name, if thus descriptive, would import a different product from the one to which it was actually affixed. And, in the case supposed, the name would not become the 'distinctive name' of a product without any coca ingredient unless in popular acceptation it came to be regarded as identifying a product known to be of that character. It would follow that the mere sale of the product under the name 'Coca,' and the fact that this was used as a trade designation of the product, would not suffice to show that it had ceased to have its original significance if it did not appear that it had become known to the public that the article contained nothing derived from coca. Until such knowledge could be attributed to the public the name would naturally continue to be descriptive in the original sense. Nor would it be controlling that at the time of the adoption of the name the coca plant was known only to foreigners and scientists, for if the name had appropriate reference to that plant and to substances derived therefrom, its use would primarily be taken in that sense by those who did know or who took pains to inform themselves of its meaning. Mere ignorance on the part of others as to the nature of the composition would not change the descriptive character of the designation. The same conclusion would be reached if the single name 'Cola' had been used as the name of the product, and it were found that in fact the name imported that the product was obtained from the cola nut. The name would not be the distinctive name of a product not so derived until in usage it achieved that secondary significance.

We are thus brought to the question whether if the names coca and cola were respectively descriptive, as the Government contends, a combination of the two names constituted a 'distinctive name' within the protection of the proviso in case either of the described ingredients was absent. It is said that 'coca' indicates one

article, and 'cola' another, but that the two names together did not constitute the distinctive name of any other substance or combination of substances. The contention leads far. To take the illustration suggested in argument, it would permit a manufacturer, who could not use the name chocolate to describe that which was not chocolate, or vanilla to describe that which was not vanilla, to designate a mixture as 'Chocolate-Vanilla,' although it was destitute of either or both, provided the combined name had not been previously used. We think that the contention misses the point of the proviso. A mixture or compound may have a name descriptive of its ingredients or an arbitrary name. The latter (if not already appropriated) being arbitrary, designates the particular product. Names, however, which are merely descriptive of ingredients are not primarily distinctive names save as they appropriately describe the compound with such ingredients. To call the compound by a name descriptive of ingredients which are not present is not to give it 'its own distinctive name'-which distinguishes it from other compounds--but to give it the name of a different compound. That, in our judgment, is not protected by the proviso, unless the name has achieved a secondary significance as descriptive of a product known to be destitute of the ingredients indicated by its primary meaning.

In the present case we are of opinion that it could not be said as matter of law that the name was not primarily descriptive of a compound with coca and cola ingredients, as charged. Nor is there basis for the conclusion that the designation had attained a secondary meaning as the name of a compound from which either coca or cola ingredients were known to be absent; the claimant has always insisted, and now insists, that its product contains both. But if the name was found to be descriptive, as charged, there was clearly a conflict of evidence with respect to the presence of any coca ingredient. We con

clude that the court erred in directing a verdict on the second count.

The judgment is reversed and the cause is remanded for further proceedings in conformity with this opinion. It is so ordered.

MR. JUSTICE MCREYNOLDS took no part in the consideration or decision of this case.

SEABOARD AIR LINE RAILWAY v. RENN.

ERROR TO THE SUPREME COURT OF THE STATE OF NORTH CAROLINA.

No. 773. Argued April 4, 1916.-Decided May 22, 1916.

Whether the state court, in permitting an amendment to the complaint in an action under the Employers' Liability Act, disregarded the provision in § 6 limiting the time to commence actions under the Act, is a Federal question, although the allowance of the amendment otherwise might rest in the discretion of the court and be a matter of local procedure.

An amendment which merely expands or amplifies what was alleged in support of the cause of action asserted in the original complaint relates back to the commencement of the action and is not affected by the intervening lapse of time.

An amendment which introduces a new or different cause of action is the equivalent of a new suit which would be barred by § 6 if made more than two years after the cause of action arose.

Although the original complaint in this case may not have distinctly shown that the cause of action arose under the Employers' Liability Act still as it did not allege that the cause of action arose under the law of the State where it occurred, and did allege that defendant was engaged in operating its railroad in that and other States, held that an amendment that plaintiff's employment and defendant's engagement were both in interstate commerce at the time of the

241 U. S.

Argument for Plaintiff in Error.

injury did not amount to the statement of a new cause of action, but merely amplified or expanded that already stated and related back to the commencement of the suit.

Both courts below having concurred against defendant's request for instruction that there was no evidence of actionable negligence and there being no clear error this court will not disturb such conclusions. Where the charge as a whole was fair, objections made at the time, but which did not specifically draw the attention of the trial court to inaccuracies in portions of the charge respecting the measure of damages, cannot, where not dealt with by the appellate court, be pressed in this court.

86 S. E. Rep. 964, affirmed.

THE facts, which involve the validity of a verdict and judgment for damages for personal injuries in an action under the Employers' Liability Act, are stated in the opinion.

Mr. Murray Allen for plaintiff in error:

Plaintiff was at the time of his injury employed in interstate commerce and his complaint states a cause of action under the statute of North Carolina defining the liability of a railroad to its employés, and also under the common law.

The complaint does not state a cause of action under the Federal statute.

That the carrier was engaged in interstate commerce and the employé was employed in such commerce at the time of the injury are essential allegations.

The court will look only to pleadings to determine the basis of plaintiff's cause of action.

The cause of action created by the Federal statute is separate and distinct from the cause arising under the common law.

The plaintiff had the selection of the basis of his action.

The court had no power to allow an amendment stating for the first time a cause of action under the Federal act

after the expiration of the period fixed by the act for the commencement of such action.

The amendment allowed by the court states a new cause of action, which is barred by the expiration of the period of limitation fixed by the act creating the right of action.

State courts accept Union Pacific R. R. v. Wyler, 158 U. S. 285, as controlling and refuse to permit amendments stating a cause of action under the Federal act after the expiration of two years.

The points of difference in an action based upon the common law and the statute of North Carolina and an action based upon the Federal Employers' Liability Act are material.

The facts showing the injury sustained by plaintiff do not of themselves constitute a cause of action.

There is not sufficient evidence of negligence in this case to be submitted to the jury.

Plaintiff assumed the risk of injury from slipping on ice around the water tank.

Mr. Robert N. Simms and Mr. Wm. C. Douglass, with whom Mr. Clyde A. Douglass was on the brief, for defendant in error.

MR. JUSTICE VAN DEVANTER delivered the opinion of the court.

This was an action by an employé of a railroad company to recover from the latter for personal injuries suffered through its negligence. The plaintiff had a verdict and judgment under the Employers' Liability Act of Congress, c. 149, 35 Stat. 65; c. 143, 36 Stat. 291, the judgment was affirmed, 86 S. E. Rep. 964, and the defendant brings the case here.

The original complaint was exceedingly brief and did