But the courts are not inclined to sustain demurrers
upon the ground that the plaintiff's mark is not a valid
technical trade-mark, where the bill contains the specific
charge that the defendant has, by its conduct in the
premises, deceived and misled the public into buying its
goods as and for the plaintiff's goods.^ A defect upon
the face of the bill, such as a failure to show a title to
^Celluloid Mfg-. Co. v. Read, 47 Fed. Rep. 712-716.
^Collins Co. V. Ames, 20 Blatchf. 542; 18 Fed. Rep. 561; Amoskeag-
Mfg-. Co. V. Garner, 54 How. Pr. 297; Carroll v. Ertheiler, 1 Fed.
Rep. 688; Hecht v. Porter, 9 Pac. C. L. J. 569; Osgood v. Rockwood,
11 Blatchf. 310; Smith v. Reynolds, 10 Blatchf. 100; 13 Blatchf. 458.
SRolt V. Menendez, 23 Fed. Rep. 869-871.
^Collins Chemical Co. v. Capital City Mfg. Co., 42 Fed. Rep. 64.
Â« Putnam Nail Co. v. Bennett, 43 Fed. Rep. 800.
256 LAW OF UlSTFAIR TRADE. [ Â§ 115
the mark in a complainant, must be met by demurrer and
cannot be raised by a plea.^
There are a number of lines of defense which have been
ineffective. Among them are to be particularly noted the
B. The registration of defendant's mark, because regis-
tration is only prima facie evidence of ownership.^
C. Laches or delay, except in unusual cases.*
D. Showing that defendant always placed his own ad-
dress upon his goods, in conjunction with the in-
E. Showing that defendant has always used his own
name or initials in conjunction with the infringing
mark. This is not, of itself, a good defense.^
F. Showing that defendant has always used the word
"Improved" in addition to the alleged infringing
G. Showing that the defendant's goods are not inferior
in quality to the complainant's.^
'Hostetter Co. v. E. G, Lyons Co., 99 Fed. Rep, 734.
2 Chubb V. Griffiths, 35 Beav. 127.
^Glen Cove Mfg. Co. v. Ludeling (or Ludeman), 22 Fed. Rep. 823;
23 Blatchf. 46; Bass, Ratcliff & Gretton (Ltd.) v. Feigenspan, 96
Fed. Rep. 206, 209, 212.
^McLean v. Fleming, 96 U. S. 245; Lee v. Haley, L. R. 5 Ch. App.
155. See ante, g 57.
'Gray v. Taper-Sleeve Pulley Works, 16 Fed. Rep. 436-442.
Â«Menendezv. Holt, 128 U. S. 521; Battle v. Finlay, 50 Fed. Rep.
106; N. K. Fairbank Co. v. Central Lard Co., 70 Off. Gaz. 635; 64
Fed. Rep. 133; Boardman v. Meriden Britannia Co., 35 Conn. 402;
Hier v. Abrahams, 82 N. Y. 519; Fleischmann v. Schuckmann, 62
How. Pr. 92; Lea v. Wolff, 15 Abb. Pr. N. S. 1; Carroll v. Ertheiler,
1 Fed. Rep. 388; Hegeman v. O'Byrne, 9 Daly, 264; Pratt's Appeal,
117 Pa. St. 401; Walter Baker & Co. v. Baker, 87 Fed. Rep. 209;
Bass, Ratcliff & Gretton (Ltd.) v. Feigenspan, 96 Fed. Rep. 206-210;
Leonard v. White's Golden Lubricator Co., 38 Fed. Rep. 922.
^Russia Cement Co. v. LePage, 147 Mass. 206; Gage v. Canada
Pub. Co., 11 Can. S. C. R. 306; Improved Fig Syrup Co. v. Cali-
fornia Fig Syrup Co., 54 Fed. Rep. 175; 4 C. C. A. 264.
''Cleveland Stone Co. v. Wallace, 52 Fed. Rep. 431-436; Taylor v.
