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Suit by the Vick Chemical Company against the Vick Medicine Company. From a decree (8 F.[2d] 49) granting complainant an interlocutory injunction, defendant appeals. Affirmed.

Robert C: Alston, of Atlanta, Ga., Sam S. Bennet, of Albany, Ga., and E. K. Wilcox, of Valdosta, Ga. (E. W. Moise, of Atlanta, Ga., on the brief), for appellant.

Harold Hirsch, of Atlanta, Ga., J. R. Pottle and I. J. Hofmayer, both of Albany, Ga., and Allen M. Reed and Edward S. Rogers, both of Chicago, Ill., for appellee. Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge. This is an appeal from a decree granting to the appellee, Vick Chemical Company, a Delaware corporation, an interlocutory injunction whereby the appellant, Vick Medicine Company, a Georgia corporation, its officers, etc., were "enjoined and restrained from using in connection with the manufacture, offering for sale or sale of any medicinal preparation or medicated soap the name 'Vick' or 'Vick's,' whether accompanied with other word or initial or not, or any other colorable imitation of plaintiff's registered trade-mark, and from the use of the name 'Vick Medicine Company,' or any like name or names, or any name of which the word 'Vick' or 'Vick's' forms a part." The suit in which that decree was rendered was brought in March, 1925, against the appellant alone, and relief was sought on the grounds of unfair competition and infringement of appellee's trade-mark.

Since prior to 1894 the appellee and its predecessors have manufactured and sold medicinal preparations under the trade-mark "Vick's." Their products have been put up and marketed in cartons having at the top the word "Vick's" in large letters, a red triangle, and at the bottom the name "Vick Chemical Company." They were marketed under the name "Vick's," being called "Vick's Salve," "Vick's Vaporub," etc. In 1917 the name "Vick's" was duly registered in the United States Patent Office under the 10-year provision of the Act of February 20, 1905, c. 592, § 5 (33 Stat. 725 [Comp. St. § 9490]); the appellee now being entitled to the benefits of that registration. The appellee and its predecessors have spent large sums in advertising its products, which became widely known and extensively used; since 1910 approximately 8,000,000 jars of one of its products, a medicinal salve, having been sold.

[1] Prior, and up to, June, 1924, W. P. Vick was a salesman of automobile tires in Georgia, and continued in that business until after this suit was brought. He had never bad any connection with the medicine business. At that time W. L. West was a salesman in Georgia for an automobile company. Formerly he had been a druggist at Albany,

Ga. Before his connection with W. P. Vick

he had put on the market a grippe remedy called "West's Grippe Remedy." This venture was a failure; West's product not being bought extensively when marketed under his name, and he abandoned the pharmacy business, and became a salesman for an automobile company. In February, 1924, W. P. Vick and West agreed to go into business together for the primary purpose of marketing the latter's grippe remedy under the name "Vick's Grippe Remedy." They procured the organization of the appellant corporation, and W. P. Vick became its president and West its vice president. In June, 1924, the appellant began, and thereafter continued, to put on the market the old West Grippe Remedy under the name of Vick's Grippe Remedy, using the name "Vick's" in conspicuous letters at the top of the inclosing carton, a red "V," and at the bottom the words "Vick Medicine Company." Other medicinal products were also marketed by it in the same way. Before the grant of the charter to that corporation the appellee, upon learning of the notice of the petition for the charter of a corporation to be known as the Vick Medicine Company, wrote a letter to W. P. Vick, objecting to the use of that name, and calling attention to the confusion likely to result therefrom. Evidence adduced convincingly showed that consumers throughout the country, retail dealers, wholesale druggists, and others, by the methods adopted by the appellant in marketing its products, were misled into the belief that those products were products of the appellee, and that appellant was enabled to make many sales of its products by reason of purchasers believing they were products of the appellee.. In behalf of the appellant it was contended that the name Vick was used as above stated because of the popularity of W. P. Vick, and because of his business ability. The opinion rendered by the district judge shows that he found that the moving cause for the adoption of Vick's surname was to obtain the benefit of the widespread publicity of that name, resulting from the money and efforts of the appellee, and for the purpose of appropriating a part

11 F.(2d) 35

of the good will of the appellee. This conclusion was amply warranted by evidence adduced.

