WEBER MEDICAL TEA CO. v. KIRSCHSTEIN

WEBER MEDICAL TEA CO. v. KIRSCHSTEIN. (Circuit Court, S. D. New York. May 7, 1900.) Unfair Competition — Oral Representations bv Dealer. Although by a prior adjudication it has been determined that another manufacturer has the right to use labels and packages containing a name similar to that used by complainant, a dealer in the goods of such manufacturer may be enjoined from making further oral representations tending to confuse the goods of the two makers in the minds of purchasers. On Motion for Preliminary Injunction. Louis C. Baegener, for the motion. James A. Whitney, opposed. [MAJORITY — LACOMBE, Circuit Judge.] LACOMBE, Circuit Judge. In view of the decision of the case against Wilhelmina Weber in the Eastern district, complainant is not entitled to any relief which will interfere with the labels or manner of packing the goods complained of. The further representation, however, of the defendant, when selling, that such tea is ‘Weber’s tea,” .is an independent act not considered in the'former suit. He may sell the packages which Wilhelmina is allowed to put up, and which represent the goods as “genuine imported Alpine herb tea, manufactured by F. G-. Weber & Co.,” and may repeat that representation orally; hut, when he further represents the contents to he “Weber’s tea,” his statements, as the affidavits show, tend to produce a confusion of. goods, against which the.public should be protected. The prayer for relief seems to be broad enough to warrant an injunction, against selling any preparation, not manufactured by complainant, upon the representation that it is “Weber’s tea.” To that extent the motion is granted; in all other respects, it is denied.