Sarprpa eters re cabo Ca rn aS a ETS oe Ee Tepper sre 9m rirtenionarstpay Snir 2 sect irinsapcoraris ve anarnawhreveshershtng?s a Ser nbcrinrateaeerenir ear e tyres regi p Beare Ee SMI Morty chr err or Sree | Sein arekererney sheep eae sneer es Mines Peeper eet Tae eatery terri “ Sufeio| boribelatwintatti cece ao eseteta erstererancra pear e Et at Spe arenes SNe ae rrgr anesthe ney genre Ab inarersoenan retreat anna 7 Feels crtatntariosrns carjareinre wih store Se Tonieposnper se perth yee . Larabar sree TIM ee en ape cree renee pe eevee shen eet cre Te sppapsasesenrerere armewr ir areesr opr erent Me a ee ~ +——__ 508. In re Simpson & Sons. July 13, 1876. U. S. Patent Office: Doolittle, Act. Comm.—10 U. S. Pat. Gaz. 333. APPLICATION for the registration, as labels, of two labels, of which one consisted of the word “‘ Hddystone,” with a picture of a light-house and the words “ Wm. Simpson ¢ Sons, Philadelphia, No. — yds.,” and the other of a picture 284 SMITH v. REYNOLDS. of three female figures standing near a tomb, with the words “ Wm. Simpson g¢ Sons, Philadelphia,” refused, on the ground that they were properly trade-marks, and must be registered as such. Abe 509. The Apollinaris Company (Limited) v. Edwards. July 13, 1876. Bacon, V. C.— Seton, 4th ed. 237. THE plaintiffs being the exclusive importers of Apolli- naris water into England, under agreement with the owners of the Apollinaris Spring in Germany, the defendants used the word “ Apollinaris” in connection with waters other than the genuine. On motion by the plaintiffs injunction granted to restrain the defendants from so doing.! _—— 510. Ex parte Stephens [T. M. A. 1875]. (2.) July 28, 1876. Jessel, M. R.—3 Ch. D. 659; 46 L. J. Ch. 46; 24 W. R. 963; 1 Trade-Marks, 13. MoTIoN to register as a trade-mark on inks the word or combination of letters ““Aezlyton,” such word not having been used as a trade-mark before the passing of the above act, re- fused, on the ground that the wording of the 10th section of the above act excluded from registration a mere combination of letters, newly adopted since the act. 511. Smith v. Reynolds. (3.) July, 1876. U.S.C. C.S. Dt. of N. Y.: Shipman, J.— 13 BL C. C. 458. Tue plaintiff having registered a crown under the U. Ss. Act of 1870 as his trade-mark for paints, but not having at that time, or since, used the crown on white lead, the defend- ants used a trade-mark containing a crown as their trade- mark on white lead, they, or their predecessors in business, 1 See Apollinaris Co. v. Moore. 285 LEA Uv. MILLAR. having done so from about a year previous to the registration of the plaintiff’s mark. Injunction to restrain the defendants from continuing to use the crown on their white lead refused, on the ground that the registration of the plaintiff's mark for paints generally did not give him aright to interfere with the continued user by the defendants of a mark which they had acquired a right to use in connection with a particular kind of paint before the registration of the plaintiff's mark. 512. Compagnie Laferme v. Hendrickx. July 20, 1876. Jessel, M. R. THE plaintiffs being a Dresden company of cigarette mak- ers, who sold their cigarettes in certain special wrappers, etc., and under the name “ Laferme,” the defendant sold other cigarettes under the same name and in similar wrappers. Injunction granted to restrain the use of labels and wrap- pers imitated from the plaintiffs’, but refused as to word “ Laferme,” on the ground that it was not established that the plaintiffs’ predecessor in business was the first in Germany to use it. Costs up to the motion at which the interlocutory injunc- tion as to the wrappers, etc., was granted, given to the plain- tiffs, subsequent costs to be borne by the respective parties, ——_—_+———_— 513. Lea v. Millar. July 26,1876. Jessel, M. R. — Seton, 4th ed. 242. THE plaintiffs being manufacturers of a sauce which they termed “ Worcestershire Sauce,” the defendant sold a sauce under the same name and with similar labels. Injunction to restrain the defendant from using the name and imitating the plaintiffs’ labels refused, on the ground that both the name and the style of label had been long used by sauce manufacturers other than the plaintiffs, and that the plaintiffs had publicly abandoned their old labels by the 286 IN RE MEIKLE. recent adoption of a new label bearing their signature as a distinctive mark.! 514. Bell, Black & Co. v. Bell & Co. August 1, 1876. Bacon, V. C. THE plaintiffs being manufacturers of lucifer matches, who sold their matches in boxes bearing a label of deep blue and red color on a white ground, with the device of a bell, the defendants, who had sold the same article in boxes bearing a label of the same colors, but paler, with the device of a small bee-hive, diminished the difference between the labels by deepening the colors of theirs and enlarging the bee-hive. On motion by the plaintiffs injunction granted to restrain the defendants from infringing the plaintiffs’ rights. —_+—_. 515. In re Meikle [T. M. A. 1875]. August 7, 1876. Hall, V. C.— 24 W. R. 1067; 1 Trade-Marks, 22. THE Registrar of Trade-Marks refused to register, or ad- vertise for registration, a design accompanied by the words “ The Registered Seal of the Bonus Tea Association,” unless the word ‘registered’ were omitted, on the ground that the Commissioners of Patents had directed him not to allow that word to appear in connection with any registered trade-mark. On summons to rectify the register, by the insertion of the applicants’ name as proprietors of the unaltered mark, ad- journed into court: Held, (1.) that an order could not be made for the regis- tration of the trade-mark without the preliminary advertise- ment required by the rules being inserted in the official jour- nal; and (2.) that the court would not interfere with the directions given to the registrar by the Commissioners of Patents in their discretion, or direct an advertisement of the unaltered mark with a view to its registration. 1 Jt is not to be understood that the right to protect the features which were court decided that by merely adopting common to both old and new. a new label plaintiffs abandoned the 287 IN RE IMBS. 516. In re Roach. August 9, 1876. U.S. Patent Office: Duell, Comm. —10 U. S. Pat. Gaz. 333. APPLICATION for the registration of the words “ Croup Tincture” as a trade-mark on a croup medicine refused, on the ground that the words were merely descriptive. —+———_ 517. Weston v. Hemmons. August 10,1876. Victoria Sup. Ct.: Molesworth, J. —2 Vict. L. R. Eq. 121. THE plaintiff being the inventor of a secret medicine called “ Weston’s Wizard Oil,” and the defendants having manufact- ured this medicine by agreement with him, after the termi- nation of the agreement the defendants continued to use the recipe and name. Injunction granted to restrain the defendants from using or imparting the secret recipe, and from using the name, except in respect of medicines manufactured before the termination of the agreement, but the order to be discharged if the plain- tiff should fail to pay for any ingredients, etc., purchased by the defendants for the purpose of the medicine, and which would have been charged in account against the plaintiff if the connection had continued. As to certain other medicines not satisfactorily proved to have been invented by the plain- tiff, or to have been sold in Victoria before the commence- ment of his connection with the defendants, no order made. ——_+—- 518. In re Imbs. August 29, 1876. U.S. Patent Office: Doolittle, Asst. Comm. —10 U. S. Pat. Gaz. 463. A DEVICE consisting of the letter “ Z” within a shield, the shield being surrounded with wheat and situated above the word “* Charm,” admitted to registration as a trade-mark, not- withstanding that two other trade-marks were already on the register, of which the one consisted of the words “ Golden 288 CHARLESON v, CAMPBELL. Charm” above a monogram of the letters “« F. G. S. ¢ Co.,” and the other of the words “ Attrition Flour” above a shield on which were bunches of wheat, on the ground that the pro- posed trade-mark was not sufficiently similar to those already registered as to be calculated to deceive. 519. Orr v. Diaper. November 6, 1876. Hall, V.C. —4 Ch. D.92; 46 L. J. Ch. 41; 85 L. T. N. S. 468; 25 W. R. 23. THE plaintiffs being manufacturers of sewing thread, who sold their thread in England and abroad, including Valparaiso, under certain marks, discovered that large quantities of thread bearing marks similar to theirs had been shipped to Valparaiso by the defendants on account of other persons. Action by the plaintiffs for discovery of the names and ad- dresses of the consignors, and particulars and dates of the con- signments of marked thread, with a view to further proceed- ings against the consignors. Demurrer; overruled; and Held, that the defendants must answer within a month. —_+——_- 520. Charleson v. Campbell. November 17,1876. Ct. of Session. — Ct. of Sess. Cas. 4th Ser. IV. 149; 14 Scot. L. Rep. 104. THE plaintiff being the proprietor of “ The Station Hotel, Forres,” tbe defendant, who had become proprietor of “ The County and Family Hotel,” in Forres, changed its name to “ The Royal Hotel,” and afterwards to “The Royal Station Hotel, Forres.” Interdict to restrain the defendant from styling his hotel “Station Hotel” refused, on the ground, that (1.) the name of the plaintiff’s hotel was a mere descriptive title, not a specific one, and that there was no averment that the defend- ant had assumed his title with fraudulent intent; and (2.) the use of the word “* Royal” by the defendant, as part of the 19 289 CARMICHEL v, LATIMER. name of his hotel, was sufficient to distinguish it from the plaintiff’s.! 521. Carmichel v. Latimer. “November, 1876. Rhode I. Sup. Ct. — 11 R. I. 395; 23 Amer. Rep. 481; 16 Alb. L. J. 73. THE plaintiffs being A. Carmichel & Co., who had purchased the good-will of the business of Stillman & Co., woollen man- ufacturers, and with it the right to use the tickets or labels of that firm, bearing the name “Stillman g Co.,” the defend- ants, Latimer, Stillman & Co., leased a mill formerly used by Stillman & Co., and known as the “ Seventh Day Mill,” or “ Stillman Mill,” and there began to manufacture goods sim- ilar to the plaintiffs’, and to sell them ticketed with a label containing the words ‘ Stillman Mill.” On motion by the plaintiffs for an injunction to restrain the defendants from so doing: Held, (1.) that the plaintiffs’ right to use the name “ Still- man g Co.,” there being no person of that name in the firm, was doubtful; (2.) that the defendants were entitled to place the name of their mill on their goods, if they did so without fraud; (8.) that there was no evidence or probability of fraud or deception; (4.) and, therefore, that the motion must be refused. Per Potter, J. “In some of the cases the question has been be- tween partners, or there has been a sale of a business, to be continued by the vendee, and more or less connected with a place and the good- will of the business, and in many of these cases the sale of the trade- mark would be upheld. But where the reputation of the goods and of the name has grown out of excellence of manufacture, depending on the honesty and skill of the maker, it is more difficult to hold that jt can be sold to a stranger, or that it is generally assignable.” Per Durfee, C. J. “A manufacturer has a right to attach his own name to his manufactures, even though a rival manufacturer of the same name, who has given it prestige in the market, may suffer in consequence. The resulting damage is damnum absque injurid. And 1 See Howard v. Henriques, 108. 290 CARMICHEL v. LATIMER. if a manufacturer has the right to label the products of his mill with his name, I do not see why he has not an equal right to label them with the name of that mill itself, provided the name is not unfairly assumed for that purpose, or fraudulently employed.” “ There is to be noticed a peculiarity in some English cases, grow- ing out of the practice of keeping up the name of an old mercantile firm for several generations, or successions of partners, and when no partner of the original name remained. ‘his practice is noticed and commented on in Hall v. Barrows, 215; The Leather Cloth Oo. v. The Amer, Leather Oloth Co. 223; and by Lord Kingsdown, in the last named case in House of Lords, mentioning instances. See, also, Croft v. Day; 77. In such cases no one is deceived. The name and good-will are understood by the public to belong to the existing firm.” “In the present case there has been no continuation of an old firm by a gradual change of its members. There is no person of the name of Stillman in the complainants’ firm, and the goods (although one of the partners was superintendent of the old firm) are made by a new firm, and in another place. The goods had (and it may be as claimed, through the skill of Carmichel) acquired a valuable reputation; but that old firm does not now exist. They do not describe themselves as successors, or the goods as made by one who was formerly super- intendent, but by the old firm as if it still existed. “It has not been claimed by the respondents that the complainants intend any deception. The facts are probably pretty well understood by the large dealers, and by the trade generally. And if we look upon the mark as having come to designate merely a quality or sort of goods, in that light the complainants would not be entitled to the exclusive use of it. “ On the other hand, the defendants hire the old mill, formerly oc- cupied by Stillman & Co.,and are making linseys there. While there is evidence that this mill was often called the ‘Seventh Day Mill,’ there is reliable evidence that it was also called the ‘Stillman Mill.’ It was leased to the defendants by that name, two years before they began the manufacture complained of. Persons of that name have been engaged in Westerly in manufacturing for many years, and there is evidence that the name of Stillman has also been applied to other mills. The defendants have a right to call their mills so, if they choose.” 291 CHASE v, MAYO. Per Potter, J. “The trouble is, the label of the defendants does not resemble the label of the plaintiffs closely enough to deceive any person of ordinary discernment, unless the name ‘ Stillman,’ which is prominent in both labels, may mislead him. The plaintiffs, therefore, can have no relief unless they can show that the defendants have no right to use that name as they do use it in their labels. How can the plaintiffs do this when the surname of one of the defendants is Still- man, and when the mill where the linseys are manufactured, though it may be popularly known as the ‘Seventh Day Mill, is also prop- erly called the ‘ Stillman Mill?’”? 522. In re The Hagle Pencil Co. November 21, 1876. U. S. Patent Office : Doolittle, Asst. Comm. — 10 U. S. Pat. Gaz. 981. APPLICATION for the registration of a trade-mark on pencils stated to consist essentially in the combination of a fraction with the whole number usually marked on a pencil, as 14 for 1, 23 for 2 (the figure of an eagle, or the word “ Eagle,” or other characters, being added or omitted at pleasure), refused, on the ground that the alleged trade-mark was in reality a mere indication of the quality of the article. —_+———_ 523. Chase v. Mayo. November 23, 1876. Mass. Sup. Ct.—121 Mass. (7 Lathrop) 343. THE plaintiff being a packer and seller of fish, who was also an official inspector of fish, and who branded the parcels of fish packed by him for his private business with his official brand, the defendant branded other fish with a similar mark. Action for damages. Held, that the plaintiff was not enti- tled to recover damages, on the ground that a public officer could not acquire any private right of trade-mark in the brand used by him in his official capacity. 1 See Kidd v. Johnson, 669; Pidding v. How, 60; Bury v. Bedford, 222. 292 DECKER v. DECKER. 524. Booth v. Jarrett. November, 1876. N.Y. C. P.: Van Brunt, J. — 52 How. Pr. 169. Tue plaintiff being Edwin Booth, who had established a theatre in New York and called it “ Booth’s Theatre,” and who had assigned the lease to J. B. Booth, under whom the defendants claimed, the premises having been described in both assignments, and also in various mortgages made by the plaintiff, as “ Booth’s Theatre,” the defendants continued to call the theatre by that name. Motion by the plaintiff for an injunction to restrain the defendants from continuing to use the name ‘ Booth,” in con- nection with the theatre, refused, on the ground that the plaintiff’s name had become affixed to the establishment, and did not imply that it was conducted by him.! 525. Decker v. Decker. November, 1876. WN. Y. Sup. Ct. : Lawrence, J.— 52 How. Pr. 218. THE plaintiffs being manufacturers of piano-fortes in New York, trading under the name of “ Decker Brothers,” the de- fendants, also manufacturers of pianos in New York, trading as‘ Decker g Barnes,” and whose senior partner had pre- viously been in business as “ Decker ¢ Co.,”” placed on their pianos a trade-mark consisting of the words “ The Decker Piano,” which they had registered in the U. S. Patent Office. Motion by the plaintiffs for an injunction to restrain the de- fendants from so doing refused, on the ground that the de- fendants could not be restrained from the use of their own names, if no fraud appeared ; and further, that it was doubtful whether the court was empowered to interfere with a trade- mark awarded by the Commissioner of Patents.? 1 See Howard v. Henriques, 108. 2 See Burgess vy. Burgess, 117. 293 CHEAVIN v. WALKER. 526. Powell v. McNulty. November 27, 1876. Bacon, V. C. THE plaintiff manufacturing a sauce under the name of “ Yorkshire Relish,” the defendant sold another sauce under the same name. Injunction granted to restrain the defendant from so doing.? 52'7. In re Pratt and Farmer. November 27, 1876. U.S. Patent Office: Doolittle, Asst. Comm.— 10 U. ; S. Pat. Gaz. 866. APPLICATION for the registration of the figure of a fish as a trade-mark for fishing lines refused, on the ground that the figure was descriptive of the purpose of the article. —_—+——_ 528. Cheavin v. Walker. December 8, 1876; May 9,1877. Bacon, V. C.— 5 Ch. D. 854; 46 L. J. Ch. 265; 35 ZL. T. N. S.757. Ct. of App.: Jessel, M. R. ; James and Baggallay, L. JJ. —5 Ch. D. 850; 46L. J. Ch. 686; 36 L. T. N. S. 938. THE plaintiff being G. Cheavin, who manufactured filters on a principle patented by his father, 8. Cheavin, in 1862 (but which patent lapsed in 1865), and who placed on his filters a tablet with the words “ G. Cheavin’s Improved Patent Gold Medal Self-Cleaning Rapid Water Filter, Boston, England,” beneath a medallion with the royal arms and the words “ By Her Majesty’s Royal Letters Patent,” the defendants, Walker, Brightman & Co., manufactured filters on the principle of the same patent, and placed on them a tablet with the words * 8. Cheavin’s Patent Prize Medal Self-Cleaning Rapid Water Filter, Improved and Manufactured by Walker, Brightman § Co., Boston, England.” Action for an injunction to restrain the defendants from in- fringing the plaintiff’s rights. 1 This case affords a striking illustration of the use of a geographical name in other than a geographical sense. 294 DUNBAR v, GLENN. Held, by the V. C.: (1.) that the plaintiff had acquired a right of trade-mark in the tablet; (2.) that this right had been fraudulently infringed by the defendants ; (8.) that the plaintiff was not deprived of his right to an injunction by his reference to the lapsed patent; and (4.) that the injunction must be granted. Held, by the Court of Appeal: (1.) that the alleged trade- mark was a mere inscription and not a trade-mark ; (2.) that in any case the defendants had committed no infringe- ment, but had merely stated the principle on which the filter was manufactured by them; (38.) that the plaintiff was dis- entitled by reason of his reference to the lapsed patent being such as to induce the belief that it was still in force; and (4.) that the injunction must be dissolved and the action dis- missed. Per Jessel, M. R. (5 Ch. D. 862). “You may state in so many words, or by implication, that the article is manufactured in accord- ance with a patent which has expired. But if you suggest that it is protected by an existing patent, you cannot obtain the protection of that representation as a trade-mark. Protection only extends to the time allowed by the statute for the patent, and if the court were af- terwards to protect the use of the word as a trade-mark, it would be in fact extending the time for protection given by the statute. It is, therefore, impossible to allow a man who has once had the protection of a patent to obtain a further protection by using the name of his pat- ent as a trade-mark.” Per James, L. J. “It is impossible to allow a man to prolong his monopoly by trying to turn a description of the article into a trade- mark. Whatever is mere description is open to all the world.” + —_+— 529. Dunbar v. Glenn. January, 1877. Wisconsin Sup. Ct. — 42 Wis. 118. Tue plaintiff being the proprietor of a spring of mineral water, which he sold under the name of “ Bethesda Mineral Water,” styling the spring the “ Bethesda Mineral Spring,” 1 See Pidding v. How, 60 ; Leather Cloth Co. v. Amer. Leather Cloth Co. 228. 295 BARROWS v. THE PELSALL COAL AND IRON COMPANY. the defendants, who were the proprietors of a neighboring spring, which they alleged to contain exactly the same water, began to call their spring and water “ Glenn-Bethesda Min- eral Spring” and “ Water,” and to issue circulars using those terms, and stating that their water was “ identical with Be- thesda” water. Injunction granted to restrain the defendants from using the name “ Bethesda Mineral Water” in connection with the water of their spring, and from issuing circulars or trade-cards, etc., representing their water to be “ Bethesda” water. “ Where the trade-mark, in its original signification, or by associa- tion, distinctively points to the origin or ownership of the article to which it is applied, it will be protected. But where it is a generic or geographical name, designating a city or district of country, or is merely descriptive of the article manufactured, and can be employed with truth by other manufacturers, it is not entitled to legal protec- tion as a trade-mark.” + ping 530. Barrows v. The Pelsall Coal and Iron Company. January 11,1877. Hall, V. C. THE plaintiffs being manufacturers of iron, which they stamped with the letters ‘* B. B. H.” (the initials of the orig- inal partners in the firm —Bradley, Barrows & Hall) in Roman characters and a crown, the defendants, carrying on business in succession to Messrs. Boaz Bloomer & Sons, stamped their iron (as that firm had done) with the Roman letters “ B. B.S.” and acrown. In 1874 the plaintiffs com- menced a suit for an injunction, which was compromised, the defendants undertaking to discontinue the use of their mark. The defendants subsequently took proceedings to pro- cure the registration of the letters “« B. B. S.,”’ in italic char- acters, with a crown, as their trade-mark under the Trade- Marks Act, 1875. On motion by the plaintiffs injunction granted to restrain 1 See Congress, etc. Spring Co. v. High Rock Congress Spring Co. 354. 296 MOET v. CLYBOUW. the defendants from using or procuring the registration of the mark in question. 531. Hennessy & Co. v. Rohmann, Osborne & Co. January 18, 1877. Malins, V. C.—36 L. T. N.S. 51. On an ex parte application on the part of the plaintiffs, being brandy merchants, who alleged that the defendants had obtained cases of the plaintiffs’, and filled them with in- ferior brandy : Interim injunction granted, to restrain the defendants from selling brandy not the plaintiffs’, so as to deceive, and order made, under Order LII., Rule 8, for inspection of the de- fendants’ premises to be made and samples taken by a proper person. =a 582. Grillon v. Guénin. January 19,1877. Bacon, V. C.— W. N. 1877, p. 14. THE plaintiff being a manufacturer of lozenges which he sold in boxes labelled with the words ** Tamar Indien,” the defendant sold other lozenges under the name of ‘* American Tamar.” Injunction granted to restrain the defendant from infring- ing the plaintiff’s trade-mark ; and Held, that a defence that the words ‘* Tamar Indien” were merely descriptive of the composition of the plaintiff's loz- enges failed. 533. Moet v. Clybouw. January 20,1877. Jessel, M. R. Tue plaintiffs being Moet and Chandon, wine-growers, who sold their champagne in bottles closed with corks branded with the letters « WZ. f C.” in a circle on the bottom, and the word “ England’’ on the side, the defendant sold other champagne in bottles closed with corks similarly marked, claiming to use the initials in right of a firm of ** Meadows § 297 DENCE v. MASON. Clybouw,” to whose business he alleged himself to have suc- ceeded, and claiming to use the word “* England” as common to the trade. On motion by the plaintiffs injunction granted to restrain the defendant from infringing the plaintiffs’ rights. ae es 534. Dence v. Mason. (1.) January 25, 1877; February 12, 1878. Malins, V. C. —W. N. 1877, p. 23; 1878, p. 42; L. J. Notes of Cases, 1877, p. 33. THE plaintiffs having recently acquired a provision dealer’s business in Little Stanhope Street, Mayfair, carried on under the name of “ Brand ¢ Co.,” and which name was placed on all the packets of essence of beef and other preparations made by the firm; F. Mason, who had been for many years in the employ of the plaintiffs’ predecessor in business, and who al- leged that during that period he had been the discoverer of the essence of beef, left their service, and began to deal in the same class of goods, in partnership with one Brand as “ Brand § Mason.” In consequence of proceedings taken by the plain- tiffs, this name was changed to “ Mason ¢ Brand,” and shortly afterwards Brand refused to continue in the partnership, or to permit the defendant to make use of bis name, but the de- fendant nevertheless continued to trade under the name of “ Mason § Brand,” and to represent that he was the original maker of the article. On motion by the plaintiffs for an injunction to restrain the defendant from infringing their rights, and again at the hear- ing of the action: Held, (1.) that during the continuance of the partnership between Mason and Brand it was impossible to prohibit en- tirely the use of the latter’s name in the business; (2.) but that after the retirement of Brand the defendant was not en- titled to continue to use his name for the purpose of imitating the plaintiffs’ name and marks, although he was at liberty to manufacture the same article as the plaintiffs under his own name; (8.) that in arranging with the proprietor of a small 298 LINOLEUM MANUFACTURING COMPANY v. NAIRN. shop in the same street as the plaintiffs for the exhibition on her shop-front of the words “ Agent for Mason § Brand’s Essence of Beef,” the words “ Agent for” being in small and the rest in large letters, the defendant had acted in a manner intended and calculated to deceive; (4.) that, supposing the defendant to have discovered the recipe of the essence of beef, which was not established, he was nevertheless not entitled to represent himself as the original maker, since whatever essence of beef he had made had been made by him as the servant of the plaintiffs or their predecessors, but that he might state that he had been in the plaintiffs’ service, and had there learnt the recipe ; (5.) and that an injunction must be granted to restrain the defendant in the particulars above mentioned. —— 535. Ex parte Grimshaw [T. M. A. 1875]. January 25,1877. Hall, V. C. —W. N. 1877, p. 24; L. J. Notes of Cas. 1877, p. 24; 1 Trade-Marks, 23. Two applications being made for the registration of the same trade-mark: Motion by one of the two applicants for a direction that the case should be heard on motion, and not on special case as directed by the rules, refused, on the ground that the method of procedure directed by the rules was the more convenient. —— 536. Linoleum Manufacturing Company v. Nairn. February 1, 1877; January 30,1878. Hall, V.C. Chanc. Div.: Fry, J.— 7 Ch. D. 834; 47 L. J. Ch. 430; 38 L. 7. N. 8.448; 26 W. R. 463; 1 Trade-Marks, 291. THE plaintiffs being manufacturers, under certain patents recently expired, of a new species of floor-cloth, which they called “« Linoleum Floor-cloth,” or “ Linolewm,” and who had used and registered as their trade-mark a device consisting of a fleur-de-lys in a lozenge, with the words ‘ Linoleum Floor- cloth” and “ F. Walton’s Patent,” the defendants made prep- aration, upon the expiration of the patents, for the manufact- ure and sale of a similar article, under the name of “Linoleum 299 EX PARTE YOUNG ; RE LEMON HART & SON. Floor-cloth,” and adopted a trade-mark entirely different from the plaintiffs’, consisting of a bunch of thistles with the name “ Nairn’s.” On motion by the plaintiffs for an injunction to restrain the defendants from using the word “ Linoleum :” Held, by Hall, V. C., that nothing having yet been done, and the question being purely one of the right to use the word, the matter must stand over till the hearing. At the hearing of the action : Held, by Fry, J.: (1.) that the word “ Linoleum,” as in- serted in the plaintiffs’ trade-mark, did not form an essential feature of the mark ; (2.) that the word being descriptive of a substance which the defendants were entitled to make, they were entitled to use it as the name of the substance ; (3.) that the fact that the word had been previously used by the plaintiffs alone, they being hitherto patentees, did not give them an exclusive right in it, since a name appropriated to an article made under a patent was indicative in the first place of the article so made, and only in the second place of the manu- facturers ; (4.) and that the injunction must, therefore, be refused. “ Until some other person is making the same article, and is at liberty to call it by the same name, there can be no right acquired by the exclusive use of a name, as showing that the manufacture of one person is indicated by it, and not the manufacture of another.” ! —_—-_—— 537. Ex parte Young; Re Lemon Hart & Son. February 3, 1877. London Ct. of Bankruptcy: Spring Rice, Reg. for C. J. Lemon Hart & Son, wine merchants, whose trade-mark consisted of the initials “ L. H. ¢ 8.,” having been compelled to liquidate by arrangement, and the partnership property, good-will, etc., having been sold by the trustee in the liquida- tion, the purchaser became bankrupt without having fully paid the purchase money. 1 See Burnett v. Phalon, 277; Singer Man. Co. y. Wilson, 477. 300 STRAHAN & CO., LIMITED, v. KING & CO. Motion by the trustee in liquidation for an order for the payment to him of the proceeds of a sale of the trade-mark by the trustee in bankruptcy refused, on the ground that the trade-mark passed to the purchaser from the trustee in liqui- dation, under the assignment from the latter, and that the purchaser’s trustee in bankruptcy was entitled to the benefit of it; and Held, that the trade-mark was a chattel within sect. 15, sub-s. 5 of the Bankruptey Act, 1869. 538. Harrington v. Libby. February, 1877. U. S. C. C. S. Di. of N. Y.: Johnson, J.—12 U.S. Pat. Gaz. 188. THE plaintiff, a manufacturer of paper collars, sold his goods in small pails of ornamented tin; he was the first to put up paper collars in pails, and registered the form of the pail as a trade-mark ; the defendant sold his collars in pails of the same size as those of the plaintiff, but differently ornamented. Motion by the plaintiff for an injunction to restrain the de- fendant from selling his collars in pails, as being an infringe- ment of the plaintiff’s trade-mark, refused, on the ground that the form of the pail could not constitute a trade-mark, and that the registration was without effect. pet eae 539. Strahan & Co., Limited, v. King & Co. February 22,1877. Malins, V. C. THE plaintiffs being the proprietors of “The Contemporary Review,” the defendants, the publishers and an ex-editor of 1 This case, like Moorman v. Hoge, 873, which see, has been supposed by some to point to the conclusion that the imitation of the appearance of a form or style of package will not be re- strained. What the court decided was that no one could enjoy the exclusive right to use a tin-pail as a box for col- lars, and that the registration of such a pail as a trade-mark was therefore nu- gatory. The two pails were not alike, and there was no proof of actual mis- take; it was manifestly impossible to grant the injunction. See Williams vy. Johnson, 150. 3801 IN RE BARROWS. that periodical, made preparations for publishing a new maga- zine or review under the title of “ The Nineteenth Century.” Motion by the plaintiffs for an injunction to restrain the defendants from so doing, and from representing their new magazine to be a continuation of “ The Contemporary Review,” and from misrepresenting the principles or objects of the latter periodical, refused, on the ground that the defendants were engaging in a perfectly fair competition with the plaintiffs, as they had a right to do, and that they had not been guilty of any misrepresentation with regard to either their own in- tended publication or the plaintiffs’. 4 —_—+—— 540. In re Barrows [T. M. A. 1875-6]. March 1, April 26,1877. Malins, V. C.—5 Ch. D. 353; 46 L. J. Ch. 450; 36 L. T. N.S. 291; 25 W. R. 407; 1 Trade-Marks, 122. Ct. of App.: Jessel, M. R.; James and Baggallay, L. JJ.— 5 Ch. D. 364; 46 L. J. Ch. 725; 36 L. T. N. S. 780; 25 W. R. 564; 1 Trade-Marks; 126. ON motion by Barrows & Sons, successors to Bradley, Bar- rows & Hall, iron manufacturers, of Bloomfield Works, Staf- fordshire, for the separate registration of numerous trade- marks used by them in their business, consisting respectively of the letters “.B. B. H.” (being the initials of the former firm), and of the word “ Bloomfield” or “ Bloom” (repre- senting the name of the works), used with a variety of marks indicative of quality, as ‘ Best,” “* Best, Best,” etc., or com- mon to the trade, as the figure of a crown, of a horse-shoe, etc., and the Registrar of Trade-Marks having, by direction of the Commissioners of Patents, declined to place on the register all the combinations, but offered to register any one of them: Held, by the V.C.: C1.) that every valid mark used before the Act of 1875 was entitled to separate registration under it; (2.) that the court was not bound by the direction of the Commissioners of Patents; (38.) that the motion must, there- fore, be granted. Held, by the Court of Appeal, that the proper mode would 1 See Hogg v. Kirby, 10. 302 GILMAN v, HUNNEWELL. be to register the letters “ B. B. H.” and the words “ Bloom- field” and “ Bloom,” being the essential particulars, sepa- rately, a note being appended in each case, to the effect that the mark might be used either alone, or in combination with common marks, words of quality, etc., so that the various combinations would be protected by representative registra- tion. 541. Gilman v. Hunnewell. March 1, 1877. Mass. Sup. Ct.— 122 Mass. (8 Lathrop) 139. THE plaintiffs having purchased from John L. Hunnewell certain medicines and the wrappers, labels, trade-marks, etc., used upon them, the defendant, Edwin Hunnewell, who had formerly been in John L. Hunnewell’s employ, set up in business in the same house as the plaintiffs as “ Hunnewell § Co.,” and made and sold similar medicines with wrappers and labels similar in many respects to the plaintiffs’, except that for “John L. Hunnewell” “ Hunnewell g¢ Co.” was sub- stituted. Injunction to restrain the defendant from infringing the plaintiffs’ rights refused, on the ground, that (1.) the plain- tiffs could not have a right of trade-mark in such words as “cough remedy,” or “a sure remedy for chronie or common cough, sore throat, and other minor throat complaints so often by neglect the forerunner of consumption ;” (2.) there was not such similarity as to be likely to deceive; (8.) no intention to defraud was proved; (4.) the circulars distributed by the defendant to his customers correctly stated his former relation to John L. Hunnewell. “ A trade-mark may consist of a name, or a device, or a peculiar arrangement of words, lines, or figures in the form of a label, which has been adopted and used by a person in his business to designate goods of a particular kind manufactured by him, and which no other person has an equal right to use. The right in a trade-mark, so ap- plied, is recognized as property, which a court of chancery will protect by injunction. “ A mere general description, by words in common use, of a kind 303 KINNEY v. BASCH. of article, or of its nature or qualities, cannot of itself be the subject of a trade-mark. “A person may have a right in his own name as a trade-mark, as against a person of a different name. But he cannot have such a right as against another person of the same name, unless the defend- ant uses a form of stamp or label so like that used by the plaintiff as to represent that the defendant’s goods are of the plaintiff’s manu- facture. “ The court will not restrain a defendant from the use of a label, on the ground that it infringes the plaintiff’s trade-mark, unless the form of the printed words, the words themselves, and the figures, lines, and devices, are so similar that any person, with such reason- able care and observation as the public generally are capable of using and may be expected to exercise, would mistake the one for the other.” + —_+>+——_ 542. Kinney v. Basch. March, 1877. WN. Y. Sup. Ct.: Van Brunt, J.—1 Trade-Marks, 183; 16 Am. Law Reg. N. S. 596. THE plaintiff being a manufacturer of cigarettes, on which he used a label containing a device of sun’s rays, the words ** St. James,” and the symbol “1,” the defendants sold other cigarettes with a label containing the words * St. James’ Par- ish Perique Cigarettes” (of which the words * St. James” were much the more conspicuous), and the symbol “4”’ in the same style as the plaintiff's, but the labels were in other respects different. Injunction granted to restrain the defendants from using the device of the sun’s rays, and also the symbol “3” and words “ St. James,” alleged to be the plaintiff's trade-marks, on the ground that whether the plaintiff had or had not an exclusive right in the marks, the defendants had acted so as to deceive. Per Van Brunt, J. “The use of any words, geographical or oth- erwise, numerals or symbols, adopted for the purpose of defrauding the public, will be restrained by the court. It is the duty of the court 1 See Amoskeag Co. v. Spear, 100. 304 CARNRICK v. MORSON. to protect the public from fraud, even at the suit of a plaintiff who has not the exclusive right to the use of such words, numerals, or symbols.” “Tt has been urged upon the part of the defendants that geograph- ical names cannot be the subject of a trade-mark; neither can numer- als, which only serve to indicate the nature, kind, or quality of an article. “It is true that the cases cited by the defendants sustain these propositions; but the later cases have proceeded upon different and more equitable principles in defining the grounds upon which courts of equity interfere in cases of this description. “ This interference, instead of being founded upon the theory of protection to the owners of trade-marks, is now supported mainly to prevent frauds upon the public. If the use of any words, numerals, or symbols is adopted for the purpose of defrauding the public, the courts will interfere to protect the public from such fraudulent intent, even though the person asking the intervention of the court may not have the exclusive right to the use of these words, numerals, or sym- bols. This doctrine is fully supported by the latest English cases ; . and, also, in the case of Newman v. Alvord” [282]. eg 543, Carnrick v. Morson. March 22, 1877. Bacon, V. C.—— L. J. Notes of Cas. 1877, p. 71; Chem- ist and Druggist, 1877, p. 161. TuHE plaintiff, being the manufacturer of a medical com- pound which he called * Lacto-Peptine,” the defendants sold a preparation in bottles labelled ‘* Lacto-Pepsine.” On motion by the plaintiff injunction granted to restrain the defendants from using the name; and Held, that a defence that the word ‘‘ Lacto-Peptine”’ was descriptive of the com- position of the plaintiff’s article failed.? 1 See Lee v. Haley, 325. extreme views which have been repeat- 2 The circumstances of thiscase were edly affirmed by the English courts of an exceptional character; it isnot to concerning descriptive words. be regarded as a departure from the 20 305 STEINTHAL vw. SAMSON. 544. In re Park. March 26, 1877. U. S. Patent Office: Spear, Comm. — 12 U.S. Pat. Gaz. 2. On an application for the registration as labels of three labels, each including a figure of a swan, or the word “* Swan,” which figure and word the applicant had previously sought unsuccessfully to register as his trade-mark on gin: Held, that, before this figure or word could be registered as part of a label, the applicant must establish his right of trade-mark therein. —_+—_—_ 545. Allsop v. Walker [T. M. A. 1875]. April 10, 1877. Jessel, M. R. THE defendants having applied for the registration of a device consisting of a female hand pointing horizontally, with the letters ‘“* W. ¢& G.” upon it, as their trade-mark for bot- tled ale and porter, the plaintiffs opposed the application, on the ground that the use of the mark by the defendants, if permitted, would be calculated to deceive, by reason of the similarity between that mark and their own trade-mark on the same article, consisting of a male hand pointing upwards. Special case stated by the Registrar of Trade- Marks. Held, that the mark too nearly resembled the plaintiffs’ mark to be admitted to registration in the same class. —_—— 546. Steinthal v. Samson. April 17,1877. Ct. of App.: James, Mellish, and Baggallay, L. JJ. THE plaintiffs being manufacturers and exporters of cotton goods, to whom the defendant, a former partner, had, on the dissolution of the partnership, assigned all his interest in the business, the deed containing a proviso to the effect that the defendant should be at liberty to continue to carry on a sim- ilar business, and to use the trade-marks of the firm, except the private arms, crest, and motto of the plaintiffs, the motto 306 CAMPBELL v. HOLLINS. consisting of the word “ Evcelsior,” the defendant subse- quently sold cotton goods bearing that word, but not used as a heraldic device. Injunction to restrain the defendant from the breach of the covenant alleged to be thereby committed refused, on the ground that the restrictive covenant had reference only to the heraldic use of the plaintiffs’ arms, crest, and motto, and not to the use of the word “ Hzcelsior”’ in another manner. 547. In re The Goodyear Rubber Co. April 25,1877. U.S. Patent Office : Doolittle, Asst. Comm.—11 U. S. Pat. Gaz. 1062. APPLICATION for the registration of the words “ Crack- proof,” as a trade-mark on india-rubber goods, refused, on the ground that the term was merely descriptive of quality. 548. Campbell v. Hollins. April 26,1877. Malins, V.C. House of Lords. THE appellant (defendant) Campbell and the respondent (plaintiff) Hollins having been in partnership as manufact- urers of china and encaustic tiles, separated the two busi- nesses in 1859, the former being styled by them “ Herbert Minton § Co.” and the latter “ Minton, Hollins & Co.,” and the respondent (defendant) Taylor was afterwards taken into the latter firm. On the retirement of Taylor in 1868, the partnership was dissolved, Campbell taking the china busi- ness, Hollins the tile business. Taylor having subsequently begun to manufacture tiles as “ Robert Minton, Taylor ¢ Co., Hollins commenced proceedings to restrain him from so doing, but these were discontinued on Taylor’s undertaking not to trade in any other name than “ Robert Minton Taylor.” Campbell purchased Taylor’s business in 1875, and announced his intention of continuing it as “ The Minton Brick and Tile Co.” 1 See Burnett v. Phalon, 277. 807 LEDGER v. RAY. Action by Hollins for an injunction to restrain the defendant Campbell from using the name “ Minton.” Heid, by the V. C. and House of Lords, that the plaintiff was entitled, as against the defendant, to the exclusive use of the name “ Minton § Co.” in connection with the tile busi- ness, and that an injunction must be granted to restrain the infringement of that right by Campbell. == — 549. Hennessy v. Cooper. April 26,1877. Malins, V. C. THE plaintiffs being brandy merchants, the defendant sold his own brandy in cases formerly belonging to the plaintiffs, and still bearing their marks. On motion by the plaintiffs injunction granted to restrain the defendant from so doing. 550. Ledger v. Ray. April 28, May 3,1877. Bacon, V.C. Ct. of App.': James, Baggallay, Bramwell, and Brett, L. JJ. THE plaintiff being the proprietor of a dramatic and sport- ing newspaper called The Era, which had for many years published articles signed ‘‘ Touchstone,” the defendant made preparations for the publication of a new newspaper on the same subjects, under the title of Touchstone, or, the New Era. Action by the plaintiff for an injunction to restrain the de- fendant from so doing. Held, by the Court of Appeal, that the adoption of that name for a new newspaper was not calculated to cause it to be bought in mistake for the old one, and that an injunction which had been granted must, therefore, be dissolved.? 1 See Thorley’s Cattle Food Co. v. 2 See Hogg v. Kirby, 10. Massam, 671. 308 IN RE KIMBALL. 551, Rose v. Henley. April 27, 1877. Malins, V. C.— Cited 47 L. J. Ch. 577; 88 L. T.N.S, 410. THE plaintiff being a manufacturer of lime juice, who sold his article in bottles moulded specially for him with a spray of lime-tree leaf and blossom and his name “ Rose §& Co.,” and who further placed on his bottles a label containing the same spray and name, the defendant systematically collected the plaintiff's empty bottles, and sold them refilled with lime juice not of the plaintiff's preparation. Injunction granted to restrain the defendant from infringing the plaintiff’s rights. —_+———_ 552. Wolmershausen v. O'Connor. May 3, 1877. Bacon, V. C. — 36L. T. N. S. 921. THE defendant (who had for many years been manager of, and for a shorter time partner in, the firm of Foster & Co., tailors, of High Street, Oxford, and Mayfair, and had latterly resided at Headington Hill, near Oxford) covenanted with the plaintiff, the principal partner, on the dissolution of the part- nership, not to carry on the business of a tailor, etc., within ten miles of Oxford, and not to represent himself in any man- ner as having been connected in trade with the plaintiff or his firm, as partner, manager, or servant, but shortly after- wards set up a tailor’s business in Cavendish Square, and issued advertisements, in which he described himself as “ late of Headington Hill, Oxford, and formerly of Mayfair.” On motion by the plaintiff injunction granted to restrain the defendant from acting in breach of his covenant, and from issuing the advertisements in question. 553. In re Kimball. May 3, 1877. U.S. Patent Office: Doolittle, Act. Comm. — 11 U. S. Pat. Gaz. 1109. On an application for the registration of the words “ Van- ity Fair” as a trade-mark on oe the applicant having 309 EX PARTE BARROWS. prepared eight different arrangements of his manner of using the words, by way of complying with the requirement of the U. S. Statute of 1870 for the manner of application to be de- scribed : Held, that one fac-simile was sufficient to illustrate the method of use, and that so many varieties of arrangement could not be permitted to be filed, on account of the incum- brance that such a practice would occasion. 554. Swift v. Peters. May 8, 1877. U.S. Patent Office: Doolittle, Act. Comm.— 11 U.S. Pat. Gaz. 1110. INTERFERENCE declared between Swift, an applicant for the registration in his name of a trade-mark on an agricult- ural compost, consisting of the words “* The John C. Ragsdale Ammoniated Dissolved Bone,” and Peters, in whose name the trade-mark was already registered, for the purpose of deter- mining to whom the mark in question belonged. Held, (1.) that Swift had acquired no title to the mark by being the first to suggest it, the title to a trade-mark depend- ing on its adoption and use, and not on its invention; (2.) that Swift had acquired no title to the mark by user, since whatever use of the mark had been made by him he had made in the capacity of agent for the firm of Snowden & Peters; (8.) that the question whether Peters, the registered pro- prietor of the mark, was or was not entitled to the exclusive use of it, inasmuch as he was only one of the former members of the dissolved firm of Snowden & Peters, was a question for the courts and not for the patent office ; (4.) and, therefore, that priority must be awarded to Peters, Swift never having acquired any right to the mark by adoption or user. 555. Ex parte Barrows [T. M. A. 1875]. May 11, 1877. Jessel, M. R. — W. N. 1877, p. 119 ; L. J. Notes of Cas. 1877, p. 110. Messrs. BARROWS having long used as their trade-mark on 310 KINNEY v. ALLEN. bar-iron the letters “ B, B. H.” surmounted by a crown, and having registered that device as their trade-mark in class 5 in the first schedule to the rules, Messrs. Halton & Co., who had used the letters “ 7. H. H.” surmounted by a crown as their trade-mark on tin-plates, turn-plates, and sheet-iron, ap- plied for the registration of that device as their trade-mark in class 5, the articles on which they had used the mark being included with bar-iron and other goods in that class. On motion by Messrs. Barrows for a declaration that Messrs. Halton & Co. were not entitled to have the mark so registered : Held, that the mark in question, being an old mark, might be registered for part of a class only, and that leave should be given for the mark to be registered in class 5, for the articles on which it had been previously used only. 556. Hennessy v. Kennett. May 18, 1877. Malins, V. C. THE plaintiffs were brandy merchants, who sold two classes of brandy, the best being sold in cases and the other in casks. Injunction to restrain the defendant from selling brandy, not the plaintiffs’ “case” brandy, in cases branded with the latter’s name and trade-mark refused, on the ground that the only occasion on which the defendant was proved to have done so was when an agent of the plaintiffs bought some of the plaintiffs’ “cask” brandy of the defendant, and the de- fendant, at the agent’s request, placed the “cask” brandy in one of the plaintiffs’ cases. —+-—_ 557. Kinney v. Allen. May, 1877. U. S. C. C. Dt. of E. Va.: Hughes, J.— 1 Hughes, 106; 4 Am. L. T. N.S. 258. Tue plaintiff being a manufacturer of cigarettes who placed upon several varieties of his cigarettes the symbol “4” in red, and had registered the same as his trade-mark in the U. S. 1 See Hennessy v. Cooper, 549. 311 KINNEY v. ALLEN. Patent Office, the defendants sold other cigarettes under la- bels, which were essentially unlike plaintiff’s, but which. bore a similar symbol. Suit for an injunction to restrain the defendants from using the symbol : Held, (1.) that as the plaintiff had always used the symbol on cigarettes containing tobacco of two different kinds, half- and-half, and as the symbol served to indicate this, though it did not clearly express it, an injunction restraining the use of the symbol generally could not be granted; (2.) that a lim- ited injunction should be granted, restraining the use of the symbol in the identical form, size, color, and style in which the plaintiff had used and registered it, and this, notwith- standing that the defendants had used it on a label which was in other respects quite unlike those of the plaintiff. Per Hughes, J. “There are but two questions arising in the present case as to this numerical character }. “‘(1.) The first is, —its use by the complainant being in a critical sense merely arbitrary, as only indicating but not expressing the idea of half-and-half, but not absolutely arbitrary in a popular sense, — whether or not complainant has a right to an injunction prohibiting the use by others of the character in any form on wares similar to his own. On the general principle that exclusive privilege, in preju- dice of general right, ought not to be upheld in cases of nicety and doubt, I think it most proper not to grant a general injunction. “(2.) The next question is, whether the complainant has a right to the exclusive use of this trade-mark in the form, size, color, and style, in which he has used it upon his wares since 1873, and in which he registered it in 1875. Upon the authority of cases numerously re- ported, and upon principles well established, I decide that he has such a right, and will so decree; and will insert in the decree an imprint of the character } in the form, size, color, and style, in which an ex- clusive use upon his cigarettes is affirmed to the complainant.” 1 1 See Lawrence Man. Co. v. Lowell Hosiery Mills, 676. 312 SOCIETE ANONYME, ETC., v. BAXTER. 558. In re The Walkden Aérated Waters Co. [T. M. A. 1875-6]. June 8, 1877. Jessel, M. R. —1 Trade-Marks, 39. ON motion to register as the applicants’ trade-mark for mineral waters a newly adopted device of a cock standing on a circle, registration having been refused by the registrar, on the ground that two marks of a similar character were already on the register in respect of the same class of article : Held, that the consent of the proprietor of one of the two registered marks having been already given, the mark might be registered on the consent of the proprietor of the other registered mark being obtained. “The Commissioners of Patents have considered the point as to how often any new device or emblem may be registered as a trade- mark for goods or articles in the same class, and they have decided that, for the sake of distinctiveness, in no case whatever should the number of times exceed three. They have also decided that if a device is used by more than three persons it cannot be registered at all under the act, as by being used by so many persons it wants that element of distinctiveness which it is necessary for a trade-mark as defined by the act to possess. A mark that is common to several persons cannot be said to be a distinctive mark, and, therefore, cannot be registered.” SS 559. Societé Anonyme des Mines et Fonderies de Zinc de la Vieille Montagne v. Baxter. June 12,1877. U.S. C. C. S. Dt. of N. Y.: Blatchford, J.—14 U. 8. Pat. Gaz. 679. Tue plaintiffs being manufacturers of dry white oxide of zinc, the defendants sold white oxide of zinc ground in oil, under the same trade-mark as that used by the plaintiffs. Injunction to restrain the defendants from infringing the plaintiffs’ rights refused, on the ground that the article on which the defendants used the mark was different from that on which it was used by the plaintiffs. 313 MASSAM v. J. W. THORLEY’S CATTLE FOOD CoO. 560. Massam v. J. W. Thorley’s Cattle Food Co. June 14, 1877. Malins, V. C.— 6 Ch. D. 574; 46 L. J. Ch. 707; 36L. 7. N.S, 848. JOSEPH THORLEY having in his lifetime been a manu- facturer of a compound known as “ Thorley’s Food for Cat- tle,” which was sold in packets labelled with those words and with Thorley’s signature; and Thorley’s brother, J. W. Thor- ley, having been for many years his manager, and equally acquainted with the secret recipe of the compound; J. W. Thorley, after his brother’s death, founded the defendant company for the manufacture and sale of the same article, which was sold in packets labelled with the words “ Thorley’s Food for Cattle,” with a fac-simile of the seal of the com-- pany, composed of its name in a circle enclosing the heads of various animals, and the company also issued a prospectus stating its connection with J. W. Thorley, and containing the same directions for use as those issued by Joseph Thorley. Motion by the executors of Joseph Thorley, who had regis- tered the signature alone as the trade-mark of their business, for an injunction to restrain the defendants from represent- ing their business or goods to be those of the plaintiffs, and from infringing the plaintiffs’ trade-mark, refused, on the ground (1.) that J. W. Thorley was entitled to use his own name, either alone or as part of the name of a company, or in the phrase “ Thorley’s Cattle Food,” in the manufacture of an unpatented article, with the recipe of which he was ac- quainted, provided that he acted without fraud; (2.) that the name “ Thorley’s Cattle Food” had become the common recog- nized designation of an article which any one might use who could produce the same article, although he might not repre- sent it to be made by any one but himself ;! (8.) that the article being the same as the plaintiffs’, the same directions for use were correctly used; (4.) that the trade-marks of the 1 See Singer Man. Co. v. Wilson, 477; Thorley’s Cattle Food Co. v. Massam, 671. 314 CONDY v. MITCHELL. parties, consisting respectively of the signature and seal, were entirely different. 561. Condy v. Mitchell. June 15, November 27, 1877, Bacon, V. C.—37 L. T. N.S. 268. Ct. of App.: James, Baggallay, and Thesiger, L. JJ.—37 L. T. N. 8. 766 3; 26 W. R. 269. SHORTLY after the dissolution of the firm of “ Bollmann Condy § Co.,” who carried on business as manufacturers of Condy’s Fluid,” and “Condy’s Ozonized Water” (those ar- ticles having been invented and formerly patented by H. B. Condy), under articles of partnership, by which the partner- ship profits, good-will, and property became, on dissolution, divisible in equal shares between the partners, H. B. Condy and Mitchell, Condy set up a separate business of his own as “* H. Bollmann Condy,” and Mitchell founded a company for the same purpose under the name of “ The Condy’s Fluid Co.” Action by Condy for an injunction to restrain Mitchell from using the name “ Condy” in the title of his company and its manufactures. Injunction refused, on the ground, (1.) that the name “ Condy’s Fluid” had come to be the name of an article of commerce made under Condy’s expired patent; (2.) that on the formation of the partnership between Condy and Mitchell, the latter acquired an equal right with the former to manu- facture the article and use the name; (3.) that this was not affected by the dissolution; (4.) that Mitchell had not acted fraudulently in the adoption of the name for his company or otherwise, nor in a manner calculated to cause his article to be mistaken for the plaintiff’s.1 1 See Singer Man. Co. v. Wilson, 477. 315 J. W. THORLEY’S CATTLE FOOD CO. v. MASSAM. 562. Seabury v. Grosvenor. June 16,1877, U. S.C.C. S. Dt. of N. Y.: Blatchford, J.— 53 How. Pr. 192; 14U. 8. Pat. Gaz. 679. THE plaintiffs being manufacturers of “ Benson’s Capeine Plasters,” which name they had registered in the U.S. Patent Office as their trade-mark, the defendant sold other plasters under the name of “ Capsicin.” : Motion for a preliminary injunction to restrain the defend- ant from infringing the plaintiffs’ rights refused, on the ground that the plaintiffs were disentitled by their own false representations of the origin and value of their plasters, the word ‘* Capeine”’ being shown to be quite unknown, and not to imply any such qualities as were described by the plaintiffs, and that it was of no consequence that they had discontinued the false statements before filing their bill. 563. In re Cornwall. (1.) June 29, 1877. U.S. Patent Office: Doolittle, Act. Comm. — 12 U. S. Pat. Gaz. 138. A DEVICE consisting of a star and crescent admitted to reg- istration as a trade-mark in respect of soap, notwithstanding that the figure of a star was already registered as a trade-mark on soap, on the ground that the use of the proposed mark was not calculated to deceive. ———— 564. J. W. Thorley’s Cattle Food Co. v. Massam. June 30, 1877. Malins, V. C.—6 Ch. D. 582; 46 L. J. Ch. 718. THE plaintiffs in Massam v. J. W. Thorley’s Cattle Food Co. began, shortly after the decision of that case, to issue adver- tisements of their cattle food, in which they stated that they alone were possessed of the secret recipe of the article. Motion by the defendants in that case for an injunction to restrain the issue of such advertisements, as being detrimental to them, refused, on the authority of Prudential Assurance Co. v. Knott; but 316 SELBY v. THE ANCHOR TUBE CO. Held, that, notwithstanding that decision, the court had now power, under the Judicature Act, 1873, s. 25, sub-s. 8, to grant an injunction in such a case. The plaintiffs’ costs made costs in the cause, but the defendants to pay their own costs in any event.! —— 565. In re Cornwall, (2.) July 7, 1877. U.S. Patent Office: Doolittle, Act. Comm. —12 U. S. Pat. Gaz. 312. THE word “ Dublin” admitted to registration as a trade- mark on soap, on the ground that the fact that the soap was not manufactured in Ireland, but in America, showed that the word was not used in its ordinary descriptive geographical sense, but as an arbitrary fancy designation.” 566. Selby v. The Anchor Tube Co. July 19,1877. Bacon, V.C.— W. N. 1877, p. 191. Tue plaintiff and defendants having been partners in a firm of tube manufacturers, who carried on business at Birmingham as “¢ The Imperial Iron Tube Co.,” andat Smethwick as “ The Birmingham Patent Iron and Brass Tube Co.,” the plaintiff became entitled, on the dissolution of the partnership, under the articles of partnership, to the Smethwick premises, and the styles and good-will of the firm, and the defendants be- came entitled to the. Birmingham premises. The plaintiff then began to carry on business on his own account as “ The Imperial Iron Tube Co.” at new premises in Birmingham, and also at the Smethwick premises, and the defendants carried on business at the old Birmingham premises, and issued cir- culars headed “* The Anchor Tube Co. (late) the works of and partners and manager in the Imperial Tube Co., Gas Street, Birmingham,” and also employed a traveller to solicit orders from the customers of the old firm. 2 See Thorley’s Cattle Food Co. v. 2 See In re Green, 478. Massam, 671. 317 MOET v. PICKERING. On motion by the plaintiff injunction granted to restrain the defendants from representing that they were lately: the partuers in the plaintiff’s firm of the Imperial Tube Company, or that they had succeeded to the business of that company, or that that company had ceased to exist, and also from solic- iting or executing orders on any such representations. — 567. Moet v. Pickering. July 23, 1877; March 29,1878. Chance. Div: Fry, J.— 6 Ch. D. 770. Ct. of App.: James, Cotton, and Thesiger, L. JJ. — 8 Ch. D.872; 47 L. J. Ch. 527; 88 L. T. N.S. 799; 26 W. R. 637. THE plaintiffs being French wine-growers, who branded on the bottoms of the corks used by them for a special quality of wine the letters “ MZ. ¢ C.,” enclosed, together ‘with a star, in a circle, and also branded the word “‘Hngland”’ on the side of each cork, the defendant Pickering had consigned to him from abroad a quantity of wine having corks similarly branded to the plaintiffs’, the wine being in the possession of certain wharfingers. Action by the plaintiffs for an injunction to restrain the de- fendant Pickering from infringing the plaintiffs’ trade-mark, and from dealing with the wine in the wharfingers’ possession, and to restrain the wharfingers, who were also made defend- ants, from parting with the wine, except under the direction of the court, and for an order on Pickering to deliver up all spuriously marked corks, and for an account and damages from him. Held, by Fry, J.: (1.) that the plaintiffs were entitled to the injunctions, order, and account; (2.) that the plaintiffs were entitled to a lien upon the wine for their costs in priority to the wharfingers’ lien for their charges; (8.) that, the wharfin- gers having only submitted to act as the court should direct upon having their charges and costs paid or provided for, and it having been argued on their behalf that, even if the plain- tiffs’ right were established, they would not be entitled to touch the bottles for the purpose of removing the spurious 318 IN RE SALAMON. corks until the charges were paid, the wharfingers, as well as Pickering, must be made liable for the plaintifts’ costs. Held, by the Court of Appeal, on appeal by the wharfin- gers: (1.) that the wharfingers were entitled to a lien on the wine for their charges, in priority to any lien of the plaintiffs for their costs, if such plaintiffs’ lien existed, which was doubted ; (2.) that the wharfingers had done nothing to dis- entitle them to their costs, and that the plaintiffs must pay such costs in both courts. — 568. In re Mitchell [T. M. A. 1875-6]. (1.) August 2, 1877. Hall, V.C.