
    VON MUMM et al. v. STEINMETZ.
    (Circuit Court, S. D. New York.
    January 9, 1905.)
    Unfair Competition—Preliminary Injunction.
    Although unfair competition, by simulating the dress of complainants’ goods, is apparently shown, a preliminary injunction will not be granted, where it appears that defendant has publicly used the same dress for many years.
    [Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, § 108.
    Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 370.]
    
      In Equity. Suit for unfair competition in trade. .On motion for preliminary injunction.
    Kerr, Page & Cooper, for the motion.
    Mayer & Gilbert, opposed.
   LACOMBE, Circuit Judge.

This seems to be a case, such as referred to in the opinion of the Circuit Court of Appeals in this circuit, in Von Mumm v. Witteman, 91 Fed. 126, 33 C. C. A. 404, where “a producer or dealer in champagne has used the rose-colored soft metal capsule of complainants in such a way as to delude the customer into the belief that the wine offered for sale is complainants’ product.” The immediate customer, of course, would not be deluded; but the get-up .of the package is such as would make it easy to deceive the purchasers of single bottles for immediate consumption. However, in view of the fact that this form and style of package has been used by the makers of the wine which defendant sells for many years, and has been publicly exhibited at the Chicago, Buffalo, and St. Louis Expositions, a preliminary injunction will not be granted; all questions being reserved for final hearing.  