The charge of unfair competition being established, it follows that equity will afford relief by injunction to prevent such unfair competition for the future. Several acts of unfair competition having been shown, we are warranted in concluding that petitioner is willing to continue that course of conduct unless restrained. Hennessy v. Wine Growers' Asso. 212 Fed. 308, 311. It remains to consider the character and extent of this relief. methods an extensive and valuable mar-| gan's Sons Co. v. Whittier-Coburn Co. ket for the sale of respondent's prepara- 118 Fed. 657, 661. One who induces antion already had been established when other to commit a [531] fraud, and the preparation of petitioner was put on furnishes the means of consummating it, the market. It is apparent, from a con- is equally guilty and liable for the injury. sideration of the testimony, that the ef- Hostetter Co. V. Brueggeman-Reinert forts of petitioner to create a market for Distilling Co. 46 Fed. 188, 189. Quin-Coco were directed not so much to showing the merits of that preparation as they were to demonstrating its practical identity with Coco-Quinine; and, since it was sold at a [530] lower price, inducing the purchasing druggist, in his own interest, to substitute, as far as he could, the former for the latter. In other words, petitioner sought to avail itself of the favorable repute which had been established for respondent's preparation in order to sell its own. Petitioner's salesmen appeared more anxious to con- Respondent has no exclusive right to vince the druggists with whom they were the use of its formula. Chocolate is used dealing that Quin-Coco was a good sub- as an ingredient not alone for the purstitute for Coco-Quinine and was cheap- pose of imparting a distinctive color, but er, than they were to independently for the purpose, also, of making the demonstrate its merits. The evidence preparation peculiarly agreeable to the establishes by a fair preponderance that palate, to say nothing of its effect as a some of petitioner's salesmen suggested suspending medium. While it is not that, without danger of detection, pre- a medicinal element in the preparascriptions and orders for Coco-Quinine tion, it serves a substantial and decould be filled by substituting Quin-Coco. sirable use, which prevents it from More often, however, the feasibility of being a mere matter of dress. It does such a course was brought to the mind not merely serve the incidental use of of the druggist by pointing out the iden- identifying the respondent's preparation tity of the two preparations and the en- (Coca Cola Co. v. Gay-Ola Co. supra, p. hanced profit to be made by selling Quin-724), and it is doubtful whether it should Coco because of its lower price. There be called a nonessential. The petitioner is much conflict in the testimony; but, or anyone else is at liberty, under the on the whole, it fairly appears that pe-law, to manufacture and market an extitioner's agents induced the substitu- actly similar preparation containing tion, either in direct terms or by sugges-chocolate, and to notify the public that tion or insinuation. Sales to druggists it is being done. Saxlehner v. Wagner, are in original bottles, bearing clearly distinguishing labels, and there is no suggestion of deception in those transactions; but sales to the ultimate purchasers are of the product in its naked form out of the bottle; and the testimony discloses many instances of passing off by retail druggists of petitioner's preparation when respondent's preparation was called for. That no deception was practised on the retail dealers, and that they knew exactly what they were get-tween them and other goods; and protecting, is of no consequence. The wrong was in designedly enabling the dealers to palm off the preparation as that of the respondent. Coca Cola Co. v. Gay-Ola