—7 Ch. D. 36; 46 L. J. Ch. 876; 26 W. R. 326; 1 Trade-Marks, 55. Motion to register the applicants as the proprietors of a trade-mark for steel pens, consisting of the letter “A.,” re- fused, notwithstanding that the applicants and their predeces- sors in business had used that letter and other letters of the alphabet as their trade-marks for many years, on the ground that a single letter was not within the definition of a regis- trable trade-mark contained in the T. M. A. 1875, and that that definition was not extended by the Act of 1876. —_+——_ 569. In re Salamon [T. M. A. 1875]. August 38,1877. Jessel, Mf. R.—1 Trade-Marks, 135. AN application for the registration of certain trade-marks on sewing-machines, consisting respectively of the words “ Howe Sewing-Machine Company,” a monogram inscribed with the same words, and the name ‘Little Howe,” having been opposed mainly on the ground that the exclusive right to use the name ** Howe” as a trade-mark belonged to the opponents, and that the applicant had never used the name as a trade-mark, nor otherwise, except as agent for them or their predecessors in business : On motion by the opponents for a direction as to how the case should be heard: Held, that the question being one of title 319 IN RE GORDON. to the marks and their user by the applicant, one of the parties should bring an action to try the right. “J always direct that these cases should be mentioned to the court, that I may decide the proper way in which they are to come before the court: that way depends on the circumstances in each case. If it be a simple question of law, it had better be by special case; if for directions as to carrying out the act, by summons at chambers ; if of disputed facts, by motion.” Ss 570. Dence v. Mason. (2.) August 8, 1877. Malins, V. C. THE defendant F. Mason, in Dence v. Mason (1), having been enjoined from using the name “‘ Brand” in connection with his articles, nevertheless continued to sell goods bearing the words “ Frank Mason ¢§ Co.'s (‘ Brand's’) Essence of Beef.” On motion by the plaintiffs defendant committed for contempt. (On December 18 he was discharged, on un- dertaking not to use the name “ Brand” until the hearing of the action.) 571. In re Warburg & Co. August 25,1877. U.S. Patent Office: Doolitile, Act. Comm.—13 U. S. Pat. Gaz. 44. APPLICATION for the registration of the words “ Cachemire Milano” as a trade-mark on silks (the words being claimed as the essential part of the mark, though used in connec- tion with the name “ A. Savie g Co.,” and a picture of Milan Cathedral), refused, on the ground that the words were either descriptive of the quality and appearance of the arti- cle, or deceptive. 572. In re Gordon. August 27,1877. U. S. Patent Office: Doolittle, Act. Comm. —12 U.S. Pat. Gaz. 517. ON an application for the registration of a strip of leaf to- bacco, intended to be wrapped round the mouth-piece of a 320 AYER v. RUSHTON, cigarette, and to vary with the size of the cigarette, as a trade-mark on cigarettes. Held, (1.) that the mere fact that the proposed trade-mark was consumed with the article to which it was attached was no objection to it ; (2.) but that the proposed trade-mark was, in fact, adapted to serve a me- chanical purpose rather than to distinguish the applicant’s goods from others, and that, therefore, registration must be refused. 573. Prince Metallic Paint Co. v. Carbon Metallic Paint Co. 1877. N.Y. Sup. Ct. — Codd. Dig. 209. Tae plaintiffs manufacturing paint, on which they placed the words “* Prince’s Metallic Paint” in a special form, the defendants, being brothers of the name of Prince, manufact- ured a paint which they called “ Lron Ore Paint,” and sold under the words “ Prince Bros. Iron Ore Paint.” Motion by the plaintiffs to continue an injunction which had been granted to restrain the defendants from infringing the plaintiffs’ rights, and using the name “ Prince,” refused, and injunction dissolved, on the ground that the defendants were entitled to use their own name so as not to deceive, and that the manner in which the defendants had used it was not intended or calculated to deceive. 574. Ayer v. Rushton. 1877, N.Y. C. P. — Codd. Dig. 229. THE plaintiff being the inventor and manufacturer of a medical preparation which he sold under the name of “ Ayer’s Oherry Pectoral,” the defendant began to make lozenges, which he called “Cherry Pectoral Troches,” and subsequently to make a liquid medicine which he put up in bottles some- what similar to the plaintiff’s, and labelled with the words, “Cherry Pectoral, for sale, wholesale and retail, by Rushton 1 See Burgess v. Burgess, 117. 21 321 HELMBOLD v. HENRY T. HELMBOLD MANUFACTURING CoO. § Co., 11 Barclay Street, New York.” He also put up over his premises a sign, with the words “ Depét of the Cherry Pee- toral Company,” and inside a notice, “* Ayer’s Cherry Pectoral, One Dollar; Rushton’s Cherry Pectoral, Fifty Cents. Which will you have?” and he instructed his employees to explain the differences between the articles to customers. Injunction which had been granted to restrain the defend- ant from using the words “ Cherry Pectoral,” and otherwise infringing the plaintiff’s rights, dissolved ; and Held, (1.) that the defendant had only traded in compe- tition with the plaintiff, and had not acted in a manner in- tended or calculated to cause his article to be mistaken for the plaintiff’s ; (2.) that the plaintiff could have no exclusive right in the words “ Cherry Pectoral,” since the first word described one of the ingredients in the compound, the wild cherry, and the other described the intended application of the compound, so that the whole term was common property and incapable of appropriation. 575. Helmbold v. The Henry T. Helmbold Manufactur- ing Co. September, 1877. N. Y. Sup. Ct.: Wesibrook, J. —53 How. Pr. 453. Henry T. HELMBOLD, having invented an article which he called “H. T. Helmbold’s Highly Concentrated Compound Fluid Extract of Buchu,” and having become bankrupt, the , plaintiff, his brother, claimed to have manufactured the article for H. T. Helmbold and his assignee in bankruptcy, and to have purchased the assignee’s rights in the preparation. The defendant company was subsequently formed and assisted by H. T. Helmbold, and sold the same compound under the same name. Motion by the plaintiff for an injunction to restrain the defendant company from so doing refused ; and Held, (1.) that the plaintiff was in any case disentitled by reason of his own false representations in continuing to use 1 See Lee v. Haley, 325. 822 BOON v. MOSS. labels guaranteeing the personal inspection and supervision of H. T. Helmbold ; (2.) that while H. T. Helmbold: could himself have sold the right to use his name, a sale by the as- signee in bankruptcy could not deprive him of the right to use it; (8.) that the same principle applied to his trade secret, even assuming the plaintiff to be acquainted with it, which H. T. Helmbold denied ; (4.) that the remainder of the title of the preparation (exclusive of the name) was purely descrip- tive and incapable of appropriation. ees 576. Boon v. Moss. September 18, 1877. WN. Y. Ct. of App.— 70 N. Y. (25 Sickels) 465. HALL, the proprietor of a newspaper called The Water- town Weekly Reunion, entered into a contract with Warren to sell to him (subject to certain conditions, including certain specified payments) “ The Watertown Weekly Reunion print- ing establishment, including the presses, machinery, type of all description, newspaper and jobbing material, tools, im- plements, etc., appertaining to the said printing business.” Warren assigned his interest under the agreement to Moss and Boon, and Hall assigned his to Flower. Boon and Moss failed after some years to make the payments, and an action was commenced between them for dissolution of partnership, etc., in which a receiver was appointed. An action was subsequently brought, by leave of the court, by Flower against the receiver, to enforce his rights under the agreement. Held, that the agreement between Hall and Warren being for a conditional sale, the title did not vest in the purchaser till the payments were made and conditions fulfilled; that the good-will of the business, including the name of the pa- per, subscription list, etc., was included in the sale; and that Flower was entitled to recover from the receiver the value of the good-will, which had been sold by him. “ The good-will of a newspaper establishment often constitutes its largest value. ...- There is one kind of good-will which has been 328 IN RE CONSOLIDATED FRUIT JAR COMPANY. said to be only a probability that customers will resort to the old place ; and another, far more valuable, when a retiring partner agrees not to engage in the same business in competition with the old estab- lishment. The good-will of a permanent newspaper establishment is generally more tangible than either.” ? 577. In re Dole Brothers. ‘ September 20, 1877. U. S. Patent Office: Doolittle, Act. Comm.—12 e U.S. Pat. Gaz. 939. AN application for the registration of the words “ Hgg Macaroni” as a trade-mark on macaroni having been refused, on the ground that the words were either descriptive of the article, or, if no eggs were used in its manufacture, deceptive ; on a renewed application based on the proviso in the U.S. Act of 1870 admitting to registration lawful trade-marks right- fully in use on July 8, 1870: ' Held, (1.) that long before the adoption of the words by Pfeiffer, the applicants’ assignor, in connection with his maca- roni, the words were in common use; (2.) that, besides this, Pfeiffer had always used the words in connection with his own name, as “ Pfeiffer’s Egg Macaroni,” and generally with a landscape picture ; (8.) and that, for both these reasons, the words “ Hgg Macaroni” alone were not a lawful trade-mark rightfully in use on July 8, 1870, and that registration must, therefore, be refused. 578. In re Consolidated Fruit Jar Company. September 20, 1877. U. S. Patent Office: Doolitile, Act. Comm. — 14 U. S. Pat. Gaz. 269. ON an application by the assignees of certain patents for screw-neck bottles and jars granted to J. L. Mason, for the registration as their trade-mark of the name “ Mason,” which they alleged that they had used on their jars, cards, circulars, etc., for many years: Held, (1.) that the name, being the name merely of a per- 1 See Hogg v. Kirby, 10. 324 COLMAN v. CRUMP. son, unaccompanied by a distinctive mark, could only be reg- istered if it were a lawful trade-mark rightfully in use on July 8, 1870; (2.) that the name was not such a lawful trade-mark, since it was the name of the inventor of a patent article attached to that article, which article the applicants had, indeed, the sole right to make, and therefore to designate by its name, until the expiration of the patents, but which article would then cease to be the exclusive property of the applicants, whereupon all makers of it would be entitled to describe it by its appropriate descriptive name ; (8.) and that the application must, therefore, be refused. _—— 579. Colman v. Crump. October 2, 1877. N. Y. Super. Ct.—40 N. ¥. Super. Ct. (8 J. & S.) 548. N. Y. Ct. of App.— 70 N. Y. (25 Sickels) 573; 16 Alb. L. J. 352. THE plaintiffs being English manufacturers of mustard, which they sold in packages labelled with the device of a bull’s head, the defendant, who was a label-printer, sold labels bearing bulls’ heads generally similar to that used by plain- tiffs. Injunction granted to restrain the defendant from infringing the plaintiffs’ rights, notwithstanding that there were points of difference between the two bulls’ heads, and that the same device had long been used by other manufacturers on other classes of goods. 70 N. ¥. 578. “It is not necessary that the symbol, figure, or device used, or printed and sold for use, should be a fac-simile or precise copy of the original trade-mark, or so close an imitation that the two cannot be distinguished except by an expert, or upon a crit- ical examination by one familiar with the genuine trade-mark. If the false is only colorably different from thé true, if the resemblance is such as to deceive a purchaser of ordinary caution, or if it is calcu- lated to deceive the careless and unwary, and thus to injure the sale of the goods of the proprietor of the trade-mark, the injured party is entitled to relief. Neither is it necessary to establish a guilty knowl- edge or fraudulent intent on the part of the wrong-doer. It is suffi- 825 McLEAN v. FLEMING, cient that the proprietary right of the party and its actual infringe- ment are shown. ” P. 580. “The fact that the same device is used upon other articles of merchandise does not take from the plaintiffs their right to its ex- clusive use on this one article of their manufacture.” + — 580. McLean v. Fleming. October, 1877. U. S. Sup. Ct. —96 U. S. Rep. (6 Otto) 245; 13 U.S. y Pat. Gaz. 913. THE plaintiff (respondent) being entitled, under the will of the previous proprietor, to a druggist’s business and good- will, first established by Dr. C. McLane in or about 1834, an important part of the business consisting of the manufacture and sale of pills known as“ Dr. C. McLane’s Liver Pills,” which pills were, from the year 1847, put up in boxes sealed on the top with a red seal bearing the name of the inventor, and inclosed in a certain wrapper containing, among other things, the name of the pills, the defendant (appellant), Dr. J. H. McLean, commenced a similar business in 1849, and from and after 1851, to the knowledge of the plaintiff or his predecessors in business, manufactured and sold pills under the name of “ Dr. McLean's” or“ Dr. J. H. McLean's Uni- versal Pills,” and placed them in boxes sealed similarly to the plaintiff’s, and enclosed in wrappers of similar color and ap- pearance, bearing the name applied by the defendant to his pills, but in 1872 he changed his wrappers, and adopted new and unobjectionable ones, on complaint made by the plaintiff. Suit by the plaintiff for an injunction to restrain the de- fendant from infringing his rights, and for an account. On appeal by the defendant from the decision of the U.S. Cireuit Ct. for the B. Dt. of Missouri, awarding an injunction with a decree for the sum of $ Held : — 1. That in trade-mark cases the original invention or pro- prietorship of the article with which the trade-mark is con- nected is not in question, but that the court proceeds on the 1 See Farina v. Silverlock, 180. 326 McLEAN v, FLEMING. ground that the plaintiff has a valuable interest in the good- will of his business, and that in this is included the trade-mark by which his goods are distinguished. 2. That a trade-mark may consist of a name, symbol, figure, letter, form, or device, if adopted and used by a manufacturer or merchant as distinctive of his goods. 3. That even common words and phrases, not invented for the purpose, may be so adopted and used, if not previously applied to the same or similar articles. 4, That a name when so adopted and used, but not other- wise, may be a good trade-mark, as against a trader or dealer of a different name. 5. But that there is no exclusive right of trade-mark in a name, even aman’s own name, as against a person of the same name. 6. But that a person will not be allowed so to use his name as to represent his goods to be those of another person of the same name. 7. That a person may have a good trade-mark for goods which he exposes for sale, though not of his manufacture, and this, although the name of the actual manufacturer is included in the device. 8. That, to constitute an infringement of trade-mark, exact similitude is not required, but that an infringement has been committed when ordinary purchasers buying with ordinary caution are likely to be misled. 9. That positive proof of fraudulent intention is not required when probability of deception has been produced. 10. That it is not necessary to prove infringement of a specific trade-mark if the defendant has acted with fraudulent intention, and has refused to change his course of conduct. 11. That an injunction will not in general be refused only on the ground of delay. 12. But that, although the injunction may be granted, yet, where there has been great delay, an account may be refused. 13. That, in the case in question, a probability of deception had been established, and the injunction must be continued. 327 McLEAN v. FLEMING, 14. And that the plaintiff must, therefore, have his costs in the court below. 15. But that, on account of the plaintiff’s great laches, the account granted by the court below must be refused. 16. And that, that being so, the appellant was entitled to his costs of the appeal.? 1 The points of chief importance de- cided by this case were: (1.) that long- protracted delay on the part of the complainant in bringing his suit will not prevent the issuance of an injunc- tion; but (2.) that where there has been such delay an accounting will be re- fused. The first of these points had been considered in numerous cases, and while, perhaps, the current of authority was strongly in favor of the view announced by the Supreme Court, there were not a few precedents of weight which made against it. It is to be remarked that there has been a broad divergence in the United States from the rule laid down in England; and the American reader may safely dismiss from his mind what- ever has been said elsewhere than in the courts of his own country. The point is one which was neces- sarily brought to the surface at an early period in ‘the history of trade-mark litigation. It was first prominently mentioned by Judge Story, who inti- mated that the defence was one of very doubtful force. Zaylor v. Carpenter, 78. Judge Woodbury referred to it in his charge to a jury in the case of Taylor v. Carpenter, 83, decided in 1846; but, in effect, only went so far as to decide that the acquiescence must be at least for a period equal to the time fixed by the statute of limitations. In 1849 the question arose in Amos- keag Man. Co. v. Spear, 100, and was answered by Judge Duer, who fore- shadowed what may be taken to be the final disposition which was made by the federal court of last resort a quarter of a century later. Judge Duer writes as follows :— “ The allegation that there has been such an acquiescence for some years on the part of the plaintiffs, in the conduct of the defendants, as to bar the former from the relief they now seek, I cannot regard. Not only is the allegation suf- ficiently disproved, but I am satisfied that the doctrine of an acquiescence operating as an absolute surrender of an exclusive right is inapplicable to the case. The consent of a manufacturer to the use or imitation of his trade- mark by another may, perhaps, bejustly inferred from his knowledge and si- lence ; but such a consent, whether ex- pressed or implied, when purely gratui- tous, may certainly be withdrawn ; and when implied, it lasts no longer than the silence from which it springs. It is, in reality, no more than a revocable license. The existence of the fact may be a proper subject of inquiry in taking an account of profits, if such an account shall hereafter be decreed ; but even the admission of the fact would furnish no reason for refusing an injunction.” Substantially this view was adopted in Gillott v. Esterbrook, 269, and other cases, but was, for a time, unsettled by a number of decisions. In Amoskeag Man. Co. v.Garner, 600, which arose in 1869, and which was a case where the circumstances were prob- ably such as to prevent the issuance of an injunction whatever the conclu- sion in respect of the point under dis- cussion, Judge Barnard held that an acquiescence of eight years created an estoppel which could not be overcome. During the following year, Judge 828 CARVER v. BOWKER. 581. Carver v. Bowker. November 10, 1877. Lancaster Chane. : Little, V. C.—1 Trade-Marks, 252. THE plaintiffs, carrying on business at Manchester as mer- chants and shippers of cotton goods, on which they used cer- tain combinations of marks, of which combinations the first consisted of a heading of specially colored stripes, certain other stripes, the number “109,” the figure of a coroneted eagle, the words “Carver Irmaos,” the initials “* R. H.,” and the name of the firm of Portuguese importers, and the other combinations were substantially the same, but with varia- Blatchford, holding the Circuit Court of the United States for the Southern District of New York, decided in Dela- ware §& Hudson Canal Co. v. Clark, 327, that an acquiescence of eleven years was equivalent to a license which estopped the complainants. Judge Blatchford’s opinion, was followed in a number of instances; contemporane- ously with which adjudications were made that tended to negative his view. Perhaps the most marked case in this group was that of Rogers v. Philp, 352, which arose in the Supreme Court of the District of Columbia in 1872. The facts showed that the plaintiffs had permitted a promiscuous piracy of their mark for nearly a quarter of a century, which the court said was certainly fatal to their suit whatever the original char- acter of their rights. But, although on the hearing of a motion for a prelimi- nary injunction the views of the court had been carefully formulated at con- siderable length, upon the merits, a per- petual injunction was granted. Browne on Trade-Marks, § 684. In 1876 there was a pointed return to the broader and better doctrine of Judge Duer, in a well-considered opin- ion by Judge Barrett, delivered in the case of Amoskeag Man. Co. v. Garner, in connection with which Judge Bar- nard had in 1869 arrived at a different conclusion. In closing his opinion Judge Barrett said : — “There is, therefore, no just reason why the injunction, at least, should be refused, upon the ground of laches. It was properly refused, pendente lite. The plaintiff’s case was not so clear as to warrant the interference of the court before the hearing upon the pleadings and proofs. As to the correctness of that interlocutory decision, there can scarcely be two opinions ; that is, as to the result. Much of the reasoning upon the general merits of the case was un- necessary, and it certainly is not bind- ing upon the Special Term, sitting to try the issues, especially as the facts fairly deducible from the testimony now be- fore the court differ in many respects from what appeared in the ex parte af- fidavits read upon the motion. “ There must, therefore, be judgment for the plaintiff, enjoining the defend- ants, but without damages or account of profits, and, under all the circum- stances of the case, without costs.” Whatever uncertainty existed in 1878 was set atrest by the opinion of the court in the principal case. In Cons. Fruit Jar. Co. v. Thomas, 668, decided by Judge Nixon, holding the Circuit Court of the United States for the District of New Jersey, the rule of McLean v. Fleming, was applied upon a motion for a preliminary injunction. 829 IN RE PARKER. tions in the number and color of the stripes, and in the num- ber, for “*109” being substituted “406,” ‘ 409,” * 413,” etc., the defendant, who carried on a similar business at Man- chester, used on his goods combinations of marks resembling those of the plaintiffs. Suit by the plaintiffs for an injunction to restrain the de- fendant from infringing their rights. Held, (1.) that as to the component parts of the various combinations, the eagle and the number “109” were in com- mon use and descriptive of quality ; (2.) that, although the remaining numbers were not in common use, they could not be exclusively appropriated ;1 (8.) that the remaining parts of the combinations were distinctive of the plaintiffs’ goods ; (4.) that an injunction must be granted to restrain the de- fendant from the use of the combination marks as a whole, and also of the individual component parts, with the excep- tion of the eagle and the numbers, on any goods to be ex- ported for sale in the Oporto market; (5.) and that the plaintiffs were further entitled to an account of profits or to damages, the defendant not being able to establish a system- atic infringement amounting to public user. 582. In re Parker. November 13, 1877. U. S. Patent Office: Doolittle, Asst. Comm. — 18 U. S. Pat. Gaz. 323. ON an application for the registration as a trade-mark of the figure of a boy, together with certain words surrounded by a border of lines, and printed in minute squares upon a ecard, for the purpose of serving as a pattern for sampler- work to be wrought in the squares, and then the whole to be attached to a piece of abrasive paper and used in firing fric- tion matches : Held, that the combination in question was not a trade- mark but a design, inasmuch as it was not intended to be attached to an article as a distinguishing feature, but was it- 1 See Kinney v. Basch, 642. 330 IN RE BLOCK & CO. self the article, and, therefore, that application should have been made to patent it as a design, and that registration as a trade-mark must be refused. ——_+——- 588. Twentsche Stoom Bleekery Goor v. Ellinger & Co. November 15, 1877, Malins, V. C. —26 W. R. 70. On motion by the plaintiffs, a Dutch bleaching company, injunction granted to restrain the defendant, a commission agent, from infringing the plaintiffs’ trade-marks; and Held, (1.) that the fact that the plaintiffs’ marks were not registered, and that the writ in the action was issued on a date (July 27, 1877) subsequent to the date (Jan. 1, 1877) fixed by the T. M. A. 1876, as the date before which a trade- mark must have been registered to entitle its proprietor to sue for an infringement, and before the royal assent (Aug. 15, 1877) had been given to the T. M. A. 1877, by which the time was extended to Jan. 1, 1878, did not disentitle the plaintiffs to their remedy ; (2.) that the assertion of the de- fendant that the goods had been marked, packed, and ex- ported without his knowledge was no defence ; (8.) that the defendant must pay all the costs, though it might have been otherwise if he had submitted at once, having regard to the fact that no proper notice had been given him by the plain- tiffs before the issue of their writ.t —\+—_ 584. In re Block & Co. November 22,1877. U. S. Patent Office: Spear, Comm.—14 U. S. Pat. Gaz. 235. AN application for the registration of a trade-mark having been refused, on the ground that the proposed mark did not constitute a registrable trade-mark, an application was made for the registration of an essentially different mark, which was granted, but an application for the second application to 1 See Millington v. Fox, 63. 331 ROBINSON v., FINLAY. be considered and treated as an amendment of the original application was refused. On an application for the return of the fee paid upon the filing of the original application as having been paid by mistake : Held, that a fee paid upon an application could only be re- turned when it had been paid by actual mistake, such as when it was a payment in excess of the proper amount, or was not required by law, and that the application must be refused. eer ny} 585. Robinson v. Finlay. Ward v. Robinson. November 24, 1877; May 14, 1878. Bacon, V.C.—9 Ch. D. 489. Ct. of App.« James, Baggallay, and Bramwell, L. JJ.— 9 Ch. D. 487; 39 L. T. N.S. 398; 27 W. R. 294. A CERTAIN group of five trade-marks, consisting respec- tively of Robinson’s name, his coat of arms, his crest, a figure of an elephant, and a varying number called a range number, together with a heading of colored threads, having been ex- clusively used on cotton goods, which, in the habitual course of business, were manufactured by Ward, exported by Robin- son, and consigned to Galbraith, who sold them, after bleach- ing, at Rangoon (three of such marks having been previously used by Robinson, one, in a slightly different form, by Rob- inson and Galbraith, while the other one was new) ; after the interruption of the connection, Robinson continued to use the same group of marks, and Ward began to export goods bear- ing substantially the same marks, through Finlay. Cross actions commenced respectively by Robinson against Finlay, and by Ward against Robinson, for an injunction to restrain the use of the group of marks. Heid, by the V. C.: That the marks were indicative of goods selected by Robinson, and exported and sold on his responsibility, and that an injunction must be granted in the first action. 882 IN RE ORR-EWING & CO. Held, by the Ct. of App.: That, inasmuch as the group of marks had never been used except on goods which had passed through the hands of all the three parties (although separately some of them had been so used), the group of marks, as a whole, was indicative of goods which had passed through that particular course of trade, that neither of the parties was enti- tled to the exclusive use of the group, and that both actions must, therefore, be dismissed without costs. Per Baggallay, L. J. “It being clear upon the evidence that the designs were designs in which three persons were interested for the purpose of carrying on a business or adventure in which all three were interested, it follows that, upon the termination of that adven- ture, none of the three could claim any title against the other.” } ——_+—_ _ 586. In re Orr-Ewing & Co. [T. M. A. 1875-6]. November 15, 1877; June 7, 1878. Hall, V.C.—8 Ch. D. 798; 47 LJ. Ch. 180; 38 LZ. T. N.S. 313; 26 W. R. 259; 1 Trade-Marks, 211. Ct. of App.. James, Baggallay, and Bramwell, L. JJ.— 8 Ch. D. 7943 47 L. J. Ch. 807; 88 L. T. N.S. 695; 26 W. R. 777, AN application having been made for the registration of certain trade-marks in respect of cotton goods, consisting of triangular green labels or tickets with a device in gold, being a curtain bearing an inscription and held up by supporters, the Committee of Experts at Manchester placed such marks in the second class as being not entitled to registration, on the ground that the shape and style and principal component parts of the marks were in common use in the trade, though the exact combinations were only used by the applicants. On motion by the applicants for a declaration that the marks were true trade-marks within the Trade-Marks Regis- tration Acts, and for a direction to the registrar to proceed with the registration : Held, by the V. C.: That each of the tickets, looked at as a whole, was distinguishable from the other tickets in use, and that the motion must be granted. 1 It is here ruled that a person may have a trade-mark upon goods selected by him. See Godillot v. Hazard, 461. 383 METZLER v. WOOD. Held, by the Ct. of App.: That the Committee of Experts were constituted by the Trade-Marks Registration Acts and Rules a tribunal to decide as to the validity or invalidity of cotton marks ; that their decision should not be reversed, ex- cept on proof that they had proceeded on some wrong prin- ciple, or in some improper manner ; that, in the case in ques- tion, this was not established ; and that the motion should have been refused. a 587. Metzler v. Wood. December 17, 1877; April 1, 1878. Malins, V. C.— 8 Ch. D. 608. Ct. of App.- James, Cotton, and Thesiger, L. JJ.— 8 Ch. D. 606; 47 L. J. Ch. 625; 38 L. T. N.S 541; 26 W. RB. 577. Tue plaintiffs being the proprietors of “ Hemy’s Royal Modern Tutor for the Pianoforte,’ published in a yellow cover bearing that title, the defendant employed Hemy to prepare a new edition of an obsolete work called “ Jousse’s Royal Standard Pianoforte Tutor,’ and published it in a gray cover with the title “ Hemy’s New and Revised Edition of Jousse’s Royal Standard Pianoforte Tutor,” the name “ Hemy’s’”’ being in large and conspicuous letters. Injunction granted to restrain the defendant from infring- ing the plaintiffs’ rights; and Held, by the V. C.: (1.) that the plaintiffs were not disen- titled by reason of a representation that this was the 600th edition of the plaintiffs’ work, it being proved to be a trade custom to style every issue of 250 copies a new edition, nor by a statement that their work was specially revised by Hemy, the words being properly interpreted to mean that it was a specially revised edition, but not to distinguish it from all previous ones in that respect; (2.) that the plaintiffs hav- ing set up claims as to copyright and gone into the inter- nal structure of the defendant’s work, but failed on that point, the defendant must pay one half, instead of the whole, of the plaintiffs’ taxed costs.! 1 See Pidding v. How, 60. 384 BAIN v. MUNRO. 588. Bain v. Munro. January 10, 1878. Ct. of Session. — Ct. of Sess. Cas. 4th Ser. V. 416; 15 Scot. L. Rep. 260. ACTION to recover from the widow and executrix of a med- ical man a sum of money guaranteed by the defendant’s hus- band to the plaintiff. Held, by the Lord Ordinary (Lord Curriehill) and the court, that a sum of money paid to the defendant by way of purchase money for the good-will of her husband’s medical practice, with a recommendation from herself, belonged to the defendant, and not to the estate of her deceased husband, on the ground that the good-will of a medical practice was per- sonal and not transmissible, and that the money was, in fact, paid for the defendant’s recommendation. Per Lord Curriehill. “There is truly no such thing as good-will in the case of a business carried on by a professional man, such as a physician, surgeon, or law agent, whose success depends entirely upon his own personal skill. It is quite different in the case of a trade or manufacture, where the employer may have the possession of patents or trade secrets, or may, by long exercise of his trade or manufacture in some particular locality, have drawn together skilled artisans and attracted the custom of a district to his establishment. In such a case it is not the individual skill of the employer, but the reputation which his establishment has acquired, which creates that incorporeal, but frequently valuable, estate known as the ‘ good-will’ ofa trade. But there is no such thing in the case of a professional man. His busi- ness dies with him, and the man who comes after him in the district must depend for success upon his own exertions. It is quite true that such businesses are occasionally sold; but what is thus sold in the case of a living professional man retiring from business is truly the per- sonal recommendation which the seller gives to his former clients or patients in favor of his successor, coupled with the predecessor’s own retirement from business. But where the physician or law agent is dead, nothing of the kind can take place. He has been removed by death from all possibility of competing with the new doctor or the new solicitor, and his voice being forever silenced, he cannot give any recommendation to his clients or patients. But if the family of 335 IN RE POWELL; IN RE PRATT. the deceased professional man offer to recommend a successor to the clients or patients of the deceased on receiving a money equivalent, what is paid for is merely the recommendation of the living members of the family of the deceased.” Per the Lord Justice Clerk. “It is quite clear that a distinction has always been drawn between the good-will of a trade, where the individual skill of the trader has often less to do with the success of the undertaking than other circumstances connected with it, and a pro- fession which is only carried on with success by means of the brain and other personal qualifications of the person conducting it. The distinction which has been drawn between these is thorough, and so the law has been laid down in these cases which have been quoted to us. The benefit derived from the exercise of a profession seems to me to be so personal to the individual exercising it that nothing can be said to transmit to the effect of being assets in the hands of an ad- ministrator.” Per Lord Ormidale. “TI think itis impossible to hold that a med- ical man’s practice can transmit, and that the value of the good-will of such a practice can be considered an asset in the deceased’s execu- tory.” Per Lord Gifford. “TI think it is quite clear that there may be the good-will of the practice of a professional man as well as of a trade. You have instances of this in the case of medical men every day. It is said that this is only the case when both parties are living, the retiring doctor and his successor. But I cannot assent to this. I see nothing to prevent a medical man bequeathing his practice to a friend.” 589. In re Powell; In re Pratt, [T. M. A. 1875]. January 12,1878. Jessel, M. R.—1 Trade-Marks, 237. A REPRESENTATION of a willow-pattern plate having been used by the former of the above parties since 1864 as his trade-mark on his “ Goodall’s Yorkshire Relish,” and by the latter of the parties since 1868 on his “ Clud Sauce,” and each of the parties having applied for the registration of the device as his trade-mark, and opposed the application of the other: 336 BLACKWELL v. DIBRELL. On two summonses taken out by the parties by direction of the judge and adjourned into court: Held, that, inasmuch as each of the parties had used the mark independently and bond fide for several years, the mark should be registered in both names. ——_+——. 590. Blackwell v. Dibrell. January 14,1878. U. S. C. C. E. Dt. of Va.: Hughes, J. —14 U.S. Pat. Gaz. 633. THE plaintiffs being manufacturers of tobacco at Durham, in North Carolina, who labelled their tobacco with the figure of a Durham ox and the words “Durham Smoking Tobacco” (their title being derived as stated in “ Blackwell v. Armis- tead”’), the defendants manufactured tobacco at Richmond, Virginia, and labelled it in the same way, except that the head and neck of the bull were substituted for the entire figure. Suit for an injunction to restrain the defendants from in- fringing the plaintiffs’ rights. Held, (1.) that even if W. A. Wright (through whom the defendants claimed to be entitled to use the label) had, as he alleged, adopted the label used by the defendants before Green, through whom the plaintiffs claimed, had begun to use the label used by them, yet he had lost whatever rights he had in the mark by abandonment and disuse for eight or nine years from 1861;1 (2.) that during that period of disuse the name had acquired a local signification, as indicating tobacco grown at the town of Durham; (8.) that whether the plaintiffs had or had not an exclusive right in the mark as against other manu- facturers at Durham, they were at all events entitled to a rem- edy against the defendants, who did not carry on business at Durham, and that an injunction must be granted, with an account. “That the right to use a trade-mark may be lost by abandonment or disuse is too clear to need argument or the support of authority.” 1 See Blackwell v. Wright, 466. 22 3387 SIEGERT v. FINDLATER. 591. Siegert v. Findlater. January 15, 1878. Chane. Div.: Fry, J.—7 Ch. D. 801; 47 L. J. Ch. 233; 38 L. T. N.S. 849; 26 W. R, 459. Dr. SiecGERT having in 1830 commenced manufacturing at Angostura (since 1846 renamed Ciudad Bolivar), in Vene- zuela, a fluid which he termed “Aromatic Bitters,” and sold in peculiarly shaped bottles, enclosed in wrappers printed with descriptions of the virtues and uses of the preparation, in par- allel columns of Spanish, English, and German, and under- neath in French, the heading of the centre column being “ Aromatic Bitters, prepared by Dr. Siegert at Angostura (now Ciudad Bolivar),” and the fluid having generally acquired the name of “ Angostura Bitters,” though not so termed by Dr. Siegert ; in 1870 Dr. Meinhard began at Ciudad Bolivar to make and sell another preparation in bottles similarly shaped to Dr. Siegert’s, with similar descriptions on the wrap- pers in the same languages similarly arranged, the heading of the centre column being “‘ Aromatic Bitters, prepared by Teo- doro Meinhard, Ciudad Bolivar, formerly Angostura,” which inscriptions he somewhat altered in 1874, after the suit of Siegert v. Ehlers, in Trinidad, so that the new heading was. “ Angostura Bitters, prepared by Teodoro Meinhard, Ciudad Bolivar, formerly Angostura,” and across the three columns the words “ Angostura Bitters” were printed in red letters. Action by the successors in business of Dr. Siegert, who had in 1875 removed their business to Port of Spain, in Trinidad, and thereupon somewhat varied their wrappers, adopting the term “ Angostura Bitters” for the first time, so that the head- ing now ran “ Aromatic Bitters, or Angostura Bitters, pre- pared by Dr. Siegert, at Angostura (now at Port of Spain, Trinidad),” and who, after the commencement of the action, again changed their wrappers, for an injunction to restrain an infringement by the English agents of Dr. Meinhard. Held, (1.) that Meinhard had acted in a manner intended and calculated to deceive, and which had deceived ; (2.) but that the plaintiff was not entitled to the exclusive use of the 338 IN RE FARINA. term “ Angostura Bitters,” since that had become the name of an unpatented article which any one who could discover the secret recipe might make and call by its name, although it had hitherto been made by only one firm, because they alone knew the secret ;! (8.) that a defence, based on the plaintiffs being disentitled by reason of misrepresentation in their new wrap- pers, failed, there being, in the first place, no substantial mis- representation, and the label having, in the second place, not been adopted till after the commencement of the action; (4.) and, therefore, that an injunction must be granted to restrain the defendant from using the word “ Angostura,” or the words ‘“* Angostura Bitters,” in such a way as to be calculated to de- ceive, but not so as to prevent their being applied to an article identical with the plaintiffs’, by whomsoever made. “It is to be observed that the person who produces a new article, and is the sole maker of it, has the greatest difficulty (if it is not an impossibility) in claiming the name of that article as his own, because, until somebody else produces the same article, there is nothing to distinguish it from. No distinction can arise from using the name of the class so long as the class consists of only one species, for then the name of the species and the name of the class will be the same.” —>——. 592, In re Farina [T. M. A. 1875]. (1.) January 17, 1878. Hall, V. C.— 26 W. R. 261. J. M. Farina and his predecessors in business having long manufactured Eau-de-Cologne at Cologne, which was sold in bottles bearing a label on which was printed Farina’s signa- ture, with a peculiar flourish, and with a medallion of his family arms in the upper left-hand corner, and he having reg- istered this label as his trade-mark in Germany and England, another manufacturer of Eau-de-Cologne, who used a label on his bottles very similar to Farina’s, but having a different medallion in the corner, obtained registration in Germany, and applied for registration in England, of a medallion identical 1 See Stegert v. Ehlers, 482. 839 IN RE HYDE & CO. with that contained in the plaintiff’s label, asserting that it was also his own family arms. Motion by the registered proprietor for a declaration that the applicant was not entitled to registration, and to restrain him from taking further proceedings with a view to registra- tion, refused, on the ground that the question whether regis- tration should be allowed must depend on whether an injunc- tion would be granted in an action independent of the regis- tration acts, and that in the case in question the medallion, used alone, was not so similar to the label with the medal- lion in the corner as to be calculated to deceive. —_+——_- 593. In re Hyde & Co. [T. M. A. 1875]. January 18, 1878. Jessel, M. R.— 7 Ch. D. 724; 88 L. T. N.S. 777; 26 W. R. 625; 1 Trade-Marks, 245. Hype & Co. obtained the registration of the words “ Bank of England,” which they had used on sealing-wax for upwards of forty years as their trade-mark on that article, notwith- standing that the words had been used by various other seal- ing-wax makers for different periods up to thirty years, and for at least six years to Hyde & Co.’s knowledge. On motion by other firms of manufacturers of sealing-wax for the removal of the mark from the register : Held, (1.) that where an old mark had been used habitually by more than three firms on the same class of goods, it had become a common mark and incapable of appropriation ; (2.) that this was the case with the words in question, and that the registration must, therefore, be rescinded; (8.) that Hyde & Co. having registered a mark to which they were not enti- tled, and having declined until the hearing of the motion to consent to the rectification of the register, they must pay the ’ costs of the motion, notwithstanding that the firms moving in the matter had allowed the mark to be placed on the register without opposition. 340 IN RE HALL & CO. 594. Hinrichs v. Berndes. January 18, 1878. Jessel, M. R.—W. N.1878, p.11; L. J. Notes of Cas. 1878, p. 11. Morton for an injunction to restrain the publication of certain libellous statements refused ; but s Held, that if a plaintiff in an action of libel had obtained a verdict, and the libel were repeated, damages might be given at the hearing for the past libel, and at the same time its continuance in the future be restrained by injunction. —_—— 595. Marcovitch v. Bramble, Wilkins & Co. January 24, 1878. Malins, V. C. ON motion to commit for contempt of court an auctioneer, who had had served on him a notice of an injunction which had been granted to restrain his firm from offering for sale a parcel of cigarettes marked with the plaintiff's trade-mark, the words “Vanity Fair,” and who had nevertheless offered them for sale, but without success, he supposing the notice of injunction to require some further official authentication : Held, that while the defendant had made himself liable to committal, under the circumstances, he should only be required to submit to the injunction and pay the costs. —_+-——_- 596. In re Hall & Co. In re Atkinson. February 2, 1878. U. S. Patent Office: Doolittle, Act. Comm. —13 U. 8S. Pat, Gaz. 229. On two separate applications for the registration of the name “ Calhoun” as a trade-mark on ploughs : Held, that although the name had, when first used, been the valid trade-mark of the firm of Calhoun and Atkinson, under the latter of whom both applicants claimed, it had since then become publici juris by being used by a number of 341 EX PARTE THE KING OF SAXONY. firms without opposition by the representatives of Calhoun and Atkinson, and that registration must, therefore, be re- fused in both cases. Sees 597. In re Horsburgh [T. M. A. 1875]. & February 3, 1878. Jessel, M. R.—1 Trade-Marks, 260. THE registered proprietors of a trade-mark used by them on lubricating oils, and consisting of a certain device with the word “ Valvoline,” opposed an application by other oil mer- chants for the registration in their name of another trade- mark, consisting of an entirely different device with the word “ Valvoleum,” on the ground that it was calculated to pro- duce deception. On summons adjourned into court : Held, (1.) that each of the words in question was simply equivalent to “Valve Oil,” and, therefore, merely descriptive of the use of the article and incapable of appropriation, al- though, if the words were ornamented in some special man- ner, the manner of ornamentation might be claimed; (2.) that the devices used in combination with the words being per- fectly distinct, each might be registered with or without the additional word, the device being the essential particular, which must be encroached upon for the trade-mark to be in- fringed; (8.) that the enactment in § 6 of the T. M. A. 1875, forbidding the registration of any words the exclusive use of which would not, by reason of their being calculated to de- ceive or otherwise, be deemed entitled to protection in a court of equity, has reference to deceptiveness inherent in the mark itself, and not to any question of comparison or similarity be- tween two or more trade-marks.” yes 598. Ex parte the King of Saxony [T. M. A. 1875]. February 7, 1878. Hall, V. C.—1 Trade-Marks, 245. Tue King of Saxony being the proprietor of certain long- established marks for porcelain, which had been registered in 1See McLean v. Fleming, 580. 2 See Burnett v. Phalon, 277. 342 BRAHAM v. BEACHIM. England, opposed an application by another person for the registration in the latter’s name of certain marks for porcelain, on the ground that they so nearly resembled his own regis- tered marks as to be calculated to deceive. On an ex parte application on behalf of the King of Saxony for a direction as to the mode of trial : Held, that the case should be heard on motion, but that leave should be given to the other party to give notice of mo- tion for the following week to have the case heard in some other way, if he wished to do so. 599. Braham v. Beachim. (1.) February 12, 1878. Chanc. Div.: Fry, J.—7 Ch. D. 848; 47 L. J. Ch. 348; 388 DL. T. N. S. 640; 26 W. R. 654. THE principal plaintiff, Countess Waldegrave, being the owner or lessee of all the collieries within the parish of Rad- stock, except one very small piece, and raising and selling the coal therefrom under the style of “ The Radstock Coal Com- pany,” the defendants began to sell coal under the same title ; after which the plaintiff changed her style to “ The Countess Waldegrave’s Radstock Collieries,” and the defendants adopted the style of “* The Radstock Colliery Proprietors,” and, upon remonstrance, of ‘ The Radstock Coal Company Colliery Pro- prietors,” in newspapers and on their office blind, although they were never entitled to raise coal within the parish of Radstock, nor, until after the commencement of the action, within any part of the district through which the seams of Radstock coal extended. Action by the Countess and her trustees for an injunction to restrain the defendants from infringing their rights. Held, (1.) that the defendants were not entitled to call themselves “‘ The Radstock Colliery Proprietors,’ since that was calculated to attract to them custom intended for the plaintiff as practically the only colliery proprietor in the par- ish, as well as the largest proprietor in the district ; (2.) that the defendants were not entitled to style themselves proprietors 343 IN RE PATON. of collieries at Radstock, since that designation also pointed to the parish, and, therefore, to the plaintiff's works; (8.) that the course of conduct adopted by the defendants was calcu- lated to deceive, and that proof of actual damage having been sustained by the plaintiff was, therefore, not requisite; (4.) that an injunction must, therefore, be granted to restrain the defendants from using either of the above appellations; (5.) but that this injunction should not extend to prevent the de- fendants from adopting those appellations if they should at any time become owners or lessees of collieries within Rad- stock parish.} 600. In re Lisner. February 14, 1878. U. S. Patent Office: Doolitile, Act. Comm. — 18 U. 'S. Pat. Gaz. 455. Own an application for the registration of a trade-mark in respect of “ fancy goods:” Held, that although a trade-mark might be registered on a single application for an entire class of merchandise, it could not be so registered for the numerous classes of goods included in the term “ fancy goods,” and that registration must, there- fore, be refused until the particular class of goods in respect of which the application was made was more clearly specified. —+——— 601. In re Paton [T. M. A. 1875]. March 1, 1878. Jessel, M. R.—1 Trade-Marks, 285. AN application for the registration of the word ‘ Alloa” as the applicants’ trade-mark for woollen yarns being opposed, — On motion for a direction as to the manner in which the case should be heard: Held, (1.) that the case should be heard on summons taken out by the opponents and adjourned into court; (2.) that a delivery at the Trade-Marks Registry Office by the opponents’ solicitors of a copy of the notice of the opposition motion, to- 1 See Newman v. Alvord, 282. 844 FULLWOOD wv. FULLWOOD. gether with a copy of the indorsement of acceptance by the applicants’ solicitors, was a sufficient compliance with the re- quirement in the Instructions to Applicants for Registration (paragraph 87), for notice of the opposition motion having been brought before the court to be given to the Registrar of Trade-Marks, by the delivery at the office by the opponents’ solicitors of a copy of the notice of motion, with an indorse- ment of service on the applicants, signed by the opponents’ solicitors, and that the personal service on the applicants and the indorsement might be dispensed with. _ 602. Fullwood v. Fullwood. (2.) March 5, 1878. Chane. Div.: Fry, J.—9 Ch. D.176; 47 L. J. Ch. 459; 38 L. T. N. S. 880; 26 W. R. 485. THE plaintiff carrying on at Somerset Place, Hoxton, the business of an annatto manufacturer, established by his father in 1785, under the name of “ R. J. Fullwood ¢ Co.,” the de- fendants, one of whom had formerly been the plaintiff’s part- ner, but had sold his interest to the plaintiff, began to carry on the same business under the name of * #. Fullwood § Co.,” and to put out advertisements, in which they described them- selves as “ late of Somerset Place, Hoxton, Original Manufact- urers of Liquid and Cake Annatto,” and their business as having been “ Established in 1785.” Action by the plaintiff for an injunction to restrain the de- fendants from representing their business to be identical with or similar to his own. Held, (1.) that the defendants had acted in a way intended and calculated to produce deception; (2.) that the fact, if it were established, that the plaintiff had delayed till November, 1876, to commence his action, he having been aware of the defendants’ conduct early in 1875, was no defence, the period fixed by the statute of limitations not having elapsed; (3.) and that the injunction must be granted. “The right asserted by the plaintiff in this action is a legal right. He is in effect asserting that the defendants are liable to an action - 845 HAGG v, DARLEY. for deceit. It is clear that such an action is subject to the statute of limitations, and it is also clear that the injunction is sought merely in aid of the plaintiffs legal right. In such a case the injunction is, in my opinion, a matter of course if the legal right be proved to exist. In saying that, I do not shut my eyes to the possible existence in other cases of a purely equitable defence, such as acquiescence or ac- knowledgment, and the various other equitable defences which may be imagined. But mere lapse of time, unaccompanied by anything else, and to that I confine my observations, has, in my judgment, just as much effect and no more in barring a suit for an injunction as it has in barring an action for deceit.” 4 —_+_—_ 603. Frese v. Bachof. (2.) March 22, 1878. U.S.C. C.S. Dt. of N. Y.: Wheeler, J.— 13 U.S. . Pat. Gaz. 635. THE plaintiffs being a firm of tea-merchants, who sold “ Hamburg Tea” in a peculiar form of package, the tea being enclosed in long cylindrical parcels with pink wrappers, and with crimson papers of directions and yellow ones of warning tied in, and having a white label with the firm name within a circle pasted across the ends of the string, and another white label with the same and the words ** Hamburg Hopfen- sack, 6’ embossed thereon, pasted on-the package, the defend- ant at first put up his tea in a precisely similar manner, with the firm name and address, but after the commencement of the suit discontinued the use of the firm name and address, and substituted his own. Injunction granted to restrain the defendant from using packages similar to those of the plaintiffs, and an account ordered.? —+——_ 604. Hage v. Darley. March 25, 1878. Bacon, V. C. —47 L. J. Ch. 5673 88 L. T. N.S. 312. Tue plaintiff purchased from the “ Government Sanitary Company,” composed of the defendant and three others, the 1 See McLean v. Fleming, 680; Cons. 2 See Williams v. Johnson, 150. Fruit Jar Co. v. Thomas, 668. 346 STEUART v. GLADSTONE. good-will of their business of manufacturing certain fluids and soaps known as the “ Government Carbolie Disinfectants” (on which occasion the defendant and his partners covenanted with the plaintiff not to manufacture or sell disinfectants for fourteen years, nor for the same time to disclose the secrets of the manufactures in question), and carried on the busi- ness of the company under the old name with the defendant as his manager. Action by the plaintiff, alleging that the defendant had left his employ and set up in business as the “ Old Government Sanitary Company,” and was committing other breaches of the covenant by communicating the secret to his workmen, etc., and claiming an injunction to restrain the defendant from using the name, carrying on the manufacture of disin- fectants, communicating the secret, etc. Demurrer by the defendant overruled, on the ground, that (1.) the defendant had both pleaded and demurred without the leave of the court, under Order XXVIII. Rule 5; (2.) the covenant was not too wide or unreasonable. 605. Steuart v. Gladstone. March 25, 1878 ; March 4, 1879. Chance. Div.: Fry, J.—10 Ch. D. 646; 47 L. J. Ch. 423; 88 L. T. N. 8.557; 26 W. R. 657. Ct. of App.: Jessel, MM. R. ; James and Bramwell, L. JJ. —10 Ch. D. 626; 40 L. T. N. S. 145; 27 W. RB. 512. PARTNERSHIP action. The plaintiff had been expelled from the defendants’ firm of commission merchants, in which he had been a partner, and which was carried on under articles, one of which provided that a retiring partner should receive the share in the part- nership property to which he was entitled upon the basis of annual accounts taken, under another article, of the partner- ship “estate and effects,” provision being thereby made for a fair valuation and appraisement of all the particulars included in such accounts, which might be in their nature susceptible of valuation, but no mention being made of the good-will of the business. 847 WARD v. DRAT. Held, on appeal, that the share of partners in the good-will of a commission business not being ordinarily estimated in calculating their annual share of profits, and it not having been so in the present case, the good-will could not be taken into account and valued as being included in the partnership “estate and effects.” —+—_——_ 606. Saxby v. Hasterbrook. “March 25, 1878. C. P. Div. — 3 C. P. D. 339; 27 W. R. 188. Action for damages, and an injunction to restrain the publication of statements with regard to certain patents, the property of the plaintiff, which statements were found by the jury to be libellous. Held, that the question of libel or no libel having been decided by the verdict of the jury, the injunction must be granted. Per Lindley, J. “The principle upon which the courts of equity have acted in declining to restrain the publication of matter alleged to be libellous is, that the question of libel or no libel is preémi- nently for a jury. But, when a jury have found the matter com- plained of to be libellous, and that it affects property, I see no prin- ciple by which the court ought to be precluded from saying that the repetition of the libel shall be restrained.” —.——— 607. Ward v. Drat. April 3, 1878. Chance. Div.: Fry, J.—L. J. Notes of Cas. 1878, p. 67. Morion for an injunction to restrain the defendant from sending libellous demands for payment of rent having been refused by Malins, V. C., who reserved the costs : Held, that the court had no authority to grant an injune- tion in such a case, either original, or under the Judicature Act, 1873, § 25, sub-s. 8. | 348 ENO v. STEPHENS. 608. Rose v. Loftus. April 10, 1878. Malins, V. C. —47 L. J. Ch.576; 38 L. T. N.S. 409. THE plaintiff being a manufacturer of lime juice, which he sold in bottles moulded specially for him with a spray of lime-tree leaf and blossom and his name “ Rose § Co.,” and who further placed on these bottles a label containing the same spray and name, the defendant, who manufactured a similar article, on one occasion, at the request of a customer, filled some of the plaintiffs bottles brought to him by the customer with his own article, but washed the plaintifi’s labels from the bottles and replaced them with his own, and also gave the customer a large printed card with the words ‘“ Lof- tus’ Lime Juice Cordial,” for public exhibition. Action by the plaintiff for an injunction to restrain the de- fendant from infringing his rights. Held, (1.) that the defendant had acted wrongfully, not- withstanding that he had placed his own labels on the bot- tles, since they still bore the plaintifi’s name and mark; (2.) but that be had not acted with any fraudulent intention, and that charges of fraud made by the plaintiff in his statement of claim were not established ; (8.) and, therefore, that on the defendant undertaking not to repeat the act the injunction should not be granted, nor any costs or account of profits. —+———_ 609. Eno v. Stephens. April 11, May 29, 1878. Bacon, V. C.—1 Trade-Marks, 324. Ct. of App: Jessel, M. R.; James and Bramwell, L. JJ.—1 Trade-Marks, 325. THE plaintiff being the proprietor of “* Eno’s Fruit Salt,” who had for some time used, and had registered under the T. M. A. 1875 certain labels containing, with other words and devices, those words, and the words “ Fruit Salt,” “ Fruit Saline,” or “* Fruit Powder,” without the name, the defend- ant sold certain preparations under the names of “ Fruit 1 See Millington v. For, 68. 349 IN RE MITCHELL. Saline,” “ Stephens ¢ Co.’s Effervescing Vinous Fruit Salts,” and “ Stephens’ Vinous Salts.” Injunction granted to restrain the defendant from using the words * Fruit Salt,” “* Fruit Saline,” or “ Fruit Powder,” or any such combination of words. —+——_ 610. In re Leonardt [T. M. A. 1875]. April 12,1878. Jessel, WM. R.—1 Trade-Marks, 316. A STEEL-PEN manufacturer procured the registration, as parts of his trade-marks on pens, of certain words and devices, consisting respectively of the royal arms, the words “ Penna Vittorio Emmanuele” with a portrait, the word “ Garibaldi” with a portrait, the word ‘‘ Masonic’’ with the Masonic arms, and the words ‘ Selected,” “ Improved,” “* Superior,” “ Office,” “ Commercial,” and “ International,’ those words and devices having been in common use by more than three firms of steel- pen makers for some years. On motion by certain firms of steel-pen manufacturers, and with the consent of the registered proprietor : Held, that there must be added to the registration of the marks in question a note containing a disclaimer of an ex- clusive right in the particulars specified. —+——_- 611. In re Mitchell [T. M. A. 1875]. (2.) April 12, 1878. Jessel, M. R.— W. N. 1878, p. 101; 1 Trade-Marks, 317, THE words “ Selected Pens, London,” together with the arms of the city of London, were registered by a steel-pen manufacturer as his trade-mark on steel-pens, the word “ Se- lected” having been in common use by more than three firms of steel-pen makers. On motion by certain firms of steel-pen manufacturers : Held, that on evidence of the consent of the registered pro- prietor being produced, a note must be added to the registra- 350 DUWEL v. BOHMER. tion of the mark in question, to the effect that the word “ Selected” in the above-mentioned mark was common to the pen trade. —— 612. In re Rader & Co. April 16, 1878. U.S. Patent Office: Spear, Comm.