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to 



library 

ct tbe 

Tftmvereit? of Toronto 



vs. Wallace IFlesbftt 

from tbe law library? 

ot tbe 

honourable lilallace IWesbitt, ik. 
treasurer of tbe Xa\v Society 
of Tflppcr Canada 



THE GOCA-COLA COMPANY 




'A single thing coming from a 
single source, and well known 
to the community." 

U. S. SUPREME COURT. 



OPINIONS, ORDERS, INJUNCTIONS, AND DECREES 

RELATING TO UNFAIR COMPETITION AND 

INFRINGEMENT OF TRADE-MARK 



FIRST EDITION 
1923 




\ 



Respectfully dedicated to the patrons 
of Coca-Cola. "The protection given 
by law to trade-marks has for its object 
the protection of the owner in his prop- 
erty, and the protection of the public 
from deception." 

1923 



/ 



A TRADE-MARK IN LAW 

"The function of a trade-mark is to point dis- 
tinctively, either by its own meaning or by association, 
to the origin or ownership of the wares to which it is 
applied." Thus Coca-Cola signifies, in the language 
of the United States Supreme Court, "a single thing 
coming from a single source, and well known to the 
community. ' ' 

Trade-mark rights are moral capital on which much 
business is done. As valued in good will, they com- 
pose vital assets of many of the world 's foremost 
businesses. But in all the history of the United States 
Supreme Court, approximately fifty-nine unfair com- 
petition cases have come up for adjudication. About 
forty-one involved trade-marks. Of these, twelve have 
been upheld as valid trade-marks. 

Because Coca-Cola is one of these, we have pre- 
sented in this book the cases and a number of exhibits 
which give the legal history of Coca-Cola, dating from 
its beginning in 1886 and covering the 37 years since. 
The record is made accessible in this form as a con- 
tribution from our experience in support of fair com- 
petition in business. 

THE COCA-COLA COMPANY. 



PAGES 

Dedication. 
Foreword. 

Cases 1 to 633 

Registrations 634 and 635 

Chain of Title 636 to 648 

Index to Cases (i) to (iv) 

Index to Subject-Matter (v) to (viii) 



SUPREME COURT 

OF THE UNITED STATES 

254 U. S. 143 
No. 101 OCTOBER TERM, 1920 



THE COCA-OOLA COMPANY, Petitioner, 

v. 
THE KOKE COMPANY OF AMERICA, et al. 



On Writ of Certiorari to the United States Circuit 

Court of Appeals for The Ninth Circuit 

(December 6, 1920). 



HAKOLD HIRSCH, 
EDWARD S. ROGERS, 
FREDERICK W. LEHMAN, 
FRANK F. REED, 
Solicitors and of Counsel for Petitioner. 

RICHARD E. SLOAN, 
AUSTIN B. LITTLETON, 

For Defendants. 



THE COCA-COLA COMPANY 



No. 101 OCTOBER TERM, 1920 



THE COCA-COLA COMPANY, Petitioner, 

v. 
THE KOKE COMPANY OF AMERICA, et al. 



On Writ of Certiorari to the United^ States Circuit 

Court of Appeals for The Ninth Circuit 

(December 6, 1920). 

MB. JUSTICE HOLMES delivered the opinion of the 
Court : 

This is a bill in equity brought by The Coca-Cola 
Company to prevent the infringement of its trade- 
mark Coca-Cola and unfair competition with it in its 
business of making and selling the beverage for which 
the trade-mark is used. The District Court gave the 
plaintiff a decree, 235 Fed. Eep. 408. This was re- 
versed by the Circuit Court of Appeals, 255 Fed. Eep. 
894. Subsequently a writ of certiorari was granted 
by this court. 250 U. S. 637. 

It appears that after the plaintiff's predecessors in 
title had used the mark for some years it was regis- 
tered under the Act of Congress of March 3 r 1881, 
and again under the Act of February 20, 1905, c. 592, 
33 Stat. 724. Both the courts below agree that, sub- 
ject to the one question to be considered, the plaintiff 
has a right to equitable relief. Whatever may have 
been its original weakness, the mark for years has 

2 



v. THE KOKE CO. OF AMEEICA, et al. 

acquired a secondary significance and has indicated 
the plaintiff's product alone. It is found that de- 
fendant's mixture is made and sold in imitation of 
the plaintiff's and that the word Koke was chosen 
for the purpose of reaping the benefit of the adver- 
tising done by the plaintiff and of selling the imita- 
tion as and for the plaintiff's goods. The only ob- 
stacle found by the Circuit Court of Appeals in the 
way of continuing the injunction granted below was 
its opinion that the trade-mark in itself and the ad- 
vertisements accompanying it made such fraudulent 
representations to the public that the plaintiff had 
lost its claim to any help from the court. That is 
the question upon which the writ of certiorari was 
granted and the main one that we shall discuss. 

Of course a man is not to be protected in the use 
of a device the very purpose and effect of which is 
to swindle the public. But the defects of a plaintiff 
do not offer a very broad ground for allowing another 
to swindle him. The defense relied on here should 
be scrutinized with a critical eye. The main point is 
this: Before 1900 the beginning of the good will was 
more or less helped by the presence of cocaine, a drug 
that, like alcohol or caffein or opium, may be described 
as a deadly poison or as a valuable item of the phar- 
macopoaia according to the rhetorical purposes in 
view. The amount seems to have been very small, 
but it may have been enough to begin a bad habit and 
after the Food and Drug Act of June 30, 1906, c. 3915, 
if not earlier, long before this suit was brought, it 
was eliminated from the plaintiff's compound. Coca 
leaves still are used, to be sure, but after they have 
been subjected to a drastic process that removes from 
them every characteristic substance except a little 
tannin and still less chlorophyl. The cola nut,, at best, 
on its side furnishes but a very small portion of the 
caffein, which now is the only element that has ap- 
preciable effect. That comes mainly from other 
sources. It is argued that the continued use, of the 
name imports a representation that has ceased to be 



THE COCA-COLA COMPANY 



true and that the representation is reinforced by a pic- 
ture of coca leaves and cola nuts upon the label and 
by advertisements, which, however, were many years 
before this suit was brought, that the drink is an 
" ideal nerve tonic and stimulant, " etc., and that thus 
the very thing sought to be protected is used as a 
fraud. 

The argument does not satisfy us. We are dealing 
here with a popular drink, not with a medicine, and, 
although what has been said might suggest that its 
attraction lay in producing the expectation of a 
toxic effect, the facts point to a different conclu- 
sion. Since 1900 the sales have increased at a very 
great rate, corresponding to a like increase in ad- 
vertising. The name now characterizes a beverage 
to be had at almost any soda fountain. It means a 
single thing coming from a single isource, and well 
known to the community. It hardly would be too much 
to say that the drink characterizes the name as much 
as the name the drink. In other words, Coca-Cola 
probably means to most persons the plaintiff's 
familiar product to be had everywhere, rather than 
a compound of particular substances. Although the 
fact did not appear in United States v. Coca-Cola Co., 
241 U. S. 265, 289, we see no reason to doubt that, as 
we have said, it has acquired a secondary meaning in 
which perhaps the product is more emphasized than 
the producer, bu.t to which the producer is entitled. 
The coca leaves and whatever of cola nut is employed 
may be used to justify the continuance of the name 
or they may affect the flavor as the plaintiff contends, 
but before this suit was brought the plaintiff had ad- 
vertised to the public that it must not expect and 
would not find cocaine, and had eliminated everything 
tending to suggest cocaine effects except the name 
and the picture of the leaves and nuts, which prob- 
ably conveyed little or nothing to most who saw it. 
It appears to us that it would be going too far to deny 
the plaintiff relief against a palpable fraud because 
possibly here and there an ignorant person might call 

4 



v. THE KQKE CO. OF AMEEICA, et al. 

for the drink with the hope for incipient cocaine in- 
toxication. The plaintiff's position must be judged by 
the facts as they were when the suit was begun, not 
by facts of a different condition and an earlier time. 

The decree of the District Court restrains the de- 
fendant from using the word "dope." The plaintiff 
illustrated in a very striking way the fact that the 
word is one of the most featureless known even to the 
language of those who are incapable of discriminat- 
ing speech. In some places it would be used to call 
for Coca-Cola. It equally would have been used to 
call for anything else having about it a faint aureole 
of poison. It does not suggest Coca-Cola by simi- 
larity, and, whatever objections there may be to its use, 
objections which the plaintiff equally makes to its ap- 
plication to Coca-Cola, we see no ground on which the 
plaintiff can claim a personal right to exclude the de- 
fendant from using it. 

The product, including the coloring matter, is free 
to all who can make it if no extrinsic deceiving ele- 
ment is present. The injunction should be modified 
also in this respect. 

Decree reversed. Decree of District Court modified 
and affirmed. 



5 



THE COCA-COLA COMPANY 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 



THE COCA-COLA COMPANY,, Plaintiff, 

v. 

THE KOKE COMPANY OF AMERICA, 
THE SOUTHERN KOKE COMPANY, LTD., 
THE KOKE COMPANY OF TEXAS, 
THE KOKE COMPANY OF OKLAHOMA, and 
THE KOKE COMPANY OF ARKANSAS, 

Defendants. 



DECREE 



I 



Upon the filing of the mandate of January,, 1921, 
of the Supreme Court, and it appearing therefrom 
that said court has reversed the decree of the Circuit 
Court of Appeals of the Ninth Circuit in this cause, 
has modified and affirmed the decree of this court 
herein, and has remanded this cause to this court, and 
it appearing further that, pending the proceeding in 
the Supreme Court, The Coca-Cola Company, a Dela- 
ware corporation, succeeded to the rights of the orig- 
inal plaintiff herein, The Coca-Cola Company, a 
Georgia corporation, and that said Coca-Cola Com- 
pany of Delaware, has been duly substituted as plain- 
tiff herein; now, in conformity with the mandate of 
the Supreme Court of the United States, it is ordered, 
adjudged and decreed as follows : 

(1) That the court has jurisdiction of the subject 
matter and of the parties to the suit. 

(2) That the word " Coca-Cola" is a valid trade- 
mark. 

(3) That plaintiff is the owner of and alone entitled 
to use the trade-mark "Coca-Cola" and that its goods 
alone can lawfully be sold under that name. 

6 



v. THE KOKE CO. OF AMEKICA, et at. 

(4) That the word "Koke" is an abbreviation of 
the word "Coca-Cola" and is used by the public and 
by purchasers in designating the plaintiff's product 
"Coca-Cola," 

(5) That the defendant, The Koke Company of 
America, and its predecessor, J. C. Mayfield, did not 
adopt or make use of the name l i Koke ' ' until the year 
1909, and that they have had and have no right to 
its use. 

(6) That defendants and their predecessors have 
no interest in or claim to the trade-mark "Coca-Cola" 
or the "Coca-Cola" business or formula, and the de- 
fendants and their predecessors' claim of interest in 
the "Coca-Cola" business, the trade-mark "Coca- 
Cola" and knowledge of the "Coca-Cola" formula are 
without foundation. 

(7) That the word "Koke" was adopted and used 
by the defendants and their predecessors with the de- 
liberate purpose of representing their goods to be the 
product and manufacture of The Coca-Cola Company. 

(8) The defendants' salesmen were instructed to 
sell and did sell defendants' product as and for 
"Coca-Cola." 

(9) That the defendants and each of them have in- 
fringed the plaintiff's trade-mark,, not, however, by 
the use of the word "Dope," and have been guilty of 
unfair competition with the plaintiff. 

(10) That defendants, The Koke Company of 
America, The Southern Koke Company, Ltd., The 
Koke Company of Texas, The Koke Company of 
Oklahoma, and the Koke Company of Arkansas, and 
each of them, their officers, servants, agents, em- 
ployes, attorneys, licensees, transferees and assigns, 
and each and all thereof, and all acting by or under 
their authority, be and they are each and all perpetu- 
ally enjoined and restrained from using or employ- 
ing, in connection with the manufacture, advertise- 
ment, offering for sale or sale of any product not be- 
ing the genuine product of the plaintiff, the word 
"Coca-Cola" or any like word, or the word "Koke" 

7 



THE COCA-COLA COMPANY 



or any like word; from claiming or asserting any 
right in the name "Koke" or interfering or threaten- 
ing any prosecution, or interference with the use 
thereof, from using or employing or authorizing the 
use or employment of labels, designs or devices iden- 
tical with or like the labels, designs or devices of the 
plaintiff, or the labels, designs or devices used by the 
defendants and referred to in the bill of complaint 
herein; from using, in connection with the sale or 
shipment of any product not the plaintiff's, barrels 
or receptacles colored in imitation of the plaintiff's 
said barrels or receptacles; from stating or repre- 
senting that the syrup made or sold by defendants, or 
any of them, is made from the same formula as 
"Coca-Cola" syrup, or that defendants, or any of 
them, know or may rightfully use or employ the 
"Coca-Cola" formula; and further, from doing any 
act or thing, or using any name or names, devices, 
artifices or contrivances which may be calculated to 
represent that any product not of the plaintiff's pro- 
duction is the genuine "Coca-Cola" of plaintiff,, and 
that writs of perpetual injunction accordingly issue 
forthwith. 

(11) That defendants and each of them be required 
to account to plaintiff for any and all profits derived 
by them, or any or either of them, and to pay to the 
plaintiff such damages as it may have sustained by 
reason of the unlawful conduct of defendants and 
each of them, excluding therefrom any profits or dam- 
ages made or sustained by the use of the word * ' Dope, ' ' 
and that this cause be and it is hereby referred to 
Edwin F. Jones, the Standing Master in Chancery of 
this Court, to take and state an accounting to the 
plaintiff for any and all such profits and any and all 
of said damages, with full power to subpoena and 
order the attendance of witnesses, the taking of depo- 
sitions and the production of books, papers and docu- 
ments pertinent to the taking and stating of said ac- 
counting for profits and damages, and to report said 



v. THE KOKE CO. OF AMERICA, et al. 

accounting and statement of profits and damages as 
aforesaid as by law provided. 

(12) That defendants pay the costs of this suit to 
be taxed, including the costs in the Circuit Court of 
Appeals, the costs in the Supreme Court and the costs 
in this court, and that upon taxation plaintiff have 
execution therefor. 

Dated the 14th day of June,, A. D. 1921. 

WM. H. SAWTELLE, 

Judge. 



9 



IN THE SUPREME COURT 
OF THE UNITED STATES 



241 U. S. 995 
No. 562 MAY 22, 1916 



UNITED STATES 

v. 

FORTY BARBELS AND TWENTY KEGS OF 

COCA-COLA 



In Error to the United States Circuit Court of Appeals 
for the Sixth Circuit. 



HAKOLD HIRSCH, 
W. D. THOMSON, 

J. B. SlZER, 

A. W. CHAMBLISS, 

For Defendant in Error. 



10 




241 U. S. 995 



No. 562 MAY 22, 1916 



UNITED STATES, Plaintiff in Error, 

v. 

FORTY BARRELS AND TWENTY KEGS OF 

COCA-COLA, THE COCA-COLA COMPANY 

OF ATLANTA, GEORGIA, Complainant. 



FOOD AND DRUGS PROPRIETARY FOOD ADULTERA- 
TION HARMFUL INGREDIENT. 

1. A poisonous or deleterious ingredient called for as a con- 
stituent by a secret formula for a food product sold under its own 
distinctive name may still be an added ingredient within the 
meaning of the provisions of the food and drugs act of June 30, 
1906 (34 Stat. at L. 768, Chap. 3915, Comp. Stat. 1913, Section 
8717), condemning as adulterated any article of food that contains 
"any added poisonous or other added deleterious ingredient which 
may render such article injurious to health," and the provisos in 
Section 8 that food mixtures or compounds "which may be now or 
from time to time hereafter known as articles of food under their 
own distinctive names" are to enjoy the stated immunity only in 
case they do "not contain any added poisonous or deleterious in- 
gredients," and that nothing in the act shall be construed to 
require manufacturers of proprietary foods "which contain no un- 
wholesome added ingredient" to disclose their trade formulas ex- 
cept as the provisions of the act may require to secure freedom 
from adulteration or misbranding. 

FOOD AND DRUGS ADULTERATION PROPRIETARY 
FOOD ABSTRACTING HARMFUL INGREDIENT. 

2. The elimination of a harmful irgredient from a proprietary 
food which without such ingredient would not be the same, does 

11 



not constitute an adulteration under the food and drugs act of 
June 30, 1906 (34 Stat. at L. 768, chap. 391f>. Coinp. Stat. 1913, 
Sec. 8717), Section 7, by the abstraction of a "valuable constituent." 

FOOD AND DRUGS ADULTERATION ADDED HARM- 
FUL INGREDIENT CAFFEINE. 

3. Caffeine introduced into a syrup during the second or third 
melting is an "added" ingredient within the meaning of the food 
and drugs act of June 30, 1906 (34 Stat. at L. 768, chap. 3915, 
Comp. Stat. 1913, Section 8717), condcmnirg as adulterated any 
article of food that contains "any added poisonous or other added 
deleterious ingredient which may render such article injurious to 
health," although it is called for as a constituent by the secret 
formula under which the syrup is compounded. 

TRIAL QUESTION FOR JURY ADULTERATION 
ADDED HARMFUL INGREDIENT. 

4. Whether caffeine added to a food product is a poisonous or 
deleterious ingredient which may render the. article deleterious to 
health, within the meaning of the act of June 30, 1906 (34 Stat. 
at L. 768, chap. 3915, Comp. Stat. 1913, Section 8717), condemning as 
adulterated any article of food Hint contains "any added poison- 
ous or other added deleterious ingredient which may render such 
article injurious to health," is a question of fact for the jury, where 
the evidence on that point is conflicting. 

FOOD AND DRUGS MISBRANDING COCA-COLA DIS- 
TINCTIVE OR DESCRIPTIVE NAME. 

5. The name "Coca-Cola" cannot be said as a matter of law to 
be distinctive rather than descriptive of a compound with coca 
and cola ingredients, so as to escape condemnation under the food 
and drugs act of June 30, 1906 (34 Stat. at L. 768, chap. 3915, 
Comp. Stat. 1913, Section 8717), Section 8, as misbranded in case 
of the absence of either coca or cola, on the theory that it was 
within the protection of the proviso in that section that an article 
of food shall not be deemed to be misbranded in the case of "mix- 
tures or compounds which may be now or from time to time here- 
after known as articles of food under their own distinctive names," 
if the distinctive name of another article is not used or imitated, 
and the name on the label or brand is* accompanied with a state- 
ment of the place of production. 

FOOD AND DRUGS MISBRANDING COCA-COLA SEC- 
ONDARY SIGNIFICANCE OF NAME. 
J0T A secondary significance cannot be attributed to the name 
Coca-Cola," as descriptive of a product kr.own to be destitute of 
either of the products indicated by its primary meaning, so as to 
save it from condemnation under the food and drugs act of June 30, 
1906 (34 Stat. at L. 768, chap. 3915, Comp. Stat. 1913, Section 

12 



v. 40 BARRELS AND 20 KEGS OF COCA-COLA 

8717), Section 8, on the theory that it is within the protection 
accorded by the proviso in that section to food mixtures or com- 
pounds known under their own distinctive names. 

Messrs. Harold Hirsch and J. B. Sizer argued the 
cause, and with Messrs. A. W. Chambliss and W. D. 
Thomson, filed a brief for defendant in error. 

In error to the United States Circuit Court of Ap- 
peals for the Sixth Circuit to review a judgment 
which affirmed a judgment of the District Court 
for the Eastern District of Tennessee, entered 
upon a directed verdict in favor of the claimant 
in a libel for condemnation under the Food and 
Drugs Act. Reversed and remanded for further 
proceedings. 

MR. JUSTICE HUGHES delivered the opinion of the 
Court : 

This is a libel for condemnation under the Food 
and Drugs Act (June 30, 1906, chap. 3915, 34 Stat. 
at L. 768, Comp. Stat. 1913, Section 8717) of a cer- 
tain quantity of a food product known as " Coca- 
Cola " transported for sale, from Atlanta, Georgia, 
to Chattanooga, Tennessee. It was alleged that the 
product was adulterated and misbranded. The alle- 
gation of adulteration was, in substance, that the 
product contained an added poisonous or added dele- 
terious ingredient, caffeine, which might render the 
product injurious to health. It. was alleged to be 
misbranded in that the name "Coca-Cola" was a rep- 
resentation of the presence of the substances coca, and 
cola; that the product "contained no coca and little 
if any cola," and thus was an "imitation" of these 
substances, and was offered for sale under their "dis- 
tinctive name." We omit other charges which the 
government subsequently withdrew. The claimant 
answered, admitting that the product contained as 
one of its ingredients "a small portion of caffeine," 

, 13 



UNITED STATES 



but denying that it was either an "added" ingredi- 
ent, or a poisonous or a deleterious ingredient which 
might make the product injurious. It was also de- 
nied that there were substances known as coca and 
cola "under their own distinctive names, " and it 
was averred that the product did contain "certain 
elements or substances derived from coca leaves and 
cola nuts." The answer also set forth, in substance, 
that "Coca-Cola" was the "distinctive name" of the 
product under which it had been known and sold 
for more than twenty years as an article of food, 
with other averments negativing adulteration and 
misbranding under the provisions of the act. 

Jury trial was demanded, and voluminous testi- 
mony was taken. The district judge directed a ver- 
dict for the claimant (191 Fed. 43^), and judgment 
entered accordingly was affirmed on writ of error 
by the Circuit Court of Appeals (132 C. C. A. 47, 
215 Fed. 535). And the government now prosecutes 
this writ. 

First. As to "adulteration." The claimant, in its 
summary of the testimony, states that the article in 
question "is a syrup manufactured by the claimant 
and sold and used as a base for soft drinks 
both at soda fountains and in bottles. The evidence 
shows that the article contains sugar, water, caf- 
feine, glycerine, lime juice and other flavoring mat- 
ters. As used by the consumer, about. 1 ounce of 
this syrup is taken in a glass mixed with about 7 
ounces of carbonated water, so that the consumer 
gets in an 8-ounce glass or bottle of the beverage, 
about 1.21 grains of caffeine." It is said that in the 
year 1886 a pharmacist in Atlanta "compounded a 
syrup by a secret formula, which he called "Coca- 
Cola Syrup and Extract"; that the claimant acquired 
"the formula, name, label and good will for the 
product" in 1892, and then registered "a trade-mark 
for the syrup consisting of the name Coca-Cola," 

14 



v. 40 BABEELS AND 20 KEGS OF COCA-COLA 

and has since manufactured and sold the syrup under 
that name. The proportion of caffeine was slightly 
diminished in the preparation of the article for bot- 
tling purposes. The claimant again registered the 
name " Coca-Cola" as a trade-mark in 1905, averring 
that the mark had been "in actual use as a trade- 
mark of the applicant for more than ten years next 
preceding the passage of the act of February 20, 
1905, " and that it was believed such use had been 
exclusive. It. is further stated that, in manufactur- 
ing in accordance with the formula, "certain extracts 
from the leaves of the coca shrub and the nut ker- 
nels of the cola tree were used for the purpose of 
obtaining a flavor," and that "the ingredient con- 
taining these extracts," with cocaine eliminated, is 
designated as "Merchandise No. 5." It appears that 
in the manufacturing process water and sugar are 
boiled to make a syrup; there are four meltings; in 
the second or third the caffeine is put in; after the 
meltings the syrup is conveyed to a cooling tank and 
then to a mixing tank, where the other ingredients 
are introduced and the final combination is effected; 
and from the mixing tank the finished product is 
drawn off into barrels for shipment. 

The questions with respect to the charge of "adul- 
teration" are (1) whether the caffeine in the article 
was an added ingredient within the meaning of the 
act (Section 7, subdiv. 5th), and if so (2) whether it 
was a poisonous or deleterious ingredient which might 
render the article injurious to health. The decisive 
ruling in the courts below resulted from a negative 
answer to the first question. Both the district judge 
and the Circuit Court of Appeals assumed for the 
purpose of the decision that as to the second ques- 
tion there was a conflict of evidence which would 
require its submission to the jury (191 Fed. 433, 
132 C. C. A. 47, 215 Fed. 540). But it was concluded, 
as the claimant contended, that the caffeine even if 

15 



UNITED STATES 



it could be found by the jury to have the alleged 
effect could not be deemed to be an "added in- 
gredient" for the reason that the article was a com- 
pound, known and sold under its own distinctive 
name, of which the caffeine was a usual and normal 
constituent. The government challenges this ruling 
and the construction of the statute upon which it 
depends; and the extreme importance of the question 
thus presented with respect to the application of the 
act to articles of food sold under trade names is at 
once apparent. The government insists that the fact 
that a formula has been made up and followed and 
a distinctive name adopted does not suffice to take 
an article from the reach of the statute; that the 
standard by which the combination in such a case 
is to be judged is not necessarily the combination 
itself; that a poisonous or deleterioiis ingredient, with 
the stated injurious effect may still be an added in- 
gredient in the statutory sense, although it is cov- 
ered by the formula and made a constituent, of the 
article sold. 

The term "food," as used in the statute, includes 
"all articles used for food, drink, confectionery or 
condiment * whether simple, mixed or com- 

pound" (Section 6). An article of "food" is to be 
deemed to be "adulterated" if it. contain "any added 
poisonous or other added deleterious ingredient which 
may render such article injurious to health" (Sec- 
tion 7, subdiv. 5th). With this section is to be read 
the proviso in Section 8, to the effect that ' * an article 
of food which does not contain any added poisonous 
or deleterious ingredients shall not be deemed to be 
adulterated or misbranded" in the case of "mixtures 
or compounds which may be now or from time to 
time hereafter known as articles of food, under their 
own distinctive names," if the distinctive name of 
another article is not used or imitated, and the name 
on the label or brand is accompanied with a statement 

10 



v. 40 BARBELS AND 20 KEGS OF COCA-COLA 

of the place of production. And Section 8 concludes 
with a further proviso that nothing in the act shall 
be construed "as requiring or compelling proprietors 
or manufacturers of proprietary foods which contain 
no unwholesome added ingredient to disclose their 
trade formulas, except in so far as the provisions of 
this act may require to secure freedom from adultera- 
tion or misbranding. " 

In support of the ruling below, emphasis is placed 
upon the general purpose of the act, which, it is said, 
was to prevent deception, rather than to protect the 
public health by prohibiting traffic in articles which 
might be determined to be deleterious. But a de- 
scription of the purpose of the statute would be in- 
adequate which failed to take account of the design 
to protect the public from lurking dangers caused 
by the introduction of harmful ingredients, or which 
assumed that this end was sought to be achieved by 
simply requiring certain disclosures. The statute is 
eititled "An Act for Preventing the Manufacture, Sale 
or Transportation of Adulterated or Misbranded or 
Poisonous or Deleterious Foods, Drugs, Medicines and 
Liquors," etc. In the case of confectionery, we find 
that it is to be deemed to be adulterated if it con- 
tains certain specified substances l ' or other ingredient 
deleterious or detrimental to health." So, under Sec- 
tion 7, subdivision 6th, there may be adulteration of 
food in case the article consists in whole or in part 
of "any portion of an animal unfit for food, whether 
manufactured or not, or if it is the product of a dis- 
eased animal, or one that has died otherwise than by 
slaughter." In United States v. Lexington Mill & 
Elevator Company, 232 U. S. 399, 409, 58 L. ed. 658, 
661, L. B. A. 1915B, 774, 34 Sup. Ct. Rep. 337, it was 
said that "the statute upon its face shows that the 
primary purpose of Congress was to prevent injury 
to the public health by the sale and transportation in 
interstate commerce of misbranded and adulterated 

17 



UNITED STATES 



foods. The legislation, as against misbranding, in- 
tended to make it possible that the consumer should 
know that an article purchased was what it purported 
to be; that it might be bought for what it really was, 
and not upon misrepresentations as to character and 
quality. As against adulteration, the statute was in- 
tended to protect the public health from possible in- 
jury by adding to articles of food consumption poison- 
ous and deleterious substances which might render 
such articles injurious to the health of consumers. " 
See also United States v. Antikamnia Co., 231 U. S. 
654, 665, 58 L. ed. 419, 424, 34 Sup. Ct. Rep. 222, 
Ann. Gas. 1915A 49; H. E. Report No. 2118, 59th 
Cong. 1st Sess. 6-9. It is true that in executing these 
purposes Congress has limited its prohibitions (Sav- 
age v. Jones, 225 U. S. 501, 529, 532, 56 L. ed. 1182, 
1193, 1194, 32 Sup. Ct. Rep. 715), anQ has specifically 
defined what shall constitute adulteration or mis- 
branding; but, in determining the scope of specific 
provisions, the purpose to protect, the public health, 
as an important aim of the statute, must not be 
ignored. 

Reading the provisions here in question in the light 
of the context, we observe: 

(a) That the term ''adulteration" is used in a 
special sense. For example, the product of a dis- 
eased animal may not be adulterated in the ordinary 
or strict meaning of the word, but by reason of its 
being that product the article is adulterated within 
the meaning of the act. The statute with respect to 
" adulteration " and "misbranding" has its own glos- 
sary. We cannot, therefore, assume that simply be- 
cause a prepared "food" has its formula and dis- 
tinctive name, it is not, as such, "adulterated." In 
the case of confectionery, it is plain that the article 
may be "adulterated" although it is made in strict, 
accordance with some formula and bears a fanciful 
trade name, if in fact it contains an "ingredient 

18 



v. 40 BAEBELS AND 20 KEGS OF COCA-COLA 

deleterious or detrimental to health, or any vinous, 
malt or spirituous liquor or compound or narcotic 
drug. " And the context clearly indicates that, with 
respect to articles of food, the ordinary meaning of 
"adulteration" cannot be regarded as controlling. 

(b) The provision of Section 7, subdivision 5th, 
assumes that the substance which renders the article 
injurious, and the introduction of which causes * l adul- 
teration" is an ingredient of the article. It must be 
an "added" ingredient; but it is still an ingredient. 
Component parts, or constituents, of the article which 
is the subject of the described traffic, are thus not 
excluded, but are included in the definition. The 
article referred to in subdivision 5th is the article 
sought to be made an article of commerce the ar- 
ticle which "contains" the ingredient. 

(c) "Adulteration" is not to be confused with 
"misbranding." The fact that the provisions as to 
the latter require a statement of certain substances 
if contained in an article of food, in order to avoid 
"misbranding," does not limit the explicit provisions 
of Section 7, as to adulteration. Both provisions are 
operative. Had it been the intention of Congress to 
confine its definition of adulteration to the introduc- 
tion of the particular substances specified in the sec- 
tion as to misbranding, it cannot be doubted that this 
would have been stated, but Congress gave a broader 
description of ingredients in defining "adulteration." 
It is "any" added poisonous or "other added dele- 
terious ingredient," provided it "may render such 
article injurious to health." 

(d) Proprietary foods, sold under distinctive names, 
are within the purview of the provision. Not only 
is "food" defined as including articles used for food 
or drink, "whether simple, mixed or compound," but 
the intention to include "proprietary foods" sold 
under distinctive names is manifest from the provisos 
in Section 8, which the claimant invokes. "Mixtures 

19 



UNITED STATES 



or compounds" which satisfy the first paragraph 
of the proviso are not only "articles of food," 
but are to enjoy the stated immunity only in case 
they do "not contain any added poisonous or dele- 
terious ingredients." By the concluding clause of 
Section 8, it is provided that nothing in the act. shall 
be construed to require manufacturers of "proprie- 
tary foods" to disclose "their trade formulas" ex- 
cept in so far as the provisions of the act "may re- 
quire to secure freedom from adulteration or mis- 
branding"; and the immunity is conditioned upon 
the fact that such foods "contain no unwholesome 
added ingredient." Thus the statute contemplates 
that, mixtures or compounds manufactured by those 
having trade formulas and bearing distinctive names 
may nevertheless contain "added ingredients" which 
are poisonous or deleterious, and if so, the article 
is not taken out of the condemnation of Section 7, 
subdivision 5th. 

(e) Again, articles of food, including "proprietary 
foods," which fall within this condemnation, are not 
saved because they were already on the market when 
the statute was passed. The act makes no such dis- 
tinction; and it is to be observed that the proviso of 
Section 8 explicitly refers to "mixtures or com- 
pounds which may be now or from time to time here- 
after known as articles of food." Nor does the length 
of the period covered by the traffic, or its extent, 
affect the question if the article is in fact adulterated 
within the meaning of the act. 

Having these considerations in mind we deem it 
to be clear that, whatever difficulties there may be in 
construing the provision, the claimant's argument 
proves far too much. We are not now dealing with 
the question whether the caffeine did, or might, ren- 
der the article in question injurious; that is a separate 
inquiry. The fundamental contention of the claim- 
ant, as we have seen, is that a constituent of a food 

20 



v. 40 BAERELS' AND 20 KEGS OF COCA-COLA 

product, having a distinctive name, cannot be an 
" added " ingredient. In such case the standard is 
said to be the food product itself which the name 
designates. It must be, it is urged, this "finished 
product " that is "adulterated." In that view, there 
would seem to be no escape from the conclusion that, 
however poisonous or deleterious the introduced in- 
gredient might be, and however injurious its effect, 
if it be made a constituent of a product having its 
own distinctive name it is not within the provision. 
If this were so, the statute would be reduced to an 
absurdity. Manufacturers would be free, for example, 
to put arsenic or strychnine or other poisonous or 
deleterious ingredients with an unquestioned injuri- 
ous effect into compound articles of food, provided 
the compound were made according to formula and 
sold under some fanciful name which would be dis- 
tinctive. When challenged upon the ground that the 
poison was an "added" ingredient, the answer would 
be that without it the so-called food product would 
not be the product described by the name. Further, 
if an article purporting to be an ordinary food prod- 
uct, sold under its ordinary name, were condemned 
because of some added deleterious ingredient, it would 
be difficult to see why the same result could not be 
attained with impunity by composing a formula and 
giving a distinctive name to the article with the criti- 
cised substance as a component part. We think that 
an analysis of the statute shows such a construction 
of the provision to be inadmissible. Certain incon- 
gruities may follow from any definition of the word 
"added," but we cannot conclude that it was the in- 
tention of Congress to afford immunity by the simple 
choice of a formula and a name. It does not seem to 
us to be a reasonable construction that in the case 
of "proprietary foods" sold under distinctive names, 
but it was not the purpose of the act to protect 

21 



UNITED STATES 



articles of this sort regardless of their character. 
Only such food products as contain "no unwholesome 
added ingredient" are within the saving clause, and 
in using the words quoted we are satisfied that Con- 
gress did not make the proprietary article its own 
standard. 

Equally extreme and inadmissible is the suggestion 
that where a "proprietary food" would not be the 
same without the harmful ingredient, to eliminate 
the latter would constitute an "adulteration" under 
Section 7, subdivision 3d, by the abstraction of a 
"valuable constituent." In that subdivision Congress 
evidently refers to articles of food which normally 
are not within the condemnation of the act. Congress 
certainly did not intend that a poisonous or dele- 
terious ingredient which made a proprietary food an 
enemy to the public health should be treated as a 
"valuable constituent," or to induce the continued 
use of such injurious ingredients by making their 
elimination an adulteration, subject to the penalties 
of the statute. 

It is apparent, however, that Congress, in using 
the word "added" had some distinction in view. In 
the Senate bill (for which the measure as adopted 
was a substitute) there was a separate clause relating 
to "liquors," providing that the article should be 
deemed to be adulterated if it contained "any added 
ingredient of a poisonous or deleterious character"; 
while in the case of food (which was defined as ex- 
cluding liquors) the article was to be deemed to be 
"adulterated" if it contained "any added poisonous 
or other ingredient which may render such article in- 
jurious to human health." Cong. Rec., 59th Cong., 
1st Sess., Vol. 40, p. 897. In explaining the provision 
as to "liquors," Senator Heyburn, the chairman of 
the Senate committee, having the bill in charge, stated 
to the Senate (Id., p. 2647): "The word 'added,' 
after very mature consideration by your committee, 

22 



v. 40 BARRELS AND 20 KEGS OF COCA-COLA 

was adopted because of the fact that there is to be 
found in nature's products, as she produces them, 
poisonous substances to be determined by analysis. 
Nature has so combined them that they are not a 
danger or an evil that is, so long as they are left in 
the chemical connection in which nature has organ- 
ized them; but when they are extracted by the arti- 
ficial processes of chemistry they become a poison. 
You can extract poison from grain or its products, 
and when it is extracted it is a deadly poison; but if 
you leave that poison as nature embodied it in the 
original substances, it is not a dangerous poison or 
an active agency of poison at all. So, in order to 
avoid the threat that those who produce a perfectly 
legitimate article from a natural product might be 
held liable because the product contained nature's 
poison, it was thought sufficient to provide against 
the adding of any new substance that was in itself a 
poison, and thus emphasizing the evils of existing 
conditions in nature's product. That is the reason the 
word 'added' is in the bill. Fusel oil is a poison. If 
you extract it, it becomes a single active agency of 
destruction, but allow it to remain in the combina- 
tion where nature has placed it, and, while it is nom- 
inally a poison, it is a harmless one, or comparatively 
so." For the Senate bill, the House of Representatives 
substituted a measure which had the particular pro- 
visions now under consideration in substantially the 
same form in which they were finally enacted into 
law (Section 7, subdivision 5th; Section 8, subdivi- 
sion 4, provisos). And the committee of the House of 
Representatives, in reporting this substituted measure, 
said (H. R. Report No. 2118, 59th Cong., 1st. Sess., 
pp. 6, 7, 11): "The purpose of the pending measure 
is not to compel people to consume particular kinds 
of foods. It is not to compel manufacturers to produce 
particular kinds or grades of foods. One of the prin- 
cipal objects of the bill is to prohibit in the manufacture 

23 



UNITED STATES 



of foods intended for interstate commerce the ad- 
dition of foreign substances poisonous or deleterious 
to health. The bill does not relate to any natural con- 
stituents of food products which are placed in the 
foods by nature itself. It is well known that in many 
kinds of foods in their natural state some quantity of 
poisonous or deleterious ingredients exist. How far 
these substances may be deleterious to health when 
the food articles containing them are consumed may 
be a subject of dispute between the scientists, but the 
bill reported does not in any way consider the ques- 
tion. If, however, poisonous or deleterious substances 
are added by man to the food product, then the bill 
declares the article to be adulterated, and forbids 
interstate traffic. " 

This statement throws light upfm the intention of 
Congress. Illustrations are given to show possible 
incongruous results of the test, but they do not out- 
weigh this deliberate declaration of purpose; nor do 
we find in the subsequent legislative history of the 
substituted measure containing the provision any op- 
posing statement as to the significance of the phrase. 
It must also be noted that some of the illustrations 
which are given lose their force when it is remem- 
bered that the statutory ban (Section 7, subdivision 
5th) by its explicit terms only applies where the added 
ingredient may render the article injurious to health. 
See United States v. Lexington Mill & Elevator Co., 
232 U. S. 399, 409, 58 L. ed. 658, 661, L. R. A. 1915B 
774, 34 Sup. Ct. Rep. 337). It is urged that whatever 
may be said of natural food products, or simple food 
products, to which some addition is made, a " pro- 
prietary food"' must necessarily be "something else 
than the simple or natural article"; that it is an 
"artificial preparation." It is insisted that every 
ingredient in such a compound cannot be deemed to 
be an "added" ingredient. But this argument, and 
the others that are advanced, do not compel the 

24 



v. 40 BARRELS AND 20 KEGS OF COCA-COLA 

adoption of the asserted alternative as to the saving 
efficacy of the formula. Nor can we accept the view 
that the word "added" should be taken as referring 
to the quantity of the ingredient used. It is added 
ingredient which the statute describes, not added 
quantity of the ingredient, although, of course, quan- 
tity may be highly important in determining whether 
the ingredient may render the article harmful, and 
experience in the use of ordinary articles of food 
may be of greatest value in dealing with such ques- 
tions of fact. 

Congress, we think, referred to ingredients arti- 
ficially introduced; these it described as " added. " 
The addition might be made to a natural food product 
or to a compound. If the ingredient thus introduced 
was of the character and had the effect described, 
it was to make no difference whether the resulting 
mixture or combination was or was not called by a 
new name, or did or did not constitute a proprietary 
food. It is said that the preparation might be " en- 
tirely new." But Congress might well suppose that 
novelty would probably be sought by the use of such 
ingredients, and this would constitute a means of 
deception, and a menace to health from which the 
public should be protected. It may also have been 
supposed that, ordinarily, familiar food bases would 
be used for this purpose. But, however the compound 
purporting to be an article of food might be made up, 
we think that it was the intention of Congress that 
the artificial introduction of ingredients of a poison- 
ous or deleterious character which might render the 
article injurious to health should cause the prohibi- 
tion of the statute to attach. 

In the present case, the article belongs to a familiar 
group ; it is a syrup. It was originally called ' ' Coca- 
Cola Syrup and Extract." It is produced by melting 
sugar, the analysis showing that 52.64 per cent, of the 
product is sugar and 42.63 per cent, is water. Into 

OK _ 

*tj 



UNITED STATES 



the syrup, thus formed by boiling the sugar, there are 
introduced coloring, flavoring and other ingredients 
in order to give the syrup a distinctive character. 
The caffeine, as has been said, is introduced in the 
second or third "melting." We see no escape from 
the conclusion that it is an "added" ingredient 
within the meaning of the statute. 

Upon the remaining question whether the caffeine 
was a poisonous or deleterious ingredient which 
might render the article injurious to health, there 
was a decided conflict of competent evidence. The 
government's experts gave testimony to the effect 
that it was, and the claimant introduced evidence to 
show the contrary. It is sufficient to say that the 
question was plainly one of fact which was for the 
consideration of the jury. See 443 Cans of Frozen 
Egg Product v. United Slates, 226 U. S. 172, 183, 57 
L. ed. 174, 179, 33 Sup. Ct. Eep. 50. 

Second. As to "misbraiuling. M In the second 
count it was charged that the expression "Coca- 
Cola" represented the presence in the product of the 
substances coca and cola, and that it contained "no 
coca and little if any cola." So far as "cola" was 
concerned, the charge was vague and indefinite, and 
this seems to have been conceded by the government 
at the beginning of the trial. With respect to 
"coca," there was evidence on the part of the gov- 
ernment tending to show that there was nothing in 
the product obtained from the leaves of the coca 
plant, while on behalf of the claimant it was testified 
that the material called "Merchandise No. 5" (one 
of the ingredients) was obtained from both coca 
leaves and cola nuts. It was assumed on the motion 
for a peremptory instruction that there might be a 
disputed question of fact as to whether the use of 
the word "coca" is to be regarded "intrinsically and 
originally" as stating or suggesting the presence of 
"some material element or quality" derived from 

26 



v. 40 BARBELS AND 20 KEGS OF COCA-COLA 

coca leaves, and it was also assumed that the evi- 
dence might be deemed to be conflicting with respect 
to the question whether the product actually con- 
tained anything so derived. 191 Fed. 438, 439. But 
these issues of fact were considered not to be mate- 
rial. On this branch of the case, the claimant suc- 
ceeded upon the ground that its article was within 
the protection of the proviso in Section 8 as one 
known "under its own distinctive name." 132 C. C. 
A. 47, 215 Fed. 544. 

Section 8 (ante, p. 1000), in its 4th specification as 
to "food," provides that the article shall be deemed 
to be " misbranded ' : ' if the package containing it or 
its label shall bear any statement, design or device 
regarding the ingredients or the substances contained 
therein, which * * shall be false or misleading 
in any particular." Then follows the proviso in 
question that an article not containing any added 
poisonous or deleterious ingredients "shall not be 
deemed to be 'misbranded' in the case of 

"mixtures or compounds which may be now or from 
time to time hereafter known as articles of food, 
under their own distinctive names, and not an imi- 
tation of or offered for sale under the distinctive 
name of another article," if the name is accompanied 
with a statement of the place where the article has 
been produced. 

A distinctive name is a name that distinguishes. 
It may be a name commonly used as a generic name, 
e. g. coffee, flour, etc. Where there is a trade descrip- 
tion of this sort by which a product of a given kind 
is distinctively known to the public, it matters not 
that the name had originally a different significance. 
Thus, soda water is a familiar trade description of 
an article which now, as is well known, rarely con- 
tains soda in any form. Such a name is not to be 
deemed either "misleading" or "false" as it is 
in fact distinctive. But unless the name is truly 

27 



UNITED STATES 



distinctive, the immunity cannot be enjoyed; it does not 
extend to a case where an article is offered for sale 
"under the distinctive name of another article." 
Thus, that which is not coffee, or is an imitation of 
coffee, cannot be sold as coffee; and it would not be 
protected by being called "X's Coffee." Similarly, 
that which is not lemon extract could not obtain im- 
munity by being sold under the name of "Y's Lemon 
Extract." The name so used is not "distinctive," 
as it does not appropriately distinguish the product; 
it is an effort to trade under the name of an article 
of a different sort. So, with respect to "mixtures or 
compounds," we 'think that the term "another arti- 
cle" in the proviso embraces different compounds 
from the compound in question. The aim of the stat- 
ute is to prevent deception, and hat which appro- 
priately describes a different compound cannot secure 
protection as a "distinctive name." 

A "distinctive name" may also, of course, be 
purely arbitrary or fanciful, and thus, being the trade 
description of the particular thing, may satisfy the 
statute, provided the name has not already been ap- 
propriated for something else so that its use would 
tend to deceive. 

If, in the present case, the article had been named 
"Coca", and it were found that the name was actu- 
ally descriptive in the sense that it fairly implied 
that the article was derived from the leaves of the 
coca plant, it could not be said that this was "its 
own distinctive name" if in fact it contained nothing 
so derived. The name, if thus descriptive, would im- 
part a different product from the one to which it was 
actually affixed. And, in the case supposed, the name 
would not become the "distinctive name" of a prod- 
uct without any coca ingredient unless in popular 
acceptation it came to be regarded as identifying a 
product known to be of that character. It would fol- 
low that the mere sale of the product under the name 
"Coca", and the fact that this was used as a trade 

28 



v. 40 BARBELS AND 20 KEGS OF COCA-COLA 

designation of the product, would not suffice to show 
that it had ceased to have its original significance if 
it did not appear that it had become known to the 
public that the article contained nothing derived from 
coca. Until such knowledge could be attributed to 
the public, the name would naturally continue to be 
descriptive in the original sense. Nor would it be 
controlling that at the time of the adoption of the 
name the coca plant was known only to foreigners 
and scientists, for if the name had appropriate refer- 
ence to that plant and to substances derived there- 
from, its use would primarily be taken in that sense 
by those who did know or who took pains to inform 
themselves of its meaning. Mere ignorance on the 
part of others as to the nature of the composition 
would not change the descriptive character of the 
designation. The same conclusion would be reached 
if the single name ' ' Cola ' ' had been used as the name 
of the product, and it were found that in fact the 
name imported that the product was obtained from 
the cola nut. The name would not be the distinctive 
name of a product not so derived until in usage it 
achieved that secondary significance. 

We are thus brought to the question whether, if 
the names coca and cola were respectively descrip- 
tive, as . the government contends, a combination of 
the two names constituted a "distinctive name" 
within the protection of the proviso in case either of 
the described ingredients was absent. It is said that 
"coca" indicates one article, and "cola" another, 
but that the two names together did not constitute 
the distinctive name of any other substance or com- 
bination of substances. The contention leads far. 
To take the illustration suggested in argument, it 
would permit a manufacturer, who could not use the 
name chocolate to describe that which was not choco- 
late, or vanilla to describe that which was not va- 
nilla, to designate a mixture as " Chocolate-Vanilla, " 

29 



UNITED STATES 



although it was destitute of either or both, provided 
the combined name had not been previously used. 
We think that the contention misses the point of the 
proviso. A mixture or compound may have a name 
descriptive of its ingredients or an arbitrary name. 
The latter (if not already appropriated) being arbi- 
trary, designates the particular product. Names, 
however, which are merely descriptive of ingredients, 
are not primarily descriptive names save as they ap- 
propriately describe the compound with such ingre- 
dients. To call the compound by a name descriptive 
of ingredients which are not present is not to give it 
"its own distinctive name," which distinguishes it 
from other compounds, but to give it the name of a 
different compound. That, in our judgment, is not 
protected by the proviso, unless the name has 
achieved a secondary significance afs descriptive of a 
product known to be destitute of the ingredients in- 
dicated by its primary meaning. 

In the present case we are of opinion that it could 
not be said as a matter of law that the name was 
not primarily descriptive of a compound with coca 
and cola ingredients, as charged. Nor is there basis 
for the conclusion that the designation had attained 
a secondary meaning as the name of a compound 
from which either coca or cola ingredients were 
known to be absent; the claimant has always insisted, 
and now insists, that its product contains both. But 
if the name was found to be descriptive, as charged, 
there was clearly a conflict of evidence with respect 
to the presence of any coca ingredient. We conclude 
that the Court erred in directing a verdict on the 
second count. 

The judgment is reversed and the cause is re- 
manded for further proceedings in conformity with 
this opinion. 

It is so ordered. 

MR. JUSTICE MCREYNOLDS took no part in the con- 
sideration or decision of this case. 

30 



v. 40 BARBELS AND 20 KEGS OF COCA-COLA 



IN THE DISTRICT COURT OF THE UNITED 
STATES OF AMERICA, EASTERN 
DISTRICT OF TENNESSEE, 
SOUTHERN DIVISION 



No. 53 

UNITED STATES 
v. 

FORTY BARRELS AND TWENTY KEGS OF 
COCA-COLA. 



DECREE. 

This proceeding coining on to be heard, and it 
appearing that the claimant, The Coca-Cola Com- 
pany, without admitting the charges of either mis- 
branding or adulteration, but expressly denying same, 
but stating that it has made certain modifications in 
the process of its manufacture, and on account of 
which a decision either way of the question of fact 
now involved would not be conclusive in any future 
proceeding against its present product, has, in order 
to dispose of this libel without the necessity of an- 
other trial, and for the sole purpose of disposing of 
this cause, withdrawn its claim and all other plead- 
ings therein, and it appearing that the United States 
and said claimant, by their attorneys of record, have 
consented to the judgment, herein; 

And it appearing that the monition issued in this 
case has been heretofore returned, the usual proc- 
lamation made, all legal requirements complied with 
and that the default of all persons has been duly 
entered after withdrawal by claimant of this claim 
and defenses as aforesaid; 

31 



UNITED STATES 



Now, therefore, the premises considered, it is, on 
motion of the United States, Ordered, Sentenced and 
Adjudged by" the Court, now here, and his Honor, 
the District Judge, by virtue of the power and au- 
thority in him vested, doth hereby order, sentence 
and adjudge that the goods, wares and merchandise 
seized in this proceeding be, and the same are hereby 
forfeited to the United States and that the said The 
Coca-Cola Company pay all costs of this proceeding; 

It Is Further Ordered, Adjudged and Decreed that 
the judgment of forfeiture shall not be binding upon 
the said The Coca-Cola Company or its product ex- 
cept as to this cause and the particular goods seized 
herein, nor binding upon the claimant, or its product 
as it shall relate to any other cause or proceeding of 
any kind or character. 

And It Is Further Ordered that the said goods, 
wares or merchandise seized herein, to wit, the forty 
barrels and twenty kegs of Coca-Cola, shall be re- 
leased to the claimant upon said claimant paying 
the costs above adjudged and giving sufficient bond, 
conditioned that the product shall not be sold or 
otherwise disposed of contrary to the provisions of 
the Federal Food and Drugs Act, or the laws of any 
State, Territory, district or insular possession of 
the United States. 

In open court, this 12th day of November, 1918. 

(Signed) SANFQ'RD, 

United States Judge. 
O. K: 

Wm. L. Frierson, Asst. Atty. General. 

W. T. Kenerly, U. S. Atty. 

J. B. Sizer, Atty. for Coca-Cola Co. 

Harold Ilirsch, Attorney for The Coca-Cola Co. 

32 



v. 40 BARRELS AND 20 KEGS OF COCA-COLA 

THE UNITED STATES OF AMERICA, \ 
EASTERN DISTRICT OF TENNESSEE, > ss. 
SOUTHERN DIVISION. ) 

I, HORACE VAN DEVENTER, Clerk of the District 
Court of the United States, within and for the Dis- 
trict aforesaid, do hereby certify that the foregoing 
printing and typewriting is a true, full, correct and 
complete copy of the original final decree on file and 
remaining of record in my office in the matter of The 
United States v. 40 Barrels and 20 Kegs of Coca- 
Cola, No. 53. 

In Testimony Whereof I have hereunto set my hand 
and seal of the said District Court, at Chattanooga, 
Tennessee, this 20th day of April, A. D. 1918. 

HORACE VAN DEVENTER, 

Clerk, 
By GEO. E. GRESHAM, Deputy Clerk. 



33 



THE COCA-COLA COMPANY 



IN THE CIRCUIT COURT OF APPEALS, 
SIXTH CIRCUIT 

200 FEDERAL 720 



No. 2235 IN EQUITY 



THE COCA-COLA COMPANY, Appellant, 

v. 

THE GAY-OLA COMPANY, Appellee. 

I 



1. CORPORATION (517) EQUITY (Sec. 339) ANSWER 
AS EVIDENCE CORPORATION DEFENDANT. 

A corporation cannot answer under oath in an eq uity suit, and 
if its answer, when verified by an officer, is evidence under the equity 
rule, it is not available to prove an affirmative defense. 

2. TRADE-MARKS AND TRADE-NAMES (Sec. 75) UN- 
FAIR COMPETITION GROUNDS FOR EQUITABLE 
RELIEF. 

In a suit for unfair competition, it is not necessary to show that 
the immediate purchasers were deceived as to the origin of the 
goods; but even if they thoroughly understood that they were buy- 
ing the counterfeit, and not the genuine, the manufacturer of the 
counterfeit will be enjoined from selling it to dealers with the 
purpose and expectation that it shall be used by the dealers to 
deceive the consumer. 

3. TRADE-MARKS AND TRADE-NAMES (Sec. 70) "UN- 
FAIR COMPETITION" INTENT. 

The imitation by one manufacturer of the goods of another in 
name, appearance, and marking and color of packages, even if 
such similarities singly would not be unlawful, if accompanied 
by good faith, may constitute "unfair competition," which will be 
enjoined, where there is an actual purpose to deceive and defraud 
purchasers. 

(For other definitions, see Words and Phrases, vol. 8, p. 7174.) 

34 



v. THE GAY-OLA COMPANY 



4. TRADE-MARKS AND TRADE-NAMES (Sec. 70) UN- 
FAIR COMPETITION IMITATION IN PACKAGES 
AND COLOR OF PRODUCT. 

Defendant manufactured a syrup for use in soda fountains, etc., 
and colored it to exactly resemble complainant's, which was earlier 
in the market, extensively advertised, and well known. The color- 
ing matter was nonfunctional, being added to the compound solely 
for coloring purposes and in the quantity necessary to give it 
the color of complainant's. Defendant also colored its barrels and 
kegs red, which was the distinctive color used by complainant, and 
placed no marks thereon to indicate the place of manufacture. 
It also sent circulars to owners of soda fountains, calling atten- 
tion to the cheapness of its product, and advising them that con- 
sumers could not tell it from complainant's. Held that, in view 
of its evident purpose to deceive consumers, all such modes of 
imitation should be enjoined, unless means were provided to pre- 
vent such deception. 

5. TRADE-MARKS AND TRADE-NAMES (Sec. 91) AC- 
TION FOR UNFAIR COMPETITION PARTIES. 

A manufacturer, whose business is injured by unfair competition 
by the maker of a similar product, has a direct and independent 
right of action to enjoin such competition; and the fact that it 
supplies a part of its product to consumers in the territory where 
defendant does business only through a second company, which 
buys and re-sells it, and which is also injured by the acts of de- 
fendant, does not make such second company a necessary party 
to the suit. 

0. MONOPOLIES (Sec. 21) SUIT FOR UNFAIR COM- 
PETITIONDEFENSES. 

That a manufacturer sells its product through a system of con- 
tracts tending to maintain monopoly in a trade-marked article 
does not preclude it from maintaining a suit in equity to enjoin 
unfair and fraudulent competition by another manufacturer of a 
similar product. 

(Unfair competition in use of trade-mark or trade-name, see notes 
to Scheuer v. Muller, 20 C. C. A.; Lare v. Harper & Bros., 30 
C. C. A. 367.) 

Appeal from the Circuit Court of the United States 
for the Western District of Tennessee. JOHN E. 
Me CALL, Judge. 

Suit in equity by The Coca-Cola Company against the 
Gay-Ola Company. Decree for defendant, and 
complainant appeals. Reversed. 

35 



THE COCA-COLA COMPANY 



Complainant below, appellant here, sought protec- 
tion against the unfair competition of defendant. The 
bill of complaint carried as exhibits various letters and 
circulars of defendant. The answer admitted these 
letters and circulars, but denied any wrong in intent 
or in law, in that connection. Depositions were taken, 
and upon final hearing the bill was dismissed. It ap- 
peared that complainant had put upon the market 
very extensively a drink known as " Coca-Cola," made 
under a secret formula, that this business had grown 
up and increased and extended over a period of 20 
years, and that the business had become extremely 
valuable. Complainant's product was in the form of 
an essence or concentrated liquor, designed to be 
mixed with water at the time of consumption. This 
essence had certain peculiarities of taste, color, etc., 
and was sold by complainant in barrels or kegs, 
painted with a particular shade or red, and marked 
with complainant's labels. Purchasers from com- 
plainant were of two classes : first, the fountain pro- 
prietors, who mixed the essence with carbonated water 
and sold directly to the consumer; and second, the 
bottling companies, who added the necessary carbon- 
ated water, and put the product up in sealed bottles, 
and then sold this article to retail dealers. 

Defendant claimed to have discovered complainant 's 
formula, and to be in fact making the same thing. It 
adopted for its product and for its corporate name 
the word ' ' Gay-Ola. ' ' It proceeded to bring this 
product into public notice by some advertising under 
its own name and by some other methods not criti- 
cized by complainant all to an extent not distinctly 
shown by this record. It also wrote a series of letters 
to bottling companies which were engaged in bottling 
Coca-Cola, which letters were to the effect that it 
would sell the bottler Gay-Ola for a less price than he 
was paying for Coca-Cola; that the two articles were 
just alike, and no one could tell the difference; that 
the bottler could, if he wished,, substitute Gay-Ola for 
Coca-Cola, and his patrons would never know it ; that 

36 



v. THE GAY-OLA COMPANY 



several bottlers who had been handling Coca-Cola, 
were doing this successfully and without discovery; 
and that, if the bottler desired, defendant would ship 
him Gay-Ola in plain, unmarked packages, so that his 
dealings with defendant would not be observed. Sev- 
eral of the letters in the record are of this substantial 
effect, though they use different forms of expression, 
and some only by hint and innuendo convey the invi- 
tation to substitute and so to deceive the final pur- 
chasers. Defendant also sent circular letters to soda 
fountain proprietors, setting out the cheap price and 
the merits of Gay-Ola and its identity with Coca-Cola, 
and quoting from a testimonial 'of a soda fountain 
proprietor: "No one can tell it from Coca-Cola, and 
I sell it for Coca-Cola, and every one says I have the 
best Coca-Cola in the city." On these letters, the de- 
fendant added the postscript : * ' For your information, 
beg to state that we are shipping twenty-one Coca- 
Cola bottlers. < 'Nuf said/ " 

Candler, Thomson & Hirsch, of Atlanta, Ga., and 
Lehman, Gates & Martin, of Memphis, Tenn.,, for ap- 
pellant. 

Brown & Anderson, of Memphis, Tenn., for appellee. 

Before WARRINGTON, KNAPPEN and DENISON,, Circuit 
Judges. 

DENISON, Circuit Judge (after stating the facts as 
above). An answer under oath was not waived. The 
answer filed is verified by one of the defendant's cor- 
porate officers, and sets up, by way of affirmative de- 
fense, that complainant comes with unclean hands and 
cannot be heard, because its product is misbranded, 
and because the name "Coca-Cola" is deceptive (Cali- 
fornia Fig Syrup Co. v. Stearns [C. C. A. 6],, 73 Fed. 
812, 816, 20 C. C. A. 22, 33 L. R. A. 56) ; but defendant 
took no proofs. A corporation cannot answer under 
oath, and even if its answer, when verified by an 

37 



THE COCA-COLA COMPANY 



officer, is evidence under the equity rule, it is not avail- 
able to prove an affirmative defense. Seitz v. Mitchell, 94 
U. S. 580, 582, 24 L. Ed. 179 ; Ritterbusch v. Atchison, 
etc., Ey. (C. C. A. 8) 198 Fed. 46, 50. These matters 
must, therefore, be dismissed from consideration. And 
see U. S. v. 40 Barrels, etc. (D. C.) 191 Fed. 431. 

The substantial question seems to be whether com- 
plainant has a remedy against defendant, or whether 
the remedy is confined to proceedings against that re- 
tail trade which is the immediate agent in deceiving 
the ultimate purchaser. That the defendant has 
planned and expected a benefit by the fraud so to be 
practiced, and that it has deliberately furnished to 
the dealers the material for practicing the fraud, with 
the expectation and desire that the material be so used, 
are perfectly plain indeed, are hardly denied. The 
ultimate wrong here contemplate^ is clearly to be 
classified as unfair competition, within the definitions 
adopted by the Supreme Court and by this court 
(Elgin, etc., Co. v. Illinois Watch Co., 179 U. S. 665, 
674, 21 Sup. Ct. 270, 45 L. Ed. 365; Merriam Co. v. 
Saalfield, 198 Fed. 369; Everett Piano Co. v. Maus, 
200 Fed. 718, opinion this day filed) ; and complain- 
ant is entitled to such relief as a court of equity can 
give, unless merit can be found in the defense that 
the Gay-Ola Company had the right to make and sell 
the article which it did sell, and that it is not respon- 
sible for the fraud of its vendees. 

(2) The interposition of equity in this class of cases 
rests upon the inadequacy of the remedy at law; and 
this inadequacy consists in the resulting multiplicity 
of suits, impossibility of computing indirect damages 
and probable irresponsibility of many wrongdoers. If 
these reasons lead to the issuing of an injunction 
against one of a large number of those who commit 
the final tort, even more do they indicate the neces- 
sity of an injunction against one who is conspiring 
or co-operating to cause a large number of such 
torts. Accordingly, we find it recognized by this 
court that, in a suit for unfair competition,, it 

38 



v. THE GAY-OLA COMPANY 



is not necessary to show that the immediate pur- 
chasers were deceived as to the origin of the 
goods ; but even if they thoroughly understand that 
they are buying the counterfeit,, and not the genuine, 
the manufacturer of the counterfeit will be enjoined 
from selling it to dealers with the purpo.se and expec- 
tation that it shall be used by the dealers to deceive 
the consumer. Garett v. Garett (C. C. A. 6) 78 Fed. 
472, 476, 24 C. C. A. 173 ; Royal Co. v. Eoyal, 122 Fed. 
337,, 345, 58 C. C. A. 499. And see cases cited in Cyc., 
vol. 38, p. 778, notes 25 and 26 ; also Kalem v. Harper, 
222 U. S. 55, 63, 32 Sup. Ct. 20, 56 L. Ed. 92. Under 
the principles on which these cases were decided, we 
are satisfied that an injunction must go against the de- 
fendant. There is no room for it to shift the blame 
to "tricky retailers," as in Eathbone Co. v. Champion 
Co., 189 Fed. (C. C. A. 6) 26, 33, 110 C. C. A. 596, 37 
L. R. A. (N. S.) 258; defendant is an accomplice,, if 
not the principal, in the trick. With this conclusion 
established, it is obvious that the injunction should 
forbid all attempts directly or indirectly to encourage 
or induce the dealer to make the fraudulent substitu- 
tion; but complainant also asks that the injunction 
extend to the use of barrels or kegs painted of the 
same color as complainant 's, and to coloring the prod- 
uct itself with the same color,, and to using any pack- 
ages not plainly marked Gay-Ola. Whether the in- 
junction should have this scope must be considered. 
(3, 4) It is first to be observed that defendant is at 
the best on a narrow ground of legality. The name 
which it has adopted does not negative an intent to 
confuse. The product is identical, both in appearance 
and taste ; and the form of script used in printing 
the "trade-mark" names is the same. Even if the 
use of each of these items of similarity was lawful, 
when accompanied by good faith and no intent to de- 
ceive, they put the product near that dividing line 
where good or bad faith is the criterion, and their 
presence puts upon the user a burden of care to see 
that deception does not naturally result. Conversely, 

39 



THE COCA-COLA COMPANY 



when we find, as a fact, from the other conduct of the 
defendant, that the underlying intent is to perpetrate 
a fraud upon the consumer, this intent must color the 
accompanying acts, and some which otherwise might 
be innocent become guilty. So here. The red color 
used by complainant on its barrels and kegs is not a 
color which it discovered, or to which it had any ab- 
stract monopoly; but this color has long been used by 
complainant in a way that was exclusive in this trade. 
No other manufacturer of analogous or competing 
drinks uses that color of package, and its adoption 
by defendant is one of the constituent parts of defend- 
ant's scheme of fraud. So, too, with defendant's fail- 
ure to mark its packages with anything to indicate the 
place of manufacture. Ordinarily a man may mark 
his goods, or not, as he pleases; but when he has his 
marks and labels, which he uses onj occasions, and can 
have no motive for sending out unmarked packages 
except to aid in a fraudulent substitution, the act, 
otherwise permissible, becomes forbidden. 

The question remains whether the injunction should 
go to the extent of forbidding defendant to sell Gay- 
Ola with the identical color it now has ; that is, to 
forbid its sale unless colored so as to distinguish it 
from Coca-Cola. Defendant contends that such a pro- 
hibition is inconsistent with its legal right to make and 
sell an article which is in fact exactly like Coca-Cola. 
This contention seems unpersuasive in view of defend- 
ant's pleadings. In its answer it has abandoned the 
claim of its advertising literature that Gay-Ola is made 
exactly according to the Coca-Cola formula, and urges 
that its product is a different and better compound. 
It says that it has improved upon the formula of Coca- 
Cola, while eliminating one of the elements, and that 
its product is "greatly superior" to Coca-Cola. It 
thus destroys a considerable part of the foundation 
upon which rests its claimed right to adopt a color 
which will be deceptive; but we pass by this consid- 
eration. 

The record justifies the conclusion that the color 

40 



v. THE GAY-OLA COMPANY 



is "nonfunctional" to use the phraseology of the pat- 
ent law. The bill alleges that Gay-Ola is "artificially 
and unnecessarily" colored so as to look exactly like 
Coca-Cola. The answer denies this in terms; but it 
goes on to say that the color is produced by caramel, 
which is in universal use for coloring purposes, and 
is used by complainant for coloring Coca-Cola. There 
is here no claim that caramel serves any other purpose 
in either compound, except merely to give color, and 
saying that it is one of the "component elements," as 
one of the witnesses does, is saying nothing more. It 
follows that the adoption, not only of caramel,, was 
for the main and primary purpose of making the two 
articles look just alike. In this connection it appears 
that there is a great variety of coloring materials open 
to the use of any manufacturer, and selections from 
which are used by other manufacturers. 

The record also requires the conclusion that defend- 
ant's business had a substantial basis in this contem- 
plated fraud. Doubtless it intended to try to make 
a reputation and business for Gay-Ola on its own 
merits in certain quarters, and perhaps eventually in 
a general way; but it is clear that in the meantime, 
and wherever it could, and as the easiest way of get- 
ting a large business, it intended to have its product 
sold as and for Coca-Cola. Under these circum- 
stances we need not consider what the rule would be 
if the color was the incidental result of an ingredient 
used for some other purpose, nor yet what the rule 
would be if the defendant had adopted even a wholly 
unnecessary identity in color in connection with a 
good-faith effort to sell its own goods on their own 
merits. This court has not yet said that a case of 
fraudulent competition can be made out solely by proof 
of identity in a nonfunctional particular. Eathbone 
Co. v. Champion, supra; Hilker Mop Co. v. U. S. Mop 
Co., 191 Fed. 613, 112 C. C. A. 176. This case is not 
even one of imitating matters of appearance in an 
article of common manufacture, like furniture. Globe- 
Wernicke Co. v. Macey Co., 119 Fed. 696, 704, 56 C. C. 

41 



THE COCA-COLA COMPANY 



A. 304. We rest our conclusion here upon the fact that 
the color was adopted in part as a means of aiding 
the contemplated fraud, and that, if its adoption 
was also in part innocent, there is here a confusion 
caused by defendant; that the burden is therefore 
upon defendant to see to it that ultimate fraud does 
not result from this confusion; and that, so far as 
defendant cannot safeguard this result, it may not 
use the color. There is here marked indeed close- 
analogy to the rule of Westinghouse Co. v. Wagner 
Co., 225 U. S. 604, 32 Sup. Ct. 691, 56 L. Ed. 1222, 
and to the rule which requires an article which is likely 
to deceive as to its origin to be distinctly tagged with 
the name of the real producer. Merriam v. Saalfield, 
supra. It goes without saying that this tag should be 
in form adapted to reach the notice of the final pur- 
chaser. } 

As to the bottling part of the output, defendant 
could apparently provide reasonably efficient means 
of notice, and so probably prevent deception by see- 
ing to it that all the bottles were stamped and labeled 
prominently with the name of its product. As to the 
soda fountain part of the output, we do not at present 
see how deception could be efficiently prevented, save 
by giving the product a nondeceptive color, although 
some other satisfactory means may be brought to the 
attention of the court below. The defendant should 
be enjoined from selling Gay-Ola of a color the same 
as or substantially similar to Coca-Cola, unless and 
in so far as upon settlement of the decree below means 
may be provided by which the ultimate consumer will 
be fairly advised that he is not getting complainant's 
Coca-Cola, but is getting something else. 

(5) Two matters of affirmative defense require men- 
tion. Jurisdiction in this case is founded on diverse 
citizenship, the complainant being a Georgia corpora- 
tion and the defendant a Tennessee corporation. 
Complainant has a contract with the Coca-Cola Bot- 
tling Company, of Chattanooga, a Tennessee corpora- 
tion, by which complainant's entire product intended 

42 



v. THE GAY-OLA COMPANY 



for bottling purposes in several states, including Ten- 
nessee, is sold to this Tennessee corporation,, or to 
other Coca-Cola bottling companies scattered over the 
contract territory, and which are organized as sub- 
sidiaries to the Tennessee corporation, and so it is 
said that the injury done by defendant in inducing 
these subsidiary bottling companies to substitute Gay- 
Ola for Coca-Cola is an injury to the Tennessee cor- 
poration, and it must be made a party, whereby the 
court will be ousted of its jurisdiction. It is true that 
the interests of the Tennessee corporation may be af- 
fected by this litigation, and it may well be that, under 
the special circumstances appearing by the record, the 
Tennessee corporation would be a proper party. It 
does not follow that it is a necessary party. If the 
fraudulent substitution of Gay-Ola for Coca-Cola is 
effected by these subsidiary bottling companies, and 
thereby the deception of the purchasing public is con- 
summated, complainant suffers, not only the direct 
loss of its sale, but the indirect damage, through loss 
of reputation and business, which may follow the sub- 
stitution. These things give complainant a direct and 
independent interest in preventing the fraud. The 
fact that the Chattanooga Bottling Company has, for 
itself and its subsidiaries, the exclusive right to handle 
all of complainant's product which is devoted to bot- 
tling purposes, does not differentiate the case from 
the ordinary one of manufacturer, jobber and dealer. 
The manufacturer cannot be unable to act for the pro- 
tection of his goods in 'the retail field, unless he acts 
through or jointly with the jobber. 

(6) The other matter is this: All the subsidiary 
Coca-Cola Bottling Companies act in their respective 
localities under identical contracts with the Chatta- 
nooga Bottling Company, which contracts have cer- 
tain exclusive and price-restricting features which are 
claimed to make them obnoxious to the Sherman Law ; 
and it is said that the rule of Miles Medicine Co. v. 
Parks, 220 U. S. 373, 408, 31 Sup. Ct. 376, 55 L. Ed. 502, 
applies to this situation and requires the complaint 

43 



THE COCA-COLA COMPANY 



to be dismissed. Without considering these premises, 
it is sufficient to say that we do not so understand 
that case. It holds that the manufacturer may not 
have the aid of equity to enforce the very terms 
of the contract system there involved ; it does not hold 
that the remedies of the Dr. Miles Medical Company to 
protect itself and the public from fraudulent competi- 
tion would be destroyed or abridged because of the 
existence of these contract restrictions; and we see 
no reason why such a system of exclusive contracts, 
not tending to establish a monopoly, except in con- 
nection with that lawful measure of exclusion which 
is inherent in a trade-mark and an established busi- 
ness, should have the effect to deny to a complainant 
that equitable remedy to which he otherwise would 
be entitled. Indeed, it has been held that complain- 
ant's participation in a violation bf the Sherman Act 
(Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 
1901, p. 3200]) does not destroy his right to protec- 
tion against infringement on trade rights. Brown 
Saddle Co. v. Troxel (C. C.) 140 Fed. 412; Weyman- 
Bruton Co. v. Old Indian Snuff Mills (D. C.) 197 Fed. 
1015. 

The decree below must be reversed, and a decree 
should be entered in accordance with the prayer of the 
bill and this opinion. 

The appellant will recover costs of both courts. 



44 



v. THE GAY-OLA COMPANY 



IN THE CIRCUIT COURT OF APPEALS, 
SIXTH CIRCUIT 

211 FEDERAL 942 



Nos. 2542, 2543 IN EQUITY 



THE COCA-COLA COMPANY 

v. 
THE GAY-OLA COMPANY. 



THE GAY-OLA COMPANY 

v. 
THE COCA-COLA COMPANY. 



1. TRADE-MARKS AND TRADE-NAMES (Sec. 100) UN- 
LAWFUL COMPETITION SALE OF DEFENDANT'S 
PRODUCT METHOD. 

Where defendant put out a soda-water syrup in unlawful com- 
petition with Coca-Cola, it was not entitled to sell its syrup in 
bulk to bottlers on their agreement to put it up only in such bottles 
as would cause it to reach the ultimate consumer in a form per- 
mitted by a decree in a suit for unlawful competition; complain- 
ant being entitled to restrain the marketing of defendant's product 
except through such branches or agencies as would charge defend- 
ant with their acts. 

(Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 
165; Lare v. Harper & Bros., 30 C. C. A. 376.) 

2. TRADE-MARKS AND TRADE-NAMES (Sec. 100) UN- 
LAWFUL COMPETITION. 

In a suit for unlawful competition, it is proper for the court 
under certain circumstances in settling a decree forbidding unfair 
competition to prescribe that certain forms may be used, and if 
used will not constitute prohibited fraud. 

45 



THE COCA-COLA COMPANY 



Appeals from the District Court of the United States 
for the Western District of Tennessee. JOHN E. 
Me CALL, Judge. 

Suit in equity by The Coca-Cola Company against the 
Gay-Ola Company. From a decree in favor of 
complainant in a suit for unlawful competition, 
both parties appeal. Modified. 

W. D. Thomson and Candler, Thomson & Hirsch, all 
of Atlanta, Ga., and Lehman, Gates & Martin, of 
Memphis, Tenn., for Coca-Cola Co. 

Leo Goodman and Hirsh & Goodman, all of Mem- 
phis, Tenn., for Gay-Ola Co. 

Before WARRINGTON, KNAPPER, ar^d DENISON, Circuit 
Judges. 

Per Curiam. Upon settlement of a decree in the dis- 
trict 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 tw r o plans by which 
it thought its syrup might be kept in bulk at soda- foun- 
tains, and there prepared in glasses and served, with- 
out 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 mean- 
ing of our opinion. Upon the appeal of the Gay-Ola 
Company, the action below must be affirmed. 

(1) The Gay-Ola Company claims it should be al- 
lowed to sell its syrup in bulk to bottlers in different 
parts of the country who will agree with it to put up 
the syrup only in such bottles as will cause it to reach 
the ultimate consumer in the form permitted by our 
opinion. 

The Coca-Cola Company insists that this would 

46 



v. THE GAY-OLA COMPANY 



result in evasion of the intended restriction, since the 
bottlers could then use or sell the syrup as they 
pleased. We cannot see how it is possible for this 
syrup, carrying what on the record must be called 
the guilty color, to be sold by the Gray-Ola Company, 
so that it loses title and control, and for the court at 
the same time to retain practical power to enforce 
against the Gay-Ola Company the existing restriction 
upon the ultimate form of sale. 

Obviously, by establishing its own bottling works in 
different places, or by causing the bottling to be done 
by its agent, whose acts are its acts, it can get its 
product on the market in bottled form; if such 
branches or agencies are impracticable, and the Gay- 
Ola Company must either change the color or abandon 
the business, this result must be charged to its fraud- 
ulent inception to a "congenital defect." We think 
the decree should absolutely prohibit sales by the Gay- 
Ola Company unless in the form prescribed for ulti- 
mate use. 

(2) The Gay-Ola Company presented a package 
which it proposed to use for its. bottled product, in 
order to differentiate from the Coca-Cola bottled 
product, and asked the district judge to approve 
and sanction this form by a paragraph in the decree. 
He did so. The Coca-Cola Company appeals from this 
action, and insists that the court cannot, in settling a 
decree forbidding unfair competition, prescribe that 
certain forms may be used, and ^ill not constitute 
the prohibited fraud. This seems to be held in 
the Seventh Circuit of Appeals. Hires v. Con- 
sumer's Co., 100 Fed. 809, 41 C. C. A. 71; Williams 
v. Mitchell, 106 Fed. 168, 45 C. C. A. 265; Sterling 
Remedy Co. v. Spermine Med. Co., 112 Fed. 1,000, 50 
C. C. A. 657. That we are not within the issues seems 
hardly accurate,, because the pleading issues in such 
suits are usually general and broad enough to include 
all the specific forms of the device which have been 
or may be used. It is clear that there are cases where 
the problem presented by the new form for which 

47 



THE COCA-COLA COMPANY 



authority is asked will be so far away from the ques- 
tions which the court has considered, and which 
proofs cover, that it ought not to be solved without 
a new suit or a new proceeding; but there are many 
cases where the court will be as ready as it ever can 
be to decide such a question; and to refuse to do so, 
and compel a new suit, is unnecessarily to prolong 
uncertainty and litigation. Whether a given case 
falls within one or the other class, or whether oppor- 
tunity for additional and summary hearing will prop- 
erly take the case from the second class into the first, 
can safely be left to the discretion of the court. The 
practice condemned in the Seventh Circuit was fol- 
lowed by Judge Coxe at Circuit (Carlsbad v. Schultz 
[C. C.] 78 Fed. 469, 472) ; and it seems to us equiv- 
alent to what we think is very common in unfair com- 
petition cases, i. e., providing that) defendant's pub- 
lication or article shall contain, or shall be enjoined 
unless it does contain a certain notice or label, for this 
amounts to saying that if it does contain prescribed 
notice it will not violate the decree. This has been 
done (if not more generally) in the Second Circuit 
(Waterman Co. v. Modern Co. [C. C. A.] 197 Fed. 
534, 535, 117 C. C. A. 30) ; in the First Circuit (Mer- 
riam Co. v. Ogilvie [C. C. A.] 170 Fed. 167, 168, 95 
C. C. A. 423) ; and in this court (Merriam v. Saalfield, 
198 Fed. 369, 378, 117 C. C. A. 245). 

The question whether the court below rightly ap- 
proved the form of bottle then presented needs no dis- 
cussion. The Gay-Ola Company does not now insist 
upon the one then authorized, but in open court be- 
fore 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, except- 
ing that the following two paragraphs will be sub- 
stituted for the corresponding paragraphs in the entry 
appealed from: 

48 



v. THE GAY-OLA COMPANY 



"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 en- 
joined, restrained, and prohibited from selling, or dis- 
posing 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, re- 
ceptacle, or package, with said mark or label still re- 
maining 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 package for sale to the ultimate consumer 
thereof, will not constitute any violation of this de- 
cree. 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 exhibit 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. 



49 




229 U. S. 614 



No. 1020 



THE GAY-OLA COMPANY, I VI it inner, 

v. 
THE COCA-COLA COMPANY, Respondent. 



Petition for a Writ of Certiorari to the United States 
Circuit Court of Appeals for the Sixth Circuit. 



Denied on April 21, 1913. 



MR. FREDERICK S. TYLER, 
For Petitioner. 

MESSRS. W. D. THOMSON and HAROLD HIRSCH, 
For Respondent. 



50 



UNITED STATES OF AMERICA 

DISTRICT COURT OF THE UNITED STATES 

WESTERN DISTRICT OF TENNESSEE, 

WESTERN DIVISION 



In .The District Court of the United States, within 
and for the Western Division of the Western District 
of Tennessee, in the Sixth Judicial Circuit thereof. 

Proceedings had in said court at a regular term 
thereof, begun and held for its May Term, A. D. 1914, 
at the United States Court House in the City of Mem- 
phis, in said District, on to wit: the 4th day of July, 
A. D. 1914, in the following cause, to wit: 

THE GAY-OLA COMPANY, 

v. >No. 662. 

THE COCA-COLA COMPANY. 



DECEEE ON MANDATE, 

This cause came on this day to be heard upon the 
motion of the complainant to enter a decree in accord 
with the mandate of the United States Circuit Court 
of Appeals, in this cause bearing date the 24th 
day of April, 1914, which said mandate has hereto- 
fore been entered of record and is now recorded in 
Minute Book 1, at pages 211 and 212. 

Now, Therefore, in obedience to the said mandate, 
and in compliance with the directions therein con- 
tained, and the opinion of the said Circuit Court of 
Appeals herein, it is hereby ordered, adjudged and 
decreed that the said final decree of this court 
entered herein on the 8th day of July, 1913, in Minute 
Book 1, at pages 69 to 71, be and the same is hereby 

51 



THE GAY-OLA COMPANY 



modified, and there is eliminated therefrom and ex- 
punged therefrom and for naugiit held so much of the 
decree as is in the words and figures following, to wit : 
"It is further ordered, adjudged and decreed 
that the said defendant, its directors, officers, 
agents, servants, employes and assigns, and each 
and every of them, be and they are hereby per- 
petually 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 in bottles, receptacles or 
packages, marked or labeled prominently with the 
name of 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. ' ' I 

"It is further ordered, adjudged and decreed 
that the amber-colored, long-necked bottle, ex- 
hibited by the defendant Gay-Ola Company in 
open Court on this day, upon the hearing of the 
motion for the entry of the decree on the mandate, 
said bottle has the words ' Gay-Ola. It's better' 
blown prominently into the bottle at the shoulder 
thereof, and the same words printed in red on 
the crown or cap which fits over the mouth of 
the bottle is in the opinion of the Court a suffi- 
cient stamping or labeling thereof within the 
meaning and intent of this decree, to which part 
of the adjudication the complainant there and 
then, and does now and here except." 
It is further ordered, adjudged and decreed that, 
pursuant to the direction and mandate of the said 
United States Circuit Court of Appeals herein, the 
said decree as modified be and the same is hereby re- 
entered and is made the decree of this Court in said 
cause, and that this court does now proceed to adjudge 
and decree, and does order, adjudge and decree as 
follows, to wit : 

"It is further ordered, adjudged and decreed 

52 



v. THE COCA-COLA COMPANY 

that the defendant, its directors, officers, agents, 
servants and employes, and assigns, and each and 
every of them, be and they are hereby perpetually 
enjoined, restrained and prohibited from in any- 
wise, manner or way, directly or indirectly, con- 
spiring with any customer of complainant, or 
other person, whether proprietor of a soda foun- 
tain or bottler, for the purpose of defrauding 
complainant and from suggesting, intimating or 
proposing to or agreeing with any such pro- 
prietor of a soda fountain, or bottler or other 
customer of complainant, or any other person or 
persons whatsoever that they or any one or more 
of them, may without fear of detection, substitute 
the product or goods of the defendant for the 
product or goods of complainant ; or from in any 
manner inducing or attempting directly or in- 
directly, to induce or encourage any bottler, soda 
fountain proprietor, or any other person what- 
soever to fraudulently substitute defendant's 
product for that of complainant, or to cause the 
same to be so fraudulently substituted, or from 
soliciting or inducing any one or more of the cus- 
tomers of complainant or any other person or 
persons whatsoever, to purchase from defendant 
its syrup with the idea, purpose or intention of 
substituting defendant's syrup for the genuine 
Coca-Cola, by any promise of secrecy in the entry 
of orders therefor, or in the delivery of said 
product. ' ' 

"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, receptacle 
or packages marked or labeled prominently with 
the name of the defendant's product and designed 

53 



THE GAY-OLA COMPANY 



and intended to be sold and delivered to the ulti- 
mate consumer in said original bottle, receptacle 
or package, with said mark or label still remain- 
ing thereon." 

"And it is further ordered, adjudged and de- 
creed that the proposed bottling package pre- 
sented to the Circuit Court of Appeals upon its 
hearing of cases No. 2542 and 2543 does consti- 
tute 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 pack- 
age to the ultimate consumer, or to others in such 
package for sale to the ultimate consumer there- 
of, 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 
words ' Gay-Ola ' in large capital letters blown in 
the shoulder thereof and the words 'The Im- 
proved Cola' in the body thereof; being also pro- 
vided 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 exhibit in this cause and by front and 
rear photographs thereof attached to this decree, 
and made a part hereof." 

"It is further ordered, adjudged and decreed 
that the said party, and each and all of them, are 
further perpetually enjoined, restrained and pro- 
hibited from painting any barrels or kegs in which . 
the product of the defendant is delivered or 
shipped, a dark red color similar to that hereto- 
fore and now employed by complainant in the 
painting of its kegs and barrels, or from shipping 
or delivering any of defendant's said product in 
any barrels or kegs so painted or colored as to be 
similar in appearance to those of complainant. ' ' 

"It is further ordered that the complainant 
have, and recover of defendant all costs expended 

54 



v. THE COCA-COLA COMPANY 

in this cause and in addition thereto, costs ex- 
pended in the United States Circuit Court of Ap- 
peals which latter costs are taxed at $377.66, 
which were the costs awarded to complainant 
upon the first appeal of this cause, and all of which 
said costs have been paid by the defendant Gay- 
Ola Co., wherefore the said judgment for costs 
is satisfied and no execution will issue thereon/' 
It is further ordered and adjudged that each of the 
parties hereto will pay all of their own costs expended 
in the United States Circuit Court of Appeals in their 
several respective appeals herein, which costs are 
taxed as to the complainant Coca-Cola Company in 
the sum of $ , and which costs are taxed as to 
the defendant in the sum of $ , and for the costs 
so taxed execution may issue as at law. 

"It is further ordered, adjudged and decreed 
that this cause be and it is hereby referred to 
Frank S. Elgin, of Memphis, Tennessee, as 
Special Master, who will ascertain from the proof 
now on file and any that may be submitted: 

"1st. What if any profits have been received 
by the defendant's unlawful, unfair, inequitable 
and fraudulent conduct and competition. 

"2nd. What damages, if any, complainant suf- 
fered by reason of defendant's unlawful, unfair, 
inequitable and fraudulent conduct and competi- 
tion. 

' ' 3rd. The amount of goods or product sold by 
defendant The Gay-Ola Company from the date 
of its commencement in business to this date. 

"4th.. What profits, if any, were derived by de- 
fendant The Gay-Ola Company, as a result of sales 
made by it and found by the Master in accordance 
with the preceding direction." 

It is further ordered, adjudged and decreed that the 
Master proceed to report his findings to this Court. 

Enter this : 

McCALL, Judge. 

55 



UNITED STATES OF AMERICA, 
SIXTH JUDICIAL CIRCUIT 



DISTRICT COURT OF THE UNITED STATES, 
WESTERN DISTRICT OF TENNESSEE 



I, J. SAM JOHNSON, Clerk of the District Court of 
the United States, for the Western District of Ten- 
nessee, do hereby certify that the papers hereto at- 
tached, are a full, true, perfect and correct copy of the 
original decree on mandate, entered July 4, 1914, as 
the same now appears of record and upon the files in 
my offices, in the following cause, to wit : 

THE COCA-COLA COMPANY,) 

v. >No. 662. 

THE GAY-OLA COMPANY. ) 

In Testimony Whereof, I have hereunto written my 
name and affixed the Seal of said Court, at my office 
in the City of Memphis, Tennessee, this 25th day of 
August, A. D. 1922, and of the Independence of the 
United States, the 147th Year. 

J. SAM JOHNSON, Clerk. 

AUTHENTICATION. 

I, J. W. Ross, a Judge of said Court, do hereby 
certify that J. SAM JOHNSON, whose genuine signature 
appears to the foregoing certificate is, and was at the 
date of the same, Clerk of said Court and that his at- 
testation is in due form. 

J. W. Ross, 

Judge of the District Court of 
the United States for the 
District aforesaid. 

50 



IN THE CIRCUIT COURT 



OF APPEALS 



SIXTH CIRCUI 




215 FEDERAL 527 



Nos. 2439, 2440 JUNE 13, 1914 



NASHVILLE SYRUP COMPANY, 

v. 
THE COCA-COLA COMPANY. 



THE COCA-COLA COMPANY, 

v. 
NASHVILLE SYRUP COMPANY. 



Suit in Equity by The Coca-Cola Company against 

the Nashville Syrup Company. From the 

decree both parties appeal. 



J. B. SIZER, Chattanooga, Tennessee, 
HAROLD HIRSCH, Atlanta, Georgia, 
For Plaintiff. 

PERKINS BAXTER, Nashville, Tennessee, 
B. W. BRADFORD, Washington, D. C., 
For Defendant. 



57 



NASHVILLE SYRUP COMPANY 



IN THE CIRCUIT COURT OF APPEALS, 
SIXTH CIRCUIT 

215 FEDERAL 527 



Nos. 2439, 2440 JUNE 13, 1914 



NASHVILLE SYRUP COMPANY, 

v. 
THE COCA-COLA COMPANY. 



THE COCA-COLA COMPANY, 

v. 
NASHVILLE SYRUP COMPANY. 



1. TRADE-MARKS AND TRADE-NAMES (Sec. 45) DE- 
SCRIPTIVE WORDS EFFECT OF REGISTRATION. 

The federal trade-mark statute does not directly operate to 
grant a monopoly to one who rightfully registers a descriptive or 
geographical word under the 10-year clause of Act Feb. 20, 1905, 
c. 592 (U. S. Comp. St. Supp. 1911. p. 1401), Sec. 5. but removes 
from words which had been exclusively used as a mark in inter- 
state commerce for 10 years the bar or disability caused by their 
descriptive or geographical character, and makes them, after their 
registration, subject to exclusive appropriation with the same 
effect, in the main, as if the disability had never existed. 

2. TRADE-MARKS AND TRADE-NAMES (Sec. 59) IN- 
FRINGEMENT "COCA-COLA." 

The name Coca-Cola duly registered as a trade-mark for a syrup 
used as a basis for carbonated drinks, and which had by more 
then 10 years exclusive use prior to 1905 become the distinctive 
name under which complainants' product was known, HELD 
infrirged by the name "Fletcher's Coca-Cola" used on a similar 
product. 

58 



v. THE COCA-COLA COMPANY 

3. TRADE-MARKS AND TRADE-NAMES (Sec. 22) VA- 
LIDITY DECEPTIVE NAMES. 

Whether a claimed trade-mark is so descriptive of something 
else as to be deceptive must be decided as of the time of its 
adoption. 

4. TRADE-MARKS AND TRADE-NAMES (Sec. 22) VA- 
LIDITY DECEPTIVE NAMES. 

The name "Coca-Cola" as applied to a flavoring syrup for car- 
bonated drinks, containing about 2 per cent of a compound made 
from coca leaves and cola nuts, HELD not so substantially and 
really deceptive as to invalidate it as a trade-mark under the 10- 
year clause of the act of 1905. 

5. TRADE-MARKS AND TRADE-NAMES (Sec. 59) IN- 
FRINGEMENT. 

Where a name has been exclusively used to designate the prod- 
uct of a particular manufacturer for so long a time as to have 
become identified with it in the minds of purchasers and to be a 
valid trade-mark it cannot be used by another on a similar prod- 
uct merely because ingredients are used in such other product 
which make the name in a sense descriptive of it. 

6. TRADE-MARKS AND TRADE-NAMES (Sec. 98) SUIT 
FOR INFRINGEMENT ACCOUNTING FOR PROFITS. 

On an accounting for profits for infringement of a trade-mark 
by a 'ftona fide corporation, defendant is entitled to credit for the 
salary paid its manager, who was a minority stockholder only, 
as a part of its operating expenses. 

7. APPEAL AND ERROR (Sec. 339) TIME FOR APPEAL 
SUIT FOR INFRINGEMENT OF TRADE-MARK. 

Where an interlocutory decree in favor of complainant was 
entered in a suit for infringement of a trade-mark, directing a 
reference for an accounting, a subsequent decree entered on the 
report of the master, whether or not it refers to the interlocu- 
tory decree in terms, has the effect of reaffirming it and render- 
ing it final, and an appeal may be taken by the defendant at any 
time within the statutory time after entry of such final decree on 
which decision embodied in the interlocutory decree may be 
reviewed. The fact that the appeal purports to be from the inter- 
locutory decree, and that steps were taken therefor before such 
decree became final, which were perfected afterwards, is not a 
fatal irregularity. 

Appeals from the District Court of the United States 
for the Middle District of Tennessee. EDWARD T. 
SANFOBD, Judge. 

59 



NASHVILLE SYRUP COMPANY 

Suit in equity by The Coca-Cola Company against the 
Nashville Syrup Company. From the decree both 
parties appeal. Affirmed. 

(For opinion below, see 200 Fed. 157.) 

Coca is a South American shrub, from the leaves 
of which cocaine, among other substances, is obtained ; 
the cola tree grows in Africa, and from its nuts caf- 
feine may be extracted. The use of these leaves and 
these nuts by the natives in their respective countries, 
and for the supposed stimulating qualities, had long 
been known in this country, and before 1887 extracts 
respectively from coca leaves and from cola nuts had 
found a place in the pharmacopoeia. There was little 
popular knowledge concerning tl^m. The extracts 
were used only by dru-uists in compounding med- 
icine. In 1887 Pemberton, an Atlanta druggist, regis- 
tered in the Patent Office a label for what he called 
"Coca-Cola Syrup and Extract." The plaintiff be- 
low, the Coca-Cola Company, \vas organized as a cor- 
poration in 1892, and acquired Pemberton 's formula 
and label. Since that time, it has continuously manu- 
factured and sold a syrup under the name, "Coca- 
Cola," and, used as a basis for carbonated drinks, the 
syrup, under this name, has had a large sale in all 
parts of the country. In 1893 the Coca-Cola Com- 
pany (herein called plaintiff) registered the name 
"Coca-Cola" as a trade-mark, and again in October 
of 1905, and pursuant to the act of February 20, 1905, 
the name was registered by plaintiff as a trade-mark 
under the 10-year proviso of that act. Plaintiff en- 
joyed the exclusive use of the name from 1892 until 
1910. In that year, J. D. Fletcher, now the active man- 
ager of the Nashville Syrup Company (herein called 
defendant), became interested with others in the 
manufacture of a somewhat similar syrup being sold 
under the name "Murfe's Cola." Later in that year 
they changed the name of their product to "Murfe's 

60 



v. THE COCA-COLA COMPANY 

Coca-Cola," and shortly afterwards, Mr. Fletcher be- 
came sole owner of the business, and the product was 
named " Fletcher's Coca-Cola," and has been sold by 
him and his successor, the Nashville Syrup Company, 
under that name. The bill of complaint herein claimed 
for plaintiff a common-law trade-mark in the name, 
and also claimed trade-mark rights by virtue of the 
registration under the act of 1905. It also alleged 
that the words of the name, if they ever indicated any- 
thing other than plaintiff's product, had acquired a 
secondary meaning limited to that article, and that 
defendant was engaged in unfair competition. Juris- 
diction sufficiently depended on diverse citizenship. 

On the usual so-called final hearing the District 
Judge concluded that plaintiff had a valid statutory 
trade-mark under the act of 1905, and that it had been 
infringed, and accordingly ordered an injunction and 
a reference to ascertain the damages (200 Fed. 153, 
157). The master reported his finding of damages, but 
defendant's exception was sustained and a decree was 
entered finding no damages. The defendant appealed 
from the decree for injunction, and plaintiff appealed 
because it failed to recover damages. 

J. B. Sizer, of Chattanooga, Tenn., and Harold 
HIT sell, of Atlanta, Ga., for plaintiff. 

Perkins Baxter, of Nashville, Tenn., and D. W. 
Bradford, of Washington, D. C., for defendant. 

Before WASHINGTON, KNAPPEN, and DENISON, Circuit 
Judges. 

DENISON, Circuit Judge (after stating the facts as 
above) : 

(1) 1. Passing, for the present, without deciding, 
the question whether the name Coca-Cola was, in 
1887 or in 1892, so far descriptive of the article as to 
be incapable of appropriation as a common-law trade- 
mark, and passing, also without deciding, the question 

61 



NASHVILLE SYRUP COMPANY 

whether the name, if primarily descriptive, had, be- 
fore suit was brought in 1910, acquired a secondary 
meaning, we come to the effect of the registration 
under the act of 1905. The broad questions on which 
defendant relied concerning the effect of this act have 
been set at rest against defendant's contention, by the 
decision of the Supreme Court in Davids Co. v. Davids, 
233 U. S. 461, 34 Sup. Ct. 648, 58 L. Ed. 1046. In view 
of the settled rule that the federal trade-mark statute 
does not create any exclusive right, as the patent 
statute does, but only recognizes a right which has 
been already acquired by exclusive appropriation, and 
then furnishes evidence and remedies (Trade-Mark 
Cases, 100 U. S. 82, 25 L. Ed. 550; Hopkins on Trade- 
Marks, Sec. 27; Hesseltine's Law of Trade-Marks, 
p. 139), we do not regard the decision in the Davids 
Case as holding that the statute directly operates to 
grant a monopoly to one who rightfully registers 
under the ten-year clause a descriptive or geograph- 
ical word. We take it as holding that the statute was 
not intended to permit, under this clause, an ineffect- 
ive and useless registration, and so, in effect, hold- 
ing that the statute removed from descriptive words 
which had been exclusively used as a mark in inter- 
state commerce for 10 years the bar or disability 
caused by their descriptive character, and made them, 
after that probation, subject to exclusive appropria- 
tion with the same effect, in the main, as if the dis- 
ability had never existed. Since the statute relates 
primarily to registration, it may well be that the dis- 
ability continues until registration, somewhat retro- 
actively, removes it; that is not now important. 
Neither is it important at present to know the exact 
distinctions between the manufacturer's rights for- 
merly existing under the secondary meaning theory 
and those now existing under the statute. Since it ap- 
pears that plaintiff had enjoyed the exclusive use of 
the name ''Coca-Cola" for more than 10 years before 
1905, and that there was due registration under the 
act of 1905, it follows that plaintiff's exclusive rights 

62 



v. THE COCA-COLA COMPANY 

as a trade-mark owner and as defined in the Davids 
Case, are established. 

Whether any exclusive rights which, in an essen- 
tial part, depend on this statute can extend to the 
regulation of strictly intrastate commerce, or whether 
the effect must be limited to the field where Congress 
had power to act, is an interesting question, which is 
only suggested, but not presented, by this record. 

It is not raised by assignment of error by the briefs. 
We, therefore, give it no consideration. 

(2) 2. We think the infringement sufficiently ap- 
pears. Here, also, the Davids case is instructive. The 
specific form in which the mark was registered in that 
case was not considered important; and so it cannot 
be here controlling, whether the words " Coca-Cola" 
are with or without a hyphen, or are in script or in 
plain letters. Neither is infringement avoided be- 
cause defendant marks its bottles "Fletcher's Coca- 
Cola." Not only does this qualification in the name 
fail effectively to reach the ultimate consumer (Coca- 
Cola v. Gay-Ola Co., 200 Fed. 720, 119 C. C. A. 164, 
and Fed. 942, 128 C. C. A. 440), but a trade-mark right 
which could be so avoided would be of no value. In- 
deed, even under the secondary meaning theory, and 
without the aid of the statute, such marking would not 
sufficiently differentiate. Merriam v. Ogilvie, 170 Fed. 
167, 95 C. C. A. 423, and cases cited on page 168; 
Davids Co. v. Davids, supra. A case may arise where 
the words registered under the statute are so wholly 
and so merely descriptive and so unfit to carry an 
arbitrary meaning indicating registrant's product 
only that the use of the words coupled with de- 
fendant's name as manufacturer would not infringe; 
but this is not that case. 

The words here involved were, if fairly "descrip- 
tive" at all, not purely descriptive, and by 10 years' 
exclusive use they had become the distinctive appella- 
tion of plaintiff's product. To permit defendant to 
use them in connection with his own name is not 
to avoid or mitigate the wrong, but is rather an 

63 



NASHVILLE SYRUP COMPANY 

aggravation, because of the false implication that 
plaintiff has parted with the exclusive right. Jacobs v. 
Beecham, 221 U. S. 263, 272, 31 Sup. Ct. 555, 55 L. 
Ed. 729. 

3. There remains the question whether the mark is 
deceptive. Defendant does not expressly make this 
point, but it is so bound up with the questions of how 
merely descriptive the words are, and whether the 
same words as used by defendant are only the right- 
ful name of its product, that it must be decided. The 
act of 1905 makes no exception in this respect, but 
we assume that if the registered words clearly carried 
deception, and if their use really represented to the 
purchasers that the article was something essentially 
different from the thing which they actually received, 
the courts would not enforce any exclusive rights 
under such registration, both because plaintiff would 
come into court with uncloan hands (California Co. v. 
Stearns, 73 Fed. 812, 816, 20 C. C. A. 22, 33 L. R. A. 
56), and because such words could not be within the 
fair contemplation of the act, when it refers to "any 
mark * * * which was in actual and exclusive use as a 
trade-mark," etc. The inquiry whether the mark is 
deceptive and misleading is not dissimilar to the ques- 
tion whether the same words constitute the distinct- 
ive riame of another article, which question we have 
considered in our opinion in United States v. Coca- 
Cola Co., 215 Fed. 535, this day filed; but there may 
be some such special force in the words "distinctive 
name" found in the Pure Food Law that a mark 
might be thought deceptive or misleading even though 
it was not the "distinctive name of another article." 
Hence, the point requires, in this case, further con- 
sideration. 

The argument is that the use of the name, "Coca- 
Cola," implies to the public that the syrup is com- 
posed mainly or in essential part of the coca leaves 
and the cola nut; and that this is not true. The fact 
is that one of the elements in the composition of the 
syrup is itself a compound made from coca leaves and 

64 



v. THE COCA-COLA COMPANY 

cola nuts. This element becomes a flavor for the com- 
plete syrup, and is said to impart to it aroma and 
taste characteristic of both. This flavoring element is 
not in large quantity (less than 2 per cent), but it is 
impossible to say that it does not have appreciable ef- 
fect upon the compound. The question then is whether 
the use of the words is a representation to the public 
that the syrup contains any more of coca or of cola 
than it really does contain. 

(3) We think it clear that whether the claimed 
trade-mark is so descriptive of something else as to be 
deceptive must be decided at the time of adoption. It 
cannot be that rights once lawfully acquired by ex- 
clusive appropriation can be defeated by subsequent 
progress of public knowledge regarding some other 
substance of similar name. It is undisputed that dur- 
ing the period shortly after 1892, while this name was 
coming into public knowledge in connection with 
plaintiff's product, little or nothing was popularly 
known about either coca leaves or cola nuts, although 
existing technical or cyclopedic publications gave in- 
formation. It is not important whether Pemberton's 
original form, "Coca-Cola Syrup and Extract/ ' was 
so descriptive as to be deceptive if applied to a com- 
pound not composed mainly of these ingredients. The 
name in which trade-mark rights have been acquired 
is the compound name "Coca-Cola," and this name, 
may not, for all purposes, be the same as if it was 
"Extract of Coca and Cola. " 

Neither of these words alone had any absolute com- 
plete meaning, but when the words were put together 
to make the compound term, the ambiguity of mean- 
ing was intensified. It coca was spoken of, the refer- 
ence might be to the leaves, or to a decoction or to 
an extract; "cola" might refer to the nuts or to a 
powder or to a paste or a fluid; and so, when the 
public first saw the name "Coca-Cola," it could not 
know, as we said in the accompanying case, whether 
the substance was medicine, food, or drink, or whether 
it was intended to swallow, smoke, or chew. One who 

65 



NASHVILLE SYRUP COMPANY 

had all the existing available information could only 
infer that the new substance, whatever it was, had 
some connection with these two foreign things. The 
case would be somewhat different if each of the two 
named elements w r as itself definite and certain, but 
neither is. To illustrate by more common substances : 
Sage is a shrub, used in various ways; the almond is 
a nut, eaten raw or prepared in numerous methods. 
The compound name " Sage- Almond, " as a label, 
would convey a very indefinite idea, if any, as to what 
would be found when the package was opened; and, if 
we assume that "Sage- Almond" turned out to be a 
drink in connection with which sage leaves and al- 
monds had been used, we have, in this illustration, a 
close analogy to Coca-Cola ; yet this name, applied to 
a soda fountain beverage, would not deceive the public 
into supposing that it contained all jtlie virtues of sage 
tea and all of the nourishment of the almond nut 
meats. Such an article could honestly enough carry 
the supposed name "Sage-Almond," and after 20 
years' exclusive use of the name it would not still be 
common property. A newcomer might rightfully sell 
(e. g.) "Sage Tea with Almond Flavor"; he might 
not take the peculiar, precise, and really arbitrary 
compound name. 

Plaintiff's counsel say, and so far as we can see 
accurately say: 

"The use of a compound name does not neces- 
sarily indicate that the article to which the name 
is applied contains the substances whose names 
make up the compound. Thus, soda water con- 
tains no soda; the butternut contains no butter; 
cream of tartar contains no cream; nor milk of 
lime any milk. Grape fruit is not the fruit of the 
grape; nor is bread fruit the fruit of bread; the 
pineapple is foreign to both the pine and the 
apple; and the manufactured food known as 
Grape Nuts contains neither grapes nor nuts." 
Many names which, as to the claim that they are so 
descriptive as to be deceptive in the manner in which 

on 



v. THE COCA-COLA COMPANY 



they are used, must be classified with Coca-Cola, have 
been sustained as proper trade-marks. The Court of 
Appeals of New York thought that * ' Sliced Animals ' ' 
was not merely descriptive, and was capable of ex- 
clusive appropriation. Selchow v. Baker, 93 N. Y. 
59, 45 Am. Rep. 169. The same court considered 
"Bromo Caffeine." Defendant in that case insisted 
that he could call his product " Bromo Caffeine" 
because it was, and because plaintiff could not adopt, 
as a trade-mark, the words so indicating the com- 
position of the article. It was decided that while the 
name indicated a compound caffeine with some bro- 
mide, this indication was too vague and indefinite to 
put the name beyond the forbidden limit. The dis- 
cussion by Judge Peckham is thoroughly applicable to 
the instant controversy. Keasbey v. Bromo, etc., 
Wks., 142 N. Y. 467, 474, 476, 37 N. E. 476, 37 N. E. 
476, 40 Am. St. Rep. 623. A very similar case is that 
concerning "Lacto Bacilline," application of La 
Societe Ferment, 81 L. J. R. 724. In Ludington v. 
Leonard, 127 Fed. 155, 62 C. C. A. 269, it was specially 
urged upon the Circuit Court of Appeals of the Second 
Circuit that the name "carroms," as applied to a 
game resembling billiards was either too accurately 
descriptive or too deceptive and misleading to be ex- 
clusively used even under the secondary meaning 
theory; but the contention was not upheld. Perhaps 
the controlling distinction cannot be better expressed 
than was done by Judge Showalter when he said 
(American Fiber Chamois Co. v. De Lee [C. C.] 67 
Fed. 329, 331) : 

"If said words, as here combined, have any 
sense, as descriptive of the class of goods in ques- 
tion, it is not so pronounced, obvious, and usual 
as to make said combined words, unfit, inappro- 
priate or misleading, as a name, sign or mark of 
origin of complainant's goods." 
Cases like Standard Co. v. Trinidad Co., 220 U. S. 
446, 31 Sup. Ct. 456, 55 L. Ed. 536, are sharply dis- 
tinguishable. In that case it was found as a fact that 

67 



NASHVILLE SYRUP COMPANY 

the word involved, "Rubberoid," was in common dic- 
tionary use as an adjective, so that it was merely de- 
scriptive. There was no room for it to carry any 
arbitrary character in addition. This feature, with 
its attendant distinction, is typical of the cases relied 
upon by appellant. When it cannot be said that the 
words "Coca-Cola," from lS<)f) to 190,"), gave to the 
public "reason, accurate, and tolerably distinct knowl- 
edge as to what the ingredients were," these cases re- 
lied on by appellant lose their pertinence. 

