200 F. 107 | S.D.N.Y. | 1912
In Coca-Cola Co. v. Nashville Syrup Co. (U. S. District Court, Middle District of Tennessee, July 8, 1912) 200 Fed. 157, it was held, in a carefully considered opinion, that complainant has a valid registered trade-mark in the term “Coca-Cola,” applied to the well-known soft drink which it makes and vends. This conclusion I am inclined to accept as correct.
The only question left is whether, in undertaking to afford relief against the use by others of a similar term, the court should enjoin the defendants from selling* the preparation which the defendant Syndicate makes under the term “Extract of Coca and Kola.” It is no substantial departure from the term “Coca-Cola” to spell either or both words with a K, or to substitute for the hyphen the conjunction “and” or an ampersand, and it seems not to be a sufficient differentiation to call the compound an extract, or an elixir, or a decoction.
For obvious reasons, both sides insist that the cola constituent of their respective compounds has been thoroughly decocainized, thus depriving it of its peculiarly characteristic element. There is not in the record any satisfactory evidence that a combination of de-cocainized coca with cola has ever been used, or is usable, in medicine or in the arts, or any otherwise than as a soft drink. Under these circumstances it would seem that complainant is entitled to an
The operation of the injunction will be stayed 'for 60 days after entry of the order.