Co. 119 C. C. A. 164, 200 Fed. 720; N. K. Fairbank Co. v. R. W. Bell Mfg. Co. 23 C. C. A. 554, 45 U. S. App. 190, 77 Fed. 869, 875, 877, 878; Lever v. Goodwin, L. R. 36 Ch. Div. 1, 3, 57 L. T. N. S. 583, 36 Week. Rep. 177-C. A.; Enoch Mor 216 U. S. 375, 380, 54 L. ed. 525, 527, 30 Sup. Ct. Rep. 298; Chadwick v. Covell, 151 Mass. 190, 6 L.R.A. 839, 21 Am. St. Rep. 442, 23 N. E, 1068. But the imitator of another's goods must sell them as his own production. He cannot lawfully palm them off on the public as the goods of his competitor. The manufacturer or vendor is entitled to the reputation which his goods have acquired, and the public to the means of distinguishing be tion is accorded against unfair dealing, whether there be a technical trademark or not. The wrong is in the sale of the goods of one manufacturer or vendor as those [532] of another. Elgin Nat. Watch Co. v. Illinois Watch Case Co. 179 U. S. 665, 674, 45 L. ed. 365, 379, 21 Sup. Ct. Rep. 270. If petitioner had been content to manufacture the preparation and let it make its own way in the field of V. (No. 627.) open and fair competition, there would, UNITED STATES OF AMERICA and be nothing more to be said. It was not Interstate Commerce Commission, Appts., thus content, however, but availed itself of unfair means, either expressly or tac- NEW RIVER COMPANY et al. itly, to impose its preparation on the ultimate purchaser as and for the product of respondent. Nevertheless, the right to which respondent is entitled is that of being protected against unfair competition, not of having the aid of a decree to create or support, or assist in creating or supporting, a monopoly of the sale of a preparation which everyone, including petitioner, is free to make and vend. The legal wrong does not consist in the mere use of chocolate as an ingredient, but in the unfair and fraudulent advantage which is taken of such use to pass off the product as that of respondent. The use dissociated from the fraud is entirely lawful, and it is against the fraud that the injunction lies. But respondent, being entitled to relief, is entitled to effective relief; and any doubt in respect of the extent thereof must be resolved in its favor as the innocent producer, and against the petitioner, which has shown by its conduct that it is not to be trusted. Clearly, the relief should extend far enough to enjoin petitioner and its various agents from, directly or indirectly, representing or suggesting to its customers the feasibility or possibility of passing off Quin-Coco for CocoQuinine. The court of appeals held that petitioner should be unconditionally enjoined from the use of chocolate. We think this goes too far; but, having regard to the past conduct of petitioner, the practices of some druggists to which it has led, and the right of respondent to an effective remedy, we think the decree fairly may require that the original packages sold to druggists shall not only bear labels clearly distinguishing petitioner's bottled product from the bottled product of [533] respondent, but that these labels shall state affirmatively that the preparation is not to be sold or dispensed as Coco-Quinine, or to be used. in filling prescriptions or orders calling for the latter. With these general suggestions, the details and form of the injunction can be more satisfactorily determined by the district court. The decree of the Court of Appeals is reversed, and the cause remanded to the District Court for further proceedings in conformity with this opinion. Reversed. SLAB FORK COAL COMPANY et al., Appts., V. review of findings of Interstate Commerce Commission. 