## Facts

- Crescent Tool Company, a tool manufacturer, introduced an adjustable wrench in 1908 and marketed it extensively.
- The wrench’s appearance was new in overall impression, but its main structural features were not novel in detail and were unpatented.
- Crescent’s name appeared in raised letters on the handle, and the wrench became known in trade usage as the “Crescent type” wrench.
- Around 1910, Kilborn & Bishop Company began selling an adjustable wrench substantially similar in overall appearance to Crescent’s.
- Kilborn & Bishop used its own name in raised letters on its wrench, did not use the term “Crescent,” and did not imitate Crescent’s packaging.
- Crescent sued under unfair competition and obtained a temporary injunction in the district court barring Kilborn & Bishop from manufacturing and selling its wrench pending litigation.
- Kilborn & Bishop appealed the interlocutory injunction order.

## Issues

1. Whether, absent patent protection, Crescent could obtain injunctive relief for a competitor’s close copying of its wrench’s appearance without proof that the appearance had acquired secondary meaning as a source identifier.
2. Whether the preliminary-injunction record showed likely consumer confusion based on source deception rather than demand for the product’s utility or pleasing appearance.

## Decision

- The Second Circuit reversed the temporary injunction.
- The court held that Crescent had not shown, on the preliminary record, that the wrench’s general appearance had come to indicate a particular source to the purchasing public by the time Kilborn & Bishop entered the market.
- The court emphasized that popularity and trade recognition of a “type” did not establish that buyers purchased because they cared about the manufacturer’s identity as expressed through the design.
- The court noted that Kilborn & Bishop marked its own name on the wrench and did not copy Crescent’s packaging or trade name, weakening any inference of deception on the existing showing.
- The court left open the possibility that Crescent could attempt to prove secondary meaning at trial and obtain appropriately limited relief if confusion were later shown.

## Legal Principles

- For protection of nonfunctional product appearance under unfair competition, it is a prerequisite that the plaintiff prove secondary meaning: the design must signify a single source in the public mind, and purchasers must care about that source, not merely the article’s utility or attractiveness.
- Unpatented product features—functional or nonfunctional—remain in the public domain; competitors may copy them unless and until the appearance functions as a source identifier through secondary meaning.
- Evidence sufficient to show consumer association of a design with a producer (and likely confusion from imitation) is required, particularly when seeking preliminary injunctive relief.

## Conclusion

The court vacated the preliminary injunction because Crescent failed to show that the unpatented wrench design had acquired secondary meaning identifying Crescent as the source by the time the defendant began selling its similar wrench, and the record did not adequately support a finding of source deception warranting interim restraint.


Crescent Tool Co. v. Kilborn & Bishop Co., 247 F. 299 (2d Cir. 1917)