
    PETERSON’S APPEAL.
    A manufacturer of “Excelsior” ranges obtained an injunction restraining another firm from using the names “New Excelsior” and “Improved Excelsior.”
    A manufacturer does not lose his right to a trademark by not putting ifr on all his goods.
    Where there is an actual infringement it is-not necessary to prove an intent to injure.
    Appeal from Common Pleas No. 3 of Philadelphia County, In Equity. No. 74, July Term, 1879.
    Isaac A. Sheppard &Co. filed a bill in equity against Stuart Peterson & Co. to restrain defendants from infringing their trademark, to wit, the word “Excelsior” as applied to ranges.
    The facts of the case appear in the opinion of the Court continuing the special injunction, which opinion was as follows, per:
    Einletter, J.
    In 1860 the plaintiffs commenced business. Their establishment was designated the “Excelsior Stove Works.” In 1864 they began to manufacture the “Excelsior” range. They advertised largety, and it came into general use. It became very popular ; so much, so that parties advertising houses for sale would name the “Excelsior” range as one of the conveniences to recommend the property ; and builders in Philadelphia frequently stipulated for the “Excelsior” range in their specifications. More than forty thousand were sold in fifteen years.
    In 1878 the defendants began to make a range with similar characteristics, and placed upon it the woxds “New Excelsior,” “Improved Excelsior” and “Excelsior.” It differs only in external ornamentation from the plaintiffs’, and is sub stantially the same. Its component parts correspond in size and shape with the component parts of the plaintiffs’ range; The plaintiffs’ range can be repaired by castings made 'from the pattern of the defendants’ range. Upon the several parts of the defendants’ range the word “Excelsior” is imprinted. ■
    The defendants advertised in the Public Ledger as follows
    “Excelsior ranges for sale. Excelsior ranges of the different kinds and sizes ; double ovens, single oven right and left; and hot air Excelsiors always on hand for sale to dealers and builders.
    Grates, cross-pieces, water-backs, or cast iron fire-plates, to fit all Excelsior ranges, always on hand.
    “Stuart, Peterson & Co.,
    “Broad and Noble Streets.”
    In addition they placed a sign-board above their •.office at Broad and Willow streets, with the words “Excelsior Ranges’’ upon it.
    It is clearly established that “Excelsior” upon .plaintiffs’ ranges indicated to the trade, and to the .public, 'that such ranges were made by them. Their range is widely known.to the trade and to the public as the “Excelsior” range. Builders generally connect it with the firm of Sheppard & Co.,, and it is generally known as Sheppard’s “Excelsior.”
    There can be no doubt that direct injury has resulted to; the plaintiffs from the conduct of the defendants. It has suggested the idea that plaintiffs had ceased to manufacture ..the “Excelsior” range; and that their range had been improved by: the defendants.
    The defendants deny that the use ■ of the wórds ''‘.‘New Excelsior” and “Improve 1 Excelsior” is either intended or calculated to deceive the public, or to induce them to purchase as and for the ranges of the plaintiffs. It may be that the defendants did not intend to deceive the public, but it can scarcely be said that these devices were not calculated to do so. What other idea is suggested by the words “New Excelsior” and “Improved Excelsior,” than that a newer improved “Excelsior” is made ? It can be neither a “New Excelsior,” nor an “Improved Excelsior,” without suggesting an important and valuable change in the old “Excelsior.” Of what use can these names be unless they call to mind the old “Excelsior ?” And of what use would that bo unless it also recalled the usefulness and popularity of the old ? It should not be forgotten in this connection that the defendants say their “object was simply to produce a light cheap range which muid be sold in competition with the cheap range of the plaintiffs.”
