
    FRANKART, Inc., v. APT NOVELTY CO., Inc., et al.
    District Court, S. D. Now York.
    Nov. 9, 1931.
    Morris Kiisehslein, of New Yoi'k City, for plaintiff.
    Levisohn, Niner & Levisohn, of New York Ciij (Edwin Levisohn, of New York City, of counsel), for defendants.
   PATTERSON, District Judge.

The plaintiff is the owner of design patent 83080 and claims infringement. The defenses are the usual ones of invalidity and noninfringement. The patent covers a design for an ash tray. At one end there is a pedestal and on the pedestal is seated the figure of a nude girl with one leg outstretched over the tray and the other leg bent at the knee with the hands elapsed around it. The head is turned to the loft and inclined downward. The general appearance of the defendants’ ash tray is the same. The chief difference is that hero the arms are not stretched forward so that the hands meet over the knee, but go down and somewhat behind the body; the hands resting on the pedestal and supporting the body in its inclined position.

Tn my opinion, the plaintiff’s patent is void for want of invention. The use of figures to decorate an ash tray is not new, and there is nothing new in presenting a figure of a nude girl in a pose wholly natural. The fact that the exact pose may not have been used before does not indicate any exercise of the inventive faculty. Since the plaintiff’s patent seems to me to be invalid, it is unnecessary to pass upon the issue of infringement.

The bill will be dismissed, with costs.  