20 FEDERAL nmrommn.
· ant would be entitled to this protection entirely irrespective of the
registration of its trade-mark in the patent-ofnce. The same observa-
tions apply to the use of the label. The complainant has a common-
law right to the name and the label as a trade-mark by which its
mineral waters are identified; and as the necessary diversity of citizen-
ship exists between the parties to confer jurisdiction upon this court,
the only effect of registration is to afford and perpetuate the evidence
of the cornplainant’s title. But the defendant is sellingthe genuine
water, and therefore the trade-mark is not infringed. There is no
exclusive right to the use of a name or symbol or emblematic device
except to denote the authenticity of the article with which it has be-
come identiied by association. The name has no ofdce except to
vouch for the genuineness of the thing which it distinguishes from
all counterfeits; and until it is sought to be used as a false token to
denote that the product or commodity to which it is applied is the
product or commodity which it properly authenticates, the law of
trade-mark cannot be invoked.
The real question in the case is whether the defendant is unlaw-
fully interfering with any exclusive right of the complainant to con-
trol the sale of the water in the territory ceded to the complainant
for that purpose by Saxlehner. It is manifest that the acts ofthe
defendant tend to deprive the complainant of the substantial advan-
tages which it expected to obtain from the privilege transferred to it
by Saxlebner. It can no longer maintain its own prices forthe min-
eral water, or hold out the inducements it formerly could to the agents
it has selected to introduce the article to the patronage of the pub-
licgand build up a trade. 'It can no longer protect itself as einciently
against the chances of a spurious article being palmed off upon the
public as its own. It is therefore measurably deprived by the acts of
the defendant of the profits and benents which it contemplated when
it purchased from Saxlehner the exclusive right of importing the
water into this country and selling it here. If the complainant could
acquire an exclusive right to sell the water here the case would be plain.
If it could not, it still remains to consider whether the defendant has
violated any duty which the law recognizes in his relations to the
transaction; There would seem to be no doubt that the agree-ment
between Saxlehner and the complainant was a valid one. He had .
the right to dispose of his property in the product of his spring as he
saw fit, and it is not apparent how the transfer of a part of his ex-
clusive right to vend the water, by which a territorial division in its
enjoyment was created, can be deemed obnoxious to any principle of
public policy as tending to create a monopoly or an unlawful restraint
of trade. If Saxlehner were now endeavoring to compete with the
complainant in the sale of the water in the ceded territory, his con-
duct would furnish a ground for equitable jurisdiction and the remedy
of an injunction because of the inadequacy of a remedy at law.
Bisp. Eq. 463. It is equally clear that if the defendant were co-