is done with the board and about 30 per cent. of all wines sold in this state are the plaintiff's Greystone brand.
12. Upon receipt of notice from the defendant of the alleged infringement, the Liquor Control Board declined to purchase wine from the plaintiff between January 25 and March 5, 1937, when indemnity arrangements were effected, pending determination of the rights of the respective parties.
13. The use of the trade-mark by the plaintiff is not shown to have been fraudulent or with knowledge of the prior use or adoption by the defendant or by Bisceglia Bros. of California.
14. Defendant failed to notify the plaintiff of its claim to the trade-mark until November, 1936, and only made formal demand to cease its use on February 5, 1937.
Conclusions Of Law.
1. California Wine Association was the exclusive user of the trade-mark "Greystone" for its hock type wine prior to prohibition in 1920.
2. Nonuser of the trade-mark during the period of prohibition did not constitute an abandonment.
3. Plaintiff and its predecessors had no right to the use of the trade-mark prior to the advent of repeal.
4. Plaintiff and its predecessors did not acquire any rights in the trade-mark by assignment or otherwise from the defendant or the wine producers, Bisceglia Bros. of California.
5. Registration of the trade-mark is prima facie evidence of its adoption and ownership, and the burden of proving abandonment, laches, or acquiescence in the use by others is upon the plaintiff.
6. Plaintiff and its predecessors have acquired the right to the use of the trade-mark "Greystone" by the innocent adoption of the same and the extensive use thereof in this state to the point where such name is here indicative of the plaintiff's product.
7. Defendant has, by its conduct and its failure to project its business in this state, and having an equal opportunity, evidenced an intent to abandon, and is by its laches and acquiescence precluded from preventing the plaintiff from enjoying the benefits of its trade and good will in Pennsylvania which it has built up at great expense.
8. The acts of the defendant in seeking to restrain the plaintiff from exercising its rights in the trade-mark "Greystone" in Pennsylvania amount to unfair competition and, if permitted, would result in the transfer of the plaintiff's good will to the defendant, and would thereby accomplish a substantial inequity.
9.The plaintiff is entitled to injunctive relief, but, no damages being shown other than the costs incident to this litigation and the indemnity to the Liquor Control Board, no award of damages may be made.
10. The acts of both parties appear to have been done in good faith and under colorable title to the respective rights asserted, and we deem it proper that each party should bear its own costs.
11. A decree in accordance with the findings and conclusions herein may be submitted for entry as the order of this court.
The requests of the parties for findings of fact and conclusions of law, so far as they are consistent with the above, are affirmed, and, to the extent that they differ from the above findings and conclusions, they are denied.
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