[1] The decree suggested in the opinion enjoined the defendants from selling Canadian Type whisky in bulk without reasonable assurance that it will not be resold in substitution for Canadian Club. Upon settlement of the decree the plaintiff urges that there is no practical assurance possible, unless it be some mark which will follow the whisky into the hands of the consumer. Having found the bar demand trifling in quantity, they urge that I should disregard the small part which is genuine and enjoin the whole sale. I am not willing to do this, as I said originally; but I think the plaintiff is right in demanding that there should be some mark which will effectively reach the senses of the ultimate consumer. Considering the fact that the commodity is a beverage and that nothing can be affixed to it, it follows jthat the only way of marking it is by a receptacle that cannot he changed or by some change in the appearance of the substance itself. It will serve no purpose to say that it must be served at bars in a bottle clearly labeled, because a man who means to substitute will not carry out an agreement to use such bottles. On the other hand, it is in evidence in these cases that the color of this whisky is wholly within the control of the distiller and that it is shaded to- suit the fancy of the consumer. It is also in evidence that the “body” and flavor need not be affected by changes in shade. In view of this proof it seems to me that the color may be said to be a “non-functional” characteristic, as was said of the color of the beverage in Coca-Cola Co. v. Gay-Ola Co., 200 Fed. 720, 119 C. C. A. 164; Id., 211 Fed. 942, 128 C. C. A. 440, by the Circuit Court of Appeals in the Sixth Circuit. This seems also to fall within the same doctrine, though differently applied of our own circuit in Enterprise Mfg. Co. v. Landers, Frary & Clark, 131 Fed. 240, 65 C. C. A. 587; Yale & Towne Mfg. Co. v. Alder, 154 Fed. 37, 83 C. C. A. 149; Steiff v. Gimbel Bros., 214 Fed.
[2] The plaintiff demands damages as well as profits, or at least the alternative. Both it may not have in any event, and I do not think that there is any basis here for damages. The theory that all sales of Canadian Type whisky deprived the plaintiff of an equal number of sales depends impliedly upon the assumption that the price was the same, and that all sales were in substitution for Canadian Club whisky. In fact, the usual price of Canadian Club whisky was 15 cents, and of Canadian Type whisky 10 cents. No safe estimate can be made of the number of sales which the plaintiff lost through the Canadian Type whisky. The accounting is therefore confined to profits.
The plaintiff will have costs, but they properly await final decree.
[3] Only the defendants who actually conducted the business will account, not the clerks or officers of the corporations. In stating the account the defendant will be broadly allowed any means of showing, if they can, that they had reasonable assurance that the saloon keepers were honest.