June 30, 1906 (chap. 3915, 34 Stat. at L. 768, Comp. Stat. § 8717, 3 Fed. Stat. Anno. 2d ed. p. 358), if not earlier, long before this [146] suit was brought, it Coca-Cola Company to prevent the infringement of its trademark "Coca-Cola," and unfair competition with it in its business of making and selling the beverage for which the trademark is used. The was eliminated from the plaintiff's district court gave the plaintiff a decree. 235 Fed. 408. This was reversed by the circuit court of appeals. 167 C. C. A. 214, 255 Fed. 894. Subsequently a writ of certiorari was granted by this court. 250 U. S. 637, 63 L. ed. 1183, 39 Sup. Ct. Rep. 493. [145] It appears that after the plaintiff's predecessors in title had used the mark for some years, it was registered under the Act of Congress of March 3, 1881 (21 Stat. at L. 502, chap. 138), and again under the Act of February 20, 1905 (chap. 592, 33 Stat. at L. 724, Comp. Stat. § 9485, 9 Fed. Stat. Anno. 2d ed. p. 747). Both the courts below agree that, subject to the one question to be considered, the plaintiff has a right to equitable relief. Whatever may have been its original weakness, the mark for years has acquired a secondary significance, and has indicated the plaintiff's product alone. It is found that defendant's mixture is made and sold in imitation of the plaintiff's, and that the word "Koke" was chosen for the purpose of reaping the benefit of the advertising done by the plaintiff, and of selling the imitation as and for the plaintiff's goods. The only obstacle found by the circuit court of appeals in the way of continuing the injunction granted below was its opinion that the trademark in itself, and the advertisements accompanying it, made such fraudulent representations to the public that the plaintiff had lost its claim to any help from the court. That is the question upon which the writ of certiorari was granted, and the main one that we shall discuss. Of course, a man is not to be protected in the use of a device the very purpose and effect of which is to swindle the public. But the defects of a plaintiff do not offer a very broad ground for allowing another to swindle him. The defense relied on here should be scrutinized with a critical eye. The main point is this: Before 1900 the beginning of the good will was more or less helped by the presence of cocaine, a drug that, like alcohol or caffein or opium, may be described as a deadly poison or as a valuable item of the pharmacopoea, according to the rhe torical purposes in view. The amount seems to have been very small, but it may have been enough to begin a bad habit. and after the Food and Drug Act of 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," etc., and that thus the very thing sought to be protected is used as a fraud. We The argument does not satisfy us. 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, 60 L. ed. 995, 1006, 36 Sup. Ct. Rep. 573, Ann. Cas. 1917C, 487, 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 [147] 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, Argued January 28, 1920. Restored to 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. Decided docket for reargument October 11, 1920. APPEAL from the Court of Claims to review a judgment holding the United States liable for payments for maintenance and medical care of alien immigrants, alleged to have been made by a steamship company under duress. Reversed and cause remanded, with instructions to dismiss the petition. See same case below, 53 Ct. Cl. 522. Assistant Attorney General Davis argued the cause and filed a brief for appellant: which the court of claims had no jurisThe petition asserts a claim over diction. 269, 19 L. ed. 453; Morgan v. United Gibbons v. United States, 8 Wall. States, 14 Wall. 531, 535, 20 L. ed. 738, 739; Langford v. United States, 101 U. S. 341, 343, 25 L. ed. 1010, 1011; Schillinger v. United States, 155 -U. S. 163, 169, 39 L. ed. 108, 110, 15 Sup. Ct. Rep. 85; Russell v. United States, 182 U. S. 516, 530, 535, 45 L. ed. 1210, 1215, 1217, 21 Sup. Ct. Rep. 899; Harley v. United States, 198 U. S. 229, 234, 49 L. ed. 1029, 1030, 25 Sup. Ct. Rep. 634; Juragua Iron Co. v. United States, 212 U. S. 297, 309, 310, 53 L. ed. 520, 524, 525, 29 Sup. Ct. Rep. 385; Crozier v. Fried. Krupp Aktiengesellschaft, 224 U. S. 290, 303, 304, 56 L. ed. 771, 775, Decree of District Court modified and United States, 231 U. S. 530, 539, 58 776, 32 Sup. Ct. Rep. 488; Peabody v. affirmed. L. ed. 351, 353, 34 Sup. Ct. Rep. 159; United States v. Buffalo Pitts Co. 234 U. [148] UNITED STATES, Appt., S. 228, 232, 58 L. ed. 1290, 1292, 34 Sup. Ct. Rep. 840; Basso v. United NEDERLANDSCH-AMERIKAANSCHE States, 239 U. S. 602, 60 L. ed. 462, 36 V. STOOMVAART MAATSCHAPPIJ (Holland-America Lijn). (See S. C. Reporter's ed. 