ciently to discover precisely what is before the court. As was said before, the excerpts from the civil service regulations are so printed that it is not possible to determine the dates of the promulgation of some of the quoted sections. By written stipulation, however, it is agreed that the amendment which made deputy collectors (and others) irremovable except for just cause, upon written charges, was adopted on July 27, 1897. The transcript of account shows that the loss entailed by the embezzlement of Cabell had already accrued, for Lyman was found indebted to the United States in the amount of $8,380.68 on the accounting of June 17, 1897, and between that date and final accounting-October 21, 1897-nothing is charged against him, the only entry on either side being a credit to him for $147.75 cash deposited with the Treasury Department. The judgment is affirmed.

ROYAL BAKING POWDER CO. v. ROYAL.

(Circuit Court of Appeals, Sixth Circuit. March 16, 1903.)

No. 1,131.

1. UNFAIR COMPETITION-USE OF NAME-LIMITS OF RIGHT.

A person has the right honestly to use his own name in connection with his business, even though he may thereby interfere with or injure the business of another, but a court of equity will restrain him from intentionally so using it as to deceive the public-or enable others to do so-into buying his goods as those of another, and will require him, when entering a business in which another is engaged, and using the name, to use every means reasonably possible to distinguish his own business and goods from those of his competitor.

2. SAME-MANNER OF USE-PURPOSE TO DECEIVE PURCHASERS.

Complainant had for many years been making and selling a baking powder under the name "Royal," arbitrarily used to designate origin, and by which name its product was called for by purchasers, and became distinctively known to the public, rather than by the appearance of the packages. Defendant, whose surname was "Royal," commenced the manufacture and sale of a baking powder which he put up in cans similar in size and shape to complainant's, and having a label similar in color and general appearance, bearing his name in large letters. He also advertised the same as the "New Royal." Having been enjoined from such advertising and from imitating complainant's labels, he changed the color of the label from red to blue, on which was printed the name "Maxim Baking Powder," but still having his name in prominent letters on the front of the cans. There was evidence that his baking powder had in some cases been sold as that of complainant, and that retailers had given it to customers calling for Royal Baking Powder, without explaining that it was not the well-known product of complainant. Held, that all the facts showed a purpose on the part of defendant to so use his name as to sell his product as that of complainant, and that, while he would not be enjoined from using his name, he would be restrained from displaying it on the front label of his cans.

1. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.

122 F.-22

Appeal from the Circuit Court of the United States for the Western District of Kentucky.

This bill was filed to restrain the defendant, R. T. Royal, from using the name "Royal" in connection with a baking powder made by him, upon the ground that the complainant has an exclusive right to designate the baking powder made by it by that trade-name. Upon the bill, answer, exhibits, affidavits, and counter affidavits a temporary injunction was granted against the particular label and forms of advertising shown to have been used by defendant. That order was in these words: "And on the 19th day of February, 1900, this cause coming on to be heard upon the motion of the complainant for a temporary restraining order and injunction, and after hearing counsel for the parties, and the court being advised, it is now ordered that until further orders of this court the defendant, R. T. Royal, his clerks, attorneys, servants, and workmen, and all in privity with him, be, and they are hereby, restrained and enjoined from making any use whatever of circulars like the circular filed with the bill, and marked 'Defendant's Circular'; also from making any use whatever of the circulars like the circular produced with the bill and marked 'R. T. Royal Co. Circular,' and consisting in part of the words 'R. T. Royal Co.'; also from making any use whatever of the words "The New Royal' in connection with baking powder caused to be by the defendant prepared and compounded; also from making use of the labels like, or substantially like, the label produced with the bill, marked 'Defendant's Label'; also from causing to be published, in any form or manner whatsoever, advertisements like, or substantially like, the advertisements produced with the bill, marked 'Defendant's Advertisement A' and 'Defendant's Advertisement B'; also from in any form or manner whatsoever making use of the word 'Royal' as the name or designation of a baking powder not manufactured by complainant; also from making any inequitable or misleading use whatever of the word 'Royal' in connection with the manufacture or sale of baking powder; also from doing any act or thing whatsoever to cause baking powder not manufactured by complainant to be offered or sold as Royal Baking Powder; also from in any form or manner whatsoever infringing or trespassing upon complainant's rights as the owner, manufacturer, and vendor of a brand of baking powder known as 'Royal Baking Powder.' But nothing in this order shall prevent the defendant from using his own name upon other labels or other advertisements relating to baking powder, where it shall be clearly and unmistakably specified and clearly and unmistakably shown upon such other labels and advertisements that the baking powder to which they relate is made by the defendant, and is his product, as distinguished from the product of the complainant, and where such other labels and advertisements shall otherwise conform to the terms of this order." Defendant, availing himself of the proviso contained in the restraining order, continued the manufacture and sale of baking powder, using upon his cans a new label, which he claimed to be authorized by the terms of the injunction. To restrain this new label, complainant filed a supplemental bill, stating the facts. This was answered, and all intentional fraud denied. Proof was taken, and upon a final hearing the court made final the injunction theretofore granted, in the very terms of that decree, but dismissed the complainant's supplemental bill, and denied any relief against the product as sold and advertised under defendant's new label. The complainant was awarded an accounting, but failed to establish any damages. From the final decree the complainant has appealed, and seeks to extend the scope of the decree so as to prevent the defendant from using the name "Royal" in connection with baking powder altogether, or, in default of a broad injunction, to prevent the use of the word "Royal" upon the front label of the cans in which his powder is sold.