(4) We conclude that the name Coca-Cola as ap- 
plied to plaintiff's product, while undoubtedly sug- 
gestive, is not so substantially and really deceptive as 
to invalidate the registered mark. 

(5) Closely connected with what has been said, but 
separately urged by defendant, is the claim that be- 
cause in compounding its product ^defendant has used 
coca leaves in considerable quantity and has used real 
cola nuts to furnish the caffeine, it must be permitted 
to call its article "Coca-Cola." This is really another 
aspect of the matter already decided. If the name is 
not so substantially and definitely descriptive (rather 
than suggestive) as to be deceitful if employed where 
the supposed description is not true, it follows that 
the name is not so merely descriptive that its use re- 
mains of common right after public acquiescence for 
20 years in plaintiff's exclusive appropriation. Anal- 
ogy is found in the illustration above quoted from 
counsel. Assuming that "Grape Nuts" had been ex- 
clusively used for a long period as the distinct name 
of a particular maker's compound food, could a new- 
comer rightfully take away a part of the established 
trade by using the same name for his new compound, 
just because it contained some nuts and was flavored 
with grape juice? To us a negative answer seems 
imperative, and no less so in the instant case. 

(6) 5. On the accounting before the master, plain- 
tiff did not seek damages as such, but asked an award 
of the profits made by defendant. No question arises 
except that presented by the fact that Mr. Fletcher, 

08 



v. THE COCA-COLA COMPANY 

the general manager of defendant corporation, re- 
ceived during the infringing period a salary of $2,700. 
If defendant was entitled to credit for this salary as 
a part of its operating expenses, there were no profits ; 
if the item was an improper credit, there was a bal- 
ance of profit to be recovered. Without question, the 
defendant was an actual corporation organized in the 
regular way for business purposes. It succeeded to 
Mr. Fletcher's private business. He actively caused 
it to be organized, and he became and continued presi- 
dent and general manager. Two-thirds of the capital 
was contributed by others, and Mr. Fletcher did not 
have the control of the corporation, except by suffer- 
ance of the majority of the stockholders. There is no 
claim that the corporation was a mere sham or subter- 
fuge brought into existence to cover up his individual 
activities. Under these circumstances, and when the 
only question is the amount of profits which the cor- 
poration actually made, justice to the majority stock- 
holders, if no other reason, requires that his fair and 
reasonable salary be treated like any other disburse- 
ment. 

The District Judge was right in concluding that 
there was no profit. 

(7) 6. The plaintiff moved to dismiss defendant's 
appeal from the interlocutory decree for injunction, 
because the appeal was not taken within 60 days ; and, 
as this motion raises a question of our jurisdiction, 
it must be considered. The interlocutory decree award- 
ing injunction and making a reference to take an ac- 
count of damages was entered July 29, 1912. The 
master's report was filed October 8th; defendant ex- 
cepted, and the final order of the court on the excep- 
tions was dated November 25th. This order made no 
reference in terms to the order of July 29th, and was, 
in terms, confined to the sustaining of one exception, 
the over-ruling of another, an adjudication that the 
plaintiff had failed to establish any damages, and a 
disposition of the costs. November llth, the defend- 
ant had claimed and had been allowed "an appeal 

69 



NASHVILLE SYRUP COMPANY 

from the decree of July 29th,'.' and had assigned 
errors thereon, but the citation was not issued nor the 
bond on appeal approved until November 26th. Clearly 
the decree of July 29th did not become final until the 
order of November 25th. This last order might well 
have repeated, in terms or by reference, the provi- 
sions of the order of July 29th, so that there would 
have been one complete, final decree, and we think 
this would have been according to the most careful 
practice; but the order of November 25th necessarily 
has this effect, and operates to re-declare the adjudi- 
cations which, up to that time, had been interlocutory 
and within the control of the court, and which then, 
for the first time, became final. The defendant then 
had six months within which to appeal from any part 
of this consolidated final decree. Loveland's Appel 
late Jurisdiction, 467, 468; Grant Co. v. Laird Co., 
212 U. S. 445, 29 Sup. Ct. 332, 53* L. Ed. 591. Inas- 
much as the appeal which defendant did take was not 
perfected until after this final decree had been en- 
tered, we think it may properly be treated as having 
been taken from that decree. No prejudicial irregu- 
larity comes from the fact that July 29th was named 
as the date of the decree from which appeal was taken 
and to which error was assigned. It would have been 
absolutely accurate to appeal ''from the decree of 
July 29th as re-entered on November 25th," and this 
is the substantial effect of what was done. The same 
result is reached by considering that the time for ap- 
peal from the decree of July 29th (under section 11 
of the Circuit Court of Appeals Act (Act March 3, 
1891, c. 517, 26 Stat. 829; U. S. Comp. St. 1901, p. 
552), as distinguished from one under section 129 of 
the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 
1134; U. S. Comp. St. Supp. 1911, p. 194) did not 
begin to run until November 25th. That the appeal 
w r as prayed and allowed prematurely and before the 
effective entry of the decree appealed from is not fatal 
irregularity. For this purpose, these preliminary 
steps may be treated as speaking as of the day when 

70 



v. THE COCA-COLA COMPANY 

they became fully effective by the perfecting of the 
appeal. The motion to dismiss must therefore be 
denied. 

Upon both appeals, the judgment below is affirmed. 



7i 



THE COCA-COLA COMPANY 



UNITED STATES CIRCUIT COURT 

OF APPEALS, 
EIGHTH CIRCUIT 

238 FEDERAL 513 



No. 4605 DECEMBER TERM, 1916 



THE COCA-COLA COMPANY, Appellant, 

v. 

CHARLES G. BENNETT and WILLIAM B. BEN- 
NETT, Co-Partners doing business under the 
name of BENNETT MINERAL & DISTILLED 
WATER COMPANY, Appellees. 



1. TRADE-MARKS AND TRADE-NAMES, K. N. 68 RIGHT 
OF OWNER OF TRADE-MARK UNAUTHORIZED 
BOTTLING OF GOODS. 

A manufacturer of a syrup used with a carbonated water to 
produce a beverage which was sold either at soda fountains or 
in bottles, whose registered trade-mark covered both the syrup 
and the beverage, but who bottled none of the beverage, having 
contracted with others therefor under contracts requiring the 
purchase of the syrup from the manufacturer and its preparation 
under regulations to protect the quality, can prevent one who 
has not the manufacturer's consent from bottling the syrup with 
carbonated water, even in accordance with the regulations, and 
selling it under the trade-mark, since otherwise the manufacturer 
would have no means for protecting the quality of the goods sold 
under his trade-mark. 

2. TRADE-MARKS AND TRADE-NAMES, K. N. 68 
RIGHTS OF OWNER SALES IN BULK. 

When a manufacturer of an article of food or drink sells it in 
bulk, and also puts it up in bottles bearing a distinctive trade- 
mark, the purchaser of the article in bulk cannot legally bottle 
it and affix the manufacturer's label to the bottle. 

72 



v. CHARLES G. BENNETT, etc. 



3. MONOPOLIES, K. N. 21 VIOLATION OF ANTI- 
TRUST ACT RIGHTS OF OWNER OF TRADE-MARK. 

The invalidity, under Sherman Anti-Trust Act July 2, 1890, 
c. 647, 26 Stat. 209 (Comp. St. 1913, Sees. 8820-8830), of con- 
tracts by which the owner of a trade-mark covering both a syrup 
and the beverage made therefrom granted the exclusive right to 
bottle the beverage, does not affect the owner's right to prevent 
the sale of the beverage under the trade-mark by one who bottled 
it without consent. 

Appeal from the District Court of the United States 
for the District of Kansas. JOHN C. POLLOCK, 
Judge. 

Suit by The Coca-Cola Company against Charles G. 
Bennett and another, co-partners doing business 
as Bennett Mineral & Distilled Water Company. 
Judgment for the defendants (225 F. 429), and 
plaintiff appeals. Reversed and remanded, with 
instructions to grant the injunction prayed for. 

Frank F. Reed and Edward 8. Rogers, of Chicago, 
Illinois (Candler, Thomson & Hirsch, Atlanta, 
Georgia; Holmes, Yankey & Holmes, Wichita, Kan- 
sas, Harold Hirsch, Atlanta, Georgia, and Charles G. 
Yankey, Wichita, Kansas, on the brief), for appellant. 

C. M. Williams, Hutchinson, Kansas, for appellees. 

Before SANBOKN, ADAMS, and CARLAND, Circuit 
Judges. 

CARLAND, Circuit Judge, delivered the opinion of 
the Court: 

Appellant brought this action against appellees to 
restrain an alleged trade-mark infringement and un- 
fair competition. The trial court upon consideration 
of the pleadings and certain stipulated facts dismissed 
the complaint for want of equity. The facts upon 
which appellant relies for relief are substantially as 
follows : 

73 



THE COCA-COLA COMPANY 



Appellant is a corporation of the State of Georgia, 
with its principal place of business at Atlanta, in said 
State. Appellees are co-partners doing business 
under the firm name of Bennett Mineral & Distilled 
Water Company at Hutchinson, Kansas. Appellant 
is the owner of the trade-mark Coca-Cola and the busi- 
ness of the manufacture and sale of two kinds of 
syrup in connection therewith. The trade-mark covers 
both the syrups and beverages made therefrom. It 
was registered in the Patent Office of the United 
States January 31, 1893, and again October 31, 1905. 
The name Coca-Cola has been exclusively used by ap- 
pellant and its predecessors since on or about the 
year 1886, for the purpose of identifying the syrups 
manufactured by it and its predecessors as their own 
product and to distinguish it from all other articles 
marketed and sold by others. TJhe name Coca-Cola 
has been used by said appellant exclusively in con- 
nection with its product by attaching and applying 
said name to all barrels, kegs, jugs, bottles and other 
receptacles containing said product and also by plac- 
ing said name on labels in connection therewith. 

Great care, skill and judgment has at all times been 
used by appellant and its predecessors in the manu- 
facture of said product, Coca-Cola, in order to protect 
it from contamination and impurities and in the bar- 
reling and putting up of said product so that the 
product should reach the consumer in a clean and 
wholesome condition and great pains have also been 
taken by appellant that the bottles and other recep- 
tacles in which the product has been placed are free 
from dirt or objectionable matter, and great amounts 
of time and labor have been expended by appellant in 
marketing and selling its product under the name 
Coca-Cola throughout the United States and in foreign 
countries. 

Coca-Cola is universally known and large sums 
have been expended in advertising said product. The 
product Coca-Cola is received by the consuming public 
in two ways : over the soda fountain and in bottles. 

74 



v. CHARLES G. BENNETT, etc. 



The syrup as such is not consumed by the public. At 
the soda fountain it is mixed with carbonated water 
and in bottles it is similarly mixed. 

Appellant does not bottle its bottling product itself, 
but its entire bottling product is sold under contract 
to two Tennessee Corporations, viz. : Coca-Cola Bot- 
tling Company and The Coca-Cola Bottling Company, 
which in turn have given the privilege under contract 
to certain other corporations and individuals to bottle 
the syrup made for bottling purposes and to use in 
connection therewith the trade-mark Coca-Cola. 
Among the corporations having the privilege of bot- 
tling is the Western Coca-Cola Bottling Company. 

Any person or corporation receiving authority by 
contract to bottle and sell bottled Coca-Cola in a pre- 
scribed territory agrees to bottle the same in the fol- 
lowing manner : To prepare and put in bottles using 
a crown stopper thereon, a mixture of Coca-Cola syrup 
and of water charged with carbonic acid gas under 
pressure of not less than one atmosphere, said Coca- 
Cola syrup and said water in said mixture to be used 
in proportions of not less than one ounce of Coca-Cola 
syrup to each seven or eight-ounce bottle of carbon- 
ated water making thereof a carbonated drink of the 
strength stated; said person or corporations also 
agree not to add any compound, syrup, color, flavor- 
ing matter, acid, headings, sugar or other sweetener 
or any other preservative of any name or nature or 
any other substance or ingredient whatsoever or any 
water other than pure carbonated water commonly 
called soda water, to the syrup furnished by the 
plaintiff or to the water used for carbonating, and 
also agrees not to use for said Coca-Cola syrup any 
substitute whatever or to make any other drink and 
sell same under the name Coca-Cola, Coca-Cola Bot- 
tling Company and The Coca-Cola Bottling Company 
of Tennessee take the entire output of the product of 
the appellant, manufactured' for bottling purposes. No 
other person, firm or corporation buys or can buy the 
same from the appellant. The appellant is in no way 

75 



THE COCA-COLA COMPANY 



directly or indirectly interested in the two Coca-Cola 
Bottling Companies, above described, or interested in 
any of their profits, but the contract between them pro- 
vides that appellant shall retain control over its trade- 
mark and have the rights of inspection and supervi- 
sion for the purpose of securing the bottling of its 
product according to contract as hereinbefore stated. 

The two bottling companies with the consent of ap- 
pellant have divided the territory described in the con- 
tract between them, and said companies have entered 
into contracts with other companies by which con- 
tracts local bottling companies are given the exclusive 
right within certain restricted territory to bottle and 
sell the bottled product, Coca-Cola. 

The Western Coca-Cola Company, organized under 
the laws of the State of Illinois, is one of these com- 
panies. Its territory embraces several states, includ- 
ing Kansas. The Bottling Companies do not enter 
into a contract with more than one person, firm or 
corporation in the territory allotted to any local bot- 
tler. The contracts between the two Coca-Cola 'Bot- 
tling Companies sometimes referred to as the parent 
companies and the various local bottling com- 
panies are always approved and consented to by 
the appellant. The appellant has no financial interest 
in the local bottling plants. The appellant sells its 
bottling product to the parent bottling companies de- 
scribed and will not accept any order for said product 
except from these two bottling companies, and no 
other person, firm or corporation can buy Coca-Cola 
syrup from appellant for bottling purposes than the 
companies above described. The local bottling com- 
panies are supplied direct from the factories of the 
parent bottling companies, but the order comes to the 
appellant through the parent bottling companies and 
these bottling companies pay appellant for the bot- 
tled product so distributed to the local bottling plants. 
The shipments of bottling syrup are made both in in- 
terstate and intrastate commerce aggregating a large 
volume of business. 

76 



v. CHARLES G. BENNETT, etc. 



The defendants are using the trade-mark Coca-Cola 
on a bottled product without the authority or permis- 
sion of appellant. The product so bottled by defend- 
ants is the Coca-Cola syrup as manufactured by ap- 
pellant for bottling purposes bought by the defend- 
ants partly from the Western Coca-Cola Bottling 
Company and partly from vendees of appellant and 
in the open market. The said Coca-Cola syrup is 
mixed by defendants with carbonated water and sold 
as a beverage under the trade-mark Coca-Cola and 
defendants have no contract with or authority from 
the Coca-Cola Bottling Companies or appellant for 
bottling the same and no restriction as to the use of 
said syrup is agreed upon by defendants with the 
jobbers or wholesalers from whom they purchase said 
syrup. All of the Coca-Cola which defendants have 
manufactured and sold has been made from the Coca- 
Cola syrup manufactured and sold by appellant in the 
usual and ordinary way which appellant authorizes 
and permits consumers and patrons to manufacture 
and sell Coca-Cola as a beverage. Paragraph 16 of 
the complaint which is admitted by the answer is as 
follows : 

4 'That by reason of the premises your orator 
is rightfully and equitably entitled to the sole 
and exclusive use of the trade-mark 'Coca-Cola' 
and to protection in the use thereof as applied to 
its products, and in equity and good conscience to 
protection against all manner and form of fraud- 
ulent use and imitation of said trade-mark, and 
that the public generally has at all times acknowl- 
edged and acquiesced in the aforesaid rights of 
your orator and of your orator's predecessors 
aforesaid in and to said trade-mark." 
The question arising on the facts as above stated 
is: Have the defendants without the authority or 
permission of the appellant the right to manufacture 
Coca-Cola as a beverage by mixing the bottling syrup 
of appellant with carbonated water and sell the same 
to the public under the trade-mark Coca-Cola? 

77 



THE COCA-COLA COMPANY 



The trade-mark Coca-Cola covering as it does both 
the bottling syrup and the beverage made therefrom 
by adding carbonated water, entitled the appellant to 
the exclusive right to manufacture and sell its syrup 
and also to make and sell the beverage known as 
Coca-Cola. Certainly if the appellant has the exclu- 
sive right to make and sell under its trade-mark the 
beverage called Coca-Cola, it can grant the right and 
privilege to others to do that which it might do it- 
self, and it necessarily results from this state of the 
case that no person or corporation can manufacture 
the bottled beverage called Coca-Cola and sell the 
same under appellant's trade-mark without its con- 
sent or authority. It is true that the appellant has 
no money directly invested in the business of the bot- 
tling companies, but it is very plain that as the syrup 
manufactured by the appellant is not itself consumed 
by the public as such there could be no sale of the 
syrup unless there was a sale of the beverage made 
therefrom, and so it is apparent that the appellant 
is directly and greatly interested in having its bot- 
tled product delivered to the consuming public under 
such circumstances and in such manner as will pro- 
mote the sale thereof. 

It is also apparent that the only way the appellant 
can secure the right to supervise the manner of the 
bottling of its product is to refuse to grant the priv- 
ilege of bottling except upon condition that certain 
prescribed regulations are complied with. It would, 
therefore, seem to be too plain for argument that both 
under the law of trade-mark and upon sound reason 
defendants in the case at bar may not without the 
consent and authority of the appellant manufacture 
the bottled beverage and sell the same under the ap- 
pellant's trade-mark, Coca-Cola. 

Counsel for the defendants argue that as it appears 
that defendants use the bottling syrup of the appel- 
lants and mix the same with carbonated water in the 
same way that appellant authorizes other persons and 

78 



v. CHARLES G. BENNETT, etc. 



corporations to do, they have the right to manufac- 
ture and sell under the appellant's trade-mark. But 
suppose that other persons and corporations without 
number should be of the same opinion, it would result 
that appellant would have no control over the integrity 
of its trade-mark, which is its guaranty that the bev- 
erage is as represented, and its business might be 
ruined. It is true the defendants might sell the bot- 
tling syrup which they buy under the appellant's 
trade-mark, but since they change the syrup into a bev- 
erage without the permission and authority of appel- 
lant, they have no right to sell the same under ap- 
pellant's trade-mark. The argument advanced is also 
faulty as it would permit persons other than the owner 
of the trade-mark to control its use. 

The law seems to be settled that when a manufac- 
turer of an article of food or drink sells it in bulk and 
also puts it up in bottles the latter bearing a distinctive 
trade-mark, a purchaser of the article in bulk will be 
guilty of unfair competition and be enjoined from bot- 
tling and affixing the manufacturer's distinctive label 
upon the goods bottled by him. 

Coca-Cola Company v. J. GL Butler & Sons, 229 
Fed. 224; Krause v. Peebles Co., 58 Fed. 585, 592; 
People v. Luhre, 105 N. Y. 377 (89 N. E. 171) ; Hen- 
nesy v. White, Cox Manual Trade-Mark Cases 377; 
Brown on .Trade-Marks, Sections 910, 759 and author- 
ities there cited. 

One of the reasons for .this rule is that: "Unless 
the manufacturer can control the bottling he cannot 
guarantee that it is the genuine article prepared by 
him." And as said by Judge TRIEBER in Coca-Cola 
Company v. J. Gr. Butler & Sons, supra, "To this may 
be added that he cannot tell whether it is bottled in 
so careful a manner as essential to the preservation 
of the article and the maintenance of its good reputa- 
tion." 

It would seem that to uphold the contention of 
counsel for the defendants would be to destroy all 

79 



THE COCA-COLA COMPANY 



the value that the appellant's trade-mark has. . It 
would open the door to any person or corporation to 
adulterate the beverage sold as Coca-Cola without any 
right in the appellant to prevent it. "The greatest 
value of a trade-mark is the reputation established 
by the excellence of the article and the knowledge and 
appreciation of that fact by the consuming public. 
An article without any merit can derive no benefit 
from a trade-mark and only a temporary benefit from 
the most extensive advertisement. It is like the value 
of a 'good will' in an established going concern. It 
depends upon the successful operation of the business. 
Without that there is no value to it. Who would pay 
for the good will of a business conducted at a loss!" 
Coca-Cola Company v. Butler & Sons, supra. 

The cases of Kussia Cement Conipany v. Frauenher, 
133 Fed. 518, and Apollinaris Company v. Scherer, 
27 Fed. 18, are cited as sustaining the position of 
counsel for defendants, but an examination of these 
cases shows that in the Cement Case the same cement 
without any addition or subtraction was re-sold under 
the trade-mark name. If the defendants in this case 
had simply re-sold the syrup it would be within the 
reasoning of the case cited, but they did not do that. 
They changed the syrup into a beverage and they say 
that they changed it in the same manner that the ap- 
pellant authorized other persons to do. But the 
trouble with this argument is that it destroys appel- 
lant's exclusive right to its trade-mark and the result- 
ing rights, to say who may use it. 

In the Apollinaris Case the same water without 
subtraction or addition was sold under its true name. 
Without prolonging the discussion further we do not 
think the defendants have the right to manufacture 
and sell Coca-Cola under the trade-mark name of ap- 
pellant without its consent. Counsel for defendants 
further urge that the contracts which appellant has 

80 



v. CHARLES G. BENNETT, etc. 

made with the Tennessee corporations and which the 
Tennessee corporations have made with appellant's 
consent with local persons and corporations are in vio- 
lation of the Sherman Law. 

The trial court seems to have based its ruling in 
dismissing the complaint partly upon this proposition, 
it appearing to that court that this suit was one to 
enforce these contracts. We do not think the validity 
of the contracts are in anywise brought into question 
on this record. The appellant simply claims that the 
defendants have no right to manufacture and sell 
Coca-Cola under appellant's trade-mark without its 
consent and our decision in this case goes no further 
than to hold that the claim of appellant is well 
founded. We do not decide that the whole or any part 
of the contracts made by appellant with the bottling 
companies are valid. The granting of the consent of 
appellant to the defendants to manufacture and sell 
the product Coca-Cola under its trade-mark could be 
manifested without the contracts mentioned in the 
evidence. It will be time enough to decide as to the 
validity of the contracts when a suit arises in which 
their validity is involved, and when some person is 
sued who has a contract. Manifestly, if the consent 
and authority of appellant is necessary in order to 
manufacture and sell Coca-Cola under its trade-mark, 
then appellant has the right to impose any such 
reasonable condition in the granting of such consent 
as will protect the integrity of the trade-mark. 

It results from what we have said that the judg- 
ment dismissing the complaint should be reversed and 
the case remanded with instructions to the trial court 
to grant the injunction prayed for. The question of 
damages was not considered in the lower court and 
that question will be left open to be dealt with as law 
and justice may require. 

ADAMS, Circuit Judge, concurred in the decision of 

81 



THE COCA-COLA COMPANY 



this case, but deceased before the opinion was pre- 
pared. 

Filed December 8, 1916. 
A true copy. 
Attest : 

JOHN D. JORDAN, 
Clerk U. S. Circuit Court of Appeals, 

Eighth Circuit. 



82 



v. CHARLES G. BENNETT, etc. 




THE COCA-COLA COMPANY, Plaintiff, 

v. 

CHAS. G. BENNETT and WILLIAM E. BENNETT, 
Co-Partners doing business under the name of 
BENNETT MINERAL & DISTILLED .WATER 
COMPANY, Defendants. 



FINAL DECREE. 

The mandate of the Circuit Court of Appeals of the 
Eighth Circuit having been received in the above stated 
case, and after a consideration thereof it is ordered, 
adjudged and decreed that the defendants, Chas. G. 
Bennett and William R. Bennett, Co-Partners doing 
business under the name and style of Bennett Mineral 
& Distilled Water Company they and each of them, 
and all their associates, salesmen, servants, clerks, 
agents, workmen, employes, and every person claim- 
ing or holding under or through the said defendants 
or in any way connected with their business, are 
hereby perpetually enjoined and restrained from in 
any way or manner making or selling their product 
in such a way as to pass off the same as and for the 
product of The Coca-Cola Company, and from using 
in any form whatsoever the name "Coca-Cola" as 
applied to any drink, or from using any name suffi- 
ciently similar to the name "Coca-Cola" as applied 
to any drink so as to cause deceit, and from doing any 
acts in any manner or form in the premises as is cal- 
culated to deceive. 

83 



THE COCA-COLA COMPANY 



It is further decreed and adjudged that the Coca- 
Cola Company has the sole and exclusive right to the 
use of the mark or name " Coca-Cola" in connection 
with a drink or beverage, and further, that The Coca- 
Cola Company has the sole and exclusive right to the 
use of the peculiar and individual design or form of 
writing the name " Coca-Cola " as described and set 
out in the petition in the above stated case. 

It is further ordered, adjudged and decreed that 
the said Chas. G. Bennett and Wm. E. Bennett, de- 
liver up to The Coca-Cola Company all labels, boxes, 
advertising matter, stoppers and crowns in their pos- 
session, which bear the name "Coca-Cola" alone, or 
in association with any other words, and also all of 
its product in any form sufficiently similar to the 
product of the Coca-Cola Company to cause deception. 

It is further ordered, adjudged and decreed that 
the plaintiff have judgment against the defendants in 
the sum of One Hundred ($100.00) Dollars for dam- 
ages caused by the acts of defendants complained of 
in the petition, for which amount execution may issue. 

It is further ordered that the defendants, Chas. G. 
Bennett and William R. Bennett pay the costs accrued 
in this case, and that the plaintiff recover of and from 
said Bennett the cost of this suit to be taxed and have 
execution therefor. 

This 16th day of March, 1917. 

(Sd) JOHN C. POLLOCK, 

U. S. District Judge. 



84 




I 




IN THE CIRCUIT COURT 
OF APPEALS 

FOURTH CIRCUIT 



No. 1729 MARCH 3, 1921 



THE COCA-COLA COMPANY, 

v. 
OLD DOMINION BEVERAGE CORPORATION. 



Appeal from the District Court of the United States 
for the Eastern District of Virginia. 



EDWARD S. ROGERS, Chicago, Illinois, 
HAROLD HIRSCH, Atlanta, Georgia, 
(C. V. MEREDITH, of Richmond, Virginia, 
CANDLER, THOMSON & HIRSCH, Atlanta, Georgia, 
FRANK F. REED, Chicago, Illinois, on the brief), 
For Appellant. 

ROBERT E. SCOTT, Richmond, Virginia, 
L. 0. WENDENBTJRG, Richmond, Virginia, 
(T. GRAY HADDON, Richmond, Virginia, on the 
brief), 

For Appellee. 

85 



THE COCA-COLA COMPANY 



IN THE CIRCUIT COURT OF APPEALS, 
FOURTH CIRCUIT 

271 FEDERAL 600 



No. 1729 MARCH 3, 1921 



THE COCA-COLA COMPANY, 

v. 
OLD DOMINION BEVERAGE CORPORATION. 

I 



1. TRADE-MARKS AND TRADE-NAMES 45 DESCRIP- 
TIVENESS IMMATERIAL WHEN REGISTERED 
UNDER 10-YEAR PROVISO. 

It is immaterial that a trade-mark registered under the 10- 
year proviso of the Federal Trade-Mark Law (Comp. St. 9400) 
may once have been descriptive or may still be to some decree. 

2. TRADE-MARKS AND TRADE-NAMES 41 WHEN 
REGISTERED TRADE-MARK AND INFRINGEMENT 
USED IN INTERSTATE COMMERCE, PROTECTION 
OF FEDERAL ACT MAY BE INVOKED. 

\\ here the owner of a registered trade-mark and an infringe- 
ment botli used their marks in interstate as well as intrastate 
commerce, the trade-mark owner may invoke the federal statutes, 
no matter how narrow the construction of the protection that 
they can constitutionally give. 

3. COURTS 292 COMMON-LAW RIGHTS IN TRADE- 
MARK ENFORCEABLE IN FEDERAL COURT WHEN 
DIVERSE CITIZENSHIP AND SUFFICIENT AMOUNT 
IN CONTROVERSY EXISTS. 

Where the parties to a suit for infringement of a trade-mark 
and unfair competition are corporations of different states the 
amount in controversy exceeds $3,000, a United States court may 
enforce plaintiff's common-law rights in its trade-mark and against 
unfair competition. 

80 



v. OLD DOMINION BEVERAGE CQBPORATIQN 

4. TRADE-MARKS AND TRADE-NAMES 79 INJUNC- 
TION, BEING APPROPRIATE RELIEF, JUSTIFIES 
SUING IN EQUITY. 

In a suit for infringement of a trade-mark and unfair compe- 
tition, an injunction is an appropriate part of the relief sought 
and hence the complaint is properly brought on the equity side of 
the court. 

5. TRADE-MARKS AND TRADE-NAMES 53 CANNOT 
BE USED BY ONE MANUFACTURING BEVERAGE 
SIMILAR TO OWNER'S BEVERAGE THOUGH UN- 
PATENTED. 

Though any one, if he can, may manufacture a beverage similar 
to an unpatented beverage sold under a trade-name, and claim 
that it is not only as good as that sold under the trade-name, but 
in fact is the same thing, he cannot, in so doing, use the trade- 
mark to the damage of its owner. 

0. TRADE-MARKS AND TRADE-NAMES 59 DEFEND- 
ANT HELD TO HAVE INFRINGED PLAINTIFF'S 
TRADE-MARK AND BEEN GUILTY OF UNFAIR 
COMPETITION IN SALE OF BEVERAGE UNDER 
SIMILAR NAME. 

Where plaintiff's beverage had been on sale under its trade- 
name, "Coca-Cola," registered as a trade-mark, long before defend- 
ant began business, and its business had grown in great propor- 
tions, defendant, by adoptirg the name "Taka-Kola," uniting the 
words by a hyphen and displaying them in script, as did plaintiff, 
and using a color scheme on the crown corks of its bottles making 
them indistinguishable at a distance of a few feet, was guilty 
of unfair competition and infringement of plaintiff's trade-mark, 
especially where the similarity of names had suggested to 
unscrupulous retailers the mixing of the two products and the sale 
of the mixed products as Coca-Cola. 

Appeal from the District Court of the United States 
for the Eastern District of Virginia, at Eichmond. 
HENRY CLAY MCDOWELL, Judge. 

Suit by the Coca-Cola Company against the Old 
Dominion .Beverage Corporation. From a decree 
dismissing the bill of complaint, plaintiff appeals. 
Reversed and remanded. 

Edward S. Rogers, of Chicago, 111., and Harold 
Hirsch, of Atlanta, Ga. (C. V. Meredith, of Eichmond, 

87 



THE COCA-COLA COMPANY 



Va., Candler, Thomson & Hirsch, of Atlanta, Ga., and 
Frank F. Reed, of Chicago, 111., on the brief), for 
appellant. 

Robert E. Scott and L. 0. Wendenburg, both of 
Richmond, Va. (T. Gray H addon, of Richmond, Va., 
on the brief), for appellee. 

Before KNAPP and WOODS, Circuit Judges, and ROSE, 
District Judge. 

ROSE, District Judge : 

Plaintiff's trade-mark "Coca-Cola" is duly reg- 
istered under the ten-year provision of the federal 
trade-mark law (Comp. St. 9490). It is therefore 
immaterial that it may once have been descriptive or 
that to a degree it may be so still. Thedeus Davids 
Co. v. Davids, 233 U. S. 468. 

The Supreme Court has very recently overruled the 
contention that because of what is said to have been 
or to be its deceptive character plaintiff may not be 
heard to complain of its infringement. Coca-Cola 
Company v. Koke Company (Decided December 6, 
1920). 

The bill in this case charges that defendant has in- 
fringed it by the sale of its wares under the trade- 
mark "Taka-Kola," and has also unfairly competed 
by the use of such words and by the design and orna- 
mentation of its bottles. 

In dismissing the case without opinion the learned 
District Judge of the Western District of Virginia 
sitting by special assignment may have been influenced 
by the decision of the Circuit Court of Appeals for 
the Ninth Circuit of Coca-Cola Co. v. Koke Company, 
255 Fed. 894, since reversed by the Supreme Court in 
the case heretofore cited. 

Plaintiff, from a time long anterior to the use of 
the words "Taka-Kola" by anybody, had actively and 
continuously marketed its wares in the very localities 

88 



v. OLD DOMINION BEVERAGE CORPORATION 

in which defendant has offered its drink for sale. 
Both plaintiff and defendant use their respective 
marks in interstate as well as intrastate commerce, 
so that the former may invoke the Federal Acts no 
matter how narrow may be the construction of the 
protection they constitutionally give. Louis Bergdoll 
Brewing Co. v. Bergdoll Brewing Company, 218 Fed. 
131. 

The parties are corporations of different states and 
the value of the thing in controversy exceeds $3,000.00, 
so that the Courts of the United States may enforce 
the common law rights of the plaintiff as well in its 
trade-mark as against unfair competition. An injunc- 
tion is an appropriate part of the relief for which it 
asks, so that it has properly preferred its complaint 
to the equity side of the Court. 

The beverages upon which the marks are used are 
not only of the same general character, but are in fact 
so similar in taste, color and appearance that it is 
doubtful whether the ordinary purchaser can tell one 
from the other when they come to him unmarked and 
otherwise unidentified. 

When defendant began business the plaintiff's drink 
had been on sale in most parts of the country and cer- 
tainly in Virginia for a quarter of a century or more. 
Its business had grown to great proportions, a result 
due in large if not in largest part to the extensive and 
expensive advertising it has always done, the cost of 
which in recent years has averaged a million or more 
annually. Defendant was promoted by some persons 
who came here from Tennessee, where they or some 
of them had been connected with a concern which, in 
the Patent Office, had had a losing fight with the plain- 
tiff over the right to use the words, "Tenn-Cola," 
Coca Cola Co. v. Tenn-Cola Co. (Patent Office Opposi- 
tion No. 1894). 

Perhaps the geographical proximity of Tennessee 
to Atlanta in which plaintiff's business began, and in 
which it became so visibly and attractively lucrative, 

89 



THE COCA-COLA COMPANY 



explains why this is not the first instance in which 
plaintiff:' has thought itself compelled to complain of 
infringement and of unfair coin petition originating in 
that state. Coca-Cola Company v. Nashville Syrup 
Company, 200 Fed. lf>7, affirmed in 215 Fed. 527> and 
of which Coca-Cola Co. v. Duberstein, 249 Fed. 7(5:!, 
appears to have been an aftermath. Coca-Cola Com- 
pany v. Gay-Ola Company, 200 Fed. 920; Coca-Cola 
Co. v. Tenn-Cola Co., ,s/f/7/. 

In the instant case the defendant's mark "Taka- 
Kola" consists as does kk ( 1 oca-Cola" of two words, 
each of four letters and of two syllables. In each 
phrase a consonant and a vowel alternate, there being 
in each four of the one and four of the other. Plain- 
tiff's a and o each appear twice. Defendant's has 
three a's and one o. The consonant 1 is common to 
both and in each is the seventh letter from the begin- 
ning. Plaintiff's contains three c's, having in every 
instance the hard or k sound. Twice defendant re- 
places the c with a k, and once by a t, the use of which 
last must be relied upon to distinguish the two words, 
for in every other respect they are for all practical 
purposes identical. The two words of plaintiff are 
united by a hyphen, so are those of the defendant. 
The plaintiff displays its in script. The defendant 
has followed suit. The color scheme of the crown 
corks with which each seals its bottles is so nearly the 
same that when they are lying on their sides with the 
tops outward, or are standing upon their bottoms in 
racks or trays, they are at a distance of a few feet 
indistinguishable. It taxes credulity to believe that so 
close a resemblance was accidental. 

There, however, appears to be nothing of substance 
in plaintiff's claim that defendant has imitated its 
distinctive type of bottle. The two designs are not 
enough alike to justify a finding that as to them there 
is unfair competition. 

The defendant, after the manner of others in like 
case, says it has always wanted to sell its drink for 

90 



v. OLD DOMINION BEVERAGE CORPORATION 

what it is, and to that end has done all that in it lies 
to distinguish its product from Coca-Cola. The courts 
have had frequent occasions to note the scant success 
which too often rewards such efforts. 

In this case it is true that the evidence does not 
show that the defendant ever asked anyone to sell its 
product as Coca-Cola. It appears that in Richmond 
at least most purchasers know that Taka-Kola is in a 
way different from Coca-Cola. On the other hand, 
the similarity of names seems to have suggested to 
unscrupulous retailers that they could mix defendant 's 
product with that of plaintiff and sell the compound 
as Coca-Cola, the marked likeness in taste and color 
making such a partial substitution safe and easy. At 
one time when in Richmond the supply of Coca-Cola 
ran short, this fraud appears to have been practiced 
to an appreciable extent. 

The strength of defendant's position, if it has any, 
must lie in the soundness of the contention which it 
sets up implicitly if not explicitly, that as Coca-Cola 
is not patented it has the right to make it if it will 
and can, or may make something as near like it as its 
skill and knowledge will permit ; that having produced 
a beverage which in all substantial respects is almost 
if not quite the same thing, there is no reason why it 
may not tell the public it has done so, and that it 
makes no legal difference whether to give this infor- 
mation it uses many sentences or but one or only two 
short words. It says that while the phrase "Taka- 
Kola" informs possible purchasers that the beverage 
it makes is very much like Coca-Cola, it also gives him 
to understand that it is the product of another con- 
cern. 

The argument is ingenious. It is of course true that 
because plaintiff's drink is not patented anyone who 
knows how can make it without leave or license from 
plaintiff, but also because it never has been patented 
the name which constitutes plaintiff's trade-mark for 
it, may not, without plaintiff's consent, be either used 

91 



THE COCA-COLA COMPANY 



or imitated by another. Buffalo Specialty Co. v. Van 
Cleif, 227 Fed. 391. Hopkins on Trade-Marks, 3rd 
Ed. Sec. 51. 

May defendant employ for the sole purpose of 
bringing its wares speedily and cheaply into notice 
a variant of plaintiff's trade-mark so close as to sug- 
gest the latter to everyone, thereby turning to its own 
profit the reputation which the plaintiff has built up 
through many years of skill and effort, and at the 
cost of millions expended in advertising its goods 
under its mark? It may tell the thirsty that its drink 
is not only as good as Coca-Cola, but that it believes 
it to be in fact the same thing, but can it do so by 
using plaintiff's trade-mark to plaintiff's hurt? Even 
if there is no attempt by defendant to palm off its 
goods as those of plaintiff, does it necessarily follow 
that defendant is not unfairly coihpeting? The right 
to equitable relief is not confined to cases in which 
one man is selling his goods as those of another. In- 
ternational News Service v. Associated Press, 248 
U. S. 215, at 241. What in that case upon a different 
state of facts, was said of the respondent, is appli- 
cable to defendant's conduct here, for it too ''amounts 
to an unauthorized interference with the normal op- 
eration of complainant's legitimate business pre- 
cisely at the point when the profit is to be reaped, in 
order to divert a material portion of the profit from 
those who have earned it to those who have not." 
(Vide supra, page 240.) 

By using the words "Taka-Kola" and by imitating 
the ornamentation of the crowns of plaintiff's bottles, 
defendant has unfairly competed and is still doing so, 
but has it not also infringed upon plaintiff's exclusive 
right to the use of its Federally registered trade- 
mark? A trade-mark is property of a limited and 
qualified kind it is true. It cannot exist apart from 
the business with which it is connected nor in juris- 
diction into which that business has not gone leaving 
on one side the possible effect of State or Federal 

02 



v. OLD DOMINION BEVERAGE CORPORATION 

registration. But it is property still within the some- 
what restricted limits imposed upon its owner's 
rights. It would seem to follow as we think it does 
that it is entitled to protection against the attempt of 
a competitor to use it to push his wares to the pos- 
sible and probable damage of the owner. Plaintiff's 
rights are limited at the most to two words. All the 
rest of infinity is open to defendant. It will be safe 
if it puts behind it the temptation to use in any 
fashion that which belongs to the plaintiff. It has 
not done so voluntarily and compulsion must be ap- 
plied. 

It is unnecessary to say that we are deciding the 
case before us. Here we have found from all the 
facts both infringement of a trade-mark and unfair 
competition. We are not to be understood as inti- 
mating any opinion as to whether plaintiff has or 
has not any exclusive rights in either of the words 
which made up the trade-mark when either is used 
separately from the other, and under circumstances 
in which there is no attempt by a competitor to use 
plaintiff's property to plaintiff's damage. 

Both on the grounds of unfair competition and of 
infringement of a registered trade-mark, defendant 
must be enjoined from the further use in its business 
of the phrase "Taka-Kola" and from continuing its 
unfair competition in the simulation of the ornamenta- 
tion of the crowns of plaintiff's bottles, and must ac- 
count for what it has done. 

It follows that the decree dismissing the bill of com- 
plaint must be reversed and the cause remanded for 
further proceedings in accordance with the conclusions 
herein stated. 

Reversed. 



93 



THE COCA-COLA COMPANY 



IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT 
OF VIRGINIA 



THE COCA-COLA COMPANY, 

Plaint iff, 
v. 

OLD DOMINION BEVERAGE 
CORPORATION, 

Defendant. 



No. 1721). 



DECREE 

Upon the filing of the mandate of the Circuit Court 
of Appeals, and it appearing from the said mandate 
that the Circuit Court of Appeals has reversed with 
costs the decree of this Court entered herein on the 
27th day of December, 1918, and has remanded this 
cause to this court with directions, and it appearing 
further that, pending the proceeding in the Circuit 
Court of Appeals, The Coca-Cola Company, a Dela- 
ware corporation, succeeded to the rights of the orig- 
inal plaintiff herein, The Coca-Cola Company, a 
Georgia corporation, and that said The Coca-Cola 
Company, of Delaware, has been duly substituted as 
plaintiff herein; and it appearing further that the 
Supreme Court of the United States, on June 6, 1921, 
denied defendant's application for a writ of cer- 
tiorari to review the decree of the Circuit Court of Ap- 
peals herein; now, in conformity with the mandate 
of the Circuit Court of Appeals, it is Ordered, Ad- 
judged and Decreed as follows : 

1. That the Court has jurisdiction of the subject 
matter and of the parties to this suit. 

94 



v. OLD DOMINION BEVERAGE CORPORATION 

2. That the word Coca-Cola is a valid trade-mark 
of which plaintiff is the sole owner. 

3. That plaintiff alone, is entitled to use the trade- 
mark Coca-Cola and that its goods alone, can lawfully 
be sold under that name. 

4. That plaintiff being the owner of the trade-mark 
Coca-Cola, duly registered its said trade-mark under 
and in conformity with the Act of Congress approved 
March 3, 1881, entitled: "An Act to authorize the 
registration of Trade-marks and to protect the same," 
and under the Act of Congress of February 20, 1905, 
entitled: "An Act to authorize the registration of 
Trade-marks used in commerce with foreign nations 
or among the several states or with Indian tribes and 
to protect the same," that said registrations num- 
bered 22,406 and 47,189 respectively, are valid and 
subsisting, and are the sole property of the plaintiff, 
and that the plaintiff is entitled to the rights and rem- 
edies provided in said statutes. 

5. That the word Taka-Kola, adopted and used by 
the defendant, is an infringement of the plaintiff's 
said trade-mark, Coca-Cola and is a copy or colorable 
imitation thereof, within the meaning of the Act of 
Congress of February 20, 1905, and that the defend- 
ant has affirmed said copy or colorable imitation to 
merchandise of substantially the same descriptive 
properties as those set forth in plaintiff's said regis- 
trations and to labels, signs, prints, packages, wrap- 
pers and receptacles intended to be used upon and 
in connection with the sale of merchandise of sub- 
stantially the same descriptive properties as those set 
forth in such registrations and has used such copy or 
colorable imitation in commerce among the several 
states of the United States, and that the defendant 
thereby has infringed the plaintiff's said registered 
trade-mark. 

6. That the defendant has used and applied to pack- 
ages containing its said product, decorated crowns 
with a color scheme and script lettering thereon so 

95 



THE COCA-COLA COMPANY 



nearly the same as the distinctive crowns and script 
lettering of the plaintiff as to be substantially indis- 
tinguishable therefrom, and that the defendant thereby 
has competed unfairly with the plaintiff. 

7. That defendant, Old Dominion Beverage Cor- 
poration, its officers, agents, servants, employes, at- 
torneys, licensees, transferees and assigns and each 
and all thereof and all acting by or under its author- 
ity, be and they are each and all perpetually enjoined 
and restrained from using or employing or authoriz- 
ing the use or employment, in connection with the 
manufacture, advertisement, offering for sale or sale 
of any beverage or ingredient thereof, of plaintiff's 
trade-mark Coca-Cola or any like word or the color- 
able imitation thereof, Taka-Kola or any like word; 
from using or employing or authorizing the use or 
employment of designs, devices, ' script lettering, or 
crowns identical with or like the designs, devices, 
script lettering, or crowns of the plaintiff, or the de- 
signs, script lettering, devices or crowns used by the 
defendant and referred to in the bill of complaint 
herein, and further from doing any act or thing or 
using any name or names, device, artifice or con- 
trivance which may be calculated or likely to cause 
any product not the plaintiff's to be sold as and for 
the product of the plaintiff, and that writs of injunc- 
tion accordingly issue forthwith. 

8. That defendant account to the plaintiff any and 
all profits derived by said defendant from defendant's 
unfair trading with the plaintiff, and in addition to 
the profits to be thus accounted for by the defend- 
ant, the defendant pay to the plaintiff the damage 
plaintiff has sustained by reason of defendant's said 
infringement and unfair trading, and this cause is 
hereby referred to Eobt. H. Talley, Esq., Master in 
Chancery of this Court, to take and state an account- 
ing to the plaintiff for any and all such profits and 
any and all such damages, with full power to the 
Master to subpoena and order the attendance of 

96 



v. OLD DOMINION BEVERAGE CORPORATION 

witnesses, to take depositions and require the produc- 
tion of books, papers and documents pertinent to the 
taking and stating of said accounting, and to report to 
this court such accounting and statement of profits and 
damages; with the right to the plaintiff to move the 
court to enter judgment upon said accounting for any 
sum above the amount found as the actual damages, 
not exceeding three times the amount thereof. 

9. That all labels, signs, prints, packages, wrap- 
pers or receptacles in the possession of the defendant 
bearing the colorable imitation Taka-Kola of the 
plaintiff's registered trade-mark Coca-Cola be forth- 
with delivered up for destruction, provided however 
that the bottles of the defendant with the name blown 
therein may be used in the sale of drinks not resem- 
bling that of the plaintiff where the name Taka-Kola is 
removed or hidden and the name of the contents of 
said bottles plainly shown on same. 

10. That defendant pay the costs of this suit to be 
taxed, including the costs in the Circuit Court of Ap- 
peals and the costs in this court, and that upon taxa- 
tion plaintiff have execution therefor. 

D. LAWRENCE GRONER, 

Richmond, Va., U. S. Judge. 

July 12, 1921. 

A true copy. Attest. 

(Signed) R. E. POWERS, 

Deputy Clerk. 



97 



SUPREME COURT 

OF THE UNITED STATES 

256 U. S. 703; 65 L. ED. 1179 



No. 908 



OLD DOMINION BEVERAGE CORPORATION, 

I 

v. 

THE COCA-COLA COMPANY. 



Petition for Writ of Certiorari to the United States 

Circuit Court of Appeals for the 

Fourth Circuit. 



Denied on June 6, 1921. 



ME. WILLIAM L. SYMONS, 
For Petitioner. 

MESSRS. HAROLD HIRSCH and EDWARD S. ROGERS, 
For Respondent. 



98 



IN THE COURT OF 
APPEALS 
OF THE 
DISTRICT OF COLUMBIA 



273 FEDERAL 755 



No. 1393 JUNE 6, 1921 



THE COCA-COLA COMPANY, 

v. 
CHERO-COLA COMPANY. 



HAROLD HIRSCH, Atlanta, Georgia, 
EDWARD S. ROGERS, Chicago, Illinois, 
NELSON J. JEWETT, Washington, D. C., 
For Appellant. 

C. L. PARKER, Washington, D. C., 
MELVILLE CHURCH, Washington, D. C., 
For Appellee. 



99 



THE COCA-COLA COMPANY 



IN THE COURT OF APPEALS OF THE 
DISTRICT OF COLUMBIA 

273 FEDERAL 755 



No. 1393 JUNE 6, 1921 



THE COCA-COLA COMPANY, 

v. 
CHERO-COLA COMPANY. 



-r 

1. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION RIGHT TO REGISTER TRADE-MARK 
DEPENDS ON WHETHER IT WOULD TEND TO CON- 
FUSE OR DECEIVE PURCHASERS. 

Under the Trade-Mark Act (Comp. St. Sec. 9490), the test of 
the right to register a trade-mark, opposed by the owner of a 
trade-mark applying to goods of the same descriptive property, is 
whether or not the marks are so similar as to be likely to cause 
confusion in the public mind or to deceive purchasers. 

2. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION ARGUABLE DIFFERENCES DO NOT 
DEFEAT OPPOSITION TO TRADE-MARK REGISTRA- 
TION. 

The fact that applicant's and opposer's marks do not sound 
quite alike, and have a different number of letters in each are 
only arguable differences, which are not enough to defeat the 
opposition, since the second applicant, having an almost limit ic-s 
field to choose from, should select a mark clearly distinguished 
from the existing mark. 

3. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION "CHERO-COLA" HELD LIKELY TO 
CONFUSE PURCHASERS DESIRING "COCA-COLA." 

Applicant's trade-mark of "Chero-Cola" is sufficiently similar to 
the opposer's mark, "Coca-Cola," to be apt to confuse an ordinary 
purchaser, who generally does not have more than a faint impression 

100 



v. CHEEO-COLA COMPANY 



of the trade-mark and acts quickly on a general glance, so 
that the opposition to the registration of the trade-mark will be 
sustained, especially where witnesses testified to numerous instances 
of actual confusion produced by applicant's mark, and applicant's 
own counsel in the examination of witnesses several times con- 
fused the two marks. 

4. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION DOUBTS AS TO RIGHT TO REGIS- 
TER MUST BE RESOLVED IN FAVOR OF OPPOSER. 

Doubts as to the right of an applicant to register a trade-mark 
against the opposition of the owner of a mark for goods of the 
same descriptive properties must be resolved in favor of the 
opposer. 

Appeal from the Commissioner of Patents. 

Application by the Chero-Cola Company for the reg- 
istration of a trade-mark, opposed by The Coca- 
Cola Company. From a decision of the Commis- 
sioner of Patents, over-ruling the opposition, the 
opposer appeals. Reversed. 

Edward S. Rogers, of Chicago, 111., Harold Hirsch, 
of Atlanta, Ga., and Nelson J. Jewett, of Washington, 
D. C., for appellant. 

C. L. Parker and Melville Church, both of Washing- 
ton, D. C., for appellee. 

SMYTH, Chief Justice: 

Appellee made application to have registered in the 
Patent Office the words " Chero-Cola " as a trade-mark 
for "Cola," a soft drink. The application was op- 
posed by the appellant, on the ground that it (the 
appellant) was the owner of the registered mark 
1 ' Coca-Cola, ' ' which is applied by it to the same kind 
of a drink. The Examiner of Interferences sustained 
the opposition, but was reversed by the Commissioner 
of Patents. 

Opposer has been using its mark since 1886, while 
applicant did not adopt its mark until 1911. It is 

101 



THE COCA-COLA COMPANY 



conceded that the goods of the parties have the same 
descriptive properties, and therefore there is but one 
matter for our decision, namely, whether or not the 
marks are so similar as to be likely to cause confusion 
in the public mind or to deceive purchasers. 33 Stat. 
L. 725 (Comp. St. Sec. 9490). 

Nearly 3,000 pages of testimony were taken, and 
elaborate briefs have been filed. Many decisions by 
courts in this country, and in England are cited, and, 
besides, we are invited to listen to the teaching of 
psychology on the subject. None the less the question 
in dispute is a simple one, and the principles by which 
its solution may be reached have been often declared 
and applied to this court. 

It is true that, if we analyze the two marks, differ- 
ences will be found. They do not sound quite alike, 
and the number of letters in each is not the same, but 
these are only arguable differences, which are not 
enough to defeat the opposition. William Waltke & 
Co. v. Gep. H. Schafer & Co., 49 App. D. C. 254, 256, 
263 Fed. 650, and cases cited; Thos. Manufacturing 
Co. v. Aeolian Co., 47 App. D. C. 376, 379. 

Each of the marks embraces two hyphenated words. 
"C" is the first letter in each mark, and "Cola" the 
last word in each. The image which one mark paints 
upon the mind is not clearly different from that made 
by the other mark. To require that the line which 
separates marks should be well defined is not to ask 
too much, since the field from which a person may 
select a mark is almost limitless. Florence Manufac- 
turing Co. v. Dowd & Co., 178 Fed. 73, 75, 101 C. C. A. 
565; Waltke & Co. v. Schafer & Co., supra-, Thos. 
Manufacturing Co. v. Aeolian Co., supra, 47 App. D. 
C. 378. If he is not content with a word to be found 
in a dictionary, he may coin one. 

Of course, if the two marks were placed together, 
or if a person's attention was in some way directed 
to them there would be no difficulty in apprehend ing 
the difference between them. This, however, is not 

102 



v. CHERO-COLA COMPANY 



the way to make the test. Ordinarily the prospective 
purchaser does not carry more than a faint impres- 
sion of the mark he is looking for. If the article of- 
fered to him bears a mark having any resemblance to 
the one he is thinking of, he is likely to accept it. He 
acts quickly. He is governed by a general glance. 
The law does not require more of him. Patton Paint 
Co. v. Orr's Zinc White, 48 App. D. C. 221. 

Many witnesses testified to numerous instances of 
actual confusion produced by applicant's mark. Even 
counsel for applicant in the cross-examination of wit- 
nesses, several times confused "Coca-Cola" with 
" Chero-Cola, " The statute does not require proof 
of actual confusion, but when there is such proof it is 
not easy to escape the conclusion that the assailed 
mark if registered, would be likely to do that which 
it has done. 

Opposer, as we have seen, adopted its mark in 1886, 
and has been using it ever since, so that "the mark 
for years has acquired a secondary significance, and 
has indicated the plaintiff's (opposer's) product 
alone." Coca-Cola Co. v. Koke Co. of America, 254 
U. S. 143, 41 Sup. Ct. 113, 65 L. Ed. . Millions have 
been spent by it for advertising its goods under the 
mark. During the time that it has used the mark it 
has been doing business in Atlanta, Ga. Applicant's 
place of business is in a nearby town Columbus, Ga. 
It, as we have said, did not commence to use its mark 
until 1911, 25 years after opposer had put into use its 
mark. Why was this mark selected by it, since it had 
so many others from which to choose? Is not its ac- 
tion open to the inference that the purpose was to ap- 
propriate some of opposer's business, by producing 
confusion in "the minds of the purchasing public? 
Whatever the purpose may have been, it is quite un- 
deniable that mistakes have resulted from the use of 
applicant's mark. 

Even if we doubted with respect to the proper solu- 
tion of the question before us, it would be our duty 

103 



THE COCA-COLA COMPANY 



to resolve the doubt against the applicant. Lambert 
Pharmacal Co. v. Mentho-Listine Co., 47 App. D. C. 
197 ; William Waltke & Co. v. Geo. H. Schaf er & Co., 
supra. 

Considering the matter in the light of the statute, 
the record and our previous decisons, we are con- 
strained to hold that the opposition should be sus- 
tained, and hence the decision of the Commissioner of 
Patents must be, and it is, reversed. 

Reversed. 



I 



104 



IN THE CIRCUIT COURT OF APPEALS, 
FIFTH CIRCUIT 

221 FEDERAL 61 



MARCH 8, 1915 



THE COCA-COLA COMPANY, 

v. 
GLEE-NOL BOTTLING CO., et al. 



TRADE-NAMES AND TRADE-MARKS, K. N. 70 UNFAIR 
COMPETITION ACTS CONSTITUTING. 

Bottles of the same size, shape, color, and general appearance 
as those commonly used for plaintiff's beverage, Coca-Cola, and 
that of defendant, Glee-Nol, were in general use as containers 
of many other beverages similarly dealt in. The beverages were 
unlike in taste or odor, and there were many other beverages on 
the market having practically the same color as both. Defend- 
ant had not undertaken to mislead dealers to whom it sold, nor 
to induce them to substitute Glee-Nol for Coca-Cola. Though 
the name Glee-Nol was blown into the same parts of the bottles 
at which the name Coca-Cola was blown into the bottles con- 
taining it, generally, but not universally, and though the name 
appeared in the same style of script, or type in imitation of writ- 
ten letters, it did not appear that, prior to the time defendant 
commenced placing the name on that part of the bottle, corre- 
sponding places on plaintiff's bottles had been in such general 
and exclusive use that the mere presence of any word at such 
place had come to be accepted generally or to any appreciable 
extent as an identification of the beverage, nor did it appear that 
the use of the same style of script resulted in any greater re- 
semblance than that existing between two written or printed 
words which are wholly different except in so far as a letter or 
letters common to both are alike, and it appeared that no one could 
be deceived, unless he was so utterly unobservant that he might be 
deceived without any resemblance between the two articles. HELD, 
that unfair competition on defendant's part did not appear. 

105 



THE COCA-COLA COMPANY 



Appeal from the District Court of the United States 
for the Eastern District of Louisiana. KUFUS E. 
FOSTER, Judge. 

Suit by the Coca-Cola Company against The Glee-Nol 
Bottling Company and others. Decree for defend- 
ants, and plaintiff appeals. Affirmed. 

Harold Hirsch, of Atlanta, Ga., and John May, of 
New Orleans, La. (Candler, Thomson & Hirsch and 
A. W. Candler, all of Atlanta, Ga., and Fred S. Weis, 
of New T Orleans, La., on the brief), for appellant. 

Henry P. Dart, of New Orleans, La. (Dart, Kernan 
& Dart, of New Orleans, La., on the brief), for appellee 
Glee-Nol Bottling Co. 

Edivard P. Foley, of New Orleans, La., for appellee 
Grosz. 

Before PARDEE and WALKER, Circuit Judges, and 
SHEPPARD, District Judge. 

WALKER, Circuit Judge: 

We concur in the conclusion reached by the 
District Court that the evidence adduced was in- 
sufficient to furnish substantial support for the 
claim of unfair competition made by the bill. 
Bottles of the same size, shape, color, and general 
appearance as those commonly used as containers 
of the two drinks in question, that of the plaintiff, 
Coca-Cola, and that of the defendant company, Glee- 
Nol, are in general use as containers of many other 
drinks which are similarly dealt in. The name of the 
defendant company's drink is not at all like that of 
the plaintiff. The one drink is not like the other in 
either taste or odor. There are many other drinks on 
the market which have practically the same color as 
that of each of these two. There was no evidence at 
all having a tendency to prove that the defendant in 

106 



v. GLEE-NOL BOTTLING CO., et al. 

any way undertook to mislead the dealers to whom 
alone it sells its drink or to induce them to substitute 
Glee-Nol when Coca-Cola was called for; and there 
was no evidence of any conduct of the defendant com- 
pany from which it could be inferred that anything it 
did amounted to an imitation of any distinguishing 
feature of the plaintiff's product or was intended to, or 
in fact did, beguile the public or any part of it into 
buying Glee-Nol under the impression that they were 
buying Coca-Cola, unless such evidence is found in 
that which went to prove that the name Glee-Nol was 
blown into the same parts of the bottles containing it 
at which the name Coca-Cola is found blown into the 
bottles generally but by no means universally, used 
by the distributors of that beverage, and that the 
letters forming the name Glee-Nol, where it appears 
on the bottles used by defendant company, are of a 
style of script or type made in imitation of written 
letters similar to that used in displaying the name 
Coca-Cola on the bottles containing it. 

The evidence failed to show that, prior to the time 
of the defendant company's selection of the places on 
its bottles at which the name of its drink was blown 
in, corresponding places on their bottles had been in 
such general and exclusive use for the same purpose 
by the distributors of the plaintiff's drink that the 
mere presence of a word, without regard to what it 
was, blown at those places into such bottles as the 
plaintiff's drink was generally marketed in, had come 
to be accepted generally or to any appreciable extent 
as a ready means of identifying the beverage which a 
bottle contained as Coca-Cola and distinguishing it 
from any other beverage similarly served. And it 
was not made to appear that the use by the defend- 
ant company of the same style of script as that used 
for the name Coca-Cola on the bottles containing it 
resulted in there being any resemblance between the 
two names as they were respectively displayed other 
than such as exists between two written or printed 
words which are wholly different, except in so far as 

107 



THE COCA-COLA COMPANY 



a letter or letters common to both alike. The impres- 
sion made by the evidence as a whole is that the re- 
spective products of the plaintiff and the defendant 
company, and the ways they are put up, are unlike 
in so many respects and are so readily distinguish- 
able, and the points of resemblance are so few and 
of a kind so unlikely to create confusion, as to negative 
the conclusion that there was an imitation which was 
either intentional or deceptive and to indicate the im- 
probability of any one being deceived into accepting 
Glee-Nol when he calls for Coca-Cola, unless he is so 
utterly unobservant when he gets and consumes such 
a beverage that a deception might with equal success 
be practiced upon him, whether there is or is not a 
resemblance in any identifying particular between 
what he calls for and what he gets. A charge of un- 
fair competition cannot be sustained by such evidence. 
' * The essence of the wrong in unfair competition con- 
sists in the sale of the goods of one manufacturer or 
vendor for those of another, and if defendant so con- 
ducts its business as not to palm off its goods as those 
of complainant the action fails." Howe Scale Co. v. 
Wyckoff, Seamans & Benedict, 198 U. S. 118, 140, 25 
Sup. Ct. 609, 614 (49 L. Ed. 972) ; Coca-Cola Co. v. 
Branham, et al. (D. C. 216 Fed. 264). 

The decree appealed from is affirmed. 



108 



IN THE CIRCUIT COURT OF APPEALS, 
FIFTH CIRCUIT 

212 FEDERAL 412 



No. 2478 FEBRUARY 17, 1914 



THE COCA-COLA COMPANY, 

v. 
HOBSTMAN, et al. 



TRADE-MARKS AND TRADE-NAMES (Sec. 93) SUIT FOR 
INFRINGEMENT SUFFICIENCY OF EVIDENCE. 

A decree dismissing a bill for infringement of trade- 
mark affirmed. 

PAKDEE, Circuit Judge, dissenting on the merits, but 
holding that on record the court was without 
jurisdiction. 

Appeal from the District Court of the United States 
for the Western District of Texas. THOMAS S. 
MAXEY, Judge. 

Suit in Equity by The Coca-Cola Company against 
Frederick Horstman and Angelo Basseti, doing 
business under the firm name of the Austin Bot- 
tling Works. Decree for defendants, and com- 
plainant appeals. Affirmed. 

Candler, Thomson & Hirsch, Atlanta, Georgia, M. M. 
Crane, Dallas, Texas, and H. 0. Head, Sherman, 
Texas, for appellant. 

109 



THE COCA-COLA COMPANY 



John W. Brady, of Austin, Texas, for appellees. 

Before PAKDEE and SHELBY, Circuit Judges, and 
GRUBB, District Judge. 

Per curiam. Finding this case was correctly rul<'<! 
and decided in the District Court, the decree appealed 
from is affirmed. 

PAKDEE, Circuit Judge (dissenting) : 

It seems to me that the District Court was 
without jurisdiction. Diverse citizenship is not suf- 
ficiently alleged in the bill, nor otherwise shown 
in the record (Grace v. American Central Insur- 
ance Company, 109 U. S. 278, 3 Sup. Ct. 207, 
27 L. Ed. 932; Wrisley v. Bouse Soap Company, 
90 Fed. 5, 32 C. C. A. 496), and the bill does 
not allege, nor is it shown by evidence in the record, 
that the defendants are infringing complainant's 
trade-mark in interstate, foreign or Indian commerce. 
Ryder v. Holt, 128 U. S. 525, 9 Sup. Ct. 145, 32 L. Ed. 
529; Warner v. Searle & Hereth Company, 191 U. S. 
195, 24 Sup. Ct. 79, 48 L. Ed. 145. 

As the record stands, the decree below is one dis- 
missing the bill on the merits. In my judgment, on 
the merits the complainant below and appellant here 
is entitled to relief, and the decree below, dismissing 
the bill, should be so qualified as to permit complain- 
ant to bring another suit. 



110 



UNITED STATES OE AMERICA, 
BEFORE FEDERAL TRADE COMMISSION. 

At a regular session of the Federal Trade Com- 
mission, held at its office in the City of Washington, 
1). C., on the 17th day of November, A. D. 1919. 

Present : 

JOHN FRANKLIN FORT, Chairman, 

VICTOR MURDOCK, 

m )> Commissioners. 

HUSTON THOMPSON, 

WILLIAM D. COLVER, 



DOCKET No. 39 



FEDERAL TRADE COMMISSION 

v. 
THE COCA-COLA COMPANY. 



ORDER DISMISSING PROCEEDING.. 

The Federal Trade Commission having heretofore 
issued a complaint under date of February 15, 1918, 
in the above entitled proceeding against The Coca- 
Cola Company, charging said company with unfair 
methods of competition in interstate commerce in 
violation of the provisions of Section 5 of an Act of 
Congress approved September 26, 1914, entitled "An 
Act to create a Federal Trade Commission, to define 
its powers and duties and for other purposes," and 
with violation of the. provisions of Section 3 of an 
Act of Congress approved October 15, 1914, entitled 
"An Act to supplement existing laws against unlaw- 
ful restraints and monopolies, and for other pur- 
poses"; and the respondent having filed its answer, 
an agreed statement of facts having been entered 

in 



THE COCA-COLA COMPANY 



into, and briefs submitted, the Commission, on a con- 
sideration of the whole case, is of the opinion that 
present public interest not appearing, it is therefore 
Ordered, that the above entitled proceeding be, and 
the same is, dismissed and discontinued without prej- 
udice. 

By the Commission. 

(Signed) J. P. YODER. 

J. P. YODER, 
Secretary. 

John Walsh, Chief Counsel for the Commission. 

Candler, Thomson & Hirsch, for The Coca-Cola 
Company. 



I 



UNITED STATES CIRCUIT COURT, 
NORTHERN DISTRICT OF GEORGIA 



SUIT TO RECOVER TAXES 
ILLEGALLY COLLECTED 



THE COCA-COLA COMPANY, Plaintiff, 

v. 
HENRY A. RUCKER, Defendant, 



Gentlemen of the Jury: 

The action of the plaintiff, The Coca-Cola Company, 
against H. A. Rucker, collector of internal revenue, 
is in effect, a suit against the United States of Amer- 
ica. The purpose of this suit is to recover certain 
taxes claimed by the United States from The Coca- 
Cola Company, and collected under and by virtue of 
what is known as the War Revenue Tax Act of 1898 

It is agreed between counsel for the respective par- 
ties that the taxes which were paid, and which are 
now sought to be recovered, were paid under protest, 
and that the formalities required in such cases were 
complied with, and that the real question for your de- 
termination is whether the tax exacted by the gov- 
ernment was lawful or unlawful. The amount of the 
tax is not in dispute, and is as shown in the plaintiff's 
declaration, $10,858.76, which they will be entitled to 
recover, if entitled to recover at all, with interest 
thereon from the dates the respective payments were 
made, as shown in the declaration and not disputed, as 
I understand it. 

The Plaintiff company by its suit asserting that the 
tax collected of it was unlawful, it is incumbent on 

113 



THP] COCA-COLA COMPANY 



it by a preponderance of the evidence to show you 
that this is true, by showing that the preparation on 
which this tax was collected does not come within the 
terms of the revenue act referred to. 

The claim of the government is that the Coca-Cola 
preparation is a medicinal proprietary article and 
preparation; that it is a medicinal article compounded 
by formula and that it is put up in the style and man- 
ner similar to that of patent, trade-mark and proprie- 
tary medicines in general, but that in any event it is 
advertised to the public as a remedy or specific for 
human ailments, and as having special claim to merit 
in mode of preparation, quality, use and effect. 

The revenue act in question, under the head of 
medicinal, proprietary articles and preparations, uses 
this language: 

"For and upon every packet, box, bottle, pot or 
phial, or other inclosure containing any pills, pow- 
ders, tinctures, troches or lozenges, syrups, cordials, 
bitters, anodynes, tonics * * and all medicinal prep- 
arations or compositions whatsoever, made and sold, 
or removed for sale by any person or persons what- 
ever, wherein the person making or preparing the 
same has or claims to have any private formula, se- 
cret or occult art for the making or preparing the 
same, or has or claims to have any exclusive right or 
title to the making or preparing the same, or which 
are prepared, uttered, vended or exposed for sale un- 
der any letters patent or trade-mark, or which, if 
prepared by any formula published or unpublished, 
are held out or recommended to the public by the 
makers, vendors or proprietors thereof as proprietary 
medicines, or medicinal proprietary articles or prep- 
arations, or as remedies 'or specifics for any disease, 
diseases or affection whatever affecting the human 
or animal body as follows:" Then proceeds to affix 
the amount of the percentage tax. 

The latter part of Section 20 of the act in question 
is an interpretation or construction of schedule B, 

114 



v. HENRY A. RUCKER 



which I have just read to you. It provides that "The 
stamp taxes provided for in schedule B, of this act, 
shall apply to all medicinal articles compounded by 
any formula, published or unpublished, which are put 
up in style or manner similar to that of patent, trade- 
mark or proprietary medicines in general, or which 
are advertised on the package or otherwise as rem- 
edies or specifics for any ailment, or as having any 
special claim to merit, or to any peculiar advantage 
in mode of preparation, quality, use or effect." 

Two questions are really presented for your de- 
termination under the evidence in this case. The first 
is whether the Coca-Cola preparation is a medicine 
or medicinal article which is compounded by formula 
which is published or unpublished and put up in n 
manner similar to that of patent, trade-mark or pro- 
prietary articles in general ; or, second : whether the 
Coca-Cola preparation is advertised on the package 
or otherwise as a remedy or specific for any ailment 
or as having any special claim to merit or any pe- 
culiar advantage in its mode of preparation, use, 
quality or effect. 

There has been very little dispute in the evidence 
as to the character of the ingredients which go to 
make up the Coca-Cola syrup, and the claim for the 
plaintiff is that while some of the ingredients which 
enter into the preparation of Coca-Cola may be such 
as are classed as drugs for certain purposes, yet that 
as used by them they should not be so considered. 
They claim that what they put up is merely a syrup 
which is used mainly and almost entirely in the prep- 
aration of a beverage, drank across the counter at soda 
fountains. 

On the other hand, it is claimed that on account of 
the ingredients which are compounded into this 
syrup, and the formula used, and the trade-mark ob- 
tained for the same, it comes within this act in that 
respect, or that in any event it is held out to the 
world by The Coca-Cola Company as a medicinal 

115 



THE COCA-COLA COMPANY 



preparation, and for that reason, it comes within the 
act, whether it is really in effect a medicinal prepara- 
tion or not. 

The question for your consideration is whether it is 
really a medicinal preparation in itself, or if not, 
whether it is put out by the company to the world as 
such in its advertising- matter. If so, it is subject to 
the tax. If, on the other hand, it is used as a bever- 
age simply and purely, and only held out to the world 
by the plaintiff in its advertising matter as such, it is 
subject to the tax. It is said on the part of the gov- 
ernment that by its advertising matter, this prepara- 
tion is held out to the world as a remedy for head- 
ache and for nervous exhaustion, and that headache 
and nervous exhaustion are ailments within the mean- 
ing of the act. This is a questicp for the jury to de- 
termine. It is a question for you as men of ordinary 
sense to determine from your own knowledge of such 
matters, and from the evidence of the case. You have 
the evidence of experts on the subject. This act 
speaks of ailments, and it is said that these two 
things, headache and nervous exhaustion, are ail- 
ments of the human body. The Court instructs you 
that the jury should take the words used in this act 
in their usual and ordinary significance and give 
them the meaning which in this w r ay would be at- 
tributed to them. Revenue acts are construed strictly 
in favor of the citizen, but if the words of a tax act 
have a plain and ordinary meaning, in common accep- 
tation and use, this meaning should be given them. 

The Court instructs you further that if, notwith- 
standing the fact of the sale of this preparation in 
connection with carbonated water, as a soda fountain 
beverage, a practically important part of the prepa- 
ration is in itself medicinal in character, or if as ad- 
vertised to the public, a practically important part of 
the merit and effect claimed for it is medicinal in 
character, it is subject to the tax and the plaintiff 

no 



v. HENRY A. RUCKER 



should not recover. If, on the other hand, you believe 
that the medicinal quality of this preparation, either 
in itself, or as held out by the company's advertise- 
ments to the public, is incidental and so slight as not 
to be a material part thereof, it would not be subject 
to tax, in the opinion of the Court, and you should 
find for the plaintiff. 

I repeat that to you, gentlemen, that if you find 
from the evidence in this case, that notwithstanding 
the fact that very largely this preparation is sold 
in connection with carbonated water, across the coun- 
ter of soda fountains as a beverage, a practically im- 
portant part of its use and effect, in itself or as 
claimed for it by advertising matter which is sent out 
by The Coca-Cola Company is medicinal in character, 
it would be subject to this tax. If, on the other hand, 
its use is as a medicinal preparation is incidental, 
slight and not material in character, it would not be 
subject to the tax, and you should find for the plain- 
tiff in this case, the amount in dispute. 

Now, gentlemen, it is conceded that the prepara- 
tion in question is a compound, and that it is put up 
by a private formula, and it comes up to that portion 
of the act undoubtedly. The only real question is 
whether, notwithstanding its use as a .beverage a 
practically important part of the preparation, as I 
have stated, in itself or as the company holds it out 
to the public, is medicinal in character. The act, 
very clearly, in the opinion of the Court, makes those 
preparations subject to tax that are held out by ad- 
vertising matter, by the parties engaged in selling 
them, as medicinal in character, whether they are 
really so in themselves or not. 

The jury should give all the evidence in this case a 
fair consideration. You have had the evidence of sev- 
eral physicians who testified as experts in this case, 
and you have had the testimony of two practical 
chemists who have given you their opinions on the sub- 
ject. The jury should give all this evidence a fair 

117 



THE COCA-COLA COMPANY 



consideration without any kind of favor either to the 
government or to the plaintiff. You deal simply with 
the question presented to you here, as it has been 
presented by the pleadings, by the evidence and the 
instructions of the Court. 

If the jury believes from all the evidence in this 
case that the plaintiff has established by a prepon- 
derance of the evidence, the fact that this prepara- 
tion which they are selling does not come within the 
characterization of the revenue act in question, then 
the tax upon it was unlawful and they are entitled to 
a verdict at your hands. 

If, on the other hand, you do not believe they have 
established this fact, if they have not established it to 
your satisfaction, you should find for the defendant. 

Take the case, gentlemen, and find a verdict. 

VERDICT. 

Atlanta, Ga., Feb. 5, 1902. 

We, the jury, find for the plaintiff ten thousand 
eight hundred fifty-eight dollars and seventy-six 
cents, with interest. 

JOHN M. GREEN, Foreman. 

JUDGMENT. 

Whereupon, it is considered and adjudged by the 
Court that the plaintiff recover of the defendant ten 
thousand eight hundred fifty-eight and 76/100 dollars 
($10,858.76) principal, and two thousand and seventy- 
two and 35/100 dollars ($2,072.35) interest, and 

dollars, costs. 

February 5, 1902. 

Arnold & Arnold, Attorneys for Plaintiff. 

U. S. Attorney E. A. Angler, Asst. U. S. Attorney 
George L. Bell, Attorneys for Defendant. 



Rucker v. Coca-Cola Company (Circuit Court of 
Appeals, Fifth Circuit, October 21, 1902). No. 1,161. 



118 



v.' HENRY A. RUCKER 



In Error to the Circuit Court of the United States 
for the Northern District of Georgia. E. A. Angler 
and George L. Bell, for plaintiff in error. Reuben R. 
Arnold, for defendant in error. Before PARDEE, 
McCoRMicK and SHELBY, Circuit Judges. 

Per curiam. The judgment of the Circuit Court 
is affirmed. 



Rucker, Collector, v. Coca-Cola Company (Circuit 
Court of Appeals, Fifth Circuit, October 17, 1903), 
No. 1,239. In Error to the Circuit Court of the 
United States for the Northern District of Georgia. 
E. A. Angler, Geo. L. Bell and C. D. Camp, for plain- 
tiff in error. Reuben R. Arnold, for defendant in 
error. Before PARDEE, McCoRMicK and SHELBY, Cir- 
cuit Judges. 

Per curiam. As we find that the taxable character 
of Coca-Cola, under the revenue act, was settled ad- 
versely to the United States in the former adjudica- 
tion (117 Fed. 1006, 54 C. C. A. 248) duly pleaded 
on the trial, the record herein presents no reversible 
error, and the judgment of the Circuit Court is 
affirmed. 



119 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE EASTERN DISTRICT 

OF ARKANSAS, 
WESTERN DIVISION 

229 FEDERAL 224 



THE COCA-COLA COMPANY, 

v. 
J. G. BUTLER & SONS. 



FINAL OPINION. 



1. TRADE-MARK AND TRADE-NAMES 1 INFRINGE- 
MENT DECEPTION OF PUBLIC. 

The protection given by l;i\v to trade-marks has for its object 
the protection of the owner in his property, and the protection 
of the public from deception, by reason of a misleading claim 
that the article bearing the trade-mark is the article manufactured 
by the owner of the trade-mark, when in fact it is but a substitute. 

2. TRADE-MARKS AND TRADE-NAMES 57 INFRINGE- 
MENT DECEPTION OF PUBLIC. 

The use of any simulation of a trade-mark which is likely to 
induce common purchasers, exercising ordinary care, to buy the 
article to which the trade-mark is allixcd. thereby indicating that 
it is the product of the owner of the trade-mark, is unlawful, and 
will be enjoined. 

X. TRADE-MARKS AND TRADE-NAMES 68 UNFAIR 
COMPETITION USE OF TRADE-MARK. 

Plaintiff, a manufacturer of a syrup constituting the principal . 
ingredients of a beverage sold at soda fountains and in bottles, 
made up the syrup in two forms one for sale through jobbers 
for soda fountains, and one intended for use in bottling and sold 
by it only to bottlers selected, designated and licensed by it. and 
authorized to use thereon its distinctive tops and labels bearing 
its trade-mark there being some differences in the two syrups, 
on account of the different purposes to which they were to be put. 
It guaranteed its product to be wholesome and uniform, as well 
as its cleanliness and excellence of manufacture, and maintained 

120 



v. J. G. BUTLER & SONS 



an elaborate system for the inspection of the plants of its licensed 
bottlers. Defendant purchased from jobbers the syrup intended 
for soda fountain use, and used it in manufacturing a bottled 
preparation which it was selling under the name of plaintiff's 
product, using the tops and labels prepared by plaintiff for its 
product. HELD that this constituted unfair competition, and 
would be enjoined. 

4. TRADE-MARKS AND TRADE-NAMES 67 RIGHT TO 
MONOPOLY STATUTORY PROVISIONS. 

The monopoly given the owner of a trade-mark by the trade- 
mark laws is not forbidden by the Sherman Act (Act July 2, 
1890, c. 647, 20 Stat. 209), or any other Act of Congress. 

5. MONOPOLIES 17 SALES OF GOODS DISCRIMINA- 
TION. 

Where the manufacturer of a syrup used as the principal ingre- 
dient in a beverage and sold by it only to bottlers licensed by 
it, guaranteed the purity and quality of the beverage by using 
distinctive tops and labels on its bottles, and to protect itself 
against claims for damages on the guaranty maintained a system 
of inspection of the plants of its licensed bottlers, it did not 
violate the Sherman Act, as its requirements were reasonable and 
beneficial to the public, in view of its responsibilities and the 
right of purchasers to obtain the identical article which they 
desired to buy. 

6. MONOPOLIES 17 SALES OF GOODS DISCRIMINA- 
TION. 

The refusal of such manufacturer to sell its syrup for bottling 
to a party other than its licensed bottlers, and to permit such 
party to use its trade-mark in connection with the bottled prod- 
uct, was not a violation of Clayton Act October 15, 1914, c. 323, 
paragraph 3, 38 Stat. 731, providing that it shall be unlawful to 
sell goods for use or re-sale, or to fix a price therefor, or dis- 
count or rebate from such price on the condition that the pur- 
chaser shall not use the goods of a competitor, where the effect 
may be to substantially lessen competition or to create a monop- 
oly in any line of commerce, in view of the possibility of adulter- 
ation and the hardship to the manufacturer of maintaining such 
supervision over the bottling as it deemed necessary, if required 
to sell to every intending purchaser. 

In Equity. Suit by The Coca-Cola Company against 
J. G. Butler & Sons. Decree for plaintiff. 

The plaintiff seeks to enjoin the defendants, who 
constitute a mercantile firm, doing business under the 

121 



THE COCA-COLA COMPANY 



firm name of J. G. Butler & Sons, from using in con- 
nection with the manufacture, advertising, offering 
for sale, or sale of any beverage the words " Coca- 
Cola," or any like word or words, and in any other 
manner infringing upon the plaintiff's rights as 
owner of the trade-mark "Coca-Cola" and also seeks 
an accounting of the damages sustained by it by rea- 
son of the unlawful use of its trade-mark. 

The material allegations in the complaint are : That 
the plaintiff is now, and lias been ever since 1892, 
manufacturing and marketing a syrup for making a 
beverage sold to the public under the name of "Coca- 
Cola." That it became vested with and entitled to 
the sole ami exclusive right to use that trade-mark, 
which has been duly registered in the United States 
Patent Office on May 14, 1892, under the provisions of 
the Act of Congress of March 3) 1891, c. 565, 26 Stat. 
1106. That on April 22, 1905, registration of the said 
trade-mark was again allowed by the Commissioner 
of Patents under the Act of Congress approved Feb- 
ruary 20, 1905, c. 592, 33 Stat. 724. That it has manu- 
factured and marketed, and is now manufacturing 
and marketing, two kinds of said syrup one designed 
and adapted for making a beverage by mixing with 
carbonated water at soda fountains in the presence of 
the purchaser, which is intended for immediate con- 
sumption, and is a fountain drink, and is well known 
to the public. The other kind is designed and adapted 
to be used, and is used, for manufacturing a carbon- 
ated beverage put up and sold for consumption in 
bottles; each of them being sold by the plaintiff in 
distinctive packages, bearing its trade-mark name on 
distinctive labels. That it has at all times insured 
and safeguarded the manufacture and bottling of said 
carbonated bottled beverage made from its "Coca- 
Cola" bottling syrup, by selecting, designating, and 
licensing the bottlers using the said bottling syrup, 
and inspecting and supervising the manufacture, car- 
bonating and bottling of said beverage by said bot- 
tlers, so as to safeguard and insure the purchasers 

122 



v. J. G. BUTLER & SONS 



and consumers of said bottled product as to the qual- 
ity, purity and character thereof, and has under such 
circumstances and conditions, and none others, al- 
lowed and permitted the use of the name "Coca- 
Cola," as the trade-mark therefor, and as plaintiff's 
guaranty of the authenticity of the said carbonated 
and bottled beverage, and plaintiff's supervision, in- 
spection and approval thereof and responsibility 
therefor. So that in connection with a bottled drink, 
the name "Coca-Cola" is plaintiff's guaranty of 
genuineness and fidelity that such drink is properly 
made of proper materials, and is plaintiff's assur- 
ance of cleanliness and excellence of manufacture, 
carbonating, bottling, and sale, and is so relied upon 
by the purchasers and the public. That it has ex- 
pended large sums of money in advertising to the 
public that its beverage under its trade-name, can be 
had at fountains and in bottles, and that the bottled 
product which is offered to the public in bottles, with 
plaintiff's trade-mark name "Coca-Cola," applied to 
the bottled beverage, means to the public a beverage 
produced wholly under conditions which plaintiff 
supervises and controls, and one guaranteed through- 
out by plaintiff to be so produced, and to be whole- 
some, palatable and uniform, and is so understood by 
the public. It is then charged that the defendants 
have put upon the market in bottles a product some- 
what resembling in taste and appearance the plain- 
tiff's bottled "Coca-Cola," but which is not plain- 
tiff's bottled "Coca-Cola," and had applied to the 
crown of the bottles containing said defendant's prod- 
uct, and upon labels attached to the bottles, the name 
"Coca-Cola," as the trade-mark name therefor, with- 
out plaintiff's permission or authority; that by rea- 
son thereof the public is being deceived into the belief, 
contrary to the fact, that the product of the defend- 
ants is the bottled product guaranteed by the plain- 
tiff, as aforesaid. 

The answer of the defendants pleads that they are 
not sufficiently informed as to some of the allegations 

123 



THE COCA-COLA COMPANY 



that are set out in the complaint, and therefore de- 
mand strict proof thereof. They deny that they have 
put upon the market in bottles any product resem- 
bling in taste and appearance the plaintiff's bottled 
"Coca-Cola," but allege the truth to be that the 
article they have put on the market is the genuine, 
identical article and product known as "Coca-Cola." 
They admit that they have applied to the crowns of 
the bottles containing such product, and upon labels 
attached thereto, the name "Coca-Cola," but deny 
that it was done without authority. They allege that 
they purchased said product for the identical purpose 
to which they have applied the same, from individuals 
and corporations who were the lawful owners thereof, 
and authorized to sell the same to these defendants 
for the purpose of retailing ^he same, bottled and 
carbonated as "Coca-Cola," and therefore they deny 
that the result of this use by them has been to de- 
ceive the public into the belief, contrary to the fact, 
that the product of the defendants is the product 
guaranteed by plaintiff to be properly made of proper 
materials, and made, carbonated, and bottled under 
the plaintiff's authority and supervision. They then 
plead that the plaintiff, by adopting a system of ex- 
clusive contracts, has undertaken to divide the 
country, and especially the territory in which the 
defendants are operating, into districts, whereby 
they have agreed to sell to such persons and corpora- 
tions alone, and exclusively thus contracted, which 
was done for the purpose of establishing and main- 
taining a monopoly in the sale of said product, and 
preventing and destroying competition in the sale 
thereof, among the different purchasers, and have re- 
fused and still refuse to sell and furnish such prod- 
uct or commodity to the defendants upon the same 
terms and conditions and at the same price as they 
are furnishing and selling this commodity to other 
purchasers thereof, all of which it is charged is for 
the purpose and object of lessening the competition 

124 



v. J. G. BUTLER & SONS 



and creating a monopoly in the sale of said syrup, 
in violation of the laws of the United States. 

The cause was submitted upon an agreed statement 
of facts. From this it appears : That the plaintiff is 
the owner of the trade-mark "Coca-Cola," and it has 
been used by it and its predecessor in title since May, 
1886. That it was duly registered as a trade-mark 
in the United States Patent Office, in conformity with 
the laws of the United States, as set out in the com- 
plaint. That it has advertised the same throughout 
the United States aftd in foreign countries; and that 
over $10,000,000 have been expended by the plaintiff 
in advertising it. That the following differences, 
among others, are made between the syrup "Coca- 
Cola" manufactured to be used at fountains, and that 
to be sold in bottles: In 1,250 gallons of the finished 
product the bottler's syrup contains 1,000 pounds 
more sugar than the other. It has 10 per cent, more 
coloring matter, to-wit, caramel. It contains more 
phosphoric acid, and some percentage less of caffeine, 
than does the syrup made to be used at soda foun- 
tains. The fountain syrup contains 28 pounds of caf- 
feine to 1,250 pounds of the finished product, while 
that used in the bottler's syrup contains only 25 
pounds of caffeine to 1,250 pounds. That the plain- 
tiff in its sales system has two methods by which the 
product is sold : 

First. The system by which the syrup manufac- 
tured for fountain sale is sold to jobbers and dis- 
pensers, to be sold from the soda fountain; the job- 
bers selling it to the dispensers under a contract that 
the plaintiff will supply it only in the original pack- 
age, that the jobber is not to sell or offer for sale as 
"Coca-Cola" any imitation of or substitute there- 
for, and upon compliance with the terms of the con- 
tract plaintiff will allow certain rebates to the jobber, 
depending upon the quantity bought, provided that the 
sales have been to dispensers only, and none to bot- 
tlers, or for the purpose of carbonating in bottles. 
The dispensers' contract, which he is required to sign, 

125 



THE COCA-COLA COMPANY 



obligates him that, when "Coca-Cola" is asked for, 
he will only supply "Coca-Cola" as manufactured 
and furnished by the plaintiff, not to sell or offer for 
sale as "Coca-Cola" any imitation of or substitute 
therefor, and if he complies with these terms he is to 
receive a rebate, depending upon the quantity bought 
by him. The plaintiff does not enter into a dis- 
penser's contract directly, but only through the job- 
ber. The fountain syrup is never sold for the pur- 
pose of bottling, and is not made or intended for the 
purpose of having the same bottled. 

Second. The syrup made for bottling purposes is 
sold to two corporations one "The Coca-Cola Bot- 
tling Company," and the other "Coca-Cola Bottling 
Company." This sale is made under and by virtue 
of contracts entered into between the plaintiff and 
the bottling companies. There Kvas an original con- 
tract, which was later amended. The original con- 
tract was made on the 21st day of July, 1899, and 
by this contract the bottling company obligated itself 
to establish in the city of Atlanta, Ga., a bottling 
plant for the purpose of bottling this syrup, with 
carbonic acid and water, and to prepare and put up 
in bottles, or other receptacles, a carbonated drink 
containing a mixture of "Coca-Cola" syrup, and 
water charged with carbonic acid gas under a pres- 
sure of more than one atmosphere ; the syrup to be in 
proportion of not less than one ounce to eight ounces 
of water. It also obligates itself to keep on hand a 
sufficient quantity to supply the demand in all the ter- 
ritory embraced in the agreement; that it is to buy 
all the "Coca-Cola" syrup from the plaintiff, upon 
the terms set forth, and it is not to buy any substi- 
tute therefor, or other syrup or substances, nor at- 
tempt to use or imitate in any article prepared by 
them "Coca-Cola" syrup. The plaintiff is also to fur- 
nish all necessary labels and advertising matter at 
its own cost. The right to use the name "Coca-Cola" 
and all the trade-marks and designs for labels then 
owned and controlled by the plaintiff, and the right 

12G 



v. J. G. BUTLER & SONS 



to vend such preparation or mixture, bottled or put 
up in bottles, in the United States, except the six New 
England states and the states of Mississippi and 
Texas, is granted to them exclusively; but the right 
to use the name, trade-mark and labels is to apply 
only to the carbonated mixture described, and is not 
to apply to the soda fountain business. 

This contract was later amended by requiring the 
bottling company to buy all of the "Coca-Cola" syrup 
necessary to comply with the agreement directly from 
the plaintiff; not to sell or in any way dispose, with- 
out the written consent of the plaintiff, of any ' ' Coca- 
Cola," except after it is carbonated and bottled. The 
labels and advertising matter furnished by the plain- 
tiff are to be paid for by the bottling company at what 
the actual cost and freight expense may be. By an- 
other amendment made to these contracts on April 24, 
1915, the provision whereby the bottling company was 
to purchase the syrup directly from the plaintiff was 
amended by eliminating the condition that the bot- 
tling company is to buy all the "Coca-Cola" neces- 
sary from the plaintiff. It also eliminates from the 
former contracts those provisions by which the bot- 
tling company obligated itself not to use any substi- 
tute, or substitutes, or to attempt to use or imitate 
"Coca-Cola" syrup, and in lieu thereof the bottling 
company agreed not to manufacture, deal in, sell, 
offer for sale, use, or handle, nor attempt to do so, 
either directly or indirectly, any product that is a 
substitute for or imitation of "Coca-Cola." By an- 
other provision in this last amendment to the former 
contracts the plaintiff selects the bottling company as 
its sole exclusive customer and licensee, for the pur- 
pose of bottling "Coca-Cola" in the territory hereto- 
fore acquired by it, and it agrees not to sell its foun- 
tain syrup to any one, when it knows that such syrup 
is to be used for bottling purposes; that under these 
contracts the bottling companies are not permitted to 
bottle the syrup manufactured for fountain pur- 
poses; that the two bottling companies have, with the 

127 



THE COCA-COLA COMPANY 



approval of the plaintiff, given the right to certain 
local companies, which are established in different local- 
ities, for the purpose of bottling the bottling syrup of 
the plaintiff; that such a contract was made with the 
Little Hock Coca-Cola Bottling Company, for certain 
territory which includes the town of Russellville and 
county of Pope, where the defendants are carrying on 
the business sought to be enjoined by this proceeding. 
It is further stipulated that the plaintiff sets the 
standard by which its product is to be bottled, and 
by a system of inspection and supervision inspects 
and supervises the bottling of its products, whereso- 
ever made 4 ; that it requires that its bottled product 
shall be bottled, using certain proportions, that the 
plants must be kept clean, and the cases and bottles 
sent out in a sanitary and presentable manner, a close 
supervision being kept over the clyiracter of its goods 
being sent out; that a minute inspection is main- 
tained in regard to the character, purity and whole- 
someness of the bottled "Coca-Cola." The bottling 
companies have no connection in any way, shape, or 
manner with the sale of the fountain product. This 
supervision and inspection extends to all plants that 
bottle "Coca-Cola," no matter where situated. The 
difference between these two products arose from the 
fact that it developed, in the process of bottling, that 
the product when bottled, stood for a longer time after 
its carbonation than did the syrup used at the foun- 
tains, and therefore in order to provide for this con- 
tingency, a difference had to be made in the bottled 
product, and further that the character of the trade 
was best supplied by making a specific syrup for the 
particular purpose of bottling; that the syrup is not 
consumed by the public, only after being mixed with 
the proper proportions of water; that the system of 
supervision and inspection exercised by the plaintiff 
and the parent bottling companies consists of the 
following : 

In order to see that the product is bottled in a 
certain manner, and that the business is properly 

128 



v. J. G. BUTLER & SONS 



conducted, a system of supervisions has been organ- 
ized by the plaintiff, known as the ' * Inspection Depart- 
ment. " This inspection department has a competent 
man at the head, whose duty it is to divide up the 
territories in such a manner that they can be covered 
advantageously by the inspectors. Five inspectors in 
this department operate in the Southern States. The 
head inspector routes these different inspectors and 
follows them up. A report is required from these in- 
spectors from each different plant visited. Samples 
of the product are taken from the plant, which prod- 
uct is tested in the plant, to see whether or not the 
product conforms to the standard established; these 
inspectors being trained men. The inspectors are 
equipped with gas test gauges and hydrometers and 
other instruments to enable them to determine or not 
whether the product is being put up according to in- 
structions. They carry other gauges and other 
things to test each machine used by the bottling plant, 
to determine w r hether or not the machines are throw- 
ing the proper amount of syrup into each particular 
bottle. Samples are taken of the product both be- 
fore and after the process of carbonation. These 
samples are forwarded to the head inspector at At- 
lanta, where they are chemically examined, and if any 
difference appears, they must immediately make the 
changes necessary to bring them to the standard pre- 
scribed by the plaintiff. If necessary, the chemical 
expert and a member of the advisory board are sent 
to make personal investigations of the plant. 

The water used in the carbonating is chemically 
tested and the sanitary condition of the plant is in- 
vestigated, the latter being one of the main questions 
considered at all times. The question of carbonation 
in making the bottled product is given strict attention 
by the inspectors and chemical experts ; proper car- 
bonation depending upon the machinery, the kind of 
water, and the temperature of the water used. As 
warm water cannot be carbonated, the bottling plants 
are required to install cooling plants to get the proper 

129 



-' 

- 




: ' 

It i- further *tipilated that tke defendants ] 
IT or in-lirect ly . to bottle either prodar 



Coca Cob Comf *any . nor use tke trade-attr 

' . ' - . 

in the mann f actar? and bottling of b* 



and are bottling and pattinr upoa the nttrket a : 
net, a bottle of which U fied as erideaee. T: 
used in making up thil prodaet br tke defendai 
the fountain rnip maamfaetared by Tke Coca 
Company, and which they obtain in tke cour- 
trade from jobbers or retailers who have paroi 
tke fountain p roduct of tke Coca-Cola Com pv 
they bottle it without permission or aoti 
the plaintiff, and apply tke trade-mark .Cola 

thereto, by nsng tke tope and labels of tke pla 
on the product, without authority from any 
authorized to give it. These pnrrkaaft are n 

n parties who are tke lawful owners there* -f. an 
who sell the same to tke defendants in tke due o 
of trade. The plaintiff as well as tke bottling 
panies, have refused to sell to the defendants tL 
for the purpose of bottling, although tke 
offered to purchase and pay therefor, and obj 
their using the trade-mark "Coca-Cola" in connec 
tion with their bottled product, or to do anythii - 
the plaintiff's syrup for the purpose of re-seHic- 

.g the same. 

Moore, Smith, Moore d Trieber, of LattK? R 
Ark d & Rogers, of Chicago. 111., and Camdler. 

Thomson d Hirsck, of Atlanta. counsel), for 

plaintiff. 



v. J. G. BUTLER & SONS 



Mehaffy, Reid & Mehaffy, of Little Rock, Ark., for 
defendants. 

TKIEBEK, District Judge (after stating the facts as 
above) : 

It is not disputed by the defendants that the plain- 
tiff is the lawful owner of the trade-mark "Coca- 
Cola," that it is an asset of great value, and that the 
defendants are bottling, offering for sale, and selling 
a bottled preparation, under the name of "Coca- 
Cola," using the tops and labels prepared by the 
plaintiff for the preparation bottled under its super- 
vision, and furnished by it to those who are engaged 
in bottling it, under its authority or license, and that 
these tops and labels indicate to the public that it is 
the plaintiff's preparation, made under its supervi- 
sion and guaranteed by it. Although counsel have 
argued many important questions, there are only two 
issues, which under the allegations in the bill, answer, 
and agreed statements of facts are necessary for the 
determination of this case: 

(1) That the preparation bottled by the defendants 
is made of syrup and sold by the plaintiff, and that 
it was purchased by the defendants for the identical 
purpose to which they have applied the same, and 
from parties who were the lawful owners thereof by 
purchase from the plaintiff, but not from the plain- 
tiff, nor from its authorized vendees. 

(2) That by its manner of doing business, as is 
fully set out in the agreed statement of facts, the 
plaintiff seeks to establish an unreasonable monopoly 
in restraint of trade, and therefore in violation of the 
Act of Congress of July 2, 1890, c. 647, 26 Stat. 209, 
known as the "Sherman Act," and the amendments 
thereto, and the Act of October 15, 1914, c. 323, 38 
Stat. 730, and known as the "Clayton Act." 

(1, 2) In determining the issues in this case it is 
important to keep in mind the well-established prin- 
ciple of law that the protection given by law to trade- 
marks has a two-fold object: To protect the owner 

131 



THE COCA-COLA COMPANY 



in his property, and to protect the public from being 
deceived by reason of a misleading claim that the ar- 
ticle bearing the trade-mark is the article manufac- 
tured by the owner of the trade-mark, when in fact it 
is not, but a substitute. The use of any simulation of 
a trade-mark, which is likely to induce common pur- 
chasers, exercising ordinary care, to buy the article 
to which the trade-mark is affixed, thereby indicat- 
ing that it is the product of the owner of the trade- 
mark, is unlawful and will be enjoined. McLean v. 
Fleming, 96 U. S. Ufi, 251, 24 L. Ed. 828; Kann v. 
Diamond Steel Co., 89 Fed. 706, 711, 32 C. C. A. 324, 
:>i } <); Lay ton Pure Food Co. v. Church & D wight Co., 
182 Fed. 24, 34, 104 C. C. A. 464, 474. 

(3) As the plaintiff, according to the allegations in 
the complaint and the agreed statement of facts, in 
addition to selling its product, guarantees it to be 
wholesome, palatable and uniform, as well as its 
cleanliness and excellence of manufacture, carbonat- 
ing and bottling, and for that purpose maintains a 
very elaborate system of supervision, it would not 
only be an imposition on the public, who purchases 
the hot tied preparation, but may cause great damage 
to the -plaintiff if permitted. 

If a person buying the bottled preparation, which 
has all the indicia of having been put up under the 
plaintiff's supervision and guaranty, the tops and 
labels on the bottles giving assurance of that fact, 
should sustain an injury by reason of the fact that it 
was improperly prepared, was unclean, contained un- 
wholesome ingredients, had insufficient carbonic acid 
gas for its preservation, and by reason thereof is un- 
fit as a beverage, or for any other cause, due to the 
negligence of plaintiff's licensed bottler, is injured, 
the plaintiff may be liable to heavy damages. Hav- 
ing assumed this guaranty of its bottlers, the plain- 
tiff not only has the right, but it is its duty, to take 
such steps as are necessary, by a proper system of in- 
spection, to guard the public, as well as itself, against 
this danger. The well-recognized rule of law is that 

132 



v. J. G. BUTLER & SONS 



Iho manufacturer of any article of food, drink or 
drug intended for consumption, or of any dangerous 
articles, may be liable to the ultimate purchaser and 
consumer for negligence causing an injury, although 
there is no direct contractual relation between them, 
such an action resting on tort, and not on contract. 
Waters-Pierce Oil Co. v. Deselms, 212 U. S. 519, 29 
Sup. Ct. 270, 53 L. Ed. 453; Standard Oil Co. v. Mur- 
ray, 119 Fed. 572, 57 C. C. A. 1; Huset v. J. I. Case 
Threshing Machine Co., 120 Fed. 865, 57 C. C. A. 237, 
240, 61 L. R. A. 303; Eiggs v. Standard Oil Co. (C. C.) 
130 Fed. 199; Keep v. National Tube Co. (C. C.) 154 
Fed. 121; Ketterer v. Armour (D. C.) 200 Fed. 322; 
Mazetti v. Armour, 75 Wash. 622, 135 Pac. 633, 48 
L. E. A. (N. S.) 213, Ann. Gas. 1915C, 140; Thomas 
V. Winchester, 6 N. Y. 397, 57 Am. Dec. 455 ; Statler 
v. Mfg. Co., 195 N. Y. 478, 88 N. E. 1063 ; Wellington v. 
Oil Co., 104 Mass. 64; Roberts v. Brewing Co., 211 
Mass., 449, 98 N. E. 95; Norton v. Sewall, 106 Mass. 
143, 8 Am. Rep. 298; Bishop v. Weber, 139 Mass. 411, 
1 N. E. 154, 52 Am. Rep. 715; Peters v. Johnson, 50 
W. Va. 644, 41 S. E. 190, 57 L. R. A. 428, 88 Am. St. 
Rep. 909; Peterson v. Standard Oil Co., 55 Or. 511, 
106 Pac. 337, Ann. Cas. 1912A. 625 ; Tomlinson v. Ar- 
mour & Co., 75 N. J. Law 748, 70 Atl. 314, 19 
L. R, A. (N. S.) 923; Dixon v. Bell, 5 Maul. & Sel. 198. 
The fact that the syrup used by the defendants is 
that manufactured by the plaintiff, assuming that it 
had been made for bottling purposes, is immaterial, 
for the syrup, although the principal ingredient of 
the finished product, is only one of several used 
for the preparation, when offered to the con- 
sumer. To maintain the reputation, and consequently 
the favor of the consuming public, it is important to 
the manufacturer of the preparation bearing its 
trade-mark that it should be wholesome, palatable, 
clean, and free from all impure and dangerous sub- 
stances, regardless of the fact whether it was bottled 
by itself and sold by it directly to the consumer, or 
through its licensees. In this case the bill charges, 

133 



THE COCA-COLA COMPANY 



and the agreed statement of facts admits, that the 
plaintiff manufactures two syrups, one for bottling 
and the other for fountain trade ; that the syrup for 
bottling purposes, differs in several material respects 
from that intended for the fountain trade; that the 
bottler's syrup contains more sugar, has 10 per cent, 
more caramel for coloring purposes, contains more 
phosphoric acid, and less caffeine than the fountain 
syrup; and these two syrups are put up and sold in 
distinctive packages. 

The authorities are numerous that, when a manu- 
facturer of only one article of food and drink sells it 
in bulk, and also puts it up in bottles, the latter bear- 
ing a distinctive trade-mark, a purchaser of the article 
in bulk will be guilty of unfair competition, and en- 
joined, if bottling it and affixing the manufacturer's 
distinctive labels upon the goods bottled by him. 
Knmss v. Peebles Co. (C. C.) 58 Fed. 585, 592; 
People v. Luhrs, 195 N. Y. 377, 89 N. E. 171, 25 L. R. 
A. (N. S.) 473; Hennessy v. White, Cox, Manual 
Trade-Mark Cases, 377; Browne on Trade-Marks, 
910, 759, and authorities there cited. One of the 
reasons given for this rule is that, "unless the 
manufacturer can control the bottling, he cannot 
guarantee that it is the genuine article prepared by 
him." To this may be added that he cannot tell 
whether it is bottled in so careful a manner as is es- 
sential to the preservation of the article and the main- 
tenance of its good reputation. This rule, of course 
applies with much greater force when there are two 
varieties manufactured by the same party and sold 
under the same trade-mark, but intended to be placed 
on the market for different purposes, as is the case 
in the instant cause. Eussia Cement Co. v. Katzen- 
stein (C. C.) 109 Fed. 314; Cook & Bernheimer v. Boss 
(C. C.) 73 Fed. 203; Thomas G. Plant Co. v. May 
Mercantile Co. (C. C.) 153 Fed. 229; Mcllhenny v. 
Hathaway (D. C.) 195 Fed. 652; Gillott v. Kettle, 3 
Duer (N. Y.) 624; Spalding v. Gamage, 32 R. P. C. 
273; Sebastian on Trade-Marks, page 159; Hopkins 

134 



v. J. G. BUTLER & SONS 



on Trade-Marks, page 275. A case almost identical 
with the facts in this case is Charles E. Hires Co. v. 
Xepapas (C. C.) 180 Fed. 952. 

In Powell v. Birmingham (Yorkshire Relish Case) 
14 R. P. C. 730, it was testified that the difference 
between the two articles under consideration was 
only a pinch of salt, and the Court held that, even in 
the case of such a small difference, the defendant had 
not proven the identity of their product with the 
plaintiff's. Of what benefit would a trade-mark be, 
if one buying the article protected by it were permit- 
ted to adulterate it, or given an opportunity to do so, 
and then offer it to the public as the genuine article, 
protected by the trade-mark? The greatest value of 
a trade-mark is the reputation established by the ex- 
cellence of the article, and the knowledge and appre- 
ciation of that fact by the consuming public. An ar- 
ticle without any merit can derive no benefit from a 
trade-mark, and only a temporary benefit from the 
most extensive advertisement. It is like the value of 
a "good-will" in an established going concern. It 
depends upon the successful operation of the busi- 
ness. Without that there is no value to it. Who 
would pay for the good will of a business conducted 
at a loss! The court is clearly of the opinion that, 
upon the facts in this case, the defendants are guilty 
of unfair competition. 