148-155.) Claims - jurisdiction -tort. Sup. Ct. Rep. 226; Tempel v. United Mr. cause, Howard Mansfield argued the The claim sued on is founded both A claim against the United States which rests upon payments for maintenance and medical care of alien immigrants, alleged to have been made by a steamship Grady and Lucius H. Beers, filed a company under duress because of wrongful brief for appellee: and tortious acts of Federal officials, without authority of law, in coercing the claimant to pay the sums demanded, is not justiciable in the court of claims under the Judicial Code, § 145, being a claim sounding in tort, within the exception made by that section. [For other cases, see Claims, 128-131, in Digest Sup. Ct. 1908.] [No. 53.] 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, 46 L. ed. 713, 22 Sup. Ct. Rep. 493; Dooley v. United States, 182 U. S. 222, 224, 45 L. ed. 1074, 1078, 21 Sup. Ct. Rep. 762; United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349. [150] Mr. Justice Day delivered the opinion of the court: A suit was brought in the court of claims by the Holland-American Line to recover from the United States for the cost of the maintenance and medical care furnished by the United States for certain aliens brought by the plaintiff to this country on the steamers of its line, which it had been required to pay. The petition sets forth that the United States immigration officials temporarily detained some aliens in hospitals because they were alleged to be suffering from temporary illness, or accompanied aliens who were so suffering, and subsequently permitted them to enter the country; the aliens were detained and subsequently admitted under the act of Congress known as the Immigration Act, passed February 20. 1907 [34 Stat. at L. 898, chap. 1134, Comp. Stat. 4242, 3 Fed. Stat. Anno. 2d ed. p. 637]. It is stated that the Secretary of Commerce and Labor and the Commissioner-General of Immigration, and their subordinates, claiming to act under the authority of the Immigration Act, rendered to the petitioner from month to month bills for the hospital treatment and maintenance of the aliens so detained and subsequently admitted. Certain regulations of the Commissioner-General of Immigration are cited; and it is alleged that the United States officials threatened that if the bills were not paid, thereafter all aliens so brought to this country would be held on board ship until their application for admission to the United States should be finally adjudicated. It is set forth that on all vessels arriving in the port of New York there were aliens who were temporarily detained and subsequently admitted; that detention on board ship would have delayed the sailing of petitioner's vessels from periods varying from a few days to several weeks. The threats were actually carried out, at least in one instance, and if vessels were so detained, the result would have been not merely great inconvenience and financial loss to the petitioner, [151] but a complete disruption of oceanic commerce in the port of New York and the United States. "Consequently, the petitioner paid, under duress and involuntarily, the bills, when rendered." It is alleged that the exaction of such payments of the petitioner, and the making of such threats, were entirely without warrant of law; that the Immigration Act provides that where a suitable building is used for the detention and examination of aliens, the immigration officials shall there take charge of such aliens, and the transportation companies shall be relieved of the responsibility for their detention thereafter; that there was in the port of New York a suitable building for the detention and examination of aliens; that the Immigration Act required petitioner to pay the United States $4 for each alien entering the United States on its vessels; that the aliens whose hospital and maintenance expense bills were rendered to and paid by the petitioner were detained and examined and subsequently admitted to the United States, pursuant to the requirements of the Immigration Act; that special appropriations have been made for all expenses of the enforcement of the laws regulating the immigration of aliens into the United States, so that there has always been an available fund in the United States Treasury for the payment of the expenses of regulating the immigration of aliens into the United States, including the hospital bills referred to above. Petitioner recites disagreement, as to such charges, between the Secretary of Commerce and Labor and the steamship companies transporting aliens to the United States, and sets forth that an action was brought by the United States in the United States district court for the southern district of New York against the petitioner, to recover hospital charges for aliens