The following are noted by the court on its own motion: The bill in this case contains no proper prayer fot subpoena, as required by the rules of the supreme court. Moreover, there are no proper allegations as to citizenship in that portion of the hill where they are customarily and properly inserted. If they appear elsewhere, the court cannot be expected to search for them, and it is fcir counsel to point them out. If they do not appear, the bill is defective on this account, as well as for the other reason' alréády stated. It is therefore ordered: Bill dismissed at the August rules, 1892, with costs, as of course, and without further order on the part of the court, unless before that time complainants properly amend and pay taxable costs to that time.
Thereafter complainants amended the bill by inserting in the introductory part thereof, after the description of certain of the complainants as citizens of Bohemia, in the empire of Austria, the words, “and" subjects of the emperor of Austria,” and, after the description of the Eisner & Mendelson Company as a corporation duly organized under the laws of the state of Pennsylvania, the words, “and a citizen of said state of Pennsylvania,” and after the word “defendants,” the words, “and citizens of said state of Massachusetts,” and also by changing the prayer for process therein so as to read as follows:
“May it please your honor to grant unto your orators a writ of subpcena of the United States of America, directed to the said defendants S. Tibbetts and W. W. Lacey, trading as S. Tibbetts & Co., and S. Tibbetts, George Burwell, and W. W. Lacey, commanding them, and each of them, to appear and answer this bill of complaint, and to abide and perform such order and decree in the premises as to the court shall seem meet, and be required by the principles of equity and good conscience.”
Defendants also demurred to the amended hill.
*856Putnam, Circuit Judge. As this case comes before me oh general demurrer, if the bill is sustainable on any ground, the demurrer must'be overruled. The complainants cite nothing binding this court protecting them in the exclusive use of the word “Carlsbad.” The case which most nearly approaches the contention of the complainants on this point is found originally as Thompson v. Montgomery, 41 Ch. Div. 35, (decided by the court of appeal in 1888,) and affirmed by the house of lords in [1891] App. Cas. 217. This case is noted in Lawrence Manuf'g Co. v. Tennessee Manuf'g Co., 138 U. S. 537, 11 Sup. Ct. Rep. 396; where it seems to be regarded as an authority only to the extent that the party restrained was using the name of the town of Stone in such way as to amount to a false representation that his goods were the goods of the complainant. In Brewing Association v. Piza, 24 Fed. Rep. 149, and in White Lead Co. v. Cary, 25 Fed. Rep. 125, the court protected the name of the city which was the residence of the original manufacturer, and which he had attached to his trade-marks; but in New York & R. Cement Co. v. Coplay Cement Co., 45 Fed. Rep. 212, Mr. Justice Bradley laid down very broadly the rule that the name of a town or city is one in which no person can obtain an exclusive right; and he made a striking illustration by citing the word “Havana” as attached to cigars, showing that, if a dealer in New York sells “Havana” cigars which in truth are not such, it may be fraud, but it can be no violation of a trademark. In this case he affirms his own decision in New York & R. Cement Co. v. Coplay Cement Co., 44 Fed. Rep. 277, concurred in by Circuit Judge McKennan, concerning the use of the name of the town or village of Rosendale.
I fear that the rule laid down by Justice Bradley may be held to be the law in the United States; although to one who knows the history of the manufacture of Rosendale cement, it would seem just, on a bill filed by any cement manufacturer in that locality, in behalf of himself and.other manufacturers, to protect against an injury to the honest dealer coupled with a fraud on the public. The fact that many have a common interest in the same subject-matter ought not to deprive one of the many from being protected against an injury to the whole; and, whatever difficulties there might be in a suit at law for damages in behalf of one manufacturer among many, as pointed out by Justice Bradley, there is no more inconvenience in proceeding in equity in such cases than on bills in behalf of parishioners to establish a general modus, or of commoners respecting rights of common, or of one taxpayer in behalf of all others in the town, all of which are well-recognized subjects of equity jurisdiction. It may be, as the complainants assert, that this case can be distinguished on the alleged ground that the right of the complainants to use the name of the city of Carlsbad, in connection with products of its springs, is exclusive. It is certain that," in case of the “Stone Ale” referred to, and also in the case of the “Glenfield Starch,” reported as Wotherspoon v. Currie, L. R. 5 H. L. 508, and noted in Lawrence Manuf'g Co. v. Tennessee Manuf'g Co., 138 U. S. 550, 11 Sup. Ct. Rep. 401, the use of the name of the town was protected, under special circumstances.
*857On the other hand, it may well be questioned whether, if the respondents in this case should use the word “ Carlsbad ” in such manner. as; to be free from all representation, or suggestion,, that they were offering for sale the products of complainants’ springs, or in connection with only the words “Obesity Pills,” any injury to the complainants could be shown, or any right of theirs violated. As, however, this bill must be sustained on general demurrer, I do not now find it necessary to pass upon the broad right to the use of the word “ Carlsbad ” claimed by complainants. Moreover, that matter can be better determined on a presentation of all the tacts at a final hearing.
This bill must be sustained on the allegation that the respondents make public use of the following representation: “They [meaning the Carlsbad Obesity Pills] are composed of the salts of the celebrated Carlsbad springs.” This the bill alleges to be false. The bill further alleges that respondents’ pills are composed mainly of aloes, a drug alleged to be very deleterious to health, if used for any length of time. On this point the case is narrowed down very closely. It is that the respondents are falsely and injuriously selling a deleterious substance, and are representing it to be in part or in whole the same substance, admittedly of a beneficial character, in which the complainants are dealing and of which they are the sole producers. That a direct attack like this on the trade of a manufacturer or other dealer will be restrained is an elementary proposition. It is not necessarily a branch of the law of trademarks, but underlies and supports it. While the courts in this country have net generally accepted the rules of the English courts restraining libels directed against a man’s trade or business, on the ground that those rales rest on the judicature acts, yet they will enjoin and punish untrue representations expressly made by one person that he is selling the product of another; and, even when such representations are not fraudulent, they will protect against them, as they will against any unauthorized intrusion on other property rights. It is sufficient that the court is satisfied that there is an intent on the part of the respondents to palm off their goods as the goods of the complainants, and that they persist in so doing after being requested to desist. McLean v. Fleming, 96 U. S. 245, 254. But positive proof of fraudulent intent is not required where the proof of infringement is olear. Id. 253. This principle, so far as it applies independently of the special branch of law relating to trade-marks, supports a class of cases where the use of a man’s own surname is restrained, and also the results in Thompson v. Montgomery, ubi supra, and Lee v. Haley, L. R. 5 Ch. App. 155. Itis fully recognized in Nail Co. v. Bennett, 43 Fed. Rep. 800, and in Lawrence Manuf'g Co. v. Tennessee Manuf'g Co., ubi supra, and is somewhat explained in Browne on Trade-Marks, § 43. Demurrer overruled, and respondents ordered to plead or answer on or before October rules next; costs to abide the final decree.