That at present the complainant is advertising in the place of business of the United Cigar Stores Company, a corporation owned by the stockholders of the complainant, and elsewhere, the "Egyptian Deities," made by the complainant, with large, attractive, and conspicuous signs, as follows: "Nothing Like it was Ever Seen Before. DEITIES. 25¢. After Dinner Size Cigarettes." "DEITIES. After Dinner Size. Box of 10 That the complainant's name is not attached to nor made any part of the said last-mentioned advertisement, nor of the said cigarettes advertised as "Anargyros Cigarettes." The affidavit of George Anargyros further states that for years he and the individual S. Anargyros manufactured Turkish and Egyptian cigarettes in the city of New York, every one of which so manufactured was given a name and brand according to the blends of the tobacco used in its manufacture; that the cigarettes so manufactured were advertised, sold, and commonly known to the trade and the public as "Egyptian Deities"; that, in a similar manner, after the purchase by the American Tobacco Company as stated, the complainant made and sold to the public and trade cigarettes only by the brand as "Egyptian Deities," "Turkish Trophies," "Murad," "Mogul," or "Windsor Castle"; that prior to the alleged sale by S. Anargyros to the American Tobacco Company the latter required as a part of the consideration of the purchase price an agreement on the part of the said S. Anargyros never to trade in tobacco thereafter, and that on the completion of the said purchase, and in furtherance of its alleged purpose to secure a monopoly on the production and sale of cigarettes in the United States and elsewhere, the said American Tobacco Company closed the works and business of the said S. Anargyros and moved all property connected with the business formerly carried on by him to its factory, and there began the manufacture of cigarettes under the name of "S. Anargyros," under which name it manufactured, besides "Egyptian Deities," "Turkish Trophies," "Murad," "Mogul," and "Windsor Castle" cigarettes, although the said S. Anargyros never made nor sold any of the said brands except "Egyptian Deities"; that in furtherance of its alleged purpose, and to profit by the personal reputation and skill of the individual S. Anargyros, and to mislead the public into believing that the said individual was still making and superintending the making of its cigarettes, the said American Tobacco Company caused the complainant company to be incorporated, adopting the fac simile signature of S. Anargyros, and that the said American Tobacco Company thereupon began to manufacture, and ever since has manufactured, and still is manufacturing, cigarettes under the name "S. Anargyros," and accompanies each box of the said "Egyptian Deities" with a printed announcement, bearing the fac simile signature "S. Anargyros," in the following words: "To the patrons of the 'Egyptian Deities' Cigarettes: "You are hereby respectfully informed that every box of 'Genuine Egyptian Deities' bears the name 'S. Anargyros' printed in black letters diagonally across the top, and also contains this notice with the fac simile signature. Beware of cheap imitations. "Respectfully, S. Anargyros, New York. "N. B. All imitations will be prosecuted by law as heretofore." And that accompanying every box of "Mogul" cigarettes is the printed announcement, bearing the fac simile signature of S. Anargyros, in the following words: "Mogul Egyptian Cigarettes. A cigarette of exceptional merit, made of the choicest selections of superior Turkish tobacco skillfully blended. S. Anargyros, Manufacturer"--and that similar announcements accompany all cigarettes made by the complainant-all of which are intended to and do deceive the public and customers into believing that such cigarettes are made from tobacco selected by, and skillfully blended by, the individual S. Anargyros, whereas he is not, and never has been, connected with the complainant, and has not and is not selecting or blending the tobacco from which the said cigarettes are made, but that the said S. Anargyros left the United States more than 10 years ago, during which time he has been, and now is, residing in Greece. The affidavit of George Anargyros makes the same statements of fact that are set out in the answer, in respect to the acquiring by the American Tobacco Company of the competing businesses of the various corporations and individuals and companies named in the answer, and the operation of such businesses of the acquired companies, corporations, and individuals by the officers and stockholders of the American Tobacco Company, and for the purposes stated in the answer. The affidavit of T. Francis is to the effect that on the 7th of January, 1908, he visited one of the cigar stores of the United Cigar Stores Company in San Francisco, and saw in the Sutter street window and in the Fillmore street window thereof a large placard, in a conspicuous place, bearing the following inscription: "Nothing Like it was Ever Seen Before. DEITIES. 254. After Dinner Size -and that in said store there was also a placard bearing the following inscription: "DEITIES. After Dinner Size. The affidavits of W. W. Wieman and John S. Norris, filed on behalf of the defendant, put in issue the averments of the affidavit of R. A. Laherty filed in support of the bill. The affidavit of M. C. Aros put in issue the matters stated in the affidavit of E. C. Hull filed in support of the bill. The affidavit of Irving J. Mandell put in issue the matters stated in the affidavit of W. R. Elliott, Jr., filed in support of the bill. There were also filed on behalf of the defendant the affidavits of a large number of persons, many of whom were cigarette dealers in and about the city of San Francisco, and many of whom were purchasers of cigarettes, almost all of which affidavits are to the effect that the affiants never knew of any cigarettes known, or called' for, as "Anargyros Cigarettes," but that, on the contrary, so far as their knowledge and observation go, the complainant's cigarettes referred to in the bill, are and always have been known, sold and purchased as "Egyptian Deities," "Turkish Trophies," "Murad,” “Mogul," and "Windsor Castle" cigarettes, and that it is by similar trade names that all Egyptian and Turkish cigarettes are known, sold, and purchased. In reply to the defendant's showing upon the order to show cause, the complainant filed the affidavits of C. H. Schmidt, Thomas J. Devitt, Horace O'Rear, Joseph Michalitschke, Arthur Bachman, and Herbert L. Cook, to the effect that the cigarettes manufactured and sold by the complainant are generally known in the trade as “Anargyros cigarettes, or the products of S. Anargyros, complainant herein, manufacturer," and that the trade-name or trade-mark "S. Anargyros" has become