150 it is entitlciq,o. You are nofaiIthoriz'ed the any you see some, rfasonfQr ,dQing"so. If there be a conflict of testimony, it is [o,ryou ,to say ",hich is, true, and which is false., In arriving to the, credibility or reliability of witnesses,', you ,may take into consideration the, linow:ledge they have of the'matters,about, whiclrtheytestify, arid any, jnterest they may have in theres'l;llt of your verdict. The'rehasbeen introduced in regard to some homestead. The court has permitted that simply to ,show the if it But you are only aboUt' taken fr0fn these fOUf homesteads, none other. If you find the defenoants guilty, I understand that the value of the timber is not a debatable, question. It is admitted that so JP,any thousand feet of timber' were taken from these homesteads, at 50 cents per thousand. Bunt is atlast for you to how much it :was." You are the judges of that, also, from the testimony in the case. ' Theeourt calls your attention, agfiin to the question of.theland being put in cultivation. , Cultivation lp.eans cultivation.. Making a stock farm or, stock range, of land is not' putting it into ctiltivMion. Fitting it forgra,zing, ,cutting the trees for the purpose of putting it' in condition forgrazingpurllOs¢s, is not putting it in cultivati<JJ;l. That is not what the law contemplates ,wl;len it says cultivation,. It means plowing and preparing it for crops, or the,raising of something that grows from' the ground, besides' ' You are to' take' this case, gentlemen,and decide it according to the evidence tbathas been adduced hereby the witnesses, weighhig all the circumstances, weighing all the evidence, and taking the as now given you by the court. You will decide it without prejudice or pasSion, fairly Rl\d in accordance With the law and, the evidence. , If youfiJildboth the defendants guilty, you will say so. If y<;tu find one' hot and the other guilty, you willsllY so.. If you find both not guilty, you will say so by your verdict. You will retire, and consider your ver' dict.
There was a verdict of guilty.

KROPPF et aI. v. FURST et aI. (Circuit Court, D. New Jersey.
1, UNFAIR COMPETITION GOODS.

May 15, 1899.)

SIMILARITY IN DRESSING OF "

Whether the Ill!lnner in which a defendant dresses his goods for the Illarketrenders them so similar in appearance to ,those' of complainant as to deceive intending: purchasers, and warrant a coltrt in interfering by injunction to prevent unfair comJ;ietition, is a question to be decided on the in each case.

RIGHT TO INJUNCTION "

2. SAME-TOILET SOAPS-COMPARISON OF BARS.

were selling in the market a toilet soap put up in bars similar in size and shape to thoseof l complitinants' sOap, but different In 00101'. Thebilrs of both kinds of soap had upon one face the words a base de Glycerine," but 011 the reverse face of complainants' was the name "La Parisienne," while on defendants' was the name HRose de
U

KROPPF V. FURST.

15t

France." Held, that in view of the distinctive names of the two articles, which would seem more likely to guide purchasers than the size and shape of the bars, and in the absence of proof that anyone had actually been deceived, a court was not justified in· granting a preliminary injunction against defendants.

This is a suit inequity,to enjoin alleged unfair competition in trade. Heard on motion for preliminary injunction. Walter D. Edmonds, for the motion. Esek Cowen, opposed. KIRKPATRICK, District Judge. The bill of complaint in this cause alleges that the complainants have for many years been engaged in the successful manufacture and sale of a glycerine soap, which they have distinguished from other glycerine soaps on the market by the arbitrary designation of "La Parisienne," stamped on one side thereof, and the terms "a base de Glycerine" upon the other; that the said marks were combined with cakes of soap of an elongated bar shape, being parallelopipeds 5 inches long, 1 inches wide, and inches thick, divided equally in the middle by an indented line. The bill charges that the defendantB are selling a soap similar in shape, size, and color, bearing on one side of the major faces thereof the term "a base de Glycerine" and upon the other the designation ''Rose de France." The charge is that by the sale thereof the defendants unfairly compete in trade with the complainants, deceive intending purchasers, and induce them to buy an inferior article manufactured by other parties as the soap of the complainants. The prayer of the bill is for an injunction restraining the defendants from selling any glycerine soap of the said parallelopiped shaped bar, in connection with the markings adopted by the complainants, or any colorable imitation thereof, not manufactured by the complainants. It is not contended that the complainants have any trade-mark rights either in the shape of the bar, or in the name, or in the marks, or in the color whieh they have adopted to designate their soap. Relief is sought solely upon the ground that the complainants having been the first to appropriate this combination of. distinctive marks, and having acquired an extensive trade in the article so designated, they are entitled to be protected against those who imitate them for the purpose of unfairly inducing the public to purchase goods inferior in quality under the belief' that they are the same which they have been accustomed to get from the complainants. Such contention seems to me to come within the rule laid down in Coats v. Thread Co., 149 U. S. 562, 18 Sup. Ct. 966, where the court said, ''The defendants have no right to dress their goods up in such manner as to deceive intending purchasers, and induce them to believe that they are buying those of plaintiff." Recognizing the principle, I am Of the opinion that the similarity :which will warrant the interference of the court must be determined by the circumstances of each case. An inspection of the exhibitB produced here shows the soap sold by the defendants to be like that of the complainants in size and shape, and that it bears the mark "a base de Glycerine." . It, however, diffel'l3 in color, and has for a distinctive name "Rose de France," instead of "La Parisienne." It would seem

152

94FEDERAt. liElPORTER.

that, to the intending pi1rchasers, the distinguishing mark of complainants' soap would be rather the. distinctive naJ;lle, than the size, color, or shape. It would be ilJlp<Jssible to confound "Rose de France" with ''La Parisienne," though, as was suggested on the argument, "La Parisienne" might also become "Rose de France." It has not been made to appear thatatly one ,has in fact been deceived or induced by similarity,to buy the soap sold by defendants for that of the complainants. The testimony of Goldman does not go so far. He asked for La Parisienne soap. The saleswoman inquired if it were glycerine soap, and, upon receiving an affirmative reply, produced ia bar of glycerinesoop, saying:
"This is the same as La Parisienne, but it h.as 'Ro,se de France' on it. Sometimes they put those words on it, ,and .sometimes 'La Parisieune'; but it is the same soap, made bY the same firm. 'WiIlit do?"

Goldman answered "Yes," and took away the soap, to be marked an exhibit in the cause. It does not appear that Goldman was deceived. He does not say that he was induced to buy defendants' soap because it was like that of complainants in name, shape, size, or color, or any other similarity. So far as his deposition is any guide to, his motive, the purchase was made in despite of the difference of name to which his attention was specifically directed, and solely upon the unauthorized representation of a saleswoman, anxious to make sale to a customer, that the Rose de France and La Parisienne were manufactured by the same firm. This assertion might have been made with regard to any glycerine soap having not only a totally dissimilar name, but in every respect of forin; color, and size differing from that of complainants. The facts presented in this case do not fmnish a sufficient foundation upon which to base a right to a preliminary injllnetion restraining defendants from making sale of soap such, as is described, upon the ground of deceit, or that by so doing they unfairly compete in trade with the complainants. The motion will be denied.

COLLIERY ENGINEER CO. v. UNITED CORRESPONDENCE SCHOOLS CO. et at (Circuit Court, S. D. New York. April 4, 1800.)

1.

COPYRIGHT-INFlUNGEMEN'r-LI'l'ER,\.RY!'ltODUOTION OF EMPI,OYE.

The literary product of a salaried employe, the result of compilations made In the course of' his employment, becomes the property of the employer, who may copyright it, and when so copyrighted the employe has no, more right than a stranger to copy or reproduce it; hut he is not debarred from making a new compilation from the same original sources, nor, in so doing, from ,!lIaking use of the experience and information gained In his employment. . '

2.

SAME-SUI't .'OR PJR,\.CY":':')?RET,IMIN,\.RY INJUNOTION.

A preliminary Injunction will not he granted on ex parte affidavits in a 8uitfor the of a copyright pUhIlcation, where the fact of piracy is n<it clear, but the question will be left. for determination on a full hearing. ' .

Suit for infringement of copyright. junction.

On motion for preliminal'y in-