The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This suit is brought by the plaintiff for injunction, damages and costs against the defendants for the alleged infringement of design patent 109,647 issued to Charles A. Rowley for design for an egg beater or similar article granted May 10th, 1938, on application filed December 13th, 1937.
The plaintiff is the owner of the patent in suit.
This suit was brought originally against Paul Tresenberg and Alexander Sitkoff doing business under the trade name and style of Aurora Electric Company.
In April, 1940, the present suit was commenced against the individual defendants, who in their original answer alleged that Aurora Electric Company, Inc., was formed on January 1st, 1940, which corporation became the successor to the business theretofore conducted by the individual defendants under the firm name of Aurora Electric Company. On stipulation the said Aurora Electric Company, Inc., was added as a party defendant.
The defendants have, by answer, raised the defenses of invalidity and non infringement.
Notice of infringement prior to the commencement of this suit was given to the individual defendants, and it is stipulated the admitted receipt of such notice by the individual defendants shall be deemed by the parties hereto to constitute notice of the alleged infringement to the corporate defendant.
It is stipulated that an egg beater or similar article marked plaintiff's exhibit No. 3, but which on the trial was offered and marked as plaintiff's exhibit No. 2, was manufactured and sold within the Eastern District of New York and elsewhere since the issuance of the patent in suit, and prior to the filing of the bill of complaint herein by the corporate defendant, Aurora Electric Company, Inc., and is representative of the articles which plaintiff will claim constitute an infringement of the patent in suit.
From the evidence and the stipulation it appears that the alleged infringing articles represented by plaintiff's exhibit No. 2 were manufactured and sold by the corporate defendant, and by the testimony appears that the individual defendants did not manufacture or sell the alleged infringing article as individuals, but only for the corporation.
The defendant Paul Tresenberg is the president and sales manager of the corporate defendant, and the defendant Alexander Sitkoff is the production man.
The evidence does not show that the two individuals did anything more than would be usual for officers of a corporation, in their manufacture and sale of the alleged infringing articles.
The patent in suit discloses a kitchen utensil which has a variety of uses, such as mixing and beating foods, mashing potatoes, beating eggs, crushing strawberries and the like, and is also frequently used for removing hot foods from a pot.
It has a base portion which is a metal stamping job formed with a number of spaced, webbed fingers, leaving elongated openings through which the water, grease, or other material may pass during the serving operation, and is conveniently cupped to prevent articles carried thereon from falling off at the sides.
An article of this character to be a good seller must appear to be useful, but primarily it must have ...