The Technical Porcelain and China Ware Company is now a part of California history, but at
its height John Pagliero's "Pottery" could produce 30,000 dishes a day.
At Point Isabel, a peninsula on the eastern
shore of San Francisco Bay, I climbed over the sea wall at low tide onto a narrow strip of rocky sand strewn with broken pieces
of china. When I pulled a red candy-striped plate from the mud, inch-long black crabs ran a side step sprint into another
dark niche. I spent the afternoon rummaging through the shards and took home a bucketful.
Later, scrubbed clean, the
shards showed their bright airbrushed colors. White, tan, blue and pink clay displayed palm fronds, pine cones, roses, wagon
trains and Chinese temples. Some bore the name, "Tepco China USA."
I first learned about the Point Isabel cache from
the Berkeley ceramist Nancy Selvin, who discovered it in 1979. It was the last vestige of the Technical Porcelain and China
Ware Company founded in 1918 by John Battista Pagliero in El Cerrito, California. The ware was universally known by the company's
nickname and trademark, "Tepco."
The factory was demolished 13 years ago. Its site has been covered with a state office
building and a parking lot. Many people who live nearby now don't know it existed, and in a book of local history there are
only two paragraphs on Pagliero.
I was lucky to find several men whose recollections recreated Tepco's half century
span. Eddie Pagliero, "the old man's" nephew, was production superintendent. Phil Eckman worked there for 27 years, many of
them in the decorating shop. And the production room provided Butch Pagliero, John's grandson, with a playground-he played
Frisbee with the dinner platters-and his first job, as a tool and die maker. Later he became foreman.
They all described
John Pagliero as an energetic, good natured, "hands-on" potter with a strong back and sure hands. He spent his workday on
the production line and left the paperwork to his family. "The old man could do any job," Eckman told me, "and do it right."
Eddie agreed. "He came from a time when a potter did everything by hand from start to finish."
Pagliero was born in
1883 in the Piedmont countryside north of Turin, Italy. Fourteen years old when his father died, he and his brother went to
work in a Faenza-style pottery near their home. As a journeyman potter, John went to France and stayed to work as a "faiencier."
In 1908 the brothers emigrated to California , where they both found work at Carnegie Brick and Faience in Livermore. The
building supply trades were booming during the restoration of San Francisco after the 1906 earthquake.
In 1918 John
Pagliero, who by this time was the superintendent of a porcelain casting plant, established Tepco in his backyard. He hired
a two-man crew to dry-press porcelain in a hand-operated screw press. The ware was fired in two round 20-foot-high brick "bottle"
kilns. The placer climbed a ladder with the ware balanced on his head to stack porcelain in the kiln's upper reaches. These
bottle-shaped kilns were gas-fueled; air for combustion entered from below and vented upward in a strong draft which heated
the ware evenly, then passed through a central bottleneck-shaped chimney stack.
By 1925, Pagliero had left his superintendent's
job and moved Tepco to a site alongside the Santa Fe Railroad track. (When this first factory burned down in 1947, it was
replaced by a 200- by 500 foot structure consisting of a low brick building for offices and a barrel-vaulted, reinforced-concrete
production room.) He converted the existing building to a plaster shop for making molds and installed Pasquale Rosatti as
master. Rosatti's early molds and the corresponding metal jigger tools produced exceedingly heavy, wide-rimmed china; when
jiggered and dry, the ware had walls three-eighths of an inch thick. Later Rosatti made molds that turned out thinner, lighter
ware with scalloped edges and narrow rims, as well as coupes (rimless plates and bowls). The quarter-inch walls were semi
With these design changes, the dishes had a larger surface for the growing number of decorative patterns
on the shop's palette. At one point Pagliero offered 25 airbrushed patterns and over 30 tissue transfers; underglaze decals
with custom logos were also available. Many of the standard patterns were western in theme: Branding Iron, Wagon Wheel, Ox-Head
and Western Traveler. An Early California series commemorated scenes of state history from the Spanish missions to the forty-niners.
