Moxie Co. v. Bagoian

ALDRICH, District Judge. So far as concerns the claim of unfair competition, based upon the ground of visual appearance, and [681] the other phases having reference to the manner in which- Bo-La js put upon the market, this case is controlled hy the result reached! in Moxie Co. v. Daniel Daoust, 197 Fed. 678, June 22, 1912. [1,2] The present case, however, involves an additional phase. The evidence shows that the defendant sometimes served Bo-La jn Moxie glasses, which had been put out by the Moxie Company to him when carrying the Moxie beverage, and in these glasses the word “Moxie” was prominently blown. It is, of course, reasonable to assume that the Moxie Company did not intend these'glasses, furnished to their dealers, to be used in connection with other beverages, and I think the defendant’s use of the glasses was wrongful, and that an injunction should issue under that feature of the bill. The defendant thus prevails upon the substantial branch of the complainant’s case, and fails on that phase which, though wrongful in this particular case, is practically inconsequential, and, as a result, I think there should not be costs either way. A decree will be drawn in accordance with this opinion.