I dissent from the opinion of the court, because, as I view the facts, the case does not disclose any attempt on the part of the defendant to represent its mineral water to purchasers as the French Vichy. In its advertisements the defendant has studiously presented its water to the public as a product of its spring at Saratoga; and the labels and dress upon its bottles not only have never borne any similitude to those upon the bottles of the complainants, but have always distinguished it as Saratoga Vichy Water so plainly that misapprehension by purchasers was impossible. The word “Saratoga” is the valuable part of the descriptive name, because the reputed therapeutic virtues of Saratoga waters have rendered them the most popular mineral waters known in the markets where the defendant’s water is offered for sale, and no sane man having the right to sell his mineral water as a Saratoga water would be tempted to suppress that part of the name; or sell it by any name which would denote a different origin. All the Saratoga waters are bottled and sold by distinctive names, such as “Saratoga Congress Water,” “Saratoga Hathorn Water,” etc., and the defendant, in naming its water “Saratoga Vichy,” did so merely to distinguish it from the other Saratoga waters, and se-. lected “Vichy” as its distinctive name because its alkalinity assimilated it more nearly to the French Vichy. The label which has met with animadversion in the opinion of the court is one used on the neck of the bottles. It is a fancy label, having a white background. and printed upon it in red and black letters are the words “Saratoga Vichy.” The word “Saratoga” is above the word “Vichy,” but included between its extended V and Y. It is true that it is in smaller letters, but the letters are an eighth of an inch in height and breadth. Although not so conspicuous as the word “Vichy,” it is so prominent that it is almost inconceivable that it would not be observed across a counter. If this were the only label on the bottle, there would be color for the theory'that it might mislead *463casual purchasers; hut just below it is another label, covering nearly half the surface of the bottle, upon which are printed in letters three-fourths of an inch in length and breadth the words “Saratoga Vichy Water.”
The decree which is authorized by the opinion will not he of the slightest practical benefit to the complainants, and will have no effect except to subject the defendant to expense, for I cannot believe that any person ever has been misled, or ever can he misled, by the use of the neck label, as the defendant has always used it, in conjunction with the body label.
I agree with the conclusion of the court below that the hill should he dismissed.