"Arthur. A. Waterman & Co.," and followed it by the words, "not connected with the L. E. Waterman Co."

[Ed. Note. For other cases, see Trade-Marks and Trade Names, Cent. Dig. § 82; Dec. Dig. § 71.*

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

Appeal from the District Court of the United States for the Southern District of New York.

Suit in equity by the L. E. Waterman Company against the Modern Pen Company. Decree for complainant, and defendant appeals. Modified and affirmed.

For opinion below, see 193 Fed. 242.

Cross-appeals in favor of the complainant in a suit charging infringement of trade-marks and unfair competition. This case has been before this court before upon an appeal from an order granting a preliminary injunction; the opinion of this court being reported in 183 Fed. 118, 105 C. C. A. 408.

Alexander S. Bacon, for appellant.
Samuel S. Watson, for appellee.

Before WARD and NOYES, Circuit Judges, and HOLT, District Judge.

PER CURIAM. In our opinion the testimony upon the final hearing was not substantially different from that presented by the affidavits which were before us in the former record. The most important additions to that record consist of the Italian decree and the testimony concerning the Lockwood transactions, but we agree with the conclusions of the district judge that those items do not materially change the situation.

The case before us, then, is practically the case which came up before, and we are not convinced that our conclusions reached at that time were erroneous, or that the final relief granted should vary from the preliminary relief which we then regarded as proper, except in one particular.

The record clearly demonstrates the confusion arising from the use by the defendant of the name “A. A. Waterman & Co." in the pen business in view of its similarity to the name of the complainant. The defendant has the right to use the name, but the complainant and the public have the right to insist that provision be made for minimizing the confusion arising from such use so far as practicable. We think that the suffix required in the decree appealed from tends to characterize the defendant's product as inferior to that of the complainant and is unduly prejudicial to it. The defendant should, however, distinguish its goods from those of the complainant, and, in our opinion, should do so by employing after the name “A. A. Waterman & Co." or A. A. Waterman," the words "not connected with the L. E. Waterman Co." This notice should be sufficient to *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

put the public upon inquiry. We think it all that the facts of the case require, but it is the very least they do require.

The decree appealed from will be modified by striking out the words "not connected with the original 'Waterman' pens," and inserting in lieu thereof the words, "not connected with the L. E. Waterman Co."

The costs of this court and the costs of the lower court arising after our decision upon the former appeal will be divided equally between the parties. Costs of the lower court accruing before that time are awarded to the complainant.

With the modifications stated the decree of the District Court is affirmed.

On Petition For Rehearing.

In addition to the modifications of the decree appealed from stated in the opinion, the order for the mandate may require the defendant to use the name “Arthur A. Waterman & Co." instead of “A. A. Waterman & Co."

If, as stated in its petition, complainant feels that the required suffix "will only increase the existing wide-spread confusion and substitution," the order for the mandate will, at its option, contain no provision for a suffix.

The petition for a rehearing is denied.

L. E. WATERMAN CO. v. MODERN PEN CO.

(Circuit Court of Appeals, Second Circuit. June 7, 1912.)

No. 208.

Appeal from the District Court of the United States for the Southern District of New York.

Action by the L. E. Waterman Company against the Modern Pen Company. From the decree complainant appealed. On motion for amendment of mandate (197 Fed. 534). Motion granted in part. Samuel S. Watson, for appellant.

Alexander S. Bacon, for appellee.

Before WARD and NOYES, Circuit Judges, and HOLT, District Judge.

PER CURIAM. It is equitable that the penholders which the defendant has in good faith marked in accordance with Judge Hand's decree with the suffix "not connected with the original Waterman 'pen,' or in accordance with the opinion of this court before the use of the name "Arthur" was required, should be permitted to be sold and the order for the mandate may so provide.

The application for further changes in the order is denied.

PEDERSEN v. DELAWARE, L. & W. R. CO.

(Circuit Court of Appeals, Third Circuit. May 18, 1912.)

No. 1,479.

1. COMMERCE (§ 27*)—EMPLOYER'S LIABILITY ACT-CONSTRUCTION AND SCOPE. The federal Employer's Liability Act April 22, 1908, c. 149, § 1, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), applies only to injuries suffered by employés while the carrier is engaged in an act of interstate transportation and to such employés only as at the time of injury have a real and substantial connection with such act of interstate transportation.

[Ed. Note. For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*] 2. COMMERCE (§ 27*)-EMPLOYER'S LIABILITY ACT-INTERSTATE COMMERCE. Where an iron worker, employed on a railroad bridge on which an additional track was being placed for use by the railroad company in both interstate and intrastate business, was struck and injured by a local intrastate train on the old track where he had gone while after some rivets, the company was not engaged in interstate commerce, nor was the employé employed in such commerce at the time of the injury within the meaning of Employer's Liability Act of April 22, 1908, c. 149, . § 1, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), and an action to recover for the injury cannot be maintained thereunder.

[Ed. Note. For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

Action at law by Martin Pedersen against the Delaware, Lackawanna & Western Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Bamberger, Levi & Mandel, of Philadelphia, Pa., for plaintiff in error.

James F. Campbell, of Philadelphia, Pa., for defendant in error. Before GRAY and BUFFINGTON, Circuit Judges, and YOUNG. District Judge.

BUFFINGTON, Circuit Judge. In the court below Martin Pedersen, a citizen of New Jersey, brought suit against the Delaware, Lackawanna & Western Railroad Company, a corporation of Pennsylvania, to recover damages for personal injuries sustained by him while its employé through its alleged negligence. His statement of claim alleged defendant was "a common carrier of passengers and goods and was engaged in commerce between several of the states of the United States of America, including commerce between the states of New York, New Jersey, Pennsylvania, and other states," and that he himself "was in the employ of the defendant as an iron worker, and was working in and upon the erection and repair of certain railroad bridges for the said defendant on the 31st day of July, 1909, at or near the city of Hoboken, in the state of New Jersey, and was on said date

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

and at said place employed by the defendant in such commerce between the states as aforesaid."

At the trial the court refused defendant's motion for binding instructions, and there was a verdict for plaintiff. Subsequently the court, on motion of defendant and in pursuance of the Pennsylvania statute followed by the federal courts in that state, entered judgment non obstante veredicto in its favor. Thereupon the plaintiff sued out this writ. The case turns upon the construction of section 1, Act Cong. April 22, 1908, which provides:

"That every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé; and if none, then of such employé's parents, and if none, then of the next of kin dependent upon such employé, for such injury or death, resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment."

The pertinent facts of this case may, as said in the brief of the plaintiff

"be stated in the language used in the opinion in the court below as follows: "The defendant is a common carrier of freight and passengers by rail, and does an interstate and intrastate business. At the time of the plaintiff's injury, it was engaged in building an additional track near Hoboken, N. J. Part of this track was to be laid upon a bridge, and the plaintiff was hurt upon the uncompleted structure while carrying material from one part of the work to another. The verdict establishes the fact that the negligence of a locomotive engineer was one cause of the injury, and that the plaintiff, if negligent at all, was nevertheless entitled to receive a considerable sum. The new track when finished was intended for use both in local business and in commerce between the states, but the train by which the injury was inflicted was a purely local train running between two points in the state of New Jersey. The suit is brought under the Employer's Liability Act of 1908, and the question now to be decided is whether that statute affords any relief for an injury under the foregoing facts.'"

[1] In view of the construction given this act in Mondou v. N. Y., N. H. & Hartford Railroad Co., decided January 15, 1912, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, that "the act embraces instances. where the causal negligence is that of the employé engaged in intrastate commerce, for such negligence, when operating injuriously upon an employé engaged in interstate commerce, has the same effect upon that commerce as if the negligent employé were also engaged therein," the fact that the injury was inflicted by an intrastate train is not material, and the case narrows to two questions which may be framed in the words of the statute: First. Do the foregoing facts show Pedersen was injured by the railroad "while (it was) engaging in commerce between any of the several states"? Second. Was such injury sustained by him "while he is (was) employed by such carrier in such commerce"?

Addressing ourselves thereto, we note that the object of this act was to broaden the right to relief for damages suffered by railroad employés in interstate transportation, for the power of Congress to create such liability to such employés rests on the fact and acts of interstate transportation work which are being done both by the company and by the injured employé at the time of the injury. Mondou v. New York, etc., Co., supra, where it is said:

"The present act, unlike the one condemned in Employers' Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297, deals only with the liability of a carrier engaged in interstate commerce for injuries sustained by its employés while engaged in such commerce."

In that case it is further said:

"Interstate commerce, if not always, at any rate when the commerce is transportation, is an act. Congress, of course, can do anything which, in the exercise by itself of a fair discretion, may be deemed appropriate to save the act of interstate commerce from prevention or interruption, or to make that act more secure, more reliable or more efficient. The act of interstate commerce is done by the labor of men and with the help of things; and these men and things are the agents and instruments of the commerce. If the agents or instruments are destroyed while they are doing the act, commerce is stopped. If the agents or instruments are interrupted, commerce is interrupted. If the agents or instruments are not of the right kind or quality, commerce in consequence becomes slow or costly or unsafe or otherwise inefficient; and, if the conditions under which the agents or instruments do the work of commerce are wrong or disadvantageous, those bad conditions may and often will prevent or interrupt the act of commerce, or make it less expeditious, less reliable, less economical and less secure. Therefore Congress may legislate about the agents and instruments of interstate commerce, and about the conditions under which those agents and instruments perform the work of interstate commerce, whenever such legislation bears, or in the exercise of a fair legislative discretion can be deemed to bear, upon the reliability or promptness or economy or security or utility of the interstate commerce act. In view of these settled propositions, it does not admit of doubt that the answer to the first of the questions before stated must be that Congress, in the exercise of its power over interstate commerce, may regulate the relations of common carriers by railroad and their employés, while both are engaged in such commerce, subject always to the limitations prescribed in the Constitution, and to the qualification that the particulars in which those relations are regulated must have a real or substantial connection with the interstate commerce in which the carriers and their employés are engaged."

It would seem, therefore, that just as the Safety Appliance Acts had, amongst other objects, the lessening of the dangers to employés during interstate transportation, so, in pari materia, this act was meant to broaden the relief for damages sustained by employés in such work, for sections 3 and 4 embody safety appliance acts as parts of its provisions. Moreover, when this law was passed, it was recognized that both the interstate carrier and its employés could each from time to time be engaged in such distinctive intrastate acts as precluded Congress from legislating thereon. Employers' Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297. Indeed, the title of the act-"An act relating to the liability of common carriers by railroad to their employés in certain cases"-evidences a purpose to condition the imposed liability on the existence of certain statutory