have retained the case. Having reached the result that the court erred in so doing, we are vested with the power to direct that conclusion to be carried into effect, and in its exercise we discharge one of our essential functions, the determination of the jurisdiction of the courts below. Morris v. Gilmer, 129 U. S. 315; Wetmore v. Rymer, 169 U. S. 115; Aztec Mining Co. v. Ripley, 151 U. S. 79. The bill was dismissed by the Circuit Court but not for want of jurisdiction, and the decree will be reversed in order that the case may be disposed of on that ground, at the costs of appellant, which takes nothing by its appeal. The decree is reversed at appellant's costs, and the cause remanded with instructions to dismiss the bill for want of jurisdiction. WARNER v. SEARLE AND HERETH CO. APPEAL FROM THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 42. Argued November 2, 3, 1903.-Decided November 30, 1903. 1. It is the use without right of the registered trade-mark of another in foreign or Indian commerce that gives jurisdiction to the Federal courts under the act of March 3, 1881. 2. The averments of the bill in this case are treated as sufficiently asserting the use of the registered trade-mark and the alleged imitation in foreign commerce to found jurisdiction in the Circuit Court under the act as well as on diverse citizenship. 3. But as it did not appear that the alleged imitation was used in foreign or Indian commerce or on merchandise intended to be transported to a foreign country, the decree in favor of appellee is affirmed. WILLIAM R. WARNER, a citizen of Pennsylvania, filed this bill against The Searle & Hereth Company, a corporation of Illinois, and Gideon D. Searle and others, citizens of Illinois, in the Circuit Court of the United States for the Northern District of Illinois, alleging: Statement of the Case. 191 U. S. That complainant "was the sole and exclusive owner and proprietor of, and had used in his business in Philadelphia and in commerce between the United States and foreign countries, and particularly with New South Wales and Victoria, a certain arbitrary and fanciful mark, termed Pancreopepsine, upon bottles and packages containing a certain medicinal preparation," and had sold large quantities thereof "throughout the United States and in commerce with foreign countries, and particularly in the cities of Philadelphia and Chicago;" and that the public generally had come to recognize packages and bottles so marked as containing the preparation manufactured by complainant. That on December 26, 1882, complainant registered said trade-mark in the Patent Office and obtained a certificate of registration according to law, a copy of which certificate and accompanying statement and declaration was attached. That defendants had, in violation of complainant's rights, "counterfeited, copied and colorably imitated the trade-mark registered," and affixed the mark or symbol "to a medicinal preparation of the same general nature as that manufactured" by complainant, and had so closely imitated complainant's mark or symbol, and the manner of placing it on bottles and wrappers, that the public had been deceived into believing that the goods of defendants were those of complainant; "and that the said defendants, together and individually, have sold in the Northern District of Illinois, and elsewhere, large quantities of the medicinal preparation intended for the cure of indigestion similar to that manufactured by your orator and contained in packages or bottles marked with the trade-mark or symbol heretofore referred to as belonging solely to your orator, or in such close imitation of your orator's trade-mark or symbol as has deceived the public and led such public to believe the said mark or symbol designated the goods manufactured by your orator;" so that complainant's sales have been lessened, and profits lost. It was further averred that "the public in general, and par ticularly the citizens of the Northern District of Illinois, identify the article by the name, mark or symbol; and that the spurious article manufactured and sold by the defendants associated with the same mark or symbol, or a mark or symbol in close imitation thereof, is a fraud and deception upon such of the citizens of the Northern District of Illinois, and elsewhere, as purchase the same, believing it to be the genuine article manufactured by your orator, and thereby the public generally, and particularly the citizens of the Northern District of Illinois, are damaged and misled." Complainant prayed for an accounting; for damages; and for injunction. Defendants in their answer denied that the word "Pancreopepsine" was a proper subject for registration as a trademark; and charged that "if not deceptive it is purely descriptive, being a mere compound of the ordinary names of the ingredients, or the principal ingredients, contained in the medicinal compound, with the name of one slightly modified, and they deny, on information and belief, that the public have associated the said name