
    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.
    i'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 injunction.
    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.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 3907 to date, & Rep'r Indexes
    
   EACOMBE, 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 de-cocainized 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 injunction against the further use of the term “Extract of Coca and Kola,” or any similar term as the name of defendant’s soft drink. That the drink as sold is concentrated, so as to require dilution by the dispensing druggist and the addition of sweetening to malee it a safe and palatable ingredient to be added at the soda fountain to aerated water, seems immaterial.

The operation of the injunction will be stayed 'for 60 days after entry of the order.  