state, we know of nothing in the federal removal statute which will convert such action into a separable controversy for the purpose of removal, because of the presence of a nonresident defendant therein properly joined in the action under the Constitution and laws of the state wherein it is conducting its operations and is duly served with process."

See, also, Chicago, etc., Ry. Co. v. Willard, 220 U. S. 413, 31 Sup. Ct. 460, 55 L. Ed. 521.

Without resting the decision, however, upon the fact that the state courts have declared such actions to be joint, do the allegations of the complaint, when tested by federal decisions, make a separable controversy? I am of opinion they do not. An analysis of the complaint shows that the duty resting upon each defendant was the same, and that the breach of duty alleged against each was the same. The duty of each defendant was to maintain a safe sidewalk. The breach of this duty by each defendant was in permitting the sidewalk to become unsafe. The allegations of negligence may be classed as three: First, permitting the spouts to empty upon the sidewalk; second, permitting the gutters to become leaky and drip upon the sidewalk; and, third, constructing the sidewalk in such a manner as to empty its water toward the building rather than toward the street. As to the first of these, however, it is alleged that they had existed for a period of at least two months, and that both defendants had actual or constructive notice thereof. Upon these allegations the city, no less than the property owner, was in each instance guilty of negligence. If permitting the spouts to empty into the middle of the sidewalk is to be deemed negligence by the Realty Company, it is equally to be deemed negligence by the city, since the city with full notice permitted such spouts so to discharge. If the maintenance of a rough and uneven sidewalk, and one sloping toward the building, is to be considered negligence as against the Realty Company, the city is equally negligent, since with full knowledge of the conditions it permitted the sidewalk to remain. thus defectively constructed. If permitting the gutters to become full of holes and drip water upon the sidewalk is to be deemed negligence by the Realty Company, it is equally negligence by the city, since the latter, fully knowing such dripping to exist, permitted it to continue. Argument was made upon the hearing that the attitude of the Realty Company was misfeasance, whereas that of the city was simply nonfeasance. But this does not appear. Had the Realty Company placed an obstruction upon the walk, that might have been considered an affirmative act, or a misfeasance; but here, presumably, the gutters were, when constructed, in good condition, and the negligence of the company was in simply permitting them to become old and full of holes, and thus permitting them in that condition to drip water upon the walk. The negligence, therefore, is ultimately one of failure to act; that is, failure to remedy this condition, and to thus prevent ice upon the sidewalk. The sin was one of omission. In this the city was equally to blame. Its obligation, no less than the obligation of the Realty Company, was, after the notice alleged, to see that the condition did not continue. The case is thus one in which each defendant is charged with precisely the same duty, and in which each de

fendant failed to perform that duty. In that respect the case differs from the line of decisions cited for the defendant Realty Company, in which one of the defendants was accused of negligence as to some matter in which the other defendant had no part.

An illustration of this is Anderson v. Southern Ry. Co. (C. C.) 177 Fed. 571. In that case the railroad company and its engineer were sued for damages. The negligence charged against the company was the employment of the engineer, an incompetent person; and the negligence charged against the engineer himself was that he did not blow his whistle at public crossings, and in otherwise running his engine in a reckless and negligent manner. Judge Newman, sitting in the Northern district of Georgia, held that this controversy was separable, for the reason that the negligence of the company, to wit, the employment of an incompetent person, was not concurrent with the negligence of the engineer in the operation of the train. In other cases there is a similar distinction, arising from the fact that the negligence charged against the defendant company is imperfect machinery or an unsafe place to work, whereas the negligence charged against the individual defendant is the improper management of such machinery or other affirmative personal act. It is to be noted that in none of these cases is the act of negligence common to both defendants. A few of the cases cited by defendant Realty Company, and thus distinguishable, are Yates v. Ill. Cent. Ry. Co. (C. C.) 137 Fed. 943; Fergason v. Chicago, M. & St. P. Ry. Co. (C. C.) 63 Fed. 177; McIntyre v. Southern Ry. Co. (C. C.) 131 Fed. 985; Gustafson v. Chicago, R. I. & P. Ry. Co. (C. C.) 128 Fed. 85; Henry v. Ill. Cent. Ry. Co. (C. C.) 132 Fed. 715; Hartshorn v. A., T. & S. F. Ry. Co. (C. C.) 77 Fed. 9; Coker v. Monaghan Mills (C. C.) 110 Fed. 803.

