Transcript of Record — Champion Spark Plug Co. v. Sanders

Supreme Court brief1947

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‘TRANSCRIPT OF RECORD

Supreme. Court of the United as

- e OCTOBER TERM, 1946

No. 680°

CHAMPION SPARK PLUG COMPANY, PETITIONER,

’

vs.

PETER SANDERS, SAMUEL SANDERS AND HAR ¥:

SANDERS, DOING BUSINESS AS THE PERFEC

RECONDITION SPARK PLUG COMPANY

Poe Peart 5 a

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT

OF APPEALS FOR THE SECOND CIRCUIT

ny ae! 4

PETITION FOR CERTIORARI FILED VOVEMBER 1946.

CERTIORARI GRANTED DECEMBER 16, 1946.

. f

> : * >

. ; € ‘es ¢

‘0a, agi &

( 3 \ .

INDEX.

| ) sa

Statement Pursuant to Rule 13 .... - nbdesgetans 1

leper veorrs rere pnctex ads esueas “ad

BI 5 ii ig cba: sth 04 (REO Re A ORO epee -19

Pe sscauignd sion 5 ie hn dte Gee ae bean ds ses cee oe 24

Motion to’Dismiss ..............-. AAA eo

PUSUUORION « ccciesicn cscs se ied es LCdecdewaes . .385, 459

Motions and Discussion .........:.s...seeeeee: Pris

Opinion} of the District Court on Motion for ci i

Mai TAMIA Cs 5s cc nascar sass 49]

er.on Plaintiff’s Motion for Plana Injunc- —

tion and on Defendaits’ Motion to Dismiss .. 306

Order on Consent Modifying Order on Preliminary

| Injuitction Motion ..:...........4- EROS pebet 3.

% - Opinion of the Disigiyet Court on Final Hearing gaat. ae

‘Findings of Fact and Conclusions of Law ........ 519

RN ainsi haces ck saeco ueew ess ok eee \beneeces 52

Perpetual Injunction ................ wanes estes 533

Defendants’ Motion for New Trial ................ 536

@ Affidavit of John Wilson Hood ............. ade at. Aone

Affidavit of Samuel Sanders ee aia 2 Miecsusibgeear _ b42

Exhibit A, Attached /to Foregoing , Affidavit ee ||

- Exhibit B, Attached to Foregoing Affidavit . 548

NG OE 2, ni os Se scticincccsskdanens 551

MEE OT. 0, MU hn Thin sc vacedecaccasaaas 553

Affidavit of S. Brooks Barron ...... Vpeahesceateds 1. ae

Affidavit of John Wilson.Hood .............6..44: - §67

Opinion ‘of the District Court, on Motion fei New

be. . | oe Ver eeoTe Pres ty TE eT TERE P REEL ere ree 562

Order Denying Defendants’ Motion for Leave to = °

Move Pursuant to Rule 59(b) F. R, C. P. «2... 564

f- : P ‘

ii _/ wworx. :

Geers z yume. PAGE

Notion of Appeal ........cccrcssccccoucecseccecs

s gy vitice of: Appea! ..... hin hme ce eine ikchisienhanns

Stipulation as to Contents of Record mn seceuiae

Stipulation as to Correétness of Record ...:.......

Stipulation wate eee eter eee tenes TTse eee 7) ;

Clerk’s’ ¢ oo BAGO oes Nahr” he tetas tec sues

3 TESTIMONY. ,

eee, WITNESSES FOR Puaisriet.,

. Stipulated Testimony of Robert J A. Stranahan .....

Stipulated Testimony of Charles L. Corwin

“ Stipulated Testimony of Howard B. Speyer .......

Bernard F. Grant:; | ; aes ——

2, PAPO, 5.2 <0. PP Oe PTE Tee | Cer ee Te

Crosse? cee et aira’ "eee eeeseewegecen:s Perey or

—— gee! OPE PEL ee » PEE y yD

MN ibs seo ked ca weeeen ~atkxehoawee Sane

Herbert F. Royal: |

A Creer yd ore rene get che eee eeeeees

iter. 3... Nn. c. te cocks bene

ae Re-direct ........5.. eet e cece ces eevee Feces :

Brace H, Sibley: : >

cso aa | inns deaaaeueeen katie ‘a TO

(Recalled) : PRS as ;

Direct ......,... D wah cue ae ba SA cate 197, 212

NN po in anki das Cee daa, 10,221 -

No in aves 0c c Penn cee wan i eee

Re-cross .7.. 2.263... cece. fa as hee oe ve 292

3 Gasege Doyle: | . ‘Ace

| BRR Tyrer ss deck cate une eneaed 179

| EA eae appr MO eekdaneeaa Sa dust ee

PR perry rere rr ee ere Sy ee

Re-cross "A cbwe dees 189 '

“(Recalled) : ; eae te

| ees i vasuses ieedehaUbeghanana.” aa

Stipulated Testimony df"Wilber Owen .::.../..... 448

Stipulated Testimony of P. L. Edwards ........... 435

Stipulated Testimony of Leo Kemper ......... see. 497

Stipulated Testimony of W. E. Sanders .......... 458

“i "Ee WIrNesses For’ Drrexpants.

, ” Samuel Sanders: >\- ;

EP OPPePT TT ST EL e CTL TEES TEPEEE LTTE ) 295

OS ae Seer: eg Oe i no * . 307

Re-direct .+..\... Pea hice eee Bircncccces 340, 349

te CoG ae cae akensaccacn desdeenes 347

(Recalled): / -

Direet...... Be ccna kha c aheeide dhe pe cds 358

aan) <P Priiact cus yaneegesAeceeeensees 367

Nathan Davis; _ oe

Direct ....... Bees eeee aces a Ree 352

Yung Leé: - ns

Diredd.. 5 .)..00000500: ~ Sidi eddeudah so 7 383

‘Abraham Turner: A : |

BC cc ikacts POPPI TTT TPPT TT TTT Tye eee > 306

George Miller Pinney: 5 3 ~

_ Direct eceetenge Ba oe SENET ER ep COR e. S373

Henry ¥. Dorgeloh : Re oye et

Direct . yenedn\s cy oak aetares howe ee eeeeeees 374 «

George Geddie: eee

ES oxeeaeeOn pease Yee WN

CLOSES . oe. he eee eee eee e eaten ete e et teeeeeees 383

"NEE. COR caddie cen ceced icntaeekeeciansun 34

‘iy e e INDEX. pee

De & ’ : ;

; 3 = PAGE

Reading of Affidavit of J. PF. ROM 65 ek

Reading of Affidavit of Hugh Cameron ...... Sein ' $92 -

Reading of Aifidavit of Robert K. Baldwin ........ 399

Reading of Affidavit of Joseph a. —— oe ae ae

William K. Andersen: ma Piura

SEU se nncase vee pads seceeNeshenh ba nthdage | Sw

Armen Kasarjian } | %

AS SEER er ote Pan ak ree epee eeeeeees 416

eva ke Chk nee ue s said sae 4d sieges Cee 434

EEE ee CSE OR PEE TLC ne Mer er 442

NN BOE AG Os BS i nc 86 0s 6a 444.

EXHIBITS.

PLAiNTIFF’s EXuIbits. ty

Offered: Printed

° Page Page

1.—Box of Defendants’ Plugs reeeee <rves- ieee.

2.—Box of Defendants” Plugs i xie ek eaed ee 35 ” ;

3.—Box of Defendants’ Plugs 4) eae wenbeke es

4.—Box of Defendants’ Pluyé~:........... 3. °

5.—New Champion No. 7 Plug bentiisiecen ae °

6.—New Champion Carton ...,...... poe “3°

‘hampion Carton we Ss

7.—New Champion Container pee utheea 48 .

8. —Foster’ s Reports on Removal of Mark- ie

f ings ISG POO ERS Pee Mee or ee ry er yey 118 461-64

~9.—Champion Plug. from which ° a’ |

were removed oy ‘witness 8 Royal eveteee 122 '

*Physical Exhibits. | ei @

—)> er iy oR

7 é | oy

»» _ Offered Printed:

Page Page

10. tale drawing of ‘Champion 1-piece

plug Do skh n ssa OO CSTR ENS OHES ORES 4 141 _ ;

11.—Large drawing ‘a. Champion 2-piece -_.

oe)! | preys 7e ey rey Pere rs 1... 141 .

12. .—Champion 1937 di Sheet Jena dha auch ys ee Wy, \

12A Champion 1945 Gap Sheet ..... siete 4 ss

"13. —Champion Gap tees eos paw wees 151. 465 °

{3A —Champion Gap" Notice .....5.005. wee. 151 466

13B.—Champion Gap Notice ....... wi legsee: A 466 |

130. —Champion Gap Notiée |... 0.50.6. 6503 153 ° 466

14. —Champion 1942-44 Catalog .5......... 13°. .¢

- 15.—Champion Drawing of H-10 plug neees 159 “

_15A. —Champion Drawing of No. 7 plug’.... 159 467

-. 16, 16A, 16B, 16C.—Sibley ee on Ex- |

hibits 1 to 4 11... cece cece esos . 170 -

17. —Champion Drawing of H. 10-C plag™:.. io 171 : ms :

3B —Chart salted Changes in Defendants’ | ; ;

PlUgS 0.6 .i sec e cence cece eee ee cece eens 199 © & e

19,'19A, 19B --Cnasiglon —e Plug Cleaner | a

| Br eyt errr TT Terri sree S| Fi

| 9. eee ‘Plaintiff’s Rolfe . Patent No. - tino

MRORMNO wc cescbevectnes ess notiees wees 222° °

21. .—Champion ieawiie No. 7 Commercial ee ;

Plug aa een tte tneeegeeeesee sees oy ee 468

| "Physical Exhjbits.

ie,

Xe |

vi INDEX.

| Offered Printed

: Saupe tay ; Page Page

22.—Letter Plaintiff to Defendants: .:...... 314 469

23, Letter Plaintiff to Defendants ....... ‘ 314 473

— 24.—Letter Defendants’ Attorney’ Lefkowitz :

to Plaintiff .......-..6.6s06, maaan 31a 474

25.--Letter Owen to Lefkowitz .. as at coe . 314°" 475. a

26.—Letter Owen to Lefkowitz ......... ai 314 . 476 :

17.—Letter Plaintiff to Defendants ........ 315 478

28.—Letter Owen to Defendants ........... 317 479

29.—Copy aon Xx Trade-Mark No. |

ee Rie Re 445 482

30. phidealae t Carton, Container and — .

Plug oe. eee eee ence ees Pee eeseeseees on een

7 DerENpANTS’ Exu sits,

AnChadeds tis ME 00. eas 83 483

B ——Cut of Engize Head ........ Riki soe wee G1 484

Cc -——Oldsmobile Handbook: of 1940 bbe ed weee 92 ”

D.—Champioh 1938 Size Chart pith cle dacs eee 101 | era

E.—Size Chart” pean es At LRT Om AERIS ae. 5

7 F.—Photo Defendants’ StoreArront jueacaan 300 85

G.—Deféndants’ Order Blank ...........4.. 300-487

Gi, G2. —Deferidants’ Bill Head and Letter

pe Te ee ere ee tee 300 «= 488

H.—Defendants’ ‘Advertisement Ei Gass 301 - 489

*Physical Exhibits.

| \

i |, INDEX, vii

--9 Offered Printed

: ‘ | we Page Page

_I.—Photo Defendants’ Shelves ...\,..-..-. 302 490

J.—Photo- Defendants’ Shelxes i heat ans So

, K.—Champion Plug, Box and’ Wrapper es erates

L.—Three Boxes Defendants’ Plugs ........ “389 7

RB (Remarked L1, L2 and L3, page 483)

M.—Defendants’ Plug ...... ‘i Goacetan wees 360 ’

e N.—Four Defendants’. Pius fo. si ery >

O.—Three Pe actanckcadesaxas eee 363 Wade

Pi, P2.—Champion’ No. i. ne a oe

P3. —Champion No. 1 Commercial Piss nica a °

edi 5 SAC OF a

_*Physical Exhibits.

Proceedings in-UL S.C. C. AL, Second Cireuit - * ayy

Opinion, Hand, J. aya

Judgment te . aa)

, Petition for rehearing and cuceeneniieas thereon — O86 —

Reply to petition for rehearing 591

Opinion, per curiam, upon petition for rehear-

ing ; 601

Order supplementing’ opinion 602

“Opinion, per eur iam, upon petition for reheard ing ;

(as am@nded) — 603

Order allowing certiorari G04

Ke Ruited States Circuit Court of Appeals 1

For THE Seconp Circult.

Appeal No. ney es = att s

CHAMPION Spark Pi.ve Company, a ‘corporation,

"Plaintiff. Appellant,

vs.

> Perzr Sanvers, Samue, Sanpers and Harry Sanners, 9

doing business as THe Perrect ReconpiTion SPaRK

Piue Company, —

Getiiaieidit Raia.

Statenteat Pursuant to Rule 13.

This aetion. was en April 12, 1944 upon the

filing of the complaint atid the issuance of the summons,

Chainpion Spark Plug Company, a corporation, Plaintiff,

and Peter Sanders, Samuel Sanders and Harry Sanders,

doing business as The Perfect Recondition Spark Plug 3

Company, Defendants, wet the original parties: and no

change has taken ‘place i in the parties. The su ns and

complaint were served ‘upon defendants April/13, 1944. ...

The answer was filed May 2, 1944. No defendant was ar- |

rested, no bail was ‘taken, and no ‘property was \ettached

or arrested. A motion for preliminary injunction was |

~ heard bythe Honorable Mortimer W. Byers, U; S: D. J.,

and an opinion th ron, handed down Juhe -15, 1944. An

order on the motion “for preliminary injunction was en-

tered November 16, 1944, and modified by a consent order

cab a

Dieware i. . Complaint. ' Ws, .

% ; s 6 ,

on December 6; 1944. The trial was had before the Hon-: -

orable Mortimer W. Byers, U: S. D. J., commencing on

-Mareh 28, 1945 and_ending- on April 4, 1945. No question

was referred to a,Commissioner, Master or Referee. The

final decree. was entered on September 1, 1945. The de-

ia. “ fendants’ appeal was taken Novemiber 30, 1945, and ‘the

plaintiff’s- cross appeal was taken December. 1, 1945.

Pr - ‘ ee Complaint.

INTHE *

U NITE D STATES: DISTRICT COURT,

. Fou t THE Easterx District OF New York.

-Civil Action No. y....... |

eK . (SAMETMLE) 7°...

¢ To the Honorabie- Judges of the District Court of the

United States in and. for the Eastern Distrigt of vhs 4

York. ¢ me i

Plaintiff, Champion Spark Plug Sea a corpora-

: tion, brings -this complaint against Peter Sanders, Sam-

‘uel Sanders and Harry Sanders, defendants, doing busi-

mae — Court as follows:

ness as The Perfect Recondition Spark Plug -Companye

and for its causes of action respectfully shows unto thi

Sota, Pate

RE ae >

‘

Wicca

me 1. Plaintiff is a corporation duly incorporated under

the laws of Delaware on December ~5,-1938, and is a citi-

zen. of said state with its principal office @nd-place of

‘business at Toledo, Ohio.. Upon its incorporation plain-

tiff succéeded to the business, assets and good will of

Champion Spark Plug Company, incorporated under the ©

laws: of Delaware on September 11, 1916, which said com-’

pany-on or about said date succeeded to the business, as-

sets and good-will ‘of Champion Spark Plug Company, a.

|corporation of Massachusetts with its princis._i office and

place of business at Toledo, Ohio. ——

—.

2. Defendants Peter Sentare aud Harry Sanders are

citizens of the United States and residents of Brooklyn,

* in the County of Kings and State of New York, and de-

féndant Samuel Sanders is a-citizen of the United States

_ anda resident of the City of New York, County and State

of New York, all in the Eastern District of New York,

where they conduct the acts hereinafter ‘complained of

under the name and style The Perfeet Recondition —

Plug —r o:

3.: This i is an aitians ten infringement of a realotéred

trade-mark and for unfair competition in trade. The ju-.

_ risdiction of this court as to the cause of action for trade- °

mark infringement depends upon the trade-mark laws of |

- the United States and as to.the cause of action for unfair

competition depends upon diversity of citizenship. The

nt, in controversy in the cause of action for unfair

comp¥tition exceeds the sum-of Three eae Dollars

“@

Compiaint.

been the pianufactare and sale of shack k plugs and spark

plug cores and insulators, and during all said period the

word Champion has been used by them &s a trade-mark

for spark plugs sold in interstate and foreign commerce.

Plaintiff and its predecessors have generally applied said

“trade-mark by printing it on that portion of the insulatot

which is exposed to view when in use as an.element of a

complete assembled spark plug, and also by printing it

on the cartons and containers in which said spark plugs

are packgd shipment and sale to the motoring public.

One each of plaintiff’s spark ‘plugs, cartons and containers

bearing the trade-mark Ch@mpion as it has been so ap-

plied are filed herewith as Plaintiff’s Exhibits:1, 2 and 3,

respectiv ely. . -

= :

5. .On April 25, 1913, plaintiff's geedeneeset, Cham- .,

pion Spark Plug Company of Massachusetts, being then —

the exclusive owner of the trade-mark Champion for spark

plugs, filed in the United States Patent Office its applica-

tion for registration thereof in Class No. 21, Electrical

Apparatus, Machines and Supplies, and having complied

with all the provisions and requirements of the statutes

' of the United States in such case made and provided, after

proceedings duly had in accordance with said statutes, a

certificate of registration of said trademark Champion

for spark plugs was, on August 12, 1913, issued to said

applicant-as Registration No. 92,950, a copy of which is

filed herewith and marked Plaintiff’s Exhibit 4.

6. Sinée prior to said registration date the name

Champion has been continuougly used by plaintiff and its —

predecessors as a trade-mark for spark plugs in “interstate

and foreign commerce and pe is the sole and exclusive

— of plaintiff as a trade-mark for spark plugs.

Complaint. a

Said Certificate of Registration No. 92,950 has, by mesne °

' assignments in writing, become the sole and exclusive

property of plaintiff, together with the good will-of the

_ business of its taid predecessors, Champion Spark Plug

Company of Massachusetts and Champion Spark Plug

Company of Delaware. Said assignments were duly re-

corded in the United States Patent Office, and the same |

or duly certified copies thereof are ready here i in court to

be produced as Your Honors may direct. Said certificate

was duly renewed by plaintiff’s predecessur on Apri) 11,

1933, and a copy of said renewal certificate i is filed. here- —

with as Plaintiff's Exhibit 5. ,

7. Plaintiff and its a tinceicain saée sainitmitina

and sold interstate and foreign commerce nearly one

billion spark plugs bearing the trade-mark Champion and

have expended more than twenty million dollars in adver-

tising the merits of Champion spark plugs. By reason

of the wide general use of plaintiff’s said spark plugs and

the extensive advertising thereof, users of ‘spark~plugs -

generally throughout the United’States have come to rec- -

ognize spark plugs which bear the trade-mark Champion -

as poe superior qualities and durability.

8. It has long best the practice of plaintiff and its.

predecessors to provide a Champion spark plug for every

13°

make of gasoline motor and in order to do this Champion ..

spark plugs for a number of years past have been made

-in a large number of types. Plaintiff now and for a num-

bér of years ‘past has mannfactared its Champion spark

plugs in more than seventy (70)+ different types and

states in its advertising that ‘‘There’s a Champion spark

plug especially designed and -made for every ine.”

