(after slating the facts). It was settled by the supreme court in Chemical Co. v. Meyer, 139 U. S. 540, 11 Sup. Ct. 625, that words which are merely descriptive of tlie character, quality, or composition of an article cannot be monopolized as a trade-mark. It it evident that the words “Dyspepsia Tablets,” as used on both the complainant’s and defendants’ boxes, are words of this character. It was also settled in that case that an ordinary surname cannot be appropriated as a trade-mark by any one person as against others of the same name, who are using it for a legitimate purpose. There is no question but the defendants are using their name for a legitimate purpose, viz. the sale of tablets said to be a remedy in cases of dyspepsia. Of course, if the defendants manifestly intended a fraud upon the complainant, and used their own name solely to carry out such purpose, an injunction would, upon the authorities, lie; but it is not contended in the case under consideration that the defendants did not, in good faith, enter upon the manufacture of these remedies. The fraud charged, if any, lies in the similarity of the defendants’ advertising paraphernalia to ihat of the complainants. There is nothing, therefore, in the defendants’ use of the words, “Dr. Stewart’s Dyspepsia Tablets,” that entitles the complainant to an injunction.
But these words are the only ones calculated to confuse the public through its sense of hearing. Is the similarity of appearance so close as to confuse the public through its sense of sight? The only resemblance I can detect is in color; but, though both the colors be blue, they are of such distinctive shades that no one would be deceived. I cannot conceive how any person, who has ever seen or had fixed upon his attention, the appearance of the complainant’s packages, could be deceived into believing that the defendants’ packages were the same. Possibly, if some one was sent to the druggist for “Stuart’s Dyspepsia Tablets,” and was told that they were put up in “blue packages,” the druggist might impose upon Mm Dr. Stewart’s packages. The confusion there would arise, not from similarity of appearance, but from similarity of sound in both the name and the described color; but, as already stated, the similarity of name cannot, in a case like this, avail, and I cannot think that so remote a contingency as a similarity, not of color, hut of another’s description of color, can he made the basis of a decree. I concur in the conclusions of 1he master, and a decree may be drawn overruling the exceptions, and dismissing the bill.