
    VON FABER-CASTELL v. FABER.
    (Circuit Court of Appeals, Second Circuit.
    April 25, 1906.)
    No. 180.
    Teade-Names — “Fabee” Pencils — Unfate Competition.
    Defendant, John Eberhard Faber, held not entitled to use the word “Faber” without the prefix “E.” or “J. E.” or “Eberhard” or “J. Eberhard” on lead pencils sold in competition with the German house of A. W. Faber.
    (Ed. Note. — Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Dare v. Harper & Bros., 30 C. C. A. 376.]
    On Motion to Amend Mandate or for Leave to File Bill of Review.
    For former opinion, see 139 Fed. 257.
    Before WALLACE, TOWNSEND, and COXE, Circuit Judges-.
   PER CURIAM.

This court did not intend to decide that the defendant was entitled to use the word “Faber” as applied to pencils and stationers’ goods without the prefix “E.” or “J. E.” or “Eberhard” or "J. Eberhard,” and indeed the only question which was argued upon the appeal was whether he had been guilty of an unfair use of the word with some one of these different prefixes. The decree' of the court below, however, enjoin'ed him from the use of the word “Faber” or “Faber Pencil Company,” or “E. Faber Pencil Company” or any like or similar designation in which the name “Faber” is used without the prefix “Eberhard” or “John E.” or “J. Eberhard.”

In order to remove any doubt as to the effect of the mandate which this court has issued directing the Circuit Court to dismiss the bill, we have concluded to grant leave to the petitioner to file a bill of review in the Circuit Court to modify its decree of August 8, 1905, made pursuant to the mandate of this court, so as to provide that the bill of complaint be not wholly dismissed and enjoining the defendant from using the word “Faber” without some one of the prefexes mentioned, and to grant leave to the Circuit Court upon hearing such bill of review to modify its decree accordingly.  