The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a suit for the alleged infringement of patent No. 1,327,858 issued to John S. Brennan for Wick granted January 13, 1920, on an application filed August 18, 1919, and patent No. 1,403,229, issued to John S. Brennan for fabric for oil wicks, granted January 10, 1922, on an application filed December 27, 1920.
Also for the alleged infringement of Trade-Mark No. 145,755 registered by plaintiff on August 16, 1921, and Trade-Mark No. 311,607 registered by plaintiff on March 27, 1934, and for alleged unfair competition in trade.
The defendant has interposed an answer raising the defenses of invalidity and noninfringement of the patents in suit and denying infringement of plaintiff's trademarks alleged herein, and denying unfair competition in trade with plaintiff.
As to patent No. 1,327,858, only claim 1 is in suit.
As to patent No. 1,403,229, all four of its claims are in suit.
Plaintiff has title to the patents and trade-mark registrations in suit.
The plaintiff is a corporation organized under the laws of the state of New Jersey with its principal place of business located in Milwaukee, Wis., and has for many years been engaged in the manufacture and sale of household and culinary articles under its trade-name "Nesco" derived from the initials of its corporate name. Plaintiff has, for more than twenty years, included in its business the manufacture and sale of oil and gasoline heaters and cook stoves, which it also sold under its trade-name "Nesco." Plaintiff has spent considerable money in national advertising and sales promotion and has established an extensive good will for its products.
The defendant is an individual, doing business under the style and name of Whitebestos Company (not incorporated), within the district at Brooklyn, N.Y.
Plaintiff in connection with its sale of oil stoves and heaters does a large business in the sale of "Nesco" wicks which it claims are of special construction and covered by the patents in suit.
The wicks in question are furnished for replacement in plaintiff's stoves and those of similar type manufactured by others.
The wicks in issue are used in connection with burners using hydrocarbon fuel, such as kerosene and the like, and comprising a circular trough adjustable with relation to a fixed reservoir for determining the height of oil within the trough.
The wicks comprise similar bands positioned within the trough, which lift the fuel by capillary attraction to the upper edge of the wick that carries the flame.
The patentee in the specification of the first patent in suit, No. 1,327,858, describes what he contends is his invention as follows:
"My invention pertains to new and useful improvements in annular wicks for use in the burners of heating and cooking stoves which burn gaseous or liquid hydrocarbons as a fuel.
"It is well recognized that cotton and other wicks formed of combustible material are relatively inefficient in burners of the character mentioned, and this is equally true of wicks made from felted asbestos. In one case the life of the wick is short because it quickly becomes charred, and in the other case it becomes clogged with soot or the like and prevents a ready capillary action of the liquid fuel when such is used. The disadvantages of both of these types of wicks may be overcome by the use of a woven wick formed of threads or cords of asbestos. It is therefore the primary object of the invention to construct an annular wick of such material.
"It is also an object of the invention to provide a wick, the usefulness of which will be more than twice as great as that of the average wick of this character, this being carried out by the provision of a burning edge on each peripheral edge of the annular wick.
"A still further object is to provide a combined supporting strip for the wick material together with means for preventing the unraveling of ...