Lot 2200

Pressed Steel Buddy L Red Baby Toy Truck

Sold For $$$$$

Pressed Steel Buddy L Red Baby Toy Truck 24'' L. Circa 1922. Enclosed front cab, full
running boards and rear fenders, open service body with tailgate, spoke wheels, scrolled
edge floor board decal, ''IHC Sales and Service'' and ''McCormick Deering'' decals on cab
and ''International Harvester'' decals on body, original pull cord. An outstanding example.

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Auction details

Morphy Auctions Winter
2007 Sale
6:00 AM PT - Dec 8th, 2007

offered by
Dan Morphy Auctions LLC

2000 N. Reading Road

Denver, PA 17517
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Nos. 5073, 5074.
Circuit Court of Appeals, Sixth Circuit.
January 18, 1929.
Page 17

Appeals from the District Court of the United States for the
Southern District of Ohio; Smith Hickenlooper, Judge.

Bill by the Moline Pressed Steel Company against the Dayton Toy
& Specialty Company. From decree sustaining in part and
overruling in part a motion to dismiss, both parties appeal.

William H. Haight, of Chicago, Ill., and D.W. Iddings, of
Dayton, Ohio (Haight, Adcock & Banning, of Chicago, Ill., D.W. &
A.S. Iddings, of Dayton, Ohio, and George I. Haight, of Chicago,
Ill., on the brief), for Steel Company.

William Mills Matthews, of Dayton, Ohio (Matthews & Matthews
and Edwin P. Matthews, all of Dayton, Ohio, on the brief), for
Toy Company.

Before MOORMAN, HICKS, and KNAPPEN, Circuit Judges.

MOORMAN, Circuit Judge.

Appeals from a decree sustaining in part and overruling in part
a motion to dismiss a bill in equity. The bill as amended alleged
that since 1921 plaintiff had been engaged in manufacturing and
selling toy vehicles and devices throughout the United States;
that at the time of the filing of the bill it was selling thirty
different toy vehicles; that these toys were of larger size,
heavier materials, and were better finished and more expensive
than any similar hand-operated toys theretofore sold in the
United States; that they were known as
Buddy L Toys, and that
one of the plaintiff's best sellers was a dump truck, which was
known as a "Buddy-L" dump truck; that it was a miniature replica
of an actual device, and similarly proportioned; that it was sold
under distinctive marks and colors, having the name "Buddy-L" on
its radiator and having a hood, fender, and seat all painted
black, with wheels of the disc type painted red; that defendant,
in order to deprive plaintiff of its business and trade in these
toys, and particularly in its dump trucks, "commenced the selling
and has offered for sale dump trucks simulating the plaintiff's
said dump truck heretofore sold by the plaintiff throughout the
United States," the defendant's trucks being "so constructed and
conformed and painted and having such general appearance" as to
lead the ordinary purchaser of toy trucks to believe that it is
Buddy L dump truck sold by the plaintiff. It was further
alleged that in order to deceive the public, and in infringement
of plaintiff's rights in the word "
Buddy L," the defendant had
placed the word "Sonny" upon the radiator of its truck; that it
had offered to sell its truck at a less price than that at which
plaintiff was selling its truck; and that it had sent out
circulars and advertisements claiming that its truck was a new
idea, all in pursuance of its plan to injure plaintiff's
Buddy L truck prices

It was further alleged that with like intent to deprive
plaintiff of its business and infringe upon its rights, defendant
was putting on the market and advertising to the trade a toy
wagon bearing the name "Buddy" upon it, and thus further
infringing upon plaintiff's established trade name of "Buddy-L"
used by it in connection with its various toys.

On defendant's motion so much of the bill was dismissed as
alleged unfair competition resulting from defendant's use of the
word "Sonny," or from its imitating the plaintiff's toy miniature
replicas of actual vehicles. The motion was overruled as to so
much of the bill as alleged infringement of plaintiff's
trade-mark "
Buddy L" by the use of the word "Buddy" by defendant
upon its toy wagons, but the order recited that as there was only
a technical infringement in that respect, without any of the
characteristics of unfair competition or without damage to
plaintiff, and further that as defendant had discontinued the use
of such word in connection with its product and did not desire to
plead further, it was ordered that no accounting for profits or
damages be allowed, but that a perpetual injunction issue
enjoining and restraining defendant from further using the word
or its equivalent upon any of the toys which it was making.