; Aythgngh: plaintiff's spark plugs are made in a large

6 | ¢ . he

Complaint.

16 jiumber of types to meet the varying. requirements of

.different motors, the variations between different types

‘in many instances are slight and are confined largely_to

the firing end of the plug, which is riot visible when the

plug is installed in an engine. The use of any type of

’ plaintiff’s spark plugs-in’an engine fgr which such type

is not adapted is likely to give ‘ung@fisfactory service.

* 9. The form.and location @the sparking faces of the — -

electrodes in a spark plug and the width of the gap be-

_-tween them (called pede rk gap) shave a great influence

on the operation of the nrotor in which the plug is used.

Too wide a spark gap will cause a motor-to miss “at high

speeds and too narrow a gap will case it to start and

idle poorly. AH of plaintiff’s spark plugs ..when -they .

leave its.factory have correct electrode facings and spark

gaps for the motors in which they are recommended for

‘use by plaintiff. These gaps vary from .015” for some

types of esr eas sae plugs to .040” for other, types.

o .

" . 10, Plaintiff has at all times. used only -the highest © |

; quality of materials“atid workmanship in the manufacture

of the various pay s entering into the construction of

18 its Champion spark plugs and has exercised great care

in properly assembling said parts into complete plugs -

ready for use in automobile motors and other combustion

engines. It has been the custom of plaintiff and its’ pre-

decessors for many years past to sell Champion npr

plugs under a guarantee of absolute, satisfaction to

user, and it. has been the practice of plaintiff and i

: \ predecessors for more than twenty-five years to oor

or repair free of charge any Champion spark plug which

fails to operate satisfactorily in the. service for which the -

' plug was recommended by plaintiff.

ot =

“S

e nr oi . e

4 ry . ; P i

ds ;

Complaint.

11. Not ithetainding the care exercised i, plaintiff 19

in the manufacture of its spark plugs, the violent usage

to which spark plugs are subjected -in internal combustion +g

engines causes them to gradually lose their efficiency due

‘ principally to erosion of the sparking ends of the elec-:

trodes and fe the’ insulators becoming impregnated with |

“ and covered by carbon, iron oxides and grease. It is”

desirable from the‘ standpoint of performance and at the

_ same time economical to remove all makes of spark plugs

and replace them with new ones after, they have’ been. sub- ¢

jected. to long or ‘severe, usage. Plaintiff and other lead- -

ing: spark plug manufacturers recognise these facts and °

' many automobile manufacturers 4dvocate and recommend

the substitution of new spark plugs in their automobiles

every ten thousand (10,000) niles: of travel. In purchas-

__ ing new plugs for~use in-place“of those which have be-

. come worn out or defective, car-owners commonly have

ibd change made at garages and service oo where

fhe old plus are removed by an attendant and left by

the car owner. As a result of this practice large numbers

of ‘used Champion plugs accumulate at gatages and

service stations, without cost to, them. Car!o owners thus

securing their spark : plugs believe and have a right to.

_assume that they are receiving the latest and most effici- 94

_ ent product of the particular manufacturéy whose plugs

they purport to be, and if such plugs do not give satis-

factory service. they are condemned in the mind of the

purchaser who ‘either returns them to the manufacturer

for. replacement or repajr or tries a different rite of)

Pine: - |

| : Hen fi

12 Ase result of. extensive advertising and‘ of the’ Ge Din

high quality and uniform excellency of spark plugs man- __

_ufgctured and marketed by plaintiff and its predecessors ;

oats

20°

eo :

A ee

P Complaint.

2 under the -¢rade:mark- Champion, plaintiff’s ‘said spark

‘plugs have acquired a:recognized and enviable reputation

| throughout the. aves States and foreign countries.

Users of plaintiff’s spark plugs generally are well

satisfied with ‘the service they give and in purchasing

plugs for use as replacements they nerally’ desire to-

secure new plugs of plaintiff’s manufakture and call for

them mérely by the name Champion, leaving it to the

judgment and integrity of the garageman or attendant |

ply them with new Champion ~_ of the $e ota

type for their ear.

‘a

23 13, Well instation the iain facts, withon plaintiff's ©

consent and over ite protest, and in infringe of itg

said registered trade-mark, defendants have, within the

Eastérn Distriet.of New York, and elsewhere within the

~ United States, secured and are securing from garages,

service stations and, other sources, large quantities of

“used ChamBion spark plugs which have been discar

am by their owners. on the purchase of. new ' plugs, and ha

been and are subjecting such used plogs to so-called rer.

conditioning processes “and treatments in an, effort to

remoyeevidences of wear and give the plugs an -appear-

ance of newness... The effect of such treatments is to so:

alter arid modify the plugs in important functional re-,

spects that.:.they no longer truly represent: plaintiff’s

spark plugs of the type number marked thereon by it and

are not Champion spark plugs as that term is used by

plaintiff and known and understood by the trade and

spark ane users generally.

14. Plaintiff ‘is informed and believes, a therefore

avers, that dnring such process of reconditioning defend-

ants alter said spark plugs in important functional re-

‘spects, cut off or otherwise remove damaged portions of

—

electrodes or substi

‘therefor and therfby change the form ‘of the sparking

faves and the location of the spark in the motor cylinders, :

rebend the retaining portions of t lectrodes and, so

treat such remaining ‘portions as_.to \give them the

appearance of newness, provide incorrect and widely

* varying spark gaps, and subject the insu to-‘sand-

‘blasting operations which roughen and eut into the body

_and destroy the shape and impair the efficiency thervof,

and such* plugs are otherwise refurbished by defendant ©

so as to give them the appearance of newness and to* .

make it impossible for. one not. an expert ‘to distinguish 26

. them. from ntiff’s new plugs. Such altered and re-

> fur ugs still having the well known appearance of

plaintiff’s new plugs and bearing plaintiff’s trade-mark

. Champion and original type numbers are placed on the .

market by defendants in direct competition with new.

Champion spark plugs and at prices substantially lower |

than the prices charged by plaintiff for its new plugs,

_ which said refurbished St aa by defendants in

interstate commerce to. se stations, garages, auto-

mobile accessory dealers and others with the knowledge —

that they -will be sold te automobile users when new: and

genuine Champion spark plugs are called for and desired. ~. 07

15, Plaintiff is informed “and belteves a charges

the:fact to be that defendants now have in their posses-

sion large numbers of sueh discardgd spark pings and |

parts thereof and large numbers of such refurbished.

spark plugs and that defendants recently have jncreased

their facilities for thus treating used spark plugs and are

actively \seeking new outlets therefor, and plaintiff fears

pratt and = fPason to eas that defendants will, unless re-

strained by the order of this Honorable Court, dispose of

e different and inferior material 25 - .

| 10

Complaint.

( 28 a lage part of their stock of used spark plugs and parts

‘and®f their records relating to purchases and sales of

used Champion spark plugs before this cause.can be.

heard on. the merits or on motion for preliminary injunc-

tion. Plaintiff further shows that it fears, and. has rea-

“& son to fear, that unless restrained by writ-of injunction

-issuing out of this Honorable Court, defendants will

~ continue to offer for ‘sale and sell and dispose . of large

quantities of said altered and refurbished spark “plugs in

the manner hereinbefore descr ibed - and thereby will cause

further irreparable injury to plaintiff and to the reputa-

tion and standing of Champion. spark plugs. oe

”

une oe Sn Ley

Seconp, SEPARATE AND Dustpoer Cause or- ACTION,

cing paragraphs and hereky realleging the same:

as if repeated in full, further alléges that it has been the

the for

practice of plaintiff and its predecessors to adopt a dif-

ferent designating letieF®and/or. number for each of its

seventy or more different types of Champion plugs and

- to print the same on its’ plugs. along with the trade- mark

Champion. Por a great many: years it has been plain-

tiff’s practice_to supply size charts to those who deal in _

new. Champion spark plugs, which charts list the type of

Champion plug which plain recommends for use7in

each different make and model of automobile. The spark '

plugs which, defendants place on the market, although

: they retain the appearance of genuine Champion spark

_ plugs, - eamnst. truthfully be referred to as. Champion

- spark plugs of the type number marked thereon by

plaintiff for the reason that the same have been‘ so,

chaiiged in functional features from their original dimen-

sions‘as they were. manufactured and sold by plaintiff

that they have ceased to have .several of the distinctive

> . So ? , tee

a. , é - . -

: oo

_ Complaint. °

mechanical and functjonal features _which characterize

ew Champion spark plugs and are in fact no longér

Champion spark plugs as that¥term is used by eae

and known to the motoring public.

pa —

17. “Well knowing the above fdcts, without plaintiff’s

license. or consent and oyer its protest, in unfair com-

petition: with plaintiff and fraudulently and with intent

, to deceive the publie aud thereby to obtain the trade and

custom of those who desiré to purchase plaintiff’s new

spark plugs of the type numbers recommended by Plaintiff

for use in their cars, and with intent to profit from plain-

tiff’s good will and the reputation of its spark plugs, and

not relying ‘upon any good will or reputation of their own

for -their product, ‘defendants have, within the Eastern ;

Distriet of New York,‘and elsewhere in the United States, _

sold and offered for sale and confinue to seil and offer

for sale to the trade ‘and the\motoring public their said

used, discarded , and ,altered spark | plugs ‘of plaintiff?s

original manufacture without removing plaintiff’s trade-

‘mark or type-marks ‘therefrom or changing the appegr-

ance of such plugs in their, nonfunctional details, and

Without giving notice to purchasers or prospective pur-

chasers that said plugs have been used and abandoned

hy their- former owners and altered in important func-

tional respects ;°but on the contrary, defendants purposely -

‘retain said trade-mark and type-marks and nonfunctional

features. and the’ well known appearance of’ plaintiff's

. spark plugs in nonfunctional respects as a means to de-

’ ceive the motoring public into purchasing defendants’

said altered and reconditioned spark plugs .as and for

new and: genuine Champion spark plugs of the type

number marked thereon by plaintiff; and with the pur-

pose and intent of furthering such ws and of palm-

Com _.

ing off o the ry storing public , their said reconditioned

-plugs'as a babi new and genuine Champion plugs of the

type eoanee originally stamped thereon by plaintiff, de--

-fendants nrark,.stamp or print on the cartons and contain-

ers for their said spark’ plugs the name Champion or an

abbreviation thereof and_plaintiff’s ‘original type. num- |

bers, which type numbers no longer correctly apply to.

defendants’ said plugs because of their changed and -

“altered condition in functional’ details.

WHEREFORE, and. because plaintiff has no’ * adequate

remedy at law i in the premises, plaintiff prays:

1. That said Certificate - of Registration No. 92,950

be declared valid and that plaintiff be declared to be the ,

lawful owner of same and of the trade-mark therein

shown and described.

2.. That the sale or offering for ‘sale by defendants;

in .interstate commerce, of reeonditioned spark —_ re

bearing the trade-mark Champion, in any shape, mann

or form, may be declared to be an infringement. of plain-

tiff’s said registered trade-mark.

3. That the-use by defendants of the name Champion

on or in connection with the marketing of used and re-

conditioned or otherwise treated spark plugs-may be

declared to be — means of competing with plaintiff.

4. That the use 2 by defendants of plaintiff’s original

type number on or in connection with the marketing of

any. used and reconditioned or otherwise treated spark

plug of plaintiff’s original. manufacture may be declared -

to be unfair means of pompoting with plaintiff. —

Complaint.

5. That printing, painting, stenciling or otherwise

applying or affixing the word Champion or an abbrevia-

tion thereof, to or upon the cartens, boxes, containers or

wrappers ‘in which defendants’ spark plugs are packea

for shipment or sale, or on display cards to which de- -

fendants’ plugs are attached for display or sale, may be

declared to be acts -of infringement of -plaintiff’s said

‘registered trade- mark and aets of unfair competition in

trade against the plaintiff. °

6. That printing, painting, stenciling or otherwise

applying or affixing to or upon the cartons, boxes, con- .

-tainers or wrappers in which defendants’ spark plugs are

* packed for shipment. or sale of the type mark or number

which plaintiff or its predecessor placed on said plugs

when they were manufactured may be declared to be acts

of unfair competition in trade against ‘the plaintiff.

7. That’ the cleaning, polishing, sandblasting, nah. :

‘ishing, painting, lacquering, altering, changing, recon-

structing, reconditioning, disassembling, reassembling or *

modifying by defendants in any manner or to any degree

of any. spark plug of plaintiff’s original manufacture,

with the purpose and intent of selling the same or offer-

_ing the same for sale, directly or indirectly, for further

use as a spark plug,.and/or the sale by defendants of any

such cleaned, polished, sandblasted, burnished, paitited,

” lacquered, altered,, changed, reconstructed, reconditioned,

' disassembled, reassembled or otherwise treated or modi-

fied spark plug of plaintiff's manufacture, may be de--

clared to be acts of unfair and unlawful competition in

trade against the plaintiff, unless defendants shall before.

selling or offering. to sell any such spark plug (1) com-

pletely remove plaintiff’s trade-mark, type-mark and

other identify’ "g@ marks therefrom, (2) make such changes

41.

14 pre

Complaint,

in the’ physical appearance thereof in-its nonfunctional

features as to make it readily and easily distinguishable

from plaintiff's” hew spark plugs by the ordinary pur-

chaser and/or user of spark. ‘plugs, and (3) .give adequate

notice on er permanently affixed or attached to“such plug

that the same is a used plug which has been refurbished

or reconditioned by defendants..

8, That a preliminary indunetion pending fina] ‘hear-

ing and a perpetual injunction at final hearing be entered ;

herein, restraining and enjoining. the defendants, Peter”.

Sanders, Samuel Sauders and Harry Sanders, their rep- —

resentatives, agents, attorneys, salesmen, workmen, ‘em-

‘ploy ees, servants, privies and confederates, successors and

assigns, “and each of them: 3 =f - #,

(a) From selling ¢ or - offering for sale or delivering to

others for sale ani’ spark plug of plaintiff’s original man-

~ “ufacture which has been used and thereafter has been re-

eonditioned or treated. in any manner ‘by defendants or’

others to’ give it the appearance of newness, unless and | nS

until: (1) all re. pE trade-names, style marks, size

marks and/or brand marks have been completely. removed

therefrom; (2) the metal shell and basking nnt have been

completely covered by permanent paint or lacquer of some

attractive color, such as Dueo or Dulux or otherwise, and

(By the word Used all i in eapftal letters, has been indented

in one face of the hex portion: of the inetal shell ‘of said. -

plug, in a size not smaller’ than, twelve- -point type, t.°e.,’

six lines to an inch when set without spaces between the

lines, and the letters of the word Used have been filled -

with a durable heavy white paint, so as to leave each let-

ter of the-word Used fully and distinctly visible in white

on the colored background previously placed thereon, as _

required hereby, such indentations’ in all cases to be of a”

$ 4 -

G- +. Complaint.

depth sufficient to enable, them tod retain enough white 43

-paint to distinetly display eachletter of said word in

-white when the surplus white paint has been wiped from .

said surface; ‘prov ided, however, that if any such spark

plug shall be so small that the’face-of. the hex. is not large -

enough. to receive the word Used in the above prescribed

size. than the size of the type may be reduced sufficiently

to enable said word to be stamped’ into the hex of such

plag, but in case | shall the type be of less size than .

-above preséribed unless the size ‘of thé plug shall render

such lesser size necessary ; we ane

Hac)” From using the word Chemdy ion in any form or 44

combination, or any abbreviation théreof, or any similar

word, either orally or in writing, tn connection with the

sale or advertising for sale of used spark plugs which

» have ‘been reconditioned, refurbished or otherwisg. treated

“$0 as to give them the appearance of, newness;;

(ec) From in any war selling or ‘disposing of or en-

couraging others to sell or dispose, of spark plugs of

plaintiff’s original manufacture, ‘which have been ‘used

and thereafter~ have been reconditioned, refurbished _.

treated-in any manner to give ‘then:’ the appearance of . 45

newness, when Champion plugs are called for or desired;

(d) " Froin di stroving, mutilating, or removing from

the jurisdiction ofthis Court any books, recards, pa

» correspondence or’ documents of any kind aie a———-

chases, sales or deliveries of used spark plugs haying the -

trade-mark Champion thereon, or showing the: recondi- —

tioning, treatim@ or reconstructing of any such spark

plugs or the cost thereof, or to whom the same were sold

_ or delivered, or the prices paid or. obtained therefor; or

from, whom the same were purchased, or ‘where'they were S

/ €L , .

ith

> ee 16

Complaint,

purchased | or obtained, or any books, records, papers, cor-

respondence, advertising matter or documerits of any

kind relating to the defendants’ business of recondition-

. ing, reconstructing, cleaping, treating, selling or vending

said used or treated spark plugs.

9. That the United States Marshal, for this District

be empowered’ and: directed to forthwith seize and take

possession of any and all spark plugs, spark plug cores

-or spark plug porcelains bearing the word Champion

either alone or in association with any other word, figure

- or letter, however acquired, together with any and all

books, records, papers, correspondence, advertising mat-

ter or‘ documents of any kind pertaining or relating to

purchases, sales, offers to sell_or deliveries by .or for de-

fendants of any used spark’ ‘plugs of plaintiff’s original

manufacture, or to defendants’ business of reconditioning,

_ reconstructing and/or selling thereof, which are or may

be found in any office, factory, warehouse or storeroom of

defendants, or any of them, or otherwise under the con-

trol or in the possession of defendgnts, or any of them, ©

and to retain possession thereof’ pending the order or de-

erve. of this Court at final h@aring; and that at final hear-

ing this Court may order the destraction of such seized

- spark plugs.

10. That this vase may: be referred to a Master to

take and report to the Court an account of the damages

which plaintiff has sustained and the proffts which have

accrued to defendants, or any of them, by reason of de-

fendants’ said atts of trade-mark infringement and un-.

fair competition, and that the Master mar be given all the

powers conferred upon Masters by law and the Rules of |

Civil Presedure for the District Courts of the United

States. 3 a

Ge.

. 7°

Complaint.

ss ; j

11. That said defendants may be compelled by decree 49

of this Court to pay and render to the plaintiff all prof-.

itss gains, savings, earnings and advantages which de-

féndants, or any of them, have derived or may hereafter

derive by. reason of any of the aforesaid unlawful acts,

and that in addition plaintiff may have judgment for the

damages so found and the eosts of this Court and of the

accounting, and that the ‘damages so found may be in--

creased and made punitive because of the wilful and fla-

grant character of defendants’ said unlawful acts.

12. That plaintiff may have such other and ,further

relief as to this Court may seem jist’and as the equities 59

‘of the case may require. ; :

May it please Your Honors to issue a writ of sub-

poena under the seal of this Honorable Court, directed to

*said defendants commanding them, and each of them, on

a certain day and under a certain ;enalty to be and ap-

pear before this Honorable Court, then and there to an-

_swer this complaint (but not under oath, an answer un-

"der oath being hereby waived), and to stand to and abide

such further orders, directions and decrees. as to Your

Honors shall seem 1 proper in the premises.

CHAMPION Spark Piva Cimaiont, Ss

By (Signed) Frank D. STRANAHAN,

Vice President.

, a]

(Signed) Owen & Owen,

| Attorneys for Plaintiff.

(Signed) Josuva Warp.

(Signed) Wiiser Owen, :

Of Counsel,

1602 Nicholas Building, |

Toledo 4, Ohio. .

