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contained in the complainant's patents, and that their proposal had been accepted by the government, and that they were about to proceed to build these turbines and infringe the complainant's patents. Macdonald and Smith, who examined the plans and specifications on file at the Navy Department, have testified that the turbines built by the defendant company, as disclosed by their plans and specifications, are an infringement of the complainant's patents. A subpoena duces tecum was issued and served upon the president of the defendant company to produce copies of the plans and specifications upon which the turbines built by it for the government were constructed. In answer to this subpoena, the plans and specifications were produced sealed in an envelope, and the witness refused to open them upon the ground (1) that it would be compelhing defendant to divulge trade secrets. It appears, as we have stated, that MacDonald and Smith, who examined the plans and specifications at the Navy Department, have testified that the turbines constructed from these plans and specifications infringe complainant's patents. It further appears that the defendant has contracted to build what are known as the “Zoelly turbines,” which are known to complainant's engineers and to the general public through various publications. As the complainant has offered considerable evidence tending to show that the defendant's turbines, as manufactured by it, infringe the complainant's patents, they would be entitled to an inspection of these plans and specifications, and to have them produced for the purpose of offering them in evidence, to enable the court to fully understand just what the defendant is making. But we do not definitely dispose of this branch of the matter before us at this time, as there is a more serious question raised by the defendant, to wit, that it “would be detrimental to the interest of the United States” to compel the defendant to submit these plans and specifications in evidence. The defendant insists that the government has objected for the reason that, if these plans and specifications are in evidence and spread upon the records in this court, it will divulge military secrets to the detriment of the government; while, upon the other hand, the complainant contends that the Navy Department simply holds that it “would be detrimental to the interest of the United States * * * for the department” to furnish the copies, as it does not wish to disturb the cordial relations existing between it and contractors by appearing to be willing to furnish copies of contractors' plans and specifications to their competitors, and that the furnishing of copies by defendant voluntarily, or by process of court, is not objected to by the departIment. If the complainant's claim as to the position of the Navy Department be correct, we see no reason now why it should not have these plans and specifications to offer in evidence; but the court is not convinced that this is the reason for the government's objection, and, in order that there shall be no mistake in regard to the exact facts on this point, it seems to me the Navy Department should be informed of the rule on defendant to produce these documents, and should be requested by defendant to state the grounds of its objection, so that the court may know whether these plans and specifications may be put in evidence
without, in the judgment of the department, causing the discovery of military or other secrets detrimental to the public interest.
The motion will be continued until March 1, 1910, to enable the defendant to file a statement of the Navy Department stating its grounds of objection, after which date either party may again be heard on the rule.
GORHAM MFG. CO. V. WEINTRAUB et al. †
(Circuit Court, S. D. New York. January 31, 1910.) 1. COURTS (8 322*) — FEDERAL COURTS - JURISDICTION-DIVERSITY OF CITIZEN
SHIP-ALLEGATIONS IN PLEADING.
That the bill merely recites facts showing diversity of citizenship of the parties, instead of making distinct traversable averments thereof, is not ground for denying relief, where the affidavits of the defendant do not in any way dispute the diversity of citizenship.
(Ed. Note.-For other cases, see Courts, Cent. Dig. 88 876-881, 887; Dec. Dig. $ 322.*
Diverse citizenship as a ground of federal jurisdiction, see note to Shipp
V. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.) 2. TRADE-MARKS AND TRADE-NAMES ($ 22*)–MARKS SUBJECT OF OWNERSHIP
PRIORITY OF USE.
A manfacturer of silverware is not debarred from establishing as its trade-mark in this country a combination of devices of an anchor, lion, and the letter G, by the fact that each of these is a hallmark used on English silver, and that, used in combination, they would indicate to a buyer of English silver that the piece was sterling ware made in the city of Birmingham in 1831.
[Ed. Note. For other cases, see Trade Marks and Trade-Names, Cent.
