(dissenting). The package in question consists of an outer metallic case lined with asbestos and containing liquid acetone, into which acetylene gas is forced under pressure. The apparatus was originally patented as No. 664,383, and known as the Claude & Hess patent. This patent expired June 30, 1910. Commercial Acetylene Co. v. Schroeder, 203 Fed. 276, 121 C. C. A. 474; Commercial Acetylene Co. v. Searchlight Gas Co. (D. C.) 197 Fed. 908; Id. (C. C.) 188 Fed. 85; Cameron Septic Tank Co. v. City of Knoxville, 227 U. S. 39, 33 Sup. Ct. 209, 57 L. Ed. 407.
While this patent was in existence it was a close' question as to the right of a purchaser to have his tank refilled by other than the complainant. Leeds & Catlin v. Victor Talking Machine Co., 213 U. S. 325, 29 Sup. Ct. 503, 53 L. Ed. 816. The owner of the patent in question, by notice forbidding such refilling, succeeded in preventing it. Commercial Acetylene Co. v. Widrig (C. C.) 190 Fed. 201. By the expiration of the patent there was given to the public the right, not only to make the entire apparatus, but to make it under the name which had become indissolubly attached to it. Singer Manufacturing Co. v. June, 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118.
Every one, -therefore, has the right to manufacture or fill Prest-O- . Pite'tanks under that name and therefore to fill old tanks, and no one by a trade-mame adopted during the life of the patent could prevent the right passing to the public, not only to manufacture and refill the tanks, but to manufacture and refill them under the trade-name which had become indissolubly attached to them.
The trade-mark in this cáse was filed four years before the expiration of the patent. While, therefore, every one can now make and refill a Prest-O-Pite tank, he must so mark the goods as to indicate that they are his manufacture and not that of the Prest-O-Pite Company.
*849The packages have been sold at $12 each, while for refilling a charge has been made in later years of only $1, thus showing that the original sale is the principal thing and the charge for refilling is an incident.
The tanks in question are sold outright, and the purchaser can destroy them if he will. There is no right to compel the total erasure of the name Prest-O-Lite, for every one has the right to put it on. The complainant originally put a brass plate on its packages which could be easily removed. It then substituted an indented inscription which could not be removed except by grinding or some form of erosion of the metal.
If it should, as appears to me, be erroneously held that the original trade-name must be removed, then by this change the public is deprived by the act of the complainant of its right upon the expiration of the patent by the substitution of a substantially irremovable inscription. There is no method at Little Rock by which this inscription can be removed, and the monopoly which the complainant had for many years under its patent has become, according to the majority opinion, a perpetual monopoly. The change in the manner in which this inscription was thus put upon the package is an evidence that the unfair trade is on the part of the complainant. As I understand the majority opinion, if the complainant can devise some method by which the inscription can be carried clear through the metal constituting the case of the package, it will not only then be impracticable for every one but the complainant to fill the packages, but wholly impossible, and the monopoly will be complete to what the law has given to the public.
It is set up in the answer that over the inscription of the complainant has been fastened by the defendant, with shellac, so that it is not affected by water, an inscription in red ink as follows:
*850By the order for the temporary injunction it was ordered:
“The defendants and each of them, their agents, servants, and representatives, be restrained and enjoined from hereafter filling or refilling with acetylene dissolved in acetone any of the steel bottles or cylinders described in the bill of complaint bearing the complainant’s registered trade-mark, viz., ‘PrestO-Lite,’ and from selling or exchanging or in any way dealing in said bottles or cylinders when so filled or refilled by the defendants or persons other than the complainant, without in every case covering the aforesaid trademark engraved on said bottles or cylinders by and with a notice which shall wholly cover said trade-mark and entirely conceal the same from observation and shall contain a statement in large type that the contents of said bottle or cylinder are not prepared by the Prest-O-Lite Company. Said notice shall be so securely attached and affixed to said bottle or cylinder as not to be ■capable of being easily detached therefrom in the hands of any dealer who might come into possession of said bottles or cylinders or any of them, and none of the bottles of the plaintiff, when filled by the defendants as aforesaid, shall be sold by them or their agents and vendees without said label thereon, as hereinbefore set forth.”
And by the final decree it was provided that the court—
“doth find that the label shown by the proof to be now, and since the granting of the interlocutory injunction, in use by the defendants, is not easily removable, and the printing on the label, the manner of attaching, and the place attached to the package do not constitute unfair competition, and does order, adjudge, and decree that the defendants, and each of them, their agents, servants, and representatives, be restrained and enjoined from hereafter filling or refilling with acetylene dissolved in acetone any of the steel bottles •or cylinders described in the bill of complaint bearing the complainant’s registered trade-mark, viz., ‘Prest-O-Lite,’ and from selling or exchanging or in any way dealing in said bottles or cylinders when so filled or refilled by the defendants or persons other than the complainant, without in every case covering the aforesaid trade-mark engraved on said bottles or cylinders by and with a notice which, shall wholly cover said trade-mark and entirely conceal the same from observation, and shall contain a'statement in large type that the contents of said bottle or cylinder is not prepared by the Prest-O-Lite •Company, or that the contents is not Prest-O-Lite gas. Said notice shall be so securely attached and affixed to said bottles or cylinders as not to be capable of being easily detached therefrom in the hands of any dealer who might come into possession of said bottles or cylinders or any of them, and none of the bottles of the plaintiff, when filled by the defendants aforesaid, •shall be sold by them or their agents and vendees, who have notice of this injunction, without said label thereon as hereinbefore set forth.”
The inscription thus required to he put by the defendants upon the tanks in my judgment goes beyond any right the complainant can insist upon; and being thoroughly convinced that the decisions cited in the majority opinion are erroneous, I deem it my duty to respectfully dissent.