Cavu Clothes, Inc. v. Squires, Inc. (184 F.2d 30, 1950)

MILLER, Circuit Judge.

The plaintiffs below, as the ownei and licensees of the two patents herein involved, brought this action against Squires, Inc., defendant below, claiming infringement of the patents and seeking an injunction and an accounting. The patents pertain to a sport shirt, one being a design patent and the other being a mechanical patent, both covering the same shirt. The District Judge found the design patent valid and infringed, from which the defendant has appealed. He found the mechanical patent invalid, from which ruling the plaintiff has appealed. The two appeals were heard together, and in this opinion the parties will be referred to in their capacities as plaintiffs and defendant in the Court below.

Montie M. Brohard, Jr., owner of the patents, made application for the design patent on December 23, 1944.. The patent, design 146,895, was granted June 10, 1947. The application stated that Brohard had. “invented a new, original, and ornamental Design for a Shirt,” reference being made to the accompanying drawings showing front and rear views of the shirt. The claim was for “The ornamental design for a shirt, as shown.”

Brohard filed his application for the mechanical patent on January 25, 1945, and mechanical patent 2,428,198 was granted on September 30, 1947. The application stated that objects of the invention were to improve effectiveness in providing maximum protection against cold and drafts, to provide a garment which presented a smooth unbroken bosom portion of agreeable appearance, and which could be worn in good taste either with or without a necktie or scarf, and to so construct the garment that the smooth unbroken bosom portion would be exposed to present an attractive plain front, when a coat was worn over the garment in a conventional manner. The shirt is characterized by a zipper closure, the upper terminus of which lies beneath the right collar flap so as to be concealed thereby. The zipper closure then extends diagonally downward in a prolongation of the inner line of the right collar point toward the right hip of the wearer, stopping at a point slightly below the belt line. From that point a vertical unfastened opening extends to the bottom edge of the shirt. This diagonal direction of the zipper closure