211 F. 942 | 6th Cir. | 1914
Upon settlement of a decree in the district court pursuant to our opinion in Coca-Cola Co. v. Gay-Ola Co., 200 Fed. 720, 119 C. C. A. 164, the questions arising were so disposed of as to cause both parties to appeal. This makes it necessary for us to consider and apply our former opinion.
The Gay-Ola Company offered two plans by which it thought its syrup might be kept in bulk at soda fountains, and there prepared in glasses and served, without too much danger that it would be palmed off for Coca-Cola. We agree with the district judge that neither plan would be efficient, or within the fair meaning of our opinion. Upon the appeal of the Gay-Ola Company, the action below must be affirmed.
The question whether the court below rightly approved the form of bottle then presented needs no discussion. The Gay-Ola Company does not now insist upon the one then authorized, but in opén court before us presented another form, which counsel for the Coca-Cola Company accepted as satisfactory.' We will effectuate their agreement by directing that the decree authorize this new form, instead of the form approved by the district judge. The decree below will be 're-entered in the same form it now is, excepting that the following two paragraphs will be substituted for the corresponding paragraphs in the entry appealed from.
“It is further ordered, adjudged, and decreed that the said defendant, its directors, officers, agents, servants, employes and assigns, and each and every one of them, be and they are hereby perpetually enjoined, restrained and prohibited from selling, or disposing of Gay-Ola of the same or substantially similar color to Coca-Cola, except when the same is sold by it in bottles, receptacles, or packages marked or labeled prominently with the name of the defendant’s product, and designed and intended to be sold and delivered to the ultimate consumer in said original bottle, receptacle, or package, with said mark or label still remaining thereon.
“It is further ordered, adjudged and decreed that the proposed bottling package presented to the Circuit Court of Appeals upon its hearing of cases No. 2542 and No. 2543 does constitute a package by which the ultimate consumer will be fairly advised that he is not getting Coca-Cola; and that the sale of Gay-Ola in such package to the ultimate consumer, or to others in such*945 package for sale to the ultimate consumer thereof, will not constitute any violation of this decree. The bottling package so authorized is a long-necked clear-glass bottle, having two complete annular ribs and two partially complete such ribs blown in the body of the bottle; and having the word ‘Gay-Ola’ in large capital letters blown in the shoulder thereof, and the words ‘The Improved Cola’ in the body thereof; being also provided with a cap or crown on which the words, ‘Gay-Ola. It’s Better,’ are printed in red. This package is further identified by filing one of the same as an éxhibit in this cause, and by front and rear photographs thereof attached to this decree, and made a part hereof.”
Neither party will recover costs against the other.