trade-mark or trade-name as she may have to a monopoly of her type of bitter water, by preventing manufacturers from telling the public in a way that will be understood what they are copying and trying to sell. But the plaintiff has no patent for the water, and the defendants have a right to reproduce it as nearly as they can. They have a right to tell the public what they are doing and to get whatever share they can in the popularity of the water by advertising that they are trying to make the same article and think that they succeed. If they do not convey, but, on the contrary, exclude the notion that they are selling the plaintiff's goods, it is a strong proposition that when the article has a well-known name they have not the right to explain by that name what they imitate. By doing so they are not trying to get the good-will of the name, but the good-will of the goods. (See Flagg Manufacturing Co. v. Holway, 178 Mass., 83, 91; Chadwick v. Covell, 151 Mass., 190, 191.) Although the application is different, the principle seems to be similar to the rule that when a patent has expired descriptive words or even an arbitrary or personal name by which it has become known may be used if sufficient precautions are taken to prevent the public from being deceived. (See Singer Manufacturing Co. v. June Manufacturing Co., C. D., 1896, 687; 75 O. G., 1703; 163 U. S., 169.)

The plaintiff says that no one can succeed in imitating a natural water. But all are free to try. In the absence of some fraud injurious to the plaintiff, it would be going far under any circumstances to allow her to prevent advertising "Artificial Hunyadi." But it is enough to say that under the decision in Saxlehner v. Eisner & Mendelson Co. (C. D., 1900, 362; 93 O. G., 940; 179 U. S., 19, 36) the defendants may do so in this case. In that decision it was said that "Hunyadi," as applied to similar water, had been public property in Hungary, and therefore had become so here, and that a later change there would not work a corresponding change in the United States. "The right to individual appropriation once lost is gone forever." (See, also, French Republic v. Saratoga Vichy Co., 191 U. S., 427, 437.) At the very least the family name has become the name for any natural water of a certain type coming from a more or less extensive district, if not from anywhere in Hungary. It does not belong to the plaintiff alone in this country, even if she is the only one now sending the water here. But if there is any well-founded doubt as to the right to use a personal trade-name with proper guards against deception to signify what one is imitating where one has the right to imitate, there can be none that one is at liberty to refer to a geographical expression to signify the source of one's model. "Hunyadi" at best is now only a geographical expression in effect. Decree affirmed,

[Supreme Court of the United States.]

H. C. COOK COMPANY V. BEECHER ET AL.

Decided May 16, 1910.

155 O. G., 308; 217 U. S., 497.

JURISDICTION OF FEDERAL COURTS-FEDERAL QUESTION.

The action by the owner of a judgment recovered against a corporation for infringement of a patent to charge the directors of such corporation with payment of the judgment on the ground that they were joint trespassers with the corporation is not within the jurisdiction of the Federal court as a suit upon a patent nor as an action ancillary to the judgment in the former suit, and unless there is diversity of citizenship such court is without jurisdiction.

Mr. Verenice Munger for the plaintiff in error.

Mr. Talcott H. Russell for the defendants in error.

Mr. Justice HOLMES delivered the opinion of the Court.

This case comes here on the, single question of the jurisdiction of the circuit court, certified from the court below. (172 Fed. Rep., 160.) The judge dismissed the complaint of his own motion, and the defendants in error confine themselves to the suggestion that for that reason the judgment should be reversed at the cost of the plaintiff in error, concurring in the argument that the judgment was wrong. As we are of opinion that the judgment was right it will be unnecessary to consider that point.

The suit is brought by a Connecticut corporation against residents of Connecticut. We give an abridgment of the complaint. The plaintiff is the owner of a patent for finger-nail clippers. The defendants during the time of the acts complained of were directors in control of another Connecticut corporation, The Little River Manufacturing Company. This company infringed the patent, and the plaintiff brought a suit in equity against it in the same circuit court, which ended in a decree for an injunction, $12,871 damages and $496.35 costs. The defendants voted to continue the sale of the infringing clipper pending the suit, and also voted and caused to be executed a bond of indemnity from their company to the selling agent against liability for the sale. As directors and as individuals. they authorized and brought about such sales, and they directed the defense of the equity suit. In consequence of the expenditures to the foregoing ends their company became and is insolvent, and the defendants knew that that would be the result of a judgment against it, but did the acts alleged for the purpose of increasing the value of their stock in the company, and of receiving the profits and dividends that might be received from the sale.

