Epitomized Opinion

This was an action by thei White Rock Mineral Spring Co. to restrain the Akron Beverage & Cold Spring Storage Co. from infringing on plaintiff’s trade-mark, “White Rock,” and unfair competition in connection therewith. Since 1883 the plaintiff had bottled and shipped mineral water from a natural spring at Wau-kesha, Wis. It had continuously since 1887 applied thereto the trade-mark “White Rock.” Since 1893 the labels and other dress of plaintiff’s goods had printed thereon the legend, “White Rock,” with a picture showing a woman kneeling upon a rock looking into the water *622below. In 1893 the legend and picture!. were registered as a trade-mark for mineral water and ginger ale.

The defendant has used for 15 years and had registered the name “White Rock” as a trade-mark for beer, malt extracts and liquors, and after prohibition, continued to use the trade-mark for its product, near beer, which is made by the same process as its beer, except that after manufacturing the greater part of the alcohol content is evaporated out. Both parties sold their goods to retail dealers, cafes, hotels and places of like nature where soft drinks and beverages are sold to the consuming public. The United States District Court dismissed the petition. Error was prosecuted to the Court of Appeals. In sustaining the judgment the Court of Appeals held:

1. That the continual use of the trade-mark by the defendant within its established right, acquiesced in by complainant, cannot be enjoined because the new product came into competition with its own as a “soft drink.”