(4) Do the facts show a violation of the Sherman 
Act against monopolies and stifling competition? The 
trade-mark laws, like the patent laws, give the owner 
a monopoly which neither the Sherman Act nor any 
other Act of Congress forbids. It would be a para- 
dox to say that the exercise of a right, expressly 
granted by law, is unlawful. 

(5) Counsel for defendants rely on Dr. Miles Medi- 
cal Co. v. Park & Sons Co., 220 U. S. 373, 31 Sup. Ct. 
376, 55 L. Ed. 502, and Coca-Cola Co. v. Bennett 
(D. C.) 225 Fed. 429. What was decided in the Dr. 
Miles Medical Company Case was that the manufac- 
turer of an unpatented proprietary medicine cannot, 

135 



THE COCA-COLA COMPANY 



after an absolute sale of the article, fix the prices for 
future sales. The court in its opinion in that case, 
holds that the restraint of trade must be determined 
by the particular circumstances of the case, and the 
nature of the principles which are involved in it, and 
wlid her it is reasonable or unreasonable. In Coca- 
Cola v. Bennett, there was no question of unfair com- 
petition claimed by the plaintiff, which is the cause 
of complaint in this case. Nor was there any claim 
in that case that the plaintiff guaranteed the purity, 
cleanliness, wholesomeness and quality, by using its 
distinctive tops and labels on its bottles, and that, 
for the purpose of protecting itself against claims for 
damages on that guaranty, it maintains a system of 
supervisions and inspection, as set out in the agreed 
statement of facts herein. Nor did it appear in that 
case that the defendants used for bottling the syrup 
intended for soda fountains, and which was not suita- 
ble for that purpose. The court also found that the 
defendants made the preparation in the identical 
manner contemplated by the parties. That case is 
therefore not applicable. In view of the responsibili- 
ties of the plaintiff and the right of the purchasers 
to obtain the identical article, which they desire to 
buy, the requirements of the plaintiff are reasonable, 
and in the end, beneficial to the public. 

(6) Are plaintiff's acts in violation of the "Clay- 
ton Act"? That act provides (section 3) : 

"That it shall be unlawful for any person en- 
gaged in commerce, in the course of such com- 
merce, to lease or make a sale or contract for sale 
of goods, wares, merchandise, machinery, sup- 
plies or other commodities, whether patented or 
unpatented, for use, consumption or re-sale with- 
in the United States or any territory thereof or 
the District of Columbia or any insular posses- 
sion or other place under the jurisdiction of the 
United States, or fix a price charged therefor, or 
discount from, or rebate upon, such price, on the 
condition, agreement or understanding that the 

136 



v. J. G. BUTLER & SONS 



lessee or purchaser thereof shall not use or deal 
In the goods, wares, merchandise, machinery, sup- 
plies or other commodities of a competitor or 
competitors of the lessor or seller, where the ef- 
fect of such lease, sale or contract for sale or 
such condition, agreement or understanding may 
be to substantially lessen competition or tend to 
create a monopoly in any line of commerce. ' ' 
This act is invoked by the counsel for the defend- 
ants, in view of the agreed statement of facts that: 

"The plaintiff, as well as the bottling com- 
panies, through whom its syrup is sold to the 
retail dealer, have refused to sell to the defend- 
ants the syrup for the purpose of bottling, al- 
though the defendants offered to purchase and 
pay therefor, and objected to their use of the 
trade-mark "Coca-Cola" in connection with their 
bottled product." 

Whether that act is to be construed so as to com- 
pel one to sell his wares or manufactures to any one 
applying therefor cannot be determined in this case, 
as this is not an action to obtain relief 'of that nature, 
and is therefore not involved. Any one interested in 
that question may consult Union Pacific Coal Co. v. 
United States, 173 Fed. 737, 97 C. C. A. 578, and Great 
Atlantic & Pacific Tea Co. v. Cream of Wheat Co. 
(D. C.) 224 Fed. 566, affirmed 227 Fed. 46 C. C. A.. 
The issue in this case, as has been hereinbefore set 
forth, is whether one purchasing one of the ingre- 
dients of a preparation, although it be the chief one, 
can use it, without permission of the manufacturer, 
in such a manner that it may injuriously affect the 
manufacturer, the intending purchaser having the 
means to adulterate it, and by the use of the trade- 
mark and name of the manufacturer sell it to the 
public as the genuine article. It would although not 
impossible, certainly be a great hardship on the plain- 
tiff, if it were required to -permit its preparation to 
be bottled in every community throughout the United 
States, no matter how small the purchases for that 

137 



THE COCA-COLA COMPANY 



community may be, and maintain such supervision 
over the bottling as under its system it maintains and 
deems necessary. By confining its sales to bottling 
companies doing business in cities so centrally lo- 
cated as to be able to supply the demand for its syrup, 
and at the same time, enable it to supervise the bot- 
tling under its system, it does all which can be reason- 
ably expected of it, and the law demands. The plain- 
tiff, like all other manufacturers and dealers, is no 
doubt anxious to extend its trade as much as possible, 
and self-interest, if nothing else, will induce it to per- 
mit its preparation to be bottled in as many places 
as the trade, and its own interests, will justify. 

The court is of the opinion that the defendants are 
guilty of unfair competition, and that the business of 
the plaintiff, as conducted, is not in violation of any 
of the " anti-trust acts" of the United States. A de- 
cree granting a permanent injunction in conformity 
with the prayer of the bill may be prepared and sub- 
mitted to the court for approval. 



138 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE WESTERN DIVISION 

OF THE EASTERN DISTRICT 

OF KANSAS 



THE COCA-COLA COMPANY, Plaintiff, 

v. 
J. G. BUTLEE, J. L. BUTLER, and E. C. BUTLEE, 

doing business under the firm name of J. G. 
BUTLEE & SONS, Defendants. 



FINAL DECBEE. 

This cause came on to be heard at this term, and 
was argued by counsel; and thereupon, upon con- 
sideration thereof, it was ordered, adjudged and de- 
creed as follows, viz.: 

That the defendants J. G. Butler, J. L. Butler and 
E. C. Butler, doing business under the firm name of 
J. G. Butler & Sons, or doing business under the firm, 
corporate or individual name, and each of them, their 
and each of their servants, agents and employes, suc- 
cessors, assigns, and all persons claiming or holding 
under or through them, or either of them, be and are, 
and each of them is hereby perpetually enjoined and 
restrained from (1) manufacturing, advertising, of- 
fering for sale or selling or in any way disposing of 
beverages in bottles, having or using in connection 
therewith the crown tops and labels, or either of them, 
used on the bottles containing " Coca-Cola " as bot- 
tled by the plaintiff, The Coca-Cola Company, or its 
licensees, and furnished by said plaintiff for that 
purpose to its licensees, or crown tops and labels, or 
either of them, in imitation or simulation thereof, or 
(2) manufacturing, advertising, offering for sale or 
selling, or in any way disposing of beverages in 

139 



THE COCA-COLA COMPANY 



bottles, having stamped, printed or in any way marked 
thereon, or attached thereto, or used in connection 
therewith, or on, to or with any case, box, crate, stand 
or package of any kind in or upon which said bottles 
or bottled beverages are or may be handled, or any 
contrivance, artifice or device to advertise the said 
bottled beverages, any name, or names, contrivance, 
artifice or device in imitation or simulation of the 
trade-mark or trade-name of "Coca-Cola," or the 
words "Coca-Cola," or any like word or words, 
whether alone or in connection with other words or 
names, but (3) the said defendants are not enjoined 
by this decree from selling or offering for sale or dis- 
posing of any of the beverage "Coca-Cola" bottled 
by and acquired as a bottled product from the plain- 
tiff or its licensees. 

That the said plaint iff do have) of and recover from 
the defendants, J. G. Butler, J. L. Butler, and E. C. 
Butler, doing business under the name of J. G. Butler 
& Sons, the profits, gains and advantages which said 
defendants, or either of them, have received or made, 
or which have arisen or accrued to them, or either 
of them, from the infringing by them of the said 
plaintiff's trade-name and trade-mark of "Coca- 
Cola" by the making, manufacturing, advertising, 
offering for sale or selling of any beverage in bottles, 
having used in connection therewith the name "Coca- 
Cola" or any like word or words, whether alone or 
in connection with other words or names, or any other 
name, contrivance, artifice, or device in imitation of 
said plaintiff's trade-name and trade-mark of "Coca- 
Cola," or by the use of the crown tops and labels, or 
either of them, used on the bottles containing the 
beverage "Coca-Cola" as bottled by the plaintiff or 
its licensees and furnished by the plaintiff for that 
purpose to its licensees, or any crown tops and labels, 
or either of them, in imitation or simulation thereof. 

That upon motion of said plaintiff at any time dur- 
ing the life of this decree, but not otherwise, there be 
a reference made to the standing master in Chancery 

140 



v. J. G. BUTLER, et al. 



of this court to ascertain and take and state to 
this court an account of the number of bottles of 
beverages manufactured and sold, or manufactured or 
sold by the said defendants, or either of them, and also 
the gains, profits and advantages which the said de- 
fendants, or either of them, have received or made, 
or which have arisen or accrued to them, or either of 
them, from infringing the rights of the said plaintiff 
by the manufacturing and selling or manufacturing 
or selling of beverages in bottles, having used in con- 
nection therewith the tops or labels as aforesaid, or 
the words "Coca-Cola" or any like word or words, 
whether alone or in connection with other words or 
names, or using any name or names, contrivance, ar- 
tifice or device in imitation of plaintiff's trade-name 
and trade-mark of "Coca-Cola." 

That the said plaintiff on such accounting have the 
right to cause an examination of the defendants, and 
each of them, and their and each of their servants, 
agents and employes, or any other witnesses as may 
be necessary to take such accounting, and also the 
production of books, vouchers and documents of 
which said defendants and their, and each of their 
attorneys, servants, agents and employes may be pos- 
sessed, and cause them to attend for such purposes 
before the said master from time to time as such mas- 
ter shall direct. 

That the said plaintiff do recover of said defendants 
its costs, charges and disbursements in this suit, to 
be taxed, and for which costs, charges and disburse- 
ments execution may issue. 

And thereupon in open court the said defendants, 
and each of them, by their solicitors, Meliaffy, Reid & 
Meliaffy, duly waived service upon themselves of the 
writ of injunction issuing out of this court, directed 
to themselves, their agents, servants, employes, suc- 
cessors, assigns and all persons claiming or holding 
under or through them, or either of them, and 

141 



THE COCA-COLA COMPANY 



enjoining them and each of them in manner and form 
as in the above and foregoing decree specified, and 
duly accepted notice of said decree and the terms 
thereof. 

JACOB TRIEBER, Judge. 



I 



142 



IN THE DISTRICT COURT 
OF THE UNITED STATES 

FOR THE NORTHERN 
DISTRICT OF ALABAMA 




No. 220 FEBRUARY 20, 1912 



THE COCA-COLA COMPANY, 

v. 
DEACON BROWN BOTTLING COMPANY, et al 



CANDLER, THOMSON & HIESCH, Atlanta, Georgia, 
PERCY, BENNERS & BURR, Birmingham, Alabama, 
Solicitors and of Counsel for Complainant. 

SAMUEL B. STERN, Birmingham, Alabama, 
PERKINS BAXTER, Nashville, Tennessee, 
For Defendants. 



143 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE NORTHERN 

DISTRICT OF ALABAMA, 

SOUTHERN DIVISION 

200 FEDERAL 105 



No. 220 FEBRUARY 20, 1912 



THE COCA-COLA COMPANY, 

v. 
DEACON BROWN BOTTLING COMPANY, et al. 



1. TRADE-MARKS AND TRADE-NAMES (Sec. 93) VA- 
LIDITY EFFECT OF REGISTRATION EVIDENCE. 

Evidence hold to establish the exclusive use of the words 
"Coca-Cola" as a trade-mark in interstate commerce by the Coca- 
Cola Company for more than ten years next preceding February 
20, 1905, so that its registration thereafter made it a valid trade- 
mark, under Act February 20, 1905, c. 592, Sec. 5 (1>). 33 Stat. 
725 (U. S. Comp. St. Supp. 1911, p. 1461), reg-mlless of the 
descriptive character of the words. 

2. MONOPOLIES (Sec. 21) SUIT FOR INFRINGEMENT- 
DEFENSES. 

That a manufacturer's sale contracts may be invalid, as in 
violation of Sherman Anti-Trust Act July 2, 1890, c. 047. Sec. 1, 
20 Stat. 209 (U. S. Comp. St. 1901, p. 3200), is no defense to 
a suit for infringement of its trade-mark. 

3. COURTS (Sec. 310) FEDERAL COURTS PARTIES- 
JOINDER. 

Merely proper or even necessary parties are not required to be 
joined in a federal court, where the result would be to defeat its 
jurisdiction. 

144 



v. DEACON BROWN BOTTLING COMPANY, et al. 

4. TRADE-MARKS AND TRADE-NAMES (Sec. 95) SUIT 
FOR INFRINGEMENT PRELIMINARY INJUNCTION. 

A preliminary injunction granted to restrain infringement of 
the trade-mark "Coca-Cola." 

In Equity. Suit by the Coca-Cola Company against 
Deacon Brown Bottling Company and others. On 
motion for preliminary injunction. Motion 
granted. 

Percy, Benners & Burr, of Birmingham, Ala., and 
Candler, Thomson & Hirsch, of Atlanta, Ga., for com- 
plainant. 

Samuel B. Stern, of Birmingham, Ala., and Perkins 
Baxter, of Nashville, Tenn., for defendants. 

GKITBB, District Judge : 

The right of complainant to the use of the words 
" Coca-Cola" as a technical trade-mark under the act 
of 1881 is doubtful; at least, in view of the fact 
that the words are admittedly suggestive, and 
probably merely descriptive of the constituents of 
the beverage, and not subject to be appropriated as a 
trade-mark. On motion for a preliminary injunction, 
the complainant is required to make his right clear, 
and under this claim has not succeeded in doing so to 
my satisfaction. 

(1) The evidence, however, satisfied me that the 
complainant and its predecessors in title to the trade- 
mark have had actual and exclusive use of the com- 
bined words "Coca-Cola" for at least 10 years 
April 1, 1905, the date of the taking effect of the act 
of February 20, 1905. Under this act the trade-mark 
was again registered. The act, as construed, provides 
that 10 years' actual and exclusive user of the trade- 
mark confers the right to register it as a valid trade- 
mark, though the words are merely descriptive. For 
this reason, and in view of the facts shown by the 
affidavits, I think the complainant is entitled to the 
benefit of the trade-mark; it having been shown to 

145 



THE COCA-COLA COMPANY 



have acquired a secondary meaning, indicative of 
origin and ownership or manufacture of "Coca-Cola" 
by complainant, by such user, in addition to the pre- 
sumption, from a user 10 years before the enactment 
of the statute, that it had acquired such secondary 
meaning. 

Infringement is shown, if the trade-mark is valid, 
without conflict. The evidence does not show that a 
deleterious substance is included in the formula, or 
purposely introduced into the beverage, and there is 
not sufficient showing that complainant is disentitled 
to protection upon that ground. 

(2) Alleged invalidity and illegality of the dispens- 
ing contract, because of the Sherman Act, is no 
ground for denying the complainant protection 
against an infringement of its trade-mark, since 
awarding such relief does not involve the enforcement 
of the alleged illegal contract. 

(3) The licensees of complainant are not exclusive 
licensees, and hence not necessary, but at most only 
proper, parties; and as the Birmingham company is 
a citizen of Alabama, the making of it a party would 
deprive the court of jurisdiction of the case, so far 
as it seeks relief, at least, from unfair competition, 
and apart from the registered trade-mark. Merely 
proper and even necessary parties are not required to 
be joined, when the result is to defeat jurisdiction. 
Complete justice can be done as between the present 
parties to the bill. 

Complainant has sufficient interest in the subject- 
matter of the suit to maintain it. It retains title to 
the trade-mark and is directly interested in the in- 
fringement of it, with reference to even bottled 
goods, since the diminution of sales, by infringement 
of the bottlers, reflects on its sales to the bottlers. 

The act of February 20, 1905, does not seem to me 
to be open to the constitutional objections asserted 
against it by respondents. 

(4) The probability of complainant's ultimate suc- 
cess seems to me great enough to justify the issue of 

146 



v. DEACON BEQWN BOTTLING COMPANY, et al. 

the temporary injunction. Allowance of damages for 
infringement is an inadequate remedy to plaintiff, be- 
cause of the impossibility of any accurate measure- 
ment of its accrued damages and the uncompensated 
inroad on its good will by continued use of defend- 
ant's mark. The same may be said of defendant's 
right to indemnify on an injunction bond. However, 
the defendant can continue its business, using a dif- 
ferent mark, or none at all, so that there will not be 
a total interruption of its business; and the trial of 
the cause can be speeded to final order by any rea- 
sonable decree desired by defendant, and all reason- 
able protection given it by requiring the execution of 
a proper injunction bond. 

I think the greater probability of injury, not capa- 
ble of being indemnified against, is with the denial of 
the temporary injunction. 



147 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE NORTHERN 

DISTRICT OF ALABAMA, 

SOUTHERN DIVISION 



THE COCA-COLA COMPANY, Complainant, 

v. 
DEACON BEOWN BOTTLING COMPANY, et al, 

Respondents. 



DECREE. 

This cause coming on for final hearing, and being 
regularly called, it is ordered, adjudged and decreed 
by the Court that the temporary injunction hereto- 
fore rendered in said cause, be and the same hereby 
is made in all respects permanent. 

It is further ordered, adjudged and decreed that 
the complainant has in open court remitted its claim 
for any damages. 

It is further ordered, adjudged and decreed that 
all the costs for this proceeding be taxed against re- 
spondents, for which let proper execution issue. 

W. I. GrRTJBB, Judge. 



148 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE EASTERN DIS- 
TRICT OF OKLAHOMA 

216 FEDERAL 264 



JULY 15, 1914 



THE COCA-COLA COMPANY, 

v. 
BEANHAM, et al. 



1. TRADE-MARKS AND TRADE-NAMES 70 UNFAIR 
COMPETITION ACTS CONSTITUTING. 

Plaintiff prepared and sold a beverage called "Coca-Cola" and 
defendants one called "Koke," both of which were made from 
syrups mixed with carbonated water, put up in bottles, and also 
served by the glass. Defendant's bottles were slightly taller than 
plaintiff's. .The bottles of each party had a tin cap over the 
stopper, with the name of the beverage in script thereon, but it 
was the custom of dealers in serving the two beverages to remove 
the tin caps so that the purchaser did not see the name. Defend- 
ants sold exclusively to dealers. The color of the two beverages 
was similar, but it appeared that there were 181 beverages having 
practically the same color as Coca-Cola. Defendants neither sold 
Koke for Coca-Cola nor advised their customers to do so. HELD, 
that defendants were guilty of no unfair competition. 

2. TRADE-MARKS AND TRADE-NAMES 73 ORIGIN OR 
ADOPTION OF NAME. 

That certain purchasers of "Coca-Cola," prepared and sold by 
plaintiff, referred to it as "Koke" did not entitle plaintiff to en- 
join defendants from selling a somewhat similar beverage under 
the name "Koke," on the theory that by adoption or user the name 
"Koke" had become a secondary trade-name of plaintiff's product, 
where plaintiff had neither adopted nor used such name in con- 
nection with its beverage. 

149 



THE COCA-COLA COMPANY 



In Equity. Suit by the Coca-Cola Company against 
Joseph D. Branham and another, partners doing 
business as the Sand Springs Bottling Works. 
Temporary restraining order dissolved, and bill 
dismissed. 

Candler, Thomson & Hirsch, Atlanta, Georgia, Dil- 
Itird & Blake, Tulsa, Oklahoma, for plaintiff. 

Randolph, Haver & Shirk, Tulsa, Oklahoma, for de- 
fendants. 

YOUMANS, District Judge: 

This is a suit in equity to enjoin the defend- 
ants from infringement of the trade-name of plain- 
tiff, and to prevent unfair competition. There is 
no evidence tending to show fhat defendants have 
been guilty of infringement of plaintiff's trade- 
name. The facts with regard to the allegation 
of unfair competition are as follows: The trade- 
name of plaintiff's product is ' 'Coca-Cola." The 
defendants prepared and sold a beverage which is 
called "Koke. " Both beverages are made from 
syrups mixed with carbonated water. Both are put 
up in bottles, and are also served by the glass at cold 
drink stands. The bottles containing Koke are a little 
taller than those containing Coca-Cola. The bottles 
containing each beverage have a tin cap over the 
stoppers. The words Coca-Cola and Koke appear in 
script on these tin caps. Coca-Cola and Koke are 
similar in color. Defendants sold to dealers exclu- 
sively. It appears in testimony that in some instances 
persons wanting Coca-Cola would say, "Give me a 
dope," or "Give me a Koke." There is also proof 
to the effect that two or three dealers in Tulsa gave 
Koke to their customers when they had called for 
Coca-Cola. There is no proof that the defendants sold 
Koke for Coca-Cola, or advised their customers to do 
so. In that respect this case differs from the case of 
Coca-Cola Co. v. Gay-Ola Co., 200 Fed. 720, 119 C. C. 

150 



v. BRANHAM, et al. 



A. 164. In that case the facts are set out as follows : 

' ' Defendant claimed to have discovered com- 
plainant's formula, and to be in fact making the 
same thing. It adopted for its product * ' the 
word 'Gay-Ola/ It proceeded to bring this 
product into public notice by some advertising 
under its own name and by some other methods 
not criticized by complainant, all to an extent not 
distinctly shown by the record. It also wrote a 
series of letters to bottling companies which were 
engaged in bottling Coca-Cola, which letters were 
to the effect that it would sell the bottler Gay-Ola 
for a less price than he was paying for Coca- 
Cola; that the two articles were just alike, and 
no one could tell the difference; that the bottler 
could, if he wished, substitute Gay-Ola for Coca- 
Cola and his patrons would never know the dif- 
ference; that several bottlers, who had been 
handling Coca-Cola, were doing this successfully 
and without discovery; and that, if the bottler 
desired, defendant would ship him Gay-Ola in 
plain, unmarked packages, so that his dealings 
with defendant would not be observed. Several 
of the letters in the record are of this substantial 
effect, though they use different forms of expres- 
sions, and some only by hint and innuendo convey 
the invitation to substitute and so to deceive the 
final purchasers. Defendant also sent letters to 
soda fountain proprietors, setting out the cheap 
price and the merits of Gay-Ola and its identity 
with Coca-Cola, and quoting from a testimonial 
of a soda fountain proprietor : ' No one can tell it 
from Coca-Cola, and I sell it for Coca-Cola, and 
every one says I have the best Coca-Cola in the 
city.' On these letters, the defendant added the 
postscript : ' For your information, beg to state 
that we are shipping twenty-one Coca-Cola bot- 
tlers. "Nuff said." ' " 

Upon those facts it was held by the Court of Ap- 
peals for the Sixth Circuit that a case of unfair 

151 



THE COCA-COLA COMPANY 



competition had been made out in that defendant sold 
its product "as and for Coca-Cola. " Nothing appears 
in the testimony in this case connecting defendants 
with any effort to sell their product for Coca-Cola. 
There is nothing to show that they had such intention. 
In the case of Coats v. Merrick Thread Co., 149 
U. S. 562, 13 Sup. Ct. 966, 37 L. Ed. 847, the court 
said : 

"Bival manufacturers may lawfully compete 
for the patronage of the public in the quality and 
price of their goods, in the beauty and tasteful- 
ness of their including packages, in the extent of 
their advertising, and in the employment of 
agents, but they have no right, by imitative de- 
vices, to beguile the public into buying their 
wares under the impression they are buying those 
of their rivals. " j 

That was a suit charging unfair competition in the 
manufacture and sale of thread. It appeared in evi- 
dence that dealers had delivered to purchasers the 
thread of the defendants when they had been asked 
for that of plaintiff. On that point the court said: 

"We think the defendants have clearly dis- 
proved any intention on their part to mislead the 
dealers who purchase of them. Indeed, such 
dealers could not possibly fail to know what they 
were buying, and the fraud, if any, was practiced 
on the buyer of a single or a small number of 
spools, who might be induced to purchase the 
thread of the defendants for that of the plain- 
tiffs." 
Further in the opinion the Court said : 

"If the purchaser of such thread desires a par- 
ticular make, he should either call for such, in 
which case the dealer, if he put off on him a dif- 
ferent make, would be guilty of fraud, for which 
the defendants would not be responsible, or should 
examine himself the lettering upon the spools. ' ' 
It is true that it appears in testimony that it is the 
custom of dealers, in serving the two beverages, to 

152 



v. BEANHAM, et al. 



remove the tin caps from bottles, so that the purchaser 
does not see the name thereon, but that would be true 
as to any beverage of like or similar color to Coca- 
Cola. According to the testimony of plaintiff's agent, 
there are 181 beverages having practically the same 
color as Coca-Cola. Defendants cannot be held re- 
sponsible for what their customers did without aid, 
suggestion, or inducement from them. 

Plaintiff also argues that "Koke" has become the 
" secondary name" of its product, because it appears 
from the proof that some persons desiring that prod- 
uct say to the dealer, "Give me a Koke." A trade- 
name may be acquired by adoption or user. In their 
brief, counsel for plaintiff quote the following from 
38 Cyc. 765 : 

"Trade-names are acquired by adoption and 
user and belong to the one who first used them 
and gave them a value." 

But plaintiff has never used the word "Koke" in 
connection with its product. It has taken and used 
the name Coca-Cola. The use of the word "Koke," 
as applied to the product of the plaintiff, has been, 
so far as the testimony shows, by persons upon their 
volition without being moved thereto by defendants. 
If the use of the name had been observed by defend- 
ants, and it was afterwards adopted by them with the 
purpose and intention of taking advantage of that 
fact and to engage in the manufacture and sale of a 
beverage and call it "Koke," and sell it "as and for 
Coca-Cola," then a case of unfair competition would 
undoubtedly be made out. 

Assuming that there is such a thing as a secondary 
trade-name, the right to its exclusive use must de- 
pend upon adoption and use just as in the case of a 
primary name. There is such a thing as a name hav- 
ing acquired a secondary meaning. Elgin National 
Watch Co. v. Illinois Watch Case Co., 179 U. S. 665, 
21 Sup. Ct. 270, 45 L. Ed. 365; Bates Mfg. Co. v. Bates 
Numbering Machine Co. (C. C.) 172 Fed. 892. But 
the facts in this case do not call for an application of 

153 



THE COCA-COLA COMPANY 



that rule. The relief sought here is the prohibition 
of the use of a name that the defendants have neither 
adopted nor used. There is nothing to show that the 
defendants have neither adopted or were using the 
name for the purpose of selling the beverage manu- 
factured by them for Coca-Cola. 

The temporary restraining order will be dissolved 
and the plaintiff's bill dismissed. 



I 



154 



IN THE DISTRICT COURT 
OF THE UNITED STATES 

FOR THE SOUTHERN 
DISTRICT OF NEW YORK 

2 T. M. R. 234 



THE COCA-COLA COMPANY, 

v. 
WILLIAMSBUEGH STOPPEE COMPANY, et al. 



THE COCA-COLA COMPANY, 

v. 
WITTEMANN BEOS., CAVALIEEE, et al. 



CANDLER, THOMSON & HIRSCH, Atlanta, Georgia, 
HARRY D. NIMS, New York City, 
For Complainant. 

KIERNAN & MOORE and SPROULL, HARMON & SPROULL, 
For Defendants. 



155 



THE COCA-COLA COMPANY 



SOUTHERN DISTRICT OF NEW YORK 
2 T. M. R. 234 



JUNE 3, 1912 



THE COCA-COLA COMPANY, 

v. 
WILLIAMSBURGH STOPPER COMPANY, et al. 



THE COCA-COLA COMPANY, 

v. 
WITTEMANN BROS., CAVALIERE, et al. 



1. UNFAIR COMPETITION IMITATION OF FORM OF 
MARK. 

The name "Kspo-Cola" is not in itself an infringement upon the 
trade-mark "C'oea-('ola. v Imt the use of a style of script in imita- 
tion of that employed hy the complainant will be enjoined. 

2. UNFAIR COMPETITION IMITATION OF COLOR OF 
BEVERAGE. 

The manufacturer of a beverage to which a brown color is im- 
parted by the use of caramel cannot enjoin the manufacturer of 
another beverage from coloring his article in the same color and 
shade as the complainant's whether by the use of the same or 
of any other coloring medium. 

In Equity. On motions for preliminary injunctions. 

Candler, Thomson & Hirsch, Atlanta, Georgia, and 
Harry D. Nims, for complainant. 

Kiernan & Moore and Sproull, Harmon & Sproull, 
for defendants. 

156 



v. WILLIAMSBUBGH STOPPER COMPANY, et al. 

HOUGH, J. : 

This matter having been heard both on the orig- 
inal motion and on the settlement of an inter- 
locutory decree, two questions were reserved for 
further consideration: 

1st. Whether the defendant Esposito should be re- 
strained from using his trade-mark "Espo" written 
or printed in that particular form of script long used 
by complainant, and, 

2nd. Whether complainant is entitled to prevent de- 
fendants from coloring their product with caramel so 
as to produce that brown color said to be character- 
istic of Coca-Cola. 

As to the first point I am now convinced that the 
complainant is entitled to the relief asked. "Cola" 
is admittedly a descriptive word in which complainant 
is entitled to no special or exclusive right. Neverthe- 
less, the affidavits submitted are fully persuasive to 
the effect that "soft drinks," to which the word 
"Cola" can properly be applied, owe, if not their in- 
troduction, certainly their popularity wholly to the 
long-continued efforts of complainant. 

Esposito may use the word "Cola" and may use 
the word "Espo," but when he expresses either or 
both of those words in a style of script commercially 
unheard of except for advertising purposes, I am per- 
suaded that he goes too far. 

As to the second point, my conclusion is against the 
complainant, and for the following reasons: 

1. Despite the affidavit of Dr. Chandler, I can not 
persuade myself that caramel is wholly destitute of 
flavoring properties. I do not find this fact asserted 
in the dictionaries, and it is well known that caramel 
is commonly used in domestic cookery, and that (as 
domestically prepared, at all events) it has flavor I 
am sure. Since preliminary injunctions are always 
matters of grace, I think I am entitled to consider 
even something based on personal experience. 

2. There is a complete lack of direct authority upon 
the point urged by complainant's counsel, and on 

157 



THE COCA-COLA COMPANY 



familiar principles, this might well be considered 
enough to avoid a preliminary injunction where no 
immediate and overwhelming injury is to be expected. 

3. There are reported decisions in which the legal 
difficulty of approximating even for wrappers any 
given color is dwelt upon. To be sure, the door is 
left open for further consideration by Leschen Co. v. 
Broderick, etc., Co., 201 U. S. 166, but there are very 
appropriate remarks on the danger of permitting the 
appropriation of color in Diamond Match Co. v. 
Saginaw Match Co., 142 Fed. Eep. 727. The litiga- 
tion over Elastic Sea Drawers is a perfect instance 
of the uncertainty at present attending the matter 
(134 Fed. Eep. 366, 154 Fed. Eep. 914, 158 Fed. Eep. 
1020). In this last series of litigations I am respect- 
fully of the opinion that the decision of the fourth 
circuit is the better. ^ 

4. The papers submitted on these motions contain 
no evidence of any immediately expected injury; it 
is not shown that any damage has occurred, and they 
do not persuade me that any damage will occur. This 
is a good reason for refusing a preliminary injunc- 
tion. 

5. The foregoing positions are mostly negative, and 
do not really advance the discussion of a question that 
is sure to come up hereafter. 

How far the courts can go or should go in safe- 
guarding one man's private business is a very deli- 
cate question, and many of the solutions hitherto at- 
tempted are far from happy. Instances of this in the 
appellate court of our own circuit are the cases affect- 
ing Charteuse, Dr. Eeed's Cushion Shoe, and within 
the last few weeks the as yet unreported decision in 
the matter of the Waterman Pen Company. 

It is in my opinion a mistake for courts to go be- 
yond the broad and very general principles of the law 
of unfair competition. 

Being also of opinion that, more and more, men of 
experience are departing from the doctrine that the 
basis of unfair competition law is the protection of 

158 



v. WILLIAMSBURGH STOPPER COMPANY, et al. 

the public, and coming to the firm proposition that 
what is entitled to protection is complainant's prop- 
erty rights, the basic question is always this: What 
is the thing which the alleged infringer has the right 
to make and sell? 

Here the thing is to be dissociated from all such 
extraneous matter (however important) as trade- 
marks, packings, wrappers, dress, advertising, and 
the like. 

Every observer has probably noted some things in 
common use made by many manufacturers, yet re- 
sembling each other, especially in color; thus there 
are many white soaps, red dentifrices, and green hair- 
washes, and many people know that these colors 
are no essential. In this prevailing similarity of color 
there is a certain amount of imitation. I do not think 
it can be avoided, not that it should be prevented. 
If one manufacturer can appropriate a brown summer 
drink others in other businesses can do the like the 
primary colors are soon exhausted, and it needs very 
little of the spirit of prophecy to see the courts regu- 
lating shades of color as between different proprie- 
tors, with results beside which some judicial efforts 
in the way of labels would rank very high. 

As applied to this case, I think that not only are 
Cola drinks open to the world, but known Cola drinks 
are similarly open, or, in other words, that the un- 
patented article made by complainant is a thing 
(color and all) which anyone can make and vend in 
competition with complainant, and ought to be per- 
mitted so to do. 

It seems to me that the bread cases, of which the 
last is Fox Co. v. Best Baking Co., 209 Mass. 251, 
measurably support the statement above insufficiently 
made. 

The injunction orders have been signed along the 
lines indicated. 

NOTE. 

Since the filing of the memorandum herein on June 
3, 1912, the complainant has called my attention to 

159 



THE COCA-COLA COMPANY 



the fact that its counsel considers that the use of cara- 
mel or any other particular substance "to produce 
that brown color said to be characteristic of Coca- 
Cola" is unimportant. 

As I now understand it, the proposition is that com- 
plainant wishes to prevent defendants from color- 
ing their product (with anything) so as to produce 
said brown color. If the proposition considered be 
stated as the complainant now states it, my conclu- 
sion would be the same as before. As a matter of 
fact, however, complainant does use caramel and so 
do the defendants; caramel happens to be brown, 
though doubtless it may be of many shades of brown. 
I think the defendants may choose and use the same 
shade of brown as does the complainant just as freely 
as any butter manufacturer can make any butter of 
the same shade of yellow as that^aifected by the most 
popular brand he knows of butter, I believe, being 
naturally whitish in color, at most seasons of the year. 



160 



v. WILLIAMSBURGH STOPPER COMPANY, et al. 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE SOUTHERN 

DISTRICT OF NEW YORK 



THE COCA-COLA COMPANY, 

Complainant, 
v. 

DECREE 



WILLIAMSBUEGH STOPPER 
CO., THOMAS ESPOSITO, 



doing business as THE ESPO 
BOTTLING CO., and WITTE- 
MANN BROTHERS, 

Defendants. 



INJUNCTION. 
E. 9-133. 



This cause coming on to be heard on complainant's 
motion for a final decree, the complainant appearing 
by its solicitors Candler, Thomson & Hirscli, of At- 
lanta, Georgia, and Harry D. Nims and Colby & Gold- 
beck, of New York City, and the defendant Williams- 
burgh Stopper Co. appearing by Sproull, Ilarmer & 
Sproull, of New York City, and it appearing to the 
court that the issues involved herein have been settled 
and agreed upon by the parties hereto, and the de- 
fendant Williamsburgh Stopper Co. agreeing to con- 
sent to the entry of a final decree in the form fol- 
lowing : Now, on motion of Harry D. Nims, of counsel 
for the complainant, it is 

Ordered, adjudged and decreed that the defendant 
Williamsburgh Stopper Co., and its agents, servants, 
clerks, employees, and all persons claiming under, by 
or through it, and each of them, be and they hereby 
are perpetually enjoined and restrained : 

1. From in any manner manufacturing, selling, or 
offering for sale any label, cap, stopper, or adver- 
tising matter containing any colorable imitation of 

161 



THE COCA-COLA COMPANY 



the name " Coca-Cola, " or of the form in which the 
same name has long been and now is used by com- 
plainant ; 

2. From any imitation of complainant's name, 
label, cap, or stopper, so contrived as to lead to the 
belief, or to be calculated to lead to the belief, that 
the article to which the same is attached is or con- 
tains the product manufactured and sold by the com- 
plainant, and from representing in any manner or 
form, directly or indirectly that any soft drink or 
beverage not manufactured by the complainant herein 
is ' ' Coca-Cola, " and from attempting to pass off, in 
any way, any syrup or beverage not made by the 
complainant herein, as and for "Coca-Cola." 

3. From in any manner manufacturing, selling, or 
offering for sale, any caps, labels, stoppers, or adver- 
tising matter containing the name "Espo-Cola" in 
any form which is a colorable imitation of complain- 
ant's trade-mark. 

JULIUS M. MAYEK, 
Judge of the U. S. District Court. 

We consent to the entry of the foregoing decree. 

Sproull, II armer & Sproull, 

Atty. for Deft., Williamsburgh Stopper Co. 

Candler, Thomson & Hirsch, 
Colby & Goldbeck, 
Harry D. Nims, 

Solicitors for Complainant. 

Endorsed: U. S. District Court, S. D. of N. Y., filed 
Jan. 28, 1914. 

UNITED STATES OF AMERICA. ) 

> ss * 
SOUTHERN DISTRICT OF NEW YORK. $ 

I, ALEXANDER GILCHRIST, JR., Clerk of the District 
Court of the United States for the Southern District 

162 



v. WILLIAMSBURGH STOPPER COMPANY, et al. 

of New York, do hereby Certify that the Writings 
annexed to this Certificate, namely, Final Decree of 
Injunction against Williamsburgh Stopper Company, 
filed January 28, 1914, in the case entitled The Coca- 
Cola Co., against Williamsburgh Stopper Co., Equity 
No. 9-133, have been compared by me with their orig- 
inals on file and remaining of record in my office ; that 
they are correct transcripts therefrom and of the 
whole of the said original. 

In Testimony Whereof, I have hereunto subscribed 
my name and affixed my seal of the said Court at the 
City of New York, in the Southern District of New 
York, this 22nd day of August, in the year of our Lord 
One Thousand Nine Hundred and Twenty-two, and of 
the Independence of the said United States the One 
Hundred and Forty-Seventh. 

(Seal) ALEX. GILCHEIST, JE., Clerk. 



163 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE SOUTHERN 

DISTRICT OF NEW YORK 



THE COCA-COLA COMPANY, 

Complainant, 
v. 

WILLIAMSBURGH STOPPER FlNAL DECREE 

CO., THOMAS ESPOSITO, > 

1-1 mTjTT. ircioX INJUNCTION 

doing business as THE ESPO 



BOTTLING CO., and WITTE- 
MANN BROTHERS, 

Defendants. 



Q 



This cause coming on to be heard on Complainant's 
motion for a final decree, the Complainant appearing 
by its solicitors, Candler, Thomson & Hirsch, of At- 
lanta, Georgia, and Harry D. Nims, and Colby & 
Goldbeck, of New York City, and the defendant Witte- 
mann Brothers appearing by Kiernan & Moore, of New 
York City, and it appearing to the Court that the is- 
sues involved herein have been settled and agreed 
upon by the parties hereto, and the defendant Witte- 
man Brothers agreeing to consent to the entry of a 
final decree in the form following: Now, on motion 
of Harry D. Nims, of counsel for the Complainant, 
it is 

Ordered, Adjudged and Decreed that the defendant 
Wittemann Brothers, and its agents, servants, clerks, 
employees, and all persons claiming under, by or 
through it and each of them, be and they hereby are 
perpetually enjoined and restrained 

1. From in any manner manufacturing, selling, or 
offering for sale any label, cap, stopper, or advertis- 
ing matter containing the name "Coca-Cola" or any 
colorable imitation thereof, or of the form in which 
the same name has long been and now is used by the 
Complainant ; 

164 



v. WILLIAMSBURGH STOPPER COMPANY, et al. 

2. From any imitation of Complainant's name, 
label, cap, or stopper, so contrived as to lead to the 
belief, or to be calculated to lead to the belief, or to 
be calculated to cause the public to believe, that the 
article to which the same is attached is or contains the 
product manufactured and sold by the Complainant, 
and from representing in any manner or form, di- 
rectly or indirectly that any soft drink or beverage not 
manufactured by the Complainant herein is "Coca- 
Cola," and from attempting to pass off, in any way, 
any syrup or beverage not made by the Complainant 
herein, as and for "Coca-Cola." 

January 7, 1914. 

J. M. MAYER, 
United States District Judge. 

We consent to the entry of the foregoing decree. 

Kiernan & Moore, 

Solicitors for Deft. Wittemann. 

Endorsed : 

U. S. District Court, S. D. of N. Y., filed Jan. 15, 
1914. 

* 

UNITED STATES OF AMERICA, 
SOUTHERN DISTRICT OF NEW YORK. 

I, ALEXANDER GILCHRIST, JR., Clerk of the District 
Court of the United States for the Southern District 
of New York, do hereby Certify that the Writings an- 
nexed to this Certificate, namely Final Decree of In- 
junction against Wittemann Bros., filed Jan. 15, 1914, 
in the case entitled The Coca-Cola Company v. Wil- 
liamsburgh Stopper Company, et al., Equity 9-133, 
have been compared by me with their originals on file 
and remaining of record in my office ; that they are 
correct transcripts therefrom and of the whole of the 
said originals. 

165 



THE COCA-COLA COMPANY 



In Testimony Whereof, I have hereunto subscribed 
my name and affixed my seal of the said Court at the 
City of New York, in the Southern District of New 
York, this 22nd day of August, in the year of our 
Lord One Thousand Nine Hundred and Twenty-two, 
and of the Independence of the said United States 
the One Hundred and Forty-seventh. 

ALEX. (jiLCHRisT, JE., Clerk. 



166 




No. 34 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 
FRANK F. MYKRANTZ, Defendant. 



SATER, District Judge : 

The charge is unfair competition. The case was 
well tried and ably argued. Excepting certain affi- 
davits and two depositions, the evidence was all taken 
in open court. Whatever advantage accrues from ac- 
quaintance with local situations is to a considerable 
degree present. The several drug stores and places 
of business specifically mentioned in the record, in 
which soft drinks are sold, are in well known local- 
ities. The defendant's store at the southwest corner 
of Poplar Avenue and North High Street and at 
No. 23 South High Street, and those of Hatton Bros., 
The Perfecto Cigar Company, The Busy Bee Candy 
Kitchen, Foeller, May Drug Company, Wm. H. Sy- 
fert Company, and the Wendt-Bristol Company are 
passed by me one or more times almost daily in go- 
ing to and from my work when in the City. The 
Park Street Pharmacy is also familiarly known, and 
on one of my frequent routes. Notwithstanding the 
advantages thus existing for an understanding of the 
evidence, the determination of the vital issues in the 

167 



THE COCA-COLA COMPANY 



case is not free from embarrassment. The cred- 
ibility of witnesses is involved. All are not equally 
credible, whether tendered by one side or the other, 
nor have all had the same, or equal, or full oppor- 
tunities of knowing the matters concerning which they 
testified. In some instances interest and ill feeling 
notably in the case of Massey and Mykrantz were 
manifest. The case calls for a critical analysis of 
the evidence. The entire record has therefore been 
re-examined. 

Diverse citizenship exists. The plaintiff corpora- 
tion has operated since sometime in 1892. Its busi- 
ness, extensively conducted in North America, to a 
considerable extent in South America, and in a lim- 
ited way in Australia and the Sandwich and Philip- 
pine Islands, is large. Its cost of advertising in 1905 
was $280,000.00. In each of tM past three years it 
has been as much as $1,200,000.00. Its annual sales 
in Columbus aggregate 20,000 gallons; in Ohio, 
300,000 gallons. The immediate, but not the only pur- 
pose of these recitals is that the substantial character 
of the jurisdictional averment in the bill is to be 
tested, not by the mere immediate pecuniary damage 
resulting from the acts of which complaint is made, 
but by the value of the business to be protected and 
the rights of property which plaintiff seeks to have 
recognized and enforced. Bitterman v. L. & N. E. E., 
207 U. S. 205, 225; Texas & Pac. Ey. Co. v. Kute- 
man, 54 Fed. Eep. 547, C. C. A. 5 ; Foster, Fed. Pr., 
4th Ed., 90, 98, et seq. The court has jurisdiction. 

It was stipulated that " There is no issue made in 
this case regarding the validity of the trade-mark 
' Coca-Cola. ' ' ' The defense urged, however, that plain- 
tiff did not have a right to the use of the name 
"Coca-Cola" and may not complain of unfair com- 
petition in that it does not come into court with clean 
hands, on account of the name being misleading and 
deceptive. The weight of authority seems to be that 
such a defense need not be affirmatively pleaded. 38 
Cyc. 897; 21 Ency. PL & Pr. 763, 764. Neither the 

168 



v. FEANK F. MYKRANTZ 



evidence nor prior adjudications to which this court 
should give heed sustain the defense thus made. See 
the discussion in Nashville Syrup Co. v. Coca-Cola 
Co., 215 Fed. Rep. 527, C. C. A. 6; U. S. v. 40 Barrels 
and 20 Kegs of Coca-Cola, 215 Fed. Rep. 535, 544, 
C. C. A. 6; Coca-Cola Co. v. Nashville Syrup Co., 200 
Fed. Rep. 153. 

Counsel are not agreed as to the rule of evidence 
to be satisfied by plaintiff in order to win. The ac- 
tion is based essentially upon fraud. Fraud must be 
proved. If it appears that the defendant was de- 
stroying or attempting to destroy an honest business 
by dishonest means, the action must be sustained. 
The gravamen of the complaint is a fraudulent pur- 
pose on defendant's part, carried into action, to foist 
upon the public a spurious article as that of plaintiff's 
and thus to deprive the plaintiff of the profits which 
it would otherwise receive. Fraud may be inferred 
from facts, but they must be such as to warrant the 
inference. On account of the character of the action, 
the proof must satisfy the court. N. K. Fairbank Co. 
v. Windsor, 124 Fed. Rep. 200, 202, C. C. A. 2. The 
evidence must clearly preponderate in plaintiff's 
favor. Hostetter Co. v. Bower, 74 Fed. Rep. 235. It 
must be clear and convincing. U. S. v. Iron and Sil- 
ver Min. Co., 128 U. S. 673. The plaintiff is not, 
however, required to establish its case beyond a rea- 
sonable doubt. 

The defendant claims that he regarded Coca-Cola 
as deleterious, as a habit-forming drink. The cross- 
examination of the witness Wesener went in part to 
that point, but against the defendant. The evidence 
does not warrant the claim. The ruling was adverse 
to a like claim in U. S. v. 40 Barrels and 20 Kegs of 
Coca-Cola, 215 Fed. Rep. 535, C. C. A. 6. 

At the conclusion of the evidence it was stated from 
the bench that the analyses made by plaintiff's chem- 
ists would be accepted. Further reflection and a re- 
consideration of the evidence of the experts leave 
that conclusion undisturbed. The correct analysis of 

169 



THE COCA-COLA COMPANY 



Coca-Cola is attended with difficulty. Defendant's 
counsel concede the test to be "a delicate one." 
(Brief p. 48.) The conclusion reached carries no re- 
flection on the experts offered by the defendant. 
Neither of them had analyzed Coca-Cola prior to his 
being brought into the case. The plaintiff's witnesses 
had each had a large experience in testing the article 
in question and substitute therefor. Caspari was an 
intelligent and impressive witness. Wesener and 
Fuller obtained from analyses of Coca-Cola the same 
results as he did. Fuller was in some degree handi- 
capped by his evidence in the Government case 
brought at Chattanooga portions of which he says 
were incorrectly abstracted. He states that he has 
learned since he then testified and knows that he 
erred at that time in certain respects; but the result 
would be the same were his evidence wholly disre- 
garded. Thurston's tests as regards the determina- 
tion of the several ingredients of Coca-Cola could 
hardly have been satisfactory to himself. Withrow 
was learned and sincere, but was borne down by the 
weight of the evidence of men equally learned and 
of greatly wider experience in the testing of the ar- 
ticle in question. It is not shown or claimed that the 
constituents of Coca-Cola are other than those stated 
by the plaintiff's experts. It is not shown that the 
analyses made by Caspari of the samples sent him 
were incorrect. The liquids so sent were not the 
plaintiff's product. The defendant's contention that 
the trouble between him and Massey arose out of the 
refusal of the former to employ Coca-Cola signs for 
advertising purposes and his claim that Massey never 
accused him of selling a substitute for Coca-Cola, 
cannot be accepted. The use of such signs is by 
no means universal. If the refusal to use them ordi- 
narily provoked a hostility such as this case betrays, 
Massey must have had many quarrels on his hands. 
Considering the large sales of Coca-Cola, it is im- 
probable that a feeling so deep-seated would have 
arisen from a source of business, which withholding 

170 



v. FRANK F. MYKEANTZ 



in some degree profits from the plaintiff, diminished 
the profits of the defendant. It must be that Massey 
incited his employer to investigate the defendant's 
conduct of his business as regards his sales of Coca- 
Cola. It was his duty to report to plaintiff his bona- 
fide belief, if he had it, in an invasion of its property 
rights. On account of his length of service with it, 
it must have known his characteristics and degree of 
trustworthiness. It can hardly be that it would 
hurriedly embark or persist in expensive litigation 
to gratify the animosity of a salesman, who is ap- 
parently quick of temper, and, when angry, prone to 
the use of reprehensible language. It is in evidence 
that the defendant also at times employed unseemly 
epithets. But whatever may have been the language 
used by these parties and whatever may have been 
their feeling of mutual ill will is not determinative of 
the case and should not distract the mind of counsel 
or the court from the real issues. Stutson in his 
evidence alludes to his effort as an intermediary 
to patch up the differences between Massey and 
Mykrantz, but he does not state the cause of such 
differences (pp. 562-563). Some three or four years 
prior to the trial the defendant ordered Massey from 
his store. The latter testifies that he called in 
Mykrantz in 1904 and later discovered that he was 
diluting his Coca-Cola, that he told him of this and 
that he was not selling genuine Coca-Cola as manu- 
factured by the plaintiff, that this subject was dis- 
cussed two, three or four years, that he repeated his 
charge that the article sold by the defendant was not 
genuine, and that some three or four years ago his 
accusations culminated in Mykrantz ' ordering him out 
of his store. Mykrantz testified (p. 641) that Massey 
never accused him of selling a substitute for Coca- 
Cola. He knew, however, when Harrington, Bar- 
thelow and Friend visited his cellar on September 
12, 1914, that he was suspected. He says (p. 627) 
that he gave a sample to Harrington with the request 
that he take it to his chemist, as he would like to have 

171 



THE COCA-COLA COMPANY 



the matter settled, because he understood the Coca- 
Cola Company had sent detectives to his different 
stores and he wished by an analysis to stop the mat- 
ter forever, as ,it was becoming rather worrisome. In 
an affidavit he made oath that when he ordered 
Massey out of his store, the latter had called for a 
drink of Coca-Cola, and, after testing it and placing 
the glass on the counter, said in a loud voice several 
times, "This is not Coca-Cola;" that at the same time 
he gestured and caused considerable commotion; 
that he had been guilty of such conduct at different 
prior times within a period of probably a year; that 
he was thereby injuring the defendant 's business, and 
in consequence he was compelled repeatedly to order 
him from the store. He says these things were re- 
ported to him by Miss Davis, a clerk; but the fact 
remains that he had knowledge of j the accusation. He 
corroborates Massey that the break between them was 
due to the latter's repeated accusation of the sale of 
a spurious article and not on account of a refusal to 
display signs. The plaintiff did not act solely on the 
representations (if any) of Massey, whatever they 
may have been. It acted with deliberation. It em- 
ployed detectives, who visited plaintiff's stores in 
quest of information in 1913. It later sent Friend in 
1914 to ascertain, if possible, the real situation. It 
employed chemists to analyze the samples which 
Friend claimed he obtained, and not until after these 
things were done and the results of its efforts known 
was the present suit brought. 

Counsel rightfully agree that if the defendant was 
engaged in the fraudulent practices attributed to him, 
his operations would be conducted secretly. It is 
also reasonable that, if thus guilty, he would pur- 
chase and dispense some genuine Coca-Cola to disarm 
suspicion and render detection more difficult. Coun- 
sel for the respective parties apply the rule of 
secrecy to the evidence adduced by the other, but, as 
it seems to me, neither concedes its full force when 
applied to that offered in behalf of his own client. 

172 



v. FRANK F. MYKRANTZ 



The rule militates against so much of the evidence 
of the Pinkerton Detectives as charges that defend- 
ant's employes admitted that the defendant made his 
own Coca-Cola and that they could not sell it in quan- 
tity because they had not the ingredients on hand to 
make a new supply. It is possible but not probable 
that such statements were made; and yet the detec- 
tives were more impressive as witnesses and of a 
higher type than are ordinarily men of their occupa- 
tion. That the Pinkertons did not buy in quantity 
is borne out by the evidence on both sides. The de- 
fendant's witnesses say that none of them ever sold 
Coca-Cola from the container to be taken from the 
store, excepting to Friend and in one or two other 
specified instances. They deny that they ever re- 
fused or were told to refuse such a request^The de- 
tectives were sent for the express purpose of making 
such purchases. They say they attempted to buy at 
each store and were refused. That they were here 
and visited the stores cannot well be doubted. There 
are details mentioned, incidentally or otherwise, such 
as the date of the opening of the store at Main and 
High Streets, of which they could not have had 
knowledge had they not been here. That a year later 
two samples should have been procured without diffi- 
culty from each store also operates against the evi- 
dence of the detectives. Their efforts, however, 
lacked adroitness and were such as were liable to 
meet with defeat, if guilty knowledge was present on 
the part of the defendant's employes and they wished 
to shield him. 

The rule of secrecy also disposes of much of the 
evidence offered by the defendant. It is improbable 
that, if substitution was going on, it should have been 
known to more than one or two of the defendant's 
employes; and, as the central store was at No. 23 
South High Street, from which Coca-Cola, real or al- 
leged, was sent out from time to time to one or more 
of the stores, as the case may have been, the person 
or persons who knew of the substitution, if made, 

173 



THE COCA-COLA COMPANY 



would naturally be located at that store. A large por- 
tion of the evidence given by defendant's employes 
is negative in character and for practical purposes a 
negligible quantity; they did not know of any substi- 
tutes or adulteration, because they did not have the 
opportunity of knowing. 

The evidence given by certain numerous witnesses 
that what was sold over the counter tasted and looked 
like Coca-Cola is not influential. On the cross-exam- 
ination they freely admitted that they were not ex- 
perts as to its taste or color. All they could say was 
that to their knowledge no substitute had been pre- 
pared or placed in the containers and that what they 
tasted and saw tasted and looked like Coca-Cola. 
Whether it was or not, they were not sufficiently ex- 
pert to determine. There was ample opportunity to 
prepare a substitute without the^r knowledge. Mas- 
sey by experiences was by far the best qualified of 
any witness that appeared to determine whether the 
article sold was the genuine or spurious. It was a 
part of his business to know. In the light of the evi- 
dence, his judgment as to the spurious character of 
the article sold was correct. 

It is freely admitted that Friend obtained from 
each of the defendant's five stores two samples of 
the liquid sold from containers as Coca-Cola. The 
happenings as narrated by him. Hirsch and Bigelow 
are quite fully corroborated in their essential and to 
a considerable extent in their non-essential details 
by defendant's employes. It is true that in one in- 
stance it is said the purchaser requested the addition 
of simple syrup to the article purchased and that such 
addition was made, but this is not sustained by the 
weight of the evidence. The very purpose of the pur- 
chase was to get Coca-Cola just as it came from the 
container. But were it otherwise, it does not appear 
that the result of its analysis would have been dif- 
ferent. Friend went about his investigation in a 
thorough, methodical and business-like way, well cal- 
culated to be effective. He and his associates have 

174 



v. FEANK F. MYKEANTZ 



told of their care to obtain and preserve samples in 
clean bottles, of their manner of sealing and labeling 
them, of the caution exercised to prevent tampering 
with them and of their final shipment in their sealed 
condition to Caspari. His evidence, in so far as it 
touches the condition of the bottles when they were 
received by him, corroborates them. Friend testified 
freely and with much detail. He impressed me as a 
truthful witness. Testing his statements by the dis- 
closures of defendant's witnesses, in so far as he 
was brought in contact with them, confirms and com- 
pels such belief. Having testified truthfully as to 
how he procured the samples and as to the incidents 
occurring when some of them were obtained, why 
should his evidence, or that of Hirsch and Bigelow, 
not be accepted as to the handling and final disposi- 
tion of the samples after their procurement? No one 
has said that he or any one else substituted any de- 
coction for them, or adulterated, or in any manner 
tampered with them, or that any one of them pos- 
sessed sufficient knowledge to prepare a substitute, or 
to add a substance which would destroy "Merchan- 
dise No. 5." There is an entire absence of evidence, 
direct or circumstantial, on all these points. If he 
and his associates, or any of them, deliberately 
switched some substitute for the samples, or added 
or subtracted some ingredient, the offending party 
or parties were guilty of most despicably fraudulent 
conduct for no other purpose than to injure the de- 
fendant. Such baseness cannot be implied in the ab- 
sence of evidence upon that point, because fraud must 
be proved, not presumed. That his helpers were 
drawn from the class of the employed cannot be held 
against them. Were it otherwise, the same rule would 
play havoc with the witnesses for the defendant. 
Moreover, it is yet to be shown that the employed, 
the laboring class, the common people, are not as 
truthful as others. No substance is even suggested 
which could have been substituted, for the samples or 
which could have been placed in them, whose analysis 

175 



THE COCA-COLA COMPANY 



would yield the result obtained by Caspari. The evi- 
dence of Friend and his helpers must be accepted as 
true. Whatever contradictions and variations are 
found are not sufficient to impair its force. From 
this it follows that the defendant was selling another 
as Coca-Cola. 

The conclusion that the defendant was guilty of 
palming off as Coca-Cola some other article does not 
rest wholly on Massey's ability in tasting or the evi- 
dence of Friend and his assistants. The defendant 
caused various drinks to be prepared in his cellar. 
Fismer was one of his employes that mixed or pre- 
pared them. Fismer was in a position to know what 
was going on. He may have been discharged. He 
may havo felt hostile about it. But, when he testi- 
fied, he attempted, in a lame and mistaken way, it is 
true, to shield his former master. His evidence is 
so evasive as to defeat its purpose. To gather its full 
import it must be taken as a whole every question 
and answer just as the one was propounded and the 
other given. Had he freely confessed his guilty par- 
ticipation in the preparation of a substitute, using an 
extract or other ingredient whose resultant would 
simulate Coca-Cola, and had he expressly charged 
that the defendant directed such preparation and 
caused the product to be sold, his evidence would 
have been scarcely less hurtful to the defendant than 
it was in the condition in which he left it. His will- 
ingness to protect the defendant may have been due 
to a fear of discrimination against himself on account 
of his having disclosed the secrets of his former em- 
ployer's business, or on account of anger due to what 
he deemed a betrayal of his confidence, but his de- 
meanor and evidence convince me that he admitted 
to others his part in fraudulent practices in defend- 
ant's store. 

Doubt was entertained when the evidence was com- 
ing in as to the competency of that offered as to the 
extent of sales of Coca-Cola by other drug stores 
and other places of business. A determination of the 

176 



v. FRANK P. MYKRANTZ 



admissibility of such evidence and of the weight to 
be given to it is not, in my judgment, essential to the 
decision of the case. In view, however, of counsel's 
extended discussion of its competency and its hear- 
ing, if the ruling on its admissibility be favorable to 
the plaintiff, it merits the court's consideration. A 
wide latitude is given to the admission of evidence 
in cases of fraud, for the reason that fraud is 
usually of such a nature that it is impossible to prove 
it by direct and positive evidence. Elliot, Ev., Sec. 
814; Butler v. Watkins, 13 Wall. 456, 464. The lib- 
erality which prevails in the admission of evidence 
is thus stated in Holmes v. Goldsmith, 147 U. S. 150, 
164: 

"As has been frequently said, great latitude is 
allowed in the reception of circumstantial evi- 
dence, the aid of which is constantly required, 
and, therefore, where direct evidence of the fact 
is wanting, the more the jury can see of the sur- 
rounding facts and circumstances, the more cor- 
rect their judgment is likely to be. The com- 
petency of a collateral fact to be used as the 
basis of legitimate argument is not to be deter- 
mined by the conclusiveness of the inferences it 
may afford in reference to the litigation fact. It 
is enough if these may tend, even in a slight de- 
gree, to elucidate the inquiry, or to assist, though 
remotely, to a determination probably founded 
in truth. Stevenson v. Stewart, 11 Pa. St. 307. 
The modern tendency, both of legislation and of 
the decision of courts, is to give as wide a scope 
as possible to the investigation of facts." 
Judge Cooley, in Stewart v. People, 23 Mich. 63, 
75, held that the proper test for the admissibility of 
evidence ought to be whether it ha-s a tendency to ef- 
fect belief in the mind of a reasonably cautious per- 
son, who should receive and weigh it with judicial 
fairness. This accords with the Ohio rule that the 
spirit of the law of evidence permits a resort to every 
reasonable source of information upon a disputed 

177 



THE COCA-COLA COMPANY 



question of fact arising in a case. Bell v. Brewster, 
44 Ohio St. 690, 697. In the same case, at pp. 699, 
700, Phillips on Evidence is quoted to the point that 
it may be laid down as a first principle that exclu- 
sion is generally an evil, and admission generally 
safe and wise, and that it is certain that the adminis- 
tration of justice in our courts has suffered, not from 
too free an admission of evidence, but from too rigid 
exclusion. Evidence of collateral matters is admis- 
sible which is capable of affording a reasonable 
presumption or inference as to the principal mat- 
ter or fact in dispute. Brewing Co. v. Bauer, 50 Ohio 
St. 560, 565; Thomson, Ohio Trial Ev., Sec. 163, cit- 
ing Insurance Co. v. Tobin, 32 Ohio St., 77, 91. The 
transaction under investigation is the sale of Coca- 
Cola, real or spurious, by lli< i defendant. The pur- 
pose of the plaintiff is to show tjaat the purchases of 
the genuine article by other retail dealers under con- 
ditions and circumstances substantially the same as 
those surrounding the defendant, were so greatly in 
excess of those made by the defendant as to warrant 
the inference that to supply the demand at his places 
of business he dispensed a substituted article. If the 
evidence is competent, it is not necessary that it 
should be shown that the conditions and circum- 
stances were precisely the same. Similarity or equiv- 
alency in that respect is sufficient. It will also be suf- 
ficient should the conditions and circumstances sur- 
rounding the defendant be more favorable to large 
sales than those which surround competitors whose 
sales or purchases, as the case may be, are brought 
into comparison with his. The conditions which pro- 
duced given results to the defendant's competitors, it 
is contended, should under similar or equivalent con- 
ditions have produced the same results for the de- 
fendant. In the case of Bry Block Mercantile Co. v. 
Columbia Portrait Co., 219 Fed. Eep. 710, C. C. A. 6, 
it was averred that the plaintiff fraudulently repre- 
sented to the defendant that three other dealers in 
other and distant cities (Birmingham, Ala., New 

178 



v. FRANK F. MYKRANTZ 



Orleans, La., and San Antonio, Texas) had used the 
advertising scheme in question and had found that 
the profits on frames sold for the medallions given 
away would repay all cost of its operation. There 
was no averment that the conditions existing in any 
of such cities were similar to those surrounding the 
defendant in Memphis. Nothing was alleged as to 
the amount of effort expended or ability displayed 
by the respective merchants, or any of them, in such 
distant cities to make the scheme successful, or which 
the defendant would have to exhibit in Memphis to 
obtain the same results. The trial court sustained a 
demurrer to the answer. The Circuit Court of Ap- 
peals in approving such action said: 

"While the question is not free from doubt, 
we think it beyond the safe limits of the estab- 
lished rule to allow a rescission for fraud to be 
predicated upon such representations made in the 
surroundings shown without dispute by this 
record. ' ' 

It did not however, rule that a demurrer should be 
sustained or evidence excluded regardless of the 
facts that might be pleaded. In that case the defend- 
ant, after he ceased to purchase of the plaintiff, 
bought medallions from another manufacturer. He 
offered to prove that the medallions so purchased 
were the precise equivalent of those made by plain- 
tiff and that he operated his store and advertising 
scheme with such substituted medallions exactly as 
contemplated by his contract with the plaintiff. It 
was held error to reject such highly persuasive evi- 
dence, the court saying that the equivalency of the 
article and of the conditions is of the utmost impor- 
tance as showing the value of the comparison and that 
without proving such equivalency the evidence would 
be of little force. In the instant case the plaintiff 
seeks to prove that the defendant sold a given amount 
of a well known and popular article, staple in its 
nature and sold everywhere in the same form, which 
was precisely the same as that sold by others in the 

170 



THE COCA-COLA COMPANY 



same city and in the same localities in such city, and 
would have the court infer that, on account of claimed 
similarity of conditions and circumstances, the dis- 
crepancy in the amount of the genuine article sold by 
the defendant, as compared with that sold by his 
competitors, is such that the defendant could not have 
supplied his trade therewith and consequently must 
have resorted to a substitute. The teachings of the 
Bry Block Mercantile Company case, and the author- 
ities above cited touching evidence of collateral mat- 
ters, do not, in view of the facts disclosed, render in- 
admissible the evidence under consideration, offered 
by the plaintiff, it was properly received and has con- 
siderable probative value. 

The volume of business done at any given stand 
and the success or failure of its owner are deter- 
mined not merely by the desirability or undesirability 
of the location, but also by the personality, effort and 
ability of the individual conducting the business. If 
the personal equation be considered, the defendant 
does not suffer by comparison with others. He has 
been engaged in the drug business for thirty years. 
His first experience was at Ashland, Ohio. He then 
went to Brooklyn, New York, where he remained 
about thirteen years. He says the store he conducted 
there ' ' was considered one of the largest in the city. ' ' 
In October, 1900, he purchased the Herbst Drug Store 
at No. 13 South High Street, fronting on Capital 
Square and some three or four doors north of his 
present principal place of business. The location se- 
lected was good. Following the erection of the Har- 
rison building, he manifested his good judgment by 
removing from the inner store room at No. 13 South 
High to the corner and better room at No. 23 South 
High Street, where he has since maintained his prin- 
cipal store. This room also fronts the State House 
and is the first room north of the Neil House (a well 
known hostelry), from which it is separated by an 
alley. It has not only the usual front but a side 
window westward along the alley. The opportunity 

180 



v. FRANK F. MYKRANTZ 



for a window display of goods is much better than in 
his former store. The location is most desirable. He 
has extended his business until he was operating at 
the time of the trial six drug stores a fact which 
suggests enterprise, effort, and executive ability. 
The records show that he has a considerable number 
of employes. His selection of localities has been 
happy and displays good judgment. His store at the 
southeast corner of High and Main Streets is the cor- 
ner room in the Great Southern Hotel Building. Car 
lines passing it in front run north and south ; another 
line running east and west turns into High Street at 
the intersection of these two streets. The store at 
the corner of Miller and Main, and that near the cor- 
ner of Mt. Vernon Avenue and Twentieth street (be- 
ing either the second or third door from Twentieth 
street), are on important streets reaching into the 
east end of the city and are respectively in commu- 
nities which have developed into business sections. 
The store at the corner of Poplar Avenue and North 
High Street is north of the depot on a north and south 
car line and a square north of Goodale Street, on 
which are car lines running both east and west. The 
location is not, however, so good as that of Foeller, 
which is in the same square and the second door from 
the northwest corner of Goodale and High Streets. 
Transfers from one car to another are frequent at 
the intersection of those streets. North High Street 
is devoted to business for a considerable distance 
both north and south of the above-mentioned stores. 
The defendant's business has been such that his aver- 
age purchases from the drug house of The Kauffman- 
Lattimer Company, in 1913, were $3,500 per month; 
in 1914 his average monthly purchases from that 
house were $7,000 and his aggregate monthly pur- 
chases for the same period from $10,000 to $12,000, 
reaching $14,000 in December. This bespeaks a grow- 
ing business. He is not an amateur, but an expe- 
rienced aggressive business man, who has established 

181 



THE COCA-COLA COMPANY 



a chain of stores in growing communities of a grow- 
ing city. 

An affidavit of Massey was filed touching the 
amount of Coca-Cola purchased by other druggists in 
Columbus. In response to that a verified affidavit of 
the defendant was submitted, in which he states: 
"In answer to said statements affiant says that the 
amount of Coca-Cola purchased by him in each of 
the years that lie has been engaged in the drug busi- 
ness in the city of Columbus has been such quantities 
as would ordinarily be used by soda fountains where 
said Coca-Cola was not especially advertised or 
brought to the attention of customers of such foun- 
tain." He was not then unwilling to enter upon a 
comparison of his stores with others. 

The defendant's principal store at No. 23 South 
High Street has been continuously in- operation at 
that place since 1904. His Mt. Vernon Avenue store 
was opened in November, 1912, but he states that the 
soda fountain was not placed or fully placed in oper- 
ation until the spring of 1913. The Main and High 
Street store began business July 12, 1913; that on 
Main Street and Miller Avenue October 7, of the same 
year. These are the stores for which purchases were 
made in 1913, for the respective periods for which 
they were in operation. In the first week of April, 
1914, the store at the corner of Poplar Avenue and 
High Street was opened. None of his stores have ever 
been discontinued. 

The defendant states that he did not advertise or 
push the sale of Coca-Cola and that he believed it 
to be a habit-forming drink. That he did not main- 
tain Coca-Cola signs on his premises, although he 
displayed advertisements of other goods sold by him, 
is borne out by the record. There is no evidence that 
he or his helpers or salesmen suggested to customers 
the purchase of Coca-Cola. He says he instructed his 
clerks not to sell it, without some restraint, to chil- 
dren. It may be conceded that he did not sell as 
much of the article as if he had advertised or pressed 

182 



v. FRANK F. MYKRANTZ 



its sale. It is urged that his defense of a belief 
that Coca-Cola is "habit-forming" is an after-thought, 
as it was not put forth until his third affidavit was 
filed. His failure sooner to interpose such defense 
may have been an oversight, but it suggests that his 
fear of the beverage's injurious effects was not deeply 
imbedded in his mind, or regarded as an important 
factor, or a deterrent from reaping the profits accru- 
ing from its sale. He sold Coca-Cola. There was 
confessedly a demand for it at every store he had, 
and it was known that it could be procured at any 
of them. Its sale was never discontinued on account of 
the defendant's belief of its harmful effects. No clerk 
has testified to any direction received from the de- 
fendant which would restrict its sale, or to any warn- 
ing to be given to any purchaser, real or prospective, 
young or old, or to any suggestion made at any time 
that a purchaser buy some other drink. His belief 
as to its being a habit-forming substance does not ap- 
pear ever to have been communicated to the public 
and none of his employes have alluded to it as such. 
There is no evidence that the request of any pur- 
chaser for Coca-Cola was ever refused, unless it be 
in the case of the Pinkerton detectives, and as to 
whether sales to them in bulk were refused need not 
be determined, because the case may be decided with- 
out so doing. The display of Coca-Cola signs is not 
universal with the dispensers of that article. It is 
not shown that all of the Columbus retailers with 
whose purchases plaintiff seeks to compare those of 
the defendant, exhibit signs in their places of busi- 
ness. Five of his competitors named in the record 
displayed signs. The record is silent as to the others. 
It would seem to have been to the interest of the de- 
fendant to have shown that such others also adver- 
tised the beverage had he been able to do so. The ar- 
ticle is extensively advertised, wholly independent of 
the efforts of any individual retailer. Its use in Co- 
lumbus is large. It is not seriously controverted, if 
controverted at all, that it is the best known and most 

183 



THE COCA-COLA COMPANY 



frequently demanded of all the soft drinks sold in the 
city. Allusion has already been made to the quantity 
sold, and see affidavits of May, Hische, Foeller and Eb- 
right. The same necessity for personally advertising 
it to effect sales does not exist so for less known 
articles. The defendant must have had quite a soda 
fountain trade at his central store, for one of his 
clerks, Swift, says a "lot of root beer" was sold there, 
and there is much evidence of the preparation and sale 
when prepared, of other soft drinks at the counter by 
girl attendants and other employes. 

The evidence of the defendant's employes unex- 
plained would leave the impression that purchases of 
Coca-Cola in kegs was frequent and consequently in 
large quantities. Dates, however, were not fixed. It 
must be different witnesses testified in some instances 
to the same purchases. The defendant admits that all 
his buying was from The Kauffman-Lattimer Com- 
pany except fifteen gallons from the Buckeye Drug 
Company, from tw r enty to twenty-five gallons, as esti- 
mated by him, of the Morehouse-Martens Company, 
and a certain amount bought for his Lakeside store 
and shipped from that place to him here. There is 
evidence of some transfers of Coca-Cola from the 
central store to one of his others. There is a neces- 
sary inference that like transfers were made to others. 
I have made no calculation as to amounts. The 
amount must have been considerable, if regard be 
had to the small deliveries by the wholesale house to 
his outlying stores and the large deliveries by such 
house to other drug stores in the same localities. 
Counsel are not agreed as to the extent of Coca-Cola 
purchased. For the year 1913 plaintiff fixes it at 70 
gallons, the defendant at 90 gallons. For the year 
1914 plaintiff makes it 150 gallons, the defendant 180 
gallons. Which is correct is not highly important, 
certainly not conclusive. The ultimate result must be 
the same, whichever set of figures is adopted. 

The Perfecto Cigar Store's place of business is in 
the same block and but three or four doors north of 

184 



v. FRANK P. MYKBANTZ 



the defendant's store at No. 23 South High Street. It 
is an inside room, less attractive and affording less 
opportunity for display than the defendant's. It is 
hardly to be presumed that women and children on 
account of its extensive cigar features, would resort 
to it as much as to the more attractive drug store. 
That store purchased 100 gallons of Coca-Cola in 

1913, in the same time that the defendant purchased 
90 gallons (if his figures be correct) for all of his 
stores then in operation his central store having an 
established business and being in operation all the 
time, and his other three respective stores being open 
a part of the year, as heretofore stated. In 1914 the 
purchases of the Perfecto Cigar Store were 1464 gal- 
lons and of the defendant for his five stores 150 to 
180 gallons, according to the system of calculation 
adopted. We have seen that the defendant's store at 
No. 23 South High Street is north of and distant from 
the Neil House an alley's width. The Wendt-Bristol 
Company's store also fronts Capital Square and is 
at No. 47 South High Street in the south part of the 
Neil House block and occupies an inside room. For 
display purposes and as to location it is at a disad- 
vantage when compared with the defendant as re- 
gards his main store. Conceding that the Wendt- 
Bristol Company displays Coca-Cola signs, the stores 
are so closely situated and the general conditions, hav- 
ing regard to all the circumstances, are so similar that 
the consumption of Coca-Cola in one ought not to 
vary greatly from that of the other. Nevertheless, 
as against the quantity bought by the defendant for 
all of his stores in the respective years of 1913 and 

1914, the Wendt-Bristol Company purchased for its 
single store 168 gallons in 1913 and 241 gallons in 
1914. Such difference cannot be rationally explained 
on any or all of the defensive theories the defendant 
has advanced. The Perfecto Cigar Store and the 
Wendt-Bristol Company have been selected on account 
of their close proximity to the defendant's main store 
and the similarity of surroundings -- the advantages 

185 



THE COCA-COLA COMPANY 



as to the surroundings being favorable to the 
defendant. Additional significance attaches to the 
above figures if notice be taken of the purchases made 
by the stores on Mt. Vernon Avenue and Main Street 
(those of Eitel and Fobes) in the vicinity of those 
owned by the defendant in the same locality as the 
respective stores. Eitel 's store is on the corner of 
two streets and more central as regards the local 
business community than defendant's Mt. Vernon 
Avenue store, and, other things being equal, ought, I 
think to have larger sales. Defendant's store at Main 
Street and Miller Avenue is in an attractive corner 
room. That of Fobes is on the opposite side of the 
street and two doors east in an inner room. It is not 
so desirable as a corner room or so attractive as 
plaintiff's, but is on the side of the street which has 
the greater number of business hpuses. About one 
and a quarter squares north of the Neil House is the 
Busy Bee Candy Kitchen; two squares north is Hat- 
ton Bros.; three and a half squares north is the May 
Drug Company, in the Hotel Chittenden block. The 
Hatton Bros, do some advertising, but in comparing 
their store with the defendant's single store it should 
be borne in mind that it is more nearly in the center 
of retail business and is apparently conceded to have 
the best retail drug business in the city. It is diffi- 
cult to believe that the defendant in 1914 should have- 
had a demand for but 150 to 180 gallons of Coca-Cola 
for his five stores, one of which was across the alley 
from the Neil House, and another in the most desir- 
able room in the Great Southern Hotel Building, 
when in the same period the one store of the May 
Drug Company in the Chittenden Hotel block re- 
quired 336 gallons for its trade, the Foeller store 160 
gallons, the Eitel store 12H gallons and the Fobes 
store 100 gallons. There are 165 retailers of Coca- 
Cola in Columbus. The average number of unbottled 
gallons of Coca-Cola purchased per store in 1914 was 
42.4. On that basis, the defendant's stores should 
have consumed 212 gallons. It is not claimed that 

180 



v. FRANK F. MYKBANTZ 



he purchased or used more than 180 gallons. The sig- 
nificance of the comparison lies in the fact that the 
average of 42.4 gallons per store results from the in- 
clusion in the aggregate number of stores of not only 
these in desirable locations, but also all of the smaller 
stores undesirably situated and in outlying districts. 
Sufficient appears to indicate that the quantity of 
genuine Coca-Cola consumed at the defendant's 
counters in 1914 was abnormally low. The inference 
reasonably follows that his sales of what was dis- 
pensed as Coca-Cola exceeded his sales of the genuine 
article. 

There is significance in the fact that defendant pur- 
chased from the wholesaler only in five and ten gal- 
lon kegs, excepting in case of the supply bought for 
his Lakeside summer store. "Why should he have 
bought by the barrel for that one store, which was 
open for a short period only each year, and not 
bought in like manner for his several Columbus 
stores, which were operated throughout the entire 
year? Cave says (p. 434) that the supply for the 
Main and Miller store came from No. 23 South High 
Street. From the facts disclosed, there must have 
been transfers to other of the defendant's stores from 
the same place; and yet the supply at his main store 
was limited to one keg, excepting, according to Mor- 
rison (p. 502) when the shipment from Lakeside came 
in. Morrison (p. 501) did practically all the buying 
for the main store, excepting what was done by the 
defendant himself. Myron Kauffman says (p. 472) 
that the Coca-Cola that came to No. 23 South High 
Street, when he worked there, came one keg at a time. 
The demand on a single keg must have been large. 
The operation of five or six drug stores, for such 
finally became the number, is quite an enterprise. 
Was it managed in a hand to mouth manner by an 
aggressive business man! His experience with that 
purchased for the Lakeside store shows that Coca- 
Cola properly may be preserved for a long time in a 
condition fit for use. The price per gallon for a five- 

187 



THP] COCA-COLA COMPANY 



gallon keg was $1.75; for a ten-gallon keg, $1.65; for 
a barrel, $1.50. The price on his small purchases was 
from 10% to 16|% higher than what it would have 
been by the barrel. He says he obtained a discount 
on his small purchases. He does not say it would 
not have been given on large ones. Large purchases 
generally secure better terms than small ones. Why 
was Coca-Cola bought by the keg and Red Rock 
Syrup on different occasions by the barrel! It is true 
he says he used such syrup in preparing four differ- 
ent beverages, but the chemist, Wesener, directly (pp. 
860, 861) and Caspar! indirectly (p. 805) refute a use 
of it so extensive. 

Defendant says that Harrington asked him for a 
sample (pp. 626, 6:27). Later he testified that he vol- 
untarily gave Harrington a sample without his re- 
questing it. It was drawn from the container at the 
fountain. Harrington states that he not only asked 
for a sample, but also asked that it be from the bar- 
rel in the cellar, and was told that it was taken from 
it, which barrel, according to the defendant, con- 
tained Red Rock Syrup. The conclusion, it would 
seem, must be that Harrington made the request 
which he states. Defendant did not deny that he said 
the sample furnished by him came from the barrel 
which, he says, was not opened until two weeks later. 
It is not favorable to the defendant that Harrington 
was permitted to depart in the mistaken belief that 
the sample given him for analysis was from a given 
source, when it in fact was from another. 

Other matters discussed have been considered, but 
to review them would, without changing the result, 
prolong an opinion much lengthier than originally 
contemplated. The plaintiff has sustained the burden 
of proof which the law imposes to establish unfair 
competition. Let a decree be taken in its favor. 

Candler, Thomson & Hirsch, Atlanta, Georgia. 
Booth, Keating, Peters & Pomerene, Columbus, 
Ohio, for complainant. 

188 



v. FRANK F. MYKRANTZ 



UNITED STATES DISTRICT COURT, 

SOUTHERN DISTRICT OF OHIO, 

EASTERN DIVISION 



THE COCA-COLA COM- 
PANY, 



Complainant, 



v. 



No. 34. 
FINDING, JUDGMENT 



FRANK F. MYKRANTZ, AND DECKEE - 

Defendant. 

This day this cause came on to be heard and was 
submitted to the court on the pleadings, exhibits, 
testimony and arguments of counsel; on considera- 
tion whereof the court finds the issues in this case in 
favor of the complainant, The Coca-Cola Company, 
and against the defendant, Frank F. Mykrantz, and 
that the complainant is entitled to the relief prayed 
for in its Bill o'f Complaint. It is therefore ordered, 
adjudged and decreed by the court that the defend- 
ant, Frank F. Mykrantz, his servants, agents and em- 
ployes, and each of them, be, and they are hereby 
perpetually restrained and enjoined from doing all or 
any of the following acts : 

1. From in any manner infringing upon the trade 
rights of the complainant, The Coca-Cola Company, 
by selling or delivering, in response to requests or 
orders for Coca-Cola, any beverage other than that 
made from the Coca-Cola syrup manufactured by the 
complainant, The Coca-Cola Company, and from sub- 
stituting therefor any other syrup whatsoever. 

2. From using any name, applied to any drink, so 
similar to the name " Coca-Cola " as to cause deceit 
or deception. 

3. From marketing, selling or offering for sale as 
Coca-Cola a syrup, whether diluted or not, of the 
identical color of the product known as Coca-Cola, 
manufactured and sold by the complainant, The 

189 



THE COCA-COLA COMPANY 



Coca-Cola Company, and from marketing, selling or 
offering for sale, as Coca-Cola, any product having 
the peculiar and distinctive color, appearance and 
taste of said product of the complainant, or having 
such approximation thereto, in color, appearance and 
taste, or otherwise, as may tend to deceive the public, 
and from marketing, selling or offering for sale any 
substitute for said genuine product of the complainant. 
The Court further finds that the complainant, The 
Coca-Cola Company, by reason of the wrongful acts 
complained of in the Bill of Complaint filed herein, has 
been damaged in the sum of Five Dollars ($5.00). It 
is therefore considered, ordered and adjudged by the 
court that the complainant, The Coca-Cola Company, 
recover of the defendant, Frank F. Mykrantz, the said 
sum of Five Dollars as damages and compensation, 
together with its costs herein exj^Midcd taxed at $ . 



THE UNITED STATES OF AMERICA, \ 
SOUTHERN DISTRICT OF OHIO, >ss. 

EASTERN DIVISION. ) 

I, B. E. DILLEY, Clerk of the District Court of the 
United States within and for the District and Division 
aforesaid, do hereby certify that the foregoing is a 
true and correct copy of the original Finding, Judg- 
ment and Decree, entered June 24, 1915, as the same 
appears on file and of record in the office of the Clerk 
of said Court, in the therein entitled cause. 

In Testimony Whereof, I have hereunto subscribed 
my name and affixed the seal of said Court, in the 
City of Columbus, Ohio, this 22nd day of August, 
A. D. 1922. 

(Sd) B. E. DILLEY, Clerk. 
(By) C. P. WHITE, JR., Deputy. 



190 



IN THE DISTRICT COURT 

OF THE UNITED STATES 

FOR THE SOUTHERN 

DISTRICT OF OHIO 

WESTERN DIVISION 

249 FEDERAL 763 



MARCH 19, 1918 



THE COCA-COLA COMPANY, 

v. 
BENJAMIN DUBERSTEIN, et al. 



MATTHEWS & MATTHEWS, Dayton, Ohio, 
HAROLD HIRSCH, Atlanta, Ga., 

FRANK P. REED and EDWARD S. ROGERS, Chicago, 111., 
For Complainant. 



DALE & KUSWORM, Dayton, Ohio, 
For Defendant. 



191 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE SOUTHERN 

DISTRICT OF OHIO, 

WESTERN DIVISION 

249 FED. 763 



MARCH 19, 1918 



THE COCA-COLA COMPANY, 

v. 
BENJAMIN DUBER8TEIN, et cd. 



1. TRADE-MARKS AND TRADE-NAMESUNFAIR COM- 
PETITIONWHAT CONSTITUTES. 

Where complainant had a registered trade-mark in the word 
"Coca-Cola," and had built up a large trade in that popular soft 
drink, defendant's sale of a competing soft drink under the name of 
"Coca and Cola," although his product, unlike that of complainant, 
contained no trace of the coca shrub or cola nuts, must be deemed 
"unfair competition," and an infringement of complainant's 
trade-mark, as defendant imitated the size and shape of the bot- 
tles in which complainant sold its product, and the word "and" 
between the words "Coca" and "Cola" was in such small type 
that purchasers might well deem they were obtaining complain- 
ant's product. 

2. TRADE-MARKS AND TRADE-NAMESUNFAIR COM- 
PETITIONINFRINGEMENT OF TRADE-MARK. 

Where, during the pendency of a suit by complainant, which 
had valid trade-mark in the word "Coca-Cola," and had built up 
a large business in the sale of that drink, to enjoin defendants 
from selling an imitative drink under the label "Coca and Cola," 
defendant's charge of the label of his drink to "El-Cola" was a 
mere evasion, and sale thereunder was an infringement of com- 
plainant's trade-mark, which under the circumstances amounted to 
a contempt of court. 

192 



v. BENJAMIN DUBERSTEIN, et al. 

3. TRADE-MARKS AND TRADE-NAMES INFRINGE- 
MENTLABELSDEFENSE. 

Where, after complainant sued for infringement of its trade- 
mark, defendant with a paper label covered the infringing name 
blown in the bottles in which it sold its soft drink, that fact fur- 
nishes no protection, as the paper labels were likely to become 
detached, the bottles being in contact with ice and water while 
\v;iiting for use. 

In Equity. Bill by The Coca-Cola Company against 
Benjamin Duberstein, doing business as the Day- 
ton Mineral Water Company, and others. Decree 
for complainant, granting an injunction and an 
accounting, and defendant Duberstein found 
guilty of contempt. 

Matthews & Matthews, of Dayton, Ohio, Harold 
Hirsch, of Atlanta, Ga., and Frank F. Reed and Ed- 
ward S. Rogers, both of Chicago, 111., for complainant. 

Dale & Kusworm, of Dayton, Ohio, for defendant 
Duberstein. 

HOLLISTEK, District Judge: 

(1) Beginning in 1886, complainant's predeces- 
sors had built up a large business in a syrup in 
which there was an infusion of an extract of coca 
shrub and of cola nuts; the latter made after, it 
is said, the cocaine is extracted from them. 

The syrup is the basis of a non-intoxicating bever- 
age made by combining it with carbonated water. 
Since 1892, the complainant has been the exclusive 
owner and proprietor of the business. The product 
was named " Coca-Cola " at the beginning, and the 
beverage has been known under that name for more 
than thirty years. By the expenditure of millions of 
dollars in advertising it has become well known 
throughout the land. The name means, and is under- 
stood by the public to mean, complainant's product. 
The name was registered in 1893 in the Patent Office, 
and again in 1895, in pursuance of the act of 

193 



THE COCA-COLA COMPANY 



Congress of that year, was registered. The bottles in 
which it is sold are of uniform size and appearance, 
with the name " Coca-Cola " blown in them, and the 
caps of the bottles bear the trade-mark. 

The defendant Duberstein, a bottler of soft drinks 
at Dayton, Ohio, under the name of Dayton Mineral 
Water Company, bottles a product purchased by him 
from one John D. Fletcher, who called his product 
"John D. Fletcher's Carbonated Syrup, a Genuine 
Coca and Cola Flavor." He was the president of the 
Nashville Syrup Company, enjoined from making and 
selling "Fletcher's Coca-Cola." 215 Fed. 527, 132 C. C. 
A. 39 (C. C. A. 6). The bottles in which Duberstein 
sells the product to the other defendants, saloon keep- 
ers, etc., at Dayton and vicinity, are approximately 
of the same size as Coca-Cola bottles, and in them is 
blown the words "Coca and Coin." The "and" is in 
small type, and the "Coca" "Cola" in script, imitat- 
ing the script of the genuine Coca-Cola trade-mark. 
The defendant Coshocton Glass Company is the maker 
of bottles for Duberstein. 

The validity of complainant's trade-mark as the ex- 
clusive property of complainant, has been established 
in a number of cases elsewhere and in this circuit. 
Coca-Cola Co. v. Nashville Syrup Co. (D. C.) 200 
Fed. 153; 215 Fed. 527, 132 C. C. A. 39 (C. C. A. 6). 
Defendant's product is colored to an exact imitation 
of the color of complainant's by the use of caramel, 
which serves no other purpose. The cap on defend- 
ant's bottles contains the name "Coca and Cola" in 
red, with other descriptions indicating that the con- 
tents is a flavor of coca and cola. There is no trace 
of the coca shrub or cola nuts or coca leaves in it. The 
testimony shows conclusively that it was intended to 
deceive the consuming public, and in many proved 
instances did deceive; but, aside from this, the ap- 
pearance, coloring, size, caps, the delivery slips, the 
name "Coca and Cola" blown in the bottle, make 
the product on its face a fraud on the complainant 
and on the public. The complainant is entitled to an 

194 



v. BENJAMIN DUBERSTEIN, et al. 

injunction against all the defendants in accordance 
with its prayer, and for an accounting. 

(2, 3) During the progress of the case, Duberstein 
sold his product as "El-Cola" in the same bottles in 
which he had been selling "Coca and Cola" covering 
the words "Coca and Cola," blown thereon, by a dia- 
mond-shaped label pasted thereover, on which was 
printed in large type in white on a diamond-shaped 
black background, "El-Cola." By pasting on the 
label, Duberstein would change his "Coca and Cola" 
product to "El-Cola," and thereby escape the con- 
demnation he evidently expected "Coca and Cola" 
would receive in this case. Thereby he is charged by 
complainant with contempt of court. 

This is illustrative of a strange lack of perception 
on the part of defendant Duberstein, and by so many, 
as the decisions show, in cases of infringement of 
trade-mark and unfair competition, that the courts 
deal with matters of substance rather than of form, 
and that the odor of fraud is difficult to remove. This 
case reeks with it. Why does the defendant use the 
"Cola" at all? And why color its product as it does? 
Any why adopt the same size of bottles! The only 
purpose is to appropriate a part of the value of com- 
plainant's trade-mark and good will. 

Pasting the label "El-Cola," affords no protection 
to defendant's illegal act. These bottles are in con- 
tact with ice and water all the time while waiting for 
use. Aside from the instances proved of the labels 
having become detached, their liability to become de- 
tached is so great as not to afford protection, even if 
their permanency would be a protection. Prest-0- 
Lite Co. v. Davis. (D. C.) 209 Fed. 917, affirmed 215 
Fed. 349, 131 C. C. A. 491 (C. C. A. 6); Prest-0-Lite 
Co. v. Bogen (D. C.) 209 Fed. 917; Prest-0-Lite Co. 
v. Avery Lighting Co. (C. C.) 161 Fed. 648; Evans v. 
Von Laer (C. C.) 32 Fed. 153; Wood v. Burgess (1890) 
59 Law Jour. N. S. 11; Thwaites & Co. v. McEvilly, 
20 Rep. Pat. Gas. 663, affirmed 21 Rep. Pat. Cas. 397, 
401, 402. 

195 



THE COCA-COLA COMPANY 



It is also proved that defendant's " El-Cola " is 
palmed off by dealers as ' ' Coca-Cola. ' ' But the label, 
if permanent, affords no protection. ''El-Cola" is in 
itself an infringement of complainant's trade-mark 
"Coca-Cola." Complainant has cited more than 25 
applicable decisions. 

In addition to the injunction, plaintiff may take an 
order finding Duberstein guilty of contempt, the pun- 
ishment to be determined when the formal order is 
taken. 



196 



v. BENJAMIN DUBERSTEIN, et al. 



THE UNITED STATES DISTRICT COURT, 

SOUTHERN DISTRICT OF OHIO, 

WESTERN DIVISION 



No. 13 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 

BENJ. DUBERSTEIN, doing business as DAYTON 
MINERAL WATER COMPANY, et al., Defendants. 



DECEEE. 

Complainant's motion for a preliminary injunction 
coming on to be heard upon the verified Bill of Com- 
plaint, affidavits and exhibits, and having been argued 
by counsel; 

It is ordered, that during the pendency of this suit 
and the further order of the Court the defendants, 
to wit: Benj. Duber stein, doing business as Dayton 
Mineral Water Company, Martin Hornung , George 
Soto, Peter Kolleda, Roy Snyder, E. B. Faust, doing 
business as Faust Grocery Store, Joseph F. Waltz, 
C. J. Stumpf and C. A. Stumpf, doing business as 
Stumpf Brothers, A. L. Hart and W. F. Hart, doing 
business as A. L. Hart & Son and their officers, agents, 
servants, employees, attorneys, licensees and assigns 
and all holding by, through or under them, and each 
of them, be, and they hereby are enjoined and re- 
strained from using in connection with the manufac- 
ture, advertisement, offering for sale or sale of any 
product not being the genuine product of the com- 
plainant, the name "Coca-Cola," or any like name, 

197 



THE COCA-COLA COMPANY 



1 1 Coca and Cola" or any like words or names and 
further from doing any act or thing or using any 
name, device, artifice or contrivance which may be 
calculated or likely to induce the belief that an article 
not the complainant's is the complainant's. 

That the defendants during the pendency of this 
suit and until the further order of the Court, be and 
they hereby are, enjoined and restrained from sell- 
ing as Coca-Cola or in response to demands for Coca- 
Cola any product not complainant's. 

That certified copies of this order be served upon 
the defendants herein named forthwith. 

Dated, June llth, 1917. 

HOLLISTER, District Judge. 

To the above rulings, orders and decrees the de- 
fendant Benjamin Duber stein, excepts. 

0. K. as to form. 

Dale & Kusworm, for defendant Benj. Duberstein. 

Approved. 
Matthews c Matthews, solicitors for complainant. 

THE UNITED STATES OF AMERICA, 
SOUTHERN DISTRICT OF OHIO, )> ss. 
WESTERN DIVISION. 

1, B. E. Dilley, Clerk of the District Court of the 
United States within and for the District and Divi- 
sion aforesaid, do hereby certify that the foregoing 
is a true and correct copy of the original Order for 
Injunction, as the same appears on file and of record 
in the office of the Clerk of said Court, in the therein 
entitled cause. 

In testimony whereof, I have hereunto subscribed 
my name and affixed the seal of said Court, in the City 
of Dayton, Ohio, this 24th day of August, A. D. 1922. 

B. E. DILLEY, Clerk. 
By (Sd) STEPHEN T. MALONEY, Deputy. 

198 



v. BENJAMIN DUBERSTEIN, et al. 




THE COCA-COLA COMPANY, 

Complainant, 
v. 

BENJAMIN DUBERSTEIN, _J IN , A L 

doing business as DAYTON * Na ] DAYTON ' 
MINERAL WATER COM- 
PANY, et al., 

Defendants. 

This cause having come on to be heard upon the re- 
port of J. Q. A. Johnson, Esq., as Special Master, to 
whom it was referred to take and report an account 
for damages and profits in accordance with the decree 
herein, which report is dated 3rd day of March, 1919, 
and also upon the exceptions taken to said report on 
the part of the defendant and on the motion of the 
plaintiff for the confirmation of said report and said 
cause having been argued by counsel for the respect- 
ive parties, and due deliberation had thereon. The 
Court finds that the exceptions of the defendant to 
said report are not well taken, and does overrule all 
of said exceptions except paragraph six, and said re- 
port with respect to the amount of profits realized by 
the defendant from the sale of the substitute for Coca- 
Cola is found to be $319.18, instead of $387.70. 

It is therefore, ordered, adjudged and decreed that 
said defendant pay to said plaintiff the sum of 
$682.80, which is the amount found by the Special 
Master as stated in his report referred to, to be due 
from the defendant to the plaintiff as modified herein 
by the Court. 

It is ordered, adjudged and decreed that said de- 
fendant pay to said plaintiff his costs in said suit to 

199 



THE COCA-COLA COMPANY 



be taxed and that the clerk tax in said costs the sum 
of $250.00 as a reasonable fee of the Special Master 
for his services in this cause and that said plaintiff 
have execution for such costs and for the sums above 
decreed to be paid to said plaintiff, to which ruling, 
order and decree the defendant, Benjamin Duberstein, 
by his counsel, excepts. 

Ccmdler, Thomson & Hirsch, Matthews & Matthews, 
atty's. for The Coca-Cola Co. 

Kusworm & Shamon, atty's. for Defendant Benj. 
Duberstein. 

THE UNITED STATES OF AMERICA, 
SOUTHERN DISTRICT OF OHIO, J>gg. 

WESTERN DIVISION. 

I, B. E. Dilley, Clerk of the District Court of the 
United States within and for the District and Division 
aforesaid, do hereby certify that the foregoing is a 
true and correct copy of the original Final Decree, as 
the same appears on file and of record in the office of 
the Clerk of said Court, in the therein entitled cause. 

In Testimony Whereof, I have hereunto subscribed 
my name and affixed the seal of said Court, in the City 
of Dayton, Ohio, this 24th day of August, A. D. 1922. 

B. E. DILLEY, Clerk. 

By STEPHEN T. MALONEY, Deputy. 



200 



IN THE UNITED STATES 

DISTRICT COURT FOR 

THE EASTERN DISTRICT 

OF VIRGINIA 



No. 39 IN EQUITY 



THE COCA-COLA COMPANY, 

v. 
OLD DOMINION BEVERAGE CORPORATION. 



CANDLER, THOMSON & HIRSCH, 
EDWARD S. ROGERS, 
C. V. MEREDITH, 

For Complainant. 

ROBERT E. SCOTT, Richmond, Virginia, 
For Defendant. 



201 



THE COCA-COLA COMPANY 



IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT 

OF VIRGINIA 



No. 39 IN EQUITY 



COCA-COLA COMPANY 

v. 
OLD DOMINION BEVERAGE CORPORATION. 



DECREE 

This cause coming on for trial upon the supple- 
mental bill, answer thereto, and evidence and exhibits 
produced by the parties, and having been argued by 
counsel and considered by the court, it is Ordered, Ad- 
judged and Decreed, as follows : 

1. It having been held by the Circuit Court of Ap- 
peals in the Coca-Cola Company v. Old Dominion 
Beverage Corporation, No. 1729, that the defendant, 
by use of the phrase Taka-Kola, violated plaintiff's 
trade-mark rights in the phrase Coca-Cola and the 
decree of this court entered July 12, 1921, upon the 
mandate of the Circuit Court of Appeals, enjoins the 
defendant, among other things, from the use of 
"plaintiff's trade-mark Coca-Cola or any like word 
or the colorable imitation thereof, Taka-Kola, or any 
like word." 

2. The defendant, since said decree, has changed 
the name Taka-Kola to Takola, and is now using the 
word Takola upon the same product to which it pre- 
viously applied the word Taka-Kola. 

3. The change in name from Taka-Kola to Takola 
is not a compliance with the decree of this court en- 

202 



v. OLD DOMINION BEVERAGE CORPORATION 

tered on the mandate of the Circuit Court of Appeals. 

4. Takola is a like word to Taka-Kola and, in view 
of the decision of the Circuit Court of Appeals, is an 
infringement of plaintiff's trade-mark Coca-Cola. 

5. The word Takola is a violation of the rights of 
the plaintiff and an infringement of its said trade- 
mark. 

6. It is therefore further Ordered, Adjudged and 
Decreed (without prejudice to the decree heretofore 
entered in this cause) and in addition to the injunc- 
tion therein decreed, that the said defendant, Old 
Dominion Beverage Corporation, its officers, agents, 
servants, employes, attorneys, licensees, transferees 
and assigns, and each and all thereof, and all acting 
by or under its authority, be and they are each and 
all perpetually enjoined and restrained from using or 
employing, or authorizing the use or employment, in 
connection with the manufacture, advertisement, of- 
fering for sale or sale of any beverage or ingredient 
thereof, the word Takola or any like word, and that a 
writ of perpetual injunction issue accordingly. 

7. That defendant account to the plaintiff for any 
and all profits derived by said defendant from de- 
fendant's said infringement of plaintiff's trade-mark, 
and in addition to the profits to be thus accounted for 
by the defendant, that the defendant pay to the plain- 
tiff the damage plaintiff has sustained by reason of 
defendant's said infringement; and this cause is 
hereby referred to Robert H. Talley, Esq., Master in 
Chancery of this Court, to take and state an account- 
ing to the plaintiff for any and all such profits and 
any and all such damages, with full power to the 
master to subpoena and order the attendance of wit- 
nesses, to take depositions and require the production 
of books, papers and documents pertinent to the tak- 
ing and stating of said accounting, and to report to 
this court such accounting and statement of profits 
and damages, with the right to the plaintiff to move 
the court to enter judgment upon such accounting for 
any sum above the amount found as the actual 

203 



THE COCA-COLA COMPANY 



damages, not exceeding three times the amount 
thereof. 

8. That all labels, signs, prints, packages, wrappers, 
or receptacles in the possession of the defendant bear- 
ing the word Takola, be forthwith delivered up for 
destruction; provided, however, that the bottles of 
the defendant with the name blown therein may be 
used in the sale of drinks not resembling that of the 
plaintiff, where the name Takola is removed or hid- 
den, and the name of the contents of said bottles 
plainly shown thereon. 

9. Nothing in this decree shall in any manner or to 
any extent restrict or lessen the relief granted the 
plaintiff by said decree of July 12, 1921. 

10. That defendant pay the costs of this suit to be 
taxed and that upon taxation plaintiff have execution 
therefor. . 

11. Defendant having intimated a purpose to ap- 
peal from this order and decree may upon filing said 
petition for appeal and bond in the sum of $5000.00 
have a super sedeas. 

GRONER, Judge. 
July 26, 1922. 

A true copy Teste: 

JAMES D. BRADY, Deputy Clerk. 



204 



IN THE DISTRICT COURT 
OF THE UNITED STATES 

FOR THE SOUTHERN 
DISTRICT OF ILLINOIS 




No. 47 JANUARY TERM, 1920 



THE COCA-COLA COMPANY, Complainant, 

v. 

LOUIS L. EMMEESON, Secretary of State, JOHN 
D. FLETCHER and THE NATIONAL CAR- 
BONATING SYRUP COMPANY, Defendants. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 
FRANK F. REED, EDWARD S. ROGERS, Chicago, 111., 
Solicitors and of Counsel for Plaintiff. 

EDWIN C. HENNING, 
For Defendants. 



205 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE SOUTHERN 

DISTRICT OF ILLINOIS, 

SOUTHERN DIVISION 

276 FEDERAL 1010 



No. 47 JANUARY TERM, 1920 



THE COCA-COLA COMPANY, Complainant, 

v. 
LOUIS L. EMMERSON, et L 

1 

1. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION 18 "COCA-COLA" VALID TRADE- 
MARK. 

Coca-Cola Company held to have a valid trade-mark in the 
name "Coca-Cola" as applied to the beverage widely known by 
that name. 

2. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION 79 EQUITY HAS JURISDICTION TO 
GRANT APPROPRIATE RELIEF AGAINST INFRINGE- 
MENT. 

Equity has jurisdiction to grant appropriate relief against in- 
fringement of a valid trade-mark and to that end may compel 
the Secretary of State of a state to cancel the registration under 
a state statute of an infringing trade-mark which constitutes a 
cloud on the title of the true owner of the trade-mark. 

3. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION 70 (3) "COCA-COLA" HELD IN- 
FRINGED. 

Labels for a beverage, registered under a state trade-mark 
statute containirg the words "a genuine Coca and Cola flavor" 
printed in four horizontal lines, "Coca and Cola" constituting one 
line with the words "Coca" and "Cola" in large colored letters 
and the word "and" in small type so that it would readily be 
mistaken for complainant's trade-mark "Coca-Cola," held an in- 
fringement of such trade-mark. 

206 



v. LOUIS L. EMMEBSON, et al. 



4. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION 45 REGISTRATION UNDER STATE 
STATUTE CONFERS NO EXCLUSIVE RIGHTS. 

The trade-mark statute of Illinois (Kurd's Rev. St. 1919, c. 
140) does not purport to confer any exclusive rights, and the 
registration of trade-marks thereunder has no effect in giving them 
the quality of trade-marks if not already such. 

5. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION 42 STATE STATUTES ARE IN AF- 
FIRMANCE OF COMMON-LAW RIGHTS. 

State statutes providing for registration of trade-marks are in 
affirmance of the common law, and remedies given by such statutes 
are either declaratory or are cumulative and additional to those 
recognized and applied by the common law. 

6. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION 45^ NEW VOL. 7A KEY-NO. SERIES 
OWNER ENTITLED TO CANCELLATION OF 
FRAUDULENT REGISTRATION OF INFRINGING 
TRADE-MARKS. 

Where defendant by false and fraudulent representation pro- 
cured the registration with the Secretary of State of Illinois under 
the state statute, knowing that they were infringements on com- 
plainant's trade-mark, complainant held entitled to join the Secre- 
tary of State with defendant in a suit in equity for the purpose 
of establishing its rights and procuring the cancellation of such 
registrations. 

7. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION 41 TRADE-MARK RIGHTS NOT 
LIMITED BY STATE STATUTE. 

A valid trade-mark, long used in interstate commerce, cannot 
be limited by denying it effect in a state because not registered 
under a state statute permitting such registration. 

In Equity. Suit by the Coca-Cola Company of Dela- 
ware against Lewis G. Stevenson and others. 
Decree for complainant. 

The Coca-Cola Company of Georgia, substituted 
pending the action by the Coca-Cola Company of 
Delaware, sued to enjoin the defendants, John D. 
Fletcher, a citizen of the state of Texas, and the 
National Carbonating Syrup Company, a Delaware 
company, doing business at the city of Evansville, 

207 



THE COCA-COLA COMPANY 



Ind., from further infringing upon the trade-mark of 
the plaintiff; also, seeking an order directing the Sec- 
retary of State of the State of Illinois, Lewis G. Ste- 
venson, and his successor Louis L. Emmerson, to can- 
cel the registration of the purported trade-marks of 
defendants Fletcher and the National Carbonating 
Syrup Company, on the ground that the registration 
was falsely and fraudulently procured. 

