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plaintiffs had never been the manufacturers or vendors thereof, or any part thereof; by reason of which said premises the said plaintiffs have been fraudulently injured and deprived of great advantage which they would otherwise have derived from the sale of lead-pencils so manufactured and marked by them, and have sustained actual damage to the amount of one thousand dollars, and have been otherwise greatly injured in the selling and vending of the said lead-pencils to the further amount of five thousand dollars and therefore the plaintiffs bring this suit.

MERWIN HALLIBOW,
Attorney for Plaintiffs.

No. 5.-BILL IN EQUITY.

CIRCUIT COURT OF THE UNITED STATES,}

For the

District of

To the Judges of the Circuit Court of the United States for the

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. And thereupon your orators, humbly complaining, show unto your honors that they are the assignees and successors in business of , a firm which was composed of

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& and your orators, and which firm was formerly engaged in the manufactory and sale of sewing-machines in ; and for the period of more than five years your orators and their predecessors had been engaged in the manufacture and sale of sewing-machines at the same place; and that during the whole period of time of such manufacture and sale by them they had exclusively used and your orators are now so using, and had, and still have the right so to use, a certain trade-mark for said sewing-machines, which trademark was printed on paper of an ultramarine ground on which is represented a view of the Princess Penelope weaving, and the name "Penelope," which is the essential part of said mark, printed thereon; and that no person, firm, or corporation except the said and your orators have had at any time heretofore, and none except your orators now have any right to the use of the said trade-mark or of any trade-mark substantially the same.

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They further show to your honors that on the said 18 being entitled as aforesaid to the exclusive use of said

trade-mark, and desiring to secure to themselves full and lawful protection for the same by due registration thereof in the United States Patent Office, according to law, your orators did deposit in said Patent Office of the United States for registration their trademark aforesaid for sewing-machines; and having fully complied with all the requirements of the Act of Congress in such cases made and provided, the trade-mark aforesaid was on the

day of

, 18, duly and lawfully registered and recorded in said United States Patent Office, with protection to remain in force for thirty years from said date, all of which, with an accurate copy and description of said trade-mark and the declaration of a member of the firm, on which it was registered, will more fully and at large appear from copies from the Patent Office, duly certified by , Commissioner of Patents, under his seal of office, and herewith filed as part of this bill marked ; and thereupon protection in the exclusive use of the trade-mark aforesaid previously held and enjoyed by your orators was secured to them for the period of thirty years from said day of

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Your orators, further complaining, respectfully show unto your honors, that since your orators have had the exclusive right to use the said trade-mark, to wit, from the ent time, the said , in the State of manufacturing sewing-machines in said city of unlawfully and without your orators' consent using, in the sale thereof, a trade-mark substantially like, and indeed almost identical with, that of your orators.

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To the end, therefore, that your orators may obtain relief in the premises in this honorable court, where alone adequate relief can be afforded, they pray:

1st. That the said E. F. may be made a defendant to this bill, and compelled to answer each and every allegation thereof, on oath, as fully and to the same extent as if he were directly interrogated as to each allegation.

2d. That he may be compelled to render before a commissioner of this court a full, true, and perfect account of all profits of every description which he has made, or might have made, by the use of the simulated trade-mark aforesaid, or by the use of any other trade-mark for sewing-machines having thereon as a constituent part thereof the word "Penelope," or a representation of the Princess Penelope weaving, or any trade-mark having such near resemblance to that of your orators, as aforesaid, as might be calculated to deceive; and that he, the said E. F., be decreed to pay over to them all such profits.

3d. That the said commissioner be required to ascertain and report to this court, also, what loss and damage has been inflicted upon your orators by reason of the infringement of their rights, and the interference aforesaid with the right of exclusive use of the trade-mark first-mentioned; and that the said E. F. be also decreed to pay to them such damages.

4th. And may it please your honors, the premises considered, to grant unto your orators a restraining order against the said defendant enjoining and restraining him, his clerks, attorneys, agents, and servants from using the simulated trade-mark aforesaid, or any other trade-mark containing the word "Penelope,” or being substantially the same with that of your orators.