. Sworn to a subscribed 7

Z. dane ——— |

* 2

‘ Complaint. . 3

Srare or Onto,

JoUNTY OF Lveas.

, oa

Frank D. Sivenshor being. duly sworn,. deposes and

says that he is Vice President: of Champion Spark Plug

Company, the_plaintiff herein; that he has read the fere-

_going complaint and knows the contents thereof, and that

the facts set forth are true except as fo those facts which

‘are alleged upon information and belief and as to those

facts affiant believes the same to be true.

(Signed) Frank D. STRANAHAN.

me this _ day of March, 1944

(Signed) Jonny M. _Rostxson, 4

(seaL) Not ry Public,

aa County, Ohio. ey

oo ies *

| -Answer. . a

. DISTRICT COURT OF THE UNITED STATES,

For rue Easrern Disraicr or New York.

’ (SAME TITLE]

SS *

The defendants by their attorney and solicitor John

Wilson Hood, answering: the complaint’ herein, state to

this honorable court as follows: a | , 56

(1. Admit that the plaintiff -majntains an office and

place of ‘business’ at ‘Toledo, Ohio, and otherwise deny

that they possess any knowledge or information sufficient

to form a belief as to the allegations of the first para- aes

graph. co

2. Admit the allegations of the second @aragraph, ©

except that they deny that the defendant Samuel Sanders

resides ur Eastern District of New York, and. —

deny that the défendant Peter Sanders is condugting basi-

ness individually or as a partner in the Perfect R 57

dition Spark Plug Company.

3. Deny the allegations of the third ee ex- |

cept that they admit that the action purports to be based

upon alleged trademark infringement and unfair compe-

tition. -

4. Admit that the _word Champion® tas been used |

by the plaintiff as a trademark for spark plugs sold in.

interstate and foreign commerce, and that said trademark |

. 58

59)

20 .

Answer.

has been generally ,printed upon ‘the iffulators of the.

_ plug and also upon its cartons and containers, but except

as admitted, deny that they possess any knowledge or in- .

formation sufficient to form a belief as to the allegations

of the. fourth paragraph. :

Oe Deny - that they possess any knowledge or infor-

mation sufficient to forin a beli¢f as to the allegations of

‘the fifth, -sixth, and seventh paragraphs, except that they

admit that plaintiff’s spark plugs . have , been extensibly .

_ advertised and are generally Pecognized as being of’ good -

quality. .

6. Deny that they possesstany knowledge or informa-.

tion sufficient to form acbelief as to the allegations of the

eighth paragraph, except that they admit that the plain- ©

tiff has manufactured spark plugs.for, various makes of

gasoline motors and such plugs have been made for a

number of years past in a large number of types, and that

the variations between different types in many instances |

are sligh:; and that the firing end of the plugs is not vis-

ible when’ the plug is installed in an engine. e.

7. Deny that they postess any knowledge or informa- —

tion sufficient to form a belief as to the allegations of the

ninth paragraph, except that they admit that the design

of the électrodes and the width of the spark gap have

some influence on the operation of the motor and tha‘ the

gaps in Champion plugs vany in different types thereof.

8. Deny that they possess any knowledge or r infor-

mation sufficient to form.a belief as to the allegations of

the 10th paragraph, except that they admit the, Cham-

pion spark plugs exhibit. t good waalikg of material and

Sen

Saw 2 (* cats ee

/ | Answer.

_. ~. Deny that they possess any knowledge or informa- 61.

. tion sufficient to form’ a.-belief: as| to the allegations of the

a ap nea except that the¥ admit,that spark plugs

losy.their efficiency if the electrodes become worn ang the

| insulators become foyjed with carbon and other materials,

™\ | and that plaintiff and some other spark plug manufac-

turers recommend the substitution of new spark plugs in

automobiles. every ten thousand niles of travel, and ‘that -

sometimes eat owners have their svark plugs whanged at

garages and service stations ‘by ” Gaaagement thereof. -

“

: ae “Deny: that they possess pan knowledge or e

‘mation sufficient to form a belief as to the allegations. of

the twelfth paragraph, except that they admit that plain-

tiff’s plugs have been and are extensively advertised and

are of good quality’ and are marketed. under the trade,—

mark Champion by the plaintiff, and have a recognized

Psu throughout the United States re, torelan coun-

' tfies .

11. Admit that without the consent of the plaintiff,

the defendants Harry Sanders and Samuel Sanders have

secured and are securing, and at one time the defendant

Peter Sanders did secure, certain used Champion ‘spark . a4

“plugs mariufactured by plaintiff, and reconditioned such

plugs in accordance with standard’ processes to rem6ve-as

much as possible the effects of wear and use and to per-

mit such plugs to give further satisfactory servige, and.

have sold the same, and defendants ar Ser and “

Samuel Sanders are selling the same, as used/and recon-

ditioted spark plugs, like any second hand, repaired. ar-*

ticle of commerce, but except, as admitted, deny: aed ;

zations of ‘the thitteenth - “paragraph.

oN a oe ae Oe ey

Answer.

- 64 12. Admit that on some of its reconditioning work,

the said defendants repaif ectrodes and firing mech-

anism of. the plugs, and after cl¢aning and reconditioning

the said plug, give a portion of the metal thereof a is

\. of paint to improve its appearajce, and stamp each pl

with the word ‘‘renewed’’ in afcolor different than the

\_ background, and sell such reconditioned plugs, originally

manufactured by the plaintiff or by other "manufacturers,

{ in the second hand market directly to large consumers

and fleet owners and in some -cases to distributdrs.cor

dealers, as reconditioned spark plugs, and that such re-

conditioned plugs are uniformally advertised, tepresen

i and sold by the plaintiff as used and reconditioned at-

ticles, and that such reconditioned plugs are sold br

fendants in interstate commerce at prices substantially

lower than the pricegeecharged by plaintiffs for its new

plugs, but except as admitted deny the Papacy i of the

_\fourtéenth paragraph. pe )

13.° Admit that said’ defendants, Samuel Sanders and ©

Harry Sanders now. have in .théir possession. an inven-

tory of spark plugs in various stages of reconditioning .«

processing, and that some of such plugs were originally

manufactured by plaintiff, and that said defendants are

— for new businéss therein, but except as admitted,

deny the allegations of the fifteenth paragraph.

14. Admit that the p&intiff has a different designa-

. tion letter or number or both for its various types of

plugs, and that the same is printed on its plugs, along

with the word Champion, and that dealers are supplied

with size charts in order to select the, proper type of:

Champion plugs, for each differ t make or model x a

- tomobile, and such informatio necessary té be @n

\ Answer.

plug for the. proper Po Soar individualized spark

plugs for the proper motor, but except as admitted, deny

‘the allegations of the sixteenth paragraph.

15. Admit that defendant Harry Sanders and Sam-

_uel Sandérs do, and that defendant Samuel Sanders did,

sell said reconditioned spark plugs of plaintiff’s. original

manufaeture without removing plaintiff's trademark or

type marks. therefrom, and defendants Harry Sanders

* and Samuel Sahders do mark, and have marked, on the

cartons and containers for said réconditioned spark plugs,

the original make’thereof and*the type. number, but except

as admitted, deny the allegations of the seventeenth para-

ay i gs »

me HEREFORE, defendants , demand that the decaplaiat |

herein be disanissed, together with the costs and disburse-

ments of this action.

Joux Wrisonx Hoon,

Attorney for Defendants,

Office & PB. O. Address, |

. 261 Broadway,

Borough of Manhattan, —

at ; x City of New York.

Note: The foregoing answer was paar at the trial

- as shown at folios 74 to 79 of the record. 3 oe

67)

Testimony..

70 1

at UNLEFED STATES DISTRICT COURT,

Eastern District or NEw York,

CuaMmpion Spark Privé Co, :

Plaintiff,

vs,

3 Perer Sanvers, et ‘ie D.B.A. PERrect Recoxprtiox

71 ‘Spark Piue Co., iA

Defendants.

—aaet ° orm ‘

Brooklyn, New York,

“March 28, 1945.

B: fore: :—Hon. MorTIMER W. Byers;

g.. S. D. Jd. -

apvestiries: a"

Warp, Crossy & Neau, Esos.; by Joshua Ward, Fea. and

72 Owen & Own, Escs., by Wilber Owen, Esq. and Carl

F. Schaffer, Esq., Attorneys for the Plaintiff.

Sonn Wisox Hoop, Esq, asda for the Defendants.

The Court: Now, "gentlemen, in the first place -is -it

the fact that there is just one question to be tried and

that is whéther the Champion’ spark plug, as recondi-

_ tioned by the defendants, ceases to be essentially a ‘Cham-

pitn spark plug. Is thatsthe one issue?

Tegiimory.

Mr. Hood: No, your Honor, and to clarify that an-

- swer I might state that by agreement with counsel for

the plaintiff, I am going to amend the answer to include

three affirmative defenses, vets be laches, a and °

.. licenge.

_ The Court: The granting of a license by Fl plaintiff

to the defndant?

Mr. Hood: An .implied nN your Honor.

The Court: All right, let us get. the terms of the

amendment in the record. :

_ Now, the answer was filed, I ‘think, on ‘May 2 | 19441

_ Mr. Hood: Yes, your Honor.

The Court: How is it. to be amended, hy additional

. defenses.

Mr. Hood: By the addition of three Serene re to

_ the answer, containing three separate defenses,

For the first and separate defense, defendants al-

lege—and this is paragraph 16—the plaintiff is the manv--

facturer and defendants are or were subsequent owners

of Champion spark plugs and the plaintiff, prior to the

bringing of this action, advised, urged and induced such

subsequent owners, including the defendants, to clean,

repair and recondition such spark plugs and the acts

of the defendants complained of by the plaintiff consist

of cleaning, Tepairing and ‘reconditioning such spark

plugs accordingly and the defendants, acting upon such

advise of the plaintiff, have continued to engage.in such -

reconditioning business and to invest money. and incur

obligations therein- and the plaintiff is estopped to bring

this action.

For a. second and separate defense, defendants allege - |

. ~—and this is paragraph 17—the defendants, to the knowl-

. edge of plaintiff, have been engaged in the business of re-

conditioning Champion spark plugs for the. past fifteen

. ag a ee

a : : Testimony.

Ss |

v. ae

_years, As plaintiff, with full knowledge of its alleged

"rights, delayed bringing this suit until a lapse of said

fifteen years and. the defendants, in reliance upon such

delay and acquiescence by plaintiff, have expended money .

for advertising and machinery and otherwise changed

-» their position for the worse, plaintiff is barred by laches

from bringing this suit. :

‘or a thifd, and separate ‘defense, defendants itiege

Se nd ‘this is paragraph 18—that the plaintiff’s Champion

gpark plugs in normal use foul from carbon and other -

deposits and suffer wearing of the electrodes and require,

us normal. repairs during the service life of such plugs,

the restoration of the spark gap and the marin, ‘we such

deposits. The functional part of defendants’ recondi- -

tioning of said plugs consists of the restoration of saide

gap and the removal of said deposits and plaintiff, prior

to the institution of this action, advised, authorized and, .

licensed such subsequent owners, including the defend-

ants, to conduct such normal repairs, including the. re-

pairs involved in defendants’ reconditioning of said |

plugs.

Now, in addition to these defenses} my position is,

your Honor, that

The Court: Just a minute, slenas, What were the con-

cluding words, including something ?

Mr: Hood: Including the repairs involved in defend-

ants “rec onditioning of said: plugs. |

The Court: Is that what you are calling an implied

license ? eee .

®Mr. Hood: Yes, your Honor.

The Court: Now,’do I understand there is any ob-

jection to those amendments? 7

Mr. Schaffer: Mr. Owen, my associate, and Mr. Hood

had a telephone conversation ppearding these. My under-

(27

| Testimony. —. ~ gi

standing of it is there is no objection to the defendants 79

pleading laches or estoppel. As.I hear this read by Mr.

Hood—I had not previously seen the form of the para-

graphs which Mr. Hood has*read—but it seems to me that

they are highly argumentative and it is a question whether

- they state ultimate facts. ~

The Court: That may go to the pone sufficiency. I

am asking’ now whether you object:to the amendments

_ to the answer at this time?

Mr. Schaffer: No, your Honor.

.The Court: ‘Then, without objection, the ‘amendments

‘ are permitted.

Mr. Owen: With the understanding, of: course, your ,

Honor, that we ean get the correspon ce regarding

it. We have sent for it. ee

Mr. Ward: Will you produce your correspondence,

Mr. Hood, regarding that question?

Mr. Hood: Whatever my people have,

«<-

a . as 6 e ;

The Court: Do you contest plaintiff’ s assertion that

those selected plugs tomprehended an that exhibit; thas

there was an essential change? .

Mr. Hood: By us? —

The Court; Yes.

Mr. Hood? Yes, I controvert” that, an “essential change,

ves. .,

The Court:.That is an issue) then, is it?

Mr. Hodd:: Yes, your: Honor. \

The Court:. What ‘else is in issue?

Mr. Hood: The fact, as I say, in this particular case,

distinguishing it from the preceding cases in which this

subject- matter has becn invelved, there\is no confusion

of goods between our reconditioned plagy 4 and the new .

plugs.

5 «J *

82”

that the jurisdiction of the Court as to the cause of action

. Laws of the United States. -

; 83.

sy”

Testimony. Sob a oe eae

- The Court: You mane, no’ purchasets have been mis- -—

led? ..

Mr. Hood: That’s right, the eoimpatision is fnir, :

The Court: Are those the ‘main issues?

Mr. Hood: 1 think so, your Honor. = |

The Court: All right, let us see what we can agree

to that has been alleged in the complaint.

It is- alleged in the third paragraph of the. complaint

of trade-mark infringement depends on the Trade Mark

Mr. Hood: I do not supe the jurisdiction of so |

Court. —

The: Court:. The thi paragraph of the answer left

me a little bit in doubt. . However, jurisdiction of the

Court is agreed to, is that right? - ,

Mr. Hood: Yes, your Henor.

iy The Court: I am unable to say, on reading, what it.

3 §: »you admit in paragraph “four and what you deny.

ppose you tell me what you deny. °

Mr. Hood: W ell, paragraph: four is probably | true.

. There are some things in here we caniot be sure about.

For instance, they say all they have-been doing is making

‘spark plugs. I don't: know whether that is so or not or.

whether it is material.

- The Court: Is that the only’ matter you intend to put ©

in issue by your fourth paragraph? 4

Mr. Hood: I don’t think it is a material issue. |

The Court: I didn’t ask you that. I ami trying to find

out what’ the issues are that have to yd tried here. Now, :

-please— — ‘

Mr. Hood: Yes. st pe iiss

The Court: Is that the oi:'y matter in paragraph four .

that you intend to deny?

a oe ag

Testimony.

Mr. Hood: I will concede. paragraph four-is true.

The Court: Very good. Now, paragraph five, you:

deny knowledge and information sufficient to form a be-—

lief... That alleges registration of plaintiff’s trade mark

by the Champion Spark Plug Company of Massachusetts

-.on April’ 25, 1913 and the issuance by the Patent Office

of a certificate of registration, numbered 92950.

_ Now, do you-put that: paragraph in issue?

Mr. Hood: Yes, your Honor, because we don’t know

any ‘thing about that. I think: they should establish that.

The Court: That is a documentary matter, isn’t it?

Mr. Hood: That is true.

The Court: If. you contest ‘it—you have the right to,

of course—have you the certificate of registration here,

Mr. Schaffer?

Mr. Schaffer:- Yes, your Honor,: it is already on file.

- The-Court: It-is a public record, . isn’t” it?

Mr. Schaffer: Yes,’ your Honor. ;

The Court: What is it that you a about it,

Mr, Hood? Du tae

Mr. Hood: It is in all Lichability so, your Honor:

We just don’t know anything: about it,

- The Court: Well; do you deny it?

+ Mr. Hood: You mean, are we prepared to offer proof

that it is not sof—no, we are not.

_.. The Court: Are you prepared to contest plaintiff’ :

proof on that subject?

“Mr. Hood: If they have proof, we are not prepared

to contest .it, no, sir.

.The Court: Suppose you show Mr. ‘Hood the certifi-

cate of registration, Mr. Schaffer? —

Mr. Schaffer: Yes, your Honor (Counsel examining

* documents).

— 30

Testimony.

I might say that the its of peglotenten or a re-

= wal is twenty years.

*Mr. Hood: Apparently it is ischalbit “eats Honor.

The Court: Are you prepared to say now that you do

* not question the allegations of paragraph five as to the

issuance of the registration of the trade mark and its

_ renew al?

Mr. Hood:: I ‘thitwk, so, your Seute.

The Covrt: Its renewal, I suppose, covers the period -

April 12, 1944, when the complaint was filed.

Mr. Hood: Yes. ° ~ 5

The Court :, Now, what about the allegations of para-

graph six, namely; that a trade mark has been used by

the’ plaintiff and its predecessors and by assignment of

the certificate of registration #92950, it has become the

sole and exelusive property of. the plaintiff together

with the goods and good will of the business of, its

_ predecessors,*the Champion Spark Plug Company of

Massachusetts ‘and the Champion Spark Plug Company

of Delaware, and. that the assignments were recorded.

Mr: Hood: Naturally, _ your Honor, we don’t know any-

thing about it.

The Court: Suppose you find out about it now. ‘These

are matters of public record that ‘do not: affect the issues.

in the case and on which I do’ not propose to waste time

taking’ testimony. .

What is your doubt on that subject?

Mr. Hood: As I say, we. know esti about these °

| intercorporate transactions.

The Court: Do you question that the plaintiff is now

the sole holder and owner of the trade mark and the

certificate of registration?

Mr. Hood: The apparent owners.

The Court: I don’t know what you mean by that.

Testimony.

Mr. Hood: I mean, so far as I know. . We haven’t

the absolute faets about, it.

‘The Court: Do you propose to contest that question?

Mr. Hood: No; I have not prepared my defense on

that basis.

The Court: Then, for the purpose , of this trial, may |

it be deemed’ admitted? os

’ Mr. Hod@d: It seems to me that is putting us in a

rather unfair position.

The Court: I don’t think. so at-all.. ‘This is, in fact,

a pretrial. Now, if there is to be any contest over this,

I am entitled to know about it. I do not see why there

should be but perhaps you know of some reason.

Mr. Hood: That is not an issue that I intend to

raise but I do not know a thing about these intercorpo-

rate transactions here. |

The Court: Then, for the purpose of this trial, is it

agreed that the plaintiff is the cwner of the trade mark

aiid ,the. certificate of registration?

-Mr.. Hood: We have seen a certified copy of the re-

newal to the Champion Spark Plug Company, that we

know about, but we do not know aboit these preceding _

companies, -

The Court: Well, suppose you just take a little time

and find out about them.

Mr. Schaffer: Your Honor, I have here a stipulation

as to what the president of the Champion. Spark. Plug

Company would testify to, were he called as a witness.

‘In that stipulation ‘there is Yreferenee to those assign-

ments,

Mr. Hood: I will not dispute that they own the trade

mark, your Honor.

Mr. Ward: I assume that Mr. Hood’s iintennenii in- -

cludes also the registration of the trade mark.

» : _ +» @

, ve » Testimony.

The Court; That is established by the certificate, isn’t

it?

Mr, Hood: Yes, sir.