Dig. $ 25; Dec. Dig. $ 22.*] 8. CONTEMPT ($ 9*)-ACTS CONSTITUTING-PUBLICATIONS RELATING TO PENDING
A notice by complainant, a manufacturer of silverware, to the trade, that complainant is asserting the validity of its trade-mark, and is endeavoring to sustain it in court, and that the defendants were stayed from infringing it by an order of the court issued simultaneously with the order to show cause, is proper, and does not constitute contempt of court.
(Ed. Note.--For other cases, see Contempt, Cent. Dig. 88 15-18; Dec, Dig.
Hugo Mock, for complainant.
LACOMBE, Circuit Judge. This is a suit to restrain alleged infringement of trade-mark. The bill recites that complainant is a citizen of Rhode Island, and defendants citizens of New York. It is contended that diversity of citizenship is not sufficiently alleged, because distinct traversable averments thereof are not presented. If the aftidavits in any way disputed such diversity, the objection might be important; but since the assertion is not disputed, and an averment allegFor other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r lodexes
| For opinion on motion to amend complaint, see 176 Fed. 1024
ing diversity would be granted as of course, where there is no dispute as to respective citizenship, the objection is not persuasive to denying relief, if on the facts complainant is entitled to it, to sustain a commonlaw trade-mark. Irrespective of what complainant's predecessors may have done, it is not disputed that since 1863 complainant itself has used upon its sterling silverware a mark consisting of an anchor, lion, and the letter G. And the record indicates that the trade in such goods has for many years recognized these conjoined marks, when impressed on silverware manufactured in this country, as indicating origin in complainant's workshops. Nor does it appear that during that period, since 1863, any other manufacturer has made or sold silver or plated ware manufactured in this country with the same combination mark. The defendants contend that, since each of the three devices—anchor, lion, and G–had a certain significance when affixed to Englishmade silverware, complainant could not in this country establish as its trade-mark the combination of the three. The defense is presented with such wealth of learning in the silversmith's art, fortified with elaborate quotations from English statutes regulating hallmarks on gold and silver ware for centuries, and with recognized text-books dealing with the subject and giving the interpretation of every English mark that has survived on every piece of English silver which the authors have been able to find, that the study of the record has been singularly attractive. Nevertheless, in the ultimate analysis, the single question is whether a maker of silverware in this country is precluded from selecting as his trade-mark an impression which is made up of three of these marks, although, when conjoined, they would indicate to a buyer of English silver that the particular piece was sterling ware made in the city of Birmingham in 1831. It is thought that he is not thus precluded, and that, when he has used the particular combination on his ware made in this country for upwards of 40 years, and the same has been accepted by the trade as his identifying mark, without imitation by any one, he is entitled to an injunction, at least until final hearing. The security given by complainant ($2,500) is abundant to protect defendant against any possible loss, especially as defendants assert that they use other combinations of old hallmarks, and have almost an infinitude of such combinations which they can freely use, without infringing on the trade-mark of any American manufacturer. From the standpoint of the collector of old silver, it might well be desirable that no reproduction of any old hallmark, English or Continental, should ever be affixed to silver or plated ware made here; but there is no authority for any such ruling. Since the argument defendant has submitted a circular notice sent by complainant to the trade, contending that, since it was issued after argument, it was improper, and should be considered a contempt of court. It merely states that complainant is asserting the validity of its trade-mark, and is endeavoring to sustain it in court, and that these defendants were stayed from infringing it by an order of this court
issued simultaneously with the order to show cause. There seems to be no impropriety in giving such notice to the trade.
If the security bond is so phrased that it might be contended that the decision of this motion terminates its obligation, it should be renewed to extend till decision on final hearing.
CLARK BROS. CO. V. TENNESSEE LUMBER MFG. CO.
(Circuit Court, E. D. Pennsylvania. March 9, 1910.)
CONTRACTS (8 285*)--AGREEMENT FOR ABBITRATION-AWARD BY Two ABBITRA
Where a contract provided that in case of dispute the matter should be left to the decision of arbitrators, one to be selected by each party, and that the two should have power to select a third, and that the decision should be binding, an award was not required to be unanimous, but was binding if joined in by two of the arbitrators.
