Page:Federal Reporter, 1st Series, Volume 2.djvu/550

 BTORT V. OANDBB. 648 �Co., which has just been decided. In the defendants' shoe the foot is encased by the vamp and that part of the quarter which is behind the hinge of the fold at the ankle, and the jointed flaps, or the ear pieces, fold without the shoe proper. �It is claimed by the defendants that there is no infringe- ment because their shoe is the Norris shoe. In the Norris shoe the sides of the quarter corne forward and are buckled or fastened over the instep, covering the fold made in the gusset, while in the Evory & Heston the quarter cornes only to the front line of the heel covering, and the fastening is made by uniting the two gussets folded outside of the shoe. In the defendants' shoe that part of the quarter which serves as a support and protection for the foot is the Evory & Hes- ton quarter. That part of the quarter which is forward of the hinge, er the fold in the quarter, is folded with the vamp ex- tension outside of the shoe proper. There is no substantial difference in the manner in which the extensions are folded in the respective shoes. The confusion, if there be any, con- sists in the fact that the Evory & Heston quarter is a narrow one, extending a little beyond the ankle joint, and the gores are hinged at the ankle seam. The defendant^' quarter is a wide one, and the vamp extension and the front part of the quarter fold upon eaoh other and swing forward outside of the shoe proper at about the same point at which the Evory & Heston gores are hinged. �In addition to the evidence derived from the manner of con- struction of the respective shoes, the defendants had taken a license in the year 1877 from Evory & Heston, and had dis- played in their trade circular for that year pictures of the shoes which they then manufactured and which they are still man- ufacturing, and which they then represented to be made under the Evory & Heston patent. That was undoubtedly their opinion at that time, and I do not think that they were mis- taken. Infringement is clearly proven. �Let there be a decree in the usual form for an injuncticn and an accounting. ����