Schmidt

The facts found by the court below in this case are in all respects the same as those found by the court in Schmidt v. Brieg (this day filed), 100 Cal. 672 , 22 L. R. A. 790, 35 Pac. 623 , except as to the amount of damages. A decree like the decree in the Brieg case was entered, the damages, however, being fixed in this case at $3,163.70. In the Brieg case we held that the plaintiffs were not entitled to the exclusive use of the words “Sarsaparilla and Iron” as. a trademark, but that they were entitled to a decree restraining the defendants from selling or offering to sell any beverage under the label, exhibit “B,” attached to the complaint therein, and to an affirmance of the judgment for damages and costs. Our decision in that case is based upon the finding of the court that the defendants, with intent to divert to themselves the business of the plaintiffs and the profits and gains thereof, and to deceive the public, had fraudulently prepared and sold an inferior article in imitation of the plaintiffs ’ beverage, and, with intent to deceive and defraud the public and injure and defraud the plaintiffs, had caused said inferior article to be put up in bottles and packages similar…