The opinion of the court was delivered by: BYERS
The plaintiff seeks ani injunction and damages for the alleged infringement by the defendants of his design patent No. 111248 granted September 13, 1938. It is entitled "Design for a Propelled Vehicle", and the claim is for "The ornamental design for a propelled vehicle, as shown".
The drawings depict a vehicle containing one cross-seat to accommodate presumably two passengers in front, and directly behind, a smaller seat for a third person. The drawings further disclose that the seats are contained ina streamlined body of graceful and attractive appearance, which moves upon three wheels, two in front and one in the rear.
The patentee testified that the four essentials of his design are:
(1) A seat for passengers who would have an unobstructed view by reason of the position of the rear (driver) seat which has been described (the idea had its origin in the arrangement of the old-fashioned horse-drawn hansom cab).
(2) Three-wheel suspension, the steering being done by the third or rear wheel which could be easily maneuvered by the occupant of the rear seat.
(3) Electric Motivation power. This is not shown in the patent.
(4) The vehicle is attractive in appearance; that is to say, so-called streamlining has been employed.
The plaintiff sought to procure the approval of his design for vehicles to be used by visitors at the New York World's Fair, who would view all that was exterior to the various buildings, from wheel chairs propelled by power.
His design was not accepted by the defendant American Express Concessions, Inc., the corporate concessionaire chosen by the authorities of the Fair to operate these vehicles for hire.
That defendant, which is a subsidiary of the American Express Company, the co-defendant, caused vehicles of this general character to be designed and built for it, and the design actually employed is illustrated by four photographs attached to a stipulation (defendants' exhibit A, in evidence).
The issues are validity and infringement, and it will be convenient to examine the latter at once, in the light of the teachings of prior cases; namely:
The plaintiff's design is restricted to the disclosure of the drawings, since there is no written specification. Ashley v. Samuel C. Tatum Co., 2 Cir., 186 F. 339; American Fabrics Co. v. Richmond Lace Works, 2 Cir., 24 F.2d 365, at page 367; Scovill Mfg. Co. v. United States Electric Mfg. Corporation, D.C., 31 F.Supp. 115, at page 119.
Every element in the design must be deemed to be essential. Dixie-Vortex Co. v. Lily-Tulip Cup Corporation, 2 ...