— 13 U. S. Pat. Gaz. 596. APPLICATION for the registration of the words ‘“Jron Stone,” enclosed in an oval border (other words descriptive of the article and place of sale or manufacture being also included within the border), as a trade-mark on water-pipes, refused, on the ground that the words were in themselves merely de- scriptive of the substance of the pipes, and that the oval bor- der in which they were enclosed did not give the requisite distinctiveness ; and, further, that the oval border was not as- sociated with the words in question only. ——+—_ 613. Duwel v. Bohmer. April, 1878. U. S.C. C. S. Dt. of Ohio: Swing, J.—14 U. S. Pat. Gaz. 270. Suit by a citizen of the State of Ohio for an injunction to restrain an infringement of his trade-mark, registered in pur- suance of the statutes of the United States, by another citizen of Ohio. Demurrer, on the ground that the U.S. Circuit Court had no jurisdiction in such a suit between citizens of the same state, overruled ; and Held, that the U. 8. Circuit Courts had jurisdiction in trade-mark cases between citizens of the same. state concurrent with that of the state courts.1 1 This decision has been rendered v. Steffens, declaring the acts of Con- obsolete by that of the Supreme Court gress concerning trade-marks uncon- of the United States in United States stitutional. 851 IN RE JELLEY, SON & JONES. 614. Rolt v. Bulmer. May 13, 1878. Jessel, M. R. — W. N. 1878, p. 119. Action for a dissolution of partnership and accounts, the partnership having been carried on under articles which pro- vided for an account being taken, at the determination of the partnership, of the partnership ‘ moneys, stock in trade, debts, effects, and things,” but did not directly refer to the good-will of the business. Held, that the good-will must be taken into account, as be- ing included in the ‘effects and things.” ——_+—_ 615. Reynolds v. Bullock. May 13, 1878. Hall, V. C.—47 L. J. Ch. 773; 39 L. T. N.S. 443; 26 W. R. 678. Action for a partnership account commenced by one of two members of a partnership firm, on the expiration of the part- nership term, the partnership having been carried on under articles which provided for the valuation of the partnership “ property and effects” on the dissolution, but contained no reference to the good-will of the business. Held, that there being no direct negative stipulation in the articles, the good-will must be taken into account and valued, as being included in the ‘‘ property and effects.” —— 616. In re Jelley, Son & Jones [T. M. A. 1875]. May 18, 1878. Jessel, M. R.—1 Trade-Marks, 346. APPLICATION having been made for the registration of a device, consisting of a pointer eating out of a porridge-pot (which the applicants had long used on a variety of metal goods contained in class 18, but not on other goods), as an old trade-mark for class 138, and as a new trade-mark for other classes, in particular for class 12, containing cutlery and edge- tools, and for fencing wire, being one of the kinds of goods included in class 5; the application was opposed by the pro- 852 GUINNESS v. HEAP. prietor of another trade-mark, consisting of a device of a pointer dog standing at a point, with the word “ Stawnch,” and registered for all the goods contained in classes 5, 12, and 18, on the ground that the applicants’ device so nearly resem- bled his as to be calculated to deceive. On summons adjourned into court : Held, (1.) that with respect to old marks the rule of the court was to permit registration of even identical old marks, up to the number of three, though tf more than three applica- tions for the registration of the same old mark were received it must be treated as common ; and that, with regard to class 18, the mark being a bond fide old mark, must be admitted to registration ; (2.) that with respect to new marks, it was the duty of a person about to adopt one to make it as distinct as possible, and that the fact that a man had been in the habit of using a certain trade-mark on one class of goods did not en- title him to begin to use it on another class if it would inter- fere with another person’s mark, and, therefore, with respect to class 12, that inasmuch as the applicants’ mark so nearly resembled the opponent’s as to be calculated to deceive, es- pecially when they were compared as stamped on the metal, registration in class 12 must be refused; (3.) that, with re- spect to class 5, the mark might be registered in that class for fencing-wire only, as that would not interfere with the opponent’s trade; (4.) that no order could be made as to costs. a 617. Guinness v. Heap. May 30, 1878. Malins, V. C. THE plaintiff being a brewer of stout, who used a trade- mark on his bottles containing the words “ Guinness’ Extra Stout,” with a harp, the defendant sold other beer in bottles bearing labels of the same shape as those used by the plain- tiff, but which had the words ‘‘ Genuine Extra Stout,” substi- tuted for the words “ Guinness’ Extra Stout” in the plaintiff's 28 8538 MERCHANT BANKING CO. v. JOINT STOCK BANK. mark, and also contained a device in imitation of the harp used by the plaintiff. Injunction granted to restrain the defendant from infring- ing the plaintiff’s rights, notwithstanding that the defendant had altered the device, discontinued the use of the labels, and offered to undertake not to use any more of them. 618. The London and County Banking Co. v. The Hampshire and North Wilts Bank. June 7, 1878. Jessel, M. R. Motion by the plaintiff company, under § 20 of the Com- panies Act, 1862, for an injunction to restrain the defendants from changing their name to “ The Capital and Counties Bank” refused, on the ground that the adoption of the latter name by the defendants was not calculated to deceive per- sons who used ordinary care in the conduct of their business transactions. see ea 619. The Merchant Banking Company of London (Lim- ited) v. The Merchants’ Joint Stock Bank. June 29, 1878. Jessel, M. R.— 9 Ch. D. 560; 47 L. J. Ch. 828; 26 W. R. 847. On motion by the plaintiff company for an injunction to restrain the defendant company from using its name recently assumed and registered, as being too similar to the name of the plaintiff company, or any other too similar name: Held, (1.) that inasmuch as § 20 of the Companies Act, 1862, only affected the question of registration of the name of a company, the rights of companies after registration were not varied by that enactment; (2.) that the similarity be- tween the names was not sufficient to show an intention or probability of deception ; (8.) and that the motion must, therefore, be refused. 304 IN RE ROSING. 620. Ex parte Sales Pollard & Co, [T. M. A. 1875]. July 8, 1878. Jessel, M. R. On motion by the registered proprietors of a trade-mark on snuff, consisting of the letters “8. P.” (the initials of the firm), which they had discovered, subsequently to registra- tion, to have been in common use for many years in the snuff trade, though used originally by themselves : Leave given to rectify the register by striking out the mark in question. ——_+——_ 621. In re Rosing [T. M A. 1875]. July 11, November 13,1878. Bacon, V. C.—1 Trade-Marks, 371. Ct. of App.: Jessel, M. R.; Baggallay and Thesiger, L. JJ. APPLICATION having been made for the registration of the applicant’s family arms, consisting of a sprig of two roses and a twisted horn, as his trade-mark for several classes of goods, and among others for classes 5, 12, and 18, containing cutlery and other metal goods, the Cutlers’ Company of Sheffield op- posed the application as to classes 5, 12, and 13, on the ground that the mark in question so nearly resembled a Sheffield cor- porate mark many years previously assigned to another manu- facturer of cutlery, and still used by him, as to be calculated to deceive, the latter mark consisting of a plain horn suspended by a looped cord. On motion by the applicant for a direction to the registrar to register the mark in the classes in question : Held, by the V. C.: (1.) that the two marks were not suf- ficiently similar for deception to be anticipated, and that the applicant’s mark must, therefore, be registered ; (2.) that the Cutlers’ Company must pay the costs, notwithstanding that they had intended to act in the public interest. Held, by the Court of Appeal: (1.) that the two marks were too similar, especially when looked at as stamped on the metal, for the applicant’s mark to be admitted to registration in classes 12 and 13 (as to class 5 the Cutlers’ Company aban- 355 IN RE LYSAGHT. doned their opposition); (2.) that the applicant must pay the costs of the appeal, but that no costs of the motion in the court below could be given, the applicant having succeeded as to class 5. 4a. 622. In re Brook [T. M. A. 1875-6-7]. July 13, 1878. Hall, V. C.— 26 W. R. 791. AN application having been made for the registration of a considerable number of trade-marks in respect of cotton goods, the Committee of Experts at Manchester placed half of the marks in the first class, as being entitled to registration, and the other half in the: second class as not being so entitled ; and the Registrar of Trade-Marks refused registration to the marks so placed in the second class, and further divided the marks placed in the first class, admitting six of them to sepa- rate registration, but offering only representative registration to the remainder, on the ground that the essential feature in all of them was a device consisting of a goat’s head crest, and the name “ Brook’s.” On motion by the applicants for the separate registration of the whole of the marks: Held, (1.) that as to the marks placed by the committee in the second class, the case was governed by In re Orr Ewing § Co., and that the court was debarred from reconsidering the decision of the committee; (2.) that as to the marks placed in the first class, but offered only representative registration, the case was governed by Jn re Barrows, and that separate registration must be refused ; but that the goat’s head crest and the name “ Brook’s”’ should each be registered separately, as a repre- sentative mark, with the additional words to mark its rep- resentative character appended to each. —+—— 623. In re Lysaght [T. M. A. 1875]. July 19, 1878, Jessel, M. R. A TRADE-MARK having been registered in respect of the goods contained in class 5, on motion by the registered proprie- 356 IN RE SAUNION & CO. tor, order made to rectify the register by limiting the regis- tration to galvanized sheet iron, on which alone it was his old mark, a 624. Ex parte Walker & Co. July 25, 1878. Malins, V. C. On motion by the registered proprietors of a trade-mark on iron, consisting of the letter W., a crown, and the word “ Weth- erton,” leave given to rectify the register by substituting the word “ Dudley” for the word “ Netherton,” the address being held not to be an essential particular of the trade-mark in question. Se 625. In re Saunion & Co. [T. M. A. 1875]. August 2,1878. Jessel, M. R. THE Anglo-Portuguese Oyster Fisheries Company having | been for some years in the habit of importing oysters dredged in Portuguese waters into England, and selling them there, either without previous fattening, or after fattening at beds at Queenborough, and Saunion & Co. having acted as the agents for the company in this undertaking, under an agreement which amounted in law to an agreement for a partnership ter- minable at the will of the company, the partnership was dis- solved, and the connection terminated by the company, who , then carried on business through a new agent. Saunion & Co. afterwards applied for the registration of a trade-mark consisting of a device containing, among other particulars, the words ** Anglo-Portugo Oysters,” those words being the words by which the company had designated their oysters, and they claimed to use this mark upon any oysters which they con- sidered to be of the same breed as the company’s, whether brought from Portugal or not. * On motion by the company: Held, that the inclusion of the words “ Anglo-Portugo” in the applicants’ trade-mark was either deceptive, if the oysters did not come from Portugal, or descriptive, if they did, or if 357 THE HOOSIER DRILL CO. vw. INGELS. the words denoted a particular breed, and not the country of origin, and that the words must be struck out of the trade- mark which it was proposed to register. ee 626. In re Brandreth [T. M. A. 1875]. August 8,1878. Jessel, M. R.—9 Ch. D. 618; 47 L. J. Ch. 816; 27 W. R. 281. ON application, by way of adjourned summons, for the reg- istration of the word “ Porous” as a trade-mark in respect of “ Allcock’s Porous Plasters,” and opposed : Held, (1.) that the ,word * Porous” was descriptive, and, therefore, incapable of registration ; (2.) that in any case it could only be registered as included in the phrase “ Allcock’s Porous Plasters,” which phrase was itself descriptive ; (3.) that the application must be refused with costs; (4.) that the only costs which, under Order LV., could be given were the costs of the proceedings subsequent to security for costs being given by the opponents, that being the time when, by Rule 16 of the Trade-Marks Rules, the case stood for the determination of the court, and that the costs of the previous proceedings in the Trade-Marks Registry Office could not be given. 627. The Hoosier Drill Co. v. Ingels. 1878. U. S. Patent Office: Doolittle, Act. Comm.—14 U. S. Pat. Gaz. 785. A TRADE-MARK having been registered in the name of: Ingels at a time when another application by the company for the same trade-mark was pending, and an interference having been declared between the parties, the Commissioner of Patents held that only the question of priority of adoption could be inquired into on an interference, and not questions of disputed ownership. On motion by the company to rehear : Held, (1.) that neither prior invention, use, or adoption was necessary to entitle to the registration of a trade-mark under 1 See Newman v. Alvord, 282. 858 THE MANHATTAN MEDICINE CO, v. WOOD. the U. S. Statute, a simple intention to use being sufficient ; and (2.) that in investigating the title to a trade-mark, all matters relating to the ownership should be gone into, and not only the question of priority of adoption, and that the motion must be granted. — oo 628. The Manhattan Medicine Co. v. Wood. September 21,1878. U.S. C. C. Dt. of Me.: Clifford, J. —14 U. S. Pat. Gaz. 519. THE plaintiffs manufactured a medicine called * Atwood’s Vegetable Physical Jaundice Bitters” (which they sold in peculiar shaped bottles, having the words “ Atwood’s Genuine Physical Jaundice Bitters, Georgetown, Mass.,” blown in the glass, and bearing a yellow label), in succession to the firm of Carter & Dodge, who had purchased from the original inven- tor and proprietor the right to manufacture and sell the medi- cine and use the trade-mark used by him, but not in Maine and some other excepted places. The defendant in 1861 pur- chased from the son: of the original proprietor the genuine secret recipe for the medicine, to be used in Maine, and from that time till the commencement of the suit he continued to manufacture and sell the medicine and use the trade-mark without interference, though it did not appear that the son had sold by his father’s authority. Suit for an injunction and an account. Held, (1.) that the plaintiffs had no exclusive right to sell the medicine or use the trade-mark; (2.) that neither they nor their predecessors in title had ever had any right to do so in Maine; (8.) that the rights possessed by some of the assignors to the plaintiffs had been lost by reason of their having used the genuine trade-marks on spurious medicines of inferior quality; (4.) that the plaintiffs were, further, dis- entitled by their delay ; (5.) that the plaintiffs’ assignors had lost whatever right they had in the trade-mark by not confin- ing themselves to the districts to which alone the grants from the original proprietor extended; (6.) that the trade-mark 359 LEIDERSDORF v, FLINT, used by the original proprietor had been abandoned by those claiming under him, when they adopted new bottles and labels in place of those used by him; (7.) that the article not being patented, and the defendant being in possession of the genuine recipe, and the plaintiffs having no exclusive right, and none at all in Maine, the defendant could not be restrained from using the trade-mark, and that the injunction must be refused with costs.? 629. Leidersdorf v. Flint. 1878. U.S. C.C. E. Dt. of Wisc.: Harlan and Dyer, JJ.—13 Am. L. Rev. 390. TuHE plaintiffs and defendant being alike citizens of Wis- consin, the defendant used upon his packages of tobacco a trade-mark which the plaintiffs alleged to be an infringement of that used by them on theirs. Suit for an injunction to restrain the defendant from in- fringing the plaintiffs’ rights, brought under the U.S. Re- vised Statutes, section 4942 (Act of 1870, section 79). On demurrer: Held, that, inasmuch as Congress was only authorized by the Constitution of the United States to “secure for limited times to authors and inventors the exclusive right to their re- spective writings and discoveries,” and the right to a trade- mark did not depend upon invention or originality but upon prior user, legislation by Congress upon the subject of trade- marks was ultra vires ; and therefore that, although if trade- marks had been within the legislative power of Congress, the federal court would have had jurisdiction, under the author- ity conferred on it by statute, even between citizens of the same state, that not being so, the demurrer must be sustained on the ground of want of jurisdiction.? 1 See Seabury v. Grosvenor, 562; Mc- % See United States v. Steffens, 660. Lean vy. Fleming, 272. 360 EX PARTE LAWRENCE & CO. 630. Ex parte Lawrence & Co. [T. M. A. 1875]. November 2, 1878. Jessel, M. R. LAWRENCE & Co., carrying on business as manufacturers of printers’ rollers and of the composition used for coating the same, and having since 1872 used a trade-mark thereon consisting of a device of a printer’s roller, with the words “ The Durable” in an oval, their manager, Marler, during the absence abroad of the members of the firm, and without their knowledge, obtained the registration of a mark substan- tially the same as theirs in his own name, describing himself as a manufacturer of the same articles as his employers, and of their address. On motion by Lawrence & Co. for rectification of the reg- ister, either by the insertion of their firm name in the existing entry in place of that of Marler, or by that entry being ex- punged, with liberty for them to proceed to advertise their mark, with a view to registration, de novo: Held, (1.) that relief in the first alternative could not be granted, since the registration of Marler, having been effected without instructions from the applicants, was not a registra- tion on their behalf, or one of which Marler could be treated as a trustee for them, but a wrongful act from the beginning, of which, if the applicants wished to take the benefit, they must at the same time take the inconveniences, so that the applicants could only utilize the existing entry by obtaining an assignment from Marler; but that this was impossible, since he had never carried on any business, and, therefore, could not assign the mark, being unable to assign with it the good-will of the business in which it was used; (2.) that the proper method of rectifying the register was by expunging the improper entry altogether, and that relief must, therefore, be granted in the second alternative. 361 EX PARTE EDE BROS. & CO. 631. Day v. Brownrige. November 6, December 4, 1878. Malins, V. C.— 39 L. T. N.S. 226. Ct. of App.: Jessel, M. R.; James and Thesiger, L. JJ.—10 Ch. D. 294; 39 L. T. N. S. 553; 27 W. R. 217. THE plaintiffs being the owners of a house and estate at Ashford, Middlesex, known as “ Ashford Lodge” and ‘‘ The Ashford Lodge Estate,” the defendant acquired another house in the same neighborhood, known as “ The Villa, Ashford,” or “Ashford Villa,” and changed the name‘to “Ashford Lodge.” Action for an injunction to restrain the defendant from using that name to the injury of the plaintiffs’ property. On demurrer: Held, by the Ct. of App.: (1.) that the plaintiffs could not acquire an exclusive right in the name of a house apart from trade, and that the demurrer must be allowed; (2.) that no extended power of granting injunctions was conferred upon the court by the Judicature Act of 18738, s. 25, sub-s. 8. —+———_. 632, Ex parte Ede Bros. & Co. [T. M. A. 1875-6-7]. November 8, 1878. Jessel, M. R. APPLICATION having been made for the registration of cer- tain trade-marks for goods included in the cotton classes, such trade-marks were placed by the Manchester Committee of Experts in the first class of marks submitted to them, as being marks qualified for registration. On subsequent application by other firms for the registration in their names of trade- marks substantially identical with those so classed, the com- mittee placed the marks in respect of which such later appli- cation was made in their second class, on the ground that the later applicants had no title to the marks which they sought to register. On motion by the later applicants : Held, that the function of the Committee of Experts was to decide whether a trade-mark offered for registration con- tained the particulars necessary to constitute a registrable 362 IN RE THOMAS. trade-mark, and not to decide questions of title between rival claimants ; that in the cases in question the committee had acted on a mistaken view of their functions; and that, not- withstanding the classification by the committee, the registrar must proceed to advertise the marks with a view to registra- tion, leaving the question of title to be decided in the future, on any opposition which the prior claimants might offer to the registration of the marks, after due advertisement. —_+—_———_ 633. Braham v. Beachim. (2.) November 14, 1878. Chanc. Div.: Fry, J. AFTER the decision in Braham v. Beachim (1), the defend- ants in that case acquired a colliery, but not in the parish of Radstock, and carried on business as “* The Radstock Ooal and Wagon Co., Colliery Proprietors, Radstock, Somerset.” Motion by the plaintiffs to commit the defendants for breach of the injunction refused, on the ground that the term used by the defendants did not imply more than that they were pro- prietors of collieries, whose place of business was at Radstock, which they were entitled to state, and that no breach of the injunction had been committed.1 634. In re Thomas. November 18, 1878. U.S. Patent Office: Doolitile, Act. Comm.— 14 U.S. Pat. Gaz. 821. ON an application for the registration as a trade-mark of a certain device, to be used in conjunction with other words and symbols, among which were certain of the words and symbols used in Freemasonry : Held, that the fact that such words and symbols were used in Freemasonry did not disentitle a manufacturer to use them in his trade, by reason of probability of deception of the public or otherwise, and that the application must be granted. 1 See Newman v. Alvord, 282. 363 MOSES v. SARGOOD, EWEN & CO. 635. The Singer Manufacturing Co. v. Loog. November 21, 1878. Bacon, V. C. Durine the pendency of an action by the plaintiffs for an injunction to restrain the English agent of German manu- facturers from infringing the trade-mark on the plaintiffs’ sew- ing machines, the publisher of a newspaper called The Sew- ing Machine Gazette published a paragraph in which it was stated that the action was pending, that during its pendency unprincipled traders had issued unfair and illegal advertise- ments, and that, after the conclusion of the existing action, '” further proceedings would be taken. Motion by the defendant to commit the publisher of the newspaper for contempt of court refused, on the ground that the paragraph in question was not calculated to prejudice the fair trial of the action. —p——— 636. Moses v. Sargood, Ewen & Co. November 22, 1878. Hail, V. C. THE plaintiffs being merchants and manufacturers of ready-made clothing, who placed on their goods a trade-mark registered in England and the colonies, consisting of one or more royal crowns, up to the number of six, the number va- rying according to the quality of the goods, from which mark the goods had acquired the name of * Crown Clothing,” the defendants, who alleged that they had long exported to the colonies quantities of material for clothing not made up bear- ing a trade-mark consisting of an imperial crown between two standards, began to export ready-made clothing ticketed with that mark. On motion by the plaintiffs injunction granted to restrain the defendants from selling or shipping ready-made clothing bearing the mark in question, or any other mark infringing the plaintiffs’ rights, on the ground that, although the mark might not deceive if placed side by side with the plaintiffs’ mark, it was calculated to obtain for the defendants’ goods ‘ 364 WELDON v. DICKS.’ the same name as that by which the plaintiffs’ were known, and to deceive an ordinary purchaser who had not an oppor- tunity of comparing the marks. —__+———- 637. In re Kuhn & Co. [T. M. A. 1875]. November 29, 1878. Jessel, M. R. Kuun & Co. having obtained registration as their trade- mark of a mark to be placed on steel pens for the German market, containing a description of the pens in German, with a figure of a steel pen: On motion by other manufacturers of steel pens: Held, (1.) that the figure of a steel pen was common to the trade, and could not be exclusively appropriated, and that a note must be appended to the registration to the effect that that figure was not claimed per se, but only in combination ; (2.) that Kuhn & Co. must pay the costs of the proceedings, notwithstanding that the applicants had not given them pre- vious notice of their intention to take action in the matter, but that no costs would have been given if it had been fur- ther proved that the mark had only become common by Kuhn & Co.’s mark being copied by English firms without their per- mission, and that their entire mark had been registered for a year and a half before any objection was made to it. a 638. Weldon v. Dicks. December 3, 1878. Malins, V.C. — 10 Ch. D. 247; 39 Z. T. N.S. 467. THE plaintiff being the proprietor of the copyright in a novel entitled “ Trial and Triumph,” first published in 1854, and republished in 1860, and since then long out of print, the defendant in 1875 published a tale under the same name in Bow Bells, and republished it in a volume, with other tales, at the end of the same year, and again, in a separate form, in 1877. Action for an injunction to restrain the defendant from infringing the plaintiffs copyright in the title. 365 LEVY v. WALKER, Held, (1.) that the title of the plaintiff's book was included in the copyright, by which the book was protected ; (2.) that the fact that the plaintiff's book had been long out of print did not deprive him of the right to protection against infring- ers; (3.) that the plaintiff was not disentitled by reason of delay, he having commenced his action within two months after he first became aware of the assumption of the title by the defendant ; (4.) that the injunction must be granted. “ There can only be acquiescence where there is knowledge. This court never binds parties by acquiescence where there is no knowl- edge, though it is true that knowledge and acquiescence is in many cases fatal to parties.” eet Fae 639. Levy v. Walker. December 21, 1878; February 5,1879. Hall, V.C.— 39 L.T. N.S. 654. Ct. of App... Jessel, M. R.; James and Bramwell, L. JJ. —10 Ch. D. 436; 48 L. J. Ch. 273; 39 L. T. N.S. 656. THE plaintiff, Mrs. Levy, having (while Miss Charbonnel) carried on business in partnership with the defendant as con- fectioners, under the name of “Charbonnel and Walker,” on the dissolution of the partnership and sale of the business under the direction of the court, the defendant purchased the entirety of the partnership business, leasehold premises, stock in trade, good-will, etc., and continued to carry on the busi- ness under the old firm name. On motion by the plaintiffs (Mrs. Levy and her husband) for an injunction to restrain the defendant from using the old firm name, and from representing that the plaintiffs or either of them were or was in partnership with her: Heid, on appeal, that the plaintiffs were not entitled to an injunction, on the ground that neither of them could be subjected to any liability by the use of the name by the de- fendant; and ( per James, L. J.), that, in any case, the sale of the business and good-will carried with it the right to use the old firm name. Per James, L. J. “The sole right to restrain anybody from using 366 IN RE WHITELEY. any name that he likes in the course of any business he chooses to carry on is a right in the nature of a trade-mark. That is to say, somebody has a right to say ‘You must not use a name, whether fic- titious or real, or a description, whether true or not, which is in- tended to represent, or is calculated to represent, to the world that your business is my business, and therefore deprive me by a fraudu- lent misstatement of yours of the profits of the business which would otherwise come to me.’ That is the sole principle on which the court interferes. The court interferes solely for the purpose of protecting the owner of a trade or business from a fraudulent invasion of that business by somebody else. It does not interfere to prevent the world outside from being misled into anything. “TI hold that the sale of the good-will and business did convey the right to the use of the partnership name as a description of the articles sold in that trade, and that that right is an exclusive right as against the person who sold it, and as against all the world, if any person in that world were representing himself as carrying on the same business.” — 640. The Army and Navy Codperative Society (Lim- ited) v. The Junior Army and Navy Stores (Lim- ited). January 17, 1879. Jessel, M. R. Motion by the plaintiffs for an injunction to restrain the defendants from using in their business their name (as above), or any other name calculated to deceive, refused, on the ground that the word “ Junior ”’ prefixed to the defendants’ title was quite sufficient to prevent deception; and that in any case there could be no mistake, since the only persons admitted to deal with either establishment were sharehold- ers, or persons introduced through shareholders, who would not be deceived. —— 641. In re Whiteley [T. M. A. 1875]. February 8,1879. Jessel, M. R. AN application having been made by Whiteley, a universal provider, for the registration of a trade-mark, consisting prin- 367 IN RE FARINA. cipally of two globes, for goods comprised in numerous classes, including classes 11, 12, and 13 (surgical instruments, cutlery, metal implements, etc.), which trade-mark he had used for some years on wrappers, labels, bill-heads, etc., and on metal plates affixed to some of the articles, the application was op- posed as to classes 11, 12, and 13 by a firm of cutlers, who had for many years stamped a single globe on their cutlery and metal goods, and had obtained registration of that mark on goods included in the classes in question. On adjourned summons; Heid, that registration of the applicant’s mark should be granted in the classes in question, he giving an undertaking (of which a note was to be entered on the register) not to stamp or impress the mark on any part of the metal of any article in classes 11, 12, or 18, but to affix it to, or use it in connection with, articles in those classes, in the manner in which it had previously been affixed or used. 642. In re Farina [T. M. A. 1875]. (2.) February 13, 1879. Hall, V. C.—27 W. R. 456. J. M. Farina having long used and recently registered three trade-marks on Eau de Cologne, consisting respectively of a label with his signature, and a seal in the corner, to be applied to the side of the bottle, a circular stamp with three parallel lines running from it, to be applied to the top and neck of the bottle, and a label consisting of a picture of his house, “ Gegeniiber dem Jiilichs Platz,” with medals and let- ter-press, to be applied to the boxes containing the bottles, another maker of Eau de Cologne applied for the registration in his name of three trade-marks similarly composed, to be used in the same manner. On motion by the registered proprietor for an injunction to restrain the second applicant from proceeding with his appli- cation : Held, (1.) that the trade-marks were too similar to those already on the register for registration to be allowed, and that 368 IN RE RABONE BROS. & CO. the fact that the house on the applicant’s third mark, described as “ Gegeniiber dem EHlogius Platz,” was said to be a correct view of his house in a street turning out of that square, did not prevent his label from being a colorable imitation of the original, having regard to the similarity in the letter-press and the position of the medals, though these last were not them- selves the same as those in the label registered ; (2.) that the applicant’s allegation that he had used his marks for several years without interference did not entitle him to registration, since it was not proved that the original proprietor was aware of such use; (8.) that the injunction must be granted as to all three marks, notwithstanding that the German Court of Appeal, differing from the Court of First Instance, had, while prohibiting the registration in Germany of the label with the signature, permitted that of the label with the house, the question of resemblance being purely one of fact, as to which the German decisions were to be merely regarded as opposite verdicts by two special juries. 643. In re Rabone Bros. & Co. [T. M. A. 1875.] In re Burys & Co. (Limited). February 15, 1879. Jessel, M. R. RaBonE Bros. & Co. having long used a trade-mark con- sisting of a lion couchant, with their trade name, upon iron bars, sheets, and hoops (included in class 5), and upon a large variety of cutlery, edge tools, and other implements (included in classes 12 and 18), applied for the registration of their trade-mark in classes 5, 12, and 18. Burys & Co. having long used a trade-mark consisting of a lion couchant, with or without their trade name or other additions, upon steel (in- cluded in class 5), and upon edge tools, files, and other goods (included in classes 12 and 13), also applied for the registra- tion of their trade-marks in classes 5, 12, and 13. Each ap- plication was opposed by the other applicants. On adjourned summonses : Held, (1.) that both parties should be registered in class 5, 24 369 IN RE HARGREAVES. for the goods respectively specified only ; (2.) that since Ra- bone Bros. & Co.’s trade had been mostly confined to the colo- nies, both parties should be registered in classes 12 and 13, upon an undertaking being given by Rabone Bros. & Co. not to use their mark in Europe, and an undertaking by Burys & Co. not to use theirs in Australia, Tasmania, New Zealand, the West Indies, or British Columbia, a note of each undertaking to be entered on the register ; (38.) that inasmuch as Burys & Co.’s marks were cutlers’ corporate marks, which had been as- signed to them by one John Bedford, but had not been sur- rendered by him to the Cutlers’ Company, or reassigned by the company to Burys & Co., without which Burys & Co.’s title was not recognized by the company, the registration of their marks must be deferred until their title was perfected. ne eeeneny 644. Spratt’s Patent v. Ward & Co. February 27,1879. Bacon, V. C.— 40 L. T. N.S. 250; 27 W. R. 470. Action for an injunction to restrain the defendants from selling dog-biscuits under the name of “ Hibrine Dog Cakes,” or any other title intimating that their biscuits were manu- factured under Spratt’s patent, the property of the plaintiffs. Notice having been given by the defendants that they required the action to be tried before a judge and special jury, on ad- journed summons taken out by the plaintiffs for the trial to be before the judge himself : Held, that there being questions involved beyond a mere simple issue of fact, an order must be made on the summons, as asked. eee 645. In re Hargreaves [T. M. A. 1875]. February 27,1879. Hall, V. C.— 27 W. R. 450. On motion for leave to register a new trade-mark consist- ing of an anchor with the words “Anchor Brand,” for bacon and ham, being goods included in class 42, in which class there were already four marks registered in which an anchor 370 ORR EWING & CO. v. JOHNSTON & CO, was a conspicuous feature, such four marks being used, not for bacon and ham, but for butter, dog-biscuit, preserved fish and meat, and cattle food, respectively, all of which came within class 42: Held, that leave would not be given to register the mark in question, being a new mark for part of a class, nor at all, there being more than three similar marks already on the register. 646. Orr Ewing & Co. v. Johnston & Co. March 15, 1879. Chane. Div.: Fry, J. —40 L. T. N.S. 307; 27 W.R. THE plaintiffs being manufacturers and exporters to the Indian markets of Turkey red yarn, on which they had long placed a triangular ticket or label, in green and gold, on which a conspicuous feature was two elephants supporting a banner with an inscription, with a crown between the elephants, the defendants, who had for some years exported other goods to India, with a ticket bearing a figure of the elephant-headed Hindoo goddess Gunputty, began to export Turkey red yarn, and to place upon it a ticket of a similar shape and in sim- ilar colors to the plaintiffs’ (the shape and colors being com- mon to the trade), and having upon it two different elephants supporting a banner with an inscription, with the figure of Gunputty between the elephants in place of the crown. The plaintiffs’ ticket was proved to have acquired a variety of names in India, among which was the name ‘“ Bhe Hathi,” or ** Two Elephant” ticket. Registration had been refused to this ticket Cn re Orr Ewing ¢ Co.), on the ground that ele- phants were common to the trade. Action by the plaintiffs for an injunction to restrain the de- fendants from infringing their rights. Held, (1.) that though it was not probable that English purchasers or Indian dealers would be deceived, it was not im- probable that the ultimate purchasers in India would be, in consequence of the defendants’ ticket being calculated to ob- tain the same name of “‘ Bhe Hathi” as the plaintiffs’; (2.) 371 ORR EWING & CO. v. JOHNSTON & CO. that it was not necessary to prove any fraudulent intention on the part of the defendants ; (8.) that the fact that a variety of names had become attached to the plaintiffs’ ticket and goods did not destroy their right to protection for the mark, where one of those names was likely to be attributed to the defend- ants’ ticket and goods; (4.) that the two elephants, forming a material and substantial part of the plaintiffs’ trade-mark, having been taken by the defendants, the burden was upon them to disprove the probability of deception, not upon the plaintiffs to prove it; (5.) that the two elephants were not established to be common to the trade, since, though a num- ber of other tickets bearing those animals were produced, it was not shown that they had been used or known; (6.) that the rights of the plaintiffs in their mark were not affected by the refusal to register, and that the injunction must be granted.} 1 The court said: “Having de- scribed the tickets, I repeat the ques- tion, Should I be deceived so as to take the one ticket for the other, even if the two tickets were not before me, sup- posing me to be » purchaser of ordi- nary caution and ordinary intelligence ? I answer I should not, and for this reason, that the two tickets certainly do not impress the eye throughout as being the same. There is a great sim- ilarity, undoubtedly; but more than that, I am bound to observe in the one there is « name I can read, and in the other there is a name which I cannot read, therefore there is a very strong difference between them. I can under- stand from whom the one emanated, but I cannot tell from whom the other came. I can read the place of manu- facture upon both, and I can see they are different; and further than that, that the plaintiffs always used this green ticket with a trade-mark, which trade- mark the defendants have not imitated, and to which trade-mark they have challenged the attention of the reader by marking it as their trade-mark. That question, therefore, I should have to answer in the negative. “But then arises the second question, Have the defendants taken a material and substantial part of the plaintiffs’ ticket? For this purpose it seems to me immaterial to consider whether the ticket is justly entitled to be called a trade-mark strictly or not, for the rea- sons which appear in the course of what Iam about to say. Before I can an- swer the question as to materiality of the parts taken I must have regard to two things. In the first place, I must look at the tickets and inquire whether alarge part which impresses the eye has been taken, whether a significant characteristic of the ticket has been taken; and I answer that it has. I find that the two elephants in the two top corners of the plaintiffs’ triangular ticket are repeated by two elephants in the two top corners of the defendants’ ticket. It is quite true that the ele- phants are in a different position; one set of elephants have howdahs upon them, and the others have not, and the trunks are turned in different direc- 372 IN RE ROTHERHAM. 647. In re Rotherham [T. M. A. 1875]. March, 27, 1879. Bacon, V. C.— 27 W. R. 503. Messrs. RorHERHAM & Sons, of Coventry, having long manufactured watches and exported them to Messrs. Tod & tions ; but still in each corner there is an elephant that impresses the eye with a considerable amount of similarity. Then, I must next inquire the mode in which the plaintiffs’ goods have been accustomed to be sold, and what people have called those goods..... An- other argument has been addressed to me which requires attention. It is this: It has been proved that the name ‘ Bhé Hathi’ is not the sole name which has been used for the plaintiffs’ goods in the Bombay market. His goods are known as ‘ Hathi’ yarn, ‘ Bhé Hathi,’ ‘ Asul Graham,’ and various names; and it is argued that where goods bear a number of names another man- ufacturer may introduce » trade-mark, and may appropriate to himself one of those names, though he could not do that if the goods bore one name only. In my opinion, no such argu- ment ought to prevail for a moment. If goods are sold in the market as A. or B. by a particular maker, in my judg- ment no rival manufacturer has the right to appropriate to himself either the name A.or B. Therefore that does not in any way shake the conclusion which I have come to. Now, having arrived at the conclusion that the goods of the plaintiffs which bore the trade- mark in question were known as the ‘Two Elephants’ or ‘Bhé Hathi’ goods, it follows, in my judgment, that two elephants were a material and sub- stantial part of the plaintiffs’ ticket, because they were that part of the ticket which communicated this name to the goods. Lord Westbury, in the case to which my attention has been drawn (Edelsten v. Edelsten, ubi su- pra), observed upon the fact that the goods derived their trade name from that particular part of the ticket. I think, therefore, that where the defend- ants did take these two elephants they took that which was a material and substantial part of the plaintiffs’ ticket. Now, what is the result of that? It appears to me that the result of that is this, to throw upon the defendants the burden of proving that their ticket did not deceive purchasers, so that they should believe that the defendants’ goods were the plaintiffs’ goods. In the case of Ford v. Forster, James, L. J., makes this observation : ‘The plain- tiff makes this primd facie case, that he has a plain trade-mark, a material and substantial part of which has been taken by the defendants. Then the onus is, under those circumstances, cast upon the defendants to relieve themselves from that primd facie liability.’ It ap- pears to me to be in accordance with the view of the Lord Justice that Lord O’Hagan made the observations in the case of The Singer Machine Manufact- uring Company v. Wilson, in the House of Lords (p. 395), to which my attention has been drawn this morning: ‘If one man will use a name the use of which has been validly appropriated by an- other, he ought to use it under such circumstances and with such sufficient precautions that the reasonable proba- bility of error should be avoided, not- withstanding the want of care and cau- tion which is so commonly exhibited in the course of human affairs, Ido not say that the mere possibility of decep- tion should suffice to make appropria- tion improper, but the chance of mis- leading should be jealously estimated with a view to this consideration, even 873 IN RE ROTHERHAM. Co., of Alexandria, by whom they were sold, such watches bearing on the dial the word “ Tod,” in Arabic characters (and that word, when treated as an Arabic substantive, de- noting “a high mountain’’), applied for the registration of that Arabic word as their trade-mark, but registration was re- though ordinary attention might have been enough to protect from mistake.’ “Tt appears to me that I ought, therefore, to hold that, if one man will appropriate to himself a material and substantial part of the ticket of another man, which has been used for the pur- pose of indicating his goods, he ought so to appropriate it with such precau- tions, that reasonable probability of error should be avoided, and therefore I proceed to inquire whether the de- fendants have in this case so appropri- ated that material part, which I hold that they have appropriated, with those due precautions to-prevent error. Now, it strikes one at first, in considering and answering that question, that the de- fendants have thought fit to print the name of their firm upon the ticket B. in a language which would be read un- doubtedly by the original purchasers of the goods, but which will not be read by the ultimate purchasers in the In- dian markets, and therefore the pro- tection which would be given by a name capable of being read wherever the goods go is not afforded by their tick- et. To explain that, it is necessary I should observe that, according to the evidence before me at present, when those goods reach Bombay they pass generally into the hands of merchants dealing in a wholesale manner; that they are then distributed through the intervention of a series of middle-men ; and Mr. Dick has explained clearly that there are numerous classes of middle- men employed in the distribution of these goods over the country. Now, the first class of customers would prob- ably, in my judgment, not be deceived ; but I think, upon the whole of the evi- dence before me, that there is a strong probability that the ultimate purchas- ers, the weavers who buy these goods in the villages, probably also the retail dealers who sell to them, would be de- ceived by the defendants’ ticket, and the grounds upon which I have arrived at that conclusion are put as forcibly as they can be by Goolalehund, who is a dealer in English yarn in Bombay, who says that in his opinion the native buyers would be deceived because they would ask for ‘Bhé Hathi, and there,’ he continued, referring I understand to the defendants’ ticket, ‘are Bhé Ha- thi’ It appears to me that there is a great deal of evidence to which I attach weight to show that these goods are sold largely by name, and that, although the first dealers no doubt look at the tickets, and the brokers in Bombay probably look at the tickets, yet that the. ultimate purchasers and the pur- chasers from the dealers in Bombay probably do not look at the tickets, and at any rate are liable to be deceived by the name by which the goods are sold. In coming to that conclusion, I do not forget that there is a conflict of evi- dence upon the point; that there are those who say that native buyers will not be deceived, and there are many who say that the ticket would be known as the Gunputty ticket; that there are those who say that the goods exported by the defendants have received the name of the Gunputty; but it seems to me that the burden resting, as I hold that it’ does, on the defendants to show that they have used all due precaution to prevent deception and error, they have failed to discharge that burden.” 374 GILLESPIE & CO. 7. MARSHALL. fused by the registrar, on the ground that he was instructed by the Commissioners of Patents not to register words in for- eign languages. On motion by the applicants, Held, that the direction given by the commissioners was contrary to the act and ultra vires, and that the registration must proceed. —-——_ 648. Gillespie & Co. v. Marshall. April 7, 1879. Ct. of App.< Brett, Cotton, and Thesiger, L. JJ. THE plaintiffs, agents for a Canadian firm, contracted with the defendant, a sheet-iron manufacturer, to purchase from him a quantity of ‘ Marshall’s Canada Plates.” The term “Canada Plates”? was proved to have come within the pre- vious twelve years to mean plates of iron for roofing purposes, rolled in a particular manner with respect to grain, and to be usually made by tin-plate makers. Formerly “ Canada Plates”? were mere plates of sheet-iron cut. irrespective of grain, and the defendant, who had occasionally supplied such plates, and on one occasion to the plaintiffs themselves, under the name and mark of “Marshall’s Canada Plates,” now sup- plied the same article to the plaintiffs, by whom the plates were shipped to their principals in Canada. The latter ob- jected to the quality, and resold them at a loss. Action by the plaintiffs to recover the amount of the loss on the resale. The jury having found at the trial — (1.) that the contract was for Canada plates as made by Marshall; (2.) that the plates were reasonably merchantable; (3.) that the goods were not in the commercial sense “ Canada plates ;”” on which verdict judgment was entered for the defendant : Held, on appeal, by Brett and Thesiger, L. JJ., that the contract was for the goods usually supplied by the defendant under the name of “ Marshall’s Canada Plates,” that the de- fendant was justified in supplying those goods, and that the judgment must stand. Held, by Cotton, L. J., that the contract was for “ Canada 375 IN RE BREBNER. Plates,” in the commercial sense, to be of Marshall’s manu- facture, there being no evidence to show that “ Marshall's” plates had a different meaning in the market, and that the plaintiffs were entitled to judgment. 649. In re Brebner. April 30,1863. Victoria Sup. Ct.: Molesworth, J.—2 W.& W. U1. E. & M.) 12. On appeal from a decision of the Geelong District Commis- sioner of Insolvent Estates, by which the appellant, an insol- vent, was refused his certificate on various grounds, among which was one that he had squandered his means in litigation, he having infringed a trade-mark used by other persons on flour, which led to a litigation, which he had to compromise at considerable expense. Held, that the certificate should be suspended for a year, but not refused. “The last ground of objection is the general conduct of the insol- vent, and under this head comes the imputation against him of having imitated the brands or trade-marks of another person. I must regard this as a great dishonesty. It is depriving another man of the benefit of his good name. He is fairly entitled to the benefit of the repute which he has obtained for personal skill and honesty, or the good quality of his produce; and another person who deprives him of that robs him of his own. Such person, indeed, not only takes that which does not belong to him, but risks the loss by the true owner of his good repute altogether, when an inferior article is substituted for the genuine one. It is also a fraud on the purchaser. Whether he rightly or wrongly thinks an article produced by a particular per- son to be a superior one, he is cheated if an article made by another person is substituted. It is no answer to say to the purchaser, ‘I gave you an article substantially as good as that which is represented ;’ he would not have given his money at all if he had known the article was made by another person. Ifa man wants an article of oak, and - gets an article of deal, and pays an oak price, it is no answer to say that deal will do as well. A fraud of this sort must also have been accompanied with a great deal of deliberation and contrivance ; there 376 HENNESSY v. WHITE. must have been combination and systematic continuous action re- solved upon and carried out.” —_—+—— 650. Hennessy v. White. April 5, September 2, 1869. Victoria Sup. Ct.: Molesworth, J.—6 W. W. § A’B. Eq. 216. Victoria Sup. Ct.:6 W. W. & A’B. Eq. 221. THE plaintiffs being brandy merchants, of Cognac, who sold their brandy in cask and in bottle, the latter being of the bet- ter quality, and who placed on their bottles certain distinctive labels, corks, and capsules, the defendants purchased a large quantity of the plaintiffs’ inferior or cask brandy, and sold it in bottles bearing labels, corks, and capsules of a similar shape, color, and design to the plaintiffs’, except that instead of “Jas. Hennessy ¢ Co., Cognac,” on the plaintiffs’ labels, corks, and capsules, the defendants’ had “Jas. Hennessy ¢ Co.’s Cognac ;” that instead of an arm with a battle-axe on the plaintiffs’ they had a spread eagle; and that the defend- ants’ labels also had in small letters the words “ Bottled by T. & W. White, Melbourne.” And there were some minor differences. On motion by the plaintiffs: Injunction granted to restrain the defendants from infring- ing the plaintiffs’ rights. Per Molesworth, J. ‘ According to the authorities, an intention to produce a mistake is sufficient to warrant the interference of this court by injunction. According to the authorities, also, it is not necessary that the intention should be to deceive persons who care- fully examine. Itis enough that there are a class of customers who examine so carelessly that they would be deceived by the resemblance between the two.” “T think a new feature which has not been present in any other case, and is, therefore, not touched by the language of the other cases, is one which I ought to act upon here; that is, that the makers of articles of different qualities are entitled to brand their best article in a particular way, to show the superior value they put upon it... .. I put this case upon the particular ground, that an article of Hen- nessy & Co.’s manufacture of a higher quality has had a particular 317 HENNESSY v,. HOGAN. mark used for it, and that the defendants’ brand is an attempt to de- ceive, probably not the direct purchaser of the article, but the ulti- mate consumer.” Per Stawell, C. J. “If a brandy different from that which the manufacturer bottled is put into bottles and sold as the manufacturer’s bottled brandy, the fact that it is the manufacturer’s bulk brandy does not make the sale less an imposition.” “We were invited to consider the arm and battle-axe on the re- spondents’ label as their trade-mark, and, because it was not adopted by the appellant, to disregard all other matters as of no importance ; but this is precisely the course which the courts have carefully avoided, namely, selecting any one or more matters, either of resemblance or difference, and considering them essential, or attempting to define @ priori what might or might not constitute an improper imitation by one person of the manufacture of another, for such a course would manifestly offer inducements for fraud; persons so disposed would then endeavor to avoid the one or more objectionable points, but yet so present the particular article for sale as to impose on the un- wary, who accept as sufficient proof of genuineness a resemblance in the main, without closely examining details. An imitation of the trade-mark would, no doubt, render the case still stronger against the appellant; but the mere substitution of one mark for another, both being in the same position and of the same color, does not, in our opinion, neutralize the effect of all the other points of resemblance.” ——_+—_. 651. Hennessy v. Hogan. April 29, 1869. Victoria Sup. Ct.: Molesworth, J.—6 W. W. & A’B. Eq. 225. THE plaintiffs being brandy merchants, of Cognac, whosold their brandy in cask and in bottle, the latter being of the bet- ter quality, and who placed on their bottles certain distinctive labels, corks, and capsules, the defendants purchased a quan- tity of the plaintiffs’ inferior or cask brandy, and sold it in bottles bearing labels, corks, and capsules of a similar shape, color, and design to the plaintiffs’, except that the name of the plaintiffs did not appear on the defendants’ corks and cap- sules ; that the defendants used the device of an arm holding a dart, instead of an arm holding a battle-axe; and that the 3878 WOLFE v. HART. defendants placed on their labels, in bold type, the words “* Bottled by Hogan, Money ¢ Co.” On motion by the plaintiffs : Injunction granted to restrain the defendants from infring- ing the plaintiffs’ rights. “Tt is not necessary that the imitation should be such as to deceive a person accurately scrutinizing it. It is sufficient if it is done with the intention of deceiving any class of purchasers, or to enable sub- vendees to make the article in question more attractive.” —_+——_. 652. Hostetter v. Anderson. February 17, 1870. Victoria Sup. Ct.: Molesworth, J.—1V. R. (1 W. A’B. & W.) Eq.7; 1 A.J.4. Tue plaintiffs being American manufacturers of bitters, which they sold in bottles having the words ‘Dr. J. Hostet- ter’s Stomach Bitters’? moulded in them, and labelled with the words ** Hostetter’s Celebrated Stomach Bitters,” the de- fendants bought up a considerable quantity of the plaintiffs’ moulded bottles, and sold them refilled with other bitters, and labelled ‘+ Celebrated Stomach Bitters,” but the labels did not in form or color resemble those used by the plaintiffs. On motion by the plaintiffs injunction granted to restrain the defendants from infringing the plaintiffs’ rights. 653. Wolfe v. Hart. July 8, September 19, 1878. Victoria Sup. Ct.: Molesworth, J. —4 Vict. L. R. Eq. 125. Victoria Sup. Ct.—4 Vict. L. R. Eq. 134. THE plaintiff selling gin under the name of ‘“ Udolpho Wolfe’s Aromatic Schiedam Schnapps,” in square moulded bottles, enclosed in wrappers bearing inscriptions in blue and red inks, the defendant, a former agent for the plaintiff, began to sell gin under the name of “ Hart’s Imperial Schiedam Schnapps,” or “ Imperial Schiedam Aromatic Schnapps,” and to sell them in somewhat similar bottles, enclosed in somewhat similar wrappers to the plaintiff's, 379 IN RE FARINA. On motion by the plaintiff for an injunction to restrain the defendant from infringing the plaintiff's rights: Held, by Molesworth, J., that the words “ Aromatic Schie- dam Schnapps” were descriptive and incapable of appropria- tion, but that the bottles and wrappers were intended and calculated to deceive, and that an injunction must be granted in that respect. Heid, on appeal to the full court, that the injunction must be affirmed as granted. Per Stawell, C. J. “ Nor do I concur in the argument that we are to consider the intelligence or want of intelligence of the purchaser. We ought not to pronounce a decision which would be applicable to the one and inapplicable to the other, or ignore an uneducated and illiterate person, who may desire to ascertain whether the article he is about to purchase is the same he has had before. We are to con- sider whether the infringement of the plaintiffs rights has been proved, not by taking particular isolated points, but by looking at the general resemblance of the packages, labels, bottles, and other points.” —_——_+——— 654. In re Farina [T. M. A. 1875]. (3.) April 22,1879. Hall, V. C. J. M. Farina having long used, and recently registered, two trade-marks on Eau-de-Cologne, consisting respectively of a label with his signature and flourish, the words “ Gegen- tiber dem Jiilichs Platz,” and a seal in the corner, to be ap- plied to the side of the bottle, and a label bearing a circular seal with three parallel lines running from it, to be applied to the top and neck of the bottle, another manufacturer used on the sides of his bottles a label of similar appearance bearing the signature “Joseph Anton Farina, Gegeniiber dem Central Bahnhof,” with a similar flourish, and with a similar seal in the corner, and on the tops and necks of his bottles a label with a circular seal and three parallel lines, similar to J. M. Farina’s second label, though differing in some details. The latter manufacturer applied for the registration of the two circular seals used respectively in the corner of the first 380 ROYAL BAKING POWDER CO. v. ROYAL CHEMICAL CO. label and on the top of the bottle, without other accom- paniments. On motion by J. M. Farina for an injunction to restrain the rival manufacturer from proceeding with his application for registration, Held, (1.) that the two seals might be regis- tered, but only, as to the first, with a note that it was not to be used with, or as part of any label similar to or only color- ably differing from, J. M. Farina’s first label; and, as to the last, with a note that it was not to be used upon the top or cork of any bottle of Eau-de-Cologne, or with or as part of any label similar to, or only colorably differing from, J. M. Farina’s second label; (2.) that the applicant for registration must pay the agreed costs of the application. —_—_++—- 655. In re Worthington & Co. May 9, 1879. Jessel, M. R. Bass & Co. having long used and since registered as their trade-mark on ale and beer (included in class 43) the figure of a triangle, which in practice was colored red, and from which the beer was known as “ triangle beer,” Worthington & Co. applied for the registration of a new mark to be used on beer, wine, and spirits (all these articles being included in the same class, No. 43, in which Bass & Co.’s mark was regis- tered), such new mark, consisting of a triangular device which contained a church in the centre, and the words “ Beccles Brewery — Established 1830,” in a border. On motion by Bass & Co. injunction granted to restrain Worthington & Co. from taking any further proceedings for the purpose of obtaining the registration for which they ap- plied, on the ground that the marks were so similar as to render deception probable. —+——_ 656. Royal Baking Powder Co. v. Royal Chemical Co. 1873. WN. Y. Superior Court. Not reported. THE plaintiffs being manufacturers of baking-powder ap- plied the designation “ Royal ” to their product. Defendant 3881 PROCTER & GAMBLE v. McBRIDE ET AL. used its corporate name upon the same class of goods, giving -a special prominence to the word “ Royal.” Action for an injunction and account. Held, that the word “ Royal,” as used by plaintiff, was a valid trade-mark, that the same had been infringed by de- fendant, and that plaintiff was entitled to an injunction as prayed for with costs.1 ———— 657. Procter & Gamble v. McBride et al. 1875. C.C. U.S. N. D. Ill. —18 U.S. Pat. Gaz. 1278, THE report of this case is in the language of Judge Blod- gett of the court in which it was decided : “A suit was brought by Procter & Gamble against McBride & Co., of this city, to enjoin the use of a trade-mark which had been adopted by Procter & Gamble for a certain brand of soap which they manu- factured. Procter & Gamble claimed that they had introduced to the public, under a trade-mark of their own, a brand of soap under the term and designation of ‘ Mottled German Soap, and they had adopted as a trade-mark upon their packages those words with a cir- cle with a moon and stars in the middle. The defendants, McBride & Co., who were manufacturers in this city, had put upon the market a brand of soap which they termed ‘S. W. McBride’s German Mottled Soap, and they had marked these words upon the outside of their pack- ages in combination with a crescent, within which was a single star instead of a number of stars. . . . . The defendants departed widely from the complainant’s trade-mark. They changed the arrangement of the words, so instead of its being ‘ Mottled German Soap’ it was “German Mottled Soap, and instead of a circle containing several stars it was a crescent containing a single star prefixed by the name of each maker ; and it was argued in that case there could be no pos- sibility of intelligent consumers being deceived. So strong was the case made before me on an application for an injunction that I refused 1 In an action by the same plaintiffs against Sherrill e¢ al., in the N. Y. Su- preme Court, the word “ Royal” was sustained as a mark for flavoring ex- tracts as against the words “ Royal Standard ;” and in an action in the same court against Jenkins ef al.,it was held that the word “ Royalty” was an in- fringement of “‘ Royal” applied to bak- ing powder. See &. B. P. Co. v. Me- Quade, 674. 