The plaintiff and its predecessors had been engaged 
in the manufacture of a syrup for an aerated beverage 
and had caused the beverage itself to be bottled un- 
der the direction and supervision by the plaintiff 
known as " Coca-Cola, " since 1886. A vast sum of 
money had been expended in advertising the trade- 
mark " Coca-Cola " as indicating plaintiff's syrup 
and the aerated beverage bottled therefrom. In the 
year 1916, $1,943,178.40 had beep expended in bring- 
ing the syrup and beverage manufactured and sold 
under the trade-mark " Coca-Cola " to the attention of 
the trade in interstate commerce. The production 
of the syrup increased from 25 gallons in 1886 very 
rapidly until the annual output had, in 1916, reached 
9,715,892 gallons; the trade-mark "Coca-Cola" had 
become favorably known everywhere; and the rights 
of the plaintiff were repeatedly affirmed by adjudica- 
tions in the United States courts. The trade-mark 
was the subject matter of two registrations in the 
United States Patent Office and prior thereto and 
since had been used by the plaintiff in interstate com- 
merce. 

On March 16, 1916, plaintiff made application to the 
Secretary of State of Illinois for the registration of 
its trade-mark "Coca-Cola" under the provisions of 
the Revised Statutes of Illinois (Chapter 140), fully 
complying with all the terms and provisions of that 
statute. The application, however, was rejected by 
the Secretary of State because of prior registrations 
by defendant John D. Fletcher, as follows: 

"John D. Fletcher's Coca and Cola Carbonating 
Syrup, Chicago, Illinois," the same being inclosed in 

208 



v. LOUIS L. EMMERSON, et al. 



a red circular band and registered July 24, 1914. Also, 
the words : 

"John D. Fletcher's Carbonated Syrup, A Genuine 
Coca and Cola flavor" the same being inclosed in a 
broad corrugated wheel or circular band of blue and 
registered October 6, 1914. Also, 

< < Tri-Pure. A genuine Coca and Cola Flavor, 7 Fl. 
Oz. Purest Drink in the World" inclosed in a broad 
corrugated wheel or circular band and registered 
March 10, 1916. Also, 

< < Tri-Pure. A Genuine Coca and Cola Flavor, 7 Fl. 
Oz. Purest Drink in the World" inclosed in a red 
corrugated wheel or circular band and registered Sep- 
tember 25, 1916 ; all of said registrations being in the 
office of the Secretary of State of Illinois. 

And the registrations of John D. Fletcher were per- 
mitted to remain on record in the office of the Secre- 
tary of State, thereby becoming clouds upon the title 
and the exclusive right of the plaintiff to the enjoy- 
ment of its trade-mark in Illinois. 

Defendant Fletcher was formerly a resident of 
Nashville, Tenn., and on or about February 15, 1911, 
organized a corporation under the laws of Tennessee, 
under the name of Nashville Syrup Company. He was 
president, general manager, and one of the prin- 
cipal stockholders of the company. Prior to the reg- 
istrations in Illinois, a bill of complaint was filed in 
the Circuit Court of the United States for the Middle 
District of Tennessee by the plaintiff against the 
Nashville Syrup Company, praying an injunction 
against the defendant for infringing plaintiff's trade- 
mark "Coca-Cola." Upon a hearing the pleadings in 
the case, on July 29, 1912, a final decree was entered 
perpetually enjoining the Nashville Syrup Company, 
its agents, servants or employes, from further in- 
fringing plaintiff's trade-mark. An appeal was 
prosecuted from the decree to the Circuit Court of 
Appeals for the Sixth Circuit, and on June 13, 1914, 
the decree of the Circuit Court was affirmed. Coca- 
Cola Co. v. Nashville Syrup Co. (D. C.) 200 Fed. 157; 

209 



THE COCA-COLA COMPANY 



Nashville Syrup Co. v. Coca-Cola Co., 215 Fed. 527, 
132 C. C. A. 39. Ann. Gas., 1915B, 358. 

Fletcher knew of the suit and the adjudication in 
the United States Circuit Court in Tennessee and 
aided in the defense interposed to the bill. At the 
time he filed his several applications for registration 
of trade-marks in Illinois, defendant Fletcher knew 
that the trade-mark "Coca-Cola" belonged to the 
plaintiff and referred to and meant to the trade plain- 
tiff's syrup and the non-alcoholic beverages made 
therefrom under plaintiff's supervision, and that the 
use of the alleged trade-marks by Fletcher was unlaw- 
ful and his acts and representations in procuring the 
registrations of his alleged trade-marks in Illinois, 
embodying the trade-mark "Coca-Cola" in various 
forms, was a fraud upon plaintiff's rights. 

The National Carbonating Syrup Company's rights 
to the trade-marks registered in Illinois were acquired 
through defendant Fletcher. 

The applications of Fletcher for the registration 
of the trade-marks in question with the Secretary of 
State of Illinois were in due form of law. The statute 
authorizing the registration of trade-marks, labels, 
etc., required the applicant to make a showing under 
oath that he had the right to the use of the trade- 
marks, the registration of which he sought, and that 
no other person, firm, organization, union, or corpora- 
tion had the right to such use either in the identical 
form, or in any such near resemblance thereto as 
might be calculated to deceive. In making this repre- 
sentation required by the statute, defendant Fletcher 
disregarded plaintiff's rights to the trade-mark 
"Coca-Cola." The registrations procured were pro- 
cured by reason of the representations made, and 
upon a hearing the Court found that the representa- 
tions were untrue and fraudulent, and that they are 
a cloud upon the title to plaintiff's property. 

It was contended upon the part of defendants 
Fletcher and National Carbonating Syrup Company, 
that the plaintiff was without remedy in equity on the 

210 



v. LOUIS L. EMMEBSON, et al. 



ground of unclean hands, for the reason that at one 
time, many years ago, it had been convicted of mar- 
keting a syrup that contained slight traces of in- 
gredients offensive to the pure food laws, and citing, 
after submission, the opinion of the Circuit Court of 
Appeals for the Ninth Circuit in Koke Co. of Amer- 
ica v. Coca-Cola Co., 255 Fed. 894, 167 C. C. A. 214; 
that plaintiff had no trade-mark rights in the name 
"Coca-Cola" for either syrup or beverage; that the 
mark was appropriated by plaintiff for a beverage 
and never was applied; that it could have no com- 
mon law trade-mark because the name arose and was 
used to describe the ingredients in plaintiff's prod- 
uct, i. e., extracts of coca leaves and cola nuts, and 
being descriptive, even if registered by plaintiff under 
the Act of February 20, 1905, it would only remove 
it on the class of merchandise to which it had been 
appropriated by the declaration and actually used ; 
the declaration appropriated the mark to the class 
known as beverages and as it was never used on 
beverages, the descriptive disability has never been 
removed ; that whatever rights the plaintiff may have 
had in the trade-mark had become a nullity; that 
plaintiff's trade-mark never attained a secondary 
meaning as the name of plaintiff's product; that de- 
fendants have always acted in good faith; that their 
product is distinctively and truly flavored with coca 
and cola; which are common products of the soil; 
that defendants' product is Trico, and their trade- 
mark distinctive; that the state or any other sov- 
ereignty has the right to say how, when, and under 
what terms a mark may be used within the limits of 
that sovereignty; that plaintiff's product is not a 
beverage. 

Defendant Secretary of State attacked the multi- 
far iousness of the bill. 

Allen, Humphreys & Converse, of Springfield, 111., 
and Frank F. Reed and. Edward 8. Rogers, both of 
Chicago, 111., for plaintiff. 

Graham & Graham, of Springfield, 111., and Edward 

211 



THE COCA-COLA COMPANY 



C. Henning, of Evansville, Ind., for defendants 
Fletcher and National Carbonating Syrup Co. 

Andrew J. Brundage, Atty. .Gen. of Illinois, and 
Clarence M. Boord, Asst. Atty. Gen. for defendant 
Secretary of State. 

FITZHENRY, District Judge (after stating the facts 
as above) : 

The very recent decision of the Supreme Court 
in Coca-Cola Co. v. Koke Co. of America, et al., 
254 U. S. 143, 41 S. Ct. 113, 65 L. Ed., has conclusively 
disposed of the defense of " unclean hands" inter- 
posed by the defendants in this case, upon the author- 
ity of Koke Co. of America v. Coca-Cola Co., 255 Fed. 
894, 167 C. C. A. 214 (C. C. A. 9th Cir.). While the 
exact question in that case is not presented here, yet 
the same principle is involved. It is claimed that none 
of the chemical elements suggested by the name 
" Coca-Cola "' wore in fact to be found in plaintiff's 
syrup, and therefore it was a fraud upon the public. 
The language of the Supreme Court in disposing of 
that case is especially apt here: 

"The name (Coca-Cola) now characterizes a 
beverage to be had at almost any soda fountain. 
It means a single thing coming from a single 
source, and well known to the community. It 
hardly would be too much to say that the drink 
characterizes the name as much as the name the 
drink. In other words 'Coca-Cola' probably 
means to most persons the plaintiff's familiar 
product to be had everywhere rather than a com- 
pound of particular substances. Although the 
fact did not appear in United States v. Coca-Cola 
Co., 241 U. S. 265, we see no reasons to doubt that, 
as we have said, it has acquired a secondary 
meaning in which perhaps the product is more 
emphasized than the producer, but to which the 
producer is entitled." 

This very recent decision of the United States Su- 
preme Court settled many of the questions involved 
in this case. The opinion of the Circuit Court of 

212 



v. LOUIS. L. EMMEESON, et al. 



Appeals of the Ninth Circuit which was reversed was 
submitted to this court for its consideration upon the 
issues raised here, by the personal and corporate de- 
fendants, upon the theory that the identical plaintiff 
in this case had been adjudicated in the Circuit Court 
of Appeals to be of such unclean hands that it should 
be denied all relief in equity. The opinion disposes 
of the question of ownership of the trade-mark and 
recognizes that it has acquired a secondary meaning 
in which perhaps the product is more emphasized 
than the producer, but to which the producer is en- 
titled. 

It is well established that equity has jurisdiction 
to: (1) Cancel fraudulent instruments affecting titles; 
(2) to quiet title; (3) to remove a cloud on title; and 
(4) to enjoin clouding a title. If at the time of 
Fletcher's adoption and use of the trade-marks which 
he registered in Illinois the plaintiff had title to and 
was as far as possible, with this kind of property, in 
possession of the trade-mark "Coca-Cola" then any 
user or claim by another to that mark or a simulation 
thereof was such a wrong and trespass upon plain- 
tiff's trade field, as to bring the question within the 
purview of equitable relief. 1 Storey's Equity, 700; 
Coel v. Glos, 232 111. 142, 83 N. E. 529, 15 L. R. A. 
(N. S.) 413; Hemstreet v. Burcick, 90 111. 444; Glos 
v. Goodrich, 175 111. 20, 51 N. E. 643; Langlois v. 
Stewart, 156 111. 609, 41 N. E. 177 ; Bradley v. Bell, 
142 Ala. 382, 38 South 759; Grove v. Jennings, 46 
Kan. 366, 26 Pac. 738 ; Hamilton v. Batlin, 8 Minn. 403 
(Gil. 359) 83 Am. Dec. 787. 

In a case of this character, where it is clear that 
the legal remedy in the premises, mandamus, is ut- 
terly inadequate to protect plaintiff's rights, equity 
has full jurisdiction over the Secretary of State to 
decree the plaintiff the relief to which it is entitled 
and to compel the Secretary of State to carry out the 
court's mandates by canceling any wrongful registra- 
tions of the defendants which constitute a cloud upon 
plaintiff's title and to permit the registrations of 

213 



THE COCA-COLA COMPANY 



plaintiff's trade-mark. Greene v. L. & I. B. Co., 244 
U. S. 499, 37 Sup. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 
1917E, 88; L. & N. B. Co. v. Bosworth (D. C.) 230 
Fed. 191; 111. Central E. Co. v. Bosworth (D. C.) 209 
Fed. 465; same v. Greene, 244 U. S. 555, 37 Sup. Ct. 
697, 61 L. Ed. 1309; St. Louis & S. F. B. Co. v. Cross 
(C. C.) 171 Fed. 480; Harrison v. St. L. & S. F. By. 
Co., 232 U. S. 318, 34 Sup. Ct. 333, 58 L. Ed. 621, 
L. B. A. 1915F, 1187 ; Phil. Co. v. Stimson, 223 U. S. 
605, 32 Sup. Ct. 340, 56 L. Ed. 570; Lane v. Watts, 
234 U. S. 525, 34 Sup. Ct. 965, 58 L. Ed. 1440. 

In the trade-marks registered by defendant Fletcher 
and attached to his answer, Exhibit A contains the 
words "John D. Fletcher's Coca and Cola Carbonat- 
ing Syrup, Chicago, Illinois. " B contains the words 
"John D. Fletcher's Carbonating Syrup, A Genuine 
Coca and Cola Flavor." C contains the words "Tri- 
pure Purest Drink in the World, A Genuine Coca and 
Cola Flavor. 7 Fl. Oz." D contains the words "Trico 
Purest Drink in the World, Genuine Coca and Cola 
Flavor. 6J Fl. Oz." In exhibit A the words "Coca" 
and "Cola" are in type about twice the size of the 
largest type in the label. The letters are outline type, 
printed in two colors, blue and red. In Exhibits B 
and C the words "A Genuine Coca and Cola Flavor" 
form four horizontal lines the words "Coca and 
Cola" being the longest line in the center of the 
trade-mark, while the center of Exhibit D is ar- 
ranged almost exactly the same as C, with the excep- 
tion of the word "a," so that in all four of the reg- 
istrations the catchy display line which would natu- 
rally be the first to attract the eye is "Coca and Cola." 
In Exhibit A the word "and" in the display line 
"Coca and Cola" is printed in type probably one- 
fourth as large as the type used in "Coca" and 
"Cola," so that the word "and" might readily be 
mistaken for the dash in plaintiff's trade-mark "Coca- 
Cola." All of the labels now claimed by defendant 
Fletcher as his trade-marks, and which were registered 
by him, display a manifest purpose on the part of 

214 



v. LOUIS L. EMMERSON, et al. 



the designer to attract the eye of and interest the 
public in two words "Coca" and "Cola." 

In the light of these facts, it is quite natural that 
the Secretary of State should have held, when the 
plaintiff endeavored to register its trade-mark, that 
it was so similar to those already registered as to re- 
quire him to deny registration. There could be no 
better or more convincing evidence of the infringe- 
ment than the official action of the Secretary of State 
upon plaintiff's application. The addition of the 
word * ' genuine ' ' and the adding of the word ' * flavor ' ' 
and the substitution of the word "and" for the dash 
in plaintiff's trade-mark do not relieve defendant 
Fletcher from his culpability as an infringer, but 
rather by the arrangement of the labels, the registra- 
tion of which he procured, makes the conclusion the 
more irresistible that he clearly intended to appro- 
priate to his own use the benefits of plaintiff's trade- 
mark in Illinois. Added words and their embellish- 
ment do not destroy rights in a trade-mark. Coca- 
Cola Co. v. Nashville Syrup Co. (D. C.) 200 Fed. 
153-155, 200 Fed. 157-160, affirmed 215 Fed. 327, 132 
C. C. A. 39 ; Coca-Cola Co. v. Am. Druggists ' Syndicate 
(D. C.) 200 Fed. 107; Fuller v. Huff, 104 Fed. 141, 
43 C. C. A. 453, 51 L. E. A. 332 ; De Long v. De Long 
Hook & Eye Co., 10 Misc. Rep. 577, 32 N. Y. Supp. 203 ; 
Clark Thread Co. v. Admitage, 74 Fed. 936, 21 C. C. A. 
178 ; Beecham v. Jacobs, 221 U. S. 263, 31 Sup. Ct. 555, 
55 L. Ed. 729 ; Menendez v. Holt, 128 U. S. 514, 9 Sup. 
Ct. 143, 32 L. Ed. 526. 

Virtuous intentions cannot be attributed to defend- 
ant Fletcher in his infringement upon the plaintiff's 
rights. He personally procured the registrations; he 
is the president of the corporation defendant, National 
Carbonating Syrup Company, and he was the presi- 
dent, general manager, and one of the largest stock- 
holders of the Nashville Syrup Company, which was 
enjoined from infringing upon the plaintiff's trade- 
mark by the decree of the United States Circuit Court 
for the Middle District of Tennessee (Coca-Cola Co. 

215 



THE COCA-COLA COMPANY 



v. Nashville Syrup Co. [D. C.] 200 Fed. 153, 215 Fed. 
327, 132 C. C. A. 39), and was one of the persons who 
come within the rule that an officer, director, or stock- 
holder of a corporation is bound and estopped by judg- 
ment against the corporation, when he has full knowl- 
edge and participates in the defense (Hancock Nat'l. 
Bank v. Farnum, 176 U. S. 640, 20 Sup. Ct. 506, 44 
L. Ed. 619; Singer v. Hutchinson, 183 111. 606, 56 
N. E. 388, 75 Am. St. Rep. 133; United States v. 
United States Shoe Machinery Co. [D. C.] 234 Fed. 
127). So we conclude that in designing the trade- 
marks, the registration of which Fletcher procured, 
his purpose to use plaintiff's trade-mark was not only 
clear and deliberate, but with full knowledge of plain- 
tiff's rights. The character of defense interposed 
strengthens this view, for it is contended, practically, 
that inasmuch as the trade-martt "Coca-Cola" was 
not registered, anybody could register it and that the 
first person to do so would be the legal owner thereof 
and entitled to its use. This, of course, is a mistaken 
view of the Illinois statute. Registration does not and 
cannot create or bestow the exclusive right to use a 
trade-mark, nor does the statute so provide. 

There is nothing in the Illinois statute requiring 
registration preliminary to a suit, or the making of 
the certificate anything more than evidence of adop- 
tion, nor does it provide that registration shall con- 
fer any exclusive right, nor is any means provided for 
the settling of contested priority claims in the office 
of the Secretary of State between two applicants. 
Where a similar statute of New York was under con- 
sideration, the Court of Appeals said : 

"It may be observed, however, that the Legis- 
lature by this Statute has not attempted to confer 
trade-mark rights, but merely to more effectively 
regulate existing common-law trade-marks and to 
afford an additional speedy remedy for the vio- 
lation thereof, and to prevent fraud and imposi- 
tion on the public, which are matters within the 

216 



v. LOUIS L. EMMEBSON, et al. 



police power of the State." Prest-0-Lite Co. v. 
Bay, 162 App. Div. 62, 147 N. Y. Supp. 138. 
Only the owner of a trade-mark has the right to 
register it. Defendant Fletcher must now be held to 
have known that the plaintiff here and its prede- 
cessors owned the trade-mark "Coca-Cola" by adop- 
tion and use since 1886, and this ownership and the 
rights of the plaintiff to it have been adjudicated so 
frequently in the federal and state courts that it has 
become a matter of such common knowledge as to 
make the citation of authorities entirely unnecessary. 
In the light of this situation, it is not difficult for 
the court to conclude as to which of the contending 
parties judicial protection should be granted. Carroll 
& Son v. Mcllvaine & Baldwin (C. C.) 171 Fed. 125. 

Where it was contended that registration created 
rights, the Supreme Court of the United States said: 
"This exclusive right was not created by the 
act of Congress, and does not now depend upon 
it for its enforcement. The whole system of 
trade-mark property and the civil remedies for 
its protection existed long anterior to that act, 
and have remained in full force since its passage. ' ' 
Trade-Mark Cases, 100 U. S. 82, 25 L. Ed. 550. 
Begistration cannot confer a title to a trade-mark, 
if some other individual has acquired a prior right by 
adoption and use ; nor can it vest a title in the reg- 
istrant as against another's common-law title. Car- 
roll & Son v. Mcllvaine & Baldwin (C. C.) 171 Fed. 
125. 

The general rule adopted by the courts on this sub- 
ject is that the state statutes providing for registra- 
tion of trade-marks are in affirmance of the common- 
law; that the remedies given by such statutes are 
either declaratory or are cumulative and additional 
to those recognized and applied by the common law. 
Trade-Mark Cases, 100 U. S. 82, 25 L. Ed. 550. The 
registering of defendant Fletcher's trade-marks with 
the Secretary of State has no effect in giving them 

217 



THE COCA-COLA COMPANY 



the quality of trade-marks if not already such. Oakes 
v. St. Louis Candy Co., 146 Mo. 391, 48 S. W. 467. 

Business good will and trade-marks indicative there- 
of are property rights and considered and treated as 
such. Hanover Star Milling Co. v. Metcalf, 240 U. S. 
403, 36 Sup. Ct. 357, 60 L. Ed. 713. The plaintiff here 
and its predecessors had used the trade-mark " Coca- 
Cola" in interstate commerce since 1886 and had used 
it in connection Avith its business in intrastate com- 
merce in Illinois for a great many years before the 
recording of defendant Fletcher's trade-marks with 
the Secretary of State. The good will of the public 
and the trade-mark indicative thereof in Illinois were 
plaintiff's property at the time of the filing of the 
trade-marks by Fletcher and were entitled to the pro- 
tection which the law gives. 

Section 3 of the Trade-Marks^ Act of Illinois pro- 
vides : 

" Every such person, association or union that 
has heretofore adopted or used, or shall here- 
after adopt or use, a * trade-mark as 
provided in section 1 of this act shall file the 
same for record in the office of the Secretary of 
State, by leaving two copies : with said 
Secretary, and by filing therewith a sworn state- 
ment specifying the name or names of the per- 
son * * * on whose behalf such trade- 
mark : : shall be filed, the class of merchan- 
dise and particular description of the goods to 
which it has been or is intended to be appro- 
priated; that the party so filing, or on whose be- 
half such : : trade-mark : : shall be filed, 
has the right to the use of the same, and that no 
other person, firm, association, union or corpora- 
tion has the right to such use either in the iden- 
tical form or in any such near resemblance there- 
to as may be calculated to deceive, and that the 
facsimile copies or counterparts filed therewith 
are true and correct." 111. E. S. c. 140, Sec. 3, 
6 J. & A. Ann. Stat. 6335. 



218 



v. LOUIS L. EMMEESON, et al. 



Defendant Fletcher undoubtedly made the proof re- 
quired by this statute, and in doing so he knew, by 
reason of the prior adjudication of plaintiff's trade- 
mark in Coca-Cola Co. v. Nashville Syrup Co. (P. C.) 
200 Fed. 157, as well as his experience and knowl- 
edge of plaintiff's business and trade-mark, evidenced 
by the manifest purpose of the design of the trade- 
marks, the registration of which he procured, the 
showing which he made to the Secretary of State in 
compliance with the statute was false and fraudulent. 

There can be no question as to the right of the plain- 
tiff even though a foreign corporation to enter a 
forum in the state of Illinois for the purpose of pro- 
tecting its property rights (Peck Bros. & Co. v. Peck 
Bros. Co., 113 Fed. 291, 51 C. C. A. 251, 62 L. E. A. 
81) ; nor that the Secretary of State is a proper party 
to plaintiff's bill; and that mandamus would be an 
inadequate remedy. (People v. Eose, 219 111. 46, 76 
N. E. 42; People v. Van Cleave, 183 111. 330, 55 N. E. 
698, 47 L. E. A. 795 ; Bender v. Bender, 178 111. App. 
203 ; International Committee of Y. M. C. A. v. Y. W. 
C. A., 194 111. 194, 62 N. E. 551, 56 L. E. A. 888.) The 
Attorney General of Illinois on behalf of the Secre- 
tary of State presses the point of multifariousness. 
The bill comes clearly within Equity Eule 26 (198 Fed. 
xxv, 115 C. C. A. xxv). 

The record shows that the Secretary of State was 
misled into recording Fletcher's trade-marks by rea- 
son of the false showing made in connection with the 
application. In other words, the joint effect of 
Fletcher's misconduct which resulted in the Secre- 
tary's official action based thereon constitute a cloud 
upon the title of plaintiff's property which equity will 
remove. Eule 26 (198 Fed. xxv, 115 C. C. A. xxv) 
does not drive the plaintiff into a circuity of actions, 
first, to resort to equity to establish its property 
rights over defendant Fletcher's claims and then to 
bring a separate action against the Secretary of State 
to cancel the illegal and unlawful registrations which 
constitute a cloud upon plaintiff's title and to procure 

219 



THE COCA-COLA COMPANY 



the registration of plaintiff's trade-mark. Equity 
will avoid a multiplicity of suits. 

The claim that "Genuine Coca and Cola Flavor" is 
truthfully descriptive of the flavor of defendant's 
product is disposed of by Coca-Cola Co. v. Koke Co. 
of America, 254 IT. S. 143, 41 Sup. Ct. 113, 65 L. Ed. ; 
Davids Co. v. Davids, 233 U. S. 461, 34 Sup. Ct. 658, 
58 L. Ed. 1046; Coca-Cola Co. v. Nashville Syrup Co. 
(D. C.) 200 Fed. 157. And this would be true even 
in the absence of the stipulation in this case that 
"Coca-Cola" has a secondary or distinctive meaning. 

To adopt the contention of the defendants as to 
territorial limitations would be to recognize an un- 
lawful burden upon or interference with or obstacle 
to interstate commerce, in contravention of the long 
line of authorities upon that subject which hold that 
such a burden is unlawful, regardless of whether it 
is an attempt by reason of a regulatory statute, a 
license tax, or the enforcement of a trade-mark regis- 
tration act. The case upon which defendants rely 
(Hanover Star Milling Co. v. Metcalf, 240 U. S. 103, 36 
Sup. Ct. 357, 60 L. Ed. 713) is inapplicable to sustain 
their position as no registration of a trade-mark was 
under discussion in that case by the Supreme Court. 
That decision disposed of the rights of the parties as 
to common-law trade-marks. 

Defendants make the point that because the plain- 
tiff does not bottle the beverages made from its 
syrups, but permits others to do so under supervisory 
bottling contracts, takes this case out of the rule with 
reference to adoption and user, for the reason, it is 
charged, that plaintiff's trade-mark is only used upon 
the syrup. The courts have held that the sufficiency 
of plaintiff's supervisory contracts over its bottlers 
justifies the employment of plaintiff's trade-mark 
"Coca-Cola" on the bottled product. Coca-Cola Co. 
v. Deacon Brown Bottling Co. (D. C.) 200 Fed. 105; 
Coca-Cola Co. v. J. G. Butler (D. C.) 229 Fed. 224. 
In the latter case equity enjoined a bottler from using 
the syrup and beverage made therefrom without super- 



220 



v. LOUIS L. EMMEESQN, et al. 

vision, against the plaintiff's wishes. The court held 
the same in Coca-Cola Co. v. Bennett, 238 Fed. 513, 
151 C. C. A. 449. 

The personal and corporate defendants earnestly 
contended that their trade-mark is "Trico" and not 
a "Genuine Coca and Cola Flavor," but simply the 
word "Trico" which described its syrup and the bev- 
erage made from it. This court can see no objection 
to a full enjoyment of the benefit of any trade-mark 
by the defendant if properly limited, but in equity and 
in good conscience it should not be permitted to use 
a combination of words which will mislead the public 
into believing that it is getting a beverage which con- 
tains the "Coca-Cola" flavor. To permit defendants 
to do so would be to permit them to apply to their 
own use, the benefit of the stupendous sums of money 
which have been appropriated and expended for ad- 
vertising plaintiff's goods throughout the length and 
breadth of the country; to cause confusion, and in a 
way, to permit the public to deceive itself, to the detri- 
ment of the plaintiff, who, undoubtedly, owns the 
trade-mark and all rights concerning it, as well as the 
good will of the business and who is entitled to the 
full enjoyment of it. As the Supreme Court so 
recently said : 

"It hardly would be too much to say that the 

drink characterizes the name as much as the name 

the drink." 

The name, it must be conceded, is owned by the 
plaintiff. 

A decree will be entered in line with these views 
and the facts heretofore found. 



221 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE SOUTHERN 

DISTRICT OF ILLINOIS, 

SOUTHERN DIVISION 



Monday May 16, 1921, Court met pursuant to adjourn- 
ment. Present, The Honorable 

LOUIS FlTzHENRY, Judge. 



No. 47 IN EQUITY 

I 



THE COCA-COLA COMPANY, a Delaware Cor- 
poration, Plaintiff, 

v. 

LOUIS L. EMMERSON, Secretary of State, JOHN 
D. FLETCHER and THE NATIONAL CAR- 
BONATING SYRUP COMPANY, a Corporation, 
Defendants. 



DECREE. 

This cause coming on for final hearing upon plead- 
ings and proofs, and being argued by counsel, and the 
court having found the facts by the findings of fact 
filed in said cause, and upon motion of the plaintiff 
for a decree, it is Ordered, Adjudged and Decreed as 
follows : 

(1) That the defendants, John D. Fletcher and The 
National Carbonating Syrup Company, do forthwith 
execute and deliver to defendant Louis L. Emmerson, 
Secretary of State of the State of Illinois, proper 

222 



v. LOUIS L. EMMERSON, et al. 



cancellation of the alleged registrations of trade- 
marks and labels, four in number, made in the Office 
of the Secretary of State of the State of Illinois by 
defendant, John D. Fletcher, and now claimed by de- 
fendant, The National Carbonating Company, and 
specified and set forth in the pleadings, evidence and 
findings of the court, and in this decree, and that said 
defendant, Louis L. Emmerson, Secretary of State, 
do forthwith in due and proper form annul and can- 
cel and enter cancellations and annulments of said 
registrations, and each thereof. 
Said registrations are as follows: 

A. "John D. Fletcher's Coca and Cola Car- 
bonating Syrup, Chicago, Illinois," enclosed in a 
red circle and registered in the office of the then 
Secretary of State of the State of Illinois by said 
John D. Fletcher on or about July 24, 1914, and 
a like registration filed by said Fletcher, Oc- 
tober 9, 1914, and also shown as Exhibit "A" to 
the answers of John D. Fletcher and The National 
Carbonating Syrup Company filed herein on or 
about May 28, 1917. 

B. "JohnD. Fletcher's Carbonating Syrup. A 
Genuine Coca and Cola Flavor" same being en- 
closed in a broad corrugated wheel or band of 
blue and registered by said John D. Fletcher on 
or about October 6, 1914, in the office of the then 
Secretary of the State of Illinois, and shown as 
Exhibit "B" to the answers of said John D. 
Fletcher and The National Carbonating Syrup 
Company, filed herein on or about the 28th day 
of May, 1917. 

C. "Tri-Pure. A Genuine Coca and Cola 
Flavor, 7 Fl. Oz. Purest Drink in the World" 
enclosed in a red corrugated wheel or circular 
band and registered in the office of the then Secre- 
tary of State of the State of Illinois on or about 
March 10, 1916, by said John D. Fletcher and 
shown as Exhibit "C" to the answers of said 
John D. Fletcher and The National Carbonating 

223 



THE COCA-COLA COMPANY 



Syrup Company filed herein on or about May 28, 
1917. 

D. "Trico. Genuine Coca and Cola Flavor. 
6J Fl. Oz. Purest Drink in the World" enclosed 
in a red corrugated wheel or circular band and 
registered on or about September 25, 1916, in the 
office of the then Secretary of State of the State 
of Illinois by said John D. Fletcher and shown as 
Exhibit "D" to the answers of said John D. 
Fletcher and The National Carbonating Syrup 
Company, filed herein on or about May 28, 1917. 
That the said defendant Louis L. Emmerson, Secre- 
tary of State of Illinois, do forthwith, upon retender 
to him of the application made by the original plain- 
tiff herein on or about March 16, 1916, or of a new 
application in due form made by the present plaintiff, 
herein, in each case with proper fee for registration, 
allow registration and issue certificate of registration 
therefor of the words " Coca-Cola'" and deliver the 
said certificate of registration to said present plaintiff. 
(2) That said John D. Fletcher, his agents, serv- 
ants, attorneys, associates and assigns, and the said 
defendant The National Carbonating Syrup Company, 
its officers, directors, agents, attorneys, servants and 
employees, successors and assigns, and each and 
every thereof, be and the same, and each thereof 
hereby are perpetually enjoined and restrained from 
registering and from using and employing upon or in 
connection with syrups, extracts or beverages made 
therefrom the words or phrases "Coca-Cola," "Coca 
and Cola," "Coca and Cola Carbonating Syrup" and 
"A Genuine Coca and Cola Flavor," or any thereof, 
or any like word or phrase, and from using as labels, 
crowns, capsules or trade-marks, or in advertising, the 
designs, marks or labels specified as A, B, C, and D, 
in Paragraph (1) hereof, or any form of label, crown 
or capsule, or any word or words, phrase or phrases 
calculated to deceive consumers or buyers of plain- 
tiff's product, or to pass off the product of said de- 
fendants as and for the product of plaintiff, or to 

224 



v. LOUIS L. EMMERSON, et al. 



induce the belief that the product of either of said 
defendants is the product of the plaintiff and that a 
writ of injunction issue accordingly. 

(3) Plaintiff having in open court waived an assess- 
ment of damages and accounting of profits to this date 
and recovery thereof to date from and by said defend- 
ants, John D. Fletcher and The National Carbonating 
Syrup Company, and each thereof, this decree is made 
final. 

(4) That the plaintiff do have and recover from 
said defendants, John D. Fletcher and The National 
Carbonating Syrup Company, the costs of this pro- 
ceeding to be taxed, and have execution therefor. 

Louis FITZHENRY, Judge. 
May 16th, 1921. 

Frank F. Reed, solicitor and of counsel for plaintiff. 

Edwin C. Henning, attorney for all defendants, except 
Emmerson. 



225 



IN THE DISTRICT COURT 
OF THE UNITED STATES 

FOR THE EASTERN 
DISTRICT OF VIRGINIA 



3 T. M. R. 126 



IN 



THE COCA-COLA COMPANY 

v. 
THE VIRGINIA SYEUP COMPANY 



CANDLER, THOMSON & HIRSCH, Atlanta, Georgia, 

HARRY D. NIMS, New York City, 

C. V. MEREDITH, Richmond, Virginia, 

Solicitors and of Counsel for Complainant. 



220 






COCA COLA 





IN EQUITY 



THE COCA-COLA COMPANY 

v. 
THE VIRGINIA SYRUP COMPANY 



WADDILL, District Judge. 

This cause is now before the court for final hearing 
upon the pleadings and proofs, and upon the applica- 
tion for the injunction prayed for, and the conclusion 
reached by the court thereon is that the complainant 
has a valid statutory trade-mark in the word or 
words, "Coca-Cola," and that the defendant, in the 
manufacture and vending of its compound known as 
"Crescent Coca-Cola" is infringing the complainant's 
trade-mark, and hence, the injunction prayed for 
should be granted. 

Reference may be had to the recent decision of 
Judge SANFOKD, in the case of Coca-Cola Co. v. Nash- 
ville Syrup Co., 200 Fed. 157, and the authorities re- 
ferred to therein, as containing a full and interesting 
discussion of the subject under consideration. 

A true copy: Attest: 

JOSEPH P. BEADY, Clerk. 

Filed March 5, 1913. 



227 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN DISTRICT 

OF VIRGINIA 



THE COCA-COLA COMPANY, Complainant, 

v. 
VIRGINIA SYRUP COMPANY, Defendant. 



This cause came on to be further heard at this term 
and was argued by counsel ; and thereupon, upon con- 
sideration thereof and it appearing that the complain- 
ant does not desire to take any probf before the Special 
Commissioner, E. M. Long, as to the damages which 
it has sustained by reason of the sale or sales made 
by the defendant or his agent and employees as al- 
leged in complainant's bill, it is Ordered, Adjudged 
and Decreed that the complainant recover of the de- 
fendant all its costs in this suit had and expended, and 
nothing further remaining to be done herein, it is 
further Ordered that this suit be stricken from the 
docket and placed among the ended causes. 

(Signed) EDMUND WADDILL, JR., 

U. S. District Judge. 

Richmond, Virginia, October 6, 1914. 
A true copy. Teste: 



Deputy Clerk. 



228 



IN THE DISTRICT COURT 
OF THE UNITED STATES 

FOR THE SOUTHERN 
DISTRICT OF NEW YORK 



200 FEDERAL 107 



OCTOBER 7, 1912 



THE COCA-COLA COMPANY, 

v. 
AMERICAN DRUGGISTS' SYNDICATE, et al. 



HARRY D. NIMS, New York City, 
CANDLER, THOMSON & HIRSCH, Atlanta, 
COLBY & GOLDBECK, New York City, 
For Complainant. 

S. STANWOOD MENKEN, 

For Defendants. 



229 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE SOUTHERN 

DISTRICT OF NEW YORK 

200 FEDERAL 107 



OCTOBER 7, 1912 



THE COCA-COLA COMPANY, 

v. 
AMERICAN DRUGGISTS' SYNDICATE, et al. 



TRADE-MARKS AND TRADE-NAMES (Sec. 95) IN- 
FRINGEMENT INJUNCTION. 

Complainant's trade-mark "(Oca-Cola" applied to a soft drink 
sold at soda fountains, was /iriina facie infringed by defendant's 
sale of a similar preparation under the term "Extract of Coca and 
Kola" so as to entitle complainant to a preliminary injunction. 

(ED. NOTE. For other cases see Trade-marks and Trade-names 
Cent. Dig. Sec. 108; Dec. Dig. Sec. 95.) 

In Equity. Suit by The Coca-Cola Company against 
the American Druggists' Syndicate and others. 
On motion for preliminary injunction. Granted. 

Harry D. Nims, of New York City, Candler, Thom- 
son & Hirsch, of Atlanta, Ga., and Colby & Goldbeck, 
of New York City, for complainant. 

8. Stanwood Menken, for defendants. 

LACOMBE, Circuit Judge : 

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 consid-. 
ered opinion, that complainant has a valid registered 

230 



v. AMERICAN DRUGGISTS' SYNDICATE, et al. 

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 pe- 
culiarly characteristic element. There is not in the 
record any satisfactory evidence that a combination 
of decocainized coca with cola has ever been used, or 
is usable, in medicine or in the arts, or any otherwise 
than a soft drink. Under these circumstances it 
would seem that complainant is entitled to an injunc- 
tion against the further use of the term "Extract of 
Coca and Kola," or any similar term as the name of 
defendant's soft drink. That the drink as sold is con- 
centrated, so as to require dilution by the dispensing 
druggist and the addition of sweetening to make it 
a safe and palatable ingredient to be added at the 
soda fountain to aerated water, seems immaterial. 

The operation of the injunction will be stayed for 
60 days after entry of the order. 



231 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE SOUTHERN 

DISTRICT OF NEW YORK 



THE COCA-COLA COMPANY, 

Complainant, 
v. 

AMERICAN DRUGGISTS' SYNDI- 
CATE; REID, YEOMANS & 
CUBIT; HENRY B. SMITH; 
STEPHEN E. DORN; THE 
CARTWRIGHT COMPANY; 
JULIUS C. BELMONTE; BELA 
KRAMER ; MAX NEWMAR K ; 
EDWARD LEGOLL; PETER 
DIAMOND; ROBERT GOLD- 
BERG; MORRIS L. SWEITZER; 
ABRAHAM SETTEL; JOHN M. 
KRAUSE and JOHN H. EBER- 
HARDT, Co-Partners doing busi- 
ness under the firm name and style 
of KRAUSE & COMPANY. 

Defendants. 



E. 9-296. 



This cause coming on to be heard on complainant's 
motion for a final decree, and complainant appearing 
by its solicitors Candler, Thomson & Hirsch, of At- 
lanta, Georgia, Colby & Goldbeck and Harry D. Nims, 
of New York City, and the defendant American Drug- 
gists ' Syndicate appearing by its solicitors Philbin, 
Beekman, Menken & Griscom, of New York City, and 
the defendants, Reid, Yeomans & Cubit ; Henry B. 
Smith; Stephen E. Dorn; The Cartwright Company; 
Julius C. Belmonte ; Bela Kramer ; Max Newmark ; Ed- 
ward Legoll; Peter Diamond; Robert Goldberg; Mor- 
ris L. Sweitzer ; Abraham Settel ; John M. Krause and 
John H. Eberhardt, co-partners doing business under 
the firm name and style of Krause & Co. appearing 

232 



v. AMERICAN DRUGGISTS' SYNDICATE, et al 

by their solicitors D. Raymond Cobb, of Syracuse, 
New York, and it appearing to the Court that the is- 
sues involved herein have been settled and agreed 
upon by the parties hereto, the defendants agreeing 
to consent to the entry of a final decree in the form 
following, now, on motion of Harry D. Nims, of coun- 
sel for the complainant, it is 

Ordered, Adjudged and Decreed, That a perpetual 
injunction be issued pursuant to the prayer of the Bill 
of Complaint herein, strictly commanding and enjoin- 
ing the defendants American Druggists' Syndicate, 
Reid, Yeomans & Cubit, Henry B. Smith, Stephen E. 
Dorn, The Cartwright Company, Julius C. Belmonte, 
Bela Kramer, Max Newmark, Edward Legoll, Peter 
Diamond, Robert Goldberg, Morris L. Sweitzer, 
Abraham Settel, and John M. Krause and John H. 
Eberhardt, co-partners doing business under the firm 
name and style of Krause & Co., their agents, serv- 
ants, employees, associates, and each and every of 
them, that he, it and they desist and refrain from any 
further use, directly or indirectly of the term "Ex- 
tract Coca & Kola," or any similar term as the name 
of the soft drink manufactured, advertised and sold 
by the defendant American Druggists' Syndicate, and 
which is referred to in the bill of complaint herein; 
and it is further 

Ordered, Adjudged and Decreed, That the defend- 
ants be relieved from the payment of any and all 
damages whatsoever; and it is further 

Ordered, Adjudged and Decreed, That no costs be 
payable to either of the parties hereto by the other. 

GEO. C. HOLT, Judge, 
United States District Court. 

We consent to the entry of the foregoing decree : 

Philbin, BeeJcman, Menken & Griscom, 

Solicitors for American Druggists ' Syndicate. 

D. Raymond Cobb, 

Solicitor for Reid, Yeomans & Cubit, et al. 

233 



THE COCA-COLA COMPANY 



Harry D. Nims, 

Solicitor for Complainant. 

Endorsed : IT. S. District Court, S. D. of N. Y., filed 
May 21, 1913. 

UNITED STATES OF AMERICA, ) 

f CO 

SOUTHERN DISTRICT OF NEW YORK. ) 

/, Alexander Gilchrist, J/\, Clerk of the District 
Court of the United States for the Southern District 
of New York, do hereby Certify that the Writings 
annexed to this Certificate, namely, Final Decree filed 
May 21, 1913, in the case entitled The Coca-Cola Com- 
pany against American Druggists ' Syndicate, Equity 
9-296 have been compared by me with their originals 
on file and remaining of record in my office; that they 
are correct transcripts therefrom* and of the whole of 
the said originals. 

In Testimony Whereof, I have hereunto subscribed 
my name and affixed the seal of the said court at the 
City of New York, in the Southern District of New 
York, this 22nd day of August in the year of our Lord 
One Thousand Nine Hundred and Twenty-two, and of 
the Independence of the said United States the One 
Hundred and Forty-seventh. 

(Seal) ALEX. GILCHRIST, JR., Clerk. 



234 




274 FEDERAL 481 



JULY 22, 1921 



THE COCA-COLA COMPANY, 

v. 
BROWN & ALLEN. 



1. COURTS KN. 328 (3) VALUE OF GOOD WILL ELE- 
MENT OF VALUE INVOLVED FOR JURISDICTIONAL 
PURPOSES. 

In a suit to enjoin an alleged unfair trade practice affecting the 
value of complainant's good will, such value may be considered 
in determining the amount involved for jurisdictional purposes. 

2. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION KN. 68 UNFAIR TRADE PRACTICE 
MAY BE ENJOINED. 

Complainant, which makes and sells a well-known syrup for 
soda fountains, to be diluted with carbonated water and sold to 
the public as a drink, held entitled to an injunction to restrain 
defendants, who operate a soda fountain, from diluting complain- 
ant's syrup and adding other ingredients, before placing it in 
their fountain, and drawing and selling the mixture as complain- 
ant's drink. 

In Equity. Suit by The Coca-Cola Company against 
Brown & Allen. On motion for preliminary in- 
junction. Granted. 

Candler, Thomson & Hirsch, of Atlanta, Georgia, 
for complainant. 

235 



THE COCA-COLA COMPANY 



Brewster, Howell & Heyman, of Atlanta, Georgia, 
for defendant. 

SIBLEY, District Judge : 

The Coca-Cola Company is the manufacturer of a 
syrup known as Coca-Cola, which it sells to soda 
founts to be diluted with carbonated water and sold as 
a drink to the public. To create a public demand it 
spends annually much money in advertising, and has a 
large and well-established patronage for its drink so 
sold. Brown & Allen, operating a soda fount, pur- 
chase Coca-Cola from The Coca-Cola Company and 
dispense it. An injunction pendente lite is now sought 
against an alleged unfair practice of Brown & Allen. 

(1) 1. Jurisdiction is contested because an insuffi- 
cient amount is said to be involved. It may be that 
the damages recoverable from Brown & Allen are less 
than $3,000.00, or even that none are recoverable be- 
cause incapable of estimation; but the wrong alleged 
affects the value of petitioner's good will in business, 
which may be greatly injured by a continuance of the 
practice attacked. The value of this good will, which 
greatly exceeds $3,000.00, may be looked to in deter- 
mining the amount involved, and the jurisdiction is 
thereby sustained. Frontera Transp. Co. v. Abaunza 
(C. C.'A.) 271 Fed. 199. 

(2) 2. The evidence authorizes a finding that, 
while filling glasses for Coca-Cola, the defendants 
at their fount, in the presence of the customer, 
draw into the glass an amount of syrup resembling 
in consistency and color petitioner's product, and 
then add the usual amount of carbonated water and 
such flavors as the customer may order. The syrup 
so drawn is Coca-Cola, to which water, sugar, and 
caramel have been added before putting it in the 
fount. The water, of course, increases the amount of 
syrup and weakens it. The sugar, however, serves to 
restore its consistency and the caramel its color; they 
being used for this purpose in making the original 
syrup. Analyses indicate that the adulteration 

236 



v. BEOWN & ALLEN 



results in making about two gallons out of one. Thus, 
if the usual amount of syrup is drawn for a customer, 
his drink really contains but one-half the peculiar 
constituents of Coca-Cola, and is somewhat altered, 
perhaps, in taste. 

It is contended that this is not only a fraud upon 
the public, but reflects itself also as one upon the peti- 
tioner, because the customer, in the language of the 
street, will conclude that "Coca-Cola is no good any 
more," and its popularity will be destroyed. On the 
other hand, it is said that the syrup was sold to be 
diluted, and the time and manner of its dilution is 
immaterial, and that by treating it as they do defend- 
ants please their customers and act within their 
rights. 

No statute is involved. No contract restricting the 
manner of use or sale of the syrup is shown. No 
mark, of course, is upon the wares sold at the fount, 
and petitioner's trade-mark is, therefore, not involved. 
It is not an ordinary case of unfair competition, where 
one substitutes a spurious and imitative article and 
sells it as another's product. Indeed, it is said there 
can be no competition between a wholesaler and a re- 
tailer (Eegent Shoe Mfg. Co. v. Haaker, 75 Neb. 426, 
106 N. W. 595, 4 L. E. A. [N. S.] 477), and in point 
of fact the defendants are using and selling the peti- 
tioner's very product. But the genuine article has 
been altered by dilution and by disturbance of the 
proportions of its ingredients, and so sold. Counsel 
have found no authority respecting the right of a 
purchaser in bulk from the wholesaler to dilute or 
adulterate the article purchased and sell it as the 
product of the maker. 

Without doubt the retailer here, because of the na- 
ture of the business and the way in which the syrup 
is ordinarily used therein, may dilute Coca-Cola 
syrup in offering it for sale. It is never drunk other- 
wise than diluted. He may also sweeten it by adding 

907 

&O I 



THE COCA-COLA COMPANY 



sugar, if that is desired by his customer, or he 
may similarly add anything else the customer desires. 
He may even develop a peculiar and popular mixture, 
which may make his Coca-Cola known and sought as 
such. But can he, with no claim made to the public 
of a distinctive mixture, and relying solely on the 
reputation of Coca-Cola as developed by its maker, 
deceptively dilute and cheapen it for the additional 
profit to be thus made? Such conduct is immediately 
a fraud on the purchasing public. It is also a fraud 
of which the maker may complain, because it tends 
to disrupt that connection between him and the 
purchasing public, built up at large expense and 
through a long time, which the law recognizes and pro- 
tects as a good will, indirect and intangible though the 
connection be. ) 

There seems to be nothing in the way of defendants 
selling weak Coca-Colas, or sweet ones, if they will; 
but it ought to be openly done. The syrup drawn in 
the customer's presence on his call for Coca-Cola 
ought to be the unadulterated article. That it is such 
is the fair intendment of the transaction. The custo- 
mer understands the syrup drawn to be what he 
calls for. What is afterwards added by way of dilu- 
tion or spiking he sees, and is not deceived by it. If 
defendants should put one-half quantity in the glass, 
instead of half strength, in serving Coca-Cola, it 
would be at once seen. The conclusion is inescapable 
that the dilution was made before the syrup was 
drawn, and concealed as to consistency and color by 
sugar and caramel, in order to deceive the purchaser 
as to its strength, and not in order to make weak or 
sweet Coca-Cola. Against the continuance of this 
practice petitioner is entitled to protection. If it is 
not done to deceive, defendants can have no objection 
to stopping it. 

An injunction pendente lite will be ordered against 
drawing from the fount for mixture and sale as 

238 



v. BROWN & ALLEN 



Coca-Cola on calls therefor any other than the unal- 
tered and unadulterated syrup made by petitioner and 
known as Coca-Cola. 



239 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE NORTHERN 

DISTRICT OF GEORGIA, 

NORTHERN DIVISION 



IN EQUITY 

THE COCA-COLA COMPANY, 

v. 
BROWN & ALLEN. 



FINAL DECREE. 

An injunction, during the pendency of the cause, 
and until a further order of this Court, having been 
granted on the 27th day of July, 1921, after a hear- 
ing upon the bill, answer and affidavits, and having 
been argued by counsel for the respective parties and 
submitted to the Court for consideration, and this 
Court having filed its opinion on the 22nd day of July, 
1921, and, now, by consent of the parties hereto, the 
injunction heretofore granted is hereby made per- 
manent, and it is therefore Ordered, Adjudged and 
Decreed, and the Court does hereby Order, Adjudge 
and Decree that the defendant, its servants, agents, 
clerks and attorneys, and all persons claiming or hold- 
ing under or through it be and they are hereby per- 
petually enjoined from drawing from the fountain for 
mixture or sale as Coca-Cola on calls therefor any 
other product than the unaltered and unadulterated 
syrup made by petitioner and known as Coca-Cola. 

It is further Ordered, That the costs be and they 
are hereby taxed against the defendant. 

This the 17th day of December, 1921. 

(Signed) SAMUEL H. SIBLEY, 

United States Judge. 

240 



IN THE DISTRICT COURT 

OF THE UNITED STATES 

FOR THE DISTRICT OF 

DELAWARE 



269 FEDERAL 796 



No. 388 IN EQUITY 



COCA-COLA BOTTLING COMPANY, Complainant, 

v. ' 

THE COCA-COLA COMPANY, Defendant. 



No. 389 IN EQUITY 



THE COCA-COLA BOTTLING COMPANY, 

Complainant, 

v. 
THE COCA-COLA COMPANY, Defendant. 



Opinion of HON. HUGH M. MORRIS, 
U. S. District Judge. 



241 



THE COCA-COLA BOTTLING COMPANY 




No. 389 IN EQUITY 



THE COCA-COLA BOTTLING COMPANY, 
Complainant, 

v. 
THE COCA-COLA COMPANY, Defendant. 



The defendant, The Coca-Cola Company, a Dela- 
ware corporation, taking the position that a contract 
made between The Coca-Cola Company, a Georgia 
corporation, predecessor in title of the defendant, of 
the one part, and J. B. Whitehead and B. F. Thomas, 
through whom complainant claims, of the other part, 
was a contract at will with the right in either party 
to terminate the same upon reasonable notice, gave 
notice to the complainant that the contract would 
4 'stand terminated" on a specified subsequent day. 
Thereupon the complainant, denying the contract to 
be terminable at the will of either party without the 
consent of the other, filed its bill of complaint pray- 
ing for an injunction, a decree for specific perform- 
ance, and other and general relief. The case is now 
before the court upon defendant's motion to dismiss 
the bill, under equity rule 29, and also upon complain- 
ant's motion for a preliminary injunction as prayed 
by the bill. The defendant's motion will be first con- 
sidered, and as it must be disposed of solely upon the 
allegations of the bill the substance of such allegations 

242 



v. THE COCA-COLA COMPANY 

so far as deemed material to a proper consider- 
ation of this motion will be stated. 

The Georgia corporation was organized in 1892 and 
became the sole owner of a secret process or formula 
under which it manufactured from the time of its or- 
ganization until the year 1919 a syrup used in making 
a drink which it called Coca-Cola. It also adopted 
and used the words "Coca-Cola" as a common law 
trade-mark. By the year 1899 the Georgia corpora- 
tion had become solely entitled to use the trade-name 
and trade-mark "Coca-Cola," Until the latter year 
the syrup manufactured by it had been used only as 
the base for a drink served at soda fountains for im- 
mediate consumption. During that year a contract 
was made between J. B. Whitehead and B. F. Thomas, 
of the first part, and the Georgia corporation, of the 
second part, which, as amended shortly after its exe- 
cution, reads (with the exception of the numbers pre- 
ceding each paragraph here added for convenience of 
reference) so far as material to the issues raised by 
the pending motions, as follows: 
' ' Georgia, 
"Fulton County. 

"This agreement made and executed in dupli- 
cate this the twenty-first day of July, 1899, be- 
tween J. B. Whitehead and B. F. Thomas, of the 
first part, and The Coca-Cola Company of the 
second part, Witnesseth: 

"(1) That the parties of the first part are to 
establish in the City of Atlanta, as soon as the 
necessary machinery and buildings can be ob- 
tained, a Bottling Plant for the purpose of bot- 
tling a mixture of Coca-Cola syrup and prepara- 
tion with Carbonic Acid and water. 

"(2) This plant to be established by said par- 
ties of the first part without any expense or lia- 
bility of any sort against said party of the second 
part. 

243 



THE COCA-COLA BOTTLING COMPANY 

"(3) Said parties of the first part further 
agree to prepare and put up in bottles or other 
receptacles, a carbonated drink containing a mix- 
ture of the Coca-Cola syrup and water charged 
with carbonic acid gas under a pressure of more 
than one Atmosphere. Said Coca-Cola syrup and 
said water in said mixture to be used in propor- 
tions of not less than one ounce of syrup to eight 
ounces of water. 

"(4) Said parties of the first part further 
agree to put up and keep and cause to be kept in 
sufficient quantity to supply the demand in all 
territory embraced in this agreement, a supply of 
this carbonated drink. It is expressly agreed 
that if, receiving notice in writing from the said 
party of the second part, to <^io so the parties of 
the first part shall, not within a period of ninety 
days from date of receiving said notice, place and 
keep upon sale at the point designated in said 
notice, a sufficient stock of such preparation or 
mixture to supply the demand therefor, then the 
rights herein granted within all the territory 
within a radius of one hundred miles of said point 
shall be forfeited, and Provided further that a 
failure on the part of the parties of the first part 
to keep and perform the conditions and provi- 
sions herein contained shall work a forfeiture of 
their rights hereunder. 

"(5) Said parties further agree to buy all of 
the Coca-Cola syrup necessary to a compliance 
with this agreement at a price and upon terms 
set forth below, directly from the party of the 
second part. 

"(6) The parties of the first part agree not to 
use any substitute or substitutes for or other 
syrup or substance, nor to attempt to use or imi- 
tate with any article made or prepared by them, 
Coca-Cola syrup. 

244 



v. THE COCA-COLA COMPANY 

" (7) Parties of the first part further agree not 
to sell or in any way dispose of without the writ- 
ten consent of the parties of the second part in 
every instance any Coca-Cola except after it is 
carbonated and bottled. 

"(8) In consideration of these agreements on 
the part of the parties of the first part the party 
of the second part agrees to sell Coca-Cola syrup 
to said parties of the first part at one ($1.00) 
Dollar per gallon. 

"(13) Said party of the second part further 
agrees and hereby grants to said parties of the 
first part, the sole and exclusive right to use the 
name Coca-Cola and all the trade-marks and de- 
signs for labels now owned and controlled by said 
party of the second part, upon any bottles or 
other receptacles containing the mixture hereto- 
fore described, and the right to vend such prepa- 
ration or mixture bottled or put up as aforesaid, 
in all the territory contained in the boundaries 
of the United States of America, except the six 
New England States and the States of Missis- 
sippi and Texas. This right to use the name 
Coca-Cola and the trade-mark and label furnished 
is to be applied only to the carbonated mixture 
described, and is not intended to interfere in any 
way with the business and use of the same as now 
operated by the party of the second part, nor to 
apply to the soda fountain business as now oper- 
ated by various parties. The rights of the parties 
of the first part under this contract may be by 
them transferred to a company, the formation of 
which is now contemplated by them to be known 
as the Coca-Cola Bottling Company, but no trans- 
fer of their rights under this contract to any 
other party or parties, shall be made without the 
consent of the party of the second part. 

245 



THE COCA-COLA BOTTLING COMPANY 

"In Witness Whereof each of the parties has 
hereunto affixed their signatures. 

"J. B. Whitehead, (L. S.) 

"B. F. Thomas, (L. S.) 

"The Coca-Cola Company, 

"AsaG. Candler, (L. S.) 

"Pres." 

Coca-Cola Bottling Company, to which Whitehead 
and Thomas were authorized by the contract to trans- 
fer their rights thereunder, was organized under the 
laws of the State of Tennessee in December, 1899. 
Whitehead and Thomas conveyed to it all their rights 
under the contract and became its principal stock- 
holders. Complying with the contract Coco-Cola Bot- 
tling Company established a plant in the City of At- 
lanta, Georgia, "for the purpose of bottling a mixture 
of Coca-Cola syrup and preparation with carbonic 
acid and water." It established another at Chatta- 
nooga, Tennessee. At each of these plants it com- 
menced, at its own expense, the production of carbon- 
ated bottled Coca-Cola. The demand for the bottled 
product rapidly increased both in volume and as to 
territory. The two plants in Atlanta and Chattanooga 
were unable to do more than meet the demand in 
those two cities and as the contract required that the 
increased demand should be supplied new plants were 
necessary. At this stage of the business, with the con- 
sent of the Georgia corporation, a division was made 
of the territory embraced in the contract. Coca-Cola 
Bottling Company retained the Chattanooga plant 
and certain of the territory, while the Atlanta plant 
and the remainder of the territory was acquired by 
the complainant, The Coca-Cola Bottling Company. 
Each of these bottling companies thereafter pro- 
ceeded to carry out in its respective territory all the 
provisions of the contract. Within a few years the com- 
plainant by the expenditure of much time, money and 
energy procured the establishment of many additional 

246 



v. THE COCA-COLA COMPANY 

plants, now numbering five hundred and eighty- 
eight, each supplying a defined area with the bottled 
drink. The additional plants were established under 
contracts made, with the consent of the Georgia cor- 
poration, between the complainant and the owners of 
the respective local plants. The value of the physical 
properties now held and owned by the local bottlers 
in the territory of the complainant is* approximately 
ten million five hundred thousand dollars (and in the 
territory of Coca-Cola Bottling Company is approxi- 
mately ten million dollars) while the value of the 
tangible properties of the defendant amounts ap- 
proximately to only five million dollars. On April 24, 
1915, at which time a very large proportion of the 
local plants had been established, the contract above 
set out was by mutual consent amended (with the ex- 
ception of the numbers prior to each paragraph which 
are here added for convenience of reference), thus: 

By striking out paragraph 5 and substituting the 
following in lieu thereof : 

" (5) Party of the first part agrees to buy from 
party of the second part such bottlers' syrup as 
may be necessary to fully supply said territory 
with bottled Coca-Cola; and party of the second 
part agrees to manufacture for and sell to party 
of the first part all of the Coca-Cola for bottling 
purposes that may be necessary for or used by 
said first party in supplying said territory with 
bottled Coca-Cola." 
By substituting the following for paragraph 6: 

"(6) In consideration of the consent of The 
Coca-Cola Co. to the use of the name Coca-Cola 
as a part of the corporate name of party of the 
first part, and its further consent to use by first 
party of the trade-mark Coca-Cola on the product 
so sold, party of the first part agrees not to 
manufacture, deal in, sell, offer for sale, use or 
handle, nor to attempt to do so, either directly or 

247 



THE COCA-COLA BOTTLING COMPANY 

indirectly, any product that is a substitute for or 
imitation of Coca-Cola." 

By striking out paragraphs 8, 11 and 12 and sub- 
stituting therefor the following: 

" (8) For said syrup so sold, party of first part 
agrees to pay party of the second part the sum 
of Ninety-two (92c) Cents per gallon. * * *" 
By striking from the original contract (with the ex- 
ception of the words "except the six New England 
States and the States of Mississippi and Texas," 
paragraph 13, and inserting in lieu thereof the fol- 
lowing : 

"(11) For and in consideration of the agree- 
ment to sell and agreement to purchase, party of 
the second part does hereby give and convey to 
the party of the first part, the right to use the 
trade-mark name Coca-Cola, and all labels and 
designs pertaining thereto, in connection with the 
product bottled Coca-Cola, in the territory here- 
tofore obtained by party of the first part, and 
agrees not to convey, assign, or transfer the right 
of usage of said name in said territory, to any 
other party whatsoever; and said party of the 
second part further agrees to only manufacture 
syrup for bottling purposes in sufficient quanti- 
ties to meet the requirements of party of the first 
part, and of Coca-Cola Bottling Company, and 
for the requirements of the territory not con- 
veyed by party of the second part to either of 
said companies. Nothing herein, however, shall 
give to party of the first part any interest in the 
name Coca-Cola, labels, etc., except the right of 
usage in connection with bottled Coca-Cola, nor 
shall this contract in any way interfere with the 
use of said name Coca-Cola, labels, etc., in con- 
nection with the fountain product of party of the 
second part; it being understood and agreed that 
the use herewith given shall be confined to the 

248 



v. THE COCA-COLA COMPANY 

bottled product, the name, labels, etc., in connec- 
tion with the fountain product to be used as party 
of the second part deems fit and advisable, in any 
and all territory. Party of the second part does 
hereby select party of the first part as its sole 
and exclusive customer and licensee for the pur- 
pose of bottling* Coca-Cola in the territory here- 
tofore acquired by said first party, and second 
party agrees not to sell its fountain syrup to 
anyone, when party of the second part knows that 
said syrup is to be used for bottling purposes." 
And by adding the following new paragraphs: 

"(12) The rights of the party of the first part 
under this contract shall not be by it transferred 
in part or in whole, without the written consent 
of the party of the second part. Transfers here- 
tofore made are hereby recognized, and confirmed 
by party of the second part. 

"(13) Said party of the first part herein hav- 
ing heretofore transferred and assigned the bot- 
tling rights in portions of the territory leased 
and assigned to it, to sub-bottlers, it is under- 
stood and agreed by and between the parties 
hereto that party of first part shall use its best 
endeavors to have the provisions of this Amended 
Contract accepted by said sub-bottlers, in so far 
as this Amended Contract affects said sub-bot- 
lers; but that if party of first part herein is un- 
able to obtain the consent of any of such sub- 
bottlers to this Amended Contract, this Amended 
Contract shall not apply to any of such sub-bot- 
tlers refusing to accept this Amended Contract. 

"(14) Except As Herein Provided For, the 
contract of July 21st, 1899, as amended, shall re- 
main in full force and effect; but this Amend- 
ment shall only apply to the territory now owned 
or controlled by party of the first part, or that 
may hereafter be owned or controlled by party 

249 



THE COCA-COLA BOTTLING COMPANY 

of the first part, and nothing herein contained 
shall affect any territorial rig-lit s heretofore con- 
veyed, given, transferred or assigned." 
The old contracts between the complainant and its 
sub-bottlers were after the amendment surrendered 
and terminated, and the substituted, as well as all 
contracts subsequently made with new sub-bottlers, 
were made in a new form. The business of the com- 
plainant was at all times conducted without friction 
between it and the Georgia corporation, each in good 
faith observing the provisions of the contract. The 
business of the complainant resulted in very great 
profit to the Georgia corporation. Such was the situ- 
ation until August, 1919, at which time the defendant, 
The Coca-Cola Company, a Delaware corporation, ac- 
quired the property, good will jand business of the 
Georgia corporation, and assumed all the outstand- 
ing contracts and liabilities of that corporation. 
Thereafter the Georgia corporation surrendered its 
charter. The Delaware corporation elected as its 
president, as chairman of its board of directors, and 
as its secretary, former officers of the Georgia cor- 
poration. It also made the general counsel of the 
latter company one of its directors. In the year 1919 
the complainant and other persons holding similar 
rights from the Georgia corporation under the con- 
tract of 1899 were purchasing from the latter com- 
pany and marketing as bottled Coca-Cola approxi- 
mately forty per cent, of its output of Coca-Cola 
syrup to the very great profit of the latter company. 
The Delaware corporation, after August, 1919, ap- 
plied to the complainant for temporary modifications 
of the contract in the matter of the price to be paid 
for the syrup on the ground that the war conditions 
had so increased its cost of production that the syrup 
could not be profitably furnished by it at the contract 
price. The complainant on two different occasions 
agreed with the Delaware corporation to temporary 

250 



v. THE COCA-COLA COMPANY 

modifications of the contract by which the price paid 
for the syrup to the defendant was greatly increased, 
the last temporary modification expiring by its terms 
on March 1, 1920. Shortly before the expiration of 
the last-named price modification agreement negotia- 
tions for a third price modification were about to be 
entered into when the complainant for the first time 
learned that the defendant had taken the position 
that the contract was terminable upon notice at the 
will of either party. The complainant thereupon re- 
fused to agree to a further modification of the price 
of the syrup unless the defendant would likewise 
agree at the same time to put forever at rest the 
question which it had raised as to the terminability 
of the contract. This the defendant refused to do. 
Thereupon the complainant, on February 27, 1920, 
served upon defendant herein notice that complainant 
required compliance with the contract in accordance 
with its terms. Replying to such communication the 
defendant on March 2, 1920, notified the complainant 
and other bottlers holding contracts similar to that of 
the plaintiff that the contract would stand terminated 
on May 1, 1920. 

The bill charges that the contract, including amend- 
ments, in and of itself constituted a permanent and 
continuing contract, and not a contract terminable at 
the will of either party upon notice. The bill also 
sets up facts intended to show that the understand- 
ing of the parties at the time of making the orig- 
inal contract was that the contract was of a per- 
manent character and that the subsequent state- 
ments and acts of the Georgia corporation were at 
all times confirmatory of that understanding. It 
is also alleged that the defendant in attempting 
to terminate the contract is acting in bad faith 
and that the defendant desires to obtain con- 
tracts in its own interest with complainant's sub- 
bottlers for the purpose of securing for itself the 

251 






THE COCA-COLA BOTTLING COMPANY 

benefit of the labor, skill and money expended by the 
complainant in establishing and developing the bot- 
tling business throughout its territory. It is charged 
that if defendant be permitted to breach the contract 
with complainant the business of the latter will be 
annihilated and destroyed to the irreparable injury 
of the complainant. The prayers of the bill are, in 
substance, (a) that complainant's rights under the 
contract be held and decreed to be continuing, perma- 
nent and perpetual and not terminable at the will of 
either party without the consent of the other; (b) for 
specific performance; (c) for an injunction, prelimi- 
nary and final, enjoining the defendant from violat- 
ing any of the terms and conditions of the contract 
and particularly the negative covenants found in 
paragraph numbered. 11 of the I amendment of 1915; 
and (d) for general relief. 

Of the grounds urged by the defendant in support 
of its motion to dismiss, those necessary, in the view 
I have taken of the case, to be now considered are: 
(1) that the contract is a contract at will, terminable 
upon reasonable notice; (2) that if perpetual the con- 
tract is void under the law of Georgia, the Sherman 
Act and the Clayton Act; and (3) that if the com- 
plainant acquired any right, title or interest in the 
trade-mark, good will or business of the predecessor 
of the defendant, the complainant has disposed of all 
such rights to its sub-bottlers. 

In the motion to dismiss, in the discussion at bar, 
and in the voluminous briefs of the respective parties, 
numerous other questions have been pressed upon the 
attention of the Court, but the pivotal controversy 
rests upon the ascertainment of the true meaning of 
the contract as amended. A decision upon this matter 
will of itself dispose of many questions and render 
a consideration of the others, save only (2) and (3) 
above stated, unnecessary at this time. 

252 



v. THE COCA-COLA COMPANY 

In determining the true import of the contract cer- 
tain basic rules of construction must be borne in 
mind. One of these rules is that when persons put 
their contracts in writing the writing must, in the 
absence of fraud, accident or mistake, be taken as the 
embodiment of their whole engagement and conse- 
quently that its terms may not be varied or controlled 
by antecedent negotiations or declarations. Bast v. 
Bank, 101 U. S. 93, 96; Hanson v. Dayton, 153 Fed. 
258, 262; National Bank of Commerce v. Eockefeller, 
174 Fed. 22, 26. Another rule is that in the perform- 
ance of the duty of ascertaining and giving effect to 
the mutual intentions of the parties as expressed in 
the contract the court, so far as possible, may and 
should put itself in the position of the parties to the 
contract and examine into the state of things existing 
at the time and the circumstances under which the 
contract was made. Canal Company v. Hill, 15 Wall. 
94; Gillett v. Bank of Commerce, 106 N. Y. 549, 55 
N. E. 292. Courts "are never shut out from the same 
light which the parties enjoyed when the contract 
was executed." Nash v. Towne, 5 Wall. 689. Still 
another settled rule of construction is that the inten- 
tions of the parties as expressed in the contract must 
be ascertained from the agreement as a whole, from 
all its terms considered together, for where a contract 
has many provisions it is manifest that the entire in- 
tention of the parties was not expressed by any single 
stipulation, but by every part so construed as to be 
consistent with every other part and with the contract 
as a whole. Pressed Steel Car Co. v. Eastern Ry. 
Co. of Minnesota, 121 Fed. 609, 611; Elliott on Con- 
tracts, Sec. 1514. In applying these principles of in- 
terpretation courts should be constantly on guard 
lest, unawares, under the guise of construction, and 
looking too intently for means of bringing about some 
ultimate good, thwarting an apparent wrong, or pre- 
venting hardship, a contract other than that made by 

253 



THE COCA-COLA BOTTLING COMPANY 

the parties be built up. The first of these rules of 
interpretation carries one beyond the antecedent dec- 
larations and negotiations to the time of the making of 
the contract, the then existing condition of the parties 
and the surrounding circumstances which under the 
second rule, are to be considered. 

The Georgia corporation was at the time of the 
execution of the contract the sole and exclusive owner 
of the secret process or formula under which it had 
long been engaged in the manufacture and sale of a 
syrup, theretofore used only as a base for a soda 
fountain drink that had become known to the public 
by the name Coca-Cola. It had acquired a good will. 
It was also the sole and exclusive owner of the trade 
name and trade-mark. In the secret process the 
Georgia corporation had property or property rights 
of value that were salable in whole or in part. Fowle 
v. Park, 131 U. S. 88. A sale of the process might 
have been accompanied by a covenant that the seller 
would not thereafter use the process or communicate 
it to any other person. Such a covenant would have 
been valid and binding. Central Transp. Co. v. Pull- 
man's Car Co., 139 U. S. 24, 53. The process was 
valuable, however, only because it was a secret and 
only so long as it remained a secret. Nims on Unfair 
Competition and Trade-Marks (2d Ed.), Sec, 142; 
John D. Park & Sons Co. v. Hartman, 153 Fed. 24, 
29. In its good will, also, the Georgia corporation 
had property or property rights. Good will may be 
bought and sold in connection with a business as an 
incident thereof. Camden v. Stuart, 144 U. S. 104, 
115; Metropolitan Nat. Bank v. St. Louis Dispatch 
Co., 36 Fed. 722, 724. The Georgia corporation like- 
wise had property or property rights in its trade- 
mark. Trade-marks and the good will of a business 
are inseparable. In fact a trade-mark is merely one 
of the visible mediums by which the good will is iden- 
tified, bought and sold and known to the public. 

254 



v. THE COCA-COLA COMPANY 

Hopkins on Trade-Marks (3d Ed.), page 227; Nims on 
Unfair Competition (2d Ed.), Sec. 15. "The trade- 
mark is the expression, the symbol, of part or all of 
the good will of the business using the mark. 
Separate from the good will of the business it identi- 
fies, it is useless, valueless; *" Nims on Unfair 
Competition, page 378. A trade-mark is not a right 
in gross or at large. As an abstract right wholly dis- 
associated from the business or merchandise with 
which it has become established it is not property and 
may not be assigned. United Drug Co. v. Rectanus 
Co., 248 U. S. 90. For no one may sell his goods as 
the goods of another. Such an act would be a fraud 
upon the public. But where the trade-mark of a re- 
tailer is assigned by him to the manufacturer of the 
commodity to w T hich the trade-mark was affixed there 
is no false representation to the public and such as- 
signment is valid. Witthaus v. Mattfeldt & Co. et al., 
44 Md. 303. The last proposition arises, apparently, 
from the fact that a trade-mark does not as a matter 
of necessity and law import that the articles upon 
which it is used are manufactured by the user. It is 
sufficient that they are manufactured for him, that he 
controls their production, or that in the course of 
trade they pass through his hands. Nelson v. Win- 
chell & Co., 203 Mass. 75, 89 N. E. 180; McLean v. 
Fleming, 96 U. S. 245, 253. If a retailer may assign 
his trade-mark to the manufacturer of the article sold 
by the retailer it would seem that the converse is 
necessarily true and that the manufacturer may as- 
sign his trade-mark to another who sells the goods of 
the manufacturer. 

The Georgia corporation was not at the time of the 
execution of the contract the owner of an actual bot- 
tling business, for theretofore it had not actually 
bottled the drink Coca-Cola. It was, however, the 
sole and exclusive owner of the secret process, was 
the sole manufacturer of the syrup made thereunder, 

255 



THE COCA-COLA BOTTLING COMPANY 

and was the exclusive owner of the trade-mark and 
good will. The drink could be bottled. This fact ap- 
pears from the contract itself. It follows that the 
Georgia corporation, though not then actually en- 
gaged in bottling the drink, was the sole owner of all 
the rights essential to the bottling and sale thereof as 
Coca-Cola. Out of these rights the business of bot- 
tling the drink and selling it as Coca-Cola could arise. 
Without these rights such business could not be es- 
tablished. From these facts it seems clear that at the 
time of the execution of the contract the business of 
bottling the Coca-Cola and selling it when bottled had 
a potential existence; that all rights in the potential 
bottling business were owned by the Georgia corpora- 
tion, and that such business though potential and not 
actual could be sold. Dickey v. Waldo, 97 Mich. 255; 
Barron v. San Angelo Nat. Bank,) 138 S. W. 142, 144; 
Benjamin on Sales, Sec. 78, 2 R. C. L., Sec. 4, page 
596. 

Having ascertained the surrounding circumstances 
and placed the contract in its original setting, the 
next step is to apply to it the above-mentioned third 
rule of construction and to search for the meaning of 
the contract from the agreement as a whole, from all 
its terms considered together, remembering that in a 
contract of many provisions the entire intention of 
the parties is not expressed by any single stipulation, 
but by every part so construed as to be consistent 
with every other part and with the contract as a 
whole. The complainant contends that the agreement 
granted and conveyed or assigned to it the sole and 
exclusive right to use in its territory the trade-mark 
and trade name upon bottled Coca-Cola ; that this was 
a transfer of property or property rights to which 
the covenant of the Georgia corporation to manufac- 
ture for and to sell to the complainant Coca-Cola 
syrup was ancillary and incidental, and that, there- 
fore, the contract is not at will but of perpetual 

256 



v. THE COCA-COLA COMPANY 

duration. The defendant, on the other hand, insists 
that the contract was one for the purchase and sale of 
Coca-Cola syrup; that the remaining covenants are 
ancillary and incidental to the covenants for such 
purchase and sale, and that, consequently, the con- 
tract, if valid, was a contract at will. 

What are the stipulations of the instrument? It 
begins with covenants dealing from various aspects 
with the establishment of the business "of bottling a 
mixture of Coca-Cola syrup and preparation with 
carbonic acid and water." Paragraph 1 requires the 
establishment in Atlanta by Whitehead and Thomas 
of a bottling plant. Paragraph 2 requires that the 
plant shall be established without expense to the 
Georgia corporation. Paragraph 3 prescribes the 
relative proportion of the ingredients of the bottled 
drink and the pressure under which the drink is to be 
bottled; and paragraph 4 specifies the extent to whicli 
the bottling business must be carried on under pen- 
alty of forfeiture. Paragraph 5 is a covenant by 
Whitehead and Thomas to buy all syrup "necessary 
to a compliance" with the agreement directly from 
the Georgia corporation. Paragraph 6 prohibits the 
use by the bottlers of imitations and substitutes for 
the Coca-Cola syrup, and 7 is a covenant of the 
bottlers not to sell Coca-Cola "except after it is car- 
bonated and bottled." In consideration of the fore- 
going stipulations of the bottlers, the Georgia cor- 
poration in paragraph 3 agreed to sell Coca-Cola 
syrup to the bottlers at a fixed price, and by para- 
graph 13 it "grants" to the bottlers "the sole and 
exclusive right to use the name Coca-Cola and all the 
trade-marks and designs for labels now owned and con- 
trolled by" the Georgia corporation "upon any bot- 
tles or other receptacles containing the mixture ' 
described," and the right to sell the same in the pre- 
scribed territory. The amendment of 1915, as I un- 
derstand that amendment, makes no substantial 

257 



THE COCA-COLA BOTTLING COMPANY 

change in the above-stated provisions save in the 
price to be paid for the syrup. Otherwise, it is, in 
substance, only an expression of what was expressed 
in or necessarily implied from the original contract. 
I am not overlooking that part of paragraph 11 of 
the amendment, which says: "Party of the second 
part (the Georgia corporation) does hereby select 
party of the first part (the complainant) as its sole 
and exclusive customer and licensee for the purpose 
of bottling Coca-Cola in the territory heretofore ac- 
quired by said first party/' This clause did not, how- 
ever, in my view of the contract as a whole, either 
diminish the rights of the complainant obtained 
through the original contract or enlarge them. 

What was the paramount purpose of the contract 
as ascertained from the agreement as a whole? In my 
opinion it was the establishment; of the business of 
bottling the Coca-Cola drink by Whitehead and 
Thomas. As I understand the contract the rights in 
good will and trade-mark name acquired under the 
contract by the bottlers were the same in character 
and as permanent as if the Georgia corporation had 
sold to them an established bottling business with its 
trade-marks and good will. A contract merely for the 
purchase and sale of syrup would not be a repository 
for covenants making obligatory on the part of the 
purchaser the establishment of bottling plants having 
a capacity sufficient to supply the greater part of the 
nation and restricting the re-sale of the syrup "ex- 
cept after it is carbonated and bottled," nor would it 
be a repository for a grant of the sole and exclusive 
right to use the trade-mark of the vendor, not upon 
the syrup, but upon the product of those bottling 
plants. I find nothing in the contract or the circum- 
stances attending its making to indicate that these 
covenants are subordinate or incidental to the cove- 
nant for the purchase and sale of syrup. On the 
other hand, the contract and the surrounding 

258 



v. THE COCA-COLA COMPANY 

circumstances show that such covenants and the cove- 
nants to purchase and sell syrup are co-ordinate and 
of equal rank. A contract so constituted shows an 
essential object and purpose immeasurably broader 
than the mere purchase and sale of syrup. Its real 
purpose neither lies in nor is revealed by any single 
covenant or provision, but is evinced by the result 
obtained by combining all the covenants. That result 
is the sale and purchase of a potential business and 
the establishment of an actual business. This result 
is the whole of which such covenant is merely a part. 
To this whole each covenant, when separately con- 
sidered, is ancillary and incidental. In the transac- 
tion property rights passed from the Georgia cor- 
poration to the bottlers. The forfeiture clauses are 
also more in keeping with this conclusion, for while 
of themselves they may be an insufficient foundation 
upon which to base a conclusion that the contract 
does pass property or property rights, or is not a 
contract at will, yet it is manifest that in a contract 
passing property rights or in a contract not at will 
forfeiture clauses have a greater utility. A sufficient 
consideration for this sale is the establishment by the 
purchaser of the plant or plants requisite to supply 
the demand of the specified territory. This has been 
done. The method and means by which these plants 
(other than the Atlanta plant which was established 
in conformity with the contract) have been estab- 
lished is no concern of the defendant and is irrele- 
vant to the question as to the character and duration 
of the contract. The value of the tangible assets of 
the plants (aggregating in the territory covered by 
the original contract upwards of twenty million dol- 
lars) necessary to comply with the covenants of the 
fourth paragraph of the contract may, however, be 
relevant to the question of duration of the contract 
as showing an improbability that it was the intention 
of the parties that the continuance of a business of 

259 



THE COCA-COLA BOTTLING COMPANY 

such magnitude requiring for its establishment such 
an enormous outlay of capital should be dependent 
upon the arbitrary will of any one party. It is rea- 
sonable to infer that in building up a bottling busi- 
ness "to supply the demand in all territory embraced 
in the agreement," AYhitehead and Thomas desired 
to build that business upon a sound business founda- 
tion, otherwise the agreement could have been limited 
to a contract for the purchase and sale of syrup. But 
it was not so limited. To build upon a firm business 
basis Whitehead and Thomas needed all rights of the 
Georgia corporation in its potential bottling business 
for the specified territory. Had the Georgia corpora- 
tion at the time of making the contract been the 
owner of an actually established business of bottling 
the Coca-Cola drink the language of transfer might 
aptly have been somewhat different from that used 
by the parties in the contract under consideration, 
but the bottling business not having been actually 
established by the Georgia corporation, and it being 
merely the owner of rights which gave to the bottling 
business only a potential existence, the language em- 
ployed seems appropriate and fitting for the purpose 
of divesting the Georgia corporation of all rights that 
it had to convert the potential business into an actual 
business, and likewise to clothe Whitehead and 
Thomas with such rights. The secret process or 
formula having a value only so long as it should be 
kept secret and the probability of its public disclosure 
increasing with the increase in the number of persons 
to whom it might become known by disclosures in the 
course of business, the Georgia corporation probably 
eliminated from consideration any question of an as- 
signment of the secret process or formula to White- 
head and Thomas for use by them to the extent of 
their business needs in the manufacture of Coca-Cola 
syrup for bottling purposes. Had it adopted this 
method it could have sold, either for a consideration 

200 



v. THE COCA-COLA COMPANY 

then paid or upon a royalty basis, the secret process 
for use in making Coca-Cola syrup for bottling pur- 
poses. Such a sale could have been accompanied, as 
appears from the authorities hereinbefore referred 
to, by a covenant preventing the future use of the 
formula for making the syrup for bottling purposes 
by the Georgia corporation,, its successors and as- 
signs, and by a grant of the sole and exclusive right 
to use the trade-mark and trade-name upon the bot- 
tled product in the prescribed territory. Such a sale 
would have carried with it all rights of the Georgia 
corporation in the potential bottling business. This 
method was, however, not adopted by the parties, for 
the Georgia corporation retained the secret and con- 
sequently the legal title thereto. The owner of such 
potential business could, however, by contract based 
upon a valuable consideration, and without the sale 
of the process, confer upon a vendee all rights which 
it, the vendor, might have in such business. This 
could be accomplished by the grant of the use of the 
trade-mark and trade name accompanied by an agree- 
ment to sell to the vendee such syrup made under the 
formula as might be necessary to fully supply with 
bottled Coca-Cola the demand of the territory ac- 
quired by the vendee, embodying covenants that it 
would thereafter manufacture under the secret for- 
mula syrup for bottling purposes only in sufficient 
quantities to meet the demand of the vendee's terri- 
tory and that it would not sell its fountain syrup to 
anyone when the vendee " knows that said syrup is 
to be used for bottling purposes." Such an agree- 
ment the Georgia corporation, by the contract under 
consideration, made. Thereby it conferred upon the 
bottlers the right to acquire the syrup and it trans- 
ferred to them an interest in its good will and trade- 
mark and trade name, the cumulative effect of which 
was the transfer of the potential bottling business. 
The right to transfer the good will is clear. The 

261 



THE COCA-COLA BOTTLING COMPANY 

Georgia corporation had acquired a good will and a 
trade-mark arising out of and connected with the 
fountain drink. It is to be assumed that the bottled 
drink and the fountain drink were substantially iden- 
tical, the bottled drink, by reason of its being bottled, 
being merely more available for general use. Neces- 
sarily the favor which the Georgia corporation had 
won from the public for its fountain drink would, at 
least in part, inure to the advantage of the bottled 
drink should the latter be labeled so as to identify it 
with the fountain drink. The Georgia corporation 
consented to this labeling and granted and conveyed 
to the bottlers "the right to use the trade-mark name 
Coca-Cola, and all labels and designs pertaining 
thereto, in connection with the product bottled Coca- 
Cola" in the prescribed territory. The extent of the 
good will, symbolized by the trade-mark, so trans- 
ferred is disclosed by the grant of the "sole and ex- 
clusive" right thus to use the name and trade-mark, 
or, as expressed in the amendment, by the negative 
covenants of the Georgia corporation that it will 
"only manufacture syrup for bottling purpose in 
sufficient quantities to meet the requirements" of 
complainant and others holding similar rights under 
the contract and that it will not sell its fountain 
syrup to anyone when the complainant "knows that 
said syrup is to be used for bottling purposes." The 
good will so transferred was, as to the bottling busi- 
ness, perpetual and exclusive. The transfer of the 
interest in the trade-mark was not a transfer in 
gross. The right to transfer the good will and trade- 
mark under such circumstances is shown by the au- 
thorities hereinbefore referred to. As I see it, it is 
immaterial whether the interest in the trade-mark ac- 
quired by the bottlers was a legal title or merely a 
beneficial interest. Though not made the basis of the 
decision upon this matter, it may be noted that the 
defendant does not dispute the right of complainant 

262 



v. THE COCA-COLA COMPANY 

to use the trade-mark during the continuance of the 
contract. Consequently the ultimate question touch- 
ing the trade-mark would thus seem to be, not 
whether the trade-mark could be assigned, but merely 
the extent of the interest assigned. If a limited in- 
terest therein by way of license could have been as- 
signed no reason appears why, under the circum- 
stances, an unlimited interest could not likewise have 
been assigned. In view of the use of the word 
" grants," denoting a transfer of property, in the 
original contract, and the significance in the use of 
the words "give and convey," being of like import 
with the word "grants," in the amendment fifteen 
years later, to confer upon the plaintiff or its prede- 
cessors in interest the right of user, in the absence of 
words of limitation and in the light of the fact that 
the essential object and purpose of the contract was 
the building up of the bottling business at much ex- 
pense adequately to meet the contractual provisions, 
I am unable to find any sound principle upon which 
to base a conclusion that the right so conveyed was 
other than an absolute and unlimited right of user in 
the complainant to the exclusion of all others, includ- 
ing the Georgia corporation, its successors and as- 
signs, in the territory in question. In fact, the Su- 
preme Court has held that "If the owner (of a trade- 
mark) imposes no limitation of time (upon 
the right to use the trade-mark) the right to use is 
deemed perpetual." Kidd v. Johnson, 100 
U. S. 617, 619. 

Did the contract confer upon the bottlers a right to 
acquire from the Georgia corporation the Coca-Cola 
syrup necessary to the establishment and conduct of 
the bottling business? Paragraph 5 of the amendment 
of 1915 provides : 

"Party of the first part (the bottler) agrees to 
buy from party of the second part (the Georgia 
corporation) such bottlers' syrup as may be 

263 



THE COCA-COLA BOTTLING COMPANY 

necessary to fully supply said territory with 
bottled Coca-Cola; and party of the second part 
agrees to manufacture for and sell to party of the 
first part all of the Coca-Cola for bottling pur- 
poses that may be necessary for or used by said 
first party in supplying said territory with bot- 
tled Coca-Cola. " 

The defendant, regarding the contract as one 
merely for the purchase and sale of syrup, insists 
that it is so lacking in mutuality of obligation and so 
indefinite as to time and subject matter as to be void. 
Having concluded that the covenant to sell syrup is 
not the dominant covenant of the contract to which 
all others are incidental and subordinate, but that it 
is merely one of a number of co-ordinate covenants, 
the objections as to mutuality apid certainty become 
of less importance, yet they are not wholly eliminated. 
The objection that there is a lack of mutuality is 
based upon the assumption that the only considera- 
tion for the promise to sell the syrup is the reciprocal 
promise to buy. This assumption is not well founded. 
The express covenant on the part of the bottlers to 
erect a bottling plant and their implied covenant to 
erect or cause to be erected bottling plants sufficient 
to supply the demand of the territory with the bottled 
drink, both of which have been performed, constitute 
sufficient consideration for the covenants of the 
Georgia corporation. Consideration has been defined 
as "the price, motive, or matter of inducement to a 
contract, whether it be the compensation which is 
paid, or the inconvenience which is suffered by the 
party from whom it proceeds," and again, as "any 
act of the plaintiff from which the defendant or a 
stranger derives a benefit or advantage, or any labor, 
detriment, or inconvenience sustained by the plaintiff, 
however small, if such act is performed or incon- 
venience suffered by the plaintiff by the consent, ex- 
pressed or implied, of the defendant." Bouvier's 

264 



v. THE COCA-COLA COMPANY 

Dictionary, Kawle's 3d Rev. The Atlanta bottling 
plant was built and the remaining five hundred and 
eighty-seven plants in complainant's territory have 
been built, equipped and operated without expense 
to the Georgia corporation or the defendant. That 
the plants are not now owned by the complainant is 
a fact irrelevant to the matter under discussion. 
"Want of mutuality is no defense to either party, 
except in cases of executory contracts." Grove v. 
Hodges, 55 Pa. 504, 516; Chicago, M. & St. P. Ry. Co. 
of Idaho v. United States, 218 Fed. 288, 301. In Wil- 
son v. Clonbrock Steam Boiler Co., 105 Fed. 846, 
Judge MCPHERSON, quoting from Morse v. Bellows, 7 
N. H. 549, said: 

"Nor is it necessary that the consideration 
should exist at the time of making the promise; 
for if the person to whom a promise is made 
should incur any loss, expense, or liability in 
consequence of the promise, and relying upon it, 
the promise thereupon becomes obligatory." 
The contract is not wanting in mutuality of obliga- 
tion. Has it sufficient certainty as to subject matter 
and time of performance? When the provisions of 
paragraphs 4 and 5 of the agreement as amended in 
1915 are read together it is clear that the bottler is 
bound to buy and the manufacturer of the syrup is 
bound to manufacture and sell to the bottler, not 
merely such syrup as the bottler may desire, but suf- 
ficient syrup to enable the bottler to supply the de- 
mand for the bottled drink in all territory embraced 
in the agreement. Manifestly the agreement is not 
of that class where the amount of the commodity to 
be furnished depends upon the wish, will or desire of 
either party. A contract to furnish goods, material 
or other commodity sufficient for the needs of a speci- 
fied undertaking is not invalid for uncertainty. Select 
Pictures Corporation v. Australasian Films, 260 Fed. 
296; Lima Locomotive & M. Co. v. National Steel C. 

265 



THE COCA-COLA BOTTLING COMPANY 

Co., 155 Fed. 77. Mere indefiniteness as to the exact 
amount of material to be purchased or sold under a 
contract is not necessarily a fatal uncertainty. Elliott 
on Contracts, Sec. 180. If the intention of the con- 
tract be clear the mere uncertainty as to the exact 
amount involved does not invalidate it. Barney Lum- 
ber Co. v. John Schroeder Lumber Co., 237 Fed. 39. 
The manifest intention of the parties to the contract 
under consideration was that the demand of the 
granted territory for the bottled drink should be sup- 
plied. The exact quantity of syrup necessary to sup- 
ply this demand could not in the very nature of things 
have been fixed at a specified number of gallons. A 
provision in the contract so fixing the quantity of 
syrup to be sold and purchased would not have been 
in keeping with the dominant intention of the parties. 
Having in mind the paramount object of the parties 
to the contract, it is difficult to find a measure of sup- 
ply more suitable to the purposes of the contract or 
more definite than that employed by the parties them- 
selves. That the quantity of syrup to be supplied was 
sufficiently definite for the purposes of the contract 
to enable the parties thereto to comply therewith has 
been fully demonstrated by a practical test of twenty 
years duration. Furthermore, as the business con- 
tinued from year to year and the extent of the de- 
mand for the bottled drink became known such 
uncertainty as originally existed in the contract nec- 
essarily in large measure disappeared. It should be 
observed that the Georgia corporation, and not the 
bottlers, fixed the standard by which the supply was 
to be measured, and that this was the same standard 
under which the bottler was required to establish or 
cause to be established, under penalty of forfeiture 
of all contractual rights, bottling plants adequate to 
manufacture the bottled drink in quantity sufficient 
to supply the demand of all territory embraced in the 
agreement. Much stress has been laid by the defendant 

260 



v. THE COCA-COLA COMPANY 

upon the case of McCaw Mfg. Co. v. Felder, 115 
Ga. 408, but that case involved a contract of a char- 
acter radically different from the contract under con- 
sideration. Yet that and similar cases cited by the 
defendant required only that the contract be suffi- 
ciently definite, which necessarily means sufficiently 
definite under all the circumstances of the contract, 
having in mind its essential object and purposes. 
The contract is sufficiently definite as to subject mat- 
ter. Is it sufficiently definite as to time! This point 
was made but scarcely pressed, for the defendant 
made its real defense upon the ground that the con- 
tract was a contract at will a position inconsistent 
with that of a lack of certainty as to time. But aside 
from the inconsistent attitude of the defendant is it 
possible to say how long the covenant to supply syrup 
runs? Though essential to the contract this covenant 
is but incidental to its main purpose. As the business 
established upon the faith of the contract could not 
continue without syrup, the period for which the 
syrup must be supplied is found by ascertaining the 
duration of the contract. From what has already 
been said it appears that the contract is not a con- 
tract at will, but that it is a contract permanent, and 
perpetual in its nature. Manners v. Morosco, 252 
IT. S. - -; Western Union Telegraph Co. v. Pennsyl- 
vania Co., 129 Fed. 849, 858. The bottling business 
rests upon the joint existence of two things the con- 
tinued secrecy of the process for making the syrup 
and the continued demand for the bottled drink. So 
long as both of these conditions exist the contract 
endures. The fact that no plan was provided for in 
the contract for changing the price to be paid for the 
syrup does not alter this result. It may well be that 
the price so fixed embraced such a large margin of 
profit that a fluctuating scale of prices was deamed 
unnecessary. 

It is next contended by the defendant that if the 

207 



THE COCA-COLA BOTTLING COMPANY 

contract be construed as it is now construed by the 
Court it is void under the law of Georgia, the Sher- 
man Act and the Clayton Act. In this connection it 
should be observed that the effect of the contract was 
not a merger or consolidation of businesses theretofore 
existing in severality, but was the complete severance 
of the bottling business from the business of supply- 
ing soda fountains with the syrup, while the result 
which the defendant seeks under statutes intended to 
prevent monopoly would give to the defendant a com- 
plete and exclusive monopoly of both the fountain 
business and the bottling business. The accomplish- 
ment of this result through the instrumentality of the 
anti-monopoly statutes would, indeed, be unique. That 
of necessity there is competition between the bottled 
drink and the fountain drink cannot be seriously 
questioned. The contract did not fix a price for the 
bottled drink. It did not fix a price for the fountain 
drink. The defendant may sell its fountain syrup for 
such price as it pleases subject to the inevitable re- 
sult, if it raises its price too high, that the demand 
for the fountain drink will decrease and that for the 
bottled drink increase. The converse would, of course, 
be true should the price of the bottled drink greatly 
exceed that of the fountain drink. The defendant 
points out certain covenants of paragraphs 6, 7, 11 
and 12 of the contract as amended in 1915 to show 
that the contract is in restraint of trade. It cites 
Floding v. Floding, 137 Ga. 531, 73 S. E. 729, and 
other cases, to show that the courts of Georgia re- 
fuse to recognize an agreement not to operate the 
same business in a territory very large in area as 
being in reasonable restraint of trade. But such 
cases have no analogy to the case at bar, where the 
effect of the contract was not to transfer the whole 
business of the vendor, but only an incidental and 
potential business arising out of the main business of 
the vendor. It is unnecessary to analyze the several 

268 



v. THE COCA-COLA COMPANY 

covenants pointed out as being in unreasonable re- 
straint of trade. Those covenants at most operate as 
a partial and not as a general restraint and are 
" merely ancillary to the main purpose of a lawful 
contract, and necessary to protect the covenantee in 
the enjoyment of the legitimate fruits of the contract, 
or to protect him from the dangers of an unjust use 
of those fruits by the other party," or were covenants 
necessary to protect the Georgia corporation in its 
retained business. Such provisions are valid. United 
States v. Addyston Pipe & Steel Co., 85 Fed. 271; 
John D. Park & Sons Co. v. Hartman, 153 Fed. 24. 
I find in the contract nothing having an effect or 
intended to have an effect to defeat or lessen com- 
petition or to encourage or tend to create a monopoly, 
nor do I find anything therein that may be said to 
be in unreasonable restraint of trade. 

The defendant has also suggested, rather than 
urged, that even if the complainant acquired any 
right, title or interest in the trade-mark, good will 
or business of the predecessor of the defendant, the 
complainant has disposed of all such rights to its sub- 
bottlers. This objection is based upon the provisions 
of the contract between the complainant and its five 
hundred and eighty-eight sub-bottlers, each of such 
contracts so far as disclosed being in the same form. 
Under those contracts the bottler conveyed to the 
sub-bottler the right the former " received from The 
Coca-Cola Company to use the trade-mark name 
Coca-Cola, and all labels and designs pertaining 
thereto in connection with the product bottled Coca- 
Cola" in the territory of the sub-bottler. The bottler 
agreed to obtain and furnish to the sub-bottler at 
$1.20 per gallon sufficient syrup for bottling purposes 
to meet the requirements of the sub-bottler in his 
specified territory. The sub-bottler agreed, in sub- 
stance, to buy of or through the bottler at the 
specified price all syrup required or used by the 

269 



THE COCA-COLA BOTTLING COMPANY 

sub-bottler; to invest in and maintain a plant and 
equipment sufficient to meet the demands of. the busi- 
ness in its territory ; to allow the bottler to enter upon 
ami examine the premises where the Coca-Cola 'should 
be bottled and prepared for market; and to allow the 
bottler to make any necessary examination to see that 
the provisions of the contract were complied with. 
It was further agreed that so long as the sub-bottler 
should comply with the terms of its contract the 
rights, privileges and immunities thereby granted to 
the sub-bottler should remain in full force and effect. 
The obligations imposed upon the complainant by its 
contract with the Georgia corporation still rested 
upon the former, notwithstanding its contracts with 
the sub-bottlers. The complainant also retained a 
beneficial interest in the bottling business after mak- 
ing the contracts with its sub-bottlers. Whether the 
interest so retained makes The Coca-Cola Bottling 
Company "the real party in interest ' within the 
contemplation of Equity Rule 37 is a question that 
need not now be determined, for some of the sub- 
bottlers, on behalf of themselves and all other sub- 
bottlers to whom defendant contends the complainant 
has sold all its interest in the business, good will 
and trade-mark, have been granted leave to intervene, 
reserving to the defendant the right to raise any 
question with respect to such intervention. The right 
of the sub-bottlers so to intervene is supported by 
Osborne v. Wisconsin Cent. R. Co., 43 Fed. 824, and 
Prentice v. Duluth Storage & Forwarding Co., 58 
Fed. 437. In the former case Mr. Justice Harlan, 
sitting at circuit, held that "where a number of per- 
sons have separate and individual claims and rights 
of action against the same party, but all arise from 
some common cause, are governed by the same legal 
rule, and involve similar facts, and the whole matter 
might be settled in a single suit brought by all of 
these persons uniting as co-plaintiffs, or one of the 

270 



v. THE COCA-COLA COMPANY 

persons suing on behalf of the others, or even by one 
person suing for himself alone" one or more may 
sue for the whole. In the latter case Judge Sanborn, 
speaking for the Circuit Court of Appeals for the 
Eighth Circuit, said: 

* ' That this suit was well and wisely brought 
admits of no discussion. Owners of lots in severalty 
in possession under a common source of title 
may join in ' a bill of peace to quiet their 
title the validity of which depends en- 

tirely upon the superiority of the title of their 
common grantor. The law and the facts which 
determine the validity of the title of one such 
owner also determine validity of the title of 
every such owner. While they are owners in 
severalty, they are united in interest in the sole 
question at issue in such a case the validity of 
the title of their common grantor. A suit based 
upon such a bill is of general equitable cognizance. 
It prevents a multiplicity of suits, and affords the 
only adequate remedy for such a multitude of sev- 
eral owners when their common source of 
title is assailed." 

It is also provided by Equity Rule 37 that ' ' all 
persons having an interest in the subject of the action 
and in obtaining the relief demanded may join as 
plaintiffs. Both The Coca-Cola Bottling 

Company and the sub-bottlers have an interest in the 
subject of the action and in obtaining the relief de- 
manded by the bill of complaint. The objection of 
the defendant to the intervention of the sub-bottlers 
cannot be sustained. It follows that all persons hav- 
ing an interest in the subject of the action and in 
obtaining the relief demanded are now before the 
court seeking its aid in protecting the business, 
good will and trade-mark rights, granted and con- 
veyed by the contract of 1899 as amended in 1915, 
from violation by the defendant. It, therefore, 

271 



THE COCA-COLA BOTTLING COMPANY 

becomes unnecessary now to determine the relative 
rights of such persons. 

Inasmuch as it appears from the bill of complaint 
that the contract of 1899 granted and conveyed prop- 
erty rights in and to a business, good will and trade- 
mark, and inasmuch as it also appears that such con- 
tract was valid, that it was not a contract at will, that 
all persons having any interest therein are before the 
court, and that the defendant is 'threatening to in- 
fringe those rights, the motion to dismiss the bill 
of complaint must be denied. Trade-mark Cases, 
100 U. S. 82, and as to good will, 12 R. C. L., page 
988. 

The complainant's motion for preliminary injunc- 
tion remains to be considered, but as the numerous 
affidavits and voluminous documentary exhibits filed 
in support of and in opposition to this motion cast 
no doubt upon any of the facts upon which the denial 
of defendant's motion to dismiss the bill of complaint 
is based it follows, without further consideration, that 
the complainant is entitled to a preliminary injunc- 
tion enjoining and restraining the defendant from in- 
fringing the property rights in good will and trade- 
mark granted and conveyed by the contract of 1899 
as amended. As an injunction so limited may tend to 
bring about a result fair and just to all parties I 
deem it unnecessary now to consider whether the com- 
plainant is entitled to a decree, absolute or upon 
terms, directing compliance with the covenant of the 
owner of the secret process to manufacture for and 
sell to the bottler all of the Coca-Cola syrup for 
bottling purposes that may be necessary for or used 
by the bottler in supplying the prescribed territory, 
and consequently consideration of that matter will 
be deferred until final hearing, unless the complain- 
ant shall in the meantime find that an earlier deter- 
mination is essential for its protection and renew its 
application for a mandatory injunction. 

272 



v. THE COCA-COLA COMPANY 

An order denying the motion of the defendant to 
dismiss the bill of complaint, and a decree for a pre- 
liminary injunction in accordance with this opinion 
may be submitted. 

(Sgd.) HUGH M. MOKBIS, J. 
November 8, 1920. 



273 



COCA-COLA BOTTLING COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE DISTRICT 

OF DELAWARE 



No. 388 IN EQUITY 



COCA-COLA BOTTLING COMPANY, Complainant, 

v. 
THE COCA-COLA COMPANY, Defendant. 



This case presents the same questions of law, un- 
der the same facts, as those already decided in No. 
389, save only that the rights of the complainant are 
for a different territory, and also that in the contracts 
of the complainant with its snb-bot tiers the rights of 
the sub-bottlers were limited to a specified term which 
is about to expire, no objection was raised to the right 
of the complainant to maintain the suit, and no sub- 
bottlers intervened. 

For the reasons stated in the opinion in No. 389 a 
like order and decree may be submitted. 

(Sgd.) HUGH M. MORRIS, J. 
November 8, 1920. 



274 



v. THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE DISTRICT 

OF DELAWARE 



No. 388 IN EQUITY 



THE COCA-COLA BOTTLING COMPANY, et aL, 

Plaintiffs, 
v. 
THE COCA-COLA COMPANY, Defendant. 



It appearing to the Court that the above stated 
cause is now ripe for final decree; that the parties 
thereto, including all of the Intervenors actually in- 
tervening in said cause, have entered into an agree- 
ment settling and compromising said case and all 
questions of difference thereon arising, an original 
signed copy of which contract has been exhibited to 
the Court and a true and correct copy of which is 
hereto attached as Exhibit 1, and Counsel represent- 
ing the several parties to said cause moving the Court 
to make said Agreement of compromise and settle- 
ment the decree of the Court in said cause, and all 
parties in open court consenting thereto ; 

It is Ordered, Adjudged and Decreed, That said 
agreement of settlement and compromise, as the same 
appears attached hereto as Exhibit 1, be and the same 
is made the decree of this Court ; and that it is so 

' 

accordingly Adjudged and Decreed by the Court. 
That all previous orders in this case are revoked. 
That all costs in the cause not heretofore paid are 
taxed equally against the plaintiff and the defendant, 
one-half to each. 

In open Court this 5th day of October, 1921. 

HUGH M. MORRIS, 
Judge, U. S. District Court. 
275 



COCA-COLA BOTTLING COMPANY 

We consent to the foregoing decree : 

Spcdding, MacDougald & Sibley, 
Rosser, Slaton, Phillips & Hopkins, 
Chas. T. & Jno. L. Hopkins, 
Ward, Gray & Neary, 
Brown, Spurlock & Brown, 
Plaintiff's Attorneys. 

W. D. Thomson, 
Clifford L. Anderson, 
Robt. C. Alston, 
Adams & Adams, 
William S. Hilles, 
Robert H. Richards, 

Defendant 's Attorneys. 

J. B. Sizer, 

Intervenors' Attorney. 

(NOTE. This case was appealed to the Court of Ap- 
peals of the Third Circuit, but before decision the case 
was settled between the parties.) 



276 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN 

DISTRICT OF KENTUCKY 



No. 807 SEPTEMBER 23, 1916 



THE COCA-COLA COMPANY 

v. 
THE LEONARD HOTEL COMPANY. 



This cause is before me for final decree. The plain- 
tiff is the manufacturer and seller of the well-known 
drink, Coca-Cola, The defendant owns and operates 
a hotel in Lexington, Ky., and in connection there- 
with a bar. At that bar it sells a drink similar 
in appearance and taste to plaintiff's article, known 
as My Coca, manufactured and sold by a concern in 
which defendant's proprietor and manager is the 
largest stockholder. The defendant had for a num- 
ber of years sold Coca-Cola, but three or four years 
ago ceased to do so and ever since then it has sold 
My Coca, The complaint made against it by the bill 
herein, which was filed October 7th, 1915, was that 
it was selling My Coca as and for Coca-Cola to cus- 
tomers calling for Coca-Cola, and the relief sought 
was an injunction against a continuance of such 
selling. 

