Appeal fom the Circuit Court of the United States for the Northern Division of the Western District of Washington.

Suit by the G. H'eileman Brewing Company against the Independent Brewing Company. Decree for defendant, and complainant appeals.

This cause comes here on demurrer to the hill of complaint; the demurrer ■ having been sustained and the bill dismissed.

The complaint sets forth, in effect, omitting the formal parts, that complainant has for more than eight years preceding the commencement of the suit manufactured at La Orosse, in the state of AVisconsin, a certain high quality of beer which it has marked and designated by the use of a label, which said label has been employed for the purpose of identifying the true and genuine product of the complainant and the quality of the goods bearing such mark. A copy of the label is annexed to the complaint and marked “Exhibit A.”

It is further alleged, upon information and belief, that, prior to the adoption of the label and mark by complainant, it had not been used by others to designate the same or a similar kind of goods; that the same was original with complainant, and does now and always has designated the true and genuine manufacture of complainant, except for the use thereof by defendant in manner as alleged;' that upon application and compliance with the statutes', rules, and regulations pertaining to the registration of trade-marks, complainant-obtained from the United States Patent Office a certificate of registration of its said label, bearing date June 25, 1907, and numbered 63,492, a certified copy, being annexed to the complaint.

The mark of complainant used' for designating beer is described as consisting “essentially of a conventional or typical-Dutch or German scene with su inn and table surrounded by drinkers and with a subterranean or underlying passage, recess, or room showing vats, barrels, or other receptacles such as are ordinarily employed for storing beer, together with a scene of a cooper or coopers making or working upon the building of a barrel or butt,” which, it is alleged, was original with complainant, and has been used exclusively by complainant for designating the beer of its manufacture for the period designated, namely, since about January 1. 1902. except its wrongful use by defendant, which nse has been by continuously and uninterruptedly applying the same directly to bottles or other receptacles containing beer of complainant's manufacture, and which said beer lias been shipped, transported, and sold in Interstate commerce between the state of Wisconsin and many other states of the United States.0

The complainant further shows that it has expended large sums of money and a great amount of labor in perfecting, advertising, and exploiting its said beer, to the end that the quality of said beer shall and has become known to the public; that the public, by reason of such excellence of quality and by such exploiting has come to know the beer, the manufature of complainant, as and for a high grade and quality of beer, and to know that said beer is designated by the mark and label attached to the complaint, and the same is purchased and designated by the purchasing public by the mark and label aforesaid; that complainant is now and always has been since about the said 1st day of January, 1902. the sole and exclusive owner of the said mark and label, and is now entitled to the sole and exclusive use of the same in the designation of its product.

It is then further shown that “with full knowledge in the premises and of the reputation of your orator's beer and of the demand existing for the samo and in the use and meaning of your orator's said mark and label consisting of the Dutch or German drinking scene with the subterranean room or passage containing barréis or butts as indicating and identifying the quality, origin, and genuineness of your orator's beer, the defendant, the Independent Brewing Company, of Seattle, in the county of King and state of Washington, the corporation as aforesaid, moaning and intending to divert and secure to itself such portions of the good will of your orator’s business in manufacturing and selling beer and to destroy for its own profits by unlawful means the reputation of and demand for your orator’s beer wholly without your orator’s consent and against its repeated protests, lias manufactured and sold beer of a quality different from and inferior to your orator’s beer in this district and elsewhere, and has used upon such beer in connection with the sale of the same your orator's trade-mark in so nearly the exact form and configuration as employed by your orator as to deceive purchasers into believing that the beer the manufacture of the defendant was and is the beer manufactured by your orator, and to confuse and defraud the public into purchasing the defendant's beer believing it to he the beer of your orator.” A copy of the mark and label employed and used by the defendant is also attached to and made a part of the complaint, being marked “Exhibit C.”

The complaint further shows that the defendant employs the said label exemplified by Exhibit C in the same manner as complainant; employs the label exemplified by Exhibit A upon The pure and genuine manufacture of complainant. by attaching the said label directly to the bottles containing the beer and manufacture of defendant. “That the bottles to which said labels of your orator as exemplified by Exhibit A and the infringing label and mark as exemplified by Exhibit C are cylindrical in form and of such .proportion that the labels exemplified by Exhibits A and G, when so attached to bottles as aforesaid, are not visible in their entirety, but only in sections, and that certain sections of the label exemplified by Exhibit G more nearly resemble corresponding sections of your orator’s label exemplified by Exhibit A than as is the case with other sections.” That the defendant (this on information and belief) “has sold beer not manufactured by or for your orator bearing the said fraudulent trade-mark and label among the several states of the United States, and has without your orator’s consent reproduced, counterfeited, copied, and plainly obviously imitated your orator’s said trade-mark and label to your orator’s great loss and injury.” “That the defendant continues to unlawfully interfere with and divert your orator's business and the profits therefrom to its own use and behoof, and that the public has been and continues to be misled, and that the beer the manufacture of the defendant has been and continu.es to be sold as and for the true and genuine beer of your orator’s manufacture .for many years known and in demand as herein-before set forth, and that the use by the defendant of the said infringing mark of your orator and of his peculiar configuration displayed thereon has the effect of enabling and promoting the impairment of the refutation of and the demand for your orator’s beer, and the fraudulent and unlawful sale and substitution of the defendant’s beer as and for the beer of your orator’s manufacture to your orator’s great loss and injury and to the great loss and injury of the public.” This is followed by appropriate allegations respecting the value of the good will of complainant’s business and the value of its right to the exclusive use of said trade-mark, and the amount of injury" it sustains annually by reason of defendant’s infringement of its said trade-mark, together with a prayer for an accounting and injunctive relief.

The demurrer assigns as reasons therefor the following:

“(1) That said bill does not state facts sufficient to constitute a cause of action in favor of the complainant.

“(2) That there appears no equity in the bill.

“(3) That it appearefh by complainant’s showing in said bill that it is not entitled to the relief prayed for, nor to any other form of relief, against the-defendant.

“(4) That it appeareth by said bill that complainant’s claim of right to relief is based upon the fraud of complainant itself, and_ot>her fraud, and such bill should be dismissed.”