Carpenter (3), 11 Paige, 292; Coats v. Holbrook, 2 Sandf. Ch. 586;
Â§ 115] THE ACTION IN EQUITY. 257
H. Showing that the goods sold are goods made by the
complainant, if they are goods to which the com-
plainant did not intend the mark to be applied. >
I. Showing that the defendant did not intend to sell
the goods bearing the infringing mark.^
J. Showing that the complainant's mark has been used
by others without his knowledge, consent or ac-
K. Showing that the same mark has been used by others
on goods of another class.'*
L. Showing that a third person used the trade-mark
prior to its appropriation by the complainant,
when that third person has been refused relief in
equity against infringers, because of fraudulent
representations made by him in using the mark.''
M. Showing that the infringing act was done by the de-
fendant's servants, agents or employees without
Partridge v. Menck, 2 Sandf. Ch. 622; Cook v. Starkweather, 13
Abb. Pr. N. S. 392; Shaver v. Shaver, 54 Iowa, 208; Coffeen v. Brun-
ton, 5 McLean, 256; Gillott v. Esterbrook, 47 Barb. 455; 48 N, Y. 374;
Singer Mfg. Co. v. Loog (3), L. R. 8 App. Cas. 15; Edelsten v. Edel-
sten, 1 DeG. J. & S. 185; Blofield v. Payne, 4 B. & Ad. 410.
^Krauss v. Jos. R. Peebles' Sons Co., 58 Fed. Rep. 585; Hennessy
V. White, 6 W. W. & A'B. Eq. 216; Hennessy v. Hogan, 6 W. W. &
A'B. P:q. 225; Gillott v. Kettle, 3 Duer, 624; Hennessy v. Kennett,
2Upmann V. Forester, L. R. 24 Ch. D. 231; Upmann v. Curry, 29
Sol. J. .735.
3 Cuervo v. Jacob Henkell Co., SO Fed. Rep. 471; Filley v. Fassett,
44 Mo. 173; Cox, 530; Taylor v. Carpenter (1), 3 Story, 458; Cox, 14;
Seb. 78; Ford v. Foster, L. R. 7 Ch. App. 611.
< Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 Fed. Rep. 94; Colman
V. Crump, 70 N. Y. 573; Hegeman v. O 'Byrne, 9 Daly, 264; Somer-
ville V. Schembri, L. R. 12 App. Cas. 453-^57; Ains worth v. Walms-
ley, L. R. 1 Eq. 518; Hall v. Barrows, 4 DeG. J. & S. 150; George v.
Smith, 52 Fed. Rep. 830.
^Parlett v. Guggenheimer, 67 Md. 542-544. The rights of the third,
party had been so adjudicated in Palmer v. Harris, 60 Pa. St. 156.
^Low v. Hart, 90 N. Y. 457; Twentsche Stoom Bleekery Goor v.
Ellinger, 26 W. R. 70; Tonge v. Ward, 21 L. T. N. S. 480; Atkin-
son V. Atkinson, 85 L. T. Jour. 229. But see Leahy v. Glover, 10
R. P. C. 141, where a single sale by defendant's clerk was held in-
sufficient to warrant injunction.
258 LAW OF UNFAIR TRADE. [Â§115
N. Showing- that defendant partners have incorporated
after the institution of the suit.^
O. Showing- that the complainant gave the defendant
no notice of his intention to bring suit,'^
P. Showing that a jjroper name alleged to be an in-
fringement is the name of a person connected
with defendant's business, when in fact such per-
son has only g-iven defendant permission to use his
name as a means of attracting trade from the com-
plainant, in pursuance of defendant's scheme to
fraudulently take away complainant's business.^
Q. Showing that plaintiff has added words, figures or
designs, such as a coat-of-arms, to the trade-mark
R. Showing that the complainant's trade-mark or pack-
age is only partially copied or imitated in defend-
ant's mark or package.^
'American Fibre Chamois Co. v. De Lee, 67 Fed. Rep. 329.
