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properties so claimed for it; and no evidence was introduced to show that it contained any ingredient which warranted the name of "nerve food," or to show a reasonable basis for a belief that the statements as to its curative powers were true. On the other hand, defendant introduced the evidence of physicians and chemists who made analyses of the preparation and of a former employé of complainant, which established affirmatively a very strong probability that the statement that the liquid was a preparation from a plant such as described was pure fiction, and that it was merely root beer, containing no nerve food or other curative agent, except perhaps a small amount of a bitter principle such as gentian or cinchona. Held, that under such state of the evidence, complainant was not entitled to the protection of a court of equity even as against undoubted infringement and unfair competition.

[Ed. Yote.-For cases in point, see Cent. Dig. vol. 46, Trade Marks and

Trade-Names, $ 94.] 4. SAME.

Where a proprietary preparation purchased and used largely as a mere beverage was also falsely and fraudulently represented by its manufacturer to contain valuable medicinal ingredients, a court of equity cannot afford protection to any part of its business against infringement of trade-mark or unfair competition.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 94.] In Equity. On final hearing.

Oliver Mitchell, Robert Cushman, James A. Bailey, Jr., and Roberts & Mitchell (Charles D. Woodberry, of counsel), for complainant.

Charles A. Wilson and George H. Huddy, Jr., for defendants.

BROWN, District Judge. This is a bill in equity brought by the Moxie Nerve Food Company of New England, manufacturers of a liquid known as “Moxie Nerve Food” or “Moxie,” agaiņst the Modox Company and others, manufacturers of a beverage called "Modox," charging that the defendants have infringed the complainant's trademark rights, imitated its trade-name and goods, and in various ways have been guilty of unfair competition. The defendants contend that the complainant has been guilty of such false representations to the public that, under the principles set forth in Worden v. California Fig Syrup Co., 187 U. S. 516, 23 Sup. Ct. 161, 47 L. Ed. 282, it is barred from the right to seek the aid of a court of equity.

Before considering the defendants' specific charges of fraud, it is proper to inquire whether the complainant has made out a case for equitable relief. In Moxie Nerve Food Co. of New England v. Holland (C. C.) 141 Fed. 202, this court referred to the language of the Supreme Court in Deweese v. Reinhard, 165 U. S. 386, 390, 17 Sup. Ct. 310, 341, 41 L. Ed. 757:

“The right, whatever it may be and from what source derived, must be not only one not protected by legal title, but in and of itself appealing to the conscience of the chancellor. A court of equity acts only when and as conscience commands, and if the conduct of the plaintiff be offensive to the dictates of natural justice, then, whatever may be the rights he possesses and whatever use he may make of them in a court of law, he will be held remediless in a court of equity.”

. It is incumbent upon the complainant to move the conscience of the chancellor. It is shown, and is not denied, that the complainant's article “Moxie" or "Moxie Verve Focal" is a harmless beverage which

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many years has had a very large sale. It also appears that it is fered to the public as a "Nerve Food," or "food for the nervous stem," and as a cure for nervous disorders; and that there is a ublic demand for the article as a cure for nervous disorders.

The trade-mark which the complainant desires to protect was regisered in the Patent Office in September, 1885, upon a statement and leclaration by Dr. Augustin Thompson:

"This trade-mark I have used continuously in my business since April 1, 1885, and the particular description of goods is a liquid preparation charged with soda for the cure of paralysis, softening of the brain, and mental in. becility, and called the 'Moxie Nerve Food.' 'It is comprised in the class of medical compounds."

Upon the label accompanying the declaration was the statement:

"Moxie Nerve Food. Has not a drop of medicine, poison. stimulant, or alcohol in its composition ; but is a simple starchy plant grown in South America, and the only positive nerve food known that can recover brain and nervous exhaustion, and loss of manhood at once unaided. It has cured paralysis, softening of the brain, and mental imbecility," etc.

It also appears that, at the time of the filing of the bill, Moxie
was represented to the public as a nerve food or a food for the nervous
system, and as a preparation containing an ingredient of remarkable
curative powers, as will appear from the following copy of the label
affixed to the bottles :
More Palatable if Served Ice Cold.

Keep in Cool Place.
Moxie Nerve Food.

Trade-Mark Registered.
A Food for the Nervous System, also a Delicious Beverage.

Contains Not a Drop of Poison, Stimulant, or Alcohol.
It is prepared from a simple sugar cane like plant grown near the equator.
It was lately discovered by Lieut. Moxie, who placed his discovery in the
hands of Dr. Augustin Thompson who has demonstrated its value as a food for
the nervous system.