The Court: Now, paragraph seven of the complaint, is

fairly argumentative, isn’t it? I think that the fifth

paragraph of the answer probably contains admissions—

the defendants admit that plaintiff's spark plugs have

been extensively advertised and are generally recog-

uized as being of good quality. |

Mr. Hood: Yes, we concede that.

The Court: So that serves the purpose, doesn’t it,

so far as this trial is concerned?

Mr. Schaffer: We have some stipulated testimony with

respect to figures on that, your Honor. I think perhaps

it does except we would like to slow at least the totals—

some large quantity. ;

The Court: I imagine that ° won't take very much

time. °

Mr. Schaffer: No, your Honor.

The Court: Now, so far as paragraph eight is con-

cerned, it may he that paragraph six of the answer will

prove to be ‘sufficient. I do not know that we can save-

very much tinie on that.

I suppose as to paragraph nine, the admissions of

paragraph seven are about all that you can expect to

get. : '

As to paragraph ten, I suppose the same remark ap-

plies, and also the same as to paragraph eleven.

The same, too; as to paragraph twelve.

I imagine that paragraph thirteen does not present

any real issue of fact. I suppose itis going to be con-

ceded that the defendant acquired these spark plugs of .

the plaintiff's manufacture which had been’ discarded. I

do not suppose there is any issue about that df-all.

Testimony.

Mr. Hood: That is quite true.

The Court: The concluding clause of paragraph thir-

teen, I understood te be’ the main igsue in the case or

that it presents the main ‘esue in the case. —

Paragraph fourteen really expands the —

of paragraph thirteen, doesn’t it?

Mr. Schaffer: Yes, your Honor.

The Court: Paragraph fifteen is a farther expansion

of the same essential cause of action as alleged by the

plaintiff, is it ‘not? :

Mr.‘ Schaffer: Yes, your Honor.

The Court: Paragraph sixt-en is really a-further ex-—

pansion and paragraph seventeen is argumenative in

that it attributes a purpose to the de fendant which |

think they deny.

Mr. Hood: That’s right.

The Court: Well, I guess we understand ‘the -issues |

now.

‘as Exhibit 1 those spark plugs that we were talking

about. Haven’t you. forty or more syark plugs?

. Mr. Schaffer: We have the forty right here, your

Honor. 3

Your Honof, there was a rather involved procedure

in purchasing these plugs and getting them to the

Champion engineer. We now have at least a partial:

stipulation that certain persons went to the defendant’s

place of business and purchased these spark plugs and

sent them to Toledo. Unfortunately, your Honor, they |

went first to the vice-president of the company and from

him to the engineer—we have a chain—and we have stated |

_ all of those facts in the affidavits and I am now asking:

counsel for the defendants whether he will stipulate that —

the forty plugs in question were purchased from the de-

The plaintiff, I think, had , better offer in e ‘idencé

‘ i, See al : "8 a a

- Testimony. anes *

100 fendant in New York andésent to plaintift's engineer

in Toledo for inspection and testing: - ;

The Court: I do not think he denies’ that.

Mr. Hoed: They are our plugs.

Mr. Schaffer: And’ they were acquired, purchased

trom the defendant—there is no question about that?

Mr. Hood: We are not prepared to dispute ithe

Tlie Court: And you are not prepared to-dispute that

they were purchased for or on behalf of: thé. plaintiff and

. that ‘they. found their way to plaintiff’s factory!

Mr: Hood: That’s tight. pe &

The Court: Is that’ what you want, Mr. Schaffer?

- Mr, Schaffer: Yes, your Honor. )

The Court: All niga, you had better omy * them, in,

evidence.

Mr. Schaller’ I offer in evidence. four cartons of ft mpark

plugs, each carton containing ten individual plugs, _pur-

chased from the defendant and examined by the plain-

-y -tiff’s engineer. a

I offer the plugs as Plaintiff’s Exhibits 1, 2, 3 and 4.

The Court: Is that a- separate — for each con-

tainer?

‘Mr. Schaffer: Yes, your Honor. :

102 ~ The Court: I take it, thére is no objection? 7% eer

Mr. Hood: I have no basis for any objection, your

Honor. ne PE alae bay

Mr. Schaffer: I would “oor to identify the

exhibits. I offer as Exhibit 1 a box of case wanes H-10

‘plugs. : hgets

The Court: They ate all number. H- 101 ; ;

.Mr.-Schaffer: Yes, your Honor.

(The abave box of plugs rece ‘ived and marked, ‘* Plain-

tiff’s Exhibit\1’’.)

. The Court: All right, what is number ot:

101

a e j a

. **

. ’ a

—

P Ce 5

: a aes. 35 . iY ae 2

™

‘Testimony. — ‘6

- @* ys Xe

“Mr. .Schaffer:,Number 2 is a box- of ten Champion 103

#7 spark plugs, referring to the type umber of the

plug. " ( : Q |

(The above box of-plugs receive andgmarked, ‘*Plain-

tiff’s’ Exhibit *2’’.) .

Mr. Schaffer: Number 3 is a box of Champion #7

spark phigs. }

‘- The Wonrt: Also #7? ee fi

Mr. Schaffer: Yes, your Honor.

(The above. box of plugs received and marked, ‘‘ Plain-

tiff’s Exhibits3”’.) —

—_— Schaffer: Number 4 is a _ of ten Champién* 104

spark ‘plugs, fype. #7.

"The Court: Also #7?

Mr. Schaffer: Yes, your Honor. TV.

(The dbove box of plugs received and marked, “Pyle. i

tiff’s Exhibit 4’’.).

i Schaffer : May the Court please, my attention is

called tod the fact that in the box of H-16 plugs, Exhibit™

#1, there is contained a plug of the J-9 type. ’ a,

The Court: Well, can if be identified? Does -the -eon-

tainer indicate whieh . fee a

: Mr. Schaffer : The identification “Appears este on the

insulator ,of the plug. 105

Mr. Owen:) The J-9 plug in this particular exhibit,

Exhibit 1, the plug is-marked A-8 by our engineers |

a: Court: Never mind what it is marked, what is

itt

Mr. Owen: It was a Champion J9 plug.

The Court: There is one, g-9 contained in Exhibit 1

and the rest are H-10’s? -

Mr. Schaffer: Yes, your Honor.

The Court: All right, are we ready for testimony? .

106

«107

108

; Testimony.

Mr. Schaffer: May: the Lourt please, we have: stipu-

lated the testimony of three witnesses which we would

like at this tinie.to offer and read into the record, if the

Court &o desires. . ’

- The Court: I do ‘not think you need ‘to take up the

time with that. If there is anything that has not been

covered thus far, don’t you think you’ can refer to that

and then file your stipulation? od

Mr. Schaffer: I think so. . see.

, a |

° The Court: What is it you would like to refer to?

Mr. Schaffer: I have here a paragraph

The Court: First, “whose ter imony <is. his, please?

Mr. Schaffer: This is the testimony of Robert A.

Stranahan, president of the Champion Spark a, Com-

pany, the plaintiff here,

* - — * «a

StiputaTion re Testimony o- Roserr A. STRANAHAN.

‘It is hereby stipulated by the parties. hereto, acting

by their respective counsel, that if Robert’ A. Strana-

han wéfe called and sworn as a witness in this cause, he

would testify as follows: "

I am President of Champion Spark Plug Company,

plaintiff herein, and have occupied - that: office since. the

incorporation of the present company ‘in 1938 and also

oceupied that office in plaintiff’s predecessors, Champion

Spark Plu ug, Company of ‘Massachusetts and Champion

Spark Plug ‘Company. of Delaware, roughout their en-.

tire corporate existence,

37 . ;

| Testimony.

I have at all times been in active charge of the busi 109 -

ness of plaintiff and its said predecessors and have been

“and am familiar with all branches’ of the spark plug

industry.

’ Said companies and their cilia Champion Com-

pany of Massachusetts, have used the trade-mark ‘*Cham-

pion’? on spark plugs continuously and extensively during

the past thirty-five years. '

Said word ‘‘Champion"’’ was registered as a trade-

mark for spark plugs, being Certificate No. 92,950 dated

April 12,.1913, by plaintiff’s predecessor, Champion Spark

Pig Company of Massachusetts, and was duly: assigned

to plaintiff's ptedecessor, Champion Spark Plug Com-

pany of Delaware, and by it to plaintiff as a part-< of the

business of said companies, and was renewed by plain-%\

3 tMf’s said predecessor, Champion Spark Plag Company

” ,of Delaware, on the 11th day of April, 1933.

The word Champion has been used as a trade mark

by plaintiff and its ‘predecessors in business on approxi-

mately He billion (1,000,000,000) spark plugs, which

have seen sold in this countrt and in all other civilized

countries of the}world. More than fight hundred million

(800,000,000) of said spark plugs have been sold in this

. country alone during the past thirty- five (35) vears. 1

For more thai twenty-five years past Champion spark

ylugs have been used as factory equipment on many

makes of automobités, trucks and other motor driven

vehicles, a total of more than two hundred and fortye..

million (240,000,000) Champion spark plugs having been

sold for Such uses by plaintiff and its predecessors. The

spark plugs so supplied never haye been packed in eat-

tons and the first acquaintance of the owner or user there-

with always has been through seeing them in his motor.

110

.%*

plugs -by many years of strict

“Testimony.

In a large proportion oi instances replacement spark

plugs are sold’ on the reputations: they have’ gained

through actual use. Next in order of number come

sales which result from advertisements of the manufae-

turer, All spark plugs look more or less ajike and their -

merits *depend on inherent qualities of the insulators,

electrodes’ and other parts’ and the care and skill with

which the parts aré assembled, so that it is impossible

ven for an export to distinguish between a good spark

Pug and a poor one by means of inspection. -

During ny extensive association with the spark plug

bus i@R2) have seen no less than Sie hundred different

makes of spark plugs appear on the market under as

many Mifferent trade marks and .trade > names, some of

them products of considerable merit, with prices as high

or higher\than ours-and others of little or+no merit ,

and with ‘prices substantially below otirs, and with but

few exceptions those plugs have disappeared after a few

months, Or a Kew years at the most. In my opinion, a_

large proportion of those failures were due to the faet

that the plug was\not known to the motor? public. and

the name thereon kearried no significance. J

Pue to the high quality of materials and. workman-

ship used jin the. man acture of Champion spark pdugs,

their extensive use. as: ‘factory equipment and the large

sums spent in advertising them, plaintiff.’s plugs have

long enjoyed and new enjoy a wide _Feputation as pos-

sessing a high degree of merit and. excellence, \

Plaintiff has built up the reputation for its Champion

ttention to the quality |

of materials and workmanship used in their manufacture.

The amounts of money we have expended for research,

engineering and experimental work -im connection with

Champion spark pligs are. set forth ‘in the testimony

| 4

39.

Testimony.

of our secretary, Mr. Speyer, in this case, and run into 115 ¢

many millions of dollars. — . )

Different makes. of motors’ require slightly. different

types «£ spark plugs in order to enable them: to give

- eflicient service. Plaintiff and its predecessors have long

advertised that——

‘‘There is a Champion Spark Piug especially de-

\ signed and made for every engine.”’ .

+ Th order‘to fulfill this requirement plaintiff now manuv-

‘ tactures and sells more than seventy“(70) different vari-

Aine of its Champion plugs. It has~been plaintiff’s.

- constant endeavor at ‘all times to keep the number of.

different types of its plugs down to a minimum by making

one type of plug suitable for use in a number one 3

ent makes ef motors. It is a matter of economy. i

manufacture to keep the number of types as, low as pos-

sible, a ;

Only slight changes in the Uimensions in the firing

ends of the plugs ‘distinguish one type of Champion

* plugs from another type number, but these slight differ-

ences have been found from long experience to be neces-

sary in order to make good our statement that there is

_ @ Champion spark plug especially designed and made 417

lor every engine.

~ We have learned from experience that a change of

1/16th of an inch, more or less, in one~Of the critical

dimensions in the firing end of a Chanipion plug often

unfits such plug for the most efficient service in the

motors for which it was Seal recommended, even

when the plug is new. 7 | |

Plaintiff is constantiy improving its. product. Sub-

stantial improvements | -have .been made in the form of

_the cores as well as in the material of the cores.

° * ° e. * cr tas

116

. Testimony.

118. The CoyetsAll right; he would so testify?

Mr. Hood: Yes, sir.

Mr. Schaffer: Now, the next witness whose testimony

has been stipulated is that of Charles L. Corwin, and his

title is Sales Manager of the plaintiff company.

STIPULATION RE Testimony or (CHarRLes L. Corwin,

-It is hereby stipulsted, by. the parties hereto, acting

by their reepecttne counsel, that if Charles L. Corwin were

called and sworn as a wifness in this: cause, he would

119° testify as follows:

I am Sales bssinee’ for Champion Spark Plug Com-

pany, plaintiff herein. During niy entire connection with

the plaintiff and its predecessors it has been their cus-

tom to pack each. spark piug which is to be sold for

replacement purposes in a carton bearing the name Cham-

pion, and to pack ten of these: cartons, each containing

a plug,/in a container. On the ends of each of these

cartons and containers the size and type number of the’

plug or ples contained therein are designated, as ap-

“pears from one of plaintiff’s’ cartons offered as Plain- —

120 ‘tiff’s Exhibit 6, and from one of plaintiff’s containers

offered as Plaintiff's Exhibit 7.

It also has been the custom during my said employ-

_ ment to distribute to _ jobbers, deaiers, garagemen and

all others handling Champion spark plugs; what we

designate as ‘‘Size Charts’’, one of which is offered as

Plaintiff’s Exhibit 19A.° Many millions. of’ similar charts

have been’ distributed. They are used by those handling

. plaintiff’s plugs in ascertaining the type of Champion

plug which we recommend for: each make and type of

automobile. When a customer ‘asks for a spark plug,

Testimony.

the clerk “who waits on him usually inquires the type

of ear and the year it was made, and unless he knows

the type of plug required he turns to one of these charts

for the information, It is for this reason that the type

number of each Champion plug is prominently printed

on the insulator of the plug and also on the carton anc

container therefor.

Dealers. who carry Champion plugs in stock usually

place the containers on their shelyes so ¢hat the ends

are exposed to view, and on these ends appear the name

Champion and the size and type number of the plug.

On the sides of the containers and tartons the name

Champion .also appears.. Customers purchasing plugs

over the counter thus may have an opportunity to see

the markings on the containers and cartons when they

make their purchases.

Plaintiff has long recognized that when spark plugs.

-have been subjected to long or hard usage equently

their operation may be improved by appropriate clean-

ing operations, the removal of the burned and pitted |

portions of the: center electrodes and readjustment of ©

_ the side electrodes to provide proper gap spacing. Car

- owners have been’ encouraged by plaintiff to have their

spark plugs examined, cleaned and tested from time to

time, and plaintiff, . has made spark plug cleaning and

testing equipment ‘available at reasonable prices to ga-

rages, service stations and others, as appears from state-

ments-in some of plaintiff’s advertisements offered as

Plaintiff’s Exhibits 19, 19A and 19B. Other leading spark

. plug manufacturers bave supplied similar equipment, with

the’ result that a large pereentage of all garages and ~

_ service stations throughout the country,-are equipped

with facilities for cleaning off carbon and grease deposits

by sandblasting, for removing the~ burned portions of

: . *-

121

122

i23

124

126

t 2 _

\ ;

(

. \ ;

T estimony.

electrodes, thi adjusting the vine gap and for tenting .

the spark. If\is‘ecommon practice for garages and service

stations to perform this service for car owners without

charge and even wien a.charge is made it does not exceed

five cents per plug. In such a transactions the car owner

knows. that he is getting his old plugs back and has no

_ reason to find fault with their performanee or eriticize

the plug manufacturer if they do not give efficient service.

~ During the. period of my connection with the plain-

tiff and its predecessors I have known of a large number

“of makes and brands of spark plugs which have,appeared

on the market ‘for short periods and then havé disap-

peared. without having made any olnpres ssion. This ex-

perience convinces me that no manufacturer of spark .

_ plugs can sell.them in quantities sufficient to make a profit

onthe business without spending large sums of money

in advertising and this’ without ‘regard to the merits of

the plugs themselves. All spark plugs look more or less -

alike and usually they are: sold on the reputation which‘

is connected with the name appearing on them. Such

reputation may be gained in only two ways—either by

extensive’ advertising or through extensive satisfactory

use of the plugs by motorists. The reputation of Champion _

plugs has heen - gained in both these ways.

* * * * * -

For many years plaintiff has published a guarantee in

connection with Champion plugs and has ris cascete any

defective Champion plugs free of charge.

Since the fall of 1935 snd up to January 1, 1942, the

‘price of Champion plugs to plaintiff’s distributors, for

use. in automobiles was thirty-one (31¢) cents each and

since then has been thirty-three (33¢) each. The pricé

= ae 43

‘ak

Testimony.

schedule’ under which distributors resold Champion spark»

plugs to wholesalers and dealers during the period 1935

to January 1, I 42, was as follows:

32} ¢ each to wholesalers purchasing approximat¢lj

10,000 plugs a year. ‘. oy

34¢ each to wholesalers purchasing pe Gos

5,000 plugs a.year. eh

37¢ each: to dealers purchasing rather 1;000

plugs a year.

41¢ each to dealers purchasing in boxes of, 10 Se

_ 45¢ each to dealers purchasing broken packages of

less than 10 plugs.

Since January 1, 1942, the prices- of Champion plugs

to. wholesalers and gealete have been advanced , propor-

y fionately to the advance in distributors prices.

The retail list’ price which plaintiff recommended be

charged to the public for all types and sizes of Champion

piugs for automobiles was sixty-five cents (65¢) each

for a number of years prior to January 1, 1942, ‘and

since then it has been seventy cents (70¢) each. |

In my capacity as Sales Manager for plaintiff I re-

cejved from various sources, including jobbers and dealers

im spark plugs as well as. our own sales representatives,

examples of the advertising literature put out by otier)

spark plug manufacturers’ and by reeonditioners of

Champion spark plugs. Included in such -advertising

‘matter whith has come to my desk in the regular course

of business during the past three or four years there. .

have been numerous advertisements of Standard Parts

of 3033 Main Street, Kansas City, Missouri. Examples

of some of these advertisements, of. which a. number of

copies , were. received by me from points in different

states, were attached to my affidavits in this cause dated

May 31, 1944, and marked Corwin Exhibits A, B, C, D

127

128

130

Testimony.

‘and E.. The circulars marked ‘Exhibits A and#B came to

my. desk during the years 1942 and 1943, that marked

_ Exhibit C came to my- desk during 1943. The ‘‘ Passenger

Car Chart’? marked Exhibit E came to my desk along

with other. advertising. literature, of Standard Parts of

Kansas . as Missouri.

” tthe: Court: All right, it is stipulated that he rare so

y testify,” if called?

» 181

in dollars. from the stipulated testimony of Mr. Howard.

132.

Mr. -Hood;. Yes,

er Be eel ae

Mr. Schaffer: 1 would like. now to refer to a few totals

B. Speyer, Secretary of the plaintiff company.

STIPULATION rE. Testimony or Howarp B. Speyer.

It is hereby stipulated by the parties hereto, acting

by their respective counsel, that if: Howard B. Speyer

were ‘called and sworn as a witness in this cause, ue

would testify as follows:

plaintiff herein, and for more than nineteen years past

_ have, been in ¢' employ of said company and its prede-

cessors at their office in- Toledo, Ohio, during which period

I have had superv ision of and have been and am familiar

with the books and records of said eompanies, and with

the books and records of Champion Porcelain Company,

‘of Detroit,. Michigan, which for more than ten .years

prior to Deeember jA, 1932, was: a wholly owned sub-

sidiary of plaintiif’6 predecessor and which since said_

date has been operat\d as the Ceramic Division of Cham-

pion Spark Plug Company. Prior to the incorporation

I. am Mitetars of Champion Spark Plug Conjany, ‘

G? ..