2. Courts will not review the determination of the Interstate Commerce Commission, made within the scope of its powers, or substitute their judgment for its findings and conclusions. Interstate Commerce Commission -va lidity of rule as to car distribution. for cars of the owner of a mine served by 3. The rule limiting the total orders two carriers to the gross daily rating of the needs of the mine is not so arbitrary or unreasonable as to transcend the power with respect to car distribution, although, of the Interstate Commerce Commission in time of car shortage, by being able to order his quota from both carriers, he might be able to profit by his location by more nearly receiving a supply of cars adequate to his needs. [For other cases, see Interstate Commerce Commission, 20-23, in Digest Sup. Ct. 1918 Supp.] Constitutional law due process rules for car distribution to mines. 4. A rule limiting total orders for cars of the owner of a mine served by two carof the mine does not deprive the owner of riers to the gross daily rating of the needs such mine of his property without due process of law, although, in time of car shortage, by being able to order his quota from both carriers, he might be able to profit by his location by receiving a supply of cars more nearly adequate to his needs. [Nos. 627 and 628.] Argued April 24, 1924. Decided June 9, 1924. Note.-On right of carrier to discriminate in distribution of cars-see notes to Di Georgio Importing & S. S. Co. v. Pennsylvania R. Co. 8 L.R.A. & R. Coal & Coke Co. 44 L.R.A.(N.S.) (N.S.) 108; Illinois C. R. Co. v. River 648; and Baltimore & O. R. Co. v. Public Service Commission, L.R.A.1918D, 274. On car shortage as affecting liability of carrier for failure to furnish carssee note to Pacific Fruit & P. Co. v. Northern P. R. Co. 10 A.L.R. 342. A PPEALS by defendant and inter- Co. v. Pennsylvania R. Co. 230 U. S. See same case below, 293 Fed. 460. Assistant to the Solicitor General a brief for the United States: The order directed no affirmative re- Procter & G. Co. v. United States, 225 The findings of fact and conclusion Interstate Commerce Commission v. 237 U. S. 121, 59 L. ed. 867, 35 Sup. Ct. Mr. J. Carter Fort argued the cause, The Commission did not grant af- Procter & G. Co. v. United States, 225 What is a fair and just distribution of 59 L. ed. 867, 35 Sup. Ct. Rep. 484; was not Interstate Commerce Commission v. Sup. Ct. Rep. 174; Interstate Commerce Illinois C. R. Co. 215 U. S. 452, 470, 54 Commission v. Illinois C. R. Co. 215 U. L. ed. 280, 287, 30 Sup. Ct. Rep. 155; S. 452, 54 L. ed. 280, 30 Sup. Ct. Rep. Interstate Commerce Commission v. 155; Baltimore & O. R. Co. v. United Union P. R. Co. 222 U. S. 541, 547, 56 States, 215 U. S. 481, 54 L. ed. 292, 30 L. ed. 308, 311, 32 Sup. Ct. Rep. 108; Sup. Ct. Rep. 164; Morrisdale Coal Co. United States v. Louisville & N. R. Co. v. Pennsylvania R. Co. 230 U. S. 304, 235 U. S. 314, 320, 59 L. ed. 245, 250, 57 L. ed. 1494, 33 Sup. Ct. Rep. 938; 35 Sup. Ct. Rep. 113; O'Keefe v. United Pennsylvania R. Co. v. Puritan Coal Min. States, 240 U. S. 294, 303, 60 L. ed. 651, Co. 237 U. S. 121, 59 L. ed. 867, 35 Sup. 657, 36 Sup. Ct. Rep. 313; Seaboard Air Ct. Rep. 484; Pennsylvania R. Co. v. Line R. Co. v. United States, 254 U. S. Clark Bros. Coal Min. Co. 238 U. S. 455, 57, 62, 65 L. ed. 129, 133, 41 Sup. Ct. 59 L. ed. 1406, 35 Sup. Ct. Rep. 896; Rep. 24; Manufacturers R. Co. v. United Loomis v. Lehigh Valley R. Co. 240 U. S. States, 246 U. S. 457, 62 L. ed. 831, 3843, 60 L. ed. 517, 36 Sup. Ct. Rep. 228; Sup. Ct. Rep. 383. Mr. George T. Bell argued the cause and filed a brief for appellants in No. 628: The 100 per cent rule does not deprive joint mines of any legal right, or relieve railroads of any common-carrier duties or obligations. On the contrary, the rule is mandatory upon railroads, both at common law and under the Interstate Commerce Act, and the district court therefore erred in annulling it. 10 C. J. §§ 54, 57; Hutchinson, Carr. 3d ed. §§ 105, 112, 119, 125, 143; Elliott, Railroads, §§ 2210, 2213; Little Rock & Ft. S. R. Co. v. Conatser, 