v. Crane Bros. Mfg. Co., 27 Fed. Rep. 550; Story's Eq. Pl. § 72, quoted and approved in Gregory v. Stetson, 133 U. S. 579; Foster's Fed. Prac., vol. 1, § 42, p. 110; Chadbourne's Executors v. Coe, 10 U. S. App. 78; Williams v. Bankhead, 19 Wall. 563.

If the government of the United States were a complainant in this case, as the government of France is a complainant, there could be no imputation of laches. United States v. Kirkpatrick, 9 Wheat. 720; Dox v. Postmaster-General, 1 Pet. 318; United States v. Knight, 14 Pet. 301; Gibbons v. United States, 8 Wall. 269; Gibbons v. Chouteau, 13 Wall. 92; People v. Gilbert, 18 Johnson's Reports, 229; Steele v. United States, 113 U. S. 128; United States v. Nashville &c. Ry. Co., 118 U. S. 120; United States v. Beebe, 127 U. S. 338; United States v. Insley, 130 U. S. 263; San Pedro &c. Co. v. United States, 146 U. S. 120; United States v. Thompson, 98 U. S. 486, 489; United States v. Van Zandt, 11 Wheat. 184; Lindsey v. Miller's Lessee, 6 Pet. 666; Gaussen v. United States, 97 U. S. 584:

The reasons which are good to preclude the imputation of laches in a suit by the United States apply with equal force to a suit by the French Republic. The testimony relating to the irresponsible and untruthful usage of the word "Vichy" should not be considered because it tends only to show a custom or usage which, being unreasonable, uncertain and grounded upon fraud, should not be recognized. United States v. Buchanan, 8 How. (U. S.) 83, 102; Tilley v. County of Cook, 103 U. S. 155, 163; Allen v. St. Louis Bank, 120 U. S. 20, 39; Vaughan v. Holden, Cro. Jac. 80; Taylor v. Carpenter, 2 Wood. & M. 1, and cases cited; Broad Bent v. Wilkes, Willes, 360; 5 Q. B. 701; Codman v. Evans, 5 Allen (Mass.), 308; 82 Am. Dec. 258; Tantistry, Davis's Report, p. 78; Viner's Abridgement, Customs (H), 24.

Mere laches in a case of this character will not defeat the right to injunctive relief. McLean v. Fleming, 96 U. S. 258; Menendez v. Holt, 128 U. S. 514; Law. Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 549; Brown Chemical Co. v. Meyer, 139 U.S. 546; Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 186, 202;

Saxlehner v. Eisner, 179 U. S. 19; Actiengesellschaftt &c. v. Amberg, 109 Fed. Rep. 151; Bissel Chilled Plow Works v. T. M. Bissel Co., 121 Fed. Rep. 357, 375; Rodgers v. Philp, 1 O. G. 29; Browne on Trade-marks, 2d ed. p. 661; Wolfev. Barnett, 24 La. Ann. 97; Filley v. Fassett, 44 Missouri, 173; Cohn v. Gottschalk, 14 Daly, 542; Manhattan Medicine Co. v. Wood, 4 Cliff. 461; Amoskeag Man. Co. v. Garner, 54 How. Pr. 298; Gillott v. Esterbrook, 47 Barb. 455; 48 N. Y. 374; Coleman v. Crump, 70 N. Y. 573; Sanders v. Jacobs, 20 Mo. App. 96; Amoskeag Mfg. Co. v. Spear, 2 Sandf. 599, S. C., 128 U. S. 524; Consolidated Fruit Jar Co. v. Thomas, Cox's Manual, Case 665; Julian v. Hoosier Drill Co., 75 Indiana, 408; 128 U. S. 524; Sawyer v. Kellogg, 9 Fed. Rep. 601; Williams v. Adams, 8 Biss. 452; Le Page v. Russia Cement Co., 51 Fed. Rep. 941.

The intent of article 8 of the treaty in force between the Republic of France and the United States was to prevent the loss of foreign commercial names resulting from anticipatory use, infringement or spoliation. It is submitted that it should not be reasoned that the protection guaranteed by the treaty can be defeated by showing the existence of the very abuses it was framed to prevent. Saxlehner v. Eisner, 179 U. S. 19; United States v. Rauscher, 119 U. S. 407; Geofroy v. Riggs, 133 U. S. 258.

Mr. Edgar T. Brackett for appellee:

Defendant did not act in bad faith; in all its labels and advertising it distinguished itself by name, and its water from that sold by appellant; there has been no deceit toward the public; the name Saratoga Vichy makes no claim to being Vichy imported from France, and the only conclusion deducible from the name is that the water comes from Saratoga and has certain qualities like the Vichy. This is perfectly legitimate. Brown Chemical Co. v. Stearns, 37 Fed. Rep. 360; the test is whether the name or the package deceives the public. Centaur Co. v. Marshall, 97 Fed. Rep. 785, 790; Fisher v. Blank, 138 ́N. Y. 244, 252. Unless there is evidence of actual deception

relief will not be granted. Jennings v. Johnson, 37 Fed. Rep. 364; Cohn v. Hoffman House, 7 Misc. Rep. N. Y. 461.

Defendant's bottles and packages are not indentical with complainants.

The defendant in connection with its water did not intend by the word Vichy, to defraud complainants, nor deceive the public; it has never sold its water as, or for, complainant's Vichy, nor in resemblance thereto, but all its water has been, in proper manner, labelled and marked, so that the purchaser shall know that the goods sold by the defendant is a natural mineral water of Saratoga, and not the water of the complainants. Pope v. Hart, 35 Barb. (N. Y.) 630–636; Cortland v. Herkimer, 44 N. Y. 22; Bayliss v. Cockroft, 81 N. Y. 363-371; Davis v. Marvine, 160 N. Y. 269–276; Lally v. Emery, 54 Hun (N. Y.), 517-520, 521, 522.

