Mosler Safe Co. v. Ely-Norris Safe Co.,
273 U.S. 132 (1927)

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U.S. Supreme Court

Mosler Safe Co. v. Ely-Norris Safe Co., 273 U.S. 132 (1927)

Mosler Safe Company v. Ely-Norris Safe Company

No. 94

Argued January 7, 1927

Decided January 17, 1927

273 U.S. 132


MR. JUSTICE HOLMES delivered the opinion of the Court.

This is a bill in equity brought by a corporation of New Jersey against a corporation of New York alleging unfair competition. It was treated below as a suit by the only manufacturer of safes containing an explosion chamber for protection against burglars. It seeks an injunction against selling safes with a metal band around the door in the place where the plaintiff put the chamber, or falsely representing that the defendant's safes contain an explosion chamber. The plaintiff admitted that

Page 273 U. S. 133

the defendant's safes bore the defendant's name and address and that the defendant never gave any customer reason to believe that its safes were of the plaintiff's make. The district court, following American Washboard Co. v. Saginaw Manufacturing Co., 103 F. 281, held that representations such as were sought to be enjoined did not give a private cause of action. The circuit court of appeals held that if, as it took it to be alleged, the plaintiff had the monopoly of explosion chambers and the defendant falsely represented that its safes had such chambers, the plaintiff had a good case, and that, since the decision above cited, the law had grown more liberal in granting relief. It therefore reversed the decree below. 7 F.2d 603. In view of the conflict between the circuit courts of appeals, a writ of certiorari was granted by this Court. 268 U.S. 684.

At the hearing below, all attention seems to have been concentrated on the question passed upon and the forcibly stated reasons that induced this court of appeals to differ from that, for the Sixth Circuit. But, upon a closer scrutiny of the bill than seems to have been invited before, it does not present that broad and interesting issue. The bill alleges that the plaintiff has a patent for an explosion chamber "as described and claimed in said letters patent;" that it has the exclusive right to make and sell "safes containing such an explosion chamber;" that no other safes containing "such an explosion chamber" could be got in the United States before the defendant, as it is alleged, infringed the plaintiff's patent, for which alleged infringement a suit is pending. It then is alleged that the defendant is making and selling safes with a metal band around the door at substantially the same location as the explosion chamber of plaintiff's safes, and has represented to the public "that the said metal band was employed to cover or close an explosion chamber," by reason of which

"the public has been led to purchase

Page 273 U. S. 134

defendant's said safes as and for safes containing an explosion chamber, such as is manufactured and sold by the plaintiff herein."

Primary Holding

To prevail in a claim for unfair competition, the plaintiff needs to show an actual loss of business.


Mosler Safe Co. made a safe that looked like the patent-protected safes produced by Ely-Norris Co. but did not contain the explosion chamber that the Ely-Norris safes contained. Ely-Norris brought a claim on the basis that Mosler was trying to palm off its safes as Ely-Norris safes. However, it did not identify any specific lost sales, and it was established that other safe manufacturers made safes with explosion chambers. The trial court did not issue an injunction against Mosler, but the appellate court did.



  • Oliver Wendell Holmes, Jr. (Author)
  • William Howard Taft
  • Willis Van Devanter
  • James Clark McReynolds
  • Louis Dembitz Brandeis
  • George Sutherland
  • Pierce Butler
  • Edward Terry Sanford
  • Harlan Fiske Stone

Since other manufacturers apparently also infringed on the Ely-Norris patent by making safes with explosion chambers, there was no evidence suggesting that Ely-Norris lost business specifically because of Mosler's palming off. Therefore, the causation and damages elements of the claim could not be sustained.

Case Commentary

There was nothing to show that potential customers of the plaintiff went to the defendant for business instead, or even that other safe companies did not offer reasonably similar devices that served the same purpose.

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