Keeping the spirit of Mark Twain alive, a Calaveras County hotel ordered custom table ware for the Celebrated Jumping Frog
festivals, including a slip-cast frog whose gaping mouth held toothpicks. It is possible that Pagliero, a naturalized Westerner,
was unaware of the tongue-in-cheek humor of some designs. For example, a guest at the White Log Tavern, finishing his plate
of rare roast beef, might find himself staring down into a wagon train scene with the caption "Donner Party 1846."
outfitted Victor Bergeron with the original ware for his Polynesian theme Trader Vic restaurants: the Samoan Fog Cutter, the
Tiki, Scorpion and Hula bowls, the Kamaaina coconut cup and a Death's Head mug for hot rum.
Restaurants in the West
are still serving on Tepcoware. Shelves at lunch counters and coffee shops are stacked with the thick, clunky white or tan
dishes. The Tijuana Cafe in East Oakland has a complete Branding Iron set (brands on the rim spell out T-E-P-C-O), including
a spectacular 16-inch 3-compartment chuck wagon plate in which chiles rellenos, enchiladas, quesadillas and frijoles refritos
are customarily served. And the funky-chic Royal Cafe, a few blocks from the original Tepco site, uses a colorful eclectic
set. Local residents and former employees of the company have had Tepcoware in daily use for over 20 years. Others keep "working
collections" of colorful plates on display until dinner time, when they earn their keep. A recent meal at the Selvins' included
Zuni stew on Western Traveler plates, salad in Early California bowls and coffee in Oregonian Rose or Belfast Root Beer mugs.
World War II, Pagliero supplied china to ships' galleys of the United States Pacific fleet sailing from San Francisco. Each
day 30,000 pieces emblazoned with blue ropes, flags and anchors, packed with redwood shavings in oak barrels, rolled down
wooden ramps into Navy trucks.
By this time Pagliero owned two California clay mines-in and in Livermore-a gold mine,
a cattle ranch, a vineyard and a deposit of Nevada andalusite. The latter was used by Eddie and Tony (John's oldest son) in
Pyramid Alloy, their experimental stove-top clay body with which they tried, unsuccessfully, to make frying pans and casseroles
that could take direct flame.
But most of the raw ingredients for their standard clay body came from the East. Railroad
cars of Georgia kaolin, Old Hickory Kentucky ball clay, North Carolina feldspar and West Virginia silica were uncoupled on
the Tepco spur and the contents emptied into crushers. Suction conveyors vacuumed materials into silo like tanks which held
Raw ingredients measured according to a master recipe were carried in batch cars to 3000-gallon buhrstone-lined
ball mills. These mills were like enclosed cement mixers filled with smooth stones; they ensured an intimate mixture of finely
ground materials suspended in a 50 percent water solution. After a two day grind, the slip was drained through 300 mesh electromagnetic
lawns or screens- which removed lumps and iron-into underground agitator sumps where it was aged to make it more workable.
Sump pumps sent slip at high pressure through canvas filters that dewatered the clay and left it in cakes. Peeled from the
filterpress, the clay was tossed into a ten-ton-capacity pug mill, whose rotating knives and vacuum chambers removed all trapped
air. A continuous eight-inch square column of jigger-ready clay was pushed through the tapered extruding end of the mill.
Three-foot lengths were cut and stacked on zinc-covered carts.
The batter-out and the jiggerman, Butch Pagliero told
me, were pieceworkers; they wasted no time in attacking the clay columns. Armed with a piano wire garrote, the batter-out
cut the columns into stacks of one-half inch blanks. He slapped each blank onto a flat plaster bat, "stomped" it with a felt-covered
cast iron maul, then passed the "pancake" to his partner at the jigger.
The jiggerman-during the war there were two
jiggerwomen-centered the pancake on a whirling Rosatti mold whose top surface gave shape to the face of the plate. He lowered
a lever mounted with a steel template, cutting bottom and edge in sharp profile. Ovals were thrown on eccentric jiggers. Cups,
deep bowls and other holloware were jiggered in concave molds whose inner walls shaped the item's outer surface. Each of the
16 jiggermen, with his batter-out partner, threw about 200 dozen pieces a day. For decades after Eastern innovators had introduced
completely automatic 12 head jiggers, Tepco methods remained "hands-on"; later, a semiautomatic 2 head jigger was used.
jiggered ware was dried to "chalk white" in rooms heated by open-front gas heaters. Finishers sponged and fettled plates in
stacks, then passed them on a vibrating conveyor belt under cascades of sand, which worked itself between each piece. Covered
with setting sand to minimize warping, placed in refractory saggers and onto kiln cars, the ware was fired to vitrification
at 2400 degrees Fahrenheit. The doughnut-shaped bisque kiln, a 180 foot continuous circular tunnel, had an open segment (a
bite out of the doughnut) that allowed four men in two hours to remove bisque from the moving car and replace it with greenware
before it reentered the tunnel.
