and marketing baking soda and saleratus used for cooking purposes, and prior to that time its predecessor, under the name of Church & Co., had been engaged in the same business at the same place. On July 1, 1896, the complainant succeeded to the business. of the firm of Church & Co., and to all its interest in said business, including any and all trade-marks and trade-names used by said firm in its business, and to the rights thereunder which had accrued to that firm. Since the year 1874 the complainant, and its predecessor have prepared and put upon the market a new and orig inal preparation of soda and saleratus to be used for cooking purposes, and, to indicate the origin and genuineness of the preparation, it and its predecessor have put upon the packages containing the preparation marketed by them, as a trade-mark and tradesymbol, a representation of a bared arm, the hand grasping the handle of a hammer; the arm being shown raised in the position which it would assume when about to strike with the hammer. At all times since 1874 the complainant and its predecessor have prepared soda and saleratus used for cooking purposes, and placed them on the market in packages having this trade-mark upon them. The complainant's predecessor devised and adopted the trade-mark, which was different from any which had been used to designate soda and saleratus. This trade-mark has been universally known and recognized as indicating that the articles or packages having such trade-mark were manufactured by the complainant or its predecessor, and said trade-mark became, and ever since has been, a valuable property right, and a protection to purchasers of soda or saleratus used for cooking purposes made and sold by complainant and its predecessor. The above-specified trade-mark is the exclusive property of the complainant, and it is entitled to its sole and exclusive benefit and use. The complainant and its predecessor have at all times insisted on its trade-mark, and have notified the public thereof. This trade-mark has become universally known as the property of the complainant and its predecessor, and has been uniformly respected as such until its infringement by respondents. For the purpose of further informing the public of the complainant's rights in and to said trade-mark, it caused it to be registered on January 26, 1897, according to the statutes of the United States. This trade-mark has been used by the complainant and its predecessor for more than 20 years continuously in connec tion with packages containing soda and saleratus, in commerce with Canada and other foreign countries, and has been very extensively used throughout the United States. The soda and saleratus prepared and sold by it and its predecessor have been of a superior quality, and have been prepared for the market with care, according to their peculiar methods; and the soda and saleratus have met with great favor since they were placed upon the market, and the demand for them has increased from year to year. The exclusive right to this trade-mark is of great value in its business, and the respondents' infringement of it has caused great and irreparable loss, to an amount exceeding $5,000. The respondents are engaged in manufacturing and selling baking powder used for cooking pur

poses, the active ingredient of which is soda, prepared and put up in packages having a representation exactly similar to the trademark of the complainant. It is further alleged that the respondents, knowing the high reputation and deserved celebrity of the baking soda and saleratus manufactured and sold by the complainant, have pirated its trade-mark, with the intent to enlarge their sales of baking powder, and to deceive the public into the belief that the baking powder put up in packages having said trade-mark is manufactured and sold by the complainant, or with its authority and consent. The complainant has notified the respondents of its right to the exclusive use of said trade-mark, and has requested them to desist from its use, which they have refused to do, and they insist on their right to use such trade-mark upon the packages of baking powder sold by them. The respondents admit all the material facts above stated, except that they deny they infringe the complainant's trade-mark by using the same on their packages of baking powder, because, as they allege, baking powder does not belong to the same class of goods as baking soda and saleratus. They also deny that they intend to, or do, deceive the public by using the complainant's trade-mark on their baking powder, or that the complainant is damaged by such use. They also allege that on March 18, 1896, they registered said trade-mark, in accordance with the statute of the state of Indiana, to be used upon packages of baking powder manufactured and sold by them.

The evidence is conflicting on the question whether the public are, or are likely to be, deceived by the respondents' use of the complainant's trade-mark. The averments of the complaint and the admissions of the respondents make it manifest that the complainant is, and long has been, the exclusive owner of the trade-mark alleged to be infringed. The respondents admit that they have appropriated the complainant's trade-mark for use upon packages of baking powder, and assert their right to continue its use on the ground that the complainant has always used its trade-mark on packages of baking soda and saleratus, and never upon baking powder, and that the latter is a different class of goods from the former, and that therefore the respondents do not infringe the rights of the complainant by the use of its trade-mark on their packages of baking powder. It is also insisted that the public is not deceived, or likely to be deceived, nor is the complainant injured, by such use.