That such selling is a wrong to plaintiff and en- 
joinable is well settled. That it has been so doing 
before the bringing of the suit is beyond question. 
Plaintiff's detective, Ross, testifies to sales on three 
separate occasions on March 4th, 1915, on four on 
March 5th, 1915, and on two on June 9th, 1915, on 

277 



THE COCA-COLA COMPANY 



two on June llth, 1915, and on one on June 14th, 
1915. As to one of the sales on March 4th, Ross is 
corroborated by the testimony of one of plaintiff's 
traveling salesmen, and as to the sales in June, by 
the testimony of two persons employed by him to 
assist in his detective work. The Special Commis- 
sioner, who saw these witnesses and heard them tes- 
tify, finds that their testimony is "absolutely true," 
notwithstanding the denial of defendant's bartenders. 
That they were engaged in detective work does not 
weaken their testimony, especially in view of the 
fact that there was no desire to involve defendant 
in a lawsuit, as shown by the fact that, after the 
sales in March, defendant's attention was called to 
the matter, with a request that such sales cease. 
Had this notice and request been heeded there would 
have been no lawsuit. I 

This testimony is corroborated by certain of de- 
fendant's witnesses. Their testimony not only had 
this effect, but it tended to establish other such sales ; 
indeed, it tended to establish that it. was the custom 
before this suit was brought to make such sales, 
whenever opportunity afforded. H. C. Deering was 
an employe of defendant. He worked at the cigar 
stand in front of the bar, with a partition between 
them. He had so worked for two years. He fre- 
quently went into the bar. He testified that he had 
observed that when Coca-Cola was asked for the 
bartender explained that they did not handle Coca- 
Cola, but did handle My Coca. When asked as to 
when his attention was first called to this, he first 
said that it was in the last five months. He then 
said that, it was in three or four or five months, 
then that he would not say that it was in six months, 
but in about three or four months, and then, that he 
had not noticed it prior to four or five months. Kit 
Blevins, a barber, worked in the hotel barber shop. 
He had worked there some time previously to June, 
1915, but continuously since that time. He went into 

278 



v. THE LEQNABD HOTEL COMPANY 

the bar regularly, or most every day. Before then 
he had been in there off and on for over three or 
four years. He had observed the same thing that 
Deering had when Coca-Cola was called for. When 
asked when this first happened, he said that he did 
not remember any further back than that it hap- 
pened within the last six or eight months. Further 
on he testified that recently when he called for Coca- 
Cola they would make the explanation, and when 
asked how recently, he said in the last five or six 
months back that it had become a joke between 
him and the bartenders because of this suit. Ollie 
S. Honaker, a florist, was a patron of defendant's 
bar. He had been so regularly for two years. When 
he called for Coca-Cola he was told that they did 
not have Coca-Cola, but had My Coca. He was asked 
as to how long ago this had happened, and he said 
that it had been six months, in the last six months; 
that was as near as he could state, but it was prob- 
ably longer; that he did not think that it was any 
less time than this, but he supposed, if anything, 
it was longer. 

J. J. McGurk, a confectioner, was a patron also of 
defendant's bar. He was there on an average once 
a day. He sold Coca-Cola himself, and hence never 
asked for it there. He had, however, on a good many 
occasions, observed others call for it, and the expla- 
nation heretofore referred to given. He first said 
that he had noticed this during the last six months 
or eight months, and then that he had heard it within 
the last six months and possibly previously to that, 
but could not say positively. 

The implication of the testimony of these four 
witnesses was that, before they had observed that 
such explanation was given, My Coca was furnished 
when Coca-Cola was called for, without explanation, 
i. e., that it was sold as and for Coca-Cola. They 
vary slightly as to the time when they first observed 
this, Deering putting the time shorter than the other 

279 



THE COCA-COLA COMPANY 



three. They testified on February 3rd, 1916. This 
suit was brought October 7th, 1915, nearly four 
months before. The estimates as to the time were 
approximate only. The reasonable conclusion is that 
the time when they first observed this was at the 
bringing of this suit. Blevins testifies that the call- 
ing for Coca-Cola by him and the explanation given 
by the bartender was a joke between them because 
of the bringing of the suit. The unreliability of 
McGurk's testimony estimating the time is shown 
by the fact that he testified that a sign which de- 
fendant had placed in the bar informing customers 
that it did not sell Coca-Cola, but sold My Coca, had 
been up longer than he had observed the explana- 
tion given by the bartenders. The sign had been 
put up after November 12th, 1915. 

The testimony of other witnesses than these four, 
outside of the bartenders, introduced by defendant 
is not sufficient to make out a different state of fact. 
When they testified defendant's bartenders had, no 
doubt, for nearly four months, at least, been quite 
regularly explaining that the article which they sold 
was My Coca and not Coca-Cola. The questions put 
to them covered this time. They were not limited 
to the time before the suit was brought. In giving 
estimates as to how long they had observed this they 
could readily fall into error. How readily they could 
do so is shown by the fact that one or two of them 
estimated that the sign which, then, had not been 
up for as much as three months, had been as much 
as, or over, a year. 

Besides this evidencee covering the time before the 
bringing of this suit, it was testified to by plaintiff's 
detective that after it was brought, to wit, on De- 
cember 21st, defendant's head bartender sold him My 
Coca as and for Coca-Cola, and his testimony was 
corroborated by a disinterested witness. This tes- 
timony the Special Master also finds to have been 
"absolutely" true. 

280 



v. THE LEQNAED HOTEL COMPANY 

Apart from the denials on the part of defendant's 
bartenders as to their making such sales, the sole 
defense is that such sales, if made, were contrary 
to the instructions of the defendant's proprietor, Mr. 
Shouse, and it. was innocent of any intent to appro- 
priate plaintiff's business. The Special Master finds 
that such sales as are shown by plaintiff's evidence 
to have been made without explanation ''were made 
against the proprietor's and manager's direct instruc- 
tions and without his knowledge or consent or ap- 
proval and were made through carelessness and in- 
advertence and without any intention whatever to 
deceive the public or to wrong the complainant." 
I do not find it necessary to go into the question 
as to the correctness of the finding. Accepting it 
as correct, it is not a good defense to plaintiff's right 
to relief. The bartenders were defendant's repre- 
sentatives, and it is responsible for their action. It 
is a matter of common knowledge that the demand 
for such drinks as Coca-Cola, My Coca and the like 
was created by plaintiff's article. My Coca resembles 
it in appearance and taste. The persons to whom 
defendant sold My Coca when Coca-Cola was called 
for were plaintiff's customers, i. e., persons desiring 
plaintiff's article. It availed itself of the opportunity 
presented by the call for Coca-Cola to sell its ar- 
ticles in its stead, and that even though full expla- 
nations were made, which it had the right, to do. 
This condition of things called for its seeing to it 
that its bartenders did not sell My Coca as and for 
Coca-Cola, This it did not do. Plaintiff was sat- 
isfied to call defendant's attention' to the wrong that 
was being done it, when first advised of it. Find- 
ing that the wrong continued it had no recourse but 
to bring this suit. And since the suit was brought 
it has continued. There is some evidence that the 
bartenders regard it as a joking matter. The sign 
was not heeded. It did not better conditions. If 
anything, it worsened them. The tendency of the 

281 



THE COCA-COLA COMPANY 



sign is to cause the bartenders to think it is suffi- 
cient. What is needed is notice that the responsi- 
bility is on the bartenders, and if the wrong is con- 
tinued he will be discharged and pains taken to see 
that he complies with instructions. Abundant author- 
ity exists supporting the position that plaintiff is 
entitled to the relief which it seeks. None other 
need be cited than this extract from Mr. JUSTICE 
BROWN'S opinion in 

Saxlehuer v. Siegel Cooper Co., 179 U. S. 42, 
to wit: 

"In the case against the Siegel Cooper Com- 
pany there was no charge of an intentional fraud, 
and the court found there was no evidence of 
fraudulent conduct on its part, and dismissed 
the bill as to that company. As to the other 
two cases, the court found* that the clerks in 
charge of their stores, in response to special 
requests for Janes water, wrapped up and de- 
livered Matyas water, purchased of the Eisner 
and Mandelson Company. In other words, they 
had palmed off the one for the other. We think 
that an injunction should issue against all those 
defendants, but that as the Siegel Cooper Com- 
pany appears to have acted in good faith, and 
the sales of others were small, they should not 
be required to account for gains and profits. 
The fact that the Siegel Cooper Company acted 
innocently does not exonerate it from the charge 
of infringement." 

The plaintiff is entitled to a decree. The Commis- 
sioner is allowed $100.00 for his service. 

A. M. J. COCHRAN, Judge. 

September 23, 1916. 



Candler. Thomson & Hirsch, Atlanta, Georgia, 
Selligman & Selligman, Louisville, Ky. 
For Complainant. 

282 



v. THE LEONARD HOTEL COMPANY 




No. 807 NOVEMBER 2, 1916 



THE COCA-COLA COMPANY 

v. 
THE LEONARD HOTEL COMPANY. 



This case having been heard by the Court and the 
Court being sufficiently advised, it is now ordered and 
adjudged as follows: 

1. That the defendant, the Leonard Hotel Com- 
pany, its agents, servants and employes and each of 
them be and they are hereby enjoined from selling 
My Coca or any similar drink to persons calling for 
Coca-Cola without first informing such intending pur- 
chaser or purchasers that the defendant does not 
handle Coca-Cola, and cannot sell it to them, and 
that the article that is offered or tendered for sale is 
not Coca-Cola, or in any other way selling My Coca 
or any other similar drink as and for Coca-Cola to 
such persons. 

2. That the complainant recover of the defendant 
its costs herein expended. 

A. M. J. COCHRAN, 

Judge. 

Nov. 2, 1916. 
A copy. Attest: 

J. W. MENZIES, Clerk, 

By C. N. WARD, D. C. 

283 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE DISTRICT 

OF SOUTH CAROLINA 



CIRCUIT COURT, IN EQUITY 



THE COCA-COLA COMPANY and THE COCA- 
COLA BOTTLING COMPANY, Complainant, 

v. 
H. G. BAILEY and E. B. DONALD, Defendants. 



OF STANDING MASTER. 

To the Honorable, the Judges of Said Court: 

This is a suit for injunction and for damages for 
the unlawful use of a trade-mark to which the com- 
plainants claim the exclusive right. 

The bill alleges that the complainant, "The Coca- 
Cola Company/' is the owner of a trade-mark con- 
sisting of the compound coined word " Coca-Cola "; 
that under said trade-mark the said complainant and 
its predecessors have, since the year 1887 to the pres- 
ent time, been selling a beverage, the component parts 
of which are a trade secret belonging to said com- 
plainant, and compounded by said complainant only; 
that its compound is known as "Coca-Cola Syrup," 
and under said trade-mark, is sold in foreign coun- 
tries, as well as in trade with the Indian tribes, and 
in commerce among the states of the Union; that 
this trade-mark was duly registered by said complain- 
ant in the proper office in the City of Washington, on 
the 31st day of January, 1893; that on July 21st, 
1899, said complainant assigned, with certain reserva- 
tions and conditions, to J. B. Whitehead and B. F. 
Thomas, the exclusive right to prepare and sell the 

284 



v. H. G. BAILEY AND E. B. DONALD 

beverage made from the said ingredients prepared by 
said "Coca-Cola Company, " and the right to use, in 
said business, the said trade-mark "Coca-Cola"; that 
subsequently the said Whitehead and Thomas con- 
veyed their said rights with the assent of the said 
Coca-Cola Company, to the complainant, The Coca- 
Cola Bottling Co., who now have the exclusive 
right to prepare, bottle and sell, under said trade- 
mark, the said beverage known as Coca-Cola, within 
the territory specified in said assignment, including 
the State of South Carolina; that said business has 
assumed large proportions and is very profitable; 
that the defendants, under the name of The Union 
Bottling Company, have engaged (presumably at 
at Union in the State of South Carolina) in manu- 
facturing and selling to the public an inferior liquid, 
similar to said Coca-Cola, put up in bottles bearing 
labels upon which is printed the word "Coca-Cola," 
in violation of the rights of complainants; that de- 
mand has been made upon defendants to stop said vio- 
lation and infringement upon the rights of complain- 
ants, which demand has been refused. 

Wherefore, etc. 

The prayer is for injunction and damages. 

The answer practically admits the use of labels 
upon which are printed the words "Coca-Cola," but 
denies any intentional violation of any rights of the 
complainant, denies that as a matter of fact they have 
damaged the complainant, by the use of said labels, 
and denies the right of the complainants to enjoin 
the defendants from further carrying on their said 
business. 

As to the other allegation, the defendants deny that 
they have any knowledge, and demand proof of the 
same, upon the filing of the answer, and upon notice 
to the defendants, a preliminary injunction was 
granted prohibiting the defendants to use the labels 
containing the symbol "Coca-Cola" until the further 
order of the Court. 

285 



THE COCA-COLA COMPANY 



The cause having been reported to me to take the 
testimony and report upon the issues, I have taken 
the testimony which is herewith filed and upon the 
same respectfully report as follows: No one appeared 
before me for defendants. 

I find as a matter of fact: 

That the coined word "Coca-Cola" has been in 
use as a trade-mark since the year 1887, and was duly 
registered on January 31st, 1893. 

The said trade-mark and the right to use the same 
have passed through several successive hands to the 
complainant, The Coca-Cola Company, who is now, 
and was at the time of the filing of the bill herein, 
the owner of the same. 

That the complainant, The Coca-Cola Bottling Com- 
pany, has the exclusive right to the use of said trade- 
mark in the State of South Carblina. 

That the defendants were, at the time of the com- 
mencement of this suit, and until the service of the 
order of injunction herein, engaged in selling a bev- 
erage similar to that made by the complainants, but 
inferior thereto in quality, and put up in bottles upon 
which was pasted a label with the word "Coca-Cola" 
printed thereon. 

That said business was conducted and said labels 
used without authority from the complainants, or 
either of them, was necessarily injurious to their 
business. 

That the defendants were, before the commence- 
ment of this suit, requested to desist from the use 
of said label, but said request was refused. 

That the profits realized by defendants from the 
use of said label amounted to the sum of about One 
Hundred and Twenty-five Dollars. 



At common law, a trade-mark was recognized and 
protected by the Courts before the formation of the 

286 



v. H. G. BAILEY AND E. B. DONALD 

government of the United States. The jurisdiction 
was based upon the theory of protection of the public 
from imposition and fraud and protection of the 
owner of the trade-mark from "unfair competition." 
The remedy was in damages, and for a long time the 
Courts of Equity refused to grant an injunction in 
such a case, holding that there was an adequate 
remedy at law. It was not until the time of Mans- 
field that injunction was allowed. In the meantime, 
several of the States of the American Union enacted 
laws for the protection of trade-marks, some of which 
differ materially from others. No attempt was made 
by the Congress of the United States to pass such a 
law, however, until the year 1870, when an act was 
passed entitled, "An Act to revise, consolidate and 
amend the statutes relating to patents and copy- 
rights," part of which provided for the registration 
of trade-marks, and appears in the Revised Statutes 
as Sees. 4937 to 4947, inclusive. This was followed 
by the Act of 1876, which made it a criminal offense 
to counterfeit "trade-mark goods," or to "use or 
deal in trade-mark goods," the trade-mark thereon 
having been duly registered. Both of these acts were 
'held by the Supreme Court, in the case of U. S. v. 
Stiffins, to be unconstitutional and void, upon the 
ground that Congress has no constitutional right to 
deal with any matter of trade, except such as related 
to commerce with foreign countries, or the Indian 
tribes, or among the States of the Union, and that 
the Acts in question undertook "to establish a uni- 
versal system of trade-mark registration for the 
benefit of all, etc., without regard to the character 
of the trade," etc. (100 U. S. 550; U. S. v. Koch, 40 
Fed. 250). 

In the year 1881 Congress passed an Act entitled, 
"An Act to authorize the registration of trade-marks 
and protect the same" (21 Stats, at Large, 502). 
This Act is confined, however/ to trade-marks used 

287 



THE COCA-COLA COMPANY 



in foreign commerce or commerce with the Indians. 
By the Act of 1882 (22 Stats, at Large, 298), its pro- 
visions were extended to trade-marks used in such 
commerce at the time of the passage of the Act of 
1881. In 1903, an Act was passed entitled, "An Act 
to authorize the registration of trade-marks used in 
commerce with foreign nations, or among the several 
States, or with Indian tribes, and to protect the 
same" (33 Stats, at Large, 724). Both the Act of 
1881 and that of 1903 contain clauses saving to the 
owner of a trade-mark any rights he may have at 
Common Law or in Equity. The trade-mark in this 
case was adopted in 1887 and registered in 1893. 
Had it not been shown that it was used in foreign 
commerce and commerce with the Indian tribes, a 
question might have arisen as to ihe validity of the 
registration, inasmuch as the Act of 1881 does not 
provide for the registration of trade-marks used in 
commerce among the States. The evidence shows, 
however, that this trade-mark is used in foreign com- 
merce, with the Indian tribes, and to that extent is, 
no doubt, conclusive as to the registration as far as 
it goes. But the infringement complained of occurred 
within the limits of one of the States. The registra- 
tion was made in 1893, when there was no law for 
the registration of a trade-mark used solely in com- 
merce among the States. 

Can the Act of 1905, which includes such cases, be 
applied to a registration made before that Act was 
passed? 

I assume that I am not required to answer this 
question, if it be necessary that it should be answered, 
and therefore leave it for the consideration of the 
Court. 

There is no doubt that, aside from the provisions 
of the Eegistration Acts, the complainant has a right 
at Common Law, or in this Court, at the present 
time, to a remedy upon the case as established by the 

288 



v. H. G. BAILEY AND E. B. DONALD 

evidence. Unfair competition has always been good 
ground for relief, either at law or in equity, and the 
proof here is clear that the defendants have been en- 
gaged in selling article (inferior) under a label bear- 
ing a symbol or word so nearly resembling the trade- 
mark of complainants as to deceive the public and 
injure the business and reputation of the complain- 
ants. Under such circumstances, proof of fraudu- 
lent intent is not necessary (McLean v. Fleming, 96 
U. S. 245; Menendez v. Holt, 128 U. S. 514; Amoskeag 
Mfg. Co. v. Trainer, 101 U. S. 63). 

These cases show that the complainants are en- 
titled to a perpetual injunction. 

As to damages, it appears from the evidence that 
the defendants are financially irresponsible. This, 
however, cannot deprive the complainants of their 
right to a judgment, if they are otherwise entitled 
thereto. In this Court, complainants are entitled to 
an injunction and an accounting for profits made by 
defendants in the unlawful business, but not to vin- 
dictive or exemplary damages (Taylor v. Carpenter, 
11 Paige Oh. 292, 2 Sand. Ch. 903 ; Hennessy v. Wil- 
merding-Loewe Co., 103 Fed. Rep. 90). Defendants 
have admitted under oath that they made a profit of 
One Hundred and Twenty-Five Dollars on the sales 
of their compound under the spurious label "Coca- 
Cola." For this amount the complainants are en- 
titled to judgment as actual damages. Counsel for 
the complainants has announced that they claim no 
more, and are willing to pay the costs of Court and 
fees of Standing Master if not collected from the 
defendants. 

I find as matter of law: 

That the complainants are entitled to a perpetual 
injunction against the use by the defendant of the 
spurious trade-mark "Coca-Cola" heretofore used 
by defendants. 

That the complainants are further entitled to 

289 



THE COCA-COLA COMPANY 



judgment against the defendants for the sum of One 
Hundred and Twenty-five Dollars and costs. 

That the defendants being financially irresponsi- 
ble, the complainants should be required (and have 
expressed their willingness) to pay the costs and 
expenses of this suit. 
All of which is respectfully submitted. 

JULIUS H. HEYWARD, 

Standing Master. 
Greenville, S. C., 

April 27, 1906. 

I, C. J. Murphy, Clerk of the said Court, do hereby 
certify that the foregoing Keport is a true copy of 
the original now on file in my office. 

Given under my hand and seal of said court, at 
Charleston, S. C., this the 30th day of April, A. D. 
1906. * 

C. J. MURPHY, 
(Seal) C. C. C. U. S. Dist. S. C. 



Candler, Thomson & 

Atlanta, Ga., 
Samuel H. Sibley, 

Union Point, Ga., 

For Complainant. 



290 



v. H. G. BAILEY AND E. B. DONALD 



THE UNITED STATES OF AMERICA, 

DISTRICT OF SOUTH CAROLINA, 

IN THE CIRCUIT COURT, 

FOURTH CIRCUIT 



IN EQUITY 

COCA-COLA COMPANY and THE COCA-COLA 
BOTTLING COMPANY, Complainants, 

v. 
H. G. BAILEY and E. B. DONALD, Defendants. 



This cause came on to be heard at this term after 
due notice to counsel. After hearing counsel for com- 
plainants and considering the Report of the Stand- 
ing Master filed in the case, it is 

Ordered and Decreed, That said Report be in all 
respects confirmed and stand as the judgment and 
decree of this Court. 

It Is Further Ordered, That the complainants pay 
to Julius H. Heyward, Standing Master, One Hun- 
dred Dollars ($100.00) for his fee in this case, and 

Dollars costs of the court, for which 

sums in turn the complainants shall have judgment 
against the defendants, all to be enforced by execu- 
tion on application therefor. 

WM. H. BKAWLEY, U. S. Judge. 

I, C. J. Murphy, Clerk of the said Court, do hereby 
certify that the foregoing Decree is a true copy of the 
original now on file in my office. 

Given under my hand and seal of said Court at 
Charleston, S. C., this the 4th day of June, A, D. 
1906. C. J. MURPHY, 

(Seal) C. C. C. U. S. Dist. S. C. 

291 



THE COCA-COLA COMPANY 



IN THE UNITED STATES COURT FOR THE 

WESTERN DISTRICT OF VIRGINIA, 

CONTINUED AND HELD 

AT ROANOKE 



On the llth Day of May, 1915 



THE COCA-COLA COMPANY, 

v. 
HEINS CIGAR COMPANY. 



FINAL DECREE. 

This Cause having come on for final hearing, and 
the pleadings, evidence and arguments of counsel 
having been considered, it is 

Adjudged, Ordered and Decreed: 

(1) That the defendant, Heins Cigar Company, and 
all of the officers, agents and employes of said defend- 
ant, be and they are hereby perpetually enjoined and 
restrained from applying to any syrup not made by 
the plaintiff the name Coca-Cola; from dispensing or 
selling in response to orders or requests for Coca- 
Cola, any beverage other than such as is made with 
the syrup known as Coca-Cola and made by the plain- 
tiff, and from representing any syrup not made by the 
plaintiff to be Coca-Cola; 

(2) That plaintiff recover of the defendant its 
costs in this behalf expended, to be taxed by the 
deputy clerk of this court at Roanoke, subject to re- 

' view by this court, and that writ of execution issue 
therefor in accordance with law; 

292 



v. HEINS CIGAE COMPANY 



(3) That all relief prayed by the plaintiff, except 
as hereinabove specifically granted, is denied, and 
that this cause be retired from the trial calendar. 

A copy, teste: 

L. T. HYATT, Clerk, 

By FRANK J. HALL, Deputy. 

(Seal) 

Candler, Thomson & Hirsch, Atlanta, Georgia, 
McCormick & Smith, Roanoke, Virginia, 
For Plaintiff. 



293 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE NORTHERN DIS- 
TRICT OF OHIO, 
EASTERN DIVISION 



No. 438 DECEMBER 27, 1917 



THE COCA-COLA COMPANY 

v. 
STANLEY KURTZ 



I 

Present: Honorable D. C. WESTENHAVER, U. S. Dis- 
trict Judge. 

This cause came on to be heard at this term and 
was argued by counsel, and thereupon, upon consid- 
eration thereof and the consent of all parties thereto, 
it was ordered, adjudged and decreed as follows, viz. : 

That the Court has jurisdiction of the subject mat- 
ter of the suit and of the parties thereto; that the 
said defendant, his agents, servants, employes, at- 
torneys and assigns and all acting by or under his 
authority be and they are hereby, each and all, per- 
petually enjoined and restrained from using or em- 
ploying in connection with the advertisement, offer- 
ing for sale or sale of any beverage, the trade-mark 
" Coca-Cola " or any like word, or the word " Co- 
Cola " or any like word; from using or employing 
a script, or a type, or a style of lettering identical 
with or like that shown in and by Exhibit "B" 
attached to the bill of complaint; and further from 
doing any act or thing or using any name, device, 
artifice or contrivance which may be calculated or 

294 



v. STANLEY KURTZ 



likely to cause any product not the product of the 
plaintiff to be sold as and for the product of the 
plaintiff or likely to induce the belief that any prod- 
uct not the product of the plaintiff is the product of 
the plaintiff, and that a writ of injunction issue to 
the above effect; that the plaintiff having waived an 
accounting of profits and an assessment of damages 
by reason of the alleged conduct and acts of the de- 
fendant set out in the bill of complaint, that plain- 
tiff, in lieu and in full of said profits and said dam- 
ages thereby arising and occasioned, do have and 
recover from the defendant the sum of One Dollar 
in full of such profits and damages by reason of the 
alleged conduct and acts of said defendant in said 
bill of complaint set out, and that plaintiff do have 
and recover from the defendant its costs herein to 
be taxed. 

THE UNITED STATES ) 
OF AMERICA, J 

I, B. C. Miller, Clerk of the District Court of the 
United States, within and for the Northern District 
of the State of Ohio, do hereby certify that I have 
compared the within and foregoing transcript with 
the original Final Decree entered upon the Journal 
of the proceedings of said Court in the therein en- 
titled cause, at the term and on the day therein 
named; and do further certify that the same is a 
true, full and complete transcript and copy thereof. 

Witness my official signature and the seal of said 
Court, at Cleveland, in said District, this 28th day 
of December, A. D. 1917, and in the 142nd year of 
the Independence of the United States of America, 
(Seal) B. C. MILLEK, Clerk. 

(By) ANNA H. ELLIOTT, Deputy Clerk. 

Candler, Thomson & HirscJi, Atlanta, Georgia, 
Hull, Smith, Brock & West, Cleveland, Ohio, 

For Complainant. 

295 



THE COCA-COLA COMPANY 



IN THE UNITED STATES DISTRICT COURT, 
SOUTHERN DISTRICT OF OHIO 



No. 221 IN EQUITY 



THE COCA-COLA COMPANY, Plaintiff, 

v. 
A. LONDON, Defendant. 



FINAL DECREE. 

This cause coming on for final Jiearing (the defend- 
ant consenting thereto), it is Ordered, Adjudged and 
Decreed, as follows: 

(1) That the Court has jurisdiction of the subject 
matter and of the parties to this suit. 

(2) That the word COCA-COLA is a valid trade 
mark of which the plaintiff is the sole owner. 

(3) That plaintiff alone is entitled to use the trade- 
mark COCA-COLA, and that its goods alone can law- 
fully be sold under that name. 

(4) That The Coca-Cola Company, a Georgia cor- 
poration, then being the owner of the trade-mark 
COCA-COLA, duly registered its said trade-mark un- 
der and in conformity with the Act of Congress, ap- 
proved March 3, 1881, entitled: "An Act to authorize 
the registration of Trade-Marks and to protect the 
same," and under the Act of Congress of February 
20, 1905, entitled: "An Act to authorize the regis- 
tration of Trade-Marks used in commerce with for- 
eign nations or among the several states or with 
Indian tribes and to protect the same ; ' ' that said regis- 
trations, numbered 22,406 and 47,189 respectively, are 
valid and subsisting and, in connection with the 

296 



v. A. LONDON 



business and good will, by proper assignments duly re- 
corded, as provided by law, became and now are the 
sole property of the plaintiff, and that the plaintiff 
is entitled to the rights and remedies provided in said 
statutes. 

(5) That the word COLA, adopted and used by the 
defendants in connection with merchandise sold by 
him is an infringement of plaintiff's said trade-mark 
COCA-COLA and is a copy or colorable imitation 
thereof within the meaning of the Act of Congress 
of February 20, 1905, and that the defendant has af- 
fixed said copy or colorable imitation to merchandise 
of substantially the same descriptive properties as 
those set forth in plaintiff's said registration and 
has used said copy or colorable imitation in commerce 
among the several states of the United States, and 
that defendant thereby has infringed plaintiff's said 
registered trade-mark. 

(6) That defendant has applied to packages con- 
taining his said product, decorated crowns with a 
color scheme and script lettering thereon so nearly 
resembling the distinctive decorated crowns of the 
plaintiff, that defendant thereby has competed un- 
fairly with the plaintiff. 

(7) That said defendant, A. London, his agents, 
servants, employes, attorneys, assigns and licensees, 
and all acting by or under his authority, be and the 
same hereby, each and all, are perpetually enjoined 
and restrained from using or employing, in connec- 
tion with advertising, or offering for sale or sale 
of any beverage or ingredient thereof, plaintiff's 
trade-mark, COCA-COLA, or any like word, or the 
colorable imitation thereof COLA, or any like word, 
and from using script lettering identical with or like 
the script lettering used by plaintiff or defendant, 
and from selling or offering for sale, furnishing or 
supplying, in response to requests for Coca-Cola, any 
product, not the plaintiff's, and, further, from doing 

297 



THE COCA-COLA COMPANY 



any act or thing, or using any name, artifice or con- 
trivance which may be calculated or likely to cause 
any product, not the plaintiff's, to be sold as and for 
the product of plaintiff, and that a writ of perpetual 
injunction issue accordingly. 

(8) That the plaintiff is entitled to have and re- 
cover of and from the said defendant, the profits de- 
rived by said defendant by reason of his infringe- 
ment and unfair competition herein restrained, and 
for the damages sustained by the plaintiff by reason 
thereof, and said plaintiff electing to waive said ac- 
counting of damages and profits, the Court finds the 
sum of $1.00 in lieu thereof, and it is further 
ordered, adjudged and decreed that plaintiff do have 
and recover of and from said defendant the said sum 
of $1.00, together with the costs of this suit to be 
taxed and have execution therefor. 

Enter: 

J. E. SATER, 

District Judge. 

We consent to the entry of this decree : 

Harold Hirsch, Edward 8. Rogers and G. E. Bibee, 
solicitors for plaintiff. 

James Joyce and F. 8. Monnett, solicitors for de- 
fendant. 

THE UNITED STATES OF AMERICA, 
SOUTHERN DISTRICT OF OHIO, ^ ss. 
EASTERN DIVISION. 

I, B. E. Dilley, Clerk of the District Court of the 
United States within and for the District and Divi- 
sion aforesaid, do hereby certify that the foregoing is 
a true and correct copy of the original Final Decree, 
filed October 30, 1922, as the same appears on file and 

298 



v. A. LONDON 



of record in the office of the Clerk of said Court, in 
the therein entitled cause. 

In Testimony Whereof, I have hereunto subscribed 
my name and affixed the seal of said court, in the City 
of Columbus, Ohio, this 30th day of October, A. D. 
1922. 

B. E. DlLLEY, 

(Seal) Clerk. 

By GERTRUDE C. CROPPER, Deputy. 



onn _ 

L^f/fJ 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE WESTERN DIS- 
TRICT OF PENNSYLVANIA 



No. 31 IN EQUITY 



COCA-COLA COMPANY, a Cor- 
poration of the State of Georgia, 
and THE COCA-COLA BOT- 
TLING WORKS OF PITTS- 
BURGH, a Corporation of the 
State of Tennessee, 

v. 

E. S. FRISHKORN, a Citizen of 
the State of Pennsylvania. 



November Term 
1906 



DECREE Pro Confesso. 

This case, having been brought on for hearing, 
and it appearing that defendant, was duly served 
with process on the llth day of November, 1906; 
that the defendant having failed to appear and hav- 
ing failed to plead, answer or demur, an order for 
a decree pro confesso was duly entered on the 6th 
day of January, 1907; that more than thirty days 
have passed since the entry of the said order; the 
Court hereupon adjudges and decrees that complain- 
ant herein, Coca-Cola Company, is the owner and 
proprietor of a good and valid trade-mark for bev- 
erages, consisting of the term or designation "Coca- 
Cola," and that the Coca-Cola Bottling Works of 
Pittsburgh, complainant herein, is licensee from the 
said Coca-Cola Company for the territory surrounding 

300 



v. E. S. FEISHKOKN 



and including the City of Pittsburgh, Pennsyl- 
vania, respecting such trade-mark rights; and that 
the parties complainant herein have an established 
business in preparing and dispensing beverages; and 
that the appearance of their product when put upon 
the market is characteristic, and as such recognized 
by the trade as the bottled drink under the name 
or designation "Toca-Coca" is infringing upon the 
aforesaid trade-mark rights of these complainants, 
and in putting such product on the market in the 
form exemplified by the exhibits in this case, is en- 
gaged in unlawful competition. 

It is further ordered, adjudged and decreed that 
the defendant, said E. S. Frishkorn, his agents, serv- 
ants and workmen be, and hereby are, enjoined from 
further infringing complainants' trade-mark, and 
from dealing in bottled beverages which in appear- 
ance so nearly resemble complainants' product as to 
cause confusion in the trade; and specifically from 
bottling, selling or dispensing a beverage under the 
name "Toca-Coca," or in the form exemplified in the 
exhibits herein. 

Per Curiam. 

February 13, 1907. 

Candler, Thomson & Hirsch, Atlanta, Georgia, 
Christy & Christy, Pittsburgh, Pennsylvania, 
For Complainant. 



301 



IN THE DISTRICT COURT 
OF THE UNITED STATES 

FOR THE NORTHERN 
DISTRICT OF ALABAMA 

SOUTHERN DIVISION 



SEPTEMBER 28, ,1916 



THE COCA-COLA COMPANY 

v. 
E. R. ROCHELLE. 



CANDLER, THOMSON & HIRSCH, Atlanta, Georgia, 
PERCY, BENNEBS & BURR, Birmingham, Alabama, 
For Complainant. 



302 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE NORTHERN 

DISTRICT OF ALABAMA, 

SOUTHERN DIVISION 



IN EQUITY 

THE COCA-COLA COMPANY, Complainant, 

v. 
E. E. EOCHELLE, Defendant. 



This being the day regularly set for the hearing 
on the petition of complainant for a temporary in- 
junction, and both parties being present and repre- 
sented by counsel, the evidence being heard and con- 
sidered, it is the judgment and decree of the court, 
and it is hereby Ordered, Adjudged and Decreed 
that a temporary injunction be and the same is 
hereby issued against E. E. Eochelle, the defendant, 
his agents, servants, attorneys, and all holding by 
or through him, forbidding and enjoining him or 
them from using the name "Caro-Cola" in the form 
and fashion as the same by the evidence is shown to 
be now used by the defendant, and as disclosed by 
the caps on bottles attached as exhibits to the affi- 
davits of complainant. 

It is Further Ordered, Adjudged and Decreed by 
the Court that a copy of this order be served upon 
the defendant, or upon his attorney of record, W. A. 
Denson, such service to be made by the attorneys for 
the attorneys for the complainant, and that this order 
take effect from the time of such service. 

All other matters are reserved. 

This the 26th day of May, 1916. 

(Signed) W. I. GBUBB, 

Judge. 

303 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 



STATES FOR EE NOR! IERN 



DISTRICT OF ALABAMA, 



SOU IERN DIVISION 




IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 
R. R, ROCHELLE, Respondent. 



I 

This cause coming on for final trial, and being con- 
sidered by the court, it is accordingly Ordered, De- 
creed and Adjudged by the court, in accordance with 
the agreement on file and with the testimony heard 
in said cause, that the temporary injunction hereto 
fore issued in this cause be and the same hereby is 
now made permanent; and that the said defendant 
be and he hereby is forever and perpetually en- 
joined from the acts forbidden in the preliminary 
injunction. 

It is Further Ordered, Adjudged and Decreed that 
all costs be and the same hereby are taxed against 
the defendant. 

This the 28th day of September, 1916. 

W. I. GBUBB, 

Judge. 



304 



IN THE DISTRICT COURT 
OF THE UNITED STATES 

FOR THE WESTERN 
DISTRICT OF MISSOURI 



APRIL 5, 1922 



THE COCA-COLA COMPANY 

v. 

E. E. MURPHY, Trading as THE STAR BOTTLING 

WORKS. 



CANDLER, THOMSON & HIRSCH, Atlanta, Georgia, 
MANN & MANN, Springfield, Missouri, 
For Complainants. 



305 



THE COCA-COLA COMPANY 



IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT 

OF MISSOURI 



No. 26 



THE COCA-COLA COMPANY, Complainant, 

v. 

R. E. MURPHY, Trading as THE STAR BOTTLING 
WORKS, Defendant. 



FINAL DECREE. 

The within case coming on for hearing and by and 
with the consent of all parties of their counsel, it is 
considered, ordered and decreed: 

First: That the court has jurisdiction of the sub- 
ject matter and of the parties to this suit. 

Second: That the word Coca-Cola is a valid trade- 
mark of which plaintiff is the sole owner. 

Third: That plaintiff alone, is entitled to use the 
trade-mark Coca-Cola and that its goods alone can 
lawfully be sold under that name. 

Fourth: That plaintiff being the ow T ner of the 
trade-mark Coca-Cola, duly registered its said trade- 
mark under and in conformity with the Act of Con- 
gress approved March 3, 1881, entitled: "An Act to 
authorize the registration of trade-marks and to pro- 
tect the same," and under the Act of Congress of 
February 20, 1905, entitled: "An Act to authorize 
the registration of trade-marks used in commerce with 
foreign nations or among the several states or with 
Indian Tribes and to protect the same," that said 

306 



v. E. E. MURPHY 



registrations numbered 22,406 and 47,189, respectively, 
are valid and subsisting, and are the sole property 
of the plaintiff, and that the plaintiff is entitled to 
the rights and remedies provided in said statutes. 

Fifth: That the words "Star Coke," "Coke" and 
"Cola" adopted and used by the defendant, are, and 
each of them is, an inf ringment of the plaintiff's said 
trade-mark Coca-Cola and is a copy or colorable imita- 
tion thereof, within the meaning of the Act of Con- 
gress of February 20, 1905; and that the defendant 
has affixed said copy or colorable imitation to mer- 
chandise of substantially the same descriptive proper- 
ties as those set forth in plaintiff's said registrations 
and to labels, signs, prints, packages, wrappers and 
receptacles intended to be used and used upon and in 
connection with the sale of merchandise of substan- 
tially the same descriptive properties as those set 
forth in such registrations and has used such copy or 
colorable imitation contrary to the rights of plaintiff 
herein; and that the defendant thereby has infringed 
the plaintiff's said registered trade-mark. 

Sixth: That the defendant has used and applied to 
packages containing its said product, decorated 
crowns with a color scheme and script lettering 
thereon so nearly the same as the distinctive crowns 
and script lettering of the plaintiff as to be substan- 
tially indistinguishable therefrom, and that % the de- 
fendant thereby has competed unfairly with the 
plaintiff. 

Seventh: That the defendant, R. E. Murphy, 
trading as The Star Bottling Works, his agents, serv- 
ants, employes, attorneys, licensees, transferees and 
assigns and each and all thereof and all acting by or 
under his authority be and are each and all per- 
petually enjoined and restrained from using or em- 
ploying or authorizing the use or employment, in con- 
nection with the manufacture, advertisement, offering 
for sale, or sale of any beverage or ingredient thereof, 
of plaintiff's trade-mark Coca-Cola, or any like word, 

307 



THE COCA-COLA COMPANY 



or the colorable imitation thereof, "Star Coke," 
"Coke," or "Cola," or any like word; from using or 
employing or authorizing the use or employment of 
designs, devices, script lettering, crowns identical 
with or like the designs, devices, script lettering, or 
crowns of the plaintiff, or the designs, devices, script 
lettering, or crowns used by the defendant and re- 
ferred to in the bill of complaint herein, and further 
from doing any act or thing or using any name or 
names, devices, artifice or contrivance which may be 
calculated or likely to cause any product not the 
plaintiff's to be sold as and for the product of the 
plaintiff, and that writs of injunction accordingly 
issue forthwith. 

Eighth: That all labels, signs, prints, packages, 
wrappers, or receptacles in the possession of the de- 
fendant bearing the colorable imitation "Star Coke," 
"Coke," or "Cola," of the plaintiff's registered 
trade-mark Coca-Cola be forthwith delivered up for 
destruction, provided, however, that the bottles of 
the defendant with the name blown therein may be 
used in the sale of drinks not resembling that of the 
plaintiff where the name Coca-Cola is removed or hid- 
den and the name of the contents of said bottles 
plainly shown on same. 

Tenth: That defendant pay the costs of this suit to 
be taxecj, including all costs in this court, and that 
upon taxation plaintiff have execution therefor. 

This 5th day of April, 1922. 

(Sd). AREA S. VAN VALKENBURGH, 

District Judge. 
Consented to : 

(Sd) Mann & Mann and Candlet, Thomson & 
Hirsch, for plaintiff. 

(Sd) E. E. Murphy, defendant. 



308 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN 

DISTRICT OF LOUISIANA 



No. 13,405 IN EQUITY 



THE COCA-COLA COMPANY 

v. 
A. L. PILSBURY, JR. 



This cause came on to be heard this day, when: 

Considering the joint motion of counsel for com- 
plainant and for defendant, and the stipulation and 
agreement therein, all on file herein, and in accord- 
ance therewith: 

It Is Ordered, Adjudged and Decreed: That the 
preliminary injunction herein issued in favor of com- 
plainant and against the defendant, enjoining com- 
plainant "from manufacturing, preparing, selling or 
supplying others for sale, any drink, syrup or extract 
under the mark, symbol or name of 'Ko-Kola,' or 
other device identical with or like Coca-Cola, or from 
using any other name or device calculated to induce 
the public to believe that the drink, syrup or extract 
of defendant is the same as Coca-Cola, be maintained 
and perpetuated; and that the demand of your orator 
for damages herein be dismissed as having been com- 
promised; and that the appointment of the Master 
herein, to hear evidence, etc., be revoked, as no longer 
necessary. 

Decree rendered and signed in Open Court this 
(5th) Fifth day of January, A. D. 1907. 

(Signed) CHARLES PARLANGE, 

U. S. Judge. 

Candler, Thomson & Eirsch, Atlanta, Ga,, 
John May, New Orleans, La., for complainant. 

309 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN 

DISTRICT OF LOUISIANA 



No. 13406 IN EQUITY 



THE COCA-COLA COMPANY 

v. 
THE AMERICAN BOTTLING WORKS. 



This cause came on to be heard, this day, when: 
Considering' the joint motion of counsel for com- 
plainant and for defendant, and the stipulation and 
agreement therein, all on file herein, and in accord- 
Mi ice therewith: 

// Is Ordered, Adjudged and Decreed, That the 
preliminary injunction herein issued in favor of com- 
plainant and against the defendant, enjoining the 
complainant 

"from any further use of the mark or symbol 
'Ko-Kola,' or any bottled drink similar to the bot- 
tled drink known as 'Coca-Cola/ manufactured 
by the complainant, as described in the Bill of 
Complaint herein, or from in any other manner, 
infringing upon the trade-mark or trade rights of 
the complainant" 

be maintained and perpetuated; and that the demand 
of your orator for damages be dismissed, as having 
been compromised; and that the appointment of the 
Master herein, to hear evidence, etc., be revoked as 
no longer necessary. 

Decree rendered and signed in Open Court on 
this (5th) fifth day of January, A. D. 1907. 

(Signed) CHARLES PARLANGE, 

U. S. Judge. 

310 



v. THE AMERICAN BOTTLING WORKS 

CLERK 's OFFICE : 

I Certify the foregoing to be a true copy from the 
original record of this office. 

Witness my hand and seal of said Court, at the 
City of New Orleans, this 10th day of September, 
1913. 

H. J. CARTER, Clerk, 
(Sd.) By W. B. DONOVAN 

Deputy Clerk. 

Candler, Thomson & Hdrsch, Atlanta, Ga., 
John May, New Orleans, La., 

For Complainant. 



311 



THE COCA-COLA COMPANY 



UNITED STATES DISTRICT COURT, 

EASTERN DISTRICT OF LOUISIANA, 

NEW ORLEANS DIVISION 

(Late Circuit) 



No. 13406 



THE COCA-COLA COMPANY 

v. 
THE AMERICAN BOTTLING WORKS. 

I 



Whereas, the plaintiff herein has instituted pro- 
ceedings against the defendant to have them de- 
clared to be in contempt of court by reason of the 
fact that they were bottling and selling the drink 
known as "Gay-Ola" in violation of the injunction 
and decree rendered herein on the 5th day of Jan- 
uary, 1907; and, whereas, defendant was not prior 
to this date aware that said action on their part was 
in contravention of plaintiff's rights, but now recog- 
nizes that the bottling and selling of said "Gay-Ola" 
was in violation of said injunction and decree, and 
a contempt of court, 

Now, therefore, it is hereby stipulated and agreed 
between the parties hereto through their undersigned 
counsel that defendant will immediately cease and 
never hereafter again engage in under any circum- 
stances the bottling and selling of the drink known 
as "Gay-Ola. 



312 



? j 



IN THE DISTRICT COURT 

OF THE UNITED STATES 

FOR THE SOUTHERN 

DISTRICT OF FLORIDA 

IN CHANCERY 



MARCH 3, 1913 



THE COCA-COLA COMPANY 

v. 

LOUIS W. HANNE and FREDERICK H. HANNE, 
doing business as HANNE BROTHERS, a 
Partnership. 



CANDLER, THOMSON & HIRSCH, Atlanta, Georgia, 
COOPEE & COOPEK, Jacksonville, Florida, 
For Complainant. 



313 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE SOUTHERN 

DISTRICT OF FLORIDA, 

IN CHANCERY 



THE COCA-COLA COMPANY, 

v. 

LOUIS W. HANNE and FREDERICK H. HANNE, 
doing business as HANNE BROTHERS, a 
Partnership. 



Whereas, a stipulation and agreement of com- 
plainant and defendants has been nled in the above- 
entitled cause, whereby it is stipulated and agreed 
by and between said complainant and defendants that 
a decree shall be rendered by the Court in said cause 
in accordance with the allegations and prayers of 
the bill of complaint therein, and that a perpetual 
injunction be issued against the defendants as prayed 
in said bill of complaint, and that defendants shall 
pay the costs that shall be taxed in said suit, but 
that there shall be no decree against the defendants 
for any accounting for profits from the manufacture 
or sale of the product designated as " Hanne's Coca 
& Kola," or for any damages to complainant in the 
premises, for manufacture or sale of said Hanne's 
Coca & Kola prior to this suit. 

Now, it is therefore considered, ordered, adjudged 
and decreed that the defendants, and all of their 
associates, salesmen, servants, clerks, agents and 
workmen, employes and attorneys, and each and every 
person claiming under them or by or through said 
defendants, or in any way connected with their busi- 
ness, be and they are hereby perpetually enjoined 
and restrained: 

314 



v. LOUIS W. HANNE, etc. 



1. From in any way or manner making or selling 
a product under the name of "Hanne's Coca & Kola," 
or in any way so as to pass off the same as and 
for the product of said complainant, or in any such 
way as to enable others to pass off the same as and 
for the product of complainant. 

2. From using in any form whatsoever the name 
"Hanne's Coca & Kola," or any name that is a col- 
orable imitation of the name Coca-Cola, as applied 
to a soft drink. 

3. From using any name sufficiently similar to the 
name Coca-Cola as applied to any soft drink as to 
cause deceit. 

4. From advising, conspiring or telling retailers, 
or any person selling a soft drink that the said drink 
of said defendants can be sold as genuine Coca-Cola, 
or can be substituted therefor. 

5. From marketing its product in the same iden- 
tical color which has for so long been used by said 
complainant in marketing its product. 

6. From suggesting, directly or indirectly, to re- 
tail dealers or anyone, the substitution of any bev- 
erage not made by said complainant as and for Coca- 
Cola when Coca-Cola is called for, and from placing 
in the hands of retail dealers any drink so manu- 
factured, packed, marked, made or otherwise mar- 
keted in such manner as to cause the substitution 
thereof as and for complainant's said product, and 
which may be in the hands of unscrupulous dealers 
an instrument of fraud, and from any other act in 
the premises in any manner or form calculated to 
deceive. 

It is further ordered, adjudged a / ^^d decreed that 
complainant has and have the sole and exclusive 
right to the use of the trade-mark or trade-name, 
Coca-Cola, in connection with a drink or beverage. 

It is further ordered, adjudged and decreed, as 
stipulated and agreed in said stipulation and 

315 



THE COCA-COLA COMPANY 



agreement by and between complainant and defend- 
ants, that defendants shall pay the costs in said suit. 
Done and Ordered this 3rd day of March, A. D. 
1913. 

(Signed) JOHN M. CHENEY, Judge. 



316 



IN THE DISTRICT COURT 

OF THE UNITED STATES 

FOR THE DISTRICT OF 

KANSAS 

SECOND DIVISION 



THE COCA-COLA COMPANY 

v. 
THE COX BOTTLING COMPANY. 



CANDLER, THOMSON & HIRSCH, Atlanta, Georgia, 
HOLMES, YANKEY & HOLMES, Wichita, Kansas, 

For Complainant. 






317 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE DISTRICT 

OF KANSAS 



IN EQUITY 



THE COCA-COLA COMPANY, a corporation, 
Complainant, 

v. 

THE COX BOTTLING COMPANY, a corporation, 

Defendant. 



DECREE. 



I 



This cause came on to be heard on this 9th day of 
October, 1912, upon the pleadings and upon the stipu- 
lations of parties and from the stipulation as filed, 
the court finds that the plaintiff is entitled to the 
relief prayed for in its bill of complaint, as to the 
injunction demanded, and that as to the matter of 
damages suffered by the plaintiff, the court finds 
that the same have been adjudged and settled be- 
tween the parties hereto. 

It is, therefore, ordered, adjudged and decreed that 
the defendant, the Cox Bottling Company, its agents 
and servants be and they are hereby perpetually en- 
joined and restrained from in any way or manner 
making or selling its products of soft drinks in such 
a way as to pass off the same as and for the product 
"Coca-Cola" and from using in any way whatsoever 
the name "Co Kola" as applied to any drink or from 
using any name which is sufficiently similar to the 
name "Coca-Cola" as applied to any drink as to 
cause deception and deceit, and the defendant, its 

318 



v. THE COX BOTTLING COMPANY 

agents and servants are hereby perpetually enjoined 
and restrained from using, purchasing or procuring 
any mark, bottle, crown, stamp or label having printed 
or stamped thereon the words ''Co Kola' 7 or any 
other word sufficiently similar to the words " Coca- 
Cola " as to cause deception or deceit. 

It is further ordered and adjudged that the de- 
fendant pay all costs of this action to be taxed by 
the clerk. 

JOHN C. POLLOCK, 

Judge. 



319 



IN THE DISTRICT COURT 

OF THE UNITED STATES 

FOR THE DISTRICT OF 

KANSAS 

SECOND DIVISION 



IN EQUITY JANUARY 22, 1913 



THE COCA-COLA COMPANY, Complainant, 

v. 

EALPH E. LIGHTNER and WILLIAM H. 
HAZELTON, partners doing business 

under the name and style of 
ALLEN BOTTLING COMPANY, Defendants. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 
HOLMES, YANKEY & HOLMES, Wichita, Kansas, 
For Oomplainant. 



320 




IN EQUITY 



THE COCA-COLA COMPANY, a corporation, 
Complainant, 

v. 

RALPH E. LIGHTNER and WILLIAM H. 
HAZELTON, partners doing business 

under the name and style of 
ALLEN BOTTLING COMPANY, Defendants. 



DECREE. 

This cause comes on to be heard on this 22nd day 
of January, 1913, upon the pleadings and upon the 
default of the defendants for answer and from the 
examination of the Bill of Complaint herein filed, 
the Court finds that the complainant is entitled to the 
relief prayed for in its Bill of Complaint, as to the 
injunction demanded, and that as to the matter of 
damages suffered by the complainant, the court finds 
that the said matter should be referred to a Special 
Master to hear the evidence and to ascertain the 
amount of damages suffered by the complainant by 
reason of the acts complained of against the de- 
fendants. 

It is, therefore, ordered, adjudged and decreed 
that "the defendants Ralph E. Lightner and William 
H. Hazelton, partners doing business under the name 
and style of Allen Bottling Company, their asso- 
ciates, agents, employes and servants be, and they 
are hereby perpetually enjoined and restrained from 

321 



THE COCA-COLA COMPANY 



in any way or manner making or selling their prod- 
ucts of soft drinks in such a way as to pass off the 
same as and for the product "Coca-Cola" and from 
using in any way whatsoever the name "Coke-Ola" 
as applied to any drink or syrup used in the prepara- 
tion of any drink, or from using any name which is 
sufficiently similar to the name "Coca-Cola" as ap- 
plied to any drink or syrup which is used in the prep- 
aration of any drink as to cause deception and deceit, 
and the defendants, their agents, servants and em- 
ployes are hereby perpetually enjoined and restrained 
from using, purchasing or procuring any mark, bottle, 
crown, stopper, stamp or label having printed or 
stamped thereon the words "Coke-Ola" or any other 
word sufficiently similar to the words "Coca-Cola" as 
to cause deception and deceit, and that the defend- 
ants, their agents, servants and dmployes are hereby 
perpetually enjoined and restrained from using any 
bottles for the purpose of containing any drinks upon 
which bottles there shall be stamped or blown into 
glass the words "Coca-Cola." 

It is further ordered and adjudged that the de- 
fendants pay all the costs of this action up to the 
time of and including the entering of this decree, 
which costs are to be taxed by the clerk. 

It is further ordered that the appointment of a 
Special Master to hear and ascertain the damages, if 
any suffered, by the complainant which shall be made 
hereafter upon the application of the parties hereto. 

JOHN C. POLLOCK, 



Judge. 



322 



IN THE CIRCUIT COURT 

OF THE UNITED STATES 

FOR THE NORTHERN 

DISTRICT OF ILLINOIS 

EASTERN DIVISION 



IN EQUITY OCTOBER 9, 1908 



THE COCA-COLA COMPANY 

v. 

MAX JACOBS and HAERY RACUSIN and IKE 
MICHELSON, trading as the WESTERN BOT- 
TLING WORKS. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 
JOHN W. HILL, Chicago, Illinois, 
For Complainant. 



323 



THE COCA-COLA COMPANY 



UNITED STATES CIRCUIT COURT, 

NORTHERN DISTRICT OF ILLINOIS, 

EASTERN DIVISION 



IN EQUITY 



Present: HON. WM. H. SEAMAN, Circuit Judge. 



COCA-COLA COMPANY, a Corporation, 
Complainant, 

v. 

MAX JACOBS and HARRY EACUSIN and IKE 
MICHELSON, trading as THE WESTERN 
BOTTLING WORKS, Defendants. 



DECREE. 

This cause coming on to be heard it is, by consent 
of the parties, hereby adjudged, ordered and decreed 
as follows: 

First: That Coca-Cola Company, the complainant 
herein, is the sole and exclusive owner of a secret 
process for the manufacture of a certain beverage 
which ever since complainant's incorporation and for 
a long time previously by its predecessor, has been 
and is termed and known by the trade name of 
" Coca-Cola "; that said beverage has been generally 
and exclusively sold throughout the United States, 
including the State of Illinois, by its said trade name 
of "Coca-Cola," and has been extensively and ex- 
clusively advertised by such name, whereby said bev- 
erage has come to be known to the public by its said 
trade name "Coca-Cola"; that by virtue of its char- 
acter and its long continued and exclusive use by the 
complainant and its predecessor in business, the said 

324 



v. MAX JACOBS, et al. 



name " Coca-Cola " has come to signify in the trade 
that the beverage bearing said name is the product 
of the complainant; that the complainant and its 
predecessor by the adoption of and long continued 
use of the word "Coca-Cola" to designate the said 
beverage manufactured and sold by it and the regis- 
tration of the said fanciful compounded word " Coca- 
Cola" in the United States Patent Office, as a trade- 
mark to designate its goods on January 31, 1893, cer- 
tificate No. 22,406, and the re-registration in the 
United States Patent Office of the same compounded 
word on October 31, 1905, certificate No. 47,189, be- 
came the sole and exclusive owner of the use of said 
compounded words "Coca-Cola" as a trade-mark to 
designate the said beverage manufactured and sold 
by it and for a long time known to the trade by the 
trade name "Coca-Cola." 

That the defendants, Harry Racusin and Ike 
Michelson, trading as the Western Bottling Works, 
have heretofore marketed a beverage under the name 
"Kos-Kola" of the same general color and appear- 
ance as complainant's "Coca-Cola," placing the same 
in bottles of the same general size and form and 
sealed with a metal cap, all closely resembling in ap- 
pearance the bottles and the bottled beverage "Coca- 
Cola," as placed upon the market by the authorized 
bottlers of the complainant; that the defendant, Max 
Jacobs, through his employes has sold said so-called 
"Kos-Kola" in various theaters and other places in 
Chicago where he has a concession, for sale of articles 
of this kind, both in bottles and in glasses; that in 
offering said spurious beverage "Kos-Kola" for sale 
in the bottles and in glasses, as aforesaid, the ven- 
ders, the employes of said Max Jacobs, call and an- 
nounce the sale of "Kos-Cola," and other like terms, 
so closely resembling in sound the words "Coca-Cola" 
as to lead purchasers to believe they are purchasing 
the complainant's said beverage, "Coca-Cola." 

VII. The complainant has sufficient interest in the 

325 



THE COCA-COLA COMPANY 



subject matter of the suit to maintain it. It retains 
title to the trade-mark and is directly interested in 
the infringement of it with reference even to bottled 
goods, since the diminution of sales, by infringement, 
of the bottlers reflects on its sales to the bottlers. 

VIII. The Act of February 20, 1905, does not seem 
to me to be open to the constitutional objections as- 
serted against it by respondents. 

IX. The probability of complainant's ultimate suc- 
cess seems to me great enough to justify the issue of 
the temporary injunction. Allowance of damage for 
infringement is an inadequate remedy to the plain- 
tiff because of the impossibility of any accurate meas- 
urement of its accrued damages and the uncompcu- 
sated inroad on its good will by continued use of de- 
fendant's mark. The same may be said of the defend- 
ant's right to indemnify an injunction bond. How- 
ever, the defendant can continue its business, using 
a different mark or none at all, so that there will not 
be a total interruption of its business, and the trial 
of the cause can be speeded to final decree by any rea- 
sonable order desired by defendant, and all reasonable 
protections given it by requiring the execution of a 
proper injunction bond. I think the greater prob- 
ability of injury, not capable of being indemnified 
against, is with the denial of the temporary injunc- 
tion. 

It is therefore further adjudged and decreed, that 
the defendants, Max Jacobs and also Harry Racusin 
and Ike Michelson, trading as the Western Bottling 
Works, they and each of them and each of their 
agents, attorneys, workmen, employes and represent- 
atives are hereby enjoined from directly or indirectly 
manufacturing, bottling or selling or offering for 
sale, proclaiming or announcing for sale any bever- 
age whether bottled or in the glass as "Coca-Cola", 
"Kos-Kola", "Cold-Cola", or by any other name, 
term or expression so similar in sound or in appear- 
ance as to lead purchasers to believe that they are 

326 



v. MAX JACOBS, et al. 



purchasing the beverage known as " Coca-Cola", 
manufactured by and the product of the complainant 
herein or from in any manner infringing upon the 
trade name or the trade rights of the complainant, 
and diverting or seeking to divert to them, or either 
of them, sales that would otherwise come to the com- 
plainant and its representatives or aid said defend- 
ants or either of them in consummating sales by in- 
ducing purchasers to believe that they are purchas- 
ing the complainant's goods. 

The complainant having admitted in open court 
that the defendants have made full settlement and 
satisfaction for all damages, savings and profits on 
account of their said infringement of said trade-mark 
and their unfair competition with complainant's busi- 
ness in the manufacture and sale of said beverage, 
and also of all costs on account of this litigation, a 
reference to a Master is waived by the complainant 
herein and this decree is hereby made perpetual and 
final without costs from either party to the other. 

NORTHERN DISTRICT OF ILLINOIS. } _ 

> oo. 

EASTERN DIVISION. j 

I, H. S. Stoddard, Clerk of the Circuit Court of the 
United States, for said Northern District of Illinois, 
do hereby certify the above and foregoing to be a 
true and complete copy of the Decree entered of rec- 
ord in said Court on the ninth day of October, A. D. 
1908, in the cause wherein Coca-Cola Company, a cor- 
poration, is the complainant and Max Jacobs et al. 
are the defendants, as the same appears from the orig- 
inal records of said court, now remaining in my cus- 
tody and control. 

In Testimony Whereof, I have hereunto set my 
hand and affixed the seal of said Court at my office in 

327 



THE COCA-COLA COMPANY 



Chicago, in said District, this ninth day of October, 
A. D. 1908. 

H. S. STODDARD, 

(SEAL) Clerk. 

(By) ARTHUR E. CLAUSSEN, 

Deputy. 



328 



IN THEi DISTRICT COURT 
OF THE UNITED STATES 

FOR THE NORTHERN 
DISTRICT OF ALABAMA 

SOUTHERN DIVISION 



IN EQUITY JULY 11, 1913 



THE COCA-COLA COMPANY, Complainant, 

v. 
NATIONAL SYRUP COMPANY, Respondent. 



CANDLER, THOMSON & HIRSCH, Atlanta, Georgia, 
PERCY, BENNERS & BURR, Birmingham, Alabama, 
For Complainant. 



329 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE NORTHERN DISTRICT 

OF ALABAMA, SOUTHERN DIVISION 



IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 
NATIONAL SYRUP COMPANY, Respondent. 



This being the day heretofore sdt for the hearing of 
the petition of complainant for a writ of injunction 
as in said petition set forth, and said parties being 
now in open court, 

It is ordered, adjudged and decreed by the Court 
that the Complainant is entitled to the relief prayed 
for. 

It is further ordered, adjudged and decreed by 
the Court that the respondent, National Syrup Com- 
pany, its associates and representatives, be and they 
hereby are perpetually enjoined and restrained from 
in any way or manner making or selling its products 
in such way as to pass off the same for and as the 
product of complainant; and they be and hereby are 
restrained from using in any form whatever the name 
"Cafa Cola", or the words "Coca" or "Cola" as ap- 
plied to any drink or syrup from which drinks are 
made; or from using said words upon the caps of 
bottles in which said drinks might be bottled; or in 
any other advertising way or for any other purpose 
applicable to the manufacture and sale of a drink. 

And respondent consenting to the rendering of this 
decree in open court, it is further ordered, adjudged 

330 



v. NATIONAL SYEUP COMPANY 

and decreed that this injunction be and the same 
hereby is made permanent; and that the complainant 
is not entitled to any damages on account of the 
former use of said name; and that this decree shall 
stand as a final decree in said cause; the costs of said 
suit to be taxed against the complainant, for which 
execution may issue. 
This llth day of July, 1913. 

WM. I. GrRUBB, 

Judge. 



331 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE DISTRICT 
OF KENTUCKY 



THE COCA-COLA COMPANY, Complainant, 

v. 

FRANK ROTELLA, doing business under the name 
of the ROTELLA BOTTLING COMPANY; 
CHARLEY ZALFONTA, doing business as the 
ANSONIA CLUB; G. MAZZA, ISAAC LIEB- 
ERMANN and LOUIE LIEBERMANN, doing 
business under the name of LIEBERMANN 
BROTHERS, and L. B. BOTTLERS; JOHN 
SPANG, HERMAN LEVIN, JOHN LEVIN and 
NATHAN LEVIN, doing business as H. LEVIN 
& SONS, BOTTLERS; GEORGE H. HORN- 
ING; ALEXANDER BINSTOCK; JOHN GASH 
and RICHARD LAFKOWITZ (the name " John" 
and "Richard" being fictitious, defendants' real 
name being unknown to complainant), doing busi- 
ness under the name of GASH & LAFKOWITZ; 
JULIUS JOACHIMSTAHL; ANDREW DEICH 
(the name "Andrew" being fictitious, defendant's 
real name being unknown to complainant) ; and 
EDWARD MENDEL (the name "Edward" be- 
ing fictitious, defendant's real name being un- 
known to complainant), Defendants. 



This Cause coming on to be heard on complain- 
ant's motion for a final decree, the complainant ap- 
pearing by its solicitors Bedle & Kellogg, of Jersey 
City, New Jersey, Harry D. Nims and Edward D. 
Brown, of New York City, and the defendant appear- 
ing by their solicitors, Grosvenor Nicholas, Esq., of the 
City of New York ; and it appearing to the court that 
the issue involved herein has been settled and 
agreed upon by the parties hereto, and the defendants 

332 



v. FRANK EOTELLA, et al. 



agreeing to consent to the entry of a final decree in 
the form following: 

Now, on motion of Frederick W. Kellogg and 
Harry D. Nims of Counsel for the complainant, it is 

Ordered, Adjudged and Decreed that the defend- 
ants Frank Rotella, Charles Zalfonta and C. Mazza 
be and they hereby are perpetually enjoined and 
restrained, 

1. From making, concocting or compounding any 
syrup or substance adopted to be used in the prepara- 
tion of a beverage with the intent to use the name 
for making such a beverage to be dispensed as and 
for Coca-Cola the product of the complainant. 

2. From selling any syrup adopted to be used in 
the preparation of a beverage having the character- 
istics of Coca-Cola with the intent and knowledge or 
even suggestion that the same be used for preparing 
a beverage to be dispensed as and for said Coca- 
Cola. 

3. From selling any beverage under the name of 
"Koka-Nova," 

4. From manufacturing, offering for sale or sell- 
ing any beverage other than Coca-Cola so packed or 
dressed as to be likely to be mistaken for or con- 
fused with Coca-Cola, the product of the complainant. 

5. From selling or exposing for sale any beverage 
other than Coca-Cola and having the peculiar and 
distinctive color, appearance and flavor of Coca-Cola 
or any such near approach thereto as may be likely to 
deceive purchasers without such differentiation as 
will effectually distinguish it from Coca-Cola the 
product of the complainant. 

6. From any use whatever in the sale of any soft 
drink of the name Coca-Cola or of the script, label, 
or cap long used by the complainant in the sale of its 
product. 

That no accounting of profits and damages is or- 
dered from the defendants Frank Rotella, Charley 

333 



THE COCA-COLA COMPANY 



Zalfonta or C. Mazza, this injunction being given by 
them in full satisfaction of damages and profits 
and costs. 

(Signed) JOHN RELLSTAB, 

U. S. District Judge. 
I consent to the 
entry of the foregoing decree : 
Grosvenor Nicholas, 

Solicitor for Defendants 
Eotella, Zalfonta & Mazza. 
Francesco Eotella 

Witness: Maurice J. Moore. 



(The foregoing decree was taken against each of the 
defendants named in the above stated case, separate 
decrees being taken in each case. However, the above 
is a correct copy of all decrees taken, each being 
dated April 21, 1913.) 

Candler, Thomson & H-irsch, Atlanta, Ga., 
Frederick W. Kellogg, 
Harry D. Nims, 

Solicitors and of Counsel for the 
Complainant. 



334 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE NORTHERN DISTRICT 

OF ALABAMA, SOUTHERN DIVISION 



IN EQUITY 

THE COCA-COLA COMPANY 

v. 
CROWN CITY BOTTLING & SYRUP COMPANY 



TEMPORARY DECREE. 

This cause coming on to be heard upon the petition 
of the complainant for a temporary injunction, and 
both parties being present in Court represented by 
counsel, it is now ordered, adjudged and decreed by 
the Court that the respondent herein, Crown City 
Bottling and Syrup Company, and all of its as- 
sociates, salesmen, servants, clerks, agents, workmen, 
employes and persons claiming or holding under or 
through said respondent be and they hereby are en- 
joined and restrained from bottling or selling in bot- 
tles, or in using in any form whatsoever for the 
purpose of selling their product, bottles upon which 
the words " Coca-Cola" are blown or printed. 

It Is Further Ordered, Adjudged and Decreed by 
the court that notice of this injunction be given to 
respondent by serving upon its attorney of record a 
copy of this order. 

It Is Further Ordered, Adjudged and Decreed by 
the Court that the other questions raised in said peti- 
tion for a temporary injunction be passed until Tues- 
day, July 23rd, 1912, at ten o'clock, A. M. 

This the 16th day of July, 1912. 

(Signed) W. I. GRUBB, 

Judge of the District Court. 

335 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE NORTHERN DISTRICT 

OF ALABAMA, SOUTHERN DIVISION 



IN EQUITY 



THE COCA-COLA COMPANY 

v. 
CROWN CITY BOTTLING & SYRUP COMPANY 



FINAL DECREE. 

This cause coming on for final hearing, and being 
regularly called, it is ordered, adjudged and decreed 
by the court that the temporary injunction hereto- 
fore rendered in said cause be and the same is hereby 
made in all respects permanent. 

It Is Further Ordered, Adjudged and Decreed that 
the complainant has in open court remitted its claim 
for any damages. 

It Is Further Ordered, Adjudged and Decreed that 
all the costs of this proceeding be taxed against 
respondent, for which let proper execution issue. 

(Signed) W. I. GRUBB, Judge. 

Candler, Thomson & Hirsch, Atlanta, Ga., 
Percy, Benners & Burr, Birmingham, Ala. 

For Complainant. 



336 




No. 30,595 IN EQUITY 



Monday, December 11, 1911. 

Present: HONORABLE CHRISTIAN C. KOHLSAAT, Circuit 
Judge. 



THE COCA-COLA COMPANY 

v. 

FEANK I. WOLGAST, KALPH ELDON BIGELOW, 
co-partners doing business in the name of Wol- 
gast & Bigelow. 



This cause coming on for final hearing upon the 
bill of complaint and the exhibits thereto and the an- 
swers of the defendants, and the defendants through 
their solicitor, William F. Bigelow, being present in 
open court and in open court consenting to this de- 
cree : 

It is by the Court Ordered, Adjudged and Decreed 
that the defendants, Frank E. Wolgast and Ealph 
Eldon Bigelow, and each of them, their respective at- 
torneys, servants, agents, associates, workmen, em- 
ployes, representatives and all claiming or holding 
under or through them, be, and they are hereby per- 
petually enjoined and restrained from in any way or 
manner making or selling or attempting to make or 
sell their product as described in the bill of complaint 
in such a way as to pass for the same as and for the 
product of the complainant as described in said bill 
of complaint and from using in any form whatsoever, 

337 



THE COCA-COLA COMPANY 



the name, Coca-Cola or Coca-Kola, either alone or 
in association with any other words and from any 
acts in the premises in any manner or form calculated 
to deceive any person into believing the product of 
the defendants to be the product of the complainant. 

It is further Ordered, Adjudged and Decreed that 
the defendants deliver up to said complainant any 
and all labels in the possession of said defendants 
which labels bear the name of Coca-Cola or Coca- 
Kola alone or in association with any other words. 
The complainant in open court waives all right to re- 
cover damages for or to compel the defendants to 
account for profits derived from any transactions of 
the defendants occurring prior to the entry of the re- 
straining order of December 4th, 1911. 

It is further Ordered that no costs herein shall be 
taxed against the defendants. ) 

Arid the Court further Orders that a writ of per- 
manent injunction issue to the marshal of this court 
to be by him served upon the defendants, Frank E. 
Wolgast and Ralph Eldon Bigelow, returnable ac- 
cording to law, enjoining and restraining the defend- 
ants, Frank R. Wolgast and Ralph Eldon Bigelow, 
and each of them and their respective attorneys, serv- 
ants, agents, associates, workmen, employes and rep- 
resentatives and all claiming or holding under or 
through them as in this final decree set forth. 

Enter Dec. 11, 1911. 

KOHLSAAT, 

Judge. 
0. K. 

W. F. Bigeloiv, Solicitor for Defendants. 

Candler, Thomson & Hirsch, Atlanta, Ga.; Ringer, 
Wilhartz & Louer, Chicago, 111.; Pam & Hurd, Chi- 
cago, 111., for Complainant. 



338 



v. FRANK I. WOLGAST, etc. 



IN THE DISTRICT COURT OF THE UNITED 

STATES OF AMERICA, FOR THE 

NORTHERN DISTRICT OF 

ILLINOIS, EASTERN 

DIVISION 



I, John H. B. Jamar, Clerk of the District Court of 
the United States of America for the Northern Dis- 
trict of Illinois, do hereby certify the above and fore- 
going to be a true and correct copy of Final Decree 
made and entered in said Court on the llth day of 
December, A. D. 1911, as fully as the same appears 
of record in my office. 

In Testimony Whereof, I have hereunto set my 
hand and affixed the seal of said Court at my office 
in Chicago, in said District, this 22nd day of August, 
A. D. 1922. 

JOHN H. B. JAMAR, Clerk. 



339 



THE COCA-COLA COMPANY 



IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT 

OF ILLINOIS, NORTHERN 

DIVISION 



Tuesday, October 3, A. D. 1916 



Present: HONORABLE J. OTIS HUMPHREY, Judge. 



THE COCA-COLA COMPANY, Plaintiff, 

v. 

JAMES McMASTER and BONNIE H. DARGES, 

Defendants. 



This cause came on to be heard at this term and 
was argued by counsel and thereupon, upon consid- 
eration thereof and by stipulation and consent of all 
parties, it was Ordered, Adjudged and Decreed as 
follows, viz: 

That the Court has jurisdiction of the subject mat- 
ter and parties hereto. 

That the defendants and each of them, their agents, 
servants, employees, successors and assigns, be and 
they each and all are perpetually enjoined and re- 
strained from using or employing, in connection with 
the manufacture, advertisement, offering for sale or 
sale of any product not the plaintiff's, the word 
"Coca-Cola," or any like word, and from using or 
employing, in connection with the manufacture, ad- 
vertisement, offering for sale or sale of any product not 
the plaintiff's, any bottle or other receptacle bearing 

340 



v. JAMES McMASTER and BONNIE H. BARGES 

or containing in any way, the word "Coca-Cola," 
or any like word, and further from doing act act or 
thing, or using any name or names, bottles or re- 
ceptacles, which may be calculated or likely to in- 
duce the belief that any product, not the plaintiff's 
is the product of the plaintiff, and that a Writ of In- 
junction issue to the above effect. 

That the plaintiff waives an accounting of profits 
and damages in the premises, and that the plaintiff 
do have and recover from the defendants their costs 
and of this proceeding, to be taxed. 

Dated October 3, 1916. 

HUMPHREY, Judge. 

Candler, Thomson & Hirsch, Atlanta, Ga.; Reed <& 
Rogers, Chicago, Illinois, For Plaintiff. 



341 



THE COCA-COLA COMPANY 



IN THE UNITED STATES DISTRICT COURT, 
SOUTHERN DISTRICT OF FLORIDA 



No. 37 EG. R. 25 



THE COCA-COLA COMPANY 

v. 
ANTI-MONOPOLY DRUG STORE. 



This cause coming on to be heard upon the mo- 
tion of plaintiff for a temporary restraining order, 
and the defendant having filed his motion to dis- 
miss the bill of complaint, and the same having been 
argued and submitted, it is ordered, adjudged and 
decreed that said motion to dismiss be and the same 
is hereby denied. 

And said motion for a temporary restraining order 
upon the bill of complaint and the affidavits filed in 
support thereof, having been argued and submitted 
by counsel for respective parties, 

It is ordered, adjudged and decreed, that the said 
defendant, Anti-Monopoly Drug Company, a corpora- 
tion, its attorneys, officers, servants, agents, employes 
and representatives, be and each of them is hereby 
restrained, until the further order of this court, from 
infringing upon the trade-mark "Coca-Cola," and 
the trade rights of the complainant herein, and from 
substituting, passing off, or in any way permitting 
the passing off, of any product, when Coca-Cola is 
called for, that is not the product manufactured, made 
and sold by the complainants in this cause; and from 
applying to any syrup not manufactured by the com- 
plainant the name Coca-Cola; or from applying any 

342 



v. ANTI-MONOPOLY DBUG STQEE. 

other word or words that is a colorable imitation 
thereof; and from using any name, whether nick- 
name or otherwise, sufficiently similar to the name 
Coca-Cola as applied to any drink so as to cause 
misrepresentation or deceit. 

Done and ordered this 23rd day of June, 1914. 

EHYDON M. CALL, Judge. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; R. A. 
Bur ford, Ocala, Florida, For Complainant. 



343 



THE COCA-COLA COMPANY 



IN THE UNITED STATES DISTRICT COURT, 
SOUTHERN DISTRICT OF FLORIDA 



THE COCA-COLA COMPANY, Complainant, 

v. 
ANTI-MONOPOLY DRUG STORE, INC., Defendant. 



FINAL DECREE. 

Be It Remembered, That this cause came on for 
final hearing upon the testimony submitted, and upon 
the stipulation and agreement signed by counsel for 
the respective parties, and filed in said cause, and 
thereupon, after the due consideration, 

It is ordered, adjudged and decreed, as follows, 
to wit: 

1. That the equities of said cause are with the 
complainant, and that the temporary restraining order 
made in said cause on the 23rd day of June, A. D. 
1914, whereby the said defendant, Anti-Monopoly 
Drug Store, Inc., a corporation, its attorneys, offi- 
cers, servants, agents, employes and representatives, 
and each of them, were restrained from infringing 
upon the trade-mark "Coca-Cola," and the trade 
rights of the complainant herein; and from substitut- 
ing, passing off, or in any way permitting the pass- 
ing off, of any product when Coca-Cola is called for, 
that is not the product manufactured, made and sold 
by the complainant in this cause; and from apply- 
ing to any syrup not manufactured by the complain- 
ant the name Coca-Cola; or from applying any word 
or words that is a colorable imitation thereof; and 
from using any name, whether nickname or other- 
wise, sufficiently similar to the name Coca-Cola as 
applied to any drink so as to cause misrepresenta- 
tion or deceit, be and the same is hereby made per- 
manent. 

344 



v. ANTI-MONOPOLY DRUG STORE. 

2. It is further ordered, adjudged and decreed, 
that the said defendant pay the costs on this cause 

taxed by the clerk of this court at 

dollars, for which execution may issue in favor of 
said complainant, The Coca-Cola Company, a cor- 
poration, and against the said defendant, Anti-Mo- 
nopoly Drug Store, Inc., a corporation under the 
laws of the State of Florida. 

Done and ordered in open court at Ocala, Florida, 
on this the 22nd day of January, A. D. 1915. 

(Signed) RHYDON M. CALL, Judge. 



345 



THE COCA-COLA COMPANY 



UNITED STATES DISTRICT COURT, 

EASTERN DISTRICT OF MISSOURI, 

EASTERN DIVISION 



No. 4624 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 
KBUMMENACHEB DRUG COMPANY, Defendant. 



FINAL DECREE. 1 

It appearing to the Court that the parties hereto 
having consented that the preliminary injunction 
heretofore ordered herein may be made perpetual. 

It is Ordered, Adjudged and Decreed that the de- 
fendant, his agents, servants and employes and each 
of them be and they are hereby forever and perpet- 
ually enjoined and restrained: 

(A) From selling and delivering in response 
to calls for Coca-Cola any beverage other than 
that made from the Coca-Cola syrup manu- 
factured by complainant. 

(B) From using any name sufficiently similar 
to Coca-Cola as to cause deceit. 

(C) From selling or exposing for sale any bev- 
erage other than the product of complainant, hav- 
ing the peculiar and distinctive color and appear- 
ance of complainant's product, or any such ap- 
proximation thereof, as may be likely to deceive 
the public, without such differentiation as will ef- 
fectually prevent the passing off of any product 
as and for the product of complainant. 

346 



v. KBUMMENACHER DEUd COMPANY 

It is further adjudged that the plaintiff have and 
recover of said defendant Krummenacher Drug Co. its 
costs herein, to be taxed by the clerk under the direc- 
tion of the Court, and that execution issue therefor. 

Dated at St. Louis, Mo., June 14, 1917. 

DAVID P. DYER, 
Judge. 

The parties hereto hereby consent to the entry of 
the above and foregoing decree. The plaintiff waives 
profits and damages. 

Candler, Thomson & Hirsch, James L. Hopkins, 
Attorneys for Plaintiff. 

J. M. Lashly, Howard G. Cook, Attorneys for De- 
fendant. 



347 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE NORTHERN DISTRICT 

OF ILLINOIS, EASTERN DIVISION 



September 24, 1917 



No. 893 



Present: HONORABLE GEORGE A. CARPENTER, District 
Judge. 

I 



THE COCA-COLA COMPANY, 

v. 
M. THEODOSAKIS. 



This cause coming on for further hearing and it 
appearing to the court that the defendant was duly 
served with process on the 12th day of July, 1917, 
and filed no answer to the bill of complaint, and that 
on the 22nd day of August, 1917, an order was en- 
tered taking the bill of complaint as confessed against 
the defendant, which said date is more than thirty 
(30) days before the entry of this decree, it is there- 
upon Ordered, Adjudged and Decreed as follows: 

That the court had jurisdiction of the subject 
matter and of the parties to this suit; that the allega- 
tions of the bill of complaint are true and that the 
equities of the case are with the complainant and 
that complainant is entitled to the relief prayed, and 
accordingly, that the defendant, his agents, servants, 

348 



v. M. THEODOSAKIS 



employes, attorneys and assigns, and all acting by or 
under his authority be, and they are each and all 
perpetually enjoined and restrained from selling, dis- 
pensing or supplying to customers or using, preparing, 
supplying or selling beverages to customers in re- 
sponse to requests for Coca-Cola or otherwise or 
plaintiff's product, any other product than the gen- 
uine Coca-Cola of plaintiff, and from doing any act 
or thing, or using any name, artifice or contrivance 
calculated to represent that any product not plaintiff's 
genuine Coca-Cola is said product, and that a writ of 
perpetual injunction issue accordingly. 

That defendant pay the cost of this suit to be taxed, 
and that upon taxation plaintiff have execution 
thereof. 

Enter. CARPENTER, 

Judge. 

Chicago, Illinois. 
September 24, 1917. 

Candler, Thomson & Hirsch, Atlanta, Ga., 
Reed & Rogers, Chicago, Illinois, 
For Complainants. 



I, JOHN H. R. JAMAR, Clerk of the District Court 
of the United States of America for the Northern Dis- 
trict of Illinois, do hereby certify the above and fore- 
going to be a true and correct copy of an order made 
and entered in said Court on the 24th day of Septem- 
ber, 1917, as fully as the same appears of record in 
my office. 

In Testimony Whereof, I have hereunto set my 
hand and affixed the seal of said Court at my office in 
Chicago, in said District, this 28th day of August, 
A. D. 1922. 

(Signed) JOHN H. E. JAMAR, Clerk. 
(Seal) 

349 



THE COCA-COLA COMPANY 



IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF 

ILLINOIS, EASTERN DIVISION 



November 2, 1917 



No. 929 IN EQUITY 



Present: HONORABLE KENESAW M. LANDIS, District 
Judge. 



THE COCA-COLA COMPANY 

v. 
PETER MILLER. 



This cause coming on for further hearing and it 
appearing to the court that the defendant was duly 
served with process on the 20th day of August, 1917, 
and filed no answer to the bill of complaint, and 
that on the 24th day of September, 1917, an order 
was entered taking the bill of complaint as confessed 
against the defendant, which said date is more than 
thirty (30) days before the entry of this decree, it is 
thereupon ordered, adjudged and decreed as follows: 

That the court had jurisdiction of the subject- 
matter and of the parties to this suit; that the allega- 
tions of the bill of complaint are true and that the 
equities of the case are with the complainant and 
that complainant is entitled to the relief prayed, and, 
accordingly, that the defendant, his agents, servants, 
employes, attorneys and assigns, and all acting by or 
under his authority be, and they are each and all 

350 



v. PETER MILLER 



perpetually enjoined and restrained from selling, 
dispensing or supplying to customers or using, pre- 
paring, supplying or selling beverages to customers 
in response to requests for Coca-Cola or otherwise 
for plaintiff's product, any other product than the 
genuine Coca-Cola of plaintiff, and from doing any 
act or thing, or using any name, artifice or con- 
trivance calculated to represent that any product 
not plaintiff's genuine Coca-Cola is said product, and 
that a writ of perpetual injunction issue accordingly. 
That defendant pay the cost of this suit to be 
taxed, and that upon taxation plaintiff have execu- 
tion thereof. 

(Signed) KENESAW M. LANDIS, 

Judge. 

Chicago, Illinois. 
November, 1917. 

Candler, Thomson & Hirsch, Atlanta, da. ; Frank F. 
Reed, Edw. S. Rogers and Allen M. Reed, Chicago, 
111., for Complainant. 



I, John H. R. Jamar, Clerk of the District Court 
of the United States of America for the Northern 
District of Illinois, do hereby certify the above and 
foregoing to be a true and correct copy of Decree 
made and entered in said Court on the 2nd day of 
November, 1917, as fully as the same appears of 
record in my office. 

In Testimony Whereof, I have hereunto set my 
hand and affixed the seal of said Court at my office 
in Chicago, in said District, this 25th day of August, 
A. D. 1922. 

(Signed) JOHN H. R. JAMAH, 
(Seal) Clerk. 



351 



THE COCA-COLA COMPANY 



UNITED STATES OF AMERICA, ^ 

SOUTHEASTERN DIVISION OF THE EASTERN > ss. 
JUDICIAL DISTRICT OF MISSOURI. 

IN THE DISTRICT COURT OF THE UNITED 

STATES, IN AND FOR SAID DIVISION 

OF SAID DISTRICT 



APRIL TERM, 1916 
MONDAY, APRIL 10, 1916 



No. 102 IN EQUITY 

j 

THE COCA-COLA COMPANY, Complainant, 

v. 
A. R. BEARD, Defendant. 



ORDER OF PERMANENT INJUNCTION. 

Now on this day come the parties hereto by their 
respective solicitors, and by consent of parties, the 
Court doth 

Order, adjudge and decree that the defendant, 
A. R. Beard, his agents, servants and employes, and 
each of them, be perpetually enjoined and restrained: 

1. From infringing upon the trade rights of the 
complainant in and to the trade-mark " Coca-Cola " as 
applied to the beverage described in the bill and from 
infringing upon the right of the complainant to be 
subjected to none but the fair competition in and 
about its manufacture and sale of the beverage known 
as " Coca-Cola ", and from the further commission of 
the acts of substitution described in the bill. 

352 



v. A. E. BEAED 



2. From selling and delivering in response to re- 
quests or orders, written or verbal, for Coca-Cola, any 
beverage other than that made from the Coca-Cola 
syrup manufactured by the complainant. 

3. From using, either verbally or by print or writ- 
ing, any name sufficiently similar to the name "Coca- 
Cola", or any name applied to any drink, as to cause 
deceit of the consumer. 

That as to paragraphs numbered 4 and 5 of the 
prayer for relief, no relief shall be granted. 

(Signed) DAVID P. DYER, 

Judge. 

UNITED STATES OF AMERICA, ^ 

SOUTHEASTERN DIVISION OF THE EASTERN Lss. 
JUDICIAL DISTRICT OF MISSOURI. 

I, Jas. J. O'Connor, Clerk of the District Court of 
the United States, in and for the Southeastern Di- 
vision of the Eastern Judicial District of Missouri, do 
hereby certify that the writing hereto attached is a 
true copy of the final order of the court, in Case No. 
102 of Coca-Cola Company, Complainant, v. A. E. 
Beard, Defendant, as fully as the same remain on file 
and of record in said case in my office. 

In Witness Whereof, I hereunto subscribe my name 
and affix the seal of said Court, at office in the City of 
Cape Girardeau in the Southeastern Division of said 
District, this 21st day of August, in the year of our 
Lord Nineteen Hundred and twenty-two. 

JAS. J. 'CONNOR, 

Clerk of said Court. 
By JAS. F. GORDAN, 
(Seal) Deputy. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; James 
Love Hopkins, St. Louis, Missouri; H. E. Alexander, 
Cape Girardeau, Mo., 

For Complainant. 

353 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE NORTHERN DISTRICT 

OF ILLINOIS, EASTERN DIVISION 



September 24, 1917 



No. 892 



Present: Honorable GEORGE A. CARPKNTKR, District 
Judge. 

U 



THE COCA-COLA COMPANY 

v. 
N. POURLAKAS. 



This cause coming on for further hearing and it 
appearing to the court that the defendant was duly 
served with process on the 10th day of July, 1917, 
and filed no answer to the bill of complaint, and that 
on the 22nd day of August, 1917, an order was en- 
tered taking the bill of complaint as confessed against 
the defendant, which said date is more than thirty 
(30) days before the entry of this decree, it is there- 
upon ordered, adjudged and decreed as follows : 

That the Court has jurisdiction of the subject mat- 
ter and of the parties to this suit; that the allegations 
of the bill of complaint are true and that the equities 
of the case are with the complainant and that com- 
plainant is entitled to the relief prayed, and, accord- 
ingly, that the defendant, his agents, servants, em- 
ployes, attorneys and assigns, and all acting by or 

354 



v. N. POURLAKAS 



under his authority, be, and they are each and all 
perpetually enjoined and restrained from selling, dis- 
pensing or supplying to customers or using, prepar- 
ing, supplying or selling beverages to customers in 
response to requests for "Coca-Cola" or otherwise for 
plaintiff's product, any other product than the genu- 
ine Coca-Cola of plaintiff, and from doing any act or 
thing, or using any name, artifice or contrivance cal- 
culated to represent that any product not plaintiff's 
genuine Coca-Cola is said product, and that a writ of 
perpetual injunction issue accordingly. 

That defendant pay the cost of this suit to be taxed, 
and that upon taxation plaintiff have execution 
therefor. 

Enter : 

CARPENTER, 

Chicago, Illinois, Judge. 

September 24, 1917. 



IN THE DISTRICT COURT OF THE UNITED STATES OF 

AMERICA FOR THE NORTHERN DISTRICT OF 

ILLINOIS, EASTERN DIVISION. 

I, John H. R. Jamar, Clerk of the District Court of 
the United States of America for the Northern Dis- 
trict of Illinois, do hereby certify the above and fore- 
going to be a true and correct copy of an order made 
and entered in said Court on the 24th day of Sep- 
tember, A. D. 1917, as fully as the same appears of 
record in my office. 

In Testimony Whereof, I have hereunto set my 
hand and affixed the seal of said Court at my office in 
Chicago, in said District, this 28th day of August, 
A. D. 1922. 

JOHN H. R. JAMAR, 
(Seal) Clerk. 

C en/idler, Thomson & Hirsch, Atlanta, Ga. ; Reed 
(& Rogers, Chicago, Illinois, for Complainant. 



THE COCA-COLA COMPANY 



UNITED STATES DISTRICT COURT, 
EASTERN DISTRICT OF KENTUCKY 



No. 2869 IN EQUITY 



THE COCA-COLA COMPANY, 

A Corporation Under the Laws of the State of 
Georgia, Complainant, 

v. 

CHRIS. DORNA, SR., ELZIE WINTER, CLAR- 
ENCE WINTER, LINCOLN COOK, MATT 
BARRY, MRS. WILLIAM BARRY, JAMES 
FARRELL and MRS. JAlVfES FARRELL, De- 
fendants. 



FINAL DECREE. 

This cause came on to be heard at this term, 
and thereupon, upon consideration thereof, it was 
ordered, adjudged and decreed as follows, viz. : 

That the defendants other than Chris. Dorna, Sr. 
(the complainant having dismissed the bill as against 
said Dorna before final hearing), namely, Elzie Win- 
ter, Clarence Winter, Lincoln Cook, Matt Barry, Mrs. 
William Barry, James Farrell and Mrs. James Far- 
rell and each of them, their agents, servants, asso- 
ciates, employes or anyone acting or claiming by, 
through or under said defendants be and they are 
hereby strictly enjoined, restrained and commanded 
to refrain: 

From in any way or manner selling or dispensing 
the drink and beverage known as Gay-Ola in place 
of the drink known as Coca-Cola. 

From disposing of Gay-Ola of the same or sub- 
stantially similar color to Coca-Cola, except when 

356 



v. CHRIS. DORNA, SR., et al. 



the same is sold in bottles, receptacles or packages 
marked or labeled prominently with the name Gay- 
Ola, and designed and intended to be sold and de- 
livered to the ultimate consumer in said original 
bottle, receptacle or package with said mark or label 
still remaining thereon. 

The defendants may sell Gay-Ola as Gay-Ola in 
a long-necked clear glass bottle, having two 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. 

It is further ordered that the complainant recover 
its costs of the defendants. 

(Signed) A. M. J. COCHRAN, 

Judge. 

April 9, 1914. 



Candler, Thomson & Hirsch, Atlanta, Georgia; 
Paxton, Warrington & Seasongood, Cincinnati, 0., 
for Complainant. 



357 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN DISTRCT 

OF TENNESSEE, NORTHERN 

DIVISION 



February 9, 1917 



No. 17 IN EQUITY 



THE COCA-COLA COMPANY 
JOHN F. HAUPT, JR. 



FINAL DECREE. 

This cause came on to be heard and finally deter- 
mined before the HON. EDWARD T. SANFGRD, Judge, 
on the pleadings and proof in the cause; upon con- 
sideration of which it is ordered, adjudged and de- 
creed as follows: 

1. That the plaintiff, The Coca-Cola Company, is 
a corporation organized, existing and doing business 
under the laws of the State of Georgia, and a citizen 
of said State within the meaning of the constitution 
and laws of the United States, and the defendant, 
John F. Haupt, Jr., is a citizen of the State of Tennes- 
see and a resident of the City of Knoxville, in the 
Northern Division of the Eastern District of Ten- 
nessee. 

2. That at the time of the institution of this suit 
and for a number of years prior thereto the plaintiff 
was engaged in the manufacture and sale of a syrup 

358 



v. JOHN P. HAUPT, JR. 



used in compounding soft drinks, or soda fountain 
and bottled beverages, which syrup and the bev- 
erages made therefrom were known and sold under 
the name "Coca-Cola" and under that name were 
dispensed from soda fountains and in bottles through- 
out a large portion of the United States, and that a 
considerable trade therein had been established in the 
said City of Knoxville; that no other beverage has 
been sold throughout the United States under the 
name of Coca-Cola than that compounded from the 
syrup manufactured by the plaintiff, as aforesaid, and 
the exclusive right to the use of said name by the 
plaintiff has been acquiesced in by the trade, and 
the good will incident thereto is valuable. 

3. That at and prior to the date of filing the bill 
the defendant has been maintaining unfair competi- 
tion against the plaintiff by keeping in the soda foun- 
tain in his store a syrup or syrups resembling Coca- 
Cola, but not being the genuine Coca-Cola made by 
the plaintiff, which had been, under his direction, fur- 
nished by his employees to customers calling for 
Coca-Cola; and that plaintiff is entitled to an injunc- 
tion against the continuance of such unfair competi- 
tion and an accounting for the damages sustained on 
account thereof as prayed in the bill. 

4. It is therefore ordered, adjudged and decreed: 

(a) That the defendant be and he is hereby en- 
joined and inhibited from hereafter continuing such 
unfair competition by the substitution of other syrups 
for, or using other syrups instead of, the said Coca- 
Cola syrup manufactured and sold by the plaintiff, as 
aforesaid, in supplying customers calling for Coca- 
Cola. 

(b) That the defendant pay all the costs of the 
cause, for which execution will issue. 

(c) It being suggested that plaintiff may not de- 
sire to take a reference for the damages due it on 
account of the unfair competition of the defendant in 

359 



THE COCA-COLA COMPANY 



the past, no order of reference will be entered at the 
present time, but such order may be taken hereafter 
on application of the plaintiff within thirty days from 
the date of the entry of this decree. 

Approved for entry. 

SANFORD, J. 
0. K. 

J. B. Sizer, For Plaintiff. 

J. A. Fowler, For Defendant. 

UNITED STATES OF AMERICA, ^ 

EASTERN DISTRICT OF TENNESSEE, \ ss. 
NORTHERN DIVISION. 

I, Horace Van Deventer, Clerk of the United States 
District Court in and for the Eastern District of Ten- 
nessee, do hereby certify that thd foregoing typewrit- 
ing is a true, full, correct and complete copy of the 
original Writ of preliminary injunction pendente lite, 
and of the Final Decree, on file and remaining of rec- 
ord in my office in the cause of The Coca-Cola Co. v. 
John F. Haupt, Jr., No. 17 on the Equity Docket of 
said Court. 

In Testimony Whereof, I have hereunto set my 
hand and affixed the seal of said court at Knoxville, 
Tennessee, this 22nd day of August, A. D. 1922. 

HORACE VAN DEVENTER, Clerk. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; J. B. 
Sizar, Chattanooga, Tenn., For Complainant. 



360 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN DISTRICT 

OF VIRGINIA 



THE COCA-COLA COMPANY, Complainant, 

v. 

JAMES HABIB, doing business as HABIB CON- 
FECTIONERY CO., Defendant. 



This cause came on this day to be heard upon the 
Plaintiff's prayer for a temporary injunction, and the 
defendant having appeared by Tazewell Taylor, Esq., 
his Counsel, and having admitted in open Court that 
this is a suit in which an order of injunction should 
be awarded against him, the said defendant; and the 
plaintiff thereupon having signified, by its attorney, 
Robert W. Shultice, Esq., that it is willing to waive 
an accounting against the said defendant of the 
profits and damages alleged in said Bill of Com- 
plaint upon the granting of the injunction prayed for 
in the said Bill, and the plaintiff having thereupon 
amended its prayer for a temporary injunction and 
having prayed the Court to enter a permanent in- 
junction herein, in accordance with the prayer of the 
said Bill of Complaint, to which motion for said per- 
manent injunction the defendant having formally con- 
sented, the Court doth thereupon adjudge, order and 
decree that the said defendant, James Habib, doing 
business as Habib Confectionery Company, his agents, 
servants and employees, and each of them be en- 
joined: 

First : From infringing upon the trade rights of the 
plaintiff, The Coca-Cola Company, and from the fur- 
ther commission of the acts of substitution alleged 
and described in the said Bill. 

361 



THE COCA-COLA COMPANY 



Second: From selling and delivering, in response 
to requests or orders for Coca-Cola any beverage 
other than that made from Coca-Cola syrup manu- 
factured by the plaintiff. 

Third: From using any name sufficiently similar to 
the name Coca-Cola or any name applied to any 
drink, so as to cause deceit to the damage of the 
plaintiff. 

Fourth: From selling any product that is the same 
color as Coca-Cola or any such approximation thereof, 
in such a manner and way as is likely to cause confu- 
sion and deception, or which might be calculated to 
induce the belief that the product is the product of 
the plaintiff. 

The defendant and all of his associates, servants, 
clerks, agents, workmen and employees, and each and 
every person claiming under, by jor through the said 
defendant, are hereby perpetually enjoined and~ re- 
strained from doing any of the matters or things here- 
inabove prohibited to be done by this injunction 
order. 

It is further adjudged, ordered and decreed that the 
defendant pay the costs of this suit, and that when 
the same are paid, that this cause be removed from 
the docket of this Court. 

(Signed) EDMUND WADDILL, JR., 

U. S. District Judge. 
Norfolk, Va., July 29, 1916. 
A true copy teste: 

JOSEPH P. BRADY, Clerk, 
(By) R. P. FLANAGAN, Deputy Clerk. 

Candler, Thomson & Hirsch, Atlanta, Georgia, 
Robert W. Shultice, Norfolk, Va., 
For Complainant. 



302 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE NORTHERN DISTRICT 

OF ALABAMA, SOUTHERN DIVISION 



THE COCA-COLA COMPANY, Complainant, 

v. 

MAGIC CITY BOTTLING & SYRUP COMPANY, 
et al., Respondents. 



DECREE. 

This cause coming on to be heard on the complain- 
ant's petition for a temporary writ of injunction 
against the respondents, and being submitted upon 
proof and argued by counsel for complainant and 
respondent, and decision reserved, 

It is now ordered, decreed and adjudged by the 
Court that the complainant is entitled to the issuance 
of a temporary writ of injunction as prayed for. 

It is further ordered, decreed and adjudged by the 
Court that the respondents, Magic City Bottling and 
Syrup Company, the Deacon-Brown Bottling Com- 
pany, of Birmingham, Alabama, L. S. Meharg, G. M. 
Ray, Julius Marx, H. E. Marx, A. Tedesky and H. 
Mauck, and each of them or any of their associates, 
clerks, salesmen, servants, agents, workmen, attorneys 
and representatives, and all parties claiming or hold- 
ing under or through said parties, be and they hereby 
are enjoined from using in any form whatsoever the 
name " Coca-Cola" or "Fletcher's Coca-Cola" as ap- 
plied to any drink. 

It is further ordered, decreed and adjudged by 
the Court that this injunction is temporary and is 
subject to the further orders of the Court. 

It is further ordered, decreed and adjudged that 
the complainant be and it is hereby required, as a 

363 



THE COCA-COLA COMPANY 



precedent to the issuance of said injunction, to ex- 
ecute a bond in the sum of Five Thousand Dollars 
($5,000.00) to the respondents herein, conditioned in 
accordance with law, in order to save said respond- 
ents harmless from damage that may be sustained by 
them by reason of the wrongful or improvident issu- 
ance of this injunction, said bond to be approved by 
the Clerk of this Court. 

It is further ordered, decreed and adjudged that 
notice of this injunction shall be given said respond- 
ents and each of them either by personal service upon 
them or by service upon Perkins Baxter or Samuel 
Stern, their attorneys of record. All other matters 
reserved. 

Ordered, Decreed and Adjudged this the 20th day 
of February, 1912. 

W. I. GRUBB, Judge. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; Percy, 
Benners & Burr, Birmingham, Alabama, for Com- 
plainant. 



364 



IN THE UNITED STATES DISTRICT COURT, 

NORTHERN DISTRICT OF OHIO, 

EASTERN DIVISION 



No. 197 IN EQUITY 



THE COCA-COLA COMPANY, 

v. 
A. J. HIEBER. 



DECREE. 

This cause came on to be heard at this term and 
was argued by counsel, and thereupon, upon consid- 
eration thereof, it is ordered, adjudged and decreed 
that the defendant, A. J. Hieber, his agents, servants, 
clerks, attorneys, and all persons acting by or under 
his authority and direction, and all other persons to 
whom knowledge and notice of this order may come 
are forever strictly enjoined from directly or indi- 
rectly selling or attempting to sell to any person or 
persons asking for and desiring to purchase the bev- 
erage known as "Coca-Cola" manufactured and sold 
by the complainant any other beverage or substitute 
for said Coca-Cola without first advising such person 
or persons that the beverage actually sold by them 
is not Coca-Cola, and from substituting any other 
beverage for the said Coca-Cola without advising the 
purchaser thereof of said substitution and from selling 
any beverage other than Coca-Cola under any repre- 
sentation, direct or indirect, that the same is Coca- 
Cola. 

365 



THE COCA-COLA COMPANY 



It is further ordered, adjudged and decreed that 
the complainant recover of the defendants its costs to 
be taxed, and execution may issue therefor. 

(Signed) WILLIAM L. DAY, Judge. 

Candler, Thomson & Hirsch, Atlanta, Ga.; Chap- 
man, Howland & Niman, Cleveland, 0., for Plaintiff. 



I 



366 



IN THE UNITED STATES DISTRICT COURT, 

NORTHERN DISTRICT OF OHIO, 

EASTERN DIVISION 



No. 197 IN EQUITY 



THE COCA-COLA COMPANY 

v. 
B. WISE & J. L. McNEALY. 



DECREE. 

This cause came on to be heard at this term and 
was argued by counsel, and thereupon, upon consid- 
eration thereof, it is ordered, adjudged and decreed 
that the defendants, B. Wise and J. L. McNealy, 
their agents, servants, clerks, attorneys, and all per- 
sons acting by or under their authority and direc- 
tion, and all other persons to whom knowledge and 
notice of this order may come are forever strictly 
enjoined from directly or indirectly selling or at- 
tempting to sell to any person or persons asking for 
and desiring to purchase the beverage known as 
" Coca-Cola, " manufactured and sold by the com- 
plainant and other beverage or substitute for said 
Coca-Cola without first advising such person or per- 
sons that the beverage actually sold by them is not 
Coca-Cola, and from substituting any other bever- 
age for the said Coca-Cola without advising the pur- 
chaser thereof of said substitution and from selling 
any beverage other than Coca-Cola under any rep- 
resentation direct or indirect, that the same is Coca- 
Cola, 

367 



THE COCA-COLA COMPANY 



It is further ordered, adjudged and decreed that 
the complainant recover of the defendants its costs 
to be taxed, and execution may issue therefor. 

WILLIAM L. DAY, Judge. 

Candler, Thomson & Hirsch, Atlanta, Ga.; Chap- 
man, Rowland & Niman, Cleveland, Ohio, For 
Plaintiff. 



368 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE SOUTHEASTERN 

DIVISION OF THE EASTERN 

JUDICIAL DISTRICT 

OF MISSOURI 



No. 120 



THE COCA-COLA COMPANY, Complainant, 

v. 

EOY M. STOKES and JOHN G. THOMPSON, 

doing business as the MALDEN DRUG 

COMPANY, Defendants. 



Now this day the defendants herein having filed 
their answer in response to order to show cause here- 
tofore issued herein, upon motion of the complainant 
by Harry E. Alexander, its counsel, and on con- 
sideration of the bill, the moving affidavits in behalf 
of the complainant, and said answer of defendants, 
the Court doth order, adjudge and decree that the 
defendants, Roy M. Stokes and John G. Thompson, 
doing business as the Maiden Drug Company, their 
agents, servants and employes, and each of them, be 
enjoined and restrained, until further order of this 
Court: 

1. From infringing upon the trade rights of the 
complainant in and to the trade-mark ' ' Coca-Cola, ' ' as 
applied to the beverage described in the bill, and 
from infringing upon the right of the complainant to 

369 



THE COCA-COLA COMPANY 



be subjected to none but fair competition in and 
about its manufacture and sale of the beverage 
known as "Coca-Cola," and from the further com- 
mission of the acts of substitution described in the 
bill; 

2. From selling and delivering in response to re- 
quests or orders, written or verbal, for "Coca-Cola," 
any beverage other than that made from the "Coca- 
Cola" syrup manufactured by the complainant; 

3. From using, either verbally or by print or writ- 
ing, any name sufficiently similar to the name "Coca- 
Cola," or any name applied to any drink, as to cause 
deceit of the consumer; 

4. From marketing a product of the same identical, 
or similar color, used by complainant in its product 
"Coca-Cola"; 

5. From selling, or exposing ff or sale, any beverage, 
other than complainant's product "Coca-Cola," hav- 
ing the peculiar and distinctive color and appearance 
of complainant's product, or any such approxima- 
tion thereof as may be likely to deceive the public, 
without any such differentiation as will effectually 
prevent the passing off of a spurious product, as and 
for the product of complainant. 

St. Louis, Missouri, 
April 28, A. D. 1917. 



370 



, 



v. EOY M. STOKES, etc. 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE SOUTHEASTERN 

DIVISION OF THE EASTERN 

JUDICIAL DISTRICT 

OF MISSOURI 



No. 120 INJUNCTION 



THE COCA-COLA COMPANY, Complainant, 

v. 

ROY M. STOKES AND JOHN G. THOMPSON, 

doing business as the MALDEN DRUG 

COMPANY, Defendants. 



Now, on this llth day of October, 1917, this cause 
having come on to be heard upon the complaint and 
answer, and the proof taken therein, and the Court 
having duly considered the same and being fully 
advised doth thereon order, adjudge and decree, that 
the defendants, Roy M. Stokes and John G. Thomp- 
son, doing business as the Maiden Drug Company, 
their agents, servants and employes, and each of 
them, be perpetually enjoined and restrained: 

First: From infringing upon the trade rights of 
the complainant in and to the trade-mark "Coca- 
Cola," as applied to the beverage described in the 
bill, and from infringing upon the right of the com- 
plainant to be subjected to none but fair competition 
in and about its manufacture and sale of the bever- 
age known as "Coca-Cola," and from the further 
commission of the acts of substitution described in 
the bill; 

Second: From selling and delivering in re- 
sponse to requests or orders, written or verbal, for 

371 



THE COCA-COLA COMPANY 



"Coca-Cola," any beverage other than that made 
from the "Coca-Cola" syrup manufactured by the 
complainant ; 

Third: From using, either verbally or by print or 
writing, any name sufficiently similar to the name 
"Coca-Cola," or any name applied to any drink, as 
to cause deceit of the consumer; 

It is further ordered that paragraphs Four (4) 
and Five (5) of the preliminary order heretofore 
made in said cause, be eliminated from this decree 
without prejudice to complainant, that part of com- 
plainant's bill not being passed upon by the Court. 

