Spieker

Suit in equity to enjoin the infringement of a trademark and the diversion of the trade or custom of the plaintiff to whom had been transferred the goodwill of the business in which the trademark had been acquired and used.

The complaint contains two counts, the first alleging an infringement of plaintiff’s trademark and proprietary name, “Lash’s Kidney and Liver Bitters”; and the second, a cause of action for breach of warranty implied in a sale of the goodwill of the business, which included the manufacture and sale of said bitters.

In the year 1884 the plaintiff and defendant formed a partnership at Sacramento under the firm name of T. M. Lash & Co., in the purchase and sale of drugs and medicines, and the manufacture and sale of medicinal preparations.

In 1886 they made up a formula for a medicinal preparation of bitters principally intended to benefit the kidneys and liver, and gave it the name “Lash’s Kidney and Liver Bitters”; and thereafter the partnership of T. M. Lash & Co. built up a large and profitable *42 business in the manufacture and sale of that preparation. The preparation was not patented, but the firm registered a trademark thereof in the office of the…