# Transcript of Record — Champion Spark Plug Co. v. Sanders > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0213%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1947 - **Citation:** 331 U.S. 125 ## Text ‘TRANSCRIPT OF RECORD Supreme. Court of the United as - e OCTOBER TERM, 1946 No. 680° eh \e 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 ‘ ae 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 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) 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 ad ‘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 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 a te Ke Ruited States Circuit Court of Appeals 1 For THE Seconp Circult. Appeal No. ney es = att s uw 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. = ww 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 |} || i 4 > 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....... | ne eK . (SAMETMLE) 7°... o ry | ¢ 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 > ‘ 3 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 7 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. —— a —. 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 o “@ 10 4 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 11 12 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. ,? 5 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° 14 > 15 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 © , e 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. 24 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 v — 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 - . 9 | 10 Complaint. ( 28 a lage part of their stock of used spark plugs and parts A, 29 ‘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, a © 16. ‘ Pjaintiff, repeating the allegations contained in 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 30 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 - . - ° 4 ew : 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 e 9 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 ; 31 32 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- © 34 35 12 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 r 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. — c a 13 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 . 37 40 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 47 > 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. . 52 53 . Sworn to a subscribed 7 54 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 &. ys oo ies * | -Answer. . a . DISTRICT COURT OF THE UNITED STATES, For rue Easrern Disraicr or New York. ’ (SAME TITLE] SS * Ww 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) 60 20 . ae 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 22 g 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. 3 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 23 \ 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 \ YS 67) 24 i Testimony.. 70 1 at UNLEFED STATES DISTRICT COURT, Eastern District or NEw York, J 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? 25 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. a 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 > U . 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 77 78 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 a 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 97 os ‘ 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: e 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 36 w ; 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 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 Oe | 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 & 40 . 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, . cA 7 41 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 _ \ ; ( . \ ; 42 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 44 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 46 ‘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 ~ a 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. -. " i ? & « * ‘* (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 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 - a 7 \ 51 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 52 Bormay, PF Grant—for Plaintig—Direds. be replaced in the engine \of the car? Q. Does: me car owner see the carton in which the prin plugs are contained when they are sold at. your ae ‘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 16 1 sy 54 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 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 ee @. 