(dissenting).
The action of plaintiff in causing all telephone calls to the Plibrico Company not to be transferred to Caigan’s new telephone in the Beach Exchange seems to me plainly unfair competition. This act must be construed in the light of the fact that plaintiff had hired Caigan’s old office and got his old telephone number.
At this time, Caigan and the Plibrico Company were in sharp competition in the business of furnishing this common material. There is no evidence of any superiority in plaintiff’s output. The plaintiff’s rights were limited to its trade-mark; but “there is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade in connection with which the mark is employed.” United Drug Co. v. Rectanus Co., 248 U. S. 90, 39 S. Ct. 48, 50, 63 L. Ed. 141. The business to which this trade-mark was appurtenant had been carried on for five and one-half years by Caigan at his office at 110 State street. The good will thus created accrued in part to Caigan. This was the unanimous holding of this court in 65 F.(2d) 849, 851, 852. The majority opinion is clearly inconsistent with the former holding; in effect it overrules it. Practically my colleagues now treat the plaintiff’s trade-mark as the equivalent of a patent — the same error into which the court below fell. United Drug Co. v. Rectanus Co., supra. The telephones both in the Main and Beach exchanges were paid for by him. He clearly was entitled to full knowledge of all telephone calls, whether for the Plibrico Company, or any of the other concerns listed by him. Such calls might likely come from customers who had had satisfactory previous dealings with Caigan as purveyor of Plibrico, and who would perhaps prefer to continue relations with him rather than to deal with a new and unknown man then representing Plibrico. A call for Plibrico did not necessarily mean a fixed purpose to get Plibrico ; it may have meant only that Caigan’s office was known as a place where need for this sort of product could be met.
Caigan’s rights included the opportunity to persuade a possible customer that his substitute material would serve the customer’s purpose better or at least as well as Plibrico. The action of the plaintiff in preventing his having any knowledge of calls for Plibrico deprived him of that right. It gave to the Plibrico Company an exclusive chance on all calls for Plibrico. It thus limited the proper scope of the competition which then prevailed between Caigan and the Plibrico Company. The plaintiff’s proper course would have been to arrange with the telephone company to give it the name and address of the concern making the call for Plibrico, and not to prevent the call from being transferred to Caigan’s new address in the Beach exchange. Then both plaintiff and defendant would have had a fair and equal chance to obtain the trade of the calling customer. Probably the plaintiff thus obtained trade which might otherwise have gone to Caigan.
There are other assignments of error which seem to me to have merit, but I refrain from discussing them.