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Les diagrammas suivants illustrant la mAthoda. 1 2 3 1 2 3 4 5 6 I DIGEST OF THE LAW OF TRADEMARKS AS PKliSENTKD IX THE REPORTED ADJUDICATIONS OP THE COURTS OF THE UNITED STATES, GREAT BRITAIN, IRELAND, CANADA, AND FRANCE, FROM THE EARLIEST PERIOD TO THE PRESENT TIME ; TOGETUEH WITU AN APPENDIX CONTAINING THE UNITED STATES STATUTES AND THE TREATIES OF THE UNITED STATES CONCEKNIXG TIUDEMAUKS, AND TUB UULE8 AND FORMS OF THE UNITED STATES PATENT OFFICE FOU TUEIR REGISTRATION. p.i «^ 4 BY CHARLES E. CODDINGTON, COUNSELOR AT LAW. NEW YORK : WARD & PELOUBET. 18V8. I^iUcicd accord i".^' l'> acl (>r( "",!,''-css, in file year 1877. Ill tlic ollice (iC (lie Jji KI.Ol.iiCT, >iiiriaii ol' Coii'i-i osH, at AV'ashi "tfloii. 'T f TO WILLIAM II. WAIINEU, op •llli; ( ITV ()|. M,\\ VOKK, THIS \V(JliK IS IN.SCIiliiKD, A MAHK OK Tin: AITIIoii's I'KIiSON.u, IU;OA no. PREFACE. Although the first reported trademarji case came belore tlie courts two hundred and eiglity-seven years ago, nine-tenths of the decisions upon tliis topic liave been made within the last thirty years and more tlian one-half of th.m since the year 180:,." inuring the past ten years nearly all of the treaties and statutes for the protection of this peculiar kind of property liave been entered into and enacted. Tlie number of these reported cases has increased yearly, and the records of the Patent OfRoe show a ^veekly increase in the registration of trade names ami symbols. These facts indicate that this brancli of tJie law, although of recent growth, is attracting much attention, and has attained no inconsiderable importance. The benefits accruing to the manufac- turer and tiader, as well as to the general i,ublic, from the protection of trademarks, and the fact tvj vl PuKrACE. tliat tlioy are oftfMi ol' yiciilcr value (liaii jialcnts — tlu! onjoyiiieut ol' tlirlr exclusive use beiu^- willnjut limit as to time and i»ei*liai)s i)lai'e — would easily account for the prominent position ^vlli(•ll this sub- ject now occupies bel'on^ the public and in the courts. The decisicms have been conllictint; and no digest of all the authorities has ever been pub- lished, although the judges in their reported opinions have expressed not only their regret that such a work had not been prepared, but also their dissatisfaction with the manner in which these cases havi^ been treated in geneial digests. These consid- erations have pi'ompted the present publication, and have encouraged the author in the belief that it might be of some assistance to the x^i'ofession. Up to the i^resent time there aie reported one hundred and seventy cases as having been adjudi- cated in the courts of Great Britain, Ireland and Canada, one hundred and seventy-eight in the courts of the United States, and about an equal number in the courts of Fi-ance — all decisions in the same suit, whether below or on ai)peal, being counted as a single case. The following table has reference to the English and American de- cisions only, and exhibits the comparatively recent growth of the law in England and the United PllEFACE. Vll Stales, aiid perhaps may .siiu'u'cst of her reflec- tions. Tlie first case, iiientioiK^d in tin? IjooIxs. was dcter- mint'd in I.'jDO, the second in 1742, and prior to ISO.") only six cases are reported. After ISO,") the nmnher of decisions reported during eacli decade is as follows : 180."i to 1815, inclusive, ISl.-i " IHi.l, " 1825 " 18;].-,, " 18;]r, " 1845, " 1845 " 1855, " 1855 " 1805 " 18(55, 1875, a 5 G l:) 4U 104 1U8 Since ISin the increase has been, propoi-tionately, mnch greater, althongh in many of the States of the Union no trademark cases have ever been reported. A digest of till the reported, and a few of the I'li- reported, adjudications in the courts of the United States, Great Britain, Ireland and Canada, and of the principal decisions in tlie courts of France, the treaties between the United States and foreign countries, and the statutes of the United States conc(^rning trademarks ; and the rules and forms of the United States Patent Office for tlieir registra- tion, are contained in this volume. Although VI II Piji;f.\ce. l;il)ols, ae trademarks in a strict and teclinical sense, yet the principles relative to those subjects and trademarks proper, are so nearly analogous, and the cases in which tliey have been ajij^lied are so often corielatively cited that it has been thought proper to include the decisions in which those subjects are considered. An endeavor has been made to present the dif- ferent points decided in the English and American cases united under appropriate heads and titles ; to combine the analytical and alphabetical methods of arrangement ; to state ccmtroUing facts as well as principles, and to follow as nearly as possible the language of the o[)inions. The digest of the French decisions is exclusively the work of Piiancis Foup.es, Esquire, of the New^ York Bar, by whom the reports of those decisions were obtained in Paris ; and through his learning and industry, the author is enabled to present to the profession in this country a valuable contribu- tion from a source almost inaccessible. The author also returns his thanks to John Sherwood, William D. Hennen (author of the f 1 PUKFACK. ix Louisiana Di-est) and IIk.vkv G. Atwatku, Ks- qui.v., .,r the New Y«,rk 13ar, fur vali.'ahl. .su,u-!^vsti(>n.s. In the li()i)e that the woik may supply a delj- ciency, wlucli has uheady been seriously iV-lt, ijie authoi' submits the result of liis labors to the gene- rous consideration of tlie piofession. New Yoniv, Xuvenilicf l.j 1877. C. E. C. CONTENTS. PAGE liXPLANATION OP ABBREVIATIONS, xij} Table op Cases Reversed, Criticised, &c., xix Digest, ^ Trademark Table, «qj French Statutes o~n ' o ( y French Decisions, gg^ Appendix, 4^^ U. S. Statutes, 4g™ Rules op U. S. Patent Office, 475 Official Forms, ^^g Treaties and Conventions, 431 Table op Cases, 4^0 ^^^E'^' .! 513 ^^■m EXPLAKATIOi\ OF ABBREVIATIONS. Abb. Ct. App. Dec. .Abbott's Court of Appeals Decisions, N Y ^, "• ^ •■ Abbott's Practice Reports, N. Y t ; • ^'■- ^- ^ ^^'''''^"'« P'-'^^tice Reports, New Series, x\. Y ^"''" Allen's Reports, Mass. Am. Law Re<^., . Am. L. R., or [ . ...American Law Register A. L. Re^r. ) " Am. L. T. R Amci-ican Law Times Reports. Am. L T. R. N. S.. American Law Times Reports, New Ser^^3 Ann. de la Pro Annales de la Propriety Industrielle, Artis- tiquo et Littoraire, Paris. ^ Atkyns' Reports. Chaucerv, En;?. J, ' ■■■:■ Rarbonr's Reports, Supreme Court, N. Y Barn. & Ad., J . . . . Barnewall & Adolphus' Reports, Ki„:..-, ^- & ^^d- ( Rench, Enrr. Barn.&C, J Barnewall & Creswell's Reports, Kiu-", ^- & C. S Bench, Eng. ^I^^J-, Beavan's Rei)orts, Rolls Court, En<'. Blatch., or y _,, ' ° Bl. C. C. ( Blutchford's Reports, U. S. 2d Circuit. ^"'''' Bosworth-s .Rc,,orts, Superior Court, N Y City. ^'7^ Brewster's E<)uity Reports, Pcnna. JJ"V' R»«l''s Ki'ports, Kentucky. C-^e Courde. ^- ^^ <^"ass cour de Cassation. ^"' California Reports. CJutty's Gen. Pr Chitty's General Practice. txiii] Explanation of Aiusk'kn iatioxs. r.ii Ciiiciniiuli S\i|i(r;(>r (Ouit IJcportiT, Sijpe- lior ft., (ill., (). Com. T> Conuiion J><.'iii-I\ h'tporis. Ku^. Com. J5. N. S Comiiioii rxMuli I '.c ports, ^s'ew iSirii'S, Eny. Conn Coniii'cticvit IvCjioils. Co.\ ('. i' Cox Crimiiiiil C.isi s, Eng. (To. Jiic Croku (Janic-i, K. IJ. imd C. P. Cusli Cusliiiig's Kc|)oi-t>, .Miiss. Dii\y Duly's llcpuiis, Common IMoiw, N. Y. City. Deady Dt'iuly's llcpoits, U. S. District of Oregon. Dears. & B., or ( ..rx.;,rslev".s & Hell's Crown Cases. Eng. Dears. & 15. C. C. ^ De (i. J. & t? De Ge.\, Jones & bmitli's Reports, Chan- eery, Eng. De G. M. & G De Ge.\, Maenagliten & (iordon's Reports, Clianeery, Eng. Dill Dillon's Re|K)rts, U. S., 8lh Circuit. Doug Douglas' Reports, King's H(!neli. Dowl. & Ry Dowling & Ryland's Rej)orts, King's Bench. Dr. & Sm Drewry i Sniale's Reports, Clumcery, Eng. Duer Duer's Reports, Superior Court, N. Y. City. Eden Inj. Am. Ed. ..Eden on Injunctions, American Edition. E. D. Smith, or i . . .E. D. Smith's Reports, Common Pleas, N. Y. E. D. S. ( City. El. &E Ellis and Ellis' Reports, Queen's Bench, Eng. Eng. L. R. Ch. Div. .English Law Reports, Chancery Divisiou. Eng. L. «fc Eq English Law & Equity Reports. G. T General Te.ra. Ga Georgia ReporCs. GilT trillard's Reports, Chancery, Eng. Gray Gray's Reports, Mass. Hare .... Hare's Reports, Chancery, Eng. Hem. i^' M., or ) . . . .Hemming's & Miller's Chancery Reports, H. & .M. S Eng. Hilt Hilton's Reports, Common Pleas, N. Y. City. H. of L. Cas House of JiOrds Cases. Holmes U. S. Circuit. Hopk. Ch Ho})kins' Chancery Reports, N. Y. How. App. Cas Howard's Appeal Cases, N. Y. How. Pr HowanPs Practice Re))orts, N, Y. I EXPLAN-ATIOX OF Annili: VIATIONS. XV Iluanl M. de Fab.. . . JiOpovtoW. ,1,. L^^lslntion .l. Dortrino ot ,le Jiirispnidcnco ci matiei-,. ,1,. Maniiics do Fabiuiuc, etc. l>ar A.lii,„ Ih,,,,,!, Paris 1805. !!""• • ; • • ^^"""^ Siij,i«.,„<. Court IJcports, X Y l^-^ •." "'''^^- ; ^^- ^'- -'""'n^-.n-s IJ,.por.s, Cl.ancc-rv, Eng- • •'"'•'^^' ^"^^ ''^ I'-i-^l' Jnrist, Xow Series. " ^" Illinois IJoports. Irish Cli., or ) Ir. Cli. > ^'^'' Ciianccry Reports. Irisii Eq., or ; ^ . , Ir. Eq. f ^"'''' ^^ciJorts, Equity Series. '^" * " Jol.iison's & Ilemming's Clmncery Reports Enj^. ' '^■*''^ ^""^•■'^ & Spencer's N. Y. Superior Court Reports. '^"''•- Jurist, Eng. ■^'"'- ^'^'- '"^ J"i'st, New Series, N. S. K. & ,J., or I Kay & J. i" ^^">' ^^ -Tolmson's Reports, Chancery, Eng. !