. 45

Testimony.

- of Champion Porcelain Company, said business was con-

‘ducted under the name Jeffery-Dewitt Company.

Total Plug Sales, Including Equipment Sales.’

The following is a correct statement of sales by plain-

tiff and its predecessors of spark plugs bearing the trade

“mark Champion from June 1, 1910,,to December 31, 19490.

Sales of spark plugs for each of the years 1941 to 1943,

exceeded by | a substantial amount’ the number sold by

plaintiff during any previous year. Figures, for these

years are not shown because of the necessity of secrecy

as to pee figtres during the existing emergency.

To June 30 °. Total Plugs

1910-1911 221,879

1911-1912 615,826

1912-1913 Peet 1,415,066

1913-1914 2,426;328

1914-1915 * + 4,756,887

1915-1916 — 7,926,179

1916-1917 15,319,803 -

1917-1918 24,621,135

1918-1919 ~ 14,412,884

1919-1920 - 25,927,922

1920-1921 13,238,640

_ 1921-1922 14,304,868

1922-1923 — * 24,151,393

192341924 ti. 29,399,004

1924-1925 32,270,190

1925-1926 34,878,251

1926-1927 ©“ - _ - — 30,309,502

. 1927-1998 . ° $1,412,535 —

1928-1929 , - 43,605,893

1929-1930 © — - « 937,897,271

1930-1931 29,905,582

133

134

135

138

‘Testimony.

_, 136 : duly 1 to Dec. 31,1931 © 13,288,615

' Year .

1932 21,815,765

1933 23,475,599

1934 30,969,178 -

1935 a 36,431,844

1936 ) 48,061,433

1937: : 52,815,080 ~

1938 . 43,098,978

1939 | 50,167,372

1940 52,276,696

Ist. 791,417,598

Plaintiff? s spark plugs on which the tee mark **Cham-

pion’? is used are sold in every civilized country in the

world. During the past ten years such foreign sales

by the Toledo company have averaged more than two

and one-half million plugs a year, and-a still larger num-

ber of foreign sales have been- made by plaintiff's wholly

owned: subsidiary, gic eas Spark Plug Company, .of

Windsor, Ontario. ‘

. Advertising Banenailh

The advertising expenditures made by Champion Spark _

Plug Company and its predecessors in connection with

*. its Champion spark plugs from. August, 1,°1910, to De-

cember 3t, 1942 amounted to a total of $19,621,577.11.

The foregoing figures represent the direct advertis-

ing expenditures of plaintiff and its predecessors in

business and ‘do not include any advertising expenses

of plaintiff’s wholly owned subsidiary, Champion Spark

ot. aa

‘Testimony. )

Plug Company, of ‘Windsor, Ontarig, which . conducts a

substantial part of the- foreign sales of Champion, plugs.

Experimental Ezpense. | - a

Prior to 1920 no segregation of engineering and ex-

perimental expenses was made by plaintiff. in connection

with the improvement of its product in its own plant. —

For the years 1920-1942, inclusive the cost of plainti

Engineering Department and of-such other experimental

work. as could be recorded upon plaintiff’s books’ was

#1,401,000.00.

Experinental, Research and Laboratory Work of Jeffery-

Dewitt Company, Champion Porcelain es and

Ceramic Division of Plaintiff. a.

The research, experimental and laboratory work car-

ried on by said Jeffery-Dewitt Company, Champion Porce-

lain Company and .Ceramice Division of Champion Spark .

Plug Company, covering the period from October 1, 191

to Deeember 31,1942 inclusive, taken from the books“and .-

records, of said companies shows a total expénditure of *

$3, 703,975.71. ie

Substantially all of said expenditures. were incurred.

in connection with the development of .new bodies for ©

spark plug insulators, which was practically the only kind

of insulators manufactured and sold by said companies

during the period covered by the foregoing statement.

These spark plug insulators were made exclusively for

and sold only to plaintiff and .its predecessors during the

period Pe to December 31, 1932, sinee which date the a

139

. 140

“141

142

143

144

(es

= | 48 .

Testimon y.

Champion Porcelain’ Company has’ been ppavated as the

Ceramic Division of plaintiff and its. predecessor.

’

‘ ‘ 7 eo’. ° * * a

Mr. Schaffer: One additional point, your Honor, on

the purchase of spark plugs from the defendant which

' were tested bythe plaintiff. ,

Mr. Hood: Defendants admit: their, sale of the four

boxes of plugs Exhibits 1, 2, 3, and 4, to four different

persons between the dates November 12 -and November

"18, 1943, and that they were delivered to plaintiff’s

. witness Sibley in the same condition i in which they were

sold by de fendants.

_Mr, Schaffer: 1 now: offer in evidence a new Champion

spark plug, type number 7, filed by the. ‘plaint: ff with

the Clerk of the Court heretofore. — nh

a ~ *. 7 \*s

(The above type #7 plug reokived and soarked, “Plain

tiff’s Exhibit. 5’’.) :

Mr. Schaffer : I now offer. in evidence the.’ éarton in

which the new (hampion spark plug is ‘packed. That also

was filed with the complaint. -.

? & « * ‘*

(The above carton received and ‘marked, SP aaaaen

Exhibit 6’’.):

Mr. Schaffer: I now ae in ‘~uiaiias ‘the: container

in which ten new Champion cartons are ~—s That also

was filed with the complaint.

‘The Court: i I take it there is no objection.

Mr. Hood: No objection. ©

. (The above container received and marked, **Plain-

tiff’s. Exhibit. gh . }

Nee, - $9

2 . Bernard F. Grant—for Plaintiff—Direct.

Mr. Ward: That was Exhibit number 3 of the bill 145

of complaint, your Honor. & ee

Mr. Schaffer: May it pléase the Court, I assume, in

view ‘of our stipulation, that it will be unnecessary to

offer plaintiff’s certificate of registration and renewal.

The Court: I think so. I think it is agreed that plain-

tiff owns the trade mark and \eertificate > of registration,

_ that it has beew produced and examined by the defend-

- ° + ant and that there is no issue about it. I think that is

' agreed?

Mr. Hood: That is correct, your Honor.

. et” The Court: Very well. 3 Tear ay

< fis oD < . Shoes

Ls “Yer SA Coane

Bernarn F, Grant, called as a witiess on behalf of

the plaintiff, was first —_ sworn ‘and testified as fol-

aha

Direct Examination by Mr. Schaffer: ;

Q. Mr. Grant, where do you -reside? AeNumber. 12 P*

* Breton Road, Yonkers, New York. i:

Q. What*’is your occupation? A. [ am a field serv ice

engineer and parts salesman for the Durham Coinpany

at #17 West.60th Street, New York Citys | r 147

' Q@ And what is ro relative size and standing of the 7

Durham (Company in. the industry! A.° One of the. 9.

largest distributors in ihe United States.

Q. Qf-what? A, Automobile parts and accessories and

service work, .

Q. Prior to your present -position, did you have any

other position, wjth the Durham Company, of another

title?’ A. Yes, I was automotive electrician, foreman

. and service manager: before I went on the outside cover-

' ~ ing held service Ween, *s -

148

149

Bernard F. Grant—for Plaintiff —Dirpet-

Q. How long have aie been with that company? A.

Kighteen years:

Q. 1 will rst refer to your experience | as service

manager of theNYeompany.. A. Yes, sir.

Q. Does -that bring you in. contact’ with automobiles?

A. Yes,

\. Automobiles of the sensed ~patblie driven by -car

owners? A. Yes, it does, directly.

Q. Ina genrexal way{ what is the nature 6f your work -

when -a car is brought into -your service station? A.

~ When a car is brought into our service station, 1 greet.

the customer and I find out the reasons for his bringing

the ear in and naturally, of bis

ASCE rtain what the trouble was,

by a method of motor testing equ

ent which; of course,

consisted of all modern testing equipment availahle and.

we attezipted to sell the customer. and invariably did; a

_ complete” motor diagnosis and analysis to determine defi,

“ nitely what the condition of the eustomer’s complaint

150

determine whether or: not the plug shouk

to give tne man the best .perforntance for his motor or —

_ whether or not they could be dléxned and adjusted and

was and the‘regults neee ssary\ to obtain to correct them.

Q). Ncw, this brings us to the question of spark plugs.

~ Did you also have gecasion to examine spark plugs in

customers’ cars?. A. Yes, sir, I did. ) :

examination? A, W ell, of course, in_every inxtance we >

Q. In a general way, what was the te that

had to remove the. spark. plugs aid the first thing We

did was give them a Visual ee onan hisgwas to

replaced and give him satisfactory further mileage.

If wé foundsthat the plug could be cleaned and re-*

@ pa and -we-conld guarantee the_job, we did so. Other- .

se, we attempted and invariably did sell the éustomer

Taxed plugs and of course, we junked the old ones,

. rath. ot

. Seay a ett

ae ‘

)

x ° d : 5 ‘

“J a

coniplaint and then we _

e nature of the trouble,

be. replaced -

Be reird P. Grant—for Plaintiff Direct.

_&. Ww hat did you: do with these old plugs that you 151

junked? A. Well, we had.a waste barrel filled with all

sorts .of junked ‘material which we ne and we

placed them in the waste barrel. 4

Q. Does. that description also include your hinds

of. Champion spark plugs? A. Yes, sir, all

Q. Which plugs did you sell! A. We -sell-Champion

“and Auto-Lite.

~Q. What are the three leading brands or. considered

to be the three’ leading brands of spark plugs? A. I

“would say Auto-Lite, Champion and AC.

‘ Q. What are° some .of the common defects found ‘in

Champion plugs which are discarded? -A. Well, we find |

in- most cases that the electrodes are burned beyond abil- |

ity to’ use the plug over again to a satisfactory measure,

or we find the electrodes worn away and especially. when

the center electrode is worn down or deteriorated to.

_a great extent and also where ,the skirt of the porcelain

is burned away, or the upper portion of the eetpaee

may be eracked.

_ * Q. Now, what do you mean by the skirt of the porce-

laint A, Well, the skirt is that portion of the porcelain

’ which carries the center electrode sand on the bottom

part, whieh comes out of the shell—I always called. it a 153

‘skirt. . ,

Q. Have you also heard it referred to as a semi- peti

coat? A. Yes, I believe I have.

Q. What about the heat range of Channa seth

‘plugs, are you — with, that subject? A. Yes, I

am a little. °

Q. Did you also examine Champion spark plugs to

determine the. ‘heat range?‘ A. Oh, yes, -we de. roma

Q. What have you to say about that condition as

affecting your decision ‘as to whether or not a, plug should |

152

154

156

Bormay, PF Grant—for Plaintig—Direds.

be replaced in the engine \of the car? <A. Of course,

we always use the factory specification for each car that

comés in.” W e check the factory ‘specification chart to

determine what pl: as belongs in a motor and if we find

that the plug in tie motor is not. of that particular heat .

range, we, examine the plug very carefully to determine

whether it is too cold or too hot and that is easily recog-

nized by an examination of the plug. In a few instences,

where the car may be old or needs a different heat range,

we recommend it and insert that plug for ial sath

formance of lis car. ;

Q. Does the condition of the insulator or the porce-

lain of the Champion spark plug affect the heat. range?

A. Oh, yes, it does.

Q. Can you explain that? A. Well, the heat range of -

a spark plug is determined by the amount of travel the ~

heat has. to travel in order to be dissipated from the .

plug and of course, that is determined by the relative

lengths of the porcelain.

When the poreelain is burned away ont it is short,

: it automatically clanges the heat rhnge of the plug.

Q. Can you tell us whether, that makes a hotter or

_ colder plug, if you shorten the porcelaint A. If you

shorten the porcelain vou make it a colder plug because

the heat has a shorter distanve* to travel in order to be

dissipated. oe! e

-Q. How ‘many spark. plugs « can you estimate are sold

‘to motorists. in your serv ice station by means of installa-

tion in the engines of the earst’ A, My records show,

and also if my memory serves. me, we sell on. an average

of . six thousand a gear.- That myans retail sales, in-."

serting them in meotor—cars that ‘come into our service

were: 3

> Q. Does: me car owner see the carton in which the

prin plugs are contained when they are sold at. your

‘Berna rd F.. Grant—for Plaintiff—Direct.

service station? A. Invariably I would say no because

_—a large percentage’ of the customers leave their cars

with us and I either contact them by ‘phone and tell

them what they need, or by letter, and ‘of course we do

the work while the customer. is away so that when he

-comes back for his car, the plugs are already inserted.

In a few instances, where it is a hurry job and the cus-

tomer hasn’t the time to leave his ear, he may see the

boxes in which the plugs come, in-a ease of that kind, but

that is very seldom.

Q. What does the customer see with reference to the

spark plugs, after they have been installed in the erigine ‘

of the automobile? A. Naturajjy, the customer, when he

comes for his car, he waits be shown just what you

have done, in lots of cases, so you raise the hood and

you start showing him the new wires or the new coil or

whatever you have done and in spark plugs, you can see

the tops of the -porcelains and he can see the name on

‘the poreelain and the type number or whatever he wants

to see. That is the only way he has of identifying the

plug.

Q. But not the ‘firing end of the plug? A. No.

-Q. Does the Durham Company sell any recoriditioned,

so-ealled, or rebuilt: spark plugs? ‘A. No, sir.

Q. Do: you have any. calls or any demands for such a

product? A. Never had any.

Q. Can’t you recall a single instance? A. I cannot

recall a single one, no, sif.

_ Q. What do you furnish when. a customer asks for

a Champion spark plugt A. If the customer asks for a

Champion Apark plug, awe will give-it-to- him. ~~

~ Q. Do’you ask him whether he wants a new or a re-

built plug? A. No, we take it for mae that he wants —

a new plug.

ms +

157

158 »

160

Bernard F. Grant—for Plaintiff—Direct.

* (. Now, what is the retail price of the three leading .

brands of spark plugs you have referred to? A. The-.

Champion is 70¢, the AC and the Auto-Lite’ are 65¢.

Q. | would like to direct your attention to Plaintiff’s

Exhibits 1 and 2; which are cartons containing certain

spark plugs. I will. ask you to seleet one plug from

each of those boxes so that you ean refer to them _—

ing witness cartons)? A. Yes, sir..

Q. Will: you please tell us the identification numbers

on the two plugs you are now holding in your hand? A.

This one is a number. seven Champion (indicating) and

it is taken from Exhibit 2, and this is a rfumber H-10

Champion, taken from Exhibit 1 (indicating). |

Q. What identification number is stamped on the hex .

of the number seven plug? A. B-4,

Q. And what identification number is stwaped on the

hex of the H-10 plug? A. It looks like A-6.

Q. Now, will you please look at the firing ends of

those two plugs and staté what your action would be

if they were taken out of an automobile which bad been

driven into your service station? A. In the first place,

upon removing the plug and examining it, from visual

examination—

.” Hood: I object to this question as .hypo-

- thetical, your Honor.

The Court: I do not. think ‘the fact that it is

Lypothetical is a sound objection. It strikes me as”

being. a pretty practical piece of testimony. I think.

.the witness is heing asked ‘what-he sees in that plug-

or what he fails to see—I — that is the pur-

- pose of the question.

Mr. Hood: But that is not the form of, the ques-

tion, your, Honor. —

- 55

‘Bernard F. Grant—for Plaintiff—Direct.

° , The Court: I realize that, i am telling you what 163

I think it means—am I right in that or wrong, Mr.

- Schaffer?

Mr. Schaffer: I will ask the question in that: way,

your Honor.

Q. Will you please, state what you see or fail to see

in those two plugs that we have just identified? —

The Court: (To witness).Take one at a time.

The Witness: The B-4, my visual oa

would show that it was a re-altered plug or.a

conditioned. plug due to-the fact that the outer 164

electrode has been Temoved and. another one in-

stalled, |

-The Court: Which electrode?

The Witness: The outer electrode. Originally,

the outer electrode is heré—the original outer elec-

trode has been removed and a new one ins@rted

or installed and I also notice that the skift of

the porcelain has’ been . taken away to a. anit 7

extent, removed.

Now, I would not Know whether it was from use ‘

or by. some other means. | 165

_Q. But. it is not ‘there? A. It is not, here.

' Q. Now, the other plug? A. On the H-10, the outer

electrode has also been removed and a new one inserted

and the skirt of -_ poreelain on this plug is completely

.Temoved, - |

Q. Have you ever removed aa ‘examined, from your

customers’ cars, spark plugs in somewhat similar condi-

tion, generally speaking? A. Yes, I have.

‘Q. What has been your recommendation to customers

in those instances? -

_. 56°

Be onaird r. leaukctee Paint Divert

166 . Mr. er I object to that. as immaterial and -

* not binding on the defendant, your. Honor,

The Court): gl will allow this witness to testify

“as to iis Practical experience on the replacement

—of spark plug oa <3 as

The Witne ae would recommend * replacing

these’ plugs: With’ new °plags because I could as- .

sure the customer of a better performing engine

and theretere, better. econoniy, '

(). And what would: you ‘do with the ‘tte plugs which

you are holding in your hand?) &. I would. destroy them

and throw them in ‘the junk barrel.

Q. You have” ‘Yeferred_to the. 'so- called. skirt of the

insulator of the Champion plug. Do you know whether

ut similar feature . is. found . in other makes of spark.

plugs! -A. Oh, yes,’on bot Auto-Lite and’ AC. -

- Q. And the Champion? A.° And, the Champion. ,

(). Dos,you know-the furiction of ‘the skirt of. the -in-’

sulator? K. ‘Well, I know. that it has to be there for a

good reason and the. only reason I know. of is that it

allows the outer edge of the skirt to-retain the excessive

“heat which will retard and ‘eliminate the deposit of soot

168 oF fats around the bottom part of the. poréelain, thereby

“iving it a longer life and wetter firing facitities, That ~

ix the onty reason L know for it to fe, in there, j

The Court: I would like to have that answer

read, : Sects yee

(Above answer read by reporter.) :

The Witness « By fats,- -YORr . Honor, I mean oil

depokits,

167

x e: »y

, PY

Q. Can ‘you etplain sae briefly what. hot-and cold

spark plugs mean—just what that term meats as applied

: “~\

aes | es 57 “ai 5 Ret

a, <%

. Bernard F. Grant—for Plaintif—Direct. 2 re

to spark plugs? A. Well, when’a motor is running in )

the higher temperatures and especially in these modern

engines,. where we have high compression;.you have to

be suré~that you have: the correct, heat range. for that

particular’ motor. o~

* In other. words, if you bisa’ too hot a.plug in a. hot.

engine, it will pre-ignite- the gas’and you will get a ping

@.\ &,or a-motor knock and by going to a cooler range and

determining which is, the correct one for the engine, by

your specifications or, if the motor is old, by observing |

. the plug that you remove, you can give the customer bet-

ter service wud better econoyny. ~ /

In the case of a cold engine—vou have ‘colder motors

which require a hotter plug and if you put a cold ‘plug

in a hot engine, you wi naturally” get poor results from

“the engine, spitting and |

_ nature which will+ cause ser gegen and therefore

“naturally. poor mileage and poor economy:

- Q. Are you familiar with the term “balancing of a

“set of spark plugs’?? A. I .would take. it to mean that

it means a set of, one type of plug. throughout the motor.

