COCA-COLA CO. v. HORSTMAN et al.

COCA-COLA CO. v. HORSTMAN et al. Circuit Court of Appeals, Fifth Circuit. February 17, 1914. No. 2478. Trade-Marks and Trade-Names (§ 93) — Suit foe Infringement — Sufficiency of Evidence. A decree dismissing a bill for infringement of trade-mark affirmed. [Ed. Note.' — -For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 104-106; Dec. Dig. § 93.] Pardee, Circuit Judge, dissenting on the merits, but holding that on the record the court was without jurisdiction. Appeal from the District Court of the United States for the Western District of Texas; Thomas S. Maxey, Judge. Suit in equity by the Coca-Cola Company against Frederick Horst-man and Angelo Bassetti, doing business under the firm name of the Austin Bottling Works. Decree for defendants, and complainant apr peals. Affirmed. M. M. Crane, of Dallas, Tex., and H. O. Head, of Sherman, Tex., for appellant. John W. Brady, of Austin, Tex., for appellees. Before PARDEE and SHEEBY, Circuit Judges, and GRUBB, District Judge. For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes [MAJORITY — PER CURIAM.] PER CURIAM. Finding this case was correctly ruled and decided in the District Court, the decree appealed from is affirmed. [DISSENT — PARDEE, Circuit Judge] PARDEE, Circuit Judge (dissenting). It seems to me that the District Court was without, jurisdiction. Diverse citizenship is not sufficiently alleged in the bill, nor otherwise shown in the record (Grace v. American Central Ins. Co., 109 U. S. 278, 3 Sup. Ct. 207, 27 L. Ed. 932; Wrisley v. Rouse Soap Co., 90 Fed. 5, 32 C. C. A. 496), and the bill does not allege, nor is it shown by evidence in the record, that the defendants are infringing complainant’s trade-mark in interstate, foreign, or Indian commerce. Ryder v. Holt, 128 U. S. 52S, 9 Sup. Ct. 145, 32 L. Ed. 529; Warner v. Searle & Hereth Co., 191 U. S. 195, 24 Sup. Ct. 79, 48 L. Ed. 145. As the record stands, the decree below is one dismissing the bill on the merits. In my judgment, on the merits the complainant below and appellant here is entitled to relief, and the decree below., dismissing the bill, should be so qualified as to permit complainant to bring another suit.