^'''" ^^f'^n's Reports, Rolls Court, En- r 'n' f '^""'^ "^■'^^•'•t^' ^"^'- Y. Court of Ippeals. ^'- *"'' I^ord Chanceiior. ^'- "^ I-'iw Journal, Eng. ^'' '^'^ Lords Justices. l' t" x" S* r\. I'"' '^*'"'''"'' ^^'"^ ^'"''^ Chancery, Eng. /■ ' ■ ^^; ^- ,; \ ]:'•'''' •^""'•"'••'- ^'^-^v Series, Com. Pleas, Eng. L '■ X S tr!' ■••■ '"" 'r '"'"'' """^ '^••"'•^' Exchequer, EnJ i^. J. ^. S. II. L. . . .Law Journal, Xew Series, House of Lordi Eng. ' L. J. N. S. JL C Law Journal, New Series, Magistrates' Cases Eng. ' L. J. K S. Q. B Law Journal, New Series, Queen's Bench, Eng. l' Rf\"t' ; ^'"' ^^'''"'■*'' "'■■'"""'•y ^PP^'-^l Cases, Eng. L. I . E. & L App. . .Law Reports, English and Irish Appeds. ^- ,,!• ';!' ^-'"- Ii'"P«rts. E.p.ity Cases, Eng. I'" ,, [^■■^- - J-"v Times Re|)()rts, Eng. j\\ '^- ^'- ^ r^'^^v Times Rep ,rts, Xcw Series, En-^. ' ■ ^^" Louisiana Annual Reports. ° '"' Lansing's Report.s, K. Y. Supreme Court. XVI EXI'LANATIOX OF AbKUEVIATIOXS. Li\:^-. Hiiz Legal Gazette Reports, Peiiuii. \a"s. lilt Legal Intelligencer. IMiilu. Pa. Vi. \\ Master of tiie Holls. MeLean . McLeuu'.s Heports, U. S., 7th Circuit. Mac. & Ct., or > Macnaghten& Gordon's Heports, Common JI. & Gold. \ Pleas, Eng. Mail »fc G., or ) Manning & Granger's Reports, Common 51. ii G. S Pleat", Eng. Man. G. & S Manning, (iranger & Scott's Reports, Com- mon IJcnch, Eng. JIass Massachusetts Reports. 5M Maryland Reports. 3Ier Meri vale's Reports, Chancery, Eng. 3Iich. N. P Michigan Nisi Prius Cases. Mo Mi.ssouri Reports. Mo. L. Rep., ox\ _ j^ionthly Law Reporter, all conrts, American. 3Io. Law R. » Myl. & C, or / jj^j^^^ ^ Craig's Rcpi/rts, Chancery, Eng, 5L & C. » N. C North Carolina Reports. N. Y New York Court of Appeals Reports. N. R New Reports, Eng. Nev. Si M., or ) ^^^w^ & Manning's Reports, King's Bench. N. Y. Leg. Obs New York Legal Observer. N. Y. Sup. Ct New York Supreme Court Reports. N. Y. Super. Ct New York Superior Court Reports. Off. Gaz Official Gazette, U. S. Patent Office. Paige Paige's Chancery Reports, N. Y. Pa. St. R Pennsylvania State Reports. Penn. L. J Pennsylvania Law Journal. Piiila Philadelphia Reports, Commor Vc-as. Pick Pickering's Reports, M.'jss;' ■: v's. Poph Popham's Rej)orts, Kind's i.,. Post Post's Reports, Slissouri. R. I Rhode Island Reports. Robt Robertson's Reports, Superior Court, N. Y, City. Rolle RoUe's Reports, Eng. S. C Same Case. S. T Special Term. ExPLAXATiox OF Abbueviations. xvii ^''"''^^ Sandford's Reports, Superior Court, N. Y City. ^'''"^^- ^^ Sandford's Chancery Reports N Y T'''^, Sawyer's Reports, U. S., 9th Circuit. ^^^- ''^^ Scottish Jurist, Scotland. ^^- ^- ^ Scottish Law Reporter, Scotland. f '"■ • • Simon's Chancery Reports, Eng f ^' ^^« Story's Reports, U. S., 1st Circuit. J'^'t"' Swanston's Reports, Chancery, Eng. •^ ^ Thompson & Cook's N. Y. Supreme Court Reports. ^''^"'- ^PP Transcript Appeals, N. Y T'''^- Civ Tribunal Civil. Trib. de Com Tribunal de Commerce. ^- C Vice Chancellor. vlf T^ •„ ^l^'^y * J^«'™«'« Reports, Chancery, Eng. i;-'- J"'^ Vesey Jun. Reports. '' ^- ^ Weekly Notes, Eng. ^- f Weekly Reporter, England. Wal IJr Wallace's Reports, U. S. Supreme Court. Circuit. » . ., t U I ! '■*», TABLE OP CASES AFFIRMED, REVERSED, CITED, CRITICISED, &c. (Note.— The cases included in this table are those only cited in the opinions— not those in the briefs of counsel. The words "after," and "before" indicate the report where the same case has come before the court on some interlocutory or other ques- tion after or Icfore the final determination.) Abbott «. Bakers and Confectioners' Tea Association W N 1871, p. 207; S. C, affirmed, W. N. 1872, p. 31; cited, 20 W.' R. 720; 26L. T. R. (N. S.)757. Ainsworth v. Walmsley, L. R. 1 Eq. 518; S. C, 12 Jurist (N. S ) 205; S. C, 14 L. T. R. (N. S.) 220; S. C, 35 L. J. R. (N S ) Ch. 352; S. C, 14 VV. R. 363; cited, 35 Cal. 76; 45 Scottish Jurist, 206; 4 Am. Law Times R. (N. S.) 177. Allones«. Elkan, 40 L. J. R. (N. S.) Ch. 475; S. C, L. R 12 Eq. 140; S. C, 19 W. R. 867; affirmed, 20 W. R. 131- S C 25 L. T. R. (N. S.) 813; S. C, L. R. 7 Ch. 130; S. C , 41 L J. R. (N. S.) Ch. 246. American Grocer Publishing Association v. The Grocer Publish- ing Company, 51 How. Pr. 402; cited, Id. 220. Ames V. King, 2 Gray, 379. Amoskcag Manufacturing Company v. Garner, 6 Aljb Pr (N S ^ 265; S. C, 55 Barb. 151. • ■ -■> Amoskeag Manufacturing Company v. Garner, 4 Am. Law T R (N. S.) 176. * ■ [xix] R"1 ll X'X Cases Ciiiticis7:d. Aiiioskoii'^ Mainifiintuiin^f Company v. Rpcar, 2 Samlf. .lOO; rltnj, niJarl). (JO'J; ',\ Ducr, U27; 2 Abb. Pr. ;!22; :{ Hlatclif. 448; 4 Abb. Pr. 88; 18 How. Pr. 34!{; 24 IJarb. 1(!4; 4 Al)b. Pr. 147; i:{ How. Pr. :588; 4 Abb. Pr. 101; 2 IJosw. 7; 18 How. Pr. 07; 7 Bosw. 228; 5 Phihi. 40.5; 28 llow. Pr. 12:$; 28 How. Pr. 207; 4 Hobt. 013; 5 Am. Law Hog. (X. S.) r)94; 47 IJarb. 40:3; 2 Aljb. Pr. (N. S.) 402; 1 A1>1). Ct. of App. Dec. 270; 5 Abb. Pr. (N. S.j 218; o Trans. App. 101»; 3 Keycs, 590; ;M How. Pr. 115; 49 Barb. 591; 57 Daib. 534; 30 How. Pr. 35; 2 Daly, 315; 35 Cal. 04; 35 Conn. 414; 5 Abb. Pr. (N. S.) 220 ; 44 Missouri, 170 ; Abb. Pr. (N. S.) 279; 55 Barb. 107; 3 Duly, 54; 2 Brews. 318; 7 Pliila. 255; 2 Brews. 325; 54 III. 405; 1 Dillon, 332; 1 Wil- son, 03; 45 N. Y. 397; 10 Abb. Pr. (N. S.) 304; 13 "Wallace, 323; Lans. 100; 13 Abb. Pr. (N. S.) 399; 48 N. Y. 377; 45 Cal. 481 ; 15 Abl). Pr. (N. S.)4; 1 T. & C. 029; 40 How. Pr. 159; 3 T. & C. 552; 58 N. Y. 233; 49 Hjw, Pr. 7; 4 Am. L. T. R. (N. S.) 181. The Apollinaris Company (Limited) v. Norrish, 33 L. T. 11. (N. S.)242. Aycr i>. Hall, 3 Brews. 509; S. C, 8 Phila. 231; S. C, 1 Leg. Gaz. 124. Ayer v. liushton, unreported. Banks r. Gibson, 35 L. J. R. (N. S.) Ch. 592; S. C, 34 Bcav. 500; S. C, 13 W. K. 1012; cited, 45 N. Y. 302; 10 Abb. Pr. (N. S.) 309; 20 L. T. R. (N. S.) 391; 20 W. R. 508; 2 Ciu. 320. Barnctt v. Leuchars, 13 L. T. R. (N. S.) 495. In re Barrows' application, 25 W. R. 504; affirming S. C, 36 L. T. R. (N. S.) 291; S. C, 25 W. R. 407. Barrows?'. Knight, OR. I. 434; cited, 4 Abb. Pr. (K S.) 415; 30 How. Pr. 10; 44 Missouri, 177. Bass V. Dawber, 19 L. T. R. (N. S.) 036. Batty v. Hill, 1 H. & M. 204; S. C, 11 W. R. 745; S. C, 8 L. T. R. (N. S.) 791; S. C, 3 N. R. 205; cited, 11 W. R. 933; 1 H. & M. 290; 32 L. J. R. (N. S.) Ch. 727; 8 L. T. R. (N. S.) 831; 1 H. & M. 454; 5 Daly, 287; 59 N. Y. 334. Beard v. Turner, 13 L. T. R. (N. S.) 747; ciUd, 4 Am. L. T. R. (N. S.) 180. BcWv. Locke, 8 Paige, 75; cited, 11 Paige, 297; 2 Sandf. Ch. 012; West. L. J. 85; 4 McLean, 519; 7 Cush. 333; 23 Barb. Casks Cimticiskd. \::i COO; 7 Rosw. 225; 2 Abl.. Pr. (X. S.) 402; 2 Drews. JHO; Deady, OKi; Hun. 1(18. Biiiiiiger v. Wiittlcs, 28 How. Pr. 200; clh:l). J'r. (N. S.) 410; ;!(! How. Pr. IT; 5 Ahl.. Pr. (X. S.) 220; r,r, lliuh. 107; Al)b. Pr. (X. S.) 27!); 3 Daly, 54; ly Ahb. Pr. {:'. S.) JiOl. Dlackwell ;•. Arniistviid, 5 Am. Law Tinu's R. 8'). IJIa.kwill r. Crahl!, :'() L. .1. R. (N. 8.) Cli. r>04. BlacUw.li /•. Wri-iit, 7:j X. C. yiO. Blaiicliarih-. Hill, 2 Atk. 484; afaJ, 4 McLean, 517; 2 Santlf. 00.-) ; 24 L. J. R. (X. S.) Ch. 034; 1 K. & J. 514; 3 Jurist (N. S.) 9:!0; :{ K. & J. 427; 3 K. & J. 420; 7 Bosw. 225; 1 N. R. 544; Jurist (X. S.) 484; 8 L. T. U. (X. S. ) 228; ;;2 L. J. R. (X. S.) Ch. 550; 11 W. R. 526; 20 Cui. 305; 2 Brc'w.s. 327; 01 X. Y. 231. Blotit'ld i'. Payne. 4 B. & Ad. 410; S. C. 1 Xev. & M. 353; S. C, 3 L. J. R. (X. S.) 08; cited, 4 McLean, 520; 2 Sandf. OOfi; 13 Ir. Eq. 487; 7 Cush. 333; 4 L. T. R. (X. K.) 638; 7 Jurist, (N. S.) 074; 2 J. & H. 143; 30 L. J. R. (X. S.) Cli. 406; L. R. 1 Eq. 302; 6 Abb. Pr. (X. S.) 270; 55 Barlx 107. Bloss V. Bloomer, 23 Barb. 004. Boardman v. Meriden Britannia Company, 35 Conn. 403; cited, 39 Id. 461. Booth V. Jarrett, 53 How. Pr. 169. Bowman v. Floyd, 3 Alien, 76; cited, 110 Mass. 31; 111 Id 244. Bradbury v. Beeton, 39 L. J. R. (N. S.) Ch. 57; S C, 21 L. T. R. (X. S.) 323; S. C, 18 W. R. 33; cited, 18 W. R. 183; 21 L T. R. (X. S.) 547. Bradbury v. Dickens, 27 Beav. 53; cited, 23 W. R. 454; 30 L. T. R. (X. y.) 295; 01 N. Y. 331. Bradley i\ Xorton, 33 Conn. 157. Braham v. Bustard, 11 ^Y. R. 1061; S. C, 1 PL & M. 447; S. C , 9 L. T. R. (X. S.) 199; S. C, 3 X. R. 573; cited, 15 Irish Ch! 80; 4 Abb. Pr. (X. S.) 415; 36 How. Pr. 10; L. R. 7 Ch. 622; 41 L. J. R. (X. S.) Ch. 086; 27 L. T. R. (N. S.) 223; L. R. 17 Eq. 41; 43 L. J. R. (N. S.) Ch. 65; 22 W. R. 54. Broadhurst v. Barlow, W. N. 1873, p. 312; L. R. 17 Eq. 38. Brook V. Evans, 2 L. T. R. (X. S.) 740; arfirmed, 39 L. J. R. fN. S.) 610. Brooklyn White Lead Company?;. Masury, 25 Barb, 416; cited. t\ :ocu Casks Ci:iticised. 13 Mo. L. U. 221; IS How. I'r. 09; 7 Bo-iw. 229; 9 I'.osw. 190: Abb. I'r. (N. S.) 4(i2; 1 Abb. Ct. of A]))). I) How. Pr. ll:J; 49 Barb. 597; o7 Hiirb. .W3; S-j Cul. 7."); ."i Al>b. Pr. (N. S.)220; 55 Ikrb. 1(57; Ai)b. Pr. (X. S.)279; :'. Daly, 54; 2 Hrcws. :i25; 1 Wilson, (515; 1:5 Wallace, 325; 24 La. An. 99; 51 N. Y. 194; 1 Holmes, li»5. Bro WIl ?'. .fiercer, ;!7 X. Y. Saiierior Ct. (5 J. & S.) 2G5. Browne v. Freeman, 12 W. H. ;]()5; S. C, 4 New, 470. Buriress v. BiirL'ess, ',i I)e G. M. & G. 890; S. C, 17 Jurist, 292; L. Sc K( S. C, 22 L. J. It. (X. S.)Ch. G75; S. C, 17 Kng. j.. iV J-.ij. 'Z.tt cited, 18 Jurist, 10; 23 Eug. L. & Eq. 57; 23 Eng. L. Sc Eq. 283; 23 L. J. li. (X. S.) Cli. 255; 18 How. Pr. (57; 28 How. Pr. 207; 35 How. Pr. 113; 57 Barb. r,U\ crificiml, 37 L. J. K. (X. S.) Ch. 848; cital, 5 Abb. Pr. (X. S.) 220; 3 Daly, 54; 1 Hun, 373 ; 3 T. ifc C. 551 ; 02 N. Y. 433. Burgess V. Ilately, 20 Beav. 249. Burgess v. Hills, 20 Beav. 249; S. C, 28 L. J. R. (X. S.)Ch. 350; cited, 33 Beav. 579. Burke v. Cassin, 45 Cal. 407. Burnett v. Phalon, 12 3Io. L. R. 220; cited, 7 Bosw. 229 ; of- Jirmcd, 9 Bosw. 193. Burnett v. Phalon, 9 Bosw. 193; cited, 5Pliila. 