The Marietta journal. (Marietta, Ga.) 1918-1944, 1919-05-30
COCA COLA COMPANY IS
DENIED PROTECTION BY
U. S. DISTRICT COURT
Federal Court Decision Uses
Searching Terms
Charges Deception ON Part of the
Company in the Very Use of Its
Name and in the Promotion of the
Sale Of Its Products.

| S@AS va as
The Federal Reporter of May 9Th
has an important decision of the Cir
cult Court of Appeals, which will be
of interest in this section, because it
touches one of the best known drinks,
Coca Cola" by name, but which the
court decides is something else in
fact.
We reproduce the decision in full
in order that the courts opinion in
the matter may be known to the peo-
pie:
In the case of the Koke Co. of
America ct al VS.. Coca Cola Co., in
the Circuit Court of Appeals, Ninth
Circuit, February "a, 1919, No. 3O12,
the Coca Cola Company was held
chargeable with such deceptive, false,
fraudulent, and unconscionable con-
duct in the advertising and sale of
its product as precludes a court of
equity from granting it any relief in
the protection of it's trade mark or
business. Before Gilbert, Ross, and
Hunt, Circuit Judges.
Ross, Circuit Judge, says:
Our conclusion in this case, after
careful examination of it, may be
very briefly stated The suit was
brought to obtain an injunction, pre-
liminary and perpetual, an account
ing for profits, and for the recovery
of damages against the defendants
| thereto, upon the ground of their
| alleged joint and several infringe
ment of the compliments trademark
Coca Cola" and for unfair compe-
tition on the part of the defendants.
After long preceding use of it, the
trademark was registered in the
United States Patent Office on Janu-
airy 3, 1898, under the act of Con-
gress of March 3, 1881, and was also
registered under the subsequent act
of Congress of February 20, 1905,
| entitled San act to authorize the reg
istration of trademarks used in com
merce with foreign nations, among
the several states of the United
States, and with the Indian tribes,
and to protect the same" A very
large amount of testimony was taken
in the case, from which the court
below found as fact that the prep
araton manufactured and sold by
the defendants to the suit was in imi-
tation of that of the complaint, and
that the name under which it was
so manufactured and sold-"Koke"-
was selected for the purpose of reap
ing the benefit of the reputation and
advertising of the complainant, and
because it would permit the defend
ants to better dispose of their product
as and for Coca Cola, especially in
view of the fact that the label of the
complainant was copied and initiated,
and the barrels in which defendants
products were shipped were colored
as nearly like those of complainant
as possible.
Upon the record we would not be
justified in holding that the trial court
reached the wrong conclusion in that
respect, and if that were the only
point in the case would readily affirm
the introductory decree appealed
from. But it is the well-established
law, as held by the Supreme Court
that when the owner of trade
mark applies for an injunction to
restrain the defendant from injuring
his property by making false repre-
sensations to the public, it is essential
that the plaintiff should not in his
trademark or in his advertisements
and business, be himself guilty of any
false or misleading representations;
that if the plaintiff makes any ma
terial false statement in connection
with the property which he seeks to
protect, he loses his right to claim the
assistance of a court of equity; that
where any symbol or label claimed
as a trademark is so constructed or
worded as to make or contain dis
tinct assertion which is false, no
property can be claimed on it, or, in
other words, the right to the exclu-
sive use of it cannot be maintained"
Many cases will be found referred
10 ny Tie court Ill us OplIlOH III sup
port of it. The evidence, we think,
leaves no room for doubt that the
appellee's very extensive business
conducted under the name Coca
Cola" is not entitled to protection at
the hands of court of equity: First,
because it shows that in the beginning,
and for many years thereafter,s the
coca of which its compound was in
large part made contained the deadly
drug cocaine, and the caffeine, which
constituted the other main ingredient,
was derived mainly, and, indeed, al
most exclusively, not from cola nuts,
but from tea leaves. Yet the labels
with which the preparation was
adorned contained pictures of coca
leaves and cola nuts, and was widely
advertised and sold, first, under the
name of Coca Cola Syrup & Ex-
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