It is further ordered that complainant have and 
recover of and from the defendants its costs and 
charges in this behalf expended, and thereof have 
execution. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; Harry 
E. Alexander, Cape Girardeau, Mo., For Com- 
plainant. 



372 




THE COCA-COLA COMPANY, Complainant, 

v. 

L. G. FOX and L. G. FOX, doing business as 

ELLEEBEE DEUG COMPANY, ZOO 

PHAEMACY and FOX AND 

LYON, Defendants. 



DECREE. 

This cause coming "on to be heard before his Honor, 
H. G. CONNOR, Judge, at New Bern, and it appearing 
that the parties have reached an agreement which 
agreement is set forth in a paper writing duly signed 
by them, dated September 20th, 1916, a copy of 
which is hereto attached and marked Exhibit "A", 
incorporated in and made a part of this decree; 

It is thereupon, after due consideration, adjudged, 
ordered and decreed that the said agreement is hereby 
in all respects confirmed and made a decree of this 
court, and that the said defendants are hereby per- 
petually enjoined and restrained from doing or at- 
tempting to do any of the acts, things or matters 
which said defendants agreed not to do in said 
agreement; and the said defendants are hereby 
ordered to do all of those things, acts and matters 
which said defendants agreed to do in said agree- 
ment; 

It is further ordered, adjudged and decreed that 
the costs of this action be equally divided between 
plaintiff Company and Defendants to be taxed by the 
Clerk. 

E. G. CONNOR, 

Judge Presiding. 

373 



THE COCA-COLA COMPANY 



IN THE UNITED STATES DISTRICT COURT, 

EASTERN DISTRICT OF 

NORTH CAROLINA 



IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 

L. G. FOX and L. G. FOX, doing business as 

ELLEEBEE DEUG COMPANY, ZOO 

PHARMACY and FOX AND 

LYON, Defendants. 



This Agreement, made and entered into this 20th 
of September, Nineteen Hundred and Sixteen, by 
and between The Coca-Cola Company, a corporation 
of the State of Georgia, County of Fulton, City of At- 
Janta, complainant in the above-stated cause, as party 
of the first part, and L. G. Fox as above, defendant in 
the above-stated cause, parties of the second part, 

Witnesseth: 

Whereas, the party of the first part, on the . . . day 
of April, 1916, filed its bill of complaint in the above- 
styled Court against the parties of the second part, 
alleging infringement by parties of the second part of 
the trade-mark of party of the first part and unfair 
competition, the said bill of complaint being referred 
to as a part of this agreement and as setting out the 
grounds of complaint made by party of the first part 
against parties of the second part: 

And Whereas, it is the desire of the parties to the 
said suit to settle the same; 

Now, Therefore, in Consideration of the relinquish- 
ment of any claim party of the first part may have 

374 



v. L. G. FOX, et al. 



against parties of the second part, or either of them, 
for damages on account of the matters and things al- 
leged to said bill of complaint, parties of the second 
part agree that they and each of them, their clerks, 
servants, agents, workmen, employes and attorneys, 
and each and every person claiming under, by or 
through them, or in any way connected with their 
business, will not in any way or manner handle, sell 
or dispense any product for and as Coca-Cola that 
is not the product of the party of the first part, and 
will not sell or expose for sale any beverage other 
than the product of the party of the first part, Coca- 
Cola, having the same peculiar and distinctive ap- 
pearance and color of said product of the party of the 
first part, or any such approximation thereof as may 
be likely to deceive the public, without such differ- 
entiation as will effectually prevent the passing off 
of a spurious product as and for the said product 
of party of the first part, and will not sell any product 
that is not Coca-Cola when Coca-Cola is called for, 
either by its proper name Coca-Cola or colorable imi- 
tation thereof or nicknames therefor, as for example 
Dope and Koke, unless the Courts should decree that 
they are not nicknames for Coca-Cola, or any name or 
designation commonly applied to the said product of 
the party of the first part and intended to designate 
the same; and will not use the said name Coca-Cola as 
applied to any product except the product of the 
Coca-Cola Company. Party of the second part recog- 
nizing that Coca-Cola is the valid trade-mark of the 
Coca-Cola Company. 

It is further agreed that a decree may be entered 
in vacation of the Court or in term time in the said 
suit, setting out this agreement and confirming the 
same. Costs to be exactly shared by the parties 
hereto. 

375 



THE COCA-COLA COMPANY 



In Witness Whereof,- said parties have hereunto 
set their hands on the day and dates first above 
written. 

THE COCA-COLA COMPANY, 
By E. R. PRESTON and C. A. DUCKWORTH, 
CANDLER, THOMSON & HIRSCH, 

Attys. for Plaintiff. 

L. G. Fox, 
By W. K. JONES, 

Atty. for Defendant. 

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF 

NORTH CAROLINA. 

I, LEO D. HEARTT, Clerk of the United States Dis- 
trict Court for the Eastern District of North Caro- 
lina, do hereby certify that thq foregoing attached 
four (4) pages are a true and perfect copy of the 
Decree signed by Judge Connor, with agreement be- 
tween parties attached thereto, as appears of record 
and on file in my said office, in the case of The Coca- 
Cola Company v. L. Gr. Fox et al. 

In Testimony Whereof I have hereunto set my hand 
and affixed my official seal, this 27th day of Octo- 
ber, 1916. 

LEO D. HEARTT, 
Clerk, U. S. Dist, Court. 



376 




No. 195 IN EQUITY 



THE COCA-COLA COMPANY 

v. 
F. H. EGGERS, JR. 



This cause came on to be heard at this term and 
was argued by counsel arid thereupon, upon consid- 
eration thereof, it is ordered, adjudged and decreed 
that the defendant, F. H. Eggers, Jr., his agents, 
servants, clerks, attorneys and all persons by or under 
his authority and direction and all other persons to 
whom knowledge and notice of this order may come 
are forever strictly enjoined from directly or in- 
directly selling or attempting to sell to any person 
or persons asking for and desiring to purchase the 
beverage known as " Coca-Cola," manufactured and 
sold by the complainant and other beverage or sub- 
stitute for said Coca-Cola without first advising such 
person or persons that the beverage actually sold 
by them is not Coca-Cola, and from substituting any 
other beverage for the said Coca-Cola without advis- 
ing the purchaser thereof of said substitution and 
from selling any beverage other than Coca-Cola under 
any representation direct or indirect, that the same 
is Coca-Cola, 

It is further ordered, adjudged and decreed that 
the complainant recover of the defendants its costs 
to be taxed, and execution may issue therefore. 

WILLIAM L. DAY, Judge. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; Chap- 
man, Rowland & Niman, Cleveland, Ohio, for Com- 
plainant. 

377 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE WESTERN DISTRICT 

OF KENTUCKY 



THE COCA-COLA COMPANY, Complainant, 

v. 

PHILIP MAZZONI and JOHN MAZZONI, Trading 

and Doing Business as MAZZONI & 

COMPANY, Defendants. 



FINAL DECREE. 

This case having been heard by the Court, and the 
Court being sufficiently advised, it is now considered 
and adjudged as follows: 

That the defendants, Philip Mazzoni and John 
Mazzoni, trading and doing business as Mazzoni & 
Company, and each of them, their agents, servants 
and employees, and each of them, be, and they are 
hereby, perpetually enjoined from selling and deliv- 
ering to any customer in response to requests or 
orders for Coca-Cola any beverage other than that 
made from Coca-Cola syrup, manufactured by the 
complainant and put upon the market under the 
name of Coca-Cola. 

In all cases where Coca-Cola is asked for by in- 
tending purchasers or purchaser, the defendants, and 
each of them, their agents, servants and employees 
shall not serve to such customer or customers any 
other drink in lieu of Coca-Cola without first in- 
forming such intending purchaser or purchasers that 
the article offered for sale is not Coca-Cola, and de- 
fendants are enjoined from selling any other drink 
than Coca-Cola as and for Coca-Cola. 

The parties hereto shall each pay their own costs 
herein, and there shall be no accounting. 

378 



v. PHILIP MAZZONI, etc. 



UNITED STATES or AMERICA, 

V SS 

WESTERN DISTRICT OF KENTUCKY. 

I, A. G. BONALD, Clerk of the District Court of the 
United States, for said Western District of Kentucky, 
do hereby certify the above and foregoing to be a 
true and complete copy of the Decree entered in said 
Court, on the 30th day of March, A. D. 1917, in the 
cause wherein Coca-Cola Company is the complain- 
ant, and Philip Mazzoni and John Mazzoni, trading, 
etc., are defendants, as the same appears from the 
original now remaining in my custody and control. 

In Testimony Whereof, I have hereunto set my 
hand and affixed the seal of said Court, this 30th day 
of March, A. D. 1917. 

A. G. BONALD, Clerk, 
By GEORGE W. BONALD, D. C. 

Candler, Thomson & Hirsch, Atlanta, Ga.; Sellig- 
man & Selligman, Louisville, Ky., for Complainant. 



379 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE WESTERN DIS- 
TRICT OF KENTUCKY 



THE COCA-COLA COMPANY, Complainant. 

v. 

JOE DISCH, doing business as the DIAMOND CAFE, 

Defendant. 



DECREE. 

This case having been heard by the Court and 
the Court being sufficiently advised, it is now con- 
sidered and adjudged as follows : 

That the defendant, Joe Disch, doing business as 
the Diamond Cafe, his agents, servants and employes, 
and each of them, be, and they are hereby perpetually 
enjoined from selling and delivering to any customers 
in response to requests or orders for Coca-Cola, any 
beverage other than that made from Coca-Cola syrup, 
manufactured by the complainant, and put upon the 
market under the name of Coca-Cola. 

In all cases where Coca-Cola is asked for by intend- 
ing purchasers or purchaser, the defendant, his agents, 
servants and employes, shall not serve to such custo- 
mer or customers any other drink in lieu of Coca- 
Cola without first informing such intending purchaser 
or purchasers that the article offered for sale is not 
Coca-Cola, and defendant is enjoined from selling any 
other drink than Coca-Cola as and for Coca-Cola. 

The parties hereto shall each pay their own costs 
herein, and there shall be no accounting. 

WALTER EVANS, Judge. 

Candler, Thomson & Hirsch, Atlanta, Georgia; 
Selligman & Selligman, Louisville, Ky., For Com- 
plainant. 

380 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE WESTERN DIS- 
TRICT OF VIRGINIA 



No. 719 



THE COCA-COLA COMPANY 

v. 
COEBURN DRUG COMPANY, Inc. 



This cause came on to be heard this day in vaca- 
tion of this court, on the Bill of Complaint and affi- 
davits filed therewith; on subpoena ad respondendum 
duly executed as to defendant, and particularly upon 
an agreement between plaintiff and defendant settling 
the issues involved in this suit, which agreement is 
filed with the papers in this cause, marked exhibit 
"Agreement," and was argued by counsel. 

Upon consideration whereof and in conformity with 
the written agreement referred to between plaintiff 
and defendant, it is adjudged, ordered and decreed 
that defendant, its agents, servants and employes, and 
each of them, be hereby enjoined perpetually 

(1) From infringing upon the trade rights of plain- 
tiff and from the further commission of the acts of 
substitution described in the Bill of Complaint. 

(2) From selling and delivering, in response to re- 
quests or orders for Coca-Cola any beverage other 
than that made from the Coca-Cola syrup manufac- 
tured by your plaintiff. 

(3) From using any name sufficiently similar to the 
name Coca-Cola, or any name applied to any drink, 
as to cause deceit. 

381 



THE COCA-COLA COMPANY 



(4) From marketing a product of the same iden- 
tical or similar color as that used by plaintiff in its 
product Coca-Cola for purposes of deceit. 

(5) From selling or exposing for sale any bever- 
age other than plaintiff's product Coca-Cola having 
the peculiar and distinctive color and appearance of 
plaintiff's product, or any such approximation thereof 
as may be likely to deceive the public, without such 
differentiation as will effectually prevent the passing 
off of a spurious product as and for the product of 
plaintiff. 

It is further adjudged, ordered and decreed that 
this cause be dismissed at the cost of the defendant. 

H. C. MCDOWELL, Judge. 
Gandler, Thomson & Hirsch, Atlanta, Georgia; 



I 



Peters & Lavinder, Bristol, Virginia, For Com- 
plainant. 



This Agreement, made and entered into this the 
29th day of May, 1916, between Coca-Cola Company, 
party of the first part, and Coeburn Drug Company, 
Inc., party of the second part, 

Witnesseth: 

That Whereas, there is now pending in the Dis- 
trict Court of the United States for the Western Dis- 
trict of Virginia, at Abingdon, Virginia, a suit in 
which the party of the first part is plaintiff and the 
party of the second part is defendant; and 

Whereas, said second party is willing to refrain 
from the further commission of the acts complained 
of in said suit and all matters between said parties in 
said suit having been settled, 

Noiv, Therefore, It is Agreed, That the said second 
party binds itself, its agents, representatives and em- 
ployes to refrain from the sale, distribution or use of 
any drink as "Coca-Cola" other than the Coca-Cola 

382 



v. CQEBUBN DRUG COMPANY, Inc. 

manufactured and sold by said first party, and to re- 
frain from any and all other acts complained of in the 
bill in this cause. 

It is further agreed that the court, either in vaca- 
tion or in term time, may enter a decree in said 
cause permanently enjoining said second party from 
the sale, distribution or use of any drink as " Coca- 
Cola" other than the product of said first party, and 
granting all other relief prayed for in the bill of com- 
plaint in said cause, except that no damages are to be 
assessed against said party of the second part, de- 
fendant in said suit, and said decree further dismiss- 
ing said cause at the cost of defendant therein. 

In Witness Whereof, the said parties of the first 
part and second parts have placed hereunto their 
hands and seals this the day and year first above 
written. 

COCA-COLA COMPANY (Seal.) 

By CHAS. H. CANDLER, 

President. 

COEBURN DRUG COMPANY, INC. (Seal.) 

By , 

President. 
Attest: 

W. A. BANNER, 

Secretary Coeburn Drug Co., Inc. 



383 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 
STATES, EASTERN DISTRICT OF MIS- 
SOURI, EASTERN DIVISION 



No. 4475 IN EQUITY 



THE COCA-COLA COMPANY, and ST. LOUIS 

COCA-COLA BOTTLING COMPANY, 

Plaintiffs, 

V. 

ISRAEL SHUCART and JACOB SHUCART, 

Defendants. 



FINAL DECREE. 

Now this day, this cause having come on to be 
heard upon final hearing and the Court having con- 
sidered the pleadings and proofs herein, upon such 
consideration the Court doth 

Order, Adjudge and Decree that the defendants, 
Israel Shucart and Jacob Shucart, their agents, serv- 
ants and employes and each of them be, and they are 
hereby forever and perpetually enjoined and re- 
strained from infringing upon the trade-mark Coca- 
Cola, as the same has been registered in the United 
States Patent Office by the plaintiff, The Coca-Cola 
Company, and as the same is used upon bottles and 
wooden cases by the plaintiff, St. Louis Coca-Cola 
Bottling Company, and from infringing upon the 
trade rights of the plaintiffs by purchasing or other- 
wise acquiring any of the bottles or wooden cases de- 
scribed in the bill and bearing the trade-mark Coca- 
Cola aforesaid, and from taking the same into their 
possession, and from making any use or disposition 

384 



v. ISRAEL SHUCART and JACOB SHUCART 

of any of such bottles or cases which may now be in 
their possession or under their control, and from 
making, selling, keeping on hand for sale or offering 
fr sale or in any manner dealing in any beverage 
made in imitation or simulation of the color, odor or 
taste of the beverage known as Coca-Cola and sold by 
the plaintiffs under and by means of the said trade- 
mark Coca-Cola, and from selling or offering for sale 
any beverage whatsoever with the verbal or written 
suggestion that it may be substituted by the dealer 
on calls or order for Coca-Cola; 

It is Further 'Ordered that the said defendants, 
Israel Shucart and Jacob Shucart, deliver up to the 
Marshal of this Court all of the above described re- 
ceptacles, namely: bottles having the trade-mark 
Coca-Cola blown therein or otherwise affixed thereto, 
and wooden cases having the name Coca-Cola im- 
printed thereon, now in the possession or under the 
control of them or either of them. 

And the Court doth further refer the cause to 
Theodorick E. Bland, as Special Master in Chancery 
herein, to take, state and report to the Court an ac- 
count of the profits realized by the defendants from 
their infringing acts in the premises, and to assess 
such damages in the premises as may be proper; and 
the said Master is authorized to direct and require 
the said defendants to file with him an account of 
such matters in the form of debtor and creditor, and 
to compel the production before him of such books 
and papers as may be necessary in the premises, and 
to compel the appearance before him of such wit- 
nesses as may be required for the giving of needful 
and proper testimony upon said issues. 

It Is Further Ordered that the plaintiffs have and 
recover from the defendants their costs herein up to 
and including the entry of this decree, to be taxed 
by the Clerk under the direction of the Court, and 
that execution issue therefor. 

385 



THE COCA-COLA COMPANY 



Dated at St. Louis, Missouri, this 10th day of 
June, 1916. 

(Signed) DAVID P. DYER, Judge. 

1 

Candler, Thomson & Hirsch, Atlanta, Georgia; 
James Love Hopkins, St. Louis, Missouri, for Plain- 
tiffs. 



386 



IN THE DISTRICT COURT OF THE UNITED 

STATES IN AND FOR THE EASTERN 

DISTRICT OF TEXAS, AT TYLER 



THE COCA-COLA COMPANY, Complainant, 

v. 

J. L. MEYER, doing business as CROWN BOT- 
TLING WORKS, Defendant. 



It is hereby decreed by and between the plaintiff 
and defendant in the above-styled cause that on the 
hearing of the application for injunction herein at 
Jefferson, Texas, on the 7th day of October, 1912, a 
temporary injunction may be granted enjoining and 
restraining the defendant, his agents, employees and 
attorneys in fact, under the name of the Crown Bot- 
tling Works, or any other name, from using its labels 
or crowns or any crowns, labels or bottles on his 
product or on any product similar to that manufac- 
tured by The Coca-Cola Company, plaintiff herein, in 
such way as to deceive the public and consumers of 
such product or products, and cause them to believe 
that they are the products of complainant, and that 
the said defendant, Meyer, his employees, servants, and 
attorneys in fact shall be temporarily enjoined from 
making any use of any kind of product similar to the 
product usually known as Coca-Cola, and selling it 
as Coca-Cola, and that this temporary injunction 
shall be thereafter in due course, and without further 
notice to us or appearance by us, made perpetual. 

It is further agreed that the plaintiff herein 'shall 
pay the cost of filing the bill, and that the defendant 
shall pay the cost of service of notice. 

It is further agreed that service of subpoena 
usually required is hereby waived by the 'defendant, 

387 



THE COCA-COLA COMPANY 



and service accepted, and formal appearance hereby 
entered. 

(Signed) J. L. MEYER. 

J. L. MEYER, 

Doing business as Crown Bottling 
Works. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; Crane & 
Crane, Dallas, Texas; //. 0. Head, Sherman, Texas, 
for Plaintiff. 



388 



IN THE UNITED STATES DISTRICT COURT, 
EASTERN DISTRICT OF TEXAS 



No. 28 EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 
D. M. HUDSPBTH, Defendant. 



On this the 10th day of November, 1916, it being- 
made to appear to the Court that the parties in the 
above styled and numbered cause have heretofore on, 
to-wit: the 10th day of August, 1916, in writing en- 
tered into stipulations filed in the court for the dis- 
position of all matters in controversy therein, and in 
accordance with said stipulations filed, it is hereby 
decreed by the Court that the defendant, D. M. Huds- 
peth, doing business as and under the name of Mt. 
Pleasant Bottling Works, his associates, salesmen, 
clerks, workmen and employees, and all and every 
person claiming or holding under or through said de- 
fendant, or in any way connected with his business 
be and they are hereby perpetually enjoined and re- 
strained from in any way or manner selling a product 
in any such way as to pass off the same as and for 
the product of the complainant, and in using in any 
form whatsoever the name "Coca-Cola" as applied 
to any drink as to cause deceit and from any other 
act in the premises in any manner or form calculated 
to deceive and further restraining and enjoining the 
defendant, his associates, salesmen, clerks, employees 
and all persons claiming or holding under or through 
said defendant that they be and are hereby perpetually 

389 



THE COCA-COLA COMPANY 



enjoined and restrained from in any manner using 
the name " Coca-Cola" upon any labels, printed 
or lithographed matter, or upon crowns, corks or 
bottles used for selling drinks, and from in any way 
or form whatsoever using same as applied to any 
drink, or from any other act in any manner or form 
calculated to deceive. 

It further appearing to the Court that besides the 
stipulations plaintiff has expressly waived all other 
relief prayed for, it is further ordered and decreed 
that no damages be recovered against the defendant 
except that it is hereby ordered, adjudged and de- 
creed by the Court that plaintiff do have and recover 
of and from the defendant all costs in this behalf in- 
curred, for which execution may issue. 

( Signed )v GORDON RUSSELL, 

Judge. 

Candle r, Thomson & Hirsch, Atlanta, Georgia; 
Crane & Crane, Dallas, Texas; H. 0. Head, Sherman, 
Texas, for Complainant. 

UNITED STATES or AMERICA, 1 

FIFTH CIRCUIT, 1 ss. 

EASTERN DISTRICT OF TEXAS. J 

I, J. E. BLADES, Clerk of the District Court of the 
United States for the Eastern District of Texas, do 
hereby certify the foregoing pages from 1 to 2, in- 
clusive, to be a true and correct copy of the Judg- 
ment, in Cause No. 28, on the Equity Docket of said 
court, entitled The Coca-Cola Company, Complain- 
ants, v. D. M. Hudspeth, doing business as Mt. Pleas- 
ant Bottling Works, Defendant, as fully as the same 
now appears on file in my office at Texarkana, Texas. 

To Certify Which, witness my official hand and the 
seal of said court at Texarkana, Texas, in said Dis- 
trict, this the 18th of September, A. D. 1922. 

J. E. BLADES, 

Clerk U. S. District Court, E. D. T. 
(Seal) By W. E. CHALKER, Deputy. 

390 



IN THE DISTRICT COURT OF THE UNITED 

STATES IN AND FOR THE NORTHERN 
DISTRICT OF TEXAS, AT DALLAS 



IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 

THE EMPIRE BOTTLING AND 
MANUFACTURING COMPANY, Defendant. 



On this the 24th day of February, A. D. 1917, the 
above styled and numbered cause came on to be heard 
on the Bill and Answer, Exhibits and Evidence, and 
the Court, after hearing the same and argument of 
counsel thereon, is of the opinion that the Complain- 
ant is entitled to the relief prayed for. 

It is, therefore, ordered, adjudged and decreed by 
the Court, that the defendant, Empire Bottling and 
Manufacturing Company, and all of its associates, 
salesmen, servants, clerks, agents, workmen, em- 
ployes, and every person claiming or holding under 
or through the said defendant, or in any way con- 
nected with the business aforesaid be, and they are 
hereby perpetually enjoined and restrained from in 
any way or manner making or selling its product in 
such way as to pass off the same as and for the 
product of the complainant, The Coca-Cola Company, 
and from using in any form whatsoever the name 
Coca-Cola as applied to any drink manufactured and 
sold by it, or from using any name sufficiently similar 
to the name Coca-Cola as applied to any drink or 
beverage manufactured and sold by it as to cause 

391 



THE COCA-COLA COMPANY 



deceit and from any other act in the premises in any 
manner or form calculated to deceive, that the de- 
fendant and its associates, salesmen, servants, clerks 
and employes, and all persons claiming or holding 
under or through the said defendant, Empire Bottling 
and Manufacturing Company, be and the same are 
hereby perpetually enjoined and restrained from in 
any way or manner using the name Coca-Cola upon 
any label or labels or other printed or lithographed 
matter, or upon crowns or corks or bottles used for 
selling drinks, or from in any way or form whatso- 
ever using the name as applied to any drink or bever- 
age manufactured and sold by the defendant, and 
from any other act in any manner or form calculated 
to deceive. 

It is further ordered, adjudged and decreed by the 
Court, that the complainant, Thfc Coca-Cola Company, 
have the sole and exclusive right to the use of the 
trade-mark or name "Coco-Cola" in connection with 
a drink or beverage, and that the defendant, Empire 
Bottling and Manufacturing Company, be in all 
things restrained from its use upon any other bottled 
drink or beverage except the Coca-Cola manufactured 
and bottled under the directions of the complainant. 

It is further adjudged and decreed by the Court that 
the complainant do have and recover of and from the 
defendant, Empire Bottling and Manufacturing Com- 
pany, all costs in this behalf expended, for which it 
may have its execution. 

E. R. MEEKS, 

Judge. 

Candler, Thomson & Hirsch, Atlanta, Georgia, 
M. M. Crane, Dallas, Texas, 
for Complainant. 



302 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE WESTERN DIS- 
TRICT OF KENTUCKY 



IN EQUITY 



APPLICATION FOR INJUNCTION 



THE COCA-COLA COMPANY, Complainant, 

v. 
SEELBACH HOTEL COMPANY, Defendant. 



DECREE. 

The Complainant, The Coca-Cola Company, and the 
defendant, the Seelbach Hotel Company, having stip- 
ulated that the verified allegations of the bill of com- 
plaint may be taken as true, and this action having 
been submitted in chief, and the Court being suffi- 
ciently advised, it is considered, ordered cmd de- 
creed 

(a) That the defendant, Seelbach Hotel Company, 
its agents, servants and employees, and each of them, 
be, and they are hereby, enjoined 

(1) From infringing upon the trade rights of 
the Coca-Cola Company, as in the complaint de- 
scribed, and from the further commission of the 
acts of substitution as therein described. 

(2) From selling and delivering in response 
to requests or orders for Coca-Cola, any bever- 
age other than that made from the Coca-Cola 
Syrup manufactured by the complainant. 

393 



THE COCA-COLA COMPANY 



(3) From using any name sufficiently similar 
to the name of Coca-Cola, or any name applied 
to any drink as to cause deceit. 

(4) From selling or exposing for sale any bev- 
erage simulating the product Coca-Cola without 
such differentiation as will effectually prevent 
the passing off of a spurious product as and for 
Coca-Cola, the product of the complainant. 

(b) No accounting of profits or damages in the 
premises is required of the defendant. 

(c) The defendant will pay the costs of this action. 

(d) This action is reserved for such further and 
other orders and proceedings as hereafter may be 
necessary to uphold and enforce this decree. 

(Signed) WALTER EVANS, Judge. 
Seen and Approved: 
THE COCA-COLA COMPANY, i 

Candle r, Thomson & Hirsch, 
and Selligman & Selligman, 

Its Attorneys. 
SEELBACH HOTEL COMPANY, 

by Kohn, Bingham, Sloss & Spindle, 

Attorneys. 



394 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN 

DISTRICT OF TEXAS 



No. 57 IN EQUITY 



THE COCA-COLA COMPANY 

v. 
BAY FITCH. 



It being made to appear to the court that the par- 
ties hereto have entered into the following stipula- 
tions, to wit: 

It is hereby stipulated by and between the parties, 
plaintiff and defendant, in the above styled cause, 
that the plaintiff may have its decree against the de- 
fendant, as prayed for, with the exception that no 
decree will be entered as an appearance and to fully 
authorize the decree above mentioned to be entered 
in favor of plaintiff and against the defendant. 

It is, therefore, ordered, adjudged and decreed by 
the court that the defendant, Ray Fitch, his agents, 
servants, employes, successors and assigns, and each 
and all of them be and they are hereby perpetually 
enjoined and restrained from using in connection 
with the manufacture, advertising, offering for sale 
or selling any beverage with the words "Coca-Cola," 
or any like word or words, whether alone or in con- 
nection with other words or names, and further from 
doing any act or thing, or using any name or names, 
contrivance, artifice, or device, which may be calcu- 
lated to lead or induce the belief that any bottled 
product not authorized by plaintiff is Coca-Cola. 

395 



THE COCA-COLA COMPANY 



It is further ordered, adjudged and decreed by the 
court that the plaintiff pay all costs of court, for 
which the officers of this court may have their execu- 
tion. 

GORDON RUSSELL, Judge. 

Sherman, Texas. January 16th, 1919. 

Candler, Thomson & Hirsch, Atlanta, Georgia, 
Crane & Crane, Dallas, Texas, 
H. 0. Head, Sherman, Texas, 
for Plaintiff. 



390 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE EASTERN 
DISTRICT OF TEXAS 



No. 58 IN EQUITY 



THE COCA-COLA COMPANY 

v. 

J. N. RAYZOR AND J. FRED RAYZOR, 
Partners operating as ALLIANCE ICE CO. 



It being made to appear to the court that the 
parties hereto have entered into the following stipu- 
lations, to wit: 

It is hereby stipulated by and between the parties, 
plaintiff and defendants, in the above styled cause, 
that the plaintiff may have its decree against the de- 
fendants as prayed for, with the exception that no 
decree will be entered for damages. This stipulation 
will be treated as an appearance and to fully author- 
ize the decree above mentioned to be entered in favor 
of plaintiff and against defendants. 

It is therefore ordered, adjudged and decreed by 
the Court that the defendants, J. N. Rayzor and J. 
Fred Rayzor, partners operating as Alliance Ice 
Company, their agents, servants, employes, successors 
and assigns, and each of them and all be, and they 
are hereby perpetually enjoined and restrained from 
using in connection with the manufacture, advertis- 
ing, offering for sale, or selling any beverage, with 
the words, "Coca-Cola" or any like words or names, 
and further from doing any act or thing, or using any 
name or names, contrivances, artifices, or device, 

397 



THE COCA-COLA COMPANY 



which may be calculated to lead or induce the belief 
that any bottled product not authorized by plaintiff 
is Coca-Cola. 

It is further ordered, adjudged and decreed by the 
court that the plaintiff pay all costs of court, for 
which the officers of this court may have their execu- 
tion. 

GOJBDON RUSSELL, Judge. 

Sherman, Texas. January 16th, 1919. 

Candler, Thomson & Ilirscli, Atlanta, Ga., 
Crane & Crane, Dallas, Texas, 
//. 0. Head, Sherman, Texas, 
for Complainant. 



398 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE EASTERN 
DISTRICT OF TEXAS 



No. 59 IN EQUITY 



THE COCA-COLA COMPANY 

v. 
P. W. HOGAN. 



It being made to appear to the Court that the 
parties hereto have entered into the following stipu- 
lations, to wit: 

It is hereby stipulated by and between the parties, 
plaintiff and defendant, in the above styled cause, 
that the plaintiff may have its decree against the de- 
fendant as prayed for; with the exception that no 
decree will be entered for damages, and that plaintiff 
will pay all costs. 

This stipulation will be treated as an appearance 
and to fully authorize the decree above mentioned to 
be entered in favor of plaintiff and against the de- 
fendant. 

It is therefore, ordered, adjudged and decreed by 
the Court that the defendant, P. W. Hogan, his 
agents, servants, employes, successors and assigns 
and each and all of them be, and they are hereby 
perpetually enjoined and restrained from using in 
connection with the manufacture, advertising, offer- 
ing for sale, or selling any beverage with the words, 
" Coca-Cola " or any like word or words, whether 
alone or in connection with other words or names, 
and further from doing any act or thing, or using any 

399 



THE COCA-COLA COMPANY 



name or names, contrivances, artifices, or device, 
which may be calculated to lead or induce the belief 
that any bottled product not authorized by plaintiff 
is Coca-Cola. 

It is further ordered, adjudged and decreed by the 
Court that the plaintiff pay all costs of Court, for 
which the officers of this Court may have their execu- 
tion. 

W. K. SMITH, 

Presiding Judge. 

Sherman, Texas. February 13th, 1919. 

Candler, Thomson & Hirsch, Atlanta, Ga., 
Crane & Crane, Dallas, Texas, 
H. 0. Head, Sherman, Texas, 
for Complainant. 

I 



- 400 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN 

DISTRICT OF TEXAS 



No. 56 EQUITY 



THE COCA-COLA COMPANY 

v. 

ISAAC EOCHSTEIN, doing business 
as CITY BOTTLING WOEKS. 



It being made to appear to the court that the 
parties hereto have entered into the following stipu- 
lations, to wit: 

It is hereby stipulated by and between the parties, 
plaintiff and defendant, in the above styled cause, 
that the plaintiff may have its decree against the 
defendant as prayed for, with the exception that no 
decree will be entered for damages. This stipulation 
will be treated as an appearance and to fully author- 
ize the decree above mentioned to be entered in favor 
of plaintiff and against the defendants. 

It is therefore, ordered, adjudged and decreed by 
the court that the defendant, Isaac Eochstein, doing 
business as City Bottling Works, his agents, servants, 
employes, successors and assigns, and each and all 
of them be, and they are hereby perpetually enjoined 
and restrained from using in connection with the 
manufacture, advertising, offering for sale, or selling 
any beverages with the words, " Coca-Cola " or any 
like words or names, and further from doing any act 
or thing, or using any names or name, contrivances, 
artifices, or devices which may be calculated to lead 

401 



THE COCA-COLA COMPANY 



or induce the belief that any bottled product not au- 
thorized by plaintiff is Coca-Cola. 

It is further ordered, adjudged and decreed by the 
Court that the plaintiff pay all costs of court, for 
which the officers of this court may have their execu- 
tion. 

GORDON RUSSELL, Judge. 

Sherman, Texas. January 16th, 1919. 

Candler, Thomson & Hirsch, Atlanta, Ga., 
Crane & Crane, Dallas, Texas, 
H. 0. Head, Sherman, Texas, 
for Complainant. 



402 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN 

DISTRICT OF TEXAS 



No. 55 IN EQUITY 



THE COCA-COLA COMPANY 

v. 

J. T. CLAEK AND THEODORE WINNINGHAM, 
doing business as RED RIVER MFG. AND 
BOTTLING COMPANY. 



It being made to appear to the court that the 
parties hereto have entered into the following stipu : 
lations, to wit: 

It is hereby stipulated by and between the parties, 
plaintiff and defendants, in the above styled cause, 
that the plaintiff may have its decree against the 
defendants as prayed for, with the exception that no 
decree will be entered for damages. This stipulation 
will be treated as an appearance and to fully author- 
ize the decree above mentioned to be entered in favor 
of plaintiff and against the defendant. 

It is therefore ordered, adjudged and decreed by 
the court that the defendants, J. T. Clark and Theo- 
dore Winningham, doing business as Red River Mfg. 
& Bottling Company, their agents, servants, employes, 
successors and assigns, and each and all of them be, 
and they are hereby perpetually enjoined and re- 
strained from using in connection with the manufac- 
ture, advertising, offering for sale, or selling any bev- 
erage with the words, "Coca-Cola," or any like word 
or words, whether alone or in connection with other 
words or names, and further from doing any act or 

403 



THE COCA-COLA COMPANY 



thing, or using any name or names, contrivance, arti- 
fice or device, which may be calculated to lead or in- 
duce the belief that any bottled product not author- 
ized by plaintiff is Coca-Cola. 

It is further adjudged and decreed by the court, 
that the plaintiff pay all costs of court, for which the 
officers of this court may have their execution. 

GORDON RUSSELL, Judge. 

Sherman, Texas. January 16th, 1919. 

Candler, Thomson & Hirsch, Atlanta, Ga., 
Crane & Crane, Dallas, Texas, 
//. 0. Head, Sherman, Texas, 
For Complainant. 



404 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN 

DISTRICT OF TEXAS 



No. 54 IN EQUITY 



THE COCA-COLA COMPANY 

v. 
A. F. CAMEEON. 



It being made to appear to the court that the 
parties hereto have entered into the following stipu- 
lations, to wit: 

It is hereby stipulated by and between the parties, 
plaintiff and defendant, in the above styled cause, 
that the plaintiff may have its decree against the de- 
fendant as prayed for, with the exception that no 
decree will be entered for damages. This stipulation 
will be treated as an appearance and to fully author- 
ize the decree above mentioned to be entered in favor 
of plaintiff and against the defendant. 

It is therefore ordered, adjudged and decreed by 
the court that the defendant, A. F. Cameron, his 
agents, employes, successors and assigns and each of 
them be, and they are hereby perpetually enjoined 
and restrained from using in connection with the 
manufacture, advertising, offering for sale, or selling 
any beverage with the words "Coca-Cola" or any 
like word or words or names, and further from doingj 
any act or thing, or using any name or names, con- 
trivance, artifice or device, which may be calculated 
to lead or induce the belief that any bottled product 
not authorized by plaintiff is Coca-Cola. 

405 



THE COCA-COLA COMPANY 



It is further ordered, adjudged and decreed by the 
court that the plaintiff pay all costs of court, for 
which the officers of this court may have their exe- 
cution. 

GORDON KUSSELL, Judge. 

Sherman, Texas. January 16th, 1919. 

Candler, Thomson & Hirsch, Atlanta, Ga., 
Crane & Crane, Dallas, Texas, 
//. 0. Head, Sherman, Texas, 
For Complainant. 



400 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN DISTRICT 

OF MICHIGAN, SOUTHERN DIVISION 



No. 27 IN EQUITY 



THE COCA-COLA COMPANY 

v. 
DETROIT BASEBALL COMPANY. 



Now this day, the parties hereto consenting there- 
unto, the Court doth order, adjudge, and decree that 
the defendant Detroit Baseball Company, its agents, 
servants and employes, and each of them be, and they 
are hereby forever and perpetually enjoined and re- 
strained from selling and delivering to any person, 
in response to orders for " Coca-Cola " (said words 
being the Complainant's trade-mark, and registered 
by it in the United States Patent Office, certificate 
No. 22,406 of January 31st, 1893, and certificate No. 
47,189 of October 31st, 1905) any other beverage 
than that made by the complainant, The Coca-Cola 
Company. 

Further ordered that Defendant pay the costs 
herein to be taxed by the Clerk under the direction 
of the Court and that execution issue therefor. 

Dated, Detroit, Michigan. 

August 19th, 1913. 

(Sd) C. W. SESSIONS, 
District Judge, Sitting by Designation. 

The parties hereto stipulate and agree that the 
foregoing and final decree may be entered herein. 

Candler, Thomson & Hirsch, 
Geo. B. JerJces, J. L. Hopkins, 
Attorneys for Complainants. 

Corliss, Leete & Moody, 

Attorneys for Defendant. 

407 



THE DISTRICT COURT OF THE UNITED 

STATES, EASTERN DISTRICT 

OF MICHIGAN 



No. 25 IN EQUITY 



THE COCA-COLA COMPANY, Plaintiff, 

v. 

CHARLES W. McCORMICK and 
JOHN MARKLEIN, Defendants. 



Now this day, the parties hereto consenting there- 
unto, the Court doth order, adjudge and decree that 
the defendants Charles W. McCormick and John 
Marklein, their agents, servants and employes, and 
each of them be, and they are hereby forever and 
perpetually enjoined and restrained from selling and 
delivering to any person, in response to orders for 
Coca-Cola (said words being complainant's trade- 
mark, and registered by it in the United States Patent 
Office, certificate No. 22,406 of Jan. 31st, 1893, and 
certificate No. 47,189 of Oct. 31st, 1905) any other 
beverage than that made by the complainant, The 
Coca-Cola Co. 

Further ordered that Defendants pay the costs 
herein to be taxed by the Clerk under the direction 
of the Court and that execution issue therefor. 

C. E. SESSIONS, 

District Judge, Sitting by Designation. 
The parties hereto stipulate and agree that the 
foregoing and final decree may be entered herein. 
Candlcr, Thomson & Hirsch, 
Geo. B. Yerkes, J. L. Hopkins, 

Attorneys for Complainant. 
A. J. Groesbeck, 

Attorney for Defendants. 

Filed August 19th, 1913, 

ELMER W. VOORHEIS, Clerk, 

By CARRIE DAVISON, Deputy Clerk. 

408 




Present: The HONORABLE ARTHUR J. TUTTLE, United 
States District Judge. 



No. 40 

THE COCA-COLA COMPANY, Plaintiff, 

v. 
EDWARD McBRIDE, et al., Defendants. 



Now this day, this cause coming on to be heard 
upon the exceptions of the plaintiff to the report of 
the Master herein, upon consideration of said excep- 
tions and the arguments of counsel thereon, the 
Court being duly advised doth 

Order, adjudge and decree as follows: 

1. That said exceptions be sustained. 

2. That The Coca-Cola Company, plaintiff herein, 
a corporation organized, existing and doing business 
under the laws of the State of Georgia, has been en- 
gaged since the year 1892 in the manufacture and 
sale of a certain beverage known as and by the trade- 
mark consisting of the compound word Coca-Cola. 

3. That said trade-mark was registered by said 
plaintiff in the Patent Office of the United States on 
January 31st, 1893, by certificate No. 22,406, and on 
October 31, 1905, by certificate No. 47,189, and is the 
property of the said plaintiff. 

31/2- That said trade-mark has not been infringed 
by defendants. 

4. That the plaintiff has expended large sums of 
money in advertising the said beverage under the 

409 



THE COCA-COLA COMPANY 



said trade-mark and has built up a large trade be- 
tween the State of Georgia and each of the other 
states of the United States, and the good will of such 
trade and the said trade-mark is each of a value in 
excess of Three Thousand ($3000) Dollars, exclusive 
of interest and costs. 

5. That said beverage made by plaintiff and desig- 
nated by said trade-mark "Coca-Cola" is of a dis- 
tinctive and nonfunctional color, by which color it is 
known to the trade and consumers. 

6. That prior to the filing of the Bill of Complaint 
herein the defendants did, within the jurisdiction of 
this court, prepare for sale and sell a beverage col- 
ored in imitation of plaintiff's above-described bev- 
erage and similar thereto in taste, said defendants 
vending the same in bottles similar in general form 
and appearance to the bottlete in which plaintiff's 
"Coca-Cola" had been and was being sold, and that 
said bottles so used by defendants were -not marked 
or branded in any way and were provided with me- 
tallic caps also not marked or branded; which said 
acts of the defendants constituted unfair and unlaw- 
ful competition with the plaintiff. 

7. That by their said acts the defendants have 
diverted to themselves profits to which the plaintiff 
was entitled, and have occasioned loss and damages 
to the plaintiff. 

8. That the defendants Edward McBride, Charles 
M. Earl, and Daniel J. Pollard, their agents, servants 
and employees and each of them be, and they are 
hereby, forever and perpetually enjoined and re- 
strained from the further commission of the acts 
hereinbefore described, and from passing off any 
spurious beverage or syrup as and for the "Coca- 
Cola" of the plaintiff, and from employing any 
trick, artifice or device by way of passing off any 
spurious article as and for the "Coca-Cola" of the 
plaintiff, and from instituting, carrying on or insti- 
gating any unfair competition with the plaintiff in 

410 



v. EDWARD McBRIDE, et al. 



relation to the plaintiff's established trade and good 
will in its said product "Coca-Cola." 

9. That this cause be, and it is hereby referred to 
William S. Sayres, .Jr., Standing Master of this 
Court, to take, state and report to the Court an ac- 
count of the profits and damages herein, with the 
usual power in said Master to compel the attendance 
of witnesses, the production of books and papers, and 
the making by defendants of an account in the form 
of debtor and creditor. 

10. That the plaintiff have and recover of defend- 
ants its costs herein up to the time of this decree, to 
be taxed by the Clerk under the direction of the 
Court, and that execution issue therefor. 

Candler, Thomson & Hirsch, Atlanta, Georgia, 
James Love Hopkins, St. Louis, Missouri, 
For Plaintiff. 

UNITED STATES or AMERICA, ) 
EASTERN DISTRICT OF MICHIGAN, j k 

I, ELMER W. VOOR-HEIS, Clerk of the District Court 
of the United States for the Eastern District of 
Michigan, do hereby certify that the above and fore- 
going is a true copy of Final Decree in the therein 
entitled cause as the same appears on file and of 
record in my office; that I have compared the same 
with the original, and it is a true and correct tran- 
script therefrom and of the whole thereof. 

In Testimony Whereof, I have hereunto set my 
hand and affixed the seal of said court, at Detroit, in 
said District, this 24th day of August, in the year of 
our Lord one thousand nine hundred and twenty-two, 
and of the Independence of the United States of 
America the one hundred and forty-seventh. 

(Sd) ELMER W. VOORHEIS, Clerk. 
By CARRIE DAVISON, Deputy Clerk. 



411 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE EASTERN DIS- 
TRICT OF VIRGINIA 



IN EQUITY 



THE COCA-COLA COMPANY, a corporation duly 
organized and existing under the laws of the 
State of Georgia, and having its principal place 
of business in the City of Atlanta, State of 
Georgia, Complainant, 

v. 
STROLE DRUG COMPANY, INCORPORATED, a 

corporation duly organized and existing under 
the laws of the State of Virginia and having its 
principal place of business in the City of Nor- 
folk, State of Virginia, and J. LOROM STROLE, 
Defendants. 



On motion of the plaintiff by Counsel, and with the 
consent of the defendants, given by their Solicitors 
in Open Court, this cause is reinstated upon the 
docket of the Court, less than a year having elapsed 
since it was dropped from the trial calendar. 

On motion of the plaintiff by Counsel, which motion 
was consented to by Bowden & Heard, Counsel for J. 
Lorom Strole in open Court, leave is given the plain- 
tiff to amend its Bill of Complaint, by making the 
said Lorom Strole a party defendant to said Bill, and 
such leave being granted, the Bill was thereupon 
amended, and the said J. Lorom Strole was made a 
party defendant. 

412 



v. STROLE DRUG COMPANY, INC., etc. 

And thereupon, this cause came on this day to be 
heard upon the complainant's Bill of Complaint filed 
in this Court at Norfolk, Virginia, on the 30th day of 
July, 1913, which Bill is duly sworn to by Charles H. 
Candler, and which has been amended as aforesaid. 

And the court having carefully considered the mat- 
ters set out in said Bill, and the prayer of the com- 
plainant for a permanent injunction as hereinafter 
set out. 

And the defendant Strole Drug Company, Inc., by 
its Solicitors of Eecord having, upon leave given it, 
which leave was concurred in by J. Lorom Strole, by 
counsel, withdrawn the motion to dismiss, heretofore 
filed in these proceedings and the two defendants hav- 
ing signified that they do not desire to answer or other- 
wise plead to the complainant's Bill, the Court, on 
motion, doth thereupon adjudge, order and decree 
that the defendants, Strole Drug Company, Incor- 
porated, its officers, salesmen, servants, clerks, agents, 
workmen, employees, attorneys and every person 
claiming under, by or through the said defendant, or 
in any way connected with it, and J. Lorom Strole, are 
hereby enjoined and restrained from hereafter in any 
manner selling a product as and for Coca-Cola, or from 
in any way or manner passing off any product as 
and for Coca-Cola that is not the product of the com- 
plainant, when Coca-Cola is called for at a soda foun- 
tain or fountains, or any other place or places where 
soft drinks are dispensed by them or either of them, 
and also from selling for Coca-Cola any product 
which is not the Coca-Cola when Coca-Cola is called 
for and from .using said name of Coca-Cola as ap- 
plied to any product except the product of the com- 
plainant, The Coca-Cola Company, (a corporation) of 
Atlanta, Georgia. 

And the Court doth further adjudge, order and 
decree that the defendants shall pay the taxed costs 

413 



THE COCA-COLA COMPANY 

of this rait, and that after the payment rf h * 
earn* shall be removed from the docket. 

KI-M ADMIX J. 

"** 



, Thorn*** d II 

orfolk, Va. for ComphL 



414 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN DISTRICT 

OF MICHIGAN 



No. 26 



THE COCA-COLA COMPANY, Complainant, 

v. 
EIVERVIEW PARK COMPANY, Defendant. 



Present: The HONORABLE CLARENCE W. SESSIONS, 
United States District Judge, Sitting by Desig- 
nation. 



It Appearing to the Court from the stipulation filed 
herein that the parties hereto have consented there- 
unto, 

The Court Doth Order, Adjudge and Decree that 
the defendant, Riverview Park Company, its officers, 
directors, stockholders, agents, servants and em- 
ployees, and each of them, be and they are hereby 
forever and perpetually enjoined and restrained from 
selling or advertising for sale under the name "Coca- 
Cola" any beverage other than that manufactured 
and sold as Coca-Cola by the complainant, and from 
selling and delivering in response to orders, verbal or 
written, for Coca-Cola any beverage other than the 
Coca-Cola manufactured and sold by the complainant; 
the complainant having waived an accounting of 
profits or damages herein. 

This decree is final and the court directs the costs 
hereof to be taxed by the clerk under the direction of 
the Court to be adjudged against the defendant. 

415 



THE COCA-COLA COMPANY 



UNITED STATES OF AMEKICA, 

V gg 

EASTERN DISTRICT or MICHIGAN. 

I, ELMER W. VOORHEIS, Clerk of the District Court 
of the United States for the Eastern District of Mich- 
igan, do hereby certify that the above and foregoing 
is a true copy of Final Decree in the therein entitled 
cause as the same appears on file and of record in my 
office; that I have compared the same with the origi- 
nal, and it is a true and correct transcript therefrom 
and of the whole thereof. 

In Testimony Whereof, I have hereunto set my 
hand and affixed the seal of said Court, at Detroit, in 
said district, this 24th day of August, in the year of 
our Lord one thousand nine hundred and twenty-two, 
and of the Independence of the United States of 
America the one hundred and forty-seventh. 

(Sd) ELMER JW. VOORHEIS, Clerk. 
By CARRIE DAVISON, 

Deputy 'Clerk. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; James 
Love Hopkins, St. Louis, Missouri, for Complainant. 



410 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE WESTERN DISTRICT 
OF VIRGINIA, CONTINUED AND 
HELD AT HARRISONBURG, VIR- 
GINIA, ON JULY 7, 1916 



IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 

I. L. FLORY, Doing Business under the Name of 
ELKTON BOTTLING COMPANY, Defendant. 



The complainant, the Coca-Cola Company, having 
heretofore given notice, which was duly served upon 
the defendant, I. L. Flory, that it would, on the 
6th day of June, 1916, move the Court at its place 
of session at Harrisonburg, Virginia, for an award 
of the injunction hereinafter decreed, and the said 
motion having, by consent of parties, been continued 
until this date, and said complainant, by counsel, 
having tendered its bill of complaint against the said 
defendant, together with sundry affidavits and ex- 
hibits in support of the allegations of said bill, and 
moved the Court for the award of an injunction as 
prayed in said bill; the defendant, by counsel, asked 
leave to file his answer to said bill, which leave being 
granted, said answer was thereupon accordingly filed ; 
and, thereupon, the complainant and the defendant 
having agreed that the cause shall be finally heard 
upon the said bill, answer, affidavits and exhibits (the 
affidavits being treated as depositions), and the de- 
fendant having by his said answer indicated that 

417 



THE COCA-COLA COMPANY 



he does not desire to contest the said injunction, the 
above-entitled cause came on this 7th day of July, 
1916, to be heard on said bill, answer, affidavits and 
exhibits, and was argued by counsel; 

Upon consideration whereof, the Court being of 
opinion that the complainant is entitled to the re- 
lief prayed for, it is accordingly adjudged, ordered 
and decreed that said defendant, I. L. Flory, his 
agents, servants, employes, and each of them, be 
and are hereby enjoined and restrained from using, 
in connection with the manufacture, advertising, of- 
fering for sale or sale of any beverage, the name 
"Coca-Cola," or any like word or words, whether 
alone or in connection with other words or names, 
and further, from doing any act or thing or using 
any name or names, contrivances, artifice or device 
which may be calculated to represent or induce the 
belief that any bottled product, not authorized by 
the complainant, is Coca-Cola; and that said de- 
fendant deliver up to the clerk of this Court, or to 
the complainant, any cap, crown, bottle, label and 
any and all property in his possession or under con- 
trol having the trade-mark name Coca-Cola thereon. 

And it is further ordered and decreed that each 
party pay its own costs. 

And all matters in controversy in this cause having 
been finally determined, it is ordered to be stricken 
from the docket of the Court. 

A Copy: Teste. 

FRANK C. STIPE, 

Deputy Clerk. 

Candler, Thomson & HirscJi, Atlanta, Ga.; D. 0. 
Dechert, Harrisonburg, Va., for Complainant. 



418 



IN THE DISTRICT COURT OF THE UNITED 

STATES, EASTERN DISTRICT 

OF WISCONSIN 



IN EQUITY 

THE COCA-COLA COMPANY, Complainant, 

v. 
HENRY SPERBER, Respondent. 



DECKEE AND INJUNCTION. 

Be It Remembered, that this day this cause com- 
ing on upon the agreement and stipulation of the par- 
ties thereto, by their respective counsel, upon the 
said agreement and stipulation, and upon complain- 
ant's bill herein, and upon motion of complainant's 
counsel, 

It is Ordered, Adjudged and Decreed, that the said 
Henry Sperber, and all persons acting by or under 
his authority and direction, and all persons to whom 
knowledge and notice of this order may come, be and 
they hereby are perpetually restrained and enjoined 
from selling or attempting to sell to any person or 
persons asking for and desiring to purchase the bev- 
erage known as " Coca-Cola" manufactured and sold 
by the complainant, any other beverage or substitute 
for said Coca-Cola without first advising such person 
or persons that the beverage actually sold to them is 
not Coca-Cola; from substituting any other beverage 
for the said Coca-Cola without advising the pur- 
chasers thereof, of said substituting; and from selling 
any beverage other than Coca-Cola under any repre- 
sentation direct or indirect that the same is Coca- 
Cola. 

419 



THE COCA-COLA COMPANY 



It is further Ordered, Adjudged and Decreed that 
the respondent pay to the claimant, his costs in this 
action taxed, by agreement of the parties, at $50.00. 
Dated this 31st day of December, 1912. 

(Signed) F. A. GEIGER, 

District Judge. 
Eastern District of Wisconsin. 

Candler, Thomson & Hirsch, Atlanta, Georgia; E. J. 
Henning, Milwaukee, Wisconsin, for Complainant. 



420 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE NORTHERN DISTRICT 
OF OHIO, WESTERN DIVISION 



No. 2319 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 
H. DUNN, Respondent. 



OKDER. 

Be it remembered that this day this cause com- 
ing on to be heard upon the motion of the complainant 
for a temporary injunction against the respondent, 
came the complainant by its attorneys and the re- 
spondent in person and by his attorneys, and said 
motion was heard and submitted upon testimony ad- 
duced in open Court and upon argument of counsel. 
The Court being fully advised in the premises finds 
that said temporary injunction should issue as prayed 
for in the bill of complaint. 

Wherefore it is ordered that said H. Dunn, the re- 
spondent herein, his agents, servants, clerks and at- 
torneys, and all persons acting by or under his au- 
thority and direction and all other persons to whom 
knowledge and notice or this order may come, be and 
they are hereby restrained and enjoined from selling, 
or attempting to sell, to any person or persons asking 
for and desiring to purchase the beverage known as 
Coca-Cola manufactured and sold by the complainant, 
any other beverage or substitute for said Coca-Cola, 
without first advising such person or persons that 
the beverage actually sold to them is not Coca-Cola; 
from substituting any other beverage for the said 

421 



THE COCA-COLA COMPANY 



Coca-Cola without advising the purchasers thereof 
of said substitution; and from selling any beverage 
other than Coca-Cola under any representation, direct 
or indirect, that the same is Coca-Cola until the hear- 
ing of this cause or the further order of this Court. 

It is further ordered that the costs of the hearing 
on said motion be assessed against and paid by the 
respondent, and in default of payment that execution 
issue therefor. 

It is further ordered that the complainant give bond 
with good and sufficient surety, to be approved by 
the clerk of this Court, in the penal sum of $500.00, 
securing the said respondent against all loss or dam- 
age which may result from the issue of this order if 
it should finally be determined that the same was im- 
properly issued, or that may be awarded to him by 
reason of the granting of this o^der. And it is fur- 
ther ordered that the bond given on the granting of 
the restraining order in this case be released, and the 
bond herein ordered to be given shall stand in its 
stead. 

To all of the above orders the respondent by his at- 
torney duly excepted immediately and at the time 
said orders were made. 

(Signed) JOHN M. KILLETTS, 

District Judge. 

Filed April 17th, 1912. 



422 



v. H. DUNN 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE NORTHERN DISTRICT 

OF OHIO, WESTERN DIVISION 



No. 2319 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 
H. DUNN, Eespondent. 



DECREE. 

This cause this day came on for hearing upon the 
motion of the complainant for a final decree, and it 
being shown to the court that the respondent has been 
served with notice of said motion, and respondent not 
appearing in court, it is ordered that the restraining 
order heretofore granted herein be, and the same 
hereby is, made final and permanent, and it is there- 
fore further ordered that the said respondent, H. 
Dunn, his agents, servants, clerks and attorneys and 
all persons acting by or under his authority or direc- 
tion, be, and they hereby are, forever restrained and 
enjoined from selling or attempting to sell to any 
person or persons asking for and desiring to purchase 
the beverage known as Coca-Cola, manufactured and 
sold by the complainant, or any other beverage or 
substitute for said Coca-Cola, without first advising 
such person or persons that the beverage actually 
sold to them is not Coca-Cola; from substituting any 
other beverage for the said Coca-Cola; without advis- 
ing the purchasers thereof of said substitution; and 
from selling any beverage other than Coca-Cola under 

423 



THE COCA-COLA COMPANY 



any representative, direct or indirect, that the same 
is Coca-Cola. 

And it is further ordered that a copy of this de- 
cree, certified by the hand of the clerk and the seal 
of the court, be served upon the respondent, or if said 
respondent cannot be found, then upon his attorney 
of record, R. G. Brown, of Memphis, Tennessee, by 
mailing a copy to said Brown, addressed to him at 
Memphis aforesaid, by United States Mail, registered 
letter. 

(Signed) JOHN M. KILLETS, 

District Judge. 

Candler, Thomson & Hirsch, Atlanta, Georgia; 
Brown, Geddes, Schmettan & Williams, Toledo, Ohio, 
for Complainant. 

I 



424 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE DISTRICT OF 

MISSISSIPPI 



IN EQUITY 



THE COCA-COLA COMPANY 
v. 

MISSISSIPPI BOTTLING & MANUFACTURING 

COMPANY. 



DECREE Pro Confesso. 

It appearing to the court that the bill in the above 
cause was filed in this court on the 1st day of July, 
A. D. 1912, and that subpoena was duly issued and 
served on the defendant herein, and that no appear- 
ance has been entered by Mississippi Bottling & 
Manufacturing Company, the defendant herein, and 
also that no answer, plea or demurrer has been, filed, 
and that an order taking the bill as confessed was 
duly entered in the order book on the 1st day of Sep- 
tember, 1912, in the office of the clerk of this court, 
and no proceeding has been taken by the defendant 
since the entry of said order, and more than thirty 
days have elapsed since entering the order pro con- 
fess o. 

It is Hereby Ordered, Adjudged and Decreed that 
the Mississippi Bottling & Manufacturing Company, 
its associates, salesmen, servants, clerks, agents, work- 
men, employes and all claiming or holding under or 
through said defendant be perpetually enjoined and 
restrained from in any way or manner making or sell- 
ings its product in such a way as to pass off the same 

425 



THE COCA-COLA COMPANY 



as and for the product of The Coca-Cola Company 
and from using in any form or manner or in any 
way whatsoever the name Coca-Cola, as applied to 
any drink except the drink of The Coca-Cola Com- 
pany, and from doing any acts in any manner or 
form calculated to deceive. 

It is Further Ordered, Adjudged and Decreed that 
the defendant deliver up to this court within thirty 
days from the date of this order, any and all labels 
in its possession, whether or not the same be at- 
tached to containers or not, which labels bear the 
name Coca-Cola or the name in association with any 
other words, and all of its product made in a form 
sufficiently similar to the product of The Coca-Cola 
Company as to cause deception. 

It is Further Ordered, Adjudged and Decreed that 
the Mississippi Bottling and Manufacturing Com- 
pany, its associates, salesmen, servants, clerks, agents, 
workmen, employes, and all claiming or holding under 
or through the said defendant, be perpetually en- 
joined from manufacturing, offering for sale and 
advertising a product and selling it under the name 
of Coca-Cola or a colorable imitation thereof, and 
from manufacturing or offering for sale or advertis- 
ing a product so similar to the product of The Coca- 
Cola Company in general appearance, color and con- 
sistency as to cause deceit. 

This cause is hereby referred to W. H. Cook as 
special master, he being appointed as such for special 
fitness and convenience of the Court, who will hear 
proof and make report at the next regular term of 
the Court upon the following point: What damages 
have been sustained by complainant, The Coca-Cola 
Company, on account of the Mississippi Bottling & 
Manufacturing Company having sold a product that 
is not Coca-Cola under and by the name of Coca- 
Cola, or having sold a product that is not Coca-Cola 
when Coca-Cola is called for or having sold a product 

426 



v. MISSISSIPPI BOTTLING & MFG. CO. 

sufficiently similar to Coca-Cola as to be liable to 
cause deception. 

The Special Master will take proof on said order 
of reference at such times and places as might suit 
the convenience of himself and the parties to the 
cause, and due notice of all hearing will be given to 
the parties of their counsel in interest unless the 
times and places thereof be fixed by consent. 

The defendant, the Mississippi Bottling & Manu- 
facturing Company, will pay the costs of the cause. 

Candler, Thomson & Plirsch, Atlanta, Ga. ; Sullivan 
& Conner, Hattiesburg, Miss., for Plaintiff. 



427 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 
STATES, EASTERN DISTRICT OF MIS- 
SOURI, EASTERN DIVISION 



No. 4288 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 
CHARLES A. OTTINGER and L. C. DAGGETT, 

Defendants. 



FINAL DECREE. 

Now this day, the parties hereto having consented 
by stipulation in writing to the entry of this decree, 
the Court doth 

Order, Adjudge and Decree, That the Defendants, 
Charles A. Ottinger and L. C. Daggett, their agents, 
servants and employes, and each of them be and they 
are hereby forever and perpetually enjoined and 
restrained from selling and delivering to any person, 
in response to orders for Coca-Cola any other bev- 
erage (whether in the form of syrup or carbonated) 
than made and sold by the Complainant, The Coca- 
Cola Company, or its licensees, under the trade-mark 
Coca-Cola as the same has been registered by the 
Complainant in the United States Patent Office, Cer- 
tificate No. 22,406 of January 31st, 1893, and Certifi- 
cate No. 47,189 of October 31st, 1905; which said 
words "Coca-Cola" this Court finds to be and con- 
stitute a lawful, valid and subsisting trade-mark, 
which is the sole and exclusive property of the Com- 
plainant. 

Further ordered that Defendants pay the costs 

428 



v. CHAELES A. OTTINGER and L. C. DAGGETT 

herein to be taxed by the Clerk under the direction of 
the Court and that execution issue thereof. 

DAVID P. DYER, 

District Judge. 

The parties hereto stipulate and agree that the 
foregoing and final decree may be entered herein. 

Candler, Thomson & HirscU, James L. Hopkins, 
Attorneys for Complainant. 

Robt. L. McLaran, Attorney for Defendants. 
Filed and entered April 27, 1914. 



429 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE SOUTHERN DISTRICT 

OF WEST VIRGINIA, AT CHARLESTON 



IN EQUITY 



THE COCA-COLA COMPANY, Plaintiff, 

v. 

P. A. GEORGE, IloMER H. GEORGE and 

GEORGE A. M I LLKK, doing business as 

P. A. GEORGE & COMPANY, 

Defendants. 



This day The Coca-Cola Company, a corporation, 
by French and Easley, its counsel, presented its bill, 
duly verified, which has heretofore been filed in the 
Clerk 's office of this Court, at Bluefield, praying for 
an injunction against said defendants, enjoining and 
restraining them from the acts complained of in 
said bill; and also filed a notice to said defendants 
duly accepted by their counsel, of complainants' in- 
tention to apply for said injunction on this day. 

The said defendants appeared by Thomas W. Reed, 
their counsel, and asked leave to file, and did file 
their answer, duly verified, to which the complain- 
ant replied generally. And in said answer, defend- 
ants moved to dismiss said bill on the ground that 
the Court is without jurisdiction of the matters and 
things contained therein; which motion the Court 
doth overrule, and it is so ordered. 

And in support of its said motion, the complainant 
asked leave to file, and did file the affidavits of 
Charles H. Candler, S. C. Dobbs, H. B. Pierce, W. B. 
Stewart, W. L. Sams, Charles C. Ross and H. C. 

430 



v. P. A. GEORGE, et al. 



Fuller, with the accompanying exhibits; and the de- 
fendants asked leave to file, and did file the affidavit 
of J. E. Johnson. 

And it being made to appear upon the said bill of 
complainant and its said affidavits, and the said 
answer and affidavits filed by said defendants as 
aforesaid, that an injunction preliminary to the final 
hearing is proper, enjoining the defendants herein 
from the acts complained of and threatened to be 
committed, 

Therefore, complainant's application for such pre- 
liminary injunction is granted, upon its giving bond, 
with a good and sufficient surety to be approved by 
the Clerk of this Court, at Bluefield, in the penal 
sum of $1,000.00, securing the said defendants against 
all loss or damages which may result from the issuing 
of said order, if it should be finally determined that 
the same was improperly issued, or that may be 
awarded to them by reason of the granting of said 
order. 

Now, therefore, it is ordered; that the said P. A. 
George, Homer H. George and George A. Miller, 
doing business as P. A. George & Company, your 
agents, servants and employes, and all other persons 
acting by or under your authority or discretion be, 
and you are hereby specially restrained and enjoined 
until the further orders of this Court : 

First: From selling and delivering, in response to 
requests or orders for Coca-Cola, any beverage other 
than that made from the Coca-Cola syrup, manufac- 
tured by complainant; 

Second: From using any name sufficiently similar 
to the name Coca-Cola, or any name applied to any 
drink as to cause deceit; 

Third: From infringing upon the trade rights of 
complainant in and about the use of said name, as 
well as of said product, and from substituting and 
selling any other beverage or drink therefor. And 

431 



THE COCA-COLA COMPANY 



the defendants waived service of a formal writ of 
injunction herein. 

Dated at Charleston, in the Southern District of 
West Virginia, this the 6th day of July, 1916. 

BENJAMIN F. KELLER, 
District Judge, Southern District 
of West Virginia. 



432 



v. P. A. GEORGE & COMPANY, et al. 

IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE SOUTHERN DISTRICT 

OF WEST VIRGINIA 



IN EQUITY 

THE COCA-COLA COMPANY, Plaintiff, 

v. 
P. A. GEORGE & COMPANY, et al., Defendants. 



This day came again the parties by their Attorneys, 
and the parties hereto having entered into an agree- 
ment to the effect that the Defendants, P. A. George 
& Company, will not hereafter dispense to any of 
their patrons or customers calling for "Coca-Cola" at 
their fountain or otherwise, any other drink, or com- 
bination of syrups or drinks, claiming or holding out 
the same to be Coca-Cola, and will not in their trade 
substitute any drink of like character and appear- 
ance for Coca-Cola to persons calling for Coca-Cola 
at their fountain, or other place in the store, and will 
hereafter dispense at their place of business, and 
through their fountain only the product of the Plain- 
tiff known as "Coca-Cola," to all patrons and cus- 
tomers calling for the same, and will in good faith 
abstain from all substitution or other products or 
drinks to customers desiring or calling for Coca-Cola, 
and will especially not dispense from their Coca- 
Cola containers at their fountain or fountains, any 
other product or drink other than the Coca-Cola 
manufactured by the Plaintiff, the Court doth there- 
fore by consent and agreement of parties, ratify and 
confirm said agreement as a compromise agreement 
of record herein. 

433 



THE COCA-COLA COMPANY 



And thereupon, on motion of the Plaintiff, the above 
and foregoing is made the order of this Court, and the 
injunction heretofore awarded in this cause is dis- 
solved, and the Plaintiff's Bill is dismissed, and this 
cause is ordered retired from the docket. 

We agree to the entering of the above consent 
decree. 

THE COCA-COLA COMPANY, 

By Candler, Thomson & Hirsch, Attorneys for 
Plaintiff. 

P. A. GEORGE & COMPANY, 

By Tlws. H. Read, Attorney for Defendant. 



434 



IN THE DISTRICT COURT OF THE UNITED 
STATES, DISTRICT OF INDIANA 



No. 44 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 
EDWARD FERGER, Defendant. 



FINAL DECREE. 

Now this day, the parties hereto having consented 
by stipulation in writing to the entry of this decree, 
the Court doth 

Order, Adjudge and Decree that the defendant, 
Edward Ferger, his agents, servants and employees, 
and each of them be and they are hereby forever and 
perpetually enjoined and restrained from selling and 
delivering to any person in response to orders for 
Coca-Cola any other beverage (whether in the form 
of syrup or carbonated) than that made and sold by 
the complainant, The Coca-Cola Company, or its 
licensees, under the trade-mark Coca-Cola as the same 
has been registered by the complainant in the United 
States Patent Office, Certificate No. 22,406 of Janu- 
ary 31st, 1893, and Certificate No. 47,189 of October 
31st, 1905; which said words "Coca-Cola" this Court 
finds to be and constitute a lawful, valid and subsist- 
ing trade-mark, which is the sole and exclusive prop- 
erty of the complainant. 

Further ordered that defendant pay the costs herein 
to be taxed by the Clerk under the direction of the 
Court and that execution issue therefor. 

435 



THE COCA-COLA COMPANY 



The parties hereto stipulate and agree that the fore- 
going and final decree may be entered herein. 

Candler, Thomson & Hirsch and James L. Hopkins, 
Attorneys for Complainant. 

Morgan & Morgan, Attorneys for Defendant. 



436 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN DISTRICT 

OF VIRGINIA, RICHMOND DIVISION 



No. 25 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 
B. F. YELTON, Defendant. 



FINAL DECREE. 

This cause in which the bill was taken for con- 
fessed as to the said defendant by an order and de- 
cree entered herein on the llth day of December, 
1916, came on for trial hearing before the HONORABLE 
EDMUND WADDILL, JR., Judge of the District Court of 
the United States for the Eastern District of Virginia, 
on the bill taken for confessed and exhibits filed 
therewith. On consideration whereof the court is of 
opinion and doth adjudge and decree as follows: 

First: That the defendant and all of his associates, 
salesmen, clerks and employes, and each and every 
person claiming under him or by or through said de- 
fendant, or in any way connected with his business, 
be perpetually enjoined and restrained: 

(a) From in any way or manner selling or offering 
to sell or from delivering, in response to orders for 
your complainant's product Coca-Cola, a spurious and 
inferior beverage, the color whereof is in simulation 
of your complainant's beverage as and for the carbo- 
nated drink made from your complainant's Coca-Cola 
syrup; or from using said spurious or inferior syrup 
to make the drinks served to customers ordering the 
product of your complainant. 

437 



THE COCA-COLA COMPANY 



(b) From infringing upon the trade rights of your 
complainant, and from the further commission of the 
acts of substitution made by the defendant when Coca- 
Cola is called for by customers, in fraud of the pur- 
chasing public and in violation of the rights of your 
complainant. 

(c) From selling and delivering, in response to re- 
quests or orders for Coca-Cola, any beverage other 
than that made from the Coca-Cola syrup manu- 
factured by your complainant. 

(d) From using any name sufficiently similar to the 
name Coca-Cola or any name applied to any drink as 
to cause deceit. 

(e) From marketing a product of the same iden- 
tical or similar color which has for so long been used 
by your complainant in marketing its product, for 
the purpose of inducing customers or purchasers to 
believe that the product sold or offered for sale is 
Coca-Cola. 

(f ) From selling or exposing for sale any beverage 
other than your complainant's product Coca-Cola, 
having the peculiar and distinctive color and appear- 
ance of your complainant's product Coca-Cola, or any 
such approximation thereof as may be likely to de- 
ceive the public without such differentiation as will 
effectually prevent the passing off of a spurious prod- 
uct as and for the product of your complainant. 

Second: It is further ordered and adjudged that 
the complainant is entitled to have the sole and ex- 
clusive right to the use of the trade-mark or trade 
name "Coca-Cola" in connection with a soft drink or 
beverage. 

Third: It is further ordered that this cause be 
referred to Ernest M. Long, he being appointed as 
such for the special fitness and convenience of the 
court, to take and hear proof and make report to the 
next regular term of this court what damages have 
been sustained by. the plaintiff the Coca-Cola Com- 
pany by reason of the sale or sales by the defendant 

438 



v. B. F. YELTON 



B. F. Yelton, his agents and employes, of any bever- 
age not made by your complainant as and for Coca- 
Cola when Coca-Cola is called for, or the sale of any 
spurious product or imitation of complainant 's prod- 
uct known as Coca-Cola, or by the use of any product 
in any form sufficiently similar to the form of your 
complainant's product as to cause deception to the 
persons purchasing or calling for the same. The spe- 
cial master will take proof on said order of reference 
at such time and place as may suit the convenience 
of himself and parties to the cause, and due notice 
of all hearings will be given to counsel or to the par- 
ties in interest, unless times and places thereof be 
fixed by consent. 

Fourth: It is further adjudged and ordered that 
defendant do pay all costs of this suit to the date of 
this decree. 

This the 29th day of January, 1917. 

EDWAKD WADDILL, JR., 
Judge. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; C. V . 
Meredith and W. R. Meredith, Richmond, Va., for 
Complainant. 



430 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE WESTERN 

DISTRICT OF KENTUCKY 



THE COCA-COLA COMPANY, Complainant, 

v. 

P. E. STUTZ, doing business as STUTZ CONFEC- 
TIONERY STORE, Defendant, 



DEOEEE. 

The Bill of Complaint herein having been taken 
pro confesso as to the defendant, P. E. Stutz, doing- 
business as the Stutz Confectionery Store, and this 
cause having been duly submitted to the Court, it is 
considered, ordered ami drcrrcd: 

A. That the defendant, P. E. Stutz, his agents, 
servants and employees and each of them be and 
they are hereby enjoined 

1. From infringing upon the trade rights of The 
Coca-Cola Company in the manner in the Bill of Com- 
plaint herein set forth, and from the further commis- 
sion of the acts of substitution in the Bill of Com- 
plaint more particularly described. 

2. From selling and delivering in response to re- 
quests or orders for Coca-Cola any beverage other 
than that made .from the Coca-Cola syrup manufac- 
tured, by the complainant, whether from syrup or 
from a bottle of the finished product. 

3. From using any name sufficiently similar to the 
name Coca-Cola, or any name applied to any drink, 
so as to cause deceit. 

4. From marketing a product of same or identical 
or similar color used by the complainant, without 
such differentiation as will prevent the passing off 

440 



v. P. E. STUTZ, etc. 



of a spurious product as or for Coca-Cola, the product 
of the complainant. 

5. From selling or exposing for sale, any beverage 
other than the complainant's product Coca-Cola, hav- 
ing the peculiar and distinctive color and appearance 
of said product, or any approximation thereon, as 
likely may deceive the public without such differen- 
tiation as effectually will prevent the passing off of 
a spurious product as and for the product of the com- 
plainant. 

B. That the Defendant and all of his associates, 
salesmen, servants, agents, workmen, employees and 
attorneys and each and every person claiming under 
or by or through the defendant be enjoined and re- 
strained as aforesaid and henceforth from the date 
of the entry of this decree. 

C. The defendant will pay the costs of this action. 

D. This action is reserved for such further and 
other orders and proceedings as hereafter may be 
necessary to execute and enforce this decree. 

WALTER EVANS, Judge. 

Candler, Thomson & Hirsch, Atlanta, Ga., 
Selligmcm & Selligman, Louisville, Ky., 
For Complainant. 



441 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE WESTERN 

DISTRICT OF KENTUCKY 



THE COCA-COLA COMPANY, Complainant, 

v. 

L. H. ARMSTRONG, Doing Business as STAGE 
CAFE, Defendant. 



DECREE. 

Comes the complainant, The Coca-Cola Company by 
Selligman & Selligman, its counsel, and L. H. Arm- 
strong, doing business as Stag^ Cafe, in his own 
proper person, and by agreement submit this action 
in chief upon the verified allegations of the Bill of 
Complaint, and the Court being sufficiently advised, 
it is considered, ordered and decreed: 

A. That the defendant, L. H. Armstrong, his agents, 
servants and employees, and each of them be, and 
they are hereby enjoined: 

1. From infringing upon the trade rights of The 
Coca-Cola Company in the manner in the Bill of 
Complaint herein set forth, and from the further 
commission of the acts of substitution in the Bill of 
Complaint more particularly described. 

2. From selling and delivering in response to re- 
quests or orders for Coca-Cola, any beverage other 
than that made from the Coca-Cola syrup manufac- 
tured by the complainant, whether from syrup, or 
from a bottle of the finished product. 

3. From using any name sufficiently similar to the 
name Coca-Cola, or any name applied to any drink, 
so as to cause deceit. 

4. From marketing a product of same or identical 
or similar color used by the complainant, without 

442 



v. L. H. ARMSTRONG, etc. 



such differentiation as will prevent the passing off 
of a spurious product as or for Coca-Cola, the product 
of the complainant. 

5. From selling or exposing for sale, any beverage, 
other than complainant's product Coca-Cola, having 
the peculiar and distinctive color and appearance of 
said product, or any approximation thereof, as likely 
may deceive the public, without such differentiation 
as effectually will prevent the passing off of a spuri- 
ous product as and for the product of the com- 
plainant. 

B. That the defendant and all of his associates, 
salesmen, servants, agents, workmen, employees and 
attorneys and each and every person claiming un- 
der or by or through the defendant be enjoined and 
restrained as aforesaid and henceforth from the date 
of the entry of this decree. 

C. The complainant waives an accounting of profits. 

D. The defendant will pay the costs of this action. 

E. This action is reserved for such further and 
other orders and proceedings as hereafter may be 
necessary to execute and enforce this decree. 

(Sd) WALTER EVANS, Judge. 
Enter January 15, 1916. 

Seen and approved: 
THE COCA-COLA COMPANY, 
By Candler, Thomson & Hirsch, and 
Selligman & SelligmaM, 

Attorneys. 

L. H. Armstrong, who hereunto signs his name in 
his own proper person and indicates his approval and 
ratification of the above and foregoing decree this 
14th day of January, 1916. 

(Sd) L. H. ARMSTRONG. 
Witness 

LOUISA C. BROWN. 



443 



THE COCA-COLA COMPANY 



IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT 
OF VIRGINIA 



IN EQUITY 

COCA-COLA COMPANY, Complainant, 

v. 
EGISTO EGIZIANI, Defendant. 



FINAL DECREE. 

This day came complainant by counsel and came 
also the defendant by counsel, and on motion of the 
defendant, by counsel, leave is given him to withdraw 
his answer hitherto filed in this cause, and there- 
upon it is ordered that the bill of complaint be taken 
for confessed. 

And this cause by consent of the defendant by 
counsel evidenced by his endorsement upon the back 
of this decree came on for final hearing before the 
HONORABLE EDMUND WADDILL, JR., Judge of the Dis- 
trict Court of the United States for the Eastern Dis- 
trict of Virginia, on the bill of complaint taken for 
confessed and affidavits of certain expert witnesses 
for complainant hitherto filed in this cause, and was 
argued by counsel. And thereupon and upon con- 
sideration thereof, the Court doth adjudge and decree 
as follows: 

I. 

That the defendant, Egisto Egiziani, and all of 
his associates, salesmen, servants, clerks, agents and 
employes and each and every person claiming under 
him or by or through said defendant, or in any way 
connected with his business, be perpetually enjoined 
and restrained: 

-444- 





v. EGISTO EGIZIANI 



(a) From in any way or manner selling or offering 
for sale a product as and for Coca-Cola which is not 
the product of your orator in any way, so as to pass 
the same off as and for the product of your orator. 

(b) From selling or offering for sale a soft drink 
in the same identical color which has for so long 
been used by your orator in marketing its product 
for the purpose of inducing customers or purchasers 
to believe that the product sold or offered for sale 
is Coca-Cola. 

(c) From selling or offering for sale any bever- 
age not made by your orator as and for Coca-Cola 
when Coca-Cola is called for; or from representing 
any product not made by your orator to be Coca- 
Cola ; or from any act in the premises in any manner 
or 'form calculated to deceive or defraud persons 
offering to purchase Coca-Cola. 

II. 

And it appearing to the Court that the complain- 
ant does not desire to take any proof as to the dam- 
ages which it has sustained by reason of the sale or 
sales made by the defendant, or his agents and em- 
ployes, as alleged in the complainant's bill, it is fur- 
ther adjudged, ordered and decreed that the com- 
plainant recover of the defendant all its costs in this 
suit had and expended. 

And nothing further remaining to be done herein, 
it is further ordered that this suit be stricken from 
the docket and placed among the ended causes. 

EDMUND WADDILL, JK., 

U. S. District Judge. 

Richmond, Va., December 2nd, 1914. 

Caftdler, Thomson & Hirsch, Atlanta, Ga. ; Mere- 
dith & Cocke, Richmond, Va. ; Wyndham Meredith. 
Richmond, Va., for Complainant. 



445 



THE COCA-COLA COMPANY 



IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT 

OF VIRGINIA 



IN EQUITY 

THE COCA-COLA COMPANY, Complainant, 

v. 

C. DABHANIAN, doing business under the name 

mid style of THE DAEON COMPANY, 

Defendant. 



FINAL DECREE. 

This cause came on for final hearing before the 
Hon. Edmund Waddill, Jr., Judge of the District 
Court of the United States for the Eastern District 
of Virginia, on the pleadings and proofs in the cause, 
including the stipulation of counsel this day filed 
that the affidavits hitherto filed in this cause as well 
as the additional affidavits of S. C. Dobbs and Charles 
H. Candler and A. G. Smith and of W. G. Kitterer, 
this day filed on behalf of the complainant, as well 
as the affidavit of the defendant, C. Darhanian, like- 
wise this day filed on behalf of the defendant, as 
also the answer of the defendant, shall be consid- 
ered and treated by the Court as if each were the 
deposition of the affiant duly taken, from all of which 
the Court is of opinion and adjudged and decrees 
as follows: 

I. 

That the defendant and all of his associates, sales- 
men, servants, clerks, agents and employes, and each 
and every person claiming under him or by or through 
said defendant or in any way connected with his 
business, be perpetually enjoined and restrained: 

446 



v. C. DARHANIAN, etc. 



(a) From in any way or manner selling or offering 
for sale a product as and for Coca-Cola, which is not 
the product of your orator in any way so as to pass 
the same off as and for the product of your orator. 

(b) From selling or offering for sale a soft drink 
in the same identical color which has for so long 
been used by your orator in marketing its product 
for the purpose of inducing customers or purchasers 
to believe that the product sold or offered for sale is 
Coca-Cola, 

(c) From selling or offering for sale any beverage 
not made by your orator as and for Coca-Cola when 
Coca-Cola is called for; or from representing any 
product not made by your orator to be Coca-Cola; 
or from any act in the premises in any manner or 
form calculated to deceive or defraud persons offer- 
ing to purchase Coca-Cola. 

II. 

It is further ordered and adjudged that the com- 
plainant is entitled to have the sole and exclusive 
right to the use of the trade-mark or trade-name 
" Coca-Cola " in connection with a soft drink or 
beverage. 

III. 

That said cause is hereby referred to E. M. Long, 
Esq., he being appointed as such for special fitness 
and convenience to the Court to take and hear proof 
and make report to the next regular term of this 
Court upon the following points: 

(a) What damage has been sustained by the plain- 
tiff, The Coca-Cola Company, by reason of the sale 
by the defendant, C. Darhanian, his agents and em- 
ployes, of any beverage not made by your complain- 
ant as and for Coca-Cola when Coca-Cola is called 
for or the sale of any spurious product and imita- 
tion, or by the use of any product in any form suffi- 
ciently similar to the form of your orator's product 
as to cause deception to the person purchasing or 

447 



THE COCA-COLA COMPANY 



calling for the same. The Special Master will take 
proof on said order of reference at such time and 
place as may suit the convenience of himself and 
parties to the cause and due notice of all hearing 
will be given to counsel for the parties in interest 
unless times and places thereof be fixed by consent. 

Defendant will pay all costs of the cause to the 
date of this decree. 

This 14th day of March, 1914. 

EDMUND WADDILL, JR., 
U. S. Dist. 



Candler, Thomson & Hirsch, Atlanta, Gra., 
Meredith & Cocke, and Wij)i(Umm Meredith, Rich- 
mond, Va., 
For Complainant. 

I 



448 



IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT 

OF VIRGINIA 



IN EQUITY 



COCA-COLA COMPANY, Complainant, 

v. 
D. D. MURPHY, Defendant. 



FINAL DECREE. 

This day came complainant by counsel and came 
also the defendant by counsel, and on motion of the 
defendant by counsel leave is given him to withdraw 
his answer hitherto filed in this cause, and thereupon 
it is ordered that the bill of complaint be taken for 
confessed. 

And this cause by consent of the defendant by coun- 
sel evidenced by his endorsement upon the back of 
this decree came on for final hearing before the HON- 
ORABLE EDMUND WADDILL, JR., Judge of the District 
Court of the United States for the Eastern District of 
Virginia on the bill of complaint taken for confessed, 
and was argued by counsel. And thereupon and upon 
consideration thereof, the Court doth adjudge and 
decree as follows: 

1. 

That the defendant, D. D. Murphy, and all of his 
associates, salesmen, servants, clerks, agents and em- 
ployes, and each and every person claiming under him 
or by or through said defendant, or in any way con- 
nected with his business, be perpetually enjoined and 
restrained : 

449 



THE COCA-COLA COMPANY 



(a) From in any manner selling or offering for sale 
a product as and for Coca-Cola which is not the 
product of your orator in any way, so as to pass the 
same off as and for the product of your orator. 

(b) From selling or offering for sale a soft drink 
in the same identical color which has for so long been 
used by your orator in marketing its product for the 
purpose of inducing customers or purchasers to be- 
lieve that the product sold or offered for sale is Coca- 
Cola. 

(c) From selling or offering for sale any beverage 
not made by your orator as and for Coca-Cola when 
Coca-Cola is called for; or from representing any 
product not made by your orator to be Coca-Cola; or 
from any act in the premises in any manner or form 
calculated to deceive or defraud persons offering to 
purchase Coca-Cola. , 

2. 

And it appearing to the Court that the complain- 
ant does not desire to take any proof as to the dam- 
ages which it has sustained by reason of the sale or 
sales made by the defendant, or his agents and em- 
ployes, as alleged in the complainant's bill, it is fur- 
ther adjudged, ordered and decreed that the com- 
plainant recover of the defendant all its costs in this 
suit had and expended. 

And nothing further remaining to be done herein, 
it is further ordered that this suit be stricken from 
the docket and placed among the ended causes. 

EDMUND WADDILL, JR., 

U. S. Dist. Judge. 
Richmond, Va., June 28, 1915. 
A true copy Attest: 

E. E. POWERS, 
Deputy Clerk. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; Mere- 
dith & Coclce, Bichmond, Va., for Complainant. 

450 




APPLICATION FOR INJUNCTION, ETC. 



IN EQUITY 

THE COCA-COLA COMPANY, Complainant, 

v. 
J. ALTON KOLB, Defendant. 



DECREE. 

The complainant, The Coca-Cola Company, and tho 
defendant, J. Alton Kolb, having stipulated that the 
verified allegations of the bill of complaint may bo 
taken as true, and this action having been submitted 
in chief, and the Court being sufficiently advised, it is 
considered, ordered and decreed 

(a) That the defendant, J. Alton Kolb, his agents, 
servants and employees, and each of them, be, and 
they are hereby enjoined 

1. From infringing upon the trade rights of The 
Coca-Cola Company, as in the complaint described, 
and from the further commission of the acts of sub- 
stitution as therein described. 

2. From selling and delivering, in response to re- 
quests or orders for Coca-Cola, any beverage other 
than that made from the Coca-Cola syrup manufac- 
tured by the complainant. 

3. From using any name sufficiently similar to the 
name of Coca-Cola, or any name applied to any drink, 
as to cause deceit. 

451 



THE COCA-COLA COMPANY 



4. From selling or exposing for sale any beverage 
simulating the product Coca-Cola without such dif- 
ferentiation as will effectually prevent the passing off 
of a spurious product as and for Coca-Cola, the prod- 
uct of the complainant. 

(b) No accounting of profits or damages in the 
premises is required of the defendant. 

(c) The defendant will pay the costs of this action. 

(d) This action is reserved for such further and 
other orders and proceedings as hereafter may be nec- 
essary to uphold and enforce this decree. 

A copy Attest : 

A. G. RONALD, Clerk,. 

By M. E. HOLLIBAN, D. C. 

Candler, Thomson & Hirsch, Atlanta, Georgia; 
Selligman & Selligman, Louisville, Ky. ; for Com- 
plainant. 



452 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE WESTERN DISTRICT 

OF VIRGINIA 



IN EQUITY 

THE COCA-COLA COMPANY 
v. 

LENA WILLS, doing business as WILLS 
PHARMACY 



Presiding: HONORABLE HENRY C. MCDOWELL, 

Judge. 



This Cause came on to be heard upon the 29th day 
of October, 1917, on motion of the plaintiffs for per- 
manent injunction, in accordance with the prayer of 
the bill, and by consent, of parties, in open Court, it 
appearing that they have agreed upon a settlement of 
the matters involved in this cause, in accordance 
with this order, the Court doth order and decree that 
the defendant, Lena Wills, her servants, agents and 
employes be; and they are hereby perpetually en- 
joined: 

1st : From infringing upon the trade rights of The 
Coca-Cola Company, and from substituting other 
drinks as and for Coca-Cola. 

2nd: From selling and delivering, in response to 
requests or orders for Coca-Cola any beverage other 
than that made from the Coca-Cola syrup, manufac- 
tured by the plaintiff. 

3rd: From using any name sufficiently similar to 
the name of Coca-Cola, applied to any drink, as to 
cause deceit. 

453 



THE COCA-COLA COMPANY 



4th: From marketing a product of the same iden- 
tical or similar color, so long used by the plaintiff in 
its products. 

5th: From selling or exposing for sale any bev- 
erage other than the plaintiff's product, Coca-Cola, 
having the peculiar and distinctive color and appear- 
ance of plaintiff's product, or any such approxima- 
tion thereof as may be likely to deceive the public, 
without such differentiation that will effectually pre- 
vent the passing off of a spurious product as and 
for the product of the plaintiff. 

6th: That plaintiff be awarded no damages for 
any previous acts complained of in the bill. 

7th: That each party shall pay its own costs ac- 
crued in this cause. 

The object of this suit having been accomplished 
it is ordered that the same Ije stricken from the 
docket. 

We hereby consent that the above order may be 
entered : 

Candler, Tliowxou & HirxcJi, Caskie & Caskie, 
Attorneys for The Coca-Cola Co. 

Geo. A. Revercomb, Attorney for Lena Wills. 

A Copy: Teste: 
Louis H. PRICE, 

Clerk. 



4.34 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE JACKSON DIVISION 
OF THE SOUTHERN DISTRICT 
OF MISSISSIPPI 



THE COCA-COLA COMPANY 

v. 
J. R. JENKINS. 



DECREE. 

Be It Remembered, That this day came on to be 
heard the above entitled cause when came both par- 
ties by their attorneys and a decree by consent is 
entered herein as follows: 

1. It is ordered, adjudged and decreed that this 
court has jurisdiction. 

2. It is further ordered, adjudged and decreed, 
without deciding whether said Jenkins has or has 
not done those things alleged in the bill to have 
been done, and these questions are expressly per- 
mitted from decision, and this decree shall be with- 
out prejudice to either party with reference to them 

-that he, the said Jenkins, his agents, servants, em- 
ployes, each and all of them be and they are hereby 
as to the future, restrained, enjoined and prohibited: 

(a) From infringing upon the rights of The Coca- 
Cola Company. 

(b) From substituting for Coca-Cola, when and as 
called for by any customer, any other or different 
beverage or drink and from not supplying said Coca- 
Cola produced by complainant when and as called for. 

(c) From selling and delivering in response to such 
requests or orders for Coca-Cola any beverage other 
than that made from the Coca-Cola syrup manu- 
factured by complainant free and unmixed with any 

455 



THE COCA-COLA COMPANY 



adulterant or other substance used or attempted to 
be used in substitution of said Coca-Cola syrup and 
which could be no substitute by reason of its color 
and other quality. 

3. From using any name sufficiently similar to the 
name Coca-Cola, or any name applied to any drink as 
to cause deceit and deception with reference to the 
drink or beverage so called for, and from marketing 
any product of the same or identical color so long 
used by complainant in its product, and thereby and 
from selling or exposing for sale any beverage as 
Coca-Cola other than Coca-Cola produced by com- 
plainant the peculiar and distinctive color and ap- 
pearance of said product or an approximation thereof, 
which would, or would be likely to deceive the pub- 
lic without differentiation or distinguishing marks 
and characteristics as will effectually prevent the 
passing off wrongfully of an inferior product as and 
for the product of complainant. 

4. That the claim for damage upon the part of 
complainant be dismissed. 

5. That the claim for damages in the cross bill be 
dismissed, and a perpetual injunction be issued in 
accordance with the foregoing decree. 

6. That The Coca-Cola Company, complainant, pay 
all costs of this suit. 

Ordered, adjudged and decreed this the 8th day 
of April, 1918. 

H. C. NILES, 
Judge. 

Candler, Thomson & Hirsch; Green & Green, for 
Plaintiff. 
0. K. 

A. M. Perry, Atty. for Defendant. 

456 



v. J. E. JENKINS 



UNITED STATES OF AMERICA, 
SOUTHERN DISTRICT OF MISSISSIPPI. 

I, Jack Thompson, Clerk of the District Court of 
the United States for the Southern District of Mis- 
sissippi, do hereby certify that the foregoing Re- 
straining Order and Final Decree are true and correct 
copies of the original orders as the same appear of 
record in my office at Jackson, Miss. 

Witness my hand and seal this August 17, 1922. 

JACK THOMPSON, Clerk. 



457 



THE COCA-COLA COMPANY 



UNITED STATES DISTRICT COURT, 

SOUTHERN DISTRICT OF OHIO, 

WESTERN DIVISION 



No. 10 IN EQUITY 



THE COCA-COLA COMPANY, a Corporation, 

Complainant, 

v. 

MARY F. GILDEA, JOSEPH W. GILDEA, and 
ELLA RUDOLPH, Defendants. 



I 



FINAL DECREE. 

This cause came on to be further heard at this 
term and it appearing that a decree pro confesso was 
taken by complainant herein on October 13, 1913, and 
that no proceedings have been taken by the defend- 
ants to set aside said decree, now upon motion of 
Murray Seasongood, solicitor for complainant, and 
upon consideration of the foregoing it is ordered, ad- 
judged and decreed as follows, viz.: 

That the defendants, Mary F. Gildea, Joseph F. 
Gildea and Ella Rudolph, and each of them, their 
agents, employes and associates, and each and every 
person connected with their business be and they are 
hereby perpetually enjoined, prohibited and com- 
manded to refrain: 

From in any way or manner selling or dispensing 
the drink and beverage known as Gay-Ola in place of 
and for the drink known as Coca-Cola; 

From selling and dispensing Gay-Ola when Coca- 
Cola is asked or called for; 

From in any way or manner selling or dispensing 

458 



v. MARY F. GILDEA, et al. 



any other syrup, drink or beverage of the same or 
substantially the same color, consistency, and general 
appearance as Coca-Cola, in place of or for Coca-Cola, 
or when said Coca-Cola is asked or called for; 

From in any way or manner selling or dispensing 
said Cola drink heretofore sold by the defendants, or 
any other drink or beverage similar thereto, in bot- 
tles, the same or substantially similar to the bottle 
filed in Court by the complainant as Exhibit No. 2, 
with the affidavit of H. H. Glaze, and A. J. Connor; 

From dispensing any Cola drink of the same or sub- 
stantially similar color to Coca-Cola, except when the 
same is sold in bottles, receptacles or packages 
marked or labelled prominently with the name Gay- 
Ola, and designed and intended to be sold and de- 
livered to the ultimate consumer in said original 
bottle, receptacle or package with said mark or label 
still remaining thereon. 

It is further ordered that the complainant recover 
its costs of the defendants. 

Entered by JUDGE HOLLISTEK, April 4, 1914. 

Candler, Thomson & Hirsch, Atlanta, Ga.; Paxton, 
Warrington & Seasongood, Cincinnati, Ohio, for Com- 
plainant. 



459 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE NORTHERN DISTRICT 

OF ILLINOIS, EASTERN DIVISION 



No. 30905 



THE COCA-COLA COMPANY, a Corporation, 

v. 
GEORGE KOTSONAS. 



FINAL DECREE. 

This cause coming on upon motion of Complainant 
to have a final decree entered upon the Bill of Com- 
plaint filed herein, the Court does find as follows: 

That it has jurisdiction of the subject matter of 
said cause of action and of the parties hereto: 

That heretofore, to wit, on the 23rd day of August, 
A. D. 1912, there was duly issued from this Court a 
rule requiring George Kotsonas, the said defendant, 
to appear in answer to said bill of complaint on the 
October, 1912, rule day of this Court, being the first 
Monday in October, 1912. 

That said rule was duly and legally served upon 
said George Kotsonas in person on the 3rd day of 
September, 1912, twenty (20) days before the said 
October, 1912, rule day. 

That said defendant did not enter his appearance 
on or before said rule day, and has still failed to enter 
his appearance in said Court or to plead, answer or 
demur to said bill of complaint; 

That on motion of solicitors for said complainant 
duly made in this Court on the Twenty-third day of 
October, 1912, the said defendant was declared in 

460 



v. GEOBGE KOTSONAS 



default, and leave was granted to said complainant 
to take said bill pro confesso; 

That the defendant, George Kotsonas, is a vendor 
of soft drinks, wholesale and retail, in the City of 
Chicago, Illinois, and that since on or about the 
month of April, 1912, in said City of Chicago, the said 
defendant, totally without said complainant's consent, 
fraudulently and wilfully, with intent to deceive the 
public and to divert trade and profits from and in- 
jure said complainant, and to take advantage of the 
business established and built up by said complainant 
and said predecessors, under the name of Coca-Cola, 
offered for sale and sold, and continues to offer for 
sale and sell and threatens to continue to offer for 
sale, a product which is manufactured in such a way 
as to be most similar to the product of said com- 
plainant, in respect to its general appearance, color 
and consistency, but which is not the product manu- 
factured by said complainant; 

That said sales of said product of the defendant 
have been made when purchasers called for the 
product of said complainant, and that by substituting 
his said product for the product of said complainant 
and by using the name Coca-Cola, said defendant has 
diverted and now diverts and fraudulently intends 
to continue to divert, profits which rightfully should 
come to said complainant and intends to induce pur- 
chasers to buy his product as and for the product 
made by said complainant, and in so doing, to injure 
and destroy the trade-mark of said complainant; 

That it is not necessary in making a drink of the 
kind and character made by said complainant and 
which shall be palatable and have an agreeable taste, 
that it be made to have the color and similarity of 
said complainant's product; 

That said defendant's product is artificially colored 
with caramel which is used as a decorative feature 
to the product of the defendant and is in no wise an 
essential or necessary feature, and there are many 

461 



THE COCA-COLA COMPANY 



other colorings that could be used, and that said 
product of the said defendant could have been made 
having other colors distinct from the color of the 
product of said complainant and which would make 
it possible for one who has become familiar with the 
product of said complainant to differentiate and dis- 
tinguish the product of the defendant from the prod- 
uct of said complainant; 

That the caramel coloring in said complainant's 
product has become associated with long use in the 
minds of the public in said complainant's product. 

It is therefore Ordered, Adjudged and Decreed by 
the Court, that the defendant, George Kotsonas, and 
all his associates, salesmen, servants, clerks, agents, 
workmen, employes and every other person claiming 
or holding under or through the said defendant, or in 
any way connected with his business, be perpetually 
enjoined and restrained from in any way or manner 
making or selling his product in such a way as to 
pass the same as and for the product of said com- 
plainant and from using in any form whatsoever, the 
name Coca-Cola, as applied to any drink except that 
of said complainant, or from serving any product 
except the product of said complainant, when Coca- 
Cola is asked for; 

That said complainant be and is hereby declared 
and adjudged to have a sole and exclusive right to 
the use of the mark or name Coca-Cola, in connection 
with a drink or beverage. 

It is further Ordered, Adjudged and Decreed, That 
the matter be referred to Charles B. Morrison, Esq., 
Master in Chancery of this Court, for the purpose of 
hearing evidence as to the damages suffered by said 
complainant on account of the unlawful acts of said 
defendant, as set forth in said Bill of Complaint, and 
to report back his findings of fact and law thereon. 

It is further Ordered that a writ of Permanent In- 
junction issue to the Marshal of this Court, to be by 
him served upon the defendant, George Kotsonas, 

462 



v. GEORGE KOTSONAS 



returnable according to law, enjoining and restraining 
the said defendant and his respective attorneys, serv- 
ants, agents, associates, workmen, employees and 
representatives, all claiming or holding under or 
through him, as in this Final Decree set forth. 
Enter: KENESAW M. LANDIS, Judge. 

Candler, Thomson & Hirsch, Atlanta, Ga.; Ringer, 
Wilhartz & Louer, Chicago, 111., for Complainant. 

November 26, 1912. 



403 



THE COCA-COLA COMPANY 




No. 133 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 

F. E. WILLIAMS, Jr., and E. J. WILLIAMS, 

doing business as OWL DRUG STORE, 

Defendants. 



FINAL DECREE. 

This cause having been, by agreement of the parties 
hereto and their counsel of record, submitted to 
be heard in Vacation of the Court, and all the parties 
hereto appearing before the undersigned Judge of 
said Court by their attorneys of record and an- 
nouncing that said cause had been settled ancf ad- 
judged out of court by written agreement executed 
by the parties hereto and on file in this cause and 
which is in the following words, to wit: 

"This agreement made and entered into this 
the 23rd day of August, 1916, by and between The 
Coca-Cola Company, a corporation of the State 
of Georgia, County of Fulton, City of Atlanta, as 
party of the first part, and F. E. Williams, Jr., 
and E. J. Williams, doing business as Owl Drug 
Store, of the City of Hattiesburg, County of 
Forrest, State of Mississippi, as parties of the 
second part, 
Witnesseth : 

"Whereas, the party of the first part on the 
13th day of July. 1914, filed its bill of complaint 

464 



v. F. E. WILLIAMS, JR., etc. 



in the District Court of the United States for the 
Southern District of Mississippi, Southern Divis- 
ion, against the parties of the second part, alleg- 
ing infringement by parties of the second part of 
the trade-mark of the party of the first part and 
unfair competition, the said bill of complaint 
being referred to as a part of this agreement 
and as setting out the grounds of complaint made 
by the party of the first part against party of 
the second part: and whereas, it is the desire of 
the parties of the said suit to settle the same; 

"Now, therefore, in consideration of the re- 
linquishment of any claim which party of the 
first part may have against parties of the second 
part for damages on account of the matters and 
things alleged in said bill of complaint, the 
parties of the second part agree that they, their 
associates, servants, clerks, agents, workmen, em- 
ployes and attorneys and each and every person 
under or through them or in any way connected 
with their business, will not in any way or man- 
ner handle, sell or dispense any product for 
and as Coca-Cola that is not the product of the 
party of the first part, and will not sell or ex- 
pose for sale any beverage other than the prod- 
uct of the party of the first part, Coca-Cola, 
having the same peculiar and distinctive appear- 
ance and color of said product of the party of 
the first part, or any such approximation thereof 
as may be likely to deceive the public, without 
such differentiation as will effectually prevent 
the passing off of a spurious product as and for 
the said product of the party of the first part, 
and will not sell any product that is not Coca- 
Cola when Coca-Cola is called for either by its 
proper name, Coca-Cola, or colorable imitation 
thereof or nickname therefor such as 'Dope' 
and 'Koke' or any other name or designation 
commonly applied to the said product of party of 

465 



THE COCA-COLA COMPANY 



the first part and intending to designate the same, 
and will not use said name Coca-Cola as applied 
to any product except the product of the Coca- 
Cola Company. 

"It is further agreed that a decree may be en- 
tered, in Vacation of the Court, in the said 
suit setting out this agreement and confirming 
the same and taxing the costs of suit against 
party of the first part. 

"In Witness Whereof the said parties have 
hereunto set their hands on the day and date first 
above written. 

THE COCA-COLA COMPANY, 
By Caudler, Thomson & Hirsch, 
and Stevens & Cook, Its Attor- 
neys, Party of the First Part. 
I 

OWL DRUG STORE, 
By F. E. Williams, E. J. Wil- 
liams, Parties of Second Part." 



And the parties, by their said attorneys, before the 
undersigned Judge agreeing and consenting thereto, 
it is ordered, adjudged and decreed that the settle- 
ment and adjustment of said cause so set out in said 
agreement be and the same is hereby confirmed and 
adopted as the decree of this court finally determining 
the said cause; that the defendants, F. E. Williams, 
Jr., and E. J. Williams, doing business as Owl Drug 
Store, their associates, servants, clerks, agents, work- 
men, employes and attorneys and each and every 
person under or through them or in any way con- 
nected with their business, be and they are hereby per- 
petually enjoined from the doing of the things or 
any of them which the said defendants stipulate in 
said agreement to refrain from doing; and that the 
complainants in said cause pay the costs of this 
suit. The Clerk is directed to enter this decree on 
the Minutes of this Court. 

406 



v. F. E. WILLIAMS, JR., etc. 



Ordered, Adjudged and Decreed on this the 25th 
day of August, A. D. 1916, at Kosciusko, Mississippi. 

(Signed) H. C. NILES, 

Judge. 

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE 

SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN 

DIVISION. 
In Equity. 

I, JACK THOMPSON, Clerk of the District Court of 
the United States for the Southern District of 
Mississippi, hereby certify that the foregoing attached 
three typewritten pages are full, true and correct 
copies of the original on file and of record in my 
office at Biloxi, in the southern division of said 
district. 

Given under my hand and seal of said district 
Court, at Biloxi, in said District, on the 22nd day of 
August, A. D. 1922. 

(Seal) JACK THOMPSON, Clerk. 

By GEO. P. MONEY, D. C. 



407 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE SOUTHERN DISTRICT 

OF WEST VIRGINIA 



No. 797 IN EQUITY 



THE COCA-COLA COMPANY, a Corporation, 
Complainant, 

v. 

OPERA PHARMACY, a Corporation, 
Defendants. 



This cause came on to be again heard at this term 
and was argued by counsel, and, by agreement of 
counsel, was submitted at this tiyie for final decision. 

