I am unable to concur with the conclusions of the majority in this case. In my opinion the plaintiff has not “invented any new, original, and ornamental design for an article of manufacture,” within the intent and meaning of section 4929 of the Revised Statutes as amended (Comp. St. § 9475). Assuming the correctness of the conclusion of the majority in that respect, however, still, in my opinion, the defendant did not infringe.
The plaintiff describes his invention, the subject of Rousso design patent No. 42,398, for an ornamental design for a towel cabinet, as follows: “In the particular embodiment of my design shown in the drawing the standards A support a mirror B at their top. Below this is a box or cabinet G containing clean towels. Directly underneath the box G is a receptacle B for soiled towels.”
The claim is: “The ornamental design for a towel cabinet as shown.” The structure illustrated is, in my opinion, as devoid of ornamentation as possible. It is a plain upright rectangle, about 6 feet high and 18 inches wide; the corner posts projecting below the lower box to serve as legs. It has in general appearance a very strong resemblance to the folding cabinet described in Grant design patent No. 25,783.
“A patentable design may consist of a new and ornamental shape given to an article of manufacture, or of an ornamentation to be placed upon an article of old shape. The design law was intended to encourage the decorative arts, and therefore deals with the appearance, rather than, the structure, uses, or functions, of the article. The design must be novel, and must have called for an exercise of the inventive' faculties, as distinguished from ordinary .skill. The patent-ability of a design does not depend on its aesthetic value. The design act, as construed by the courts, intends that the patentability of a design shall be determined by its appeal to the eyes of the ordinary man, and not to the eyes of a jury of artists. The same rules as to construction and validity apply as in the ease of mechanical inventions.” 30 Cye. 827.
The above rule was approved in Rowe v. Blodgett & Clapp Co., 112 F. 61, by the Court of Appeals of the Second Circuit.
The general appearance of the structure follows the dictates of obvious convenience and necessity. It is as high but no higher than meets the demands of its utility. It is as wide and no wider than necessary to hold an ordinary folded towel. It follows the usual principles observed by the cabinet maker in forming the plainest articles of furniture. As I have stated, it evinces an effort at economy of construction at the expense of all ornamentation. I do not think the design shows any inventive genius as directed to the production of the ornamental.
Assuming, however, that the design evinces patentable characteristics, in my opinion it was not infringed. The appellants’ design, which is challenged, does not present the same general appearance as the design described and illustrated in the Rousso patent. Rousso, in describing his design, says: “In the particular embodiment of my design shown in the drawing the standards A support a mirror B at their top. Below this is a box or cabinet G containing clean towels. Directly underneath the box G is a receptacle B for soiled towels.” Taking up the elements of this embodiment seriatim we find: First, as to the mirror, the defendant omits this element entirely, and modifies the height' and shape of the top. Second, the box or cabinet G containing clean towels. This box or cabinet is omitted, and a plain board or simple shelf substituted. In the one case the Rousso box or cabinet conceals the supply of folded towels from sight. In the defendant’s device the towels lay upon the shelf in plain sight. Third as to the receptacle B for soiled towels. In the Rousso device is a high inclosed box into which the *670soiled towels may drop and be concealed entirely from sight. In the defendant’s device there is no box, but a basket or receptacle, made of open slats, which expose the dirty linen to view.
In the majority opinion it is said: “The test of the patentability of a novel invented ■design under the aet of Congress and the decisions of the courts is an affirmative answer to the question: Does it impart to the eyes ■of ordinary persons, not to those of artists •or experts, a pleasing impression?” The proposition stated, of course, cannot be questioned, for it embodies the idea that the design must be invented. But the test of patentability is not necessarily the test of infringement. The Supreme Court of the United States in Gorham Company v. White, 14 Wall, at page 528 (20 L. Ed. 731), lays ■down the test of infringement in clear and unreserved language as follows: “We hold, therefore, that if, in the eye of an ordinary ■observer, giving such attention as a purchas•er usually gives, two designs are substantially the same, if the resemblance is such as to ■deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the ■other.”
Now it does not seem to me possible that .an ordinarily observant and intelligent purchaser, having seen or had described to him the Rousso design, with its neatly framed mirror on a level with his eyes, with the neatly inclosed cabinet concealing the supply of towels, with the high box below entirely eon■cealing the soiled linen, would be even confused, let alone deceived, when confronted with the defendant’s device, with no mirror, a plain shelf with the supply of clean towels in view, and the openwork basket for dirty linen below.
I am constrained to the opinion that the case should have been reversed, both on the question of the patentability of the Rousso ■design and upon the question of its infringement by the defendant’s device.