    If this were otherwise it may not be said that the assumption of the name “Excelsior” was not calculated to deceive the public and injure the plaintiffs. It may be that the defendants did not intend to injure the plaintiffs; but if their conduct produced injury, they must be held to have intended, that injury. In Horn vs. Last, 10 Jur. 106, it was held, refusing a motion to dissolve an injunction, that defendants having made so complete a copy of plaintiffs’ mark, must be taken to have done so with an intent to give an advantage to which they were not entitled. Judge Paxson in Dixon Co. vs. Guggenheim, 7 Phila. R. 408, cites English cases which held that: “A man though not intending an injury to another should not be allowed to adopt the marks by which the goods of another are designated, if the effect of adopting them would be to prejudice the trade of such other person. It is not necessary to aver or prove wrongful intent on the part of another.” If, therefore, the plaintiffs are entitled to use the word “Excelsior” as a trade-mark, it would follow that the defendants should be enjoined.
    The defendants contend that the plaintiffs are not entitled to claim the word “Excelsior” as applied to their ranges as a trademark, because:
    
      1. Hicks, Wolf & Co., of Troy, New York, have used 'the same word upon a flat-top range since 1861 continuously.
    2. The word is a fancy title for stoves of various kinds in the trade generally.
    3. Orr, Painter & Co. made and sold similar ranges with the word “Excelsior” upon them.
    4. The ranges of defendants have improvements.
    5. That defendants’ ranges are different.
    6. The word “Excelsior” as used by plaintiffs does not indicate that they are owners of the ranges.
    7. The plaintiffs have placed other names upon some of their ranges.
    8. The plaintiffs have put the names of buyers upon the ranges in near connection with the word “Excelsior,” and have thereby abandoned the word to general use.
    9. Defendants have been making them for two years, and the plaintiffs did not forbid them until about a year ago.
    The first and second reasons may be disposed of by the remark that the evidence shows that the ranges referred to were not the same as plaintiffs. The plaintiffs do not claim property in the word “Excelsior.” Their claim is that they have first appropriated that word to a specific article of their manufacture.
    To the third it may be said that it does not appear that plaintiffs permitted or acquiesced in the use of the word ■“Excelsior” by Orr, Painter & Co.; or that they knew of such use of it as would imply acquiescence or permission.
    It is perhaps sufficient to say that uo improvement in the range or difference in appearance would justify the defendants in the use of the word “Excelsior.” íf the improvements and changes make a different kind of range they would have the right. But the improvement and changes have not substantially altered the character and appearance of defendants’ ranges from that of the plaintiffs.
    It is also contended that the word “Excelsior,” as used by the plaintiffs, is not a trademark, but a fancy name to indicate a particular kind of stove, because it does not indicate origin or ownership. To sustain this position many authorities were cited, but that which was most relied upon was -Ferguson vs. Davol Mills, 7 Phil. 256, in which Allison, P. J., says : “The simplest case of a, trademark is the name and address of the claimant, and it is absolutely requisite that a device or symbol should perform the office of a fingerboard ; should indicate the name and address of the manufacturer to invest it with the attribute and entitle it to the protection of a trademark.”' This language is clear, rigorous and decisive ; and there can be no doubt that the cause was determined upon this principle alone. It will be seen from an examination of the authorities-cited by the learned Judge, that he is not fully sustained by them in this advanced position. They affirm only that a trademark should indicate the “true origin or ownership of the article offered for sale.” The learned Judge was justified^ perhaps, in thus giving a sensible form to what was before a meaningless phrase, adopted and continued in almost every trademark case without necessity, without application to the cases, and without definition or explanation.
    In the Dixon Co. vs. Guggenheim, 7 Phila. 408, Judge Paxson adopts as “well sustained by reason of authority,” the doctrine of “true origin or ownership.” Tn justice to him it should be observed that it was not raised in the case before him, and his attention was not directed to its full import. In his very able and carefully prepared opinion he cites the decisions which declared “Revere House,” “New York Hotel,” “The Captain’s Live and Let Live Oyster and Dining Rooms,” to be trademarks. He also says : “The name of a newspaper is a trademark and with proper judicial indignation adds ; ‘Can it be supposed that if some one were to commence the publication in this city of,a Public Ledger of the same size, price and style as the one published by Mr. George W. Childs, that a Court of Equity, upon a proper application, would not promptly arrest the career of such a piratical ci aft by an injunction !” And yet neither of these words indicate “origin or ownership.”
