Since our decision affirming the order in this case the Supreme Court has handed down an opinion in the case of Thaddeus Davids Co. v. Davids Manufacturing Co., 233 U. S. 461, 34 Sup. Ct. 648, 58 L. Ed. 1046. A majority of the court understand it to hold that the trade-mark granted in a surname under the fourth proviso of section 5 of the Trade-Mark Act of 1905 is in the name itself, irrespective of the way in which it is printed or displayed. The-name in such a case is to be treated as if it were an arbitrary word, and is to be protected, not only against literal, but against colorable,, imitation. So regarded, the word “Wiener,” standing alone, is, in our opinion a colorable imitation of the word “Warner,” and the defendant must be enjoined, although it is his own surname, from using it in the corset business alone, or in any manner amounting to a color-able imitation of the word “Warner.”
Order modified.