Opinion
January 13, 1896.
Expenses incurred by the complainant in a bill in equity to enjoin the use of his trade mark, for advertisements after the granting of an injunction, warning the public of the counterfeiting of his trade mark by the respondent, cannot be allowed as damages.
BILL IN EQUITY for an injunction and account. Heard on pleadings and proofs.
Herbert B. Wood William Fitch, for complainants.
Stephen A. Cooke Louis L. Angell, for respondent.
We are of the opinion that the responder exception to Master's report allowing to the complainants $280.73 for expenses of advertisements subsequent to the granting of the preliminary injunction in the case, as damages, should be sustained.
We think it is questionable whether the cost of advertising by a complainant prior to an injunction, warning the public of the counterfeiting of his trade mark by a respondent, can be allowed as damages properly in equity, as we understand that a complainant's right to recover is limited to the profits made by the respondent from the use of the trade mark. Fowle v. Park, 48 Fed. Rep. 789. But, however this may be, we are clearly of the opinion that the costs of such advertisement subsequent to the granting of the injunction is not allowable.