
    WILSON et al. v. HABER BROS., Inc.
    (Circuit Court of Appeals, Second Circuit.
    May 25, 1921.)
    No. 244.
    1. Judgment <8=851—Consent dtecroe ImtarpreteíS as am agreement.
    A consent decree is an agreement of parties, and is to be interpreted as an agreement, and consequently a suit for infringement of design patent and copyright, resulting in a consent decree by which defendant specifically agreed that the court should declare a design and copyright “good ana valid in law,” estops defendant from asserting the patent and copyright to be invalid.
    2. Copyrights <8=53—¡-What infriujjsment; consists in.
    Infringement of a copyright consists in the copying of some substantial and material part thereof.
    3. Copyrights <@=83—Kewpie doll held infringed.
    A copyright on a doll known as a “kewpie” held infringed.
    4. Pateafe <§=314—Question of infringemiemt of design patent one of fact.
    The question of determining whether or not there has been infringement of a design patent is, like every other question of infringement, an inquiry of fact.
    5. Patents <@=328—<43,880 design, for dell, feeli infsiugod.
    Design patent, No. ’43,680, of a grotesque figure commonly known as a “kewpie,” held infringed by dolls sold by defendant and called “best baby.”
    ©ssFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Index»
    Appeal from the District Court of the United States for the Southern District of New York.
    Bill in equity by Pose O’Neill Wilson and another against Haber Bros., Inc. From a decree awarding an injunction and accounting, defendant appeals.
    Affirmed.
    Williams & Pritchard, of New York City (William S. Pritchard, of New York City, and Hylan R. Johns, of Rochester, N. Y., on the brief), for appellant.
    D. Anthony Usina, of New York City, for appellees.
    Before WARD, HOUGH, and MANTON, Circuit Judges.
   HOUGH, Circuit Judge.

Decree appealed from is based upon a supplemental bill alleging infringement of design patent 43680, issued to the plaintiff, Wilson, and also infringement of said plaintiff’s copyright obtained by registration April 5, 1918, for a “work of plastic art,” etc.

The subject both of design patent aod copyright is a grotesque figure now commonly sold in toy shops and elsewhere, known as a “kewpie.” la the specification of the design patent this object is called a “doll,” and in the copyright certificate a “figure oi statuette,” but the thing is the same.

The present bill is supplementaly to one in which the same rights were asserted as growing out of the same patent and copyright, ami that bill resulted io a consent «1oo.ee, by which this defendant specifically agreed that the court should declare (as it did) ghat said do ■ sign and copyright were “good and valid in jaw.” That consent decree also directed that a permanent injunction issue, forbidding defendant “from mmiygiug' Tie rights of the plTolifis.” Subsequent to this decree defendant obtained ley iiupox tz.fi cut certain other dolls or figures apparently differing in detail from tiiosw originally found lo infringe, and ottered such imported, a 'hides fox sale; lienee this supplementary btlL

[i j The .nature of a co.uKe.it decree is snSiciendy indicated in Hodgson v. Vroom (C. C. A.) 266 Fed. 267, Such decree is an agreement of parties, and is io be interpreted as .m agreement; consequently defendant has agreed that both patent and copyright arc valid, mid it must be beid to its agreement.

We exarcas no opinion as lo the propriety of copy righting this doll, bill defendant was at liberty to estop itself from, contest ing validity, and ii has hone so. Therefore both as to the copyright and the design there is no question before us hat that of infringement.

H. 3 j Infringement of a copyright consista in the copying oí some siibsui.iirirji ana material part íherecí. Eggers v. Sun., etc., Corp. (C. C. A.) 263 Fed. 373. It would save no useful purpose io compare in del ail tlie so-called síaíir.ile which plaintiff copyrighted and the doll that defendant sold; it is niíürieiit to say that the doll at the very least is a plain copy of a “sidlaiaiihril and materia!” parí ílícu eoh Co:iseqaendy it is an miringement.

¡T4, E] The proper method of mvostigating ami declaring' asserted infringement of a design patent has been much discussed at bar and. in the court below; it being stwqepieri that differing and divergent, if not incompatible, rules are io Ik: found in our previous decisions of Ashley v. Tatum, 186 Fed. 339, certiorari denied 225 U. S. 707, 32 Sup. Ct. 839, 56 L. Ed. 1266, and Borgfeldt v. Weiss (C. C. A.) 265 Fed. 268. We discover -m contradiction between these, decisions, though they do afford illustrations of different methods of approaching soiutioa of the same iililnuue problem, which is, like every question of iiiirirgciiiexit, always an inquiry oí fact,

Vvfhetiier the problem be of validity, scope, or infringement, Hie prime difference between patents for other inveu.tioas and Hose for designs is that in the first ekes the inquiry is, “Wh-h will it do?” whereas in respect of design one always auks, “How does it look?" Rowe v. Blodgett & Clapp Co., 112 Fed. 61, 50 C. C. A. 120. How anything looks depends very largely on the eye of the observer; yet iliat observer, if a conn: in equity or a juryman at law, must decide by the effect upon his eve whether thci'e has or bar. not been that appropriation of essentials, or substantial appropriation, which constitutes infringement of any patent. For such a process it is inaccurate to speak of a rule in the sense that that word is properly used in relation, to legal rights. No more can be done than to indicate the processes by which experienced observers arrive at conclusions. The matter has lately been well put in the Ninth Circuit by saying:-

•“The differences in designs, which under the patent law will avoid infringement, are differences which will attract the attention of the ordinary observer, giving such attention as the purchaser usually gives in buying articles of the kind in question, and for the purposes for which they are intended.” Zidell v. Dexter (C. C. A.) 262 Fed. 145, 147.

Almost the same words were used in Ashley v. Weeks-Numan Co., 220 Fed. 899, 136 C. C. A. 465. In Ashley v. Tatum, supra, the “absence of any applied ornamentation” from the alleged infringement was held to create a difference between the articles of plaintiff and defendant “readily apparent to any one—expert or nonexpert—[so that there was] no likelihood that, whether looked at together or apart, the one could not be mistaken for the other.” In other words, to the eyes of the ordinary observers one did not look like the other. As was said by A. N. Hand, J., in a subsequent action on the same patent when reissued, the changes made by the defendant Tatum were thought to have “proceeded so far that it [could not] fairly be said that Ashley’s design was a substantial and easily discernible feature of the completed structure.” Ashley v. Samuel C. Tatum Co. (D. C.) 240 Fed. 979, 982.

The discussion has only illustrated how differently admitted phenomena affect different minds when all are endeavoring to appfy the admittedly proper measure in respect of design patents, viz. optical effect. In respect of this particular defendant’s doll it is sufficient to say that there is an even stronger external resemblance between plaintiff’s “kewpie” and defendant’s so-called “best baby” than is exhibited by the drawings inserted in the opinion in Borgfeldt v. Weiss, supra.

Decree affirmed, with costs.  