The car completed the circle in 56 hours, unless there was an accident. Eddie Pagliero
remembers being awakened at home in the early morning hours, and having to shut down and enter the dark, hot tunnel to clean
up spilled saggers. The closer to the heat zone, the longer the downtime as the kiln cooled and reheated. "I lost a lot of
hair that way," Eddie laughs. His hands and arms like those of the kiln placers, became so callous he could pick up blistering
hot china without pain.
After bisque firing, the ware was no longer fragile, and the workers tossed it about with practiced
abandon. Plates that had cracked in firing were quickly eliminated from the production line, in a sort of industrial Darwinism.
sand which stuck to the ware during the bisque was removed by sand blasting. Conveyor belts carried smooth ware past the stampers,
who applied underglaze-inked rubber stamps spelling Tepco. A woman who had stamped for nine years told me that they used a
variety of other trademarks; these included Pa-Ce-Co, Pamco, Solano, Genesee and a single gothic P. This assortment purportedly
was a sales ploy.
Eckman, once foreman of the decorating shop, recalled the different decorating processes. The early
china was undecorated white or tan, or at most it had a few brushed-on bands of brown, blue, red or green underglaze. Later,
transfer printing, airbrush and stencil and underglaze decals were used. Bill Hoyt, the chief of the art shop, began each
process with a drawing according to Pagliero's or a customer's specifications. For an airbrushed pattern, the drawing was
cut into a flexible sheet of lead; this could be cut into parts, since each size and type of item required a different modular
stencil assembly, which was bound with wire and soldered. The upstairs decorating shop included 12 spray booths.
the tissue transfer process, a Hoyt drawing was engraved on a copper cylinder, which was then chrome-plated. The cylinder,
mounted on a printing press and inked with underglaze colorant dissolved in pine tar oil, printed patterns onto lengths of
sheer, strong tissue. The tissue was dried on clotheslines, cut, laid in place and pasted down on the ware with a film of
soft lye soap. Decorators tossed the china into a tub of water, and when the tissue soaked free, it left the design clearly
registered. The ware was ready for the glaze dippers.
"When I dipped piecework," Eckman recalled, "I liked to start
at dawn and get out by noon, and I could make a good wage." He did it by dipping up to four plates in one hand, extending
his reach and grip with several taped-on copper wire "fingers." With several plates wedged firmly on hooks, he would swing
his hand in an arc into and out of a tub of glaze, touching up any unglazed areas with the fingers of his free hand.
two glost kilns, 160-and 250-feet long respectively, were straight tunnels reaching 2100 degrees Fahrenheit. Kiln cars passed
through them in 36 hours. The glazed ware was unloaded, inspected and sent to distribution warehouses in Houston, Seattle,
Los Angeles and San Francisco. The culls, or rejects, were trucked for dumping to Point Isabel, where I was to find them decades
After Tepco's flush war years, Pagliero turned business operations over to his two sons. Arthur, the younger,
remained in El Cerrito while Antone (Tony) traveled to make major sales and to set up branch offices in Houston, Seattle and
Los Angeles. Tony's wife, Dolores, kept the books. Eddie Pagliero remembered her as "the brains of the operation." The 1936
ledger, salvaged during the factory's demolition, shows Tepco's rapid growth in sales as it produced more chinaware and phased
out electrical and technical porcelain lain, such as insulators and bathroom accessories that it had produced in the 1920's.
Meticulous handwritten columns, possibly in Dolores's hand, record monthly sales to a single San Francisco distributor totaling
Tony and Dolores retired in the early 1960's leaving Arthur to preside over Tepco's dissolution. Almost to
the end of his 85 years, John Pagliero put on his knee-length brown cotton coat and walked the production line.
shut down in 1968, the year John died. The demolition company hired to raze it two years later went out of business while
trying to destroy the steel reinforced concrete building. -End
Pagliero v. Wallace China Co.
198 F.2d 339, 95 U.S.P.Q. 45 9th Cir.(Cal.)
|ORR, Circuit Judge.
