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June 15, 1944

SANDERS et al.

The opinion of the court was delivered by: BYERS

BYERS, District Judge.

Hearing on plaintiff's motion for a preliminary injunction.

The complaint sets forth two claims for relief, the first for infringement of trademark, and the second for unfair competition. The plaintiff is a Delaware corporation having its principal place of business in Toledo, Ohio, and two of the individual defendants reside in this district, where all three apparently conduct business under the name and style of "The Prefect Recondition Spark Plug Company". It therefore appears that the Court has jurisdiction of the cause and of the parties.

 The pleadings, and the opposing affidavits disclose a very narrow controversy because with one exception the facts are not substantially in dispute.

 The question for decision is whether the plaintiff is entitled to injunctive relief against the defendants in connection with their business of repairing and marketing used and discarded Champion spark plugs of the plaintiff's manufacture used in the operation of motor vehicles.

 The controversy exists because the plaintiff asserts that the defendants sell such spark plugs under the original trade-mark, without sufficiently revealing that, when so repaired and put in condition for use, they are in fact second-hand or used plugs which during the process of repair and attempted rehabilitation have undergone certain structural modifications, and hence should not be marketed as Champion spark plugs.

 The defendants' calling is not the subject of challenge, nor does the plaintiff assert that the repaired spark plugs are represented by the defendants as new and unused; nor are they marketed under a trade dress which closely simulates the original package as put out by the plaintiff, except in the basic color scheme of the individual container, and of that the plaintiff does not complain. The offense which the plaintiff attributes to the defendants consists in the following:

 (a) Retaining on the exposed portion of the white porcelain insulator in red letters the word "Champion", together with the letter and figure denoting the particular style or type.

 (b) Stamping on the box in which ten plugs are packed, upon a white background the name "Champion", together with letters and figures indicating the particular style and type.

 Each separate plug is packed by both paties in a cardboard container or box, 3 1/2 inches long as to the plaintiff's product, and 3 inches long as to the defendants'. These in turn are placed in a larger box, containing ten units. Except that both boxes are blue, they bear no resemblance as to the wording, and concerning the defendants' larger container it is sufficient to say that on the top appears a statement that the spark plug is guaranteed for 10,000 miles. The front and rear elevations contain a pictorial representation of the plug, and the reading matter is: "Perfect Process Spark Plugs Guaranteed Dependable"; and on each end, the panel reads in conveniently large letters: "Perfect Process Renewed Spark Plugs"; beneath those words there is a white space in which is to be inserted (opposite the words in the left column) Make "Champion" Type "14 M.M." For example Size "H 10"

 The smaller box containing the individual plug, as sold by the defendants, repeats the wording on the top and the bottom of the larger box, and on the front panel appears the following in legible white letters on blue:

 "The process used in renewing this plug has been developed through 10 years continuous experience. This Spark Plug has been tested for firing under compression before packing."

 And on the rear panel the wording is:

 "This Spark Plug is guaranteed to be a selected used Spark Plug, thoroughly renewed and in perfect mechanical condition and is guaranteed to give satisfactory service for 10,000 miles."

 Since the plug has to be screwed into the cylinder of the motor, the lower end is threated for that purpose; above the threaded section there is a steel body having a hexagonal collar near the top, wide enough on its faces to accept a wrench used in screwing the plug into place; and on one face of that collar there appears in the plug as sold by the defendants, in small letters, blue on black, the almost illegible word "Renewed". It appears from the affidavits that the word is not stamped into the metal but, when this section of the plug is repainted during the process of repair, the word "Renewed" is stamped so as to penetrate the paint; as to the samples in evidence that word has partly disappeared.

 It appears that these parties have been before the Federal Trade Commission four or more years ago, and that the last-mentioned word "Renewed" was directed to be placed on the defendants' plug as the result of that proceeding -- at least so much is asserted by the defendants and not denied by the plaintiff -- but I am satisfied that, as applied, the word is inadequate to accomplish any real purpose.

 No one disputes that the defendants' enterprise is entirely legitimate and that there is a market for discarded and wornout spark plugs which have been cleaned and repained, and in which interior spent parts are replaced, so that such an article ...

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