That means that you would not want: two different heat

ranges in the same engine, you would want them all of

* . the same type and,.of the same make,»s0.as to -have each

cylinder: giving the’ best performancg | and only a certain -

. Spark plug should be .used in that particular engine to

"give a balanced. performanée.

Q. Do you consider that ‘to he of any importance?

_t . A, Oh, yes, 1 do,.,

— _Q. Making, for better engine: + operation A. Better

"-s engine operation, yes.

Q. You are, of course, familiar. with the general ap-.

pearance of Auto-Lite, Comeapene: and | AC plugs! A.

“

ekfiring and things of ‘that.

170°

171

173

‘. W74

Bernard PF. .Girant——-for Plajutiff —Bircet..

a ie will ask you whether or not you depend an the

trade marks or ‘the type’ markings—the trade markings

on the insulators of those plugs in order to ror ans

them?! A. To be honest with you, I do, because it’ is’

lot easier. I could tell most times, an_ Auto-Lite, a

‘Champion, and an AC, -beeause I have handled so many

of them but ‘it is a lot easier to Just look at the Tame

qud in’ that way- determine what plug it’ is.

Q. What does the word ‘‘Champion’’ on a spark plug,

offered for resale’ as a replacement plug, mean to you

with respect to. the’ condition, of that spark plug? A. f

don’t believe I understand that question.

(). (Question repeated.) A. Well, the name ‘‘Cham--

pion’? on a spark plug ‘offered for sale to me means that

you are offering a customer a new plug and .one of the

best plugs that can be put into his motor.

_ Mr. Hood: Your Honor, I object to that as argu-

mentative, an opinion and conclusion of the wit-

hess and not binding on the defendant:

The Court: I think your objection probably goes»

to the weight of the testimony. I think the wit-

’ - ness’ experience in this business entitles him to say

What he undergtands the trade-mark’ to mean

when’ it appears on a reconditioned article.

} (To witness): That is what you are testifying

. about, isn’t it? |

~The Witness: May. I have the gfestion > again,

please, your Honor?

. (Last question read by the reporter.)

The Court: You are speaking now of a new

_ plug, Mr. Schaffer?

_ ° Mr. Schaffer: I was. nat dicileslictiain I was

*. asking him what the word .meant when he saw

‘it: "4 the insulater of a Champion plug when it.

: z .

bt &

a) > 59:

° 2 . .

Bernard F. 2 dut—for Plaintift Direct.

was offered fo resale to the public, with respect | ae:

to the conditiog of tl ug.

The Court: Are you poRg. to ‘ask bin to say...

the skirt, for instance, has been in part destroy}

-or, a8 in one instance here, entirely destroyed, wh

the word ‘*Champion’’ means in connection with

that if he holds -in his a plug as to which

such a plugt Are you going to ask him to -close

his evest bm

‘If I understand this witness, = is going lo tell be

you that he knows the difference between’ a new

plug and one that is nof new and that the namé .

- ‘appearing on the one that is not new would not 246

fool him.

The Witness: That’s ‘Tight

The Court: I think that is the common sense of

- it, don’t yout.

Mr. Schaffer: Yes, sir..-

The Court: All right. s.

_ Mr. Schaffer: But I “was) getting to a little

- different point about it, vane Honor.

The Court: I will overrule the objection.

Mr. Hood: Exception. “S

The Court: (To witness) Now, will you answer 177

the question? | f Eos '

The Witness:.I answered it. | ~ Sear

(Previous answer of the witness roots by re-

porter.) ; ND ie ae

@. What does eh Champion type number on a Cham- De .

pion spark plug offered for resale as a replacement plug—. >

mean to you with respect to the condition of that spark

plug? A. Well, the-type number of the plug——

. ay

oe ges

vs 60 -

| _ Bernard P; Grant—for Plaintiff >Pirect,

en |

175. Mr. Hood: 4 object.to that, -your Honor,

% r

The Court: Ob)ection overruled.

Mr. Hood: Exeeption. :

The Witness: The type number of .the plug

naturally has a hig bearing on it because it signi-

‘ . fies ‘the heat range of the ~plug. and you would °

ee a thereby know..whether or not. it was the proper

~ ae plug for: that particular installation, by looking up

: . the. specifications for the motor.

mee : ’ The Court: from thé chart, is that right?

he , The Witness: Yes, sir:

fon toathe heat range of the plug? A. Yes, it does, it

~ valso tells vou what size it iy whether 18 mm. or 14 mm.

- Q. How about the des#gn of the plug?: AXIt also

would tell you the type and design of the plug relative

to the porcelain and. also What type 6f shell it. would have

17 Q. Does eka nuihiber- slnedty anything i

on it.

ene Jeast_ you would know that is the design of

plug recommended by the manufacturer for or™~that_par-

' “teslar motor, is that it? <A. That is right. Bake

go SS -Q. Has your experience been such that you can. express

vay opinion as to.whether there is ‘any general, knowledge

on the*part of motorists that used discarded spark plugs,

bearings the Champion’ trade imark, are sold and ingtalled

‘as replacement plugs? ;

ed:

I ohjeet to that deen: \

: I think you would’ have to lay a

foundation by, asking _ thie witness whether he .has

had any experiéyee with. those who purgyased and ©

om used these so-called.rec

MS “Mr. Schaffer: From, my

oN with the witness, your “Hgno ;

Shee gr SNC Ls that foundation, -

ious’ conversation

I am unable to lay

Bernard F. Grant— — Plamtiff —Direct.

~The Court: Then you — not be = the

question.

Mr. Schaffer: Of course, the purpose of my ques-

tion is to elicit fron-the witness an opinjon as

to whether here 6 eh knowledge from his ex-

tensivg — with motorists, that is, any opin-

ion he has as‘ to whether or not the general motér-

‘ist, the general average car owner-is aware of the

-practice of reconditioning and putting spark plugs

back on the market dr aware of the fe that there

is such a thing as a reconditioned plug.

~The Court: Don’t you think you had bettet ask

hini whether he has ever discussed that subject

- with motorists? fh |

Mr. Schaffer: I will do so, your Honor.

' Q. Have you ever discussed with motorists the ques-

tion of reconditioned Champion spark plugs? A. Well,

I have indirectly. Directly, I haven't, because | we do not

sell reconditioned spark plugs. |

Mr. Hood: [ object to that auswer, your Hon r,

it is not responsive, -

The Court: (Qo witness) I ain a little bit inter-

ested in knowing how you ean discuss, something

indirectly. eee) ha

The Witness: Well,'l mean by that, your Honor,

It only happens ou very few occasions where we

found customers to have reconditioned plugs. in

' their motor and then we go into detail why: they

. Should not use them.

“The Court: Have such instances catenvedt

The Witness: Yes, they have.

it is not invariably the case with each ed’tomer.

181

182

“184

a Be a Girant-

SP laintiff —Direct.

The Court:*Can you oe Whether. that has hap- B

pened very” “hia ny Times ? 8

The Witness: 1 would Ha say it lias’ happened

very mhany times.

Tpt Court: And under, those cireumstances, have

you diseussed ' with those customers this general

subjmet of reconditioning?

The Witness: Yes, 1 haye.

Mr. Hood:. Your Honor, may-l object not only

on the ground that the discussions. are hearsay

but -also gn the ground any transac ietions that

these customers may have had wifh other recon-

ditioners are pot bindilig, on tl “defendant, or in-

dicative in any way of the results of the deféid-

ants’ reconditioning. , G eae

The Court: I certatnly agree “that conversations

of this kind cannot be ’ received in: evidence as’

againsté the defendant with faspect to what. the

defendant does to piug, in the aljsence of proof.

I agree to that.. [ do. not think that is coungel’s

purpose, I. think ‘he would *like to elicit a kind

of general opinion or impression with regard to 3

these_20- -called reconditioned plugs.

Mr. food: ‘Our-particular plugs are sold as re-

conditional plugs, .s so. packed~and so advertised,

since the Federad de Comfnission proceeding

and hfve been marked with the prefix ‘‘ex’’,

Noy, it may well be there are. other recondi-

s who are not so conscientious and make

they plugs look like new plugs and they ‘may have

n imposed on some. of his customers and it

would not be fair to have him testify as to trans.

ctions with those customers, with” the ‘mpliea- }

tion that we are responsible.

ots P

4 .

Pen’

| / | -\ Bernard F. Graut—for Plaintiff —Djrect.

— *

The Coutt : If | receive it, it will be only in a

general way and not with any specific reference to

defendants’ practices and products.

Mr. Hood: 1 think as long as. your Honor ‘is -

conscious of the fact’ that it is in no way aire ss

tive of de fendants’ activities watt

The Court: Oh, it’ cannot be held as binding

on the defendant With reference to what the de- .

*fendant does, If there is a general impression

about - these oe oe spark plugs, -it might -

rhat that general impréssion-

oe We 8 |

be Benge to know

Mr. Hood: His testimony indicates: only Brew

isolated instances.

“The Court: Ido not think ithe whole subject is.

very helpful. If people want to buy cece sa

. plugs, they will buy them.

Mr. Schaffer : It I may say so, your Hono; ‘the

point we make is with the trade ‘mark on the in-

Sulator of the plug,- they ‘don’t Know that the

plugs are ,sd-called reconditioned plugs, and fur-

thermore. that the dec ption is so easy Because

th general public. is not aware, of the fagt that

such an article is offered for- sale.

Mr. Hood: We have ‘done ever hing that the

Federal Trade Commission wie

The Court: I think I underst

the theory. :

187

188 -®

189 ©

P\ will allow the evidence dn simply be¢ause the Cir- |

~ cuit? Court: of Appe als adionighes us alt the time |

to let everything in. :

Now, -go right down to the pena of ‘whether

he- distussed reconditioned plugs.

Mr. Schaffer: Thank you, your’ Honor. —

a |

| E | ; . * 64

Bernay tsk. Grant—for Plaintiff—Direct. & ait

190 By Mr. Schaffer: ; ae

Q. Have. you discussed the question of siontitianel

plugs with motorists? -A. Yes, I have. ‘ie are

(. What did’ you learn trom those discyssions with |

respect to recondifioned plugs! A. Well? has. béen

ny experience in the service field, that theré are veky,

very few customers who have come into my service sta-

tion who have known there was such)a thing as a ré

built. or reconditioned spark plug on the market.

They have all more or less asked, when they needed

ee “new plugs, they have asked us for new plugs, not re-

2” 191 built, and when I, have spoke neyo them about rebuilt-

‘plugs, they have, in each instance, thought I meant ‘re-

moving the plugs. and cleaning them. and putting them

back, That is what they thought I meant by recondi-

tioning plugs—taking their own plugs out and cleaning

them and putting them back when it was possible: and

advisable, € e

Q. Mr\ Gant; do | understand your last testimony

correctly, hat you have examined, automobilés which

had reconditioned plugs in them? A. Yes, sir.

Q. And that you have’ discussed that question’ with

__~. the. motorists? A. Yes, in the ¢ cases Where I found re-

192. ‘conditioned plugs in the cary 1: have discussed it with. ©

* the customer and advised him- to put in a new set in

order to get better efficiency for’ his motor, and I ex-

plained ve Psy

a ‘ Mr. Hood: I object to that question, your Honor, . —

ate om the ground that there is no proof ‘that these

~~ ~reconditioned” plugs had anything to do with us. © ~~

2 They may’ have been very Anferier. :

. The Court: The evidence will be received upon

the distinct understanding that it is not offered

as against the defendants in this ease. —

e : ° : : .

, . ms

« : i > +3)

b»

65 Cre

Bernard F. Grant—for Plamtiff—Cyoss.

“Mr. Schaffer: Only on ‘the genera

recorditioned plugs, Wy a.

tice in _marketing..

hy Mr. Schaffer: Re eae, 7

Q. In your discussidns with customers in: whose cars

‘you found reconditioned plugs, were they, aware of the

‘fact that ere aaa — been reconditioned!

The eae ‘Posie, you are eorng, into mind...

‘reading’ now. . «

- Mr, Schaffer: I will -withdraw the question,

Q: W bat were your discussions with customers “about

those plugs? A. Well;,in ‘edch case I. would ‘take the

plugs and point out to the customer ‘where they had

been altered from, their original state by. the insertion

of an extra; outside electrode and where theporcelain

had been worn away in extent that it would be

automatically reclassified - in different. heat range. - I

pointed out to him by instaTing a new set of plugs at.

the propé® heat range, that he would have ie ‘acl

Barer ce and thereby: better economy,

Mr. Schaffer: That is “all,

Q. As I understand wit, di did you say you are still in, Sessa cA

charge of the service station?’ A. No, sir... .

Q. How long has it been since you were in aaa of

He Pee Poa a fi

ae s

oS |

The Court: Yes. I am. speaking “of the de-

- fendants’ practice in reconditioning ayd his prac-

194

195

ys ‘Bernard #. Grant—for Plaintiff—Cross. .

196) Q. And these. conditions te which you have testified

‘. * are conditions of five, years or more, ago?~.A.- That’s:

“right. sects cw > &

< Where was this. service station located? ‘A. No.

7 W est 60th Street, New York City...

"9. What type of. customers did you have, passenger

car owners? x. Passenger car owners, taxi-cabs and |

. small ‘trucks ‘and also large trucks and some busses. 8

ae Q. What was your vimana if any, to the . plain-

4 tiff at that time? ° .

ee The Court: Do you’mean the Champion Com-

19; pany? ae z ;

: Mr. Nood: Yes. iy ‘

~ oa They are no es eer of mine.

» fe -

Q. I mean, iudiisen relations. A. W ol we handled

the ¢ Chainpion: spark, plug. / Z a

Q. And who were you: personally a¢quainted with in

the plaintiff organization at that time? A. With a Mr.

Kaplan, their field representative. ~ Ps a

Q. W hay/is your business relation with the eaasion:

Spark’ Plug Company at the. present. time? A. We still

handle and sell heir spark plugs. .

| Q. Ina large rolume? “A... A large pe en yes, sir, «

‘ Q. And at rable discourits? A. Yes, sir.

.” Q. How did you \earn thahis lawsuit was | going, ont

A. Through Mr.- Schaffer. - |

Q. How long ‘ago did you feta: that? A. ‘Approx ,

198

mately three weeks, I should says . .

ae And Mr. Schaffer, of course, discussed your, testi-

fying -in this proceeding? A.He, did. °

Q.. Did Mr. Schaffer ARE von or read to you a list

of questions at- any time, pri@r to-this trial, that he wanted

2 Ye

Bernarit P. Grant—for Plaintiff-——Cross.. ‘

to ask you‘on this trial?! A: No, he did not show me md

list of questions, ‘no, sir.

Q. This testimony you gave about tke functioning of

the petticoat was given after you had discussed that fune-

tion. with Mr. Schaffer and the Champion Spark’ Plig

Company employees, is that true?- A. No, that has been a,

— known -fact for a good long period i in my experience.

Q. You acquired that.information prior’to talking to ~

Mr. Schaffer?’ A. Yes, that | is why I mentioned in there

that I ‘only: knew that point. ais .:

—6Q. Did you read any text tai periodicals or trade

publications on the subject?” A. No, it is all ” actical ex-

perience. « :

Q. Have. you ever attended any engineering ened or

received any “formal training in internal combustion en-

. gines_and their. operations? A:.Yes, the Michigan State

Auto School and. Brooklyn Polytechnie.

_Q. Is it true that some of, the- plaintiff's plugs do not:

have a- petticoat? A. To the best of my knowledge, they

all have.

Q. But you are’ not sure about it, are yout A: I ‘aha:

not want to be—to swear to it, but. IXctill think. they. have.

Q. But assuming that they ‘do-not glI have a cone

“do you. know - of the reason why a petticoat would

‘ omitted?

« Mr. Schaffer: I objeet, your Honor, = =

* The Court: I think itis proper | eross- examination.

You asked about a petticodt and’ a ‘skirt*and its

function and I think counsel may ergss- examine on

the subject. :

The Witness: Due to the adv antages of: a ‘petti-

: coat, I see rio reason why ‘it’should be. —

201

o°

203

- 204

ieee ee ae,

Berna. d F. Urant—for Plaintiff —C mss.

‘oe

2 QQ. W hat do you think the advantages are hectiles keep-

ing oil off of the clectroty?. A. I think -I- stated in my

‘testimony the only’ reason’ I “knew for it{ being there. }

cau explain it to you again, if you want me to.’

Q. Yes, please. A. The petticoat or the skirt, as I =

it, is the’e so that the outer edge of the skirt may retain

.* . the excessive. heat and thereby elimin te the deposits of

gum formation of oily substances which this’ would have an

tendeney to keep burning away and thiereby keep the ‘end

of the porcelain clean and give it a longer. life, and better

. perfarmang¢e. ‘

Q. Naw, IT want ‘to end you a statement made in ‘ar

affidavi it filed herein by Brace H. Sibley who- is the plant °

manager and chief engineer ‘of the ¢ ‘hampion Spark. Plug .

Cumpany, with reference to a sasicuaay He says:

“Ibis. the term applied’ to. the sharp lawer edge

of 28 insulator and is functiénal in that it causes i

_ oil. Which aceumulates .on the insulator to drip off

the insulator instead of running down the center

électrode and forming a drop between the sparking

°°

sa ‘énds: of .the electrodes.’”

Now, do you agree that that tgif function of the

petticoat? A. Yes, I agree that tat. would -have a’ big.

\ bearing én that condition.’

< Q. Do you agree with Mr. Sibley that ‘that is the fune-

tien of the petticdat‘on the sanetsond A. I agree that is .

- one of the functions,

*--Q. Do you know of any’ reason why Mr. Sibley o

any other functions or attributes of this-petticoat?

—Q. Now, isn’t it a fact that any “oil that might ¢

LA the petticoat. would come. from “below, in the cylinder it-

self, seat aI up! A. Yes. —

2 r ° mes F . . tion

P . * °

rad

4 ¢

pe. etd re

P - a 2

> 7

Bernard PF. Grant—for Plaintig—C ross...

Q. And since ‘+ elaine from, helow, wouldn't it get on

the electrodes. as well as on the insulator? A: Well, it

“would not have “such & tendency to, no, because -that is

’ where your spark occurs, between the two electrpdes. :

Q. The: electrodes are closer to the point of origin of

“the oik than- the insulator, isn’t that true? “A, That i is true,

es; », : . ®

Q. And any oil that came from below would get on the.

electrodes Wefore it got on the ins ‘lator, isn’t that true?

A. No, F don’t think I would agrée” to that.

_Q. Now, whether or aot any oil gets on there depends

upon the heat range of. the plug, doesn’t it? A. What i is ,

that question again? ,

Q. I say, whether or not any oil gets on there dep ehids

upon the heat” range of the plug, doesn’t it?

The ¢ ‘ourt: Ww hat does the word “‘there’’ mean?

rs ? .

Q. On the insulator, that depends: on the heat range

of the plug, doesn’t ‘it? A. No, sir.

Q. I mean, if the heat range of the plug is above the -

* vaporizing point of the oil, tke oil ‘would not get on the

insulator, isn’t that so?’ A. Ypu meat that if you had the

wrong heat, range plug in the motor?

Q. No, if vou had a hot -plu “in there so.that the tem--

. perature was higher than that of the vaporizing point of

the oil, thé oil would not aéeumulate ‘on the insulator?

