The charge of infringement of trade-mark No. 95,488 has not been made out, and the plaintiff does not sufficiently prove validity of trade-mark No. 60,241, which states that the design of the trade-mark is applied by putting the goods in a bottle of that design.
The statute of February 20, 1905, allowing the registration of a trade-mark in use for more than 10 years, does not alter the fundamental proposition, that a trade-mark is a design or mark rather than a container or package. Thaddeus Davids Co. v. Davids et al., 178 Fed. 801, 102 C. C. A. 249; Hughes v. Alfred H. Smith Co., 209 Fed. 37, 126 C. C. A. 179. Resemblance in package or wrapping would not constitute the infringement of a trade-mark. Philadelphia Novelty Mfg. Co. v. Rouss (C. C.) 40 Fed. 585.
Under the former trade-mark law, the shape and appearance of a package or wrapping could not be made the subject of a trade-mark, as distinguished from a design which of itself made up the mark. Fleischmann v. Starkey (C. C.) 25 Fed. 127; Adams v. Heisel (C. C.) 31 Fed. 279; Enoch Morgan’s Sons Co. v. Troxell, 89 N. Y. 292, 42 Am. Rep. 294; Pillsbury v. Pillsbury-Washburn Flour Mills Co., 64 Fed. 841, 12 C. C. A. 432; National Biscuit Co. v. Baker (C. C.) 95 Fed. 135; United States Tobacco Co. v. McGreenery (C. C.) 144 Fed. 531; Coca-Cola Co. v. Glee-No1 Bottling Co., 221 Fed. 61, 137 C. C. A. 83.
The plaintiff may have a decree on the ground of unfair competition.