Â«Coat? V. Holbrook, 2 Saudf. Ch. 586; Cox, 20; Sawyer v. Kellog-g",
9 Fed. Rep. 601-602; Upmanu v. Forester, L. R. 24 Ch. D. 231-235;
Cartmell, 331; Upmann v. Elkan, L. R. 12 Eq. 140; L. R. 7 Ch. App.
130; Burg-ess v. Hately, 26 Beav. 249; Seb. 169; Field v. Lewis, Seton
(4th ed.), 237; Seb. 280; Re Kuhn, 53 L. J. Ch. 238; Barrett v. Goom,
74 L. T. Jour. 388; Fennessy v. Day, 55 L. T. N. S. 161; Siegert v.
Lawrence, 11 Vic. L. R. 47. See, contra, Wallis v. Wallis, 4 Dr.
458; Twentsche Stoom Bleekery Goor v. Ellinger, 26 W. R. 70; Chap-
pell V. Davidson, 2 K. Â«& J. 123; Williams v. Osborne, 13 L. T. N. S.
498; Gorham Mfg. Co. v. Emery-Bird-Thayer Dry Goods Co., 92 Fed.
^Sawyer v. Kellogg-. 7 Fed. Rep. 720; Price & Steuart, 493; 9 Fed.
Rep. 601; Rogers Mfg. Co. v. Rogers Mfg. Co., 11 Fed. Rep. 495;
Williams v. Brooks, 50 Conn. 278; Meriden Britannia Co. v. Par-
ker, 39 Conn. 450,- 12 Am. Rep. 401; Garrett v. T. H. Garrett & Co.,
78 Fed. Rep. 472; Phalon v. Wright, 5 Phila. 464; Cox, 307; Wolfe v.
Barnett, 24 La. Ann. 97; 13 Am. Rep. Ill; Melachrino v. Melach-
rino Cigarette Co., 4 R. P. C. 215; Cartmell, 223; Perks v. Hall,
W. N. 1881, p. Ill; Williams v. Johnson, 2 Bos. 1.
4 Melachrino v. Melachrino Cigarette Co., 4 R. P. C. 215; Cartmell,
223; Newman v. Pinto, 4 R. P. C. 508; 57 L. T. N. S. 31; Cartmell,
242; Carroll v. Ertheiler, 1 Fed. Rep. 688-691.
f'McCann v. Anthony, 21 Mo. App. 83; Enoch Morgan's Sons Co.
V. Edler, Cox, Manual, 714; Taendsticksfabriks Aktiebolaget Vulcan
V. Myers, 139 N. Y. 364; Pillsbury v Pillsbury-Washburn Mills
Co., 64 Fed. Rep. 841; Centaur Co. v. Killenberger, 87 Fed. Rep. 725.
Â§115] THE ACTION IN EQUITY. 259
S. Showing" that complainant has been guilty of mis-
representation in connection with his use of the
trade-mark, where that misrepresentation consists
only in harmless exagj^-eration of the merits of his
product (puffing-);^ or in purely collateral represen-
tation, as by newspaper advertising; ^ or in regard
to the size of packages used by him, where the
sizes of those packages are the ordinary sizes known
to the trade, the capacity of which is generally
T. Showing that the infring-ement has ceased.*
U. Showing- that the complainant has made a third
party his licensee for the territory in which the
infringement was committed.^
V. Showing that the defendant has made no sales of
goods bearing the infringing mark, where it ap-
pears that he would have done so had the suit not
W. Showing that the defendant is merely a dealer who
has purchased from the originator of the infringe-
ment,' or merely the agent of another in the sale
of the infringing goods. ^
X. Showing that the defendant once held a license from
the plaintiff, permitting the use of the mark, when
that license has been revoked for failure to pay
royalties and other breaches of the licensing con-
iComstock V. White, 18 How. Pr. 421; Cox, 232; Metzler v. Wood,
L. R. 8 Ch. D. 606; Seb. 587; Holloway v. Holloway, 13 Beav. 209;
Seb. 106; Ellis v. Zeilen, 42 Ga. 91.