The complainant, the Royal Baking Powder Company, is a corporation, which for many years has made and sold a brand of baking powder under the trade-name or designation of "Royal Baking Powder." This baking powder is put up in tin cans conspicuously labeled "Royal Baking Powder." This label is shown on following page:

This label is in colors; the front or more conspicuous half being upon a red background, the lettering being in white; the other half in yellow, the lettering black. The defendant, R. T. Royal, was for some years engaged in the business of making and dealing in bicycles and bicycle supplies and sundries in the city of Louisville, Ky. Some time prior to the filing of this bill he added the business of a manufacturer of baking powder, which he put up in cans like those of the complainant. The label used before the restraining order is shown on opposite page.

The background of this label was a shade of red, with lettering in white. The shade of red differed slightly from the shade employed by complainant. The back of the label was in white, with black lettering.

After the restraining order the defendant adopted a new label, which is shown on page 342.

The background of this label in front is blue, the letters white. The background of the other side of the label encircling the can is white, and the lettering black.

Until restrained, the defendant advertised his product in circulars and letters, reproducing the first label on the front of his cans. Some of these cir culars or advertisements were prefaced in bold type with the words "Ask for the New Royal." In addition to this, some of his circulars were signed, "R. T. Royal Co."

There was also evidence that the new or blue label shown above had actually caused, through the conspicuousness and significance of the word "Royal," some sale of the defendant's manufacture as and for the product of the complainant company. There is also evidence that the product of defendant was sold to the retailer at a less price than that of the complainant, and some evidence of sales being made by retailers of defendant's cans when Royal Baking Powder was called for, without explaining that it was not the wellknown product made only by the complainant company.

After the decree, and pending the accounting, the defendant wrote the letter set out below, which was put in evidence on the accounting for the purpose of establishing the continued dishonest purpose of defendant in the use of his name in connection with baker powder:

"(Letter of R. T. Royal to Royal Baking Powder Company.)
"Royal & Co., Promoters,

"58 Courier-Journal Building.

"Louisville, Ky., April 15, 1901. "Gentlemen: Presuming that you will abide by the decision of the United States Court in this last suit of yours against me, I think it best, if possible, to avoid any further friction of this kind. I am arranging to begin manufacturing my powder again, and to be frank, before getting too far into the business, will say that I will consider any proposition toward your buying me out. I have a company already to close with me here, and have several offers from N. Y. to come there and manufacture my goods. If you wish to keep me out of the buss. enough to pay me five thousand dollars, I would accept this and nothing less. If not, I will proceed with my negotiations to complete my organization and place to begin operations. I merely mention this at this time. So that if you anticipate any further fight or attempt to squeeze me out, which would be the cheaper and better plan, to keep up your efforts to suppress me or buy me out or compete for the business in a legitimate business basis. If you wish to consider this, kindly let me hear from you at once, as I will postpone further negotiations until I have had time to hear from you. You may appeal, which will, of course, be objectionable, but my people are satisfied to go ahead in my present position. R. T. Royal."

"Very respectfully,

Archibald Cox, for appellant.

Before LURTON, DAY and SEVERENS, Circuit Judges.