The questions involved in this appeal are interesting and novel. Many of the important facts, on both sides, are asserted on information and belief. The complainant’s case rests solely upon the bill and two affidavits made by Herry Batjer, one of the agents for the complainant in the United States. The verification of the complaint is also by Batjer, who says:
“My information is gained from correspondence with European agents of said order, and from correspondence and conversations with local representatives of the same, and from general reading.”
In short, the injunction was asked for upon the statements of one witness who has no actual knowledge of the more important facts upon which relief depends.
It is asserted by Batjer that the defendant is selling a “spurious article” in the United States, but he does not say in what particular it differs from the genuine Chartreuse, except that the latter is somewhat lighter in color. From the nature of the case proof by affidavit upon *498this point is impossible. It is asserted that the complainant’s product is made by a secret process; and the question whether defendant is selling a bogus liqueur can only be determined by cross-examination and careful chemical analyses. Hostetter v. Comerford (C. C.) 97 Fed. 585.
The defendant insists, also on information and belief, that the liqueur formerly made by the Chartreuse monks derived its value from the aromatic plants grown in the vicinity of the monastery of La Grande Chartreuse, and that the monks have always insisted that the genuine article cannot be made elsewhere. It is therefore argued that the liqueur made by the monks at Tarragona, Spain, is not and cannot be the 'genuine Chartréuse. In other words, each party contends that he is selling the genuine article and his adversary, the bogus article.
Both parties agree, apparently, upon the following facts:
First. The order of Chartreuse monks had for many years occupied a monastery near Voiron, France, where they had manufactured and sold a liqueur known as “Chartreuse.”
Second. This order was refused authorization under the French law of July 1, 1901, known as the “Associations Act,” was judicially dissolved and its members expelled from France.
Third. A receiver of all the property of the said order was appointed, pendente lite, by a French court, having jurisdiction, and was duly authorized to carry on the business of La Grande Chartreuse, arid to use the distillery fixtures, trade-marks and good will of the business which the monks were directed to turn over to him. The defendant here is the agent of the receiver, M. Lecouturier.
Fourth. After their expulsion from France the monks established a factory at Tarragona, in Spain, where they make the liqueur sold by Batjer & Co. in this country under a new label and trade-mark having no resemblance, from a legal viewpoint, to the trade-marks and labels used by them in France. The only person now using the old labels and trade-marks is the receiver appointed by the French court.
Fifth. When ordered to give up and assign their trade-marks the monks failed to do so, giving as an excuse that the trade-marks did not belong to the order, but to the Abbe Rey. The court, however, decided that this contention was not well founded, and that the trademarks were held by Rey as trustee for the order.
Sixth. The legal aspect of the case in France has not, so far as appears from the record, been finally determined. As counsel for the complainant says:
“Even as to tlie extent of the liquidator’s [receiver’s] power in France the highest courts of that country have yet to he heard from.”
“Even as to the extent of the liquidator’s [receiver’s] power in France the highest courts of that country have yet to he heard from.”
Nothing further is needed to demonstrate the novelty and importance of- the issues and the difficulty in deciding them upon a record so inconclusive and unsatisfactory. Indeed, we hesitate to express an opinion upon the law, as the cause may be brought here again upon a complete record, presenting the question in a wholly different aspect.
The injunction order is broad and unconditional. It enjoins the defendant, who is the agent here of the receiver appointed by the French *499court, from using the bottles, labels and trade-marks, which his principal is using-under the protection of the law in France. In this connection, it should be remembered that the complainant is not now using these bottles, labels and trade-marks, and his right to use them has been denied. The financial responsibility of the defendant is not disputed. In these circumstances we are of the opinion that so sweeping an injunction should not have been granted upon ex parte affidavits, based largely upon information and belief. Stevens v. Missouri, 106 Fed. 771, 45 C. C. A. 611; Blakey et al. v. Nat. Mfg. Co., 95 Fed. 136, 37 C. C. A. 27; Air Brake Co. v. Westinghouse, 69 Fed. 715, 16 C. C. A. 371; Westinghouse Co. v. Montgomery Co. (decided by this court May 3, 1905, 139 Fed. 868).
In view of the fact that the record discloses instances where the public have been misled by the sale of the defendant’s goods under the old labels without explanation, it may be that the Circuit Court will see fit to grant an injunction nisi. It would seem that pending final hearing all confusion might be avoided if the defendant should attach to its bottles labels similar to those adopted by the complainant, stating that:
“This liqueur is made at the Grande Chartreuse, in France, under the direction of M. Lecouturier, appointed liquidator of the property of the congregation of Carthusian monks after its dissolution and expulsion from France.”
We are inclined to think that an order granting an injunction, unless a notice similar to the above is attached to each package offered for sale, would be within the discretion of the court.
The order is reversed.