    It is not now important to ascertain how and where this doctrine-originated. It has been followed as an axiom. And yet to the thoughtful it must alvVays have been a. perplexing enigma.
    It is submitted that in neither of the cases cited by Judge Allison is the question of “true origin and ownership,” raised, or discussed or defined. .The question raised and decided was that words which designated the article itself, or its attributes, •were not trademarks. This is so in all the cases which we have been able to examine.' As illustrative of all we may, take the language of C. J. Duer in Amoskeag Co. vs. Spear 2 Sand. S. C. R. 589 : “A mark can only be protected as a trademark when it is used merely as indicating the true origin and ownership of the article offered for sale ; never when it is used to designate the article itself.” We may be allowed in this connection to say that we have not been able to find any case except Ferguson vs. Davol Mills, in which the doctrine of “true origin and ownership” is distinctively avowed.
    It might, perhaps, be useful at this stage to ascertain what a trademark is, and what it indicates. In Stokes vs. Landgraff, 17 Barb. G08, Strong, J., says : “The principle is well settled that a manufacturer may, by priority of appropriation of names, letters, marks, or symbols of any kind to distinguish his manufacture, acquire a property therein, as a trademark.”
    “The fight of trademark is said to be best termed an exclusive right arising from first use.” — Bouvier.
    . “The rule sometimes laid down on this subject is : that if . a name, sign, mark, brand, label, word, or device of any kind, can be advantageously used to designate the goods, property, or particular place of business of a person engaged in trade, manufacture, or any similar business, he may adopt and use such as he pleases, which have not before been appropriated.” Story’s Equity, Sec. 951.
    “The physiology of the thing called a trademark must be .examined and carefully analyzed. It has an individuality of nature. Meaningless in itself, when placed in a certain juxtaposition, it involves an idea. It virtually says that the vendible object to which it is attached is the workmanship or the selected article of the owner of the mark. It is intended to strike the eye, and sometimes the ear, by its sound when spoken of, and thus incite inquiry. It should possess such salient features as might at once arrest attention, and put the intended purchaser on the alert.” Brown on the Law of Trademark, Sec. 88.
    “The Amoskeag Manufacturing Co. vs. Spear,- Chief Justice Duer says : “Every manufacture has an undoubted right to-distinguish his goods by -peculiar mark or device in order that they may be known to be his.”
    How is a mark or device to indicate “true origin or ownership” or to indicate the name and address of the manufacturer ? • In and by itself alone this is impossible. It is only by use as the device of him who distinguishes his goods by it in order that they may be known as his, that it can ever indicate “true origin or ownership.”
    In Allegheny Fertilizer Company vs. Woodside, 1 Hughes, page 115, Giles, J., says : “But it is argued that the name adopted (‘Eureka’ did not sufficiently indicate ‘origin or ownership’ to be regarded as a trademark. It served to distinguish the complainant’s manufacture quite as effectually as names ever serve to distinguish things.”
    In the Meriden Britannia Co. vs. Parker, 39 Conn. 459, the trademark consisted of the words “1847 Rogers Bro., A 1.” The Rogers Bros, were superintendents of the petitioners. The respondents contended that the said trademark did not indicate the true origin of the goods. Held, that the representation that the Rogers Bros, were the manufacturers was true in -a certain sense, but that the petitioners were in another sense the mancfacturers. “Like all other symbols and devices used as trademarks, its import was not at first perhaps fully understood. The effect as well as the value of a trademark is the work of time and expense. This probably was no exception to the rule. However this may be, it seems to have been well understood by the trade at the date of this petition, that goods bearing that stamp were manufactured by the petitioners. Held, that the trademark sufficiently indicated the origin and ownership of the goods.”