The tendency of the courts at the present time seems to be to restrict the scope of the law applicable to technical trade-marks, and to extend its scope in cases of unfair competition. Mill Co. v. Alcorn, 150 U. S. 460, 14 Sup. Ct. 151, 37 L. Ed. 1144; Laughman's Appeal, 128 Pa. St. 1, 18 Atl. 415, 5 L. R. A. 599; Koehler v. Sanders, 122 N. Y. 65, 25 N. E. 235, 9 L. R. A. 576; Castle v. Siegfried, 103 Cal. 71, 37 Pac. 210; Fleischmann v. Starkey (C. C.) 25 Fed. 127. As this case falls more appropriately under the head of an infringement of a technical trade-mark, rather than under the head of unfair competition, it becomes desirable to ascertain as nearly as may be the distinctions, as well as the points of resemblance, between them. The underlying principle of each is the same, namely, the preven

tion of that which in its operation and results, and usually in intention, is a fraud upon the public, and an injury to the rival trader. That this is the underlying principle is clearly shown in the leading case on technical trade-mark law (Canal Co. v. Clark, 13 Wall. 311, 322, 20 L. Ed. 581, 583), where the supreme court say:

"This will be manifest when it is considered that, in all cases where rights to the exclusive use of the trade-mark are invaded, it is invariably held that the essence of the wrong consists in the sale of the goods of one manufacturer or vendor as those of another, and that it is only when this false representation is directly or indirectly made that the party who appeals to a court of equity can have relief. This is the doctrine of all the cases."

But, while the idea of fraud or imposition lies at the foundation of the law of technical trade-marks as well as the law of unfair competition, it must be borne in mind that fraud may rest in actual intent shown by the evidence, or may be inferred from the circumstances, or may be conclusively presumed from the act itself. In the case of unfair competition the fraudulent intent must be shown by the evidence, or be inferable from the circumstances, while, in the case of the use by one trader of the trade-mark or trade-symbol of a rival trader, fraud will be presumed from its wrongful use. It is commonly said that there is a right of property in a technical trade-mark, and an infringement of it is spoken of as a violation of a property right. Whether this view be correct or not is quite immaterial, because it is universally agreed that some of the rights which are incident to property do inhere in a technical trade-mark. The cases all agree that no one has a right to use another's trademark in connection with similar goods; and if he does so use it, and persists therein after being requested to desist, the fraud and imposition which constitute the essence of the injury will be presumed to exist, and relief will be granted without further proof. Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537, 548, 549, 11 Sup. Ct. 396, 34 L. Ed. 997. In strict trade-mark cases, such as the present case is, a fraudulent intent to injure the complainant, or an actual misleading of the public, need not be proved, as it will be presumed. In Lawrence Mfg. Co. v. Tennessee Mfg. Co., supra, the supreme court says:

"The jurisdiction to restrain the use of a trade-mark rests upon the ground of the plaintiff's property in it, and of the defendant's unlawful use thereof. Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69. If the absolute right belonged to the plaintiff, then, if an infringement were clearly shown, the fraudulent intent would be inferred; and, if allowed to be rebutted in exemption of damages, the further violation of the right of property would nevertheless be restrained. McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828; Menendez v. Holt, 128 U. S. 514, 9 Sup. Ct. 143, 32 L. Ed. 526."

The complainant having acquired the exclusive right to the use of the trade-mark upon baking soda and saleratus, the remaining question is this: Does the baking powder of the respondents belong to the same class of goods as the baking soda and saleratus of the complainant? The respondents admit that their baking powder consists of 25 per cent. of soda, mixed with 75 per cent. of corn-meal starch and tartaric acid. The greater part of the baking powder consists of the starch, used simply as a drier to absorb the moisture