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—— XY . 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? +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, - Cross-Examination Uy Mr. Hood: © _F 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 ‘the service station? A. Five years, approximately. «©, He Pee Poa a fi ae s oS | . s 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 > & 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? ig 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 7 - 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 « ‘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 73 » @ 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, they want them back and we would put them i in a box and © . give them to him. ” 220 222 4 - | 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— » 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? * Q. But you TaINyee it?) A. If you are an acrobat you. can see dt. © ; 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? : chee That's right. ©. aN : *% 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 » o in view of the ‘testimony of the witness on . 241 242 243 Pd 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 a4 A 1 popeiadtitnn dt but we never: digk it In our service station. 2 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. bd : 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 =~ 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 / te 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? ~ 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? 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 ae ™ adjusted at all.’’ eran © 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” er bh , ; . ¢...* - ‘ > a ' ~~, % ; and the answer i is, she ° : ,\ “Ty ‘most- cases to my sivecloiioen they are not 268 ° _ further as follows: ‘ s e . Lo PF _ . 1 o . : . 90 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 ; 2 ra _ In re: @Cyampion Spark Pive Co. -. : A . % 7 /. ° Md .. AGAINST’ _ Perer-Sanpers, et al. 4%. - Q. Well, | show ‘you this Champion spark plug litera- ; ture on their spark plugs and I -direet your aftention to page &, dealing with spark plug gaps.and particularly with the instraction to reset all gaps’ .022 to .027, except cer- tain stipulated models of cars, and Lask you. if that causes you to change your testimony in any way? A. No, ‘7 would not change my testimony on that. : — Hey. Well, I read you this portion of the ‘testimony of Mr. Rohde, Champion Spark Plug Company Boa en- gineer in the case of Champion Spark Ptig° Conjpany vs. Mmener in the Eastern Distriet Court of Michigan, and TI’ ask vou whether you agree with his testimony, in your opinion and from your’ expericice : ‘‘in the ten years of arecommendatioiis cas to adjusting the gap, are there a good many instances -do* you suppose on the average in which the gap = WAS adjusted?* A. In’ comparison with the total ‘phigs -installedy comparatively? few.’% What is your, opinion about’ that? — , Mr. Schaffer: I object to that question, your Honor, gs bein -improper, poading testimony .from : another suit. The witness who gave that testimony ~ is not present; as a matter of fact, the witness who _ gave it "is dead. - ‘ The Court: I suppose the question is do you ___ agree qvit’!what—he—said, is- your experience the ‘sifme as kis. -I will overrule the objection. 2. ‘ ,. voy " 95 ae Bernard F, Grant-for Plaintiff—Cross. “? (Ro witness) : Is your experience somewhat ‘the . same as that which has peen read to yout* The Witness: Can Ihave that read again, please? (Last question repeated ‘by reporter.) tn Court: E don’t want. your-opinion, I want know whether: that isin ageefd with your swb- - servation. : ‘ , ~The Witness: I wou are adjusted, talking from my be experience. Q. And Likewine many that are -not?’ A. A few that” are not. - t 7 Se kee Te ‘Q. W ‘ould you also agreé, from your experience, with this portion of his te ‘stimony : . \ » e 3 fay there are many that 283 284 “That warning as to adjusting the° size ‘of the ' gap’ has been given tothe public for approximately ss *vears? dA. “Apprdejmately: **@. And jras, been ignored for ten ade’: A. Yes, sir.’? Pes et a What alfout-that? A. would not agree I would say no, . w \ ().- Now, Mr. Robert Stranahan, president of the plain- - ° tiff, and Afr. Rohde, their chief engineer, ‘testified in that case. The president was asked. these questions and gave these answers and I ask-if these arin accord with your observation and experience: x . No, I said the-average ear iy run only éight x AR a little less than ‘eight thousand: miles a year ini this country, the average automobile. is What is the normal average mileage life’ of one of your spark plugs, how many miles? A. I think the. average life, at the pre sent time, is around » bs ? 