    In the Delaware and Hudson Canal Co. vs. Clark, 13 Wallace 311, Strong, J., says : “Hence, the trademark must either by itself or by association, point distinctly to the origin or ownership of the articles to which it is applied. The first appropriator of a name or a device pointing to his. ownership, or which by being associated with articles of trade has acquired an understood reference to the originator or manufacturer of the articles, is injured whenever another adopts the same name for similar articles.”
    In other words, the evidence must show the first • appropriation of the device by the claimant; its application by him to his goods or business : and that the trade or public recognize the article or business by that device as made or sold by him, or belonging to him. In no other way can a mark or device indicate “true origin or ownership.”
    The evidence in this case is conclusive that the plaintiffs first appropriated the word “Excelsior” to a specific article of their manufacture; that they have continuously used it for the last fifteen years, during which time they have made and sold more than forty thousand; that the whole trade recognized them as the makers of the articles to which the word 1‘Excelsior” was attached. This device, therefore, pointed out the “true origin and ownership,” of the goods, and thereby became a trademark.
    It woxrld be useless to waste time in collating the single and collective words and devices which have been held to be trademarks. The word “Excelsior” alone has been repeatedly held to be a good trademark. In Winsor vs. Clyde, 9 Phil. 513 (affirmed by the Supreme Court), “Keystone Line” was held to be a good trademark.
    It is further contended that inasmuch as the plaintiffs, at the request of a few purchasers, placed another name upon a few of their ranges, and erased the word “Excelsior,” they thereby abandoned their right to the use of the word as a trademark. These instances can only be regarded as special contracts for the goods without the trademark. They can in no sense be regarded as a representation to the public of the abandonment of the trademark and the adoption of another. It is the purchaser who changes the names and it is nowhere held that the purchaser of an article protected by a trademark' is bound .to maintain .the name upon the article. He buys, for, use. and-consumption, and may retain the mark or not. as he-pleases.
    The province of a trademark is to bring seller and buyer together,, that the one may sell his merchandise and the other obtain th.e particular goods the reputation of which has won ■his confidence. When this is done the office and object of the trademark is accompished. The seller has no longer any control over or interest in the article. It belongs wholly to the purchaser, and with it the incident, the trademark. As he may consume or destroy, or alter or change the article, so may he its name. What he may do by himself he may do by another ; what he may do by another, he may do by the seller. If he can do this after purchase, he may certainly contract to have it done before purchase. This is a matter in which the general public can have no interest, and therefore have no interest, or concern which should be considered. It in no way affects the usefulness of the article.
    But why . should it be held that the manufacturer must place the trademark upon all his goods ? He may prefer, for his own advantage and the protection of the public, to place it only upon his best, and leave the inferior nameless, or give them another name. Honesty and fair dealings, and his own interest, would suggest this. And if this be done it should not be regarded as an abandonment.
    The evidence discloses the fact that the plaintiffs in some cases when requested by dealers placed the dealers' name upon the range in proximity to the word “Excelsior.” It is shown, however, that this is a custom of the trade known to and acted upon by all dealers and manufacturers. It is proved that even when the names of dealers were thus placed upon the ranges, they were still known and recognized by the trade, dealers and manufacturers, as ranges made by the plaintiffs.
    It is contended that this was permitting those dealers to hold themselves them out as the manufacturers of such iranges, and was therefore an abandonment.
    , It must be observed that there is nothing in connection iwith the names of these dealers to indicate that they are the manufacturers, and there is no evidence that any one' ever supp sed they were the manufacturers. On the contrary there is ample evidence, even in the affidavits of the defendants, that they were still regarded as manufactured by the plaintiffs. Why then should wc enforce the inference that these names indicated the names of the manufacturers for the benefit of one ■who wrongfully appropriates to himself another’s industry; ■enterprise and property.
    In considering acts from which acquiescence or abandonment are or may be inferred, it should not be forgotten that a trademark is property. In all cases of litigation it may fairly be said to be valuable property. The man who lends his horse frequently, or permits another to use it, is never said to have abandoned his horse to the public, or to acquiesce in any ■claim to use the horse at pleasure. Much less can these acts justify the stranger who breaks into the stable and steals the horse.