to which the baking powder may be exposed, and thus to prevent the formation of carbonic acid gas by the chemical combination of the soda and acid. Consequently, every time the respondents sell a package of their baking powder, having the complainant's trademark upon it, they are actually selling a package a material part of which consists of baking soda. Soda and baking powder are used for the purpose of leavening or lightening dough in the manufacture of bread and cakes, as well as for other domestic uses. They are generally handled by the same class of dealers, and are purchased by the same class of customers. Either is indifferently used, as may be most convenient, to accomplish the same object. To the extent that baking powder is used, to that extent it will necessarily displace the use of soda for baking purposes. They belong to the same class of goods, coming in direct competition with each other in sale and use for the same purpose. The public would readily suppose that the baking powder bearing the complainant's trade-mark was either manufactured by it, or by some one having its authority and consent, and that it vouched for the superiority and high character of the goods bearing such trade-mark. Goods are in the same class whenever the use of a given trade mark or symbol on both would enable an unscrupulous dealer readily to palm off on the unsuspecting purchaser the goods of the infringer as the goods made by the owner of the trade-mark, or with his authority and consent. The fact that the complainant has not used its trade-mark upon packages of baking powder constitutes no ground of defense. It has the right to manufacture or sell baking powder, and to use its trademark in connection with such manufacture or sale. The right to use its own trade-mark upon baking powder manufactured or sold by it would be valueless if all others were at liberty to use the same trade-mark on baking powder manufactured or sold by them. Collins Co. v. Oliver Ames & Sons Corp. (C. C.) 18 Fed. 561. A decree may be prepared in accordance with the foregoing views.

BRESNAHAN et al. v. TRIPP GIANT LEVELLER CO.

(Circuit Court of Appeals, First Circuit. January 10, 1900.)

No. 293.

1. PATENTS-SUIT FOR INFRINGEMENT-ESTOPPEL-EFFECT OF PRIOR DECISIONS. The fact that defendants in a suit for infringement of a patent, who have been granted a rehearing on the ground of newly-discovered evidence affecting the validity of the patent, were also parties or privies to other litigation in the same jurisdiction involving the same patent, which pending such suit passed to final decree sustaining the validity of the patent, does not estop them from contesting any of the issues opened by the rehearing, although the questions involved are subject to such fair and reasonable influence as may legally result, on grounds other than strict estoppel, from the prior adjudication; and, to warrant the overturning of such decision, the newly-discovered evidence presented must fully, clearly, and uumistakably establish, in connection with the other evidence in the case, that the prior decision was wrong.

2. SAME-ANTICIPATION-MACHINE FOR BEATING OUT SHOE SOLES.

The Cutcheon patent, No. 384,893, for improvements in machines for beating out the soles of boots and shoes, was not anticipated by either the Collyer patent, No. 178,598, nor by the De Forest patent, No. 270,936, for an improvement in presses for pressing material of a spongy nature, such as cotton or tobacco.

Appeal from the Circuit Court of the United States for the District of Massachusetts.

Frederick P. Fish and William Quinby, for appellants.

Causten Browne and Alexander Browne, for appellee.

Before PUTNAM, Circuit Judge, and WEBB and ALDRICH, District Judges.

ALDRICH, District Judge. The litigation involving the validity and scope of the Cutcheon patent has been protracted over a period of eight years. Questions in respect to its validity and scope, in different aspects, have been several times before the circuit court, and twice before the circuit court of appeals for the First circuit, wherein its patentability and its utility have been repeatedly sustained and explained. It is now strenuously urged by counsel for the Cutcheon interests that from the beginning the relations of the present appellants to the litigation involving the Cutcheon invention have been such, as parties or privies, as to estop them from further litigation in respect to all questions heretofore settled in this circuit in the various cases involving the Cutcheon device. The evidence before us tends strongly to show that the appellants were privy in fact to the various proceedings involved in this litigation; but if we were to assume that the present appellants were parties in a part of the prior litigation, and that they conducted, controlled, and paid the expenses of that in which they were not parties of record, we could not, in the present aspect of this case, accept such conditions as operating as a strict estoppel, for the reason that the final decree in the earlier litigation was entered after this proceeding was instituted, and is not so pleaded as to strictly and legally present the question of estoppel. Moreover, the petition of Hayes and Bresnahan, filed in this cause January 2, 1897, for leave to file a supplemental bill, concludes with the prayer that, upon the coming in of the proofs under the supplemental bill, they may be awarded a hearing of the original cause. On January 22d of the same year the circuit court, exercising the discretion which resides alone with such court, granted leave in general terms, and without limitation. Such order unquestionably entitles the appellants to a consideration de novo of all the questions at issue in this cause. Such questions, however, are subject to such fair and reasonable influence as may legally result, on grounds other than strict estoppel, from the prior determinations and adjudications upon similar facts in respect to the Cutcheon patent. The petition for a rehearing on supplemental bill was grounded upon newly-discovered evidence involved in a prior patent issued to one Collyer, and another to one De Forest, which it is claimed are anticipations of the Cutcheon patent, or, if not to be accepted as such, at least serve to limit the first claim thereof. The petition was