These defendants further answering said bill of complaint admit that they were engaged in business as wholesale druggists at the city of St. Louis, in the state of Missouri, but deny that they have been long or at all cognizant of the high reputation or any particular reputation of complainant's medicine, but admit that for some time they have known of the said designation "Brown's Iron Bitters."

These defendants further answering said bill of complaint admit that prior to the commencement of this suit and as well since they had and have sold medicine put up in bottles to which have been attached and applied labels containing the words "Brown's Iron Tonic," but these defendants explicitly deny that such sales or any of them were or have been made in order to injure complainant by diverting any profits of complainant in the sale of its medicine or otherwise, or that such sales were fraudulently made, or that the bottles or the labels thereon containing the words "Brown's Iron Tonic," were intended by these defendants or any of them to indicate that the medicine contained in said bottles was prepared and put up by complainant; and these defendants deny that they ever have fraudulently offered or caused to be offered or sold or that they still fraudulently offer or cause to be offered or sold in large or any quantities the said medicine so as aforesaid labelled "Brown's Iron Tonic," although these defendants admit that they have, as of right they might, offered and sold and still offer for sale said "Brown's Iron Tonic;" as they have bought and sold complainant's said medicine, but without loss or injury to said complainant.

These defendants further answering said bill of complaint, deny that large or small, or any quantities or quality of said Brown's Iron Tonic have been, through any act of these defendants, or any of them, or through any use by them of said designation of "Brown's Iron Tonic" at any time sold as or for complainant's "Brown's Iron Bitters" or mistaken therefor in any instance, or that said complainant has lost anything or been injured thereby.

These defendants further answering said bill of complaint, deny that it was their purpose to offer or sell said "Brown's Iron Tonic" upon any reputation established by complainant or as or for complainant's said alleged celebrated "Brown's Iron Bitters"; and defendants deny that any of their acts in the premises have been or are contrary to equity or good conscience, or that they ought to be enjoined from the further sale of said "Brown's Iron Tonic."

These defendants further answering said bill of complaint state that while they claim and allege that the words "Brown's Iron Bitters" are not the subject of trademark or tradename, and that defendants or anybody else might legally use the same words especially if as in this case, the entire designation is not used but is changed so as to exclude the idea of any misleading or fraudulent purpose; yet these defendants have as good right as complainant possibly could have to the use of the entire designation "Brown's Iron Bitters" and as ground of this claim and as further answer to said bill of complaint, these defendants aver

on information and belief, and charge the truth to be that in or near the summer of 1881, one E. L. B. in connection with one C. J. L. commenced putting up and selling the said preparation "Brown's Iron Tonic" at Little Rock, Arkansas, as a wholly distinct preparation from "Brown's Iron Bitters," and without any intention or purpose to imitate complainant's said preparation, which at that time had not been adver tised or sold to any great extent, as these defendants on information and belief aver. Subsequently to this date, as these defendants on information and belief, aver, said B. sold out his interest in said preparation to said C. J. L., who has since that time been putting up, at Little Rock, Arkansas, said medicine, and offering it to the public, and these defendants have bought some of it and sold some of it, viz: Four gross bottles before March 24th, 1886, and since that date about seven gross bottles.

These defendants further aver that the said preparation "Brown's Iron Tonic" as offered and sold by him, as well as by said B. & L. and since by said L., has been put up in cartons and bottles wholly differing in size, color and appearance from said complainant's bottles and with labels adapted and applied to the bottles wholly differing in size, color, appearance and details from complainant's labels, which are enclosed in wrappers wholly different from said cartons of "Brown's Iron Tonic," so that the public could not be misled or the complainant injured, which has always been very far from these defendants' purpose or object, and as well very far from said B. and L.'s purpose or object as these defendants believe; these defendants exhibit and file with this answer a bottle of "Brown's Iron Tonic" with its carton and label marked exhibit "C" and as well a label, wrapper and bottle of complainant's preparation, marked Exhibit "D," and pray that the court will consider them as part of this

answer.

These defendants further answering said bill of complaint, on information and belief, aver and charge the truth to be that early in 1882, the said complainant entered into a correspondence with said L. & B. with respect to said "Brown's Iron Tonic," and said L. & B. sent complainant a sample bottle of their Tonic, wrapper and label. Whereupon as a result of said correspondence and examination, said complainant in a letter to said L. & B. expressed themselves as satisfied that said "Brown's Iron Tonic" did not conflict with said "Brown's Iron Bitters," which letter was and is in words and figures as follows:

BALTIMORE, August 28th, 1882

MESS. C. J. LINCOLN & Co.,

Little Rock, Ark.

Gentlemen:-Inclosing your invoice thank you for your kind and satisfactory letter. We wish the Brown's Iron Tonic a success as upon examination we can not see where it can conflict with us except in the multiplicity of the Brown family.

Your fr❜ds,

Brown Chemical Co.

Said complainant has, as these defendants are informed and believe, ever since the date of said letter, with full knowledge of all the facts and after examination with respect to same, made no complaint of or objections to the putting up and sale of said "Brown's Iron Tonic" until just before this suit was brought, and so by its said letter and its long silence and acquiescence in the manufacture and sale of said "Brown's Iron Tonic" said complainant ought not in equity and good conscience, if for no other reason, to be granted in a court of equity any relief in the premises.

