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COCA-COLA CO. v. MARBERT PRODS.

November 3, 1939

COCA-COLA CO.
v.
MARBERT PRODUCTS, Inc., et al.



The opinion of the court was delivered by: BYERS

BYERS, District Judge.

In this cause the plaintiff seeks an injunction against the defendants, forbidding them to do nine specified things constituting unfair competition, and the delivery and destruction of instrumentalities of such unfair competition, and an accounting.

There are seven defendants, and five of them, in three divisions, present motions for a more definite statement and for a bill of particulars to enable them to properly prepare their answers and defenses.

 The motions were heard at one time, and will be disposed of as presented.

 1. Defendant Streger:

 The relief sought by this defendant applies to paragraphs 30, 31 and 38 of the bill of complaint; this defendant says that he wishes to know whether the averments in paragraph 30 as to representations to customers and prospective customers of the corporate defendants refer to him and, if so, whether they were written or oral, and to whom made, and the place and date of each.

 As to paragraph 31, the same information is sought.

 As to paragraph 38, having to do with alleged advertising of the products handled by the corporate defendants, whether he, Streger, is charged therewith and, if so, particulars concerning the advertising, with the names of newspapers or periodicals, and if other similar activity is charged to him under the expression "other ways", a detailed explanation thereof is sought.

 This is not an action in which the plaintiff is stating a liquidated or unliquidated claim for money damages, concerning which, or the bases of which, a defendant would be entitled to an itemized statement or bill of particulars.

 The allegations in the bill of complaint, other than those concerning the parties and other jurisdiction of the court, recite:

 The plaintiff is engaged in the manufacture and sale of a soft drink and of a syrup for the preparation thereof under a trade-mark which was duly registered and is now the property of the plaintiff. Then follow allegations directed to the value of the trade-mark and its identification with plaintiff's products and the sale of the latter, and the manner of marketing the said products.

 The foregoing are comprehended in the first sixteen paragraphs of the bill of complaint.

 Paragraphs 17 to 35 and 38 state in clear, brief and comprehensive form the alleged acts of the defendants deemed to constitute unfair competition.

 The remaining paragraphs allege the purpose of the defendants' overt acts, the deception of the public, and the deliberate purpose ascribed to the defendants by the plaintiff, and the effect of such conduct on ...


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