Appellee sought relief in the District
Court by way of application for a preliminary and permanent injunction and, for damages because of an alleged commission by
appellants of acts of unfair competition and trade-mark infringement. The trial court granted a preliminary injunction and
it is an appeal from that order which brings the case here.
Appellee Wallace China Company, hereinafter called Wallace,
has manufactured and sold vitrified hotel china for many years. Purchase of hotel china is induced, in part, by virtue of
its attractive appearance. Wallace, in common with many other manufacturers of china, has employed artists to create suitable
designs for use in its manufacturing business. Wallace claims to have developed the application of overall patterns to china,
that is, a pattern which in an unbroken fashion covers the entire upper surface of the plate. Four distinctive designs are alleged to have been first employed
by Wallace; and, similarly, Wallace alleges that it was first in the field to use the words 'Tweed', 'Hibiscus', 'Shadowleaf',
and 'Magnolia' to denominate these particular patterns. Wallace claims to have created a substantial market for its products
bearing these designs by virtue of extensive advertising, carried on in part by Wallace and in part by its dealers, wherein
the designs and names adopted to designate them have been popularized by their use in catalogues, price lists and other literature
distributed by Wallace and its dealers.
At the hearing on the application for the temporary injunction affidavits were
introduced in evidence purporting to show that Wallace has acquired a reputation in the trade, not merely for the excellence
and attractiveness of its designs but, in addition, because of the allegedly superior quality of its product. The affidavits
suggest that the source of china is of importance to the purchasing public. Through the years both the designs and their names
are alleged to have become associated in the minds of the trade and the consumer as indicating a Wallace product; hence, it
is thus attempted to establish a secondary meaning for the designs and for the words used to designate them. Appellants Pagliero
Brothers, doing business as Technical Porcelain and Chinaware Company, hereinafter called Tepco, have been competitors of
Wallace for some time. Tepco manufactures and sells vitrified hotel china to the same dealers and middlemen as does Wallace.
Tepco uses the four designs allegedly originated by Wallace and applies the designs to china of substantially
identical physical dimensions as that of Wallace. In addition, Tepco has denominated these designs, as applied to its china,
by the same words chosen by Wallace for this purpose. Tepco has used said words for such purpose on its shipping carton and
price lists, although the carton and price lists have Tepco's name as manufacturer displayed prominently. Wallace further
claims that Tepco's china is of inferior quality.
*341 The acts of unfair competition alleged are: (1) Simple use of the
designs by Tepco; (2) use of the designs in view of the secondary meaning sought to be established for them and consequent
deception of the purchasing public: (3) a conspiracy by Tepco with the engraver who prepared engraving rolls for Wallace in
which the engraver copied the rollers and designs for Tepco; (4) the copying of the color, marking and arrangement of Wallace's
shipping cartons by Tepco.
The act of trade-mark infringement alleged is the use by Tepco of the words 'Hibiscus', 'Magnolia',
'Shadowleaf', and 'Tweed', to designate its imitations of Wallace designs, such use exemplified by the price lists and shipping
cartons. Wallace does not contend that the words have been registered as trade-marks, or that the designs have been patented
or copyrighted. The trial court expressly found that they were not.
Tepco maintains that, in accordance with the custom
of trade, all pieces of china manufactured by it, including those impressed with imitations
of Wallace designs, bear on the underside of the china Tepco's name as manufacturer. Tepco alleged that the designs were not
original with Wallace, that it had in fact used one of the designs, 'Tweed', long before Wallace, and that its china was not
of inferior quality.
The preliminary injunction granted by the District Court restrained Tepco from ' * * * disposing of
china bearing patterns deceptively similar to those originated by plaintiff * * * and from using plaintiff's trade names or
trade- marks 'Shadowleaf', 'Tweed', 'Hibiscus', and 'Magnolia', in the identification of hotel chinaware manufactured and
sold by the defendants.' There is no finding, relative to the alleged conspiracy or imitation of shipping cartons and the
court's order makes no reference to those matters.
While the complaint is denominated
'Complaint for Unfair Competition and Trade-Mark Infringement,' it is apparent that there is no registered trade-mark infringement
involved. The words used to designate the designs were never registered under any law. The designs were neither patented,
nor copyrighted. Hence, it is clear no jurisdiction exists in a federal court under 28 U.S.C.A. § 1338(b) because there is no 'related claim' disclosed in the complaint.