400; 49 Barb. 592; 4 Abb. Pr. (X. S.) 8; 35 How. Pr. 78; 35 Cal. 75; 44 Missouri, 177; 55 Barb. 107; Abb. Pr. (X. S.) 279; 1 Dillon, 332; df- firmed, 1 Abb. Ct. of App. Dec. 207. Burnett v. PWalon, 1 Abb. Ct. of App Dec. 207; S. C, 5 Abb. Pr. (X. S.) 212 ; S. C, 3 Transcript Ap. 107 ; S. C, 3 Keyes, 594; affirming, S. C, 9 Bosw. 193; cited, 13 Abb. Pr. (X. S.) 399; 48 X. Y. 370; 13 Abb. Pr. (X. S.) 391; S. C, lufore 12 Abb. Pr. 180; S. C, 21 How. Pr. 100; S. C, h^fore 11 Abb. Pr. 157; S. C, 19 How. Pr. 530. Burrows v. Foster, 1 Xew, 150. Bury V. Bedford, 9 Jurist (X. S.) 950; R. C, 32 L. J. R. (X. S.) Ch. 741; S. C, 11 W. R. 973; S. C, 8 L. T. R. (X. S.)847; (S.C, heforo 1 Xew, li);citod,\ II. & M. 284; reversed, 10 L. T. R. (N. S.)470; S. C, 33 L. J. R. (X. S.) Ch. 405; S. C, 10 Jurist, (N. S.) 503; S. C, 4 Xew R. 180; S. C, 13 W. R. 726; reverml cited 111 Mass. 343; cited, GIN. Y. 331. Byass v. Sullivan, 21 How. Pr. 50. Casks Ciiiticiskd. xxtn BjTou, Lord r. Jolmston, "J .Mer. 20; cltul, 10 Jurist, 140; 17 ' L. J. 1{. (X. S.) Ch. HI. Canal ('niii|)any '". Clark. Soe Di'lawan; ami IIii(l.1». Pr. 147; lo llow. Pr. as8; 4 .New. 47S; r, I'hila. 40:»; 5 Am. Law. Keg. (N. S.) 501; 54 III. 400; lluu, 108. Carmicliacl r. Latimor, unreported. CurtR-r /■. CarliU;, ;J1 Bcav. 202; S. C, 8 Jiulst (^N. S.) 18:5; c'ltnl, :57 Conn. 205. Carticr c. May, (unreported), July 12, 1801, Ueg. Lib. 1801, A; cited, I.iidlow and Jenkyns ou Trademarks, 42; Lloyd on Trademarks, 55, 77. Carver i\ Pinto Lite, 20 W. R. i;}4; S. C, 41 L. J. \\. (X. S.) Ch. 02; S. C, L. R. 7 Ch. 90, S. C, 25 L. T. R. (N. S.) 722. Caswell I'. Davis, 4 Abb. Pr. (X. S.) 0; S. C., :]5 How. Pr. 70; cited, 15 Abb. Pr. (N. S.) 4; 1 T. & C. 020; 40 How. Pr. 150; (ijjiriiied, 58 X'. Y. 22;.{ ; infiriHdtion. cited, 50 X. Y. •Vo~). Chappell K. Davidson, 8 De G. M. «fc G. 1; tnHnuiu'j S. C, 2 K. & J. 123. Chappell c. Sheard, 2 K. & J. 117; {Sec 8 De G. M. »fc G. 1). Chcaviii V. Walker, 35 L. T. R. (N. S.) 757. Clioynski v. Cohen, 39 Cal. 501. Christie v. Christie, W. N. 1873, p. 8; S. C, reversed, W. N. 1873, p. 70. Christy i". 3Iuri)hy, 12 How. Pr. 77; cited, 7 Bosw. 230; 6 Robt. 539; 2 Rrews. 310; 3 Brews. 329; 12 Abb. Pr. (X. S.) 99; Gl X. Y. 233. Chubb e. Grilliths. 35 Beav. 127. Churtou r. Douglas, 7 W. R. 305; S. C, 5 Jurist (N. S.) 887; S. C, 1 II. V. Joims. 174; cited, 2 Cin. 313; 01 N. Y. 231. Clark f. Clark. 25 Barb. 70; cited, 12 :\Io. L. R. 224; 18 How. Pr. OS; IJosw. 100; 1 Abb. Ct. of App. Dec. 270; 5 Abb. Pr. (N. S.) 2r Trans. App. 109; 3 Keyes, 590; 49 Barb. 591: Wil 374; Barb. 535; 35 Cal. 75; 44 :\Iissouri, 178; 2 Brews. 325; 1 son, 03; 13 Abb. Pr. (X. S.) 300; 24 La. An. 99; 1 Hun, T. & C. 552 ; 03 N. Y. 433. XXIV Cases Criticised. Clark v. Freeman, 17 L. J. R (N. S.) Cli. 142; S. C, 12 Jurist, 149; S. C, 11 Beuv. 112; cited, 3 Abb. Pr. 323; 4 E. D. Smith, 393; 33 L. J. II. (N. S.) Cli. 200; 13 W. li. 289; 9 L. T. R. (N. S.) 5.>9; 10 Jurist (N. S.) 81; criticmd, L. R. 3 Ch. 310 ; L. R, 7 Eq. 493 ; cited, 3 Brews. 333. Clemens v. Such, unreported. Cleraeut v. Muddick, 1 Gif. 98; S. C, 5 Jurist (N. S.) 592; cited, 4 Phila. 141; 7 Bosw. 229; 18 W. R. 183; 21 L. T. R. (N. S.) 547. Coats V. Goddard, 34 N. Y. Superior Ct. R. 118. Coats r. Ilolbrook. 2 Sand. Ch. 580; S. C, 3 N. Y. Leg. Obs. 404; cited, 3 Sand. Cii. 013; 2 Sand. Ch. 624; 13 Mo. L. R. 362; 7 Cusli. 333; 17 Barb. 609; 2 Abb. Pr. 322; 23 Barb. 009; 2 Bosw. 7; 12 Mo. L. R. 224; R. I. 438; 4 Phila. 141; 9 Bosw. 199; 2 Abb. Pr. (N. S.) 462; 1 Abb. Ct. of App. Doc. 270; 5 Abb. Pr. (N. S.) 217; 3 Trans. App. 169; 3 Keyos, 596; 35 Cal. 65; 2 Mich. N. P. 123; 2 Brews. 331; 1 Wils, 03; 40 Cal. 599; 6 Lans. 160; 4 Am. L. T. R.(N. S.) 182. Coats V. Piatt, 19 Leg. Int. 213; S. C, 7 Pitts. L. J. 361; cited, 4 Phila. 141. Cocks V. Chandler, L. R. 11 Eq. 446; S. C, 19 W. R. 593 ; S. C, 24 L. T. R. (N S.) 379; S. C, 40 L. J. R. (N. S.) Ch. 575; cited, 20 W. R. 434; L. R. 17 Fq. 39. Colleen V. Brunton, 4 McLean, 516; cited, 3 Blatchf. 448; 4 Abb. Pr, 158; 4 Phila. 141; 7 Bosw. 239; 5 Phila. 465; 4 Robt. 013; 35 Cal. 75; 4 Abb. Pr. (X. S.) 415; 30 How. Pr. 16; 44 Missouri, 177; 33 Md. 263; 3 Brews. 338; 1 Dillon, 333; 1 Wilson, 63; 13 Abb. Pr. (N. S.) 401; 45 Cal. 481. Coileen t\ Brunton, 5 I^IcLoan, 256. CoUaday v. Baird, 4 Phila. 13!>; c'ded, 5 Phila. 464; 2 Brews. 307 ; 7 Phila. 39. Collins Company©. Brown, 3 Jurist (N". S.) 939; S. C, 3 K. & J. 433; cited, 28 L. J. R. (N. S.) Ch. 60; 29 Cal. 390; 3 Brews. 338; 01 N. Y. 231; 45 L. J. R. (N. S.) Ch. 503; 34 L. T. R. (N. S.)808. Collins Company v. Cohen (or Cowen). 3 Jurist (N. S.) 929; S. a, 3 K. & J. 428; cited, 7 Posw. a28; 5 Am. Law Reg. (N. S.) 594; 47 Barb. 482; 4'9 Barb. 595; 2 Brews. 317; 7 Phila. 254; 3 Brews. 338; 10 Abb. Pr. (N. S.) 364; 45 N. Y. 208; 1 Holmes, 195; 58 N. Y. 335; 59 N. Y. 335. Collins Company v. Reeves, 38 L. J. R. (N. S.) Ch. 50. Cases Criticised. XXV s. & 3 34 Collins Company v. "Walker, 7 Weekly R. 233. Tlu! Colonial Life Assurance Company v. The Home and Colonial Life Assurance Company (Limited), 33 L. J. R. (N. S.) Ch. 741 ; 8. C, 33 Bcav. 549. Colton V. Thomas, 3 Brewster, 308; cited, 2 Brews. 330. Comstock V. AVhite, 18 Uow. Pr. 421. The Congress and Empire Spring Company v. The High Rock Congress Spring Company, 10 Abb. Pr. (N. S.) 848; S. C, 45 N. Y. 291; reversing S. c', 57 Barb. 536; cited, 51 N. Y. 194; 01 N. Y . 229. Cook v. Starkweather, 13 Abb. Pr. (N. S.) 392; cited, 14 Abb. Pr. (N. S.) 212; 37 N. Y. Superior Ct. (5 J. & S.) 265; 49 How. Pr. 10. Consolidated Fruit Jar Co. v. Dorflinger, 2 Am. L. T. R. (N. S.) 511. Cope V. Evans, L. R. 18 Eq. 138; S. C, 22 W. R. 453; S. C, 30 L. T. R. (N. S.) 293. Corwin?j. Daly, 7 Bosw. 332; cited, 12 Abb. Pr. 188; 21 How. Pr. 103; 9 Bosw. 206; 28 How. Pr. 207; 4 Robt. 014; 47 Barb. 482; 2 Abb. Pr. (N. S.) 463; 49 Barb. 591; 35 Cal. 75; 4 Abb. Pr. (N. S.) 416; 30 How. Pr. 17; 5 Abb. Pr. (N. S.) 220; Abb. Pr. (N. S.) 279; 55 Barb. 167; 3 Daly, 54; 2 Brews. 318; 7 Phila. 255; 2 Mich. N. P. 123; G Lans. 160; 3 T. & C. 549; 49 How. Pr. 8. Cotton ®. Gillard, 44 L. J. R. (N. S.) Ch. 90. Crawshay v. Thompson, 4 M. & G. 357; S. C, 11 L. J. R. (N. S.) C. X. 301; cited, 6 Hare, 331; 4 McLean, 519; 2 Sand. 606; 11 Hare, 84; 2 Abb. Pr. 332; 4 Abb. Pr. 159; 7 Bosw. 225; 31 Beav. 297; 8 Jurist (N. S.) 184; 2 Abb. Pr. (N. S.) 462; 3 Brews. 311 ; 6 Abb. Pr. (N. S.) 279; 55 Barb. 167; 2 Daly, 524; 2 Brews. 328. Croft «. Day, 7 Beav. 84; cited, 6 Hare, 334; 17 L. J. R. (N. S.) Ch. 144; 12 Jurist, 151; 2 Sand. GOO; 13 Jr. Eq. 489; 13 Mo. L. R. 361; 7 Cush. 383; 18 Jurist, 8; 23 Eng. L. & Eq. 53; 11 Hare, 88; 2 Abb. Pr. 324; 4 E. D. Smith, 890; 12 Mo. L. R. 222; 4 Phila. 141; 9 Bosw. 197; 18 Irish Ch. 390; 38 L. J. R. (N. S.) Ch. 200; 12 W. R. 289; 9 L. T. R. (N. S.) 559; 10 Jurist (N. S.) 81; 38 How. Pr. 207; criticised, 5 Am. Law Reg. (N. S.) 593: cited, 3 Abb. Pr. (N. S.) 463; 49 Barb. 595; 50 Barb. 243; 3 Brews. 305; 7 Phila. 39; 3 Brews. 810; 60 Pc: a. 150; 44 Missouri, 177; 55 Barb. 107; Abb. Pr. (N. S.) XXVL Cases Criticised. 270; 18 W. R. 183; 21 L. T. R. (N. S.) 547; 33 Md. 203; 18 W. R. 565; 2 Brews. 328; 2 Brews. 349; 1 Dillon, 332; 1 Wil- son, 03; 24 La. An. 100; 45 Cal. 481; 1 Hun, 373; 3 T. & C. 551 ; 02 N. Y. 432. Curtis V. Bryan, 36 How. Pr. 33; S. C, 2 Daly, 312. Dale V. i^iitlison, 12 Abb. Pr. 237, cited, 2 Brews. 331. Davis B.lvendall, 2 R. I. 500; cited, R. I. 438; 4 Phila. 141; 4 Abb. Pr. (N. S.) 415; 30 How. Pr. 16; 37 Conn. 295. Davis V. Kennedy, unreportad. Dawes v. Davies, unrejmrtcd. Day «. Binning, 1 C. P. Cooper, 489 ; cited, 5 Am. Law. Reg. (N. S.) 594; 2 Brews. 328; 2 Brews. 349; 4 Brews. 47. Day V. Day, Eden on Injunctions, 1st Am. Ed. 220; cited, 3 Myl. & C. 13. Dayton v. Wilkes, 17 How. Pr. 510; cited, 4 Phila. 141; 4 Abb. Pr. (N. S.) 52; 7 Robt. 349; 6 Hun, 108. Decker v. Decker, 52 How. Pr. 218. Deiz V. Lamb, Robt. 537; cited, 12 Abb. Pr. (N. S.) 99. The Delaware and Hudson Canal Company v. Clark, 7 Blatch. 112; S. C. affirmed, 13 Wallace, 311; affirmation cited, 10 Blatch. 85; 51 N. Y. 190; 1 Hohucs, 194; 13 Abb. Pr. (N. S.) 391; 75 Pa. St. 471; 58 N. Y. 235. Delondro v. Shaw, 2 Sim. 237; cited, 2 Sand. Ch. 012; 2 Sand. Ch. 014; 24 L. J. R. (K S.) Ch. 034; 1 K. & J. 515. Dent V. Turpin, 2 J. & H. 139; 30 L. J. R. (N. S.) Ch. 495; 7 Jurist N. S. 073; S. C, 4 L.' T. R. (N. S.) 637; cited, 1 H. & M. 270; 11 W. R. 740; 8 L. T. R. (X. S.) 791; 2 N. R. 205; 11 W. R. 933; 1 H. & M. 290; 32 L. J. R. (N. S.) Ch. 737; 8 L. T. R. (N. S.) 831; 12 L. T. R. (N. S.) 76; L. R. 1 Eq, 525; 12 Jurist (N. S.) 207; 14 L. T. R. (N. S.) 221; 35 L. J. R. (N. S.) Ch. 350 ; 14 W. R. 303. Derringer v. Plate, 29 Cul. 292. Devlin v. Devlin, 4 Hun, 051 ; affirmed by N. Y. Court of Appeals (not reported). Dickson v. iPMastor, Gamble's Index, 983; S. C, 11 I. Jurist (N. S.) 202. Dixon V. Fawcus, 7 Jurist N. S. 895; S. C, 30 L. J. R. (K S.) Q. B. 13r; S. C, 9 W. R. 414; S. C, 3 L. T. R. (N. S.) 093; S. C, 3 El. & El. 537; cited, 13 Irish Ch. 401. Dixon i'. Iloiden, L. R. 7 Eq. 488. Dixon V. Jackson, 3 Scottish L. R. 188 ; cited^ 10 Scottish L. R. 175. ••A Cases CrjTirrsED. XXV II 525; ,. (N. .)Q. 175. Dixon (Vncibk; Co. -•. GucrgenlK'iiu, 2 Brows. 321 ; S. C, 7 Pliila. 408; cittul. 1 Wilson, (i:}; 8 Pliila. 2:52; 3 lirows. 51:]; 1 I.cir. (iiiz. 120; 45 X. Y. 2ftS; 10 Ahh. Pr. (X. S.) []fi5. Eastcourt r. Estcoiirt Hop Essonco Company (Eiinitcd ). 41 L. J. P.. (\. S.) Ch. 22;}; S. C, L. H. 10 Ch. 270; S. C., :i2 L. T. P.. (X. S.) SO; 8. C, 2}W. K. ;!i:5; nirr.siiiff S. C, J'.l L. T. R. (X. S. ) .507. Edt'lstcn r. Edclsten, 9 .Iiirist X. S. 479; S. C. 1 Dc (i. .1. & S. 185; 8. C, 1 X. II. aOO; S. C, 11 W. H. 1528; S. C.. 7 L. T. R. (N. S. ) 70S; S. C, a/kr 10 L. T. R. (X. S.) 780; c/W, :5:) Hcav. 581; 4 Ahl). Pr. (X. S.) 415; ^0 How. Pr. 10; Abb. Pr. (X. S.) 270; 55 Barb. 107; L. R. 18 Eq. 150; 22 \V. i{. 455; :{0 L. T. R. (X. S.) 295; 01 N. Y. 2:}1. Edflstcn /■. Vick, 11 Hare. 78; S. C, 2:? Eni?. L. & Kq. 51; S. C, 18 Jurist, 7; citnf, 1 X. R. 551; 11 ^V. R O.'J:?; 1 H. *t M. 293; 32 L. R. .1. (X. 8.) Ch. 729; 8 L. T. R. (X. S.j 831; 11 .Inris- (X. S.) 518; 35 L. J. R. (N. S.) Ch. 05; 13 W. R. 077; 12 L. T. R. (X. S.) 740; 11 H. of L. Cas. 543; rritiriml, 5 Am. Law Reg. (X. S.) 593; cited, 30 L. J. R. (X. S ) Ch. 231; 2 Brow.s. 311; 44 Missouri, 178; 2 Brews. 