I suppose the complainant could have brought this suit against Yanz & Howes alone. The controversy between these parties, citizens of different states, is that defendants advertised that they had on hand for sale an article of axle-grease, with a trademark “Superior Axle Grease, manufactured by S. Frazer & Co.,” with devices similar to the trade-mark of the complainant, and tending to deceive the public. The object of the suit is to enjoin Yanz & Howes from calling the grease sold by them “ Superior Axle Grease, manufactured by S. Frazer & Co.,” for the purpose of making the public believe it is the “Frazer’s Axle Grease” manufactured by complainant. It is the imitation of the device used by complainants that is sought to be enjoined, and there is no reason why the bill must fall because other parties defendant, not served, are citizens of the same state as the complainant. If the trade-mark used by Frazer & Co. is an imitation of complainant’s, and used to deceive the public, the defendants who appear can be enjoined from advertising that they are the exclusive agents for the sale of axle-grease put up in the packages labeled as charged, and their denial in the answer of agency, is not conclusive. I shall deny motion to dismiss and let the suit go to-hearing, when it can be more clearly determined whether the trademark used by defendants infringes the rights of the complainant.

Motion to dismiss bill denied.