The word Vichy has become a generic name, with the significance stated, and the complainants have no trade-mark, or trade name, therein, or any right to legal protection in the exclusive use of it; a generic name, one merely descriptive of an article, of its qualities, ingredients, or characteristics, cannot be employed as a trade-mark. Canal Co. v. Clark, 13 Wall. 311-323; Air Brush Mfg. Co. v. Thayer, 84 Fed. Rep. 640; Brown Chemical Co. v. Stearns, 37 Fed. Rep. 360; Clotworthy v. Schepp, 42 Fed. Rep. 62; Columbia Mill Co. v. Alcorn, 150 U. S. 460; Corbin v. Gould, 133 U. S. 308-314; Sterling Remedy Co. v. Gorey, 110 Fed. Rep. 372; Vitascope Co. v. U.S. Phonograph Co., 83 Fed. Rep. 30; N. Y. Asbestos Mfg. Co. v. Ambler Asbestos &c., 99 Fed. Rep. 85; Barrett Chemical Co. v. Stearns, 176 N. Y. 27.

Complainants have been guilty of laches, they having stood by and permitted the defendant to build up a business, and establish a good will that has become valuable, so that the granting of present relief would wreck, and absorb to the complainants, a business, which it has permitted to become valuable without complaint, and this is intolerable. If the complainants here have allowed the defendant to build up a profitable

business, on every fair principle, they should be estopped from wrecking it. Amoskeag Mfg. Co. v. Garner, 55 Barb. 151; Leggett v. Standard Oil Co., 149 U. S. 287, 294; Sullivan v. P. & K. R. R. Co., 94 U. S. 806, 811; McKnight v. Taylor, 1 How. 161, 167; Godden v. Kimmell, 99 U. S. 201, 210; Brown v. Buena Vista, 95 U. S. 157, 161; Lewis v. Chapman, 3 Beav. 133; Landsdale v. Smith, 106 U. S. 391; Saxlehner case, 179 U. S. 19, 35; McLaughlin v. People's Ry. Co., 21 Fed. Rep. 574; McIntyre v. Pryor, 173 U. S. 38, distinguishing McLean v. Fleming, 96 U. S. 245.

Complainants cannot escape from this rule, because against the French Republic, as a sovereign power, there is no prescription, and laches cannot be predicated upon any lapse of time.

The principle has no application here. When a foreign government comes into our courts, it stands, and must stand, on the precise plane of a private litigant. No public policy demands anything different, and a holding as asked by the appellants would be well nigh intolerable.

And the treaty between the French Republic and the United States requires the same result. Compilation of Treaties in Force, 1899, p. 684.

The French Republic has no interest in the controversy here, is not a proper party to the record, and her presence on the record, without interest and without right, cannot save the case, in which only the appellant company has any interest, from the result of the laches existing here.

There is no reason why the French Republic should be a party, Kernochan v. N. Y. Elevated R. R. Co., 128 N. Y. 559, 566; and as a nominal party it cannot save any rights to the company. Maryland v. Baldwin, 112 U. S. 490; United States v. Beebe, 127 U. S. 338, 346; Waterman v. Mackenzie, 138 U. S. 252.

The name Vichy is a geographical name, and as such complainants cannot insist on its exclusive use as a trade-name. Canal Co. v. Clark, 13 Wall. 311, 324; Columbia Mill Co. v. Alcorn, 150 U. S. 460; Koehler v. Sanders, 122 N. Y. 65, holding VOL. CXCI-28

the word "International" could not be used as a trade name; Connell v. Reed, 128 Massachusetts, 477, holding "East Indian" could not be so used; Glendon v. Uhler, 75 Pa. St. 467, as to right to use Glendon, after a borough was created by that name. Amoskeag Mfg. Co. v. Spier, 2 Sandf. 599; Barrett Chemical Co. v. Stearn, 176 N. Y. 27; Levy v. Waitt, 61 Fed. Rep. 1008; IN. Watch Co. v. Elgin Watch Co., 94 Fed. Rep. 667; Hoyt v. Lovett, 71 Fep. Rep. 173; Republic v. Schultz, 94 Fed. Rep. 500; Luyties v. Hollander, 30 Fed. Rep. 623.

The trade-mark label as registered essentially relied on other features and disclaimed the word Vichy. Richter v., Anchor Remedy Co., 52 Fed. Rep. 455; Richter v. Reynolds, 59 Fed. Rep. 577; Pittsburgh Crushed Steel Co. v. Diamond Steel Co., 85 Fed. Rep. 637; Browne on Tr. Mks. 2d ed. § 678.

MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.

This suit is brought to vindicate the right of plaintiffs to the exclusive use of the word "Vichy" as against the defendant, and incidentally as against all persons making use of the word to denote a water not drawn from the springs of Vichy, now owned by the French Republic and leased to the Vichy Company.

The title of the French Republic to the springs of Vichy, a commune of France, is clearly established. Known for their medicinal qualities since the time of the Roman Empire and originally belonging to the feudal lord of Vichy, they were sold by him in 1444, together with the castle and its dependencies, to Pierre, Duke of Bourbon, in whose family they remained until 1531, when, for the treason of the Constable of Bourbon, they were confiscated by Francis I, and became the property of the crown, in whose possession they remained until-1790, when they were united to the public domain and afterwards passed to the French Republic and its successors, and were operated directly by the officers of the state until June, 1853, when they