325; 1 Dillon, 3:;3; 1 Wilson, 03; 13 Abb. Pr. (X. S.) 401. Ed-rinton r. Edginton, 11 L. T. R. (X. S.) 199. Edmonds r. Benbow, Seton on Decrees, 3d Ed. 905. Ellis r. Zcilin, 42 Ga. 91. Emerson r. Badger, 101 Mass. 82; cited, 110 Mass. 32; 111 Mass. 242. Fabcr v. D'Utassy, 11 Abb. Pr. (X. S.) 399. Faber v. Faber, 49 Barb. 357; S. C. 3 Abb. Pr. (N. S.) 115; cited, 1 Hun, 374; 3 T. & C. 552; 03 X. Y. 433. Faber v. Hovey, unreported. Falkinburg r. Lucy, 35 California, 52; cited, 39Cal. 504; 13 Abb. Pr. (X. 8.) 391; 45 Cal. 481. Farina r. Silverlock, De G. M. & G. 214; S. C, 2 Jurist X. 8. 1008; 8. C, 20 L. J. R. (X. 8.) Ch. 11 ; rcrcrsiiuj 8. C, 1 Kay & J. 509; 8. C, 24 L. J. R. (X. 8.) Ch. 032; 8. C, after 4 K. & J. 050; cited, 3 K. & J. 432; 4 K. & J. 753; 3 El."& El. 547; 3 L. T. R. (X. S.) 094; 9 W. R. 415; 30 L. J. R. (X. 8.) Q. B. 140; 7 Jurist N. 8. 897; 1 IL & M. 202; 49 Barb. 593; 33 Md. 208. Fcnn V. Bollos, 7 Abb. Pr. 202. Ferguson v. The Davol Mills, 2 Brews. 314; S. C, 7 Phila. 253. XXVlll Cases Cuitioised. ! Fctridgc v. Merchant, 4 Aljb. Pr. 15(5 (see Fetridge v. Wolls. fh. 144); clM, 7 Bosw. 2;51 ; 1'2 Abb. Pr. 240; 44 Missouri. ITT. I'Y'tridgc ('. Wolls, 4 Abb. Pr. 144; S. C, 1:5 How. Pr. ;58.', (sio 4 Abb. Pr. inC); tufa/, i Abb. Pr. 158; 28 How. I'r. (18; 7 Bosw. 2:i2; 12 Abl>. Pr. 240; 5 Pliiia. 40r»; 28 How. Pr. 20T; 4Uobt. 012; 5 Am. Law Reg. (N. S.) 597; 47 Barb. 40:5; 41) Barb. 501; 57 Barl). 5:54; :50 How. Pr. ;S9; 2 Daly, :510; :55 Cal. G4; G Abb. Pr. (X. S.) 270; 55 Barlj. 107; 2 Brews. ;517; 7 Pliila. 254; 2 Brows. ;5:5G ; Biisli, 1:50; 45 Cal. 481: 58 N. Y 234 ; 5 Daly, 287 ; 50 N. Y. :5:54 . Fillcy /•. Fassftt, 44 Missouri, 108; ritid, 2 Brews. 3:51; 1 Dillon. 8:52; 1 AVilson, 0:3; 4 Am. Law T. K. (N. S.) 182. Flavell r. Harrison, 19 Eng. L. & I^q. 15; S. C, 10 Hare, 407; S. C, 17 Jurist, :108; rilol, 11 Hare, 87; 11 W. R. 9:5:5; 1 II. &M. 29:5; M L. J. R. (X. S. ) C\\. 729; 5 Pliila. 408; 11 Jurist (X. S.) 518; :55 L. J. R. (X. S. ) Cli. 05; 1:5 W. R. 077: 12 L. T. R. (N. S.) 740; 11 H. of L. Cas. 54:j; ;50 L. J. R. (X. S.) Cli. 229; 30 How. Pr. 39; 2 Daly, 317; 00 Ponn. 100; L. R. 7 Cli. 025; 41 L. J. R. (X. S.) Ch. 087; 27 L. T. R. (N. S.) 225; 58 X. Y. 2:50; 5 Daly, 287; 59 X. Y. 335, Foot V. Lea, 13 Irish Eq. 484. Ford V. Foster, L. R. 7 Ch. Oil; S. C, 41 L. J. R. (N. S.) Ch. 082; S. C, 20 W. R. 318; S. C, 27 L. T. R. (X. S.) 219; rc- versing S. C, 20 W. R. 311; cital, 27 L. T. R. (X. S.) 57; 41 L. J. R. (N. S.) Ch. 755; L. R. 14 Eq. 549; L. R. 17 Eq. 37. Fowle ('. Spear, 7 Ponn. Law Jour. 170; cited, 3 Wall. Jr. 142. Franks v. Weaver, 10 Beav. 297; cited, L. R. 5 E. & L App. 518; 27 L. T. R. (X. S.) ;395; 42 L. J. R. (N. S.) Ch. 137. Fulton r. Sellers, 4 Brews. 42. Fullwood V. FuUwood, cited, L. R. 17 Eq. 40. Gardne v. Bailey, unreported. Genin r. Chadsey, cited, 2 Brews. 330. Gillis r. Hall, 2 Brews. 342, Gillis V. Hall, 8 Phila. 231; S. C, 3 Brews. 509; S. C, 1 Leg, Ga^. 124. Gillott i'. Esterbrook, 47 Barb. 455; cited, 44 Jlissouri, 177; 2 Brews. 325; 1 Dillon, 332; 1 Wilson, 03; 4 Am. L, T. R. (X. S.) 181; S, C, affirmed, 48 N. Y. 374; uj^irmatiun cited, 14 Abb. Pr, (N. S.) 211. Gillott V. Kettle, 3 Duor, 024. Casks Cuiticised. XXIX Eq. Tl!(> (;i(>n and Hall .Manufacturing Company v. Hall, G Laiis. 158- 8. ('., trirrmJ, 01 N. Y. 220. CUcndon Iron Company v. Uliler, 75 Pa. St. 407. Gicnny i\ Smith, 3 Dr. & Sm. 470; S. C, 11 Jurist (X. S.) 904; S. C.. X,-u- R. ;3G;); S. C, l!} L. T. R. (X. S.) 11; clta/, 20 f/ T. R. (X. S.) T.J7; 01 X. Y. 2:34. Godiliot r. Hazard, 4i) How. Pr. 5. Courard r. Trust, :) Hun, 027. Gout r. .Mcplon;lu. Beav. 0!); S. C, 1 Ciiitty's Gen. Pr. 72; rifrd. 2 Sand. C'li. r,i»4; 4 McLean, 518; 12 Mo. L. R. 224; 7'rosvv" 221); !) Bo.sw. 1!)<): l.j Irish Cli. 81; 2 Brews. 329; 24 La. An. <)9. Graham ;•. Plato, 40 C"al. 59:j. Grayr. Koch, 2 .Mich. X. P. 119. Green r. Rookc. W. X. 1872, p. 49. Green r. Sli" .herd, :]8 Scottish Jurist, .523. Guilhon i.k Lindo, 9 iJosw. 005. Hall T. Barrows, 9 Jurist (X. S.j 4S;l; S. C, 8 L. T. R. (N. S.) 227; S. C, 1 X. R. 54:5; 8. C, 11 \V. R. 525; 8. C, ;32 L. J. K. (N. S.) Ch. 548; d/nf, U Jurist (X. 8.) 058; 32 L. J. P.. (X. S.) Ch. 747; 11 W. R. 975; 8 L. T. R. (X. 8.) 850; 11 W R 9:!2; 1 H. & M. 284; 32 L. J. R. (X. S.j Ch. 725; 8 L. T. !{. (X'. 8.) 830; rcver.'si-J, 10 Jurist (N. 8.) 55; 8. C., 12 W. R. 322; 8. C, 33 L. J. R. (X. S.) Ch. 204; 8. C, 9 L. T R (X 8.) 501. Hall V. Barrows, 10 Jurist (X. 8.) 55; S. C, 12 W. R. 322; 8 C 33 L. J. R. (X. 8.) Ch. 204; S. C, 9 L. T. R. (X. 8.)~50l;" >Z tcr:^h,i/ 8. C, 9 Jurist (X. 8.) 483; R. C, 8 L T li (X 8 ) 227; S. C, 1 X. R. 543; 8. C, 11 W. R. 525; 8. C., 32 L. J. K. (X. 8.) Ch. 548; cited, 10 Jurist (X. 8.) 493; lo' L T r' (X. 8.) 00; 10 L. T. R. (X. 8.) 471; 33 L. J. R. (X. S. ) Ch." 409; 10 Jurist (N. S.j 504; 4 Xew R. 182; L. R. 1 Eq 504. 12 Juust (X. S.j 207; 35 L. J. R. (X. S.) Ch. 355; 14 W. r' 303; L. R. 2 Ch. 313; 4 Abb. Pr. (X. S.) 415; 30 How Pr 10; 55 I3arl). 107; Abb. Pr. (N. 8.) 279; 10 Abb. Pr. (X. 8 . :!j Ct. of 7 Bosw. 229 ; . (N. S.) Ch. ., Eng. L. R. J. R. (N. S. I. 18 Eq. 151 136. !; 1 Ilopkin-s ?r. 326 ; 4 E. (N. S.) 402; 193; 6 Ilun, :. (N. S.) Ch. ?r. 326; 4 E. bb. Pr. 155; T. & C. 551 ; Company, 37 Law T. R. 47; S. C, 720; S. C, 109; 2 Abb. 30; 9 Bosw. 4 Abb. Pr. Hsoiiri, 177; 35 Cal. 75; & C. 552; 264; S. C, f. Bosw. 354; cit.'rl, 28 How. Pr. 124; (i Abb. Pr. (N. S.) 2Tl); 55 Barb. 107; 2 Brews. 337; 12 Abb. Pr. (X. S.) 98; 01 N. Y. 234. Hudson V. Bennett, 14 L. T. ]{. (X. S.) 098. Hudson V. Osborne, 21 L. T. It. (X. S.) 380; S. C, 39 L. J. U. (X. S.) Cli. 79; eitcd, 01 N. Y. 233. Hunt V. :Mauicre, 34 Beav. 157; S. C, 11 L. T. R. (N. S.) 409. In-rani v. Stiff, 5 Jurist (X. S.) 947. Is;ia(!s c. Daly. 39 N. Y. Superior Ct. R. 511. Isaacson v. Tlionipson, 20 Wecivly R. 190. James v. James, L. R. 13 Eq. 421; S. C, 20 W. 11. 434; S. C, 41 L. J. R. (X. S.) Ch. 353; S. C, 20 L. T. R. (X. S.) 508. Joiinson r. Ilellely, 2 Do G. J. & S. 446; affu-mhuj S. C, ' Beav. 03. Jollie V. Jaqucs, 1 Blatch. C. C. 018; cited, 1 llohncs, 193. Jurjjjensen v. Alexander, 24 IIow. Pr. 209. Kelly r. llutton, L. R. 3 Ch. 703; S. C, 19 L. T. ft. (X. S.) 228; S. C, 10 W. R. 1182; taryiiHi decree below, 17 I.. T. R. (X. S.) 592; and sec S. C, 20 L. T. R. (X, S.) 201; cUid, 39 L. J. R. (X. S.) Ch. 58; 21 L. T. R. (X. S.)324; 18 AV. R. 34; 18 W. R. 183; 21 L. T. R. .(X. S.) 547. Kinahan v. Bolton, 15 Irish Ch. 75; cited, L. R. 7 Ch. 023; 41 L. J. R. (N. S.) Ch. 086; 27 L. T. R. (X. S.) 223; L. R. 18 E.i. 150; 22 W. R. 455; 30 L. T. R. (N. S.) 455. Kinney «. Allen, 4 Am. Law Times R. (N. S.) 258. Kinney v. Basch, unreported. Knott V. Morgan, 2 Keen, 213; cited, 8 Paige, 70; 7 Beav. 87; 3 Sand. Ch. 595; 11 Paige, 297; 2 Sand. Ch. 012; 17 L. J. R. (N. S.) Ch. 144; 4 MeLean, 518; 2 Sand. 004; 13 Ir. Eq. 490; 7 Cush. 333; 2 Abb. Pr. 324; 4 E. D. Smith, 391; 4 Abb. Pr. 159; 4 Phila. 141; 7 Bosw. 225; 12 Abb. Pr. 188; 21 How. Pr. 103; 1 H. & M. 201; 11 W. R. 1002; 1 H. & M. 450, 2 Abb. Pr. (X. S.J 402; 49 Barb. 595; 35 Cal. 82; 4 Abb. Pr. (X. S.) 415; 30 How. Pr. 10; 2 Brews. 310; 44 Missouri, 177; 2 Brews. 328; 12 Abb. Pr. (X. S.) 99; L. R. 17 Eq. 41. Laird v. Wilder, 9 Bush, 131. Lawson v. The Bank of London, 18 Com. Bench, 84; cited, 10 Jurist (X. S.) 494; 10 L. T. R. (N. S.) 00; L. R. 2 Ch. 313: L. R. 17 Eq. 39. Lazenby v. White, 19 W. R. 291; S. C, L. R. Ch. 89; cited 40 L. J. R. (X. S.) Ch. 570. Lazenby c. White, 41 L. J. R. (X. S.) Ch. 354. y "I XX xu Cases Cpjticised. L<'ii >\ Wolf, ir, Abb. Pr. (N. S.) 1; S. C, 1 T. & C. G2C; S. C, 4G How. Pr. b-7; mo,t!f;/i>,;/ H. ('., l:] Abb. Pr. (N. S. ) :)89. hc'iitlior Cloth Company (Limited) r. American Cloth Company (Limited), 3:3 L. J. P.. (N. S.) Ch. 199; S. C, 12 W. H. 2S9 ; 8. C, 9 L. T. R. (N. S.) 558; S. C, 10 Jurist (X. S.) 81 ; (/<_ iY/-«/;/i/ S. C, 11 W. 11. 9:^1 ; S. C, 1 H. & .\L 271; S. C., 152 L. J. K. (N. S.) Ch. 721; S. C, 8 L. T. R. (N. S.) 829); <•/'«/. 10 Jurist (X. S.) 494; 10 L. '!'. R. (X. S.) 60; 10 L. T. H. (N. S.) 471; ;]:! L. J. R. (X. S.) Ch. 409; 10 Jurist fX. S.) 504; 4 XewR. 182; 2Cin. 321; nffinncJ, 11 .Jurist (X. S.)5i:J; 8. C, 35 L. J. R. (X. 8.) Ch. 53; S. C, 13 W. R. 873; S. C, 12 L. L. T. R. (X. S.) 742; S. C, 11 11. of L. Cas. 523; S. C, G Xew R. 209; (itnrmalion cited, 2 Dr. it Sm. 479; Xew R. 303; 11 Jurist (X. S.) 904; 13 L. T. R. (X. S.) 13; L. R. 1 Ch. 198; 12 Jurist (X. S.) 217; 14 W. R. 359; 14 L. T. R. (X. S.) 310; 3G L. J. R. (X. S.) Ch. 229; 30 L. J. R. (X. S.) Ch. 505; 60 Pcnn. 100; 17 Weekly R. 1080; L. R. 8 Eq. 052; 18 W. R. 505; 22 L. T. R. (X. S.) 202; L. R. 7 Ch. 025; 41 L. J. R. (X. S.) Ch. 092; 27 L. T. R. (X. 8.) 225; L. R. 18 Eq. 151; 22 W. K. 455; 30 L. T. R. (X. S.) 269; 61 X. Y. 231; cnticintd m to vse of word ''patent,'' 40 L. J. R. (X. S.) Ch. 207. Leather Cloth Company (Limited) v. Ilirschfeld, 1 N. R. 551; cited, 1 n. & M. 271. Leather Cloth Company (Limited) v. Hirschfeld, 1 II. & 51. 295 ; S. C, 11 W. R. 933; S. C, tt/ter 13 L. T. R. (X. S.) 427; S. C, L. R. 1 Eq. 299. Lee V. Haley, 39 L. J. R. (X. S.) Ch. 284; S. C, 22 L. T. R. (X. S.) 251; S. C, 18 W. R. 242; S. C, L. R. 5 Ch. 155; aj)irmii,g S. C, 21 L. T. R. (X. S.) 546; S. C, 18 W. R. 181; cited, 10 Abb. Pr. (X. S.) 365; 45 N. Y. 299; 51 N. Y. 195; L. R. 17 Eq. 40; 49 How. Pr. 8. Lee ». Haley, 31 L. T. R. (X. S.) 540; S. C, 18 W. R. 181; affirmed, 39 L. J. R. (X. S.) Ch. 284; S. C, 22 L. T. R. (X. S.) 251; S. C, 18 W. R. 242; S. C, L. R. 5 Ch. 155; cited, 18 W. R. 564; 22 L. T. R. (X. S.) 261. Lemoine v, Gauton, 2 E. D. Smith, 343 ; cited, 2 Abb. Pr. (X. S. ) 402. Lewis V. Langdon, 7 Sim. 421; cited, 7 Abl). Pr. 203; dinnented from, 10 Abb. Pr. 209; 19 How. Pr. 17; Bosw. 303; cited, 3 Allen, 78; criticised, 5 Am. Law Reg. (X. S.) 592; cited, 2 Brews. 