Appendix — Taylor Instrument Companies v. Fawley-Brost Co.

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APPENDIX.

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Respondent's Ohart

(Plaintiff's Exhibit 0.2 to the Ovmplatet).

NEESER OPO EE

IN THE

Supreme Court of the United States

Ocroser Term, 1943.

No. 689

TAYLOR INSTRUMENT COMPANIES,

Petitioner,

Us.

FAWLEY-BROST COMPANY,

Respondent.

ANSWER

TO THE PETITION FOR A WRIT OF CERTIORARI

TO THE CIRCUIT COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

and

BRIEF

ADVOCATING THAT CERTIORARI BE DENIED.

AvBert I. Kecan,

EstuHer O. Kecan,

Attorneys for Respondent.

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Il. Summary and Short Statement of the Matters

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Il]. Reasons Urged for Denying Certiorari.........

Brief Advocating that Certiorari be Denied.........

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TABLE OF CASEs.

Baker v. Selden, 101 U. S. 99 (1879)................. 5,

Bleistein v. Donaldson Lithographing Company, 188

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Davis v. Comitti, 52 Law Times Rep. (N. S.) 539, 540

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Heyer v. Duplicator Mfg. Co., 263 U.S. 100 (1923)....

International Business Machines Corporation v. U. S.,

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Morton Salt Co. v. The G. 8S. Suppiger Co., 314 U.S.

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U.S. Constitution.

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STATUTES CITED.

Federal Trade Mark Statutes:

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Copyright Act of 1909:

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Copyright Act of 1874:

Chap. 301, Sec. 3 (Rev. Stat., Sec. 4952)...... aa

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IN THE

Supreme Court of the United States

OcroBeR Term, 1943.

No. 689.

TAYLOR INSTRUMENT COMPANIKS,

Petitioner,

Us.

FAWLEY-BROST COMPANY,

Respondent.

ANSWER

TO THE PETITION FOR A WRIT OF CERTIORARI

TO THE CIRCUIT COURT OF APPEALS FOR THE

SEVENTH CIRCUIT.

To the Honorable, the Chief Justice of the United States,

and the Associate Justices of the Supreme Court of the

Umted States:

I.

The Questions Presented.

Petitioner fails to state the real questions raised by this

case. They are:

(1) Does the copyright law empower the vendor of a

machine to require that supplies essential to the operation

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thereof, and rapidly consumed thereby, be purchased solely

from it?

(a) May ai rapidly consumed mechanical element

of a machine be monopolized by copyright, under see.

tions + and 5(i) of the Copyright Act?

(b) If se, does the purchase of the machine carry

with it an equitable license entitling the owner, or his

agent, to copy such perishable mechanical element, in

order to keep the machine in operation?

(2) May the Trade-Mark Act of 1920 be used to effect

a total restraint of trade in replacement parts, by pre-

venting vendors of such parts from designating the ma-

chines for which the parts are destined?

The Cireuit Court of Appeals answered question (1) (a)

in the negative (R. 432), without expressly passing upon

questions (1) and (1)(b). It answered question (2) in the

negative (R. 434).

Il.

Summary and Short Statement of the Matters Involved.

The ‘tcharts’’? in suit are indispensable mechanieal ele-

ments of the machines manufactured by petitioner (R. 482).

They are consumed in large quantities by the operation

of the machine. The alleged ‘‘authorship’’ of petitioner

and the amici curiae consists solely in adjusting the spac-

ing of the lines on these charts to correspond with the

dimensions of the interdependent machinery. This is a

necessary step in designing the machine, and is added into

the cost of the machine. It is commercially impossible for

an independent printer to redesign and reealibrate the en-

tire machine as a prerequisite to printing the charts there-

for. If competition is to exist, the printer must be free

to copy the worn out chart brought to him by the owner of

the machine. Petitioner is using the eonyright claims in

3

cuit to force purchasers of its machines to buy replace-

ment supplies therefor solely from it. This is an affront

to the public policy of the Antitrust Laws. If the Copy-

right Act can be used for this purpose, then it nullifies all

» the decisions of this Court condemning schemes for monop-

olizing the sale of unpatented parts and supplies.

Respondent advertises that it manufactures charts to

ft Taylor instruments of specified model numbers. It

prints a style number on each chart, and three of these

style numbers contain the letter “*T’? as a part thereof.

Other instrument manufacturers print the letter ‘‘T’’ upon

charts which cannot be used in machines of Taylor make.’

Petitioner never prints the letter ‘‘T”’ upon any of its mer-

chandise, and has no trade-mark upon that letter of the

alphabet. Petitioner nevertheless contends that the fore-

eoing conduct infringes its trade-mark, which consists of

the common surname ‘*Taylor’’ written as an entity in a

particular style of flowing script. In the courts below, peti-

tioner also sought to prevent respondent from referring to

the stvle numbers which petitioner employs to distinguish

‘ts various machine models from each other. Respondent

contended that petitioner was attempting to stifle legiti-

mate competition in replacement parts and supplies, by

preventing petitioner’s competitors from designating the

equipment for which their wares were destined (R. 16-17).

The Cireuit Court of Appeals held that ‘‘the authorities

are rather clear * * * that defendant = a, * oe

acting within its rights’ (R. 434).

1. Cf. brief of The Brown Instrument Co., bp. 5.

ILI.

Reasons Urged for Denying Certiorari.

1. Where the decision below is manifestly correct, and —

embodied in a sound, well reasoned opinion, it should not —

be reviewed merely because the issues are of broad public ;

importance, and the case is one of first impression.

2. The decision of the Cireuit Court of Appeals is in

complete harmony with the public poliey pronounced by

this Court.

3. The decision below settles the law sufficiently to ad. :

vise the public, the Register of Copyrights, and chart manu-

facturers of their respective rights and duties.

Respondent asks this Court to deny certiorari.

Respectfully,

Faw.ey-Brost Company,

By Avserr I. Krean,

Estuer O. Kerean,

Its Attorneys.