Argument for Defendant in Error. 241 U.S. feit. St. Louis v. Judd, 236 Missouri, 1; Commonwealth v. Kevin, 202 Pa. St. 23, 29; Hall-Baker Grain Co. v. United States, 198 Fed. Rep. 614; United States v. Lexington Mill, 232 U. S. 399; United States v. 11,150 Pounds of Butter, 195 Fed. Rep. 657, 661. one. "Added ingredient" means something foreign to the article to which it is added, therefore an ingredient which is a constituent element and is not foreign is not an added Weeks v. United States, 224 Fed. Rep. 64, 67; Curtice Bros. Co. v. Barnard, 209 Fed. Rep. 591, 594; Cong. Rec. June 21, 1906, pp. 8891-2, 8900, and Feb. 21, 1906, pp. 2647-2750, Jan. 10, 1906, p. 987 and Feb. 20, 1906, p. 2729, Feb. 19, 1906, p. 2647; H. R. Rep. No. 2118, March 7, 1906, 59th Cong., 1st sess. Even if the statute is one for the protection of the public health the bills show that Congress did not intend to condemn every article having a deleterious ingredient in it, even though it may have rendered the article injurious to health. It was necessary to prove further, that the deleterious ingredient was added. The word "ingredient" indicates Congress had in mind mixed and compound articles of food rather than simple ones. Since Congress has permitted the use in articles of food of substances which are confessedly habit-forming and deleterious, it can be assumed that it intended to prohibit the use of caffeine, which is admitted to be far less harmful than any of those enumerated in the proviso referred to, and which was and had been for several hundred years prior to the passage of the Act, an ingredient in food articles of almost universal use. The caffeine contained in the product Coca-Cola is not a poisonous ingredient, or a deleterious ingredient, which may render said product injurious to health, so as to constitute an adulteration within the purview of the Act. The product is not misbranded within the meaning of 241 U. S. Argument for Defendant in Error. the Act. Nashville Syrup Co. v. Coca-Cola Co., 215 Fed. Rep. 527; Coca-Cola Co. v. Gay-Ola Co., 200 Fed. Rep. 720. This name was registered by claimant under the Act of 1881, and again under the Act of 1905. While all distinctive names are not entitled to registration, no name is entitled to registration unless it is distinctive. It can be distinctive in its original signification, or it may have become so by association. Canal Co. v. Clark, 13 Wall. 311, 323; Amoskeag Mfg. Co. v. Trainer, 101 U. S. 51; Lawrence Mfg. Co. v. Tennessee, 138 U. S. 537; United States v. Steffens, 100 U. S. 82. The use of a compound name does not necessarily, or even generally, indicate that the article to which the name is applied contains the substances whose names make up the compound. A geographical or descriptive name or a symbol may be divested of its original signification. In re Tolle, 1872 C. D. 219; Ex parte Van Eyck, 1903 C. D. 43; Ex parte Indiana Bicycle Co., 1895 C. D. 66; Ex parte Jewell Bottling Co., 1904 C. D. 150; Siegert v. Gandolfi, 149 Fed. Rep. 100, 103; Jacobs v. Beecham, 221 U. S. 263; Elgin Co. v. Illinois Watch Co., 179 U. S. 665; La Republique Francaise v. Saratoga Vichy Spring Co., 191 U. S. 427; Baglin v. Cusiner, 221 U. S. 580; Montgomery v. Thompson, 8 R. P. C. 361; Wotherspoon v. Currie, 5 H. L. 508; Vinegar Co. v. Powell (1897), A. C. 710; Reddaway v. Banham, 12 R. P. C. 83, and House of Lords Dec., 13 R. P. C. 218. Marks, although not susceptible of exclusive appropriation, at common law, frequently acquire a special significance in connection with particular commodities. Davids v. Davids, 233 U. S. 461, 466. Use under this Act must, of necessity, make a mark distinctive. See cases in the English courts. In re Crosfield, 26 R. P. C. 846; Re Registered Trademarks, Nos. 538, 1807 and 158, 839, 32 R. P. C. 40, 50; Slazengers, Ltd., 31 R. P. C. 501, 504. For "distinctive" as defined by the English Trademark Act (5 Edw., 7, chap. 15); see Application by Candbury Bros., 32 R. P. C. 9, 13; Application by Berna Commercial Motors, Ltd., 32 R. P. C. 113, 118; Woodward v. Boulton Macro Co., 32 R. P. C. 173, 198. The name Coca-Cola is distinctive, and distinctive only of the goods of claimant. United States v. 30 Cases &c., 199 Fed. Rep. 932; United States v. 100 Barrels &c. (Notice of Judgm., No. 300, Food and Drugs Act); United States v. Von Bremen (Notice of Judgm., 1949); as to Regulation 20, see United States v. 300 Cases of Mapleine (Notice of Judgm., 163); United States v. Qumpert (Notice of Judgm., No. 806). For other English cases directly in point, see Lemy v. Watson, 32 R. P. C. 508; Fowler v. Cripps, 1906, 1 K. B. 21; Rex v. Butcher, 99 L. T. 622; and see also Keasby v. Brooklyn Chemical Works, 142 N. Y. 467; Carnrick Kidder & Co. v. Morson, 1877, Law Journal Notes on Cases, 71; La Societe Ferment, 