332. i 1 i Casks Cimticised. XXX 11! I.iibi'X'.^ Extrurt of ^Icat Company (Limited) v. Ilanbury, 17 L. T. U. (\. S.) 298. Lockwooil r. Hostwlok, 2 Daly, 521. London and Provinr-ial Law Assurance Society (". London and Provincial .loint Stocic Life Insurance Company, 11 Jurist, 9o8; 8. C., i: L. J. R. (N. S.) Ch. 37. Lord Byron r. Johnston, 2 Mer. 29; cited, 12 Jurist, 149; 17 L. J. I?.\x. S.) Ch. 144. Low )•. Hail. 47 N. Y. 104. Lowell Manufacturing Company v. Lamed, unrepm'ted. McAndrew v. Bassett, 10 Jurist (N. S.) 350; S. C, 33 L. J. 11. (N. S.) Ch. 501; S. C, 12 W. R. 777; S. C, 10 L. T. R. (N. S.) 442; affirmiHii »• C., 10 Jurist (X. S.)402; S. C, 10 L. T. R. (X. S.)'05; cited, L. R. 2 Ch. 314; 4 Abh. Pr. (X. S.) 415; KO How. Pr. 10; 13 Wallace, 320; L. R. 17 Eq. 30; 2? L. T. R. rX. S.) 395; 42 L. J. R. (X. S.) Cl». 137; 43 L. J. R. (N. S. ) Ch. 05; 29 L. T. R. (N. S.) 449; 22 W. R. 54. McCardel v. Peck, 28 How. Pr. 120; cited. 4 Abb. Pr. (N. S.) 50; 7 Robt. 347; G Abb. Pr. (N. S.)279; 55 Barb. 167; 4 Am. Law T. R. (X. S.) 182. ^McCartney v. Garnhart, 45 Missouri (4 Post) 593. McGowan Bros. Pump and Machine Co. v. McGowan, 2 Cin. 313. Marsh v. Billings, 7 Cush. 322; cited, Robt. 538; 4 Abb. Pr, (X. S.) 415; 30 How. Pr, 10; 2 Brews. 310; 44 Missouri, 177; 2 Brews. 329; 01 X. Y. 233. Marsh i\ Warren, 4 Am. L. T. R. (N. S.) 126. 3Iarshall v. Ross, 17 Weekly R. 1080; S. C, 21 L. T. R, (X. S.) 200; S. C, L. R. 8 Eq.'651 ; S. C, 39 L. J. R. (N. S.) Ch. Matsell ». Flanagan, 2 Abb, Pr. (X. S.) 459; cited, 4 Abb. Pr, (X. S.) 415; 36 How. Pr. 10; 11 Abb. Pr. (X. S,) 187; 61 Barb. 430; 15 Abb. Pr. (X. S.) 4; 1 T. & C. 629; 46 How. Pr, 159; 49 How. Pr. 9; 51 How. Pr. 403, Maxwell v. Hogg, L. R. 2 Ch. 307; S. C, 30 L. J. R. (X. S.) Ch. 433; cited, L. R. 7 Eq. 493; 18 W. R. 34. Lire Meikle's Trademark, 24 W. R. 1067; S. C, 46 L. J. R. (X, S.) Ch. 17. Meneely v. Meneely, 1 Hun, 367; 8, C, 3 T. & C. 540; S, C, nffirmed, 02 X, Y. 427; cited, 52 How. Pr. 219. Meriden Britannia Company v. Parker, 39 Conn. 450; cited, 63 N, Y, 433. iii XXXIV Casks Cijiticised. Merrimack Manufacturiniif (Jompauy i". Ganu'r, 3 AI)t). Pr. "tS; 8. C, 4 K. D. Smith, ;}87; cital, 18 How. Pr. (5!); 28 1 *)\v. Pr. 207; r,7 I};irl). olJo; a5 Cal. 59; crlticUed, 3 IJrows. ;513. MeserolL- /•. Tynl)er«,'. 4 Abb. Pr. (N. S.) 410; S. C, JJli How. Pr. 14; cited, 5 Abb. Pr. (N. S.) 219; ;{ Daly, M; 11 Abb. Pr. (N. S.) 187; 01 Barb. 430; 15 Abb. Pr. f'A. S.) 4; 1 T. & C. 029; 40 How. Pr. 159: 49 How. Pr. 9. Millin-^ton v. Fo.x, ;} Mylne & C. 338; citeb. Pr. 324: 4 K. I). Smiiii. M ; 1 Al.: . I'r. l."..".; 1;; How. I'r. -.iHH; 4 Al.lt. Hr. l.*,7; ;j .Iiiiot (N. S. ) iCiO; :! K. iV: .). 4v!!»; \2 .M«>. L. U. '^04; IS How. Pr. (SS; i 15o-,\v. •,'•,'•:; \-^ Al)i). Pr. •J;!!t; !) Hosw. ll)i»: !» Jurist (X. S. ) :iO:{; 11 W. H. il.itj ; 1 II. Si M. 2,s:»; ii'J L. .1. P. (\. S.) Ch. T-.'.V. H 1.. T. P. (N. S.) S:i''; ;i:i P. .1. P. l.\. S. ) Ch. 200; 13 W. P. 2S!); (( L. T. P. ( N. !S. ) 5.VJ; 10 .lurist (N. S. ) 81; 5 Pliiiii. 4(m; 28 How. Pr. 207; 11 .lurist (\. «.) r)17; :!.". L. J. P. (N. S.) Ch. 02; P! W. P 870; 12 L. T. P. (N. S. ) 740; 11 11. of L. Oils. 5;i8; 2 Dr. k Sm. 41!»; 11 Jurist (N. S. i 1)04; P) L. T. P. (N. S.) Pp 5 Am. Law Pej,'. (N. S.) .")!>7; :;0 L. J. P. (X. S.) Ch. 220; 4!l Barb. .jJtO; 57 Purb. o;].-); ', Ablj. Pr. (X. S.) 220; 44 Mi.ssouri, 177; .! Daly. .'■)4 ; IS W. P. 1S;5; 21 P. T. P. (X. S.) .■)47; 22 L. T. U. (X. S.) 202; 2 Prews. ;];M ; 54 PI. 400; P. P. 7 Ch. 02.". ; 41 L. ',. P. (N. S.) Ch. 087; 27 L. T. R. (N. S.) 225; 3 T. & C. 552; 59 N. Y. 335; 01 X. Y. 331; IPin, 108; 45 P. J. P. 7; 7 Bosw. 229; 9 Bosw. 199; 5 Phihi. 405; 5 Am. Law Reg. (X. S.) 594; 47 Barl). 403; 1 Abb. Ct. of App. Dee. 370; 5 Abb. Pr. (X. S.) 217; 3 Trans. App. 109; 3 Keyes, 590; 49 Barb. 591; 57 Barb. 534; 35 Cal. 04; 44 Missouri, 170; 3 Brews. 317; 7 Pliila. 255; 2 Mich. X. P. 034; 54 111. 405; 6 Laos. 100; 13 Abb. Pr. (X. S.)401; 24 La. An. 99; 45 Cal. 481 ; 59 X. Y. 335. Stone i\ Carlan, 13 Mo. L. R. 300; cited, 7 Cush. 333; 7 Bosw. 230; Robt. 538; 4 Abb. Pr. 415; 30 How. Pr. 10. Stonebreaker v. Stonebreaker, 33 Md. 253; cited, 3 Brews. 333; 1 Hun, 374 ; 3 T. & C. 553. Swift ('. Dey, 4 Robt. Oil. Sykes v. Sykes, 3 B. & C. 541; S. C, 5 Dowl. & Ryl. 392; cited, 19 Pick. 210; 2 Sand. Ch. 595; 4 McLean, 518; 13 Ir. Eq. 480; 18 Jurist, 9; 23 Eng. L. & Eq. 54; 11 Hare, 84; 34 L. J. R. (X. S.) Ch. 034; 1 K. & J. 515; 2 K. & J. 128; 3 K. & J. 431; 28 L. J. R. (X. S.) Ch. 01; 7 Bosw. 225; L. R. 1 Eq. 302; 50 Barb. 242; 2 Brews. 325; 18 W. R. 943; 2 Brews. 349; L. R. 7 Ch. 030; 41 L. J. R. {X. S.) Ch. CCC; 27 L. T. R. (X. S.) 327; 1 Hun, 372; 3 T. & C. 550; 22 W. R. 700; 02 X. Y. 433; 45 L. J. R. (X. S.) Ch. 498; 34 L. T. R. (N. S.) 805. Tallcott V. Moore, 13 X. Y. Supreme Ct. (0 Hun) 100. I lii. i. xl Cases Criticised. Taylor v. Carpenter, 11 Paige, 292; S. C, 2 Sand. Cli. G03; riled, 2 Sand. Cli. 595; S. C, ainnn&l, 2 Sand. (Jli. 012; cited, 2 Sand. Ch. ()2."); 2 Uarb. Cli. 101; 17 Barb. 009; 2 Abb. Pr. 1522; 3 niatch. 0. C. 448; :;;) Barb. 009; 2 Bosw. 1; 12 Mo. L. W. 223; 4 Piiilu. 141 : 7 Bosw. 230; 9 Bosw. 11)8; 47 Barb. 403; 1 Abb. Ct. of App. Dec. 270; 5 Abb. Pr. (N. S.) 217; 3 Trans. App. 109; 3 Keyes, 590; 49 Barb. 595; 30 How. Pr. 30; 2 Daly, 315; 35 Cal. 75; Deady, 010; 13 Abb. Pr. (N. S.) 401; 50 Missouri, 134; 49 How. Pr. 7. Taylor i\ Carpenter, 3 Story, 458; cited, 2 Sand. Cli. 596; 4 Phlla. 141; 7 Bosw. 230; 29 Cal. 290; 49 Barb. 590; 44 Missouri, 175. Taylor ;,'. Carpentec. 2 Wood. & M. 1; cited, 44 Missouri, 175; 1 Dillon, 332; 50 Missou;*, 134; 4 Am. Law T. R (N. S.) 181. Taylor r. Gillies, 59 N. Y. 331; atjirming S. C, 5 Daly, 285. Taylor >\ Taylor, 23 Eng. L. & Y.(\. 281; S. C, 23 L. J. R. (N S.) Cli. 255; cited, 49 Barb. 590; 3 T. & C. 552. Tlio'iison )•. Winclu'ster, 19 Pick. 214; cited, 7 Bosw. 229; 5 Am. Law Keg. (N. S.) 591; 54 111. 400. Toiige V. Ward, 21 L. T. K. (X. S.) 480. Town r. Stetson, 5 Abb. Pr. (X. S.) 218; affirmed, 3 Daly, 53. Tucker r. Tnrpin, 2 J. & IL 139; S. C, 30 L. J. R. (N. S.) Ch. 495; S. C, 7 .Jurist N. S. 073; S. C, 4 L. T. R. (N. S.) 037; cited, 11 W. R. 740; 11 AV. R. 933; 32 L. .J. R. i.N. S.) Ch. 727; 8 L. T. R. (N. S.) 831. The Tuoker .V.aninncturinf' Company v. Boyington, 9 Oil. Gaz. (U. S. Pat. Oilieij '. Crowley, 3 lUateh. C. C. 440; cital, 4 Abb. Pr. (X. S.) 415; 30 How. Pr. 10; 1 Dillon, 33'^; (il X. Y. 235; 49 How. Pr. 7. Webster r. Webster, :'> Swuiist. 490; cited, 1 N. R. 545; 9 Jurist (N. S. ) 4S5; 8 L. T. H. (X. S. ) 22S; 32 L. J. R. (X. S.) Ch. 551; 11 W. R. 523; 33 L. .J. ii. (X- S.J Ch. 200; 12 W. R. Casks Ckiticiskd, xli T.IZ. L. •ist R. 280; 1) L. T. R. (X. S.) ."i.-,!); 10 Jurist (N. S.) 81 ; 2 Brows. Wt'cil )' roterson, IC Abl>. Pr. (X. S.) 1T8. Welch ?•. Knott, -1 K. cV J. 747; cife•-)'.); 10 Jurist (X. h^. ) 81. Weston r. Ketchiun, :]!) Suiicrior Ct. R. 54; scci S. C, ~)\ How. Rr. 4r),-). The Wheeler and Wilson Miinuf.apturing (Jompiin}' v. Shakespenr, 30 L. J. R. (X'. ><. ) Cli. o(>; dlMipprocnf, 45 Seottisli Jurist, 20(». Wilder r. Wilder, cihular^al cited, 54 Rl. 404; S. C, 'iffinned, L. R. 5 E. & I. App. 508; S. C, 42 L. J. Cli. (X. S.) 130; S. C, 27 L. T. R. (X. S.) 303; (ijUvmnfum cited, 27 L. T. R. (X. S.) 55; 41 L. J. R. (X. S.) Ch. 750; L. R. 14 Eq. 553; 51 X. Y. 197; 15 Abb. Pr. (N. S.) 4; 1 T. & C. 029; 40 How Pr. I h xlii Casks Criticised. If59; L. R. IT Eq. ;]7; 45 Scottish Jurist, 20G; L. R, 18 Eq. 151; 2i \V. 11. 455; ;50 L. T. R. (N. S.) 390; 75 Pa. St. 470; 24 W. R. 1028; ?>i L. T. R. (N. S.) 865. WothtTspoon r. Gray, 36 Scottish Jurist, 24. Young V. Macrae, 9 Jurist (N. S.) 323; cited, 1 H. & M. 454; 2 N. R. 572; 15 Irish Ch. 81; 13 W. R. 306. DIGEST OF TRADE:\rARK DECISIONS.* n GEXEHAL PPJXCIPLES AXT) DEFIXITIONS. >1 1 . Tlio ground on which tlie court profocts rrad'-'ruarks is, that it will not permit a party to sell his own g'oods as the goods of another. A party will not therefore be allowed to use names, marks, letters or other iiidlcitB by which he may pass oil: his own goods to purchasers as the manulacture of {mother person. 184:2, Rolls Coiirt Perry r. True- litt. (5 Braran, 0(5. g 2. What is proper to be done in trademark cases, must, more or less, depend upon the circum- stances which attend them. The court must deal with each case according to the irature of its pecu- liar circumstances. The principle in these cases is, that no man has a right to dress himself in colors, oiado])tand bear symbols, to v/hichhehas no pecu- liar ( )r excl usi ve right, and thereby personate anotlu >r [KM'son, for the purpose of inducing the i)ublic to suppose, either that he is that other person, or that he is connected with and selling the manufacture of siu.'h other person, while he is really selling his own. It is perfectly manifest, that to do these things is to commit a fraud, and a very gross fraud, li Uolls Courts Croft ti. Day, 7 Beamin^ 84. * The Frouch decisions arc collated at p. 375 et scq. X LI] •i^' 1^ I Geneual PuixcirLKs AND Blfixitioxs. § ;}. A insm is iiof to sell the goods or mjiniifnctiu'es of B iindci- the .show or ju'eteiise that they are the g-oods or inauul'actiuvs of A, who by superi(H' skill or industry Jias ('stahlishesl the reputation of his artichrs in the market. The law will penuit no [)er- 80U to praetiee ii deception of that kind, or to use th(? means which contribute to effect it. lie lias no right and he will not be allowed, to use the names, letters, marks or other symbols by which he m:!y palm olF np;)n buyers as the inanufactui'es of another, t\u) article he is selling, and thei*eby at- tract to himself the patronage that without such d'V'eptive useot'sncli names, &c., would haveenui'ed ID ''he benefit of that other person who iii'st got up, oi was alone accustomed to use such names, marks, letters or symbols. 