382 SINGER MANUFACTURING CO. v. LARSEN. the injunction ; but after the proofs were taken and the case brought to hearing before Judge Drummond, he sustained the infringement and ordered a perpetual injunction against the defendants. It was also shown in that case that “mottled German soap” or “mottled soap’ had been in common use in the trade for nearly fifty. years, and that ‘ mottled soap’ was a commodity well known to the trade; but Judge Drummond sustained that trade-mark, as the exclusive prop- erty of the complainant, and held that the defendants infringed.” —_+—_——_ 658. United States v. Steffens: S.C.U.S. Held, that the acts of Congress providing for the registra- tion of trade-marks are unconstitutional and void. —_—_ 659. Singer Manufacturing Co. v. Larsen. 1878. C.C. U.S. N. Dist. Ill.— Chicago L. N. November 6, 1880. Held, that the complainant could not enjoy an exclusive right to the name or designation ‘“‘ Singer,” the same being a word descriptive of a particular kind of machine. Drummond, J. “As I understand this case, I think there can be no doubt that the plaintiff cannot claim the exclusive right to manu- facture the ‘ Singer Sewing Machine. All that it can claim is to make a machine of its own peculiar manufacture, with a device so that it becomes in the nature of a trade-mark. Otherwise, after a patent has expired which has established the nomenclature of a sewing-ma- chine, as the Howe patent, or the Wilson patent, the patentee might go on and have the benefit of the patent indefinitely. “Qn a machine called ‘ Zhe Singer Sewing-Machine’ there were various patents. These patents have all expired, and nothing can therefore be claimed under them. Other persons cannot be prevented from manufacturing a machine like the Singer sewing-machine, and which may be called, to distinguish it from other machines, ‘ Singer’s Sewing-Machine?” If a sewing-machine has acquired a name which designates a mechanism or a peculiar construction, parts of which are protected by patents, other persons, after the expiration of the pat- ents, have the right to construct the machine and call it by that name, because that only expresses the kind and quality of the machine. I 383 SINGER MANUFACTURING CO. v. LARSEN. have read the reports of the case of the Singer Manufacturing Com- pany v. Wilson (477),. . . . and I do not know that I controvert the general rule there laid down, that there must be something to indicate that the thing manufactured is not the same as that of the complain- ant; in other words, to show it is not manufactured by the plaintiff. That is, it is a question of manufacture, not of name. A person could not claim a right to construct a peculiar form of barrel as to dimen- sions and capacity, irrespective of any marks or brands impressed upon it. That of itself could not be a lawful trade-mark. The same rule would be applicable to the construction of a wagon or carriage, which, owing to some peculiarity, might possess a particular name as that of the original manufacturer. A man might construct a wagon or carriage precisely like it, and he would not be liable if he did not claim in some form that it was constructed by the manufacturer. The only principle upon which an action can be sustained under such cir- cumstances, as I understand, is through a trade-mark. If there were a valid trade-mark called a ‘ Singer Machine, then there would be some force in the plaintiff’s claim. Here the plaintiff and the defend- ant have a trade-mark somewhat similar, and if there is on the ma- chine manufactured by the plaintiff a valid trade-mark to indicate that it is of the plaintiff’s manufacture, no one else ought to be per- mitted to put anything on his machine to show that it has been man- ufactured by the plaintiff; that is, to use the same trade-mark. It may be the defendant has made his machine to imitate the plaintifi’s, and to induce people to believe that it is the same. But as I have said, I do not think, under the circumstances of this case, there can be a trade-mark for the name, ‘ Singer Sewing-Machine.” “ An illustration is furnished in the opinion of the Lord Chancellor in the House of Lords in the case already referred to. A carriage called a ‘brougham’ had been in very general use for many years. If that were devised by a man of the same name, so that, from its pe- culiarity of construction it was generally known by that name, it cer- tainly cannot be claimed that the man who devised it, or his assignees, would have a right to construct a ‘brougham’ for all time to come. If no patent existed upon it, or any of its parts, any one who has the requisite skill could construct just such a ‘brougham’ as was origi- nally constructed. There could in such a case be no trade-mark which the law would protect in the name ‘ brougham,’ and I therefore do not think that the opinion of the House of Lords can be construed 384 WAMSUTTA MILLS v. ALLEN. to mean what is claimed by the counsel of the plaintiff in this case. So that, while I hold that the defendant is not prevented from con- structing a ‘ Singer Sewing-Machine,’ still, he cannot be permitted to do any act the necessary effect of which will be to intimate, or to make any one believe, that the machine which he constructs and sells is manufactured by the plaintiff. Neither has he the right to use any device which may be properly considered a trade-mark, so as to induce the public to believe that his machine has been manufactured by the plaintiff; and, therefore, I shall modify the injunction in this case by simply requiring the defendant to refrain from selling any Singer sewing-machines manufactured by any person or company other than the plaintiff, without indicating in some distinct manner that the said machines were not manufactured by the Singer Manu- facturing Company.” ? ——_+—— 660. Wamsutta Mills v. Allen. 1878. Com. Pl. of Phila.—P. W.N. CoMPLAINANT alleged that it had long been accustomed to attach the name “* Wamsutta Mills”’ to cotton or muslin shirt- ings manufactured by it, that its goods had become well known as “* Wamsutta”’ muslins, that the defendants, dealers in gentlemen’s furnishing goods, were using the name “ Wam- yesta”’ on shirts made from muslin of an inferior quality, and advertising their shirts as made of “ Wamyesta” muslin, whereas there was no such brand of muslin known. Action for injunction and account. Held, that complainant was entitled to an injunction to re- strain the use by defendants of the word “ Wamyesta” on shirts not made of complainant’s goods. 1 See Singer Man. Co.v. Brill. It and still be fraudulent to use the fol- cannot be disrespectful to remark, that lowing: — it is not difficult to understand how it might be open to the public to use a mark as follows : — THE SINGER MACHINE. (4 This machine was manufactured by LARSEN’S SEWING-MACHINE. Larsen. Made according to the principle of the Singer machine, 2 385 KELLY vw. BYLES, The Court. “It must be obvious that the question is not whether experts would be deceived, but rather whether persons who buy would probably be deceived by the name which the defendants have adopted. Upon this point we are of opinion that the resemblance between the two words is of a character to deceive and mislead a certain class of purchasers — those who are acquainted with the reputation of the Wamsutta muslin, but who have little knowledge of the fabric itself. ‘Such persons might readily confuse the two names and purchase the defendants’ shirts for shirts made of the plaintiffs’ muslin. ‘ Wam- yesta’ might well be mistaken by many people for ‘ Wamsutta,’ in view of the fact that, as appears by the proofs, there is only one mus- lin manufactured which is known by a name resembling that which the defendants use. It is difficult to conceive that the defendants have adopted this name innocently or by accident. The resemblance is strongly suggestive of the hypothesis that the defendants have adopted it because of the facility with which the two words may be confused in the minds of a certain class of purchasers. I need not cite authorities to show that a man may acquire property in a trade- mark, or that having acquired it he is entitled to the restraining proc- ess of a court of equity to prevent the injury he will experience by its being unlawfully appropriated or imitated by others. ... . “As to the point made by the defendants that the plaintiffs are manufacturers of muslins and the defendants are manufacturers of shirts, and therefore the plaintiffs cannot complain of the use of their trade-mark, or a servile imitation of it by defendants when affixed to their shirts, we do not see the force of such reasoning. It is too plain to require any demonstration that if the defendants manufacture shirts of a muslin greatly inferior in quality to the plaintiffs’ muslin, and pass them off upon the public as shirts made of the plaintiffs’ muslin, the plaintiffs may suffer greatly thereby in their reputation as manu- facturers, and consequently in their sales of the muslin which they manufacture. Against this injury the plaintiffs are entitled to be protected by the writ of injunction.” —_—. 661. Kelly v. Byles. 1879. 40 Z. ZT. 623. PLAINTIF¥ had published since 1852, numerous trade direc- tories, which he called “ post office” directories, and was the 886 TAYLOR v. BOTHIN. registered proprietor of “ The Post Office Directory of the West Riding of Yorkshire.” The defendants compiled a directory of the town of Bradford, which they proposed to call the *« Post Office Bradford Directory.” In an action to restrain the use of the words “ post office,” etc., Held, that the taking of part of the title of a registered copyright work without fraud, and without any circumstances from which an animus - furandi could be inferred, was not an infringement; that as to plaintiff’s property in the name “ post office,” as a quast trade-mark, a right of that kind could only attach where the wares offered for sale were so nearly identical that the use of the particular trade-mark or name might mislead unwary pur- chasers. = 662. Williams v. Adams. 1879. C.C. U.S. N. Dist. Ill.— 7 Rep. 618. CoMPLAINANT had long used the word “ Yankee” to de- signate his soap; defendant used the same word on similar goods. On suit in equity, Held, that the word “ Yankee” was a valid trade-mark, and that complainant was entitled to an injunction. peeps 663. Wharton v. Thurber et al. 1879. Supreme Court N. Y.; General Term. Not reported. PLAINTIFF used as a trade-mark for his whiskey the words ““ Chestnut Grove ;” defendants inadvertently employed the same designation, but, upon being notified, discontinued its use. Action for injunction and account. Injunction granted, but without costs or damages. gS 664. Taylor v. Bothin. 1879. U.S.C. C. Dist. Cal.— 8 Rep. 516. Ir appeared that complainant had discovered a process for making a valuable yeast powder, and that afterward with de- 387 TAYLOR v. BOTHIN. fendant had manufactured and sold the same under the name of “* Mrs. Mills’ Cream.” In the second year of their connec- tion, defendant secretly applied to the patent office and reg- istered the words “ Mrs. Mills’ Cream” as a trade-mark for the powder. On a suit in equity, Held, that the registration was invalid, and that the parties were equally entitled to use the name “ Mrs, Mills’ Cream.” Field, J. “The only serious question for deliberation is, whether the complainant is entitled to the exclusive use of the trade-mark, or only to a joint or equal use of it with the defendant. Had the name been suggested and used by the complainant before the business con- nection with the defendant, there would be no doubt of his exclusive right to it. But it having been suggested and adopted after that con- nection was formed, upon a consultation of the parties on the subject, and then used for their joint benefit, we are led to the conclusion that they are equally entitled to its use after that connection ceased. Clearly the defendant has no such exclusive right, and the represen- tations which he must have made to obtain the letters of registration required by law, “ that no other person, firm, or corporation” had the right to its use, are inconsistent with the facts. It matters not whether the arrangement between the parties constituted a partnership, or whether the complainant was to receive a portion of the profits of the business as his salary ; in either case, it was his process of mak- ing a valuable powder which was to be used, and it was to his dis- covery that the name was to be given. We do not understand that when the complainant said he gave his process to the defendant, he intended to abandon all right to the use of it, and to the manufacture of the powder designated by its new name; but only that he made the defendant acquainted with the secret of the process — the manner in which the powder was to be made. Having imparted that knowledge, and the two, in conjunction, having subsequently adopted the name, they must be regarded as equally having the right to use it.” 388 CONSOLIDATED FRUIT JAR CO. v. THOMAS. 665. Consolidated Fruit Jar Co. v. Thomas. 1879. C.C.U.S. Dist. N. J. Not yet reported. THE Consolidated Fruit Jar Company had used as a trade- mark a monogram, consisting of the initials of its corporate name, which it applied to its goods in characteristic ways; defendant sold goods of the same nature, to which a monogram composed of different letters had been applied, to all the in- tents and purposes, in the precise manner that had been prac- tised by complainant. On motion for preliminary injunction, Held, that complainant was entitled to an injunction ;: and that the fact that it had neglected to sue for a considerable period was immaterial as affecting the issuance of the writ. Per Nixon, J, “There is no difficulty about this case in regard to the infringement. The embarrassment arises in determining to what extent the injunction should go, or what it should include. “The complainant corporation and the Hero Glass Works, which are the producers of the articles complained of, are the principal makers of fruit-jar caps in the country; any interference with the business of the one would practically give a monopoly to the other. But such a consideration should not and will not hinder the court from protecting the complainants in all their rights. The question of infringement is ordinarily more easily determinable in trade-mark cases than in patent cases, because they are less dependent upon the testimony of witnesses. Whether one thing is a colorable imitation of another is answered most satisfactorily by judicial inspection and comparison of the two; and if the court is convinced by such inspec- tion and comparison that the two things are near enough alike to deceive or mislead the ordinary purchaser in the exercise of ordinary care and caution, no amount of expert evidence of substantial differ- ences would justify the court in withholding the injunction. “ The infringement by the defendant is clear; the monograms differ because the letters are not the same; but it is not necessary for the complainants to show an exact imitation or similarity before they are entitled to the protection of the court. No matter how vague may be the resemblance, if it be sufficient to mislead the public, it is un- lawful, and, when unexplained, it is the duty of the court to infer in- 389 CONSOLIDATED FRUIT JAR CO. v. THOMAS, tent, and to hold that the resemblance was adopted for the purpose of deception. .... “Tt is difficult to lay down a general rule, which will be applicable to all cases, of what constitutes the infringement of a trade-mark. Tt may be said, however, as was substantially held by the Supreme Court in MeLean v. Fleming (6 Otto, 245) [580], that an injunction should be granted when the imitation is so close, that by the form, marks, contents, words, or their special arrangement, or by the gen- eral appearance of the infringing device, purchasers exercising ordi- nary caution are liable to be misled into buying the article bearing it for the genuine one. “ Both parties in the present case have the right to manufacture and sell fruit-jar caps. The complainants have adopted and registered as their trade-mark a monogram composed of the initial letters of the corporation name. They began its use early in the year 1878, to distinguish their manufacture from the product of other houses, and particularly of their great rival, the Hero Glass Works. They placed the monogram on the circular depression on the top of the cap. The caps were put up for the market in wooden boxes, in each end of which the trade-mark was printedin red ink. Each box was also fur- nished with printed circulars on which the monogram appears near the bottom between the words ‘like’ and ‘ this.’ “The jar caps in the defendant’s possession have also a monogram, put in the circular depression on the head of each cap; the same was also printed in red ink on the end of the wooden boxes containing the caps, and the boxes are supplied with circulars in a style of print- ing to give them the general appearance of the complainants’ cir- culars, and also showing in the same relative position a printed mono- gram between the words ‘ like’ and ‘ this.’ “Tt is proved that all these resemblances have been adopted and used by the manufacturers of the defendant’s caps since the registry and use of the complainants’ trade-mark. They are not accidental, but intentional and misleading, and therefore unlawful. “The court suggested to counsel on the argument, that the delay of the complainants in applying to the court for the injunction until the season for furnishing fruit-jar caps had fully arrived, had a suspicious aspect, and that we should be reluctant to interfere with the defendant whatever might be the legal rights of the complainants if there had been laches in bringing the suit. The suggestion was, perhaps, un- 390 KIDD v. JOHNSON, called for by the facts of the case, but it was prompted by the ex- treme sensitiveness which always springs up, when any disposition is suspected of using the process of the court to obtain a temporary business advantage. “ There has been large discussion of the question how far laches, in stopping the infringement of a trade-mark, will deprive a complainant of the benefits of a preliminary injunction. But that discussion has been put to rest, so far as this court is concerned, by the recent de- cision of the Supreme Court in the case of McLean v. Fleming, supra, where it was held that acquiescence of long standing was no bar to an injunction, although it precluded the party acquiescing from any right to an account for past profits. “ This was only anticipating the later decision of the High Court of Justice in England in the case of Fullwood vy. Fullwood, 9 L. R. Ch. Div. 176 [602], where the single question involved was the effect of delay in prosecuting for the infringement of a trade-mark, and where the defendant set up as a defence to an application for an injunction, that the plaintiff had known all the material facts stated in the plead- ings for a period of at least two or three years before the action was brought. The court said this was no defence, and that where an in- junction is sought in aid of a legal right mere lapse of time was no bar to granting it. The injunction was treated as always a matter of course, if it appeared that the legal right existed. “The court is of the opinion that the complainants are entitled to an injunction restraining the defendant pendente lite from the use of the monogram on the fruit jar caps, and on the ends of the boxes, and from circulating the printed circulars so closely resembling the circulars of the complainants, and it is ordered accordingly.” — 666. Kidd v. Johnson. 1879. S.C. U.S. To appear in 102 U. S. In 1849 one 8S. N. Pike, doing business in Cincinnati as wholesale dealer in whiskey, adopted as a trade-mark for his manufacture the words “8. WV. Pike’s Magnolia Whiskey, Cincinnatt, Ohio,” enclosed in a circle, which he placed on packages containing the liquor. Between that date and 1868 he was in partnership with different persons, doing business there under the name of S. N. Pike & Co. In 1863, having 391 KIDD v. JOHNSON. dissolved his connection with others, he took as partners two of his former clerks, Tilney and Kidd, continuing the original firm name. The same trade-mark was used by the new firm as it had been by the preceding firm, without any change. At this time, and subsequently until its sale in 1868, the real property in Cincinnati, upon which the business was conducted, and the distillery, with its fixtures and appurtenances, be- longed to Pike individually. In 1868 the firm removed its entire business to New York city, and Pike sold the real prop- erty in Cincinnati, and the stills, tubs, engines, boilers, tub- ing, and all apparatus in his distillery, to the firm of Mills, Johnson & Co., who were also engaged in the manufacture and sale of whiskey at that place. At the same time Pike ex- ecuted and delivered to the purchasers a separate instrument, stating that, having sold his premises to them, he extended to them and their successors the use of all his brands formerly used by him in his Cincinnati house. Mills, Johnson & Co. continued for some years the manu- facture and sale of whiskey on the premises thus purchased, using without objection from any one the brands previously used by 8. N. Pike & Co. They were succeeded in business by the complainants, who, it is admitted, are entitled to all the rights which they possessed in the trade-mark in question. S. N. Pike died in 1872, and his surviving partners formed a new partnership, under the name of George W. Kidd & Co., which was subsequently dissolved, and to its business Kidd, the appellant in this case, succeeded. Held, that the trade-mark was the exclusive property of Mills, Johnson & Co. Per Field, J. “As to the right of Pike to dispose of his trade- mark in connection with the establishment where the liquor was manufactured, we do not think there can be any reasonable doubt- It is true, the primary object of a trade-mark is to indicate by its meaning or association the origin of the article to which it is affixed. As distinct property, separate from the article created by the original producer or manufacturer, it may not be the subject of sale. But when the trade-mark is affixed to articles manufactured at a particular 892 SAWYER v. HORN. establishment and acquires a special reputation in connection with the place of manufacture, and that establishment is transferred either by contract or operation of law to others, the right to the use of the trade-mark may be lawfully transferred with it. Its subsequent use by the person to whom the establishment is transferred is considered as only indicating that the goods to which it is affixed are manufact- ured at the same place and are of the same character as those to which the mark was attached by its original designer.” —— 667. Sawyer v. Horn. 1880. C.C. U.S. Dis. Md. Not yet reported. CoMPLAINANT alleged that to individualize and identify his bluing he adopted a peculiar and original form or style of package, consisting of a blue cylinder having a red top, and that his goods had long been known and identified by consum- ers by the peculiar appearance of the package. It was, also, set forth that his method of packing, includ- ing the size, shape, and color of his cartoons or large packages, was original with him, and had never been varied. The respondent was shown to have knowingly made and sold bluing put up in boxes and packages which involved the employment of imitations of all the leading incidents and features of complainant’s article ; complainant’s goods being copied in substantially every particular, except that defendant used his own name and made changes in the phraseology of his labels. Suit in equity for injunction and account. Held, that complainant was entitled to an injunction re- straining the imitation of his package, and to an accounting as prayed. Per Morris, J. “ We have come to the conclusion in the case be- fore us, that the respondent should be enjoined from putting up his goods in the manner in which he has been doing as shown by the exhibit, or in any other manner so simulating the form, color, labels, and appearance given by the complainant to his goods as to mislead purchasers into mistaking one for the other. 398 SAWYER v. HORN. “What we decide is, that whether the complainant has a trade-mark or not, as he was the first to put up bluing for sale in the peculiarly shaped and labelled boxes adopted by him, and as his goods have become known to purchasers and are bought as the goods of the complainant by reason of their peculiar shape, color, and label, no person has the right to use the complainant’s form of package, color, or label, or any imitation thereof, in such manner as to mislead pur- chasers into buying his goods for those of the complainant, whether they be better or worse in quality. “And finding from the exhibits and proof in the cause that the bluing put up by the respondent is not only well calculated so to mislead purchasers, but has actually done so to the injury of the com- plainant, we are of opinion that respondent should be perpetually en- joined, and that he should account to the complainant for the dam- ages sustained by him.” The final decree was as follows :— “This cause having come on to be finally-heard at this, the term aforesaid, upon the pleadings and proofs, and having been fully ar- gued by the counsel for the respective parties, and fully considered by the court, it is thereupon, this 17th day of February, in the year 1880, by the Circuit Court of the United States, in and for the Dis- trict of Maryland, adjudged, ordered, and decreed : “J. That heretofore, to wit, as early as the year 1866, the com- plainant was engaged in the manufacture of bluing, at the city of Boston, in the State of Massachusetts, and that, in order to distinguish and identify his bluing from that of all other producers, he caused the same to be packed in cylindrical boxes enclosed in a blue label and provided with a red seal at their tops, each box arranged to pre- sent the appearance of a blue cylinder having a red top as shown with sufficient accuracy in the illustration marked ‘ complainant’s small box,’ and hereto appended and made a part hereof; that such box presenting the appearance, to wit: the appearance of a blue cylinder having a red top, was originated and first used by the com- plainant, and by him adopted as a means of distinguishing and iden- tifying the bluing made by him, and has been employed by him continuously, since the day of its first use and adoption, to indicate and signify the origin of his goods. “II. That the complainant’s bluing is generally known and identi- fied by consumers in the city of Baltimore and elsewhere by the 394 THORLEY’S CATTLE FOOD CO, v. MASSAM. appearance of the said box by him originated and used as aforesaid, to wit: as being packed in a blue cylinder having a red top. “TII. That the respondent, James G. Horn, has violated and in- fringed the rights of the complainant by preparing and vending blue in boxes having the appearance of blue cylinders with red tops, and prepared in such close imitation of complainant’s bluing as to deceive the public and cause respondent’s bluing to be purchased by consum- ers as and for the bluing of complainant. “TV. And it is further adjudged, ordered, and decreed that an in- junction issue perpetually enjoining and restraining the respondent, James G. Horn, his servants, agents, and workmen, and all persons acting for him or under his directions, from packing, or selling, or of- fering to sell bluing put up in boxes with labels in imitation of the boxes and labels used by complainant, as shown in these proceedings, to wit, in cylindrical boxes with blue labels and red tops (one of said respondent’s boxes being hereto appended), and from putting up, pack- ing, selling, or offering to sell any bluing prepared in any manner so similar to the boxes, labels, and appearance of complainant’s bluing as to cause confusion in the market and mislead purchasers into mistaking respondent’s bluing for the bluing prepared by the com- plainant. “V. And it is further adjudged, ordered, and decreed that the complainant is entitled to have and recover the profits which have been diverted from him by reason of said infringement upon his rights, as aforesaid, and by reason of the sales of bluing made by re- spondent in imitation of said complainant’s goods ; and to enable the court to ascertain the said profits to which the complainant is entitled, it is ordered that this cause be, and the same is, hereby referred to G. Morris Bond, Esq., one of the commissioners of this court, with directions to state an account thereof, from the proceedings and proofs now in the cause, and such other proof as may be laid before him. “VI. And it is further adjudged, ordered, and decreed that the said respondent, James G. Horn, pay the costs of these proceed- ings.” a en 668. Thorley’s Cattle Food Co. v. Massam. 1880. English Ct. App. —42 L. T. Rep. N. 8. 851. THE facts proved in evidence were briefly these : Joseph Thorley, the original maker of the cattle food, died 395 THORLEY’S CATTLE FOOD CO. v. MASSAM. in 1876, having by his will directed that his business should be carried on by his executors, with the assistance of his son Joseph Thorley. J. W. Thorley, whose name was given to the plaintiff com- pany, was a brother of the late Joseph Thorley, and both brothers were equally acquainted with the secret for com- pounding the cattle food, which they had obtained from a person named Faweett. J. W. Thorley had at one time been in the employ of his brother, and being acquainted with the business, he was, on the death of Joseph Thorley, induced to join in getting up a company, which was registered, with a capital of £200, divided into 4,000 shares of 1s. each, J. W. Thorley having signed the memorandum of association as the holder of one share. In the action of J W. Thorley’s Cattle Food Company v. Massam, witnesses were examined on both sides upon the question whether the article sold by the defendants was the same as that manufactured by the plaintiffs. Among the wit- nesses for the plaintiffs were several well-known analytical chemists. The effect of their evidence was that, although the analysis they had made differed in some unimportant items from that of the defendants, the variation was so slight that the two articles, for all purposes of food, were essentially the same. The differences might be traced to the variation in the quality of the ingredients used. On the other side, the evidence went to show that there was an ascertainable dif- ference between the two compounds, and that as the defend- ants’ mixture contained more spice and more sugar, it was likely to be more palatable to the cattle than the plaintiffs’ mixture ; but it was admitted that if the two mixtures were placed before a cow in the same manger, she would, in all probability, be unable to distinguish the difference, and would eat them both. In the second action, by the executors against the company, witnesses were examined upon the question whether or not the travellers sent round the country by the company had or had not represented to the purchasers, or led them to believe, that J. W. Thorley & Co. were the succes- 396 THORLEY’S CATTLE FOOD CO. v. MASSAM. sors to the business formerly carried on by Joseph Thorley, deceased, and that they were, in fact, carrying on that busi- ness. The company had issued an almanac in which appeared a report and analysis by Dr. Hassall of “ Thorley’s Food for Cattle,” which had been made at the request of Joseph Thor- ley, and on the article made by him; and a list of the prizes obtained for cattle through the use of “ Thorley’s Food for Cattle ;” though in fact the condiment had been that sup- plied by Joseph Thorley. There was also in the almanac the following statement: ‘* The executors have continued to manufacture some food and sell it under the name of ‘ Joseph Thorley,’ which they have registered as their trade-mark. The public may by this ruse be induced to imagine that Mr. Joseph Thorley is still living and manufacturing the cattle food which is being sold by his executors, whereas the only surviving Mr. Thorley (Mr. J. W. Thorley) has no connection whatever with the persons trading under the name of the late Joseph Thorley.” The packets in which the article sold by the company was made up were of the same shape and size, and wrapped in the same colored paper, as those used by Joseph Thorley and by his executors, and bore the same directions for use. But it was stated that the company sent out their packets in boxes of a different shape and size from those used by Thorley and his executors. Malins, V. C., came to the conclusion upon the evidence, that the two articles sold by the executors and the company respectively were substantially the same, and in J. W. Thor- ley’s Cattle Food Company v. Massam he restrained the ex- ecutors from issuing advertisements injuring the company in their trade by representing in effect that the cattle food sold by the company was spurious. He dismissed the action of Massam v. J. W. Thorley’s Cattle Food Company, being of opinion that there was not sufficient evidence adduced by the plaintiffs, on whom the burden of proof lay, to show that the 397 THORLEY’S CATTLE FOOD CO. v. MASSAM. company represented that they were the successors, or were carrying on the business, of Joseph Thorley. The executors appealed from both decisions. James, L. J. “In the first case we came to a decision really, prac- tically, and substantially, without hearing the respondents, the mo- ment we had the two documents read to us, one of them throwing a light upon the other. We thought that the executors, the defendants in that action, had said more than they ought to have said. They might have given warning by saying that the company were not car- rying on their business, and were different from them, and they might have said that they were not successors of Joseph Thorley ; but they went on to make allegations which were really allegations imputing to them that they were foisting a bad article upon the public, and so on, stating in substance that it was a fictitious article, and an article calculated to do mischief. We thought Mr. Glasse had not proved his justification of that libel. There was a libel if not justified; and having our attention called to the evidence, we thought the executors had failed to prove that there was any foundation in point of fact for the assertion that the company were foisting an article as something they were not entitled to represent it, that is, independently of what I may call the trade name or trade-mark. Now in the other case, which is probably the more important one, I am of opinion that the executors, the plaintiffs in the action, ought to have succeeded, and ought therefore to succeed before us. In the first place I will dispose of this point which has been raised, that there is anything in the nature of an estoppel, or anything in the nature of a bar to the plain- tiffs’ right to relief on any ground of this kind by reason of their hav ing discontinued the former action of Massam v. J. W. Thorley’s Cat: tle Food Company. The plaintiffs there failed to get an interlocutory injunction, and having failed to do that they discontinued the action, and paid the costs. That is not a res judicata which can be pleaded or dealt with as res judicata. All that amounts to is, that the vice chan- cellor did not then think a case had been made out for the interfer- ence of the court upon interlocutory application. No doubt the vice chancellor gave reasons in his judgment, which reasons he has also repeated in the present case, basing his decision principally upon. a case of James v. James, 26 L. T. Rep. N. S. 568; L. Rep. 13 Eq. 1 See the report, 41 L. T. R. N.S. 542. 3898 THORLEY'S CATTLE FOOD CO. v. MASSAM. 421. Now Iam of opinion that that application for an injunction ought to have succeeded, assuming the facts to have been, as we are told they were, substantially the same as the facts now before us, be- cause I am clearly of opinion that the defendant company never had aright to use the term ‘Thorley’s Food for Cattle. The right to use that name depends, or may be supposed to depend, upon what was supposed to have been decided in Burgess v. Burgess, 3 De G., M. & G. 896, and afterward decided in James v. James. Now, Bur- gess v. Burgess, has really been very much misunderstood, if it has been understood to say that anybody can always use his own name as a description of an article, whatever may be the consequence of it, or whatever may be the motive for doing it, or whatever may be the result of it. No doubt, Knight Bruce, L. J., made a very epigrammatic judgment, which probably has therefore caused it to be recollected more than that of Turner, L. J., who followed him. Knight Bruce, L. J., in his judgment, said: ‘All the queen’s sub- jects have a right, if they will, to manufacture and sell pickles and sauces, and not the less that their fathers have done so before them. All the queen’s subjects have a right to sell these articles in their own names, and not the less so that they bear the same name as their fathers; nor is there anything else that this defend- ant has done in question before us.’ Then he goes on: ‘ He car- ries on business under his own name, and sells his essence of ancho- vies as “ Burgess’s Essence of Anchovies,” which, in truth, itis. If any circumstance of fraud now material had accompanied, and were continuing to accompany the case, it would stand very differently, but the whole case lies in what I have stated.’ But the way in which Turner, L. J., puts it is this, which I take to be much more accurate : ‘I concur in the opinion that this motion should be refused with costs. No man can have any right to represent his goods as the goods of an- other person, but in, applications of this kind it must be made out that the defendant is selling his own goods as the goods of another. Where a person is selling goods under a particular name, and another person not having that name is using it, it may be presumed that he so uses it to represent the goods so sold by himself as the goods of the person whose name he uses; but where the defendant sells goods under his own name, and it happens that the plaintiff has the same name, it does not follow that the defendant is selling his goods as the goods of the plaintiff. It is a question of evidence in each case whether there 399 THORLEY’S CATTLE FOOD CO. v. MASSAM. is false representation or not.’ That I take to be the accurate de- scription of the law which was really adopted by the House of Lords, which now, of course, has settled the law paramount to all the cases before it in that case of Wotherspoon v. Currie, L. Rep. 5 H. of L. 508, in which the House of Lords differed from the view that I orig- inally took in that case. I thought myself bound, in Wotherspoon v. Currie, to apply what I thought was the rule of law as laid down in Burgess v. Burgess, and some other cases which seemed to have fol- lowed it, that a man had aright to use a name if he was not telling that which was untrue on the face of it. But the House of Lords came to the conclusion that there were things which were marks of fraud in that case. The words used were, ‘ Currie & Co., starch and corn flour manufacturers, Glenfield.’ Now the name of the starch of the plaintiff was ‘Glenfield Starch, and the defendant was actually manufacturing starch at Glenfield for the purpose of enabling him to say that he was manufacturing it at Glenfield. There could be no doubt about that; and the House of Lords said the mere fact that he was really carrying on the manufacture at Glenfield, and was not therefore telling a lie in that respect, did not exempt him from the consequences of this, that the whole thing was intended and calculated to produce on the mind of the purchasers the belief that his article was the article of the plaintiffs. Lord Westbury sums it up in a few words: ‘I take it to be clear from the evidence that long antecedent to the operations of the respondent the word “ Glenfield” had ac- quired a secondary signification or meaning in connection with a par- ticular manufacture. In short, it had become the trade denomination of the starch made by the appellant. It was wholly taken out of its ordinary meaning, and in connection with starch had acquired that peculiar secondary signification to which I have referred. The word “ Glenfield,” therefore, as a denomination of starch, had become the property of the appellant. It was his right and title in connection with the starch. Now the question is, has that property been invaded by the respondent? and I take the whole proceedings of the respon- dent from beginning to end to have been nothing in the world more than a contrivance for getting the word “ Glenfield” associated with his manufacture. If that be true, what the respondent has done has” been done malo animo with a view of possessing himself of a denom- ination which was the property of the appellant.’ I should like to say a few words on that case of James v. James, which the vice chan- 400 THORLEY’S CATTLE FOOD CO. v. MASSAM. cellor in this case considered himself bound by. There may be a dis- tinction, which I am going to point out, between that case and this ; but if they be practically the same, which I am bound to say I think they are, for myself, I cannot concur in the decision in James v. James, nor in the reasoning which led to it, nor in the distinctions which were attempted to be taken. Nowin James v. James, a Lieut. James had invented a thing called a horse-blister — ‘ Lieut. James’s Horse-blister.”. It was manufactured by himself, and he conveyed it to persons upon trust for some members of his family. Another person of the name of James, a member of the family, then made it after the death of Lieut. James, and sold it under the same name. Now Lord Romilly, M. R., was of opinion that although during the life-time of Lieut. James that could not be done, it could be done after his death. Iam utterly unable to perceive any ground for that dis- tinction. If Lieut. James had the trade-mark, or what was equivalent to a trade-mark, during his life; if Lieut. James had the right to pre- vent anybody of the name of James or otherwise from selling ‘ Lieut. James’s horse-blister,’ I cannot conceive how that right was not trans- mitted to his legal personal representatives, or why his legal personal representatives had not the same right as Lieut. James had to enforce that which was his right of property, to use Lord Westbury’s expres- sion, in connection with the manufacture of a horse-blister. It is possible that in that case the master of the rolls may have thought that ‘ Lieut. James’s horse-blister’ being a mere recipe, anybody who had got the recipe might go and get it made up by any chemist or druggist, and therefore that ‘ Lieut. James’s horse-blister ’ was merely an indication that it was made according to Lieut. James’s recipe, which I am bound to say I am unable to concur in; still there might be that distinction that there the recipe was the whole thing. NowI cannot apply that to a case like the present, where two people could make the article in question from the same recipe, and yet make arti- cles as dissimilar as possible in point of quality. Of course, where we are dealing with an article of food, a condiment, the merit and the value of the article depends on the great care which the one man might or might not take in selecting the very best articles he was compounding together, and in the manipulation of the articles, and the preservation of them during the course of manufacture. But I do not think that there really is any substantial difference between the two cases. What, as it appears to me, was in the mind of the 26 401 THORLEY’S CATTLE FOOD CO. v. MASSAM. master of the rolls at the time, and what led to the fallacy, was this : there is no doubt that if a man takes out a patent for a thing, and the thing is known as his patent, for instance, say ‘ Flavell’s Patent Kitch- ener,’ and the patent expires, if the patent was known as the plain- tiff’s patent, then anybody else might make the thing as ‘ Flavell’s Patent Kitchener,’ because Flavell’s kitchener then does not mean made by Flavell, but made according to Flavell’s patent. What have we got in this case? In the first place, the thing here was not in- vented by any Thorley at all, and therefore ‘ Thorley’s Food’ cannot signify a food made according to Thorley’s invention. The invention is said to be by somebody else, whose recipe is said to have been pur- chased by the original Thorley, and ‘ Thorley’s Food for Cattle’ here, according to my view, does not mean food consisting of particular in- gredients, or made up according to a particular recipe, because no purchaser would care about that; but ‘Thorley’s Food for Cattle’ meant that food which for many years was manufactured at works be- longing to Joseph Thorley, and afterward was manufactured by his executors carrying on his business at the same works. The words ‘Thorley’s Food for Cattle’ would indicate, according to my view of the case, to a purchaser, this: You have always had a very good article called ‘Thorley’s Food for Cattle ;’ any article bearing that name is to you a guarantee that it comes from the same place from which that has come with which you have hitherto been well satisfied and content. That in truth is the meaning and object and result of a trade-mark. That is what a trade-mark is; it does not signify what it is — whether it is a name, or a symbol, or a fancy name, or anything else. It indicates this, a warranty that the article to which it is at- tached has come from the particular manufacturer of the goods with which buyers have been hitherto pleased. ‘Thorley’s Food for Cat- tle’ never became an article of commerce as distinguished from the particular manufactory from which it had proceeded. I referred in the course of the argument to a case as an illustration which was the converse of this, the case of Liebig’s Extract of Meat Company, where the company wanted to prevent some defendants from selling Liebig’s extract of meat, or selling anything of that name, the company hav- ing got Liebig to assist them and lend them his name. The answer to that was: Liebig’s extract of meat has ceased to be a thing made by Liebig, because Liebig has published to the world the mode by which it is made, and it has been made and manufactured generally, 402 THORLEY’S CATTLE FOOD CO. v. MASSAM. and has got into the Pharmacopeia, into books of cookery, into a dozen places where a dozen people can make it, and has now become as much known as if it were called ‘ Extract of Meat’ alone, or any- thing else, and Liebig’s extract has ceased to have any connection with Liebig as the maker of it for the purpose of the manufacturer, and was merely the description of it as the article known to the medical world and other persons who had occasion to use it. That was the converse of this case. There is nothing like that in this case of ‘ Thorley’s Food for Cattle.’ Then we have to consider what was the animus. It appears to me that that would be almost sufficient to dis- pose of it; but there is one thing that struck me in this all through. We have had nothing like a satisfactory explanation of how J. W. Thorley’s Company came into existence; how they came to form themselves into a company, unless it was that they thought that Thorley was making a very good thing ; that they thought that Thor- ley’s food was a very profitable thing; that it had got a very great reputation, and that some of them would like to steal the reputation which Thorley’s article had acquired. In order to do that, they seem to have somehow or other got into communication with a gen- tleman who was a relation of the late Joseph Thorley, and a con- nection of his executors, and who for some years had been in the ser- vice of Joseph Thorley, and during those years, according to his own account, which I take to be true, had acquired a knowledge of the recipe, and had acquired the exact knowledge of the manufacture, but who for several years previous to the existence of this company had never had anything to do with the manufacture of food for cattle, but was probably gaining his livelihood in some other way; but having the same name of Thorley, which was the distinguishing mark of food for cattle, he either tendered himself for sale, or was found for pur- chase by some person, in order that his name might be got into a joint-stock company limited, for the sake of selling these goods. Why was that name got in there except for the purpose of inducing the world to believe that it was the same concern, or that it was the Thor- ley, that it was the same Thorley whose name was the principal charac- teristic of the name of the article? The name of the company, I can- not help observing, was J. W. Thorley & Co., Limited, and that J. W. Thorley & Co., Limited, is, to my mind, to begin with, a fiction, an in- tentional fiction. The meaning of J. W. Thorley & Co., Limited, that which it would convey to any person’s mind, is that there was a part- 403 THORLEY’S CATTLE FOOD CO. v. MASSAM. nership of J. W. Thorley & Co.; a real partnership, which had been carrying on business in the manufacture of this food for cattle, and that for some reason or other, such as we have seen constantly in our experience in this court, the partnership had been minded to convert itself into a limited company for the more convenient transaction of its business. But here the J. W. Thorley was not a partner. J. W. Thorley was employed as an agent, as the manager; and J. W. Thor- ley’s only connection with the company, gud company, is that he had a one shilling share in it, the company itself having a capital of £200, or something of that kind. To my mind that really would be ex- actly the same thing as if somebody were to establish a brewery at Burton, finding some one of the name of Bass, or somebody who would take the name of Bass — because there is no law to prevent a man assuming any name he likes—and then calling themselves J. Bass & Co., Limited, or W. Bass & Co., Limited, and advertising Bass & Co.’s pale ale. I really can see no distinction between Bass & Co.’s pale ale as advertised by such a company got up in that way, and ‘Thorley’s Food for Cattle, advertised by the company which has procured a person of the name of Thorley to be connected with their company. That of itself, to my mind, is a very strong thing to begin with. And then next we have to look at the advertisements and circulars, and the almanac. First of all, as to the packages, could anything be more calculated to deceive? Those are the things by which the company really influenced customers. It is said by the defendants that they are very careful, and they have always been very careful, to avoid anything which could be considered as indications of any inten- tion on their part to pass their goods off as the others’. If they had been so very much minded in that way, why did they not make their packages different — the same shape and the same size it might be, because it might be convenient; but why did they not put them in a scarlet, blue, or orange and blue wrapper, or something that would have immediately shown not only to a person minutely comparing the things together, but to any person who was in the habit of having the things in an orange packet, that it was a blue packet? Why did they not do that, if they were minded, as they say they were, not only to take care that their things should not be mistaken, but that the world should know that they were rival manufacturers? Then there is the almanac which they have circulated, and in which they put things which were paid for by Thorley — Dr. Hassall’s description and re- 404 THORLEY’S CATTLE FOOD CO. v. MASSAM. port, and things of that kind, and other passages — for the pur- pose of implying that they were the persons for whom Dr. Has- sall’s report had been obtained, and that Dr. Hassall’s report was areport on their manufacture. Then there is this again: they put, ‘It is the best cattle food in the world. Upward of £95,000 has been awarded to horses and cattle fed on Thorley’s food for cattle. It has gained the diplomas from the Pennsylvania State Agricult- ural Society and of the Royal Agricultural Society,’ and so on, all of which was true of the article which was manufactured by Jo- seph Thorley, but was not true of the article which was manufact- ured by them; that is to say, their article had not received any of these things. They may say their article is the same, or as good, but in my opinion the representation is not, ‘We are mak- ing an article as good or the same as Thorley’s, which gained the prize,’ but ‘ This is the thing, we are the persons who are selling the thing, the produce of the manufactory, which has obtained those prizes.’ There are other things which I need not stop to dilate upon. On the parol evidence I am satisfied, and I agree very much with what Mr. Townsend said, with regard to the witness Stillwell, who was a traveller for the company, and who went to people and said, ‘I come from Thorley’s; Joseph Thorley is dead; the persons I repre- sent are carrying on the business.’ I have not the slightest doubt that, being well warned that he was not to say anything which could be construed into a positive assertion that the company were carrying on the same business at the same premises, or were the successors in business, he took care to say that they were carrying on the business of manufacturing food for cattle. It might be said, it was true that they were carrying on the food for cattle business; but the intention and the effect of that, in my mind, was to cause a belief to be enter- tained by the persons to whom it was addressed, who all say they did form that belief from it, that it was the same concern; that the com- pany were carrying on the same manufactory from which the things used to be distributed to the world. JI am therefore of opinion that in this case, what the defendant company have done has been calcu- lated to deceive, and I am bound to say in my judgment I have no doubt was from the first intended to deceive, the persons purchasing their article, into the belief that they were purchasing the article which Joseph Thorley had formerly manufactured at the works which had obtained the great reputation which Thorley’s manufacture appears to 405 CARROLL v. ERTHEILER. have obtained from the purchasers of those condiments. I am of opinion that the order should have been granted very much in the general words in which it was asked.” Baggallay and Bramwell, L. JJ., concurred. —-—. 669. Carroll v. Ertheiler. 1880. C.C. U.S. E. Dist. Penn. Not reported. PLAINTIFF'S bill set out the adoption of the arbitrary words “ Lone Jack” to denote a special brand of tobacco manufact- ured and sold by him. It further alleged that after the plain- tiff’s tobacco had become well known to the public under the name “ Lone Jack,” defendant manufactured and put into the market smoking tobacco in the shape of cigarettes, under the name or symbol of “ Lone Jack Cigarettes.” The device or figure used by defendant was different from that used by the plaintiff, and defendant’s name was conspicuously applied. On motion for preliminary injunction, Held, that defend- ant should be restrained from using the words “ Lone Jack” during the pendency of the suit. Per Butler, J. “The defendant rests upon a denial, first, that the defendant has used the trade-mark; and second, that he has used it as a designation of ‘smoking tobacco.’ “The second branch may, most conveniently, be noticed first. While the revenue laws, for purposes of taxation, distinguished be- tween smoking tobacco and cigarettes, there is, we believe, no sub- stantial difference. Cigarettes consist of smoking tobacco similar in all material respects to that used in pipes. The circumstance that a longer ‘cut’ than that commonly used in pipes is most convenient for cigarettes is not important; nor that the tobacco is smoked in paper instead of pipes. It may all be used for either purpose; and is all embraced in the term ‘smoking tobacco.’ We do not believe the pub- lic or the trade draws such a distinction as the defendant sets up. We have not overlooked the statements contained in his affidavits. But the method pursued in obtaining this testimony, generally, does not recommend it to our confidence. The affidavits seem to have been prepared without seeing the witnesses, and sent over the country to be signed by those who might be found willing to sign them. They 406 CONNELL v. REED. are, generally, similar in language, and printed. This method of ob- taining testimony is not worthy of encouragement. If the public and trade draw such a distinction, and, therefore, do not suppose the de- fendant’s cigarettes to be made of the plaintiff’s tobacco (and the de- fendant so understands), why does he adopt the designation by which this tobacco is familiarly known, and persist in using it? “The dominating characteristic of the plaintiff’s trade-mark is the name, ‘ Lone Jack.’ His tobacco has come to be known and de- scribed by this name throughout the country, to such an extent that the accompanying device has ceased to be important, if it ever was so —doubtless rarely observed, and slightly remembered. At home and abroad, to the trade and the public, it is familiarly known as ‘Lone Jack;’ and is thus designated as the plaintiff's manufacture, by purchasers and sellers. e “The defendant’s application of this name to his smoking tobacco is an adoption and use of the essential part of the plaintiff’s trade-mark. Surrounding it with a different device signifies nothing to the public — who attach no importance to the device of the plaintiff. The de- fendant’s name upon the cigarettes, if recognized (and it would not be without close inspection), would not inform the public that the to bacco is not of the plaintiff's manufacture.” 670. Connell ,v. Reed. 1880. S.C. Mass. Rep. A BILL in equity was brought to restrain the defendants from infringing an exclusive right claimed by the plaintiff in the words “ Hast Indian,” used with the word ‘‘ remedy” or “remedies” as a trade-mark upon bottles of medicine. It appeared that the plaintiff adopted these words to denote and to indicate to the public that the medicines were used in the East Indies and that the formula for them was prepared there, neither of which was the fact. Held, that to maintain the bill under these circumstances would be to lend the aid of the court to a scheme to defraud the public. Per Gray, C. J. “Although the master reports that there was no evidence that any other person than the plaintiffs or their agents had ever used these words in connection with the manufacture and sale of 407 ROYAL BAKING POWDER CO. v. McQUADE. medicines, it is at least doubtful whether words in common use as des- ignating a vast region of country and its products can be appropri- ated by any one as his exclusive trade-mark, separately from his own or some other name in which he has a peculiar right. But the con- clusive answer to this suit is that the master has found, upon evidence which appears to us to be satisfactory, that the plaintiffs have adopted and used these words to denote, and to indicate to the public, that the medicines were used in the East Indies, and that the formula for them was obtained there, neither of which was the fact. Under these cir- cumstances, to maintain this bill would be to lend the aid of this court to a scheme to defraud the public.” — 671. Royal Baking Powder Co. v. McQuade et al. 1880. C.C. U.S. Not yet reported. CoMPLAINANT had used and acquired a right of property in the word “ Royal” as a trade-mark for baking powder ; defendants, long after complainant’s goods had. acquired ce- lebrity in the market, made use of the word “ Loyal” upon the same class of goods and simulated complainant’s label. On motion for preliminary injunction, Held, that the word “ Royal” was a good trade-mark, and that the use by defend- ants of the word “ Loyal” should be enjoined pendente lite. Per Blodgett, J. “I think that it is very manifest there was an intention on the part of the manufacturer of this, the defendants’ powder, to obtain the benefit of whatever labor and effort the com- plainant has used to give reputation and character to his goods. There is the adoption, in the first place, of a word which is substantially tdem sonans with the word ‘Royal.’ The words are not, of course, precisely the same, but when rapidly spoken by people not accus- tomed to notice the nice distinctions of speech, they might be taken for the same word. There is also the adoption of a label which in colors, in its design, and collocation of the letters, and even of the vignette, and in all the characters which strike the eye, is so identical with that of the plaintiff, that it confirms the impression which would be created by the use of the general name, or generic term, that there was an intention on the part of the manufacturer of defendants’ goods to avail himself of the reputation of the plaintiff. It is true that the 408 SINGER MANUFACTURING CO, wv. BRILL. defendants have announced on the face of their label that this is not the ‘ Royal,’ but that is in a place where it would perhaps be the last thing that would be read, and that after the goods had been obtained and paid for, and it is after all a reservation which would avail the defendants nothing. It is an explanation which comes too late in the transaction to really exculpate the defendants. The make-up gener- ally of the package is so similar, and the imitation of the name is so similar, as to create naturally, and be calculated to create, the impres- sion upon people who are not particular in reference to terms, that they were buying the ‘ Royal’ when they were buying the ‘ Loyal.’ The class of persons who would naturally be sent to a grocery store to buy this class of goods would be such as might be imposed upon readily by the similarity of these two names.” —_+——__ 672. Singer Manufacturing Co. v. Brill. 