(concurring):
I concur in the result, but only upon the “first” defence mentioned in my brothers’’ opinion. The plaintiff indeed has failed to' show any “irreparable injury,” if by that is meant that money will not satisfy any loss that the defendant’s competition will causé; nevertheless it has shown such an injury, if that includes the impossibility of ascertaining with any accuracy the extent of the loss. That has always been included in its meaning; and I cannot see how the plaintiff will ever be able to prove what sales the defendant’s competition will make it lose, to say nothing of the indirect, though at times far-reaching, effects upon its good will as the only licensee of the British company. On the other hand, I agree that we should refuse a temporary injunction because the contract on which the plaintiff’s claim must rest, “provides for an unlawful restraint of trade in violation of the antitrust laws.” I do not indeed mean that we should decide that question on this record; and I am not at all sure that in the end the defence will turn out to be good. Yet, when the British company undertook not to sell any other products that would compete with the subject of the license, I have a serious doubt whether that covenant was valid; and if it was not, whether the plaintiff is entitled to equitable relief. We considered the question in Parev Products Co. v. I. Rokeach, 2 Cir., 124 F.2d 147, and left it open how far such a covenant might be construed as a necessary protection to any enjoyment of the license by the licensee. Maybe in the case at bar the covenant can stand on that ground; but we should not decide this question until it has been developed at a trial how far its scope may properly be so limited. The situation is a tempting one to maintain the status quo against what is at best an unpalatable defence; and I am not sure that, if my brothers wished to affirm the order on this ground, I could not be persuaded to join them. However, as they wish to reverse it, the clause gives enough support to that result to induce me to concur.