1845, Vice Chancellors a xdfoiii), N. Y., Coats r. llolbrook, 2 Sand/. C//. 580 ; S. C, 3 iT. V. L('(j. Oh.s. 404. 5^ 4. The right to a trademark does not parta.lve of the nature and character of a patent or copyriglit. 1840, Si»E\('i:n, Senator, JSf. Y. Court of I'lrrors^ Taylor i\ Carpenter., 2 Samlf. Ok. 003; S. C, 11 F(don the ground thai the complainant has a valuable in- terest in tliefjood will of Jus trade or business, and that luninu,' ajipropi'iated to himself a particular label, or siuii, or ti'adeniai'k. indicating!; to those who wish to ,uive him their patronage that the arti- cle is n!anufa<'tured or sold by him, or by Ids au- thority, oi- that he cari'ies on business at a particu- lar i)lnce, he is entitled to protection ag-ainst a de- fendant who attemitts to pirate upon the good will of the complainant's friends or customei's, or the patrons of his trad<^ oi' business, I>y sailing under liis Hag withoid his authority or consent. 1848, K. Y. (JiDirt of Appcal^y l^artridge v\ Menck, 2 Bdrh, Ch. 101 ; S. C, 2 Sand/, Ck. 022; 1 IJow. App. Cases, TmS. § 8. In commercial dealings the utmost good faith should be observed, and no one is pernntted to go into the market with the deception of labels assim- ilated to those of another, so as to prolit by the ingenuity, good faith or established rejnitation of ^1; 'if GKNEUAL PllLNClPLKS AM> DlCI'IMTlOXS. Ilic hUtcr. 1841), U. K Clrviu! ('our/, fnl(». vj 0. U' llu>- iirliclo sold ))y the (IcrciidMiU is iiof, only d lias an untpiestion- al)le ri,ii,ht to distinguish the goods tliat he manu- IVictures or sells by a peculiar mark or devic(s in or- d(>r that thev mav be known as his in the market lor which he intends them, and that he may thus secui'o the prohts that their superior I'epnte, as Ids. mav b(^ the means of gaining. His trademark is an assui'nncc; to the public of the quality of his goods and a pledge of Ids own integrity in their manufacture and sale. To protect him tliei-efoi-e in the e>:clusive nse of the mark that he approprhites, is not only the evident duty of a court as an act of justice, but the interests of the public, as Avell as of the individual, retpiire that the necessary pro- tection shall be given. It is a mistake to supi)ose that this necessary protection can operate as an in- jurious restraint upon the freedom of trade. Its direct tendency is to produce and encourage a com- l^etition, by which the interests of the i^ublic are ■I t GkNKIJAI. I^IMMIIM.KS .\M> I); 'Vl N I II' >.\;. ,"i 11 lis [)r(>- Dosc in- Its loiii- ave ^•,iii<> lo I'i' j)i'()iii()tf'(l ; :i (MUDjM'lilioii l!i;il si i!nii!;it«'s «'tV(»il ;in(l l(';iils lo ('xc<'ll<'iic<', iVo.;) I lie cciliiiiit \- ol' ail a'li'-iiiPtc ivward. W'Ik'Ii wf coiisidci- ilic iialuii' of I !;c \vI'it y j'or ihc iiitiTpositioiior a, coiirl of ('(jiiily h'Cdiacs jiKirc ai>j)air'i)t. Ih; avIio allixcs lo his own ;roo<|s an iinitalioii oC I In; ori'j;-iiial trademark, I'y wliicii fliosc of aiiotlxM' art' (lisliii^aiishcd wnd kiiowii. st'cks, !iy (h'cciviii,!;- tlic ])iil)li(', to iiitcrcc])! and di- veil to liisown ust» tlie ])i'olits to Aviiicli the superior skill and ent('ri)i'ise of llif^ other lind uiveii him a prioi- and exclusive titlt^ He f//f/r(tr()j-.s\ hy a I'aisc repit'sentalion, to <^ire<,'t a. dishoiiorahle ]>iiij)(»se. lie commits a inu\d upon the |)ul>Iie and ii])oa th<' t)Mit' owner of the trath'mai'k. The ]»!irehase!' has im))ose(l ni)on him an article tliat he never meant to buy, and the owjiei" is robbed oT the.('riii(s of the re[)iitation t hat he has siujcessl'iilly hi!)o!'e(l I o earn. In such a <'ase there is a fraud cou[y an injanctio]i, would violate' the ))riiici])]es upon which a laru'e portion of its jiiiis- dicrion is iouiided, ami abjure the exfMcise of it-( most important Junctions, the sup])i'ession of fraud and th(i ])revention of a mischief that ofheiwist; might prove to be irre])ai'able. 1849, iV. )'. S///j(- rior CL »S' T., Duew, Ch, J., Anioskeag Maniifac- turing Co. o. Spear, *2 S'a/u?/. ^njH'fior CI. r»',)S). 5^ 11 . In all cases whei-o a tradeniaik is iniitale(l the essence of the wrong consists in the sale of 1ii<» ii'oods of one mamd'acturer or vender of thos(» of •anotlier : and it is only when this false I'epi'eseida- tion is directly or indirectly made, and only t(^ the extent in which it is made, that th(? piirty wlio ap- I ::i; 6 GeNEIIAL PuIXCIPLES ASD DEtrXITKiXS. . i peals to tlic justice of the court can litivc a title to ivlicl'. 184'.), Amoskoa;:^' Maiuiractuiiuu' Co, v. Si)t'ar, f7t/cics t»t' i)n>i)(.'i'ty which the law recou'ui/cs aud ju'otects ; and avIu-i'in as ji monnis of ext(Mnliuu' his reputa(i(»u and ^iiidiuu- [>urclia- sei's. he allixcs some mark or sAuibol to (lcsii.':naU-' that the article is of his niauufactiire, he is injured bv the sale of nn article uianufaciui'ed bvan r. Crau- ton, 2 E. I). t^uiilJt, 343. >j \?y. The law of trademarks is of I'ecent origin, and may be comprehended in the i>roix>sition that the dealer has a jn'operty in his trademarA. The ownershi]> is allowed to liim that he may have the exclusive benelit of the reputaticm which his skill has given to artk'lesmade by him, and that no othei' person may be able to sell to the public, as his, that which is not his. ia")7, N. Y. Supreme (Jt. (J. T., Clark v. Clark, 2o Bavh. 7G. § 14. A x)ers(>n who has ai>prop>riated to himself a particular label, sign, or trademark, indicating that a certain article is made or sold by hiiu or his authority, and with Avhich htbel or tmdemark the article has become identified, is entitled to the pi'o- tection ol' a court of equity, which Avill enjoin any one who attempts to pirate upon the good will of his friends or customers by using such label, sign. Gexkral riiiN( ii'lk^ an'I) Di:rixiTFON's. I: tlio pl'O- aiiy II oi" ortrailfMimi-k wirlKuit his jiiUhoiity. IS'U). 77/ /7. ('L of Cam. I'/xis. /' i)i'o|>pei'ty exists in the use of a inuleinaik. which, at ]nesent, is sndicient to sup- port an action or to maintain an injunction. It is true thiit property in a .uood will is ol' a very evnn- <'sc('nt charactei-, but it is I'recpiently one of urent vidue. It is cleai', IVoni a variety of s, that a luiuinfactui-er wlio lias ori,ii,'inally stiiuiiied his uoods with a iKii'licular bnind has a ])i'o])erty in his mark at law and can sustain an a<'tion lor dnni- aii'es I'oi- the use of it by another. It is also cleiir that courts of equity will restiain the use of it )>y another pei'son. I8(;;J, Master of the IJolls, Ilnll r. IJarrows. 8 L. T. K. S. 227; 8. C, 11 ITrr/.V// A\ .Vi.') ; S. (;.. I) Jnn\stX. S. 48:5 ; S. C, '.V2 Liui^ ./. ( N. S.h ell. r)48 ; S. C, 1 Kern R. r)4:j ; 8. C. on appeal, 1) L. T. X N. noi, 12 ^Y^'i'kl>^ U H22, 10 J/tr/.s-t X. A. :>:>, :);5 /auo ./. (JV. >s.), ch. 204. >J 1(5. There was no evidenije that the mark. wld(di consisted of the initials of a iirm, suirounded by a crown, was ever current or accepted in the maiket as a re[>i'esentation of the persons who manufac- tured, or of the xdace of manufacture, or otherwise than as a ))i'and of quality ; there Avas nothinu" to show that the ii-on marked with the initials ever had a leputntion in the marked Ix'canse it was believed to be tlie actual manufacture of those who used the mark. Ileld, that said mark was a ti'a de- mark, prox)erly so-called, /. c, a brand wliich lias rv'putation and curi-ency in the market as a well- known sign of quality, andwoidd be protected l)y Mil (Ikxkkal Prj.\tii'Li;.s axd DEFiMxroxs. iniiiiictioii. 1804, Loi'd Ch. WKsTr.ruv. TT:ill r 1 JMrntws, 10./////.V/ .V. .v. .M 1 S. (.'., ]2 /•/// /I y.r/^r.A /i'. uV. X.I C/i. '204. jJ 17. Tlic [H'inciples appiicanjc to tnulomai'kcMsc'ii arc shortly ami clraiiy laid down by Lmd Kixos- i)o\v\ ill the case of tilt' American Cloth Coiii[)any where he says, ''TIh' fiiiidaniental ride is tliat one man has no riL;'ht to put o!t' his ^oods Cor salens the pxMJs oi'a rival trader, and liecannot therefore, in the lanuiume of J^ord Laxgoali:, in the case ol" Plieve that the goods Avhicli lie is selling are the maniii'actnre of anotlier perse " The same rule would a[)ply to tradesmen not _• man- ufacturers. 180."), Vice Ch, Kind'-: us lev, CJlenny /;. Smith, 2 Dr. and Sm-. 470; S. C, 11 Jt/ri.s-l, xY! K 1)04 ; S. C, 18 L. T. li. N. K 11 ; S. C, i\>/r R. ;}0:i § 18. The light of property in ti tradiMiiark is not limited, in its enjoynunit, ])y tevritoi-ial bounds, but may be asserted and maintained Avliej'ever the com- mon law all'ords ivmedies for wrongs, snl)ject only to such statutory regulations as mav inoperlv be made <'oncerning the use and enjojnient of other property. 1805, i-^iipreme CI. of CaliJ'ornia^ Dev linger r. Plate, 29 Cal. 292. i^ 19. A manufacturer lias no right to the exclu- sive use of II particular colored pjiper or kind of XKiper, for covering or enclosing his goods in any particular form. 1807, N. Y. i by one man, under the belief that they are the prijductioii of another. 1808, S/fp/-( //?(' CL of Uoini., Boardman c. Meriden BritaniaCo., ;Jo Conn. 402. ,^ "21. A trach^miiik isproi)erty, and the proprie- tor thereof should be fully protected in its enjoy- ment and in all the benelits and advantages which it confers. 1808, X. Y. CL of Com. Fleas, G. 7'., Curtis r. Bryan, '2 l>((h/, ?A2 ; S. C, IJG How. Pr. '.l\i. i 22. A trademark is a name, symbol, liguie, let- ter, form or device, adopted and used by a manu- facturer or merchant to designate the goods he man- ufactures or sells and to distinguish them i'roni the goods of another. 