1880. Superior Court of Cincinnati. Not yet reported. THIS was an action, under the code of the State of Ohio, for an injunction and an account. Three causes of action were recited. Plaintiff alleged that it was a corporation engaged in the manufacture and sale of sewing-machines, which ma- chines were known (1.) by the name or designation “ SINGER,” and (2.) by their appearance; that defendant had violated its rights by selling sewing-machines of similar appearance, under the name of “ ENGLISH SINGER SEWING-MACHINES.” The evidence tended to show that the defendant had never actually attached the word “ Singer ”’ to his machines, and that he had never directly represented in any way that they were made by the plaintiff. The court (Foraker, J.) said: “ There are but three general ques- tions presented. The first is: whether or not the word ‘ Singer,’ as it has been used by the plaintiff and its predecessors, denotes the manufacturer, or is a word of description only. “The second question is, as to whether or not, assuming that the plaintiff has trade-mark or trade name rights in the use of the name Singer, the defendant has infringed them. “ The third is, as to the right of the plaintiff to enjoin the defendant 409 SINGER MANUFACTURING CO. v. BRILL. from dealing in machines made in imitation, as to the form, appear- ance, ornamentation, etc., of the plaintiff’s machines. “The first of these questions is a question of fact to be determined from the evidence.” After examining the question at great length the court con- cludes : “From these considerations, united with the direct evidence offered by the plaintiff in support of its claim that its machines are not manu- factured according to any one system, pattern, or principle; and that the word Singer was always used by it and its predecessors to desig- nate that they were the manufacturers, I come, as I have said, without hesitation, to the conclusion that the decided weight of the evidence is with the plaintiff on this question. “In this review of the evidence I have omitted to make mention of many things confirmatory of this conclusion, because it is a matter of great tediousness to refer to all, and I deem it sufficient to name only enough to show the ground upon which my conclusion rests. “Tf I were to refer to any other, however, it would be to the fact established by all the witnesses in the case, those for the defendant as well as those for the plaintiff, that if an order were to be received simply calling for a Singer machine, it could not be filled until there had been an explanation specifying what kind of a machine was wanted. This seems to have been regarded as a vital point on this branch of the English cases that have been referred to. And justly so, since it shows that by the word Singer can not be meant any par- ticular machine or kind of machine.” Concerning the second point, after referring to certain similarities of little importance, his honor writes : “ The word ‘ Singer’ nowhere appears upon the machines sold by the defendant, but in all his cards, circulars, and newspaper adver- tisements he represents them to be ‘English Singer Sewing-Ma- chines, manufactured by the Williams Manufacturing Company, at Montreal, Canada.’ .... Can there be infringement of a trade name by merely advertising an article by the name . .. . without selling or offering it with the name attached. “ However it may be in the case of a trade-mark, as distinguished from a trade name, I am satisfied both upon reason and authority that there may be infringement in that way of a trade name. “J don’t know how I can better show this authority and the reason 410 SINGER MANUFACTURING CO. v. BRILL. of it than by quoting from the opinion of the Lord Chancellor in the case against Wilson, 8 App. Cases L. R. 389, where he says, speak- ing upon this point: “*My Lords, I am unable to see that this makes any difference in point of principle. It may well be that if an imitated trade-mark is attached to the article manufactured, there will, from that circum- stance, be the certainty that it will pass into every hand into which the article passes, and be thus a continuing and ever-present representa- tion with regard to it; but a representation made by advertisements that the articles sold at a particular shop are articles manufactured by A. B. (if that is the legitimate effect of the advertisements, which is a separate question) must, in my opinion, be as imperious in principle, and may possibly be quite as injurious in operation, as the same rep- resentation made upon the articles themselves.’ “The next question here presented is that suggested by the paren- thetical sentence of the Lord Chancellor, as above quoted, viz. : What is the effect of the advertisements made by the defendant ? “Jt is earnestly insisted by him that his advertisements and repre- sentations are of such a character as to preclude all possibility of de- ception ; that every one reading them is thereby apprised distinctly and plainly that the machines dealt in by him are not the machines made by plaintiff; and it is claimed that this was especially intended to be made to appear in order that defendant might have the benefit of the superiority which he claims for his machines. “There is no question but that it does appear from defendant’s ad- vertisements that the plaintiff is not the maker of them, and that his machines are called ‘ English Singers,’ and there is no question either but that, to one informed, these statements would be sufficient to im- part all that is claimed. “ But we must remember the fact, common to the knowledge of all, that the great mass of people likely to buy and use these machines are not so informed. The most that such persons know is that the machines called Singer Machines are what they want, and conse- quently, when they find the word Singer they are not apt to stop and read what accompanies it; but whether they are or not, the fact that they must do so to avoid being misled is sufficient. The defendant has no right to put them to that trouble or the plaintiff to that risk. “But again, if such advertisements do not deceive, if they are not in- tended to deceive, as defendant claims, why should they be made? If 411 LAWRENCE MANUF. CO. v. LOWELL HOSIERY MILLS. defendant wants to distinguish his machines from the plaintiff’s why use a word that can have no other effect than to make an explanation necessary ? It would seem easier for the defendant to guard and pro- tect the reputation of his machine against what he claims to be the inferior machine of the plaintiff if he avoided the use of the word altogether. But however this may be, the authorities are, without exception, that such use of the word Singer by the defendant, as he is shown to be making, is an infringement upon the rights of the plain- tiff in its use as a trade name, assuming, as I have found, that the. plaintiff has such rights.” The plaintiff’s contention, that it had a right of property in the “form, appearance, and ornamentation” of its machine, and that this right had been infringed by the defendant, was also sustained. The injunction restrained defendant from using the name “ Singer,” either alone or in combination with other words, in advertisements of his machine, and from selling sewing-machines having the external appearance, shape, or ornamentation of the machines of plaintiff’s man- ufacture. \ as 673. Lawrence Manufacturing Co. v. Lowell Hosiery Mills. 1880. S.C. Mass. —10 Rep. 809. PLAINTIFFS used as a trade-mark upon a certain grade of hosiery of their manufacture a certain device with the figures 523 under it; these goods were known and called for as “ 523’s.” The defendants afterwards used as a trade-mark upon goods of their manufacture a device somewhat resem- bling that of the plaintiffs’ and the figures 523 printed in the same kind of type, and placed as to the other parts of the de- vice in the same relative position as the plaintiffs’. Held, that the plaintiffs had established their right to the exclusive use of their device; that the numerals 523 were an essential part thereof; that the defendants had violated the plaintiffs’ right by the use of an imitation of said trade-mark, and had thereby deceived the public and injured the plaintiffs; and that the plaintiffs were entitled to the relief prayed for in their bill. 412 LAWRENCE MANUEF. CO. v. LOWELL HOSIERY MILLS. Per Colt, J. “The statutes of this commonwealth protect a per- son who uses any peculiar name, letters, marks, device, or figures upon an article manufactured or sold by him, to distinguish it as an article manufactured by him. Gen. Stat. c. 56, § 1. “Jt is said that there can be no exclusive right to use marks, fig- ures, or letters which are intended merely to indicate the quality of the fabric manufactured, as distinguished from those marks which are in- tended to indicate its origin, because one has no right to appropriate a sign, or symbol, or mark which, from the nature of the fact it is used to signify, others may use with equal truth, and therefore have an equal right to employ for the same purpose. .. . . And in Canal Company v. Clark, . .. . (827,) it was declared by Strong, J., that no one can claim protection for the exclusive use of a mark which would practically give him a monopoly in the sale of any goods other than those of his own manufacture. .... Letters and figures when used only for the purpose of denoting quality are, from the very nat- ure of the use, incapable of exclusive appropriation. These consider- ations would be decisive, if the plaintiffs here claimed the exclusive right to the numerals ‘523’ when used only to indicate the quality and not with reference to’ the origin of the goods. But such is not the plaintiffs’ position. Their claim is, that the purpose of using those figures in connection with the other parts of their trade-mark was to aid the buyer in distinguishing their goods from similar goods made and sold by others. “A trade-mark when applied to manufactured articles may well consist of the name and address of the manufacturer, with the addition of some peculiar device or curious figure, so disposed as to attract attention, and advertise more effectually the origin. of the article to which itis attached. And it may be that mere numerals, or letters of the alphabet, can be combined and printed in such unusual and pe- culiar forms that the result would be quite sufficient for use as a trade- mark. In Boardman v. Meriden Britannia Co... . (302) it was said that if numbers were once shown to have been used for the pur- pose of indicating origin or ownership, and to have had that effect, it would not be easy to assign a reason why they should not receive the same protection as trade-marks. The numbers in that case, however, were held, by virtue of their connection, to form an important part of the trade-mark itself. “Tt is not necessary that the resemblance produced should be such as 418 . MORGAN SONS CO. v. TROXELL. would mislead an expert, or such as would not be easily detected if the original and the spurious were seen together. It is enough that such similitude exists as would mislead an ordinary purchaser.” a 674. Morgan Sons Co. v. Troxell et al. 1880. Supreme Court of New York, General Term: before Davis, C. J., and Brady and Barrett, JJ, Not yet reported. CoMPLAINANT manufactured a scouring soap, which it put up in silver foil paper with a blue band, the band being car- ried around the cake lengthwise ; the defendants put up a similar article in silver foil paper with a blue band which was passed around the sides of the cake. Defendants’ band was broader than complainants’, and their cake somewhat differ- ent in size and shape; the color of the paper and brands were substantially the same. The following cuts illustrate the points of resemblance between the two cakes : — dé m4 BLUE. A a |G SILVER. Complainants’ Cake. Defendants’ Cake. The words upon the bands, which were employed as labels, were entirely different. Held, that complainants’ rights had been violated, and that it was entitled to an injunction. Per Barrett, J. “My impressions upon the argument of this case were that the referee had gone too far. There seemed to be con- siderable dissimilarity between the respective packages of ‘Sapolio’ and ‘ Pride of the Kitchen’ submitted for our examination. It did not appear probable that any person of intelligence could, even upon a casual inspection, mistake the one for the other. Upon the one, 414 MORGAN SONS CO. v. TROXELL. ‘Enoch Morgan’s Sons’ Sapolio,’ printed in gilt letters, met the eye; upon the other, ‘ Troxell’s Pride of the Kitchen Soap.’ Indeed, the principal similarity, aside from the form and size of the cake, was the wrapper of tinfoil paper encircled by a band of ultramarine blue. The further question suggested itself to my mind, Could the plaintiffs appropriate this peculiar combination of tinfoil paper with an ultra- marine blue wrapper and gilt letters printed thereon, and by applying it to scouring soap secure a trade-mark therein? A careful exam- ination of the evidence and further reflection have removed these im- pressions, and led me to the conclusion that the learned referee’s judgment was not only just, but sound in law. Whatever there is of dissimilarity in the two articles is but seeming. While there is an almost ostentatious display of variation in matters not likely to attract the attention of the casual purchaser, there is substantial similarity in the picture to which the eye has become accustomed. In this con- nection, we must not lose sight of the character of the article, the use to which it is put, the kind of people who ask for it, and the manner in which it is ordered. Very broad scene-painting will deceive an ignorant, thoughtless, or credulous domestic, looking for an article in common and daily use, and of no particular interest to her person- ally. The same kind of deception would be instantly detected by an intelligent woman of the world looking for her favorite perfume, soap, or dentifrice, or by a man of luxurious tastes inquiring for some special brand of champagne. Now, the evidence in the case is clear and abundant that the ‘Pride of the Kitchen’ was sold by many grocers as ‘Sapolio,’ and that many housekeepers were actually de- ceived. Nor can there be any doubt (we regret to say) that the ‘ Pride of the Kitchen’ was delivered by the defendants to these gro- cers with the intent that it should be sold as ‘ Sapolio.’ It was thus the defendants’ purpose to take advantage of the market secured by the industry of the plaintiffs and their predecessors, and by a large expenditure of time and money. They thus determined, by selling their goods as the goods of the plaintiffs, to build up a busi- ness in scouring soap upon their neighbors’ labor and capital. It would be a reproach to the administration of justice if the execution of this purpose could not be checked. “Tt is said that the plaintiffs cannot monopolize the use of tinfoil nor of blue paper. This is quite true, but it does not meet the ques- tion. The plaintiffs do not seek to monopolize tinfoil nor blue paper. 415 MORGAN SONS CO. vw. TROXELL, Any one may use these articles, and use them freely. They may be applied to any other soap. They may even be applied to scouring soap. All that the plaintiffs ask is that they shall not be applied to scouring soap in such form and manner, with such peculiar relations to each other and to the cake, as to deceive that special public which relies upon similar methods long since adopted by the plaintiffs and their predecessors. “A trade-mark is not necessarily limited to a device or name. Nor are we prepared to admit that a party cannot be protected in the combined arrangement of form and distribution of color, with which his goods are put up and placed before the public, especially where there is a fraudulent purpose, and where customers have, in fact, been deceived. If the plaintiffs cannot be protected ina‘... pressed and stamped cake enclosed in a tinfoil wrapper, encircled with an ultramarine blue band, printed in gold,’ neither can they, though other and still more novel, distinctive, and striking forms and colors be added. There might be double and treble bands of various colors and sizes, crossing each other in different places, with the margins cut or stamped in different shapes and styles. Yet, if the defendants’ contention be well founded, the plaintiffs could not be protected against their fraudulent reproduction. According to this doctrine, it is only necessary for the dishonest trader to avoid the use of some special word or device, to which the technical name trade-mark has been given, and to gain his piratical end, by imitating everything which really conveys to the public belief in the genuineness of the article sought. It must have been this shallow, as well as unworthy idea, which was in Troxell’s mind, when he declared his purpose of imitating ‘ Sapolio ’ as closely as possible, without absolutely making himself liable. “The law of trade-marks has been gradually expanding so as to meet just such cases. The courts, in a long and unbroken line of de- cisions, have endeavored to uphold and enforce commercial morality, and have afforded their protection to honest enterprise and skill. It will not be necessary to go over these cases. They have, in fact, be- come too numerous for extended analysis. .... It will be suffi- cient to state the general result . ... so far as may be applicable to the case at bar. We deem it, then, to be well settled upon author- ity, that to justify the interference by injunction of a court of equity, it is sufficient that there is a fraudulent intention of palming off the 416 MORGAN SONS CO. v. TROXELL. defendant’s goods as those of the plaintiff’s, and that such intention is being carried into execution. “ Caswell v. Davis [289] is supposed, by the appellants, to con- flict with this position, but we think without reason. “ All that was held in that case was, that there can be no trade- mark in words or phrases in common use which merely denote the character, kind, quality, and composition of an article. Consequently the name ‘ Ferro-Phosphorated Elixir of Calisaya Bark’ could not be protected. But there was no suggestion that the defendant would have been permitted to palm off upon the public his own preparation of ‘ Ferro-Phosphorated Elixir of Calisaya Bark’ as that of the plaintiffs, had the latter given their preparation any name exclusively indicative of origin or maker. If the plaintiffs there had called their medicine ‘ Caswell’s Ferro-Phosphorated Elixir of Calisaya Bark,’ or ‘Caswelline,’ the defendant certainly would not have been permitted to palm off his elixir as that thus characterized. Nor would he have been permitted, by the imitation of Caswell’s labels, signs, marks, or other symbols, to effect the same purpose. The Caswell case simply applies to the well-known doctrine that a trade-mark cannot consist of anything which merely denotes the name or quality of the article, and that, as was said by Judge Duer in the Amoskeag- case, 2 Sand. 609, ‘it is not enough that the public may be misled, or has been misled. As already intimated, the resemblance must arise from the imitation or adoption of those words, marks, or signs which the per- son first employing them had a right to appropriate as indicating the true origin or ownership of the article or fabric to which they are at- tached.’ It does not disturb the rule, that a trade-mark may consist of anything — marks, forms, symbols — which designates the true origin or ownership of the article... . “The true rule is well stated in the late English case of Mitchell v. Henry (43 Law Times, N.8.186). There the plaintiff’s trade-mark consisted of ‘a white selvage on each side of the piece, having a red and white mottled thread interwoven the full length of the selvage between the edge of the piece and the edge of the selvage.’ The goods sold by the defendant had ‘a black or very dark selvage, the plaintifi’s being white or nearly so; and the defendant’s had an inter- woven thread made up in their goods, composed of red, white, and yellow strands placed at the edge of the piece between the piece and the selvage.’ Upon that state of facts, Lord Justice James observed: 27 417 MORGAN SONS CO. v. TROXELL. ‘The master of the rolls seems to me to have considered that when he had satisfied himself, on the examination of the things before him, that the twisted thread in the defendant’s selvage was in a position different from that of the plaintiff's, and that the plaintiffs selvage could not be said to be white, then that determines the question. I am bound to say that to me the question is not whether the selvage is white, but whether it was what the trade knew as white selvage, — whether anybody connected with the trade could have any doubt whatever as to what was meant by white selvage. Then it is not at all conclusive to my mind whether the position of the defendant is the same or different from the position of the plaintiffs. Jt resolves ttself into the old question, which has always been the question to be determined in these cases, ‘‘ Are the defendants, not in words, but by acts, and by something on the face of the articles, representing their goods as being the goods of the plaintiffs?” That is to say, “Are they using something which is calculated to pass off their goods as the goods of the plaintiffs?”’. .. “The fact that the imitation is but partial cannot avail the defend- ants. ‘The question is, whether such a general resemblance remains as is designed to mislead the public (the Amoskeag case), and of that, as we have seen, there can be no doubt. It all comes to this, that, as was said in Perry v. Truefitt [73], ‘a man is not to sell his goods under the pretence that they are the goods of another.’ The law does not limit the form of the pretence; that depends upon the facts of each particular case. Here that element is clearly present, both in the picture presented to the public eye and in the facts disclosed by the witnesses. The fraud, for such it was, was long planned, and its execution proceeded by regular and steadily advancing steps. When it was found that bars of soap were unsatisfactory, a pressed and stamped cake was resorted to. ‘Then we have the polished pan and the face reflected therein, with the variation of a monkey for a man. Then came the various colored bands, none of which were found to answer the fraudulent purpose, culminating at last in the plaintifi’s ultramarine blue. What was done was done artfully, with a view to reach thoughtless and ignorant buyers, and yet to evade the law by an apparent exhibition of mere rivalry. It was also done shrewdly, by enlisting the retail grocers through the bait of reduced prices and increased profits, thus making allies of these men for the general dif- fusion of direct misrepresentation. It will not do to call this enter- 418 MANUFACTURING CO. uv. TRAINER. prise and energy, nor to stigmatize the demand for protection against such practices as an effort to limit legitimate competition and to pro- mote monopoly. ‘We find no error in the rulings of the learned referee upon any of the other questions presented, and we think that the judgment should therefore be affirmed, with costs.” 675. The Apollinaris Co. Limited v. Moore. 1880. C.C. U.S. E. D. of Pa.: before Buller, J. Not reported. CoMPLAINANT, being the lessee of a certain mineral spring, known as the * Apollinaris Spring,” brought suit for an in- junction against the defendant, to restrain the use of the word Apollinaris”” in connection with the sale of water com- pounded by him. It was contended on behalf of the defendant that complain- ant had no standing in a court of equity by reason of its hav- ing fraudulently sold the water as a natural water when it was in fact an artificial water. Held, that it appeared from the evidence that the water came from the Apollinaris spring, and that the statement that it was a natural product was substantially true; that the com- plainant’s rights had been infringed, and that an injunction should be issued. 676. Manufacturing Co. v. Trainer. 1880. U.S. Sup. Ct. 101. — U. S. 51. APPEAL from a decree of the Circuit Court of the United States for the Eastern District of Pennsylvania. Complain- ant used the letters “A. C. A.,” applying them upon the highest grade of ticking manufactured by it, and sought to prevent the defendant from using the same letters as part of a label for his goods. Held, that the letters sought to be pro- 419 MANUFACTURING CO. v. TRAINER. tected having been employed for the purpose of indicating quality, they could not be protected as a trade-mark. Field, J. “It is clear from the history of the adoption ‘of the letters ‘A. C. A.’ as narrated by the complainant, and the device within which they are used, that they were only designed to repre- sent the highest quality of ticking which is manufactured by the complainant, and not its origin. The device, previously and subse- quently used stated the name of the manufacturer, and no purpose could have been subserved by any further declaration of that fact. And besides, the letters themselves do not suggest anything, and require explanation before any meaning can be attached to them. That explanation when made is, that they are placed in the device of the company when it is affixed to the finest quality of its goods, while single letters are used in the same device when it is attached to goods of an inferior quality. They are never used by themselves, but merely as part of a device containing, in addition to the border in red, several printed terms. Alone the letters convey no mean- ing; they are only significant as part of the general device constitut- ing the trade-mark. Used in that device to denote only quality, and so understood, they can be used by others for a similar purpose, equally with the words ‘superior’ or ‘superfine,’ or other words or letters or figures having a like signification.” + 1In The India Rubber Co.v. The Rub- “2,” “101,” and “32.” In Collins v. ber Comb and Jewelry Co. (1879, N. Y. Sup. Ct. 45 N. Y. Sup. Ct. 258), there was an appeal from a judgment perpet- ually enjoining the defendant from us- ing any and all of the plaintiffs’ labels and trade-marks named in the com- plaint. The plaintiffs used a label bear- ing their name and a picture of their factory ; and claimed an exclusive right to the numbers “2,” “101,” “32,” as used to distinguish one class of rubber goods from another. The defendants used a label which resembled plaintiffs’, and the same numbers in substantially the same way. Decree for injunction restricting the use by defendant of the labels complained of, and the numbers The Reynolds Card Manufacturing Co. (1879, N. Y. Sup. Ct. 7 Abb. N. C.17), there was an action to restrain the de- fendauts from using the figures “35” for the purpose of designating photo- graphic cards made by them, whether upon the cards themselves or upon the labels of their boxes. Held, that, al. though the labels did not contain the plaintiffs’ name as manufacturers, yet, as the evidence established that the figures “35’’ were known and recog- nized by dealers as indicating plaintiffs’ cards, there should be an injunction. See, also, Gillott v. Esterbrook, 269; Lawrence Man. Co. v. Lowell Hosiery Mills, 676; Royal Co. vy. Sherrell, 671. 420 HIER v, ABRAHAMS, 677. Leidersdorf v. Flint. 1880. Sup. Ct. Wis.— 50 Wis, 401. _ Piartirrs filed their bill for an injunction to restrain defendant from fraudulently imitating their labels, and annexed to the complaint as exhibits their own labels and those of defendant. Defendant demurred on the ground that the labels annexed to the complaint appeared to be so dissimi- lar that no one could be misled, and that plaintiffs, for this reason, had not stated facts sufficient to constitute a cause of action. Held, that the court will not decide on demurrer that one label is not calculated to mislead, unless the dissimilarity is so marked as to leave no room for doubt. If the labels re- semble each other to any extent, the question of infringement will be reserved until the coming in of the proofs. Order overruling demurrer affirmed.1 eee ‘ 678. Hier v. Abrahams. 1880. N. Y. Ct. App.— 82 N. Y. 519. THE plaintiffs were manufacturers of cigars, and made use of the word “Pride” in connection with their firm-name, “ Mer g Aldrichs.” Defendant’s label, which was wholly unlike plaintiffs’ in appearance, consisted in part of the words “ The Pride of Syracuse,” together with their firm-name, “Abrahams & Co.” Held, that plaintiffs were entitled to an injunction restrain- ing the use by defendants of the word “ Pride,” notwithstand- ing that it was qualified by other words, and that defendants had not imitated the appearance of plaintiffs’ label. Rapallo, J. “Trade-marks are of two kinds. They may consist of pictures or symbols, or a peculiar form and fashion of label, or simply 1 But if the labels are obviously: dis- Collins Co. v. Capitol Co. 42 Fed. Rep. similar, « demurrer will be sustained. 64. , 421 HIER v. ABRAHAMS. of a word or words, which, in whatever form printed or represented, continue to be the distinguishing mark of the manufacturer who has appropriated it or them, and the name by which his products are known and dealt in. This distinction is recognized in the statutes for the protection of trade-marks as well as in the cases. The Act of 1862 (chap. 304), sections 1 and 3, makes it a misdemeanor, pun- ishable by fine and imprisonment, to counterfeit or imitate the stamp, brand, wrapper, label, or trade-mark of a manufacturer, etc., or to keep for sale goods upon which counterfeit labels or trade-marks are placed, And section 4 makes it a like misdemeanor to affix to any package any label, etc., which shall designate the article by a word or words which shall be wholly or in part the same to the eye, or in sound to the ear, as the word or words previously used by any other person to designate goods manufactured by him. “ Where the trade-mark consists of a picture or symbol, or in any peculiarity in the appearance of the label, the imitation must be such as to amount to a false representation, liable to deceive the public, and enable the imitator to pass off his goods as those of the person whose trade-mark is imitated. And when there is such an absence of resemblance that ordinary attention would enable customers to dis- criminate between the trade-marks of different parties, the Court will not interfere. “ But where the trade-mark consists of a word, it may be used by the manufacturer who has appropriated it, in any style of print, or on any form of label, and its use by another in any form is unlawful. The statute requires only that the imitation should be either the same to the eye, or in sound to the ear, as the genuine trade-mark, and this accords with the authorities. The goods become known by the name or word by which they have been designated, and not merely by the manner or fashion in which the word is written or printed, or the accessories surrounding it, and the unlawful use of the name or word in any form may be restrained.” 1 1 See Glen Cove Co. v. Ludeling, 695; Lawrence Man. Co. v. Tenn. Man. Co. 720. ; 422 GROCER PUBLISHING CO. v, GROCER PUBLISHING CO. 679. American Grocer Publishing Co. 'v. The Grocer Publishing Co. 1881. S.C. N. Y. Gen. T.— 25 Hun, 398. PLAINTIFF was the publisher of a weekly paper designated “ The American Grocer.” Defendant's manager, who had been in plaintiff's employ, began the publication of a weekly paper similar to that of the plaintiff, to which he gave the name “ The Grocer.” Defendant rented, offices near those occupied by plaintiff, and it was shown that plaintiff's paper was often referred to as “‘ The Grocer.” Held, that plaintiff was entitled to an injunction to restrain the use by defendant of the designation “The Grocer” as the name of its publication. Brady, J. “The plaintiff's paper had been well established, doubtless through the effective management of Mr. Price, and its reputation would therefore ensure its patronage, and it was entitled to protection from him as a citizen unwilling to be engaged in any effort to destroy its value or interfere with its advantages. “But it is not necessary under the rules of law, as they now pre- vail in this State in regard to trade-marks, to determine whether there was an intent to do wrong or not. The recent determinations of the Court of Appeals seem to place the right to protection upon the infringement of the proprietary right acquired by the use of a symbol or figure, or letter, or other form of device or name. It was distinctly said, for instance, in Colman v. Crump, 70 N. Y. 578 [579]: ‘ Neither is it necessary to establish guilty knowledge or fraud- ulent intent on the part of the wrong-doer. It is sufficient that the proprietary right of the party and its actual infringement is shown.’ .... “And the doctrine is declared in that case, also, that an actual intent to defraud can hardly be deemed necessary to entitle the plaintiffs to restrain the defendants from continuing the unlawful use of a trade- mark whereby the plaintiffs are sustaining damage; and itis said that the violation of such a right is, in legal contemplation, a fraud. If in this case, for example, it can be shown that any confusion is occa- sioned by the use of the name by the defendants in their business, it isadamage. It would involve investigation, and it would, no doubt, 423 SKINNER v. OAKES. lead to labor, or create an element which would not necessarily enter into the business of the plaintiff and require consideration, if the defendant’s paper were not published.” ? 680. Skinner v. Oakes. 1881. St. Louis Ct. of App.—10 Mo. App. 45. THE firm of Probasco & Oakes were candy manufacturers, doing business at St. Louis. Oakes sold out to Probasco, and conveyed to him the exclusive right to sell “ Oakes’ Candies.” Probasco subsequently sold the business and the same rights to a certain Hammon. Hammon conveyed to the respondents the naked right to use the designation “Oakes,” conveying nothing except the abstract right to use. Oakes subsequently married, and his wife commenced business and began to sell “ Oakes’ Candies.” Ina suit in the Circuit Court an injunc- tion was granted, and an appeal was taken to this court. Heid, that the name of a person is not such a species of property as can be disconnected from the business with which such person was formerly connected, and sold and delivered from man to man; that, when the assignee of a naked right to use a trade-name claims the exclusive right to sell goods bearing such name, he must show that the name was originally used 1In Forney v. Engineering News Company, 1889, N. Y. 8S. C. 10 N. Y. Sup. 814, decided by Judge Beach, plaintiff published a monthly with the title, “ American Railroad Journal and ‘Van Nostrand’s Engineering Maga- zine.” Defendant published a weekly using the title, “ Engineering News and American Railway Journal.” The two an adaptation of plaintiff's title, either exact or to an extent sufficient to show an appropriation of words producing similitude in the titles themselves, or from well-established popular designa- tion. “Above and beyond the technical rules regulating the application of equi- table relief lies the broad principle publications differed essentially in ap- pearance, and there was no evidence of actual confusion. There was a judg- ment for the defendant. The court said : — “ The principle is, that there must be necessitating a living equity in a plain- tiffs case rather than a skeleton only held together by the thin wire of ab- struse reasoning.” See Monroe v. Tousey, 727. 424 SAWYER v. KELLOGG. to designate goods of a certain quality, and is being used in the same sense by him to designate goods of substantially the same kind; that such use of the name does not operate to mislead the public; and that, on the facts, the bill should have been dismissed. Thompson, J. ‘“ We have given to this case long and anxious at- tention, and have considered attentively many decisions bearing upon the subject which we have not thought it necessary to cite. We have done this, not only because it involves important rules of prop- erty, but also because questions of public right and public policy enter into it, which courts of justice cannot ignore. We are dis- posed to uphold the assignability of trade-marks, trade-names, and the good-will of trading establishments, as far as authoritative courts have hitherto gone. “ But we cannot go to the wild length of holding that the name of a man may be segregated from the man himself, and from the business in connection with which the man has used it; erected into an ideal and abstract species of property; be made a subject of traffic and sale in the market from man to man, to be used in any manner in which the purchaser may choose to use it. In so far as the name of Oakes may have been used to designate candies of a particular kind and quality, the plaintiffs may have acquired a right thus to use it, which they may, on a subsequent trial, be able to show; but in so far as it represents to the public the personal skill and integrity of the man Oakes, the right to use it cannot, under any circumstances, become the property of a person bearing another name.” 4 ae 681. Sawyer v. Kellogg. 1881. U.S. C. C. Dist. N. J.— 7 Fed. Rep. 720. CoMPLAINANT, a manufacturer of bluing, packed his manu- facture in cylindrical boxes, using a blue label printed in four sections or compartments, in the principal one of which were displayed the words “ Sawyer’s Crystal Blue and Safety Box.” Defendant, Kellogg, was a dealer who sold bluing put up for 1 See Chadwick v. Covell, 716. 425 SAWYER vw. KELLOGG. him by others in boxes of the same size and shape as com- plainants’, using a blue label divided into four compartments, the principal compartment having displayed therein the words “ Sawin’s Soluble Blue and Pepper Box.” The defendant’s bluing was packed for him by the firm of Barron & Co.; and it appeared that there was a person by the name of Sawin who had authorized defendant to use his name. Held, that the complainant was entitled to an injunction restraining the use of the label complained of. Bradley, C. J. “As the label stands, it speaks a falsehood. The article covered by it is not ‘ Sawin’s Soluble Blue,’ and it is not ‘ pre- pared by W. E. Sawin, Jr.,’ as stated at the foot of the label. It evidently speaks this falsehood for a purpose, and that purpose, we are satisfied, is to obtain a closer imitation of Sawyer’s label. It is no excuse for the defendant that he does this work for other persons. He is just as guilty as if he did it for himself. All who are con- cerned in the commission of a tort are alike amenable to the party injured.” 682. Sawyer v. Kellogg. (2.) 1881. C.C. U.S. Dist. N. J. — 9 Fed. Rep. 601. THE court having decided that the defendant had made use of labels which were infringements of complainant’s rights, upon motion to strike from a proposed decree the parts thereof which directed an accounting and the taxation of costs, held, that the complainant was entitled to an account- ing and to recover costs. Nixon, J. “In England.the rule is stringent in trade-mark cases, that lack of diligence in suing deprives the complainant in equity 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, applied only to those cases where 426 a. CELE given — S Eicime BIT TERS.) Sond me a : i i yet ght Bs! D WE REGARD ‘ 7 : a At Ps BITTER! Tate “Tait? aes aia! "i an! 1 4 ny z ch at ys ‘ Mere Tr 7 . Tit ( os a sa pig i aw a ia > = Nees mien TON & tts: = CELEBRATED —— STOMAG ahs tna Ho MME bd ae net toad y ie if Lf ateis Leende “ eri c ‘4 Nea HOSTETTER v. ADAMS. 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 1878, there is no evidence that the complainant knew it until a short time before the suit was brought.” —_+——_ 683. Hostetter v. Adams. 1882. C.C.U.S.8.D. N. Y.—10 Fed. Rep. 838. COMPLAINANTS’ article, “ Hostetter’s Celebrated Stomach Bitters,” had acquired an extended reputation, and had long been put up in a bottle of a particular shape bearing an elab- orate label having distinctive characteristics. Defendants put up a similar article which they designated “ Clayton ¢ Russell's Celebrated Stomach Bitters,” and made use of bottles and labels which resembled those used in con- nection with complainants’ article. Fac-simile representa- tions of the bottles and labels of the parties are shown here- with, marked respectively ** Complainants’ Article” and ‘* De- fendants’ Article.” Held, that the use by defendants of their bottle and label was a violation of complainants’ rights. o Blatchford, C. J. “It is shown that there are no such persons as Clayton & Russell, and that the defendants’ label was prepared from the plaintiffs’ by intentionally making the parts in it which are like corresponding parts in the plaintiffs’ to be so like. It is plain that it is a copy from the plaintiffs’ by design. Variations are made of such a character as to be capable of discernment and description. But the general effect to the eye of an ordinary person, acquainted with the plaintiffs’ bottle and label, and never having seen the de- fendants’ label, and not expecting to see it, must be, on seeing the defendants’, to be misled into thinking it is what he has known as the plaintiffs’. The size, color, and shape of the bottle; the four lines of letters at the top of the label being, as to the three lower ones, identical, and as to the upper one differing only in the name; the gen- eral effect of the horse and his rider; the size and shape and color of 427 ENOCH MORGAN'S SONS’ CO. v. TROXELL. the shield, the white letters in it, and their size and arrangement in lines contracting in length towards the lower point of the shield ; the whole in black on white ground, and the border, — give an affirma- tive resemblance calculated to deceive an ordinary observer and pur- chaser having no cause to use more than ordinary caution, and make him believe he has before him the same thing which he has before seen on the plaintiffs’ bottle, and expects to find on the bottle he is looking at. The differences which he would see on having his atten- tion called to them are not of such a character as to overcome the resemblance to the eye of a person expecting to see only the plain- tiffs’ bottle and label, and having no knowledge of another. The testimony to the above effect is of great strength. “ The plaintiffs have no exclusive right to make the bitters. Their trade-mark is not in the words‘ Celebrated Stomach Bitters,’ nor have they any exclusive right to a bottle of the size, shape, and color of the one which they use. But the entire style of their bottle and label, of which those words form a part, is, in connection with the other particulars above mentioned, in which the defendants’ bottle and label are like theirs, the mark of their trade.” 1 —_—+——_ 684. Enoch Morgan’s Sons’ Co. v. Troxell. 1882. Ct. App. N. Y.—89 N. Y. 292. Held, veversing the General Term [674], that there was no cause of action. Rapallo, J. “Specimens of the packages and labels used by the plaintiffs, and of those used by the defendants, and which are claimed to be an infringement of the plaintiffs’ trade-mark, have been sub- mitted to our inspection, and we are clearly of opinion that there is too great a dissimilarity between the two to sustain the judgment in this case. The only points of similarity between the two articles sold is that they are both small cakes of soap covered with tinfoil or tinned paper, and having a blue band around them, with gilt letter- ing. The cakes are not even of the same shape, one being nearly square, and the other an oblong square. But we are of opinion that this form of package, with a blue band and gilt lettering, could not 1 See the next case, No. 684. 428 ENOCH MORGAN’S SONS’ CO. v. TROXELL. be appropriated by the plaintiffs as a trade-mark. There is nothing peculiar about it, and it is an appropriate and usual form in which to put up small cakes of soap; and the law of trade-marks has not yet gone so far as to enable a party to appropriate such a form of pack- age and fashion of label and exclude every one else from its use, or from the use of anything resembling it. If it had, the different forms and fashions of cigar boxes, packages of chewing tobacco, perfumery, canned goods, and other small articles, and the color or style of labels which every dealer according to his taste adopts, or selects from those in use, would afford food for litigation sufficient to yive constant occu- pation to the courts.” + 1 In Apollinaris Co. v. Brumler, in the Supreme Court of New York, reported in N. Y. Law Journal, February 4, 1890, Judge Patterson writes : — “Tt is not necessary on this motion to decide whether or not the plaintiff has an exclusive technical trade-mark right in the labels, or the combination and arrangement of color, form, or style of such labels, used upon its bottles in this market. It may be doubted whether a manufacturer, producer, or dealer can acquire a multitude of different trade- marks, and claim an exclusive right to any one of them, because he uses that one only in a restricted territory or a particular place or market, and the remainder in other places; but here it is fully established, as I think, that the purpose of the defendant, or the com- pany for which he acts as sole resident agent, was to adopt this arrangement (position on the bottle, shape and color combined) of orange or yellow body and neck labels in order to sell in the American market goods under a gen- eral resemblance to bottles of Apolli- naris water. “That bottles of the Victoria water, as put up with these ozange-colored labels, may well be mistaken for Apol- linaris, at a short distance and without close inspection, was quite apparent on the exhibition of such bottles on the argument, and that they have been so mistaken is incontestably shown in the moving papers. The conduct of the defendant or his principals in thus imi- tating the plaintiff’s packages or bottles is such as justifies and requires the in- terposition of a court of equity. “The exercise of the power of the court does not depend upon the plain- tiff having an exclusive trade-mark right, but on the general jurisdiction of a court of equity to prevent fraud. This has been so often decided as to names which do not constitute trade- marks in a technical sense, and as to labels and symbols which are not re- garded as exclusive trade-marks, that the law would appear to be well settled but for some cases in this State which seem to have been misunderstood or misapplied. “The case generally, and I may say always, now cited against the view here expressed is what is known as the “Sapolio’ case (Morgan y. Troxall, 89 N. Y. 292), but it is evident that as that case came before the Court of Appeals it was regarded and disposed of simply as a technical trade-mark case, and that Judge Rapallo and the court did not intend the remarks in the closing paragraph of the opinion to state a rule of law, that unlawful competition in trade would not be en- joined unless the plaintiff showed prop- erty in a trade-mark, for the case did 429 CLEMENS v. BELFORD. 685. Clemens v. Belford. 1883. U.S.C. C.N. D. Ill. —14 Fed. Rep. 728. THE bill alleged that complainant had for many years made use of the name “ Mark Twain” asa nom de plume, which had become widely and favorably known as such; that de- fendants were using complainant’s said nom de plume without his consent, and that, although they were using it only in con- nection with complainant’s writings, their acts in the premises were inequitable, and should be enjoined. Upon demurrer, held, that the bill should be dismissed ; and that an author or writer has no better or higher right in a nom de plume or assumed name than he has in his Christian or baptismal name. Blodgett, J. “The bill rests, then, upon the single proposition, is the complainant entitled to invoke the aid of this court to prevent the defendants from using the complainant’s assumed name of ‘ Mark Twain’ in connection with the publication of sketches and writings which complainant has heretofore published under that name, and which have not been copyrighted by him? That he could not have done this, if these sketches had been published under complainant’s proper name, is clear from the authorities I have cited, but the com- plainant seems to assume that he has acquired a right to the protection of his writings under his assumed name as a trade-name or a trade- mark. not call for such a ruling and no au- thority is cited, while the books, Ameri- can and English, are filled with deci- sions to the contrary (Croft v. Day, 7 Beav. 84; McLean v. Fleming, 96 U.S. 245; Thomson vy. Winchester, 19 Pick. 214; Perry v. Truefitt, 6 Beav. 66; Newman vy. Aivord, 51 N. Y.189; Lever v. Goodwin, 57 L. T. N.S. 383; Sawyer v. Horn, 4 Hughes, 239; Robertson v. Berry, 50 Md. 591; Carson v. Ury, 39 Fed. Rep. 777, and other cases).” And see the observations of the court in the Vulcan Company’s Case, No. 715. See, also, Williams v. Johnson, 150; Avery v. Meikle, 686. In Mumm vy. Kirk, 40 Fed. Rep. 589, the use by defendant, in connection with unobjectionable labels, of a capsule of the same color and general appearance as that used by complainant, with no proof of actual mistake, was held to constitute no cause of action. Judge Coxe said : — “No authority has been cited which, in my judgment, sustains the advanced position contended for by the complain- ants”? es 430 CLEMENS v. BELFORD. “This is the first attempt which has ever come under my notice to protect a writer’s exclusive right to a literary property under the law applicable to trade-marks. Literary property is the right which the author or publisher of a literary work has to prevent its multiplica- tion by copies or duplication, and is from its very nature an incorporeal right. William Cobbett could have no greater right to protect a lit- erary production which he gave to the world under the fictitious name of ‘Peter Porcupine’ than that which was published under his own proper name. The invention of a nom de plume gives the writer no increase of right over another who uses bis own name. Trade-marks are the means by which the manufacturers of vendible merchandise designate or state to the public the quality of such goods, and the fact that they are the manufacturers of them; and one person may have several trade-marks, designating different kinds of goods, or dif- ferent qualities of the same kind; but another cannot, by the adop- tion of a nom de plume, be allowed to defeat the well-settled rules of the common law in force in this country, that the ‘ publication of a literary work without copyright is a dedication to the public, after which any one may republish it.’ “No pseudonym, however ingenious, novel, or quaint, can give an author any more rights than he would have under his own name.” It was also said: “No person has the right to hold another out to the world as the author of literary matter which he never wrote; and the same rule would undoubtedly apply in favor of a person known to the public under a nom de plume.” 3 1 The reasoning of this case is not displaced or enlarged by the more re- cent cases, nor is there any room for difference of opinion as to the accuracy of Judge Blodgett’s distinctions and definitions. It is necessarily true that the name of a book is, under all circumstances, a descriptive term which means a partic- ular thing. The book is created and given a name, and the name is added to the language as a term of description. term, becomes publici juris. If the book is not copyrighted, the literary matter becomes publict juris as soon as it is published, and the name of the literary matter goes to the public as an incident of that which it describes. If there is language in some of the cases which seems to indicate that the name of a book can be protected asa trade-mark, reflection will demonstrate that it cannot be made good. The names of periodicals and newspapers, as If a copyright is taken, the owner of the copyright enjoys, as long as the privilege continues, the exclusive right to the use of the name; and when the privilege expires, the name, always a descriptive distinguished from books, are protected as in the nature of trade-marks [724, 727]; aud in many instances the publi- cations in connection with which the names have been used were proper 431 AVERY v. MEIKLE. 686. Avery v. Meikle. 1883. Ct. App. Ky.— 81 Ky. 75. APPELLANTS were successful manufacturers of ploughs, to which they applied their trade-mark, together with numerous descriptive words and letters indicating size and quality, which were displayed and arranged in a characteristic manner. Defendants manufactured ploughs in imitation of appellants, painting them the same colors, and applying the same descrip- tive words and letter, in the same type and with the same acces- sories as had been used by appellants, but did not use an imi- tation of appellants’ trade-mark. Held, that appellants were entitled to an injunction and other relief. Hargis, C. J. ‘‘ What are the facts of this case? The appellees have not used a single letter, figure, or word that belongs to appel- lant’s trade-mark proper; yet by the exact simulation of the plough in every perceivable point exposed to an ordinary observer and pur- chaser, and the use of the same coloring and staining, the same rela- tive position of the letters and figures as employed and used by the subjects of copyright. In some cases they contained, or might have econ- tained, articles in connection with which the statutory privilege had been ac- quired. But the name which has been protected has never been simply the name of a book, but always that of a constantly changing series. Thus the term “Old Sleuth Library” was dis tinetly arbitrary, and never the name of a particular book or literary produc- tion; and for this reason it was in an accurate sense a trade-mark, and must continue to be as long as the publica- tion was continued. But if the publica- tion of the perodical were discontinued for a period of years, the name would cease to be arbitrary and take its place in literature as indicating a definite col- lection of articles, pictures, ete.; and as soon as it acquired that settled mean- ing, it would in the absence of copy- right become publici juris. There are many subtle distinctions to be observed, but they are all founded in principle. The statutes concerning copyrights have little elasticity; the common law has much. Wherever there is a copyright, there has been, as a condition precedent, a surrender of all rights existing at common law. To get the statutory privilege, the applicant moust first abandon his common-law rights; and, after he has done so, he may proceed to acquire the benefits of a compliance with the statutes. When he has surrendered his common-law rights they have ceased to exist, and he can build only on what the statute has given him. See Afunro v. Tousey, 727; Munro v. Smith, 724. 432 AVERY v. MEIKLE. appellants, avoiding the literal appropriation of any part of their trade-mark, the appellees have obscured their own and appellants’ trade-mark, but at the same time sought to avoid detection and respon- sibility in doing so; and to cause their ploughs to be taken for and purchased as those of appellants. Thus by skilful combination of legal particles, taken one at a time and in the agyregate, leaving the mere trade-mark untouched, they have so confused its force and effect as to destroy its office and real efficiency to distinguish the appellants’ ploughs from all others. “1. The appellees laid aside their own letters and numerals, which they commonly used to indicate the size, series, and quality of their ploughs, and literally took up those of the appellants. “2. They quit lettering cast and figuring steel ploughs, and reversed that order and adopted the order of use by appellants. “3. They consulted and deliberated before adopting the letters and numerals or imitating the construction of appellants’ ploughs. “4, After the deliberation they so imitated the construction, nu- merals, and lettering of appellants’ ploughs, that nothing but the reading of their trade-mark and close inspection could distinguish the difference. “5. They made large quantities of ploughs, leaving off their own trade-mark and name, and substituting therefor the names of jobbers, who were well known in the market to be vendors and not makers of ploughs, making it in their hands therefore impossible, without the aid of expert knowledge, to tell the difference between a Meikle and Avery plough, as they both had the same indicia and were constructed alike, the maker’s name being altogether suppressed. “6. They have employed small salesmen to sell their ploughs who place them on the market one half dollar cheaper than the Avery ploughs, and so advertised them as to be taken for those of the appel- lants. “The combined force of this evidence is irresistible. It shows an intentional infringement, and not only possible injury, but such facts from which the law presumes some injury at least to be the necessary consequence. If such infringement as this be not enjoined and the profits resulting from it returned, then trade-mark law will never accomplish its prime object, named in the first sentence of this opinion on that branch of the subject we have discussed. The trade mark and trade-reputation pirate always undertakes the difficult task of 25 483 AVERY v. MEIKLE. sailing between the Charybdis and Scylla of the law, but he should never be allowed a successful voyage. If, on the one hand, he es- ‘capes the rock by not infringing through instrumentality of the ‘trade-mark itself, he will not, on the other, if courts of equity are true to the principles of their own existence, be allowed a safe pas- ‘sage by the use of any means of deceit or false representations known to the inventive brain of man. Courts of law and equity have finally ‘become possessed of jurisdiction, through the unfolding process of adjudication, ample to protect a trade-mark, which may be used by ‘all to'distinguish their goods from others; to prevent the sales of the goods of one as being those of another by means of fraud and misrep- resentation in the use of marks, signs, words, numerals, or symbols ; ‘to afford redress for such sale of goods which are a misleading imita- tion of those of another, for whose manufacture they may be sold, where intentional false representations or fraud, from which damage the sales are made by the use of a trade-mark, or direct or indirect, is presumed and its extent may be proven. In all cases, however, ‘the conduct or adopted means of the imitator must be such as does or would probably deceive the ordinary mass of purchasers. “Tn conclusion, we repeat that this law grows out of the common principle of justice that the rights of each be so used as not unne- cessarily to injure those of others, whose skill has made their goods valuable in their reputation, that finally compensates them for their enterprise, industry, and fidelity. We are, therefore, of the opinion that the relief prayed for should have been granted.” ? 11t is not difficult to explain the apparent conflict in the cases relating to imitations which appeal to the eye, but which do not involve the infringe- ment of a technical trade-mark. It is well-settled that courts of equity have jurisdiction to restrain the use of a simulated package, and it is equally certain that in a proper case the in- fringement will be effectually checked {150}. The cases in which relief has been refused may be generally divided into two classes. In the first class, the de- cision has been made to rest upon the broad finding of fact, that the goods of the parties were so dissimilar in appearance that there was too much doubt to warrant the interposition of the court. (See notes to 684.) In the other class of cases, the cause of action has been based upon an alleged right of property, which has compelled a conclusion in favor of the defendant, however apparent may have been the power and inclination of the court to redress the injury. What degree of resemblance is ne- cessary to warrant the issuance of an injunction must always continue to be a question which cannot be settled by formulated opinion. As long as there are different types of judicial minds and different degrees of mental acute- 434 GRAY v. TAPER-SLEEVE PULLEY WORKS. 687. Gray v. Taper-Sleeve Pulley Works. 1883. C.C. U. S. W. D. Pa.—16 Fed. Rep. 436. COMPLAINANTS adopted and used as their trade-name the designation “ TAPER-SLEEVE PULLEY Works” and carried on a successful business at Erie, Penn. Their goods were patented and known as “ Taper-Sleeve Pulleys.” Defendants, who had acquired the right to manufacture the patented article, began business at Dubuque, Iowa, and were incorporated under the name of “ Taper-Sleeve Pulley Works.” Injunction granted to prevent the use by defendants of the designation ** TAPER-SLEEVE PULLEY WORKS.” Acheson, J. “ The complainants seek to have the defendant com- pany restrained by injunction from using the name ‘ Taper-sleeve Pulley Works.’ Are they entitled to such relief ? “Tt will be observed that the complainants do not claim to have the exclusive right to use the descriptive appellation, ‘ Taper-sleeve Pulley.’ They freely admit that the defendant, having the right to make and sell that device, has also the right to designate it by the name it has acquired in the trade. Nor do they question the right of the defendant company to advertise itself as a manufacturer and vendor of taper-sleeve pulleys. They object not to honest rivalry. Their complaint is against what they assert is unfair competition, by reason of the unnecessary and hurtful appropriation by the defendant of their long-used and established trade name, by which their wares are everywhere favorably known, and upon which their good business reputation rests. . . “No one can claim protection for the exclusive use of a trade- name or trade-mark which would practically give him a monopoly in the sale of any goods other than those produced or made by himself. Nor can a generic name, or a name merely descriptive of an article of trade, of its qualities, ingredients, or characteristics, be employed ness, there will be an apparent diver- mistake is necessary [724], or proof sity of opinion. which makes in the same direction ‘The existence of this uncertainty has [698]. See Enoch Morgan’s Sons’ Co. resulted in thé evolution of the rule v. Zrowell, 684. that in doubtful cases proof of actual 435 HOSTETTER v. FRIES. as a trade-mark, and the exclusive use of it be entitled to legal pro- tection. “Ts there anything in these rules which the defendant company can invoke to justify it in assuming the business name hitherto in the exclusive use of the complainants? The title when adopted by Gray was novel as a trade-mark, —it is certainly a very peculiar trading appellation, — and by long association it has become insepa- rably identified with the complainants’ business, pointing directly to the origin of all the wares, of every kind, of their manufacture. The title ‘ Taper-sleeve Pulley Works’ is not merely descriptive of an article of manufacture or trade, as the words ‘ Lackawanna coal’ were (in Canal Co. v. Clark) held to be. Nor does this name, by any means, give the complainants a monopoly in the manufacture and sale of the device called the ‘ taper-sleeve pulley.’ The defend- ant may unrestrictedly use that name as descriptive of such pulleys of its manufacture. The distinction between such use of those words and the assumption of the complainants’ trade-name is of easy com- prehension, and was well understood by the corporators composing the defendant company, whose original purpose it was to carry on their operations under the firm name ‘ Farrar, Christian & Co.’ “Tn my judgment, the complainant’s right to equitable protection is as clear, and the necessity for the exercise of the restraining power of the court is as urgent, as in any case to which my attention has been called, in which the like relief was granted.” ? —— 688. Hostetter v. Fries. 18838. C.C. U.S. 8S. D. N. Y.—17 Fed. Rep. 620. COMPLAINANT manufactured bitters which were widely known as ‘“‘ Hostetter’s Bitters.” Defendants sold a certain extract of their own manufacture with instructions how to use it to produce “ Hostetter’s Bit- ters.” Motion for preliminary injunction denied.? 1 See Lawrence Man. Co. v. Tenn. 2 See Hostetter Co. v. Brueggman- Man. Co. 720. Reinert Co, 729. 436 COLLINS CO. vw. OLIVER AMES & SONS. 689. Collins Co. v. Oliver Ames & Sons. 1882. U.S.C. C.S. D, N. Y.