It appears from the averments to which we have referred that
there are two aspects to plaintiff's complaint of the use of the
name "
Sonny": One is limited to the name itself as it may or may
not be taken for plaintiff's trade-name, "Buddy-L"; the other
includes the additional consideration of location on the truck.
As to the first, it seems sufficient to say that while each of
the names suggests a small boy, there is no such similarity in
appearance or sound between the two as would likely result in the
confusion of one with the other. The allegations as to the other
go no
Page 18
further than to say that defendant has placed the name on the
radiator of its truck, which is the same place that the name
Buddy-L" is put upon plaintiff's truck. It is not alleged that
it is unusual so to locate the name on the actual device, or that
in doing it here the defendant imitated plaintiff's lettering or
background. There must be resemblance, and no facts showing
resemblance were alleged. Hence there was no unfair practice on
this account. Block v. Brace Co. (6 C.C.A.) 300 F. 308; Liggett &
M.T. Co. v. Finzer, 128 U.S. 182, 9 S. Ct. 60, 32 L. Ed. 395.

We do not go into the question of defendant's prices and
methods of advertisement. The bill is too indefinite on those
points to merit consideration. It is also indefinite in its
statements of fact concerning the size, conformation, and
coloring of defendant's truck. It is fairly to be inferred,
though, from what is averred, that defendant's truck is the same
size and conformation as plaintiff's; that it is like
in coloring — that the hood, fenders and seat are painted black
and the wheels are painted red; and that both have and were
intended to have the appearance of a real truck, in color and

Plaintiff was admittedly the first to make a miniature truck
identical in appearance with an actual device. In doing this it
acted under a right that belonged to and is still open to the
public. It acquired no patent rights in its structure, and claims
none. So defendant may also make and sell such trucks. It may not
use on its trucks any unique design or coloring, lacking
functional utility, which has become identified with plaintiff's
product. It may use any forms, colors, or copied details that
plaintiff uses which give the device the appearance of the
model.[fn1] In using them, as it does, it is seeking the good
will, not of plaintiff's device, but of the thing which both are
copying. See Saxlehner v. Wagner, 216 U.S. 375, 30 S. Ct. 298,
54 L. Ed. 525. Defendant has no right to use the name "Buddy-L" or
its equivalent. That is the trade-mark of plaintiff. It does have
the right to use the name "Sonny," which neither in sound nor
appearance is likely to be confused with
Buddy L. That it places
this name on the radiator of its device, so far as the bill
alleges facts to show, is nothing but a detail in the general
scheme which both it and plaintiff have followed in seeking
identity of appearance with the model.

The other article which defendant manufactures and sells is a
toy wagon. It places the name "Buddy" on its wagon. It is alleged
that plaintiff has acquired a technical trade-name in the word
Buddy L," and although it is not alleged that plaintiff makes a
toy wagon, it has the right, we think, to extend its business to
and to use its trade-name in the manufacture of that kind of toy.
The judgment recites that defendant has ceased using the name
"Buddy," but as that does not appear in the bill, we cannot
consider it. The use of the name on defendant's wagon was an
infringement of plaintiff's name "
Buddy L," and after the court
below so held, defendant was given leave to plead further. As it
refused to do so, the court properly issued the injunction. It
was not alleged that plaintiff had already suffered any
computable damages from the infringement. Therefore it was
rightly ordered that there be no accounting.
Buddy L trucks

The judgment is affirmed.

[fn1] Compare Globe-Wernicke Co. v. Macey Co. (6 C.C.A.)
119 F. 697; Rathbone v. Champion (6 C.C.A.) 189 F. 26, 37 L.R.A. (N.S.)
258; Hilker Co. v. U.S. Co. (6 C.C.A.) 191 F, 613; Coca-Cola v.
Gay-Ola (6 C.C.A.) 200 F. 720; Samson Co. v. Puritan Co. (6
C.C.A.) 211 F. 603, L.R.A. 1915F, 1137; Wagner v. Meccano (6
C.C.A.) 246 F. 603; Upjohn Co. v. Merrell (6 C.C.A.) 269 F. 209.
Page 22
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