Here, however, such negligence was concurrent, and, as said in Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131–139, 21 Sup. Ct. 67, 71 (45 L. Ed. 121):

"Where concurrent negligence is charged, the controversy is not separable."

Chicago, etc., Ry. Co. v. Willard, 220 U. S. 413, 31 Sup. Ct. 460, 55 L. Ed. 521, cited supra, will also be found, upon examination of its facts, to be enlightening upon this point. I am of opinion that this case is within City of Peoria v. Simpson, above quoted, wherein it is said:

"Where an injury results from the concurrent negligence of several persons, all being under a common duty to observe care, though that duty is separate with reference to that which causes the injury, all are jointly liable. * ** If it shall be ascertained it was the duty of both the owner and the city to keep the sidewalk in repair, then the failure to do so was a common neglect."

*

To quote Elliott v. Fields, supra, the complaint presents "a common neglect of a common duty."

The motion to remand will accordingly be sustained.

COCA-COLA CO. v. DEACON BROWN BOTTLING CO. et al

(District Court, N. D. Alabama, S. D. February 20, 1912.)

No. 220.

1. TRADE-Marks and Trade-NAMES (§ 93*)—VALIDITY-EFFECT OF REGISTRATION EVIDENCE.

Evidence held to establish the exclusive use of the words "Coca-Cola" as a trade-mark in interstate commerce by the Coca-Cola Company for more than 10 years next preceding February 20, 1905, so that its registration thereafter made it a valid trade-mark, under Act Feb. 20, 1905, c. 592, § 5 (b), 33 Stat. 725 (U. S. Comp. St. Supp. 1911, p. 1461), regardless of the descriptive character of the words.

[Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 104-106; Dec. Dig. § 93.*]

2. MONOPOLIES (§ 21*)-SUIT FOR INFRINGEMENT-DEFENSES.

That a manufacturer's sale contracts may be invalid, as in violation of Sherman Anti-Trust Act July 2, 1890, c. 647, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), is no defense to a suit for infringement of its trademark.

[Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 15; Dec. Dig. § 21.*]

3. COURTS (§ 310*)—FEDERAL COURTS-PARTIES JOINDER.

Merely proper or even necessary parties are not required to be joined in a federal court, where the result would be to defeat its jurisdiction. [Ed. Note. For other cases, see Courts, Cent. Dig. 857; Dec. Dig. 310.*]

4. TRADE-MARKS AND TRADE-NAMES (§ 95*)-SUIT FOR INFRINGEMENT-PRELIMINARY INJUNCTION.

A preliminary injunction granted to restrain infringement of the trademark "Coca-Cola."

[Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. 108; Dec. Dig. § 95.*]

In Equity. Suit by the Coca-Cola Company against the Deacon Brown Bottling Company and others. On motion for preliminary injunction. Motion granted.

Percy, Benners & Burr, of Birmingham, Ala., and Candlers, Thomson & Hirsch, of Atlanta, Ga., for complainant.

Samuel B. Stern, of Birmingham, Ala., and Perkins Baxter, of Nashville, Tenn., for defendants.

GRUBB, District Judge. The right of complainant to the use of the words "Coca-Cola" as a technical trade-mark under the act of 1881 is doubtful; at least, in view of the fact that the words are admittedly suggestive, and probably merely descriptive of the constituents of the beverage, and not subject to be appropriated as a trademark. On motion for a preliminary injunction, the complainant is

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

required to make his right clear, and under this claim has not succeeded in doing so to my satisfaction.

[1] The evidence, however, satisfied me that the complainant and its predecessors in title to the trade-mark have had actual and exclusive use of the combined words "Coca-Cola" for at least 10 years preceding April 1, 1905, the date of the taking effect of the act of February 20, 1905. Under this act the trade-mark was again registered. The act, as construed, provides that 10 years' actual and exclusive user of the trade-mark confers the right to register it as a valid trade-mark, though the words are merely descriptive. For this reason, and in view of the facts shown by the affidavits, I think the complainant is entitled to the benefit of the trade-mark; it having been shown to have acquired a secondary meaning, indicative of origin and ownership or manufacture of "Coca-Cola" by complainant, by such user, in addition to the presumption, from a user of 10 years. before the enactment of the statute, that it had acquired such secondary meaning.