[2, 3] We understand that a corporation is not entitled to use in its name or for its products the name of an individual, though that individual is interested in the corporation and consents to the use made of his name, if that name, instead of another, was selected in order to aid the corporation in competing with an established concern engaged in a similar business, and using the same name, such corporation's use of that name being calculated and intended to mislead the public with respect to the origin of its products, and having the effect of a false representation and of promoting unfair competition. R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 70 F. 1017, 17 C. C. A. 576; International Silver Co. v. Wm. G. Rogers Co. (C. C.) 113 F. 526; Garrett v. T. H. Garrett & Co., 78 F. 472, 24 C. C. A. 173; Royal Baking Powder Co. v. Royal, 122 F. 337, 345, 58 C. C. A. 499; National Distilling Co. v. Century Liquor & Cigar Co., 183 F. 206, 105 C. C. A. 638; Wm. A. Rogers v. H. O. Rogers Silver Co. (D. C.) 237 F. 887; International Silver Co. v. Wm. H. Roger's Corporation, 60 A. 187, 67 N. J. Eq. 119, 110 Am. St. Rep. 506, 3 Ann. Cas. 804. We think that the just stated proposition is consistent with statements of the law as to the use of an individual's name made in the opinions in the cases of Howe Scale Co. v. Wyckoff, Seamans & Benedict, 25 S. Ct. 609, 198 U. S. 118, 49 L. Ed. 972, and L. E. Waterman Co. v. Modern Pen Co., 35 S. Ct. 91, 235 U. S. 88, 59 L. Ed. 142, though in each of those cases it was found that the questioned use of an individual's name by a corporation was not shown to have been improper. The opinion in the first cited of those two cases contains the following: "We hold that, in the absence of a contract, fraud or estoppel, any man may use his own name in all legitimate ways, and as a whole or a part of a corporate name." From that statement it may be implied that, if a man's name is used fraudulently, or by a corporation for the purpose of misleading the publie and promoting unfair trade, such use cannot be justified. Findings of the court in the instant case were to the effect that the appellant's use of the words "Vick" and "Vick's" and the similarities between the dress adopted for its products and the dress of appellee's products were for the fraudulent purpose of representing its goods to be the goods of the appellee, and involved deceptive imitations of the appel

lee's trade-mark. Thaddeus Davids Co. v. Davids Mfg. Co., 34 S. Ct. 648, 233 U. S. 461, 469, 58 L. Ed. 1046, Ann. Cas. 1915B, 322. We think that under the circumstances disclosed, the use by the appellant of the name "Vick" in its corporate name, and in the designation of its products, constituted a fraud on the appellee, and that the court was not in error in rendering the decree appealed from.

[4] While the suit was pending, the appellant made some changes in the dress of its products which were claimed to have the effect of better distinguishing them from those of the appellee, and, after the opinion of the District Judge was rendered, expressed a willingness to make further changes, not involving a change of its corporate name or a discontinuance of the use of the word "Vick's" in the designation of its products, and invoked the judgment of the court as to whether by the proposed changes its products would be sufficiently distinguished from those of the appellee. We do not think that it was incumbent on the court to deal with a state of facts other than that which was shown to exist at the time the bill was filed. If the state of facts existing at that time warranted the relief granted, changes afterwards made by the appellant in the manner of conducting its business, and dressing and marketing its products, cannot properly be given the effect of making the decree erroneUnited States v. Workingmen's Amalgamated Council (C. C.) 54 F. 994, 26 L. R. A. 158; Chas. E. Hires Co. v. Consumers' Co., 100 F. 809, 41 C. C. A. 71.

ous.

The decree appealed from is affirmed.

THE VALDARNO.

LLOYD MEDITERRANEO SOCIETA ITALIANO DI NAVIGAZIONE, OF GENOA, ITALY, v. VASS et al.

(Circuit Court of Appeals, Fifth Circuit. January 13, 1926.)

No. 4642.

1. Seamen 29(5)-Evidence held to show injuries to night watchman on steamship were due to defective condition of supports for hatch covering.

Evidence held to show that injuries to night watchman on steamship were due to defective condition of supports for hatch covering and not to negligence of stevedores in placing covering.

Owe

2. Seamen 29(2)-Ship and owner night watchman duty to use proper diligence to provide safe place for him to work.

Ship and owner owe night watchman duty

to use proper diligence to provide safe place for him to do his work, and are liable for injuries resulting from failure to supply and keep in order proper appliances appurtenant to the ship.

Appeal from the District Court of the United States for the Southern District of Alabama; Robert T. Ervin, Judge.

Libel by W. Henry A. Vass and others against the steamship Valdarno; the Lloyd Mediterraneo Societa Italiano Di Navigazione, of Genoa, Italy, claimant. Decree for libelants, and respondent appeals. Affirmed.

Harry H. Smith, of Mobile, Ala. (Smiths, Young, Leigh & Johnston, of Mobile, Ala., on the brief), for appellant.

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the hatch covering it gave way, and he fell into the hold, and was seriously injured. There was no evidence having any tendency to prove that anything happened to the hatch covering between the time it was put on by the stevedores, as above stated, and the time part of it gave way under the libelant. The evidence showed that the hatch covering was unsafe when used as a passageway by the libelant, and indicated that its lack of safety was due, in whole or in part, either to the appliances supplied and used for covering it being defective, or to those appliances being improperly used to effect the covering. The vessel's first officer and its second engineer were present and looking on when the stevedores covered hatch No. 2. Their testimony and other testimony on the subject was to the effect that the covering was properly done. We do not think that the

Robert Eugene Gordon, D. H. Edington, and David B. Goode, all of Mobile, Ala. (Gordon & Edington, of Mobile, Ala., on the brief), for appellees. Before WALKER, BRYAN, and FOS- evidence warranted a finding that the steveTER, Circuit Judges.

