(after stating the facts as above). There is no question that before the injunction of November 11, 1911, was issued, the defendant had so dressed his goods in imitation of the complainant’s trade-names and brands that the public might be deceived into taking his washboards for those of the complainant. All of these questions have, however, been eliminated by the changes made pursuant to the directions of the order.
We understood the complainant to concede at the argument that practically the only question now presented for consideration relates to the use of the arbitrarily selected numbers; but whether conceded or not this, in our judgment, is the only question to be considered. We aré, therefore, confronted with the single proposition — should the court enjoin the use by the defendant of numbers designed to show the style of his washboards and to distinguish them one from the other, because the complainant had previously adopted similar numbers to serve a similar purpose and, perhaps, to indicate origin ?
AYe do not deem it necessary to answer this question definitely at this time. It is sufficient to say that we think it too doubtful to be answered affirmatively upon a motion for a preliminary injunction. *70It is undoubtedly true, where a manufacturer has selected an arbitrary combination of figures or letters to designate his goods, which combination in the minds of the purchasing public has become a substitute for the name of the manufacturer as indicating origin, that the courts have, in several instances, enjoined the use of such a combination by a rival manufacturer. But in many of these cases the figures were part of a general scheme of dressing up the goods for the market and were considered in connection with and as parts of other marks, brands and insignia. Here we are considering the numbers alone on goods, which in other respects, are now clearly distinguishable from the complainant’s goods. In the cases referred to the courts have been convinced that the numbers or letters were designed to indicate origin.
In the case at bar this is seriously disputed and it is vigorously contended that' the defendant adopted the numbers simply and solely to indicate the size, shape and style of the respective boards so that, in ordering, the purchaser can readily indicate the board he desires, in the same manner as a pair of shoes, a hat or a collar is ordered by number. Again, we are unable to find any proof that purchasers have actually been deceived since the injunction of November 11th, by the use of the numbers. Indeed it seems quite improbable that, in existing conditions, a purchaser having the ordinary mental equipment, can be so deceived. The complainant’s boards are now plainly marked in red ink “National,” the defendant’s boards are plainly marked in black ink “Manhattan.” If a purchaser has examined into the respective merits of the two boards and actually desires a National, it is impossible to believe that he can be induced to take a Manhattan because the same number appears on both. If he has no choice between, them it is manifest that he cannot be defrauded. There is no substantive proof of fraud, or deception, or even of confusion, which can be attributed to the numbers alone. It is, of course, convenient to have the same number indicate the size and quality of the boards, no matter who may be the' maker, and the proof should be clear that it was adopted with intent to injure and defraud the manufacturer first using it.
The questions in controversy are questions of fact; they have not been clearly established in, favor of the complainant and should not be decided upon affidavits, but should await the final hearing after the witnesses have been tested by cross-examination.
The order is affirmed with costs.