It has proved itself the only harmless and effective nerve food known to
science and has recovered brain and nervous exhaustion, also paralysis, soft-
ening of the brain, locomotor ataxia and insanity, when caused by nervous
exhaustion. It nourishes the nervous system, gives a durable solid strength
without stimulation or reaction, creates a vigorous, healthy appetite, removes
fatigue from mental and physical overwork and brings refreshing sleep at
night. Does not interfere with the action of vegetable medicines.

The genuine is put up only in bottles of this shape, and

is never drawn from soda fountains.
Moxie Nerve Food Co. of New England,

Sole Proprietors and Manufacturers.
Boston, Mass.

Branch, N. Y. City.
The wrapper of the Moxie bottle, furthermore, contains many state-
ments as to curative virtues in "helpless cases of paralysis." The
bill alleges:
"That the beverage 'Moxie,'

is a meritorious and useful article well esteemed for its tonic action and its useful and remedial effects under certain conditions and diseases, and that it is recognized by reputable menbers of the medical profession as a meritorious preparation, and is and has been by them prescribed when indicated, and public institutions such as hospitals, homes for consumptives and the aged and infirm, and the like, have been at their request supplied with ‘Moxie' for the use of the inmates."

A comparison of the allegations of the bill and the actual representations made to the public as to the character of Moxie reveals an important discrepancy. It is the duty of a complainant seeking relief in a court of equity to present his case fully and fairly in his bill. The complainant, in seeking protection for its trade-mark, seeks protection for the business associated with the trade-mark. The trademark and the business are inseparable. Paul on Trade-Marks, 136. A complainant in equity, therefore, should show fully and fairly what is the business which he is conducting under the trade-mark. He cannot aid his case by omitting material facts as to the true nature of his business.

In McMullen v. Hoffman, 174 U. S. 639, 656, 19 Sup. Ct. 839, 846, 43 L. Ed. 1117, it was said:

“ 'It is a maxim in our law that a plaintiff must show that he stands on a fair ground when he calls on a court of justice to administer relief to him.'".

In Moxie Nerve Food Co. of New England v. Holland (C. C.) 141 Fed. 202, 204, it was said, “The statements upon the label or wrapper of a patent medicine bottle do not prove themselves.” The statements upon the bottles are mere recitals. They prove what representations are made by the complainant to the public. They do not prove the truth of the representations. These recitals are proof only that they are recitals. Murphy v. Packer, 152 U. S. 398, 14 Sup. Ct. 636, 38 L. Ed. 489; Herron v. Dater, 120 U. S. 464, 7 Sup. Ct. 620, 30 L. Ed. 748.

In the Holland Case above cited, it was queried whether it would not be reasonable for a court of equity to hold that a complainant seeking to protect his proprietary rights as the owner of a patent medicine should produce legal evidence that it is in fact what it purports to be. Upon a further consideration of this point, I am of the opinion that the complainant, according to the ordinary principles of equity pleading and procedure, should be required, as a part of its affirmative case, to show that its preparation is what it purports to be. If a complainant seeks protection in the sale of bottled goods, he should be willing to swear that his bottles contain what he represents to the public that they contain, and that his goods are in fact what they are sold for. If a complainant in a bill in equity should allege, "I am selling to the public under a certain trade-mark an article which I represent to the public as fig syrup," such a bill, in my opinion, should be dernurrable on the ground that the complainant has no right to protection in a mere business of making representations to the public, but only in a bona fide business of selling an article for what it is in fact. · A court of equity should not extend protection to a business of selling medicine for paralysis or other serious diseases simply upon proof that the preparation is a harmless beverage with some slight tonic properties. Missouri Drug Co. v. Wyman (C. C.) 129 Fed. 623, 629.

The complainant's affirmative case affords no evidence upon which the court can find that its preparation is in fact what it is represented

We are asked to extend protection to the complainant upon presumptions in its favor. If this court should act upon the presumpn that this liquid is a preparation "from a simple sugar cane like ant grown near the equator," of remarkable value as a food for the ervous system, and as a cure for paralysis and other serious diseases,

would, in my opinion, depart from the ordinary rules which reuire allegation and proof. While fraud is not presumed, the truth f a mere allegation is ordinarily not to be presumed, but must be stablished by sworn evidencé.

Courts of equity have frequently extended to the proprietors of patent medicines and like preparations privileges not extended to other litigants. They have assumed the truth of incredible or doubtful statements made by patent medicine vendors, without requiring them to make allegations to the court substantially similar to those made to the public, and have protected businesses which were neither presumptively nor in fact entitled to protection. Instances may be found where a complainant has received protection from a court of equity while making most incredible and preposterous statements to the public as the basis of his business. Is there any reason why a court of equity should act upon the presumption that a patent medicine vendor, or the vendor of a preparation offered to the public with statements as to wonderful ingredients and marvelous curative properties, states the truth upon his bottles and labels ? Eminent jurists have acted upon the contrary presumption. In Williams v. Williams, 3 Merivale, 157, 15 Jurist, 794, Lord Eldon said: “Upon general principles, I do not think the court ought to struggle to protect this sort of secrets in medicine." Other cases to the same general effect are referred to in the opinion in Worden v. California Fig Syrup Co., 187 U. S. 527, 23 Sup. Ct. 161, 47 L. Ed. 282.

While this may be an extreme position, it is no more extreme than the cynical view that, despite extravagant and apparently unfounded statements, patent medicines should prima facie be regarded as property entitled to protection. In Worden v. California Fig Syrup Co., 187 U. S. 530, 23 Sup. Ct. 165, 47 L. Ed. 282, is cited with apparent approval the remark of Lord Chancellor Westbury:

"That he could not receive it as a rule, either of morality or equity, that a plaintiff is not answerable for a falsehood, because it may be so gross and palpable as that no one is likely to be deceived by it," etc.

But why, in dealing with patent medicines, should a court of equity proceed upon general presumptions? A court of equity, when invoked to protect a business, cannot avoid a fair examination of the character of the business. Of the truth or untruth of certain representations or statements a court may take judicial notice. The ordinary rules as to judicial notice undoubtedly could be properly applied to preparations whose statements were on their face too preposterous or incredible. In many cases, however, the truth or untruth of representations cannot be determined upon the principles of judicial notice. A court should not, of course, take judicial notice that all patent medicines or secret preparations are fraudulent and lack merit, and refuse relief on this ground. It by no means follows, however, that it is required to presume that representations to the public are prima facie true. Ordinarily, those things of which a court does not take judicial notice must be proved.

152 F.-32

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In the present case, I find in the complainant's proof no sufficient reason for belief that this article is in fact what it is represented to be, either as to ingredients or curative value. I think that I cannot take judicial notice that the representations are untrue. The statements seem to be improbable. They cannot be ignored. And should relief be extended to the complainant, it would be with decided misgivings whether the court was not protecting a business of selling root beer under false representations that it contains an ingredient which is a cure for nervous disorders and serious diseases.

To apply the rule that a complainant must allege fairly and fully what his business is, and produce proof substantially supporting his allegations, should not require of the complainant the allegation and proof of the minute particulars of his business; but it should, I think, require a complainant who asserts that he has an article which is good as a beverage, and is also good as a cure or medicine because of certain ingredients, to make proof substantially to the extent of his general representations to the public. The proprietor of a secret preparation may justly claim protection of a trade secret, but to the extent of his representations to the public secrecy is waived; and there is no hardship in requiring a complainant who has stated certain things to the public as truths in order to promote the sale of his goods to state the same things as truths to the court, and prove them as truths, in order to secure equitable relief. The right to preserve a trade secret does not carry with it a general right to have one's bare word or unsworn statement accepted in a court of equity, or excuse a failure to prove the truth of what is published to the public. To the extent that a manufacturer of goods chooses to reveal their character and composition to the public-to that extent he waives the right of secrecy in a court of equity.

If it is not incumbent upon a complainant to prove something more than that he is representing his goods to the public in a certain way under a certain trade-mark, a court of equity, by ingenuously assuming the truth of what vendors tell the public about their goods, particularly goods of the patent medicine class, will indulge in a presumption not

entertained by ordinary persons of intelligence, and which is contrary to that public experience which has resulted in the enactment by Congress of laws for the protection of the public against unscrupulous statements in relation to a very large number of articles in whose preparation there is an opportunity for adulteration, substitution, or secret fraud.

A presumption in favor of a complainant may be grounded on general experience, probability of any kind, or merely on policy and convenience. It is very doubtful if a presumption in favor of this complainant can rest on either of these grounds. I see no reason why, in the absence of averment and proof, this court should assume that Moxie is a preparation from a sugar cane like plant which has remarkable properties as a nerve food.

A complainant must by allegations and proof show that he is entitled to relief. Knox v. Smith, 4 How. (U. S.) 298, 317, 11 L. Ed. 983. The allegata and the probata must reciprocally meet and conform to each other. Harrison v. Nixon, 9 Pet. (U. S.) 503, 9 L. Ed. 201.

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