^Curtis V. Bryan, 36 How. Pr. 33; 2 Daly, 212; Cox, 434; Seb. 291.
3Hennessy v. Wheeler, 51 How. Pr. 457; 69 N. Y. 271; 15 Alb. L. J.
454; Seb. 483.
*Frese v. Bachof, 13 Blatchf. 234; Burnett v. Hahn, 88 Fed. Rep.
694; Hutchinson v. Blumberg, 51 Fed. Rep. 829-831.
*Moxie Nerve Food Co. v. Baumbach, 32 Fed. Rep. 205.
^Cuervo v. Landauer, 63 Fed. Rep. 1003.
^Burnett v. Hahn, 88 Fed. Rep. 694.
8 Walter Baker & Co. v. Sanders, 80 Fed. Rep. 889.
'Martha Washington Creamerj' Buttered Flour Co. v. Martien, 44
Fed. Rep. 473.
260 LAW OF UNFAIR TRADE. [Â§116
Y. Showing- that there has been an adjudication against
the plaintiff in a court of a foreign country. The
subject-matter, in cases of the classes treated in
this work, is a tort. Such subjects are not con-
cluded by foreign adjudications, even when the
acts referred to are the same identical acts.^
Â§ 116. The relief in equity. â€” In regard to making an
application for a preliminary injunction in cases of unfair
trade or trade-mark infringement, it should be remem-
bered that wherever there is any doubt as to the plain-
tiff's right or the defendant's infringement, the applica-
tion pendente lite will be denied. ^ Accordingly the courts
have refused to grant the preliminary injunction where
it appeared probable that the plaintiff had never ac-
quired the exclusive right to use the mark, but held it as
a tenant in common with another;^ where there existed
a doubt whether the words claimed as trade-marks by the
plaintiff ("Pile Leclancha" and "Disque," applied to
electric batteries) were or were not merely descriptive
words;* where the facts indicated that the complainant
was possibly guilty of laches;^ and where the defend-
ant's affidavits created a doubt in the mind of the court
iHohner v. Gratz, 50 Fed. Rep. 369; City of Carlsbad v. Kutnow,
68 Fed. Rep. 794.
2 ' 'An interlocutory injunction operates somewhat in the nature of
judgment and execution before trial. Without question it is at times
an appropriate remedy in the prevention of great wrong, but to
authorize its issuance there must exist a pressing necessity. The
right to it must be clear, and the apprehended injury must be griev-
ous, and generally, where the injury may be measured in money, the
alleged wrong-doer should be shown to be unable pecuniarily to
respond." Jenkins, J., in American Cereal Co. v. Eli Pettijohn
Cereal Co., 76 Fed. Rep. 372-374.
In refusing to grant a preliminary injunction Mr. Justice Bradley,
on circuit, said: "My great reluctance to grant a preliminary injunc-
tion for suppressing the use of a business name or trade-mark, in
3 American Cereal Co. v. Eli Pettijohn Cereal Co., 76 Fed. Rep. 372.
4 Leclancha Battery Co. v. "Western Electric Co., 21 Fed. Rep. 538.
Same of "air-cell" and "fire-board" applied to fire-proofing ma-
terial. New York Asbestos Mfg. Co. v. Amber Asbestos Air-cell
Covering Co., 99 Fed. Rep. 85.
sEstes V. Worthington, 22 Fed. Rep. 822.
