employed may be used to justify the continuance of the name or they may affect the flavor as the plaintiff contends, but before this suit was brought the plaintiff had advertised to the public that it must not expect and would not find cocaine, and had eliminated everything tending to suggest cocaine effects except the name and the picture of the leaves and nuts, which probably conveyed little or nothing to most who saw it. It appears to us that it would be going too far to deny the plaintiff relief against a palpable fraud because possibly here and there an ignorant person might call for the drink with the hope for incipient cocaine intoxication. The plaintiff's position must be judged by the facts as they were when the suit was begun, not by the facts of a different condition and an earlier time. The decree of the District Court restrains the defendant from using the word Dope. The plaintiff illustrated in a very striking way the fact that the word is one of the most featureless known even to the language of those who are incapable of discriminating speech. In some places it would be used to call for Coca-Cola. It equally would have been used to call for anything else having about it a faint aureole of poison. It does not suggest Coca-Cola by similarity and whatever objections there may be to its use, objections which the plaintiff equally makes to its application to Coca-Cola, we see no ground on which the plaintiff can claim a personal right to exclude the defendant from using it. The product including the coloring matter is free to all who can make it if no extrinsic deceiving element is present. The injunction should be modified also in this respect. Decree reversed. Decree of District Court modified and affirmed. Opinion of the Court. 254 U.S. suit was brought, it was eliminated from the plaintiff's compound. Coca leaves still are used, to be sure, but after they have been subjected to a drastic process that removes from them every characteristic substance except a little tannin and still less chlorophyl. The cola nut, at best, on its side furnishes but a very small portion of the caffein, which now is the only element that has appreciable effect. That comes mainly from other sources. It is argued that the continued use of the name imports a representation that has ceased to be true and that the representation is reinforced by a picture of coca leaves and cola nuts upon the label and by advertisements, which however were many years before this suit was brought, that the drink is an "ideal nerve tonic and stimulant,' &c., and that thus the very thing sought to be protected is used as a fraud. The argument does not satisfy us. We are dealing here with a popular drink not with a medicine, and although what has been said might suggest that its attraction lay in producing the expectation of a toxic effect the facts point to a different conclusion. Since 1900 the sales have increased at a very great rate corresponding to a like increase in advertising. The name now characterizes a beverage to be had at almost any soda fountain. It means a single thing coming from a single source, and well known to the community. It hardly would be too much to say that the drink characterizes the name as much as the name the drink. In other words Coca-Cola probably means to most persons the plaintiff's familiar product to be had everywhere rather than a compound of particular substances. Although the fact did not appear in United States v. Coca Cola Co., 241 U. S. 265, 289, we see no reason to doubt that, as we have said, it has acquired a secondary meaning in which perhaps the product is more emphasized than the producer but to which the producer is entitled. The coca leaves and whatever of cola nut is employed may be used to justify the continuance of the name or they may affect the flavor as the plaintiff contends, but before this suit was brought the plaintiff had advertised to the public that it must not expect and would not find cocaine, and had eliminated everything tending to suggest cocaine effects except the name and the picture of the leaves and nuts, which probably conveyed little or nothing to most who saw it. It appears to us that it would be going too far to deny the plaintiff relief against a palpable fraud because possibly here and there an ignorant person might call for the drink with the hope for incipient cocaine intoxication. The plaintiff's position must be judged by the facts as they were when the suit was begun, not by the facts of a different condition and an earlier time. The decree of the District Court restrains the defendant from using the word Dope. The plaintiff illustrated in a very striking way the fact that the word is one of the most featureless known even to the language of those who are incapable of discriminating speech. In some places it would be used to call for Coca-Cola. It equally would have been used to call for anything else having about it a faint aureole of poison. It does not suggest Coca-Cola by similarity and whatever objections there may be to its use, objections which the plaintiff equally makes to its application to Coca-Cola, we see no ground on which the plaintiff can claim a personal right to exclude the defendant from using it. The product including the coloring matter is free to all who can make it if no extrinsic deceiving element is present. The injunction should be modified also in this respect. Decree reversed. Decree of District Court modified and affirmed. Argument for Appellee. 254 U.S. UNITED STATES v. NEDERLANDSCH-AMERI KAANSCHE STOOMVAART (HOLLAND-AMERICA LIJN.) MAATSCHAPPIJ APPEAL FROM THE COURT OF CLAIMS. No. 53. Argued January 28, 1920; restored to docket for reargument October 11, 1920; reargued November 17, 1920.-Decided December 6, 1920. A foreign steamship company alleged that, under duress practiced by the immigration authorities, it paid bills rendered by them under color of the Immigration Act, for maintenance and medical care furnished by the United States to certain immigrants who, after landing from the company's ships, were temporarily detained before being admitted to the country, and it claimed reimbursement under the Tucker Act, upon the ground that the exactions were in violation of its rights as an alien subject, secured by the Constitution, treaties and laws of the United States. Held, that the claim, being founded on alleged torts of federal officials, was not within the Tucker Act or the jurisdiction of the Court of Claims. P. 155. 53 Ct. Clms. 522, reversed. THE case is stated in the opinion. Mr. Assistant Attorney General Davis for the United States. Mr. Howard Mansfield, with whom Mr. Lucius H. Beers and Mr. Franklin Grady were on the briefs, for appellee: The claim sued on is founded both upon a law of Congress and upon a regulation of an executive department of the Government, and the Court of Claims clearly had jurisdiction. Patton v. Brady, 184 U. S. 608, 611; Dooley v. United States, 182 U. S. 222; United States v. Lynah, 188 U. S. 445. 148. Argument for Appellee. The cases cited by the Government hold, what is not disputed, that Congress has not permitted suits against the Government for mere torts, nor for tortious acts of its representatives, unless the claim is founded upon the Constitution, some law of Congress, or some regulation of an executive department. Attention is not drawn to any decision of this court holding that when an officer or other representative of the United States, professing to act under a law of Congress, wrongfully exacts money from an individual, and pays the money into the United States Treasury, the United States has not authorized a suit for the recovery of such money. Distinguishing: Ball Engineering Co. v. White & Co., 250 U. S. 46; Tempel v. United States, 248 U. S. 121; Basso v. United States, 239 U. S. 602; United States v. Buffalo Pitts Co., 234 U. S. 228; Peabody v. United States, 231 U. S. 530; Crozier v. Krupp, 224 U. S. 290; Harley v. United States, 198 U. S. 229; Russell v. United States, 182 U. S. 516; Schillinger v. United States, 155 U. S. 163; Langford v. United States, 101 U. S. 341; Gibbons v. United States, 8 Wall. 269. These cases hold no more than that the United States cannot be sued for a tort, unless the case arises (1) under the Constitution, (2) under a law of Congress, or (3) under a regulation of an executive department. No liability was imposed by law upon claimant to pay the hospital expenses of aliens ultimately admitted to the United States. Claimant was under no contract obligation to pay such expenses. These expenses were payable out of the head tax fund, provided by Congress for that purpose, and ample in amount. The payments having been involuntarily made under compulsion and duress, claimant is entitled to recover the amounts paid. |