to the wooden buttons of the defendants which are finished in imitation of rubber. Manifestly, the purpose of finishing the buttons in rubber was to deceive an unsuspecting public into thinking they were buying the garter or hose supporter with the rubber button attachment. The precise ground upon which the Circuit Court based the decision was that the button was intended to simulate the plaintiff's patented article, and by reason of the simulation to replace it in the art; and we think that court properly characterized such an intention, carried into effect through manufacturing and placing the goods upon the market, as unfair competition and as a wrongful act, whether done before or after the expiration of the patent.
In respect to the question of deceit this case is within the principle of Church v. Proctor, 66 Fed. 240, 13 C. C. A. 426, and G. & C. Merriam Company v. Ogilvie, 159 Fed. 638, 88 C. C. A. 596, 16 L. R. A. (N. S.) 549, again, 170 Fed. 167, 95 C. C. A. 423, decided in this circuit, which fully recognize the idea that members of the public are
•For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
entitled to know what they are buying, and that a purpose to create imitations or similitudes calculated in themselves to deceive, or making false characterizations calculated to deceive, amount to an imposition, and that when a deceptive article is purposely brought into competition with the genuine it amounts to unfair competition.
The whole trend of modern decision is in the direction of making it clear, whether in respect to food, drink, or wearing apparel, that placing adulterations and imitations upon the markets, with the purpose of deceiving members of the public who buy, as they do oftentimes upon casual inspection, into buying something for what it is not, is a business which is not countenanced by the law, and when with such deceptive purpose things are brought into situations of competition with the genuine that the competition is unfair. Such rules of law are in a large sense based upon the idea that the public in its relation to business and business in its relation to the public, in respect to the necessary and useful articles of life and trade, ought to have such protection as results from fair competition. And it follows that if one business concern has created, advertised, and sold a particular thing which proves to have intrinsic natural or inventive merit, which commends itself to the public under actual continuous use, that if another business concern conceives the idea of making something not possessing this merit at all, but making it so nearly in resemblance as to deceive members of the purchasing public into buying it, it not only becomes an imposition upon the public, but an imposition upon the rightful business of the one whose goods are imitated, and the imposition results from what, in law phrase, is called unfair competition.
The particular article in question is used largely in connection with hose supporters and garters, and the particular thing of novelty was the rubber button, properly mounted, performing an intended function in connection with the other parts of the supporter. This button was mounted upon a plate, and the stocking, or whatever material was to be held, was drawn over the head of the button, and when the restricted part of the wire clasp, under slight strain, was drawn over the fabric and upon the neck of the button, the button being rubber, would yield, and, under its inherent resilient quality, would create a lock upon the material which was intended to be held. The invention relates solely to the rubber material and its introduction in the shape of a button into old structures. The cases relating to this patent are based upon that ground, and invention is sufficiently established by adjudicated cases. The patented button in its setting proved to be exceedingly useful and attractive to the trade, for the reason that it stayed in place and did not cut fabrics, as did the old metal and other button holders of hard substances.
It was the rubber feature that made it salable. The defendants, apparently discovering this, and having made buttons and other turnings of wood for many years, conceived the idea of making a wooden button and painting it, or enameling it, or coloring it in imitation of rubber, and putting it in the hands of manufacturers, to the end that it should get into trade in imitation of the genuine. Indeed, in a letter to the trade they say:
“We have succeeded in producing an excellent imitation of the rubber button, and so good in fact that it takes quite a close inspection to detect the difference.”
The fact that an inferior thing on the trade counters requires close inspection to detect it from the genuine goes a long way towards establishing its unfair influence in the market. If an unwary person, who was seeking to buy a hose supporter with a rubber button which would hold and not cut stockings or other fabric, was deceived, without close inspection, into buying one of wood made in imitation of rubber, which would cut, and which would not hold the stocking in place, that person would have been wronged through unfair competition in trade. And that the general public may be wronged, as well as business concerns dealing in the genuine article, is one of the reasons for the law against unfair competition. In a word, a rubber button being desirable for a certain purpose, the unfair competition consists in making and putting upon the markets a wooden button, made in imitation, which is not desirable for that purpose, with the idea of deceiving the public into buying it for the genuine. The fact that a thing influences .the public and trade deceptively puts the thing into the field of unfair competition. It is understood that the decree of the Circuit Court directed itself against making and selling, for use in hose supporters, wooden buttons made in imitation of rubber.
The decree of the Circuit Court is affirmed, with costs,
In re KOHL-HEPP BRICK CO.
BANKRUPTCY (8 262*)-SALE OF PROPERTY-SALE FREE FROM LIEN.
A court of bankruptcy has power to order property sold free from a lien claimed thereon, provided the lien, if established, is preserved against the proceeds, and provided, further, that due notice of the sale is given to the lien claimant; but such provision and notice are essential to the validity of the sale.
[Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. § 365; Dec. Dig. § 262.*) Appeal from the District Court of the United States for the Southern District of New York.
In the matter of the Kohl-Hepp Brick Company, bankrupt. From a certain amendatory order, Anna Day Ward and Henry L. Poinier, as guardians, appeal. Reversed.
The District Court of the Southern District of New York made an order on July 23, 1909, amending nunc pro tunc an order of February 23, 1909, so as to provide that certain real and personal property of the bankrupt be sold free and clear of any lien of appellants, as guardians of William R. Ward, an alleged incompetent, and free and clear of any and all other lien or claims thereto or thereon, except a specified mortgage and a specified mechanic's lien reduced to judgment. *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes