MOXIE CO. v. BAGOIAN, 206 F. 437

PER CURIAM. The bill in this case charges that the defendant Bagoian— -lias fraudulently sold to ultimate consumers upon a call for Moxie a beverage not made by your orator, but having the distinctive peculiarities of color and flavor of Moxie, put up in bottles of exactly the same size and shape as your orator’s Moxie bottles, branded and designed, as to represent a visual appearance substantially identical with your orator’s bottle of Moxie, and has displayed your orator’s signs at his (the defendant’

s) place of business, bearing the word ‘Moxie,’ as a representation that your orator’s beverage was on sale, when in fact it was not, thereby inducing the public to approach and enter the defendant’s place of business in the expectancy of obtaining Moxie upon calling for it, all of which acis were false, and fraudulent, damaging to your orator’s business and good will and the reputation of your orator’s product.” The master to whom the case was referred reported: “I find it is more probable than otherwise that neither the defendant nor his servants sold Bo-La to the complainant’s witnesses, nor to any other member of the public, as and for Moxie, upon a call for Moxie.” We are of the opinion that, upon the present record, this finding of fact must stand, and that, in the absence of any showing of past fraudulent substitution, the complainant, under the present bill, is not entitled to any broader relief than was granted by the District Court.

The decree of the District Court is affirmed, and the appellee recovers his costs of appeal.