167 F. 753 | 9th Cir. | 1909
(after stating the facts as above). Rooking at the case as made by the pleadings and affidavits, we think the most that can he fairly claimed for the complainant is that it is a doubtful one. Under such circumstances the preliminary injunction should have been denied, and the temporary restraining order vacated. There was not even an attempt made on behalf of the complainant to show the insolvency of the defendant, but, on the contrary, an affirmative showing on its part of its ability to respond in damages to the complainant in the event of its maintaining the suit. It is, as said by the Supreme Court o£ Georgia in Foster v. Blood Balm Co., 77 Ga. 216, 3 S. E. 286, “a grave matter to petrify, in an instant, a living business by a mere interlocutory order.” The well-established rule in equity is that a preliminary injunction should not be granted in a doubtful case.
One of the uncontradicted statements of fact contained in the affidavit of George Anargvros is to the effect that the individual S. Anargyros never made or sold any cigarettes but “Egyptian Deities.” and never made any of those after his sale to the complainant; that all the other cigarettes made and sold under the other brands sued upon originated with and were made by the complainant corporation, and that all of them were sold by it to the public as the product of the individual S. Anargyros. “Any one has an unquestionable right,” said the Supreme Court in Medicine Co. v. Wood, 108 U. S. 222, 2 Sup. Ct. 439 (27 L. Ed. 706). “to affix to articles manufactured by him a mark or device not previously appropriated, to distinguish them from articles of the same general' character manufactured or sold by others. He may thus notify the public of the origin of the article, and secure to himself the benefits of any particular excellence it may possess from the manner or materials of its manufacture. His trademark is both a sign of the quality of the article and an assurance to flic public that it is the genuine product of his manufacture. It thus often becomes of great value to him, and in its exclusive use the court will protect him against attempts of others to pass off their products upon the public as his. This protection is afforded not only as a matter of justice to him, but to prevent imposition upon the public. Manufacturing Co. v. Trainer, 101 U. S. 51, 25 L. Ed. 993. The object of the trade-mark being to indicate, by its meaning or association, the origin or ownership of the article, it would seem that when a right to its use is transferred to others, either by act of the original mantriaciurer or by operation of law. the fact of transfer should be stated in connection with.its use; otherwise, a deception would be practiced upon the public, and the very fraud accomplished, to prevent vrhich courts of equity interfere to protect the exclusive right of the original manufacturer. If one affix to goods of his own manufacture signs or marks which indicate that they are the manufacture of others, he is deceiving the public, and attempting to pass upon them goods as possessing a quality and merit which another’s skill has given to sim
In respect to the “Murad” brand, at least, the statements of the affiant Anargyros find some corroboration in the averments of the bill itself.
While we do not think final disposition of the case should be made in advance of a trial upon the merits, we are of the opinion that upon the showing made the court below should not have granted the preliminary injunction, and should have vacated the restraining order, leaving the rights of the parties to depend upon a trial upon the merits.
The order is reversed, with instructions to vacate the restraining order.
