Supreme Court of United States.
MR. JUSTICE BROWN delivered the opinion of the court.
These three cases were brought against retail dealers, and defended by the Eisner and Mendelson Company, who imported and furnished the defendants with the water sold by them. The bills charged the defendants generally with unlawfully selling bitter water under labels simulating Saxlehner's blue and red label, and under the name "Hunyadi." The answer was substantially the same as that in the main case, and the same record of proofs was used.
In the case against the Siegel-Cooper Company there was no charge of an intentional fraud, and the court found there was no evidence of fraudulent conduct on its part, and dismissed the bill as to that company. As to the other two cases the court found that the clerks in charge of their stores, in response to special requests for Janos water, wrapped up and delivered Matyas water purchased of the Eisner and Mendelson Company. In other words that they had palmed off the one for the other.
We think that an injunction should issue against all these defendants, but that, as the Siegel-Cooper Company appears to *43 have acted in good faith, and the sales of the others were small, they should not be required to account for gains and profits. The fact that the Siegel-Cooper Company acted innocently does not exonerate it from the charge of infringement. Moet v. Couston, 33 Beav. 578; Millington v. Fox, 3 Myl. & Cr. 338; Edelsten v. Edelsten, 1 De Gex, J. & S. 185; Brown on Trade Marks, ยง 386.
The decree of the Circuit Court of Appeals in these cases are also reversed, and the cases remanded to the Circuit Court for the Southern District of New York for further proceedings, etc.