1800, PJiila. Ct. (f Com. Pleas, Ferguson t\ Davol Mills, 7 Phlla.^o?^', S. C, 2 Brcwsltr, :U4. ;^ 23. The right to the use of a trademark is not an al)stract right to wliicli title can l)e accpiired. It is only when sncli use is attached to or connected with some i)articnlar thing to which it is affixed ay a designation of individual right in particnlar prop- erty, tiiai the law v.ill interpose to restrain its nse by another. I hid. And see ^§ 12G, 127, 148, 149, lo2\ \ % ■',■11 ■ 10 Gexekal PrjxciPLEs AND Befinitioxs. §24. A trademark must be so clear ami well de- iiued as to give notice to others, and must not })e deviated iVoiu at the suggestion of whim or caprice. It niiist he attached to tlie article manufactured, in such a way as to be ]-easonably durable and visible. The mere declaiation of a person, however long and however extensively i)u])]ished, that lie claims l)roi)erty in a word, as his trademark, can not even tend to make it Ids property. It is the actual line of the trademark, affixed to the mei-chandise of the nianufacturei", and this alone, which can impivrt to it the element of ]»roi)erly. ►>(>, wliere a manufac- turer of plows, at Moline, Illinois, claimed as a trademark the words "Moline Plow,'' wliich he used in his circulars, price-lists, and advertisements, but did not place them upon the articles ma.nufac- tured, it was Itcld^ this recpnsite lu'ing absent, he had no such exclusive right to their use as would prevent otiier manufactui-ers of ])l(nvs at that i)lace from employing them in the same mode. ]87(>, *SV- preme Ct. of lUlnois, Candee i\ Deere, o4 JUiiiois^ 4139. vj 2,'). The name and address oC the manufacturer, coml)ined, may constitute a trademai-k whicli will entitle him who adopts it to protecticm in its exclu- sive use. but neither the name nor the address, singly, will be sufficient for protection — both must be used. I hid. §20. There are two rules which are not to be overlooked. No one can claim luotection fcr the exclusive use of a tjademark or trade-name, which Avoidd practically give him a monoi)oly in the sale of any goods other than those ])i'odiiced or made by idmseir. It h(3 coidd, the public would be in- jured rather than protec^ted, for competition woidd General Piuxciples and Definttioxs. II i)e destroyed. Nor can a generic name, or a name merely de.scri[)tive of an article <>i" trade, ol" ils qualities, iiiiiiedients, or chaiacteristics, be eia- ploy^'d as a trademark, and tiie exclnsive nse of it be entitled to lepd pi'olection. 1871, U. K >^u- j)r- princii>le ol' the law ol" Iriule- miu-k is. that the honest, skillful, and industrious manurnciurer or enterpiisiiij^ luerchant wlio has produced or brou.u'ht into the niarket an article of use or coiisum[)iion, that has found I'avoi- with tlio ])ublic. and who, by aflixing to it M>menamc, mark, device or symbol, which serves to distinuuish il r/.v ///.v, and to distinguish it from all others, has fur- nished his individual guaianly and assurance of the quality and integrity of the manufacture, shall receive the iirst reward of his Inmesty, skill, indus- try or enterprise ; and shall in no manner and to no extent be dei)iived of the sauK^ by anothei", who. to that end, a})propriate8 and api)lies to his ])ro ductions the ,SYU so that tln^ public aiv. or mai/ h<\ deceived or nusletl into the purchase o/' //W- />/v>r///r7/o//.s' (if tJic oiH\ sui)posing them to be those of the oilier. 1872, iy ii manufacturer or merchant, hi order to designate the goo'is that he manuiac- hn-es or sells, and distin<';uish them I'roni those manufactured or sold by .mother, to the end that rhev niav be knoAvn in the market as his, and thus enable hi in to secure such proiits as result iVoni a rc] tula; ion for superior skill, industiy, or enter- prise It may be any sign, mark, syml)ol, word, or words which others have not an ecpial right to em- ploy for the same purpose. 1872, Eakl, C, Con/- mi.^.slon of Appeals, N. Y., Newman v. Alvord, iA N. Y. 180. 5j 32. Property in the use of a trademai'k has very little analogy to that which exists in copy rights or patents for inventions. In all cases where rights to the exclusive use of a trademark are in- vaded, the essence of the wrong consists in the sale of rhe goods of one manufacturer or vendor as ol' those of another. It is (mly when this false representa- tion is directly or indirectly made, that a i)ai'ty who api^eals to a court of equity can have relief. Words or devices may be adopted as trademai'lxs, Avliich are not oiiginal inventions of the one who adopts and uses them. AVoids in common use may be ado]>tc(h if, at the time of adoption, they Avere not used to desiu-nate the same or similar articles of pr (H Incti oil. A a'enenc name, or a name mru'e Iv descriptive of an article of trade, or its qualities, or ingredients, cannot be adopted as a trademarlv, 80 as to give a right t subje(;ts A. ill 14 GeXEPvAL PllIXCIPLES AXD DEFINITIONS. of exclusive use, for, from the nature of tlie case, any otlier producer may employ, with equal truth and the same right, the same marks for like products. Geographical names, which point out only the place of i)roduction, cannot be appropri- ated exclusively, so as to prevent others from using them and selling articles produced in the districts the\' describe under these appellations. 1872, U. S. Circuit Ct. Mc, Shkpley, J., in Osgood v. Allen, 1 Ifolmc.-i, 18.-); S. C, G Am. L. T. 20. ^ 5];?. A label, at common law, is not a trade- mark, although a manufacturer is entitled to the exclusive use of one adopted ])y him to distinguish his goods. 1878, Siipreme Ct. of Cat., Burke v. Cassin, 4.') Cat. 4G7. § tM. A party who, while he has avoided liabil- ity for the iirtringement of another's trademark, vet has adoi)ted a course calculated to secure a portion of the good will of the other's business, will not be I'egarded with favor by a court of equity. 1874, N. Y. Court of App., \Volfe v. Burke, o6 N. Y. 115. § i]t). Every manufacturer has the unquestion- able I'ight to distinguish the goods that he manu- factures and sells by a peculiar mark or device, so that they may be known as his in the market, and he may thus secure the pi'ofits which their superior reputation, as his, may be the means of gaining. If, th(,^refore, the inventor, or manirfacturer adopts a label, symbol or trademark, to distinguish the article he thus manufactui'es and sells, no other person has the right to adopt his label or ti'ade- niarlv, or one so like his as to induce the pub- lic to fuppose the article to which it is aflixed is the manufacture of the inventor. This rule is m Gexekal PiiixciPLEs AND PKFixrTroxs;. 1,"i 6 i\^. ixroiiiHlod upon ;i two-fold reason : 1. Tluif tlio ])iil)- Vic iiiiiv 1)(^ pi'oU'cted Trom being imposed upon l)y a spiuioiis or inferior aitiole ; and, 2. Tlud the in- ventor nniy have the exclusive benelit ol' ih(^ I'epu- tation wliic'li liis skill has given to the article nuuh) by him. When one. tlierefore, adopts a symbol oi- device, and aflixes it to the goods lie thus manufac- tures and i)Uts upon the market, th(^ lau- will thi-ow its pi'otection around the trademark thus affixed, as his i)ro])!'rty and a thing of value. 187'), S//- pre lite Cl. of North CaroHna, Blackwell r.Wriglit, 71} .T. (\ :]io. >^ :!(), The intei'ference of courts of (^piity, in- stead of b(nng foun(h_'d upon the theory of ])rot(M'- tion to tiieowner of trademarks, is now sup])orted mainly to prevent frauds upon the public. li" th(! use of any wcu'ds, numerals, or symbols, is adopted for the pnrposoof defrauding the public, the courts Vv-ill ir.terfere to protect the publi<; from such fra.ud- nlent intent, even though the person asking t!ie in- tervention of the court may not have the exclusive right to tlu^ use of these words, numerals oi* syin- l)ols. This doctrine is fidly supjjorted by tin; latest English cases of Lee r. Haley, .1 (^ Ir;/. App, CV/.v. [Ldw 11.) ir>."5, and Wotherspoon /". Cui'ri(> in the IIou.He 0'' Lords, f) Eiif/. & I. App. {Lnir J}.) k)()8, and also in th<; cuse of Newman r. Alvord, Td New Yorh\ ISO. 1877, N. Y. Supreme CI. K 7'., Vax BituxT, J., Kinney t\ Biiscli, unreported. See also Tkademaiik. IfI (if 16 Abandoxmen. li !S ABANDONMENT. ^ 41. A invented a medicine to wliicli he ^ave the name of " Chlorodyne," a name invented by liim.self as a fancy title, and not previously k?io\vn in tlie medical professsion. B advertised for sale a medicine which lie called "•Chlorodyne" and sold as B's Chlorodyne. A tiled a bill against B, but did not press it to a hearino:, and obtained an order dis- missing it with costs. B subsequently advertised his medicine as "Original Chlorodyne,"' asserting that he was the iirst inventor. Upon motion for in- junction in a second bill liled by A to restrain B from the use of the term Original Chlorodyne, luicl^ that altliougli A by dismissing his former suit, liad abandoned all right to the exclusive use of the term Chlorodyne, he would have been entitled to restrain B from selling his medicine as Oriuinal Chlorodvne if he had adduced evidence that any one had l)een misled by the title into buying B's instead of A's medicine. 18(54, Yiee^Ch. AVood's (7/., Brov/ne V. Freeman, 12 M'cc/d?/ IL 305; and see S. C, 4 iVeic, 470. § 45, The use of some Avord, letter or character of a trademark, by dilTerent i^arties, will not work an al)andonment by him in Avliom its right of use and title is vested. 1871, Influnwpoli.s Stiperior CL S. T., Sold V. Geisendorf, 1 Wilson {Lid.) 00. See also Acquiescexce ; LxVCIIES ; Loiitatiox ; License. Abatement — Acquiescence. IT ABATEMENT. ^ no. In n tradernark case the administratrix of the defendant after issue and before trial moved tliat tlie action l)e continued against lierself as administi-a- trix. but as she failed to show that the defendant liad .ncquired any rights in the litigation, or tliat any prejudice would result to the defendant's es- tate by not continuing the action, or that any ben- eht would i-esult from having the motion granted, Ih'hl, \\\\\X no case was shown calling for the exer- cise of any discretionary i)ower on the part (^f the court to grant the motion. 