And the Court being of opinion that the complain- 
ant was entitled to the temporary injunction hereto- 
fore awarded and that no cause exists for the dissolu- 
tion of the same, and that the complainant is entitled 
to have said temporary injunction perpetuated, upon 
consideration of all of which it was adjudged, ordered 
and decreed that the defendant, Opera Pharmacy, its 
associates, salesmen, servants, clerks, agents, work- 
men and employees, and each and every person claim- 
ing under, by or through said defendant, be, and they 
are hereby perpetually inhibited, restrained and en- 
joined as follows : 

First: From infringing upon the trade rights of 
The Coca-Cola Company as set forth in its bill of 
complaint, and from any and all further commission of 
acts of substitution as therein described; 

Second: From selling and delivering, in response 
to requests or orders for Coca-Cola, any beverage, 
other than that made from the Coca-Cola syrup manu- 
factured by the complainant; 

Third: From using any name sufficiently similar to 
the name Coca-Cola, or any name, applying to any 

468 



v. OPERA PHARMACY 



drink, as to cause deceit in respect to the complain- 
ant's product Coca-Cola; 

Fourth-. From marketing any product of the same 
identical or similar color used by said complainant 
in its said Coca-Cola syrup product; 

Fifth: From selling, or exposing for sale, any 
beverage other than the complainant's product Coca- 
Cola, having the peculiar and distinctive color and 
appearance of said product, or any such approxima- 
tion thereof as may be likely to deceive the public 
without such differentiation as will effectually pre- 
vent the passing off or substitution of any such 
spurious product as and for the product of the com- 
plainant known as Coca-Cola, 

And by consent of parties, and in lieu of an ac- 
counting for damages for sales by the defendant of 
substituted articles in the place and stead of the 
plaintiff's product Coca-Cola, it is agreed that prior 
to the institution of this suit the complainant has 
suffered damages by reason of the unlawful substi- 
tutions by the defendant for the complainant's manu- 
factured product Coca-Cola in the sum of thirty-seven 
dollars and fifty cents ($37.50), and that the com- 
plainant is entitled to recover said sum from the de- 
fendant as damages in this suit. 

It is therefore adjudged, ordered and decreed that 
the complainant, The Coca-Cola Company, a cor- 
poration, do recover of and from the defendant, Opera 
Pharmacy, a corporation, the sum of thirty- 
seven dollars and fifty cents ($37.50), together with 
its costs about the prosecution of its suit in this Court 
incurred, to be taxed by the Clerk of this Court, and 
leave is given said complainant to sue out execution 
therefor from the Clerk's office. And it is further 
ordered that a service of a copy of this order upon 
the defendant, Opera Pharmacy, or its attorney of 
record in this cause, shall be due and sufficient notice 
of this injunction, and this cause is ordered dropped 
and dismissed from the docket, but with leave to the 

4G9 



THE COCA-COLA COMPANY 



complainant upon motion to have the same reinstated 
at any time to invoke the process of this Court for 
the enforcement of the injunction awarded or the 
punishment of any violation thereof, or for further 
and appropriate relief which may be necessary to 
fully protect the rights of the complainant as ad- 
judicated herein. 

UNITED STATES OF AMERICA, ) 

ss 
SOUTHERN DISTRICT OF WEST VIRGINIA. ( 

I, Ira H. Mottesheard, Clerk of the District Court 
of the United States for the Southern District of 
West Virginia, do certify that the foregoing is a true 
copy from the record of an order entered on the 22nd 
day of October, 1915, and 30th day of November, 1915, 
in the cause of The Coca-Cola Company, a corpora- 
tion, v. Opera Pharmacy, a corporation, and now of 
record and on file in my office. 

In- Testimony Whereof I hereto set my hand and 
the seal of said Court, at Charleston, in said District, 
this 25th day of August, A. D. 1922, and in the 147th 
year of the Independence of the United States of 
America. 

IRA H. MOTTESHEARD, Clerk, 
( Seal) D. C. U. S. S. D. W. Va. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; Mollo- 
han, McClintie & Mathews, Charleston, W. Va., for 
Complainant. 



470 




No. 2924 IN EQUITY 



THE COCA-COLA COMPANY, a Corporation 

under the laws of the State of Georgia, 

Complainant, 

v. 

NEWPORT MINERAL WATER COMPANY, a Cor- 
poration organized and existing under the laws 
of the State of Kentucky, Defendant. 



FINAL DECREE. 

This cause came on to be further heard at this 
term and it appearing that a decree pro confesso was 
taken by complainant herein on August 22, 1914, and 
that no proceedings have been taken by the defend- 
ant to set aside said decree, now upon motion of 
Murray Seasongood, solicitor for complainant, and 
upon consideration of the foregoing, it is ordered, 
adjudged and decreed as follows, viz.: 

That the defendant, Newport Mineral Water Com- 
pany, a corporation organized and existing under 
the laws of the State of Kentucky, its officers, agents, 
employes, privies and all persons whatsoever be and 
they are hereby perpetually enjoined, prohibited and 
commanded to refrain from bottling or selling Gay- 
Ola or other beverage of the same or substantially 

471 



THE COCA-COLA COMPANY 



the same color as Coca-Cola, in any bottle, or with 
any crown, substantially similar in size, shape, color 
or lettering or general appearance, to the bottle or 
crown in which complainant bottles and sells its 
product; from bottling or selling Gay-Ola or other 
beverage of substantially the same color as Coca- 
Cola, except in a long-necked, clear-glass bottle, hav- 
ing two complete annular ribs and two partially com- 
plete annular 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. 

Complainant is given leave to apply at any time for 
an accounting as prayed for in the bill of complaint. 

It is further ordrrcfl that complainant recover its 
costs of the defendant. 

A. M. J. COCHRAN, 

Judge. 
THE UNITED STATES OF AMERICA, 



EASTERN DISTRICT OF KENTUCKY. ' * 

I, J. W. Menzies, Clerk of the United States Dis- 
trict Court for the Eastern District of Kentucky, 
at Covington, do hereby certify that the foregoing 
is a true and correct copy of the Final Decree in the 
matter set out in the caption hereto, as the same 
appears from the records and files of this office. 

Witness my hand as Clerk and the seal of said 
Court, at Covington, Ky., this 25th day of September, 
1922, and of the Independence of the United States 
of America the 147th year. 

J. W. MENZIES, Clerk, 
(Seal) By J. A. BODKIN, D. C. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; Paxton, 
Warrington & Seasongood, Cincinnati, Ohio, for Com- 
plainant. 



472 




No. 12 IN EQUITY 



THE COCA-COLA COMPANY, a Corporation, 

Complainant, 

v. 

THE HOTEL RAND COMPANY, a Corporation, 
and GEORGE EGNER, Defendants. 



FINAL DECREE. 

This cause came on to be heard further at this 
term, and it appearing that a decree pro confesso was 
taken by complainant herein on October 13, 1913, 
and that no proceedings have been taken by defend- 
ants to set aside said decree and that the complain- 
ant desires to and does dismiss its bill against the 
defendant, The Hotel Rand Company, now, upon mo- 
tion of Murray Seasongood, solicitor for complainant, 
and upon consideration of the foregoing, it is or- 
dered, adjudged and decreed as follows, viz. : 

That the defendant, George Egner, his agents, em- 
ployes, associates and each and every person con- 
nected with his business be and they are hereby per- 
petually enjoined, prohibited and commanded to re- 
frain : 

From in any way or manner selling or dispensing 
the drink and beverage known as Gay-Ola in place 
of and for the drink known as Coca-Cola; 

From selling or dispensing Gay-Ola when Coca- 
Cola is asked or called for; 

473 



THE COCA-COLA COMPANY 



From in any way or manner selling or dispensing 
any other syrup, drink or beverage of the same or 
substantially the same color, consistency and gen- 
eral appearance as Coca-Cola, in place of or for Coca- 
Cola, or when said Coca-Cola is asked or called for; 

From in any way or manner selling or dispensing 
said Gay-Ola in glasses or similar receptacles, so long 
as said syrup, drink or beverage Gay-Ola shall have 
its present color, consistency and general appearance, 
or shall have the same or substantially the same 
color, consistency and general appearance of Coca- 
Cola; 

From disposing of Gay-Ola of the same or substan- 
tially similar color to Coca-Cola, except when the 
same is sold in bottles, receptacles or packages marked 
or labeled prominently with the name Gay-Ola, and 
designed and intended to be sqld and delivered to 
the ultimate consumer in said original bottle, recep- 
tacle or package with said mark or label still re- 
maining thereon. 

It is further ordered that the complainant recover 
its costs of the defendant, George Egner. 

Entered by JUDGE HOLLISTEK, April 4, 1914. 

Gaudier, Thomson & Hirsch, Atlanta, Ga. ; Paxton, 
Warrington & Seasotigood, Cincinnati, Ohio, for Com- 
plainant. 



474 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE WESTERN 

DISTRICT OF KENTUCKY 



THE COCA-COLA COMPANY, Complainant, 

v. 

JOHN G. EPPING, JOHN W. BLACK, JOHN G. 
EPPING BOTTLING WORKS, Defendants. 



DECREE. 

Comes the complainant, The Coca-Cola Company, 
and the defendants, John G. Epping, John G. Epping 
Bottling Works and John W. Black, and by agree- 
ment, this action is submitted in chief on the verified 
allegations of the complainant, and the Court being 
sufficiently advised, it is considered, ordered and 
decreed: 

That the defendants, John G. Epping, John G. 
Epping Bottling Works and John W. Black, their 
agents, servants and employes, and each of them, be 
and they are hereby enjoined: 

1. From marketing, selling or substituting as and 
for Coca-Cola any product that is not the Coca-Cola 
product manufactured by the complainant company. 

2. From selling or exposing for sale any beverage 
other than the product Coca-Cola manufactured by 
the complainant and having the peculiar and dis- 
tinctive color and appearance of its product or any 
such approximation thereof as likely may deceive the 
public, without such differentiation in the name and 
labeling the containers thereof as will effectually pre- 
vent the passing off of a spurious product as and 
for the product of the complainant. 

3. From selling out their own product in barrels 
or other containers upon which the name of the 

475 



THE COCA-COLA COMPANY 



Coca-Cola Company in any wise appears or the name 
of any other products of the Coca-Cola Company ap- 
pears without first removing any and all such dis- 
tinguishing marks from the barrels or other con- 
tainers. 

4. That the plaintiff, in lieu of an accounting, 
recover of the defendants, John G. Epping, John G. 
Epping Bottling Works and John W. Black, the sum 
of One Hundred ($100) Dollars, and the costs of this 
proceeding. 

5. This action is reserved for such further and 
other orders and proceedings as may be necessary 
to uphold and enforce this decree. 

Candler, Thomson < Hirsch, Atlanta, Georgia; 
Selligman & Selligman, Louisville, Kentucky, for 
Complainant. I 



476 




No. 4916 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 
LA SALLE CANDY SHOP, Incorporated, Defendant. 



FINAL DECREE. 

Now this day the parties hereto consenting to the 
entry of this final decree, as evidenced by their stipu- 
lation hereto attached and herewith filed, the Court 
doth 

Order, Adjudge and Decree that the defendant 
LaSalle Candy Shop, Incorporated, its officers, share- 
holders, agents, servants and employees and each of 
them be and they are hereby forever and perpetually 
enjoined and restrained 

(a) From infringing upon the trade rights of plain- 
tiff described in the bill of complaint; 

(b) From selling and delivering, in response to 
calls for Coca-Cola, any beverage other than that 
made from the Coca-Cola syrup manufactured by 
plaintiff. 

(c) From using the name Coca-Cola or any other 
name sufficiently similar to the name Coca-Cola, as to 
cause deceit. 

(d) From selling or exposing for sale, any beverage 
other than plaintiff's product, Coca-Cola, having the 
peculiar and distinctive color and appearance of 
plaintiff's product, or any such approximation 

477 



THE COCA-COLA COMPANY 



thereof, as may be likely to deceive the public, with- 
out such differentiation as will effectually prevent 
the passing off of a spurious product as and for the 
product of plaintiff. 

(e) That there shall be no accounting of profits or 
damages herein, the same being waived by plaintiff. 

(f) That plaintiff have arid recover of defendant 
LaSalle Candy Shop, Incorporated, its costs herein, 
to be taxed by the Clerk under the direction of the 
Court and that execution issue therefor. 

Dated at St. Louis, Missouri, this 25th day of Sep- 
tember, 1918. 

DAVID P. DYER, 

Judge. 

STIPULATION. 

The parties hereto hereby consent to the entry of 
the above and foregoing decree. 

Dated at St. Louis, Missouri, this 25th day of Sep- 
tember, 1918. 

Candler, Thomson & Hirsch, James Love Hopkins, 
Attorneys for Plaintiff. 

Joseph Block, Attorney for Defendant. 



478 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE WESTERN DISTRICT 

OF KENTUCKY, AT BOWLING GREEN 



No. 2 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 

OSCAR C. FLETCHER, doing business as FLETCH- 
ER DRUG COMPANY, Defendant. 



FINAL DECREE. 

Complainant and defendant having this day ten- 
dered a stipulation in writing, .which is now ordered 
filed, agreeing that the verified allegations of the 
bill of complaint are true and consenting that this 
action may be now finally submitted to the Court 
upon the bill of complaint and said stipulation, and 
the Court now being sufficiently advised, it is 
ordered, considered and adjudged that the defend- 
ant, Oscar G. Fletcher, doing business as the Fletcher 
Drug Company, its agents, servants and employes 
and each of them be and they are hereby enjoined: 

1. From infringing upon the trade rights of the 
Coca-Cola Company, as in the Bill of Complaint de- 
scribed, and from the further commission of the acts 
of substitution as therein described. 

2. From selling and delivering in response to re- 
quests of orders for Coca-Cola any beverage other 
than that made from the Coca-Cola syrup manufac- 
tured by the complainant. 

3. From using any name sufficiently similar to the 
name "Coca-Cola," or any name applied to any drink, 
as to cause deceit. 

479 



THE COCA-COLA COMPANY 



4. From marketing a product of the same identical 
or similar color as the product of the complainant 
so as to cause deceit. 

5. From selling or exposing for sale any beverage 
other than the product Coca-Cola, having the peculiar 
and distinctive color and appearance of its product, 
or any such approximation thereof as may be likely 
to deceive the public, without such differentiation as 
will effectually prevent the passing off of a spurious 
product as and for the product of the complainant. 

No accounting of profits or damages in the premises 
is required of the defendant. 

The defendant will pay the costs of this action. 

This action is reserved for such further and other 
orders and proceedings as may be necessary to up- 
hold and enforce this decree. 

Entered February 21, 1917. 

A Copy: Attest. 
A. C. ARNOLD, 

Clerk. 



480 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE WESTERN DISTRICT 

OF KENTUCKY, AT BOWLING GREEN 



No. 2 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 

OSCAR C. FLETCHER, doing business as 
FLETCHER DRUG COMPANY, 

Defendant. 



ORDER. 

This day appeared the plaintiff, The Coca-Cola 
Company, by Alfred Selligman, its counsel, and 
moved the Court as follows: 

"Now comes the plaintiff and moves the Court 
for a rule upon the defendant to show cause why 
he should not be attached for contempt for vio- 
lation of the injunction heretofore granted in this 
cause, and for the reason says that on or about 
the 21st day of February, 1917, a decree was 
rendered herein enjoining Oscar C. Fletcher, his 
agents, servants and employes, and each of them: 

"1. From infringing upon the trade rights of 
The Coca-Cola Company as in the bill of com- 
plaint described, and from his further commis- 
sion of the acts of substitution as herein de- 
scribed. 

"2. From selling and delivering in response to 
requests or orders for Coca-Cola any beverage 
other than that made from the Coca-Cola syrup 
manufactured by the complainant. 

481 



THE COCA-COLA COMPANY 



"3. From using any name sufficiently similar 
to the name Coca-Cola or any name applied to 
any drink as to cause deceit. 

"4. From marking a product of the same, iden- 
tical or similar color as the product of the com- 
plainant so as to cause deceit. 

"5. From selling or exposing for sale any bev- 
erage other than the product Coca-Cola having a 
peculiar and distinctive color and appearance of 
its product, or any such approximation thereof 
as may be likely to deceive the public, without 
such differentiation as will effectually prevent the 
passing off of a spurious product as and for the 
product of the complainant. 

"6. That the said decree is still in force and 
effect, and a copy of said decree is hereto at- 
tached and marked Exhibit 'A' and made a part 
hereof. 

"7. That since the issuing of said injunction 
defendant, in violation of the rights of the plain- 
tiff and of the injunction aforesaid, has sold a 
product in response to requests for Coca-Cola a 
beverage other than that made from the Coca- 
Cola syrup manufactured by the complainant, and 
that it has further sold a product other than 
Coca-Cola having a color similar in approxima- 
tion of the peculiar and distinctive color and ap- 
pearance of Coca-Cola without such differentia- 
tion as will effectually prevent the passing off of 
a product as and for the product of the com- 
plainant to the great and irreparable damage and 
injury to the complainant. 

"Wherefore, complainant prays: 

"(a) For an order that a rule be issued on the 
defendant to appear before this Court to show 
cause why it should not be committed- or fined for 
contempt for violation of the injunction hereto- 
fore ordered and issued in this cause;" 

482 



v. OSCAR C. FLETCHER, etc. 



and in support of said motion filed the affidavits of J. 
F. Wimbish, W. C. Dumas, Franklin S. Chalmers, 
Charles Howard Candler, C. E. Caspari, William W. 
Rigsby, B. J. Sells, E. L. Roddy and W. P. Heath. 

It is ordered that the above motion be set for hear- 
ing in the Federal Court Hall at Louisville, Kentucky, 
at 10 o'clock a. m., Monday, January 30, 1922,. and the 
Clerk is directed to give notice of said hearing to 
the defendant by mailing to him at Bowling Green, 
Kentucky, a certified copy of this order. 

UNITED STATES OF AMERICA, ) ^ 

WESTERN DISTRICT OF KENTUCKY, j k 

I, A. G. RONALD, Clerk of the District Court of the 
United States, for said Western District of Kentucky, 
do hereby certify the above and foregoing to be a true 
and complete copy of the order entered in said court, 
on the 24th day of January, A. D. 1922, in the cause 
wherein The Coca-Cola Company is the Plaintiff and 
Oscar C. Fletcher, doing business as Fletcher Drug 
Company, is the Defendant, as the same appears from 
the original now remaining in my custody and con- 
trol. 

In Testimony Whereof, I have hereunto set my 
hand and affixed the seal of said court, this 15th day 
of February, A. D. 1922. 

(Sd.) A. G. RONALD, Clerk, 

By M. W. BEARD, D. C. 



483 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE WESTERN DISTRICT 

OF KENTUCKY, AT BOWLING GREEN 



THE COCA-COLA COMPANY, Complainant, 

v. 

OSCAR C. FLETCHER, doing business as 

FLETCHER DRUG COMPANY, 

Defendant. 



Comes the plaintiff, The Coca-Cola Company by 
Selligman <& Selligman, its attorneys, and Oscar C. 
Fletcher, in his own proper person and by Thomas, 
Thomas & Logan, his attorneys, jand state: 

1. That since motion for the issuing of a rule herein 
the defendant has paid to the complainant the sum of 
$250.00 which has been accepted in lieu of an ac- 
counting which may be due by the defendant to the 
Complainant to this date for a violation of the said 
injunction entered herein. 

2. The complainant and the defendant respectfully 
submit this matter to the Court, the complainant 
stating that any nominal fine which it may please the 
Court to enter for the violation of the injunction 
herein, carrying with it the costs of this proceeding 
will be satisfactory to the said complainant. 

3. The original decree entered herein shall continue 
in full force and effect, and this action shall be re- 
served for such further and other orders and pro- 
ceedings as may be necessary to uphold and enforce 
the said original decree. 

Candler, Thomson & Hirsch, Selligman & Sellig- 
man, Attorneys for Complainant. 

Oscar C. Fletcher. 

Thomas, Thomas & Logan, Attorneys for Defendant. 

484 



v. OSCAR C. FLETCHER, etc. 



UNITED STATES OF AMERICA, | 

WESTERN DISTRICT OF KENTUCKY. J 

I, A. G. RONALD, Clerk of the District Court of the 
United States, for said Western District of Kentucky, 
do hereby certify the above and foregoing to be a 
true and complete copy of the Agreement entered in 
said court, on the 30th day of January, A. D. 1922, in 
the cause wherein The Coca-Cola Company is the 
Complainant and Oscar C. Fletcher, doing business as 
Fletcher Drug Company the Defendant, as the same 
appears from the original now remaining in my 
custody and control. 

In testimony whereof, I have hereunto set my hand 
and affixed the seal of said court, this 21st day of 
February, A. D. 1922. 

A. G. RONALD, Clerk, 
By M. W. BEARD, D. C. 



485 



THE COCA-COLA COMPANY 



UNITED STATES DISTRICT COURT, 
WESTERN DISTRICT OF KENTUCKY 



THE COCA-COLA COMPANY, Complainant, 

v. 
OSCAR C. FLETCHER, Defendant. 



ORDER. 

The parties have agreed that the defendant pay to 
complainant the sum of $250 in lieu of an accounting 
to this date and agreeing that the costs of this case 
be paid by defendant, it is ordered that the motion 
for* said rule be dismissed, tha^t defendant pay the 
costs of this proceeding; that this action be retained 
for such further rules and orders as may be necessary 
to enforce the original decree herein which is con- 
tinued in full force and effect. 

WALTER EVANS, Judge. 

Seen: Thomas, Thomas & Logan, for Defendant. 

Candler, Thomson & Hirsch, Selligman & Sellig- 
man, for Complainant. 

Entered: January 30, 1922. 

UNITED STATES OF AMERICA. 
WESTERN DISTRICT OF KENTUCKY. 

I, A. G. RONALD, Clerk of the District Court of the 
United States, for said Western District of Kentucky, 
do hereby certify the above and foregoing to be a true 
and complete copy of the Order entered in said court, 
on the 30th day of January, A. D. 1922, in the cause 
wherein The Coca-Cola Company is the Plaintiff and 
Oscar C. Fletcher, doing business as Fletcher Drug 

486 



v. OSCAR C. FLETCHER 



Company is the Defendant, as the same appears 
from the original now remaining in my custody and 
control. 

In testimony whereof, I have hereunto set my hand 
and affixed the seal of said court, this 15th day of 
February, A. D. 1922. 

A. GL RONALD, Clerk, 
By M. W. BEAKD, D. C. 



487 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE EASTERN DIVISION 
OF THE WESTERN DISTRICT OF 
TENNESSEE, AT JACKSON 



No. 23 IN EQUITY 



THE COCA-COLA COMPANY 

v. 
L. W. BATES. 



This cause by consent and agreement of the parties 
was this day finally heard by the Court upon the 
entire record in the cause including the written 
agreement of the parties heretofore filed in the cause 
as a part of the record, whereupon it is ordered, ad- 
judged and decreed by the Court, by and with the 
consent of the parties to this suit as evidenced by 
their said written agreement, that the temporary 
injunction heretofore granted by interlocutory decree 
of the Court entered in this cause, be and the same 
is hereby made permanent and that the defendant 
L. W. Bates be and he is hereby perpetually en- 
joined: 

1st. From in any way or manner selling a product 
as and for Coca-Cola, or in any way or manner pass- 
ing off any product as and for Coca-Cola, that is not 
the product of The Coca-Cola Company, the com- 
plainant herein: 

2nd. From marketing a product with the same 
identical color so long used by the complainant in 
marketing its product unless it be distinctly tagged 
with the name of the real producer, in such manner 
that the ultimate consumer will be fairly advised that 
he is not getting complainant's Coca-Cola, but is 
getting something else, and that if sold in bottles or 
other containers that the same shall be stamped and 

488 



v. L. W. BATES 



labeled prominently with the name of the product: 

3rd. From using a crown upon bottles containing 
a product other than Coca-Cola as manufactured and 
sold by complainant, which is decorated with the 
same character of script so long used by The Coca- 
Cola Company to designate its product or having 
thereon a name similar to the name of complainant, 
or from using any crown so decorated that it will 
tend to cause confusion and deception to the ultimate 
consumer : 

4th. From selling any product that is not Coca-Cola 
as and for Coca-Cola when Coca-Cola is called for, 
and from using said name Coca-Cola as applied to any 
product except the product of the complainant in this 
cause : 

And that the defendant and all of his associates, 
salesmen, servants, clerks, agents, workmen, employes 
and attorneys, and each and every person claiming 
by, through, or under said defendant, or in any way 
connected with his business, be perpetually enjoined 
and restrained as aforesaid. 

It is further ordered, adjudged and decreed by the 
Court, by and with the consent of the parties, that 
the complainant The Coca-Cola Company have and 
recover of the defendant L. W. Bates all the cost of 
this suit for the collection of which execution is 
awarded, and further that so much of the Bill as 
seeks any recovery against the defendant L. W. Bates 
as damages be and the same is hereby dismissed, 
without any cost, however, to the complainant as 
by the agreement of the parties all the cost of the 
suit is to be paid by the defendant L. W. Bates as 
above adjudged. 

Enter : McCALL, 

Judge. 

Above Decree Approved and 0. K. 
Candle r, Thomson & Hirsch, and W. G. Timber- 
lake et al., Solicitors for The Coca-Cola Company. 
L. L. Fonville, Solicitor for L. W. Bates. 

489 



THE COCA-COLA COMPANY 



I, J. SAM JOHNSON, Clerk of the District Court of 
the United States, for the Western District of Ten- 
nessee, do hereby certify that the paper hereto at- 
tached is a full, true and correct copy of the original 
Order making the Temporary Injunction Permanent 
in said Court as the same now appears of record and 
upon the files in my office, in the following cause, 
to wit : The Coca-Cola Company v. L. W. Bates. 

In Testimony Whereof, I have hereunto written my 
name and affixed the Seal of said Court, at my office 
in the City of Jackson, Tennessee, this 29th day of 
August, 1922, and of the Independence of the United 
States the 147th Year. 
(Seal) J. SAM JOHNSON, Clerk. 

AUTHENTICATION. 

I, J. W. Ross, a Judge of said Court, do hereby 
certify that J. Sam Johnson, whose genuine signature 
appears to the foregoing certificate is, and Was at the 
date of the same, Clerk of said Court and that his 
attestation is in due form. 

J. W. Ross, 

Judge of the District Court of the 
United States for the District 
aforesaid. 



490 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN DIVISION 

OF THE WESTERN DISTRICT OF 

TENNESSEE, AT JACKSON 



No. 23 IN EQUITY 



THE COCA-COLA COMPANY 

v. 
L. J. BATES. 



This cause by consent and agreement of the par- 
ties was this day finally heard by the Court upon the 
entire record in the cause including the written agree- 
ment of the parties heretofore filed in the cause as a 
part of the record, whereupon it is ordered, adjudged 
and decreed by the Court, by and with the consent 
of the parties to this suit as evidenced by their said 
written agreement, that the temporary injunction 
heretofore granted by interlocutory decree of the 
Court entered in this cause, be and the same is hereby 
made permanent and that the defendant L. J. Bates 
be and he is hereby perpetually enjoined: 

1st. From in any way or manner selling a product 
as and for Coca-Cola, or in any way or manner pass- 
ing off any product as and for Coca-Cola, that is not 
the product of The Coca-Cola Company, the com- 
plainant herein: 

2nd. From marketing a product with the same iden- 
tical color so long used by the complainant in market- 
ing its product unless it be distinctively tagged with 
the name of the real producer, in such manner that 
the ultimate consumer will be fairly advised that he 
is not getting complainant's Coca-Cola, but is getting 
something else, and that if sold in bottles or other 
containers that the same shall be stamped .and labeled 
prominently with the name of the product; 

491 



THE COCA-COLA COMPANY 



3rd. From using a crown upon bottles containing a 
product other than Coca-Cola as manufactured and 
sold by complainant, which is decorated with the 
same character of script so long used by the Coca- 
Cola Company to designate its product or having 
thereon a name similar to the name of complainant, 
or from using any crown so decorated that it will 
tend to cause confusion and deception to the ulti- 
mate consumer; 

4th. Prom selling any product that is not Coca- 
Cola as and for Coca-Cola when Coca-Cola is called 
for, and from using said name Coca-Cola as applied 
to any product except the product of the complainant 
in this cause. 

And that the defendant and all of his associates, 
salesmen, servants, clerks, agents, workmen, employes 
and attorneys, and each and evbry person claiming 
by, through or under said defendant, or in any way 
connected with his business, be perpetually enjoined 
and restrained as aforesaid. 

It is further ordered, adjudged and decreed by the 
Court, by and with the consent of the parties, that 
the complainant The Coca-Cola Company have and re- 
cover of the defendant L. J. Bates all the cost of this 
suit for the collection of which execution is awarded 
and further that so much of the bill as seeks any re- 
covery against the defendant, L. J. Bates, as damages 
be and the same is hereby dismissed, without any 
cost, however, to the complainant as by the agree- 
ment of the parties all the cost of the suit is to be 
paid by the defendant L. J. Bates as above ad- 
judged. 

Enter : 



Above Decree Approved' and 0. K. 

Candler, Thomson & Hirsch, and W. G. Timber- 
lake et al., Solicitors for The Coca-Cola Company. 

L. L. Fonvllle, Solicitor for L. J. Bates. 

402 



v. L. J. BATES 



I, J. SAM JOHNSON, Clerk of the District Court of 
the United States, for the Western District of Ten- 
nessee, do hereby certify that the paper hereto at- 
tached is a full, true, perfect and correct copy of the 
original order making the Temporary Injunction Per- 
manent in said Court as the same now appears of 
record and upon the files in my office, in the follow- 
ing cause, to wit: 

The Coca-Cola Company 

v. 

L. J. Bates. 

In Testimony Whereof, I have hereunto written my 
name and affixed the Seal of said Court, at my office 
in the City of Jackson, Tennessee, this 29th day of 
August, A. D. 1922, and of the Independence of the 
United States the 147th Year. 

J. SAM JOHNSON, Clerk. 

AUTHENTICATION. 

I, J. W. Ross, a Judge of said Court, do hereby 
certify that J. Sam Johnson, whose genuine signa- 
ture appears to the foregoing certificate is, and was at 
the date of the same, Clerk of said Court and that 
his attestation is in due form. 

J. W. Ross, 

Judge of the District Court of the 
United States for the District 
aforesaid. 



493 



IN THE DISTRICT COURT 

OF THE UNITED STATES 

FOR THE DISTRICT OF 

NEBRASKA, OMAHA 

DIVISION 



No. 474 IN EQUITY 



I 

THE COCA-COLA COMPANY, Plaintiff, 

v. 

W. W. YAGER, trading as CURO MINERAL 
SPRINGS COMPANY, Defendant. 



FINAL DECREE. 



CANDLER, THOMSON & HIRSCH, 
KENNEDY, HOLLAND, DELACY & MCLAUGHLIN, 
Solicitors for Plaintiff. 

MURPHY & WINTERS, 

Solicitors for Defendant. 



494 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE DISTRICT OF 

NEBRASKA, OMAHA DIVISION 



No. 474 IN EQUITY 



THE COCA-COLA COMPANY, Plaintiff, 

v. 

W. W. YAGER, trading as CUEO MINERAL 
SPRINGS COMPANY, Defendant. 



FINAL DECREE. 

This cause coming on for final hearing (the defend- 
ant consenting thereto), it is Ordered, Adjudged and 
Decreed as follows : 

I. 

That the Court has jurisdiction of the subject mat- 
ter and of the parties to this suit. 

II. 

That the word " Coca-Cola" is a valid trade-mark 
of which the plaintiff is the sole owner. 

III. 

That plaintiff alone is entitled to use the trade- 
mark " Coca-Cola" and that its goods alone can law- 
fully be sold under that name. 

IV. 

That The Coca-Cola Company, a Georgia corpo- 
ration, then being the owner of the trade-mark ' ' Coca- 
Cola," duly registered its said trade-mark under and 
in conformity with the Act of Congress, approved 
March 3, 1891, entitled: "An Act to authorize the 
registration of trade-marks and to protect the same," 
and under the Act of Congress of February 20, 1905, 
entitled: "An Act to authorize the registration of 

495 



THE COCA-COLA COMPANY 



trade-marks used in commerce with foreign nations 
or among the several states or with Indian tribes and 
to protect the same"; that said registrations, num- 
bered 22,406 and 47,189, respectively, are valid and 
subsisting and, in connection with the business and 
good will, by proper assignments duly recorded, as 
provided by law, became and now are the sole prop- 
erty of the plaintiff, and that the plaintiff is entitled 
to the rights and remedies provided in said statutes. 

V. 

That the words "Curo-Cola," "Curo" and "Cola," 
adopted and used by defendant in connection with 
merchandise sold by him, are infringements of plain- 
tiff 's said trade-mark "Coca-Cola," are copies or 
colorable imitations thereof within the meaning of 
the Act of Congress of February 20, 1905; and that 
the defendant has affixed one oij more of said copies 
or colorable imitations to merchandise of substantially 
the same descriptive properties as those set forth in 
plaintiff's said registrations, and has used one or 
more of said copies or colorable imitations in com- 
merce among the several states of the United States, 
and that defendant thereby has infringed plaintiff's 
said registered trade-mark. 

VI. 

That defendant has applied to packages containing 
his said product, decorated crowns with a color 
scheme and script lettering thereon so nearly re- 
sembling the distinctive decorated crowns of the 
plaintiff, that defendant thereby has competed un- 
fairly with the plaintiff. 

VII. 

That the said defendant, W. W. Yager, his agents, 
servants, employes, attorneys, assigns and licensees, 
and all acting by or under his authority be, and the 
same hereby, each and all are perpetually enjoined 
and restrained from using or employing, in connec- 
tion with advertising, or offering for sale, or sale of 
any beverage or ingredient thereof, plaintiff's trade- 

496 



v. W. W. YAGER, Etc. 



mark "Coca-Cola" or any like word, or the colorable 
imitation thereof "Curo-Cola" or any like word, or 
the colorable imitation thereof "Curo" or any like 
word, or the colorable imitation thereof "Cola" or 
any like word, and from using script lettering identi- 
cal with or like the script lettering used by the plain- 
tiff or defendant (upon beverages or ingredients of 
beverages of the same descriptive properties as the 
beverages of plaintiff), and from selling or offering 
for sale, furnishing or supplying, in response to re- 
quests for Coca-Cola, any product, not the plaintiff's, 
to requests for Coca-Cola, and further, from doing 
any act or thing, or using any name, artifice or con- 
trivance which may be calculated or likely to cause 
any product not the plaintiff's to be sold as and for 
the product of plaintiff; and especially from using 
any bottles bearing the imprint of the trade-mark 
"Coca-Cola"; and that a writ of perpetual injunc- 
tion issue accordingly. 

VIII. 

That the plaintiff is entitled to have and recover of 
and from the said defendant, the profits derived by 
said defendant by reason of his infringements and un- 
fair competition herein restrained, and for the dam- 
ages sustained by the plaintiff by reason thereof, and 
said plaintiff electing to waive said accounting of 
damages and profits, the Court finds the sum of $1.00 
in lieu thereof, and it is further Ordered, Adjudged 
and Decreed that plaintiff do have and recover of 
and from said defendant the said sum of $1.00, to- 
gether with the costs of this suit to be taxed, and 
have execution therefor, attorneys' docket fee being 
waived not to be taxed. 

Enter this 20th day of November, 1922. 

J. W. WOODROUGH, 

United States District Judge. 

497 



THE COCA-COLA COMPANY 



We consent to the entry of this decree : 

Candler, Thomson & Hirsch, Kennedy, Holland, 
DeLacy & McLauglilin, Solicitors for Plaintiff. 

Murphy & Winters, Solicitors for Defendant. 

UNITED STATES OF AMERICA,) 
DISTRICT OF NEBRASKA, > ss. 

OMAHA DIVISION. ) 

I, R. C. HOYT, Clerk of the United States District 
Court for the District of Nebraska, do hereby certify 
that the foregoing is a true and correct copy of the 
original thereof, which original is now in my custody 
as such Clerk. 

Witness my hand as Clerk, and the seal of said 
Court, at Omaha, Nebraska, tliis 20th day of No- 
vember, 1922. 

R. C. HOYT, Clerk, 
JOHN NICHOLSON, Deputy. 



498 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE DISTRICT 

OF MISSISSIPPI 



No. 134 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 

J. T. MASON and GEORGIANA A. MASON, doing 

business as CORNER DRUG STORE, 

Defendants. 



This cause came on to be heard at this term and 
was argued by counsel for complainant, and there- 
upon, upon consideration thereof, it was ordered, 
adjudged and decreed as follows, viz. : 

That the complainant has the sole and exclusive 
right to the use of the trade-mark or trade name, 
"Coca-Cola" in connection with a drink or beverage; 
that the question of the amount of damages is not 
decided, but is expressly left open for determination 
in a separate suit should complainant desire its claim 
pressed therefor; that the defendants, their associ- 
ates, salesmen, servants, clerks, agents, workmen, 
employees, attorneys, and each and every person 
claiming by or through said defendants be and they 
are hereby enjoined and restrained from infringing 
upon the trade-mark "Coca-Cola" and the trade 
rights of complainant set out in the bill of complaint 
and from the further commission of the acts of sub- 
stitution complained of in the bill of complaint filed 
in this cause, and from applying to any syrup not 
manufactured by complainant the name "Coca-Cola" 
or any other word or words of like sound or import 
and from selling and delivering in response to re- 
quests or orders for Coca-Cola any beverage other 
than that made from the "Coca-Cola" syrup manu- 
factured by complainant and from using any name 
sufficiently similar to the name "Coca-Cola" to cause 

499 



THE COCA-COLA COMPANY 



deceit, and from marketing a product of the same 
identical or similar color so long used by complain- 
ant in marketing its product as set out in said bill 
of complaint and shown by the proof; and from sell- 
ing or exposing for sale any beverage other than 
complainant's product "Coca-Cola" having the same 
peculiar and distinctive appearance and color of com- 
plainant's said product or any such approximation 
thereof as may be likely to deceive the public, with- 
out such differentiation as will effectually prevent the 
passing off of a spurious product as and for the said 
product of the complainant, and from marketing a 
product with the same identical or similar color as 
that used by the complainant in marketing its prod- 
uct when the customer asks for Coca-Cola, the prod- 
uct of complainant, whether the request is made for 
Coca-Cola in its proper name, "Qoca-Cola", or in any 
other name or designation commonly applied to the 
said product of complainant and intended to desig- 
nate the same. 

It is further ordered, adjudged and decreed that the 
complainant, The Coca-Cola Company, a corporation, 
do have and recover of and from the defendants, J. T. 
Mason and Mrs. Georgiana Mason, doing business as- 
Corner Drug Store, all costs of this suit, including 
the costs of the taking of the depositions on file in 
this cause, for which let execution issue. 

So ordered, adjudged and decreed by the Court on 
this the 15th day of February, A. D. 1915. 

H. C. NILES, 
Judge. 

IN THE DISTRICT COURT OF THE UNITED STATES \ 
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, > ss. 
SOUTHERN DIVISION. ) 

In Equity. 

I, JACK THOMPSON, Clerk of the District Court of 
the United States for the Southern District of 

500 



v. J. T. MASON, etc. 



Mississippi, hereby certify that the foregoing attached 
ten and a half typewritten pages are full, true and 
correct copies of the originals on file and of record 
in my office at Biloxi, in the southern division of said 
district. 

Given under my hand and seal of said District 
Court, at Biloxi, in said District, on the 22nd day of 
August, A. D. 1922. 

(Seal) JACK THOMPSON, Clerk, 

By GEO. P. MONEY, D. C. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; Stevens 
& Cook, Hattiesburg, Miss., for Complainant. 



501 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN DISTRICT 

OF TEXAS, AT TYLER, TEXAS 



JANUARY 29, 1918 



THE COCA-COLA COMPANY 
v. 

WEEKS & WEAVER, a partnership composed of the 
sole partner of J. M. Weeks. 



It being made to appear to the Court the parties 
hereto have entered into the following stipulations, 
to wit: ) 

"!N THE DISTRICT COURT OF THE 
COCA-COLA _, 

-, UNITED STATES FOR THE EAST- 

COMPANY m 

ERN DISTRICT OF TEXAS, AT 



TYLER. TEXAS. JANUARY 29, 



T ^ f TT 

J. M. WEEKS 



"It Is Hereby Stipulated by and between the par- 
ties, plaintiff and defendant, in the above styled 
cause, that the plaintiff may have its decree against 
the defendant as prayed for, with the exception that 
no decree will be entered for damages. This stipula- 
tion will be treated as an appearance and to fully au- 
thorize the decree above-mentioned to be entered in 
favor of plaintiff and against the defendant." 

It Is, Therefore, Ordered, Adjudged and Decreed 
by the Court that the defendant, John M. Weeks, his 
agents, servants, employes, successors and assigns, 
and each and all of them be, and they are hereby 
perpetually enjoined and restrained from using in 
connection with the manufacture, advertising, offer- 
ing for sale, or selling any beverage with the words 
" Coca-Cola," or any like word or words, whether 

502 



v. WEEKS & WEAVER, etc. 



alone or in connection with other words or names, and 
further from doing any act or thing, or using any 
name or names, contrivances, artifices, or device, 
which may be calculated to lead or induce the belief 
that any bottled product not authorized by plaintiff 
is Coca-Cola. 

It Is Further Ordered, Adjudged and Decreed by 
the Court that the plaintiff pay all costs of Court 
for which the officers of this Court may have their 
execution. 

GOKDON RUSSELL, Judge. 

Candler, Thomson & Hirsch, Atlanta, Georgia; 
Crane & Crane, Dallas, Texas ; //. 0. Head, Sherman, 
Texas, for Complainant. 



503 



THE COCA-COLA COMPANY 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE EASTERN 
DISTRICT OF NORTH CAROLINA 



IN EQUITY 



COMPLAINT 



THE COCA-COLA COMPANY, Plaintiff, 

v. 

LEE J. TAYLOR, doing business as CROWN 
BOTTLING WORK^ Defendant. 



DECREE. 

This cause came on to be heard at this Term, and by 
consent of defendant hereto, upon motion of counsel 
for plaintiff, it is adjudged, ordered and decreed as 
follows : 

1. That the complainant herein is the owner of 
the trade-mark Coca-Cola, which said mark is a valid 
trade-mark belonging to said complainant. 

2. It is further adjudged, ordered and decreed that 
the defendant, his associates, successors, assigns, of- 
ficers, servants, clerks, agents and workmen, and each 
of them, be and they are perpetually enjoined: 

(a) From using said trade-mark Coca-Cola, or any 
colorable imitation thereof in any form whatsoever, 
except as authorized and assented to by the com- 
plainant herein. 

(b) From in any way, manner or form using the 
Coca-Cola syrup which is made for fountain pur- 
poses, for bottling purposes, and from in any way 

504 



v. LEE J. TAYLOE, etc. 



using the name Coca-Cola, or any colorable imitation 
thereof, as applied to any soft drink or beverage, 
in bottles. 

(c) From using the trade-mark Coca,-Cola, or any 
colorable imitation thereof, without the authority of 
the complainant, and from using said trade-mark 
Coca-Cola, or any colorable imitation thereof, on bot- 
tles containing the fountain syrup manufactured by 
complainant; and from using said trade-mark Coca- 
Cola, or any colorable imitation thereof, in connec- 
tion with any product that is not the product of your 
orator; and that the defendant, his associates, suc- 
cessors, assigns, officers, servants, clerks, agents and 
workmen be likewise perpetually enjoined from put- 
ting out, selling or offering for sale, directly or in- 
directly, any soft drink or beverage under the name 
Coca-Cola, or any colorable imitation thereof, with- 
out the authority and permission of the Company or 
its agents, and from using the word Coca-Cola, or 
any colorable imitation thereof, in connection with 
the sale of any beverage without the consent of the 
complainant herein. 

(d) That by consent of the parties to said cause 
this injunction is hereby made perpetual. 

(e) That by consent of the parties to said cause 
this injunction shall take effect immediately upon 
the date hereof; this decree to be entered and en- 
rolled as of April Term, 1913. 

(f) That the plaintiff do recover against the de- 
fendant the costs of the suit to be taxed by the clerk. 

This 7th day of February, 1913. 

(Signed) H. G. CONNOR, 
Judge of the District Court for the East- 
ern District of North Carolina. 

Consented to : 

Candler, Thomson & Hirsch, Charles R. Thomas, 
Solicitors for Plaintiff Coca-Cola Company. 

Lee J. Taylor, Crown Bottling Works, Defendant. 

505 



THE COCA-COLA COMPANY 



I, GEO. GREEN, Deputy Clerk of the District Court 
of the United States within and for the District 
aforesaid, do hereby certify that the foregoing is a 
true and correct copy of the decree in the case of 
The Coca-Cola Company, Plaintiff, v. Lee J. Taylor, 
doing business as Crown Bottling Works, Defend- 
ant, as filed in said court. 

In Testimony Whereof, I hereunto set my hand and 
affix the seal of the said court at New Bern, this llth 
day of February, 1913. 
(Seal) GEO. GREEN, 

Deputy Clerk of the District Court 
of the United States for the East- 
ern District of North Carolina. 



506 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE WESTERN DIVISION 
OF THE SOUTHERN DISTRICT 
OF MISSISSIPPI 



THE COCA-COLA COMPANY 

v. 
SOUTHEEN BOTTLING WORKS. 



DECREE. 

It appearing that the defendant is erroneously de- 
scribed in the bill of complaint as the " Southern 
Bottling Company," and that its true and correct 
name is the " Southern Bottling Works," and this 
appearing from a motion filed herein by the Southern 
Bottling Works on July 23, 1915, to dismiss the bill 
of complaint herein for certain causes therein stated, 
and the said motion having been duly set down for 
hearing; 

It Is Ordered that the bill of complaint be amended 
so that the defendant thereto shall be described as 
the "Southern Bottling Works," instead of the 
"Southern Bottling Company;" and the said motion 
to dismiss coming on to be heard, it- is ordered and 
adjudged that the same be and is hereby overruled. 

And the defendant, the said Southern Bottling 
Works, having declined to answer said bill or plead 
further herein, it is ordered that the said bill of com- 
plainant be and it is hereby taken for confessed as 
against the said defendant, the Southern Bottling 
Works. 

It is thereupon ordered, adjudged and decreed that 
the complainant, The Coca-Cola Company, has the 
sole and exclusive right to the use of the mark or 

507 



THE COCA-COLA COMPANY 



name "Coca-Cola" in connection with a drink or bev- 
erage, and also that The Coca-Cola Company has the 
sole and exclusive right to the use of the mark or 
name " Coca-Cola " as a trade-mark. 

And it is further ordered, adjudged and decreed 
that the defendant, the Southern Bottling Works, its 
officers, agents, servants, employes, successors, and as- 
signs, each and all of them be and they are hereby 
perpetually enjoined and restrained from using in 
connection with the manufacture, advertisement, of- 
fering for sale or sale of any beverage the words 
" Coca-Cola " either alone or in connection with other 
words or names, and further from doing any act or 
thing, or using a name or names, contrivance, artifice 
or device, which might be calculated to represent or 
induce the belief that any bottled product not author- 
ized by complainant is "Coca-Cbla." 

And the complainant consenting thereto, it is 
ordered that it pay the costs accrued in this cause to 
be taxed, etc. 

So ordered and decreed this the 14th day of Jan- 
uary, 1918. 

H. C. NILES, Judge. 



I, JACK THOMPSON, Clerk of the said United States 
District Court, in and for the said Southern District 
of Mississippi, do hereby certify that the above and 
foregoing is a full, true and correct copy of the orig- 
inal Final Decree in the above-styled matter as fully 
as the same appears of record and on file in this 
office. 

Witness my hand and the seal of said District 
Court this the 25th day of February, A. D. 1922. 

JACK THOMPSON,, Clerk, 
J. H. SHORT, D. C. 
(Seal) 

Candler, Thomson & Hirsch, Atlanta, Ga. ; Catch- 
ings & Catching s t Vicksburg, Miss., for Complainant. 

508 



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE EASTERN DIS- 
TRICT OF ILLINOIS 



Wednesday, November 3, A. D. 1915 



Present: HONORABLE FRANCIS M. WRIGHT, Judge. 



THE COCA-COLA COMPANY, Plaintiff, 

v. 
FRANK SIMMS, Defendant. 



FINAL DECREE. 

This cause coming on for final hearing upon the 
verified bill of complaint herein and the answer of 
said defendant, the said defendant consenting thereto, 
It Is Ordered, Adjudged and Decreed as follows : 

That the Court has jurisdiction of this cause and of 
the parties hereto; 

That the plaintiff, Coca-Cola Company, has a valid 
trade-mark in the words "Coca-Cola" and is entitled 
to the exclusive use thereof; 

That the defendant by his use of the words " Coca- 
Cola " in connection with a bottled drink not being 
made, carbonated, bottled and sold under plaintiff's 
authority and supervision has infringed plaintiff's 
said exclusive right; 

That the allegations of the bill of complaint are 
true; that the equities of the case are with the plain- 
tiff; and that plaintiff is entitled to the relief prayed; 

That defendant, his agents, servants, employes, 
successors and assigns and each and all of them be, 

509 



THE COCA-COLA COMPANY 



and the same hereby are perpetually enjoined and 
restrained from using in connection with the manu- 
facture, advertisement, offering for sale or sale of 
any beverage, the words "Coca-Cola" or any like 
word or words, whether alone or in connection with 
other words or names; and further, from doing any 
act or thing or using any name or names, contrivance, 
artifice or device which may be calculated to represent 
or induce the belief that any bottled product not 
authorized by plaintiff is Coca-Cola, and that a writ 
of perpetual injunction issue accordingly. 

That plaintiff is entitled to recover of and from the 
said defendant the damage suffered by it from de- 
fendant's infringement of plaintiff's trade-mark, and 
the profits and gains acquired by defendant by reason 
thereof. But it appearing to the court that the matter 
of such damages and profits hus been agreed upon 
between the parties, no order is made with respect 
thereto. 

And It Is Further Ordered, Adjudged and Decreed 
that plaintiff is entitled to recover of and from the 
said defendant the costs of this suit to be taxed and 
have execution therefor. 



This decree as to damages, profits and costs paid 
and satisfied in open court, this 3rd day of November, 
1915. 

Candler, Thomson & Hirsch, Charles Troup, Solici- 
tors for Plaintiff. 



510 




No. 69 JEFFERSON 



No. 217 TYLER 



IN EQUITY 

THE COCA-COLA COMPANY, Complainant. 

v. 

THE JACKSONVILLE BOTTLING WORKS, 

Defendant. 



FINAL DECREE. 

On this the 23rd day of February, A. D. 1916, the 
above numbered and styled cause came on to be 
heard on the bill, answer, exhibits and evidence; and 
the Court after hearing the same and the argument 
of counsel thereof is of the opinion that the com- 
plainant is entitled to the relief prayed for: 

It Is, Therefore, Ordered, Adjudged and Decreed 
by the Court that the defendant, The Jacksonville 
Bottling Works, its servants, agents and employes be, 
and they hereby are, enjoined and restrained from 
bottling and selling in bottles under the name Coca- 
Cola applied to any drink, and from using any name 
sufficiently similar to the name Coca-Cola as applied 
to any drink, to be calculated to cause a proposed 
purchaser to mistake the same for the drink Coca- 
Cola authorized by and prepared and bottled under 
the contracts between complainant, The Coca-Cola 
Company and The Coca-Cola Bottling Company and 
Coca-Cola Bottling Company described in the bill of 

511 



THE COCA-COLA COMPANY 



complaint, whether the drink so prepared or sold by 
defendant be made by using the syrup manufactured 
by complainant for use at fountains commonly known 
as fountain syrup or otherwise, the said defendant 
being enjoined and restrained, from manufacturing 
and from selling and offering for sale any drink of 
any kind whatever under the name of or as Coca-Cola, 
the complainant being adjudged and decreed to own, 
and be entitled to, said name Coca-Cola as a trade- 
mark for the protection of the drink made from its 
bottling syrup and bottled and sold under its author- 
ity as Coca-Cola, and that a drink made from what 
is termed in the bill of complaint as fountain syrup, 
and bottled and sold as Coca-Cola is and would be 
a violation of such trade-mark. 

It Is Further Ordered and Decreed that complain- 
ant do have and recover from th^e defendant all costs 
in this behalf incurred, from which execution may 
issue. 

To which action and ruling of the Court the defend- 
ant in open Court excepted and prayed and appealed 
to the Circuit Court of Appeals which is hereby 
allowed, and the Clerk is ordered to enter this order 
of record at the Jefferson Division of the Court. 

(Signed) GOBDON RUSSELL, Judge. 

Candler, Thomson & Hirsch, Atlanta, Georgia; 
Crane & Crane, Dallas, Texas, for Complainant. 



512 




THE COCA-COLA COMPANY, Complainant, 

v. 

DAN GALLAGHEK, doing business under the firm 
name and style of DAN GALLAGHER BOT- 
TLING COMPANY, Defendant. 



November 5, 1917. 

DECREE. 

This cause this day coming on to be heard and 
being regularly reached on call of the docket, comes 
the complainant, by its Solicitors, Candler, Thomson 
& Hirsch and James D. Head, and comes also the de- 
fendant Dan Gallagher, doing business under the firm 
name and style of Dan Gallagher Bottling Company, 
by his Solicitors, Maliaffey, Keeney & Dalby, and 
thereupon this cause is submitted to the Court upon 
the Stipulation for Decree herein duly filed this day, 
and upon consideration of said stipulation herein 
duly filed and duly signed by solicitors for both 
complainant and defendant, the court is of the opin- 
ion that decree should be entered in accordance with 
the said stipulation. 

It is, therefore, considered, ordered, adjudged and 
decreed that the complainant is the sole owner of the 
trade-mark, "Coca-Cola"; that the said trade-mark 
has been duly registered; that the said trade-mark is 
in all respects good and valid. 

That the said complainant is entitled to the sole 
and exclusive use of the said trade-mark, " Coca- 
Cola ", upon syrup manufactured and marketed by 

513 



THE COCA-COLA COMPANY 



it, whether bottled syrup or bulk syrup, adapted to 
make a beverage by mixing with carbonated water at 
soda fountains, and both called "Coca-Cola". 

That the said Dan Gallagher, doing business under 
the firm name and style of Dan Gallagher Bottling 
Company, has heretofore wrongfully used the said 
trade-mark in the making and sale of certain products 
put up, bottled or manufactured by him in contraven- 
tion of the rights of the complainant to the sole and 
exclusive use of said term. 

It is further considered, ordered, adjudged and de- 
creed that the said Defendant, Dan Gallagher, doing 
business under the firm name and style of Dan Gal- 
lagher Bottling Company, his agents, servants, em- 
ployees, successors, and assigns and each and all of 
them be and they are hereby perpetually enjoined 
and restrained from using in cbnnection with the 
manufacture, advertisement, offering for sale, or sale, 
of any beverage the words, " Coca-Cola", or any like 
word or words, whether alone or in connection with 
other word or words, or name, and further from 
doing any act or thing or using any name or names, 
contrivance, artifice, or device, which may be calcu- 
lated to induce the belief that any product not au- 
thorized by the Complainant, is "Coca-Cola." 

It is further considered, ordered, adjudged and 
decreed that the complainant recover nothing on ac- 
count of profits, gains, or advantages received by the 
defendant heretofore on account of the wrongful use 
of said trade-mark, in accordance with the stipula- 
tion herein filed, and that the complainant pay all of 
the costs of this action. 



Candler, Thomson & Hirsch, Atlanta, Ga. ; J. 
Head, Texarkana, Arkansas, for Complainant. 

Mahaffey, Keeney & Dolby, for Defendant. 



514 




No. 1136 IN EQUITY 



THE COCA-COLA COMPANY, Plaintiff, 

v. 
LILY ICE & BOTTLING WORKS, Defendant. 



The parties hereto consenting: It Is Decreed and 
Adjudged that The Coca-Cola Company has the sole 
and exclusive right to the use of the mark Coca-Cola 
in connection with a syrup, a drink or a beverage. 

It Is Ordered, Adjudged and Decreed that the de- 
fendant, Lily Ice & Bottling Works, its agents, serv- 
ants, employes, successors and assigns and each and 
all of them and every person claiming or holding 
under or through them or in any way connected with 
their business, are hereby perpetually enjoined and 
restrained from in any manner making or selling 
their product in such a way as to pass off the same 
as and for the product of The Coca-Cola Company, 
and from using in any form whatsoever the name 
Coca-C.ola as applied to any drink, or from using 
any name sufficiently similar to the name Coca-Cola 
as applied to any drink so as to cause deceit, and 
from doing any acts in any manner or form in the 
premises as is calculated to deceive, and they are 
especially perpetually enjoined and restrained from 
using the name Coca-Cola in connection with any 
bottled beverage, and from using any bottles, contain- 
ers, stoppers, crowns, labels, boxes or advertising 
matter with the name Coca-Cola thereon. 

It Is Further Ordered that the defendant, Lily Ice 
& Bottling Works, pay all the costs accrued in this 

515 



THE COCA-COLA COMPANY 



case and that the plaintiff recover of and from said 
Lily Ice & Bottling Works the costs of this suit to 
be taxed, and have execution therefor. 

This 15th day of September, 1921. 

We agree to the entering of the above decree: 

(Signed) LILY ICE & BOTTLING WORKS, 
By W. W. Goldsmith, of Counsel for Defendant. 

THE COCA-COLA COMPANY, 
By W. H. File, of Counsel for Plaintiff. 

Candler, Thomson & Hirsch, Atlanta, Ga., General 
Counsel, The Coca-Cola Company. 

UNITED STATES OF AMERICA, 
SOUTHERN DISTRICT OF WEST VIRGINIA. 

I, ALBERT V. FITZWATER, Clerk of the District Court 
of the United States for the Southern District of 
West Virginia, do certify that the foregoing is a true 
copy of the final decree entered in the case of The* 
Coca-Cola Company v. Lily Ice & Bottling Works, 
and now of record and on file in my office. 

In Testimony Whereof I hereto set my hand and 
the seal of said Court, at "Charleston, in said Dis- 
trict, this 19th day of September, A. D. 1921, and 
in the 146th year of the Independence of the United 
States of America. 

(Seal) (Signed) ALBERT V. FITZWATER, Clerk, 

D. C. U. S. S. D. W. Va. 



516 



IN THE DISTRICT COURT OF THE UNITED 

STATES FOR THE NORTHERN DISTRICT 

OF OHIO, EASTERN DIVISION 



No. 748 IN EQUITY 



THE COCA-COLA COMPANY, Complainant, 

v. 
E. L. CALDWELL, Defendant. 



FINAL DECREE. 

The within cause coming on for hearing and by 
and with the consent of all parties or their counsel, 
it is considered, ordered and decreed: 

First: That this Court has jurisdiction of the sub- 
ject matter and of the parties to this suit. 

Seconds That the word Coca-Cola is a valid trade- 
mark, of which plaintiff is the sole owner. 

Third: That plaintiff alone is entitled to use the 
trade-mark Coca-Cola and that only goods manu- 
factured by the plaintiff can lawfully be sold under 
the name "Coca-Cola." 

Fourth: That plaintiff duly registered its trade- 
mark under and in conformity with the Act of Con- 
gress approved March 3, 1881, entitled, "An Act to 
authorize the registration of trade-marks and to pro- 
tect the same." Plaintiff and its predecessors also 
registered the same trade-mark under the Act of 
Congress of February 20th, 1905, entitled, "An Act 
to authorize the registration of trade-marks used in 
commerce with foreign nations and among the sev- 
eral states or with Indian tribes and to protect the 
same." Said registrations are numbered 22,406 and 

517 



THE COCA-COLA COMPANY 



47,189, respectively, and are valid and subsisting, and 
are the sole property of the plaintiff, and plaintiff 
is entitled to the rights and remedies provided in 
the said statutes. 

Fifth: That the word " Coca-Cola " as adopted 
and used by the defendant was and is an infringe- 
ment of plaintiff's said trade-mark Coca-Cola and 
is a copy or colorable imitation thereof within the 
meaning of the Act of Congress of February 20th, 
1905; and that the defendant has affixed said copy 
or colorable imitation to merchandise of substantially 
the same descriptive properties as those set out in 
plaintiff's said registration, and that defendant has 
affixed said copy or colorable imitation to labels, 
signs, prints, stationery, packages, wrappers and re- 
ceptacles intended to be used and actually used upon 
and in connection with the sale* of merchandise of 
substantially the same descriptive properties as those 
set forth in such registrations; and that defendant 
has used said copy or colorable imitation contrary to 
the rights of the plaintiff herein; and that defendant 
thereby has infringed the plaintiff's said registered 
trade-mark. 

Sixth: That the defendant has used and applied to 
packages containing its product decorated crowns 
with a color scheme and script lettering thereon so 
nearly the same as the distinctive crowns and script 
lettering authorized and used by the plaintiff as to 
be substantially indistinguishable therefrom and the 
defendant has sold his product as and for the product 
of the plaintiff and thereby has competed unfairly 
with the plaintiff. 

Seventh: That the defendant has purchased syrup 
as manufactured by plaintiff for use in fountain 
trade, that such syrup is not manufactured for the 
purpose of nor is it intended for use in bottling; and 
defendant has bottled such syrup known as fountain 
Coca-Cola syrup, and has sold such fountain Coca- 

518 



v. E. L. CALDWELL 



Cola syrup so bottled by him under the name and guise 
of bottled Coca-Cola in simulation of the bottled Coca- 
Cola as authorized and licensed by plaintiff to its 
licensees ; that defendant had no authority nor license 
to bottle and sell such fountain syrup and by such act 
the defendant thereby has competed unfairly with the 
plaintiff. 

Eighth: That the defendant, E. L. Caldwell, his 
agents, servants, employees, attorneys, licensees, 
transferees, successors and assigns, and each and all 
thereof, and all acting by or under his authority be 
and are, each and all, perpetually enjoined and re- 
strained from using, in the connection with the manu- 
facture, advertisement, offering for sale or sale of any 
beverage, the names Coke, Coca, Cola, Coca-Cola 
or any like word or words; or from using or em- 
ploying or authorizing the use or employment of 
designs, devices, script lettering or crowns, identical 
with or like those used by the plaintiff; from using 
any bottle or crown or other article bearing trade- 
mark Coca-Cola or like word or words as herein- 
before referred to; and from doing any act or thing 
or using any name or names, device, artifice or con- 
trivance which may be calculated or likely to cause 
any product not the plaintiff's to be sold as and for 
the product of the plaintiff; and that writs of injunc- 
tion accordingly issue forthwith. 

Ninth: The defendant, E. L. Caldwell, in con- 
formity with paragraph two of petition filed by plain- 
tiff, is required, under oath to answer interrogatories 
set out in said paragraph No. two, sub-paragraph 
(a) to sub-paragraph (h) inclusive, and to attach 
thereto as Exhibits the particles prayed for by 
plaintiff. 

Tenth: That all labels, signs, prints, packages, 
wrappers, bottles or receptacles in possession of the 
defendants bearing the trade-mark of plaintiff or any 
colorable imitation thereof, be forthwith delivered up 
by defendant to solicitors for plaintiff for destruction. 

519 



THE COCA-COLA COMPANY 



Eleventh: It is further ordered that the defendant, 
E. L. Caldwell, pay all costs accrued in this case and 
that the plaintiff recover of and from E. L. Caldwell 
all the costs of this suit to be taxed and have execu- 
tion thereon. 

This the 27th day oi October, 1922. 

D. C. WESTENHAVEE, 

District Judge. 
Consented to: 

Candler, Thomson & Hirsch, White, Cannon <& 
Speith, Solicitors and of Counsel for Plaintiff. 

Roscoe J. Webb, Solicitor and of Counsel for De- 
fendant. 

E. L. Caldwell, Defendant, in propria persona. 



520 



IN THE UNITED STATES DISTRICT COURT, 

FOR THE NORTHERN DISTRICT OF 

ILLINOIS, EASTERN DIVISION 



NOVEMBER TERM, A. D. 1917 



No. 963 IN EQUITY 



THE COCA-COLA COMPANY, Plaintiff, 

v. 
SPANISH CORK AND STOPPER COMPANY, 

Defendant. 



This cause came on to be heard at this term and 
was argued by counsel, and thereupon, upon consid- 
eration thereof and the consent of all parties thereto, 
it was ordered, adjudged and decreed as follows : 

That the Court has jurisdiction of the subject mat- 
ter of the suit and of the parties thereto; that the 
said defendant, its agents, officers, attorneys, suc- 
cessors, assigns and all persons taking or holding 
under or through defendant, and each and all thereof, 
be, and the same are hereby, perpetually enjoined and 
restrained from selling, dealing in, or supplying to 
any person, firm or corporation any bottle crowns or 
stoppers or any labels or other material bearing or 
containing the word " Coca-Cola" or any like word 
or words either alone or in connection with other 
words or names, and from ; further doing any act or 
thing or contributing or aiding in the doing of any 
act or thing which may be calculated to represent 
or induce the belief that any bottled product not made 

521 



THE COCA-COLA COMPANY 



or authorized by plaintiff is "Coca-Cola" or the prod- 
uct of plaintiff; Provided, however, that nothing 
herein contained shall be construed as preventing the 
defendant, its officers, agents, attorneys, successors 
or assigns from selling or supplying either to plain- 
tiff or to any person, firm or corporation who are 
authorized by plaintiff to use the word " Coca-Cola" 
thereon, bottle stoppers, crowns or labels with the 
said word "Coca-Cola" on the same; that a writ of 
injunction issue to the above effect; that the plain- 
tiff having waived an accounting of profits and an 
assessment of damages by reason of the alleged con- 
duct of the defendant set out in the bill of complaint, 
that plaintiff in lieu and in full thereof do have and 
recover from the defendant the sum of One Dollar 
in full of profits and damages by reason of the al- 
leged conduct of said defendant In said bill of com- 
plaint set out and that plaintiff do have and recover 
from defendant its costs herein to be taxed. 

We consent to the entry of the above decree this 5th 
day of December, A. D. 1917. 

Can filer, Thomson & Hirsch, Frank F. Reed & Ed- 
ward S. Rogers, Solicitors for Plaintiff. 

Isedore S. Blumenthal, Solicitor for Defendant. 

Enter Dec. 7th, 1917. 

GEORGE A. CARPENTER, 
Judge. 



522 



UNITED STATES DISTRICT COURT, FOR 
THE SOUTHERN DISTRICT 
OF NEW YORK 



THE COCA-COLA COMPANY, Complainant, 

v. 

BERNARD SANDROWITZ, doing business under 
the trade name and style of COLUMBIA BOT- 
TLING WORKS; JONAS KOWARSKY and 
JOHN BERNSTEIN (the name John being fic- 
titious, defendant's real name being unknown to 
complainant), doing business as STANDARD 
CORK & SEAL CO., Defendants. 



This cause coming on to be heard on complainant's 
motion for a final decree, the complainant appearing 
by its solicitor Harry D. Nims, and the defendant 
Bernard Sandrowitz appearing in person, and it ap- 
pearing to the court that the issues involved herein 
have been settled and agreed upon by the parties 
hereto, and the defendant Bernard Sandrowitz agree- 
ing to consent to the entry of a final decree in the 
following form: 

Now, on motion of Harry D. Nims, solicitor for the 
complainant, it is 

Ordered, Adjudged and Decreed that the defendant 
Bernard Sandrowitz be and he hereby is perpetually 
enjoined and restrained 

I. From using in any manner whatsoever in the 
manufacture or sale of beverages, or of bottlers' 
supplies, the name "Coca-Cola" or any colorable im- 
itation thereof; 

II. From the purchase, sale, giving away, or dis- 
posing of, in any manner, bottles, caps, stoppers, or 
crowns, or any bottling supplies, bearing the name 
"Coca-Cola" or any colorable imitation thereof. 

That no accounting of profits and damages is or- 
dered from the defendant Bernard Sandrowitz, this 

523 



THE COCA-COLA COMPANY 



injunction being consented to by the said defendant 
in lieu of and in satisfaction for such damages and 
profits, and that no costs shall be entered against 
this defendant. 

July 24th, 1914. LEARNED HAND, 

United States District Judge. 

I consent to the entry of the foregoing decree : 

BERNARD SANDROWITZ, 

Candler, Thomson & Hirsch, Atlanta, Ga. ; Harry 
D. Nims, New York City, for Complainant. 



524 



v. BEENABD SANDROWITZ, et al 



UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF NEW YORK 



THE COCA-COLA COMPANY, Complainant, 

v. 

BERNARD SANDROWITZ, doing business under 
the trade name and style of COLUMBIA BOT- 
TLING WORKS; JONAS KOWARSKY and 
JOHN BERNSTEIN (the name John being fic- 
titious, defendant's real name being unknown to 
complainant), doing business as STANDARD 
CORK & SEAL CO., Defendants. 



This cause coming on to be heard on complainant's 
motion for a final decree, the complainant by its so- 
licitor Harry D. Nims, and the defendants Jonas 
Kowarsky and Michael Bernstein appearing in per- 
son, and it appearing to the court that the issues 
involved herein have been settled and agreed upon 
by the parties hereto, and the defendants Jonas 
Kowarsky and Michael Bernstein agreeing to consent 
to the entry of a final decree in the following form : 

Now, on motion of Harry D. Nims, solicitor for the 
complainant, it is 

Ordered, Adjudged and Decreed that the defend- 
ants Jonas Kowarsky and Michael Bernstein be and 
they hereby are perpetually enjoined and restrained 

I. From using in any manner whatsoever in the 
manufacture or sale of beverages, or of bottlers' sup- 
plies, the name " Coca-Cola" or any colorable imita- 
tion thereof: 

II. From the purchase, sale, giving away, or dis- 
posing of in any manner, bottles, caps, stoppers, or 
crowns, or any bottling supplies, bearing the name 
"Coca-Cola", or any colorable imitation thereof. 

525 



THE COCA-COLA COMPANY 



Further Ordered, Adjudged and Decreed that the 
defendants Jonas Kowarsky and Michael Bernstein 
deliver over to The Coca-Cola Company or any duly 
authorized representative of that Company, upon de- 
mand, all caps, crowns and stoppers and all other 
advertising or matter of any sort whatever which 
contains the name "Coca-Cola" or any colorable im- 
itation thereof. 

That no accounting of profits and damages is or- 
dered from the defendants Jones Kowarsky and 
Bernstein, this injunction being consented to by the 
said defendants in lieu of and in satisfaction for such 
damages and profits; and that no costs shall be en- 
tered against these defendants. 

LEARNED HAND, 
United States District Judge. 

I 

We consent to the entry of the foregoing decree : 

MICHAEL BERNSTEIN, 
JONAS KOWARSKY. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; Harry 
D. Nims, New York City, for Complainant. 



526 



UNITED STATES DISTRICT COURT, 

EASTERN DISTRICT OF MISSOURI, 

EASTERN DIVISION 



No. 4419 IN EQUITY 



THE COCA-COLA COMPANY, Plaintiff, 

v. 
MORRISON J. MILLER, Defendant. 



FINAL DECEEE. 

Now this day, the parties hereto having consented 
thereunto as evidenced by their stipulation herein 
filed, the Court doth 

Order, 'Adjudge and Decree that the plaintiff, The 
Coca-Cola Company, a Georgia corporation, is the 
sole and exclusive owner of the trade-mark consist- 
ing of the word "Coca-Cola", and is the sole and 
exclusive owner of the formula whereunder the bev- 
erage designated and known to the trade and the pub- 
lic as "Coca-Cola" is made; that the said trade-mark 
"Coca-Cola" is a lawful, valid and subsisting tech- 
nical trade-mark and has been lawfully registered as 
such in pursuance of the several Acts of Congress 
providing for the registration of trade-marks, and 
that the certificates of such registration, Certificate 
numbered 22,406, issued January 31, 1893, and Cer- 
tificate numbered 47,189 issued October 31st, 1905, 
are lawful and valid certificates of trade-mark regis- 
tration and are each the sole and exclusive property 
of the plaintiff. 

That the defendant Morrison J. Miller, his agents, 
servants and employees and each of them be, and they 
are hereby, forever and perpetually enjoined and 

527 



THE COCA-COLA COMPANY 



restrained as follows : from asserting or publishing, 
verbally or in writing, any claim of title, right or 
ownership to the trade-mark "Coca-Cola" or the for- 
mula whereby the beverage known as "Coca-Cola" is 
made and produced ; from publishing or asserting any 
statement containing directly or by implication a 
charge or imputation that the plaintiff is not the sole 
and exclusive owner of the trade-mark "Coca-Cola" 
or the formula whereby the syrup or beverage known 
as "Coca-Cola" is made. 

The plaintiff waives an accounting of profits or 
damages. This decree is entered at the costs of the 
defendant. 

DAVID P. DYER, 

Judge. 

The parties hereto hereby consent to the entry of 
the above and foregoing final decree, this 27th day 
of April, 1915. 

Candler, Thomson & Hirsch, James L. Hopkins, 
Solicitors and of Counsel for Plaintiff. 

William Zachritz, Solicitor and of Counsel for De- 
fendant. 

(Entered April 27, 1915.) 



528 



IN THE UNITED STATES 
PATENT OFFICE 



OPPOSITION No. 15,753 
KENT'S COCA-COLA 



THE COCA-COLA COMPANY 

v. 
BEERMANN v. KENT. 



LEHMANN, PATTISON & NESBIT, 
For The Coca-Cola Company. 

MESSRS. MUNN & COMPANY, 
For Beermann. 

Mr. J. F. KERR, 

For Kent. 



529 



THE COCA-COLA COMPANY 



UNITED STATES PATENT OFFICE 



THE COCA-COLA CO. 

v. 
BEERMANN v. KENT. 



Trade-Mark for Tonic 
No. 15,753 



Application of Coca-Cola Co. filed May 14, 1892. 
Application of Beermann filed Feb. 12, 1892. Keg. 
20,818. 

Application of Kent filed Nov. 21, 1888. Reg. 16,209. 



Messrs. Lehmann, Pattison $ Nesbit, Attorneys 
for Coca-Cola Company. 

Messrs. Munn & Co., Attorneys for Beermann. 
Mr. J. F. Kerr, Attorney for Kent. 



This is an interference between Kent, the registrant 
of the trade-mark Coca-Cola; Beermann, the regis- 
trant of the. trade-mark Co-Co-Colian, and the ap- 
plication of The "Coca-Cola Co. for the registration of 
the trade-mark Coca-Cola. 

Beermann filed his application Feb. 12, 1892, and 
his certificate issued March 8, 1892. In his state- 
ment he alleged continuous use since January 1, 1892. 
He took no testimony, and as this date is long 

530 



v. BEEEMANN v. KENT 



subsequent to the registration by Kent, he, Beermann, 
need not be further considered. 

Testimony was taken both by Kent and The Coca- 
Cola Co. On Oct. 11, 1892, a motion was made on be- 
half of The Coca-Cola Co. among other things, "That 
all testimony in behalf of Benjamin Kent tending to 
establish a date prior to the first of June, 1888, be 
eliminated from the record on the ground that, as 
the above date is the date set up by him under oath 
in his letters of registration, as the time at which he 
began a continuous use of the mark in question, he 
is held thereto in this interference proceeding." On 
Nov. 3, 1892, the examiner of interferences passed 
upon this part of the motion as follows: "It seems 
very plain to the examiner that the first branch of 
this motion ought not to be heard upon its merits 
or determined by him prior to the final hearing of 
the case, and he does hereby refuse to consider that 
branch of the motion." Under this order the above 
motion of The Coca-Cola Co. comes up for determina- 
tion. 

By the Act of March 3, 1881, Sec. 1, relating to the 
Registration of Trade-Marks, an applicant is required 
to set forth in his statement "the length of time dur- 
ing which the trade-mark has been used." In com- 
pliance with this requirement Kent alleged continuous 
use in his business since June 1, 1888. In his testi- 
mony he attempted to set up the act of adoption and 
use as far back as 1884 or 1885. He brings one wit- 
ness who testifies to the store use of the symbol Coca- 
Cola in 1885 and another who testifies to the same 
use in January or February, 1886. The Coca-Cola 
Co. contends that Kent should be restricted to the 
date alleged in his statement as to the date of adop- 
tion and should not be permitted to set up an earlier 
date. This contention must be supported in view of 
the present practice, which views a statement, made 
in connection with an application for the registration 
of a trade-mark, in the same light as a preliminary 

531 



THE COCA-COLA COMPANY 



statement in an interference proceeding between two 
applications for patents for an invention. LePage 
Mfg. Co. v. Russia Cement Co., 40 MSC. D. 329. And 
as parties are strictly held in their proofs to the dates 
set up in a preliminary statement (Rule 110) the same 
restriction has been placed upon proofs in a contest 
as to prior adoption and use of a trade-mark, and 
the parties held strictly to the dates alleged in their 
statements filed with the application for registration. 
Rule 13, Rules Relating to the Registration of Trade- 
Marks; Browne on Trade-Marks, 2 Ed., 1885, p. 625, 
S. 627. Such being the practice, Kent is not allowed 
an earlier date than June 1, 1888, the date alleged 
in his statement, as the date of adoption, and it is 
not necessary to consider the point raised by attor- 
ney for The Coca-Cola Co. that the use by Kent of the 
said symbol as a " store term" artd on written labels, 
put upon bottles sold over his counter, did not amount 
to adoption and use. Kent being thus restricted, it 
becomes necessary for The Coca-Cola Co., upon whom 
is the burden of proof, to overcome the "prima facie 
evidence of ownership" existing in the registrant 
Kent by virtue of Sec. 7 of the statute of March 3, 
1881. The statement in the application for registra- 
tion of The Coca-Cola Co. alleges continuous use since 
June 28, 1887. It appears from the testimony that 
this date is the date of the registration of a label 
by one J. S. Pemberton, under the name of "Coca- 
Cola Syrup and Extract." Asa G. Candler, the presi- 
dent of The Coca-Cola Co., testifies that prior to the 
formation of said company on Feb. 22, 1892, he had 
acquired through several intermediate assignments 
the right to the -label and the use of the word Coca- 
Cola; and that Pemberton, and his other privies in 
title, had adopted and used the said word to desig- 
nate a beverage continuously since the spring of 
1886. The only other witness, Robinson, testifies to 
the adoption and use by Pemberton of the word Coca- 
Cola to designate a beverage in the spring of 1886 and 

532 



v. BEEEMANN v. KENT 



its continuous use since, and he gives a list of sales 
in the spring of 1887. 

It is to be noted that The Coca-Cola Co. has of- 
fended as grievously as Kent in the infringement of 
Kule 13, by offering testimony to show adoption and 
use prior to the date alleged in their application state- 
ment. But while The Coca-Cola Co. cannot avail 
themselves of a date earlier than June 28, 1887, the 
testimony shows beyond any reasonable doubt that on 
said date the privies in title of the said company had 
adopted and used the symbol Coca-Cola as a trade- 
mark. It follows, therefore, that judgment as to prior 
adoption and use must be and the same is hereby ren- 
dered in favor of The Coca-Cola Co. Limit of Ap- 
peal will expire January 4, 1893. 

WALTER JOHNSON, 
Examiner of Interferences. 

December 15, 1892. 



533 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 1944 SOLA-COLA 

I 



THE COCA-COLA COMPANY 

v. 
SOLA-COLA COMPANY, INC. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 
REED & ROGERS, Chicago, Illinois, 
F. M. PHELPS, Washington, D. C., 

For Opposer. 



534 



cca 





IN THE UNITED STATES PATENT OFFICE 



OPPOSITION No. 1944 



Final Hearing: August 22, 1916 



THE COCA-COLA COMPANY 

v. 
SOLA-COLA COMPANY, INC. 



Application No. 89,724, Filed October 7, 1915. 
Published November 16, 1915. 



Candler, Thomson & Hirsch, Atlanta, Georgia, and 
Messrs. Frank F. Reed and Edward S. Rogers, and 
Francis M. Phelps, for The Coca-Cola Company. 

Messrs. H. B. Wilson & Company, for the Sola- 
Cola Company, Inc. 



This is an opposition by The Coca-Cola Company to 
the registration by the Sola-Cola Company, Inc., of 
the mark "Sola-Cola", written in script, as a trade- 
mark for a beverage and a syrup for making the 
same. 

Without reciting in detail the questions put in 
issue by the pleadings, it may be stated that the case 
presents only two questions for consideration, namely, 
(1) that of the identity of the marks, and (2) whether 

535 



THE COCA-COLA COMPANY 



the mark of the applicant is substantially the cor- 
porate name of the opposer. 

The opposer 's mark is the expression " Coca-Cola", 
written in script with certain special flourishes. There 
is no question but that the opposer used this expres- 
sion as a trade-mark for beverages, and syrups for 
making the same, long prior to any date of use 
claimed by the applicant. It is urged on behalf of 
the Sola-Cola Company, Inc., that the marks are un- 
like, and attention is directed to the fact that the 
first word of its mark "Sola" is totally different from 
the first word "Coca" of the mark of the opposer. 
While this is true, taking the expression as a whole, 
there is not only a close similarity between the ap- 
pearance of the two expressions, but also a close re- 
semblance in the sound thereof. Applicant writes its 
mark in script, very closely simulating the well- 
known chirography of the opposer. The flourishes of 
the two marks are different, but these alone cannot 
be regarded as differentiating the marks. While of 
course the mark of the applicant could be so pro- 
nounced as to be differentiated from that of the op- 
poser, the expressions are so clearly alike that when 
pronounced normally there is serious danger of con- 
fusion. In this respect the case is quite similar to 
that of Lang v. Green River Distilling Co., 148 0. G. 
280, 33 App. D. C. 506, where it was held that "Green 
Ribbon" should not be registered over "Green 
River" for the same class of goods. The opposer 's 
brief cites a long list of cases in support of its con- 
tention that these marks are alike. No attempt will 
be made to discuss these citations. In my judgment 
the mark which the applicant seeks to register is not 
sufficiently different from that of the opposer, either 
in appearance or sound, as to justify registration 
over the earlier mark. On the other hand it is be- 
lieved that confusion would be quite likely to occur, 
and for this reason the applicant should not be per- 
mitted to register. 

536 



v. SOLA-COLA COMPANY, INC. 

Moreover, since the expression "Sola Cola" is so 
nearly like "Coca-Cola" as to warrant the conclusion 
that confusion would arise, "Sola Cola" becomes in 
effect the essential part of the name of the opposer, 
and as such cannot be registered for this reason also 
(Asbestone Co. v. The Philip Carey Manufacturing 
Co., 200 0. G. 857, 41 App. D. C. 507; The Mansfield 
Tire & Rubber Company v. Ford Motor Company, 222 
0. G. 1056, not yet in App. D. C.; D. H. Burrell & Co. 
v. Simplex Electric Heating Co., 225 0. G. 737, not 
yet in App. D. C.). As stated by the court in the first 
mentioned case, it is the purpose of the statute to take 
from the realm of registration, names of individuals, 
firms and corporations, and no one is entitled to reg- 
ister such names for any purpose when objection is 
raised by the owner of the name. 

The opposition is sustained, and it is adjudged that 
the Sola Cola Company, Inc., is not entitled to reg- 
ister the mark shown in its application for the goods 
therein specified. 

Limit of appeal: September 30, 1916. 

H. E. STAUFFER, 
Examiner of Interferences. 
August 30, 1916. 



537 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 2383 TAKA-KOLA 



THE COCA-COLA COMPANY 

v. 
OLD DOMINION BEVERAGE CORPORATION. 



HAROLD HIRSCH, Atlanta, Georgia, 
REED & ROGERS, Chicago, 111., 
FRANCIS M. PHELPS, Washington, D. C., 
For The Coca-Cola Company. 



538 




nff 

cA 





IN THE UNITED STATES PATENT OFFICE 



OPPOSITION No. 2383 July 26, 1921 



THE COCA-COLA COMPANY 

v. 
OLD DOMINION BEVERAGE CORPORATION. 



The Coca-Cola Company, c/o Francis M. Phelps, 

Washing-ton, D. C. 

No response having been received to the office ac- 
tion of June 29, 1921, the opposition is sustained and 
it is hereby adjudged that the Old Dominion Bever- 
age Corporation, the applicant, is not entitled to the 
registration of the mark for which it has made appli- 
cation. 

Limit of appeal: August 15, 1921. 



539 



. THE COCA-COLA COMPANY 



IN THE UNITED STATES PATENT OFFICE 



Hearing ; 
September 19, 1917. 

MSP. 



THE COCA-COLA COMPANY 

v. 
OLD DOMINION BEVERAGE CORPORATION. 



Opposition No. 2383. 



I 

Appeal From Examiner of Interferences. 



Trade-Mark for Soft Drinks. 



Application of Old Dominion Beverage Corporation 
filed January 22, 1917, No. 100,819, published April 
10, 1917. 



Mr. Harold Hirsch, Messrs. Frank F. Reed and 
Edward S. Rogers and Mr. Francis M. Phelps for 
The Coca-Cola Company. 

Mr. Victor J. Evans for Old Dominion Beverage 
Corporation. 



This is an appeal from the decision of the exam- 
iner of interferences denying the Old Dominion 

540 



v. OLD DOMINION BEVERAGE CORPORATION 

Beverage Corporation's motion, (1st) to dismiss, and 
(2nd) to strike out grounds 1 to 6 of the opposition. 

First, as to the dismissal of the opposition. The 
applicant originally filed for registration the words 
"Taka-Kola." The examiner of trade-marks refused 
to register these words on the ground that "The 
expression 'Taka-Kola' is believed to be the full 
equivalent of 'Taka-Kola,' which is regarded as de- 
scriptive." Thereupon applicant cancelled from the 
drawing the word Kola and amended its specifica- 
tion to say that "No claim is made to the word 
Kola," 

But applicant's labels as filed still show its mark 
as actually used to be "Taka-Kola," written in script 
very much like the script of the registered trade- 
mark of opposer, "Coca-Cola," Under these circum- 
stances, applicant could use "Taka-Kola" as his mark 
and state on his labels, etc., "Registered in the U. S. 
Patent Office," since those words are still on ap- 
plicant's labels, although Kola is taken off its drawing. 

The publication in the Official Gazette of April 10, 
1917, Serial No. 100,819, states "no claim being made 
to the word Kola." Under these circumstances, the 
interference examiner's decision refusing to dismiss 
the opposition was right. (See Quaker City Flour 
Mills Co. v. Quaker Oats Co., 214 0. G. 684, 43 Apps. 
D. C. 260; in re Motz Tire & Rubber Co., 193 0. G. 
513, 40 App. D. C. 487 ; Ex Parte Newman, 159 0. G. 
993; 0. & W. Thum Co. v. Dickinson, 240 0. G. 337, 
App. D. C.) 

Second, in accordance with the decision in Coca- 
Cola Company v. Koke Company of America, 123 
Msd. 416, the examiner's refusal to strike out grounds 
1 to 6 of the opposition was also right, and his de- 
cision refusing to dismiss and strike out is affirmed. 

J. T. NEWTON, 
Commissioner. 

September 27, 1917. 

541 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 1955 KEL- KOLA 



THE COCA-COLA COMPANY 

v. 
KELLY MANUFACTURING COMPANY. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 
REED & ROGERS, Chicago, Illinois, 
F. M. PHELPS, Washington, D. C., 
For the Coca-Cola Company. 



542 



IN THE UNITED STATES PATENT OFFICE 



LBF September 19, 1916 



OPPOSITION No. 1995 
Final Hearing 



THE COCA-COLA COMPANY. 

v. 
KELLY MANUFACTURING COMPANY. 



Application No. 91,224, Filed December 6, 1915, 
Published January 18, 1916. 



A Non-alcoholic Beverage Sold as a Soft Drink and 
Syrup for Making the Same. 



Mr. Harold Hirsch, Messrs. Frank F. Reed and 
Edward S. Rogers and Mr. Francis M. Phelps for 
The Coca-Cola Company. 

Messrs. H. B. Wilson & Co. for Kelly Manufac- 
turing Company. 



This is an opposition by the Coca-Cola Company 
against registration of the mark for which applica- 
tion has been filed by the Kelly Manufacturing Com- 
pany. 

543 



THE COCA-COLA COMPANY 



The only question to be considered in this case is 
the similarity of the marks, for the goods are the 
same and the opposer has prior use of its mark. 

The prominent and important feature of the appli- 
cant's mark is the word "Kel-Kola," written in 
script with a paraph underneath the word. There are 
other minor features, but these are not of any par- 
ticular importance. 

The mark of the opposer is well known and con- 
sists of the words " Coca-Cola " in script type. The 
last two syllables of both marks are identical, and 
the style of type is so nearly similar that the dif- 
ference between the manner in which the syllable 
"ola" is written in the two words can hardly be 
distinguished. The marks as a whole are regarded 
as similar. 

The opposition is sustained^ and it is adjudged 
that the Kelly Manufacturing Company, the appli- 
cant, is not entitled to register the mark shown in 
its application. 

Limit of Appeal: November 18, 1916. 

H. E. STAUFFER, 
Examiner of Interferences. 

October 18, 1916. 



544 




I 




IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 2286 KO-GO-LEM-A 



THE COCA-COLA COMPANY 

v. 
BAY CAVE. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 
REED & ROGERS, Chicago, Illinois, 
F. M. PHELPS, Washington, D. C., 
For Opposer. 



545 



THE COCA-COLA COMPANY 



UNITED STATES PATENT OFFICE 



Hearing : 

June 8, 1917 JRS 



THE COCA-COLA COMPANY 

v. 
RAY CAVE. 



In Re: Opposition No. 2286. 



Appeal from Examiner of Interferences. 



Trade-Mark for Soda-Fountain Syrup. 



Application of Bay Cave filed October 9, 1916, No. 
98,513, published December 12, 1916. 

Mr. Harold Hirscli, Messrs. Reed and Rogers, and 
Mr. Francis M. Phelps, for The Coca-Cola Company. 

Mr. B. F* Harts for Eay Cave. 



Appeal from dismissal of an opposition to regis- 
tration of a trade-mark. 

Ray Cave appears to have lately adopted and ap- 
plied for registration of the term "Ko-Co-Lem-A" as 
a mark for soda fountain syrup; the labels filed with 
his application showing also that he does business 
as the ' ' Ko-Co-Lem- A Co." Registration was 

546 



v. BAY CAVE 



opposed by The Coca-Cola Co. on the ground that it 
has for many years used the similar trade-mark 
" Coca-Cola" for the same goods, having registered its 
mark in 1893 (No. 22,406). The opposer also pointed 
out that its name Coca-Cola has always been written in 
a peculiar style of lettering which the applicant has 
imitated. On a demurrer resting substantially on the 
contention of no confusing resemblance of the marks 
of the parties, the examiner of interferences held that 
the common part of the marks, i. e., the terms "Coca" 
or "Coke," "is a common term descriptive of the 
cocoa bean and therefore not to be regarded as the 
essential part of the mark of either party"; where- 
fore he found the marks unlike and the case not open 
to question enough to go to proofs. 

I think there has been too strict an analysis of the 
marks and too little weight given their whole signi- 
ficances. I can think of no proper reason why the 
applicant chose a term which uses the same number 
of syllables, begins and ends with the same syllables, 
and employs the same lettering including the same 
initial and final flourishes in the lettering. He is un- 
der suspicion because he did not take care to adopt a 
"mark by which the goods of the owner * 
may be distinguished from other goods of the same 
class," as contemplated by the statute (Sec. 5). If 
he was really using "Coco" as a descriptive term 
he might be naturally expected to call his goods 
"Lemakoco" rather than " Ko-Co-Lem-A. " 



The Examiner's ruling is reversed. 

T. W. H. CLAY, 
Assistant Commissioner. 
June 15, 1917. 



547 



THE COCA-COLA COMPANY 



DEPARTMENT OF THE INTERIOR, 

UNITED STATES PATENT OFFICE 

WASHINGTON, D. G. 



JHD August 3, 1917, 

In Re: Opposition No. 2286. 



THE COCA-COLA COMPANY 

v. 
CAVE. 



Before the Examiner of Interferences. 



The Coca-Cola Company, c/o Francis M. Phelps, City. 

Please find below a communication from the Ex- 
aminer in charge of Interferences in regard to the 
above-cited case. 

Very respectfully, 

THOMAS EWING, 
Commissioner of Patents. 

Whereas, the applicant, Cave, has failed to make 
any showing why judgment on the record should not 
be entered sustaining the notice of opposition, in 
view of his failure to file an answer, and whereas 
the time allowed for such action has expired, pursu- 
ant to the notice given July 16, 1917, the opposition 
is sustained, and judgment is hereby rendered to the 
effect that Ray Cave is not entitled to the registra- 
tion of the trade-mark for which he has made appli- 
cation. 

Limit of appeal: August 23, 1917. 

548 :* 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 1759 CARBO-GOLA 



THE COCA-COLA COMPANY 

v. 
THE CABBO-COLA COMPANY. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 
EEED & ROGERS, Chicago, Illinois, 
F. M. PHELPS, Washington, D. C., 
For The Coca-Cola Company. 



549 



THE COCA-COLA COMPANY 



DEPARTMENT OF THE INTERIOR 
UNITED STATES PATENT OFFICE 
WASHINGTON, D. C. 



IAW August 19, 1915, 



In Re: Opposition No. 1759 



THE COCA-COLA COMPANY 

v. 
THE CARBO-COLA COMPANY. 



Before the Examiner ofl Interferences. 



The Coca-Cola Co., c/o F. M. Phelps, City. 

Please find below a communication from the Ex- 
aminer in charge of Interferences in regard to the 
above-cited case. 

. Very respectfully, 

THOMAS EWING, 
Commissioner of Patents. 

This case is before me for the consideration of two 
motions as follows: 

1. A motion by The Carbo-Cola Company filed Au- 
gust 14, 1915, to quash or otherwise terminate the 
proceeding without a determination of the question 
of injury to the opposer. 

2. A motion by The Coca-Cola Company filed Au- 
gust 16, 1915, for judgment upon the record. 

According to the record as it now stands, the ap- 
plicant, The Carbo-Cola Company, is given until 
August 18, 1915, within which to answer. It is 
freely admitted, however, on behalf of the applicant 
that it cannot register, and reference is made to 

550 



v. THE CAEBO-CQLA COMPANY 

interference No. 38672 between John C. O'Dell and The 
Carbo-Cola Company in which a judgment was en- 
tered August 9, 1915, based upon a concession of the 
Carbo-Cola Company in favor of O'Dell. The right 
of appeal from that decision was waived and such 
decision is therefore final. It is contended that in 
view of that judgment the question of the right of 
The Carbo-Cola Company to register herein is a moot 
question and the opposition should therefore be dis- 
missed. On behalf of The Coca-Cola Company it is 
urged that the examiner of interferences is without 
authority to dispose of this proceeding except by a 
judgment, and reference is made to the case of Wil- 
liam A. Coombs Milling Co. v. Dewey Bros. Milling 
Co., 171 0. GL 743; 1911 C. D. 129, wherein it was 
held that after an opposition had been filed the same 
would not be terminated except by a judgment either 
sustaining or dismissing the opposition. It is argued 
on behalf of the opposer that it was not a party to 
the interferences referred to and therefore is not in 
any way bound by any judgment made therein. This 
contention is believed to be well founded. At the time 
the opposition was filed The Carbo-Cola Company was 
seeking registration. It cannot now avoid the ef- 
fects of a judgment sustaining the opposition on the 
ground that its right to register has already been de- 
termined in another case to which the opposer is not 
a party. On the other hand, in view of the admission 
that it cannot register, there seems to be no reason 
why the case may not be at once disposed of by a 
judgment in favor of the opposer. 

The motion of The Carbo-Cola Company to dismiss 
is denied. 

The motion of The Coca-Cola Company for judg- 
ment is granted, the opposition is sustained, and it is 
adjudged that The Carbo-Cola Company is not entitled 
to register the mark in its application for the goods 
therein specified. 

Limit of Appeal: September 20, 1915. 

551 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 1894 TENN-GOLA 



THE COCA-COLA COMPANY 

v. 
THE TENNESSEE COLA COMPANY. 



CANDLER, THOMSON & HIRSCH, Atlanta, Georgia, 
KEED & EOGERS, Chicago, Illinois, 
F. M. PHELPS, Washington, D. C., 

For The Coca-Cola Company. 



552 




Final Hearing: August 22, 1917 



OPPOSITION No. 1894 



THE COCA-COLA COMPANY 

v. 
THE TENNESSEE COLA COMPANY. 



This is an opposition by The Coca-Cola Company 
to registration by the Tennessee Cola Company of 
a trade-mark for syrup for making soft drinks. 

The mark sought to be registered is "Tenn-Cola," 
while the mark of the opposer is "Coca-Cola." The 
two marks are applied to the same class of goods. 

The applicant has taken no testimony and accord- 
ingly has no established date of use of the mark 
shown in its application (Greene, Tweed & Co. v. 
Manufacturers' Belt Hook Company, 137 0. G. 2221). 
The opposer is the owner of two certificates of reg- 
istration (Nos. 22,406 and 47,189), issued on Jan- 
uary 31, 1893, and October 31, 1905, respectively. 
Moreover, the testimony introduced on behalf of 
opposer shows that party's long-continued use of the 
mark on its goods and extensive advertising of said 
mark. Opposer 's ownership and use of the regis- 
tered mark "Coca-Cola" for many years past is well 
established. 

The mark shown in the application for registra- 
tion consists of the hyphenated words "Tenn-Cola," 

553 



THE COCA-COLA COMPANY 



written in script of the same style as that employed 
in opposer's mark and with paragraphs under the 
separate syllables of the word. Both marks are 
hyphenated words with the same number of letters 
in each half. Both end with "Cola." The word 
"Tenn-Cola" bears considerable resemblance to 
"Coca-Cola," and this natural resemblance is em- 
phasized and increased by the manner in which the 
former is displayed. No doubt as to its similarity 
to the registered mark "Coca-Cola" can be enter- 
tained. While it is unnecessary here to consider the 
question of unfair competition the applicant's imita- 
tion of the advertising methods of The Coca-Cola 
Company, as shown by the evidence produced, 
strengthens the conclusion that its mark is an inten- 
tional simulation of the well-known mark owned and 
used by opposer. The mark sfought to be registered 
is so similar to opposer's mark as to be apt to cause 
confusion therewith and its registration must, there- 
fore, be refused. 

The opposition is sustained, and it is adjudged 
that the Tennessee Cola Company, the applicant, is 
not entitled to register the mark for which it has 
made application. 

Limit of Appeal: September 14, 1917. 

J. W. MILBUBN, 
Acting Examiner of Interferences. 

August 25, 1917. 



554 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 1971 PENN-COLA 



THE COCA-COLA COMPANY 

v. 
THE PENN-COLA COMPANY. 



CANDLER, THOMSON & HIRSCH, Atlanta, Georgia, 
REED & ROGERS, Chicago, Illinois, 
F. M. PHELPS, Washington, D. C., 

For The Coca-Cola Company. 



555 



THE COCA-COLA COMPANY 



DEPARTMENT OF THE INTERIOR 

UNITED STATES PATENT OFFICE 

WASHINGTON, D. C. 



LAW November 9, 1916 



In Re: Opposition No. 1971 



THE COCA-COLA COMPANY, 
v. 

THE PENN-COLA COMPANY. 

I 



Before the Examiner of Interferences. 



Coca-Cola Co., c/o F. M. Phelps, City. 

Please find below a communication from the Ex- 
aminer in charge of Interferences in regard to the 
above-cited case. 

Very respectfully, 

THOMAS EWING, 
Commissioner of Patents. 

This case is before me on motion for judgment by 
The Coca-Cola Company upon the record as it now 
stands. 

The motion is based upon the admission in the an- 
swer that there would be confusion between the mark 
which the applicant seeks to register and the mark 
of the opposer. The opposition alleges fraud on be- 
half of the applicant. This is not admitted, but, on 
the other hand, is expressly denied. Intentional de- 
ceptive imitation is likewise denied. 

556 



v. THE PENN-CQLA COMPANY 

Inasmuch as the motion is based upon the admis- 
sion of confusion, the judgment to be entered will be 
based upon this question. It being admitted that the 
mark "Penn-Cola" which the applicant seeks to reg- 
ister is so near like the mark "Coca-Cola" of the op- 
poser as to cause confusion, the applicant cannot be 
permitted to register. 

The opposition is sustained, and it is adjudged that 
The Penn-Cola Company is not entitled to register the 
mark shown in its application for the goods therein 
specified. 

Limit of appeal: November 29, 1916. 



557 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 1900 CITRA-COLA 



THE COCA-COLA COMPANY 

v. 
CITRA-COLA MANUFACTURING COMPANY. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 
REED & ROGERS, Chicago, Illinois, 
F. M. PHELPS, Washington, D. C., 
For The Coca-Cola Company. 



558 




IAW April 24, 1916 



In Re: Opposition No. 1900 



THE COCA-COLA COMPANY 
v. 

CITRA-COLA MANUFACTURING and BOTTLING 

COMPANY 77. 



Before the Examiner of Interferences. 



The Coca-Cola Co., c/o F. M. Phelps, Washington, 
D. C. 

Please find below a communication from the Ex- 
aminer in charge of Interferences in regard to the 
above-cited case. 

Very respectfully, 

THOMAS EWING, 
Commissioner of Patents. 

Whereas, The Citra-Cola Manufacturing and 
Bottling Company, the applicant, has failed to make 
any showing why judgment on the record should not 
be entered sustaining the notice of opposition, in 
view of its failure to file an answer, and whereas the 
time allowed for such showing has expired, pursuant 
to the notice of March 30, 1916, the opposition is sus- 
tained and a judgment is hereby rendered to the ef- 
fect that the Citra-Cola Manufacturing and Bottling 
Company is not entitled to the registration of the 
trade-mark for which it has made application. 

Limit of appeal: May 15, 191*6. 

559 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 1899 COCA-COLA GUM 



THE COCA-COLA COMPANY 

v. 
FRANKLIN CARO COMPANY. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 
REED & ROGERS, Chicago, Illinois, 
FRANCIS M. PHELPS, Washington, D. C., 
For The Coca-Cola Company. 



560 




oca 



GUM 



SPEARMINT 
PEPSIN 



GUARANTEED BY THE FRANKLIN CARO CO. -UNDER PURE 
FOODAND DRUGS ACT, JUNE! 307H. 1906 SERIAL NO. 22^2 



oca 



GUM 



SPEARMINT 
PEPSIN 



IN THE UNITED STATES PATENT OFFICE 



OPPOSITION No. 1899 



THE COCA-COLA COMPANY 

v. 
FRANKLIN CARO COMPANY. 



Whereas, the applicant, the Franklin Caro Co. has 
failed to make any showing why judgment on the 
record should not be entered sustaining the notice of 
opposition, in view of its failure to file an answer, 1 
and whereas the time allowed for such action has ex- 
pired, pursuant to the notice given August 24, 1916, 
the opposition is sustained, and judgment is hereby 
rendered to the effect that the Franklin Caro Co. is 
not entitled to the registration of the trade-mark for 
which it has made application. 

Limit of Appeal: October 19, 1916. 



561 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 3713 "KAW-KOLA" 



THE COCA-COLA COMPANY 

v. 
KANSAS CITY KOLA COMPANY. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 

REED & ROGERS, Chicago, 111., 

BROWNE & PHELPS, Washington, D. C., 

For The Coca-Cola Company. 



502 



I 




February 20, 1922 



In Re: Opposition No. 3713 



COCA-COLA COMPANY 

v. 
KANSAS CITY KOLA COMPANY. 



Whereas Kansas City Kola Company, the appli- 
cant, has failed to make any showing why judgment 
on the record should not be entered sustaining the 
notice of opposition, in view of their failure to file an 
answer, and whereas the time for such showing has 
expired, pursuant to the notice of January 14, 1922, 
the opposition is sustained and it is hereby adjudged 
that Kansas City Kola Company is not entitled to the 
registration of the trade-mark for which they have 
made application. 

Limit of appeal: March 22, 1922. 



563 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 1879 CELRO-KOLA 



THE COCA-COLA COMPANY 

v. 
THE -CELEO-KOLA COMPANY 



CANDLER, THOMSON & HIRSCH, Atlanta, Georgia, 
REED & ROGERS, Chicago, Illinois, 
F. M. PHELPS, Washington, D C., 

For The Coca-Cola Company. 



504 



r 



DEPARTMENT OF THE INTERIOR 

UNITED STATES PATENT OFFICE 

WASHINGTON, D. G. 



January 25, 1916 



In Re: Opposition No. 1879 



THE COCA-COLA COMPANY 

v. 
CELRO-KOLA COMPANY. 



The Coca-Cola Company, c/o F. M. Phelps, City. 

Please find below a communication from the Ex- 
aminer in Charge of Interferences in regard to the 
above-cited case. 

Very respectfully, 

THOMAS EWING, 
Commissioner of Patents. 

In accordance with the stipulation of the parties, 
the opposition is sustained in the terms of the same, 
as follows: 

Without passing upon the other issues involved in 
this opposition, the opposition of The Coca-Cola Com- 
pany is sustained on the ground that the script let- 
tering in which the trade-mark ' ' Celro-Kola " is 
shown in the application of the Celro-Kola Company, 
filed June 25, 1915, Serial No. 87,588, is an apparent 
simulation of the style of lettering used for the 
trade-mark Coca-Cola of The Coca-Cola Company. 

No other issues are passed on by this order, and it 
is further without prejudice to the rights of the 

565 



THE COCA-COLA COMPANY 



Celro-Kola Company to make application to register 
its said trade-mark in any way not a simulation of 
the style of lettering of said trade-mark Coca-Cola, 
and is further, without prejudice to the pending ap- 
plication of said Celro-Kola Company, No. 91,096, 
filed December 2, 1915. 

The action of the parties is regarded as a waiver of 
the right of appeal, and no time for appeal is thereto- 
fore allowed. 



560 




I 



DRINK 




THE ORIGINAL 
CHERRY AND COLA DRINK 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 3343 SHERRY-COKE 



THE COCA-COLA COMPANY 

v. 
FARRAR J. SULLIVAN. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 
REED & ROGERS, Chicago, Illinois, 
BROWNE & PHELPS, Washington, D. C., 

For The Coca-Cola Company. 



567 



THE COCA-COLA COMPANY 



IN THE PATENT OFFICE OF THE UNITED 

STATES 



OPPOSITION No. 3343 May 3, 1921 



THE COCA-COLA COMPANY 

v. 
FARKAE J. SULLIVAN. 



Whereas Sullivan, the applicant, has failed to 
make any showing why judgment on the record should 
not be entered sustaining the notice of opposition, in 
view of his failure to file an answer, and whereas 
the time allowed for such showing has expired, 
pursuant to the notice of March 26, 1921, the oppo- 
sition is sustained, and it is hereby adjudged that 
Farrar J. Sullivan, the applicant, is not entitled to 
the registration of the trade-mark for which he had 
made application. 

Limit of appeal: June 3, 1921. 



508 



v. FAEEAE J. SULLIVAN 



IN THE PATENT OFFICE OF THE UNITED 

STATES 



OPPOSITION No. 3343 March 28, 1921 



THE COCA-COLA COMPANY 

v. 
FAEEAE J. SULLIVAN. 



The time set for filing an answer to the notice of 
opposition having passed and Sullivan, the applicant, 
having failed to take any action, notice is hereby 
given that judgment will be rendered sustaining the 
notice of opposition of The Coca-Cola Company, unless 
good and sufficient cause is shown on or before 
April 26, 1921, why such action should not be taken. 



569 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 1881 MITCH-O-GOLA 



L_ 



THE COCA-COLA COMPANY 

v. 
WARRIOR BOTTLING COMPANY. 



HAROLD HIRSCH, Atlanta, Georgia, 
FRANK F. REED and EDWARD S. ROGERS, Chicago, 111., 
FRANCIS M. PHELPS, Washington, D. C., 
For The Coca-Cola Company. 



570 



I 



DEPARTMENT OF THE INTERIOR 

UNITED STATES PATENT OFFICE 

WASHINGTON, D. C. 



JHD December 14, 1915 



In Re: Opposition No. 1881 



THE COCA-COLA COMPANY 

v. 
WARRIOR BOTTLING COMPANY. 



Before the Examiner of Interferences. 



