Page:Federal Reporter, 1st Series, Volume 9.djvu/617

 603 FEDERAL REPORTER. �bnt received pay from his employers solely for the work and labor of packing. ! The bill of complaint prays for an injunction, and for prof- its and damages. Having been adjudged an infringer of the trade- mark of the complainant, an injunction haa been issued against him. Under 'the above state of facts, should he be compelled to account for profits and damages ? We have no dpubt about the propriety of the reference or of the liability of the defendant, if it can be shown on the accounting that profits were made by his work and labor, or that damages resulted :to the- complainant therefrom. If he did not sell, the profits on the sales are not chargeable to him; but if any profits came to him for preparing the article for those who did sell, they belong to the complainant, and the object of the accounting is to ascertain that fact. And if the defendant has damaged the com- plainant by the unlawful use of his trade-mark, the nature and ex tent qf the damage is a proper subject of inquiry. Second, becauso the complainant haa forfeited his right to an account by laches in bringing his suit. In England the rule is stringent in trade-mark cases that lack of diligence in suing deprives the complainant in ec[uity of the right either to an injunction or an account. Our courts are more liberal in this respect. A long lapse of time will not deprive the owner of a trade-mark of an injunction against an infringer, but a reasonable diligence is required of a complainant in asserting his rights, if ,he would hold a -wrong-doer to an account for profits and damages. This rule, however, applies only to those cases where there has been an acquiescence after a knowledge of the infringement is brought home to the complainant. Such is not the present case. Although the defendant began the packing of bluing in the packages complained of early in the year 18Y8, there is no evidence that the complainant knew it until a short time before the suit was brought. �2. As to the matter of costa. We find nothing in this case to take it out of the ordinary rule that a decree for an infringement and an injunction carries costs. The only reason suggested by the counsel for the defendant was that no demand was made before suit that the defendant should cease to use the label. We have never understood that in such cases a demand was necessary, nor that an infringer, who stoutly contesta the suit to the end, should be relieved from the paymentof the costs which have been incurred in consequence of his wrong-doing and his litigation. �The motion to strike out is overruled, but, under the circumstances, without costs, on the motion, to the complainants. ��� �