Coane v. Netter

188 F. 681, 1911 U.S. App. LEXIS 5214

Opinion

J. B. McPHKRSON, District Judge.

[1] So far, as concerns the charge of unfair competition by the use of the label complained of, I do not see that the plaintiff needs protection at present. The defendant has discontinued the use of the label, and I accept his statement that he does not intend to use it again; hut, if he does so use it, the plaintiff has leave to renew this motion. The jurisdiction of the Circuit Court to entertain the charge of unfair competition — both parties being citizens of Pennsylvania — need not now be determined.

[ 2 | As to the trade-mark, “No. 6,” I am unwilling to decide its validity now. No harm, I think, can be done by deferring the decision until final hearing; but I think the defendant should enter security to respond in damages, if it should be determined hereafter that- the trade-mark is valid and that he has been infringing, before final decree.

It is therefore ordered that the defendant enter security within five days in $1,500. with condition as just stated. If this be done, the clerk will enter an order that the preliminary injunction is refused. If the security be not entered, a preliminary injunction will be granted, restraining the use of the trade-mark “No. 6.”

I may add that one of the judges of the Circuit Court will hear this case at an early date in the fall after issue has been joined; the time to be fixed upon' application.