purchase, a new pair would be supplied without cost to the purchaser. This method of guaranteeing hosiery against wear was, as far as appeared, original with complainant and its predecessor, and the form of guaranty used was distinctive. Complainant also adopted as a container for six pairs of hose a yellow box bearing the name "Holeproof," the trade-mark device, and printed matter and directions in red and black type arranged in a characteristic manner. Attached to each pair of socks was a tag or ticket bearing certain printed advertising matter in red and black, the name "Holeproof,' and the trade-mark device. Around each half a dozen pair of socks or stockings was placed a band showing the word "Holeproof" and the trademark device in red and black, and placed in each box was an advertising slip and one of the guaranty coupons above described. Complainant's product has been extensively advertised, and it appeared that it was asked for and referred to on the market as "Holeproof Socks" and "Holeproof Hosiery." and by reason of the guaranty to some extent as "Guaranteed Hosiery" and "Guaranteed Socks." It also appeared that complainant's product was identified by the appearance of the guaranty coupons or tickets and the general get-up of the package, as well as by the names above given. Defendant. Wallach Bros., was a New York corporation operating a number of retail haberdashery shops in New York City. Shortly before the institution of this suit defendant began dealing in hosiery manufactured by the Knotair Hosiery Company and sold under the name "Knotair Guaranteed Hose," and put up in yellow boxes containing half a dozen pairs and bearing devices and printed matter like complainant's, printed in red and black and with bands, tags, slips, and guaranty coupons or tickets closely resembling those of complainant in color, arrangement, and appearance. It was also shown that on seyeral occasions at defendants' stores persons asking for "Holeproof Hosiery" had been furnished with "Knotair Guaranteed Hose," without explanation. King & Booth (Reed & Rogers, of counsel), for complainant. Gardenhire & Jetmore (Mr. Jetmore, of counsel), for defendant. HOUGH, District Judge. The motion, as shown by the moving papers, is to obtain pendente lite an injunction "in manner and form as set forth in the bill of complaint." An analysis of the prayer for relief in the bill, taken in conjunction with the answer and the body of the bill and the affidavits submitted on this motion, leads me to think that the relief demanded may be fairly stated under the following heads: Complainant wishes to prevent defendant (1) from using in connection with hosiery the word "Holeproof," or any like word; (2) from using in like connection the words "guarantee," "guaranteed hose," or "guaranteed hosiery," or words similar thereto; (3) from employing in like connection boxes, labels, guaranty tickets, bands, or devices identical with or deceptively similar to those referred to in the bill and produced on this hearing; and (4) from selling or offering for sale as guaranteed hosiery, or "Holeproof" hosiery, or otherwise as a product of the complainant any product not the complain ant's. First. The first branch of the prayer for relief raises the question whether "Knotair" is a like word to "Holeproof," or so similar thereto as to be likely to deceive the average purchaser of the product to which it is applied; i. e., hosiery for men and women of no very high grade. By this I mean hosiery which may reasonably expect purchasers from among persons in moderate circumstances. This is to be regarded as a question of trade-mark, and the point should not be obscured by simultaneously considering suggestions of unfair competition. Laying aside the question (not raised at bar) whether "Holeproof" is not a descriptive word, and one descriptive of qualities which no pair of wearable stockings can ever really possess, and whether the word "Knotair" is not open to the same criticism, the question is this: If there were absolutely no similarity in the dressing, advertising, wrapping, and method of selling these two brands of hosiery, except the use of the trade-mark "Holeproof" by one proprietor, and of the trade-mark "Knotair" by the other, could infringe ment be declared? To me it is quite plain that there would be no infringement, and the matter is assuredly not so clear as to warrant the issuance of a preliminary injunction under this branch of the relief prayer. Second. As interpreted in argument, the second item of relief prayed for means that defendant should be restrained from selling "Knotair" hose as guaranteed hose or guaranteed hosiery. Since it is admitted that as a business method the guaranteeing of hosiery or any other article of merchandise is open to the world, this line of argument suggests the query whether any development of the business of selling hosiery with a guaranty can so effectually appropriate to one manufacturer or merchant the right to call his product "guaranteed hosiery" as to prevent other persons from doing the same, provided they do nothing else objectionable. But this inquiry need not be pursued, because in my opinion the complainant has not shown that it has so completely appropriated and made its own the business of selling guaranteed hose as to render the use of that phrase (without more) suggestive to the general public of their "Holeproof" product. Assuming the answer to the legal question to be in favor of complainant, the evidence is not strong enough to warrant this relief pendente lite. Third and Fourth. In my opinion the evidence is overwhelming that in the packing, labeling, dressing, use of colors, and arrangement of type defendant has used and is using unfairly competitive methods. The weight of evidence is also in favor of complainant in asserting that defendant, through its salesmen, has palmed off its goods upon customers as the goods of complainant. The injunction as prayed for will issue, except that defendant will not be enjoined from using the word "Knotair," as applied to hosiery, provided such use be not accompanied by the deceptive competitive method above indicated, and excepting, also, that defendant will not be enjoined from advertising, naming, or describing "Knotair" hosiery as guaranteed hose or hose sold with a guaranty, provided that such expression of warranty