
    FRICK-GALLAGHER MFG. CO. v. ROTRAY CORPORATION et al.
    No. 65585.
    District Court of the United States for the District of Columbia.
    April 16, 1940.
    
      Roberts B. Larson, of Washington, D. C., (Hyland R. Johns and Robert S. Allyn, both of New York City, of counsel), for plaintiff.
    D. P. Wolhaupfer, Emory L. Groff, and Stacy M. Reed, all of Washington, D. G, for defendants.
   LUHRING, Justice.

The complaint is for an infringement of patents and registered trade mark and unfair competition and seeks an injunction and accounting.

The patents to Frick, No. 2,081,-856, and to Mueller, No. 2,086,508, are invalid in view of the prior art, and, even conceding claim 15 of the Mueller patent to be valid, that claim is not infringed by the defendant’s structure.

The registered mark “Rotabin” is not infringed by the defendant’s mark “RoTray.” The marks are not so similar as to cause confusion, notwithstanding they are applied to an identical product — that pf revolving shelving, bins and trays. They are not similar in sound or appearance.

The evidence fails to. establish unfair competition, and, as matter of fact, there was no unfair competition.

The defendant’s product is similar in appearance and construction to that of the plaintiff. The plaintiff’s patents are invalid and, therefore, the defendant has the right to make the identical article and offer it for sale to the public. No act of the defendant tended to mislead the public to believe that the article offered by it was in fact manufactured by the plaintiff.

The finding will be in favor of defendants and COunsel for the defendants will prepare anc[ submit to the court formal and detailed findings of fact and' conclusions of law jn accord with this memorandum and as required by Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, with appropriate judgment dismissing the bill.  