and is recognized as one of the most valuable trade-names or trade-marks in the Turkish cigarette business. The complainant also offered in reply another affidavit of George W. Whitaker, in which that affiant stated, among other things, that shortly after the acquisition by the complainant of the business of S. Anargyros, the affiant was employed by the complainant as superintendent of its factory in New York, and that all of the cigarettes manufactured by the complainant during the time of his employment were made according to the blends originated by the said S. Anargyros, and by him communicated to complainant, and in exact conformity to the methods and practices formerly used by the said S. Anargyros; that the tobaccos used by the complainant in the manufacture of said cigarettes were the same in respect of grade, character, and quality as those formerly used by its predecessor S. Anargyros, and were selected by one Henry Strause. a recognized authority and expert in the selection and blending of cigarette tobacco, who was as experienced and proficient in such matters as the said assignor of the complainant, and that the said Strause continued to give his personal attention to the selection and blending of the tobaccos used by the complainant in the manufacture of the cigarettes for several years, and until succeeded by other competent and experienced experts. The last-mentioned affidavit of Whitaker, after referring to certain matters contained in the aforesaid affidavit of George Anargyros, further avers that the complainant invariably stated in its advertisements that the particular brands of cigarettes manufactured by it were manufactured by S. Anargyros, "with this exception, to-wit, that a certain brand of cigarettes manufactured by complainant, and known and designated as 'Murad Cigarettes,' were oc-, casionally advertised under the name 'Allan Ramsay,' that said Allan Ramsay was a distinguished and recognized expert in the selection and blending of cigarette tobaccos, and was the inventor and originator of the blend employed in the manufacture of said last-named brand of cigarettes, and his name for this reason has appeared, and now appears, on each box or package containing said brand of cigarettes, but that the name of complainant appears on each of the same as the manufacturer of said brand of cigarettes, and the name S. Anargyros is, and always has been, imprinted in each cigarette of this brand manufactured by complainant; that the cigarettes manufactured by the complainant are generally known in the trade and among a large percentage of the purchasers thereof as Anargyros cigarettes or the products of S. Anargyros' manufacture, which said trade-mark or trade-name 'S. Anargyros' has become and is recognized as one of the, if not the, most valuable trade-mark or trade-name in the Turkish cigarette business." Referring to the statement made in the affidavit of George Anargyros respecting the advertisement of the "Egyptian Deities" placed in the windows of the United Cigar Stores Company in San Francisco, the afliant Whitaker, in his reply affidavit, "avers the facts to be that said signs above referred to were prepared and exhibited as aforesaid without knowledge or consent, and that complainant in no manner participated in or authorized the preparation or use of said signs, and in this behalf this affiant says that certain signs of a similar character were prepared and exhibited under the direction and authority of complainant, for the purpose of advertising said brand of Egyp‐ tian Deities' cigarettes, which were in the form, words and figures following, to wit: Lent & Humphrey and McElroy & Stetson, for appellant. ROSS, Circuit Judge (after stating the facts as above). Looking at the case as made by the pleadings and affidavits, we think the most that can be fairly claimed for the complainant is that it is a doubtful one. Under such circumstances the preliminary injunction should have been denied, and the temporary restraining order vacated. There was not even an attempt made on behalf of the complainant to show the insolvency of the defendant, but, on the contrary, an affirmative showing on its part of its ability to respond in damages to the complainant in the event of its maintaining the suit. It is, as said by the Supreme Court of Georgia in Foster v. Blood Balm Co., 77 Ga. 216, 3 S. E. 286, "a grave matter to petrify, in an instant, a living business by a mere interlocutory order." The well-established rule in equity is that a preliminary injunction should not be granted in a doubtful case. One of the uncontradicted statements of fact contained in the affidavit of George Anargyros is to the effect that the individual S. Anargyros never made or sold any cigarettes but "Egyptian Deities," and never made any of those after his sale to the complainant; that all the other cigarettes made and sold under the other brands sued upon originated with and were made by the complainant corporation, and that all of them were sold by it to the public as the product of the individual S. Anargyros. "Any one has an unquestionable right." said the Supreme Court in Medicine Co. v. Wood, 108 U. S. 222, 2 Sup. Ct. 439 (27 L. Ed. 706), "to affix to articles manufactured by him a mark or device not previously appropriated, to distinguish them. from articles of the same general character manufactured or sold by others. He may thus notify the public of the origin of the article, and secure to himself the benefits of any particular excellence it may possess from the manner or materials of its manufacture. His trademark is both a sign of the quality of the article and an assurance to the public that it is the genuine product of his manufacture. It thus often becomes of great value to him, and in its exclusive use the court will protect him against attempts of others to pass off their products upon the public as his. This protection is afforded not only as a matter of justice to him, but to prevent imposition upon the public. Manufacturing Co. v. Trainer, 101 U. S. 51, 25 L. Ed. 993. The object of the trade-mark being to indicate, by its meaning or association, the origin or ownership of the article, it would seem that when a right to its use is transferred to others, either by act of the original manufacturer or by operation of law, the fact of transfer should be stated in connection with its use; otherwise, a deception would be practiced upon the public, and the very fraud accomplished, to prevent which courts of equity interfere to protect the exclusive right of the original manufacturer. If one affix to goods of his own manufacture signs or marks which indicate that they are the manufacture of others, he is deceiving the public, and attempting to pass upon them goods as possessing a quality and merit which another's skill has given to sim 167 F.-49 |