—18 Fed. Rep. 561. COMPLAINANT had acquired the right to stamp the name “ Collins ¢ Co.” upon all articles of metal manufactured by it. It made a variety of articles which were thus stamped, but did not manufacture shovels. Defendants manufactured shovels, which they stamped with the name “ Collins ¢ Co.,” and sent them to Australia where complainant’s goods were in demand. Held, that complain- ants were entitled to an injunction. Blatchford, J. “It is strongly urged, on the part of the defend- ant, that a mark or stamp, to be a trade-mark, must be the mark of an existing trade; that the mark ‘ Collins & Co.’ on shovels, when adopted by Ames & Sons, became the mark of a trade in shovels carried on by Ames & Sons; that the plaintiff had no trade in shovels at the time, that the mark ‘ Collins & Co.’ thus became the mark of Ames & Sons’ trade in shovels, and the property of Ames & Sons in respect to shovels made by them, by prior right; that any use of that mark on shovels afterwards by the plaintiff became wrongful as against Ames & Sons or the defendant; and that the plaintiff has no right in the premises which it can enforce against the defendant. This view is specious but unsound. The plaintiff having from 1843 the right to make any article of iron, steel, or other metal, and hay- ing gone on from that time, both before and after 1856 extending its manufacture beyond edge-tools, into digging tools, such as picks and hoes, and having always put the mark ‘Collins & Co.’ on its best quality of articles, the fact that it did not before 1856 make a dig- ging tool such as the shovels on which, in 1856, Ames & Sons put the mark ‘ Collins & Co.’ does not warrant the conclusion that that mark was not in 1856 the mark of the plaintiff's trade in respect to such shovels. “The plaintiff is entitled to a decree for a perpetual injunction, as prayed in the bill, and for an accounting before a Master as to profits and damages, and for the costs of the suit.” } 1 See Eno v. Dunn, 719. 487 SELCHOW v. BAKER. 690. Selchow v. Baker. 1883. Ct. App. N. Y.— 93 N. Y. 58. APPEAL from an order of the General Term of the Court of Common Pleas affirming an order of the Special Term granting a preliminary injunction restraining defendants from using the names “ Sliced Animals,” “ Sliced Birds,” “ Sliced Oljects,” in connection with certain games or puzzles. Plaintiffs manufactured a game or puzzle which consisted of pictures of animals, birds, etc., which had been mounted on pasteboard and cut into strips or sections. These strips or sections were placed in boxes and sold under the names “© Sliced Animals,” “ Sliced Birds,” ‘ Sliced Objects.” De- fendants manufactured similar games or puzzles and made use of the same names. The defence interposed was that the names were descriptive, and that, for that reason, there was no cause of action. Held, that the designations used by plain- tiffs were lawful trade-marks, which plaintiffs were entitled to use as such to the exclusion of all others. Rapallo, J. “ The plaintiffs have no exclusive right to manufac- ture or vend the articles to which they have attached their names, but they have the right to attach to the articles which they may man- ufacture any distinctive name, and to appropriate it as a trade-mark, by which such articles may be distinguished from similar articles manufactured by other persons, provided the name so selected by them is original, and has never before been applied to such articles, and provided, also, that it is an arbitrary or fanciful name, not in itself descriptive of the article. The reason for not permitting names, descriptive of the article or its component parts, to be appro- priated as trade-marks, is that inasmuch as all persons have an equal right to produce and vend similar articles, they also have the right to properly describe them, and to use any appropriate language or words for that purpose, and no person can appropriate to himself exclusively any word or expression, properly descriptive of the article, its qualities, ingredients, or characteristics, the right to the use of such language being common to all. But a name which does not, in itself, indicate what the article is, or what are its qualities or 438 THE ROYAL BAKING POWDER CO. v. SHERRELL. component parts, but which is invented or adopted by a manufac- turer solely for the purpose of distinguishing his products, and whose exclusive appropriation to that purpose in no way restricts others from properly describing similar articles produced by them, may be appropriated as a trade-mark and protected as such. “In the present case the infringement complained of consists in the unauthorized use of the words ‘ Sliced Animals,’ etc., which had been appropriated by the plaintiffs as the name of the toy. This word was not, in our opinion, descriptive of the article. It would uot convey to a person who had uever seen the toy, and who did not know what it was, any idea of its character, nor would it be an ap- propriate term to be used by a person desiring to give a correct or any description of it. It does not even indicate that pictures of any kind are referred to, and none of the objects are in fact sliced. The name had been invented by the plaintiffs and had never before been applied to the toy, although toys of a similar character had been in use. The plaintiffs were the only persons using it, and it had become the distinguishing mark by which their manufactures had become known and were dealt in in the market. It is difficult to conceive what motive the defendants could have had in adopting it, other than to appropriate to themselves the benefit of the popularity which the plaintiffs had obtained for their products, by advertising and other means, and to divert their trade to themselves. We think the word adopted by the plaintiffs constitutes a valid trade-mark.” ' a bas 691. The Royal Baking Powder Co. v. Sherrell. 1883. Ct. App. N. Y. —93 N. Y. 331. PLAINTIFF manufactured flavoring extracts and designated its best grade “ Royal,” using the word for the purpose of in- dicating its best quality. Defendants manufactured flavoring extracts and made use of the designation “ Royal Standard,” 1 This important case is referred to Manufacturing Co. [704], and by Judge with approval by Mr. Justice Bradley in Shipmanin Celluloid Manufacturing Co. Celluloid Manufacturing Co. v. Cellonite v. Read [723], and in other cases. 439 MORGAN v. ROGERS. e which term they had previously used in connection with mus- tard, and to denote a particular quality thereof. Heid, that the plaintiff was not entitled to the exclusive use of the word “ Royal” as a trade-mark, and that, in the absence of fraud, there was no cause of action. Rapallo, J. “In the present case the evidence shows that the ‘word ‘ Royal’ was used on one of their grades of extracts, for the purpose of designating one of their grades. There was no element of fraud or imitation, for it appears that the defendants did not even know of the use of the word by the plaintiff until this action was brought. They used it, not as an imitation of any trade-mark of the plaintiff, but in connection with the word ‘Standard,’ to denote a superior quality, as they had previously used the words ‘ Royal Standard’ on mustard, and we are of opinion that this was no viola- tion of any exclusive right of the plaintiff.” —_+——_ 692. Morgan v. Rogers. 1884. U.S.C. C. Dist. R. I. — 26 O. G. 1113. Held, that a trade-mark is an asset which passes by opera- tion of a general assignment without specific mention. Colt, J. “If a trade-mark is an asset, as it is, there is no reason why it should not pass under the term ‘assets’ in an instrument which conveys the entire partnership property. To hold that the trade-mark is not included in this mortgage is to say that the most valuable part of the partnership property is not covered by the words ‘assets and effects of every kind and nature.’ ” ? 1 See Manufacturing Co. v. Trainer, 420, the doctrine of this case is dis- 676. cussed and approved. 2JIn Merry v. Hoopes, 111 N. Y. 440 DE KUYPER v. WITTEMANN. 698. Siegert v. Abbott. February, 1884. Ct. Ap. Md. —61 Md. 276. THE complainants were manufacturers of a bitters which had acquired reputation under the name of “ Angostura Bit- ters.” Defendant made use of labels substantially like those of the complainants, consisting in part of the designation “* Angostura Aromatic Bitters.” The defendant alleged that complainants’ bill should be dismissed because their labels contained two misrepresenta- tions: 1. That the article was prepared at the Port of Spain by Dr. Siegert, when the facts were that he was dead, and had never lived at the Port of Spain. 2. That the label bore complainants’ signature, when in fact it bore that of the ori- ginal inventor. Held, that these misrepresentations disentitled the plain- tiffs to relief in a court of equity, and that the bill should be dismissed. Irving, J. “We are unable to distinguish this case from the Manhattan Medicine Company case [628], from the opinion in which we have quoted, and which we think is proper to follow in a case of this nature, in the absence of a statute of the State controlling the subject.” + 694. De Kuyper v. Wittemann. 1885. C.C. S. Dist. N. Y.— 28 Fed. Rep. 871. DEFENDANTS, who were label-printers, manufactured and sold labels which were copies of those used by complainants. The bill alleged that defendants were engaged in assisting others in infringing complainants’ trade-mark. On demurrer, Held, that the bill stated a cause of action. Wallace, J. “Upon the allegations of the bill the defendants are 1 See Siegert v. Abbott (2) [718]; Pidding v. How, 60; Koehler v. Sanders, 710. 441 GLEN COVE MANUFACTURING CO. v. LUDELING. actively engaged in assisting third persons to use the complainants’ trade-mark in violation of their rights. The mere act of printing and selling labels in imitation of the complainants’ might be innocent, and, without evidence of an illicit purpose, would not be a violation of the complainants’ rights. It is otherwise, however, when this is done with the obvious purpose of enabling others by the use of the labels to palm off their goods upon the public as the goods of the complainants.’ — 695. Glen Cove Manufacturing Co. v. Ludeling. 1885. C.C. U.S. S. Dist. N. Y.— 22 Fed. Rep. 823. THIs was a suit to restrain the defendant from using the word “ Maizharina” as a trade-mark for corn flour. In 1881 the complainant registered the word “ Maizena”’ for corn flour, and thereafter defendant used the word ‘ Maizha- rina” on his packages, surrounded by accessories very simi- lar to those used by complainants. Held, that the word “ Maizharina” as used was an infringement of complainant’s rights. Heid, also, that the right acquired by registration under the Revised Statutes of the United States has relation to foreign commerce and with the Indian tribes, and that the right is infringed only where the defendant’s mark is used in such commerce. Wallace, J. “Granting that the word and picture of the defend- ant are different from those of the complainant, a court of equity would enjoin the defendant from using them with such accessories as would lead purchasers to confound the one with the other, not because of the infringement of complainant’s trade-mark, but because the defendant would not be allowed by any deceitful practice to impose upon the public to the prejudice and injury of the complainant. “ Unless the complainant’s trade-mark is used on goods intended to be transported to a foreign country by the terms of the act of 1 See Carson v. Ury, 709. 442 : ANHEUSER-BUSCH BREWING ASS’N wv. PIZA. Congress, the court can take no cognizance of the wrong in a suit between citizens of the same State. . . . “Tf the decision were to depend solely upon the question of a sub- stantial similarity in the sonorous properties between the words used by complainant and that used by the defendant, decisions in analo- gous cases furnish sufficient authority for granting an injunction. Thus the word ‘ Cocoine’ has been held to be an infringement of a trade-mark in the word ‘ Cocoaine’ (Burnett v. Phalon, 42 N. Y. 594) [277] ; ‘Bovina,’ of the word ‘ Boviline’ (Lockwood v. Bostwick, 2 Daly, 521) [319]; the word ‘ Apollinis’ of the word ‘ Apollinaris ’ (Actien- Gesellschaft Apollinaris-Brunnen y. Somborn,} 14 Blatchf. 380) ; ‘ Hostetler’ of the word ‘ Hostetter’ (Hostetter v. Vowinkle, 1 Dill. 329) [866]; ‘Leopoldsalt’ of the word ‘ Leopoldshall’ (Radde v. Norman, L. R. 14 Eq. 349) [897]... . ‘‘ A word used as a trade-mark is addressed to the eyes as well as to the ears of purchasers of the article to which it is applied. It can- not be disassociated from its surroundings when the inquiry is whether as used it is a colorable imitation of another’s trade-mark. The defendant has artfully garbled and draped a word used by him bear- ing a close resemblance to the complainant’s word, so that its iden- tity is rendered more indistinguishable from that of the complainant’s than it is intrinsically.” 696. Anheuser-Busch Brewing Ass'n v. Piza. 1885. C.C. U.S. S. Dist. N. Y.— 24 Fed. Rep. 149. Tus was a bill for an injunction to restrain defendant from using the words “ St. Louis Lager Beer” in connection with the sale of beer brewed and bottled in New York. Complainant, a corporation doing business at St. Louis, had for years exported and sold beer under the name of “St. Loucs Lager Beer,” using labels like the fac-simile produced here- with, and designated “‘ Genuine Label.” Defendant, a New York bottler, used labels which repre- sented that his beer, which was brewed and bottled in New York, was “St. Louis Beer.” Fac-similes of defendant’s 1Jn this case there was an appropriation of both word and symbol. 443 ANHEUSER-BUSCH BREWING ASS’N v. PIZA. labels are produced herewith and designated ‘“‘ Piza Label No.1” and “ Piza Label No. 2.” Held, that although St. Louis was a geographical name which could not be protected as a trade-mark, on the facts of the case, an injunction should be granted to restrain the fraudulent and untruthful use by the defendant of the designation “St. Louis Beer; ” and both of the labels complained of. Wallace, J. “ Although the complainant cannot have an exclusive property in the words ‘St. Louis’ as a trade-mark, or an exclusive right to desiguate its beer by the name ‘St. Louis Lager Beer,’ yet, as its beer has always been made at that city, its use of the designation upon its labels is entirely legitimate; and if the defendant is diverting complainant’s trade by any practice designed to mislead its customers, whether the acts consisted in simulating its labels, or representing in any other way his products as those of the complainant, the latter is’ entitled to protection. “Tt is no answer for the defendant, when the complainant asks for protection, to say that it has no exclusive right to designate its pro- ducts in the manner it has, although this might very properly be asserted by a competitor selling beer made at St. Louis, or who, by reason of any circumstances, might be entitled to represent his pro- duct as originating there. Canal Co. v. Clark, 13 Wall. 322. “Tt is unnecessary for present purposes to consider whether the complainant has a valid trade-mark or can have a technical trade-mark in the name ‘St. Louis.’ It is sufficient that it was lawful for the complainant to use that name to designate its property ; that by doing so it has acquired a trade which is valuable to it, and that the defend- ant’s acts are fraudulent and create a dishonest competition detri- mental to the complainant.” } ° 1 See Lawrence Man. Co.v. Tenn. Man. Co. 720; Montgomery v. Thompson, 722. 444 i ——§! aS « LO Urs , A&G BIC JI. SOLE AGENTS, PIZA. NEPHEWS & CO. NEW YORK. Piza Label No. 2. DEFENDANT'S LABEL. READ v. RICHARDSON. 697. Southern White Lead Co. v. Cary. 1885. U.S.C. C.N. Dist. Ill. —25 Fed. Rep. 125. THE complainants were manufacturers of white lead at St. Louis, and sold their product in kegs, upon the heads of which they applied the words “ Southern Company, St. Louis.” The defendants, who did business at Chicago, put up white lead manufactured by them in similar kegs, upon the heads of which they applied the words “ Southwestern, St. Louis.” Injunction granted to restrain the defendants from making use of the name “ S¢. Louis” in connection with their goods. Gresham, J. “The defendants manufacture their adulterated and greatly inferior lead at Chicago, and stamp upon their kegs a false brand in imitation of the complainant’s brand. Why is this done unless it be in the hope of deceiving the public and injuring the com- plainant? Realizing that they could not engage in open, manly com- petition with the complainant, the defendants resort to a palpable trick. If this resulted in no injury to the complainant, or was likely to result in no injury to it, the bill would have to be dismissed. But the affidavits show that the defendants’ kegs can and have been sold as the complainant’s. “A temporary injunction will be granted restraining the defendants from branding upon their kegs the words ‘Southwestern’ and ‘St. Louis.’ ”’ + 698. Read v. Richardson. 1885. Ct. of App.— 45 L. T. N.S. 54. THE plaintiffs and defendants were bottlers of beer for export. Plaintiffs’ label consisted of a representation of the head of a bull-dog, on a black ground, surrounded by a circular band on which were the words “ Read Brothers, London, The Bull Dog Bottling,” as shown by the fac-simile marked “ Plain- tiffs’ Label.” 1 The doctrine of this case is approved Rep. 492, where it is said to rest upon in Southern W. L. Co. v. Coit, 89 Fed. Anheuser §c. Ass’n v. Piza, 696. 445 READ v. RICHARDSON, Defendants’ label consisted of a representation of the head of a terrier, on a black ground, surrounded by a red circular band on which were the words ‘“ Celebrated Terrier Bottling, E. Richardson,” as shown by the fac-simile marked “ Defend- ants’ Label.” It was made to appear that plaintiffs’ beer was well-known in the colonies as “ Dog’s Head Beer ;” and it was alleged that the defendants, by exporting their beer to the colonies, where plaintiffs’ beer was in demand, enabled the substitution of defendants’ beer for plaintiffs’ beer, and the sale of defend- ants’ beer as ‘* Dog’s Head Beer” to plaintiffs’ injury. A motion for a preliminary injunction was heard by Jessel, Master of the Rolls, who denied the motion, chiefly on the ground that plaintiffs bad failed to make out a case of infringe- ment. On appeal, Held, that the use of the defendants’ label was an infringement of plaintiffs’ rights, especially because it enabled the sale of defendants’ beer as *‘ Dog’s Head Beer,” which name had come to be known as indicating the beer of the plaintiffs; and that the use of the words “special regis- tered trade-mark,” in connection with a mark which had not been registered, did not, under the the circumstances of the case, constitute a substantial misrepresentation. The Master of the Rolls in the court below, inter alia, said : — “* All that Lord Cranworth and all that Lord Westbury, and all that anybody else has said is, that one man must not adopt anything which will deceive people by making them believe that the article sold by him is the article known as the article of a certain name sold by another man. The only question is whether this man has used that label with this intention. Upon that, the sight of the judge is a very important factor, because he is enabled to decide to a great extent as to that by the two labels. “TI have seen the two labels. One is red and the other is blue. That is a very important thing, if you want to try whether a man will be deceived who has been accustomed to a bottle with a blue label, if you give him a bottle with a red label, I should say it shows a very strong distinction. It struck my eye at once, and I think anybody 446 DEFENDANT'S LABEL. PLAINTIFF'S LABEL. READ v. RICHARDSON. who is accustomed to it would notice it, because it is one of those things that everybody can see; and I remark on it more particularly because people who cannot read can see it. The next point about it is also one which I do not think would deceive a person who could not read. Persons who cannot read are generally very acute about noticing the shape of objects, and generally more acute than persons who can read for that reason. I should certainly never have taken one of these dog’s heads for the other, and I do not think anybody else would. With the exception of the one witness I have mentioned, nobody says he would. It is a very different animal. Of course they are both dogs and dog’s heads, but I think there the resemblance stops. They are differently colored, one is yellow and white and the other is brown and tan. They are a very different kind of dog, remarkably different. This bull-dog’s héad is a most emphatic bull- dog’s head, whereas the terrier is a remarkably mild species of ter- rier, and by no means so acute as a terrier generally is. They are very different animals indeed; in fact the terrier looks somewhat like a cat. Itis avery mild specimen. The dogs have different col- lars on. “T do not think that ordinary people who cannot read, who are gen- erally pretty observant, would take one of these for the other. I believe that that part of the public drinks a good deal of beer, there- fore it is not a question whether the bulk of it, or a large portion of it, is consumed by people who cannot read, and that is a matter which we must always attend to when considering whether trade-marks are likely to deceive, whether it is a trade-mark which is likely to be on articles which are likely to be consumed by that portion of the public who can read or by that portion of the public who cannot read. “ Considering that this is bottled beer sold in the colonies, it must be sold at a tolerably high price. I should think the greater part would be bought by people who can read. .. . If it stood on the two labels alone without any evidence, I should have no hesitation in saying that there was not sufficient resemblance to entitle the plaintiffs to an injunction. “ There is conflicting evidence ; and although the two labels may not be very much alike, there are sometimes additional circumstances which show that people are likely to be deceived, or that certain practices have been adopted with a view to deception, and, consider- 447 hil READ v. RICHARDSON. ing that I have no satisfactory explanation from the defendants why they adopted the dog’s head at all, knowing of the plaintiffs’ dog’s head, instead of refusing the motion with costs so as to give a final expression of opinion in the matter, the proper order will be, ‘The defendants undertaking to keep an account, no order except that the 7 costs of the motion be costs in the action. Plaintiffs appealed. In the Court of Appeal, opinions were delivered, in substance, as follows : — James, L. J. “Upon this application by way of appeal as upon the original application, it is my intention not to dispose of any- thing finally, but simply to deal with the question as one on an inter- locutory application. “The plaintiffs applied for an interlocutory injunction to restrain the use of a particular label. They say, and it seems to me there is sufficient evidence, primd facie, to entitle them, in the absence of any contradiction of it or any explanation, to succeed at the hearing. It is evidence of this kind: that from the particular trade-mark that they have used their beer has acquired in the colonies the name of ‘ Dog’s Head Beer.” 'Then the plaintiffs’ witnesses say that the de- fendants have used a trade-mark of a dog’s head, not the same or anything like the same as the plaintiff's dog’s head, but that the mere fact that the trade-mark is a dog’s head would be calculated to induce persons who know it as ‘ Dog’s Head Beer’ to be satisfied with that beer instead of the plaintiffs’ ‘Dogs Head Beer.’ There seems to be evidence that the trade-mark is calculated to pass off the beer of the defendants as the beer of the plaintiffs; that is to say, that the defendants’ label supplied a picture which, as the plaintiffs say, has caused the defendants’ beer to become known as ‘ Dog’s Head Beer, ; “The defendants say that they have not had a sufficient opportu- nity of testing the evidence, and have not had an opportunity of bring- ing evidence to contradict what the plaintiffs say as to the name, or the nickname, which the plaintiffs say their beer has acquired. The case will have to be fully disposed of at the hearing, if the parties are still minded to carry on the litigation to that extent. “What we have now to consider is the balance of convenience and inconvenience in dealing with the thing in the mean time, before 448 READ v. RICHARDSON, it is heard. If the plaintiffs should happen to be right at the hearing, and we should, in the mean time upon this interlocutory application, confirm the view of the Master of the Rolls, that the plaintiffs are not entitled to an interlocutory injunction, the injury to them would be irremediable and incalculable. Their particular trade-mark, their particular reputation, in the mean time would be utterly destroyed. They say, ‘ We have a right to that name, and it will be gone, and we do not see how it is to be restored if it is once destroyed by the lapse of so many months; possibly years, during which time the defendants will be using another device leading to the adoption of the same name. “Then according to the defendants’ own statement, they will not suffer at all. Their trade does not depend upon the use of the trade- mark of a terrier, and nobody suggests that their beer has acquired any particular reputation by, and they do not suggest that the sale of their beer is dependent upon, the use of the terrrier’s head on the label. According to their own account, the beer which they sell is known by the name of the brewer, which still remains, and by the name of the defendants’ firm as the bottlers, which would also remain. The defendants would call it the ‘ Celebrated Terrier Bottling by Richardson and Co., London,’ and they would simply have to leave out of their labels that particular dog’s head, which, as far as I at present perceive, can have no merit or value for them, unless it is to enable their beer, somehow or other, to be called ‘ Dog’s Head Beer’ in the colonies. “Therefore, on the balance of convenience and inconvenience, it seems to me better that the defendants should abstain from doing that which is a novelty, and that they should not during the litigation interfere with the name the plaintiffs say they have got. “There is one other point; it is said there is something not strictly true in the plaintiffs’ labels; that is to say, that there was something not strictly true in the plaintiffs’ labels at the time when they first used them, by reason of which use it is that the name or description grew into existence. Whether that is an objection or not, and to what extent that would prevail, and what are the circumstances under which that designation was used in the interval between the applica- tion to register and the actual registration, are matters which I think will keep very well for the hearing of the cause. We need not dis- cuss them now, It does not seem to me a sufficient reason for not granting the interlocutory injunction at present.” 29 449 READ v. RICHARDSON. Brett, L. J. “If the plaintiffs’ case had rested solely upon the alleged similarity of the labels, and on the probability of the defend- ants’ label, simply as a label, being mistaken for the plaintiffs’, I should have thought that the plaintiffs have not made out a sufficient ‘case for this interlocutory injunction. But the plaintiffs’ case is not founded merely upon the alleged similarity of the labels. “The plaintiffs found themselves upon the doctrine which has been laid down by Lord Cranworth and Lord Westbury, and especially upon the statement of Lord Cranworth, that if the goods of a manu- facturer have, from the mark or device used, become known in the market by a particular name, the adoption by a rival trader of any mark which will cause his goods to bear the same name in the mar- ket is a violation of the rights of his rival. “Tt seems to me that in this case the plaintiffs have given very ‘strong evidence indeed that in Australia and in New Zealand the use of their labels has procured for their imported beer the name of ‘ Dog’s Head Beer’ The plaintiffs’ own affidavits allege that they have been informed, and believe that their beer has acquired, from the use of their label, that name in the colonies of Australia and New Zea- land, and it seems to me that they fortify their allegation by very strong evidence on the part of others, who have been in particular parts of New Zealand and Australia. As to the truth of the informa- tion which has been given them, and as to their belief, the defendants say that the documents which the plaintiffs produce in corroboration of the evidence of their witnesses contradict those witnesses. It seems to me that those newspapers, or the greater and more impor- tant part of them, so far from contradicting the evidence upon affida- vit, fortify it. It seems to me that those who wrote the newspaper article to which we have been referred did use the ‘Dog's Head Beer’ without any name of the plaintiffs added to it, and used that as a description of the plaintiffs’ beer as exported into Australia, and that they distinguished that from the ‘Bull Dog Beer, which they used as a description of Porter’s beer. With regard to the question whether the plaintiffs’ beer, from the use of the plaintiffs’ label, has acquired the name of ‘ Dog’s Head Beer’ in Australia and New Zea- land, it seems to me that the affidavits of the defendants give no con- tradiction at all to the plaintiffs’ evidence. The defendants do not even venture to say that they have been informed and believe to the contrary, but they confine themselves to a statement of the usage, 450 READ v, RICHARDSON. not of people who are dealing in beer in Australia, but of the usage of those who are dealing in beer between Australia and England, which is a very different thing; and they wholly omit to notice — indeed the defendants do not seem to have inquired into — what the plaintiffs allege as to the trade between Australia and themselves. “Tt seems to me the plaintiffs have made out a very strong case in- deed, and that they have acquired for their beer the name of ‘ Dog’s Head Beer.’ Then the defendants use a label and say that there is no evidence that it will in all probability have the effect of inter- fering with the name which the plaintiffs’ label has caused their beer to acquire. It seems to me that, from the very nature of the label itself, seeing what effect Porter’s label has had in giving a particular name to their beer irrespective of their own names, the probability is of the strongest kind that the defendants’ label will cause their beer to acquire the same name as the plaintiffs’ beer. “But there seems to me to be something, which, if possible, is still stronger. The defendants seem to have concluded themselves, as the case at present stands, from alleging that that will not be the effect, because as I understand the affidavits, they have only put this label on the beer which would come in competition with the plain- tiffs’ beer. I do not use that as evidence of any fraudulent intent, but it seems to me to be evidence of the strongest kind, that they, as men of business, conclude that that will be the effect of using the terrier’s head label upon the beer which they export. Therefore, it seems, if the case be allowed to remain until the hearing as it stands now, which is the test whether there is a primd facie case or not, and whether there is a strong primd facie case or not, it is very strong in favor of the plaintiff, although perhaps not conclusive. So far, it seems to me, the plaintiffs’ case is made out. “Then, the defendants say that the plaintiffs have prevented them- selves from using the process of the court by the fact which the plain- tiffs seem to admit, that the plaintiffs’ label has been used in its pres- ent form before the actual registration of it under the Trade-Marks Act. Whether that, at the hearing or upon further consideration, will be considered to be such a misconduct as to disentitle the plain- tiffs to the relief asked for by them, I cannot say. To my mind it is not at all satisfactory to suppose that it would be held to be such misconduct, and certainly the Master of the Rolls did not enter upon that point. 451 READ v. RICHARDSON. “There is another question as to the convenience of granting an interlocutory injunction. The plaintiffs having established a trade, the evidence is to be taken to show very strongly that their beer had acquired the name in the trade; and what my Lord has said seems to be perfectly true, that, if the defendants were allowed to interfere with them in carrying on that trade (on the supposition that they are right) up to the hearing, and then up to an appeal to the House of Lords, by that process the defendants could destroy the plaintiffs’ trade beyond remedy, whereas, according to the defendants’ own showing, and according to their own allegation, stopping them from using the dog’s head would do no injury to them if their allegations be correct. If their allegation be untrue it does not signify whether they are injured or not. Therefore the balance of convenience in this case seems to me to be absolutely in favor of granting the injunc- tion.” Cotton, L. J. “Iam of the same opinion. We are not at the hearing of the cause, and what we have to consider is, whether, until the matter is finally disposed of, the plaintiffs are entitled to the in- junction they ask. As to the question of convenience or incon- venience in granting the injunction, I have no hesitation in coming to the conclusion, that, if there is a primd facie case made out by the plaintiffs, although it is not as fully made out as it might have been, we ought to grant the injunction. The plaintiffs in obtaining an in- junction upon an interlocutory application must give an undertaking as to damages. If there is no injunction granted and they are in the right, the trade name which they say is valuable to them, and which they come to protect, will be absolutely gone before they can ascer- tain their rights. The defendants’ case is, that there is no value in the particular trade-mark, and that they themselves, until a very short time before this action was brought, carried on their business as exporters, as regards this particular stout, with another trade label, and they do not for a moment suggest that in the market their bottling has become known or has got into favor by means of this new label which they have put upon it. Therefore, if the plaintiffs have made out a primé facie case, the strong balance of convenience and inconvenience is in favor of granting the injunction. “Have they made out a primd facie case? I think what we have ‘to consider is, first, a question of fact, and then one question of law. In wy opinion the plaintiffs are not coming here to protect a trade 452 READ v. RICHARDSON. label in the ordinary meaning of that word, but to prevent the de- fendants from using a label which they say will interfere with that which is their right—the trade name; that is, the name by which the beer which they bottle and export has passed in the market to which they send it. By their ‘beer’ I mean the beer which they bottle. [His Lordship then commented on the evidence and con- tinued.] As far as I am able to draw a conclusion from the evidence before me, it does make out the fact that the beer with this label, exported by the plaintiffs, has been known as the ‘ Dog’s Head Beer.’ Then, is the use of the defendant's label calculated to pass off their beer, or their bottling, as that of the plaintiffs? “Tt merely comes to this. Is it possible, from the use of this label, that the defendants’ beer may be called or be passed off on unwary or ignorant purchasers as the ‘ Dog’s Head Beer’? If it is not so calculated, why did the defendants, when they had a label under which they had for many years exported Guinness’s porter and stout, change that label, and take this, knowing, as they did, of the trade carried on by the plaintiffs with their bull dog’s head label ? “ Why, of all things, did they fix on a dog’s head, and why, when they exported both ale and stout, — the ale not the same as the plain- tiffs’, but the stout the same as the plaintiffs’, — did the defendants think it desirable to affix this label to the stout, and not to the ale? “The impression of those facts on my mind, which may be re- moved at the hearing, is that the use of the defendants’ label is calcu- lated to pass off the beer, or the stout, which they bottle, as ‘ Dog’s Head Stout’ or ‘ Dog’s Head Beer.’ “Tt is said by the defendants’ counsel, if the plaintiffs are to pre- vail, any one having a label with one particular animal upon it, from the use of which he gets the name of ‘ Animal Beer,’ may prevent any one else from exporting to the colonies beer with the label of another animal on it. He assumed that the second person was one who was forestalled only in the colony; that is to say, that, at the time when the plaintiffs first exported to the colonial or other mar- ket, both parties had a right to use the particular label which they were using, and, if that were so, it would be the misfortune of the man whose beer was first in the market, and whose beer had got the ' name of ‘ Animal Beer,’ that he had got that name from something 453 READ v, RICHARDSON. which was so similar to that which somebody else had a right to, that the goods of that other person coming into the same market might be confused with his goods. Just as one man having a certain name, and coming into a market where his goods became known by his name, cannot stop another person who has a right to the name from coming into the market and selling his goods under his own name. But, if the person whose goods came second into the market had not the name at the time when the name was established in the market as the distinguishing name of the first man’s goods, and took the name into the colony, the case would be very different; and that is the case here.” } 1 See Orr v. Johnston, 646; Lorillard vy. Pride, 701. In the case entitled Re Barker’s Trade-Mark, in 1885, before Kay, J., 53 L. T. R.N. S. 23, it appeared that in 1876, Thomas Grant and Sons, a firm of distillers, obtained registration of a design as w trade-mark for their cherry brandy, and printed the same upon the labels used by them upon the bottles containing cherry brandy of the best quality, which they had manu- factured and sold since 1853. The design represented two hunts- men in pink on horseback, one of whom was in the act of filling a glass from a bottle, whilst the other waited ex- pectantly by. The words “ The Sports- man’s Special Quality” were printed upon the design, below the manufac- turers’ name, and the words “‘ Morella Cherry Brandy.’ This cherry brandy was extensively advertised, and became very widely known as “ The Sports- man’s,” and was quoted as such with- out the name of the manufacturers, and was sometimes called “ Huntsman’s” and “ Hunter's Cherry Brandy.” In 1883, Barker and Son, another firm of distillers, selected the word “ Huntsman’s” as a name for cherry brandy manufactured by them, as be- ing appropriate to the article largely consumed in the hunting field and among hunting men; and in Septem- ber, 1884, they registered a design as a trade-mark without any opposition on the part of Grant and Son. The design represented a huntsman in pink standing beside his horse, a fox raised above his head, and surrounded by the hounds, the words “ Huntsman’s Cherry Brandy” being printed on the design. Until October, 1884, Barker and Son had been in the habit of obtaining cherry brandy from Grant and Son, and it was alleged that they knew perfectly well that Grant and Son’s cherry brandy was known by the names “ Huntsman” and “ Sportsman.” Grant and Son contended that Barker and Son’s trade-mark was purposely got up to resemble theirs and for the purpose of being used to pass off cherry brandy, not of Grant and Son’s manufacture, as “ Sportsman’s Cherry Brandy.” A motion was made by Grant and Son to expunge Barker and Son’s trade- mark from the register of trade-marks. Held, that the motion should be granted and the trade-mark of Barker and Son expunged from the register. Kay, J. “In this case the applica- tion is not to restrain the use of a trade-mark but to rectify the register of trade-marks by expunging such trade-mark. In 1876 the plaintiffs registered a trade-mark, which was as follows. [His Lordship then described the design registered by the plaintiffs and continued.] The plaintiffs have had undisputed possession of this trade- 454 APOLLINARIS COMPANY (LIMITED) v. SCHERER. 699. Apollinaris Company (Limited) v. Scherer. 1886. U.S.C. C. S. Dist. N. Y. — 27 Fed. Rep. 18. CoMPLAINANT had obtained the exclusive right to export and sell in America the water of a certain German Mineral Spring, under its trade-mark and name “ Hunyadi Janos.” Defendant obtained bottles of the genuine water from pur- chasers of the same in Germany, and sold in America the goods so acquired as and for what they really were. Held, that complainant was not entitled to an injunction, as the defendant was merely selling, under its proper name, the mark since 1876. The defendants were perfectly aware of that, and knew that the plaintiffs have had that exclusive use. Nevertheless the defendants in September, 1884, put on the register another trade-mark. [His Lordship de- scribed the design registered by the de- fendants and continued.] That picture is quite unlike the picture of the plain- tiffs. But upon that picture they have inscribed the words ‘ Huntsman’s Cherry Brandy.’ A great deal of evidence has been given to show that the title ‘ Huntsman’s Cherry Brandy’ was never applied to the cherry brandy of the plaintiffs, and great stress has been laid upon this point; but this is met by evidence that is absolutely overwhelm- ing. I have here a large number of orders that have been sent to the plain- tiffs by their customers in which their cherry brandy was called by the name ‘ Huntsman’s’ or ‘ Hunter’s’ as well as ‘ Sportsman’s Cherry Brandy.” I must take it as clearly established that, be- fore the defendants registered their trade-mark, the plaintiffs had acquired quite generally the name of ‘ Hunts- man’s Cherry Brandy’ for their brandy. ... If the defendants did not intend to pass off their cherry brandy as that of the plaintiffs, why did the defend- ants choose a trade-mark so similar to that of the’plaintiffs and calculated to induce people to buy cherry brandy under that name —a name which has become the distinguishing mark of the plaintiffs’ cherry brandy? The name ‘ Huntsman’ is not one which the plaintiffs themselves had assumed, but it was one which the public had given to their goods, because of the picture selected by them as a design. The question resolves itself therefore into this simple proposition: The plain- tiffs having registered in 1876 the pic- ture of a hunting field and the name ‘ Sportsman,’ on that account the name ‘ Huntsman’ has been largely given by the public to cherry brandy manu- factured by them. The defendants knowing that perfectly well, in 1884 put upon the register, for cherry brandy made by them, a trade-mark consisting also of a picture of a hunting field ; but instead of calling it ‘.Sportsman’s Cherry Brandy’ they called it by that other name under which the plaintiffs’ cherry brandy had become known, viz. : ‘ Huntsman’s Cherry Brandy.’ The in- ference to my mind is irresistible that that has been done by the defendants for the purpose of passing off their cherry brandy as that of the plaintiffs. ... The register must therefore be rectified by striking out the defendants’ trade-mark, and the defendants must pay the costs of the motion.” 455 ANHEUSER-BUSCH BREWING ASS’N v. CLARKE. genuine article which he had bought in Germany, and to which he had acquired a good title. Wallace, J. “The interposition of a court of equity is frequently invoked, and always successfully, to restrain unlawful competition in trade. All practices between rivals in business which tend to engen- der unfair competition are odious, and will be suppressed by injunc- tion. But the adjudications which illustrate the principle rest upon the ground that a merchant or trader is entitled to protection only against dishonest or perfidious rivalry in his business, He will be protected against the fraudulent or deceitful simulations by a compet- itor of tokens which tend to confuse the identity or business of one with the other and against the false representation. of facts which tend to mislead the public and divert custom from the one to the other, Anything short of this, however, is lawful competition.” ' __— 700. Anheuser-Busch Brewing Ass’n v. Clarke. 1886. ©. C. U. S. Dist. Md. — 26 Fed. Rep. 410. COMPLAINANT was the first to use for bottled beer a label with a diagonal red band with the name of the kind of beer appearing in white letters on the band. Defendant used a label which consisted in part of a diagonal red band of nearly the same size and shape as that used by complainant.! In- junction granted. . Morris, J. “The general rule of law applicable to this case is, that if a manufacturer has applied a peculiar and distinctive label to desig- nate his goods, and has so used it that his goods are identified by it, a court of equity will restrain another party from adopting and using one so similar that its use is likely to lead to confusion by purchasers exercising the ordinary degree of caution which purchasers are in the habit of exercising with respect to such goods. “The complainant’s affidavits go to show that the complainant was the first to use for beer a label with a diagonal red band with the 1 See the fac-similes of the labels plainant’s Label” and “ Defendant’s herewith, marked, respectively, ““Com- Label.” 456 Aa. WON MITZEL, BALTIMORE. SOLE AGENT FOR THE STATH OF MARYLAND, COMPLAINANT'S LABEL ae a ae a eed cee cee aed FA A VSG NEE on ERY a CLARKE & CO. Agents. BALTIMORE, MD, STEPHENS LITHO, &RENGCO ST.1.0UIS DEFENDANT'S LABEL. LORILLARD v, PRIDE. name of the kind of beer appearing in white letters on the red band, and that he has been habitually using this label for two years. “The label is a very noticeable and distinctive one, by reason of the diagonal red band. “The result of the effect upon the eye from seeing a number of bottles is that it is a beer labelled with a diagonal red band, and the more frequently one sees it the more this one effect is deepened. ‘It does appear altogether probable that a consumer who had been used to getting bottles labelled with complainant’s label would more and more rely on the diagonal red band as its distinctive mark, and would be likely to accept the respondent’s beer with his diagonal red label on it as supplying what he was in the habit of getting. “There is nothing in the differences in the labels calculated to counteract this, and I think it is a strong case of a similarity likely to deceive.” pone es 701. Lorillard v. Pride. 1886. C.C.N.I. N. D. Ill, —28 Fed. Rep. 434. Held, that complainants, although the first to use a tag made of tin as a mark for their tobacco, could not maintain an exclusive right to use such a tag without regard to its shape, color, or appearance. Held, also, that complainants having secured a patent, which purported to grant the exclusive right to employ a tag of tin for the purpose of marking tobacco, the right so to em- ploy a tag of tin expired with the patent, and could not for that reason be maintained at common law. Nor would the rights of the public be displaced or affected by the fact that complainant’s tobacco first came to be generally known as “ Tin Tag Tobacco,” such name being necessarily publict juris by reason of its descriptive character. . . . Blodgett, J. ‘The bill asserts, broadly, the complainants’ exclu- sive right to employ a tin tag, whatever its appearance, color, or shape, as a trade-mark for their tobacco, and insists that no other person has a right to use tin for the purpose of marking their tobacco. . . . 457 LORILLARD v. PRIDE. “ Tin is one of the common metals in use by the public for a very large variety of purposes. It is easily stamped or impressed with letters, figures, or characters, or cut into various shapes, and takes readily different colors or shades besides its natural metallic lustre ; and, like paper, becomes the vehicle or material for receiving what- ever impression or color may be stamped upon it. It seems to me it would be as reasonable to assume that the complainants could have adopted paper or wood, or a piece of cloth or leather, as a badge or indicia of their goods, as that they could have taken a piece of tin. That they had a right to appropriate to their exclusive use a piece of tin, without regard to its color, shape, or the characters or letters it bears, does not seem to me to be within the scope and purpose of the law of trade-marks. “Tt also appears that complainants’ first effort was to secure to themselves the exclusive right to the use of tin as a badge of their goods by means of the Seidler patent, and that their goods acquired the name of ‘Tin Tag’ goods while they were claiming the rights given them by the patent, it seems to me that they have no right now to perpetuate a monopoly, which the court decided they could not have, by falling back upon the popular name given their goods marked in pursuance of the patent. If their goods properly become known and designated in the market as ‘Tin Tag’ goods, by virtue of their marking them or tagging them in pursuance of their patent, the right to so indicate or mark the goods became public when the patent expired, or was declared void, and they cannot perpetuate or continue this right by claiming it as a trade-mark. . . . “Tf complainants had put upon the market goods marked with paper, wood, or leather tags, and such goods had come to be popu- larly known and designated in the trade as ‘ Paper Tag, ‘ Wood Tag,’ or ‘Leather Tag,’ complainants could not by such use acquire the right to prevent all other persons from putting a paper, wooden, or leather tag upon similar goods, because the use of such materials is a right common to all, and cannot be exclusively appropriated by any one. ... The use of arbitrary terms, such as ‘Tin Tag’ or ‘ Wood Tag’ by a manufacturer, to indicate goods produced or sold by him, might be allowable if the person so using the name or words branded them upon his goods, or in any way gave the goods the name, but that would give no right to the exclusive use of the tin or wood as a mate- rial to designate the goods. A person may appropriate any word, 458 SAWYER BLUE COMPANY v. HUBBARD. ( figure, or emblem as a trade-mark, but that does not give an exclusive right tothe use of the well-known material substances upon which the word, figure, or emblem may be impressed or engraved. I am there- fore of opinion that this bill should be dismissed for want of equity ; but this disposition of the case is made without prejudice to the com- plainants’ right to sue upon any of its specific trade-marks depend- ing on the coloring, design. or lettering on the tin label.” —_——. 702. Atlantic Milling Company v. Rowland. 1886. U.S.C. C. S. Dist. N. Y.—21 Fed. Rep. 24. DEFENDANT had been required to render an account, and the Master reported that he had made a profit. He excepted to the report of the Master on the ground that the evidence did not show that complainant would have made the profit which had been realized. Held, that the owner of a trade- mark is entitled to the profits made by the unlawful use of his mark whether they would have been made by him or not. 703. Sawyer Blue Company v. Hubbard. 1887. C. C. U. S. Mass. — 32 Fed. Rep. 388. CoMPLAINANT’S article had acquired reputation and was sold in bottles of a particular shape, and bearing on their tops bright tin caps. Defendant put up his article in bottles of the same shape and used caps of the same appearance. Held, that complainant was entitled to an injunction. Colt, J. “Upon the papers submitted to me on this motion for a preliminary injunction, I am satisfied that the defendant should be restrained from using bottles having complainant’s name upon them, and from using the bright metallic top on a bottle of the shape and appearance used by complainant. It seems to me that these things are calculated to deceive the public into buying the defendant’s 459 CELLULOID MANUF. CO. v. CELLONITE MANUF. CO. bluing for the complainant’s, and that they are made use of by the defendant for this purpose. An injunction to this extent may be granted.” } 704. Celluloid Manufacturing Company v. Cellonite Manufacturing Company. 1887. U.S.C. C.N. J. — 32 Fed. Rep. 94. THIs was a bill in equity to restrain the use by the de- fendant of its corporate name, and also the use of the des- ignation “Cellonite” to describe the product by it manufac- tured. It appeared that the complainant was incorporated in the year 1871, in pursuance of the laws of New York, and that the defendant was incorporated in the year 1886, in pursuance of the laws of New Jersey. It also appeared that the word ‘ Celluloid ” had been coined by complainant’s assignor and used in connection with com- plainant’s business continuously since the date of complain- ant’s incorporation, and that the defendant had changed its cor- porate name and the name of its product so as to approach the names used by complainant. Held, that complainant was entitled to an injunction to restrain the use by the defendant of its corporate name, and also to restrain the use of the word “ Celluloid.” Bradley, J. “In alleging that the word ‘Cellonite’ has been used by the defendant since 1883, the defendant, which was not incorpo- rated until May, 1886, identifies itself with the previous association, shown by the affidavits to have been called the ‘ Merchants’ Manu- facturing Company,’ composed of the same corporators, who aban- doned the old name and assumed the new one, for some purpose or other. The explanation given for so doing is not entirely satisfactory. Here are two facts standing side by side: First, the fact that the Cel- luloid Manufacturing Company, an old well-established concern, 1 See Avery v. Meikle, 689; Appeal of Putnam Nail Co., 726. 460 CELLULOID MANUF. CO. v. CELLONITE MANUF, CO. is doing a large and prosperous business, with a good-will resulting from many years of successful effort, and calls the product of its manufacture ‘Celluloid,’ which has become such a popular designa- tion that, as the defendant says, it has become incorporated in the English language; secondly, the fact that the Merchants’ Manu- facturing Company, which produces substantially the same article, and calls it by different names, ‘pasbosene,’ ‘lignoid,’ etc. (with what success we are not told), suddenly changes its name to that of Cellonite Manufacturing Company, and calls its produce ‘ Cello- nite.” It will take a great deal of explanation to convince any man of ordinary business experience that this change of name was not adopted for the purpose of imitating that of the old, successful company. “Tt is the object of the Jaw relating to trade-marks to prevent one man from unfairly stealing away another’s business and good-will. Fair competition in business is legitimate, and promotes the public good; but an unfair appropriation of another’s business, by using his name or trade-mark, or an imitation thereof calculated to deceive the public, or in any other way, is justly punishable by damages, and will be enjoined by a court of equity. The question before me is whether the law has been violated in the present case. “ First. As to the imitation of the complainant’s name. The fact that both are corporate names is of no consequence in this connection. They are the business names by which the parties are known, and are to be dealt with precisely as if they were the names of private firms or partnerships. The defendant’s name was of its own choosing, and, if an unlawful imitation of the complainant’s, is subject to the same rules of law as if it were identical with the complainant’s name. That would be too gross an invasion of the complainant’s right. Similarity, not identity, is the usual recourse when one party seeks to benefit himself by the good name of another. What similarity is suf- ficient to effect the object has to be determined in each case by its own circumstances. We may say, generally, that a similarity which would be likely to deceive or mislead an ordinary unsuspecting cus- tomer is obnoxious to the law. Judged by this standard, it seems to me that, considering the nature and circumstances of this case, the name ‘Cellonite Manufacturing Company’ is sufficiently similar to that of the ‘Celluloid Manufacturing Company’ to amount to an infringement of the complainant’s trade name. The distinguishing 461 CELLULOID MANUF. CO. v. CELLONITE MANUF. CO. words in both names are rather unusual ones, but supposed to have the same sense. Their general similarity, added to the identity of the other parts of the names, makes a whole which is calculated to mislead. “Secondly. As to the complainant’s alleged right to the exclusive use of the word ‘celluloid’ as a trade-mark, and the defendant’s alleged imitation thereof. On this branch of the case, the defend- ant strenuously contends that the word ‘celluloid’ is a word of com- mon use as an appellative, to designate the substance celluloid, and cannot, therefore, be a trade-mark; and, secondly, if it is a trade- mark the defendant does not infringe it by the use of the word ‘ cel- lonite.’ “As to the first point, it is undoubtedly true, as a general rule, that a word merely descriptive of the article to which it is applied cannot be used as a trade-mark. Everybody has a right to use the common appellatives of the language, and to apply them to the things denoted by them. A dealer in flour cannot adopt the word ‘flour’ as his trade-mark, and prevent others from applying it to their pack- ages of flour. I am satisfied from the evidence adduced before me that the word ‘celluloid’ has become the most commonly used name of the substance which both parties manufacture, and, if the rule re- ferred to were of universal application, the position of the defend- ant would be unassailable. But the special case before me is this: The complainant’s assignors, the Hyatts, coined and adopted the word when it was unknown, and made it their trade-mark, and the complainant is assignee of all the rights of the Hyatts. When the word was coined and adopted, it was clearly a good trade- mark. The question is whether the subsequent use of it by the public, as a common appellative of the substance manufactured, can take away the complainant's right. It seems to me that it can- not. “ There is a case in the New York Reports (Selchow v. Baker, 93 N. Y. 59) [690] which comes very near to that now under considera- tion. That was the case of ‘Sliced Animals,’ and other ‘ sliced’ ob- jects, being a term used by the plaintiff as a trade-mark to designate certain puzzles manufactured and sold by them, in which pictures of animals, etc., on card-board, were sliced in pieces, and the puzzle was to put the pieces together and make the animal. The label ‘Sliced Animals,’ etc., was used by the plaintiffs on all boxes of these goods 462 CELLULOID MANUF. CO. v, CELLONITE MANUF. CO. sold by them. The defendants infringed, and the question was whether this kind of designation could avail as a trade-mark. J udge Rapallo, in delivering the opinion of the court, after reviewing many cases on the subject, concludes as follows : — “*QOur conclusion is that where a manufacturer has invented a new name, consisting either of a new word or a word or words in common use, which he has applied for the first time to his own man- ufacture, or to an article manufactured by him, to distinguish it from those manufactured and sold by others, and the name thus adopted is not generic or descriptive of the article, its qualities, ingredients, or characteristics, but is arbitrary or fanciful, and is not used merely to denote grade or quality, he is entitled to be protected in the use of that name, notwithstanding that it has become so generally known that it has been adopted by the public as the ordinary appellation of the article.’ “ This case is so directly in point that it seems unnecessary to look further. I think it perfectly clear, as matter of law, that the com- plainant is entitled to the exclusive use of the word ‘celluloid’ as a trade-mark. “The only question remaining to be considered, therefore, is whether the defendant, by the use of the word ‘ cellonite’ as a trade- mark, or impression upon its goods as a trade-mark, does or will in- fringe the trade-mark of the complainant. Is the word ‘cellonite ’ sufficiently like the word ‘celluloid, when stamped upon the manu- factured articles, to deceive incautious purchasers, and to lead them to suppose that they are purchasing the products of the same manu- facturers as when they purchased articles marked ‘celluloid’? I think this question must be answered in the affirmative. I think that, under the circumstances of the case, the word ‘cellonite’ is sufficiently like the word ‘celluloid’ to produce the mischief which is within the province of the law. I say, under the circumstances of the case. By that I mean the previous nomenclature applied to the articles as manufactured by different persons. The complainant has always stamped its goods with the word ‘celluloid. Other manu- facturers have called the product as manufactured by them by names quite unlike this, as ‘ pasbosene,’ ‘ lignoid,’ ‘ chrolithion,’ etc.; so that a wide difference in designation and marking has existed between the complainant’s goods and those of all others. The adoption now of a word and mark so nearly like the complainant’s as ‘ cellonite ’ cannot 463 GOODYEAR MANUF. CO. v. GOODYEAR RUBBER CO. fail, it seems to me, to mislead ordinary purchasers, and to deceive the public.” ? ——E———E '705. Goodyear India Rubber Glove Manufacturing Com- pany v. Goodyear Rubber Company. 1888. S.C. U. S.—128 U.S. 598. Held, that the designation “ Goodyear Rubber Company,” being a combination of descriptive words which are both sep- arately and collectively publict juris, could not be protected in equity on the ground of its being a corporate name, even if it had been made to appear that the name had been used as an abbreviation of the corporate name of one of the parties. Field, J. “The proofs in the case show very clearly that Good- year’s India Rubber Glove Manufacturing Company had, as alleged in its answer, been for many years in the use of abbreviations in the designation of its company, using sometimes a name similar to the corporate name of the plaintiff; and if any exclusive right to the ab- breviated name were to follow from its protracted use, that right would seem to belong to that company rather than to the plaintiff. But the name of ‘ Goodyear Rubber Company ’ is not one capable of exclusive appropriation. ‘ Goodyear Rubber’ are terms descriptive of well-known classes of goods produced by the process known as Goodyear’s invention. Names which are thus descriptive of a class of goods cannot be exclusively appropriated by any one. The addi- tion of the word ‘ Company’ only indicates that parties have formed an association or partnership to deal in such goods, either to produce or to sell them. Thus parties united to produce or sell wine, or to raise cotton or grain, might style themselves Wine Company, Cotton Company, or Grain Company; but by such description they would in no respect impair the equal right of others engaged in similar business to use similar designations, for the obvious reason that all persons have aright to deal in such articles, and to publish the fact to the world. Names of such articles cannot be adopted as trade-marks, and be thereby appropriated to the exclusive right of any one; nor will the 1 See Celluloid Man. Co. y. Read, 123; Goodyear § Co. vy. Goodyear Rubber Co. 705. 