It is thought that this cause is ruled by the decision in La Republique Francaise v. Schultz (C. C.) 94 Fed. 500, recently affirmed.1 Of course the facts are not alike. They never are. The salient features are, however, almost identical. The principles upon which the decision in the Schultz Case rests are invoked in the case at bar and I see no way to avoid their application. The attempt to distinguish, though ingenious, is founded upon considerations which are too vague and unsubstantial for practical application. They do not go to the merits of the controversy. They make no breach in the principal line of defense. It would be inequitable to punish the defendant with an injunction and an accounting after exonerating' the defendants in the former case. Indeed, the-defense here is, in some respects, stronger than in the Schultz Case. The defendant’s water has been known for 20 years as Saratoga Vichy and the record shows that there has never been an attempt to palm it off on innocent buyers as the imported article. The defendant has sold it upon its merits as a natural Saratoga water. Th.e two are different in appearance, taste and ingredients. The defendant’s is a sparkling water and for several years has been sold under a label on which the word “Saratoga” is as prominently displayed as the word “Vichy.” It is true that there is a small neck label attached to the bottle on which the name “Vichy” is the more prominent, but in view of the many other distinguishing characteristics it seems inconceivable that any one of ordinary perception can be induced to buy the defendant’s water supposing it to be the imported Vichy. An individual stupid enough to be deceived in such circumstances is beyond the aid of a court of equity. In his case a writ de lunático is a more appropriate remedy than a writ of injunction. The bill is dismissed.
42 C. C. A. 233, 102 Fed. 153.