61 Ark. 560 33 S. W. 1057; St. Louis, I. Mt. & S. R. Co. v. Knight, 122 U. S. 79, 30 L. ed. 1077, 7 Sup. Ct. Rep. 1132; Missouri P. R. Co. v. McFadden, 154 U. S. 155, 160, 161, 38 L. ed. 944, 946, 947, 14 Sup. Ct. Rep. 990; Hannibal & St. J. R. Co. v. Swift, 12 Wall. 262, 20 L. ed. 423; East ern R. Co. v. Littlefield, 237 U. S. 140, 145, 59 L. ed. 878, 35 Sup. Ct. Rep. 489; Ritchie & G. Co. v. Northern P. R. Co. 110 Minn. 347, 125 N. W. 899; Wilder v. St. Johnsburg & L. C. R. Co. 66 Vt. 636, 30 Atl. 41; Pennsylvania R. Co. v. Puritan Coal Min. Co. 237 U. S. 121, 133, 134, 59 L. ed. 867, 873, 874, 35 Sup. Ct. Rep. 484; Ayres v. Chicago & N. W. R. Co. 71 Wis. 372, 5 Am. St. Rep. 226, 37 N. W. 436; Pratt v. Grand Trunk R. Co. 95 U. S. 43, 24 L. ed. 336; State ex rel. McComb v. Chicago, B. & Q. R. Co. 71 Neb. 593, 99 N. W. 310; Illinois & St. L. R. & Coal Co. v. People, 19 Ill. App. 141, affirmed in 122 Ill. 506, 14 N. E. 261. If the 100 per cent rule is not required by express provisions of the Interstate Commerce Act, it is certainly within the administrative functions and power of the Commission to prescribe or approve. Chicago, R. I. & P. R. Co. v. Hard wick Farmers Elevator Co. 226 U. S. 426, 57 L. ed. 284, 46 L.R.A. (N.S.) 203, 33 Pennsylvania R. Co. v. Sonman Shaft Coal Co. 242 U. S. 120, 61 L. ed. 188, 37 Sup. Ct. Rep. 46; Pennsylvania R. Co. v. Stineman Coal Min. Co. 242 U. S. 298, Director Gen. v. Viscose Co. 254 U. S. 61 L. ed. 316, 37 Sup. Ct. Rep. 118; 198, 65 L. ed. 372, 41 Sup. Ct. Rep. 151; Seaboard Air Line R. Co. v. United States, 254 U. S. 57, 61, 65 L. ed. 129, 132, 41 Sup. Ct. Rep. 24; Pennsylvania R. Co. v. United States, 236 U. S. 351, 361, 59 L. ed. 616, 623, P.U.R.1915B, 261, 35 Sup. Ct. Rep. 370; Skinner & E. 562, 63 L. ed. 772, 776, 39 Sup. Ct. Rep. Corp. v. United States, 249 U. S. 557, 375; Interstate Commerce Commission v. Louisville & N. R. Co. 227 U. S. 88, 57 L. ed. 431, 33 Sup. Ct. Rep. 185; PreCooling Case (Atchison, T. & S. F. R. Co. v. United States), 232 U. S. 199, 58 Angeles Switching Case (Interstate Comed. 568, 34 Sup. Ct. Rep. 291; Los R. Co.) 234 U. S. 294, 311, 312, 58 L. merce Commission v. Atchison, T. & S. F. ed. 1319, 1327, 1328, 34 Sup. Ct. Rep. 814; Manufacturers R. Co. v. United States, 246 U. S. 457, 482, 62 L. ed. 831, 814, 38 Sup. Ct. Rep. 383; Kansas City S. 423, 440, 58 L. ed. 296, 303, 52 L.R.A. Southern R. Co. v. United States, 231 U. (N.S.) 1, 34 Sup. Ct. Rep. 125; Procter & G. Co. v. United States, 225 U. S. 282, 297, 298, 56 L. ed. 1091, 1096, 1097, 32 Sup. Ct. Rep. 761; Interstate Commerce Commission v. Union P. R. Co. 222 U. S. 541, 56 L. ed. 308, 32 Sup. Ct. Rep. 108; Interstate Commerce Commission v. Delaware, L. & W. R. Co. 220 U. S. 235, 55 L. ed. 448, 31 Sup. Ct. Rep. 392. Regardless of whether the Commission's order of December 11, 1922, was in effect an affirmative prescription of the 100 per cent rule, the district court erred in enjoining either the order or the rule. Louisiana & P. B. R. Co. v. United States, 257 U. S. 114, 66 L. ed. 156, 42 Sup. Ct. Rep. 25; Edward Hines Yellow Pine Trustees v. United States, 263 U. S. the C. Mr. James W. Carmalt argued cause, and, with Messrs. Addison Burnham and August G. Gutheim filed a brief for appellees: The Commission's order is affirmative in substance and effect. Baltimore & O. R. Co. v. Lambert Run V. V. Union P. R. Co. 222 U. S. 541, 56 L ed. 308, 32 Sup. Ct. Rep. 108. The order of the Commission invades legal rights. Baltimore & O. R. Co. v. United States, 264 U. S. 258, ante, 667, 44 Sup. Ct. Rep. 317; Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U. S. 426, 51 L. ed. 553, 27 Commerce Commission Sup. Ct. Rep. 350, 9 Ann. Cas. 1075; Interstate V. 143, ante, 216, 44 Sup. Ct. Rep. 72; Interstate Commerce Commission v. Delaware, L. & W. R. Co. 220 U. S. 235, 251, 252, 55 L. ed. 