_ A. If: vou had a hot plug in there?

Q. Assuming that, isn’t that, trae? A. That could pos- | |

sibly be true, assuming that, ves

Q. Now, have you: ever sold reconditioned plugs? 4.

No, sir.

Q. Have you ever done any business with the defend.

ants? A. No, sir.

e \ . -

2 v

208

210

« = : . 4 e i 70

, Bernard F. arene sea ait bs an

2 ‘.

Q. Peter Sanders ang his sons? A, No, sir.

Q. You have been somewhat prejudiced in your point

‘of view: toward reconditioned plugs and for that reason

you fave hever carried them? A. No, I hold no preju- |

lie es—talking about spark -plugs, of course.

Y. Now, the” function of the porcelain that surrounds.

the center electrode. i is one of insulation, isn’t that true?

A. That is one gf them, yes.” Mig ene eS

: 7 a « <

* s

{). The rbpeifie of the spark plug is an air ‘tight ar-

rangemeyt -by ‘which two wires, separated by insulation,

are put into. the compressign chamber of an internal com-

bustion gugines isn’t that trne?. A. That is partly true.

() And there are no mioving parts: connected with a,

spark plug v, ism’t that sof A. That could be answered ves

and no. While there are directly nO moving Parts, the

electrodes do separate due to heat.

Q. Well; the parts thet wear out op a spark’ plug é dre

the electrodes and that wearing awat As due ‘to the burn-

ing under high temperature, isn’t that trie? A. Flee-

trodes wear away aud: also the porcelain, ° |

Q. The porcelain. is far more immune to the action of

heat and gases than is:the electrode? A.. It aj depends

on the hedt range of the plug. if you have tao hot a plug,

then the porcelain would ‘he burned away, overheat and

blister. ~ g

That ix die to abnornial operating conditions? A.

Weil, with current cars it is not, because of the poor gases

that you are using,

() Well, under present conditions then it is really very”

hard to estimate in advance, merely by knowing, the origi-

nal model of the ear and its make,’ whether particular

| plag will function more satisfactorily thai another in that

pariicular enginet. A. In many cases you must determine

‘ : ¥

. tion. e:

— Q. Now, it is: possible by visual examination. to deter-

mine whether or not a plug is defective and should be dis-

Tre ; if

Bernard F. Grant—for Plaintiff —Cross.* |

that by ‘ae plugs that you remove and by visual axamind-

_earded? A. It-is in lots of cases, yes. ay a

‘what the manufacturer has -done to the plug, isn

‘true? vA; That could be true. BN

Q. I believe you testified in your garage you used Vvis-:

nal examination to determine that? A. That‘is~the first

. thing we do. If that shows, by visual examination, there

is no use of voing any further but if visual examination

' shows the plug may be cleaned and adjusted, then I say |

we do that, plus retesting with ine . ting equipment.

Q. An additional examination would disclose whether

the electrodes w were too far worn or whether the porcelain

was cracked, for instance, wouldn’t it? - A. Yes.

(). And a visual examination would also disclose

whether -a plug was merely fouled or the electrodes had

heeome separated, -isn't that true? A. They nab erat

separated. : a

- Q..I mean, further separated than thay. had been when

new? ‘A. Tf there is any doubt in vonr mind, we always ~

use gauge@s to determine that. We don’t. just casually

look at them because they have to be set with a gauge.

Q. Do I understand you to sav it is possible by visual

examination for you _determitie that a cactsoed ping

is merely forled? A. Olives.

Q. There are various cases of tlie fouling of spark

plugs which are dependent ow theoperation of t wine

by the driver and the service conditions and thi gti

have nothing to do-with the construction of th

Q. Now, by reason of particular operating conditions,

ark plug could foul very ‘easily in its useful life? A.

In e¥treme cases, that does happen. — %

211

213

Bernard F..Grant—for Plaintif—Cross.

aid “ (. And in those ¢ ree Septet and usual procedure

in vour trade is to employ such means as will remove. the

fouling? A. To determine what is causing it and reetify

, the condition. | ‘

Q. All right.. Now, this deposit that gathers on the

- firing end of a spark plug consists of carbon or soot and

ailso, in cases of certain gasoline, of lead and other chemi- — .

“eal elements, isn’t that true? A. That’s right.

QQ. And these deposits form a partial short cireuit

faevess’ the porcelain which constitutes the insulayor of -

- . the center electrode and causes the plug to funetion im- |

’ properly! A. T Rat happens in some cases.

_ 215. -(). Isn't it trve, from your experience, that in certhin

cases motorists wha find one ‘particular plug misfiring

_ diseard the entire set of phigs and*say, ‘Put me in a new

ment. My experience has been that the customer does

not come in and tell wou that he wants one or a new spark

*: phig. eer

Q. Haven't you had it happen in your experience? A.

éry seldom. Oceasionally, one spark plug, howev er, does

. go bad, as -I said before. ' 4 ;

Q. Then it’ is true that customers, at times, diseard

‘spark plugs that are ’not ever fouled, isn’t that sof A.

In my estimation.and belief, there would be no reason for—

a customer discarding a spark plag unless it waxeworth- >

‘Jess to him in his engine. aos

Q. I did not ask you. the. question of whether it is rea-

sonable ‘for the customer to do that ¢ or not. A. Well, ‘what |

did you ayt)(C,. w

Q. I want to know if, “rom your experience, it is not

- true that some customers discard os. plugs that are

not even fouled, erely because they want to chatge all —

+ of the spark plugs in their engine? A. I would say very

rarely. , ?

216

» @

Bernard F. Grant-for Plaintiff—Cross.

Q. But it does happen? A. It does: happen.

Q. And it has happened in vour particular service sta-

tion? A. Yes, but veny rarely, though.

Q. And it also has happened that customers in “your

particular sefvice station have discarded plugs that: were

fouled but otherwise structurally. satisfactory, isn’t that

true? A. That is true. aoe ;

Q. And you tended, in the operation of your service.

station, in order:to make a profit in~selling new plugs,

to eneourage people to replace spark plugs? ~ I would

say definitely not.

Q. Did you discourege people from. renewmg spark

plugs? A! Ii many instances we have. .We have had

rem come in and request new spark plugs-and upon ex--

amination, cleaning and adjusting, we found that was not

their trouble. The average car driver does not come in

and know what it is all about,” otherwise he would not

come in.

Q: You protested their desire to buy’ new spark plugs"

‘from yout A. Yes, In many-cases.

217

218

Q. And did the ear owners, in all instances, uniformly .

comply with your protestations and refuse to buy a new

spark plug from you? A. Certainly.:

- Q. Now, with reference to these. spark plugs that have

bien discarded by customers in your service station, that

were not even fouled, what did-you do with those spark

plugs? A. Well, in cases where the customer came in and

we found that condition after inserting new -spark: plugs,

we would take his spark plugs and clean iia adjust

them as best- we could and tell him that we would not guar-

antee him but in most cases, in fact. mostly every case,

. give them to him.

”

220

222

| 74

: Bernard. F. Grant—-for Aerie

(). You gave thorn, hack ‘to ties 4 is that it? A. Yes, sir.

QQ. Now, in the case of individuals wha_did not want

their ate plugs back— “A. Yes..

Q: What did you-do with these spark plugs in shina

teases? A. We broke the pogeelain and threw them in the

ashean. cere” 48 )

~(. Did vou know at

there was 4 market

in a servieeable condition, provided they could be recondi-

tioned? A. elie oe I dig not. I never was approached

‘om it.

Q. You did not know that you could get ‘good money

for those plugs? A. No, sir

Q. Now, the nature of these. deposits that accumulate

‘on the insulator is such that it requires such an operation

a¥ sand blasting to properly remove that, isn’t that so?

A: Yes, sir. : hy?

Q. You could not remove it by just rubbing with a piece.

Q. And’ machines put: out by the plaintiff and\ other

spark plags which provide a means of spraying the firing

end of the plug with sand or other abrasive, under pres-

sure, is a satisfactory and practical means of removing

these deposits, isn’t that true? A. Yes, sir.

(). And you yourself, fronr your experience, don’t know

of cloth? ‘A. Not if it is up in the porcelain, “an

of any other quick, satisfactory and practical way of re- ,

moving the deposits, isn’t that true? A. I know of other

ways ‘of it being done but personally I never dil it myself,

‘so Teannot say.

Q. But this is a common methed— <A. It is 4 common

-methad generally used through the country ‘in cleaning

spark plugs.- 7 . ’

Q. Now, the normal effect of sandblasting the firing

end of the plug is to cause some erosign of the porcelain

ae .

Led ‘ .

.- ¥

oe ; ~

he time you were doing this that

r all second hand spark plugs sfitl

- ,

——he-caused by* an excessive amount of wear and use of the

insulator that surrounds the center eleetrode, isn*wthat so? 223 -

-A. What do you mean by ‘“‘erosion’’?.

Q. It causes it to wear away? A. The end of the Por- »,

celain to wear away?

P) Q. Yes. A. Yes, I would say it does to a certain ex-

tent. ;

) Q. And it is ‘entirely “possible, from vour experience

that such reconditioning by sandblasting could asi

remove or totally remove these petticoats that you refer

tov on thé. insulators, isn’t that so? A. Well, only if it is

done

“THe Court: (Po witness) Have vou observed any 224

such ae

~ The Witness: No; I never have’ in my own shop.

“Q. Will you examine those site: that you were talk-

ing about? <A. Yes. ei Mie.

Q. Now, you said that the petticoat ofeone or the other

of those plugs was more or less gone?- A. That’s right.

Q. And A :

The Court: On’ plug B-4 it is remov 4a: to a cer-- |

tain extent and on H- 10 St is. completely removed.

The Witness:.That’s right. ° ; 225.

@. And w vouldn't you say that the removal iXthe result

of sandblasting, or a sandblasting opeMetion? A. Not:

necessarily, n@, I would not say that. ° cpbhte 3

v Q:. What else causad it in your apinion? A, It could’

spark plug in the motor from which it was removed. a.

Q. In other words, the condition of the removal of.the °

petticoat was caused. by either one or two faetors, use of

the plug‘in an engine or the renioval _of oo. by the

se.

76 ‘

oo: Bernard F. “Graut—for Plaintiff —C ross,

Saal ins

226 sandblasting ssi N Not iiecessarily sandblasting. _

? 1 would sav sv some, form of cleaning. I do not know

how this w an Teeiind so J could not say it was caused by J

sandblasting, ,

Q. You do not none of shy othe form of recondition-

ing in-general use? A. Personally I do know that ther *

¢ are cleaned other ways ur as.I said hefore, Lever did

a ee it personally. ; ARS j e

Q. You don’t know of any form of conditioning in’.

general use that would cause, a con ition, except the

sandblasting method, do youT A. , they do. clean them

by dipping them in sdefe. type af acitSbut I do not know

who degs it~I have heard it has been done.. * «

Q. You don’t know of any acid that would attack that

prtin Revtegy lh attack the metal and the other ‘parts of |

the plug, do yout. A. Personally J don’t kpow of any, no.

Q. As a matter of fact, porcelain is impervious to the

action of most acids, ism’¢ it?’ A. That-I dérnt know.

Q. Now, I believe you said you had ‘no diffe ty telling.

‘Y that these were reconditioned and. not new plugs? A..

AS That’s right. |

“‘Q. In addition ti the fac 4Ors you have mented did

227

you notice that those plugs were painted? A. Ingted = ~

yyg that the metal part has been. painted, a

os Q. Are new plugs painted in your experience? A. I

am not sure whether they are painted or not but of course

they have a new apgetrines because the metal is new.

Q. But they are bare metal? A. To the best of my

, knowiedgé, they are not painted, 1 would say.

i: ' Q: Did you notice on the hex of each one of those.

plugs—

fest: \

The Court: (To ci anes) What do you see on, \

the hex as & look af\it?.— - ca ee . 3

ron \

7 77 : a .

ae <2 2S ane

' Bernard F. Grant—for Plaintiff—Cross. - ;

The Witness: You see marks where they have 229

been inserted in @ eer before and you also see —

“es. ~ stamping on it. Mink it says, “A-6"’ on this-one

i and ‘‘B-4"" on’ the othe. - °

Q. I am not. talking abot that. May. I ‘see ‘that jast

‘a Minute, please? - A.. Yes, sir; (handing. counsel plugs).

Q. Now, talking about this stamp, did you fotice that

‘(indieating to witness)? A. Now that you have pointed

it ouf, I do, but: r had not noticed it before. =

- The Court: What is it that you see? — e-

: z The Witness:-Well, it says ‘‘re—’’. I know what 230

| it is supposed to be but I would ‘aot know from —

reading it. — . i

‘ e + ‘ ,

@. What does it say? A.,I can see **R’’ and then it

looks like ‘‘L.”’ a W"’ and then ‘‘E”’ and then .

— ‘‘WED’’—maybe vou can make it out better than I ean.

Q: Isn’t that. tlie word ‘“Renewed”’ witha little smudge

_ at the top? A. That is what it is suppused to be. me

Q: Did you ever see a word like that on a new plug?

A. No, I never did kee

Bere Q). So that*af a vlance, “it you were examining those

plugs, you tould tell them from new plugs? A. Not by a

- glanee but I could by exagnininy the porcelain -end. -

Q. I mean, by visual examination you could tell to a

certainty, in your own mind that they avere not new plugs?

_A. Oh, yes, I would know -they were not. new plugs.

ey, Q. All right, sir. Now, you have told us that in put-

gting plugs in cars you consulted the Champion recommen- |

dations in the form of a size chart for the particalar

make and model of cart A. That’s right.

(). From your experience, aré there cases ‘where oper-

ating conditions of an individual differs or_a_ particular

ss - . *

4 4 -

’ '

231 —

‘ ‘ e :

ee ee ee wee = — in

. -- QGayp- --* . . ;

oo wer . .

. .

a P

. e :

% / est hous ta F. Crante—for Plainitif—C ross.

: 202) engine in a car have- heen such than some “other plug than

‘the one reconimended on the size chart worked better in

that partieular ehgine? A. Yes. |

-4 , °Q. Will you.tell liis Honer. the reason for’ that? "A.

Well, in some eases where a particular customer, has a. .

particular type of driving, such as over the road or long pr

distance driving, ‘where they do excessive | speeds for a —

lorg period of +“ neyjand also where the motor has been |. ;

allowed to aceun ate’ a good ‘many miles before over-

‘hauling, such as rings or valves, ave have fotnd by: put-

“ting in<either a hotfer or a colder plug’ than the type |

ok originally iaueiind: that maybe -then, the customer will

wei better serviee from that ance engine, », but those” - .

pee remote gases. — ¥Oy :

(). So that the final test of the proper alk plug for

any APES engine is the actual ope ion of that par-

tic ular plag i” that. particular engine, igs that so? - Ay.

In these remote cases, yes. , P :

&: Isn’t that generally true, in~ this particular busi-

nes, that.the proof of the pudding is in the eating, SO ‘

to aaa so far as the recommendation of a plug is con- a, &

cerned? A..No, I don’t agree with you there: +

Q. After an entie, for example, has’ statted to. pump

oil, wouldn't it fequire a somewhat different plug from

* that same engine when.new? A. It would require’ motor

‘job to eliminate the oil pumping. 7

— Q. Just assuming there is no motor job and that there

is oil pumping’? A. Assuming t fe customer, is“fsing the». :

car in that eonditioh and you kn&w it, vou say, ‘‘We guar-

wi antee al¥ our work’’ and we tell thé-tnstomer we cannot

; guarantee any plug in the motor under those conditions.

Q. What I am interested in— A. It is hard for me ‘to.

* answer a question of that type without explaining it that

way. o- 7 rf)

Bernard . Grant-—for Ptaintiff—Cross..

Q. Let me ask you whether or not you ‘are able to.

state with reasonable certainty from your experience

whether or not if is true that -after’a motor has gotten

old, started to pamp oil, one plug will function better in |

that particular engine than some other plug which would

function better when the engine is new?:.A. That is true.

Q. Is.it also true that pumping oil is only one factor

which ‘would cause a particular plug to turn out to be the

‘best plug for that particular engine— ~uch items as speed

Mriving and-the amount of driving, the température and

humidity of the,v icinity and other driving elements would

turn out to affect the operation of a plugin an engine and -

hence the proper ¢hoice of a plug? ™ ‘

¥ mo

>» The Cues. think you can save a lot of time if .

» you“will adtfthe witness whether these charts, as

he understands them, indicate the prpper plug to

use under ‘ordinary: and prevailing conditions.

The Witness: Yes, that’ the question he should

ask.

The Court: Extraordiviary conditions bri ing about

a chatige, isn’t that so? °

The Witness: That’s right.

Q. knd the charts. as you understand tliees are pre-

pared with recommendations for new engines and new

- cars 6f a particular type? A. No, normal — condi-

_ tions, as his Honor said.

~ Q. Now, you said that five vears or more ago -when

you were running the particular repair shop, that a certain

percentage of your customers feft their cars. for repairs

and did not see the plugs until after they were ‘put in thé

€ ngine? °

The Court: He said that \as true as to most.

236

' 237

938 «

fat | on ~ :

te Pee a noe ~%

«Bernard F, Grant—for Plaintiff—Gross.

~Q: Were there not also other customers that came in

and bought plugs over the counter? A. That was not

Irandled in my department, that was another department.

~Q. But. in the same repair shop, other customers came

‘ in and bought them. in. the original cartons? A. Yes, the

“eustomiers that bought them that way came through a dif-

239 |

940

ferent part’ of the organization.

Q. And this particular outlet for spark plugs you-are

talking’ about condueted an extensive repair business

which required leaving the car in the shop? A. In any

service station in New Tork City, the cireumstances of the

City necessarily the eustomer would have to do that.

Mr. Hood: Your Honor, I object to the arswer "

‘as not responsive. e” _ ‘@

: The Court: (To witness) - You are simply’ saying

in most cases a car must stay for a‘period of time;

that\ there “re few repair jobs that can be handled

on deliv ery of the car?

The Witness: That’s right. em

|The Court: Go ahead.

Q. And. ale an ‘outlet for wail. plugs has a repair

shop connected with it, all of the business with customers

of the pr oduet would be done over the'counter? <A. Yes,

if they ‘did not have a répair shop.

Q. ‘Now, when a spark plug is installed-in the engine,

- in-addition to the wiring and the porcelain, the hex of the

plug is also visible from ‘outside the. éngine, is it not? A.

No, it-is not in most cars.

Q. Well, it is-not inside the eylinder,. is" it?, A. It sits

in a recess in the evlinder heail so that it is not visible

without very close scrutiny.

. . - 7 s > *

Q. But you TaINyee it?) A. If you are an acrobat you.

Ce >)

’ Bernard F. Firant—for Plaintiy—Cross.

» Q. You don’t_ mean Yo tell us that‘You have to be an

eeiuha to look at an automobile e engine and see the spark

‘plug in it, do you?’ A. Not to see the poregiata but you

do. to see the hex part of the plug. ie

Q. The hex is the part that immediately joins the:

porcelain, is it not? A. It isn a recess.

_ Q. These recéSses are of various sizes? A. Yes.

. Q. Some are large and some are not so large? A.

. Naturally, to pace ate the size of the plug that you

insert. ©.

Q. Now, just below this hex, in aides Kors is a

‘screw thread’ that fits into the - of the’evlinder? A.

That’s right. .

