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injunction, because the rival or antagonistic trade mark of the defendants did not sufficiently resemble that of the plaintiff's as to be calculated to deceive the public.

In Fetridge v. Wells, 13 How. Pr. 385, the plaintiff sold a soap under the name of "Balm of a Thousand Flowers," and in denying the plaintiff's right to the exclusive use of these words as a trade mark, Judge Duer said :

"I am fully convinced that the name 'Balm of a Thousand Flowers' was invented, and is now used to convey to the minds of purchasers the assurance that the highly scented liquid to which the name is given is, in truth, an extract or distillation from flowers, and therefore not merely an innocent, but a pleasant and salutary preparation. Not only is this the meaning that the words used naturally suggest; but in my opinion it is that which they actually and plainly express, and were designed to convey. . Let it not be said, that it is of little consequence whether this representation be true or false. No representation can be more material than that of the ingredients of a compound which is recommended and sold as a medicine. There is none that is so likely to induce confidence in the application and use of the compound, and none that, when false, will more probably be attended with injurious, and perhaps fatal consequences. Those who come into a court of equity seeking equity, must come with pure hands and a pure conscience. If they claim relief against the fraud of others, they must be free themselves from the imputation. If the sales made by the plaintiff and his firm are effected, or sought to be, by misrepresentation and falsehood, they cannot be listened to when they complain that by the fraudulent rivalry of others their own fraudulent profits are diminished. An exclusive privilege for deceiving the public is assuredly not one that a court of equity can be required to aid or sanction. To do so would be to forfeit its name and character."

In Manhattan Medicine Co. v. Wood, 108 U. S. 218, the case of Fetridge v. Wells was cited with approval, and likewise the English cases of Pidding v. How, 8 Simons, 477, and The Leather Cloth Company v. The American Leather Company, 4 De Gex, J. & S. 137. In Manhattan Medicine Co. v. Wood,

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the complainant claimed to be the owner of a patent medicine and of a trade mark to distinguish it. The medicine was manufactured by the complainant in New York; the trade mark declared that it was manufactured by another person in Massachusetts. The Circuit Court of the United States for the District of Maine, per Mr. Justice Clifford, held that the complainant, owing to false statements in his trade mark, was entitled to no relief against a person using the same trade mark in Maine, and dismissed the bill. On appeal this decree was affirmed, this court saying: "A court of equity will extend no aid to sustain a claim to a trade mark of an article which is put forth with a misrepresentation to the public as to the manufacturer of the article, and as to the place where it is manufactured, both of which particulars were originally circumstances to guide the purchaser of the medicine."

In Clotworthy v. Schepp, 42 Fed. Rep. 62, the right to a trade mark was claimed in the word "Puddine," in connection with the words "Rose" and "Vanilla," but Circuit Judge Lacombe refused an injunction, and in his opinion said: "The complainant himself is engaged in deceiving the very public whom he claims to protect from the deception of others. He calls his preparation 'fruit' puddine. In nine different places on his package this word 'fruit' is repeated, as descriptive of the article, and a dish of fruit (pears, grapes, etc.) is most prominently depicted on one face of each packet. His packages plainly suggest that fruit of some kind enters in some shape into his compound. A chemical analysis produced by defendant, the substantial accuracy of which is not disputed, discloses the fact that his 'puddine' is composed exclusively of corn starch, a small amount of saccharine matter, and a flavoring extract, with a little carmine added to give it color; it contains no fruit in any form.”

Krauss v. Peebles' Sons Co., 58 Fed. Rep. 585, was a case in which it was shown that the liquor sold as "Pepper Whisky" was in fact a mixture of Pepper whisky and other whiskies, and an injunction to prevent infringement was refused by Circuit Judge Taft, who, in his opinion, said: "To bottle such a mixture, and sell it, under the trade label and caution above

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referred to, is a false representation, and a fraud upon the purchasing public. A court of equity cannot protect property in a trade mark thus fraudulently used."

And this doctrine of the English and American cases above referred to has been applied in the Federal Circuit Courts and Circuit Courts of Appeals in cases in which the California Syrup Company, the complainant in the present case, was a party.

In the Circuit Court of the United States for the District of Massachusetts, March 6, 1895, the California Fig Syrup Company, the complainant in the present case, filed a bill against Kate Gardiner Putnam and others to restrain the infringement of the plaintiff's trade mark. The facts of the case were thus stated by Circuit Judge Colt in his opinion, reported in 66 Fed. Rep. 750:

"The plaintiff is the proprietor and manufacturer of a liquid laxative compound called 'Syrup of Figs.' The defendants manufacture and sell a laxative medicine which they term 'Fig Syrup.' There is no evidence that the defendants have imitated the plaintiff's labels or packages except in this particular. If this preparation is in fact a syrup of figs, the words are clearly descriptive, and not the proper subject of a trade mark. Upon this point the contention of the plaintiff is that its preparation is not a syrup of figs, since it contains only a very small percentage of the juice of the fig; that the laxative ingredient in it is senna; that while the fig in the form of fruit may have laxative properties arising from the seeds and skin, the fig in the form of a syrup is no more laxative than any other fruit syrup; that it follows from these facts that these words, as applied to this compound, are not descriptive, but purely fanciful, and therefore constitute a valid trade mark. The evidence shows that the compound is not a syrup of figs. It might more properly be termed a 'Syrup of Senna,' if the words were intended to be descriptive of the article. But, assuming this is not a syrup of figs, we are met with the inquiry whether these words, as applied to this preparation are not deceptive. The label on every bottle reads as follows: 'Syrup of Figs. The California Liquid Fruit Remedy. Gentle and Effective.' On the sides of each bottle are blown the words 'Syrup of Figs,'

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and on the back the words 'California Fig Syrup Co., San Francisco, Cal.' On the face of every package is a picture of a branch of a fig tree with the hanging fruit, surrounded with the words 'California Fig Syrup, San Francisco, Cal.;' and beneath this the words: 'Syrup of Figs presents in the most elegant form the laxative and nutritious juice of the figs of California.' Thus we see that the leading representation on the labels, packages, and in the advertisements of this preparation is that it is a laxative fruit syrup made from the juice of the California fig.

The popularity of this medicine arises from the belief in the mind of the ordinary purchaser that he is buying a laxative compound, the essential ingredient of which is the California fig, whereas, in fact, he is buying a medicine the active property of which is senna. The ethical principle on which the law of trade marks is based will not permit of any such deception. It may be true, as a scientific fact known to physicians and pharmacists, that the syrup of figs has little or no laxative property; but this is not the belief of the general public. They purchase this preparation on the faith that it is a laxative compound made from the fruit of the fig, which is false. This is not an immaterial representation the effect of which is harmless, but it is a representation which goes to the very essence of the plaintiff's right to a trade mark in these words. The cases are numerous where the courts have refused to grant relief under these circumstances."

Accordingly, the Circuit Court dismissed the bill with costs. On appeal to the Circuit Court of Appeals for the First Circuit the decree of the Circuit Court was affirmed.

In the Circuit Court of the United States for the Eastern District of Michigan, April 1, 1895, the California Fig Syrup Company filed a bill, seeking to restrain Frederick Stearns & Company from infringing complainant's trade mark. The court declined to grant an injunction and dismissed the bill with costs, holding that the words "Syrup of Figs" or "Fig Syrup," if descriptive of a syrup, one of the characteristic ingredients of which is the juice of the fig, cannot be sustained as a valid trade mark or trade name, and that, under the facts of the case, the use of the name "Syrup of Figs, in connection with a descrip

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tion of the preparation as a fruit remedy, nature's pleasant laxative," applied to a compound, whose active ingredient is senna, and containing but a small proportion of fig juice, which has no considerable laxative properties, is deceptive and deprives one so using it of any claim to equitable relief.

On appeal to the Circuit Court of Appeals of the Sixth Circuit the decree of the Circuit Court was affirmed. 73 Fed. Rep. 812. In his opinion Circuit Judge Taft, after stating that the term "Syrup of Figs," if intended to describe the character of the article concerned, could not be used as a trade mark, proceeded to say:

"But the second ground presented, and that upon which the court below rested its decision, prevents the complainant from having any relief at all. That ground is that the complainant has built up its business and made it valuable by an intentional deceit of the public. It has intended the public to understand that the preparation which it sells has, as an important medicinal agent in its composition, the juice of California figs. This has undoubtedly led the public into the purchase of the preparation. The statement is wholly untrue. Just a suspicion of fig juice has been put into the preparation, not for the purpose of changing its medicinal character, or even its flavor, but merely to give a weak support to the statement that the article sold is syrup of figs. This is a fraud upon the public. It is true, it may be a harmless humbug to palm off upon the public as syrup of figs what is syrup of senna, but it is nevertheless of such a character that a court of equity will not encourage it by extending any relief to the person who seeks to protect a business which has grown out of and is dependent upon such deceit. It is well settled that if a person wishes his trade mark property to be protected by a court of equity, he must come into court with clean hands, and if it appears that the trade mark for which he seeks protection is itself a misrepresentation to the public, and has acquired a value with the public by fraudulent misrepresentation in advertisements, all relief will be denied to him. This is the doctrine of the highest court of England, and no court has laid it down with any greater stringency than the Supreme Court of the United States. Medicine Co. v.