(after stating the facts as above). In December, 1905, the complainant adopted a design for the shell of an automobile lamp and in the following January exhibited it at the exhibition of automobiles at Madison Square Garden, ’New York. This is the complainant’s lamp in controversy. Its exterior is pleasing to the eye and it is unquestionably a high grade lamp, but there is nothing strikingly novel or ornamental about it. In general contour it> resembles the search light which has for years been in use upon excursion boats and vessels of war, the principal difference being in the addition, by the complainant, of the so-called “Flare Front.” The glass front of the lamp being larger in diameter than the body of the lamp except as it flares out near the front to meet and inclose the glass. No patent has been granted to Rushmore either for a combination, for a new article of manufacture or for a design for the shell of the lamp. It is possible that had application been made a design patent might have .been granted and sustained. In West Disinfecting Co. v. Frank, 149 Fed. 423, 79 C. C. A. 359, this court recently held valid a design patent -for a somewhat similar structure.
*941The defendant is manufacturing a lamp which, though differing in several details of construction, unquestionably resembles in external appearance the Rushrnore lamp. If a valid design patent had been issued to the complainant we have no doubt that the defendant’s lamp would infringe and, believing as we do that the points of difference are unimportant, we will consider the question involved upon the theory that the shells of the two lamps are substantially identical.
The defendant has adopted “Phoebus” as its trade-mark and its lamp is known to the trade as the Phoebus lamp. All of its lamps have conspicuously displayed on the top thereof a name plate with a black background inscribed “Phoebus, the lamp of Quality, Model 601, Manhattan Screw & Stamping Works, N. Y.” The officers of the defendant deny that they, or any one connected with the defendant, have ever in any way represented their lamps as those of the complainant. There are allegations in the bill, made upon information and belief, that the defendant has palmed off its lamps upon innocent purchasers as the Rushrnore lamps, but there is nothing in the affidavits worthy of the name of evidence to establish these allegations. The affidavits, in our judgment, also fail to establish an exclusive right to the use of the name “Flare Front.” The complainant says in his affidavit, “I am aware that what might be called ‘flaring fronts’ have been used on other forms of lamps entirely different in appearance from my P,xhibit A lamp, for instance the old carriage lamps, but I am positive that I am the first who has ever used these flare fronts on any lamp similar in appearance to my Exhibit A.” Assuming the correctness of this statement we do not think the fact that complainant was the first to put a flaring front on a shell of his design entitles him to a monopoly of these words. We regard them as descriptive merely and are of the opinion that an injunction should not issue at least until proof, more cogent than anything which now appears in the record, is presented, showing that they have acquired a secondary meaning. So far then as the prayer for an injunction is based upon the use of the name “Flare Front” and the allegation that the defendant has actually deceived purchasers by representing that its lamps were made by the complainant, the most that can be said is that the questions are involved in doubt. This court has uniformly held that an injunction should not issue in a doubtful case. Hall Signal Co. v. Railway Signal Co., 153 Fed. 907, 82 C. C. A. 653; Cleveland Foundry Co. v. Silver, 134 Fed. 591, 68 C. C. A. 87; Hildreth v. Norton, decided Feb. 11, 1908 (C. C. A.) 159 Fed. 428.
As we read the opinion of the judge of the circuit court he finds no actual fraud and no evidence that the defendant is now using the word “Flare Front.” He says: “Assuming that at the present time the defendant is not using the word ‘flare front,’ is not selling its product as Rushrnore lamps, and is not using in any way either of these words or phrases, the question is whether plaintiff is entitled to be protected from unnecessary imitation of nonfunctional parts of his well-known lamp. It seems to me that under the cases of Enterprise Manufacturing Co. v. Landers, 131 Fed. 240, 65 C. C. A. 587, and Marvel Co. v. Pearl, 133 Fed. 160, 66 C. C. A. 226, he is so en*942titled.” We are thus confronted with the naked question of law — Can one who manufactures and sells a well-known article of commerce, like an automobile search light inclosed in a shell of graceful but unpatented design,’ maintain a bill for an injunction, profits and damages against a defendant who sells automobile search lights inclosed in a similar shell, with his name prominently appearing thereon as the maker, and who has never represented that his lamps were made by the complainant? We feel constrained to answer this question in the affirmative upon the authority of Enterprise Co. v. Landers, supra, and Yale & Towne Mfg. Co. v. Alder, 154 Fed. 37, 83 C. C. A. 149. Both of these cases were decided by this court and we see no way to distinguish them, on principle, from the case at bar. We are of the opinion, however, that to answer this question in favor of the complainant carries the doctrine of unfair competition to its utmost limit. If it be pushed much farther those engaged in trade will be encouraged to'run to the courts with trivial complaints over the petty details of business and thus will grow up a judicial paternalism which in time may become intolerable.
This cause or one involving the question at issue may be easily brought here on appeal from final decree and heard at the next term. After the witnesses have been cross-examined we may be able to tell with much greater certainty whether the competition of which the complainant complains is produced by the similarity of the shells of the two devices or by the fact that defendant is selling its lamps at a much lower price. It appears from the record that purchasers of automobiles belong to the wealthy class who are nqt particular about the price paid so long as they secure durable and efficient machines. They are not the class of buyers who might purchase a padlock, for instance, after a casual inspection, and it is not easy to understand how such fastidious buyers with the Phoebus name plate before thém can be deceived into thinking that they are purchasing the Rushmore lamp. If it should appear, after full hearing, that the effect of the injunction will be to stifle legitimate competition rather than to punish unfair competition we will not hesitate to dissolve it, but, upon the affidavits now before us, the majority of the court is of the opinion that the case is controlled by the former decisions of this court.
The order should be modified by excluding from its provisions the prohibition against the use of the name “Flare Front” and, as so modified, is affirmed.