GORDON DRY GIN CO., Limited, v. RIGHEIMER et al., 258 F. 925

BAKER, Circuit Judge. Appellant, maker of Gordon gin, sold its product only in trade-marked bottles. Appellees operated a saloon in Chicago, and bought Gordon .gin from wholesale liquor dealers. In its bill appellant charged appellees with refilling appellant’s bottles with inferior gin of other makes. The master in his report recited the conflicting evidence, and found that appellant “has failed to sustain by a preponderance of evidence” the aforesaid charge.

This finding, approved by the trial court, we will not disturb, because the record discloses a dispute of fact involving the weight and credibility of oral testimony. Under an amendment of its bill appellant contends that appellees’ admitted practice of pouring Gordon gin from one of appellant’s trade-marked bottles into another and selling drinks across the bar from the latter bottle is an infringement of appellant’s trade-mark rights.

The master found that this practice was general among saloon keepers and^was due to the fact that drinkers like to pour their drinks at bars from nearly full bottles rather than from nearly empty ones. There was no deception of any one. Instead of diminishing appellant’s trade, the pi-actice of acceding to drinkers’ preferences would have a tendency to increase, or at least to uphold, the consumption of Gordon gin. Manifestly appellant intended that its bottles should be opened and the contents dispensed by the drink.

If consumers at saloon bars will not take the last gill in a bottle, appellant’s theory of its legal rights would deprive appellees of property they had bought and paid for. The mere statement of the theory carries its own refutation, we believe. Coco-Cola Co. v. Bennett, 238 Fed. 513, 151 C. C. A. 449, has no bearing, in our judgment, upon such a situation as here is presented. The decree is affirmed.