Â§ 116] THE ACTION IN EQUITY. 261
as to whether the plaintiff had been the exclusive user
of the symbols claimed by him as his trade-mark. ^ A
preliminary injunction will not be awarded on ex iiarte
affidavits unless in a clear case."^ A mandatory injunc-
tion pending- the suit is not granted except in extreme
cases where the right thereto is clearly established and
it appears that irreparable injury will follow from its
So when the court has reason to doubt that the defend-
ant has been guilty of acts amounting- to an invasion of
the plaintiff's trade rights, a preliminary injuction will
not be issued.^ But while refusing the interlocutory in-
junction, the court may, in its discretion, require the de-
fendant to keep an account, pending the suit, of all his
dealings in g-oods bearing- the alleged infringing mark;
as Judge Treat said in making such an order: "It will not
hurt him to keep an account. "â– '''
It is sufficient to sustain the application for the pre-
liminary injunction (so far as the plaintiff's title to the
mark is concerned) if he has established his right to the
trade-mark in a former proceeding.^ While the decision
in such former proceeding is not conclusive and binding
upon the court in the later case, it is persuasive and of
great weight, and on the motion for a preliminary in-
junction, especially where it sustains the impression of
any case in which the matter in issue is a subject for fair dis-
cussion, induces me to withhold the order." Celluloid Mfg. Co. v.
Cellonite Mfg-. Co., 32 Fed. Rep. 94-102. And to the same effect see
Van Camp Packing- Co. v. Cruikshanks Bros. Co., 90 Fed. Rep. 814;
33 C. C. A. 280; Charles E. Hires Co. v. Consumers' Co., 100 Fed.
Rep. 809-813; Goldstein v. Whelan, 62 Fed. Rep. 124.
"French V. Alter & Julian Co., 74 Fed. Rep. 788; Leclancha Battery-
Co. V. Western Electric Co., 21 Fed. Rep. 538; Portuondo v. Monne,
28 Fed. Rep. 16; Davis v. Davis, 27 Fed. Rep. 490.
2 New York Asbestos Mfg-. Co. v. Amber Asbestos Air-cell Covering-
Co., 99 Fed. Rep. 85; Lare v. Harper & Bros., 86 Fed. Rep. 481;
30 C. C. A. 373.
SHagen v. Beth, 118 Cal. 330.
* Goodyear Rubber Co. v. Day, 22 Fed. Rep. 44.
5 Goodyear Rubber Co. v. Day, 22 Fed. Rep. 44.
â€¢^Symondsv. Greene, 28 Fed. Rep. 834, 835; Moxie Nerve Food Co. v.
Beach, 33 Fed. Rep. 248.
262 LAW OF UNFAIR TRADE. [Â§116
the court upon the hearing, is decisive.^ Where a de-
murrer is interposed to the bill, upon the application for
preliminary injunction, the allegations of fraud in the
bill are confessed thereby; and if the demurrer is over-
ruled the complainant is entitled to the preliminary in-
It is a fundamental principle in the law of unfair trade,
as well as in patent law, that where the infringement is
admitted or proven the plaintiff is entitled to a reference
for an accounting as a matter of right. ^ But "cases fre-
quently arise where a court of equity will refuse the
prayer of the complainant 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 future infringement."*
"In England the rule is stringent in trade-mark cases
that lack of diligence in suing deprives the complainant
in equity of the right either to an injunction or an account.
Our courts are more liberal in this respect. A long lapse
of time will not deprive the owner of a trade-mark of an
injunction against an infringer, but a reasonable dili-
gence is required of a complainant in asserting his rights,
if he would hold a wrong-doer to an account for profits
and damages. This rule, however, applies only to those
cases where there has been an acquiescence after a
knowledge of the infringement is brought home to the
It is now the rule in England, as we have seen in our
discussion of the question of damages at law, that upon
the injunction being entered in the action in equity the
complainant is compelled to elect between profits and
damages; he cannot have both. If he elects to take his
1 Price Baking Powder Co. v. Fyfe, 45 Fed. Rep. 799.
2 Enoch Morgan's Sons Co. v. Hunkele, 16 Off. Gnz. 1092, 1093.
â€¢'Oakes v. Tonsmierrc, 49 Fed. Rep. 447-453; Campbell Printing-
Press Co. v. Manhattan R. Co., 49 Fed. Rep. 930-932; Fisk v. Mah-
ler, 54 Fed. Rep. 528.