    What injury can arise from this practice? Who can be deceived or betrayed into an error or an injury thereby ? The public who buy for consumption have the article they expected and bargained for, with its name, the trademark, upon it. They have in addition, as a further security, the name and endorsement of the dealer. They therefore have no cause of complaint, and the public who do not purchase have no right to complain. What is it to the man who does not buy, or want to buy, that these names may-possibly indicate that- the owners of the names have the right to manufacture the ranges ?
    Such acts do not denote abandonment. The owner of a store does no injury to his right of property in his store, or its contents, or his business, by permitting the names of some ol his employees to be placed on the inside or ouside of the building, as is customary in this city. The rights of property are not so easily frittered away.
    It might be that acts like these might betray a person into a violation of the right of property in a trademark. If -they did he would be excusable, but it would confer upon him no irghtto further use the mark against the protest of the owner, The defendants make no such pretense as this. They do not pretend that they were induced to believe that plaintiffs had conferred upon these dealers the right to. manufacture the range and use the traderqark. On the contrary they have shown by their own evidence that they knew all about the matter, and that it was done in pursuance of a well established custom of their trade. How can the probability that the public might believe these dealers to be the manufacturers with the right to use the trademark, give the defendants the right to use the trademark when they know the fact to be otherwise ?
    In considering a question of trademark the customs of trade should not be ignored. The true doctrine, perhaps, should be to consider them in the light of and in aid of such customs-What the custom of trade allows the law should allow ; for such customs must be for the general good as well as the good of the special trade. Commercial custom made a promise in writing to pay in thirty days a promise to pay in thirty-three days. It is suggested, then, that the custom, which the plaintiffs recognized, should not -work a forfeiture, especially when no one was thereby betrayed into the belief that any one, other than the plaintiffs, had manufactured the articles.
    An explanation of this custom may be found in the fact that the ranges as made both by the plaintiffs and defendant are not complete for use as they make and sell them, They are mt ranges to the public or to the consumer until they are set up and encased in brick, as the movements of a watch are not a watch until encased. It is the dealer who makes them fit for nse. It is his trade and business to build in the ranges. When the range is completed it is his manufacture. The plaintiffs and defendants have furnished him with only one of the component parts — one of the materials.
    The manufacturer of the movements of a watch may have a trademark for his own work ; it is or may be, so far as he is concerned, a completed work. Can it be said that he loses his right to that trademark because he permits another manutacturer, who business it is to extend his work, to make it fit. for use, to place his name upon the thing called a watch ? Why, then, should it be said that the plaintiffs lose their right to their trademark for the article they furnish to the trade because they permit the dealer who uses their articles to furnish for the public a completed range to place his name upon it ?
    To the plaintiffs and the defendants the dealers are the public. The evidence shows that they are the sole purchasers. And it also shows that no dealer or other person has been deceived by the dealer’s name upon the ranges into believing that he -was the manufacturer of the parts made by the plaintiffs. On the contrary, the evidence of the respondents shows that even when such names are upon the ranges, they are still recognized and regarded as the ranges of the plaintiffs.
    It would, therefore, be stretching an inference to the bounds of probability to infer from such a license that plaintiffs had abandoned their right in the trademark to this community.
    Even if we are altogether in error in all this, it will be observed that it is conceded that the exercise of this custom of the trade by the plaintiffs was simply a license. It needs m> citation of authorities to show that a license is not an abandonment — not even evidence of abandonment. It is, perhaps, the highest evidence of the assertion of the right and acquiescence therein. This doctrine was recognized in Winsor vs. Clyde, 9 Phil. 513.