WALKER, Circuit Judge. This is an appeal from a decree in favor of the appellee Vass (herein called the libelant), against the steamship Valdarno and its surety, awarding damages for personal injuries sustained by the libelant while he was serving as a night watchman on the Valdarno. The libelant was injured by falling into the vessel's hold through one of its hatches. The libel charged that that hatch was not safely protected, and was so unsafe that, when libelant stepped upon it, it gave way, and he fell into the hold. The injuries were attributed to the failure of the vessel's duly authorized officers or agents to provide libelant a safe place to work and to supply and keep in order proper appliances appurtenant to the ship so it would be safe for its employees to perform their duties thereon.

[1] The evidence showed the following: On October 17, 1924, the Valdarno was lying beside a dock at Mobile, and was being loaded with lumber by crews of stevedores. About 11 o'clock that night the crew of stevedores engaged in loading hatch No. 2 stopped for the night, covered that hatchway, and left. Some time later, while another crew of stevedores was still engaged in loading lumber into hatch No. 1, libelant, while on the vessel's starboard side, saw a negro, who was in the habit of hanging around vessels for the purpose of stealing, come over the port

dores were negligent in the way they performed that task. We think the evidence was such as to call for the conclusion that the danger which resulted in libelant's injury was due to the defective condition of the means supplied and used for covering the hatch. Those appliances consisted of sections made of heavy planks or boards, placed end to end on supports, one end of each section resting on a flange between 2 and 3 inches wide and inside and below the top of the coping of the hatch, that flange not extending to the corner of the hatch, with the result that part of one end of the corner section of the cover was unsupported. It was disclosed that it was such corner section which gave way when libelant stepped on it. The evidence, including photographs of the hatch with its covering on it, showed that there were spaces between the ends of sections of the hatch covers sufficient to permit a play or movement of a section, and that several of those sections were defective by reason of one or both of the ends and some of one of the sides being worn or partly broken off. It well may be inferred that libelant's fall was due to a section of the cover having enough play or space for movement that, when it was stepped on, it was displaced, pushed beyond the edge of the flange on which it rested, and tilted into the hold, causing libelant to fall. It fairly appears from the evidence of the circumstances attending the casualty that, by reason of the lack of suitable means of keeping it in

11 F.(2d) 37

place, the section of the hatch cover which fell in was so insecure and unsafe for a purpose for which it might reasonably be expected to be used that when it was so used it moved from its support and gave way, whereby the injury complained of was caused.

[2] The ship and its owner were chargeable with a duty to the libelant to use proper diligence to provide a safe place for him to do his work, and were liable to indemnify him for injuries received in consequence of a failure to supply and keep in order proper appliances appurtenant to the ship, the lack of which rendered unsafe the libelant's place of work. The Osceola, 23 S. Ct. 483, 189 U. S. 158, 175, 47 L. Ed. 760; Atlantic Transport Co. v. Imbrovek, 34 S. Ct. 733, 234 U. S. 52, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157; Grays Harbor Stevedore Co. v. Fountain (C. C. A.) 5 F. (2d) 385. We are of opinion that the evidence adduced showed that the libelant was injured in consequence of a breach of the duty mentioned, and that the award in his favor was proper. The decree is affirmed.

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6. United States 121-Knowingly untruthful statements of material facts in reasons for refund of taxes paid under Revenue Act Feb. 24, 1919 (40 Stat. 1057), constitute "false claim," within Criminal Code, § 35 (Comp. St. § 10199).

In view of regulations of Commissioner of Internal Revenue, knowingly untruthful statements of material facts in "reasons for refund" of excise taxes paid under Revenue Act Feb. 24, 1919, supported by fictitious copies of letters and cards attached thereto, constitute "false claim" against government, within Criminal Code, § 35 (Comp. St. § 10199).

[Ed. Note. For other definitions, see Words and Phrases, Second Series, False Claim.]

In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Ernest F. Cochran, Judge.

E. D. Evans was convicted of violating Criminal Code, § 35, by presenting a false and fraudulent claim against the government and filing a false supporting affidavit, and he brings error. Affirmed.

George F. von Kolnitz, of Charleston, S. C., for plaintiff in error.

Louis M. Shimel, Asst. U. S. Atty., of Charleston, S. C. (J. D. E. Meyer, U. S. Atty., of Charleston, S. C., on the brief), for the United States.

