On Application for Settlement of Final Decree.
Settlement of final decree.The findings of fact and conclusions of law submitted by plaintiff have been signed as presented by plaintiff. Costs have been allowed plaintiff to be duly taxed, the amount thereof to be inserted in the final decree when submitted for signature.
The proposed decree submitted by plaintiff has not been signed in the form as submitted, and an exception is granted plaintiff to this refusal so as to preserve to the plaintiff any rights it may claim to have in the event of an appeal by either party.
The final decree herein will be signed in the form proposed by plaintiff with the following changes:
(a) After the word "thereto," unless both the blade and the package containing same is distinctly and conspicuously marked with the name of the manufacturer so as to plainly show the public that both the blade and the package containing same is not the product of the plaintiff.
(c) The defendants may sell blades and packages colored blue, but are enjoined from placing or causing to be placed in the hands of retail dealers, jobbers, or others, blue safety razor blades so packed as to reasonably suggest or facilitate a substitution as and for Gillette Blue Blades or likely to be, in the hands of such dealers and others, an instrument of fraud on plaintiff or which are colorable imitations of the packages of the plaintiff. Both the packages and blades must bear the full name of the manufacturer in letters readily discernible by the public and as large as the blade and package reasonably may permit, bearing in mind that the purpose of same is to prevent the public from thinking that they are getting plaintiff's product and to prevent same being known, designated, mistaken, substituted, or passed off as and for plaintiff's product.
When the decree in the above-amended form is presented it will be signed. The plaintiff is entitled to a practical injunction. It is not the province of a court of equity to aid possible wrongdoers. Oneida, etc., v. Oneida Game Trap. Co., 168 App. Div. 769, 154 N.Y.S. 391; Thum Co. v. Dickinson (C.C.A.) 245 F. 609; Hires Co. v. Consumers' Co. (C.C.A.) 100 F. 809.
While color is free there is no freedom to commit a fraud.
There is no immunity to be gained by the use of a color when same is used as part of a fraud.
While violation of an injunction may be a question of fact in each case and honest competitors should know what is and what is not forbidden, there is no necessity for the court to anticipate a fraud by detailed forbidden acts which may be readily availed of as excuses by persons whose purpose is not to fairly and justly deal with the public and the victim of their unfair competition and who intend to unfairly compete with a competitor, large or small, and thus steal its good name and money.
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