(dissenting). After the expiration of the complainant’s product and design patents, the public generally had the right to manufacture the same article under the same name and in the same form. This was the condition on which the expired monopolies were granted. The defendant concededly does not use the same name, nor sell the article in a similar carton. It sells its article as “Whole Wheat” biscuit, in entirely different cartons, nor is there any evidence of unfair advertising.
I understand the court to agree that the defendant may make and sell its biscuit in the same form, color, and size as complainant’s. The only question is what, if any, protection the complainant should have, in view of the secondary meaning its product has acquired from its mere appearance. When both parties mark their product, unfair imitation of the original producer’s mark should be enjoined, as in Singer v. June Manufacturing Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118. In this case, however, neither party marks the biscuit itself, and it would obviously impair the strength and deform the appearance of this very fragile biscuit to do so.
The complainant’s claim to be protected in any secondary meaning its goods have acquired can go no further than its injury, and that is only so far as the public buys or is likely to buy the defendant’s product supposing that it is the complainant’s. The retail dealer and the purchaser of cartons are not misled. Guests in boarding houses and hotels on the American plan take what they are given. It is only a very small part of the public, namely, those who patronize lunch rooms, restaurants, or hotels on the European plan, and who order biscuit which they see on the counters, or on plates or saucers, supposing they are the complainant’s, when they are really the defendant’s manufacture. This seems to me an insufficient reason for giving the complainant a monopoly for all time of what apparently is the best size of this ordinary commercial article, unless the defendant and other manufacturers adopt distinguishing marks which either increase the cost of manufacture or deform and weaken the product.
Moreover, I think that the form and size of the biscuit as always made by the complainant are functional, and that imitation of these features is no evidence of unfair competition. The form evidently *968tends to strengthen a product made out of such fragile material and the size is apparently the best fitted for use as a breakfast food on a saucer. I think the bill should be dismissed.