with the goods manufactured by the complainant." They averred that they were engaged in business in Chicago as general manufacturing chemists, and that they had, among other things, "put upon the market a medicinal compound having special merit as an aid of digestion, consisting, aside from the diluent, of nearly forty per cent of pure pancreatin, about fifty per cent of pure pepsin, and a few other ingredients in relatively small proportions; that pancreatin and pepsin are well-known medicinal agents of recognized efficacy in promoting digestion, and have been mixed together for medicinal purposes for nearly or quite thirty years past; that they have designated their compound upon the labels of their bottles and packages 'Pancro-Pepsin' in order that the nature of the compound may be expressed and its purpose as a digestive implied by the name; that they have put the said preparation in bottles and sold it upon the market both as a powder and Argument for Appellant. 191 U. S. in liquid form, the latter being designated 'Elixir PancroPepsin.'" Defendants said that in adopting the name they had only followed common usage where it was desired that the name should be generally descriptive of the compound to which it was applied, and that their compound could not be more appropriately designated; and they denied that they had in any manner or way whatsoever copied or colorably imitated complainant's alleged trade-mark, or that they had at any time misled the public or any member thereof, into supposing that the pancro-pepsin manufactured and sold by them was of complainant's manufacture, or that any person could have been so misled. And they averred that even if the name "Pancreopepsine" could be the subject of a lawful trademark, which they denied, it had not been infringed by them. Replication was filed, evidence taken, and hearing had. The Circuit Court held that complainant's contention touching unfair competition was not established, but that the trademark was valid and had been infringed, and granted an injunction. The case was carried to the Circuit Court of Appeals, and William R. Warner, Jr., executor, was made party in place of William R. Warner, deceased. The Circuit Court of Appeals agreed that there was no proof establishing unfair competition; held that the monopoly claimed could not be sustained; and reversed the decree of the Circuit Court and remanded the cause with directions to dissolve the injunction and dismiss the bill. 112 Fed. Rep. 674. From that decree this appeal was prosecuted, and argued on a motion to dismiss as well as on the merits. Mr. Frank T. Brown, with whom Mr. Samuel E. Darby was on the brief, for appellant: There is a right of appeal to this court. The trade-mark is registered and the appeal to the Circuit Court of Appeals is not made final. The suit does not depend entirely upon common 191 U. S. Argument for Appellant. law trade-mark. The use by defendant of this trade-mark in commerce with foreign nations is a question of merit and not of jurisdiction; the statute requires use by the registrant but not foreign use by infringer. United States v. Steffens, 100 U. S. 82; Watch Co. v. Watch Case Co., 87 O. G. 2323; 94 Fed. Rep. 667 and 179 U. S. 665. The constitutionality of the trade mark act is drawn in question in this suit. A statute merely requiring that on the owner of the trade-mark establishing use in commerce with foreign nations or Indian tribes the counterfeiting of the trade-mark is prohibited, is constitutional as it comes under pars. 3 and 18, § 8, art. I, giving Congress power to regulate commerce and to make all laws necessary to carry its powers into execution. Addyston v. United States, 175 U. S. 211, 228; United States v. Traffic Assn., 171 U. S. 505; Gibbons v. Ogden, 9 Wheaton, 196; Brown v. Maryland, 12 Wheaton, 419. This covers regulation of instrumentalities of such commerce. Hopkins v. United States, 171 U. S. 578. Trademarks are instrumentalities. Trade Mark Cases, 100 U. S. 82; Fulton v. Sillers, 4 Brews. 42, Pennsylvania. On the merits there is such a resemblance between the trademarks as to deceive a purchaser using ordinary caution. Pophan v. Cole, 66 N. Y. 69; McLain v. Fleming, 96 U. S. 245; 13 O. G. 913; Coleman v. Crump, 70 N. Y. 573; Tea Co. v. Herbert, 7 Eng. Rep. Pat. & Tr. Mk. Cases, 183; Scheuer v. Muller, 74 Fed. Rep. 225; Paris Medicine Co. v. W. H. Hill Co., 102 Fed. Rep. 150; Stuart v. F. H. Stuart Co., 91 Fed. Rep. 243; Pillsbury v. Flour Mills Co., 64 Fed. Rep. 841; Johnson v. Bauer, 82 Fed. Rep. 662; Brown on Trade Marks, 2d ed. ch. 8; Upton on Trade Marks. The defendant's defense that purchasers cannot be deceived as to the origin of the goods because they place their name upon the bottle and package has been overruled many times. N. K. Fairbank Co. v. Central Lard Co., 64 Fed. Rep. 136; Battle v. Finlay, 45 Fed. Rep. 796; Roberts v. Sheldon, Fed. Cases No. 11,916, and cases there cited; Sawyer v. Horn, 1 Fed. Rep. 24; Hier v. Abrahams, 82 N. Y. 519; Shaver v. Heller & Merz Co., |