    It has been strongly urged that the plaintiffs have lost their right of action by their delay in bringing suit, or in asserting their claim. It may be that even a wrong-doer may sometimes successfully defend upon this ground. It must, however, be such a delay as would lead a reasonable person to suppose that the owner had abandoned his device, or such as induced the defendants to act, or under such circumstances as required the owner to assert his right. Even in such cases the title in the trademark is not lost or deemed abandoned, but the owner is estopped from asserting it to prevent another from using the device. It is evident therefore that each case must case must be decided upon its own facts. There can be no fixed rule, and time is only a matter of evidence to be considered with all others. There is no evidence in this case that the defendants were encouraged or misled into their wrongful acts, or that the plaintiffs were silent when they were called upon to speak. The evidence shows that they moved with as much celerity as'was consistent with a proper vindication of their right. The delay seems to have been no greater than was necessary for a prudent, careful preparation for the legal conflict.
    The conclusions to which we have come are, that the plaintiffs have a right to the word Excelsior as a trademark ; that the defendants have wrongfully used that trademark to the injury of the plaintiffs, and should be enjoined therefrom.
    The motion to continue the special injunction is therfore allowed.
    Richard Peterson then appealed to the Supreme Court complaining of the action of the Court continuing the special injunction.
    P. K. Erdman and Geo. W. Thorn, Esqs., for the appellant,
    argued that the plaintiffs use of the word “Excelsior” as applied to ranges has not been such as to make it a trademark, or give them title to the exclusive use of it as such ; Clark vs. Clark, 25 Barb. 79; Brooklyn White Lead Co. vs. Masury, 25 Barb. 416; Dixon Crucible Co. vs. Guggenheim, 2 Brew 321; Amoskeag Co. vs. Spear, 2 Sandford 599; Ferguson vs. Davol Mills, 2 Brewster 314; Canal Co. vs. Clark 13 Wall 311; Stokes vs. Landgraff, 17 Barb. 608. Plaintiff’s alleged adoption of the word “Excelsior” was not. original, as Hicks and Wolfe had adopted it before them; Deringer vs. Plate, 29 California 292 ; Taylor vs. Carpenter, 3 Story 428; Coates vs. Holbrook, 2 Sand, Ch. 586 ; Lemoine vs. Gantor, 2 E. D. Smith 343; Collins Co. vs. Cowen, 3 Kay & J. 428. Plaintiff’s laches and acquiescence in the alleged infringement of their rights, disentitle them to relief by preliminary injunc. tion; in Beard vs. Turner, 13 L. T. R. N. S. 747 ; a delay of two. years barred complainant ; in Isaacson vs. Thompson, 20 Weekly Rep. 196 ; a delay of twenty months was held to be laches; a delay of four months barred the right in Flavell vs. Harrison, 10 Hare 467; a delay of seven months barred the right to an injunction Eastcourt vs. Estcourt, Hop Essence Co. Limited, 32 L. T. R. N. S. 80. Amoskeag Co. vs. Garner, 55 Barb. 151: Hovenden vs. Lloyd, 18 Weekly Record 1133. An injunction will not be granted where the right is denied ; Purser vs. Brain, 17 L. J. R. Ch. N. S. 141; Foot vs. Lea, 13 Irish Ex. 484; Coffin vs. Brunton, 4 McLean 516; Merrimack Co. vs. Garner, 4 E. D. Smith 387; Fetridge vs. Merchant, 4 Abb. Pa. 156; Wolf vs. Gonlard, 18 Howard Pa. 64; Ellis vs. Zeiler, 42 Georgia 91.
    Leonard Myers, Esq., contra,
    cited Southern vs. How, Popham’s Reports 144: McLean vs. Fleming, 6 Otto 252: Croft vs. Day, 7 Beavan 84; Holloway vs. Holloway, 13 Beavan 209; Meheely vs. Meneely, 62 N. Y. 427; Kinahan vs. Bolton, 15 Irish Ch. Rep. 75 . Ford vs. Foster, 7 L. Rep. Ch. Ap. 629; Allegheny Fertilizer Co. vs. Woodside, 1 Hughes 115; Filley vs. Fasselt, 44 Mo. 173; Wothershorn vs. Currie, 23, L. T. R. 443; Braham vs. Bustard, 9 L. T. Rep. N. S. 199 McAndrew vs. Bassett, 10 Jurist N. S. 550; Rowley vs. Houghton, 2 Brew 303; Winsor vs. Clyde, 9 Phila. 513; Delaware and Hudson Canal Co. vs. Clark, 13 Wall 311; Smith vs. Reynolds, 10 Blatchford C. C. R. 100; Morrison vs. Case, 9 Blatchford 548; Edleston vs. Vick, 23 Eng. L. & Eq. 53.