Q. And everything above the screw head .is outside

‘the cylinder and visible. arom. outside the engine, isn’t

that.so? | :

The Court? Please omit ‘‘visible from outside the

engine’

the matter of the hex. -The hex is there to recéive

0 » e

’ the w reneh, isn’t it?

: *%

Q. Now the recess you saul of is large enough to”

receive a wrench and: ‘permit it. to be turned? A. A Deed

-cial soeket wrench, not .an open end wrench.

Q. You heard read certain testimony here that most -

“spat plugs look more or less alike, did vou wott A. 4

‘did not. hear but very. little of what was said here.

Q.. That’s true, isn’t it? A. What brands—all brands? |

Q. Aside from the trade mark, they look very much —

alike? A. Oh, yes, a’spark plug is a a spark plug.

Q. If the ‘trade markings’ and the type markings were

not present, it would bowery: ‘confusing to teu not only —

e s

2 ' “ 3 »

in view of the ‘testimony of the witness on .

241

242

243

244

. 245

246

* Bernard F. Grant—for Plaintiff-—Cross.

one original ¢ ‘hampion spark plug from another but ope.

original Champion plug from one plug of some other’:

manufaeture? = A. Woell,.talking. from my experience, it

“would not be because | can tell the three leadings brands

of plugs without looking at the type tarkings but: I did

say it was a Jot easier if the name was on there. °

Q).. Even for you? A. Even for me. it is easier.

Q. And is’ it not true that in the Champion line there

are plugs which ‘have different characteristics: but which

are exceedingly similar in visual appearayce ‘aside ftom

_the trade markings and the type-markings? “A. Yes, hut

hee are still Champion spark plugs.

Q. You are familiar ‘with the fact that ie plaiitift .

and other spark. plug manufacturers suggest® -recondition-

ing the firing end of the spark plug every 2000. or 5000

miles of operation, are you not? ‘.

Mr. ‘Schaffer: I object to the question on. the

zround that ‘counsel ghas used sai ici ‘‘reeondi-

tioned’ :

The Court: They suggest cleaning the spark plug

is that it?

Mr.” Hood: Yes, your Honer. ee.

oo The Court: Substitute that. Sey AF cee ee |

Q ‘You are familiar with ‘the fact -that the plaintiff -

and other spark plug manufacturers recommend to’ sut-

sequent owners of the plugs that they remove these de-

posits’ and reset the gaps of their spark plugs every 2500

or 5000 miles of operation? A. Periodic cleaning and ad-

“justing, ves.

- Q. What is that operation ealled in the trade?’ A.

. Just recleaning and adjusting of spark plugs.

: Q. Is it ever called reconditioning? A. I never called

it reconditioning.

)

83.

/ Bernard F. Gra nt—for r Plaintiff—C "ross.

.Q. Fou never heard of that? A. No. ee

-Q. This -is the first-time? A. I have, heard the word

A 1 popeiadtitnn dt but we never: digk it In our service station.

Q. It is-not a taboo word, is it? A. No, it is not taboo.

Theye’ is ‘a lot of diftrence between reconditioning and —

cleaning and adjusting.

Q. When is te @rst time you heard the word ‘“recon-

: ditioninn

At: A. When I was in high school, possibly, a

good many years ago. 7? :

Q: I show you this pieee’ of papeg —_ I ask you if

You recognize it? A. Sure.

(). W hat is it?) . A, It is a ¢ ‘hampion spark plug chart.

: Mr. Hood; I offer it in evidence.’

- - Mr. Schaffer: No objection.’

(The above “park Plug Chart. received and

it ked ** Deféndant’s Exhibit AY”. oe

: .

Q. I now diréet.:your. attention to. this advice on the 4

hottom of tlie chart: ‘‘Inspect ‘spark pliags every 2500

248

miles, reset. gaps, and: recondition the insulator for maxi-_

mum efficienay and ervice =< and f-ask you if you know

what the plaintiff j is talking-about on that sizechart? A.

Well, evidently b¥ reconditioning the i salatos, tthedes

-cleaning the bottom of the insulator froim any substance

‘that may be on it. °° : gh

Q. In ,other words, ~the aword ‘< recondition’ ’—Vour

‘understanding of it from your experience, in examining

that size chart, is synonymous with the word ‘<cleaning”’

that. Mr. Schaffer, plaintiff? s counsel just used? A. Yes,

1 would, say that is right.

(). Then, with that refreshing your ‘Sivcdioetiais, isnt

it true that you have’ heard ‘the word ‘‘reeonditioning’’

vased i in connection with this operation of removing these

t & ; ;

sf . .

247 ©

249

is 3.

Lf Base 84

252

Berna, d B, Grant—for Plaintiff —Cross.

deposits and resetting the gaps of Park plugs? A. I

“still say, no. * , .

. You never heard of it? A. No.

-Y. And seeing this on plaintiff’s size chart is. d com-

plete surprise to vou? <A. I never noticed it there before,

a .

ne, sir. We don’t use that type of chart in ‘the first>~

place.

Y. You have never done any business with the defend-

ants wour self and you don’t know of anyone who has, isn’t °

that trne? A. Yes, 1 know’ someone who has.

(). Is he in court?) A. To the best of my knowledge,

fe is not, |

(). Did you give his name and address to plaintiff's

counsel? A. No. gag

(). Now, you know that the plaintiff puts out a recon-

ditioning.or clearing machine for removing these deposits, °

don’t you? A, They put out a cleaning machine, yes.

4). And this reconditioning or cleaning is ace ympainied .

by sandblasting under pressure? A. That's right.

(). And these miaechines have been widely distributed,:

have they not? A. That’s right. .

(), And they have been the subject of second *hand

transactions, have the¥jnot? A. ‘That I would not know. °

). Wouldn’t you say, from your experience, that at—__

times they have found their way into the hands of opera-

tors who were not very competent ar experienced? A, 3

would say. no, so far as F know—TI° will have to answer

that no. so far as I know. rf

Q. Well, it does take a certain .amount,of competence *

and experience to operate ‘the reconditioning ‘ machines

shown so ay’ not to injure the plug,’ isn’t that true?. A.

Sure, it. does take -a certain amount of knowledge, it

requires a certain amount of knowledge, yes. .

Q. Now, when you were running this repair shop some

years ago, did you reset the gaps of the new Champion

Ge. “ pa

Py » 85 % : ” ae

Bernard F. Grant—for Plaintiff—Cross.

spark plugs before you put thom" in the engine? My Yes,

we checked every gap in all new plugs because of the

fact that’some plugs required different settings and they

usually all came through with one setting. -

. Iv other words, the new plugs that you got had a

standard. gap?. A. Had a standard gap and we had to

sét Nhem in the proper ‘gap, —— er the, specications

ealled for. ~

~ Q. And that was a weneral practice and custom in the

automobile trade? A. It was then but now they come

+ through set for different types of ears. ee :

Q. And other spark plug manufacturers also provided

. plugs with standard gaps and rata eH for resetting? .

A. That’s right. :

- Q. But with these cartons or packages of the plaintiff,

no instrument was furnished to reset these gaps, you had

to have your own instrument, isn’t that right? A. Some- °

‘time ago they did supply a little gapping tool—no charge

for that—and we used to give them tp phe car owners

when they came in. |

Q. Is that being done now? . A. No, due to the’ war.

Q. But that did not come with the individual plug?

A. -We used to get one with each carton.

Q. I mean, it was not packaged with the plug? A.

No, “but it was*supplied. by the plug manufacturer for

that purpose,

Q. Supplied to you? A, That’ s right.

Q. Now, the removal of the deposits on the insilator

by the use of the cleaning or reconditioning machine and

the sandblasting; does not affect tlie insulating properties

of the porcelain that surround the center electrode, isn’t

that sof A. No, I would say it does. ,

Q. All right, in what manner? <A. -Well, the force of

the sand, and the pressure striking against the porcelain

253

255 ©

296

at |

258

5 gm.

Ke rnard F. Grant—fo¥ Plaintiff —Cross.

has a tendency to make it porous and it makes small holes.

If you look at it under a ae giass- you can easily

see it. ahd

Q. That would only” mean that: the porcelain after re-

condittoning is more subject jto the accumulation of de-

posits? “At That makes it more porous ‘and makes it

more brittle. - It would have a ‘tendency to erack easier.

Q). We are interested in the insulating properties. ‘The

porcelain is reconditioned—— : 1

~The Court: By “eeonditioned”, do you mean *

. ,-

‘cleaning? ? ; ~ ~ .

Mr. Hood: ‘Yes, your Honor. -

@ pa

(). Before the porcelain is cleaned, thére isa short

circuit or a partial short cireuit by reason of the aceumu-

lation of depo: its?’ A: That ‘could be. possible. :

(). And thft’s the reason why you recondition, them,

isn’t it? A:/That’s the reason we clean them.

Q. 1 am sorry. After you have cleaned the plug the

insulating préperties of the porcelain’are restored? A. I

would say not, I-would say they have been lessened.

Q: Would you say that a shert cireuit js still there.

_after the eleatiing procgss? A. No, but in removing that,

as I explained before,. with the -pressure against that

-porcelaim vou ‘not only have removed material but yoa

also remove some of the porcelain and make it porons

and if wou look at it with a.-magnhifying glass you ‘will.see

small*holes. These have a tendency to make the jnsulator

easier to be broken down. Its effeet, as an insulator, has

been lessened.

.Q. It was worse before the cleaning process, wasn’t

it? » ,

“Ais 87

Bernard F. Grant—for Plaintiff —Cross.

ie Court: You mean by reason of the presence -

of the deposits? . * *

Hood: Yes, your Honor. . | ia

The Witness: If it was so bad that it was pos

circuited, | would say it was worse.

@ : : P

Q. Then the removal of the deposits removes. the

short @ireuit? AL-Yes, and ‘it cleans off that substance—

sometimes it does, in sore-cases it does and in. some it

does not. :

- Q. Well; the purpose of cleaning and the effect of it

is to remove deposits and removesthe short cirentt? A.

_ To clean the plug and try to make ‘it. efficient. > ~

Q. So that the insulating .qualities. of the percelain

are improved over its previous condition, is that not so?

A. No, I still stick to my original story, it is not.

‘Q. Did vou ever tell car owners that when you cleaned

their plugs for them? A. Yes, I told them that we make’

‘ just a temporary repair and we have done the best we

could under the conditions but we cannot@uarantee them,

Q. t you urge them, however, to have that done ° ‘in-

stead oi a new plug? A. No, that’s not right.

Q. Didn't you tell us before you progested fheir de-.

‘sire to buy a new plug and *ou said-——

The Court: That is not what vou aan him ‘be-: |

fore.

The Witness: Now, they are coming in for plugs.

Before they just came in to have them cleaned.

There is a difference between a customer coming

in to buy a set ef plugs, whether he needs them or.

not, or whether he wants his old plugs cleaned.

Q. IT asked vou before when vou found that a customer

had a fouled spark plug you did not recommend that they |

“use new plugs! A. What's that?

259

262

263

264

hoy

place—0¢.

é ‘

. . 5 , e

88 3

Bernard F. ( iyant—for: Plaintiff Cross.

. + & 3 °

Q. (Question Sepeated.) A. T said on examination if

thev showed. they should be replaced after cleaning and

adjusting, | we would recommend replacing the plug.

Q. You always tried to’ make YD sale of a new plug?

A. No. bs UAL oP

(k Didn’t you want 40 mike a profit on the new. plug?-

A. No, we:got paid for cleanigig them.

~Q.. How much did you get pyl for sleanitig .them?-

‘A. Fifty eents for six plugs. PS ahah aan to

Q. Then it\is not true that the majority. of service

stations throughout the country clean plugs without charge

or charg@ not more than five cents? A. I would not know,

that. oh | oo oS

Q). Haven't you any knowledge about what your com-

petitors were do! ng? A. No, sir.

(). How long werk vou in ‘the. business running the re-

pair shop? An Ten be twelve. -years, :

Q. Didn’t you ever, in the ten or twelve years, try

to find out what vour competitors were doing? A: I was

not interested, no, sir, hot along those lines. We had

our own set-up, our own -prices and our own labor and

our own overhead to meet and we gov erned ourselves ac-

eordingly. ied

~Q. And. you ehfirged 8 1/3¢ a ‘plug for cleaning them, is

that right?) A. To remove them, clean and adjust: and ref

The Court: (To witness) How many is that,

civ or eight? < eh ee

The Witness: That i is, six eylinders, your Honor;

eight is the same.

Q. How’ much profit would you make on selling six

new plugs? A. Well, we would probably make about $2.00, .

I would. say.

of “i

freee oa

- .

pn y 9

: / | 8 6

alid adjusting and testing

| | | | wey

Bernard F. Grant—for Plaintif—Créss.

Q. Without as much woh as was inyolved in cleaning 265

e old plugs? A. Not if you >

ad some customers with whom you would spend an hour

selling him a set of plugs when he actually needed them.

Q. And you did spend an hour to yet a “customer to

“buy new plugs? A. If the castomer needed them.

Q. You would_.spend an hour breaking hiyh down fo sell

him new plugs? A. If the customer ‘needed them. -

Q. From your experience during the time Yopewere

transacting: business with the public in spark plugs,. °

wasn’t it the:genéral’ practice of car owners to reset the

gaps on their spark plugs with the naked eye or without

any ee precision instrument? -A. The:car owner?

Q. Yes.. A. ‘Very few car owners that I see rer

aftempted it.

Q. They did’ not adjust the gaps at all? A. Most of

them I know didnot, A _ cases’ might hate tried ° it °

but very few. :

Q. I want to read vou some of the testimony. given

by Mr. Rohde, chief éhgineer of the Champion. Spark

Plug Company in the case of Champion Spark Plug Com- ~

pany svs« Emener in the United States District Coup)’

Eastern District of Michigan, | and | ask: you whether You

agree with this. answer: ; by As eo 267

Do you agree with tifat?

‘And isn’t it the seine Prvcton oy ‘the part

of the pablie in purchasing this spar pn aad

just tliat gap with the naked ey vet”

bh , ; .

¢...* - ‘

> a

~~,

% ;

and the answer i is, she ° :

“Ty ‘most- cases to my sivecloiioen they are not

268 °

_ further as follows:

‘ s e .

PF _ .

1 o

. : .

Bernard F. Grant—for Plaintiff—Cross.

I think it is pertinent.

The Court: Gentlempn, we will take a recess now

until 10:30 o’clock, tomerrow morning.

_ (Thereupon, a. recess was taken.)

r » . ; 7 ‘ on -

QQ,

Triat Resumen.

. Brooklyn, New Work,

March 29, 194 ;

_ In re: @Cyampion Spark Pive Co. -.

: A . % 7 /. ° Md

.. AGAINST’

_ Perer-Sanpers, et al.

4%.

-<} a

Before :—Hovy. Mortiyier w. Byers,

e . f ‘2a . S. D. J.

(Appearances as heretofore noted. )

1D cmtcnwewnion

Bernarp | Fy Gant, resumed the ~ and testified

Cross-Examination by Mr. Hobd (C ‘gn):

‘Qe Mf. Grant, I believe * vay old us yesterda Sala Rie w,

the spark plug is installed in the engine it fits’ into adeep

recess dnd that it requires a feat uf acrobatics to see the —

‘* @&

- 91

Bernard F. ie ta Plaintiff—Cross.

hex of the plug silinn tlie spark plug i is installed. Do yon. 271 )

recall saying that? ,

, .° The Court: I redall that he didnot. ”

ae What is the fact about-that, Mr. Grant? It is pos-

‘~~ sible, Mr. Grant, is it not, without difficu'ty to see the hex \°%

of the plug when it is installed - in the recess, is it™not? ~ = °

A. In some eases it is difficult and .in some caSes it is note

quite as difficult. “6

Q. What .cases—in what cases’ is it difficult and in

** whag cases: i8 jt not so difficult? A. That depends on the

*type of mdnufacture of the cylinder head as to depth and 272

size of the recéss.. As I explained yesterday, in some cars |

they have a smaller plug, a~14 mm. or a 10 mm. which

necessitates a small recess, which makes it harder to see. |

Q. Doesn't that vary whether a car has an “L’’ head

or is an ovtrhead valve engine? A. It might, ves. °

Q. That's the determining factor, isn’t it? A. It = i

have something ‘to do with it. )

Q. If it is'an ‘*L” head engine, the hex is clearly vis-

ible and if it is.an overhead engine it is ‘not so visible, ; vex

is it not? A. I would not say. that is so in all-cases, no. ae

Q. Asn former dealer in*Auto- Lite plugs, you are_ 973

familiar with the Auto-Lite spark plug data book Paresyou

not? A. Somewhat. ey Leer

‘ Q. I-show you this diagram on page: 8 thereof, showing hoki Vo

/ spark plugs: i led in a typicgl engine head and I ask - |

you if thaf fairly rrectly shows how: the hex is

Y/ Visible frém outsitt& engine? A. As a photograph

~ . goes, I. would say that -is fair-—as a-photograph only. ~~.

ts d a Mr. Hood: 1 offer this in ev idence.

. (The above epicture rece:ved and marked, ‘“De-

fendant’s Exhibit —-

* 92

Bernard F. ( trant—for Plaintiff—Cross.

274 Q. Isn’t it true that the Buick and. the Chevrolet are

‘the only cars now that have. overhead valve engines? A.

l wonld not know exactly. a

- The Coat: Just a minute, is this a photograph -

or a drawing, this paper that you just marked as

‘Defend:int’s Exhibit B? Se eet

Mr. Hood: I-think-it is aedrawing, your Honor.

The Court: ‘Yes, I don’t think that, is ‘A photo-

graph\at all, eee :

so ae show you this shabaecalds of an “Oldsmobile en- -

275 gine and-I ask you if that, fairly shows how the hex of a

plug shows above the engine in that particular car? A. In.

that particular engine, I would say that is correct.

Mr. Hood: I offer in evidence this Hand Book for

Oldsmobile Owners fox: the year 1940—particularly ;

* ‘page 55.

Mr. Schaffer: Sieg ~ we eR 4 | date, please?

Mr. Hood: It says, for the year 1940.

(The ahove Handbook, page. 55, received and

marked, ‘Defendants’ Exhibit €. od

. 27 ee The Court: Does this purport to be a photograph,

| referring to Exhibit C?-

a Mr. Hood: I think it is. - y

The Court: There 4 one, in the book to say |

so. o

Recerray oe Mr: Hood: It looks like ¢ a photograph to me.

Pee Tite Court: Well, it doesn’t’ look like a photo-

ed at aph tome. 2% | : .

, E ae Q. Isn rt. it true that i in a“ operation of. an automobile

~ certain defects arise in the ignition delivered \y that

“spark plug which are not the fault of- the spark plug it-

—

oe ® Q. Wouldn't you say there are many... es where

_ people, would discard a spark plug that was structurally

. a“

ears F. Oe ig Plaintiff Cross.

self? A. Yes, i re are many things that constitute* the

_ignition system that’ can cause defeets. - -

perfect beenuse of some ignition failure not dae to the

spark plug? A. I would say in some cases, yes. *

Q. And people replace them in most cases with new

plugs? A. I would say, ves. , :

Q. And the plugs that*have been discarded are capable

- of.-further efficient use, are they not? A. T could not*an-

swer unless I. had agchance to test the plug.

Q. We are. assumitig these structurally ‘perfect plugs

This text is long and has been trimmed here. Open the source document for the complete record.

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