2 ~ ; . . a ae — a * ~~ 3 . ‘ | Bernard F. Grant—for ear ical tndcncs bop % 286 thirty but, we recommeitd replacement in- ten but people are not taking adv antage of tliat. eS You think the average is mselade thousand. tA. Pretty close ” fo "° io . _* nol W iat about that? received aud marked, ** Defendant’s ‘Exhibit ‘D.?’). Q..This tester‘that you see advertised on*pige 16 is used in connection with the cleaner or reconditioner ‘put - out by the plaintiff, is it not? A. It f& a separate tester. used tg test spark plugs before and after cleaning, to determine whether or not wiey are fit.to be “used any more, even after you have cleaned them. z In lots of cases there are plugs that you. eeléan andy they still test bad@and you cannot use them. Ss ! 302 301 303 ° 304 305° 306 © ia 102 eee i 4 8 o . ¥ * a Bernard F. afer Pay Areas, eer rT tar Q. You have used both the Champion ¢leaner or re- conditioner and the Champion tester? A. I. have used the »& Champien: tester and cleaner. _ ° Q. And used ‘them in accordance with the instructions that you received from the plaintiff? A.:I used them ac- cording to my own instructions which I founout by. experience, | +8 (). You i eniaieibih wha instructions “of the plaintiff? 4 A. To a certain extent, yes, ¢ @ - pas} . * * * § ZY : ° ‘ ° - , By Mr..Hood: Q. Will you ape thé. box of any of Nts. iets ee four spark ‘plugs offered in evidenee. by the plaintiff as, Exhibits 1 through 4 and examine them for a , moment? A. How man¥ do you want me to open? ie Q. Just three or four respective plugs. A. O.K. , Q. Xow, will ‘you’ ‘take a look at these plugs? A. Yes. Q@. From your vuservation and experience, would, you, answer these questions as a practical man familiar with. automotive affairs. - cal Those, articles -you aré ‘examining are . spark plage ee Champion spark plugs. - I Q. They are- spark plugs with the make or brand Champion! A. Yes. oe Q. Are/they new spark plugs? A. No, I wold say they are fot new. . Q. They are Champion spark plugs: that have been _ used? A’ That’s right. _ Q. ‘And .they are Champion = plugs that - have been used_and reconditioned and cleaned? A. They have the appearauce of being repaired,’ yes. en Q. Then/to say that those objects are used or re. conditioned or repaired Champion spark plugs | would be a truthful description of those objects? . . : ’ . . P4 - . « . } ’ " 7 . . ’ 4 ~ . . ate e ’ ’ * 7 ‘ , 5 ‘ 108 | of Bernged RF. Grant—for Plaintiff—Re-direet. - Mr. Se haffer ; "5 I object that. a} The Witness: I recogiize thgm as reconditioned or. rebuilt or .repaired spark jigs. Q. I mean to ‘say, those are used or repaired Cham- ‘ pione spark plugs, that would be a correct and truthful deschip tion of those objectst -A.- Yes, they are not new, _ therefore they: are gused, ‘ Q. The answer 1 is yes? A»The answer is yes. ez Mr. Hood: That is all. Re- direct ‘Examination. by Mr. [eon Q. Do your, present duties still bring. you in contact with the servicing of — systems of automobiles? aa A, Yes. rg > ‘ Q. And that is the major part sh your work atthe present time, is that right? A. Phat’s right. Q. You handle two different brands of spirk “plugs, _ Champion and Auto-Lite? A. Yes, ‘sir. Q. Can you “tell us. approximately- how many spark plugs your company, the Durham Company, sells in a year? «A. [-would say approximately 800,000. Q. What proportion of those are 4 a Plngst A. Approximately tem per cent. : Q. And the service station and service station sctiv itis to which you have referred are but. one part of the Durham Company, is-that correct? A. Yes, sir. 7 Q. Are you still in confact to some extent,.at least, with the service station end of your company? A. T am. Q. And you are familiar with what they are doing in a ‘general way? A. Iam. ° oss —Q. You were questioned concerning the discarding of — Champion spark plugs which are not fouled. Wonld you o > 310- Bu 312 > 104. Be ‘ynard I Grant—for Plaintiff—Re-dirett. eee: (— » say that die a *hampion plug: which was not even 4 fouled, is disearded that it has no other defect}? A, No, I Would say it canWave lots of other defects besides being jus st fouled,’ : Q. How long does it take to clean a Champion spark plug in a spark plug cleaner? A, W ell, I would. say. be- tween two apd three seconds, that Vis, holding it in ‘the cleaner itself... 