to prefix the above with the words "blended and bottled for", "bottled for" or otherwise as the case may be, and not to use the possessive or plural of the name "Dougherty".
In regard to the above I must state that regard for the public has largely motivated my decision as to the necessity for distinctive designations.
The penalty claimed by the defendant to be due him under the Pennsylvania Act of June 20, 1901, P.L. 582, § 4, 73 P.S. § 6, is for infringement of a label registered thereunder. The plaintiff's blended whiskey label can, perhaps, be deemed a simulation of the defendant's. However, in view of the fact that the defendant was warned by an official of the Pennsylvania Liquor Control Board that another firm that had been in business many years sold whiskey under the name of "Dougherty's" and that he might run into difficulty, he is precluded from an award of this penalty in a court of equity.
Conclusions of Law
1. The plaintiff is entitled to use the name "Dougherty's" on its goods.
2. The name "Dougherty's" has acquired a significance as a designation of the plaintiff's goods which warrants protection against interference.
3. The defendant has a right to use his name in his business.
4. The right of the defendant to use his name in his business is restricted to a use that will not result in confusion of his goods with those of a prior user of the same name, whose goods are identified with and by that name in the minds of purchasers.
5. The plaintiff is entitled to an injunction restraining the defendant from so using his name that reasonably attentive purchasers cannot readily distinguish between the products of the plaintiff and defendant, and from so using his name as to deprive the plaintiff in any other way of the benefits of the goodwill now appurtenant to the name "Dougherty's".
6. In light of the circumstances herein noted and others made apparent in the course of the trial, it is deemed proper that each party should bear its own costs.
7. A decree in accordance with the findings and conclusions herein may be submitted for entry as the order of this court.
The requests for findings of fact and conclusions of law are affirmed to the extent consistent herewith, and denied insofar as inconsistent herewith.
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