(Ed. Note.--For other cases, see Contracts, Dec. Dig. & 285.*]
John E. Sibble and D. I. Ball, for plaintiff.
J. B. MCPHERSON, District Judge. There are three counts in the plaintiff's statement, but this rule asks for judgment upon the first count only, which is based solely upon an award made by two out of the three arbitrators who heard the controversy. They were appointed in accordance with clause 7 of the contract between the parties, and a copy of the agreement (which provides for the building of a sawmill) is attached to the statement. It is true that the drawings and detailed specifications are omitted, but the attached copy sufficiently complies with the requirements of the Pennsylvania act of 1887, which directs that a statement of claim shall be accompanied by copies of all notes, contracts, book entries, etc., upon which the plaintiff's action is founded. To support the claim contained in the first count, it would have been wholly superfluous to set out the specifications of this building agreement. "Neither they nor the drawings could throw any light whatever on this phase of the controversy; and I do not believe that the act of 1887 was intended to compel the performance of what would approach the absurd. The clause providing for arbitration is as follows:
"Should any dispute arise respecting the true construction or meaning of the proposition, specifications, or drawings, or respecting the true value of any extra work, or of work, machinery, appliances, or equipment omitted, or as to whether said mill is fully completed and in first-class running order, then said matters shall be left to the decision of arbitrators, one to be selected by *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
the party of the first part, another by the party of the second part, and they two shall have the power to name a third arbitrator, and the decision of said arbitrators shall be binding on the parties hereto."
What happened was this: The parties were in serious dispute over several matters arising out of the contract, and on February 11, 1907, each party chose an arbitrator. On February 12th these two, acting under the power contained in the foregoing clause, selected a third arbitrator "to sit and act with us upon the hearing of this arbitration." These three persons accordingly heard all the evidence submitted by the parties and an elaborate argument thereon, and upon June 28, 1909, one of the arbitrators originally chosen united with the third arbitrator in making an award in favor of the plaintiff. The defendant attacks the finding upon the ground that it was not agreed to by the three arbitrators, asserting that the seventh clause requires that all who hear must agree before a binding award can be made. As it seems to me, this proposition need not be discussed. It appears to be decided against the defendant by the following authorities: Hobson v. McArthur, 16 Pet. 182, 10 L. Ed. 930; Quay v. Westcott, 60 Pa. 163; and Weaver v. Powel, 148 Pa. 372, 23 Atl. 1070. I refer to the opinions in these cases for the reasoning that fully justifies the plaintiff's contention that the foregoing clause by clear implication authorizes any two of the arbitrators to make a binding and final award. To construe the clause to mean that all must agree if a third be appointed is to adopt what seems to be a most improbable construction; for it requires us to suppose that, instead of providing a way to escape a deadlock, the parties deliberately made a deadlock much more probable, if not practically inevitable.
The rule is made absolute, and it is directed that judgment be entered in favor of the plaintiff upon the first count of the statement for $14,184.52, with interest from June 28, 1909.
SUN KWONG ON v. UNITED STATES.
(Circuit Court, S. D. New York. November 13, 1909.)
CUSTOYS DUTIES ($ 45*)-CLASSIFICATION-EDIBLE FUNGUS-SIMILITUDE.
An edible fungus, that grows on the bark of trees and has been merely dried and packed loose, bears a greater similitude to vegetables in their natural state, enumerated in Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 257, 30 Stat. 171 (U. S. Comp. St. 1901, p. 1650), than to mushrooms prepared, enumerated in paragraph 241, 30 Stat. 170 (U. S. Comp. St. 1901, p. 1649), and is therefore dutiable under the former paragraph.
[Ed. Note.-For other cases, see Customs Duties, Cent. Dig. $ 149; Dec. Dig. 8 45.*] On Application for Review of a Decision by the Board of United States General Appraisers.
The opinion filed by the Board of General Appraisers reads as follows: •For other cases see same topic & & NUMBER In Dec. & Am. Digs. 1907 to date, & Rep'r Indexes