O'CONNELL et al. v. NATIONAL WATER CO.

O’CONNELL et al. v. NATIONAL WATER CO. (Circuit Court of Appeals, Third Circuit. May 13, 1908.) No. 23. Trade-MAlims and Trade-Names — Unlawful Competition — Deception of Public. In order to entitle complainant to relief in a suit for unlawful competition, it is not necessary that the public should he actually deceived; it being sufficient that the infringement had a tendency to deceive. LEd. Note. — For cases in point, see Cent Dig. vol. 46, Trade-Marks and Trade-Names, § 86. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. O. A. 376.1 Appeal from Circuit Court of the United States for the Eastern District of Pennsylvania. For opinion below, see 159 Fed. 1001. John H. Fow, for appellants. J. J. Kennedy, for appellee. Before DAUUAS, GRAY, and BUFFINGTON, Circuit Judges. [MAJORITY — DALLAS, Circuit Judge.] DALLAS, Circuit Judge. This is an appeal from a decree of the Circuit Court for the Eastern District of Pennsylvania, awarding the usual relief to the complainant below (the appellee here) for unfair competition in trade. This decree was so satisfactorily vindicated by the learned judge who made it that we are content to rest our affirmance of it on his opinion. 159 Fed. 1001. Upon a single point, however, we add a few words in deference to the earnestness and ability with which the learned counsel of the appellant pressed ii upon our attention. It is claimed that there was no evidence to warrant a finding that any one had really been deceived into believing that the water put upon the market by the defendants below was that which was dealt in hy the plaintiff; but the sufficient answer to this claim is that “it is not necessary that the public should be actually deceived in order to afford a right of action. All that is required is that the infringement should have a tendency to deceive,” and of this, in the present case, there could be no reasonable doubt. Shaw et al. v. Pilling, 175 Pa. 78-87, 34 Atl. 446; Consolidated Ice Co. v. Hygeia Distilled Water Co., 151 Fed. 10-12, 80 C. C. A. 506. The decree of the Circuit Court is affirmed.