7» Co The firing end of the- spark plug eveutbected to the * ry asive action marial under pressure, like a sandblast? are Pegg —— ; : . In the cleaner? A. That's right, in approximately ton or three seconds, that is all. ea ay? gv Do you recounfend or do vou in practice clean the plug to the extent where yéu remove, the discoloration from the insulator, from Fe ceramic? A. No, we do remove that. ; Q: Why not? A. Well, remeving that part of thé porcelain you automatically have a tendency’ to destr the porcelain’s value and ent it down to its abnormal size ot .andg make it porous and britile. ne . on Q: Do you change the shape of the insulator? A. Oh, ves, Q. Would ‘you say, in your experience, mahhy large. fleets or fleet owners use or deal in reconditioned spark plugs? A. My experie nce hax shown that there are sume, yes. : eran! > . Q. My question, are there many? A, No, I would not say many. Q. Aencerming siibeannedl whidh- vou have described as unusual, where the type of plug recommended on .the size chart is hot suitable for-the engine condition of a partic. ular car, are you ren any instructions or information 105 - Bernarg-F. Grant—for Plaintiff—Re-direct. - by the Cha¥ipion Company as to what to do in such a - ease? A. I have been so instructed, yes. Q. And you are familiar with the fact, ark you not, that the Champion Company , publishes in their literature information about the heat range of spark plugs? A. I "am z Q. And its so-called thermal curve? A. T am. ‘Q. And you are aware of the fact that in such cases the company makes recdmmendations for an -unusual | situation with respect to the heat range required of spark plugst Ae! do, ° Q. Is the Durham Company the principal dist jhutor: ‘for the Electric Auto-Lite Company and’ its products! A. Yes, they are. ' (9. You handle Chastipion spark plugs on a different basis than Anto- Lite? A. We do... @. That, ix, vow are the main distributor for “Auto-Lite.. plas? A. That’s right and a sub- disttibutor of Cham- / Pron, ; Q. Corterning the shortening of the center. electrode a 314 ~ a oe of the spark plug or, I should say; concerning the wear - ‘ that the centéy electrode shows when you remgve it from. ° an engine, do you have means of shortening the center electrode of a plug by some means such as @ saw or . otherwise, to cut it off? A. No, we do that in no such - ease. ; ‘ = Ss ae - QI am referring to the cetter wire? *“A. No, we neviF Shorten that. ‘ Q. Why not? * e- e (). You said you did not shorten the center electrode by any filing or sawing because it would change the loca- tion of the spark? A. That’s right. Q. Assuming that the porcelain has been shortened through some means. and the centér electrode is longer than it was originally designed, wouldn’t that cause the _ plug to be hotter in operation than it pee to be? . The Court: (To witness) Is there a relationship /between the shortened electrode and the Sorcelain body? * The Witness: If the porcelain body was short- ened, I would: immediately. discard)the plug, that would mean the plug was"n.g. Tot Q. Isn't the heat range of the plug d termined . by’ ‘ to the length of the porcelain? A. It “is determined’ by the length that the. heat will travel in being dissipated. Q. If the center eleetrode were lengthened, wouldn’t that cause the spark plug’ to heat up in operation due “to the fact that the metal heats up more readily than the poreelaint ae, me oon “eh ‘ _ an > : . 1? BerwaraF. .Grant—for Plaintiff —Re-cross.. The Court: What do you mean by ‘“length- ened’’? os ae The Witness: How can The Court: -It is not, le changed; it. js as it was you that if the porcelai would | diseard .the plug. | Mr. Hood: What ‘he would do. The Court: That’s right. “Now, don’t argue with Te Oy f te aie ie, ons Q: If the center wie becomes, more exposed y reason of the shortening: of the porcelain in a plug, ‘woyldn’t that cause the plug to heat up? A. I .would Giscard the plug with the shortened - porcelain.’ ‘ Q. Wel, if someone does not discard _it,- would it eause the plug to heat up? you lengthen it? tyanufactured. He told as shortened, that he “Thet Nelst: You are just arguing with, him now. ‘He says that he discards it. i Mr: Hood: I am asking him if somebody does mot discard it, The Court: He has told you what he does. @) 9, Wouldn’t the shortening of the center électrode by been -running? The Court: (To witness) Have-you ever done: it? . The Witness: I have never done it, your Honor. “The Court: W ell, if. you. haven’t .done it, you ‘don’t know, do yout . in The Witness: I could not answer. ee Mr. Hood: That is all, : (Witness excused.) — ythiened at all, it is not: 319 . 