Before WADDILL and PARKER, Circuit Judges, and WATKINS, District Judge.

PARKER, Circuit Judge. The plaintiff in error, hereinafter referred to as the defendant, was convicted of violating section 35 of the Criminal Code (Comp. St. § 10199). The indictment contained three counts, the first charging the presentation of a false and fraudulent claim against the government, the second charging the presentation of a fraudulent claim and the filing of a false affidavit in support thereof, and the third charging the filing of a false affidavit in support of a claim theretofore filed, without charging that the claim was false. The defendant was acquitted on the third count of the indictment, but was convicted on the first and second counts. He was given a less sentence than was authorized by the statute for conviction on a single count.

The false claim which was the subject of the indictment was a claim filed by the defendant with the Commissioner of Internal Revenue in behalf of the Lemon Cola or Bludwine Bottling Company of Charleston, S. C., demanding the refund of a portion of the excise taxes paid by that company under the Revenue Act approved February 24, 1919 (40 Stat. 1057). The act imposed a

tax of 10 per cent. upon the gross sales price of soft drinks, and the company had paid this 10 per cent. on its gross sales from the passage of the act until March 1, 1921. After that date it billed the trade separately for the taxes and delivery charges and paid the 10 per cent. only on the price charged for the drinks f. o. b. the factory.

In the fall of 1921 the defendant, having been employed by the company as auditor, conceived the plan of getting back from the government a portion of the taxes paid prior to March 1, 1921. He accordingly obtained an agreement from the company that he should have one-half of all sums realized and proceeded to file claim in its behalf. This claim was false, in that it was based upon a false statement as to how the company dealt with its customers, and was supported by fictitious copies of letters and cards which were falsely asserted in the claim to have been sent to the customers. In May, 1919, the Commissioner of Internal Revenue had adopted a regulation which provided:

"If the sale price of a taxable beverage is increased to cover the tax, the tax is on such increased sale price, but where the tax is billed as a separate item it is not to be considered as an increase in the sale price."

Later a regulation allowed the tax to be computed on the price charged at the factory, where transportation charges were billed as separate items. Defendant claimed that the company was entitled to a refund, because it had notified its customers in writing from time to time that a definite portion of the moneys collected were for taxes and transportation charges, and that consequently the company was not taxable on this portion of the moneys received by it; these being set forth at length in a paper entitled "Reasons for Refund," which was filed along with the demand. Attached to these papers were what purported to be copies of form letters and cards sent out to the trade from time to time, showing that war taxes and delivery charges (after July 1, 1920) were charged for separately from the drinks sold. It was shown that this statement as to written notice to the trade was absolutely false, that no such form letters or cards were in fact sent out, and that they were printed on the day before the claim was filed for the express purpose of being attached to it.

As to the false affidavit, the filing of which was charged in the second count of the indictment, the evidence showed that the defendant, in May, 1922, obtained a false affidavit from a printer to the effect that he had printed the cards and circular letters at

tached to the claim on the days of which they bore date; whereas, the truth was that the affiant had not printed them at all, but that they had been printed by another printer on the day before the filing of the claim. This false affidavit was filed in support of the claim.

[1] The first and second assignments of error present exceptions taken to the refusal of the court to hold the second and third counts of the indictment bad for duplicity. The defendant having been acquitted on the third count, the points raised with regard thereto need not be considered. We think the demurrer was properly overruled as to the second count. Two points are raised as to this count by the demurrer: First, that the count is duplicatious, in that it charges both the presentation of a false claim and the presentation of a false affidavit in support thereof; and, second, that it is duplicatious in that it charges both that the false affidavit was used for the purpose of obtaining the payment and approval of the claim, and also for the purpose and with the intent of defrauding the United States.

Neither point is well taken. The evil which the statute was intended to reach was the obtaining of money from the United States by false claims and pretenses. The statute was directed against certain defined modes of accomplishing this evil, and it was proper to charge in one count the doing of the prohibited thing in each and all of the prohibited modes. The exact point was decided by the Supreme Court of the United States in a prosecution under section 5421 of the Revised Statutes (Comp. St. § 10193), which penalizes frauds in the presentation of pension claims. The court said:

"We perceive no sound reason why the doing of the prohibited thing, in each and all of the prohibited modes, may not be charged in one count, so that there may be a verdict of guilty upon proof that the accused had done any one of the things constituting a substantive crime under the statute. And this is a view altogether favorable to an accused, who pleads not guilty to the charge contained in a single count; for a judgment on a general verdict of guilty upon that count will be a bar to any further prosecution in respect of any of the matters embraced by it." Crain v. U. S., 16 S. Ct. 952, 162 U. S. 625, 40 L. Ed. 1097.

[2] As to the second point, it seems perfectly clear that, when a statute makes an act criminal when done with either of two intents, the doing of the act is only one crime, even though both intents be present; and, if

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