Diversity of citizenship is not present since Wallace and Tepco are residents of California. There is, however, an independent ground for federal jurisdiction in a case such as this
involving, as it does, a 'naked' claim of unfair competition. In Stauffer v. Exley, 9 Cir., 184 F.2d 962, we held that where there is present the requisite effect on interstate
commerce, the Lanham Act created substantive rights and remedies available to United States citizens and neither diversity
of citizenship nor jurisdictional amount need be present. [FN1] 15 U.S.C.A. § 1121. The scope of the rights created by the Lanham Act, 15 U.S.C.A. §§ 1125, 1126(b), 1126(g), 1126(h), 1126(i), has not as yet been subjected to full judicial scrutiny; but
the test in this situation is no different from that of other tests for federal jurisdiction. If the complaint raises a substantial
claim of federal right under the Lanham Act the District Courts have jurisdiction of the case notwithstanding it may ultimately
be found that the alleged right was not created by the Act. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939.
II. The Injunction.
A. Appropriation of the Designs.
first consider whether Wallace has an exclusive right to the designs on the assumption they have not acquired a secondary
meaning. Wallace's complaint is that Tepco copies and imitates its (Wallace's) *342 designs to the latter's competitive detriment. The theory of the
wrong is apparently that Tepco has benefited from the fruits of Wallace's business activities and efforts. Authority for granting relief under such circumstances
must be found to exist, if at all, in the Lanham Act. Our conclusion is that said Act grants no such relief.
been much discussion as to the meaning of the term 'unfair competition' as used in Sec. 44(h) of the Act and the scope of
the protection afforded under the International Conventions mentioned in Sec. 44(b)(1) and (2). [FN2] The general consensus of the commentators is that, at the least,
the area of federal rights extends considerably beyond that of simple non- technical trade-mark infringement. Indeed, in view
of the seemingly broad language of the conventions, such a construction is justified, at least so far as the rights created
by international conventions are made available to United States citizens by Sec. 44(b) and Sec. 44(i) of the Act.
not attempt here to lay down definitive limits to the rights created in the Lanham Act by adoption from the conventions. See
53 Stat. 1748. (Paris Convention as modified); 46 Stat. 2907 (Inter-American Convention). So far as the conventions declare
specific acts and practices unlawful a more or less definite area has been established, but so far as interpretation of designedly
broad terms is concerned, words uttered in a different context over thirty years ago by Justice Brandeis are still relevant:
' * * * an enumeration, however comprehensive of existing methods of unfair competition must necessarily soon prove incomplete,
as with new conditions constantly arising novel unfair methods would be devised and developed.' Federal Trade Commission v. Gratz, 1920, 253 U.S. 421, 437, 40
S.Ct. 572, 578, 64 L.Ed. 993.
The wrong alleged is Tepco's use of designs virtually identical
to those used by Wallace. Wallace's right to exclusive use of these designs does not and cannot (since the trial court found
the time for patent or copyright applications has long expired) depend upon statutory authorization. Wallace asks to be protected
in its market, and the enjoyment of a monopoly, because it has worked hard and spent money to develop this market and because
it was the first to use and successfully exploit the allegedly 'distinctive' designs in question. We find nothing in the conventions
that requires this result. See Ladas, International protection of Industrial Property, Secs. 483-487, Secs. 563-565. The specific
acts and practices condemned by the conventions, Article 10 1/2 of the Paris Convention, and Article 21 of the Inter-American
Convention, do not include the acts charged against Tepco here. Competition by imitation where secondary meaning is not involved
apparently was not considered sufficiently important to merit particularization as an unlawful act. Insofar as those specific
provisions shed light on the content to be given the general definitions of unfair competition, substantially similar in language
in both conventions, (compare ' * * * act of competition contrary to honest practice in industrial or commercial matters *
* * ', Article 10 1/2 of the Paris Convention, with ' * * * act * * * contrary to commercial good faith or to the normal and honorable development of industrial or business activities
* * * ', Article 20 of the Inter-American Convention), they do not help Wallace, since the present claim is not analogous
to the specific acts condemned. Cf. Note, 51 Col. L. Rev. 1053 (1951) and articles cited in note 1.