464 RUSSIA CEMENT COMPANY v. LE PAGE. incorporation of a company in the name of an article of commerce, without other specification, create any exclusive right to the use of the name.” ! 706. Russia Cement Company v. Le Page. 1888. S.C. Mass. — 145 Mass. THIs was a bill in equity by the Russia Cement Company against Le Page, for an injunction to restrain him from mak- ing use of the designation “ Le Page’s Liquid Glue.” It ap- peared that defendant had manufactured glue under the name in question, and that he had sold such name to plaintiff, to- gether with the good-will of the business in connection with which it had been used, and that plaintiff continued the busi- ness thus acquired, using the said designation. Defendant was for some time a member of the plaintiff corporation, and subsequently withdrew and went into business on his own account, and made use of the designation “ Le Page’s Liquid Glue.” 1 There is no conflict between the reasoning of this case and that of Lawrence Manufacturing Company v. Tennessee Manufacturing Company [720] and Gray v. Taper Sleeve Works [687]. It did not appear that the com- plainant had been incorporated under the name of “ Goodyear Rubber Com- pany,” but that that name had been used as an abbreviation to indicate the kind of goods which the company pro- duced. The abbreviation was used, as the court points out, just as “ Wine Company ” might have been used as an abbreviation of the corporate name of a Company which produced wine, or “Cotton Company” as the abbrevia- tion of the name of a company which dealt in cotton. The very valuable opinion of Judge Acheson in the case just cited [687] contains a clear state- ment of the rule. And see Montgomery v. Thompson Injunction granted to restrain the use of the said [722]. The essential distinction seems to have been there stated by Lord Hannen. There was an injunction re- straining the defendant, who brewed ale at Stone, from selling his ale as “Stone Ale.” His Lordship said : — “The appellant is undoubtedly en- titled to brew ale at Stone, and to in- dicate that it was manufactured there, but there are various means of stating that fact without using the name which has now become the designation of the respondent’s ale.” In every connection where there is an unauthorized appropriation of a corporate name, this doctrine is of force. It had no application in the principal case (1) because the name which was sought to be protected had not been invested with a secondary meaning, and (2) because there was no fraud, actual or constructive. See, also, Russia Cement Co. v. Le Page, 706. 30 465 RUSSIA CEMENT COMPANY v. LE PAGE. designation by defendant to describe the article produced by him. Devens, J. “ Upon the evidence in the case at bar, it appears that ‘Le Page’s Liquid Glue’ was the name adopted by Brooks and Le Page for the light glues manufactured by them, a special word such as ‘straw,’ ‘carriage,’ etc., indicating for what especial use the partic- ular light glue was designed, being inserted before the word ‘glue ;’ that they manufactured glues under this name; and that at a subse- quent period, in 1882, formed the plaintiff corporation, to which they sold their business, and which continued the manufacture of these glues under the same name. The defendant was a member of the corporation, and a director thereof until February, 1886, when he left it, and shortly after engaged in the manufacture and sale of glue at Gloucester, where the plaintiff's business has always been carried on, using the name ‘ Le Page’s Improved Liquid Glue,’ to advertise the article produced by him. When Brooks and Le Page sold their business to the plaintiff, they in express terms sold ‘the right to use the trade-marks belonging to or in use by said copartnership.’ When Le Page (with Brooks) sold to the corporation and when he left the corporation, it must be held that the name ‘ Le Page’s Liquid Glue’ was a trade-name or trade-mark, and it is not important which term is used, indicating the liquid glue which the plaintiff was manufactur- ing. “ The right to use it as such was necessarily an exclusive use, as it was intended thus to distinguish the plaintiff’s goods from those of others. As a trade-mark belonging to the corporation, the defend- ant, while an officer thereof, had himself sought to obtain registration for it at the United States Patent Office. We are of opinion, there- fore, that the defendant should be enjoined from using the words ‘ Le Page’s Improved Liquid Glue,’ or ‘ Le Page’s Liquid Glue,’ to de- scribe the article manufactured by him, and from describing the com- pany under whose name he conducts his business as ‘Le Page’s Liquid Glue Company,’ whether with or without any addition thereto. “ While the plaintiff has not sought to prevent the defendant from manufacturing glue, in order to avoid misunderstanding, we add that while the defendant cannot use the words adopted as a trade-name for the article manufactured by him, we do not decide that he may not use the words ‘ Liquid Glue,’ or other appropriate words, to de- 466 MENENDEZ v. HOLT. scribe his product, or to state in that connection that he is himself the manufacturer of it. Decree for plaintiff.” ! 707. Menendez v. Holt. 1888. S.C. U. S.—128 U.S. 514. THE appellees, who were shippers of flour, filed their bill in equity, alleging that the firm of Holt & Company had been continuously engaged in business for more than twenty-five years; that the firm, from time to time, had been changed or dissolved by the retirement of different members, but that, in each instance, a new firm had been immediately formed, which had succeeded to the firm-name, good-will, brands, and all the trade-marks and other assets of the preceding firm ; and that there had been no interruption of the business iden- tity of Holt & Company for over twenty-five years; that complainants were now legally seized of the good-will and of the trade-marks which the firm had used, including the desig- nation “ La Favorita,” which designation the said firm had used for many years to indicate flour of their selection. The bill charged that the defendants were making use of the designation “ Za Favorita” as a brand for flour, in viola- tion of complainant’s rights. The use by the defendants of the designation “ La Favorita” was admitted, but was at- tempted to be justified on the ground that there was no in- fringement of complainants’ right because the flour sold by the defendants was put upon the market by one Ryder, who had been a member of the firm of Holt & Company, and whose right to the use of the designation, by reason of his having been a partner, had not been extinguished. Prior use was alleged ; and it was also urged that the designation sought to be pro- tected could not be regarded as a trade-mark (1) because it indicated merely selection or classification, and (2) because it was a mere mark of quality. And it was suggested that 1 See note to Lawrence Man. Co. v. Tennessee Man. Co. 720. 467 MENENDEZ v, HOLT. ithe bill should be dismissed because: the complainants had ‘been guilty of laches. It was held in the appellate court (1) that Ryder’s claim to an interest in the good-will of the business of Holt & Com- pany, including the trade-marks, ended with his withdrawal from the firm; (2) that, while there might be technical proof of a prior use, such use was casual and fortuitous and insuf- ficient to displace the title of Holt & Company; (8) that the designation sought to be protected indicated the selection and classification of Holt & Company, and was, for that reason, to all the intents and purposes, a trade-mark ; (4) that the fact that the quality of the “La Favorita” flour was uniform and known to consumers tended rather to enhance than impair the functions of the word as a mark of origin;! (5) that, while it might be true that the appellees had been guilty of delay in seeking relief, that fact did not stand in the way of an injunc- tion, and that there was no reason to disturb the rule laid down in McLean v. Fleming, 96 U. 8. 245 [580], which rule was approved and explained. Fuller, C. J. “ The fact that Holt & Co. were not the actual man- ufacturers of the flour upon which they had for years placed the brand in question does not deprive them of the right to be protected in the use of that brand as a trade-mark. “ They used the words ‘ La Favorita’ to designate flour selected by them, in the exercise of their best judgment, as equal to a certain standard. The brand did not indicate the origin of its selection and 1In Lawrence Man. Co. v. Tennessee Man. Co. [720], the court by Fuller, Cc. J., say: “We held in JM/enendez v. Holt, 128 U. S. 514, 520, that the words ‘La Favorita’ were so used as to indicate the origin of a special selec- tion and classification of certain flour, requiring skill, judgment, and expert knowledge, and which gave value and reputation to the flour. The name was purely arbitrary — a fancy name and in a foreign language — and did not in it- self indicate quality. The legality of the trade-mark as such (and it had been duly registered under the act of Con- gress) was couceded by the answer, though it was contended in the argu- ment that it was not valid because in- dicative only of quality, but we were of opinion that the primary object of its adoption was to symbolize the exercise of the judgment, skill, and particular knowledge of the firm which adopted and used it, and that the phrase covered the wish to buy and the power to sell from that origin.” 468 MENENDEZ v. HOLT, classification. It was equivalent to the signature of Holt & Co. toa certificate that the flour was the genuine article which had been deter- mined by them to possess a certain degree of excellence. “Evidence was given to the effect that from 1857 to 1860 the words ‘ La Favorita’ were occasionally used in St. Louis by Sears & Co., then manufacturing in that city, as designating a particular flour, but the witnesses were not able to testify that any had been on sale there under that brand (unless it were that of Holt & Co.) for up- wards of twenty years. The use thus proven was so casual, and such little importance apparently attached to it, that it is doubtful whether Sears & Co. could at any time have successfully claimed the words before Holt & Co. appropriated the words to identify their own flour, and there was no attempt to resume it. “Tt may be that where a firm is dissolved and ceases to exist under the old name, each of the former partners would be allowed to obtain ‘his share’ in the good-will, so far as that might consist in the use of trade-marks, by continuing such use in the absence of stipulation to the contrary ; but when a partner retires from a firm, assenting to or acquiescing in the retention by the other partners of possession of the old place of business and the future conduct of the business by them under the old name, the good-will remains with the latter as of course. “Counsel in conclusion earnestly contends that whatever rights appellees may have had were lost by laches; and the desire is inti- mated that we should reconsider McLean v. Fleming, 96 U. 8. 245 [580], so far as it was therein stated that even though a complainant were guilty of such delay in seeking relief upon infringement as to pre- clude him from obtaining an account of gains and profits, yet, if he were otherwise so entitled, an injunction against future infringement might properly be awarded. We see no reason to modify this gen- eral proposition, and we do not find in the facts as disclosed by the record before us anything to justify us in treating this case as an exception. “ The intentional use of another’s trade-mark is a fraud; and when the excuse is that the owner permitted such use, that excuse is dis- posed of by affirmative action to put a stop to it. Persistence then in the use is not innocent; and the wrong is a continuing one, de- 469 MENENDEZ v, HOLT. manding restraint by judicial interposition when properly invoked. Mere delay or acquiescence cannot defeat the remedy by injunction in support of the legal right, unless it has been continued so long and under such circumstances as to defeat the right itself. Hence, upon an application to stay waste, relief will not be refused on the ground that, as the defendant had been allowed to cut down half of the trees upon the complainant’s land, he had acquired, by that negligence, the. right to cut down the remainder. Acquiescence to avail must be such as to create a new right in the defendant. Rodgers v. Nowill, 3 De G. M. & G. 614. Where consent by the owner to the use of his trade-mark by another is to be inferred from his knowledge and silence merely, ‘it lasts no longer than the silence from which it springs; it is, in reality, no more than a revocable license.’ “So far as the act complained of is completed, acquiescence may defeat the remedy on the principle applicable when action is taken on the strength of encouragement to do it, but so far as the act is in prog- ress and lies in the future, the right to the intervention of equity is not genera'ly lost by previous delay, in respect to which the elements of an estoppel could rarely arise. At the same time, as it is in the exercise of discretionary jurisdiction that the doctrine of reasonable diligence is applied, and those who seek equity must do it, a court might hesitate as to the measure of relief, where the use, by others, for a long period, under assumed permission of the owner, had largely enhanced the reputation of a particular brand. “ But there is nothing here in the nature of an estoppel, nothing which renders it inequitable to arrest at this stage any further inva- sion of complainants’ rights. There is no pretense of abandonment. That would require proof of non-user by the owner or general sur- render of the use to the public. The evidence is positive that Holt & Co. continuously used the trade-mark, always asserted their exclusive right to it, and never admitted that of any other firm or person, and, in the instance of every party, including Ryder, who used this brand of flour not of Holt & Co.’s selection, that use, when it came to their knowledge, was objected to by the latter, and personal notice given, while publication was also made in the newspapers circulating where the flour was usually marketed, containing a statement of Holt & Co.’s rights and warning against imitations. It is idle to talk of acquiescence in view of these facts. Delay in bringing suit there was, and such delay as to preclude recovery of damages for prior infringe- 470 CARSON v, URY. ‘ment, but there was neither conduct nor negligence which could be held to destroy the right to prevention of further injury.” } 708. Ryder v. Holt. 1888, S.C. U. S.—128 U.S. 525. Held, (1) that the court below, the United States Circuit Court for the Southern District of New York, was without jurisdiction because the parties were citizens of the same State, and the bill did not allege that the trade-mark in con- troversy had been “used on goods intended to be transported to a foreign country;” and (2) that jurisdiction could not be conferred by the agreement of counsel. Fuller, C. J. “It was stipulated in the Circuit Court that this cause should abide the event of Holt v. Menendez, ante [707], just decided, and the same decree in favor of complainants was, therefore, rendered in this as in that case. But it is now assigned for error that, as defendant and complainants below were citizens of the same State, and the bill did not allege that the trade-mark in controversy was ‘used on goods intended to be transported to a foreign country,’ Act of March 8, 1881, c. 1388, §§ 11, 21, Stat. 502, the Circuit Court had no jurisdiction, and the decree must be reversed for that reason. The objection is well taken, and the decree is accordingly reversed.” ? 709. Carson v. Ury. 1889. C. C. U. S. E. D. Mo. — 39 Fed. Rep. 777. THE label of a trade union is not a technical trade-mark, but a person making a lawful use of such label will be pro- tected by a court of equity against the use of counterfeits of the label which tend to injure him and to mislead the public. 1 See McLean v. Fleming, 580. 2 See Glen Cove Man. Co. v. Ludeling, 695. 471 CARSON v. URY. Thayer, J. “On the facts stated I think that complainant is en- titled to equitable relief. It is no doubt true that the union label does not answer to the definition ordinarily given of a technical trade- mark, because it does not indicate with any degree of certainty by what particular person or firm the cigars to which it may be affixed were manufactured, or serve to distinguish the goods of one cigar manufacturer from the goods of another manufacturer, and because the complainant appears to have no vendible interest in the label, but merely a right to use it on cigars of his own make, so long, and only so long, as he remains a member of the union. In each of these respects the label lacks the characteristics of a valid trade-mark. The court cannot interfere in this instance, as in ordinary trade-mark cases, on the ground that one person is intentionally or unintention- ally appropriating a mark, symbol, design, or word which has become the exclusive property of another when used by him to distinguish goods of a certain class. In short, this is not a trade-mark case. As I view it, it is a bill filed to restrain the defendants from perpetrating a fraud which injures the complainant’s business, and occasions him a pecuniary loss. . . . “No valid reason can be assigned why the principle which underlies these decisions [concerning unfair competition] does not entitle the complainant to relief. The right of the court to grant relief in the cases cited was predicated on the ground that the conduct of the par- ties proceeded against, in intentionally marking, labelling, wrapping, or advertising their wares so that they would be mistaken for the goods of some other manufacturer, was fraudulent. That, and the fact that the fraud complained of had a natural tendency to injure the business of the person whose marks, labels, etc., had been simulated, by lessening his sales or injuring the reputation of his goods, was held sufficient to give the person who had thus sustained or was liable to sustain special damage a right to equitable relief. It is true that the bill does not show that the defendants have affixed any of the spu- rious labels to cigars of their own manufacture, or that they have sold apy cigars bearing the counterfeit certificates or labels. But this is not important. From the fact that they have made and sold spurious labels and advertised them for sale, the court must presume that defend- ants intend that they shall be used on cigar boxes by the person who buys them, and that they manufacture and sell them for that purpose. The conduct of the defendants is equally as culpable as that of the 472 KOEHLER v. SANDERS. manufacturers of cigars who buy and use the spurious labels, and the loss which complainant sustains by the use of the same on cigar boxes is as directly attributable to the persons who make and sell the coun- terfeit labels, as to the dealers in cigars who buy and use them... . “In conclusion I will add that my attention was called, on the hearing of the demurrer, to a recent decision of the Supreme Court of Minnesota affecting the union label in the case of Protective Union v. Conhaim, 41 N. W. Rep. 943; also to a decision of the Court of Chancery of New Jersey in the case of Schneider v. Williams, 14 Atl. Rep. 812. In both of these cases the bill seems to have been framed upon the theory that the union label was a technical trade- mark, “It may be well to concede that the plaintiffs in those cases had no such property rights involved as would enable them to maintain an action, even on the theory on which this decision proceeds. The case at bar differs from those cases, however, in the respect before men- tioned, that complainant is himself a manufacturer of cigars, and, according to the averments of the bill, has built up a profitable trade by the use of the union label, which trade has been damaged, and is liable to be further damaged, by the fraudulent acts of the defendants.” } ea 710. Koehler v. Sanders. 1890. Ct. App. N. Y.—122 N. Y. 69. PLAINTIFFS, who were copartners carrying on the business of dealers in bonds in the city of New York, used as their firm name the designation “International Banking Company,” which name they had used continuously for over ten years. Defendants, Edward Sanders & Co., made use of the designa- tion “ International Bank.” It also appeared that the business carried on by plaintiffs was not what is known asa banking company. Plaintiffs com- menced an action to restrain the use of the name “ Interna- tional Bank.” Held, (1) that the word “ International,” being a word in common use and in its nature descriptive, the 1 See Werner v. Brayton, 712; McVey v. Brendel, 730. 473 KOEHLER v. SANDERS, designation “ International Bank” was publici juris, and that there was no support for the action upon the ground that defendants had sought by fraudulent means to mislead the public to plaintiffs’ injury. (2.) That if the plaintiffs’ busi- ness was not a banking business, and the designation “ Inter- national Banking Company” not descriptive of that business, plaintiffs had been guilty of misrepresentation, and could not maintain their action.) 1 In Ginter v. Kinney Tobacco Co. 12 Fed. Rep. 782, it appeared that com- plainant, a manufacturer of tobacco, was the first to make use of the designa- tion “ Straight Cut,’ which he applied in connection with tobacco cut in a particular way. Defendant applied the designation “ Straight Cut” to similarly cut tobacco of its manufacture. On motion for injunction it was held that the term “ Straight Cut,” as employed by the complainant, was either descrip- tive or misleading; that, if it was de- scriptive, it was publict juris, and that, if it was not descriptive, it was calcu- lated to mislead the public; that the mo- tion should, therefore, be denied. Judge Wallace said: “The com- plainant advertises his tobacco as straight cut, curly cut, etc., but always adds some further appellation, such as Twin-Pet straight cut, Perfection curly cut, ete. Ina circular of May 1, 1881, he states that his ‘straight cut tobaccos are cut from the choicest varieties of Virginia gold and sun-cured leaf, and are cut to lie straight in the boxes, and are very desirable for making cigar- ettes.’ He now insists that the term was selected and has been employed by his business predecessors and him- self as an arbitrary designation of his particular article, and that neither his cigarettes nor the defendants’ are made of straight cut tobacco. All this, if true, does not help the complainant’s case, but to the contrary furnishes an additional reason why he should be denied the assistance of a court of equity. Not only has he employed a name to which he could not acquire an exclusive right, but he has used it in a manner calculated to mislead the public, although, perhaps, not inten- tionally on his part. A purchaser cognizant of the differences in the preparation of smoking tobacco would legitimately infer that the complain- ant’s cigarettes were in fact made of straight cut tobacco.” In McNair v. Cleave, 10 Phila. 155, plaintiffs used the name “ Galaxy Pub- lishing Co.” An injunction was refused on the ground that plaintiffs, not hav- ing been incorporated, were guilty of a fraud on the public in using such name, and that a court of equity would not aid them in an effort to protect it. But in Lauferty v. Wheeler, in the N. Y. Common Pleas, Special Term, October 2, 1882, plaintiffs carried on business under the name of “The Alderney Manufacturing Company.’ One ground of defence was that the use of the word “ Company” by plaintiff was an in- direct statement that plaintiff was a corporation, which being untrue and an infraction of the Statutes of the State of New York, the action could not be maintained. Judge Van Brunt held that this de- fence was not good. After referring to McNair v. Cleave, he said: “I can- not see possibly how any fraud can be perpetrated upon the public by parties engaged in business assuming 474 MONRO v. SMITH. 711. Monro v. Smith. 1890. N.Y. S.C.—8N. Y. Sup. 67. AN illustration or picture used as a frontispiece for a book or publication cannot be protected at common law as a trade- mark. Van Brunt. “The main question presented then is, had the plain- tiff a trade-mark in the said picture? A ‘trade-mark’ has been de- fined to be a symbol, emblem, or mark which the tradesman puts upon, or wraps, or attaches in some way, to the articles he manufac- tures, or causes to be manufactured, for the purpose of distinguishing them from the productions of other manufacturers. ‘Chere is no question but that the plaintiff could have obtained a trade-mark in the picture in question for the purpose of distinguishing the series of books which he chose to call the ‘Old Sleuth Library.’ But it does not appear, upon an examination of these publications, that the pic- ture in question was in any way intended to be a trade-mark, or a symbol distinguishing this particular library. It is spoken of in the complaint as an illustration, —as the frontispiece of the story ; and in the subsequent publications it would appear that some peculiarities of this picture were represented by one of the figures, among many, appearing in pictorial illustrations of scenes depicted in these publica- tions. We fail to see upon what theory a trade-mark can arise out of the circumstances which are here mentioned. The illustrations were different in character, representing different scenes, and simply con- tained, as a more or less important feature, some of the peculiarities of the figure represented in the frontispiece of the series. In the other pictorial illustrations in which the character appeared it was in connection with different characters, objects, and scenes, and there- fore appears to have been used as an illustration merely, in the stories of the ‘Old Sleuth Library.’ The picture or design which appeared as the frontispiece of the first story published never was at- tached to any other book or story, but in all instances was used as a frontispiece for the same book or story, and seems only to have been an illustration of that particular story. It never was used in connec- as a tradename words which might be See Goodyear Co. Case, 705; Pidding equally applicable to a corporation.” v. How, 60. 475 WERNER v. BRAYTON. tion with the subsequent numbers of the said library, or any other stories, except, as has already been stated, in pictorial illustrations in which this same character appeared in connection with different characters, objects, and scenes. Now, it is clear, it seems to us, that no trade-mark can be established by any such proof as this. The whole design is changed with the requirements of each particular story, for the purpose of illustrating some incident of that story ; and merely because a particular character may have been in each one of these stories in no manner changes the fact that these pictorial designs were intended as illustrations, and illustrations alone. In order that a party may claim property in a trade-mark, it must be a symbol or a design which in itself characterizes and distinguishes the particular goods to which it is attached. If it is so changed in gen- eral appearance, by reason of its surroundings, that it bears no longer any resemblance to the original symbol or design, it loses its charac- teristic as a trade-mark, because it loses its distinguishing features. It might as well be claimed that if an author put a felt hat upon. a figure which was used as an illustration in one story, and used a similar felt hat for the covering of figures used in illustration of other stories written by him, nobody would have a right to use a felt hat upon a figure appearing in an illustration, because this was a trade- mark of this author, tending to designate his particular work ; and this is substantially all that is done, or claimed to have been done, by the plaintiff in this action. In the first story of the series he repre- sented a figure in a particular dress. In subsequent stories he intro- duced a figure bearing some slight resemblance to it, in a different attitude, with different surroundings, and conveying an entirely differ- ent impression; and he insists that he has the right to call that figure his trade-mark. We cannot see that, upon any principle which governs the rights of parties to trade-marks, the plaintiff can establish a trade-mark in illustrations in a book or story which he publishes.” 712. Werner v. Brayton. 1890. S.C. Mass. — 150 Mass. A LABEL of a union of workmen, used by an indefinite number of local unions to denote that the goods to which it is 476 WERNER v. BRAYTON. attached were made by members of the union, cannot be pro- tected as a technical trade-mark. Whether, upon proper allegations, the use of such a label by persons not members of the union may be enjoined, upon grounds recited in Carson v. Ury [709], not decided. Devens, J. P. “To the validity of a trade-mark, so as to entitle any one to a remedy for an invasion thereof, three things have been held necessary, — that he must show that he has adopted some marks or signs not in use by others to distinguish the goods manufactured or sold by him from those of other manufacturers or traders; that these must be applied to some article of tratlic; and that such articles must have been placed on the market. The right to a trade-mark cannot exist as a mere abstract right independent of and disconnected from a business. It is not property as distinct from, but only as an incident to, the business. It cannot be transferred except with the business, may be sold with it, and, ordinarily, passes with it... . In the case above cited the allegations of the bill were apparently the same as those in the case at bar... . “Tt is urged by the plaintiffs, even if the label in question cannot be considered technically a trade-mark, that, even where trade-marks have not been infringed, courts of equity have granted injunctions against the use on various grounds of certain marks, wrappers, and labels, where there appeared to be a design to deceive the public by concealing the true origin of the goods, and to make it appear that they were the goods of another. “ We have no occasion to question this principle or the authorities by which it has been sustained. It will be found that where, under such circumstances, an injunction has been granted, or an action maintained, it has been at the instance of one who was himself a manufacturer, dealer in, or owner of, the articles which were fraudu- lently represented by the counterfeited labels, wrappers, or advertise- ments to be his. In such case the fraud complained of would have a natural and inevitable tendency to lessen the sales, affect the reputa- tion of the articles manufactured or dealt in, injure the business of the complainant, and would thus afford him a ground for relief by reason of the special and peculiar damage which he would sustain, or to which he might be exposed. The plaintiffs show by their bill that they have.a right to use the label in question, and that it isa 477 EEOCH MORGAN’S SONS COMPANY v. WENDOVER. valuable privilege, but, although they aver that they have suffered loss by the use of it by the defendant, they do not show that any business which they pursue has been affected, or that they have sus- tained any definite loss or any injury except that which must be ex- tremely remote and purely speculative. .. + “In the case at bar there is no allegation that the plaintiffs are themselves, on their own account or with others, manufacturers or dealers in cigars as a business, or even persons actually employed by others in their sale or manufacture, or that the union of which they are members and officers is engaged in any business of that description. They do not by their bills show that they apply or have applied this label to any vendible commodity of which they are the owners, or which they manufacture for the market or place thereon for sale, or in which they deal. Where an association such as the Cigar-Makers’ Union, embracing many members and many divisions as subordinate unions, has adopted a symbol or device to be used on boxes of cigars made by its members, such device or symbol not in- dicating by whom the cigars are made, but only that they are made by some of the members of the union, and where the right to use the device or symbol belongs equally to all the members, and continues only while they are members, a bill cannot be maintained. by in- dividual members or officers of such association to restrain others wrongfully and fraudulently using such device or symbol from so doing. Any injury to such members or officers is not direct or im- mediate, nor does it affect them in any business which in some form they conduct. It is upon this ground that such invasions of that which has been held to be property have heretofore been restrained. Whether, if the bill had contained allegations similar to those which were found in the case of Carson v. Ury, ubi supra [709], it might have been maintained, we have no occasion now to consider. Bill dismissed.” 713. Enoch Morgan’s Sons Company v. Wendover. 1890. C. C. U.S. Dist. N. J. —48 Fed. Rep. 420. COMPLAINANT was the owner of the word-symbol “ Sapo- lo,” which had acquired reputation as indicating complain- 478 ENOCH MORGAN’S SONS COMPANY v. WENDOVER, ant’s article, and which had been for many years widely known by the public as its trade-mark. Defendants were dealers who, when “ Sapolio” was asked for, delivered “ Pride of the Kitchen,” a similar article, but which was distinctly different in its appearance. The evidence was that the defendants’ clerks, when “ Sapolio”’ was asked for, handed out “ Pride of the Kitchen,” without comment or explanation. This suit was instituted to restrain deliveries of this kind by defendants, on the ground that they involved a constructive use by defend- ants of complainant’s trade-mark * Sapolio.” Held, that com- plainant was entitled to an injunction. Green, J. It is perfectly well settled that a trade-mark is property ; if so, any use of it by others than the owner or rightful possessor, if unauthorized, is unlawful. The property of the complainant in this trade-mark or symbol is not only not disputed, but clearly admitted by the answer, and is as clearly established by the proofs. The law, then, is bound to protect the owner of this property in the use and the exclusive use. Now, what did the transaction in the store of the defendants, as disclosed in the proofs, amount to? Simply this: When asked by the complainant’s agent for a cake of ‘Sapolio,’ the defend- ants’ agent, in response, delivered a cake of ‘ Pride of the Kitchen,’ which in effect was an assertion that the cake delivered was ‘ Sapolio,’ the very identical soap which had been asked for. In other words, the act of the defendants’ salesman was a sale of a soap not made by the complainant, as and for the soap of the complainant known as ‘Sapolio,’ and thereby constituted an assertion, on bis part, that it was ‘ Sapolio.’ “‘Tf acts speak louder than words, then this assertion was more positive and emphatic than if it had been spoken aloud. The result is that an article manufactured by A has been successfully palmed off upon an innocent purchaser as an article manufactured by B, and as the article for which the purchaser made inquiry; and this has been accomplished by a deception, arising from and based upon what must be held to be an unlawful use of a trade-mark or word- symbol, the right of property in which belongs solely to the com- plainant. “That the act of the salesman in offering ‘ Pride of the Kitchen’ 479 ENOCH MORGAN’S SONS COMPANY wv. EDLER. in response to a demand for ‘Sapolio’ is, though done silently, a pos- itive, unlawful act, is clear. Its unlawfulness consists in an attempt to steal away the business of the complainant for the benefit of the manufacturers of ‘Pride of the Kitchen.’ It is clearly the object of the law of trade-marks to prevent this. In Celluloid Co. v. Cellonite Co. 32 Fed. Rep. 97 [704], Mr. Justice Bradley uses this language: “ age = QR aes a2 See FE Was my seis B bd : rr 58s " Se é 5238 Eu ee | esa ef li WD) iz 2° as UY 4 Aras Wriatt at eek T3g3 2 - ie MANUFACTURED BY ( EH 7 i ef a f ase - |}CEO.H.M= tad chr da NN 28: e % : awe Fl ool oul | . a! mel ee a eo 7 L ‘ y [ fo. = REGISTERED MAY 4th, 1880. COMPLAINANT'S LABEL a 4 ——\ ' <= ! > | < eae) ra HLMOsEIWY JO IOUISTC LoroeTION WxIg ‘Ol ON AYOLOVA NT) wath b4 | 1 a 6 y¥ per- not to use the penalties of law, cco again, NOTICE.—The Manufacturer of this Tobacco has complied with all the requirements of law. Ever od @ oy son is cautioned under this package for Toba DEFENDANT'S LABEL FISCHER v. BLANK. of the designer, and to that conception he gave expression.” The imitation of plaintiff's mark or package is an “expression” and use of the mark or package, and, under ordi- nary conditions, an infringement of his rights. As illustrating the rule by which in- fringements that appeal to the eye are governed, the case of Fischer v. Blank is in harmony with the Amoskeag case, and those which follow it. As illustrating the rule concerning infringements which involve the use of words, it is in harmony with the doc- trines of the House of Lords [722] and the Supreme Court of the United States [720]. Said the late Mr. Justice Bradley (clarum et venerabile nomen) : — “It is the object of the law relating to trade-marks to prevent one man from unfairly stealing away another’s busi- ness and good-will. Fair competition in business is legitimate and promotes the public good, but an unfair appro- priation of another’s business by using his name or trade-mark, or an imitation thereof calculated to deceive the pub- lic, OR IN ANY OTHER WAY, is justly punishable by damages, and will be en- joined by a court of equity” (32 Fed. Rep. 97). 34 529 INDEX. NOTE. —The numbers refer to the numbers of the cases. “ A” PENS, 568. ABANDONMENT of trade-mark by dismissal of suit for injunction, 230. not established by other persons having copied some details, 367. by non-claim, 437. ’ by adoption of a new mark, 513, 628. by disuse, 590. injunction granted to restrain infringement after, 125. “A.C. A”? COTTON TICKINGS, 100. descriptive, 676, 720. ACCOUNT OF PROFITS given, though persons other than the plaintiff interested in the mark, 196, 243. though defendants ignorant even of the plaintiff’s existence, 204. only after the defendant was aware of the prior ownership, 213. only in respect of goods actually sold, 333. not given where plaintiff’s user short, 234. where defendant had acted bond fide, 235, 608. where plaintiff had delayed, 244, 251, 384, 500, 580, 707, 720. where sales small, 253. See PRoFITs. ACQUIESCENCE by owner of trade-mark in infringement, when gratuitous, is mere rev- ocable license, 100, 137, 580, 707. when it will authorize breach of injunction, 115. can only be established where knowledge is proved, 638, 642, 682. held not to be established, 228. by persons at a disadvantage is no defence, 455. See DELay. 531 INDEX. ACQUISITION ! of trade-mark by long user, 51, 459. without long user, 215, 234, 325, 364, 456, 627, 629. limited to a particular class of goods, 215, 223, 234, 257, 616. of trade-mark from trustees for creditors, 222, 323, 575, 721. there must have been vendible goods in the market bearing the mark for, 140, 215, 223, 234, 264, 301, 339. containing a false assertion is impossible, 223. previously used by others, 276, 301. on formation of a partnership, 222, 399, 408, 437, 502. from a person who had already sold his right, not possible, 367, 502. in gross not allowable, 447, 487, 492, 630, 716. except by previous maker of the goods, 492, 716. ACTION on the case, 4, 40, 50, 59, 68, 72, 82, 103, 111, 125, 140, 338, 374. fraud must be proved in, 2, 4, 72, 82, 140, 213, 338. plaintiff in, must show that his mark was on vendible goods in the market, 140. under 5 & 6 Will. IV. c. 83, s. 7, 167. for damages occasioned by an order for spuriously marked goods, 194. for discovery, 519. manner of trial of, 644. ADDRESS, injunction granted to restrain imitation of, 443. ADJECTIVES indicative of quality cannot be appropriated, 85, 226. See Descriptive Worps. ADMINISTRATION must be taken out to a deceased proprietor of a trade-mark before his next of kin can claim the mark, 4, 337. ADVERTISEMENT, deceptive, 18, 163, 248. complicated label held not to be a trade-mark, but a mere, 223. expense incurred in, gives no right of trade-mark, 264, 339. a necessary preliminary to registration in England, 515. “ AEILYTON” WRITING FLUIDS, 510. AGENT, principal responsible for fraud of, 321. acquires no personal right, 534, 554. AGENT FOR “ Mason & Brand’s Essence of Beef,’’ 534. AGRICULTURAL Implements, marks on, 412. 532 INDEX. AGRICULTURAL — continued. preparations, marks on, 250, 364, 489, 554. “ AINSWORTH’S THREAD,” 257. ‘““ AKRON” CEMENT, 282. ALE, marks on. See Beer. ALIENS, infringement of trade-marks of, in England, 151, 152, 164, 171, 199 200, 275. America, 78, 79, 83, 84, 125, 251. ‘“‘ ALLOA” WOOLLEN YARNS, 601. “ ALLSOPP’S ALES,” 1838. ALMANACK, wrapper of, 85. d See PuBLicaTIon. ALTERNATIVE trade-marks recognized in the United States, 394. registered in the United States, 501, 544. ‘* AMERICAN GROCER, THE,’’ 503, 679. “ Sardines,’’ 422. ‘* AMOSKEAG” COTTON CLOTHS, 314, 500. “ ANATOLIA” LIQUORICE, 234. ‘“* ANCHOR BRAND” bacon and hams, 645. wire, 213. “ ANCHOR TUBE COMPANY, THE,” 566. ‘“ ANCHOVIES, BURGESS’ ESSENCE OF,” 117, 169, 170. ‘“« ANGLO-PORTUGO OYSTERS,” 625. «“ ANGOSTURA BITTERS,”’ 591, 693, 718. ANNATTO, marks on, 421, 602. «“ ANNUAL, BEETON’S CHRISTMAS,” 450. “ ANTIQUARIAN BOOK-STORE, THE,”’ 336. « APOLLINARIS WATER,” 457, 465, 509, 675. APPEAL from an injunction restraining the use of a trade-mark, advanced, 346. delay disentitling appellant on, 117. ‘«« ARAMINGO CHECK ’’ GOODS, 186. ARBITRARY NAMES. See Fancy Names. Rule as to, defined, 690. ARMS AS TRADE-MARK. See Crest. «“ ARMY AND NAVY COOPERATIVE SOCIETY, THE,” 640. “AROMATIC BITTERS,” 432, 591. 583 INDEX. ARTICLES of partnership, construction of. ‘See PARTNERSHIP. “ ASHFORD LODGE,’ 631. ASSETS, good-will of attorney’s practice is not, 46. medical practice held to be to some extent, 102. not to be, 588. good-will of newspaper is, 3, 35. partnership is, 16, 64, 70, 139, 176,177, 185,192, 202, 206, 210, 215, 248. public house is, 6. shop is, 3, 58. of partnership, good-will of newspaper is, 173, 178. trade-mark is, 80, 215, 337, 692. trade name is, 248, 692. ASSIGNMENT when valid and effectual, 680, 716. of trade-mark, possibility of, depends on the circumstances, 222, 223, 521, 680. together with the good-will, 257, 279, 319, 331, 521, 580, 630. on sale of good-will, without direct reference to it, 350, 354, 492, 692. places assignee in position of assignor, 138, 257, 279, 692. held that notice of must be incorporated with the mark, 263. need not be incorporated with the mark, 279. twice over by the same person not allowable, 367, 502. does not give a right to use it on another class of goods, 502. by assignee in bankruptcy, 222, 323, 575. with limitations as to locality of user, 628. of Cutlers’ mark possible, where owned by a non-freeman, 222. name of hotel, 467. theatre, 524. good-will is subject to duty within the Stamp Acts, 128. ATTACHMENT issued for contempt, 353. ATTORNEY, contract by, to retire from business and recommend clients, etc., en- forced, 11.. specific performance of agreement by, for sale of practice, refused, 22. good-will of practice of, not assets to be administered, 46. See Goop-wILL ; PARTNERSHIP. ‘“ ATWOOD’S VEGETABLE PHYSICAL JAUNDICE BITTERS,” 628. 5384 INDEX. AUTHOR, improper use of nom de plume of, restrained, 429. See Name. ‘““AYER’S CHERRY PECTORAL,” 574. BAGS, marks on, 365. BAILEES of goods spuriously marked, 229, 239. BAKING POWDERS, marks on, 161, 182, 656, 671. ‘‘BALM OF THOUSAND FLOWERS,” 144, 145. BANK NOTES, spurious issue of, restrained, 197. “BANK OF ENGLAND” SEALING-WAX, 593. ‘BANK OF LONDON, THE,” 140. BANKRUPTCY, good-will of newspaper passes as ‘‘ goods and chattels” on, 12, 159. trade-mark passes as ‘‘ goods and chattels” on, 537. transmission of good-will on, 69. trade-marks on, 222, 323, 447. sale of good-will on, 17, 69, 323. by assignees in bankruptcy held not to deprive bankrupt of the right to use his own name, 575. “BANKS & CO.” 248. BARREL, special form of, no trade-mark, 373. an important element in the trade-mark, 395. hoops on, no trade-mark registrable in the U. S. 480. ‘BASS’ BEER,”? 310, 655. BAZAAR DEALER AT CALCUTTA, infringement of trade-mark by, 241. “B, B. H.” IRON, 215, 530, 540, 555. “BEAVERINE” BOOTS, 875. «“ BEDFORDSHIRE EXPRESS, THE,” 317. BEER, marks on, 89, 183, 188, 261, 310, 431, 545, 617, 655. «BEESWAX OIL,” 357, 377. «“BEETON’S CHRISTMAS ANNUAL,” 450. «« BELGRAVIA,”’ 264, 265. “BELL’S LIFE IN LONDON,” 174. «“BENSON’S CAPCINE PLAISTERS,” 562. «“ BENTLEY’S MISCELLANY,” 259. 5385 INDEX. ‘“ BETHESDA MINERAL WATER,” 529. “BHE HATHI” YARN, 646. ‘“‘BIRMINGHAM PATENT IRON AND BRASS TUBE CO., THE,” 56. «“ BIRTHDAY SCRIPTURE TEXT-BOOK, THE,”’ 403. “BISMARCK ” COLLARS, 300. BITTERS, marks on. See Sprrits. BLACKING, marks on, 21, 47, 76, 77, 120. BLACK LEAD, marks on, 348. “BLACK PACKAGE TEA,” 731. ‘‘BLANCHARD CHURN, THE,” 358. BOOK, name of. See PUBLICATION. ‘“ BOOTH’S THEATRE,” 524. BOOTS, marks on, 375. “BORWICK’S BAKING POWDERS,” 161, 182. BOTTLES, ' imitation of, 48, 291, 421, 628, 653. trade-marks moulded in, 157, 551, 608, 628, 652, 653. plaintiff not disentitled by misrepresentation as to size of, 483. ‘‘ BOVILENE” POMADE, 319. “BRAND’S ESSENCE OF BEEF,” 534, 570. BRANDY, mark on. See Spirits. BREACH OF CONTRACT on sale of good-will restrained, 114, 303, 335, 350, 485, 548, 552, 604. measure of damages for, 485. damages not given for, where fraud on the public, 146. as to use of initial, restrained, 419. by licensor, damages given to exclusive licensee for, 489. by registration of trade-mark, restrained, 530. BREACH OF COVENANT, not to use motto, held not to be committed, 546. BREACH OF INJUNCTION, motion to commit for, 77, 115, 200, 245, 468, 570, 595, 633. attachment issued for, 353. BREACH OF TRUST, in respect of trade secret, restrained, 31, 110, 290. publication of catalogue of etchings obtained by, restrained, 98. 5386 INDEX, * BRISTOL MERCURY, THE,” 12, ‘“ BRITANNIA, THE,” 141. ‘‘BROOK’S THREAD,” 622. “ glacé thread,” 190. “BROOKLYN WHITE LEAD COMPANY,” 154. “ BROOKMAN & LANGDON’S”” LEAD PENCILS, 55. BROOMS, marks on, 342. “BROSELEY PIPES,” 243. “BROWN’S IRON BITTERS,” 726. BRUSHES, marks on, 81. BUNDLES OF SILK, mode of making up, 217. “ BURGESS’ ESSENCE OF ANCHOVIES,” 117, 169, 170. BYRON, unauthorized use of name of Lord, 23. “CACHEMIRE MILANO” SILKS, 571. CALCUTTA, infringement of trade-marks by bazaar dealer at, 241. “CALHOUN” PLOUGHS, 596. CALIFORNIAN STATUTE OF 1863, 249. “CALISAYA BARK, FERRO-PHOSPHORATED ELIXIR OF,” 289. “« CANADA PLATES,” 648. “CAPITAL AND COUNTIES BANK, THE,” 618. CAPSULE, injunction to protect, refused, 684. CARDS, injunction refused in case of stamp on, 2. CARPET-STICKS AS TRADE-MARKS, 428. ‘“‘ CARRIAGE BAZAAR,” 294. CASE, action on the. See ACTION. CATALOGUE OF PAINTINGS, 8. etchings improperly obtained, publication of, restrained, 98. CATTLE FOOD, marks on, 560, 645. «“ CAVE’S DRESS-BASKETS,” 304. “CELLONITE,”’ 704. “CELLULOID,” 704. 537 INDEX, CEMENT, marks on, 282. “CENTENNIAL” CLOTHING, 417. alcoholic spirits, 470. wines, 506. ‘“ CHARBONNEL AND WALKER,”’ 639. “ CHARITY,” 440. ‘“ CHARTER OAK” STOVES, 313. CHEAT, 155. “ CHEAVIN’S FILTERS,” 528. “ CHERRY PECTORAL,” 574. ‘CHERRY ST. MILLS” FLOUR, 405. “CHINESE LINIMENT,” 99, 109. “ CHLORODYNE,”’’ 230, 424, ‘“ CHRISTY’S MINSTRELS,” 137, 242. ‘* CHUBB’S SAFES,” 255. CHURNS, marks on, 358. CIGARS, marks on. See ToBacco. CIRCUIT COURTS, jurisdiction of the U. S. in cases of registered trade-marks, 613, 629. CIRCULARS, issue of deceptive, 92, 163, 193, 207, 272, 305, 438. “ CLARIBEL’S”’? SONGS, 293. “CLARK’S THREAD,” 148. “ CLARKE’S CONSUMPTIVE PILLS,” 93. CLASS OF GOODS, trade-marks can only be acquired for a particular, 215, 223, 234, 257, 555, 559, 616. infringement must be by use on the same, 314, 559. assignment of a mark gives no right to use it on another, 502. marks common in one, not necessarily common in other classes, 342, 579. registration of old marks for part of a, granted, 555, 616, 623, 643. new marks for part of a, refused, 645. for a, for part of which alone an old mark was registered, refused, 655. ; “ CLICQUOT” CHAMPAGNE, 239. CLOTH, marks on, 1, 821, 400, CLOTHING, marks on, 417, 636. 588 INDEX. “CLUB HOUSE” GIN, 187. COAL, marks on, 327, 599, 633. COAL HEWERS, false tokens used by, 287. “COATS’ THREAD,” 79. “ COCOAINE,”’ 277. COCOATINA, marks on, 298. “COE’S SUPERPHOSPHATE OF LIME,” 250, 489. COLLAR BOXES are not trade-marks, 538. COLLARS, marks on, 300. ‘*COLLINS & CO. Hartford Cast Steel, Warranted,” 151, 152, 164, 171. ‘‘ COLOGNE, EAU DE,” 113, 118, 130, 275, 592, 642, 654. *“ COLONIAL LIFE ASSURANCE COMPANY, THE,” 236. COLORABLE authority to use name, 76, 123, 248, 298, 390, 391, 409, 533, 534. imitation, 76, 96, 103, 106, 119, 120, 123, 124, 184, 188, 150, 154, 170, 174, 175, 199, 200, 204, 213, 225, 228, 240, 244, 258, 271, 273, 275, 277, 291, 298, 310, 316, 317, 319, 329, 330, 331, 338, 345, 365, 366, 370, 374, 379, 395, 411, 415, 421, 435, 442, 445, 461, 463, 465, 466, 514, 545, 579, 580, 591, 603, 616, 617, 621, 636, 642, 646, 650, 651, 653. See ParTIaAL IMITATION. no general rule to be laid down as to, 223. statement as to relationship, 460. rule of colorable imitation expounded and illustrated, 731. “COLTON DENTAL ROOMS,” late operator at the,’’ 305. COMBINATION MARKS ON COTTON GOODS, 581, 585. COMMISSIONERS OF PATENTS IN ENGLAND, position of the, 515, 540, 647. in America, position of the, 525. COMMIT, motion to, 77, 115, 200, 245, 463, 570, 595, 633, 635. See ATTACHMENT. COMMITTEE OF EXPERTS AT MANCHESTER, position of the, 586, 622, 632. COMMON marks cannot be protected as trade-marks, 85, 218, 223, 226, 227, 539 INDEX. COMMON — continued. 236, 251, 263, 269, 274, 279, 282, 286, 289, 296, 306, 339, 368, 364, 407, 410, 431, 440, 448, 513, 520, 541, 581, 593, 596. See DescripTIVE WorpDs ; QUALITY. marks do not become, unless similar marks have been in actual use, 646. under the Registration Acts marks used by more than three firms be- come, 558, 589, 593, 610, 611, 620. COMPANIES ACT, 1862, THE, 618, 619. COMPANY, name of, 88, 92, 154, 221, 236, 318, 325, 340, 475, 476, 500, 507, 548, 568, 604, 618, 619, 640. See CorPoRaTE NAME. use of, restrained within certain limits, 325. COMPETITION, UNFAIR. See Unrarr Competition. COMPROMISE OF PROCEEDINGS, 194, 209. ‘“CONDY’S FLUID” AND “OZONIZED WATER,” 561. ‘“CONGRESS SPRING WATER,” 354. CONSTRUCTION, principle of. See PrinciPLE oF CONSTRUCTION. “ CONTEMPORARY REVIEW, THE,” 539. CONTEMPT, attachment issued for, 353. See Commit, Motion To. CONTINUANCE of action against administratrix refused, 482. CONTRACT for sale of attorney’s practice enforced, 11. goods to be supplied under a certain name or mark, questions as to, 216, 648. implied on sale of surgeon’s practice, 220. CONVEYANCES, use of name of hotel on, 104, 111, 266. «“ COPAIBA, Franks’ Specific Solution of,” 87. COPYRIGHT, trade-marks distinguished from, 84, 97, 130, 152, 246, 265, 292, 325. connected with, 105, 685. in title of publication asserted, 638. only protected with the rest of the publication, 410, 685. nom de plume, 685. CORPORATE NAME, when, will be protected, 704, 705. descriptive, 705, 710. 540 INDEX. “CORRESPONDENT, THE,” 246. COSMETICS, marks on. See TorteT, PREPARATIONS FOR THE. COSTS of litigation occasioned by infringement must be paid by infringer, 79, 81, 82, 169, 170, 171, 211, 213, 234, 255, 280, 387, 512, 682. though an infant, 255. infringer can only escape paying, by offer of complete submission, 79, 136, 169, 170, 171, 234, 235, 321, 369, 583. of unnecessary litigation, successful plaintiff deprived of, 63,170, 253, 261, 369, 663. occasioned by unfounded allegations thrown on successful plaintiff, 81, 258, 587, 608. not given when both parties are in pari delicto, 144. to successful but disingenuous defendant, 223, 230, 237, 257, 264, 265, 324, 442, 449, 478, 488, 498. to plaintiff who demanded more than his right, 235, 488, 512. delayed to take proceedings, 251, 500, 682. acted too hastily, 254, 583. thrown upon plaintiff who had refused to accept a sufficient offer, 310. disentitled by misuse of the word “ patent’? and aware of the objection, 267. in doubtful case, 463. of motion to commit thrown on defendant, though motion refused, 200. appearance on appeal thrown on party unnecessarily appearing, 369. innocent agents relieved from payment of, 369. given to innocent holders of goods spuriously marked, 369. of questions as to registration, 593, 616, 621, 626, 637. lien for, 369, 567. COTTON GOODS, marks on, 100, 134, 184, 186, 198, 199, 200, 204, 241, 307, 814, 338, 356, 411, 454, 500, 546, 581, 585, 586, 622, 646. “COUGH REMEDY,” 541. COUNTER-CLAIM, injunction granted on, 443. “COURTRIA FLAX THREAD,” 195. COVENANT compelling retiring partner to quit trade altogether, 5. vendor of solicitor’s practice to quit practice in Great Britain, 66. to make good-will of business sold as profitable as possible, 20, not to publish a periodical like one sold, 259. 541 INDEX. COVENANT — continued. not to trade within certain limits usual on sale of good-will, 168. by vendor of good-will and trade name enforced, 485, 604. “‘CRACK-PROOF” INDIA-RUBBER GOODS, 547. CREST AND ARMS as trade-marks, 251, 258, 338, 546, 592, 621, 622, 642, 654. CRIMINAL OFFENCE. See Curat; Fatsze PRETENCES ; FORGERY; Missouri. discovery of matters tending to convict of, not enforced, 188. * CROCKETT’S LEATHER CLOTH,” 223. ‘“*CRONICA, LA,” 295. “CROSS” COTTON, 199, 200, 204. “CROUP MEDICINE,” 516, “CROWLEY MILLINGTON” STEEL, 63. “CROWN AND ANCHOR” WIRE, 213. Seixo wine, 256. paints, 402. clothing, 636. CRUCIBLES, marks on, 267. “ CUNDURANGO OINTMENT, C. 0.” 376. CUSTOM, foreign, to infringe is no defence, 83. of trade to place makers’ marks on goods made for them, 164. CUTLERS’ COMPANY’S marks, 222, 621, 643. assignable where owned by a non-freeman, 222. title to, must be perfected before registration, 643. CUTLERY, marks on, 82, 115, 222, 352, 859, 360, 361, 362, 442, 616, 621, 641, 643. See Epce Toots. “ CUTTER” barrel, 373, whiskey, 427. “CYLINDER” GLASS, 121. “D,” THE LETTER, in a lozenge, as a trade-mark, 371. DAMAGE, specific, need not to be proved to constitute infringement of trade- mark, 50, 68, 82, 99, 196, 213, 280, 318, 379. entitle to substantial damages for imitation of carriages on hire, 111. 542 INDEX. DAMAGE — continued. for an interdict to be obtained in Scotland, 413. where there is proof of, substantial damages will be given, 83. the burden lies on the plaintiff to prove, 252. DAMAGES, nominal, given for infringement of right, 50, 59, 68, 82, 99. exemplary, not to be given for infringement of trade-mark, 83. substantial, given without proof of specific damage, 111. inquiry as to, given, though persons other than the plaintiff interested in the mark, 243. for breach of contract not given, there being a fraud on the public, 146, occasioned by order for spuriously marked goods, action for, 194. whole profits produced by sale awarded as, 347. important elements in determining the amount of, 354. not given where the defendants had acted bond fide, 387. plaintiffs had delayed, 500, 682. profits which would have been made if an equal quantity of genuine goods had been sold, given as, 366, 481. for breach of contract given to exclusive license against licensor, 489. ‘DAVE JONES,”’? WHISKEY, 437. “DAVIS’ PAIN KILLER,” 103, 281. “DAY AND MARTIN’S BLACKING,” 21, 47, 76, 77. DECEPTION, there must be probability of, to constitute infringement of trade-mark, 58, 65, 72, 78, 84, 85, 91, 109, 123, 138, 157, 186, 215, 217, 223, 230, 245, 256, 274, 298, 295, 332, 425, 426, 433, 459, 466, 478, 488, 529, 541, 550. there must be probability of, to constitute infringement of name of company, 88, 221, 236, 618, 619, 640. burden of proof as to probability of, 646. “ DECKER PIANO,” 525. DECREE, FORM OF, in U. S. Court, 667. DEFENCE, knowledge of immediate purchaser is no, 40, 79, 83, 84, 136, 218, 247, 253. that a person infringing an author’s rights is the owner of the copy- right is no, 49. the fact that no specific damage is proved is no, 50, 68, 82, 99, 196, 213, 280, 313, 379. equality of quality is no, 50, 83, 84,109, 213. descriptiveness of plaintiff’s mark is, 4, 59, 100, 144, 179, 187, 205, 232, 269. See Descrietive Worps. 548 INDEX. DEFENCE — continued. plaintiff's own misrepresentations constituting, 60, 78, 90, 91, 133, 144, 191, 223, 232, 267, 308, 418, 434, 562, 575, 628. not constituting, 10, 106, 182, 1386, 180, 195, 276, 323, 325, 348, 488, 587, 591. delay constituting, 116, 117, 118, 246, 314, 337, 352, 381, 442, 449, 628. not constituting, 83, 110, 115, 132, 228, 244, 304, 318, 325, 344, 455, 580, 602, 688, 642. on motion to commit, 115. misuse of word “ patent’? constituting, 116, 223, 267, 288, 324, 3438, 444, 528, not constituting, 40, 119, 142, 214, 267, 304, 316, 384. having ceased to use the mark infringed is no, 125. not being registered at the Stamp Office as proprietor of news- paper is no, 141. mark not having been on goods in the market is a, 140, 215, 223, 234, 264, 301, 339. alienage is no, 78, 79, 83, 84, 151, 152, 164,171. having acquiesced gratuitously in the infringement is no, 100. having adopted an additional mark is no, 226, 384. having adopted the mark only recently is no, 215, 234. not being solely interested in the mark is no, 80, 196, 243. own improper conduct in misleading the defendant is, 265. merely collateral misrepresentations are no, 291, 384. own goods being injurious is no, for a defendant in pari delicto, 291. plaintiff’s not having registered his mark in the United States is no, 352. having partly purchased and partly invented is no, 367. abandonment of his mark held not to be established, 367. mark consisting of known words is no, if the combination is new, 390. copyright being insufficient, held to fail, 390. not being himself the manufacturer of the article is no, 461. having used the mark beyond the limits fixed on the assignment to him is, 628. publication having been long out of print is no, 638. goods having become known in the market by a variety of names is no, 646. defendant’s name being placed in the spurious mark is no, 198, 226, 269, 280, 301, 310, 329, 609, 646. may be an element of, 227, 232, 251, 363, 484, 608. 544 INDEX. DEFENCE — continued. mark being permitted by foreign law is no, 275. licensed by foreign sovereign is no, 352. having ceased to use the spurious mark is no, 484, 603, 617. not being personally cognizant of the fraud is no, 321, 583. absence of fraudulent intention is no, 63, 99, 109, 157, 171, 174, 194, 204, 213, 247, 253, 318, 315, 329, 340, 387, 433, 466, 477, 500, 579, 580, 608, 646, 650. foreign custom to infringe is no, 83, 275. colorable differences are no, 76, 108, 188, 213, 228, 250, 256, 302, 305, 313, 329, 352, 370, 379, 395, 435, 636, 646, 650, 651, 653. See CoLoRABLE IMITATION. absence of probability of deception is, 53, 65, 72, 73, 84, 85, 91, 109, 123, 138, 157, 186, 215, 217, 221, 230, 236, 245, 256, 274, 293, 295, 332, 425, 426, 433, 459, 466, 478, 488, 529, 541, 550, 618, 619, 640. that the name used is the defendant’s own name, and that there is no fraud, is, 82, 106, 117, 148, 180, 240, 257, 278, 427, 472, 521, 525, 534, 541, 560, 573, 580. that the mark is used on other classes of goods, is no, 579. DELAY, plaintiff disentitled by, 116, 117, 118, 246, 314, 337, 352, 381, 442, 449, 628. on motion to commit, 200. to account, 244, 251, 500, 580. to costs, 251, 500. to damages, 500. plaintiff not disentitled by, 83, 110, 115, 132, 228, 244, 304, 313, 325, 344, 455, 580, 602, 638, 642. on motion to commit, 115. for the purpose of obtaining evidence, 304, 325. effect of, on the account, 384, 580. does not affect right to injunction, 580, 665. DELIVERY-UP of spuriously marked goods for erasure, 196, 211. after erasure to indorsee of dock-warrants, 229. «DEMOCRATIC REPUBLICAN NEW ERA, THE,” 65. DEMURRER, when available on question of infringement, 677. ‘“‘DENT’S WATCHES,” 196. «“DERRINGER’S PISTOLS,” 249, 347. DESCRIPTIVE device, 425, 527. words cannot be claimed, 59, 279, 528, 529, 541, 676. 35 545 INDEX, DESCRIPTIVE — continued. defined and discussed, 676. See ComMoN Margs ; QUALITY. “Dr. Johnson’s Yellow Ointment,”’ 4. “A.C. A.” cotton tickings, 100. ‘* Burgess’ Essence of Anchovies,” 117. “Galen,’’ “ Lake,’? ‘* Cylinder,” ‘* Wayne,” “ New York ” 7 glass, 121. ‘¢ Balm of Thousand Flowers,’ 144, 145. “ Schiedam Schnapps,’’ 179, 415, 653. “ Club House Gin,’’ 187. “ Paraffin Oil,’’ 205. “Extract of Night-blooming Cereus,’’ 232. * Old London Dock Gin,’’ 240. ‘“‘ Liebig’s Extract of Meat,” 286. “ Ferro-Phosphorated Elixir of Calisaya Bark,” 289. “« Desiccated Codfish,” 306. ‘¢ Lackawanna Coal,’’ 327. ‘¢ Antiquarian Book-store,” 336. “ Beeswax Oil,”’ 357, 377. “ Razor-Steel,’’ 362. ‘¢ Mammoth Wardrobe,’’ 363. ‘‘Cundurango Ointment, C. O.’? 376. ‘¢ Invisible ” face-powder, 378. “‘ Macassar Oil,’ 386. “ Lieut. James’ Horse-blister,” 388. ‘¢ Golden Ointment,” 389. “ Parson’s Purgative Pills, P. P. P.” 404. ‘‘Johnson’s American Anodyne Liniment, Established a. pD. 1810,” 404. ‘“‘ New Manny Harvester, The,” 412. ‘‘Richardson’s Patent Union Leather-splitting Machine,” 415. ‘“ American Sardines,’’ 422. “ Chlorodyne,” 424. “Loch Katrine ’’ whiskey, 452. “Julienne” soup, 461. ‘+ Tasteless” drugs, 493. “¢ Fir Familien Gebrauch,’’ 504. ‘« Lawrence Feiner Familien Flannel,” 504. “ Croup Medicine,’ 516. ** Station Hotel,” 520. ‘Cough Remedy,” 541. ‘‘Crack-proof”’ india-rubber, 547, *‘ Cachemire Milano,” 571. 546 INDEX. DESCRIPTIVE — continued. ‘* Cherry Pectoral,’’ 574. “Highly Concentrated Compound Fluid Extract of Buchu,” 575. “ Egg Macaroni,” 577. “ Angostura Bitters,” 591. “ Valvoline ” oil, 597. “ Tron-stone ” water pipes, 612. ‘* Anglo-Portugo Oysters,” 625. “Porous” plasters, 626. ‘Ne Plus Ultra” needles, 262. “ Nourishing Stout,” 431. “ East Indian Medicines,” 670. “ Post Office ’’ directory, 661. ‘Charity ’’ as name of a play, 440. “Tron Stone,” 612. “ Singer Machine,” 659. “A.C, A.” 676. “ Royal,’’ 691. ‘International Bank,” 710. “ Brown’s Iron Bitters,” 726. “ DESICCATED CODFISH,”’ 306. DESIGN PATENT, will not be granted in the United States to a trade-mark, 341. distinguished from trade-mark, 582. “DEVLIN & CO.” 463. DIRECTIONS FOR USE, imitation of, 31, 50, 99, 168, 296, 432, 560. DISCONTINUANCE OF USE, by plaintiff of genuine mark, is no defence, 125. defendant of spurious mark, is no defence, 484. DISCOVERY, enforced in full, 203, 224, 519. enforced in full, with limitations, 356. of matters tending to convict of a criminal offence not enforced, 188. DISENTITLED, plaintiff, by his own misrepresentations, 60, 73, 90, 91, 106, 133, 144, 191, 223, 267, 291, 308, 418, 434, 562, 575, 628, 684, 693. however obvious they may be, 223. rule expounded, 684, 710, 718. misuse of the word ‘ patent,” 116, 223, 267, 288, 324, 343, 444, 528. improper conduct in misleading the defendants, 265. delay, 116, 117, 118, 246, 314, 337, 352, 381, 442, 449, 628, d47 INDEX. DISENTITLED — continued. retaining guarantee of his assignor’s personal inspection, 575. using trade-marks beyond the limits fixed on assignment, 628. not, by incorrect statements as to authorship of his magazine, 10. authorship of his musical composition, 132, 136. make of his thread, 142, 195. size of his bottles, 483. his ‘“‘ pianoforte tutor,’ 587. as against a defendant in pari delicto, 180. assumption of title of professor, 106. use of word “patent,’’ 40, 119, 142, 214, 267, 304, 316, 384. name of vendor of the business, 323. delay, 83, 110, 115, 132, 228, 244, 304, 313, 325, 844, 455, 580; 602, 638, 642. alienage, 78, 79, 83, 84, 151, 152, 164, 171. discontinuing the use of the mark infringed, 125. non-registration at the Stamp Office as proprietor of a newspaper, 141. book having been long out of print, 638. his goods having become known by a variety of names, 646. DISMISSAL of suit for injunction, abandonment of trade-mark by, 230. DISSOLUTION, of partnership, right of partners on, 37, 122, 149, 156, 172, 173, 176, 177, 180, 202, 206, 207, 210, 215, 238, 248, 260, 368, 383, 393, 406, 408, 487, 455, 548, 561, 566, 585, 639. notices of, not to be published until expiration of term, 75. specific performance granted of agreement between solicitors on, 135. “DIXON’S STOVE-POLISH,” 331. “DOCTOR Johnson’s Yellow, or Golden Ointment for the Eyes,’’ 4, 38, 389. ‘* Morse’s Indian Root Pills,’’ 180. “J. M. Lindsey’s Improved Blood-Searcher,” 279. “ Simmons’ Liver Medicine,” 348. “ Lobenthal’s Essentia Antiphthisica,” 497. ‘¢ J. Blackman’s Genuine Healing Balsam,” 502. “C. M’Lane’s Liver Pills,” 580. DOG-BISCUITS, marks on, 488, 644, 645. “DOG’S HEAD BEER,” 698. ‘““ DOWNER, BEMIS & CO.” 231. “DUBLIN” SOAP, 565. 