The plaintiff has moved for an interlocutory injunction to prevent the defendant from using certain advertising material.
Both parties sell swimming pools and accessories for pools. The particular feature of their competition which produces this case is that both are marketing materials which a home owner can use to build a relatively inexpensive back-yard pool. These materials are included in a kit or "package," the basic features of which are wooden panels or walls (chemically treated to resist decay) and vinyl plastic lining material. Having decided upon this type of pool, the home owner digs a hole of the appropriate size in his yard, and then, using the kit of materials he has bought, installs the wooden side walls and puts the vinyl plastic in place as a water-holding liner over walls and dirt floor. He follows a set of directions furnished with the materials. The owner can, of course, do the work with the help of his family and friends, or he can employ workmen to do it for him.
The foregoing description of a wooden-walled, plastic-lined pool is oversimplified, but is sufficient for present purposes. Neither the plaintiff nor the defendant claims any patents, trade secrets, franchises, licenses or other exclusive property rights in such a pool. Other companies market them, several in this area being named in the answering affidavit of Mr. Stone, the defendant's president. Mr. Stone says that the sale of wooden walls and vinyl liners for the construction of private swimming pools has been going on since about 1950.
The plaintiff states, by complaint and verifying affidavit, that at considerable expense it "has caused to be published articles and stories" in magazines and newspapers as promotional advertising. Specifically three publications are mentioned:
(a) Reader's Digest , May 1960 -- an article entitled "The Big Splash in the Back Yard" by David X. Manners, condensed from Suburbia Today. This article, which is
short, describes various types of pools, but emphasizes the merits of the type constructed with the plastic liner.
(b) Sunday New York News, Coloroto Magazine , July 10, 1960 -- a double page of pictures accompanied by a few paragraphs of text. The pictures show a wooden-walled, plastic-lined pool in various stages of construction and in use. The title and subtitle of the article are "Pooling their efforts. Do-it-yourself pool is put up by Jersey couple (plus neighbors) in three and a half days." The plaintiff states without contradiction that these pictures show one of its pools, the owner being "a public relations agent employed by the plaintiff."
(c) The Family Handyman , April 1961, page 27, et seq. -- an article entitled "Do-it-yourself Below-the-ground Pool." The numerous pictures illustrate steps in the construction. The plaintiff states without contradiction that these pictures show one of its pools being installed by its vice president, Mr. West, and its production manager, Mr. Kirk.
None of the publications mentioned would be regarded by the average reader as advertising material. In exercising its ingenuity and spending its money to get these articles prepared, written and published the plaintiff was necessarily promoting public interest in all pools to which the published material would apply. In none of the articles is there any mention of the plaintiff's name or any statement that the pools and pool components shown can be obtained from the plaintiff. Parenthetically, it is noted that the plaintiff's name does appear in The Family Handyman , April 1961, but not as part of the article on pools. It is found near the back of the magazine (at p. 78) in a column relating to products described in the text. Also, two life preservers shown hanging on the wall of a building in one of the pictures in the Sunday New York News bear the words "Buster Crabbe Pools" and these words, it was said in argument, are used as a brand name by the plaintiff. In the picture, however, they are so illegible as to have no meaning at all to a reader of the newspaper even if he
should notice them, which is very unlikely. Neither the mention of the plaintiff at the back of The Family Handyman , nor the showing of life preservers bearing a brand name which at best can be read only by one who has been told in advance what the name is, infringes upon the general conclusion that these three published articles are not in any usual sense advertising of or for the ...