These defendants further answering said bill of complaint, deny that the complainant has suffered by the acts of these defendants, damage to the extent of Ten Thousand Dollars, or any other sum, or that said complainant has been done any wrong by these defendants or is entitled to any relief in the premises.

And these defendants deny all and all manner of unlawful combination and confederacy, wherewith they are by the said bill charged, without this, that any other matter, cause or thing in the complainant's said bill of complaint contained, material or necessary for these defendants to make answer unto, and not herein and hereby well and sufficiently answered, confessed, traversed and avoided or denied, is true, to the knowledge or belief of these defendants; all which matter and things these defendants are ready and willing to aver, maintain and prove, as this Honorable Court shall direct; and pray to be hence dismissed with their reasonable costs and charges in this behalf most wrongfully sustained.

B. A. & McK., Solicitors for Defendants.

SECTION I

FORMS OF INJUNCTION.

INTERLOCUTORY DECREE.

(Benkert v. Feder, 34 Fed. Rep. 534.)

In the United States Circuit Court, Northern District of
California, Ninth Judicial Circuit.

WILLIAM J. BENKERT, Complainant,

v8.

SAMUEL FEDER and AURELIA ROSENTHAL,
Executrix of the Last Will and Testa-
ment of MORRIS ROSENTHAL, Deceased,
Defendants.

No. 3507.

At a stated term, to-wit, the February term, 1888, of the Circuit Court of the United States of America of the ninth judicial circuit, in and for the northern district of California, held at the court room thereof, in the city and county of San Francisco, on Monday, the 1st day of June, A. D., 1888.

Present: The Honorable Lorenzo Sawyer, circuit judge.

This cause having come on to be heard upon the bill of complaint herein, the answer of the defendants, and replication of the complainant, the bill of revivor, the stipulation of the parties in regard thereto, and the proofs, documentary and written, taken and filed in said cause, and having been argued by counsel for the respective parties and submitted to the court for consideration and decision:

Now, therefore, on consideration thereof, it is ordered, adjudged and decreed, and the court doth hereby order, adjudge and decree, as follows, to-wit:

That the name of "C. Benkert & Son" has been a tradename and also a trademark upon boots and shoes for upwards of twenty-five years last past, and as such tradename and trademark is good and valid in law.

That the complainant, William J. Benkert, is, and ever since the year 1876 has been, the exclusive owner of said tradename and trademark, and during all said time, at the city of Philadelphia, in the state of Pennsylvania, has carried on the business, under the said tradename, of manufacturing and selling boots and shoes, and during all said time has stamped and printed, and used upon all the said boots and shoes so made and sold by him, the said words "C. Benkert & Son" as a trademark.

That the original defendants herein, Samuel Feder and Morris Rosenthal, made and sold by him, the said words "C. Benkert & Son" as a trademark. exclusive rights of the complainant under the same that is to say, by

manufacturing and selling within the ten years last past, and prior to the commencement of this suit, large quantities of boots and shoes upon each of which they have placed in plain, conspicuous, printed letters the name "C. F. Benkert & Son" in imitation of the name "C. Benkert & Son" as charged in the bill of complaint.

And it is further ordered, adjudged and decreed, that the complainant do have and recover of and from the defendants, Samuel Feder and Aurelia Rosenthal, executrix of the last will and testament of Morris Rosenthal, deceased, the profits, gains and advantages which the said defendants or either of them have received or made, or which have arisen or accrued to them, or either of them, from the infringement of the said tradename and said trademark of "C. Benkert & Son" by the making, using and selling, or the making, using or selling of said boots and shoes having placed thereon the name "C. F. Benkert & Son" or any other name in imitation of complainant's tradename and trademark of "C. Benkert & Son."

And it is further ordered, adjudged and decreed, that the said complainant do recover of the defendants his costs and charges and disbursements in this suit to be taxed.

And it is further ordered, adjudged and decreed, that it be referred to S. C. Houghton, Esq., the standing master in chancery of this court, residing in the city and county of San Francisco, northern district, and state of California, to ascertain and take, and state, and report to this court, an account of the number of pairs of boots and shoes manufactured and sold or manufactured or sold by the original defendants, Samuel Feder and Morris Rosenthal, or either of them, and also the gains, profits and advantages which the said original defendants or either of them, or the estate of said Morris Rosenthal, have received, or made, or which have arisen or accrued to them or either of them, or it, from infringing the said exclusive rights of the said complainant by the manufacturing and selling, or manufacturing or selling, of boots and shoes having stamped and placed upon them the infringing trademark in imitation of the trademark of "C. Benkert & Son."

And it is further ordered, adjudged and decreed, that the complainant on such accounting have the right to cause an examination of the defendants, Samuel Feder and Aurelia Rosenthal, and each of them, and their and each of their agents, servants, or workmen or other witnesses as may be necessary to take said accounting, and also the production of the books, vouchers and documents of which said defendants, Samuel Feder or Aurelia Rosenthal, and their and each of their attorneys, servants, agents and workmen may be possessed, and cause them to attend for such purposes before said master from time to time as such master shall direct. And it is further ordered, adjudged and decreed, that a perpetual injunction be issued in this case, against the said defendants, Samuel Feder and Aurelia Rosenthal, restraining and perpetually enjoining them and each of them, and their and each of their servants. agents, clerks and workmen, and all persons claiming or holding under or through them, from manufacturing or using or selling, or in any way disposing of, boots