(dissenting). I cannot concur in the opinion of the majority of the court. The complainant manufactures an automobile lamp of a particular shape, bearing his name, and known as the “Rushmore lamp.” The defendant manufactures a lamp of a similar shape, with its name conspicuously displayed upon it, which is known as the “Phoebus lamp.” The complainant has no design patent, and his case must stand, if at all, as a case of unfair trading, in which the essential element is deception — the palming off of' one’s goods as those of another. But how a purchaser could be deceived into buying *943an automobile lamp plainly marked with the name and trade-mark of the defendant in the belief that it was the complainant’s lamp is more than I can comprehend. The mere similarity in the shape of the lamps in my opinion is not sufficient to produce such a result. The majority, however, in view of earlier decisions of the court, are of the opinion that the similarity in itself establishes a case of unfair competition. But, whatever view may be taken of those decisions, I think the complainant, upon the proof as it stands, has failed to bring himself within them. Certainly they do not hold that when the shape of an unpatented article possesses advantages from the viewpoint of mechanical utility it is unfair or unlawful to imitate it. Possibly upon full hearing the complainant may be able to show unnecessary imitation of nonfunctional parts, but I am not satisfied from the affidavits that he has yet done so.
In my opinion the order granting the preliminary injunction should be reversed.