
    CANTRELL & COCHRANE, Limited, v. WITTEMANN et al.
    (Circuit Court, S. D. New York.
    April 15, 1901.)
    Trade-Mark — Infringement—Preliminary Injunction.
    A preliminary injunction, in an action'to enjoin the use of infringing label, where there is a conflict of evidence as to the date of the origination of the combination of color and form, will be deferred till final hearing.
    Motion for Preliminary Injunction.
    Wetmore & Jenner, for the motion.
    Straley, Hasbrouck & Schloeder, opposed.
   LACOMBE, Circuit Judge.

In view of the conflict of evidence as to the date of origination of the combination of color and form, which is simulated by the labels that defendants offer for sale, the question of a right to injunctive relief should be left till final hearing. It seems highly probable that most of these alleged anticipating labels will disappear on cross-examination, but the affidavits which now assert their early existence, notably Lighte’s, which swears to one virtually identical with defendants’ alleged infringing label as early as 1869, cannot be disregarded while the earliest date positively proved by complainant is 1877. Defendants, however, should file sworn accounts monthly, showing all sales of labels similar to the one complained of, with the names and addresses of parties to whom same were sold.  