
    WATERPROOFING CO. v. NEAL FARNHAM, Inc., et al.
    (Circuit Court, S. D. New York.
    January 4, 1911.)
    Tbade-Makks and Teade-Names (§ 95) — Infetngement—Peioi.iminaet Injunction.
    A motion for preliminary injunction against tlie infringement of a trade-mark will not be granted where the use of the trade-mark complained of in an advertisement was only for a week and has keen discontinued, but leave will be granted to renew the motion if the defendant continues to use the name in advertising.
    [Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Dec. Dig. § 95.]
    In Equity. Suit by tlie Waterproofing Company against Neal Earn-hatn, Incorporated, and others. On motion for a preliminary injunction.
    Denied.
    D. A. Usina, for complainant.
    E. Warren Wright, for defendants.
    
      
      For other cases see same topic & § nu.mber in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   COXE, Circuit Judge.

This is a motion for an injunction restraining the infringement of the alleged trademark “Hydrolithic” which was registered June 12, 1910. This trademark has never been adjudicated ; its' validity is in dispute. The affidavits do not show a case of general acquiescence. The particular act of infringement complained of is the publication by the defendant J. P. Beck of a program of a Cement Exhibition given during last month at the Madison Square, Garden in the city of New York. This program contains an advertisement by the defendant Neal Earnham in which the words “Hydro-lithic Waterproofing for Sub-Structural Walls” are inserted. This exhibition lasted but a week or so and was finally dosed ‘in the latter part of December. No future damages can therefore be attributed to this particular act. Whatever damages there are have already accrued and cannot be affected one way or the other by an injunction. The defendant Earnham does not sell his product under the name of “Hy-drolithic” and does not use that name upon boxes, packages or bundles. His product is sold under the name of “Waxin.” ft is not at all unlikely that two fair and intelligent business men will reach a settlement of so inconsequential a dispute, but even should the case go to a final hearing it will in the usual course be decided , on its merits before any serious damage can be suffered by the complainant. Upon proof that the defendant continues to advertise by using the name “Plydrolithic” as in the catalogue of the Cement Show, a renewal of this motion may he had. As at present presented, the case is not one for a preliminary injunction.

The motion is denied.  