81 L. J. R. 724; United States v. Two Cases of Chloro-Naptholeum, 217 Fed. Rep. 477, 483; distinguished as being brought under the Insecticide Act; and see Libby, McNeil & Libby v. United States, 210 Fed. Rep. 148; Worden v. California Fig Syrup Co., 187 U. S. 516; Manhattan Med. Co. v. Wood, 108 U. S. 218; Nashville Syrup Co. v. Coca-Cola Co., 215 Fed. Rep. 527. MR. JUSTICE HUGHES delivered the opinion of the court. This is a libel for condemnation under the Food and Drugs Act (June 30, 1906, c. 3915, 34 Stat. 768) of a certain quantity of a food product known as 'Coca Cola' transported, for sale, from Atlanta, Georgia, to Chattanooga, Tennessee. It was alleged that the product was adulterated and misbranded. The allegation of adulteration was, in substance, that the product contained an added poisonous or added deleterious ingredient, caffeine, 241 U. S. Opinion of the Court. which might render the product injurious to health. It was alleged to be misbranded in that the name 'Coca Cola' was a representation of the presence of the substances coca and cola; that the product "contained no coca and little if any cola" and thus was an "imitation" of these substances and was offered for sale under their "distinctive name." We omit other charges which the Government subsequently withdrew. The claimant answered, admitting that the product contained as one of its ingredients "a small portion of caffeine," but denying that it was either an 'added' ingredient, or a poisonous or a deleterious ingredient which might make the product injurious. It was also denied that there were substances known as coca and cola "under their own distinctive names," and it was averred that the product did contain "certain elements or substances derived from coca leaves and cola nuts." The answer also set forth, in substance, that 'Coca Cola' was the 'distinctive name' of the product under which it had been known and sold for more than twenty years as an article of food, with other averments negativing adulteration and misbranding under the provisions of the Act. Jury trial was demanded, and voluminous testimony was taken. The District Judge directed a verdict for the claimant (191 Fed. Rep. 431), and judgment entered accordingly was affirmed on writ of error by the Circuit Court of Appeals (215 Fed. Rep. 535). And the Government now prosecutes this writ. First. As to 'adulteration.' The claimant, in its summary of the testimony, states that the article in question "is a syrup manufactured by the claimant . and sold and used as a base for soft drinks both at soda fountains and in bottles. The evidence shows that the article contains sugar, water, caffeine, glycerine, lime juice and other flavoring matters. As used by the consumer, about one ounce of this syrup is taken in a glass mixed with about seven ounces of carbonated water, so that the consumer gets in an eight ounce glass or bottle of the beverage, about 1.21 grains of caffeine." It is said that in the year 1886 a pharmacist in Atlanta "compounded a syrup by a secret formula, which he called 'Coca-Cola Syrup and Extract""; that the claimant acquired "the formula, name, label and good will for the product" in 1892, and then registered "a trade-mark for the syrup consisting of the name Coca Cola" and has since manufactured and sold the syrup under that name. The proportion of caffeine was slightly diminished in the preparation of the article for bottling purposes. The claimant again registered the name 'Coca Cola' as a trade-mark in 1905, averring that the mark had been "in actual use as a trade-mark of the applicant for more than ten years next preceding the passage of the act of February 20, 1905," and that it was believed such use had been exclusive. It is further stated that in manufacturing in accordance with the formula "certain extracts from the leaves of the Coca shrub and the nut kernels of the Cola tree were used for the purpose of obtaining a flavor” and that "the ingredient containing these extracts," with cocaine eliminated, is designated as "Merchandise No. 5." It appears that in the manufacturing process water and sugar are boiled to make a syrup; there are four meltings; in the second or third the caffeine is put in; after the meltings the syrup is conveyed to a cooling tank and then to a mixing tank where the other ingredients are introduced and the final combination is effected; and from the mixing tank the finished product is drawn off into barrels for shipment. The questions with respect to the charge of 'adulteration' are (1) whether the caffeine in the article was an added ingredient within the meaning of the Act (§ 7, subd. Fifth) and, if so, (2) whether it was a poisonous or deleterious ingredient which might render the article injurious to health. The decisive ruling in the courts below re |