The plaintiff's argument is that the defendants and their corporation were joint tort-feasors, and that this is a suit against the defendants for their part in infringing its patent, the judgment against their cotrespasser not having been satisfied. It is unnecessary to

speculate whether this is an afterthought or whether the complaint was framed with intentional ambiguity, so that if one cause of action failed another might be extracted from the allegations, or what the explanation may be. But the present interpretation is not the natural interpretation of the complaint. The natural interpretation is that which was given to it by the court below; that it is an attempt to make the defendants answerable for the judgment already obtained. There was no other reason for alleging that judgment with such detail, while on the other hand the patent now supposed to be the foundation of the claim is not set forth. The judge was fully warranted in taking this not to be a suit upon a patent. Indeed it would seem from his opinion that one of the grounds of jurisdiction urged before him was that this is an action ancillary to the judgment in the former suit, which of course it is not, any more than Stillman v. Combe, (197 U. S., 436;) but the argument recognized that the former judgment was the foundation of the present case. Apart from that contention, there can be no question that, as the judge below said, if the directors are under obligations by Connecticut law to pay a judgment against their corporation, that is not a matter that can be litigated between citizens of the same State in the Circuit Court of the United States. The only argument attempted here is that which we have stated and have decided not to be open on the complaint. Judgment affirmed.

[Supreme Court of the United States.]

HUTCHINSON, PIERCE & Co. v. LOEWY.

Decided May 16, 1910.

155 O. G., 556; 217 U. S., 457.

TRADE-MARKS-DECISION OF THE CIRCUIT COURT OF APPEALS-CAN BE REVIEWED BY THE SUPREME COURT OF THE UNITED STATES ONLY UPON CERTIOBARI. Section 18 of the Trade-Mark Act of February 20, 1905, places suits brought under that act within the scope of the act of March 3, 1891, establishing the circuit court of appeals, and a final decision of such court can be reviewed in the Supreme Court of the United States only upon certiorari. Mr. Archibald Cox for the appellant.

Mr. E. T. Fenwick and Mr. L. L. Morrill for the appellee. Mr. Chief Justice FULLER delivered the opinion of the Court.

This was a bill in equity for an injunction and accounting, the complainant alleging the defendant had infringed its technical trademark applied to shirts, and also was guilty of unfair competition. As complainant is a corporation of the State of New York and defendant is a citizen of the same State, the Court's jurisdiction extends only to the use of the registered trade-mark in commerce between the States, with foreign nations and the Indian tribes.

There was no attempt to prove that defendant had passed off, or intended to pass off, his goods for complainant's, or had made profits,

or that complainant had sustained damage. The cause proceeded solely on complainant's ownership of its technical trade-mark.

The circuit court held that defendant's trade-mark or brand was clearly distinguishable from that of complainant, and said:

There is no reasonable probability of the ordinary purchaser being deceived into buying the defendant's manufacture as that of complainant. The rule is well established that a trade-mark, word or symbol has the elements of a property-right and may not be unlawfully used by a rival in business either alone or as an accessory to such prior appropriation and in such cases a right to injunctive relief follows without proof of confusion of proprietorship or that buyers have been actually misled by such use. But if a defendant's design or symbol is essentially different and distinguishable in appearance so that by no possibility can his article be taken for complainant's genuine production, a cause of unlawful appropriation is not maintainable. (163 Fed. Rep., 44.)

The bill was thereupon dismissed, and having been taken by appeal to the United States Circuit Court of Appeals for the Second Circuit, the decree below was affirmed. (163 Fed. Rep., 42.)

Appellants thereupon petitioned for an appeal to this Court, which was allowed.

Sections 17 and 18 of the act of Congress approved February 20, 1905, in respect to trade-marks, reads as follows:

Sec. 17. That the circuit and territorial courts of the United States and the Supreme Court of the District of Columbia shall have original jurisdiction, and the circuit courts of appeal of the United States and the Court of Appeals of the District of Columbia shall have appellate jurisdiction of all suits at law or in equity respecting trade-marks registered in accordance with the provisions of this act, arising under the present act, without regard to the amount in controversy.

Sec. 18. That writs of certiorari may be granted by the Supreme Court of the United States for the review of cases arising under this act in the same manner as provided for patent cases by the act creating the circuit court of appeals.

We are of opinion that this appeal will not lie, and that the remedy by certiorari is exclusive. By the sixth section of the Judiciary Act of March 3, 1891, the final decisions of the circuit courts of appeal are made final

in all cases under the patent laws, under the revenue laws, under the criminal laws and in admiralty cases,

with power in this Court to require any such cases to be certified thereto for its review and determination,

with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court.

We think that the language of section 18 places suits brought under the Trade-Mark Act plainly within the scope of the act establishing the court of appeals, and that a final decision of that court can be reviewed in this Court only upon certiorari, and that therefore the pending appeal must be dismissed. And this conclusion is sustained by Atkins v. Moore, (212 U. S., 284, 291.) Appeal dismissed.