(after stating the facts as above). [1] The complainants do not seek to restrain the defendant from using his own name in the conduct of his business. But the claim is made that the name of “F. Garcia & Bros.,” as well as “Garcia Bros.” or “F. Garcia Brothers,” being not only complainants’ trade and business name, and truly descriptive of their copartnership relation, but having also a secondary signification in being descriptive of the kind and quality of goods manufactured by them, the defendant cannot adopt such name or names as a garb of his own business or product, and then compete with complainants.
The legal principles governing the situation presented have been applied so frequently in leading cases within this circuit that extended discussion is unnecessary. Such are the cases of Pillsbury v. Flour Mills Co., 64 Fed. 841, 12 C. C. A. 432; Meyer v. Medicine Co., 58 Fed. 884, 7 C. C. A. 558; Stuart v. F. G. Stewart Co., 91 Fed. 243, 33 C. C. A. 480; Kathreiner’s Malzkaffee Fabriken mit Beschraenkter Haftung v. fastor Kneipp Med. Co., 82 Fed. 321, 27 C. C. A. 351; Peck Bros. & Co. v. Peck Bros. Co., 113 Fed. 291, 51 C. C. A. 251, 62 L. R. A. 81; Chickering v. Chickering & Sons, 120 Fed. 69, 50 C. C. A. 475; Charles E. Hires Co. v. Consumers’ Co., 100 Fed. 809, 41 C. C. A. 71.
In Meyer v. Medicine Co., the doctrine is thus stated:
“While the right can be denied to no one to employ his name in connection with his business, or in connection with articles of his own production, so as to show the business or product to be his, yet he should not be allowed to designate his article by his own name in 'such a way as to cause it to he mistaken for the manufacture or goods of another already on the market under the same or a similar name. Whether it be his name *640or some other possession, every one, by the familiar maxim, must so use his own as not to injure the possession or rights of another.”
And in Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118, which is cited in Stuart v. Stewart, supra, it is more fully stated as follows:
‘‘This fact is fully recognized by the well-settled doctrine which holds that'‘every one has the absolute right to use his own name honestly in his own business, even though he may thereby incidentally interfere with and injure the business of another having the same name. In such case the inconvenience or loss to which those having a common right are subjected is damnum absque injuria. But although he may thus use his name, he cannot resort to any artifice or do any act calculated to mislead the public as to the identity of the business firm or establishment, or of the article produced by them, and thus produce injury to the other beyond that which results from the similarity of names.’ (Citing cases.) Where the name is one which has previously thereto come to indicate the source of manufacture of particular devices, the use of - such name by another, unaccompanied with any precaution or indication, in itself amounts to an artifice calculated to produce the deception alluded to in the foregoing adjudications. Indeed, the enforcement of the right of the public to use a generic name, dedicated as the results of a monopoly, has always, where the facts required it, gone hand in hand with the necessary regulation to make it accord with the private property of others, and the requirements of public policy. The courts have always, in every such case, without exception, treated the one as the correlative or resultant of the other.”
The defendant being a sole trader, there can be no pretense that any of the names which contain the combination of “Garcia,” or “F. Garcia,” with the word “Bros.” or “Brothers,” is truly descriptive of his business, or that it is his true name. The evidence shows beyond controversy the facts claimed by the complainants, that the names “F. Garcia &' Bros.,” “Garcia Brothers,” “F. Garcia Brothers,” and the like, had become known throughout the United States as the complainants’ trade and businesss name, and as applied! certainly to them and cigars of their manufacture; that, of these names, “F. Garcia & Bros.” had been used and applied by the complainants as a brand name; and that it was so known in the trade as designating such particular brand of cigars of the complainants’ manufacture. It is also very clear that the predecessors of the defendant and the defendant adopted and used one or more of these names after the complainants had adopted the-one name as their firm and business name, and after all of such names had become known as designating, either generally the cigars of complainants’ manufacture, or particularly a brand of cigars of their manufacture which was made and marketed under such particular name.
Under the principles of the cases above cited, there can be no doubt as to the necessary conclusion to be reached. The adoption by the defendant of the identical names which the complainants had adopted as their true trade-name, and which had come to designate their product, would alone entitle the complainants to relief. Such name or names had become the means of describing the goods manufactured by the complainants, both by those who dealt in them and those who consumed them; and, to use the language of Chickering v. Chickering & Sons, supra, “that name was to the public an assurance of *641excellence * * * in manufacture.” The testimony here shows something more: From the fact that the defendant knew of complainants’ name and its secondary use, his adoption of that name, or of the name “Garcia” coupled with “Bros.” in respect to his own trade situation, in effect asserted a falsehood. His affixing complainants’ name in almost the identical style and color of type on the “back strip” or panel of the cigar boxes, and his evasiveness or failure to explain his course in so using or adopting such names, all point clearly to a deliberate purpose or design to appropriate to himself what is undoubtedly a valuable possession and trade right of the complainants. It is impossible to reconcile the course pursued by the defendant with innocence of purpose, even if, under the law, it were possible for him to defend on that ground.
[2] The contention of the defendant that the name “Garcia Brothers” was used by his predecessors cannot avail in defending this suit. There is no showing of a superior right in his predecessors as against the complainants; in fact, the evidence quite clearly shows that the defendant’s predecessors were in no better position than is the defendant. If they used such name at all, they began its use long after the complainants had! manufactured cigars which had become known under the name of “Garcia Bros.” as complainants’ cigars. So, too, the defendant’s claim that his annual product is so small as not to make him a competitor of the complainants cannot he urged as supporting a right to use complainants’ valuable trade-names as a means, possibly, to extend his business. If complainants have the right to stop the use of such names, they can exercise it regardless of the extent of defendant’s business.
The complainants are entitled to a decree in accordance with the prayer of their bill.