I dissent and vote for affirmance. The record before this court is made up of extracts from the evidence taken at trial, it being stipulated that it contains “ all the matter material to the exceptions herein sought to be reviewed.” In its notice of appeal, plaintiff states that the appeal is from the decision and judgment only in so far as they “ do not include ” one of plaintiff’s proposed conclusions of law.
Assuming that this record presents the question, I fail to find any reason to disturb or alter the decree of injunction as entered below. Appellant has all the relief to which it is entitled. That judgment grants fully the prayer for relief as stated in the complaint. In some respects it goes beyond it. Defendant is permanently restrained from directly or indirectly using or causing to be used on his merchandise or in connection therewith, any mark, symbol or word in imitation of either of plaintiff’s registered trademarks and from putting up and selling or offering for sale any merchandise packed and labeled in any imitation of the packing and labeling of plaintiff’s merchandise, and from using thereon labels or marks in imitation of plaintiff’s labels and trade-marks and from in any way unfairly competing with plaintiff or in any other way selling or offering for sale any merchandise packed and labeled and /or marked so as to be likely to be confused with plaintiff’s “Apricoating ” product.
The complaint is merely one for injunctive relief against unfair competition; no more all-embracing injunction decree can be drawn in such an action than that which was awarded below to plaintiff.
This is not a suit (such as is maintained in the Federal courts) to restrain an infringement of a registered trade-mark. Plaintiff *95may in a proper action try out, if it wishes, its claim that no one other than itself may describe the product, sold by these parties to bakers to make an apricot icing upon cakes, as “ apricot coating,” because its trade-mark dubs its product “ Apricoating.” “ Coating ” is an appropriate descriptive word used to describe such icing and when the ingredient is apricot, the term may, I think, properly be employed in the trade in fair competition to designate that product. Plaintiff’s president admitted that many manufacturers throughout the United States sell their own apricot coating. It is clearly an apt and suitable name for the product (Photoplay Publishing Co. v. La Vergne Pub. Co., 269 Fed. 730) and any one may use it. I cannot agree that these descriptive words must be banished from use in trade because plaintiff has combined them into, and coined, the shorter word “ Apricoating,” which it claims to have made its trade-mark.
The judgment appealed from should be affirmed.
Townley, J., concurs.
Judgment modified to the extent indicated in opinion and as so modified affirmed, with costs to the appellant. Settle order on notice reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.