be not contained, printed, set forth, or advertised in words, letters, or figures calculated to induce belief that defendant's guaranteed "Knotair" hosiery is complainant's guaranteed "Holeproof" hosiery. The injunction order will be settled on a notice of four days. HOLEPROOF HOSIERY CO. v. FITTS et al. (Circuit Court, D. New Jersey. November 18, 1908.) TRADE-MARKS AND TRADE-NAMES (§ 70*)—UNFAIR COMPETITION-IMITATION OF NAME AND DRESS. Complainant, the Holeproof Hosiery Company, was a manufacturer of stockings and socks sold and extensively advertised under the name of "Holeproof Hosiery." They were put up in boxes containing six pairs each, in each of which was a card on which was a printed guaranty against holes resulting from wear for a period of six months, with a coupon for each pair. After such business had been conducted for a number of years and had become profitable, defendants established a similar one under the name of "No-Hole Hosiery Company," putting up their product in boxes similar in size and color to complainants, with the name of the company thereon, although having different printed matter, and each containing a guaranty card similar in general style and appearance and having thereon a verbatim copy of complainant's guaranty. Held, that such simulation of the name and the guaranty card was evidently with design, and constituted unfair competition, which, it being shown that it in fact deceived purchasers, entitled complainant to a preliminary injunction. [Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. 81; Dec. Dig. § 70.* Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.] In Equity. McDermott & Enright (Frank F. Reed and Edward S. Rogers, of counsel), for complainant. Vreeland, King, Wilson & Lindabury, for defendants. CROSS, District Judge. The complainant by its bill of complaint charges the defendants with infringement of its trade-mark and with unfair competition in trade. The matter comes before the court on an application for a preliminary injunction, upon bill and affidavits and answering affidavits. The proofs do not satisfactorily show infringement of the trade-mark, but do show unfair competition in trade with sufficient clearness to warrant at least a portion of the relief prayed for. The defendants, or one of them, the other actively participating, are transacting the same kind of business as the complainant under the name and style of the "No-Hole Hosiery Company." It appears that the complainant and its immediate predecessor in business have for the past 10 years been engaged in selling socks and stockings known as "Holeproof Hosiery." Its trade therein has been largely advertised and a successful business established. One of the features of its trade consists in guaranteeing its product against holes resulting from wear for a period of six months. Each package which it puts out comprises six pairs of socks or stockings, and inclosed in the package is a guaranty of the character above stated. The *For other cases see same topic & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes card on which the guaranty is printed is of a size and shape to very nearly fit the interior of the pasteboard box in which the stockings are put upon the market. There is more or less printed matter at the beginning and end of the card expressing the terms of the guaranty, and intervening this printed matter are six numbered coupons, designed to cover, respectively, the six pairs of stockings which accompany the guaranty. The defendants use a guaranty card which in general style and appearance is the same as the complainant's, while its language is a verbatim copy. No such imitation could happen by accident. It was manifestly designed. Furthermore, the complainant's product and the defendants', for the most part, is put upon the market in a yellow pasteboard box of the same general size and appearance, although the printed matter upon the two boxes is not the same. The defendants' box, nevertheless, does advertise the contents as "no-hole hosiery," or as made by the No-Hole Hosiery Company. As already stated, the boxes, although of the same color, are not identical, although similar, but, taken in connection with the words "no-hole" and the guaranty card, are susceptible of being confused, in the public mind, with the packages and product of the complainant. That this is so is not open to argument at this time, since the complainant's affidavits show specific instances of such confusion. It is apparent that, while the package and guaranty card as accessories. aid in producing this confusion, it is the use of the hyphenated word "no-hole" which is the culminating and controlling factor therein. Holeproof hosiery and no-hole hosiery convey to the casual purchaser the same idea, or at least leave upon his mind the same general impression. The defendants have been in business but a few months, and the affidavits permit the inference that they had the complainant's name, package, and guaranty card before them when they conceived their own. If they had intended to carry on a bona fide business, they certainly would not in so many important respects have copied or closely imitated the complainant's name and methods. I am unwilling, however, to enjoin the defendants, at this time, from the use of the word "guarantee" or "guaranteed," or from the use of a yellow box in connection with the packing and sale of their hosiery, but nevertheless unhesitatingly reach the conclusion that the defendants upon this application should be enjoined against the use of the words "no-hole," both in their business name and style, and also in connection with the advertising, packing, and sale of their product. A multitude of cases in which more remote approximations have been enjoined might be cited, were it at all necessary. The principles upon which the complainant herein is entitled to relief are clearly laid down in Fuller v. Huff et al., 104 Fed. 141, 43 C. C. A. 453, 51 L. R. A. 332, and cases therein cited. They should also be enjoined from the use of a guaranty card like or similar to that of the complainant. An injunction upon these lines imposes no undeserved hardship upon the defendants, since they had no right to trench, as they have done, upon the established rights and good will of the complainant, and under the guise of artifice and simulation acquire in a |