BASS, RATCLIFF & GRETTON, Limited, v. HENRY ZELTNER BREWING CO.

BASS, RATCLIFF & GRETTON, Limited, v. HENRY ZELTNER BREWING CO. (Circuit Court, S. D. New York. May 13, 1898.) Trade-Marks — Unfair Competition. One using, in connection witli pale ale, a plain red triangle stamped on a label, cannot enjoin, on the ground of unfair competition, one who uses, in connection with his lager beer, a similar red triangle, having a large white “Z” thereon, the labels and posters being so utterly unlike that the ordinary purchaser would not be deceived. This was a suit in equity by Bass, Ratcliff & Gretton, Limited, against Henry Zeltner Brewing Company, to restrain alleged unfair competition in trade. Rowland Cox, for complainants. Goepel & Raegener, for defendant. As to trade-marks and unfair competition in trade generally, see elaborate note to Scheuer v. Muller, 20 C. C. A. 165. [MAJORITY — TOWNSEND, District Judge.] TOWNSEND, District Judge. The complainants herein are the proprietors of “Bass’ Ale.” They and their predecessors have for many years continuously used labels stamped with the well-known plain red triangle on an elliptical figure, with black border and red lace-work design, bearing the words “Bass & Co.,” to designate their chief product, “Pale Ale.” The defendant has used, to designate its “'Old-Fashioned Lager Beer,” a circular label, and posters representing a strap and buckle stamped with a red triangle, having a large white “TP thereon. The labels and posters are so utterly unlike those of complainants in shape, color, and collocation of symbols and letters that a mere inspection shows that the ordinary purchaser would not be deceived. Furthermore, the defendant’s product is a different article, sold under a different name, in bottles of a different color and shape, with different cork and capsule, from those of complainants, and no unfair competition or improper use of the red triangle has been proved. For these reasons the bill may be dismissed. This conclusion dispenses with the necessity of considering the further forcible contention of defendant as to complainants’ use of said symbol.