Infringement is shown, if the trade-mark is valid, without conflict. The evidence does not show that a deleterious substance is included in the formula, or purposely introduced into the beverage, and there is not sufficient showing that complainant is disentitled to protection upon that ground.

[2] Alleged invalidity and illegality of the dispensing contract, because of the Sherman Act, is no ground for denying the complainant protection against an infringement of its trade-mark, since awarding such relief does not involve the enforcement of the alleged illegal contract.

[3] The licensees of complainant are not exclusive licensees, and hence not necessary, but at most only proper, parties; and as the Birmingham company is a citizen of Alabama, the making of it a party would deprive the court of jurisdiction of the case, so far as it seeks relief, at least, from unfair competition, and apart from the registered trade-mark. Merely proper and even necessary parties are not required to be joined, when the result is to defeat jurisdiction. Complete justice can be done as between the present parties to the bill. Complainant has sufficient interest in the subject-matter of the suit to maintain it. It retains title to the trade-mark and is directly interested in the infringement of it, with reference to even bottled goods, since the diminution of sales, by infringement of the bottlers, reflects on its sales to the bottlers.

The act of February 20, 1905, does not seem to me to be open to the constitutional objections asserted against it by respondents.

[4] The probability of complainant's ultimate success seems to me great enough to justify the issue of the temporary injunction. Allowance of damages for infringement is an inadequate remedy to plaintiff, because of the impossibility of any accurate measurement of its accrued damages and the uncompensated inroad on its good will by continued use of defendant's mark. The same may be said of defendant's right to indemnify on an injunction bond. However, the defendant can continue its business, using a different mark, or none

at all, so that there will not be a total interruption of its business; and the trial of the cause can be speeded to final order by any reasonable decree desired by defendant, and all reasonable protection given it by requiring the execution of a proper injunction bond.

I think the greater probability of injury, not capable of being indemnified against, is with the denial of the temporary injunction.

COCA-COLA CO. v. AMERICAN DRUGGISTS' SYNDICATE et al. (District Court, S. D. New York. October 7, 1912.)

TRADE-MARKS AND TRADE-NAMES (§ 95*)-INFRINGEMENT INJUNCTION. Complainant's trade-mark "Coca-Cola," applied to a soft drink sold at soda fountains, was prima facie infringed by defendant's sale of a similar preparation under the term "Extract of Coca and Kola," so as to entitle complainant to a preliminary injunction.

[Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. 108; Dec. Dig. § 95.*]

In Equity. Suit by the Coca-Cola Company against the American Druggists' Syndicate and others. On motion for preliminary in

junction. Granted.

Harry D. Nims, of New York City, Candler, Thompson & Hirsch, of Atlanta, Ga., and Colby & Goldbeck, of New York City, for complainant.

S. Stanwood Menken, for defendants.

LACOMBE, Circuit Judge. In Coca-Cola Co. v. Nashville Syrup Co. (U. S. District Court, Middle District of Tennessee, July 8, 1912) 200 Fed. 157, it was held, in a carefully considered opinion, that complainant has a valid registered trade-mark in the term "Coca-Cola," applied to the well-known soft drink which it makes and vends. This conclusion I am inclined to accept as correct.

The only question left is whether, in undertaking to afford relief against the use by others of a similar term, the court should enjoin the defendants from selling the preparation which the defendant Syndicate makes under the term "Extract of Coca and Kola." It is no substantial departure from the term "Coca-Cola" to spell either or both words with a K, or to substitute for the hyphen the conjunction "and" or an ampersand, and it seems not to be a sufficient differentiation to call the compound an extract, or an elixir, or a decoction.

For obvious reasons, both sides insist that the cola constituent of their respective compounds has been thoroughly decocainized, thus depriving it of its peculiarly characteristic element. There is not in the record any satisfactory evidence that a combination of decocainized coca with cola has ever been used, or is usable, in medicine or in the arts, or any otherwise than as a soft drink. Under these circumstances it would seem that complainant is entitled to an For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes