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THE LAW OF MOTION PICTURES
ever, will ordinarily grant injunction when the right thereto is made out, even though there be acquiescence, but will in such cases deny an account of profits and an award of damages.102 Nor will they in such cases grant a temporary injunction.103
The reason for the American rule is that where the plaintiff has stood by without protest and permitted the defendant to infringe upon his rights, and has allowed him to expend moneys in marketing and advertising his product, he is not equitably entitled to the fruits of the defendant’s enterprise, or to make any claim for damages sustained by him. But not having divested himself of his property right, equity will protect him against any future infringement thereof.104
102 McLean v. Fleming (1877), 96 U. S. 245. “Cases frequently arise where a court of equity will refuse the prayer of the plaintiff for an account of gains and profits on the ground of delay in asserting his rights, even when the facts proved render it proper to grant an injunction to prevent further infringements.”
Allen v. Walker (1916), 235 Fed. (D. C.) 230. Where defendant had been infringing for two years, and had not been notified to desist it was held such laches as to preclude an accounting.
Strauss v. Notaseme Co. (1915), 240 U. S. 179; 36 Sup. Ct. 288;
Menendez v. Holt (1888), 128 U. S. 514; 9 Sup. Ct. 143; Amoskeag v. Spear (1849), 2 Sandf. S. C. 599.
See in this connection: Sawyer v. Kellogg (1881), 9 Fed. (C. C.) 601.
103 Burns v. Burns (1902), 118 Fed. (C. C.) 944; Virginia Hot Springs v. Hegeman (1905), 138 Fed. (C. C.) 855.
104 Menendez v. Holt (1888) , 128 U. S. 514; 9 Sup. Ct. 143; Fairbanks v. Luckel (1902), 116 Fed. (C. C. A.) 332; Sawyer v. Kellogg (1881), 9 Fed. (C. C.) 601; McLean v. Fleming (1877), 96 U. S. 245.