5th. And that your orators may obtain the injunction and relief prayed for, and all such other and further relief as the nature of their case may require, may it please your honors to award against the said E. F. a writ of subpoena, &c.

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At the city of said, this 3d day of

SS.

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C. D. [for the firm.]

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187, personally appeared before me,

U. S. Commissioner for said district, the above-named C. D., and made oath that the facts set forth in the foregoing bill, so far as they purport to be stated as of his own knowledge, are true; and so far as they purport to be stated on information and belief, he believes to be true.

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This day came the complainants by

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sel, and presented to me,

United States for the

, Judge of the Circuit Court of the District of , at my chambers, in

vacation, their bill of complaint against the defendant the same, with the affidavit of

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; and thereto annexed and the exhibits filed, being read and duly considered, on motion of said complainants by their counsel aforesaid, it is ordered, that the defendant of the special term of the Circuit Court of the United States for the to be held on the day of , appear before said court and show cause, if any he have to show, why an injunction should not issue against him, and accounts be ordered, according to the prayer of said bill; such course to be shown on said bill on affidavit, provided copies thereof be served on said defendant, with a copy of this order, on or before the day of

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The answer of E. F., defendant, to the bill of complaint of A. B. and C. D., complainants.

This defendant, now and at all times hereafter saving and reserving unto himself all benefit and advantage of exception which can or may be had or taken to the many errors, uncertainties, and other imperfections in the said complainants' said bill of complaint contained, for answer thereto, or to so much and such parts thereof as this defendant is advised is or are material or necessary for him to make answer to, this defendant answering saith:- (1.) That he has been informed and admits it to be true that, upon application by the complainants, registration was granted by the Patent Office of the United States on the day of 18, as in said bill alleged, of an alleged trade-mark as described in the said bill of complaint; and this defendant says that he does not know and is not informed, save by said bill of complaint, whether or not the said complainants did properly make application for said registration of trade-mark, and did comply with all the requirements of law, and did have the said certificate of registration issued to them in due form of law. He leaves the complainants to make such proof thereof as they shall be advised is material. (2.) And this defendant, on information and belief, de

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nies that by virtue of any such registration of the said trade-mark in said bill mentioned, or otherwise, the said complainants became, or ever were, or either of them ever was, possessed of any exclusive right to use the said alleged trade-mark in the said certificate of registration and bill of complaint described, if indeed the trademark and label used by this defendant is in any wise to be regarded as the same, either in substance or effect with the said trade-mark claimed by the complainants.

[&c. &c. &c.]

No. 8. DECREE FOR INJUNCTION.1

[Title of cause, &c.]

[Then follows the usual recital of all essential preliminary matters, as in ordinary cases of injunction.]

It is ordered, adjudged, and decreed, and this court, by virtue of the power therein vested, doth order, adjudge, and decree, that the defendants, Calvin Flint Spear and George B. Ripley, and each of them, and their, and each of their attorneys, servants, and agents be, and they are hereby perpetually enjoined and restrained from making, devising, or causing to be made or devised, purchasing or procuring, any marks, stamps, labels, or tickets, described in the complaint in this action, as in use by the defendants, upon tickings possessed and sold by them, and that they be in like manner enjoined and restrained from using the said marks, stamps, labels, or tickets upon any tickings whatever in their possession, or under their control, or offered or kept for sale by them, or on their account, or for their benefit. And that they be in like manner enjoined and restrained from selling, keeping, or offering for sale any tickings bearing thereon any such stamp, mark, label, or ticket. And that they be in like manner enjoined and restrained from making, devising, or causing to be made or devised, purchasing or procuring, or in any way or manner using for or upon any tickings whatever any stamp, mark, label, or ticket similar to the said stamp, mark, label, or ticket of the plaintiffs, or having thereon the letters A CA, or being in any manner an imitation, whether in whole or in part, of the said stamp, mark, label, or ticket of the plaintiffs. And that they be in like manner enjoined and restrained from selling, keeping, or offering for sale any tickings as the real

1 This is taken from the decree of Duer, J., in case of Amoskeag Manuf. Co. v. Spear, 2 Sand. S. C. 599 (“A CA" is the essence of the mark).

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