
    COANE v. NETTER.
    (Circuit Court, E. D. Pennsylvania.
    July 3, 1911.)
    No. 699.
    1. Trade-Marks and Trade-Names (§ 95) — Unfair Competitiok — Preuiso-NARY INJUNCTION.
    The court, in a suit based oil unfair competition by tile use of a label, will not order a preliminary injunction, where defendant has discontinued the use of the label and does not intend to use it again; but plaintiff may renew his motion for an injunction on defendant using the label.
    IKd. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Dec. Dig. § 95.
    
    Unfair competition in use of trade-mark or trade-name, see notes to Soheuer y. Muller. 20 O. C. A. 165; Dake v. Harper & Bros., 30 0. 0. A. 376.]
    2. Trade-Marks and Trade-Names (§ 95) — Unlawful Use of Trade-Mark —1'EELLMINARY INJUNCTION' — SECURITY FOIt DAMAGES.
    Tlio court, in a suit based on the unlawful use of a trade-mark, will on complainant's motion grant a preliminary injunction, unless defendant will enter into security to respond in damages if it should be determined that the trade-mark is valid and that, it 1ms been infringed.
    I Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. S 108; Dec. Dig. I 95.]
    In Equity. Suit by Robert Coane against David Netter.
    Motion for preliminary injunction conditionally denied.
    Horace Pettit, for complainant.
    Loughlin & Bracken, for respondent.
    
      
      Por other cases see same topic & § number in Dec. & Am. nigs. 1907 to date, & Rep’r Indexes
    
   J. B. McPHKRSON, District Judge.

So far, as concerns the charge of unfair competition by the use of the label complained of, I do not see that the plaintiff needs protection at present. The defendant has discontinued the use of the label, and I accept his statement that he does not intend to use it again; hut, if he does so use it, the plaintiff has leave to renew this motion. The jurisdiction of the Circuit Court to entertain the charge of unfair competition — both parties being citizens of Pennsylvania — need not now be determined.

As to the trade-mark, “No. 6,” I am unwilling to decide its validity now. No harm, I think, can be done by deferring the decision until final hearing; but I think the defendant should enter security to respond in damages, if it should be determined hereafter that- the trade-mark is valid and that he has been infringing, before final decree.

It is therefore ordered that the defendant enter security within five days in $1,500. with condition as just stated. If this be done, the clerk will enter an order that the preliminary injunction is refused. If the security be not entered, a preliminary injunction will be granted, restraining the use of the trade-mark “No. 6.”

I may add that one of the judges of the Circuit Court will hear this case at an early date in the fall after issue has been joined; the time to be fixed upon' application.  