brought to the port of New York and temporarily detained and subsequently admitted. A judgment in favor of the company was [152] subsequently reviewed by the circuit court of appeals, and was there affirmed. See 128 C. C. A. 628, 212 Fed. 116, affirmed by an equally divided court, 235 U. S. 686, 59 L. ed. 424, 35 Sup. Ct. Rep. 203. It is further alleged that the exaction from the claimant of the above-mentioned hospital charges under duress was in violation of its rights and privileges secured to petitioner as a subject of the Kingdom of the Netherlands under the Constitution of the United States, by the treaties between the United States and the Kingdom of the Netherlands and the laws of the United States; that the amounts thus unlaw fully exacted from the claimant were | L. ed. 453; Morgan v. United States, 14 remitted to the commissioner of immi- Wall. 531, 20 L. ed. 738; Hill v. United gration at the port of New York, as required by him. There being no demurrer, plea, answer, counterclaim, set-off, claim of damages, demand, or defense in the premises on the part of the United States, the court of claims directed a general traverse under the rules of the court, and afterwards made findings of fact, and, substantially following the decision of the circuit court of appeals, supra, held the United States liable for the payments exacted. States, 149 U. S. 593, 37 L. ed. 862, 13 Sup. Ct. Rep. 1011; Schillinger v. United States, 155 U. S. 163, 39 L. ed. 108, 15 Sup. Ct. Rep. 85; United States v. Buffalo Pitts Co. 234 U. S. 228, 58 L. ed. 1290, 34 Sup. Ct. Rep. 840; Tempel v. United States, 248 U. S. 121, 63 L. ed. 162, 39 Sup. Ct. Rep. 56; Ball Engineering Co. v. J. G. White & Co. 250 U. S. 46, 63 L. ed. 835, 39 Sup. Ct. Rep. 393. The appellee relies upon and quotes certain expressions found in the opinion delivered in Dooley v. United States, 182 U. S. 222, 45 L. ed. 1074, 21 Sup. Ct. Rep. 762. In Basso v. United States, 239 U. S. 602, 60 L. ed. 462, 36 Sup. Ct. Rep. 226, suit was brought in the court of claims for the illegal arrest and As to the claim that the plaintiff had bound itself by contract to pay these charges, the court held that the claimant was coerced into making the contract by threats of the defendant which would have destroyed the plaintiff's imprisonment of the claimant upon a business if ever executed. The government contends that the claim thus presented was one sounding in tort, and, consequently, not within the jurisdiction of the court of claims, and that the petition should have been dismissed. The jurisdiction of the court of claims rests upon § 145 of the Judicial Code [36 Stat. at L. 1136, chap. 231, Comp. Stat. § 1136 (1), 5 Fed. Stat. Anno. 2d ed. p. 649], re-enactment of the Tucker Act of March 3, 1887 [24 Stat. at L. 505, chap. 359]. The jurisdiction conferred includes: charge of having imported goods from the United States into Porto Rico without having made entry of the same under an act of Congress which the appellant alleged was not in force in Porto Rico. It was alleged that the court was without jurisdiction, and that, therefore, the trial, conviction, and sentence of imprisonment deprived him of his liberty without due process of law, in violation of the Constitution. The United States filed a general [154] traverse of the petition, and subsequently moved to dismiss upon the ground that the court had no jurisdiction, as the action sound"All claims (except for pensions) ed in tort. This motion was sustained in founded upon the Constitution of the the court of claims, and an appeal taken United States or any law of Congress, to this court. Speaking of the conten[153] upon any regulation of an execution of the appellant that the court of tive department, upon any contract, ex- claims had jurisdiction, this court said: press or implied, with the government of "He, however, contends that the court the United States, or for damages, liqui- of claims has jurisdiction under the dated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty, if the United States were suable." We think that the statement of the substance of the petitioner's claim, as above set forth, shows that it rested upon payments alleged to have been made under duress because of the wrongful and tortious acts of officials of the United States government, acting without authority of law in coercing the claimant to pay the sums demanded. In many decisions of this court it has been held that by the provisions of the Tucker Act the government did not subject itself to liability for the torts or wrongful acts of its officers. Gibbons v. United States, 8 Wall. 269, 19 Tucker Act over claims ex delicto founded upon the Constitution of the United States. And this, he further contends, is supported by the recent decisions of this court, and