(dissenting). I am unable to concur with my Associates and think this an especially vicious case of unfair competition. Defendant for several years subsequent to 1907 marked his washboards with various combinations of words, containing his business name and address and some arbitrary word, “Diamond,” “Globe,” or what not, indicating the size and style of washboard. During the same period complainant manufactured and marketed washboards, marking them with a combination in black of its own name, its business address, the word “National” in a contrasting color *71(red), and certain arbitrary numbers designating size and style of washboard. In 1911 defendant, in place of the mark it had theretofore used on one side of its washboards, substituted a Chinese copy of complainant’s mark, with the exception that the word in red was “Manhattan,” instead of “National.” No amount of testimony (and there was such testimony) by defendant, or his sons, all interested parties, could convince me that he did not intend by the substitution to mark his washboards in such a way that persons might mistake them for complainant’s, and did not expect that thereby the sale of his own goods might be increased.
It must be assumed that the defendant equally with the purchasing consumer has “the ordinary mental equipment.” If so, it follows that he changed from the old to the new style of marking his goods,' not fortuitously, but with an intelligent purpose. That purpose is manifest. This was unfair trading, and in a former suit the court so held and ordered defendant to put a stop to it.
Defendant then modified his mark. The details need not be discussed, since the new mark seems to be sufficiently differentiated from complainant’s, except only as to certain numbers, to restrain the use of wdiich this suit is brought. These numbers, as has been said, were placed by complainant on its different sizes and styles of washboards, so that each size and style was marked with its assigned number. The numbers, in connection with the other indicia, are used by complainant to identify its product. These numbers are wholly arbitrary — • such as SOI, 608, 841, etc. They are not descriptive, as are the numbers stamped on tV-trs, 15. 15 y¿, 16, etc., to indicate the length of the article from buttonhole to buttonhole in inches; nor are they, like the numbers or the letters marked on shoes, 4, 4%, 5, a, b, c, etc., which indicate size; all the trade having for generations used “5a” to indicate a shoe of a certain length and width. Although arbitrary and originating with the plaintiff, they might, with its acquiescence, have been appropriated by the trade and generally used to designate goods of sizes and styles like those of complainant. But the testimony shows that nothing of this sort has occurred. Very many washboards are marked and sold with these numbers, the meaning of which the public is becoming accustomed to; but that is because complainant’s business is a large one and it sells many goods. The significant fact is that complainant, and complainant only, since their adoption in 1907, has used these particular figures in connection with washboards, until defendant undertook to appropriate them in 1911, whereupon suit was promptly brought.
The combination of units, which may be used by any one who wishes through their use to identify some particular size or style of his goods, is practically unlimited. It was perfectly easy for defendant to select for his own use numbers which were not already associated in the mind of the public with complainant’s. That he appropriated these numbers of the complainant with the expectation that their use might induce some persons to suppose that they were the same goods as those of the complainant, and that in that way the sale *72of his own goods might be increased, seems to me manifest, and no amount of testimony by interested parties to the contrary is at all persuasive.
It seems to be a clear case of unfair trading, and I therefore dissent.