    He then- cited the following instances in ' which it was decided that imitations had occurred : Colton vs. Thomas, 2 Brew 308; Ayer vs. Hall, 3 Brewster 509; Rowley vs. Houghton, 2 Brew 303; Lockwood vs. Bostwick, 2 Daly 521; Witthaus vs. Wallace, 2 W. N. C. 610; Wamsutta Mills vs. Alien, 6 W. N. C. 189; Burnett vs. Phalon, 9 Bosworth 192; Morgan vs. Schwachhofer, 55 Howard Pr. R. 37; Kinahan vs. Bolton, 15 Irish Ch. 75; Knott vs. Morgan, 2 Keen 213 Brooklyn White Lead Co. vs. Masury, 25 Barbour 416; McLean vs. Fleming, 6 Otto 252; Taylor vs. Taylor, 23 Law Journal N. S. Ch. 255; Ford vs. Foster, L. R. 7 Ch. Ap. Case's 611. A man will not be permitted to adopt the marks by which'the goods'óf another are designated if the effect of adopting them would be to prejudice the trade of such .other person ; Millington vs. Fox, 3 Mylne & Craig 338; Coates vs. Holbrook, 2 Sandford Ch. 586; Walton vs. Crowley, 3 Blatchford 440; Partridge vs. Menck, 2 Barb. Ch. 101; Howard vs. Henriques, 3 Sandford S. C. 727; Marsh vs. Billings, 7 Cush. 332 ; Christy vs. Murphy, 12 Howard Pr. 77. But where goods do not compete in.the same market an injunction will not lie ; Corwin vs. Daly, 7 Bosworth 222; Lee vs. Haley, 5 Ch. Ap. C. L. R. 155; Newman vs. Alvord, 51 N. Y. 189; Leather Cloth Co. vs. Am. Leather Cloth Co., 11 Jurist N. S. 513; Bloss vs. Bloomer, 23 Barbour 609. Complainants did not abandon their right to their trademark by not putting it on all their ranges; Meriden Brittania Co. vs. Parker, 39 Conn. 450; Dale vs. Smithson, 12 Abbott Pr. R. 237; McCardel vs. Peck, 28 Howard Pr. 120; Winsor vs. Clyde, 9 Phila. 513: Hirst vs. Denham, 4 L. R. Eq. Cases 542. “Excelsior” is a good trademark ; Ragget vs. Findlater, 17 L. R. Eq. O. 41. Plaintiff's right to an injunction in this case could not be affected by the fact that there is another infringement • Taylor vs. Carpenter, 3 Story 458,; Gillot vs, Esterbrook, 47 Barb. 455; Amoskeag Co. vs. Spear, 2 Sanford 625. He also cites Orr vs. Johnston, 40 L. T. R. N. S. 307; Congress Spring Co. vs. High Rock Spring Co., 45 N. Y. 298; Taylor, vs. Carpenter, 2 Wood & Minot 17; Clark vs. Clark, 25 Barb. 79 ; Colman vs. Crump, 70 N. Y. 573; Lemoine vs. Gantor, 2 E. D. Smith 343 ; Perry vs. Truefit, 6 Beavan 66.
   The Supreme Court affirmed the decree of the Common Pleas on February 14th, 1881, in the following opinion :

Per Curiam :

Without giving any opinion on the merits; which it is not our practice to do, on appeals from Preliminary Injunctions we think there were sufficient grounds to grant an Injunction until final hearing.

Decree affirmed and appeal dismissed at costs of the appellants.  