in taking the account of profits;78 other cases hold directly to the contrary.79 As to losses from bad debts, the rule appears to be to treat such sales "as if they had not been made at all-neither increasing the amount of profits by reason of such sales nor diminishing that amount on account of the loss caused thereby. 9780 § 199. Label designing as a judicial function. The willingness of courts of equity to aid in maintaining fairness in competition has been evidenced by a label designed by Judge Co. and exhibited with his opinion in a case involving the word "Carlsbad" as applied to mineral water, with the statement that “in order that there may be no misunderstanding upon the settlement of the decree, the court has applied a copy of a label which, it is thought, the defendant may use with impunity as truthfully representing the water sold by him.''81 In another case, Judge Lacombe, in offering alternative forms of decree for the choice of a defendant, said "the mandate will, if defendant prefers, direct a modification of the interlocutory decree solely by requiring the affixing upon every package sold, in type as prominent as the title, of the statement that 'W. II. Baker is distinct from and has no connection with the old chocolate manufactory of Walter Baker & Co.' ''82 The Court of Appeals of the Seventh Circuit has criticised this practice, Judge Jenkins observing that, "The court below, upon holding that the changed label of the defendant infringed the complainant's right, caused to be submitted for its approval another form of label, which it approved, and authorized the defendant to use upon bottles of the same form as those used by the complainant. We greatly doubt the propriety of such action. When 78 Societe Anonyme v. Western Distilling Co., 46 Fed. Rep. 921; Regis v. Jaynes & Co., 191 Mass. 245, 251, 252; 77 N. E. Rep. 774; Nelson v. J. II. Winchell & Co., 203 Mass. 75; 89 N. E. Rep. 180, 187. "To allow the defendant as now urged in argument to charge upon the gross profits any share of its general operating expenses would be to permit it to take advantage of its own deliberate wrong when it intentionally palmed off its goods, as having been made by the plaintiff. Regis v. Jaynes, 185 Mass. 458, 462, 70 N, E. 480; Reading Stove Works v. S. M. Howes Co., 201 Mass. 437, 443, 87 N. E. 751, 21 L. R. A. (N. S.) 979, and cases cited." Braley, J., in Grocers' Supply Co. v. I. Renaud Co.,-Mass.-, 125 N. E. Rep. 144, 145 79-Walter Baker & Co. v. Slack, 65 C. C. A. 138; 130 Fed. Rep. 514, 520; Saxlehner v. Eisner & Mendelson Co., 138 Fed. Rep. 22. 80-Sheldon, J., in Nelson v. J. H. Winchell & Co., 203 Mass. 75; 89 N. E. Rep. 180, 187; following Edelsten v. Edelsten, 10 L. T. N. S. 780. 81-City of Carlsbad v. Schultz, 78 Fed. Rep. 469, 472. 82-Walter Baker & Co. v. Sanders, 80 Fed. Rep. 889, 895; 26 C. C. A. 220. an infringement has been found, it should be restrained. A court of equity does not sit as an arbiter to determine in advance upon other and changed labels which the infringer may adopt to avoid the condemnation of the court. Whether such changed forms do in fact infringe is matter of fact to be determined by the court in its usual course of procedure upon complaint lodged by the party damnified. The duty of the court below was to determine whether the labels complained of in the bill infringed the complainant's right. That duty was fully performed when the court had so determined. It is not called upon to decide whether a new label proposed for adoption would infringe. This is especially so here, where the infringement was deliberate and designed. In such case the court ought not to say how near the infringer may lawfully approximate the label of the complainant, but should cast the burden upon the guilty party of deciding for himself how near he may with safety drive to the edge of the precipice, and whether it be not better for him to keep as far from it as possible;" 83 and in a later case, quoting from the foregoing opinion, the same court, per curiam, remarks, "it will be time enough for the court to determine the question upon issues properly framed and the evidence taken thereunder. " 84 It has been suggested that equity will not, by directing "no connection with" matter to be placed upon a label, compel a party to advertise his competitor's business.84a Where the complainant's counsel has stated that he saw no objection to a proposed new label submitted to him by defendant, the fact was held conclusive against an application for a preliminary injunction to restrain its use.85 In enjoining unfair competition by the use of geographical and descriptive words ("Spanish tile" and "cohesive tile" as applied to arches) the alternative was offered by Judge Hand by "adding as a suffix substantially the following: 'not made by Guastavino, the original maker of such arches' or by abandoning the phrases altogether." 8G Generally, decrees will be so drawn as to protect any substantial right of the complainant against unfair competition; 83-Charles E. Hires Co. v. Consumers' Co., 100 Fed. Rep. 809, 813; 41 C. C. A. 71. 84-Williams v. Mitchel, 45 C. C. A. 265; 106 Fed. Rep. 168, 172; to the same effect see Sterling Remedy Co. v. Spermine Medical Co., 50 C. C. A. 657; 112 Fed. Rep. 84a-0. & W. Thum Co. v. A. K. Ackerman Co., 257 Fed. Rep. 394, 397, C. C. A. 6. 85-Weber Medical Tea Co. v. Weber, 102 Fed. Rep. 156. 86-R. Guastavino Co. v. Comerma, 184 Fed. Rep. 549. with the result at times, of narrowing the injunction to a point near zero.87 $ 200. Appeals.-Sec. 17 of the Act of 1905 provides that, "The Circuit Courts of Appeals of the United States and the Court of Appeals of the District of Columbia shall have appellate jurisdiction of all suits at law or in equity respecting trademarks registered in accordance with the provisions of this act, arising under the present act, without regard to the amount in controversy." Section 129 of the Judicial Code, following the Act of March 3, 1891 (26 Stat. 826, c. 517) establishing the circuit court of appeals as amended by the Act of February 18, 1895 (28 Stat. 666, c. 96), provides: "Where upon a hearing in equity in a district court, or by a judge thereof in vacation, an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, or an interlocutory order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolving, or refusing to dissolve, an injunction, or appointing a receiver to the circuit court of appeals, notwithstanding an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the supreme court; Provided, That the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court, or the appellate court, or a judge thereof, during the pendency of such appeal; Provided, however, That the court below may, in its discretion, require as a condition of the appeal an additional bond." A decree which adjudges unfair competition, awards an injunction, and directs that the defendant deliver up for destruction. any of the imitative articles on hand. and also orders an account 87-See Holeproof Hosiery Co. v. Wallach Bros., 172 Fed. Rep. 859; 97 C. C. A. 263; modifying the decree in Holeproof Hosiery Co. v. Wallach Bros., 167 Fed. Rep. 373. ing of profits and damages is an interlocutory decree and must be appealed from within thirty days, or the appeal will be dismissed upon motion.88 The right of a successful complainant to appeal from an interlocutory decree, to present the question whether the decree as to accounting for unfair competition should have allowed profits as well as damages has been denied.88 Under this section, an appeal from a decree made after final hearing on the merits, declaring infringement of a trademark, awarding a perpetual injunction and referring the cause to a master for an accounting, is not an appealable final decree but is interlocutory, and such an appeal, to be effectual must be taken within thirty days from entry of the interlocutory decree.89 A decree dismissing one branch of the issues raised, leaving other substantial issues undetermined is not a final decree, and is not appealable.90 The United States Circuit Court of Appeals will review the action of the district courts in granting or refusing preliminary injunctions for the purpose of reviewing the discretion of the court below and correcting error in its exercise. In a proper case it will enlarge the scope of a preliminary injunction which falls short of protecting the complainant's rights.91 Where such a preliminary injunctive order is appealed from, however, the question for consideration is whether the court below improperly exercised its discretionary power in respect of issuing an injunction pendente lite. Unless it cleary appears that it has so done, the order should be affirmed."' 92 $201. Certiorari.-Sec. 18 of the Act of 1905 provides as follows: "That writs of certiorari may be granted by the Supreme Court of the United States for the review of cases arising under this act in the same manner as provided for in patent cases by the act creating the circuit court of appeals." 88-Puritan Cordage Mills V. Sampson Cordage Works, 232 Fed. Rep. 138 (C. C. A. 6). 88a-Myles Standish Mfg. Co. v. Champion Spark Plug Co., 282 Fed. Rep. 961, 969, C. C. A. S. 89-Raymond v. Royal Baking Powder Co., 76 Fed. Rep. 465; 22 C. C. A. 278. 90-Memphis Keeley Institute v. Leslie E. Keeley Co., 75 C. C. A. 430; 144 Fed. Rep. 628, 631. 91-Charles E. Hires Co. v. Consumers' Co., 100 Fed. Rep. 809-813; 41 C. C. A. 71. 92-Chickering v. Chickering & Sons, 120 Fed. Rep. 69, 73; 56 C. C. A. 475; Pfeiffer v. Wilde, 46 C. C. A. 415; 107 Fed. Rep. 456; affirming Pfeiffer v. Wilde, 102 Fed. Rep. 658. The act referred to is known as the Judiciary Act of 1891, sec. 6 of which act provides, "That in any such case as is hereinbefore made final in the circuit court of appeals, it shall be competent for the supreme court to require by certiorari or otherwise, any such case to be certified to the supreme court for its review and determination with the same power and authority in the case as if it had been carried by appeal or writ of error to the supreme court." Section 716 of the United States Revised Statutes has been held to authorize the use of writs of certiorari by the supreme court in all proper cases.93 The general rule concerning the issuance of a writ of certiorari by the supreme court is that it rests within the discretion of the court. Mr. Chief Justice Fuller has said that: "When sought as between private persons, the general rule is that the writ of certiorari will be granted or denied, in the sound discretion of the court, on special cause or ground shown; and will be refused where there is a plain and equally adequate remedy by appeal or otherwise." 94 Under sec. 18 of the Trademark Act of 1905, the final decision of a circuit court of appeals is not appealable to the supreme court, and can be reviewed only upon certiorari.95 93-In re Tampa Suburban R. Co., 168 U. S. 583; 42 L. Ed. 589. 94-In re Tampa Suburban R. Co., 168 U. S. 583; 42 L. Ed. 589. 95-Hutchinson, Pierce & Co. v. Loewy, 217 U. S. 457; 54 L. Ed. 838; Street & Smith v. Atlas Mfg. Co., 231 U. S. 348; 58 L. Ed. 262; G. & C. Merriam Co. v. Syndicate Pub. Co., 237 U. S. 618; 59 L. Ed. 1148. |