Opinion
James J. Leibman, of New York City, for plaintiff.
Carlton Z. Solomon and Riess, Applebaum & Kadin, all of New York City, for defendants.
HULBERT, District Judge.
Motion for a preliminary injunction on an unadjudicated patent which was issued out of the United States Patent Office on October 13, 1942.
The plaintiff has been manufacturing under a license from the patentee. On or about August 11, 1942, he discovered that the defendant Trade Accessories, Inc., was manufacturing and selling a belt substantially identical, and after a conference, the president of that defendant delivered to the plaintiff a letter, reading as follows:
'August 11, 1942.
'Shaffer Belt, Inc.,
'330 Fifth Ave.,
'New York, N.Y.
'Gentlemen:
'Pursuant to oral agreement entered in by Mr. Zimmerman and Mr. Schaffer of Schaffer Belts and Mr. Harry Stoff of Trade Accessories, Inc. It is mutually understood that we will discontinue the manufacture of the Money Belt as of August 11, 1942. 'We will turn over to you all orders, and inquirys for the above mentioned item. Trusting this will clarify the situation.
'Your's very truly,
'Harry Stoff,
'HS:SG Trade Accessories, Inc.'
Thereafter the plaintiff learned that belts similar to those made by the defendant Trade Accessories, Inc., were being sold by Katz Drug Store of Kansas City, Missouri, who claimed that such belts had been supplied to it by the defendant United Service Flag Company, which occupies the same office as Trade Accessories, Inc.
While I am aware of the principle laid down in a line of cases including Rosenberg v. Groov-Pin Corporation, 2 Cir., 81 F.2d 46, L. Hand, C.J., and A. B. Dick Co. v. Barnett, 2 Cir., 277 F. 423, I feel that the circumstances of this case are so extraordinary that the motion should be granted, upon condition that the plaintiff furnish a bond in an amount to be determined upon the settlement of the order.
Furthermore, the defendant may, at its option, have an order of reference as soon as issue has been joined by the filing of its answer and the pleadings are closed and the Court will appoint a special master who will be able to arrange for a trial at an early date. If the defendant does not wish to avail itself of this offer, either party may apply to the Senior Judge for a preference. Settle order on notice.