
    MARY MUFFET, Inc., v. BUDGET DRESSES, Inc.
    District Court, S. D. New York.
    Dec. 12, 1939.
    Charles Sonnenreich, of New York City, for plaintiff.
    Harry Price, of New York City, for defendant.
   GALSTON, District Judge.

This is a design letters patent suit in which infringement is alleged of letters patent No. 109,837, issued to Morris Sobelman, May 24, 1938, for an ornamental design for a dress. The defense is invalidity.

The patent specification recites that the design is characterized by specific lace applique on the front, rear, collar and cuff portions of the dress as shown in the drawing.

Such lace design is of a most conventional order. Klein, plaintiff’s witness, admitted that both the cut of the dress and the daisy lace applied thereto were old. It appears too from the prior art established by the defendant that the lines of the dress were disclosed in McCall’s Fashion Book in the issue of February, 1938, and in the Vogue Pattern Book of the issue of February-March, 1938. It is the same style of dress as shown in design letters patent No. 106,567, issued to E. Jocell, October 19, 1937. Nor was it novel to apply decorative braiding to the front seams as shown in the patent in suit. Design letters patent No. 107,480, issued December 14, 1937, to E. Efantes, and design letters patent No. 107,919, issued January 11, 1938, to J. Bensi, disclose such application.

There is no inventive act in applying a well-known lace to a well-known cut of garment. That invention, as well as novelty, is a test to be applied in respect to the validity of design letters patent is frequently lost sight of by those who seek design letters patent. There is no showing whatsoever in the patent in suit of any inventive act. Nat Lewis Purses, Inc. v. Carole Bags, Inc., 2 Cir., 83 F.2d 475. Moreover, this same patent was the subject matter of a suit brought in the Eastern Division of the Eastern Judicial District of Missouri, by the plaintiff against Plaza Apparel, Inc. and held invalid.

The complaint will be dismissed.

Submit findings of fact and conclusions of law in conformity with this opinion. 
      
       No opinion for publication.
     