The Coca-Cola Company, c/o Francis M. Phelps, Bar- 
rister Bldg., City. 

Please find below a communication from the Ex- 
aminer in charge of Interferences in regard to the 
above-cited case. 

Very respectfully, 

THOMAS EWING, 
Commissioner of Patents. 

Whereas, the applicant, The Warrior Bottling Co., 
has failed to make any showing why judgment on the 
record should not be entered sustaining the notice of 
opposition, in view of its failure to file an answer, and 
whereas the time allowed for such action has expired, 
pursuant to the notice given November 10, 1915, the 
opposition is sustained, and judgment is hereby ren- 
dered to the effect that The Warrior Bottling Co. is 
not entitled to the registration of the trade-mark for 
which it has made application. 

Limit of appeal: January 14, 1916. 

571 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 1972 KING-COLA 



THE COCA-COLA COMPANY 

v. 
VIRGINIA BEVERAGE CORPORATION. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 
REED & ROGERS, Chicago, Illinois, 
F. M. PHELPS, Washington, D. C., 
For The Coca-Cola Company. 



572 



DEPARTMENT OF THE INTERIOR 

UNITED STATES PATENT OFFICE 

WASHINGTON, D. C. 



LBF January 13, 1917 



In Re: Opposition No. 1972 



THE COCA-COLA COMPANY 

v. 
VIRGINIA BEVERAGE CORPORATION. 



Before the Examiner of Interferences. 



The Coca-Cola Company, c/o F. M. Phelps, City. 

Please find below a communication from the Ex- 
aminer in charge of Interferences in regard to the 
above-cited case. 

Very respectfully, 

THOMAS EWING, 
Commissioner of Patents. 

Whereas, the Virginia Beverage Corporation, the 
applicant, has failed to make any showing why judg- 
ment on the record should not be entered sustaining 
the notice of opposition, in view of its failure to file 
an answer, and whereas the time allowed for such 
showing has expired, pursuant to the notice of De- 
cember 9, 1916, the opposition is sustained, and judg- 
ment is hereby rendered to the effect that the Vir- 
ginia Beverage Corporation is not entitled to register 
the mark for which it has made application. 

Limit of appeal: February 2, 1917. 

573 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 2154 TRICO GENUINE 
COCA AND COLA FLAVOR 



THE COCA-COLA COMPANY 

v. 
NATIONAL CARBONATING SYRUP CO. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga. 
REED & ROGERS, Chicago, Illinois, 
FRANCIS M. PHELPS, Washington, D, C., 
For The Coca-Cola Company. 



r>74 




5 COCA AND COLA 




I 



IN THE PATENT OFFICE OF THE UNITED 

STATES 



Opposition No. 2154 December 1, 1916 



THE COCA-COLA COMPANY 

v. 
NATIONAL CARBONATING SYRUP COMPANY. 



The Coca-Cola Company, c/o F. M. Phelps : 

Whereas, the National Carbonating Syrup Com- 
pany, the applicant, has failed to make any showing 
why judgment of the record should not be entered 
sustaining the notice of opposition, in view of its 
failure to file an answer, and 

Whereas, the time allowed for such showing has 
expired, pursuant to the notice of October 25, 1916, 
the opposition is sustained and judgment is hereby 
rendered to the effect that the National Carbonating 
Syrup Company is not entitled to register the trade- 
mark for which it has made application. 
Limit of appeal: December 21, 1916. 



575 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 2017 SILVER COLA 



THE COCA-COLA COMPANY 

v. 
WM. POWER. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 

FRANK F. REED and EDWARD S. ROGERS, Chicago, 111., 

FRANCIS M. PHELPS, Washington, D. C., 

For The Coca-Cola Company. 



576 



I 



DEPARTMENT OF THE INTERIOR 

UNITED STATES PATENT OFFICE 

WASHINGTON, D. G. 



IAW June 9, 1916 



In Re: Opposition No. 2017 



THE COCA-COLA COMPANY 

v. 
POWER. 



Before the Examiner of Interferences. 



The Coca-Cola Co., c/o Francis M. Phelps, City. 

Please find below a communication from the Exam- 
iner in charge of Interferences in regard to the above- 
cited case. 

Very respectfully, 

THOMAS EWING, 
Commissioner of Patents. 

Whereas, William W. Power, the applicant, has 
failed to make any showing why judgment on the 
record should not be entered sustaining the notice of 
opposition, in view of his failure to file an answer, 
and whereas the time allowed for such showing has 
expired, pursuant to the notice of May 5, 1916, the 
opposition is sustained, and a judgment is rendered to 
the effect that William W.. Power is not entitled to the 
registration of the trade-mark for which he has mado 
application. 

Limit of appeal: June 29, 1916. 

577 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 2253 QUA KOLA 



THE COCA-COLA COMPANY 

v. 
THE QUAKER-KOLA COMPANY. 



CANDLER, THOMSON & HIRSCH, Atlanta, Ga., 
REED & ROGERS, Chicago, Illinois, 
F. M. PHELPS, Washington, D. C., 

For The Coca-Cola Company. 



___ y ^ Q _ 




QyAkpLA 

^^^^^^^ * ^^ 



DEPARTMENT OF THE INTERIOR 

UNITED STATES PATENT OFFICE 

WASHINGTON, D. C. 



IAW June 26, 1917 



In Re: Opposition No. 2253 



THE COCA-COLA COMPANY 

v. 
THE QUAKER-KOLA COMPANY. 



Before the Examiner of Interferences. 



Coca-Cola Co., c/o F. M. Phelps, City. 

Please find below a communication from the Ex- 
aminer in charge of Interferences in regard to the 
above-cited case. 

Very respectfully, 

THOMAS EWING, 
Commissioner of Patents. 

Whereas, The Quaker-Kola Company, the applicant, 
has failed to make any showing why judgment on the 
record should not be entered sustaining the notice of 
opposition, in view of its failure to file an answer, and 
whereas the time allowed for such showing has ex- 
pired, pursuant to the notice of May 31, 1917, the 
opposition is sustained, and a judgment is hereby ren- 
dered to the effect that The Quaker-Kola Company is 
not entitled to the registration of the trade-mark for 
which it has made application. 

Limit of appeal: July 16, 1917. 

579 



IN THE PATENT OFFICE 
OF THE UNITED STATES 



OPPOSITION No. 2241 PRINCE-COLA 



THE COCA-COLA COMPANY 

v. 
G. A. MILLER. 



CANDLER, THOMSON & HIRSCH, Atlanta, Georgia, 
REED & ROGERS, Chicago, Illinois, 
P. M. PHELPS, Washington, D. C., 

For The Coca-Cola Company. 



580 



DEPARTMENT OF THE INTERIOR 

UNITED STATES PATENT OFFICE 

WASHINGTON, D. G. 



In Re: Opposition No. 2241 March 24, 1917 



THE COCA-COLA COMPANY 

v. 
MILLER. 



The Coca-Cola Company, c/o Francis M. Phelps, Bar- 
rister Bldg., City. 

Please find below a communication from the Ex- 
aminer in charge of Interferences in regard to the 
above-cited case. 

Very respectfully, 

THOMAS EWING, 
Commissioner of Patents. 

Whereas, the applicant, Miller, has failed to make 
any showing why judgment on the record should not 
be entered sustaining the notice of opposition, in view 
of his failure to file an answer, and whereas the time 
allowed for such action has expired, pursuant to the 
notice given February 19, 1917, the opposition is 
sustained, and judgment is hereby rendered to the 
effect that G. A. Miller is not entitled to the registra- 
tion of the trade-mark for which he has made ap- 
plication. 

Limit of appeal: April 13, 1917. 



581 



THE COCA-COLA COMPANY, et al., 

IN THE COURT OF CIVIL APPEAL OF TEXAS 

225 S. W. 791 



No. 6240 NOVEMBER 10, 1920 



THE COCA-COLA COMPANY, et al. 

v. 
STATE OF TEXAS. 



1. MONOPOLIES KN. 8 NOT FAVORED EXCEPT AS 
TO THE MATTER OF PATENTS, ETC. 

Private monopolies arc contrary 1o the genius of a commercial 
people, and contracts in restraint of vtrade are not looked upon 
with favor, but the federal Constitution, however, provides tor 
the creation of monopolies in the matter of patent rights, trade- 
marks, and copyrights (Article 1, Sec. 8). 

2. COPYRIGHTS KN. 2 PATENTS KN. 2 TRADE- 
MARKS AND TRADE-NAMES KN. 42 STATES CAN- 
NOT NULLIFY CONGRESSIONAL ACTS. 

Where Congress lias legislated under Const. U. S. Art. 1, Sec. 8, 
providing for monopolies in the matter of patent rights, trade- 
marks, and copyrights, no state can nullify its acts. 

3. COPYRIGHTS KN. 50 PATENTS KN. 216 TRADE- 
MARKS AND TRADE-NAMES KN. 35 ASSIGNEE MAY 
BE RESTRICTED AS TO USE. 

The owner of a patent right, copyright, or trade-mark, having 
the exclusive right to manufacture and sell the article protected 
thereby, and being under no legal obligation to grant such right 
to ar.other, may impose upon his assignee such restrictions as he 
may see proper, and to which his assignee will agree, including 
the price at which the article may be sold, the territory in which 
it may be manufactured and sold, the material that may be used 
in its manufacture or in connection therewith. 

4. COPYRIGHTS KN. 50 PATENTS KN. 191 -TRADE- 
MARKS AND TRADE-NAMES KN. 31 ARTICLE HAV- 
ING BEEN SOLD, NO RESTRICTIONS CAN BE IM- 
POSED UPON VENDEE AS TO FUTURE SALE. 

The owner of an article protected by patent, copyright, or 
trade-mark, when he has manufactured and sold the same, cannot 

582 



v. STATE OF TEXAS 



impose restrictions upon his vendee as to the future sale of the 
same, since having parted with his ownership therein it enters 
the channels of trade as an article of commerce and is thereafter 
beyond his control. 

5. COPYRIGHTS KN. 41, 42 PATENTS KN. 191 TRADE- 
MARKS AND TRADE NAMES KN. 23 NOT ARTICLES 
OF COMMERCE IN THE SENSE THAT THEY MAY 
BE CONSUMED BY PURCHASING PUBLIC. 

A trade-mark, patent, or copyright is property in the sense that 
it has a commercial value ard may be sold as other property, 
but it is not an article of commerce in the sense that it may be 
consumed by the purchasing public. 

6. TRADE-MARKS AND TRADE-NAMES KN. 32 AR- 
TICLE NEED NOT BE ACTUALLY MANUFACTURED 
BY OWNER OF TRADE-MARK. 

An article need not be actually manufactured by the owner 
of the trade-mark, it being enough that it is manufactured under 
his supervision and according to his directions, thus securing both 
the right of the owner and the right of the public. 

7. MONOPOLIES KN. 17 (1) COCA-COLA SYRUP HELD 
NOT ARTICLE USED BY PUBLIC, AND RE-SALE MAY 
BE RESTRICTED. 

Coca-Cola syrup, used in the manufacture of Coca-Cola, is 
not an article to be used by the public, but is useful only as an 
ingredient in the manufacture of bottled Coca-Cola, and as no 
one but the licensee of The Coca-Cola Company has the right to 
manufacture bottled Coca-Cola, it was no restriction on trade to 
provide in a contract of assignment of rights that bottlers should 
not sell the syrup, which was sold to them by the company. 

8. COPYRIGHTS KN. 1 APPLIES EXCLUSIVELY TO 
WORK OF ART OR LITERATURE. 

A copyright, while possessing the same attributes of monopoly 
as a patent or trade-mark, differs from both of them in that it 
applies exclusively to works of art or literature. 

Appeal from District Court, Travis County; GEO. 
CALHOUN, Judge. 

Suit by the State against Tile Coca-Cola Company 
and others. Judgment for plaintiff, and defendants 
appeal. Reversed and rendered. 

583 



THE COCA-COLA COMPANY, et al, 

Candler, Thomson & Hirsch, of Atlanta, Ga. ; H. 0. 
Head, of Sherman, and Crane & Crane, of Dallas, for 
appellants. 

C. M. Cureton, Atty. Gen., and W. A. Keelitif/, 
Asst. Atty. Gen., for appellee. 

FINDINGS OF FACT. 

JENKINS, J. : 

This suit was brought by appellee to restrain 
The Coca-Cola Company, the Coca-Cola Bottling Com- 
pany, and certain local bottling companies from ex- 
ecuting certain contracts, hereinafter stated, as being 
in violation of the anti-trust laws of this state. It was 
tried before the court practically upon an agreed state- 
ment of facts, and judgment wap rendered as prayed 
for. 

We copy from the agreed statement of facts, and 
adopt as our findings of fact the following: 

1 'It is agreed that since the 22d of February, 
1892, the defendant, The Coca-Cola Company, has 
been the owner and entitled to the exclusive use 
of a formula for the making and manufacture of 
a beverage known as Coca-Cola, and the basic 
syrup from which said beverage is made; and 
likewise the owner and entitled to the exclusive 
use of the trade-name 'Coca-Cola/ which trade- 
name was exclusively applied to the said bever- 
age, Coca-Cola, and the basic syrups from which 
said beverage was made; that it has at all times 
since said date been the exclusive owner of said 
trade-name and said formula, and entitled to 
their exclusive use, unless the sale of either basic 
syrup, as a matter of law, carries with it the 
right to dilute and bottle same, and then sell 
same under the trade-mark of defendant, Coca- 
Cola Company, as bottled Coca-Cola, and without 
the consent of said defendant. 

584 



v. STATE OF TEXAS 



"That being the exclusive owner of the said 
trade-name Coca-Cola and said formula, the de- 
fendant, The Coca-Cola Company, did on the 14th 
day of May, 1892, apply to the United States 
Patent Office to have its trade-name Coca-Cola 
registered as a trade-mark for its beverage and 
basic syrups out of which same was made; that 
its application was granted, and on the 31st of 
January, 1893, the said trade-name Coca-Cola 
was registered as its trade-mark for its said bev- 
erage and its said basic syrups, as will more fully 
appear by reference to the certificate of registra- 
tion issued by the said Patent Office of the United 
States, attached to defendant's answer as Ex- 
hibit A. 

"That thereafter, to wit, on or about the 22d 
day of April, 1905, it being still the exclusive 
owner of the said formula under which Coca-Cola 
was manufactured, the trade-name Coca-Cola and 
the trade-mark registered as aforesaid, and en- 
titled to the exclusive use thereof, as above ex- 
plained, applied to the said Patent Office of the 
United States to have its trade-mark Coca-Cola 
again registered therein, in compliance with the 
act of Congress approved February 20, 1905, 
which said Patent Office granted its application 
on the 31st of October, 1905, and registered the 
same as a trade-mark for the tonic beverages of 
the said defendant, the Coca-Cola Company, and 
the basic syrups for the manufacture of said bev- 
erages, all of which will more fully appear by 
reference to certificate of registration issued by 
said Patent Office of the United States, and at- 
tached to defendant's answer, marked 'Exhibit 
B'; that said certificate of registration is still in 
full force and effect, and wholly unrevoked or 
canceled. 

"That the Coca-Cola Company is entitled to 

585 



THE COCA-COLA COMPANY, et al, 

the sole and exclusive right, both general and 
special, as above explained, to use and employ 
the trade-mark Coca-Cola or trade-name Coca- 
Cola; that this right of the Coca-Cola Company 
has been generally recognized by the public; 
that this right to sell this beverage, thus bottled 
and sold under its trade-mark, is exceedingly 

"That the said defendant, the Coca-Cola Corn- 
valuable, and worth more than $5,000. 
pany, has continuously since February 22, 1892, 
used the said trade-mark Coca-Cola to designate 
its beverages and syrups from which they are 
made, and particularly to designate its beverage 
sold in bottles; that because of its exclusive own- 
ership and exclusive use the defendant, Coca-Cola 
Company, from said date last named, has spent 
the sum of not less than $1^,000,000 in advertis- 
ing its said beverages and popularizing same 
throughout the United States and foreign coun- 
tries as well. 

"The Coca-Cola Company, it is admitted, con- 
tends that these contracts are necessary in order 
to protect the integrity of its product, and there- 
fore the value of its trade-mark. It contends that 
unless it can make contracts for the exclusive use 
of its trade-mark, such trade-mark will be of lit- 
tle value to it. The plaintiff contends that these 
contracts hereto attached are in restraint of 
trade and violative of the anti-trust laws of 
Texas, and that the defendant should therefore 
be enjoined from further operation under them." 

In addition to the above, we find the following- 
facts: 

The Coca-Cola Company is a corporation, as is also 
The Coca-Cola Bottling Company, each having a per- 
mit to do business in Texas. 

The Coca-Cola Company is the owner of a secret 
process, by which it manufactures two kinds of 

586 



v. STATE OF TEXAS 



syrups, each of which is known as Coca-Cola syrup. 
One is sold to the proprietors of soda fountains, to be 
mixed with carbonated water and sold to be drunk 
at the counter. This syrup is not involved in this 
suit. The other is manufactured to be used solely 
in the manufacture of a bottled drink, known as 
Coca-Cola. 

The Coca-Cola Company is the owner of the trade- 
mark, Coca-Cola, and the same is used by it and its 
assignees to designate a bottled drink sold under the 
name Coca-Cola, Prior to the institution of this suit. 
The Coca-Cola Company entered into a contract with 
The Coca-Cola Bottling Company in which the latter 
company was granted the exclusive right to manu- 
facture Coca-Cola in the State of Texas, and sell the 
same in bottles under the trade-mark Coca-Cola. It 
was provided in said contract that Coca-Cola should 
be composed of certain ingredients in certain pro- 
portions, including Coca-Cola syrup, and bottled in 
a specified manner; also that the bottling company 
would buy Coca-Cola syrup exclusively from The 
Coca-Cola Company at an agreed price, and that it 
would not use any substitute therefor in bottling 
Coca-Cola, and that it would not sell such syrup; also 
that The Coca-Cola Company would not sell its bot- 
tling syrup to anyone else in Texas. The Coca-Cola 
Bottling Company was permitted to make similar 
contracts with local bottling companies as to definite 
limited territory in Texas, subject to the approval of 
The Coca-Cola Company. The bottling company has 
made such contracts with numerous local bottling 
companies in this state, and all such contracts are 
being carried out by the respective parties thereto, 
and will continue so to be unless restrained by an 
order of court. There are no restrictions in these 
contracts as to sale of bottled Coca-Cola, either as 
to price or territory. 

587 



THE COCA-COLA COMPANY, et al., 

OPINION. 

Contracts creating monopolies and in restraint of 
trade, or alleged so to be, have been a fruitful source 
of litigation. The decisions in reference thereto have 
not been altogether harmonious. It would serve no 
useful purpose to cite and discuss these numerous 
decisions. We will content ourselves with stating 
some general principles and applying them to the 
facts of the instant case, citing a few cases which we 
deem in point in support of our views of the law as 
herein expressed. 

(1, 2) Private monopolies are contrary to the genius 
of a commercial people, and contracts in restraint of 
trade are not looked upon with favor. The Constitu- 
tion of the United States, however, expressly pro- 
vides for the creation of monopolies in the matter of 
patent rights, trade-marks and copyrights. Article 
1, Sec. 8. Congress has legislated under this pro- 
vision, and no state can nullify its acts. ."The very 
object of these laws is monopoly. " Bement v. Har- 
row Co., 186 U. S. 91, 22 Sup. Ct. 474, 46 L. Ed. 1069; 
Tea Co. v. Cream of Wheat Co. (D. C.), 224 Fed. 572. 
The value of a trade-mark to its owner consists in the 
monopoly which it gives him by reason of his exclu- 
sive right to use the same. Kidd v. Johnson (D. C.), 
100 U. S. 617, 620, 25 L. Ed. 770; Coca-Cola Co. v. 
Butler (D. C.), 229 Fed. 224; Bennett v. Coca-Cola 
Co., 238 Fed. 513, 151 C. C. A. 449; Baglin v. Cusenier, 
221 U. S. 580, 31 Sup. Ct. 669, 55 L. Ed. 869. 

(3) The owner of a patent right, copyright, or 
trade-mark having the exclusive right to manufac- 
ture and sell the article protected thereby, and being 
under no legal obligation to grant such right to an- 
other, may impose upon his assignee such restrictions 
as he may see proper, and to which his assignee will 
agree, including the price at which the article may 
be sold, the territory in which it may be manufactured 

588 



v. STATE OF TEXAS 



and sold, the material that may be used in its 
manufacture, or in connection therewith. Bement v. 
Harrow Co., supra; Bennett v. Coca : Cola Co., supra; 
Clark v. Wire Fence Co., 22 Tex. Civ. App. 41, 54 
S. W. 392; Bauer v. O'Donnell, 229 U. S. 1, 33 Sup. 
Ct. 616, 57 L. Ed. 1046, 50 L. R. A. (N. S.) 1185, Ann. 
Cas. 1915 A, 150; Victrola Talking Machine v. Straus 
(D. C.), 222 Fed. 524. 

(4) The owner of an article protected by a patent, 
copyright, or trade-mark, when he has manufactured 
and sold the same, cannot impose restrictions upon 
his vendee as to the future sale of the same. Having 
parted with his ownership therein, it enters the chan- 
nels of trade as an article of commerce, and is there- 
after beyond his control. Henry v. Dick, 224 U. S. 1, 
32 Sup. Ct. 364, 56 L. Ed. 653; Victor Talking Ma- 
chine v. Straus, supra; Bobbs-Merrill v. Straus, 210 
U. S. 339, 28 Sup. Ct. 722, 52 L. Ed. 1086; Miles 
Med. Co. v. Parks, 220 U. S. 373, 31 Sup. Ct. 376, 55 
L. Ed. 502; Bauer v. O'Donnell, supra-, Hill v. Gray, 
163 Mich. 12, 127 N. W. 803, 30 L. R. A. (N. S.) 327. 

There is, however, a marked distinction between 
the sale of an article, the manufacture of which is 
protected by a patent or copyright, or the right to use 
a trade-mark in connection with the sale thereof, and 
the sale of the right so secured. In the one case, the 
finished article ready for commerce is sold. In the 
other case, nothing tangible is sold, but only the 
right to produce and sell such tangible article; in 
other words, the right to use the exclusive privilege 
which has been granted to the owner of the patent, 
copyright, or trade-mark, which, as we have said, 
may be granted upon such terms as the parties may 
agree upon, or failing such agreement, may be with- 
held altogether. The right of the owner of property 
to dispose of same upon such terms as he may see 
proper is universal. The right to fix the terms upon 
which another (his vendee) may dispose of his 

589 



THE COCA-COLA COMPANY, et al., 

property is deemed as being a restraint upon the 
freedom of trade. 

(5) A trade-mark, patent, or copyright is property 
in the sense, that it has a commercial value, and may 
be sold as other property, but it is not an article of 
commerce in the sense that it may be consumed by 
the purchasing public. However valuable it may be 
to its owner, it is nothing more than a privilege, valu- 
able because of its exclusiveness. "The property (in 
a trade-mark) is the use." Canal Co. v. Clark, 13 
Wall. 311, 20 L. Ed. 583. The sale of a trade-mark is 
nothing more than a license from the owner to use the 
name; hence his right to impose restrictions upon 
such license. 

(6) The protection given by law has a twofold ob- 
ject; to protect the owner in his property, and to pro- 
tect the public from being deceived by reason of a 
misleading claim thai the article bearing the trade- 
mark is the article manufactured by the owner of the 
trade-mark when in fact it is not. Bennett v. Coca- 
Cola, supra. The article need not be actually manu- 
factured by the owner of the trade-mark ; it is enough 
that it is manufactured under his supervision and ac- 
cording to his direction. This secures both the right 
of the owner and the right of the public. Nelson v. 
Winchell, 203 Mass. 75, 89 N. E. 180, 23 L. E. A. 
(N. S.) 1150-1160. 

The office of a trade-mark is to guarantee the purity 
of the article, it being presumed that as the owner has 
the exclusive right to use the same, he will see that 
the goods sold under it are of such a character as will 
win and retain the confidence and patronage of the 
purchasing public. A trade-mark thus becomes "a 
visible sign of an upward grace." 

(7) Applying these legal principles to facts of the 
instant case, we have an apt illustration of the neces- 

. sity of the owner of a trade-mark being able to con- 
trol its manufacture as security both to his rights and 

590 



v. STATE OF TEXAS 



the rights of the public. The trade-mark Coca-Cola 
has become of great value by reason of the reputation 
it has acquired. Bottled Coca-Cola is a drink exten- 
sively consumed by the public, who are interested in 
maintaining its purity, and who accept it by reason 
of the trade-mark which it bears. To maintain this 
standard, The Coca-Cola Company stipulated that no 
syrup other than Coca-Cola syrup should be used in the 
manufacture of bottled Coca-Cola. Compliance with 
this stipulation could be secured in ho other way than 
by the bottlers purchasing Coca-Cola syrup from The 
Coca-Cola Company, for the reason that no one else 
knows the secret of its manufacture. As Coca-Cola 
syrup is not an article to be used by the public, but 
is useful only as an ingredient in the manufacture of 
bottled Coca-Cola, and as no one except the licensee 
of The Coca-Cola Company has the right to manufac- 
ture bottled Coca-Cola, it was no restriction on trade 
to provide in the contract that the bottlers should not 
sell the same. There was no such trade. The licensed 
bottlers used it for the sole purpose for which it was 
manufactured. No one else has the right to use it for 
such purpose. "As the syrup manufactured by the 
appellant is not itself consumed by the public, * 
there coula be no sale of the syrup unless there was a 
sale of the beverage made therefrom." Bennett v. 
Coca-Cola Co., supra. 

It is the contention of appellee that, inasmuch as 
The Texas Bottling Company, with the approval of 
The -Coca-Cola Company, has granted to different bot- 
tling companies the exclusive right to manufacture 
and sell bottled Coca-Cola in certain defined terri- 
tories, and as these contracts virtually cover the en- 
tire state, a monopoly has thereby been created. Not 
so; it only continues the legal monopoly already exist- 
ing. The Coca-Cola Company, having the exclusive 
right to sell bottled Coca-Cola in the United States, 
might itself have operated as many bottling plants as 
it saw fit in this state, and prohibited all others from 

591 



THE COCA-COLA COMPANY, et al, 

bottling Coca-Cola in such territory. The Texas Bot- 
tling Company, having acquired the exclusive right to 
bottle and sell Coca-Cola in Texas, might have done 
likewise. It cannot be said that a monopoly has been 
established by a contract where such monopoly al- 
ready existed, and would have continued to exist 
without such contract. 

As stated in our findings of fact, the contracts here 
under discussion place no restriction upon the sale of 
bottled Coca-Cola after it has been manufactured by 
the bottling company. Any one who chooses to do so 
may operate a bottling plant and put up and sell 
bottled drinks. If The Coca-Cola Company could not 
control the manufacture of Coca-Cola by local bot- 
tling companies, the rights both of the public and The 
Coca-Cola Company might be jeopardized; the public 
in having palmed off on it an inferior article, and The 
Coca-Cola Company in having the reputation of its 
trade-mark destroyed by the sale of such inferior ar- 
ticle by a few local bottling companies. 

(8) Appellee, in support of its contention herein, 
cites the case of Jersey Creme Co. v. McDaniel, 152 
S. W. 1187. That case is not in point, for the reason 
that Jersey Creme syrup was not a patented article, 
and the Jersey Creme Company had not registered 
Jersey Creme as its trade-mark. All that it had was 
a copyright to certain labels. This secured to it the 
exclusive right to manufacture and sell such labels, 
but nothing more. This right was not involved in the 
case. A copyright, while possessing the same at- 
tributes of monopoly as a patent or trade-mark dif- 
fers from both of them, in that it applies exclusively 
to works of art or literature. In a copyright as in a 
patent, the owner loses control of the article when it 
is sold. The purchaser of the copyright labels might 
have pasted them on cold drinks manufactured by 
him, or on packages of butter, or other articles of 

592 



v. STATE OF TEXAS 



merchandise, but this would not have constituted 
them trade-marks. 

Holding as we do that the trial court erred in its 
judgment herein, such judgment is reversed, and 
judgment is here rendered for appellant. 

Reversed and rendered. 
BEADY, J., not sitting. 



593 



THE COCA-COLA COMPANY, et al., 

SUPREME COURT OF LOUISIANA 

90 SOUTHERN 755 



MAY 31, 1920 
Rehearing January 30, 1922 



COCA-COLA COMPANY, et al., 

v. 
VIVIAN ICE, LIGHT AND WATER COMPANY. 



1. TRADE-MARKS AND TRADE NAMES AND UNFAIR 
COMPETITION 72 BOTTLING AND SELLING SOFT 
DRINK WITH PLAINTIFF'S TRADE-NAME BLOWN 
IN THE BOTTLES HELD UNAUTHORIZED USE OF 
TRADE-MARK. 

Where defendant purchased a quantity of the syrup used in mak- 
ing a beverage sold under the name "Coca-Cola" and put it in 
bottles, using a larger proportion of the syrup than that intended 
by the manufacturers for bottling purposes and adding some caramel 
syrup for coloring purposes, and then sold the bottles to the trade 
generally with the name "Coca-Cola" stamped on the caps and 
blown into the bottles and with defendant's name stamped thereon 
as the manufacturer or bottler, such acts held to constitute a use 
of plaintiff's trade-name without their consent, regardless of 
whether the article contained in the bottle was genuine Coca-Cola 
or not. 

2. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION 72 TRADE-MARK GIVES OWNER 
MONOPOLY OF ARTICLE AS SOLD UNDER TRADE- 
MARK. 

A trade-mark gives the owner something in the nature of a 
monopoly; a monopoly not in the article sold under the trade- 
mark, but a monopoly of that article as sold under the trade-mark. 

594 



v. VIVIAN ICE, LIGHT AND WATER COMPANY 

ON REHEARING. 

3. TRADE-MARKS AND TRADE-NAMES AND UNFAIR 
COMPETITION 98 $1,000 HELD EXCESSIVE FOR 
UNAUTHORIZED USE OF TRADE-MARK. 

In a suit to enjoin the unauthorized use of a trade-mark and 
for damages and an accounting, an alloAvance of $1,000 held exces- 
sive ar.d will be reduced to $100, where, although plaintiffs were 
entitled to damages, their amount was not capable of being ac- 
curately determined. 

PBOVOSTY, C. J., and O'NIELL, J., dissenting. 

Appeal from First Judicial District Court, Parish 
of Caddo; T. F. BELL, Judge. 

Action by the Coca-Cola Company and others 
against the Vivian Ice, Light and Water Company in 
damages and for an injunction to restrain illegal use 
of trade-mark. Judgment for plaintiffs, and defend- 
ant appeals. Modified and affirmed on rehearing. 

Wise, Randolph, Rendall & Freyer, of Shreveport, 
for appellant. 

Blanchard, Goldstein & Walker, of Shreveport, and 
Candler, Thomson & Hirsch, of Atlanta, Ga., for 
appellees. 

DAWKINS, J. : 

This is an action in damages and for injunction to 
restrain the alleged illegal use of a trade-mark. 

Defendant admits substantially the allegations of 
fact charged against it, but denies the conclusions of 
law drawn therefrom by the plaintiff. 

There was judgment below in favor of plaintiff for 
the sum of $1,000, under the trade-mark statute of 
this state, enjoining the defendant from using the 
trade-name of the plaintiff, ordering it to account to 
the plaintiffs for the profits derived from the same, 
and that it deliver up to plaintiffs, or some one 

595 



THE COCA-COLA COMPANY, et al, 

designated by them, "any and all bottles, crowns, 
labels, boxes, or advertising matter in its possession 
upon which appears the name 'Coca-Cola,' or in asso- 
ciation with any other words, and also all of the prod- 
ucts in a form sufficiently similar to the product of the 
plaintiffs to cause deception," and that plaintiffs be de- 
creed to have the sole and exclusive use of the trade- 
mark or name "Coca-Cola," in connection with any 
drink or beverage. 

Defendant prosecutes this appeal. 

OPINION. 

The plaintiffs are The Coca-Cola Company, a 
Georgia corporation, the Coca-Cola Bottling Com- 
pany, incorporated under the laws of Tennessee, and 
the Star Bottling Works, Limited, a Louisiana corpo- 
ration. The Georgia corporation is what might be 
termed the parent company, owner and possessor of 
the trade-mark "Coca-Cola," and under which it 
manufactures two kinds of syrup bearing that name; 
one to be used in the preparation of a soft drink of 
the same name by soda fountains, which is sold to 
the trade generally, and the other to be used in 
putting up the beverage for distribution in bottles. 
The second syrup is distributed exclusively through 
the Tennessee corporation, which is required to make 
definite and specific contracts with those to whom the 
syrup is sold for bottling purposes, and under which 
certain well-defined restrictions are imposed as to the 
quantity and proportions of the syrup to be used, and 
as to the right of inspection by representatives of the 
Coca-Cola Company, in order to determine the sani- 
tary conditions under which the bottled drink is to be 
made; the purpose being, it is alleged, to maintain a 
particular standard of purity and cleanliness to sus- 
tain the reputation of the beverage. 

The formula for making the syrup is a secret one, 
but the record discloses that the kind furnished to 

f)90 



v. VIVIAN ICE, LIGHT AND WATER COMPANY 

|^ 

soda fountains is not as strong as that intended for 
bottling purposes ; the proportions of ingredients 
used being considerably dissimilar. 

Defendant purchased a considerable quantity of the 
syrup intended for use at fountains, and by the use 
of a larger proportion than that intended for bottling, 
and adding some caramel syrup for coloring pur- 
poses, had been and was manufacturing, putting up 
and selling in bottles to the trade generally a bever- 
age with the name "Coca-Cola" stamped on the caps 
and blown into the bottles, and with the name Vivian 
Ice Company stamped thereon as the manufacturer 
or bottler. 

The lower court has covered the case so admirably 
in its written opinion that we adopt and quote from 
the same at length as follows : 

"There can be no dispute about plaintiffs being 
the owners of this trade-mark, both under the 
laws of the United States and of the State of 
Louisiana. Under the United States registration, 
it covered, not only the syrup, but the beverage 
or drink to be made from the syrup. 

"Section 3 of Act 49 of 1898, after providing 
for the registration of the trade-mark and the 
description of the merchandise to be covered by 
it, provides that 'No other person,' etc., 'has the 
right to such use, either in the identical form or 
in any such near resemblance thereto as may be 
calculated to deceive.' Section 5 of this same act 
provides that 'Every such person (the owner) 
may proceed by suit to enjoin the manufacture, 
use, display or sale of any counterfeits or imita- 
tions thereof,' and the courts shall have the right 
to grant injunctions restraining such use, etc. 

"Defendant has undoubtedly used the trade- 
mark of plaintiffs without their consent, and 
under this act we do not think it makes any 

597 



THE COCA-COLA COMPANY, et al, 

difference whether the article contained in the 
bottle was genuine Coca-Cola or not. 

"But, irrespective of this state law, we shall 
discuss the case from the standpoint of the fed- 
eral law. 

"A trade-mark is designed, not only for the 
protection of the owner of same, but as well for 
the protection of the purchasing public; it is a 
guaranty that the buyer is getting the very ar- 
ticle signified by the trade-mark; it is a guaranty 
by the manufacturer himself that the receptacle 
contains the very contents intended to be cov- 
ered by that trade-mark. 

"We shall first take up for discussion the au- 
thorities cited by counsel for defendant, which 
authorities, it is contended, bear out the conten- 
tion that these contracts are in violation of the 
anti-trust laws, and the equitable writ of injunc- 
tion does not lie to maintain them. 

"The first case is that of Adam v. Burke, 17 
Wall. 453, 21 I,. Ivl. 700. All that was held in 
that case was that when a patented article was 
once sold the purchaser of same had the right to 
use it wherever he pleased, and that the right 
of use stood on a different footing from the right 
to make and sell. 

' ' The next case is that of Keeler v. Folding Bed 
Co., 157 U. S. 639, 15 Sup. Ct. 738, 39 L. Ed. 848, 
in which the court said: 'One who buys patented 
articles of manufacture from one authorized to 
sell them within the territory of the purchase be- 
comes possessed of an absolute property in such 
articles, unrestricted in time or place, and may 
sell them in other territory of other assignees of 
the patent, although he purchased them for the 
purpose of selling them in such other territory.' 
We do not think this case has any bearing; if 
the defendant had been selling the syrup in the 

508 



v. VIVIAN ICE, LIGHT AND WATER COMPANY 

original package under the original trade-mark, 
having purchased same and becoming the abso- 
lute owner thereof, then there would be some 
similarity of cases, and the defendant would have 
the right to so sell. 

"The next case is that of Bobbs-Merrill Co. v. 
Strauss, 210 U. S. 339, 28 Sup. Ct. 722, 52 L. Ed. 
1086. In that case the plaintiff was attempting 
to fix the price of the copyrighted book by con- 
tract with the retailer, and the court held the 
same to be in restraint of trade; there was no 
question involved in that case of trade-mark, or 
the protection of the integrity of the goods rep- 
resented by that trade-mark, but merely a price- 
fixing scheme, something that is not attempted in 
this case. 

"The case of Miles Medicine Co. v. Park, 220 
U. S. 373, 31 Sup. Ct. 376, 55 L. Ed. 502, was also 
nothing but a price-fixing scheme, which was held 
to be in restraint of trade. 

"In the case of Park v. Hartman, 153 Fed. 24, 
82 C. C. A. 158, 12 L. R. A. (N. S.) 135, known 
as the Peruna Case, the question of infringement 
of a trade-mark of unfair competition did not 
arise; it was merely another attempt to fix prices 
for retailers by means of contracts with the re- 
tailers. 

"In the Apollinaris Case (C. C.), 27 Fed. 18, 
it was the genuine 'Hunyadi-Janos' water as put 
out by the original bottler and owner of the 
trade-mark, and as bottled by the owner of the 
trade-mark. 

"The case of Motion Pictures Patent Co. v. 
Universal Film Co. (decided by the Supreme 
Court of the United States on April 9, 1917), 243 
U. S. 502, 37 Sup. Ct. 416, 61 L. Ed. 871, L. R. A. 
1917E, 1187, Ann. Gas. 1918A, 959, the attempt 
was made by way of a licensed patented 

599 



THE COCA-COLA COMPANY, et al, 

machine, and notices stamped thereon, to limit the 
use of such machine to a certain class of pic 
tures, and no other. The Court held such con- 
tracts to be in restraint of trade. AVhile that 
case shows the trend of the court, the case did 
not involve the vital principle involved in the 
present case. 

"Practically the same principle in the last- 
quoted case was also involved in the case of 
Straus v. Victor Talking Machine Co., 243 U. S. 
490, 37 Sup. Ct. 412, 61 L. Ed. 866, L. K, A. 1917E, 
1196, Ann. Cas. 1918A, 955, also decided on April 
9, 1917. 

"Counsel for defendant also quotes the case 
of Coca-Cola Co. v. Bennett (D. C.), 225 Fed. 429, 
refusing an injunction on the ground that these 
contracts were in restraint hi' trade; counsel say- 
ing in the brief filed herein: 'This contention as 
to the right to confine the sale to licensees for 
purposes of inspection, etc., was exploded by the 
federal court in the Bennett Case refusing in- 
junction, which virtually denied the proposition 
dismissing the Coca-Cola Company claim, in 
which decree the Coca-Cola Company virtually 
agreed and took no appeal therefrom.' We shall 
discuss this case later on, but counsel is mistaken 
about the appeal, for an appeal was taken to the 
United States Court of Appeals, and the case 
reversed; the case on appeal being in 238 Fed. 
513, 151 C. C. A. 449. 

"In the case of Krauss v. Peebles (D. C.), 58 
Fed. 591, Judge TAFT used the following signifi- 
cant and almost prophetic language: 'It is doubt- 
ful whether the sale of merchandise in bulk un- 
der a trade-mark of the maker carries with it as 
incident thereto the right in the vendee to use the 
same trade-mark as a trade-mark on smaller and 
retail packages. It is true that the vendee can- 

600 



v. VIVIAN ICE, LIGHT AND WATER COMPANY 

not be prevented from stating the truth in ref- 
erence to his wares, and that he may place upon 
his packages the statement that their contents 
were made by the real maker, and that they were 
sold by him under his trade-mark, but it seems 
to me that it is a different thing for the vendee 
to use the trade-mark as such. Such use might 
be characterized as the use of the maker's sign 
manual to guarantee that the contents of the 
smaller packages are his manufacture, whereas 
the truth of the assertion depends wholly on the 
good faith of the vendee.' In this case the goods 
put out in the smaller packages were not ex- 
actly the same as the original goods, and not ex- 
actly the same as the smaller packages put out 
by the owner of the trade-mark, and it was held 
that the owner of the trade-mark had the right 
to protect the integrity of his goods, and that it 
made no difference whether the other goods were 
better or worse than those put out by the owner 
of the trade-mark, that it was a violation of the 
trade-mark, and could be enjoined. See, also, 
the case of Hires v. Xepapas (C. C.), 180 Fed. 
952, which was also a case of two syrups, one in- 
tended for bottling and one for fountain use, and 
the infringer attempted to use the fountain syrup 
for bottling, and it was held that the owner of the 
trade-mark had the right to protect the integrity 
of his goods. 

"In the case of Coca-Cola Co. v. Butler (D. C.), 
229 Fed. 224, exactly the same defense was made 
as in this case, and it was held that the owner of 
the trade-mark had the right to maintain the in- 
tegrity of his product by controlling the use of 
his basic ingredient, to the extent of granting ex- 
clusive licenses and maintaining a system of 
inspection of the final product as sold to the con- 
sumer, and that such contracts were not in 

001 



THE COCA-COLA COMPANY, et al, 

violation of the Sherman Law or the Clayton Law. 
(26 Stat. 200; 38 Stat. 730.) This decision was 
handed down by a LTnited States District Judge, 
and so far as we can find, was never appealed, but 
it was quoted with approval by the United States 
Court of Appeals in the Bennett Case. 

"In the Bennett Case, as it was decided by the 
lower court, it was the genuine bottler's syrup 
used, and this syrup was sold to Bennett for the 
very purpose for which he was using it. His 
right to bottle being revoked as regular licensed 
bottler (the company) took up the territory. Fur- 
ther, as the lower court stated, there was no ques- 
tion presented of the right of .plaintiff to protect 
its business against unfair competition in the 
palming off by defendants of a spurious or in- 
ferior article for the goods ^manufactured from 
plaintiff's product, and there was, furthermore, no 
contention in that case as to the proper syrup for 
bottling purposes. 

"In the same case on appeal (238 Fed. 513, 151 
C. C. A. 449) the syllabus is as follows: ' "A 
manufacturer of a syrup used with carbonated 
water to produce a beverage which was sold either 
at soda fountains or in bottles, whose registered 
trade-mark covered both the syrup and the bev- 
erages, but who bottled none of the beverage, 
having contracted with others therefor under 
contracts requiring the purchase of syrup from 
the manufacturer and its preparation under reg- 
ulations to protect the quality, can prevent one 
who has not the manufacturer's consent from bot- 
tling the syrup with carbonated water, even in 
accordance with the regulations, and selling it 
under the trade-mark, since otherwise the manu- 
facturer would have no means of protecting the 
quality of the goods sold under his trade-mark. 

" 'When a manufacturer of an article of food 
or drink sells it in bulk, and also puts it up in 

002 



v. VIVIAN ICE, LIGHT AND WATER COMPANY 

bottles bearing a distinctive trade-mark, the pur- 
chaser of the article in bulk cannot legally bottle 
it and affix the manufacturer's label to the bottle. 

" 'The invalidity, under Sherman Anti-Trust 
Act, July 2, 1890, c. 647, 26 Stat. 219 (Comp. St. 
1913, Sees. 8820-8830), of contracts by which the 
owner of a trade-mark covering both a syrup and 
the beverage made therefrom granted the exclu- 
sive right to bottle the beverage, does not affect 
the owner's right to prevent the sale of the bev- 
erage under the trade-mark by one who bottled it 
without consent.' " 

"If the owner of a trade-mark covering both 
the syrup and the beverages made from the syrup 
can prevent the purchaser of the syrup in bulk 
from making a beverage out of the syrup and 
putting it on the market under the distinctive 
trade-mark of the seller, then we can see no good 
reason why any distinctive system of inspection 
between the owner of the trade-mark and the 
bottler of the syrup as a beverage, the same to 
be placed on the market under the distinctive 
trade-mark, would be invalid as in violation of 
the anti-trust laws, and likewise any reasonable 
contract to that effect, and other reasonable stipu- 
lations to protect the integrity of that trade- 
mark. 

"A trade-mark gives the owner of same some- 
thing in the nature of a monopoly; a, monopoly 
not in the article sold under the trade-mark, per- 
haps, but a monopoly of that article as sold under 
the trade-mark. It does not give such a monopoly 
as does a patent, but it is a monopoly neverthe- 
less, and one that cannot be taken away by any 
anti-trust law." 

See, also, American Tobacco Co. v. Polacsek (C. C.), 
170 Fed. 117; Bulte v. Igleheart, 137 Fed. 492, 70 C. 
C. A. 76; Menendez v. Holt, 128 U. S. 514,. 9 Sup. Ct. 

603 



THE COCA-COLA COMPANY, et al, 

143, 32 L. Ed. 526; Great Atlantic and Pacific Tea Co. 
v. Cream of Wheat Co. (D. C.), 224 Fed. 566. 

The lower court also found that, while defendant 
was putting out as good a quality of goods as its 
knowledge of the matter would permit, the difference 
between its product and that produced by the duly 
authorized representatives of The Coca-Cola Company 
was marked, and we think this finding is amply sup- 
ported by the record. However, under the manner 
and form in which the beverage was put to the trade, 
the difference from the standpoint of appearance 
could not be easily detected by the consumer, and the 
case falls clearly within the doctrine announced in 
Cusimano & Co. v. Olive Oil Importing Co., Ltd., 114 
La. 312, 38 South. 200. 

Defendant complains that the court below allowed 
the plaintiffs to recover the sum of $1,000 damages, 
and also ordered defendant to account for the profits 
which had been realized on the sales of the beverage; 
it being contended that there was no prayer to sup- 
port such a recovery, in the first place, nor any pro- 
vision of law under which it could be allowed, if 
claimed. However, paragraph C of the prayer is as 
follows : 

''That the damages sustained by your peti- 
tioners, and each of them, by reason of the de- 
fendant's aforesaid unlawful acts, be ascertained, 
and that your petitioners, and each of them, have 
judgment therefor against the defendant, and 
that the said defendant be decreed to pay over 
to your petitioners, and each of them, the amount 
of said profits, together with all damages sus- 
tained." 
The statute provides that: 

"All courts of competent jurisdiction shall 
grant injunction : '* and may award the com- 
plainant in any such suit damages resulting from 
such manufacture, use, sale or display as may 

004 



v. VIVIAN ICE, LIGHT AND WATER COMPANY 

be by the said court deemed just and reasonable, 
and shall require the defendants to pay to such 
person ;> * all profits derived," etc. Act. No. 49 
of 1898, Sec. 5. 

As stated in the case of Cusimano & Co. v. Olive Oil 
Importing Co., Ltd., supra, the exact extent of the 
damages in such cases is hard to ascertain, and it was 
the evident purpose of the Legislature to allow a rea- 
sonable amount of discretion to the court in deter- 
mining the amount to be awarded. In view of the 
facts and circumstances of the present case, we do 
not think that authority has been abused. 

For the reasons assigned, the judgment appealed 
from is affirmed, at the cost of the appellant. 

O'NIELL, J., dissents from the decree allowing dam- 
ages, and otherwise concurs. 

On Rehearing. 

LAND, J. : 

A rehearing was granted in this case on the ques- 
tion of damages only. 

The defendant contends that the decree of $.1,000 
damages is a mere fiat of the trial judge, based upon 
no evidence whatever and ultra petitionem, and that 
the correct judgment in this case should have been 
in favor of plaintiffs and ordering defendant to ac- 
count to the plaintiffs, so that the question of dam- 
ages, if any, could be determined. 

Plaintiffs allege, in article xxxii of their petition, 
that- 

"Your petitioners show that, by reason of the 
fraudulent, willful, and unlawful acts of the de- 
fendants as aforesaid, your petitioners have been 
and are prejudiced and injured in their business, 
and will be seriously and irreparably injured, un- 
less defendant is restrained and enjoined from 

G05 



THE COCA-COLA COMPANY, et al, 

the aforesaid unlawful acts; and the reputation 
of your petitioners' product has been and is en- 
dangered, and its sale of Coca-Cola, by reason 
of defendant's acts, has been and will be seriously 
reduced; that it has already sustained loss and 
damage, the amount whereof cannot be stated 
with accuracy, by reason, among other things, 
of ignorance as to the quantity of defendant's 
product that has been sold by defendant, as 
above complained of, and in other unfair ways, 
the number of crowns or stoppers and other ar- 
ticles sold bearing the name 'Coca-Cola' or other 
imitations of your first-named petitioner's trade- 
mark which have been used; that the damage 
done your petitioners will exceed in each instance 
the sum of $2,000." 
In the prayer of their petition ^plaintiffs pray: 

"That the defendant be cited and that there be 
judgment in favor of petitioners and against de- 
fendant, ordering said defendant to account and 
pay over to your petitioners all profits diverted 
from your petitioners or received by the said de- 
fendant issuing out of the use of said defendant 
of your petitioners' trade-mark or trade-name 
'Coca-Cola,' or by the sale of its products in the 
form sufficiently similar to the form of your peti- 
tioners' product to cause deceit; that the damage 
sustained by your petitioners, and each of them, 
by reason of the defendant's aforesaid unlawful 
acts, be ascertained, and that your petitioners, 
and each of them, have judgment therefor 
against the defendant, and the said defendant be 
ordered to pay over to your petitioners, and each 
of them, the amount of said profits, together 
with all damages sustained." - 

It will be seen from the above allegations in the 
petition and in its prayer that plaintiffs pray for dam- 
ages (1) for injury to the reputation of their products 

GOG 



v. VIVIAN ICE, LIGHT AND WATER COMPANY 



and in their business; (2) for the loss of profits which 
the defendant has diverted to itself, and the extent 
of which might possibly be determined by an account- 
ing; but the extent of the damage resulting from in- 
jury to the reputation of their products and conse- 
quent injury to their business, not being susceptible 
of exact proof, is left to the discretion of the judge. 
However, we consider the sum of $1,000 allowed in 
our former decree as excessive, and said decree is 
therefore amended so as to reduce the damages therein 
allowed from $1,000 to $100, and, as amended, is rein- 
stated and made the final judgment of the court. 

PROVOSTY, C. J., and O'NIELL, J., dissent on the 
ground that there were no damages. 



607 



THE COCA-COLA COMPANY 




MAY TERM, 1920 



No. 3888 

THE COCA-COLA COMPANY 

v. 
M. L. VALVERDK, et uL 

\ 

Tl>e above styled cause having been set down on 
the Issue Docket for final hearing on bill of com- 
plaint, process, decree pro confesso against M. L. Val- 
verde, Jr., and the Valverde Bottling Works, and the 
Court having heard and considered the same and 
finding that the defendant M. L. Valverde, Jr., doing- 
business under the firm name of Valverde Bottling 
Works, a resident citizen of Jackson County, Mis- 
sissippi, has infringed upon the patent rights of the 
complainant, The Coca-Cola Company, a corporation, 
in that said defendant has, without authority or con- 
sent of the complainant, used the patent Hobble Skirt 
Bottle, bearing the registered trade-mark "Coca- 
Cola," and has otherwise used bottles, devices, recep- 
tacles and containers. belonging to complainant, with- 
out authority or consent of complainant,- and further 
that said defendant has persisted in the use thereof 
after notice from complainant, and the Court being 
further of the opinion that complainant is entitled to 
an injunction against said defendants, restraining and 
enjoining them from the use of said receptacles. 

608 



v. M. L. VALVERDE, et al. 



It is ordered, adjudged and decreed that the defend- 
ant, M. L. Valverde, Jr., and the Valverde Bottling 
Works, be and they are hereby perpetually enjoined 
and restrained from using for any purpose the reg- 
istered trade-mark "Coca-Cola" belonging to com- 
plainant, or from using the patented Hobble Skirt 
Bottle belonging to said complainant. 

It is further ordered that said defendants pay all 
costs accrued herein. 

Ordered, adjudged and decreed this the 19th day of 
May, A. D. 1920. 

CHAELES SCQTT BROWN, 

Special Chancellor. 
THE STATE OF MISSISSIPPI, 
JACKSON COUNTY. 

I, FEED TAYLOE, Clerk of the Chancery Court in and 
for said County and State, do hereby certify that the 
foregoing instrument of writing contains a full, true 
and complete transcript of and from the original of 
same as appears of record in Minute Book No. 9, 
Pages 199-200, of the Minutes of the Chancery Court 
of Jackson County, Mississippi. 

Given under my hand and seal of office this the 20th 
day of May, A. D. 1920. 

(Sd) FEED TAYLOR, 

Clerk. 

Candler, Thomson & Hirsch, Atlanta, Ga. ; White fi 
Ford, Pascagoula, Miss., for Coca-Cola Company. 



609 



THE COCA-COLA COMPANY 



IN BULLOCH SUPERIOR COURT 



PETITION FOR INJUNCTION 



OCTOBER TERM, 1916 



THE COCA-COLA COMPANY, Plaintiff, 

v. 

A. B. GREEN, doin- business as STATESBORO 
BOTTLIX(} CO., Defendant. 



DECREE. I 

The above stated case came on for final hearing on 
the bill of complaint filed upon the 5th day of No- 
vember, 1915, with affidavit and exhibits connected 
therewith; to this complaint the defendant has filed 
no answer. 

The jury at the present term has returned the fol- 
lowing verdict: "We the Jury find for the plaintiff, 
and we further find that injunction do issue." This 
25th day of October, 1916, D. L. Lanier, Foreman." 

Upon consideration of the case made the Court be- 
ing fully informed in the premises, finds that the 
equity in the case is with the complainant as against 
the said A. B. Green, doing business as the States- 
boro Bottling Company, defendant, and that the said 
complainant is entitled to the relief for which it 
prays as against the said defendant. 

It is further ordered, adjudged and decreed by the 
Court that the injunction heretofore granted in this 
case, to wit: on the 6th day of December, 1915, as 
against the said A. B. Green, doing business as the 
Statesboro Bottling Company, be made permanent. 

010 



v. A. B. GEEEN, Etc. 



Let the said A. B. Green, doing* business as The 
Statesboro Bottling Company, pay all costs herein. 
This 25th day of October, 1916. 

R. N. HARDEMAN, 
Judge Superior Court Middle Circuit. 

GEORGIA,. BULLOCH COUNTY. 

I, DAN N. RIGGS, Clerk of the Superior Court of 
Bulloch County, do hereby certify that the forego- 
ing typewritten pages contain a true and correct copy 
of suit above mentioned, as the same appears of file 
in this office. 

Witness my hand and seal of said court this August 
22nd, 1922. 

(Sd) DAN N. RIGGS, 
Clerk Superior Court, Bulloch County, Ga. 

Candler, Thomson & Hirsch, Atlanta, Georgia; 
Johnston & Cone, Statesboro, Georgia, for plaintiff. 



On November 5, 1915, The Coca-Cola Company filed 
a bill in equity against the above defendant, alleging 
that the defendant, who did not deal in the plaintiff's 
product, but dealt in other soda waters and bever- 
ages, and who did not have authority to use the trade- 
mark or trade name Coca-Cola, had been procuring 
from manufacturers or dealers, or from other sources 
unknown to the plaintiff, bottles with the trade-mark 
or trade name Coca-Cola thereon, and filling said 
bottles with soft drink goods not Coca-Cola, and sell- 
ing same to retail dealers, thus carrying the trade- 
mark Coca-Cola, the property of plaintiff, annexed to 
said product, which, in fact, was not Coca-Cola. On 
December 6, 1915, a temporary restraining order was 
granted against defendant, its agents, servants, em- 
ployes and attorneys, from selling or offering for sale, 
in bottles having the name Coca-Cola thereon, any 

611 



THE COCA-COLA COMPANY 



soft drink or other product, and from using said 
trade-mark on any container, or in any way or man- 
ner, in the course of business, and on October 25, 
1916, the temporary restraining order above referred 
to was made permanent. 



i 



612 



IN THE SUPERIOR COURT OF FULTON 
COUNTY, GEORGIA 



THE COCA-COLA COMPANY, Plaintiff, 

v. 
W. F. HAMMACK, Defendant. 



The petition filed herein having been considered, 
by consent of counsel, it is ordered, decreed and ad- 
judged: 

That the defendant, his associates, servants, clerks, 
agents, workmen, employes and attorneys, and each 
and every person claiming under, by or through said 
defendant, or in any way connected with him, be per- 
petually enjoined and restrained from: 

1. In any way or manner selling a product as and 
for Coca-Cola, or from in any way or manner passing 
off any product as and for Coca-Cola that is not the 
product of The Coca-Cola Co. 

2. Prom marketing a product with the same iden- 
tical or similar color to the product long made and 
manufactured by The Coca-Cola Co., except that the 
defendant herein shall have the right to sell a product 
of a similar or identical color to petitioner's product 
when any other product is called for specifically; but 
this does not give the defendant the right to sell a 
product of a similar or identical color to the product 
of petitioner when a product is called for under nick- 
names, or names that are a colorable imitation of the 
the name Coca-Cola. 

613 



THE COCA-COLA COMPANY 



3. From selling a product that is not Coca-Cola 
when Coca-Cola is called for, and from using the name 
Coca-Cola as applied to any product except the prod- 
uct of The Coca-Cola Co. 

4. The question of damages having been settled 
out of court, the Court makes no award thereon. 

It is further ordered that the defendant pay the 
costs of this proceeding. 

This 4th day of November, 1914. 

J. T. PENDLETOX, 
Judge, Superior Court, Atlanta, Ga. 

We consent to the above: 

Candler, Thomson <('' Ilirxch, Attorneys for Plain- 
tiff. 



Madison Bell, Attorney for Defendant. 



STATE OF GEORGIA, 
COUNTY OF FULTON. 

THE COCA-COLA COMPANY ] 

v. > Complaint. 

W. F. HAMMACK. ) 

To the Sheriff or His Deputy, of said County, Greet- 
ing: 

The defendant is hereby required, personally or by 
attorney to be and appear at the Superior Court, to 
be held in and for said County, on the first Monday 
in January, 1915, then and there to answer the plain- 
tiff's complaint, as in default thereof said Court will 
proceed, as to justice shall appertain. 

Witness, the HONORABLE J. T. PENDLETON, Judge 
of said Court, this 15th day of October, 1914. 

W. W. CLARKE, Deputy Clerk. 



014 



IN THE SUPERIOR COURT OF CHATHAM 

COUNTY 



THE COCA-COLA COMPANY 

v. 
P. M. KING. 



FINAL DECREE. 

The above stated case having come on to be heard, 
and the Defendant consenting, it is ordered, consid- 
ered and adjudged, there being no dispute as to the 
facts alleged in the bill, that the defendant, P. M. 
King, his associates, salesmen, servants, clerks, 
agents, workmen, employees, attorneys and each and 
every person claiming under, by or through said de- 
fendant or in any manner connected with him be and 
they are hereby permanently restrained and enjoined 
from in any manner or way selling a product as and for 
Coca-Cola or from in any manner passing off a prod- 
uct as and for Coca-Cola that is not the product of 
petitioner when Coca-Cola is called for; from making 
a product of the same identical color so long used by 
petitioner in making its product, and from selling any 
product which is not Coca-Cola when Coca-Cola is 
called for, and from using said name Coca-Cola as 
applied to any product except the product of peti- 
tioner. Judgment is rendered against the defend- 
ant for costs of court. 

In Open Court March 17th, 1913. 

WALTER G. CHARLTON, 

Judge E. J. C. of Ga. 

Candler, Thomson & Hirsch, Atlanta, Ga., for 
Plaintiff. 

015 



IN THE SUPERIOR COURT OF FULTON 

COUNTY 



IN EQUITY 

THE COCA-COLA COMPANY, Plaintiff, 

v. 
C. C. ALFORD, Defendant. 



By and With the Consent of the parties hereto, It Is 
Ordered, Decreed and Adjudged: 

That the defendant herein, C. C. Alford, his serv- 
ants, agents, clerks, and attorneys, be and they are 
hereby enjoined from selling any other product as the 
product of The Coca-Cola Company, on calls for Coca- 
Cola, or by the use of any name, nickname, or color- 
able imitation thereof. 

They are further enjoined from doing any act or 
acts by which any product other than petitioner's is 
sold when customers desire the product of The Coca- 
Cola Company, and they are further enjoined from 
selling any soft drink or beverage, similar in color 
to the soft drink or beverage of The Coca-Cola Com- 
pany, whereby deception and fraud is created. 

It is further ordered that the defendant pay the 
costs herein. 

At Atlanta, Georgia, May 3, 1916. 

JOHN T. PENDLETON, 
Judge, Fulton Superior Court. 

We consent to the above : 

Candler, Thomson & Hirsch, Attorneys for Plain- 
tiff. 

C. C. Alford, Defendant. 

616 




PETITION FOR INJUNCTION, ETC. 



IN EQUITY 



THE COCA-COLA COMPANY, Plaintiff, 

v. 

N. T. PIKE, doing business as RED CROSS DRUG 
COMPANY, Defendant. 



In above matter, a temporary restraining order 
having been granted on May 28th, and an order- 
passed requiring that cause should be shown on June 
27th, 1914, at nine o'clock a. m. at Valdosta, in the 
State of Georgia, why permanent injunction should 
not be granted as prayed: 

And process having been issued and defendant 
served, and this cause coming on regularly to be 
heard on this date; and defendant having consented 
that permanent injunction do issue as prayed in con- 
sideration of plaintiff waiving its claim for damages, 
other than the costs of this case; 

It is therefore ordered, considered, adjudged and 
decreed that defendant, his associates, salesmen, serv- 
ants, clerks, agents, workmen, employees, attorneys, 
and each and every person, claiming under, by or 
through said defendant, or in any way connected with 
him, be perpetually enjoined and restrained from: 

1. In any way or manner selling a product as and 
for Coca-Cola, or from in any way or manner passing 

617 



THE COCA-COLA COMPANY 



off any product as and for Coca-Cola that is not 
the product of your petitioner when Coca-Cola is 
asked for. 

2. From marketing a product with the same identi- 
fied or similar color so long used by your petitioner 
in marketing its product. 

3. From selling any product which is not Coca-Cola, 
when Coca-Cola is called for, and from using said 
name Coca-Cola as applied to any product, except the 
product of your petitioner. 

W. E. THOMAS, Judge. 

I consent to the passing of the foregoing order: 
N. T. PIKE. 

Candler, Thomson & Hirsch, Atlanta, Georgia ; 
Joseph Hansdl Men-Ill, Thomasville, Ga., for Plain- 
tiff. 



618 



FULTON SUPERIOR 
COURT 



THE COCA-COLA COMPANY, Complainant, 

v. 
JAMES BROWN, Defendant. 



In the above stated case the parties hereto consent- 
ing it is 

Ordered, Adjudged, Considered and Decreed: 
That the defendant, and all of his associates, serv- 
ants, clerks, agents, workmen, employes, and attor- 
neys, and each and every person claiming under or 
through the defendant, or in any way connected with 
him, be perpetually enjoined and restrained: 

1. From in any way or manner selling a product 
as and for Coca-Cola, or from in any way or man- 
ner passing off any product as and for Coca-Cola that 
is not the product of your petitioner when Coca-Cola 
is called for. 

2. From marketing a product with the same identi- 
cal color so long used by your petitioner in market- 
ing its product. 

3. From selling any product which is not Coca- 
Cola when Coca-Cola is called for, and from using 
said name Coca-Cola as applied to any product ex- 
cept the product of your petitioner. 

4. From serving any product that is not Coca-Cola 
when said product is called for, under any of the nick- 
names recognized as nicknames for Coca-Cola. 

5. From selling any product other than Coca-Cola 
when Coca-Cola is called for, under any nickname or ' 
colorable imitation thereof. 

619 



THE COCA-COLA COMPANY 



It is Furtlicr Ordered, Adjudged and Decreed that 
the defendants pay the costs of this proceeding. 
This 20th day of October, 1914. 

(Sd.) GEORGE L. BELL, 

Judge, Superior Court, A. C. 

Candler, Thowxoti & Hirsch, Atlanta, Ga., for 
Complainant. 



620 



CRISP SUPERIOR COURT 



FILED TO NOV. TERM. 1914 



DECREE FEB. TERM, 1915 



THE COCA-COLA COMPANY 

v. 

DOOLY SODA WATER COMPANY, 
J. J. JENKINS & W. B. BURKS. 



It appearing* to the court that the above-stated 
cause stands in default and that this is the trial 
term of said cause, and that there is involved in 
said cause no question of fact, it is, therefore, con- 
sidered, ordered and decreed by the Court that the 
restraining order^ heertofore granted be continued 
and that the defendants and each of them be perma- 
nently and forever enjoined from doing any of the 
acts complained of in the petition; from selling or 
offering for sale in bottles having blown or moulded 
thereon the trade-mark name Coca-Cola, any soft 
drink or other product and from using said trade- 
mark on any container or in any way, or in any 
manner, in the course of business. 

Let this decree be entered on the minutes of the 
Court and let the defendants pay the costs of Court. 

Signed in open Court this March 3rd, 1915. 

W. F. GEORGE, J. S. C. C. C. 
GEORGIA CRISP COUNTY: 

I, Juanita Reid, Deputy Clerk Superior Court, 
Crisp County, Georgia, do hereby certify that the 

621 



THE COCA-COLA COMPANY 



foregoing page of typewritten matter is a full, true 
and complete copy of the final decree in the case 
of The Coca-Cola Co. v. Dooly Soda Water Co., J. J. 
Jenkins & W. B. Burks, as the same appears of rec- 
ord and file in this office, being recorded on page 
65 of Minute Book No. 4 of the records of Crisp 
County, Georgia. 

Witness my signature and official seal of said 
Court, this 26th day of September, 1922. 

JUANITA REID, 

Deputy Clerk Superior Court, 
Crisp County, Georgia. 

C (wetter, Thomson & Ilirxch, Atlanta, Ga. ; Mather 
M. Eakes, Cordele, Ga., for Plaintiff. 

I 



022 



22ND JUDICIAL DISTRICT COURT, PARISH 

OF EAST BATON ROUGE, 

STATE OF LOUISIANA 



No. 3703 



THE COCA-COLA COMPANY, et al., 

v. 
JOHN P. KEAYS, et al. 



JUDGMENT. 

This cause came on this day for trial, according 
to agreement of counsel. Present : Benjamin B. Tay- 
lor, of the firm of Taylor & Porter, attorneys for 
plaintiffs, and Lindsay D. Beale, of the firm of Lay- 
cock & Beale, attorneys for the defendants. When, 
after hearing the pleadings, the evidence, and the 
argument of counsel, the Court considering the law 
and the evidence to be in favor of the plaintiffs, and 
against the defendants, for the reasons orally as- 
signed: 

It is Ordered, Adjudged and Decreed that there be 
judgment in favor of the plaintiffs, and against the 
defendants, John P. Keays and his wife, Mistress 
Eva Jadot Keays, perpetuating the writ of injunction 
herein issued, and forever enjoining and restraining 
the defendants, John P. Keays, and his wife, Mistress 
Eva Jadot Keays, and their associates, salesmen, clerks, 
servants, agents, workmen, employes, representatives, 
and all others claiming or holding under or through 
them from in any way or manner making or selling 
plaintiffs' product in such a way as to pass off the 
same as and for the product of the said plaintiffs, and 

623 



THE COCA-COLA COMPANY, et al. 

from using in any form whatsoever the name "Coca- 
Cola" as applied to any drink, or from using any 
name sufficiently similar to the name "Coca-Cola" as 
applied to any drink to cause deceit; and from any 
other act in any manner or form calculated to de- 
ceive ; and from in any way or manner using the name 
"Coca-Cola" upon any label or other printed or litho- 
graphed or written matter. 

It is further Ordered, Adjudged nud Decreed, that 
the defendants pay all costs of these proceedings. 

Judgment rendered in open court this 28th day of 
January, 1915. 

Judgment read and signed in open court this 1st 
day of February, 1915. 

(Signed) H. F. BRUNOT, 
Judge 22nd Judicial District. 

A true copy. 

Baton Rouge, La., February 5th, 1915. 

H. L. SHEPPERS, Dy. Clerk. 

Candler, Thomson & Hirsch, Atlanta, Ga.; John 
May, New Orleans, Louisiana; Taylor & Porter, Baton 
Rouge, Louisiana, for Plaintiff. 



624 



IN THE SUPERIOR COURT OF FULTON 
COUNTY, GEORGIA 



No. 25,618 JULY TERM, 1912 



IN EQUITY 

THE COCA-COLA COMPANY 

v. 
AXSON C. MINHINNETT. 



This cause coming on to be heard by the Court 
without a, jury, it is, by consent of counsel represent- 
ing the parties hereto, adjudged, ordered and decreed: 

(1) That The Coca-Cola Company, the petitioner 
herein, is the sole and exclusive owner of the trade- 
mark Coca-Cola, 

(2) It is further ordered, adjudged and decreed 
that the defendant, his associates, successors, assigns, 
officers, servants, clerks, agents and workmen and 
each of them, be and they hereby are perpetually 
enjoined from using the trade-mark Coca-Cola, or 
any colorable imitation thereof in connection with 
any soft drink or beverage not manufactured by the 
petitioner, and they and each of them are likewise 
perpetually enjoined from putting out or selling or 
offering for sale, directly or indirectly, any soft drink 
or beverage not manufactured by the petitioner 
under petitioner's trade-mark, and they and each 
of them are likewise enjoined from in any wise at- 
tempting to make use of the good will and reputa- 
tion of the petitioner in putting out any imitation 
and substitute of the petitioner's product as and for 
Coca-Cola. 

625 



THE COCA-COLA COMPANY 



(3) They are further enjoined from, by any means 
or device, substituting or imitating the product of 
the petitioner, by using and selling the same as and 
for Coca-Cola. 

(4) They are further enjoined from selling any 
product, as and for Coca-Cola when Coca-Cola is called 
for, other than the product of petitioner. 

(5) It is further ordered and decreed that the costs 
of this case be paid by the defendant. 

This July 29th, 1912. 

GEORGE L. BELL, 
Judge, Superior Court, 

Fulton County, Ga. 
We consent to the above: 

//. H. Turner, Atty. for Defendant. 

Candler, Thomson & Hirsch, Attys. for Plaintiff. 



020 




IN EQUITY 



PETITION FOR INJUNCTION, ETC. 
FEBRUARY TERM, 1913 



THE COCA-COLA COMPANY 
v. 

W. S. DUNCAN and T. A. PACETTY, doing busi- 
ness as THE PURITY BOTTLING COMPANY. 



FINAL DECREE. 

This case came on for final hearing on the bill of 
complaint and the case being in default and after 
hearing evidence, the jury rendered the following 
verdict : 

"We, the jury, find that the facts stated in the 
petition to be true and we find for the plaintiff. 
This Feb. 5, 1913. 

"J. Gr. PEACOCK, Foreman." 

Wherefore it is decreed by the court that the equity 
in the case is with the complainant. The Coca-Cola 
Company, and that it is entitled to the relief for 
which it prays against said defendants and the in- 
junction heretofore is hereby made perpetual which 
the Court granted in this case and the defendants are 
each and all hereby perpetually enjoined and re- 
strained together with their associates, salesman, 
servants, clerks, agents, workmen and employes and 

627 



THE COCA-COLA COMPANY 



every person claiming or holding under or through 
the said defendants, or in any way connected with 
their business from in any way or manner making 
or selling their product in such a way as to pass off:' 
the same as or for the product of petitioner, and 
from using in any form whatsoever the name Coca- 
Cola, or from using any name sufficiently similar to 
the name Coca-Cola as applied to any drink as to 
cause deceit and from any other act in any manner 
or form calculated to deceive relative thereto. 

It is further tlrcrct-d that The Coca-Cola Company 
has the sole and exclusive right to the use of the 
mark or name Coca-Cola in connection with the 
drink or beverage and it is further decreed and ad- 
judged that petitioner has the sole and exclusive 
right to the peculiar and individual design or form 
of writing the name Coca-Cola described in the peti- 
tion. 

Petitioner waives the right to the relief prayed for 
in prayers (b) and (c) as to an accounting. 

It is further decreed and adjudged that defendants 
pay the sum of $. . . . costs. In Open Court, this 
February 5, 1913. 

(Signed) S. P. GILBERT, 
Judge S. C. C. C. 

T. L. Bowden, A. W. Cozart, Candler, Thomson & 
Hirsch, Attys. for Petitioner. 



628 



N HE SUPERIOR COUR r 



OF BIBB COUNTY, 



GEORGIA 




APRIL 15, 1918 



THE COCA-COLA COMPANY 

v. 
D. J. O'CONNELL. 



CANDLER, THOMSON & HIRSCH, Atlanta, Georgia, 
HALL & GRICE, Macon, Georgia, 
For Complainant. 



629 



THE COCA-COLA COMPANY 



IN THE SUPERIOR COURT OF BIBB 
COUNTY, GEORGIA 



THE COCA-COLA COM- 
PANY, 



Complainant, 



v. 



D. J. O'CONNELL, 

Defendant. 



PETITION FOE 
INJUNCTION, ETC. 



The jury on the trial of this cause having returned 
a verdict in favor of the complainant and against the 
defendant, and further finding that the injunction 
prayed for should issue; 

It is by the Court considered, Ordered and decreed 
that the defendant, his successors, assigns and agents, 
and any person claiming under or through him, be 
perpetually enjoined: 

(a) From trading under the name of CARO-COLA 
BOTTLING COMPANY. 

(b) Prom any form or manner using the name 
CARO-COLA, or any name which is a colorable imi- 
tation of the registered trade-mark of petitioner, as 
described in the pleadings. 

(c) From using or causing to be used any bottle 
or bottles with the trade-mark name of complainant 
thereon. 

(d) From bottling any drink that is similar in ap- 
pearance to the drink of complainant without using 
sufficient distinguishing features thereon, so as to put 
the public on notice that the drink bottled by defend- 
ant is not the drink of complainant. 

(e) From using any bottle that is covered by the 
design patent of complainant, and from using any 
bottle that is a colorable imitation, or any infringe- 
ment thereof. 

630 



v. D. J. O'CONNELL 



(f) From buying 1 , handling, dealing in, or having 
in possession any bottle with the name Coca-Cola 
thereon. 

So ordered and decreed, in Open Court, this April 
15th, 1918. 

H. A. MATHEWS, 
Judge Superior Court, Bibb County. 



631 



THE COCA-COLA COMPANY 



IN THE SUPERIOR COURT OF WARE 
COUNTY, GEORGIA 



MAY TERM, 1913 



THE COCA-COLA COMPANY 

v. 

D. L. KEEN, Doing Business as 
THE GEORGIA BOTTLING WORKS. 



Now at this time, come the parties by their respec- 
tive attorneys, and by agreement of parties, it is 

Considered, ordered and adjudged by the Court that 
the said defendant, and all of his associates, servants, 
clerks, agents, workmen and employes and every per- 
son claiming or holding under or through the said 
defendant, or in any way connected with his business 
as stated in the petition, in the above entitled cause, 
4fc enjoined and restrained, during the pendency of 
this suit and until the further order of the Court, un- 
der penalty of attachment as for contempt of Court, 
as follows: 

^^- (1) From using the name "Caro-Cola," whether 
the same be written in the same form of script so 
long used by plaintiff in writing the name Coca-Cola, 
or not; and from using said script in which the name 
Coca-Cola has been so long written by plaintiff; and 
from using any other imitation of said script; and 
from using any colorable imitation of the name Coca- 
Cola as applied to any drink. It is understood, how- 
ever, and agreed that the defendant may use the 
name " Keen's Kola" written in a different form of 
script from that so long used by the plaintiff in writ- 
ing the name Coca-Cola. 

632 



v. D. L. KEEN, Etc. 



(2) From using any bottles with the trade-mark 
Coca-Cola, or any colorable imitation thereof, blown 
therein; or from using any crown with the trade- 
mark Coca-Cola blown therein; or any colorable imi- 
tation thereof. 

Let this order be entered upon the minutes of the 
Court. 

Granted. 

(Signed) T. A. PARKER, 

Judge Superior Courts, 
Waycross Judicial Circuit. 

We consent to the above : 

Candler, Thomson & Hirsch and 
Wilson, Bennett & Lambdin, 
Attorneys for Plaintiff. 

A. B. S pence, 

Attorney for Defendant. 



633 




Arizona 

Arkansas 

California 

Colorado 

Connecticut 

Delaware 

Florida 

Georgia 

Idaho 

Indiana 

Iowa 

Kansas 

Kentucky 

Louisiana 

Maine 

Australia 

Bahamas 

Belgium 

Bolivia 

Bermuda 

Brazil 

Canada 

Chile 

China 

Colombia 

Costa Eica 

Cuba 

Denmark 

Ecuador 

France 



Trade-Mark Registrations 

United States Nos. 22,406 and 47,189 

STATES : 
Maryland 
Massachusetts 



Michigan 

Minnesota 

Missouri 

Montana 

Nebraska 

Nevada 

New Hampshire 

New Jersey 

Xcw York 

North Carolina 

North Dakota 

Ohio 



Oklahoma 

Oregon 

Pennsylvania 

Rhode Island 

South Carolina 

South Dakota 

Tennessee 

Texas 

Utah 

Vermont 

Virginia 

Washington 

West Virginia 

Wyoming 



FOREIGN COUNTRIES: 

Guatemala 

Haiti 

Honduras and British 

Honduras 
India 
Italy 
Japan 
New South Wales 

(protected by 

Australian 

Registration) 
Nicaragua 
Panama 
Paraguay 
Peru 

634 



TRADE-MARK REGISTRATIONS 



FOREIGN COUNTRIES Continued 



Philippines 
Porto Rico 
Portugal 
San Salvador 



Spain 
Venezuela 
Virgin Islands 



The Registration of the Trade-Mark 




Is Pending in the Following Foreign Countries : 
Argentina Great Britain 



Austria 

Czecho-Slovakia 

Germany 

The Coca-Cola Company, 
and existing under the laws 
is licensed to do business in 

Arkansas 

California 

Delaware 

Georgia 

Florida 

Illinois 

Louisiana 

Massachusetts 

Maryland 



Holland 
Switzerland 

a corporation organized 
of the State of Delaware, 
the following states : 

Mississippi 

Missouri 

New York 

Oregon 

Pennsylvania 

Tennessee 

Texas 

Utah 

Virginia 



635 



THE COCA-COLA COMPANY 



THE CHAIN OF 

THE COCA-COLA COMPANY'S 

TITLE TO COCA-COLA 



Date 
May, 1886 



To 

July 8, 1887 



To 
Dec. 14, 1887 



To 
April 14, 1888 



To 

April 17, 1888 



To 

Aug. 30, 1888 

To 
April 22, 1891 

To 
Feb. 22, 1892 

To 

1893 

To 
Sept. 12, 1919 



Manufacturer 
Pemberton Chemical 
Co.. 



W. E. Venable 



Woolfolk Walker. . 



j Woolfolk Walker. 
( F. M. Robinson . . 



F. M. Robinson . . . 

F. M. Robinson . . . 
F. M. Robinson. . . 
F. M. Robinson. . . 
The Coca-Cola Co . 
The Coca-Cola Co. 



Owner 

J. S. Pemberton 

107 Marietta St., Atlanta, Ga. 

J. S. Pemberton 
\\ . E. Venable 
Geo. S. Lowndes 

Marietta and Peachtree, Atlanta, 

Ga. 

J. S. Pemberton 
Woolfolk Walker 
Mrs. M. C. Dozier 

107 Marietta St., Atlanta, Ga. 
Walker, Candler & Co. 
WoolfoHk Walker 
Mrs. M. C. Dozier 

107 Marietta St., Atlanta, Ga. 
W r alker, Candler & Co. 
Asa G. Candler 
Woolfolk Walker 
Mrs. M. C. Dozier, 

63 Peachtree St., Atlanta, Ga. 
Walker, Candler & Co. 
Asa G. Candler 

63 Peachtree St., Atlanta, Ga. 

Asa G. Candler 

63 Peachtree St., Atlanta, Ga. 

The Coca-Cola Co. 

Atlanta, Ga. 
The Coca-Cola Co. 

Atlanta, Ga. 
The Coca-Cola Co., 

Atlanta, Ga. 

(The present company owned by 

thousands of stockholders) 



On the following pages are illustrated the various 
contracts, bills of sale, etc., covering the above chain. 



636 



CHAIN OF TITLE 



i v, 

whereas John SPembert0n, of the City of Atlanta, in the County of 
Fultoa and State of Georgia, is the owner of a formula for Coca-Cola 
Syrup and Extract, and did, on the 28th.day of June IB37, register in the 
United States Patent office & Label, under the title of Coca-Cola Syr-. 

up and Extraet,Huraber 5272, and 

Whereas Willis E. Venable anil George 3. Lowndes, both of the same plaee, 
are desirous of acquiring an interest in said formula and registra- 
tion: 

New therefore, This Indenture WIfKESSETH, - that for and in consider 
tion of the sum of one dollar to rae in hand paid, the receipt of whie 
by acknowledged, as well as in consideration of an advance or 

of $1200.00 without interest, but which is to be refunded to said 

liOwndes & Vegable out of isy share of profit in the 'herein- 
after mentioned business} and in further consideration of the said 
liOwndes % Venable furnishing the necessary capital to eqnduct said 
business without changing Interest therefor; 

I, the said John S.Perabertoa, do hereby sell and assign a two- thirds 
interest isa And to said registered labelto the said Willis E.Venable 
and George S.Lowndes, and the sol$ right to manufacture, sell and con- 
trol the business and ase the said label for the benefit of the par- 
ties concerned, for and during the full term of said registration or 
any renewal thereof, and further agree to furnish said Venable and 
Lowndes all "knowledge and Information necessary for the manufacture of 
-the said Coca-Cola Syrup and Extract. 
And i* -?d by and between the parties hereto that s*id Lowndes Sc 

l shall alone conduct the business of manufacturing and selling 
said Coca-Cola Syrup and F^traet during the term of registration of 
s aid 
It is further agreed that they shall take all the jaaverial and fixture 

r 'emberton has on hand that can be used in the manufacture of Coca 
Extract for the benefit of said business, pay ing the sad 
Feraberton therefor original cost. 

It is further agreed that said Pemberton shall receive one- third the 
net profits arising frosa s s-id busine|s, ami that he shall have the 
e of drawing the s .*;? monthly. 






637 



THE COCA-COLA COMPANY 




038 



CHAIN OF TITLE 




639 



THE COCA-COLA COMPANY 



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041 



THE COCA-COLA COMPANY 





CHAIN OF TITLE 




643 



THE COCA-COLA COMPANY 



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044 



CHAIN OF TITLE 



. AHA 'G.CANMJKlt \- CO. 




645 



THE COCA-COLA COMPANY 




646 



CHAIN OF TITLE 




ON DRAUGHT AT ALL POPULAR SODA FOUNTAINS 

\ AT 5 PER CLASS. 






647 



THE COCA-COLA COMPANY 







*** 







048 



A. 

PAGES 

Coca-Cola Company v. C. C. Alford (Unreported) 616 

Coca-Cola Company v. American Bottling Works (Unreported)... 310 
Coca-Cola Company v. American Druggists' Syndicate, et al., 200 

Federal 107 ." 229 

Coca-Cola Company v. L. H. Armstrong, doing business as Stage 

Cafe ( Unreported ) 442 

Coca-Cola Company v. Anti-Monopoly Drug Co. (Unreported).... 342 

B. 

Coca-Cola Company and Coca-Cola Bottling Company v. H. G. 

Bailey and E. B. Donald (Unreported) 284 

Coca-Cola Company v. L. W. Bates (Unreported) 488 

Coca-Cola Company v. L. J. Bates (Unreported) 491 

Coca-Cola Company v. A. R. Beard (Unreported) 352 

Coca-Cola Company v. Beermann v. Kent (Patent Office Case) .... 529 

Coca-Cola Company v. Chas. G. Bennett, et al., 238 Fed. 513 72 

Coca-Cola Company v. Branham, et al., 216 Fed. 264 149 

Coca-Cola Company v. James Brown (Unreported) 619 

Coca-Cola Compar.y v. Brown & Allen, 274 Fed. 481 235 

Coca-Cola Company v. J. G. Butler & Sons, 229 Fed. 224 120 

C. 

Poca-Cola Company v. E. L. Caldwell (Unreported) 517 

Coca-Cola Company v. A. F. Cameron (Unreported) 405 

Coca-Cola Company v. Carbo>-Cola Company (Patent Office Case) . . 549 

Coca-Cola Company v. Ray Cave (Patent Office Case) 545 

Coca-Cola Company v. Celro-Kola Company (Patent Office Case).. 564 

Coca-Cola Company v. Chero-Cola Company, 273 Fed. 755 99 

Coca-Cola Company v. Citra-Cola Manufacturing Co. (Patent Of- 
fice Case) 558 

Coca-Cola Company v. J. T. Clark, et al. (Unreported Case) 403 

Coca-Cola Bottling Company v. Coca-Cola Company, 269 Fed. 796. . 241 

Coca-Cola Company v. Nashville Syrup Co., 215 Fed. 527 57 

Coca-Cola Company v. Old Dominion Beverage Corp., 271 Fed. 600. 85 

Coca-Cola Company v. Old Dominion Beverage Corp., 271 Fed. 600. 201 
Coca-Cola Company v. Old Dominion Beverage Corp. (Patent Office 

Case) 538 

Coca-Cola Company v. Coeburn Drug Company (Unreported) 381 

Coca-Cola Company v. Cox Bottling Company (Unreported) 317 

Coca-Cola Company v. Crown City Bottling & Syrup Company 

( Unreported ) 335 

D. 

Coca-Cola Company v. C. Darhanian, trading as Daron Company 

( Unreported ) 446 

Coca-Cola Company v. Deacon-Brown Bottling Co., 200 Fed. 105.. 143 

Coca-Cola Company v. Detroit Baseball Co. (Unreported) 407 

Coca-Cola Company v. Joe Disch, trading as Diamond Cafe ( l"n- 

reported) 380 

Coca-Cola Company v. Dooly Soda Water Co., et al. (Unreported) . 621 
Coca-Cola Company and Coca-Cola Bottling Company v. E. B. 

Donald and H. G. Bailey (Unreported) 291 

Coca-Cola Company v. Chris Dorna, Sr., et al. ( Unreported ) 356 

(i) 



INDEX TO CASES 



Coca-Cola Company v. I'.eiijamin Dubei -stein, ct al., 249 Fed. 703.. 191 

Coca-Cola Company v. \Y. S. Duncan. / <//. ( I 11 reported) 027 

Coca-Cola Company v. 11. Dunn (Unreported) 421 

E. 

Coca-Cola Company v. F. H. Eggers, Jr. (Unreported) 377 

Coca-Cola Company v. Fgisto Kgi/iani i I 'nreported I 444 

Coca-Cola Company v. Louis L. Kmmerson. <! <il.. 270 Fed. 1010.. 205 

('oca-Cola Company v. Kmpin- Mottling \- Mfg. Co. ( f. reported ).. 35)1 

Coca-Cola Company v. .lolin (i. Kpping, < I <il 47-" 

F. 

Federal Trade Commie-ion v. Coca-Cola Company (Tun-ported)... Ill 

Coca-Cola Company v. Kdward Ferger (I'nreported ) 435 

Coca-Cola Company v. Kay Fitch i fun-ported) 31)5 

Coca-Cola Company v. Oscar Fletcher ( I'nreported) 470 

Co<-a-('ola Company v. I. L. Flory. trading as Klkton Bottling Co. 

(Unreported) 417 

Coca-Cola Company v. L. <i. Fo\. <l nl. (fun-ported) 373 

Coca-Cola Company v. Franklin Cam Co. (Patent Ollice Case).... 5(!0 

Coca-Cola Company v. E. S. Frishkorn ( I'nreported) 300 

G. 

Coca-Cola Company v. Dan Gallagher i I "nreported ) 513 

Coca-Cola Company v. (Jay-Ola Company. 200 Fed. 720 .'54 

Coca-Cola Company v. P. A. (Jeorge. r/ al. (run-ported) 430 

Coca-Cola Companv v. Marv !'. ( .iliea. <l nl. ( I'nreported ) 458 

Coca-Cola Company v. Glee-Nol Bottling Co., et nl.. 221 Fed. (il . . . 10.1 

Coca-Cola Company v. A. B. (Jreen (Unreported) 010 

H. 

Coca-Cola Company v. James Habib (Unreported) 301 

Coca-Cola Company v. P. \V. I lagan I fun-ported) 309 

Coca-Cola Company v. W. F. llammack I fun-ported 013 

Coca-Cola Company v. Louis W. llanne. ct al. (Unreported) 313 

Coca-Cola Company v. John F. Haupt. .Jr. (fun-ported) 3.1S 

Coca-Cola Company v. Heins Cigar Company ( f ureported) 292 

Coca-Cola Company v. A. J. llieber ( f ni-eported ) 305 

Coca-Cola Company v. Hotel Hand Company ( f nreported ) 473 

Coca-Cola Company v. Horstman. rt ,,!.. 212 Fed. 412 100 

Coca-Cola Company v. D. M. Hudspeth (Unreported) 3so 

J. 

Coca-Cola Company v. Jacksonville Bottling Works (Unreported). 511 

( oci-Cola Company v. Max Jacobs, et al. (Unreported) 323 

Coca-Cola Company v. J. R. Jenkins (Unreported) ' 455 

K. 

Coca-Cola Company v. Kansas City Kola Co. (Patent Office Case) . 502 

Coca-Cola Company v. John P. Keays, et al. (Unreported) 023 

Coca-Cola Company v. D. L. Keen (Unreported) 032 

Coca-Cola Company v. Kelly Mfg. Co. (Patent Office Case) 542 

Coca-Cola Company v. P. M. King (Unreported) 015 

Coca-Cola Company v. Krummenacher Drug Co. ( Unreported ) . . . . 340 
Coca-Cola Company v. Koke Co. of America, et al., 254 U. S. 143. . 

Coca-Cola Company v. J. Alton Kolb (Unreported) 451 

Coca-Cola Company v. George Kotsonas (Unreported) 400 

Coca-Cola Company v. Stanley Kurtz (Unreported) 294 

(ii) 



INDEX TO CASES 



L. 

PAGES 

Coca-Cola Company v. La Salle Candy Co. (Unreported) 477 

Coca-Cola Company v. Leonard Hotel Co. (Unreported) 277 

Coca-Cola Company v. Ralph E. Lightner, et al. (Unreported).... 320 

Coca-Cola Company v. Lily Ice & Bott. Works (Unreported) f>lf> 

Coca-Cola Company v. A. London (Unreported) 290 

M. 

Coca-Cola Company v. Magic City Bott. & Syrup Co. (Unreported) 303 

Coca-Cola Company v. J. T. Mason, et al. ( Unreported ) 400 

Coca-Cola Company v. Philip Mazzoni, et al. (Unreported) 378 

Coca-Cola Company v. J. L. Meyer (Unreported) 387 

Coca-Cola Company v. Peter Miller (Unreported) 350 

Coca-Cola Company v. Morrison J. Miller (Unreported) 527 

Coca-Cola Company v. G. A. Miller (Patent Office Case) 580 

Coca-Cola Company v. Axson C. Minhinnett (Unreported) 02f> 

Coca-Cola Company v. Mississippi Bott. & Mfg. Co. (Unreported) . 425 

Coca-Cola Company v. D. D. Murphy (Unreported) 449 

Coca-Cola Company v. R. E. Murphy (Unreported) 305 

Coca-Cola Company v. Frank F. Mykrantz (Unreported) 107 

Me. 

Coca-Cola Company v. Chas. W. McCormick, et al. (Unreported) . . 408 

Coca-Cola Company v. Edward McBride, ct al. (Unreported) 409 

Coca-Cola Company v. James McMaster, et al. (Unreported) 340 

N. 

Nashville Syrup Co. v. Coca-Cola Company, 215 Fed. 527 57 

Coca-Cola Company v. National Syrup Co. (Unreported) 329 

Coca-Cola Company v. National Carbonating Syrup Co. (Patent 

Office Case) 574 

Coca-Cola Company v. Newport Mineral Water Co. (Unreported) . . 471 

O. 

Coca-Cola Company v. D. J. O'Connell (Unreported) 020 

Old Dominion Beverage Corp. v. Coca-Cola Company, 250 U. S. 703 ; 

05 L. Ed. 1179. . 98 

Coca-Cola Company v. Opera Pharmacy ( Unreported ) 408 

Coca-Cola Company v. Chas. A. Ottinger, et al. (Unreported) 428 

P. 

Coca-Cola Company v. Penn-Cola Co. (Patent Office Case) 555 

Coca-Cola Company v. N. T. Pike (Unreported) 617 

Coca-Cola Company v. A. L. Pilsbury, Jr. (Unreported) 300 

Coca-Cola Company v. N. Pourlakas (Unreported) 354 

Coca-Cola Company v. Wm. Power (Patent Office Case) 570 

Q. 

Coca-Cola Company v. Quaker-Kola Co. (Patent Office Case) 578 

XL 

Coca-Cola Company v. J. N. Rayzor, et al. (Unreported) 397 

Coca-Cola Company v. Riverview Park Co. (Unreported) 415 

Coca-Cola Company v. R. R. Rochelle (Unreported) 302 

Coca-Cola Company v. Isaac Rochstein (Unreported) 401 

Coca-Cola Company v. Frank Rotella, et al. (Unreported) 332 

Coca-Cola Company v. Henry A. Rucker, 117 Fed. 1000; 125 Fed. 

1005 . . 113 

(iii) 



INDEX TO CASES 



Coca 
Coca 
Coca 

Coca 
( 'oc:i 
Coca 
Coca 
Coca 
Coca 
Coca 
Coca 
Coca 



Cola 
Cola 
Cola 

Cola 
( 'ola 
Cola 
Cola 
Cola 
Cola 
Cola 
Cola 
Cola 



s. 



Company v. Bernard Sandrowit/. ct al. ( Unreported ) . 
Company v. Seelbach Hotel Co. ( Unreported ) 
Company v. Frank Simms i 1'nreported) 
Company v. Israel Shueart. <! al. ( Unreported ) 
Company v. Sn];i-('o]a Co.. Inc. (Patent Office Ca.se).. 
Company v. Southern l.otilin^ \\'orks (Uureported ) . . 
Company v. Spanish Cork \ Stopper Co. ( 1'nreported) 
Company v. Henry Spcrhcr ( Unreported ) 
Company v. State of Texas, 225 S. \V. T'.H 
Company v. Hoy M. Stokes, et al. (Unreported ) 
C'ompany v. Strole ])ru; Co., Inc. ( Tun-ported ) 
Company v. L*. F. Stutx. < Unreported) 
Company v. 1'arrar J. Sullivan (Patent < Mllce Case).. 

T. 



AGES 

52:> 
393 
509 
3X4 
534 
507 
521 
419 
5S2 
309 
412 
440 
567 



Coca-Cola Company v. Lee .1. Taylor ( 1'nreported) .............. 504 

Coca-Cola Company v. Tenm-->ee (Ola Co. (Patent Ollice Case) .... 552 

Coca-Cola Company v. M. Thoodosakis (Unreported) ............. 348 

TT. 

United States v. 40 Bbls. and 20 Ke-s of Coca-Cola, 241 U. S. !)'.I5. . 11 



V. 






Coca-Cola Company v. M. L. N'alverde. <-l <tl. ( I'nreported ) ....... (508 

Coca-Cola Company v. X'ir^inia I leverage ( 'orp. ( 1'atent ( )llice 

Case) ................................................... 572 

Coca-Cola Com]taii\' v. Virginia Syrup Co. (Patent Ofliee Casei 

3 T. M. R. 126 .............. ' ............................. 220 

Coca-Cola Company v. Vivian Ice. IJ^ht tV- \\'at<-r Company, 90 

Southern 755 ............................................ 594 



Coca-Cola Company v. 
Coca-Cola Company v. 
Coca-Cola Company v. 
Coca-Cola Company v. 

R. 234 

< 'oca-Cola Company v. 
Coca-Cola Company v. 
Coca-Cola Company v. 
Coca-Cola Company v. 



W. 

Warrior Mottling Co. (Patent Office Case) .. 
J. M. Weeks (Unreported) ............... 

F. 10. Williams. .Jr.. <t al. (Unreported)... 
Williamsburgh Stopper Co.. <t til., 2 T. M. 



Lena Wills ( Unreported) 
R. Wise & J. L. McXealy (Urrepnrted ) . 
Wittemann Bros., ct al., 2 T. M. R. 234. 
Frank I. Wol^ast. ct al. (Unreported) 



502 
404 

155 
453 
367 
155 
337 



Y. 



Coca-Cola Company v. W. W. Yager ( Unreported ) .............. 494 

Coca-Cola Company v. B. F. Yelton (Unreported) ............... 437 



(iv) 



INDEX TO SUBJECT MATTER 

/ICOUNTING: i-AOKS 
On an accounting defendant is entitled to a credit for salary 
paid to its manager, who was a minority stockholder. Nash- 
ville Syrup Co. v. Coca-Cola Company 08 

ANSWER BY CORPORATION: 

Corporation cannot answer under oath in equity, and such 
answer is not available to prove an affirmative defense. Coca- 
Cola Company v. Gay-Ola Company 37 

CONTRACTS: 

Permanent and Continuing. Coca-Cola Bottling Company v. 

Coca-Cola Company 253 

Restraint of Trade 268, 582 

DECEPTION : 

Whether a claimed trade-mark is so descriptive of something 
else as to be deceptive must be decided as of the time of its 
adoption. Nashville Syrup Company v. Coca-Cola Company. . 64 

DECREE: 

Under certain circumstances it is proper for a court to pre- / 
scribe that certain forms be used. Coca-Cola Company v. Gay- 
Ola Company 47 

EVIDENCE: 

Plaintiff is not required to establish its case beyond a reason- 
able doubt. Coca-Cola Co. v. Mykrantz 169 

Detective and secret evidence, ibid 173 

Comparison of sales, as evidence of substitution, ibid 176 

FOOD AND DRUGS: 

An ingredient can be an added one even though it is called foj 
by a secret formula. U. S. v. 40 Bbls. and 20 Kegs of Coca- 
Cola 21 

Elimination of harmful ingredients not an adulteration, ibid. . 22 
Question of fact as to whether an ingredient is harmful, ibid. . 26 

Question of fact as to whether a name is distinctive, ibid 30 

FEDERAL TRADE COMMISSION: 

Public interest. Federal Trade Com. v. Coca-Cola 112 

INFRINGEMENTS ENJOINED: 

To protect owner of the property, and to prevent deception of 
the public. Coca-Cola Co. v. Butler 132 

INFRINGEMENTS : 

The following have been held infringements of Coca-Cola: 

Koke 1, 307 

Fletcher's Coca-Cola ' 58, 363 

Taka-Kola 86, 538 

Caro-Cola 630, 632 

Coca and Cola , 192 

El-Cola 195, 190 

Takola 202 

John D. Fletcher's Carbonating Syrup; a genuine Coca and 

Cola Flavor 214 

John D. Fletcher's Coca and Cola 214 

Tripure, Purest Drink in the World; a genuine Coca and 

Cola Flavor ., 214 

Trico, Purest Drink in the World; a genuine Coca and Cola 

Flavor .' 214, 575 

Crescent Coca-Cola 227 

(v) 



INDEX TO SUBJECT MATTER 



I NKR I N( J KM ENTS Continued : PA<;KS 

Ivxt ract of Coca and Cola _!:;n 

Cola 27!). 307. 4!Ki 

Toca-Coca 301 

Cam-Cola :;o;; 

Star ( 'oke 307 

Ko-Kola 3<;<). :! 1 1) 

I la line's Coca and Kola 315 

('- Kola 3is 

( 'oke-< )la :' t '2-2 

Kos-Kolu :{;.-> 

Cold-( 'ola :\->(\ 

Cafa-( 'ola 330 

Koka-Nova 333 

Coca- Kola :;:;s 

Curo-Kola 4JM5 

The following have l>e< n held colorable imitations of Coca-Cola: 

Chero-( tola 100 

Sola-( 'ola 535 

Kel-Kola fi42 

Ko-Co-Lem-A 546 

Carbo-Cola 550 

Tenn-Cola 553 

IVnn-Cola 550 

Citra-Cola \ 559 

Kaw-Kola 5lii> 

Sherry-Coke 5<>s 

Mitch-O-Cola 571 

Kin-Cola 57:5 

si Ivor-Cola 577 

< Jim-Kola 570 

Ti ince-Cola 5S1 

JURISDICTION: 

\\here the registered mark and the infrin^injiy mark aic hoth 

used in inter- and inl ra--1ate commerce, the trade-mark owner 

may invoke the Federal statutes; where corporations are of 

different states and the amount in controversy exceeds .^3. 000, 

a United States Court may enforce plaintiff's common-law 

rights. 

Coca-Cola Company v. Old Dominion Beverage Corporation ... 89 

Coca-Cola Company v. Horstman, et al 109 

Equity is the proper power to prevent infringements, ihid. ... 89 
Merely proper or even necessary parties are not required to be 
joined in a Federal court when the result would he to defeat its 
jurisdiction. Coca-Cola Company v. Deacon-Brown Bottling 

Company 140 

Amount in dispute depends upon value of subject-matter. 

Coca-Cola Company v. Brown & Allen 230 

MEDICINAL PREPARATION: 

What is it? Coca-Cola Company v. Rucker 113 

PARTIES : 

Secretary of State proper party to bill in equity to cancel state 

registration. Coca-Cola Company v. Emmerson 219 

REGISTRATION: 

Whether or not the marks are so similar as to be likely to 
cause confusion in the public mind, or to deceive purchasers. 

Coca-Cola Co. v. Chero-Cola Co. 102 

(vi) 



INDEX TO SUBJECT MATTER 



REGISTRATION Continued : PAUKH 

Duty of applicant to select a mark clearly distinguishable from 

an existing mark, ibid 103 

All doubts resolved in favor of registered mark, ibid 104 

Statute does not require proof of actual confusion, ibid 103 

Of an infringing mark constitutes a cloud upon title. Coca- 
Cola Company v. Emmerson 213 

Does not create a trade-mark, ibid " 21(5 

State statutes are declaratory or are cumulative and additional 

to those recognized and applied by the common law, ibid 217 

Failure to register under state statute, ibid 220 

Where registered 634, 035 

SECONDARY MEANING: 

A secondary meaning of a trade-mark, indicating the owner's 
product alone, may be acquired by long use: 

Coca-Cola Company v. Koke Company of America 2 

Nashville Syrup Company v. Coca-Cola Company . 08 

Under Food' and Drugs Act. U. S. v. 40 Bbls. and 20 Kegs ... 30 

Adoption and user necessary to establish. Coca-Cola Company 

v. Branham 153 

TEST OF INFRINGEMENT: 

Is it likely to induce common purchasers, exercising ordinary 
care, to buy the article to which the trade-mark is affixed, be- 
lieving that it is the article of another? Coca-Cola Company v. 
Butler 132 

THE PRODUCT: 

Is free to all who can make it if no extrinsic deceiving element 
is present: 

Coca-Cola Company v. Koke Co. of America 5 

Coca-Cola Company v. Williamsburgh Stopper Co. . . 157 

Where purpose is to deceive, identical color of product will be 
enjoined: 

Coca-Cola Company v. Gay-Ola Company 41 

Coca-Cola Company v. Armstrong 442 

Coca-Cola Company v. Egiziani 444 

Coca-Cola Company v. Dorna " 350 

Coca-Cola Company v. Stutz 440 

Coca-Cola Company v. Hotel Rand 474 

Coca-Cola Company v. La Salle Candy Company 477 

Coca-Cola Company v. Fletcher " 470 

Coca-Cola Company v. Kotsonas 4<il 

Coca-Cola Company v. Opera Pharmacy 409 

Coca-Cola Company v. Mary Gildea, et al 459 

Coca-Cola Company v. Lena Wills 454 

Coca-Cola Company v. Darhanian 447 

Coca-Cola Company v. Murphy 450 

Coca-Cola Company v. Kolb * -. 451 

Coca-Cola Company v. Bates 488, 491 

Coca-Cola Company v. Hammack 013 

Coca-Cola Company v. Pike 618 

Coca-Cola Company v. Brown 619 

Coca-Cola Company v. D. J. O'Connell 630 

Though it is free to all to make, the trade-mark therefor can- 
. not be used: 

Coca-Cola Company v. Old Dominion Beverage Corporation... 91 

Coca-Cola Company v. Minhiimett 620 

(vii) 



INDEX TO SUBJECT MATTER 



TIME OF APPKAL: PAGES 
Where appeal purports to be from the interlocutory decree and 
steps were taken therefor before such decree became final, which 
was perfected afterwards, the irregularity is not fatal. Nash- 
ville Syrup Co. v. Coca-Cola Company 69 

TRADK-MARK ACT 1110.-): 

Does not grant a monopoly, but removes a disability, as if such 
neVer existed. Nashville Syrup Co. v. Coca-Cola Company.... 62 
Immaterial that 1 he mark may once have been descriptive or 
-t ill be to some decree : 

Coca-Cola Company v. Old Dominion leverage Corporation... 88 
Coca-Cola Company v. Deacon -Brown Bottling Company 145 

UNCLEAN HANDS: 

Must be judged by the facts a^ they were when the suit wa-^ 
begun, not by the fact of a different condition and an earlier 

time. Coca-Cola Co. v. K"ke Co. of America 5 

A tendency to create a monopoly will not preclude one from 
enjoi: ing unfair competition: 

Coca-Cola Company v. day-* Ha Company 44 

Coca-Cola Company v. Bennett HI 

Coca-Cola Company v. Butler 135. 130, 137 

Coca-Cola Company v. Deacon-Brown Bottling Company 146 

i -Cola Company v. Vivian Ice, Light and Water Company. 5!U 

UNFAIR COMPKTITION: I 

Not necessary that immediate purchaser be deceived; it is suf- 
ficient that it is the purpo.-e and expectation that article shall 
be used to deceive. ('oca-Cola Company v. Ciay-Ola Company.. 30 
All modes of imitation will be enjoined, where the purpose is 

to deceive, ibid 41 

Placing an instrument of fraud and deception in the hands of 

another constitutes unfair competition, ibid 41 

By means of dre-- : 

Coca-Cola Company v. Old Dominion Beverage Corporation... 02 

Coca-Cola Company v. Glee-Nol Bottling Company 10.5 

Coca-Cola Company v. Williamsburgh Stopper Company 157 

The essence of the wrong in unfair competition consists in the 
>ale of the goods of one manufacturer for those of another. 

( 'oca -Col a Co. v. Glee-Nol Bottling Co 108 

Addirg other ingredients constitutes unfair competition. Coca- 
Cola Company v. Brown & Allen 236 

Distinctive bottle. Coca-Cola Company v. Valverde 608 

USE OF TRADE-MARK: 

Cannot be used on individual package when purchased in bulk: 

Coca-Cola Company v. Bennett 70 

Coca-Cola Company v. Horstman, et al 100 

Coca-Cola Company v. Butler 132 

Coca-Cola Company v. Taylor 504 

Coca-Cola Company v. Simms 509 

Coca-Cola Company v. Jacksonville Bottling Works 511 

Coca-Cola Compary v. Gallagher 513 

Coca-Cola Company v. Lily Ice and Bottling Works 515 

Coca-Cola Company v. Caldwell 518 



(viii) 



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