The opinion of the court was delivered by: FORMAN
This suit involves Patent No. 19,562, reissued May 7, 1935, to Jacob Jones, and Letters Patent No. 2,079,107, issued May 4, 1937, to John Clayton Cridlebaugh for an alleged improvement upon the Jones invention, which are now owned by the plaintiff Cridlebaugh, and defendant's patent No. 2,181,070, issued November 21, 1939.
Each of the inventions covered by the respective patents relates to a mask or blinders adapted to be secured upon the beak of a fowl, for the purpose of preventing it picking the feathers or flesh of another. It is well known in the poultry business that birds engage in this practice and frequently the attacks are fatal. This habit is referred to as "cannibalism", "pick-outs", etc. The main object of the patented devices here involved is to impair the sight of chickens equipped therewith so that they cannot see to attack the other chickens of a brood and yet leave their sight otherwise unhindered so that they may pursue their normal habits.
Plaintiff alleges infringement of Claims 5, 7 and 8 of the Jones Reissue Patent No. 19,562, and Claim 2 of the Cridlebaugh Patent No. 2,079,107. Claims 5, 7 and 8 are as follows:
"5. A mask for fowls comprising a member to straddle the beak of a fowl with the member normally extending upwardly from the beak, said member having portions to lap the side portions of the beak at the rear part thereof, and a member extending through said lapped portions and the beak of the fowl to pivot the device to the beak."
"7. A mask for fowls comprising a member to be positioned upon the beak of a fowl with the member normally extending upwardly from the beak, and a pivot member engaged with the first named member and passing through the beak of the fowl to hold the member in place upon the beak and to allow the member to have swinging movement."
"8. A mask for fowls comprising a member to be positioned upon the beak of a fowl and normally extending upwardly therefrom, said member having portions to lap the side portions of the beak at the rear part thereof, and a pivot member extending through said lapped portions and the beak of the fowl."
Claim 2 of the Cridlebaught patent provides as follows: "2. A guard for the purpose set forth comprising a single piece of metal shaped into two spaced apart wings adapted in applied position to be disposed one on either side of the beak of a fowl and having a size sufficient to constitute blinders, each wing having a forwardly bent outer edge and an adjustable normally rigid connecting and supporting bar connecting said wings over the beak of the fowl, and means for securing the guard to the beak with its wings substantially at right angles to the fowl's line of vision."
The bill alleges infringement of plaintiff's common law trademark "Specs" by the defendant's adoption of the use of the word "Goggles" upon its device. It also alleges that the trademark "Specs" has obtained a secondary meaning in the trade by reason of its long usage to identify plaintiff's product, popularized by extensive advertising in poultry jornals of national circulation and by broadcasting locally and nationally over the radio, that the defendant by the adoption of the word "Goggles" upon its commercial products and similar advertising methods in national poultry journals and otherwise, together with simulation of plaintiff's cuts in its advertising display in national poultry journals, underselling through the trade, representations that the defendant's "Goggles" are provided with colored lens to change the color of blood, all of which has been misleading and has caused confusion, and is thus a source of unfair competition in trade.
The following drawings represent the devices covered by the patents of the plaintiff and defendant:
[See Illustration in Original]
Figure 1 represents the device covered by the Jones Reissue Patent, and Figure 2 represents the device covered by the Cridlebaugh Patent. Figure 3 represents the defendant's device.
Figure 1 represents the rear view of a mask with two plates (1 and 2) riveted loosely together (3). The beak of the fowl is placed in the opening between the plates at the bottom. The pin (4) is then placed between lugs located on each side of the opening and through the breather ducts of the fowl. A rubber band (5) is also utilized to draw the plates against the beak of the fowl.
In figure 2 the arcuate member (1) rests on the beak of the fowl and the pin (2) is pushed through lugs and the breather ducts at the rear of the mask. Line 3 on each side represents a slight bending of the mask forward.
In figure 3 the pin member (1) is pushed through openings in the arcuate member and the breather ducts of the fowl. Colored lens are represented at point 2.
The inventive idea in plaintiff's patent lies in the fact that there is produced a means to prevent various forms of cannibalism among chickens consisting of blinders attached to the beak. Defendant's device serves the same function and is based upon the same principle. When it ...