<Mr. Justice Clifford in McLean v. Fleming, 96 U. S. 245-257. To
the same effect see Low v. Fels, 35 Fed. Rep. 361-363.
^Nixon, J., in Sawyer v. Kellogg, 9 Fed. Rep. 701.
Â§ 116] THE ACTION IN EQUITY. 263
damages, the issue is sent to the Queen's Bench division
to be tried by a jury.^ In our federal courts, however,
there is no provision for transferrin*^ the case from the
equity side to the law side after the entry of the inter-
locutory decree, nor any other provision for submitting
the issue of damages, in an equity case, to a jury. The
plaintiff is not comi:)elled to elect between profits and
damages, but the reference is made to the master in
chancery to take an account of the defendant's profits
and to make an assessment of the damages sustained by
the plaintiff.'^ In assessing damages the master will con-
sider the extent to which plaintiff's sales have fallen off,
if the defendant's acts are the cause of such falling off.^
It was held in one case that the profits due to the use
of the trade-mark only were the subject of inquiry.^ But
this was clear error, and the court laying down this rule
cited in support of it only one precedent and that a
patent case.^ This question was considered very care-
fully by the supreme court of California, and its conclu-
sion is as follows: "Every consideration of reason, jus-
tice and sound policy demands that one who fraudulently
uses the trade-mark of another should not be allowed to
shield himself from liability for the profit he has made
by the use of the trade-mark, on the plea that it is im-
possible to determine how much of the profit is due to
the trade-mark, and how much to the intrinsic value of
the commodity. " The supreme court held, therefore, that
the trial court had not erred in awarding the plaintiff
the whole profit made by the defendant." In treating the
same subject. Judge Sawyer said: "To adopt as the
measure of compensation for such injuries the difference
between the price for which the spurious goods would
iFennessy v. Rabbits, 56 L. T. 138; Cartmell, 125.
2 The Collins Co. v. Oliver Ames & Son Corporation, 18 Fed. Rep.
561-571; Benkert v. Feder, 34 Fed. Rep. 534, 535; Sawyer v. Kellogg-,
9 Fed. Rep. 601, 602; Sawyer v. Horn, 1 Fed. Rep. 24-39.
^Hostetter v. Vowinkle, Fed. Case No. 6714; 1 Dill. 329; Cox, Man-
ual, No. 207.
^Atlantic Milling Co. v. Rowland, 27 Fed. Rep. 241.
SQarretson v. Clark, 111 U. S. 120.
^Graham v. Plate, 40 Cal. 593-599.
264 LAW OF UNFAIR TRADE. [Â§116
sell without the trade-mark and for which they would
sell with it imprinted thereon, would be a mockery of
justice. In my judgment the infringer should at least
account for the entire profits made upon the goods wrong-
fully sold with the trade -mark impressed upon them."^
This now appears to be the accepted rule. Punitive
damages cannot be assessed inequity.^
Where the defendant carried on the infringing traffic
in connection with his regular business, the master in
chancery will not make any deduction for expenses in
taking the account of profits.^
In jurisdictions where the master is permitted to assess
damages, he may do so even in the absence of any direct
proof of loss of profit.* As all participants in torts are
principals, one who participates in unfair trade by fur-
nishing fraudulent labels is liable in equity to the party
injured for the whole damage resulting from the unfair
The United States circuit courts of appeals will review
the action of the circuit courts in granting or refusing
preliminary injunctions, for the purpose of reviewing the
discretion of the court below and correcting error in its
exercise. In a proper case it will enlarge the scope of a
preliminary injunction which falls short of protecting the
iBenkert V. Feder, 34 Fed. Rep. 534.
^Hennessy v. Wilmerding - Loewe Co. , 103 Fed. Rep. 90.
â€¢'Societe Anonyme v. Western Distilling- Co., 46 Fed. Rep. 921.
