This bill, filed by appellant against appellees, seeks to restrain respondents from infringing upon complainant’s registered trade-mark and trade-name, Viva, a soft drink, and from molesting and injuring complainant’s business by respondents’ unfair, fraudulent trade competition. The temporary injunction issued when the bill was filed was dissolved and the bill dismissed upon the final hearing of the cause on pleadings and proof. The evidence entirely fails to show any infringement or fraudulent use of the complainant’s registered trade-mark or trade-name, Viva, a material allegation of wrong with which the bill charges these respondents.
It is also averred that the respondents “have represented to the purchasing public that their product was Viva, and have sold it to a large number of orator’s customers for Viva, and the customers have been deceived and defrauded into thinking that they were purchasing Viva, and have purchased this product.” While there is testimony tending to show that employers or drivers of the sales and delivery wagons of respondents made the false and fraudulent representations averred with respect to the identity, etc., of a produce they sold as Viva, there is no evidence that Allen Harris (doing-business as the Camel Bottling Works) himself so wronged the complainant as is averred or even that he knew of, authorized, or ratified the false and fraudulent statements attributed to his employees. Indeed had the complainant attempted to conform his allega*308tion to his proof, he would have framed his pleading so as to impute the wrong of the agent to the principal.. This, however, complainant did not do.
There is testimony to like effect With reference to the employees of Oldham and Forcester. As indicated with respect to Allen Harris, there is want of conformity between allegation and proof. Notwithstanding this, when the whole evidence is considered in the light of the burden of proof assumed by and resting upon complainant, we are not convinced, as the learned chancellor was not, that the burden on complainant has been discharged.
The only error assigned refers alone to the final decree on testimony submitted. Much of the argument for appellant treats questions which could only arise on the hearing of a motion to dissolve a temporary injunction.
The decree is affirmed.
Affirmed.
All the Justices concur, except Dowdell, C. J., not sitting.