The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
The plaintiff, John C. Viehmann, the owner of Design Patent No. Des. 98,788, granted March 3, 1936, and the plaintiff, Kompass & Stoll Co., Inc., exclusive licensee under this patent, brought this action for the infringement of the patent.
The invention relates to a new kitchen table design. The language of the patent is as follows:
"Be it known that I, John C. Viehmann, a citizen of the United States and a resident of Flushing, Long Island, county of Queens and State of New York, have invented a new, original, and ornamental Design for a Kitchen Table or the like, of which the following is a specification, reference being had to the accompanying drawing, forming a part thereof, wherein:
" Fig. 1 is a perspective view of the table showing my design; and
"Fig. 2 is an end elevation of the same on an enlarged scale, the legs being shown broken away.
"The ornamental design for a kitchen table or the like, substantially as shown and described."
There is no claim of anticipation of the patent. The defendant offered Exhibits A, B, C sheet 1, C sheet 2 D, E, F, G, H, I, J and K to show the state of the art.
The language this Court used in Frankart, Inc., v. Everlite Novelty Mfg. Co. et al., D.C., 11 F.Supp. 680, 681, is particularly applicable here. The Court said:
"Design patents are granted as a reward for the giving of a new and pleasing appearance to an article of manufacture, whereby its sale is enhanced. Gorham Mfg. Co. v. White, 14 Wall. (81 U.S.) 511, 20 L. Ed. 731. Untermeyer v. Freund (C.C.) 37 F. 342."
"While minor differences can be pointed out, looking at plaintiff's smoking stand and defendant's smoking stand as a whole, they give the same impression and have the same appearance. Geo. Borgfeldt & Co. v. Weiss (C.C.A. 2) 265 F.268; Mygatt et al. v. Schaffer (C.C.A. 2) 218 F. 827; Graff, Washbourne & Dunn v. Webster (C.C.A. 2) 195 F. 522."
The question of infringement is not in the case which appears by the ...