320 yy ' 321- filing or sawing cause Ga to run colder than it had* 99 oe 323 324 material? ‘A. From a , mistre of raw matefials, &> . a Hy : 108 Pee RE Herbert F. ‘Royal—~for’ Plaintiff/—Direct, v Hersert I. Roya, called as a witness on behalf of the plaintiff, was first duly sworn and ‘testified as follows: > Direct RE plicllbe ty Mr. Schaffer: QQ. ‘Mr. Royal, there do you reside? A. Detroit, Mich- ian. . gies Q. W had is is your écoupation? A. I am Direetor of Research for the Ceramie Division of the Champion Spark Plug Company. Q. Andjhow long have you occupied that position? A. For Fodas four and ong half years. I have been with the company twenty-four and one-half years and ‘I have beep: Director of Research. for a year and a half. Q. Prior ta that time were your duties concerned wath ceramic problems and problems of. ceramic chemistry? A, Completely. 2 Q. Do you have other duties with- the Ceramic Divi ie sion in Detroit? - A. Yes, as part of my duties .1 have complet® control in the’ exercising of the engineering in- spection system. and complete control throughout in the - manufacture and shipping of the insulator.’ —, _ Q. What do you mean by the insulator? A. It-is the ceramic part of the: spark plug which we manufacture from. certain ceramic raw materials and particularly. 0 our .: own’ materials. | : Q. It has no metal parts? A. No metal, parts what: j soev er. "4 Q. When you. are finished with itt A. When we are finished with it. -Q. And then you ship ’ those iiesdatons to another plant? ‘A. Yes, we ship them to our Toledo plant, as -well ‘as our other assembly plants. wm . Q. The insulator is originally prepared from a raw - 109 °° «& Herbert P. Royal—for Plaintiff —Direct. Q. And after it is so prepared it-is called, the green or raw insulator? A: That’s right. , s Q. And, then what ‘do you do with it in youre process? _ A. The insulators aré glased atid fired through our kilns at ‘high temperature. , 5 * Q. Approximately at what jempebatifre' A. The tent perature iv between 2600 degrees I° ahrenheit and 2700 de-. grees ‘Fahrenheit in the’majorify. of insulators. At the present. time the aviation type which we are - manufacturing, we use a higher temperature. Q).:Are there any tolerances observed by your: com: pany with respect—by your Division, rather, at ‘your plant with respect to the shape of the insulator? A. We are given blueprints by our Delnds enstheneiais division on which the tolerances are specified very closely, in terms of thousandths of an_ineh, for the length and diageters at various parts of the insulator and also the radiusx_and -ungles are specified in degrees and they are very close. Q. How about tolerances at the firing end of the in- sulator, with particular’ reference to the «emi-petticoat? A. They are indieated im the blueprint and we mast hold to them i in our manufacturing operation. .Q. How about chipping and other. damage to the in- suilator? A. Well, in the handling of many, many millions of small ceramie articles there j is. hound to be some dam- age by chipping and we have-established- in our engineer- ing inspection’ ¢ertain. tolerances fer chipping’ bee are Very small, hardly \ ‘isible to the eye. & Q. How about the finished insulator, is if pert ious to > either gas or liquid? -A. The insylators which we consider of a quality for shipping, are, absolutely impervious to “both gases, and ‘liquid, even at high pressures. - * that ee A. Yes, we have a test, a standard test ; *. .Q..Do vou have any tests that.you regularly make for. 325 326 327 \ : 10 \ Herbert F. Royal—for Plaintiff—Direct. 328 which is\a test such as-is used by other manufacturers — also, in ‘which we take the insulators, either broken or whole, and: immerse them in an alcohol dye solution. They are placed in a pressure chamber and usually ‘a pressure of seventy-five pounds per square-inch is applied to the liquid which, of course, is transmitted to the insulator and they are left there for a definite length of time, ten min- utes to half an hour, usually, and then they are taken ~ out and dried and then they are further broken or chipped ~~ to see if there is any further dye penetration. ,Q. What do ‘you find on such tests and such inspec: | tions? -A: We find in such tests, if the quality is right, 329 there is no _penetration, of the dye whatsoever. Q. Is: this quality confined to the glazed surface of the - insulator?) A. No, the qu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0213%3A1. Public record. Not legal advice.