â– *Thus in a chancery case in New Zealand the court said: "First
as to damages, I am of opinion that there has been no direct proof
of loss of profit by Messrs. Littlejohn & Son, consequent upon the
sale of the watches which improperly have their name inscribed
upon them, but, as I have intimated during- the course of the argu-
ment, it appears to me that, apart from any direct proof of loss of
profit, there arises in cases of this class an inference of possible
damcige to the manufacturer whose name is improperlj' used â€” damage
to his well established reputation. It is impossible that the quantum
of damage in cases of this class can be mathematically ascertained;
no account can possibly reach such a matter. It must always be a
matter of discretion for the court and jury." Littlejohn v. Mulligan,
3 New Zealand Rep. 446.
^Hildreth v. Sparks Mfg. Co., 99 Fed. Rep. 484.
^Charles E. Hires Co. v. Consumers' Co., 100 Fed. Rep. 809-813.
MATTERS OF PRACTICE AND EVIDENCE.
Ml 7. Matters of -which courts -will take judicial
notice. â€” This subject is of practical importance in the
trial of trade-mark causes. The courts of the United
States will take judicial notice of the statutes of the
several states,^ and of the decisions of the state courts
upon the constitutionality of such statutes.'^ All courts
will take judicial notice of the treaties or conventions
with a foreign government or power.'* It has been ex-
pressly held that judicial notice will be taken of the
convention concerning" trade-marks, of April 16, 1869, be-
tween the United States and Prance.^ As in other classes
of cases, the courts take judicial notice of political facts,
legal facts, official facts, public history, natural history
and the vernacular language, and all matters of common
and ordinary knowledge, including matters of science.
;j 1 18. Expert evidence on the question of infringe-
ment. â€” Inspection by the court is the main, and indeed
the tinal, test of the alleged resemblance in trademark
cases.-' The courts, as a rule, give little weight to expert
testimony on questions of similitude.Â®
iRe Jordan, 49 Fed. Rep. 238; Gormley v. Bunyan, 138 U. S. 623,
-Knox V. Columbia Libertj' Iron Co., 42 Fed. Rep. 378.
â€¢â– 'Ex parte McCabe, 46 Fed. Rep. 363.
â€¢â€¢La Croix v. Sarrazzin, 15 Fed. Rep. 489.
*Von Mumm V. Frash, 56 Fed. Rep. 830-838; Filley v. Fassett, 44
Mo. 173; Gail v. Wackerbarth, 28 Fed. Rep. 286; Drummond v. Ad-
dison-Tinsley Tob. Co., 52 Mo. App. 10; Collins Chemical Co. v.
Capitol City Mfg. Co., 42 Fed. Rep. 64; Liggett & Myer Tob. Co. v.
Hynes, 20 Fed. Rep. 883; Joseph Dixon Crucible Co. v. Benham, 4
Fed. Rep. 527.
"Cook V. Starkweather, 13 Abb. Pr. N. S. 392; Popham v. Wilcox,
66 N. Y. 69; Re Jelley, Son & Jones, 51 L. J. Ch. 639; Radam v.
Destroyer Co., 81 Texas, 122; 16 S. W. Rep. 990; P. Lorillard Co. v.
Paper, 86 Fed. Rep. 956.
Lord Esher, Master of the Rolls, has tersely said: "If a man was
266 LAW OF UNFAIR TRADE. [Â§118
Testimony of skilled witnesses to the effect that in
their opinion the public is likely to be deceived by the
similarity of two trade-marks, although valuable in a
doubtful case,^ is not of itself sufficient evidence of in-
fringement.^ When technical trade or scientific questions
are involved, however, expert evidence is highly desir-
able,^ and especially when the probability of the ultimate
consumer being deceived by the defendant's goods rests
on the character and habits of the people who use the
product,* or the manner in which the goods are usually
sold or exhibited by the retailer.^
Where the complainant's case rested on the testimony
of hired witnesses that they had drunk bitters sold them
by the defendant in his saloon as being complainant's
bitters and that said bitters were imitation, the bill was