
    RICHMOND HOSIERY MILLS v. JULIUS KAYSER & CO.
    (Circuit Court of Appeals, Second Circuit.
    April 14, 1913.)
    No. 211.
    Trade-Marks and Trade-Names (§ 95) — Preliminary Injunction — Irreparable Injury.
    Complainant, engaged in tile manufacture and sale of low-priced cotton stockings under a trade-mark ‘‘Wunderliose,” sued to restrain defendant’s use of the word “Wonderfoot” in connection with the manufacture and sale of high-priced silk stockings, sold under different conditions, on the ground of unlawful competition. Defendant was amply responsible for any damages that might be recovered, and it did not appear that complainant could be seriously injured pending a trial on the merits. Bold, that complainant was not entitled to an injunction pendente lite, restraining defendant’s use of such word.
    [Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Ce,nt. Dig. § 108;- Dec. Dig. § 95.]
    On appeal from an order of the District Court for the Southern District of New York denying a motion by the complainant for a preliminary injunction restraining the defendant from using, the word “Wonderfoot” in connection with hosiery manufactured by it; the complainant insisting that such use constitutes unfair competition in trade and is an infringement of complainant’s trade-mark “Wunder-hose.”
    Albert M. Austin and George W. Case, Jr., both of New York City, for appellant.
    Hardy, Stancliffe & Whitaker, of New York City (Charles J. Hardy and Frederick P. Whitaker, both of New York City, of counsel), for appellee.
    Before EACOMBE, COXE, and NOYES, Circuit Judges.
    
      
       For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   PER.CURIAM.

The use of the words “Wunderhose” by the complainant and “Wonderfoot” by the defendant were practically synchronous. The action was commenced by filing the bill of complaint in March, 1911, but the motion for a preliminary injunction was not made until August, 1912, a year and four months thereafter.

The defendant is conceded to be amply responsible for any damages the complainant may recover. No irreparable injury is shown by the complainant, and, in view of the fact that the parties deal in hosiery which differs greatly in material and price, it is not easy to perceive how the complainant can be seriously injured pending the trial.- Other than the fact that both parties deal in hosiery, there is slight similarity in the manner in which their goods are offered for sale, and it is at least doubtful whether any confusion can arise in the minds of the purchasing public regarding them.

The testimony as to unfair competition is indeterminate, but the presumptions are against the proposition that the defendant needed to resort to any unfair methods in selling its high-priced silk stockings in competition with the complainant’s low-priced cotton stock-lugs. We do not deem it necessary to decide these questions definitely at this stage of the litigation. It is enough that they are not so clearly established in the complainant’s favor as to warrant the issuing of a preliminary injunction.

Order is affirmed  