The opinion of the court was delivered by: INCH
This is a motion to hold the above named defendant in civil contempt and impose such punishment as may be just. The contempt relates to an alleged failure by the defendant to obey a consent decree in a patent, trade-mark, and copy-right, suit.
The motion first came on to be heard before Judge Abruzzo, who duly referred same to me because I had signed the consent decree. Counsel for each of the parties have orally argued their respective claims and submitted briefs.
The real issue is narrow but in order to understand the circumstances a brief reference to the consent decree and steps leading thereto is first deemed necessary.
Both the plaintiff and defendant are engaged in making and vending a so-called cocktail mixer liquid in display packages, largely, if not exclusively, sold to barrooms and similar places. According to counsel for plaintiff its article has been very successful and its sales largely in excess of that of defendant. I gather from the statement of counsel for the defendant that its article has been confined for the most part to a lemon flavor. Both plaintiff and defendant have been engaged in this business for a number of years.
At any rate, in June 1942, the plaintiff brought suit against the defendant in this court for alleged violation of its patent etc., and in July 1942 a stipulation, signed by both parties, was filed in the clerk's office of this court whereby, among a number of other things, the defendant consented to the entry of a decree.
This stipulation and consent sets forth that the defendant admits making and vending a combination display package and selling same called "3 Up" cocktail mixer in certain display packages arranged, constructed and combining that set forth in plaintiff's patent No. 1,731,153 and recited in the claims thereof without license or permission of the plaintiff.
That defendant agreed that said patent is a valid subsisting patent and that its use etc., of said cocktail mixer and package infringed said patent.
That since 1940 officers of the plaintiff had owned said patent and the plaintiff had and still has an exclusive license under said patent.
That defendant had advertised and offered for sale its mixer in packages infringing and violating Trade-Mark No. 382,817 owned by plaintiff, that plaintiff has been making its mixer since 1939 to be used in making cocktails placing said liquid in two bottles in a display package covered by said patent No. 1,731,153.
That the chief characteristics of the display package of plaintiff is in having two bottles removably inserted within a package, the necks of said bottles being extended above the package through openings in the upper flap, and the package having a transparent and open side, in such a manner that one of the bottles may be readily seen from the outside of the package. That plaintiff has acquired a good will and reputation under the name "1-2-3 Company" and become widely known as the "3 Company" by its customers.
That in 1942 defendant began to utilize a trade name known as "3 Up" in packages which were substantially identical with the packages etc., of plaintiff. That the defendant stipulates, consents and agrees that a perpetual injunction may be granted restraining it as follows:
From making articles infringing said patent No. 1,731,153 and more in detail from manufacturing and selling mixers in packages using the mark "3 Up" or "1-2-3" or any numeral or letters or series of numerals or letters which duplicate, imitate or simulate the numerals, letters or series of numerals or letters used by the plaintiff.
The consent covers a number of other things in regard to the then container of defendant which are not material in the ...