relies especially upon Dooley v. United States, supra. "But that case did not overrule Sahillinger v. United States, 155 U. S. 163, 39 L. ed. 108, 15 Sup. Ct. Rep. 85, which, counsel says, holds directly contrary to his contention, and that he has not the ingenuity to suggest how the court can now decide the case at bar in appellant's favor without at least by implication overruling the Schillinger Case. We are not disposed to overrule the case, either directly or by implication. "The Dooley Case and cases subsequent to it which are relied upon by the 195 titioner, V. PROCTER & GAMBLE COMPANY. appellant concerned the exaction of du- | [156] BERLIN MILLS COMPANY, Peties or taxes by the United States or its officers, or property taken by the government for public purposes. In such cases jurisdiction in the court of claims for the recovery of the duties and taxes or for the value of the property taken was declared. "In the case at bar (assuming as true all that is charged) there was a wrong inflicted, if a wrong can be said to have been inflicted by the sentence of a court legally constituted after judgment upon issues openly framed by the opposing parties, both of fact and the applicable law, whether that law was §§ 2865 and 3082 of the Revised Statutes (Comp. Stat. §§ 5548, 5785, 2 Fed. Stat. Anno. 2d ed. pp. 1003, 1168) or the Constitution of the United States. But, conceding that a wrong was inflicted through these judicial forms, the case nevertheless is of different character from the Dooley [155] Case, as was also the Schillinger Case. The latter case passed upon the jurisdiction of the court of claims in actions founded on tort, and declared the general principle to be, based on a policy imposed by necessity, that governments are not liable (155 U. S. p. 167) 'for unauthorized wrongs inflicted on the citizen by their officers, though occurring while engaged in the discharge of official duties.' And it was further said (p. 168): 'Congress has wisely reserved to itself the right to give or withhold relief where the claim is founded on wrongful proceedings of an officer of the government.' Gibbons V. United States, 8 Wall. 269, 275, 19 L. ed. 453, 454; Morgan v. United States, 14 Wall. 531, 534, 20 L. ed. 738, 739." The principle, reaffirmed in the case just quoted, is applicable here for the reason that the claim presented sounded in tort, and was in substance an action to recover for the wrongful acts of the United States officials in compelling the claimant to pay under duress and without authority of law the sums sued for. Following the well-established construction of the Tucker Act, as declared in many cases in this court, we think that the Court of Claims should have dismissed the petition because it presented a claim not within its jurisdiction. The judgment of the Court of Claims is reversed, and the cause remanded to that court with instructions to dismiss the petition. Reversed. (See S. C. Reporter's ed. 156-166.) Patents since it invention prior art. The Burchenal patent No. 1,135,351, for a lard-like food product consisting of a vegetable oil partially hydrogenized to a homogeneous whitish, yellowish product, must be deemed void for lack of invention, was previously known that a vegetable oil could be changed into a semisolid homogenous substance by a process of hydrogenation arrested before completion, and that the product might be edible, and the product of this process was also known and open to public use. [For other cases, Patents, V. b, 7, in Digest Sup. Ct. 1908.] see [No. 93.] Argued November 15, 1920. Decided De N WRIT of Certiorari to the United for the Second Circuit to review a decree which reversed a decree of the District Court of the United States for the Southern District of New York in favor of defendant in a patent infringement suit, and remanded the cause, with directions to enter a decree adjudging certain claims of such patent to be valid and infringed. Reversed and cause remanded to the District Court, with directions to dismiss the bill. See same case below, 167 C. C. A. 295, 256 Fed. 23. The facts are stated in the opinion. Mr. Marcus B. May argued the cause, and, with Messrs. John C. Pennie and Melville Church, filed a brief for peti tioner: This court has interpreted the word Note.-On invenpatentability of tions-see notes to Evans v. Eaton, 4 L. ed. U. S. 433; Corning v. Burden, 14 L. ed. U. S. 683; Thompson v. Boisselier, 29 L. ed. U. S. 76; Grant v. Walter, 37 L. ed. U. S. 553; Wollensak v. Sargent & Co. 38 L. ed. U. S. 138; Market Street Cable R. Co. v. Rowley, 39 L. ed. U. S. 285; and Dashiell v. Grosvenor, 40 L. ed. U. S. 1025. On anticipation of patent-see notes to Leggett v. Standard Oil Co. 37 L. ed. U. S. 737, and Wollensak v. Sargent & Co. 38 L. ed. U. S. 138. 254 U. S. |