FRENCH et al. v. ALTER & JULIAN CO. et al.

FRENCH et al. v. ALTER & JULIAN CO. et al. (Circuit Court, S. D. Ohio, W. D. June 1, 1896.) No. 4,895. Trade-Mark — Preliminary Injunction. A preliminary injunction upon a trade-mark which has not been established by adjudication will not be granted, where defendant’s affidavits indicate a prior use, though it be doubtful whether the same was not abandoned. This was a bill in equity by French, Shriner & Urner against the Alter & Julian Company and others for alleged infringement of a trade-mark. Complainants moved for a preliminary injunction. Fish, Richardson & Storrow and Joseph Willby, for complainants. Wood & Boyd, for respondents. [MAJORITY — SAGE, District Judge.] SAGE, District Judge. The motion for a temporary injunction is overruled, for the reason that affidavits filed on behalf of defendants indicate prior use of the trade-mark claimed by complainants. Whether such prior use is established, and, if so, whether it was limited and has been abandoned, is in dispute, and need not now be determined. It is sufficient to say that, the complainants’ title to the trade-mark not having been established by adjudication, and being now called in question, the doubt is enough to authorize the court, in its discretion, to refuse a temporary injunction, and leave the question for determination upon the final hearing.