548 INDEX. “DURABLE” PRINTERS’ ROLLERS, 630. “ DURHAM SMOKING TOBACCO,” 392, 399, 466, 590. ‘“‘EAGLE BRAND” IRON, 258. ‘Pencil Company, The,” 522. “* EAU-DE-COLOGNE,” 113, 118, 180, 275, 592, 642, 654. “ECONOMIC CONVEYANCE COMPANY, THE,” 86. EDGE-TOOLS, marks on, 151, 152, 164, 171. See CuTLERY. “EDINBURGH CORRESPONDENT, THE,” 34. ‘¢ Philosophical Journal, The,” 39. EDITOR OF NEWSPAPER, rights of, 39, 181, 450. “EGG MACARONI,” 577. ‘“KICHELE & CO.’S” MATCHES, 485. ELEMENTS, necessary to found jurisdiction of court, 228, 234. ‘* ELEPHANT CHOP” CLOTHS, 198. yarn, 646. “ ELKINGTON’S A” SPOONS, 147. EMBROIDERY COTTON, marks on, 199, 200, 204. “EMERSON’S ELASTIC RAZOR STROP,” 309. EMPLOYMENT, rights of servant on leaving. See Former EMPLOYMENT. ' «“ ENGLAND’S QUEEN” SEWING-MACHINES, 459. ‘‘ENGLISH’S X BROOMS,” 342. ENGRAVERS, infringement of trade-marks by, 89, 113. ENLARGEMENT of injunction to cover further fraud, 200. “ENO’S FRUIT SALT,”’ 609, 719. «EQUAL TO DAY & MARTIN’S ” BLACKING, 47. EQUALITY IN QUALITY IS NO DEFENCE, 50, 83, 84, 109, 213. ‘* ERA, THE,” 550. ERASURE OF SPURIOUS MARKS, 196, 211, 369. «“ ESSENCE of anchovies, Burgess’,” 117, 169, 170. ‘* beef, Brand’s,’’ 534, 570. «© ESTCOURT’S HOP SUPPLEMENT,” 449. ETCHINGS, ; publication of catalogue of, improperly obtained, restrained, 98. 549 INDEX. “ ETHIOPIAN STOCKINGS,” 80. “EUREKA Ammoniated Bone Superphosphate of Lime,’’ 364, shirts, 384. “ EVERETT’S PREMIER” BLACKING, 120. EVIDENCE of actual mistake, when necessary, 715, 724. of defendant’s intention, 72. plaintiff not disentitled by delay for the purpose of obtaining, 304, 325. ‘EX leree DE LA MAISON BOISSIER DE PARIS,” 498. “ EXCELSIOR” COTTON GOODS, 546. white soft soap, 226. EXCEPTIONS FOR SCANDAL, 414. EXCLUSION of patentee from using his own name as his trade-mark by its prior adoption by another, 284. EXCLUSIVE right in article exists only by patent, 3, 4, 19, 59, 68, 84, 99, 103, 130, 388, 389, 416, 461, 591, 628. trade-mark acquired by long user, 51, 459. without long user, 215, 234, 325, 364. only for a particular class of goods, 215, 223, 234, 257. by purchase from trustees for creditors, 222, 323, 575. which contains a false assertion cannot be obtained, 223.’ And see REPRESENTATIONS. has been partly purchased and partly invented, 367. words maintainable, irrespective of fraudulent imitation, 63. And see FRAUDULENT INTENTION. not maintained, 57. of quality cannot be maintained, 59, 85, 100, 121, 187, 226, 232, 236, 269, 279, 289, 839, 410, 481, 541, 557, 581, 626. And see Descriptive Worps. right in name applied to goods made under patent not claimable, 205, AT4, 528, 586, 561, 578. prize medal not claimable, 218. EXECUTORS, action by, 338, 347. EXEMPLARY damages not to be given for infringement of trade-mark, 83. EXHIBITION in public held to be evidence of defendant’s bond fides, 251. EXPERTS, committee of, at Manchester, 586, 622, 632. 550 , INDEX. EXPORTER OF GOODS, question between manufacturer and, 585. ‘“ EXTRACT OF MEAT, Liebig’s,”’ 286. ‘“‘ FABER’S PENCILS,” 278. FALSE PRETENCES, 120, 147, 155, 161, 182, 183, 285, 287, 349. FAMILY name, no right of property in, 312. residence, no right of property in name of, 631. FANCY NAMES valuable in proportion to their extravagance, 145, 205. ‘¢ Howqua’s Mixture ” tea, 60. ‘‘ Medicated Mexican Balm,” 73. “Persian Thread,”’ 78, 83, 84, 124. “ Ethiopian Stockings,” 80. “ Wistar’s Balsam of Wild Cherry,” 90. «¢ Chinese Liniment,”’ 99, 109. ‘Perry Davis’s Pain Killer,” 103, 281. “ Everett’s Premier” blacking, 120. “¢ Kathairon,” 133. «‘ Balm of Thousand Flowers,” 144, 145. ‘¢ Genuine Yankee Soap,” 150, 225, 662. “ Dr. Morse’s Indian Root Pills,” 180. “ Meen Fun” skin powder, 191. ‘¢ Cross” cotton, 199, 200, 204. *¢ Anchor Brand” wire, 213. “Excelsior White Soft Soap,” 226. “‘ Chlorodyne,” 230. “ Anatolia” liquorice, 234. “ Ox” mustard, 244. “+ Star” iron, 271. pencils, 481. oil, 486. «« Sweet Opoponax of Mexico, 276. “ Cocoaine,” 277. « Bismarck ”’ collars, 300. “Hero” jars, 301. “¢ Golden Crown ”’ cigars, 308. “Charter Oak ’’ stoves, 313. « Bovilene ” pomade, 319. ‘¢ Grenade ’”’ syrup, 334. “ Congress Spring ”’ water, 354. 551 INDEX. FANCY NAMES — continued. “ Eureka” goods, 364, 384. “ Silver Grove ’’ whiskey, 374. ‘¢ Beaverine”’ boots, 375. “Durham Smoking Tobacco,’’ 392, 399, 466, 590. “ Keystone Line ’’ of steamships, 396, “Turin,” ‘¢ Sefton,” “‘ Leopold,” ‘Liverpool ”’ cloth, 400. “‘ Centennial Clothing,” 417. ‘“* wines,’’ 506. “Magnolia,” ‘* Dave Jones ’’ whiskey, 437 * Rising Sun” stove polish, 445. ‘Licensed Victuallers’ Relish,’ 447. “ Pectorine,’’ 458. “ Gouraud’s Oriental Cream,’’ 460. ‘‘ Slate Roofing Paint,” 471. “ German Sirup,” 473. * Lion” goods, 501. ‘¢ Tamar Indien ” lozenges, 532. “ Lactopeptine ’’ medicine, 543. * Dublin ” soap, 565. “Wamsutta ” muslin, 660. “Mrs. Mills’ Cream,’ 664. “Sliced Animals,” 690. ‘Dogs’ Head Beer,” 698. ‘¢ Huntsman Brandy,” 698. “ Celluloid,” 704. “La Favorita,” 707. “ Sapolio,” 713. “ Tdeal,”’ 728. “FARINA’S EAU DE COLOGNE,” 113, 118, 130, 275, 592, 642, 654. “FERRO-PHOSPHORATED ELIXIR OF CALISAYA BARK,” 289. «“FIBRINE DOG-CAKES,” 644. FILTERS, marks on, 528. FIREWORKS, marks on, 253. FIRM NAME. See Trapr Name. FLANNEL, marks on, 504. “FLAVEL’S PATENT KITCHENER,” 116. “FLOR FINA PRAIRIE SUPERIOR TABAC ” cigars, 433. FLOUR, marks on, 367, 405, 490, 649. 552 INDEX. ' “FORD’S EUREKA SHIRT,” 384. FOREIGN custom to infringe trade-marks is no defence, 83. : language, words in, used as trade-marks, 51, 334, 411, 581, 647. trade-marks, infringement of. See ALIENS. FORGERY, 155, 161. FORMER EMPLOYMENT may be stated by a former servant or member of a firm so as not to produce deception, 107, 210, 223, 247, 254, 309, 398, 498, 534. but not in such a way as to produce deception, 117, 119, 247, 305, 398, 566. nor in breach of contract, 552. FORWARDING AGENTS, injunction against, 369. “FRANKS’ SPECIFIC SOLUTION OF COPAIBA,” 87. FRAUD disentitling to remedy. See Derence ; DrsenritTLep. name of place of business may be used without, 521. on the public. See Pusuic. FRAUDULENT intention, there may be infringement without, 69, 99, 109, 157, 171, 174, 194, 204, 213, 247, 253, 318, 315, 329, 340, 387, 433, 466, 477, 500, 579, 580, 608, 646. trade-marks may not be imitated with, 73, 119, 294, 398, 407, 438, 542, 580, 650. must be proved in a common law action, 2, 4, 72, 82, 140, 213, 338. an action under 5 & 6 Will. IV. c. 83, § 7, 167. imitation of name over shop frontage, 304. use of another’s testimonials, restrained, 87. man’s own name, restrained, 106,117, 124, 148, 333, 340, 388, 580. FRAUDULENT COMPETITION. See Unrarr CompstiTIon. “FRESE & CO.’S” TEA, 484, 603. «FROM Thresher & Glenny,” 247. “the late R. Hendrie,” 254. “ Hookham & Pottage,” 398. “FRUIT SALT, ENO’S,” 609, 719. «“FULLWOOD & COS” ANNATTO, 421, 602. « GALEN” GLASS, 121. GENUINE marks, infringement by misuse of, 126, 253, 441, 549, 556, 650, 651. 558 INDEX. GENUINE — continued. discussed, 699. Yankee soap, 150, 225. GENUINE GOODS, use of genuine marks on, purchased surreptitiously, 699. GEOGRAPHICAL NAMES as trade-marks, 234, 282, 327, 339, 392, 399, 405, 407, 410, 439, 452, 529, 542, 565, 590, 599, 601, 696, 722. ‘* GERMAN SIRUP,” 473. “GILLOTT’S PENS,’ 126, 269. GIN, marks on. See Spirits. “ GLACE’? THREAD, 190. GLASS, marks on, 121. ‘*GLENDON” IRON, 439, “GLENFIELD STARCH,” 329. “ GLOBE” CUTLERY, 641. “GOLD MEDAL” SALERATUS, 448. “ GOLDEN OINTMENT,” 389. “GOLSH’S FRICTION MATCHES,” 91. “GOODS AND CHATTELS,” within the Bankruptcy Acts, good-will of newspaper passes as, 12, 159. trade-mark passes as, 537. GOOD-WILL, what is, 17, 25, 45, 58, 74, 128, 139, 156, 172, 206, 385, 462, 588. personal and local, distinguished, 69, 462. of profession and of trade, distinguished, 156, 588. of newspaper, what is, 576. incapable of seizure by a sheriff, 159. connection of, with the business itself, 189. trade name, 172. marks, 91, 168, 331, 350, 630. trade-marks cannot be severed from, 331, 447, 487, 492. of trading business is assets, 3, 6, 35, 58. of professional practice held to be assets to some extent, 102. not to be assets, 46, 588. of partnership is assets, 16, 64, 70, 189, 165, 176, 177, 185, 192, 202, 206, 210, 215, 248. of newspaper is partnership assets, 1738, 178. “ goods and chattels” within the Bankruptcy Acts, 12, 159. of partnership carried on under articles held to survive, 139, 208. without articles held to survive, 9. 504 INDEX. GOOD-WILL — continued. not to survive, 14, 64, 189, 165, 185. may not be appropriated by one of the partners, 75, 122, 149, 202, 206. of medical practice held to survive, 28. of newspapers held not to survive, 35. of married woman’s business survives to her, 131. transmission of, on bankruptcy, 69, 323, 575. of public-house held to be incident to the stock and license, 74. value of, how ascertained, 462. option under articles to representative of deceased partner to retain share in, enforced, 127. value of deceased or retiring partner’s interest in, how ascertained, 70, 156, 158, 176, 177, 206, 208, 215, 238, 248, 260, 451. of share in business, specific transfer of, under legacy, not enforced, 189. sale of, 11, 13, 20, 25, 27, 32, 36, 45, 58, 62, 102, 114, 128, 153, 158, 168, 172, 176, 185, 220, 238, 248, 406, 423, 479, 485, 576, 588, 639. facts to be stated on, 37, 158, 215, 238. sum payable on, 20, 25, 27, 32, 156, 158, 260. assignment on, subject to duty within the Stamp Acts, 128. by executors, 479. assignees in bankruptcy, 323, 575. trade-mark held to pass on, without express mention, 350, 354. name held to pass on, without express mention, 639. not to pass on, 185, 575, when it can be specifically enforced, 153, 168. of legal practice permissible, 11. after vendor restrained from practising in Great Brit- ain, 66. agreement for, not specifically enfored, 22, 71. of medical practice, implied contract on, 220. of public-house, specific performance of agreement for, granted, 43. specific performance of agreement for, refused, 42, 153. breach of contract on, restrained, 114, 303, 335, 350, 485, 548, 552, 604. after, vendor may set up a similar business, 17, 25, 27, 172, 383, 406. may not set up the same business, 17, 25, 29, 207, 272, 323, 385, 423. a similar business in the same situation, 25, 36, 172, 323. rights of purchaser of, 479, 639. held not to be included in partnership “property, credits, and effects,’ 129. “ stock in trade and effects,” 129. 505 INDEX. GOOD-WILL — continued. “ premises, stock in trade,” etc., 208. “stock in trade, goods, chattels, and effects,” 260. ‘¢ estate and effects,” as ascertained by annual valuation, 605. held to be included in ‘‘ stock belonging to the partnership,”’ 215. partnership “ premises and effects,” 350. “ effects and things,’’ 614. “property and effects,” 615. “ GOOD-WILL,” ETC. the meaning of the expression, explained, 168. “GOURAUD’S ORIENTAL CREAM,’’ 460. “GOVERNMENT SANITARY COMPANY, THE,”’’ 604. “GREAT MOGUL” STAMP ON CARDS, 2. ‘“‘GRENADE SYRUP,” 334. GROSS, trade-marks cannot be acquired in, 447, 487, 492, 630. except by the previous maker of the goods, 492. “GUINEA COAL COMPANY, THE,” 325. “ GUINNESS’ STOUT,” 89, 617. “ GUNPUTTY ” YARN, 646. GUNS, marks on, 441. “HALL’S VEGETABLE SICILIAN HAIR RENEWER,” 335, 353. HALL-MARK, transposition of, criminally punishable, 54. false representation as to, 285. “HALLETT AND CUMSTON,” 391. “HARRISON’S MUSTARD,” 244. ‘“ HARVEY’S SAUCE,” 160, 344, 346. “ HAXALL” FLOUR, 490. HEADINGS ON COTTON GOODS, 454, 581, 585. HELIOTYPES, marks on, 430. “HELMBOLD’S HIGHLY CONCENTRATED COMPOUND FLUID EXTRACT OF BUCHU,” 575. “ HEMY’S ROYAL MODERN TUTOR FOR THE PIANO- FORTE,” 587, ‘‘HENNESSY & CO.’S COGNAC,” 483, 531, 549, 556, 650, 651. “HENRY’S CALCINED MAGNESIA,” 48, “ HERO ” GLASS JARS, 301. “ HOBART, FENN & CO.,’’ 166. 556 INDEX. “ HOLBROOK’S SCHOOL APPARATUS,” 263. “ HOLLOWAY’S PILLS AND OINTMENT,” 106. “HOME AND COLONIAL LIFE ASSURANCE COMPANY (LIM- ITED), THE,’’ 236. HONES, marks on, 50. “HOOKHAM AND POTTAGE,”’ 398. HOOPS ON BARRELS are not trade-marks registrable in the United States, 480. “HOP SUPPLEMENT, ESTCOURT’S,”’ 449. HORSE BLISTERS, marks on, 209, 388. ‘“‘HOSTETTER’S CELEBRATED STOMACH BITTERS,” 366, 652, 683, 729. HOTEL, name of “ Irving House,’’ 108. “ What Cheer House,’’ 212. “McCardel House,’’ 233. “Wood’s Hotel,’’ 467. “ Station Hotel,” 520. use of, on carriages, “Irving House,’’ 104. ‘¢Revere House,’’ 111. “ Prescott House,” 266. is assignable, 467. belongs to lessee of hotel, 212, 467. HOUSE, name of, “ Osborne House,” 323. “ Booth’s Theatre,” 524. “ Ashford Lodge,” 631. “ HOUSEHOLD WORDS,” 173. “HOWE” SEWING-MACHINES, 203, 284, 569. «“ HOWE’S BAKERY,” 185. “HOW QUA’S MIXTURE” TEA, 60. HUNGARIAN NOTES, spurious issue of, restrained, 197. “IDEAL” a good trade-mark, 728. IDENTICAL, marks need not be, to constitute infringement, 100, 138, 184, 250, 256, 305, 313, 329, 352, 870, 514, 579, 636, 646, 714. And see CoLORABLE IMITATION. registration of two, 589. substance, injunction limited so as not to restrain the use of the mark on the, 591. 557 INDEX. “ILLUSTRATED,” the word, cannot be exclusively appropriated, 85. ILLUSTRATION, cannot be protected as a trade-mark, 711. IMITATION, COLORABLE. See Cotorasie Imitation. “JMPERIAL IRON TUBE COMPANY, THE,” 566. IMPOSITION on the public is the test of infringement, 215, 223. INDIAN CASES, 241, 315. “ Root Pills,” 180. « INDIA-RUBBER Comb Company, The,’’ 475, 476. goods, marks on, 475, 476, 507, 547. INDICTMENT. See Cuzat; Fatse PretTEnces ; ForGERY. INFANT INFRINGER must pay the costs of the proceedings, 255. INFERIORITY IN QUALITY not required to constitute infringement, 50, 83, 84, 109, 213. no ground of action where name used is common, 59. INFRINGEMENT, defined and illustrated, 681, 683, 688, 700, 709, 713, 714, 719, 723, 724, 727. principles on which, is prohibited, 73, 76, 84, 91, 100, 108, 109, 124, 126, 130, 145, 154, 213, 215, 223, 269, 270, 302, 320, 325, 329, 340, 354, 407, 418, 466, 477, 580, 649, 665, 667, 688. what constitutes, 73, 76, 89, 109, 123, 188, 213, 228, 234, 241, 256, 300, 425, 433, 474, 500, 579, 580, 636, 646, 650, 653, 665, 667, 674, 681, 689. marks need not be identical to constitute, 100, 138, 184, 250, 256, 305, 313, 329, 352, 370, 514, 579, 636, 646, 665, 674, 681, 700. probability of deception is necessary to constitute, 53, 65, 72, 73, 84, 85, 88, 91, 109, 123, 188, 157, 186, 215, 217, 221, 223, 230, 236, 245, 256, 274, 298, 295, 332, 425, 426, 433, 459, 466, 478, 488, 529, 541, 550, 618, 619, 640, 688. colorable. See CoLoRABLE IMITATION. fraudulent intention is not necessary to constitute, 63, 99, 109, 157, 171, 174, 194, 204, 218, 247, 258, 313, 315, 329, 340, 387, 433, 466, 477, 500, 579, 580, 608, 646. progressive, 275, 514. imposition on the public is the test of, 215, 223. knowledge of the immediate purchaser is immaterial in case of, 40, 79, 88, $4, 136, 218, 253, 646. equality of quality is immaterial in case of, 50, 83, 84, 109, 213. 558 INDEX. INFRINGEMENT — continued. actual deception or specific damage is not necessary to constitute, 50, 68, 82, 99, 196, 280, 313, 379, 681. by misuse of genuine labels and stamps, 126, 253, 441, 549, 556, 650, 651. by adoption of name tending-to produce deception, 256, 636, 678, 690 695, 696, 714. by engravers, 89. by printer, 113, 130, 694. must be by user on same class of goods, 314, 559, 689. no injunction obtainable in early times to restrain, 2. mode of trial of action for, 644. of name of newspaper, what is, 34. where mark has not been actually applied to class of goods involved 689, 719, 723. of rights of legal author, what is, 49. expounded and explained, 665, 672, 674, 681, 683, 686, 688, 713, 714 722, 728, 724, 727, 729. where mark not attached to the goods, 672, 713. 2 y INITIAL LETTERS, trade-marks consisting of, or containing, 53, 61, 63, 72, 100, 199, 200 204, 215, 216, 222, 307, 338, 371, 376, 404, 493, 530, 533, 537, 540 567, 568. injunction granted to restrain the use of, in breach of contract, 419. > d INJUNCTION, jurisdiction of court to protect property from injury by, 197, 665, 713. fraud on the public is no ground for an, 7, 455, 487, 639. enlarged to cover further fraud, 200. limited to goods not yet arrived, 370. interlocutory, refused, where nothing had been done, 536. granted, though persons other than the plaintiffs interested in the marks, 80, 196, 243. notwithstanding offer of submission by defendant, 63, 169, 170, 171, 235, 261, 411, 663. that no previous application had been made to defend- ant, 169, 280, 653. that defendants were ignorant even of plaintiffs’ exist- ence, 204. that plaintiffs’ mark had been used first by others, 276. on counter-claim, to restrain use of address, 443. so as not to restrain use of mark on identical goods, 591. until certain events, 591, 599. to restrain publication of catalogue of etchings improperly ob- tained, 98. . 509 INDEX. INJUNCTION — continued. partial imitation, 100, 138, 184, 250, 256. And see IDENTI- caL Marks. © misuse of genuine marks, 126, 253, 441, 549, 556, 650, 651. surviving partner from trading under a new name, 127. infringement by forwarding agents, 369. soliciting customers, 114, 141, 207, 385, 566. publication of statements as to newspaper, 162, 173. injurious to property, 211. the unauthorized use of trade name by purchaser of good- will, 185. misrepresentations by lessees of fire-brick works, 193. issue of spurious Hungarian notes, 197. one partner from monopolizing the good-will of the partner- ship on dissolution, 202, 566. granted to restrain infringement, though plaintiff had adopted an ad- ditional mark, 226, 646. purchaser of hotel from using plaintiff’s name, 233. action for damages for non-delivery of spuriously marked goods to indorsee of dock-warrants, 239. the appearance of a man’s name in connection with a maga~ zine, 259. a purchaser from one of two partners from monopolizing the partnership style, 268. ‘ passing goods spuriously marked into the market, 299, 326. exact imitation only, 557. improper representations on dissolution of partnership, 566. the use of name of hotel. See Horet. house. See House. man’s own name, where fraud exists, 106, 117, 124, 148, 333, 340, 388, 580. discontinued mark, 125. spurious mark, since discontinued, 484. name of publication. See Musica, Composition ; Pus- LICATION ; SONG. name of company. See Company. moulded bottles, 551, 652, 653. appellation of medical man, 328. a father’s altered name by his sons, 460. labels and wrappers, but refused as to name of goods, 512, 653. name of goods by persons who had manufactured for the plaintiff, 517. 560 INDEX. INJUNCTION — continued. trade-marks on goods sent to a specified market, 581. a trade-mark to which registration had been refused, 646. breach of contract on sale of good-will, 25, 29, 114, 303, 335, 350, 485, 548, 552. by singer, 112. as to use of initial, 419. not granted, where joint plaintiffs were not entitled to joint relief, 44. the defendant’s book was not represented to be the plaintiff’s, 67. plaintiff’s title not clear, 134, 145, 191, 246, 284, 374, 391, 410, 487, 492, 494, 512. plaintiffs set a trap for the defendant, 556. on account of former close business relations between the par- ties, 109. unless plaintiff’s mark on vendible goods in the market, 140, 215, 223, 234, 264, 301, 339. not granted to restrain sale of genuine goods, 143. publication of an unfair report of proceedings in a trade-mark case, 190. unauthorized use of prize medal, 218. breach of covenant not to use motto, 546. a fair comparison of rival articles, 574, 727. use of deceased partner’s name by surviving partners, 7. man’s own name, where no fraud, 82, 106, 117, 148, 180, 240, 257, 278, 427, 472, 521, 525, 534, 541, 573, 580. moulded bottles, 157, 608, 628. trade name, 283. motion to commit for breach of, 77, 115, 200, 245, 463, 570, 595, 633, 635. attachment issued for breach of, ‘353. INK, marks on, 273, 510. INNOCENT VENDORS, price of spuriously marked goods recovered by, 101. INSCRIPTIONS on bottles, etc., 18, 31, 163, 248. claimed as trade-marks, 123, 523, 541. INSOLVENCY produced by defending an action for infringement of trade-mark, 649. INSPECTION, order made for, 531. 36 561 1 INDEX, INTENTION of infringer immaterial, 63, 99, 109, 157, 171, 174, 194, 204, 213, 247, 253, 313, 315, 829, 340, 887, 433, 466, 477, 500, 579, 580, 608, 646. INTERDICT granted in Scotland to restrain improper use of name of sheriff’s officer, 438. INTERFERENCES in the United States Patent Office, 399, 417, 437, 496, 554, 627. INTERIM INTERDICT , refused in Scotland till after damages recovered, 262. INVENTION of article on which trade-mark is used is- immaterial, 91, 339, 390, 580. trade-mark is immaterial, 138, 410, 554. “INVISIBLE” FACE POWDER, 378. IRON, marks on, 72, 215, 216, 258, 271, 439, 530, 540, 555, 623, 524, 648. And see CUTLERY; STEEL. “ iron-stone ” water-pipes, 612. “Tron Trade Circular, The,’’ 420. “IRVING HOTEL,” 104, 108. ‘JAMES’ HORSE BLISTERS,” 209, 388. JARS, marks on, 801, 444, 578. “JOHN BULL, THE,” 33. «JOHN BULL AND BRITANNIA, THE,” 141. “JOHN DOUGLAS & CO.,” 172, “ JOHN G. LORING & CO.,” 201. “JOHN C. RAGSDALE Ammoniated Dissolved Bone,’’ 554. “ JOHN SCOTT & CO,’’ 393. “ JOHNSON’S AMERICAN ANODYNE LINIMENT, ESTAB- LISHED a. p. 1810,”’ 404. JOINT plaintiffs not entitled to joint relief, 44. JUDICATURE ACT, 1873, sec. 25, sub-s. 8, 564, 594, 606, 607, 631. “ JULES JURGENSEN, COPENHAGEN,” WATCHES, 211. “ JULIENNE” SOUP, 461. JURISDICTION of court, elements necessary to found, 228, 234. of U. 8. Circuit Court in cases of registered trade-marks, 613, 629, 695, 708. 562 INDEX. JURY, questions for the, 49, 56, 72, 82, 92, 120, 167, 338. “K. & G. PATENT ELASTIC” PENHOLDERS, 167. KAINIT, marks on, 397. “ KEYSTONE LINE” OF STEAMSHIPS, 396. ‘CKIRBY’S ne plus ultra’? NEEDLES, 251. KITCHENER, marks on, 116. “L. H. & 8.” WINE, 537. “LL. L.? WHISKEY, 228. LABELS, complicated stamps on leather cloth held not to be trade-marks, but mere, 223. of trade-union, 712. LACHES. See Detay. “LACKAWANNA” COAL, 327. ‘“ LACTOPEPTINE” MEDICINE, 543. “ LAFERME” CIGARETTES, 512. “LA FAVORITA”’ FLOUR, 707. “LAIRD’S BLOOM OF YOUTH, OR LIQUID PEARL,” 418. “LAKE” GLASS, 121. LANCASTER, eases in the Chancery Court of, 328, 581. LANGUAGES, words in modern foreign, used as trade-marks, 51, 334, 411, 581, 647. use of several, in labels, 291, 411, 432, 591. “LA PAGE’S LIQUID GLUE,” 706. LARD, marks on, 425. “LATE of Lundy Foot & Co.,”? 107. “of 107 Strand,’*117. “ Tayler & Co., J. Vick from the,”’ 119. ‘‘ Harpers & Moore,”’ 193. “Leach & Clark,’’ 210. “ with Crockett,’’ 223. ‘¢ Robert & Walter Scott,” 268. “ operator at the Colton Dental Rooms,”’ 305. “of Headington Hill, Oxford, and formerly of Mayfair,” 552. 563 INDEX. LATE — continued. “the works of and partners and managers in the Imperial Tube Com- pany,’’ 566. “of Somerset Place, Hoxton,” 602. “LAZENBY’S HARVEY’S SAUCE,” 344, 346. LEATHER CLOTH, marks on, 214, 223, 224, 252, 324. LEGAL AUTHOR, improper use of name of, 49. “LEOPOLD ” CLOTH, 400. ‘“LEOPOLDSHALL KAINIT,”’ 397. LETTERS, ° opening, 75, 219, 237, 423. trade-marks consisting of or containing, 53, 61, 63, 72, 100, 199, 200, 204, 215, 216, 222, 307, 371, 338, 376, 404, 493, 5380, 533, 537, 540, 567, 568. deception assisted by use of small, 47, 107, 212, 247, 305, 398, 534, 650. large, 329. LIBEL, question as to injunction to restrain, 30, 52, 67, 93, 94, 95, 424, 438, 453, 457, 564, 594, 606, 607. LICENSE, plaintiff must prove that defendant has no, 228. gratuitous acquiescence by owner in infringement is mere revocable, 100, 137. to use trade-mark and sue infringers, acquiescence by owner of trade- mark must amount to, to cause motion to commit to fail by reason of delay, 115. to use name on hotel, held to be revocable, 233. to use name of hotel on coaches held to be revoked on sale of hotel by licensor, 266. trade-mark on goods made according to patent by, 284. from foreign sovereign to use spurious trade-marks is no defence, 352. to use a certain name on a line of steamships, 396. to use a certain partnership name, 406. to use a trade-mark exclusively for a certain period, 502. “ LICENSED VICTUALLERS’ RELISH,” 447. LICENSOR, damages given to exclusive licensee against, 489. “LIEBIG’S EXTRACT OF MEAT,” 286. LIEN, on spuriously marked goods for costs, 369, 567. 564 INDEX. “LIEUTENANT JAMES’ BLISTERING COMPOUND,”’ 200. LIME JUICE, marks on, 551, 608. LINE of omnibuses, 57. steamships, 396. LINNELL’S PAINTINGS, 155. “ LINOLEUM,” 536. “LION ” hall-mark, transposition of, 54. ‘chop ”’ cloths, 198. mark registered in alternative shape, 501. LIQUORICE, marks on, 234, “ LITTLE RED BOOK, THE,”’ 478. “LIVE AND LET LIVE” OYSTER AND DINING SALOON, 330. “LIVERPOOL”? CLOTH, 400. “LLOYD’S EUXESIS,”’ 337. LOCAL and personal trade-marks distinguished, 215. “ LOCH KATRINE” WHISKEY, 452. ‘LONDON conveyance company’s ’’ omnibuses, 57. “and Provincial Law Assurance Society, The,” 88. “Manure Company, The,’’ 92. ‘« Journal, The,’’ 175. “Club House ’’ Gin, 187. “ Assurance, The,” 221. “and Westminster Assurance Corporation, Limited, The,’’ 221. “ Dock ” gin, 240. “ Society,’? 345. “¢ and County Banking Company, The,” 618. “LONE JACK’? SMOKING TOBACCO, 669. LORD BYRON, unauthorized use of name of, 23. LOZENGES, marks on, 227, 532. “LUNDY FOOT & CO.’S” SNUFF, 107. M. & C.” WINE, 533, 567. MACARONI, marks on, 577. «* MACASSAR OIL,” 386. 565 INDEX. “McCARDEL HOUSE, THE,”’’ 233. “McGOWAN BROTHERS PUMP AND MACHINE CoO., THE,” 406. “MADAME LOUISE,” 381. MAGAZINE. See PusiicaTion. “MAGIC CURE, THE,” 478. “MAGNOLIA ”’ WHISKEY, 437. “MAISON BOISSIER DE PARIS,’’ 498. “ MAIZENA,” 695. “ MAIZHARINA,” 695. “MAMMOTH WARDROBE, THE,” 363. MAN’S OWN NAME. See Name. “MANNY HARVESTER, THE,” 412. ‘MANUFACTURER AND PATENTEE,” 343. misuse by assignees of name of former, 223. “MARK TWAIN,” 429, 685. MARKET, plaintiff’s goods must have been a vendible article in the, 140, 215, 223, 234, 264, 301, 339. marks on goods sent to a special, 581, 585, 646. St. Mills Flour, 405. ‘“ MARSHALL’S CANADA PLATES,” 648. ‘¢ patent thread,’’ 316. ‘“¢MASON ” JARS, 444, 578. MASONIC EMBLEMS, question as to registration of, in the United States, 405, 634. MASSACHUSETTS STATUTE (Gen. St. c. 56) respecting trade names, 201, 283. MASTER responsible for fraud of servant, 321, 583. MATCHES, marks on, 91, 245, 485, 514. MEDAL, no exclusive right in a, 218, 223, 448. registered in America, 516. MEDICAL man, injunction to restrain use of appellation of, 328. practice, sale of, 28, 102, 220, 588. preparation, 4, 18, 19, 24, 26, 31, 38, 44, 48, 59, 68, 87, 90, 93, 97, 99, 101, 103, 106, 109, 110, 180, 230, 279, 281, 288, 291, 333, 348, 376, 389, 404, 424, 458, 478, 493, 497, 502, 516, 517, 543, 562, 575, 580, 626, 628. “MEDICATED MEXICAN BALM,” 73, 566 INDEX. “MEEN FUN” SKIN POWDER, 191. ““MENEELY’S” BELLS, 472. MERCHANDISE MARKS ACT, 1862, THE, 267. prosecution under, may be compromised, 457. ““MERCHANT BANKING COMPANY OF LONDON, THE,” 619. “MERRIMACK COTTON PRINTS,” 134. METAL GOODS, marks on, 616, 621, 641. And see Cutiery; Eper Toots; Iron; STEEL. MILK, marks on, 370. “MINNIE DALE,” song of, 132, 136. “MINTON” TILES, 548. MISREPRESENTATIONS. See Derence; DismntitLep ; Repre- SENTATIONS. MISSOURI, infringement of English trade-marks criminally punishable in, 436. MISTAKE ACTUAL, rule as to proof of, 715, 724. MODE OF making up bundles of silk, 217. trial of action for infringement, 644. “MOET’S CHAMPAGNE,” 235, 533, 567. “MOLINE”? PLOUGHS, 339. MONOGRAM PROTECTED AS TRADE-MARK, 665. ‘* MOORE’S PILLULES,” 478. ‘“MORISON’S UNIVERSAL MEDICINES,” 68, 110. “MORSE’S INDIAN ROOT PILLS,” 180. MOTTO, covenant not to use, 546. “MRS. WINSLOW’S SOOTHING SYRUP,” 291. MUSICAL COMPOSITION, 105. And see Pusiication ; Sone. MUSTARD, marks on, 244, 579. NAME may become a mere ordinary transferable trade-mark, 215, 223, 257, 279, 580, 666, 706. not in all cases assignable as a trade-mark, 222, 223. colorable authority to use, 76, 123, 243, 298, 390, 391, 409, 533, 034. . of celebrated person may be used as a trade-mark, 184. 567 INDEX, NAME — continued. of true maker, sale of goods stamped with, not restrained, 143. of inventor of machine appropriated by another person as his trade- mark, 284. of patented article, 728. no defence that plaintifi’s was used in his mark, and has not been copied, 384. the fact that defendant’s is contained in the spurious mark is no de- fence, 198, 226, 269, 280, 301, 310, 329, 609, 646. may be an element of defence, 227, 232, 251, 363, 484, 608. right of property in, exists, 264. but not apart from business, 312. of house, no right of property in, apart from business, 631. use of, not restrained, except when a tight of property is concerned, 93. on shop, use of, 107, 117, 149, 254, 268, 304, 323, 363, 381. use of man’s own restrained, where fraud exists, 106, 117, 124, 148, 333, 340, 388, 580, 668, 681, 706. not restrained where no fraud, 82, 106, 117, 148, 180, 240, 257, 278, 427, 472, 521, 525, 534, 541, 578, 580, 726. cases reviewed and explained, 668, 706. whether used alone or in combination, 560. criminally punishable, when fraudulent, 120. in connection with a certain magazine, restrained, 259. not restrained by reason of a sale by his assignee in bankruptcy, 575. use of, by agreement for fraudulent purpose, 681. unauthorized use of poet’s, restrained, 23. : legal author’s, 49. painter’s, not restrained, 52. not amounting to forgery, 155. person’s, as that of a director of a company, restrained, 86. former maker’s, so as to disentitle, 91. unauthorized use of by purchaser of good-will restrained, 185. of partnership held to survive, 55, 189. passes on sale of good-will, 639. may not be appropriated by one of the partners, 75. by a purchaser from one of the partners, 268. used by continuing partner where liability will be thrown upon outgoing partner, 393, 639. changed by surviving partner while representative of de- ceased partner has an option of continuing in the business, 127. 568 INDEX. NAME — continued. of deceased or retiring partner may be used by surviving or continu- ‘ing partner, if no liability will be thrown upon his estate, 7. not be used by surviving or continuing partner if liability will be thrown upon his estate, 260. partner may not be used by surviving partner in Massachusetts without the consent of his representatives, 201, 283. of predecessors in business, without more, may be continued in use as trade-mark, 223, 666. early painter, use of, no warranty, 8. modern painter, use of, may be warranty, 56. solicitor, agreement to allow use of, on retirement, 71. line of omnibuses, 57. steamships, 396. sheriff’s officer, improper use of, 438. play, 440. place of business may be used without fraud, 521. proprietor of theatre, 524. publication, copyright in, asserted, 638. And see PUBLICATION. company. See Company. corporate. See CorporaTE NAME. musical composition. See Musican Composition ; PuBiica- TION; SonG. society. See Company. song. See Sona. “ NATIONAL Advocate, The,’’ 41. ‘¢ Police Gazette, The,” 270. NATURAL PRODUCTS, marks on, 327, 354, 397, 465, 509, 529, 599, 633. name descriptive of, cannot be appropriated, 205. NEEDLES, marks on, 123, 138, 251. “NEW Era, The,” 65, 550. ‘ ‘¢ Manny Harvester, The,’’ 412. “York” glass, 121. «¢ Cutlery Company, The,’’ 491. NEWSPAPER, good-will of, what is, 576. is assets of proprietor, 3, 35, 173. partnership, 173, 178. 569 INDEX. NEWSPAPER — continued. is “ goods and chattels” within the Bankruptcy Acts, 12, 159. sale of, 450. question of title to, 246. title of, is property, 174. rights of editor of, 39, 181, 450. proprietor of, not disentitled by non-registration at the Stamp Office,141. right of publication of, incapable of seizure by a sheriff, 159. injunction granted to restrain publication of statements as to, 162, 173. motion to commit publisher of, 635. And see PUBLICATION. “NIGHT BLOOMING CEREUS,” 232. “NINETEENTH CENTURY, THE,’’ 539. NOM DE PLUME OF AUTHOR, improper use of, restrained, 429. rule as to, 685, 724, 727. how affected by copyright, 685. NOMINAL DAMAGES given for infringement of right, 50, 59, 68, 82, 99. more than, given where specific damage proved, 83. ‘“NORFOLK WORKS, SHEFFIELD,” 442. “ NORTHERN Daily Express, The,’ 162. ‘* Weekly Standard, The,” 162. NOTES on register of trade-marks, 586, 610, 611, 622, 641, 643, 654. NOTICE by plaintiff to defendant that he is infringing the plaintiff’s rights does not alter the rights of the parties, 72, need not be given by plaintiff to defendant before taking proceedings, 79, 81, 169, 280. of dissolution of partnership may not be published until expiration of term, 75. “NOURISHING STOUT,” 431. NUMERALS as trade-marks, 58, 126, 257, 269, 302, 382, 411, 426, 522, 542, 557, 581, 585, 673, 676. OFFER OF SUBMISSION, must be complete for defendant to escape paying costs, 79, 136, 169, 170, 171, 234, 235, 321, 369, 583. OFFICIAL mark cannot become a trade-mark, 523. 570 INDEX. “ OHIO LINIMENT,”’ 99; 109. OIL, marks on, 357, 455, 486, 487, 517, 597. “OLD LONDON DOCK GIN,” 240. “ Moore’s Pictorial Almanack,” 86. “OLD SLEUTH,” 724, 727. “ OLDFIELD LANE DOCTOR, THE,”’ 328. OMNIBUSSES, imitation of line of, restrained, 57. See ConvEYANCEs. OPENING LETTERS, 79, 219, 237. OPTION of representative of deceased partner to continue in business, pro- tected, 127. surviving partner to take over partnership business, protected, 215. ORDINARY PURCHASER, deception of, 49, 72, 91, 123, 138, 148, 154, 223, 245, 247, 256, 293, 329, 370, 379, 425, 426, 466, 541, 579, 580, 636, 650, 651, 653. “OREGON CENTRAL RAILWAY COMPANY, THE,” 318. “ORIGINAL The,’? 212, 230, 344, 346, 351, 424, 534, 602. invention of article on which the trade-mark is used is immaterial, 91, 339, 390, 580. trade-mark is immaterial, 138, 410, 554. maker has no claim to inventions made in another’s service, 534, 602. ‘“ OSBORNE HOUSE,” 323. “OUR YOUNG FOLKS,” 410. “OX”? MUSTARD, 244. OYSTERS, marks, on, 625. OYSTER SALOON, ‘¢ Live and Let Live,” 330. PACKAGE, size, shape, and color of, not capable of appropriation, 484. will be protected in U. S. 667, 674, 703. “PAIN KILLER, PERRY DAVIS’,”’ 103, 281. PAINTER, use of name of early, no warranty, 8. modern, may be warranty, 56. not restrained, 52. counterfeited name of, on work of art, 155. O71 INDEX. PAINTS, marks on, 402, 471, 511, 573. “PARAFFIN OIL,” 205. “ PARSONS’ PURGATIVE PILLS, P.P.P.” 404. PARTIAL IMITATION, 100, 138, 184, 250, 256, 305, 313, 352, 379. See CoLoRABLE IMITATION. PARTIES other than the plaintiffs interested in the marks, injunction granted though, 80, 196, 243. PARTNERSHIP, trade-marks of the partners become the property of the, 222, 399, 408, 437, 502, 561, 664. may not be appropriated by one of the partners, 455, 664. without articles, good-will of held to survive, 9. not to survive, 14, 64, 139, 165, 185. good-will of, held to be assets, 16, 64, 70, 139, 165, 176, 177, 185, 192, 202, 206, 210, 215, 248. to survive to surviving partner under the articles, 139, 208. medical, held to survive, 28. newspaper is assets of, 173, 178. name of, held to survive, 55, 189. pass on sale of good-will, 639. may not be appropriated by one of the partners, 75. by a purchaser from one of the partners, 268. used by continuing partner, when liability will be thrown upon out-going partner, 393, 639. changed by surviving partner while representative of deceased partner has an option of continuing in the business, 127. deceased or retiring member of, may be used by surviving or con- tinuing partner, if no liability will be thrown upon his estate, 7. may not be used by surviving or continuing partner, if lia- bility will be thrown upon his estate, 260. member of, may not be used by surviving partners in Massachu- setts without the consent of his representatives, 201, 283. sale of one partner’s interest in name and trade-mark of, refused, 231. rights of part owner of business purchasing the remaining interests, 162, 479. premises, specific transfer of share of good-will of, under legacy, not enforced, 189. agreement for dissolution of, and purchase of the practice, 71. notices of dissolution of, may not be published until expiration of term, 75. rights of partners on dissolution of, 37, 122, 149, 156, 172, 173, 176, 572 INDEX, PARTNERSHIP — continued. 177, 180, 202, 206, 207, 210, 215, 238, 248, 260, 368, 383, 393, 406, 408, 487, 455, 548, 561, 566, 585, 639, 664. value of deceased or retiring partner’s interest in good-will of, how as- certained, 70, 156, 158, 176, 177, 206, 208, 215, 238, 248, 260, 451. retiring member of, compelled to quit trade altogether, 5. in a certain locality, 25, 29, 172. specific performance granted of agreement between solicitors on dis- solution of, 135. “property, credits and effects,” good-will held not to be included in, 129. “stock in trade and effects,’’ nor in, 129. ‘* premises, stock in trade,” ete., nor in, 208. ‘« stock in trade, goods, chattels and effects,” nor in, 260. “estate and effects,” as ascertained by annual valuation, nor in, 605. ‘* stock belonging to the,” good-will held to be included in the, 215. “premises and effects,” and in, 350. ‘effects and things,’’ and in, 614. “property and effects,” and in, 615. PATENT, trade-mark distinguished from, 84. plaintiff disentitled by improper use of the word, 116, 223, 267, 288, 324, 34g, 444, 528. not disentitled by improper use of the word, 40, 119, 142, 214, 267, 304, 316, 384. disentitled by improper use of marks on articles made under, 167. article may be stated to be made according to expired, 119, 205, 322, 416, 474, 528, 578. when name applied to goods made under, may be generally used, 205, 474, 528, 536, 561, 578. “Plumbago Crucibles,” 267. word descriptive of publici juris, 659. not publici juris when used as subordinate part of name, 728. « PECTORINE,” 458. PENCILS, marks on, 278, 481. PENS, marks on, 126, 269, 568, 610, 611, 637. «“ PEPPER’S EXTRA SIGNAL OIL,” 455, 487. PERFUMES, marks on. See TorLet. «¢PERRY’S MEDICATED MEXICAN BALM,”’ 73. «¢PERRY DAVIS’ PAIN KILLER,” 105, 281. 578 INDEX. ‘¢ PERSIAN THREAD,” 78, 83, 84, 124. PERSONAL, a trade-mark may be so, as to be incapable of assignment or use by assignee, 222, 223, 521, 575, 680. and local trade-marks distinguished, 215. assets, trade-mark is, 80, 215, 337. good-will of newspaper is, 3. shop is, 3, 58. public house is, 6. partnership is, 16, 64, 70, 139, 165, 176, 177, 185, 192, 202, 206, 210, 215, 248. legal practice is not, 46. medical practice held to be to some extent, 102. held not to be, 588. “PESSENDEDE” WATCHES, 51. “PHARAOH’S SERPENTS,” 253. “PHELAN AND COLLENDER’S’’ BILLIARD TABLES, 479. “PHOTOGRAPHIC NEWS, THE,” 181. PIANOFORTES, marks on, 525. PICKLES, marks on, 274. And see SAUCES. e «“ PICTORIAL,”’ the word, cannot be exclusively appropriated, 85. “ Almanack, The,” 85. : PICTURE. See Painter; ILLusTRaATIoN. “PIG BRAND” LARD, 425. **PIKE’S MAGNOLIA WHISKEY, 666. PILLS, marks on, 98, 106, 180, 404, 478, 580. PINS, marks on, 119. PIPES, marks on, 243. PISTOLS, marks on, 249. PLOUGHS, marks on, 58, 339, 596. PLUMBAGO CRUCIBLES, marks on, 267. POET, unauthorized use of name of, restrained, 28. 574 e INDEX. “POROUS PLASTERS,” 626. PORTER, marks on. See BEER. “PORTER’S SPIRIT OF THE TIMES,” 178. POTTERY, marks on, 96. ‘PRAIRIE FLOWER” CIGARS, 433. “PRESCOTT HOUSE” HOTEL, 266. PRICE of spuriously marked goods recovered by innocent vendors, 101. “ PRIDE,” 678. “PRIME LEAF LARD,’ 425. ‘* PRINCE’S METALLIC PAINT,” 573, 721. PRINCIPAL responsible for fraud of agent, 321. PRINCIPLES on which infringement of trade-marks is prohibited, 73, 76, 84, 91, 100, 108, 109, 124, 126, 130, 145, 154, 218, 215, 223, 269, 270, 302, 320, 325, 329, 340, 354, 407, 413, 466, 477, 580, 649. protection is given in cases of trade name, 325, 477, 639. of construction, names indicative of, 322, 413, 477, 528. And see Process oF MANUFACTURE. PRINTERS, infringement by, 113, 130, 694. rollers, marks on, 630. PRIZE MEDAL, no exclusive right in a, 218, 223, 448. registered in America, 516. PROCESS OF MANUFACTURE, marks indicative of, 286, 388, 536, 560. And see PRINCIPLES or CONSTRUCTION. PROFESSION, good-will of, distinguished from good-will of trade, 156, 588. PROFESSOR, false assumption of title of, held not to disentitle, 106. PROFITS. rule as to, 682, 702, 717. See AccounT or PROFITS. PROPERTY, jurisdiction of court to prevent injury to, by injunction, 197, 223. right of, in trade-mark denied, 73, 130. right of, in trade-mark asserted, 106, 121, 145, 174, 218, 215, 223, 249, 253, 257, 820, 829, 354, 413, 477, 541. 575 INDEX. PROPERTY — continued. not limited by territorial bounds, 249. in man’s name asserted, 264. but not apart from business, 312. in name of house cannot exist apart from business, 631. in prize medal denied, 218. PUBLIC, fraud on the, is no ground for an injunction, 7, 455, 487, 639. is ground for refusing an injunction, 143. damages for breach of contract, 146. specific performance of contract, 209. what is. See ORDINARY PURCHASER. mere continued use of name of predecessor in business as trade- mark is not, 223. imposition on the, is the test of infringement, 215, 223. house, good-will of, is personal assets, 6. “ PUBLIC CORRESPONDENT, THE,” 246. PUBLICATION, name of, right of property in, asserted, 174. but only after actual issue, 264. copyright in, asserted, 638. not protected by registration as copyright, 246, 265, 292. infringement of, what is, 34, 679, 724, 727. restrained, 10, 15, 17, 33, 84, 39, 141, 173, 174, 175, 270, 317, 345, 408, 420, 587, 638, 679. not restrained, 41, 65, 246, 264, 265, 295, 320, 410, 503, 539, 550, 724, 727. And see NEwsparPeR ; Sone. ‘¢ PUNCH,” 320. PURCHASER, deception of. See OrprinaRy PURCHASER. “PYRETIC SALINE,” 288. QUALITY, marks merely indicative of, cannot be appropriated, 59, 85, 100, 121, 187, 226, 232, 236, 269, 279, 289, 339, 410, 431, 541, 557, 581, 626, 676, 691. And see Common Marks; Descriptive Worps. trade-marks varying to denote, 339, 342, 867, 400, 636, 650, 651. transfer of marks indicative of one quality to goods of another re- strained, 126, 253, 441, 549, 556, 650, 651. equality of, no defence, 50, 83, 84, 109, 213. inferiority of, no ground of action where name used is common, 59, 91. 576 INDEX. QUESTIONS FOR THE JURY, 49, 56, 72, 82, 92, 120, 167, 338, 648. as to construction of contracts for supply of goods, 216, 648. of title. See Tire. “ RADSTOCK” COAL, 599, 633. RAILWAY COMPANY, name of, 318. “RAMSAY” FIRE-BRICKS, 194. “RANSOME’S PATENT” PLOUGHSHARES, 53. “RAZOR STEEL,’’ 362. “READING SAUCE,” 351. “REAL JOHN BULL, THE,” 33. RECTIFICATION OF REGISTER. See ReGisTRATION (OF TRADE- Marks In ENGLAND). “REEVES & CO.,’? 368. “ REGISTERED,” the word, will not be registered in England, 515. REGISTRATION at Stamp Office, proprietor of newspaper not disentitled by want of, 141. as copyright, name of newspaper not protected by, 246, 265, 292. as design described as patent, 304. of trade-marks in England, under the Trade-Marks Registration Acts, 1875-6-7. question as to, how to be tried, 569. to be tried by special case, 535. motion, 505, 598. action, 569. adjourned summons, 601. advertisement a necessary preliminary to, 515. of two identical old marks, 589. of old marks for part of a class, 555, 616, 623, 643. up to three, but not more, 558, 589, 610, 611, 616. of new marks for part of a class, refused, 645. up to three, with consent, but not otherwise, 558, 645. granted in a representative form, 540, 622. with limitation as to mode of user, 641, 654. locality of user, 643. after refusal in Germany, 642. subject to perfection of title with Cutlers’ Co. 643. ) notwithstanding allegations of similarity, 592, 597. prohibition of Commissioners of Patents, 647. 37 517 INDEX. REGISTRATION — continued. of trade-marks in England, under the Trade-Marks Registration Acts, 1875-6-7. directed to proceed, though the marks were placed in the second class by the Committee of Experts, 632. refused to words adopted since the Act, 510. word “ Registered,’? 515. a single letter, 568. marks too similar, 545, 616, 621, 642. marks used by more than three makers, 593. marks previously used in one class as new marks in another, 616. a new mark for a class of goods for part of which alone an old mark was registered, 655. deceptive or descriptive words, 625. descriptive words, 626. notes appended to, 586, 610, 611, 622, 637, 641, 643, 654. notice to be given to registrar of opposition to, 601. rescinded on application of proprietor, 620. as to part of a class, 623. rectified on application of proprietor, as to the address, 624. rectification of, by transfer to a new name, refused, 630. rectification of, by expunging wrongful entry, granted, 630. question as to similarity of marks offered for, to be determined by appearance in actual use, 616, 621. in breach of contract, injunction granted to restrain, 530. costs of questions as to, 593, 616, 621, 626, 637. position of Commissioners of Patents with respect to, 515, 540, 647. Committee of Experts with respect to, 586, 622, 632. injunctions granted to restrain infringement of registered marks, 495, 609. to restrain infringement of unregistered marks, 583, 646. of trade-marks in America, under the United States Act of 1870 (Revised Statutes, sections 4937-4947), is a proper mode of obtaining the exclusive use of a mark, 341, 380, 446, 508, 544. ‘ not to be granted to a design, 582. for too wide a class is bad, 402. not necessary to entitle to remedy for infringement, 352. gives no right against valid old marks, 511. Commissioner’s certificate of, not conclusive as to validity of mark, 373. 578 INDEX. REGISTRATION — continued. of trade-marks in America, under the United States Act of 1870 (Revised Statutes, sections 4937-4947). cannot be cancelled, though wrongful, 399. separate applications for, held to be necessary, 342. declaration on oath as to the right to the mark must be filed, 401. i must be made in substance, 469. in the name of a firm, and not in the names of the individual partners, is good, 402. for “ paints’? generally, is good, 402. claim for “ alcoholic spirits ’? is good, 470. claim for ‘‘ fancy goods”’ is too general, 600. essential and non-essential parts must be distinguished on appli- cation for, 468. only one fac-simile showing mode of use need be produced on ap- plication for, 553. fees paid upon application for, only recoverable in case of genu- ine mistake, 584. in questions of, all matters relating to the ownership of the mark to be investigated, 627. position of Commissioner of Patents with respect to, 373, 525. jurisdiction of United States Circuit Courts with respect to regis- tered trade-marks, 613, 629. granted, notwithstanding objections, 342, 358, 359, 360, 361, 371, 375, 471, 473, 497, 518, 525, 563, 565. notwithstanding prior registration by another, 417. to name of person, firm, or corporation, as an old mark, 358, 476, 507. numerals, 382, 557. alternative marks, 394, 501, 544. device of a crown, 402. form of carpet-stick, 428. mark invented, but not actually used, 456, 627. geographical mark, 565. masonic emblems, 634. refused to descriptive marks, 357, 362, 376, 377, 378, 412, 416, 422, 504; 612. figures, 527. geographical marks, 399, 405. masonic emblems, 405. deceptive or descriptive marks, 422, 493, 571, 577. mark not used on ‘‘ goods or merchandise,’’ 464. 579 INDEX. REGISTRATION — continued. of trade-marks in America, under the United States Act of 1870 (Revised Statutes, sections 4937-4947). marks too similar to others, 486, 490, 506. refused to name of corporation as a new mark, 491. numerals, 522. name of patented article, 578. formerly patented article, 416. mark become common, 596. hoops on barrels, 480. collar-box, 538. 3 strip of leaf-tobacco, 572. infringement of registered mark must be on goods of the same kind, 430. RENEWAL, . of genuine marks on genuine goods is legitimate, 130. REPRESENTATIONS, trade-marks containing false, cannot be acquired, 223. plaintiff disentitled by his own false, 60, 73, 90, 91, 183, 144, 191, 223, 232, 267, 308, 418, 434, 562, 575, 628, 693, 710. however apparent they may be, 223. not disentitled by his own false, 10, 106, 132, 136, 180, 195, 276, 3238, 325, 348, 483, 587, 591. when merely collateral, 291, 384. that one man is carrying on another’s business, 237, 247, 268, 272, 297, 804, 323, 541, 693. rule where false, are discontinued, 718. rule where the statement is substantially true, 721. REPRESENTATIVE REGISTRATION, 540, 622. RESTRAINT OF TRADE, retiring partner compelled to quit trade altogether, 5. in a certain locality, 25, 29, 172. vendor of good-will of business restrained from trading in a certain locality, 36, 114, 168, 303. using old firm name, 272, 484. solicitor’s practice restrained from practising in Great Brit- ain, 66. trade secret restrained from using secret, 36. one of two partners restrained from monopolizing a part of the busi- ness after dissolution of partnership, 202. contract by attorney to retire from practice, ete. good in law, 11. specific performance of, not enforced, 22. See Goop-wILL ; PARTNERSHIP. 580 INDEX. “REVERE HOUSE, THE,” 111. RIGHT OF PROPERTY in trade-mark denied, 73, 130. in trade-mark asserted, 106, 121, 145, 174, 218, 215, 223, 249, 253, 257, 820, 829, 354, 413, 477, 541. infringement of, nominal damages given for, 50, 59, 68, 82, 99. “RISING SUN’? STOVE POLISH, 445. “ ROBERTS’ RAZOR-STEEL SCISSORS,” 359. ‘¢diamond-edged razors,’’ 360, 361. ‘“ RODGERS’ CUTLERY,”’’ 82, 115, 352, 442. “ROGER WILLIAMS” LONG CLOTH, 184. “ROSE & CO’S” LIME JUICE, 551, 608. ‘ROYAL’? BAKING POWDER, 666. flavoring extract, 656, 691. “RUBBER CLOTHING COMPANY, THE,” 507. “S. & H. (CROWN) ” IRON, 216. “§. P.’? SNUFF, 620. SAFES, marks on, 255. “§T. JAMES’ Evening Post, The,”’ 3. “Chronicle, The,’’ 159. cigarettes, 542. “ST, LOUIS BEER,” 696. “ Lead,” 697. SALE OF MARK, with place of manufacture, lawful in U. S. 666. SALERATUS, marks on, 448. « SAPOLIO,”’ 713, 714. SAUCES, marks on, 117, 160, 169, 170, 344, 346, 351, 407, 436, 447, 518, 526, 589. SCANDAL, exceptions for, 414. «“SCHIEDAM SCHNAPPS,” 179, 390, 415, 434, 653. SCHOOL APPARATUS, marks on, 263. « SCHWEITZER’S COCOATINA,” 298. «“SCHWEPPE’S SODA WATER,” 157. SCOTCH CASES, 34, 35, 39, 94, 227, 262, 413, 438, 452, 588. practice as to interim interdict, 262. 581 INDEX. “SCOTT’S COMMENTARY ON THE BIBLE,” 67. SEALING-WAX, marks on, 593. SECRET OF TRADE. See Trapz SEcRET. “SEFTON ’’? CLOTH, 400. “ SETXIO” WINE, 256. SELECTION, trade-mark may be used to denote, 494, 707. of flour, trade-mark relating to, 707. “SERIOUS FAMILY POLKA, THE,’’ 105. SERVANT, rights of, on leaving employment. See FormMzER EMPLOYMENT. master responsible for fraud of, 321. SEWING-MACHINES, marks on, 203, 284, 822, 413, 459, 477, 569, 635. SHEFFIELD CUTLERS’ MARKS, 222, 621, 643. SHERIFF’S OFFICER, improper use of name of, 438. SHIRTINGS, marks on, 411. SHIRTS, marks on, 384, 394. SHOP, name on, 107, 117, 149, 254, 268, 304, 323, 336, 381, 398. SHOWBOARD, . use of name on, 107. “SHRIMPTON & HOOPER’S” NEEDLES, 123. SIGNATURE as trade-mark, 180, 188, 560, 642, 654. SILK, marks on, 217, 571. “SILVER GROVE” WHISKEY, 374. “ SIMMONS’ LIVER MEDICINE,” 348. SINGER, breach of contract by, restrained, 112. sewing-machines, 418, 477, 659, 672. * SINGLETON’S GOLDEN OINTMENT,” 389. SLANDER. Sce Lrpet. “SLATE ROOFING PAINT,” 471. “SLICED ANIMALS,” 690. “SMYTH’S BOND STREET” BRUSHES, 81. SNUFF, marks on, 107, 620. 582 INDEX. SOAP, marks on, 150, 225, 226, 280, 563, 565, 657. SOCIETY, name of. See Company. SODA WATER, marks on, 157. SOLICITING CUSTOMERS restrained, 114, 141, 207, 385, 566. SOLICITOR’S name, agreement to allow use of, on retirement, 71. practice, sale of, 66. practice, what is the good-will of, 156. specific performance granted, of agreement between, on dissolution of partnership, 135. See Goop-wILL; PARTNERSHIP. SONG, name of 132, 136. distinguishing characteristics of, 132. statement as to authorship of, 293. SOUP, marks on, 461. “SOUTHORN’S BROSELEY PIPES,’ 243. SPIRITS, marks on, 179, 187, 228, 240, 332, 366, 372, 373, 374, 395, 415, 432, 434, 437, 452, 483, 531, 544, 549, 556, 591, 650, 651, 652, 653. SPOONS, marks on, 302. ‘“ SPORTING LIFE, THE,” 292. “SPRATT’S DOG BISCUITS,” 488, 644. SPURIOUSLY MARKED GOODS, price of, recovered by innocent vendors, 101. not protected at the expense of the genuine, 143, 209. action for damages occasioned by order for, 194. delivery-up of, for erasure, 196, 211. to indorsee of dock warrants, after erasure, 229. refused by wharfingers, 239. question as to lien on, for costs, 369, 567. “STANDARD, THE,” 159. “STAR” iron, 271. shirts, 394. pencils, 481. oil, 486. 583 INDEX. ‘“ STAR ” — continued. soap, 563. STARCH, marks on, 329, “STARK” BAGS, 365. “STATION HOTEL, THE,” 520. STEAMSHIPS, name of line of protected, 396. STEEL, . marks on, 63, 151, 152, 164, 171, 222. See Iron. “ STEPHENS’ BLUE-BLACK WRITING FLUID,” 273. “STILLMAN MILL,’ 521. STOCKINGS, marks on, 80. “STONE ALE,” 722. STONEBRAKER’S MEDICINES,” 333. STOVE POLISH, marks on, 331, 445. STOVES, marks on, 313. STYLE OF PACKAGE will be protected, 150, 667, 674. SUBMISSION, offer of, by defendant must be complete for him to escape paying costs, 79, 186, 169, 170, 171, 234, 235, 321, 369, 583. ‘¢ SUCCESSOR to E. H. Reeves & Co.” 368. “to Phelan & Collender,’’ 479. “SULPHATE OF QUININE,” 44. ‘“‘SUPERFINE, SUPERIOR,” the words, cannot be appropriated, 226. “SWAN” GIN, 544. “SWEET OPOPONAX OF MEXICO,” 276. “SYKES’ PATENT” SHOT BELTS, 40. SYRUP, marks on, 334. “«T. H. H.” IRON, 555. “TAMAR INDIEN,” 532. “TANNED PATENTED” LEATHER CLOTH, 214, 223. “TASTELESS ” DRUGS, 493. “TAYLER & CO”S PATENT SOLID-HEADED PINS,” 119. “TAYLOR’S PERSIAN THREAD,”’ 78, 83, 84, 124, 584 INDEX. TEA, marks on, 60, 379, 484, 515, 603. “TEMPLE BAR,” 259. TERRITORIAL BOUNDS, right of property in trade-mark not limited by, 149. TEST OF INFRINGEMENT, imposition on the public is the, 215, 223. TESTIMONIALS, improper use of another’s restrained, 87, 333. “THEATRE, BOOTH’S,” 524. “THOMPSON’S EYE WATER,” 101. “THOMSONIAN MEDICINES,” 59. ‘*THORLEY’S FOOD FOR CATTLE,” 560. THREAD, marks on, 78, 79, 88, 84, 124, 142, 148, 190, 195, 257, 316, 519, 622. “THRESHER & GLENNY, FROM,’ 247. TILES, marks on, 548. TIN PLATES, marks on, 61, 648. TITLE, plaintiff’s, must be clear for injunction to be granted, 134, 145, 191, 246, 284, 374, 391, 410, 487, 492, 494, 512. acquired by sale under execution, 721. to trade-mark cannot be acquired from a person who has already sold his right, 367, 502. question as to, between successive lessees of same works, 61, 193, 721. lessor of mines of fire-clay and lessees of fire-brick works, 193. landlord and tenant of hotel, 212, 233. exporter and manufacturer, 585. cannot be tried by Committee of Experts at Manchester, 632. of musical composition. See MusicaL Composition. TOBACCO, marks on, 299, 308, 369, 392, 399, 433, 466, 492, 494, 512, 542, 553, 557, 572, 590, 595. “TOD” WATCHES, 647. TOILET, marks on preparations for the, 73, 118, 118, 130, 183, 144, 145, 163, 191, 282, 275, 319, 385, 337, 350, 353, 878, 386, 418, 592, 642, 654. « TONGE’S”” CLOTH, 321. ‘¢ TOUCHSTONE,”’ 550. 585 INDEX, TRADE-MARK, what is a, 215, 223, 300, 327, 541, 580, 709, 711, 712, 716, 730. common, descriptive or quality marks are not. See Common Marks; Descriptive Worps ; QUALITY, MARKS INDICATIVE OF. fancy names, foreign words, initials, numerals, may be. See Fancy Names; Foreign LanguaGe ; Init1ats; NuMERALS. special form of barrel is no, 373. may be an important element in, 395. hoops on barrels are no, 480. collar-box is no, 538. strip of leaf tobacco is no, 572. in an alternative shape, 394, 501, 544. name of inventor appropriated by another person as his, 284. may consist of a new combination of letters, 277. may consist of a new use of old words, 282. varying to denote quality, 339, 342, 367, 400, 636, 650, 651. official mark cannot become, 523. difficult to claim in name of new article, 536, 591. connection between trade name and, 172. good-will and, 91, 168, 331, 350, 630. copyright and, 105. distinguished from trade name, 201. patent, 84. copyright, 84, 97, 180, 152, 246, 265, 325. into local and personal, 215. compared with name of hotel, 108. held to be either deceptive or descriptive, 232, 422, 493, 571,577, 625. trade name may become a mere impersonal, 223, 279. may be used to denote selection, 494. is a chattel within the Bankruptcy Act, 1869, 537. indicating goods dealt with by three firms, 585. use of, limited to a particular locality, 628. attached to certain works, 61. moulded into bottles. See Bortizs. questions as to title to. See Trriz. right of property in, denied, 73, 130. asserted, 106, 121, 145, 174, 218, 215, 228, 249, 253, 257, 320, 329, 354, 418, 477, 541. is personal assets, 80, 215, 337. bequeathed to different persons by will, 196. renewal of genuine on genuine goods is legitimate, 130. cannot be severed from good-will, 331, 447, 487, 492, 630. may be partly purchased and partly invented, 367. 586 INDEX. TRADE-MARK — continued. name may become mere ordinary transferable, 21 5, 223, 279. can only be acquired in connection with a particular class of goods, 215, 223, 234, 257, 555, 559, 616. acquired by long user, 51, 459. without long user, 215, 234, 325, 364, 456, 627, 629. cannot be acquired in gross, 447, 487, 492, 630. except by the previous maker of the goods, 492. of partners becomes the property of the partnership, 222, 399, 408, 487, 502, 561. of partnership cannot be appropriated by one of the partners, 455. not in all cases assignable, 222, 223, 521. assignment of, without direct mention, on sale of good-will, 350, 354, 492. cannot be twice assigned by the same person, 367, 502. lost by becoming common to a trade, 263, 593, 610, 611, 637. sale of part interest in refused, 231. principles on which infringement of is prohibited. See PrincrpLes. not required to be completely changed where used bond fide, 310. trade-union label not a, 712. See ABANDONMENT ; ASSIGNMENT ; COLORABLE IMITATION ; CuT- LER’s Marx ; INFRINGEMENT ; INJUNCTION ; Name; PARTNER- SHIP ; REGISTRATION. TRADE-MARKS REGISTRATION ACT, 1875, § 6, explained, 597. TRADE NAME, 7, 172. connection between trade-mark and, 172. distinguished from trade-mark, 201. may become a mere impersonal trade-mark, 223. the same, used by two firms, 283. not in all cases assignable, 223. may not be appropriated by some of the partners, 75, 122, 149, 166, 248. a purchaser from one of two partners, 268. changed by surviving partner while personal representative of deceased partner has option of continuing in the business, 127, is assets, 248. held not to pass on sale of good-will, 185. held to pass on sale of good-will, 248, 639. sale of part interest in refused, 231. principles on which protection is given in cases of, 325, 477, 639, 713. actual fraud unnecessary for infringement of, if deception probable, 477, 713. 587 INDEX. TRADE-NAME — continued. breach of contract in respect of restrained, 485. Massachusetts General Statute respecting, 201, 283. See Goop-wiLL ; InJuNcTION; NaME ; PARTNERSHIP. TRADE SECRET is personal assets, 3. use of restrained, 31, 36, 110, 163, 290, 517, 604. not restrained, 19, 24, 26, 517, 591, 628. trusts of enforced, 38. specific performance of agreement for sale of enforced, 36. damages given for breach of agreement to sell, 62. ascertainment of value of, 38. . sale of, by assignee in bankruptcy, does not deprive bankrupt of his right to use it, 575. trade-mark not to be used by persons unacquainted with, 447. except as against persons who have no better right in the mark, 455. TRADE-UNION LABEL, nature of, and whether infringement can be restrained, 712. TRANSFER of marks indicative of one quality to goods of another, 126, 253, 441, 549, 556, 650, 651. TRANSFERABLE TRADE-MARK, name may become mere ordinary, 215, 223, 279. TRANSMISSION of trade-marks on bankruptcy, 222, 323, 447. of good-will on bankruptcy, 69. of trade-marks of partnership, 399, 408, 437. “TRIAL : and Triumph,”’ 638. of action for infringement, mode of, 644. “TRIANGLE BEER,” 655. TRUST, breach of, in respect of trade secret, restrained, 31, 110. etchings, restrained, 98. TRUSTS of trade secret enforced, 38. of good-will enforced, 74. “TUCKER SPRING BED, THE,” 474. “TURIN ” CLOTH, 400. TURKISH LETTERS, word in, used as trade-mark, 51. “TWO ELEPHANT” YARN, 646. 588 INDEX. TYPE, deception aided by use of special, 317. And see LETTERS. UNFAIR COMPETITION expounded and illustrated, 686, 687, 690, 697, 698, 720, 722, 725. UNFAIR REPORT of proceedings in a trade-mark case, injunction not granted to restrain publication of, 190. UNION LABEL, See Trapr-Unton LABEL. “UNITED Service ’’ soap, 280. States Act of 1870, held to be invalid, 629, 658. registration under, held not to be compulsory, 352. Circuit Court, jurisdiction of, in cases of registered trade-marks, 613, 629. UNPATENTED ARTICLE, no exclusive right in, 8, 4, 19, 59, 68, 84, 99, 103, 130, 388, 389, 416, 461, 591, 628. UNWARY PURCHASER. See Orpinary PurcHaser. USER, ! acquisition of trade-mark by long, 51, 459. without long, 215, 234, 325, 364. question as to insufficiency of, 88, 92, 246. registration granted, with limitation as to mode of, 641, 654. locality of, 643, “VALLEY” WHISKEY, 395. VALUE : of deceased, or retiring partner’s interest in good-will of partnership, how ascertained, 70, 156, 158, 176, 177, 206, 208, 215, 238, 248, 260, 451. of good-will of public house, how ascertained, 462. “VALVOLINE” OIL, 597. “VANITY FAIR” CIGARETTES, 553, 595. VEHICLES, imitation of line of, restrained, 57. use of name of hotel on, 104, 111, 266. ‘“VELNO’S VEGETABLE SYRUP,” 19. VENDIBLE article in the market, plaintiff’s mark must have been placed on a, to support an action, 140, 215, 223, 234, 264, 301, 339. 589 INDEX. VENDOR of trade-mark cannot resell, 367, 502. price of spuriously marked goods recovered by innocent, 101. VICTORIA cases, 517, 649, 650, 651, 652, 653. lozenges, 227. “VOLDNER’S SCHIEDAM SCHNAPPS,” 179. ‘“ WAMSUTTA” MUSLIN, 660. WARRANTY not implied by use of name of early painter, 8. may be implied by use of name of modern painter, 56. WASHING POWDER, marks on, 296. WATCHES, marks on, 51, 196, 211, 647. WATER pipes, marks on, 612. marks on mineral, 354, 465, 509, 529, 558. ‘WATERTOWN WEEKLY RE-UNION, THE,” 576. “WAYNE” GLASS, 121. “WEDGWOOD” POTTERY, 96. “WESTLEY RICHARDS” GUNS, 441. ‘“WESTON’S WIZARD OIL,” 517. WHARFINGERS’ lien, 369, 567. “WHAT CHEER HOUSE, THE,” 212. “WHEELER & WILSON’S” SEWING-MACHINES, 322. WHISKEY, marks on. See Spirits. WHITE LEAD, marks on, 402, 511. “ WILDER & CO’S STOMACH BITTERS,” 372. WILL, trade-mark bequeathed to different persons by, 196. WINE, marks on, 229, 235, 239, 256, 506, 583, 537, 567. WIRE, marks on, 213. “WISTAR’S BALSAM OF WILD CHERRY,” 90. “WM. ASH & CO.’S” STEEL, 222. ‘“WOLFE’S SCHIEDAM SCHNAPPS,” 179, 390, 415, 484, 653. “WONDERFUL MAGAZINE, THE,” 10, 15, 17. 590 INDEX. ‘““WOOD’S HOTEL,” 467. WOOLLEN YARNS, marks on, 601. “ WORCESTERSHIRE SAUCE,” 407, 436, 513. WORDS AS TRADE-MARKS, rule as to 678, 690, 695, 696, 713, 722. “WOTHERSPOON’S VICTORIA LOZENGES,” 227, . “X BROOMS, ENGLISH’S,” 342. “YANKEE SOAP,” 150, 225. YEAST POWDER, marks on, 664. “YORKSHIRE RELISH,” 526. “ ZINGARI” BOUQUET, 350. 591 KF 3178 c87 1892 Author Cox, Rowland. Title a manual of trade-mark cases. 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