448, 456, 457, 31 Sup. Ct. Rep. 392; Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 219, 40 L. ed. 940, 947, 5 Inters. Com. Rep. 405, 16 Sup. Ct. Rep. 666; Interstate Commerce Commission v. Chicago, R. I. & P. R. Co. 218 U. S. 88, 103, 54 L. ed. 946, 955, 30 Sup. Ct. Rep. 651; Traer v. Chicago & A. R. Co. 13 Inters. Com. Rep. 451; Interstate Commerce Commission v. Illinois C. R. Co. 215 U. Interstate S. 452, 54 L. ed. 280, 30 Sup. Ct. Rep. 155; California Fruit Growers' Exch. v. Southern P. Co. 12 Inters. Com. Rep. 553; Railroad Commission v. Chicago, R. I. & P. R. Co. 29 Inters. Com. Rep. 396; Farmers' Elevator Co. v. Chicago, M. & St. P. R. Co. 47 Inters. Com. Rep. 475; Tanner & Co. v. Chicago, B. & Q. R. Co. 53 Inters. Com. Rep. 401; Wausau Southern Lumber Co. v. Gulf & S. I. R. Co. 64 Inters. Com. Rep. 732; Board of Illinois C. R. Co. 215 U. S. 452, 54 L. Trade v. Atchison, T. & S. F. R. Co. 29 ed. 280, 30 Sup. Ct. Rep. 155; Hooker v. Inters. Com. Rep. 443; Rice v. Louisville Knapp, 225 U. S. 302, 323, 56 L. ed. & N. R. Co. 1 Inters. Com. Rep. 738, 1 I. 1099, 1106, 32 Sup. Ct. Rep. 817; LouisC. C. Rep. 503; Portsmouth Asso. v. Sea- ville & N. R. Co. v. F. W. Cook Brewing board Air Line R. Co. 55 Inters. Com. Co. 223 U. S. 70, 56 L. ed. 355, 32 Sup. Rep. 380; Ridge Coal Min. Co. v. Mis- Ct. Rep. 189; Loomis v. Lehigh Valley R. souri P. R. Co. 62 Inters. Com. Rep. 259; Co. 240 U. S. 43, 60 L. ed. 517, 36 Sup. Dering Mines Co. v. Director Gen. 621 Ct. Rep. 228; Kansas City Southern R. Inters. Com. Rep. 265; Hillsboro Coal Co. v. Cleveland, C. C. & St. L. R. Co. 63 Inters. Com. Rep. 401; Benton Coal Min. Co. v. Chicago, B. & Q. R. Co. 63 Inters. Com. Rep. 396; Franklin County Min. Co. v. Chicago, B. & Q. R. Co. 63 Inters. Com. Rep. 396; Cameron Coal Co. v. Marion & E. R. Co. 63 Inters. Com. Rep. 434; Independent Refiners' Asso. v. Western New York & P. R. Co. 4 Inters. Com. Rep. 162; Penn. Ref. Co. v. Western New York & P. R. Co. 208 U. S. 208, 220, 221, 52 L. ed. 456, 461, 462, 28 Sup. Ct. Rep. 268; Interstate Commerce Commission v. Diffenbaugh, 222 U. S. 43, 46, 56 L. ed. 86, 87, 32 Sup. Ct. Rep. Co. v. United States, 231 U. S. 423, 439, 440, 58 L. ed. 296, 302, 303, 52 L.R.A. (N.S.) 1, 34 Sup. Ct. Rep. 125; Tap Line Cases (United States v. Louisiana & P. R. Co.) 234 U. S. 1, 58 L. ed. 1185, 34 Sup. Ct. Rep. 741; Intermountain Rate Cases (United States v. Atchison, T. & S. F. R. Co.) 234 U. S. 476, 58 L. ed. 1408, 34 Sup. Ct. Rep. 986; McLean Lumber Co. v. United States, 237 Fed. 460; Hillsdale Coal & Coke Co. v. Pennsylvania R. Co. 237 Fed. 272; St. Louis Southwestern R. Co. v. United States, 231 Fed. 668; Louisiana & P. R. Co. v. United States, 209 Fed. 244; Manufacturers R. Co. v. United States, 246 U. S. 457, 62 L. ed. 831, 38 Sup. Ct. Rep. 383; Central The final order by the full Commission R. Co. v. United States, 257 U. S. 247, was a negative order, a mere denial of 66 L. ed. 217, 42 Sup. Ct. Rep. 80; Skinaffirmative relief sought, and not withinner & E. Corp. v. United States, 249 U. the jurisdiction of the district court to S. 557, 63 L. ed. 772, 39 Sup. Ct. Rep. 375. review or enjoin. 22. Procter & G. Co. v. United States, 225 U. S. 282, 56 L. ed. 1091, 32 Sup. Ct. Rep. 761; Hooper v. Knapp, 225 U. S. 302, 56 L. ed. 1099, 32 Sup. Ct. Rep. 769; Lehigh Valley R. Co. v. United States, 243 U. S. 412, 61 L. ed. 819, 37 Sup. Ct. Rep. 434; Baltimore & O. R. Co. v. United States, 264 U. S. 258, ante, 667, 44 Sup. Ct. Rep. 317. 1168 The carriers themselves could not so deny the transportation right of the mine owner, and there is no right in the Interstate Commerce Commission thus to deprive either the railroad or the mine owner of lawful rights to contract for transportation, and the Commission is clothed with no power to authorize or permit or compel or require the railroads. 265 U. S. |