We do not think that
the rights created by Sec. 44(h) go further than the treaties in this respect. Cf. Toulmin, Trade-Mark Act of 1946, 132 (excerpt
from Senate Report); House Hearing on H.R. 4744, 76th Cong. 1st Sess. 164-9. Legislation specifically granting greater protection
to *343 designs has failed of passage in Congress in prior years. Even
though we accept the view that 'unfair competition' is used in a sense broader than its common law meaning, [FN3] nevertheless federal courts have not felt impelled to grant relief
in this type of situation. The authoritative case that lends the most support to Wallace's claim is, of course, International News Service v. Associated Press, 1918, 248 U.S.
215, 39 S.Ct. 68, 63 L.Ed. 211. But the logic of the International News rationale has not been
extended to the design situation. Cheney Bros. v. Doris Silk Corp., 2 Cir., 1929, 35 F.2d 279, certiorari denied, 1930, 281 U.S. 728, 50 S.Ct. 245, 74 L.Ed. 1145. It has been said 'that much discussed decision (International
News) really held no more than that a western newspaper might not take advantage of the fact that it was published some hours
later than papers in the east, to copy the news which the plaintiff had collected at its own expense.' [FN4]
B. 'Passing Off.'
In this branch of the instant
case the allegations of the complaint and supporting affidavits attempt to establish a cause of action for unfair competition
based on secondary meaning. Such a right of action is given by Sec. 44(h) of the Act, as well as by the provisions of the
Conventions. A right to relief allegedly based upon secondary meaning is tested by the same requirements hitherto thought
applicable. See Charles D. Briddell, Inc. v. Alglobe Trading Corp., supra, 194
F.2d at page 421.
Tepco's use of the designs in question cannot be enjoined
even though it be assumed that Wallace can establish secondary meaning for them. Imitation of the physical details and designs
of a competitor's product may be actionable, if the particular features imitated are 'non-functional' and have acquired a
secondary meaning. Crescent Tool Co. v. Kilborn & Bishop Co., 2 Cir., 1917, 247
F. 299. But, where the features are 'functional' there is normally no
right to relief. 'Functional' in this sense might be said to connote other than a trade-mark purpose. If the particular feature
is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation
in the absence of a patent or copyright. [FN5] On the other hand, where the feature or, more aptly, design, is
a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality
and, hence, unrelated to basic consumer demands in connection with the product,
imitation may be forbidden where the requisite showing of secondary meaning is made. [FN6] Under such circumstances, since effective competition may be undertaken
without imitation, the law grants protection.
These criteria require the classification of the designs in question here
as functional. [FN7] Affidavits introduced by Wallace repeat over and over again that
one of the essential selling features of hotel china, if, indeed, not the primary, is the design. The attractiveness and eye-appeal
of the *344 design sells the china. Moreover, from the standpoint of the purchaser
china satisfies a demand for the aesthetic as well as for the utilitarian, and the design on china is, at least in part, the
response to such demand. The granting of relief in this type of situation would render Wallace immune from the most direct
and effective competition with regard to these lines of china. It seems clear that these designs are not merely indicia of
source, os that one who copies them can have no real purpose other than to trade on his competitor's reputation. On the contrary,
to imitate is to compete in this type of situation. Of course, Tepco can also compete by developing designs even more aesthetically
satisfying, but the possibility that an alternative product might be developed has never been considered a barrier to permitting
imitation competition in other types of cases. The law encourages competition not only in creativeness but in economy of manufacture
and distribution as well. Hence, the design being a functional
feature of the china, we find it unnecessary to inquire into the adequacy of the showing made as to secondary meaning of the
The injunction also prohibited Tepco from using the terms 'Shadowleaf', 'Tweed', 'Hibiscus' and 'Magnolia' ' *
* * in the identification of the hotel china-ware manufactured and sold * * * (by it).' From the showing made on the application
for the preliminary injunction we are not prepared to say that the trial court abused its discretion in awarding temporary
relief in this respect. The injunction does not prohibit descriptive uses for the words, but only denominative or, in effect,
trade-mark uses. The question of whether deception has been practiced in the use of the words and whether they have acquired
a secondary meaning is one which the parties should have full opportunity to present and defend against on a hearing of the
merits. Doeskin Products v. United Paper Co., 7 Cir., 1952, 195 F.2d 356.
The preliminary injunction is modified by striking
therefrom all reference to the use of the designs by Tepco, and as so modified the preliminary injunction will stand.