187G, N. Y. i^upcrior Cf. (r. T.[ Republic of Peru ?). Reeves, 40 N. F. Superior Ct. (8 J. & >9.) 316. W ne ^. Circuit CL Mans., Taylor «. Carpenter, 1} >^!or or imitation of his trademark by another maj', per- liaps, b(' justly inferred IVom his knowledge and si- lence ; bat such a consent, whether express or im- l^lied, when i)ui'ely gratuitous, may certainly be withdi'awn ; and when iiuplied it lasts no longer than the silence from which it springs. It is, in reality, no more tlian a revocable license. The ex- istence of the fact may be a proper subjecrt of in- quiry on taking an account of prolits, if such an account should be decreed ; but even the aduiission of the fact would furnish no reason for refusing an injunction. 1849, N. Y. Superior CI. 8. T., Dueu, ^m ACQUIESCKNC^K. )nger ig an UEll, V]\. J., Amoskeag ^[auiif:ic hiring Co. n. Spear, 2 siiifir. :)\y.). i (J(». Where an injiinclioii is granted lo restrain the use of a Hademtuk, jukI the delViwlant disobeys andliie plaintilf moves for a eoniniittnl, aeqiiies- ceii('(\ ir se/: up as a defense against the motion t(» a('(piit, imist he shown to be sneh as to antount al- most to a license to nse tlie mai'iv, and entitling the defendant hiinsell' to a right in the ns(i of tho mark. 18.");}, Lords Jii.sUccH on A2>i>('(d, Jiodgers r. Xowill, 2:? L. J. (vY. X.) Ch. 404; reversing S. C, 17 Eny. L. iS: Eg. 8:3; S. C, U Jurist, 10<.>. ^(5J. The court refused to grant an injunction at the suit of Flavel, to restrain Harrison from making and selling a stove by the name of " Fla- vel's Patent Kitchener," on the ground, lirst, that Flav<>l had falsely assumed to describe the article as being ])atented, and, secondly, that Ik; had known of the us(; of tlie name by Harrison four months before lie applied for an injunction. J3ut tlie court not deciding Aviiether J'lavel liad or had not a legal remedy, retained the bill, giving him lib- eity to biing an action. ]8r)o, Vice Ck. Wooff.'i Cl] Flavel (\ Hairison, 10 Hare, 407; S. C, 19 'ENf/. Jjtw & Eq. 15 ; S. C, 17 Jurifit, 3GS. $; 02. In order to prove acquiescence by a firm in tlie piratical use of their trademark, knowledge of sncli nse must be ja'oved ; and that is not accom- plished by the \nxwi of publication of adveitise- nients, which would have l)een an invasion of the rights of the iirm.if those advertisements have been issued not steadily or unifoinily, but intei'changeably with other advertisements in some resi^ects similar, but not infringing the rights of the lirm. 1803, ■ W. 20 Acquiescence. Lord Cli. BiiADY, Kinalian v, Bolton, 15 Irish Ch. § 03. A i)ei'son inny undoubtedly consent to the eini)loy!nent of liis name for a hotel, but il' sucli i'ousent 1^5 purely gratuitous, or unless there is some valileas- ure of such i>arty. 1804, N. Y. ^uprcinc CL O. 7\, McCardel f\ Peck, 28 I/ow. Fr. 120. § 04, It is no defense that a fraud lias been mul- tJi)lied. Accpiiescence cannot be inferred and it is revocable it' it could be. 1800, iV. Y. i^upreme Ct. .y. 7:, (xillott c. Esterl)rook, 47 B(irb. 455. ^ 05. The issuing- of a "caution" to the public bv the owner of a ti'adeniark will not be construed as an irrevocable acquiescence in its use by others. 1807, iY. Y. Supritnie (Jt. G. T., (iillott c. Esterbrook, 47 B(irb. 455. See § 73, infra. i 00. Injunction granted to restrain the use of the plain till" s trademark by the defendants, though the scienter was not i)roved, but an account of profits refused on the ground of delay by the plain- tilfs in commencing the suit. 1805, Vice Ch. Wood' ti CI., Harrison v. Taylor, 11 Jurist (xT. 8.) 408; S. C, 12 Law Times (iY. *S'.) 339; apjmn'ed and followed in Amoskeag Manufacturing Co. v. Gar- ner, infra., § 77. Jj 07. In a suit to enjoin defendant from selling "Charter Oak" stoves, bearing a certain trade- mark, the fact that parties in other localities manu- factured "Charter Oak" stoves, and sent them into market to compete with i>laintiff's numufactures, in no way aids the defense, unless it appears that the plaintiff assented to or acquiesced in such in- ACiillKSCKXCK. 21 of ain- kV .s* S. fi-liVj;(Murnrs npoii liis )i,j(///(' CL X. 7'., Anioskca.i;- Mann- fa ct mi ni; Co. r. (Jarner, fw Ba/I). 151 ; S. C, i) Ahh. Pr. (x"x)i2CM. iV)\). AV'lien a trader believes that he has ,u<)o(l 'j:ronnd for complaining of a ('(jlorable indlation of tlie (Style of his bnsiness, he is jnstitied in waiting nntil he can collect a snflicient nnml)er of cases to show that tlie alleged attempts lias succeeded, be- fore he tiles liis ))ill ; inasmnch as it wonld not l)e safe for him to conu; into the conrt of chancj 70. The i)laintiirs, who for many years past had been mining coal, cltdnied an exclnsive light to use the name "Lackawanna coal" as a special, par- ticular and distinctive name or trademark for cotil, and tiled a bill to enjoin the defendant from using those woi'ds to desiijnate <'oal wold by him, which was not mined by the plaintiifs. Jle/d, that what- ever rights the i)laintill: might once have had, that they had lost such rights by their acts of acquies- cence in the use of those words })y the defendant to designate coal st)ld }>v him which had not been mined by the plaintiifs, and that such acts of ac- quiescence Avere equivalent to a license to the de- i^. iirifmrryii 22 ACQUIE.SCKXCE. fiMulant to use (liose words ((» (L^.si^^iuitt^ (Ik* fojil sold by him, and tliat plaiiiiiUs \v<'r<' (•■.|iiilal)lv' fsr()})i)od IVom enjoiiiiiiii; tlic d»'l«'!ida:it I'lom usiaiv said words t'oi' sucl> i)ui'i)os(^ hS7(), 6'. >S'. (*ircnil. (.'/. X. v., Delaware &; Hudson Canal Conipaay r. Clark, 7 lUatt-Jif. 112 ; and see S, C, on api/t'al, 13 TIW/. 31]. %1\. tsed Acquisition of Ti!adi:mai:ks. 23 iJ before the pljiiiitUf takes steps to ivstraiii tlit^ in- rriu^nMiieiit, tlie court will riMiuirecleaivr proof than it would otlierwiselmve (lone that tli(> tnideiuai'k was adopted oriL!:iiK»lly with I'randiileut intent, :nid will requin^ the phrnitillF to prove th;it lie h;is heea ae- tunlly injured by the inrrin,!j;enient. 1874, (^li(ni'-< rij ill. (1 A. T. h. (X >^'.) 285; S. (.\, 22 W. Ji. 887. ^ TO, Thon/^-h one discover oi' invent an !\rticU> and JA'ive it a peculiiirand distinctive name, if lie permit anotlier with his jicipiiescence to approjirijite it with that name and to jnit it foi-th to tlie ])iil»]ic as his own, that other will l)ecome th<' ])roi)rietoi' of tin* name, if lie meets th(> other conditions pre- scribed by the hiw in sncli cases. 1874, X. )'. (Jt. of App., Caswell (\ Davis, AS N. Y. 22:5. ^ 77. Wliere the plaintiff had delayed commenc- ing suit an injunction was issued to restrain the use of plaintifT's trademark, but without damaives or account of profits and without costs. 1870, X. V. Hit pre me Ct. H. T.^ Amosktniji: Ahinufa<'tniin/^^ (Jo. T. Garner, 4 Am. Law Times (iT. X.) 170. See also Ahaxdoxmext, ^,^44-40; Laches, §,:? r)().')-507 ; LicEXSE,^§ 520-522 ; Llmitatiox, >J,^ 525- 527. ACQUISITION OF TRABEMAPJvS. §85. Bi/ operation of law. — A ri,2;ht to use a trademark is in the natnre of a personal chattel and will g'o to the representatives of its owner on his decease. 184.6, case cited by the vice chancellor in nine V. Lart, 10 Jurist., lOG, ^ SG. The venders of an article of trade or man- ! ' <.'!■< K»"ff 111- ( * mm. 24 Acquisition of Tkademarks. ufacf ure, are entitled to be protected in the use of {I tmdenuu'k, altli<)u<^li they do not manufacture the goods to whicli ir is ai>[)]ied. IS-iO, Lott, Senator, X r. Ct. of Errors, Tayk)r v. Carpenter, 11 Pahje^ 292 ; S. C. , '2 Hamlf. CJt ". G()3. §87. lij/ pKrchaHC: — The phuntiffs agreed with A, the proprietor of a hotel, to pay him a certain sum for tlie privilege of using tlie name of A, and of his hotel, on certain coaches of the plaintiff's, used for the conveyance of i)assengers to and from the hotel of A, and on certain badges worn by the drivers of those coaches, i)laintiffs giving security to A for the gO(jd conduct of himself and servants in the conversance of such passengers. Jlchl^ that the plaintiffs had an exclusive right as against third pai'ties in the use of the name of A's hotel on his coaches and badges ; that he was entitled to an injunction to restrain the use by any other party on coaches or badges of the name of A's hotel, or of any device or sign wliich might induce a stranger to believe that the defendants were cori- nected with the hotel of A. The name "Irving House ' when used as above, protected. IS.'iO, N. Y. ^^Kperlor Ct. H. T., Stone g. Carlan, 1-] Mo)itlilij L. R. 800. § 88. Ih/ purchase. — Marsh made an oi'al agree- ment with S, the lessee of the Revere House, by whicli he agreed to keep good coaches, horses, and to employ good drivers, on the arrival of cei'ttdn trains at the Boston and AVoi'cester Kaib'oad sta-, tion, to convey passengers arriving at the station who might wish to go to the Revere House ; and in consideration t)f which, S agi'eed to employ !M to convey all the passengers from the Revere House to the station, and authorized him to put on his ACQUISITIOX OF Tll.VDEMAllKS. 23 coaolie?^. and on the caps ot* liis drivers, as a badge, the words -'Revere House." A similar agreenieiit, previously existing between S and B, had been ter- db ued uutual consent ; but B still con to cany the words ''Revere House" as a bjulge on his coaches and on the caps of his drivers, although requested not to do so by S ; and his drivers con- stantly called ''Reveie House'" at the station, and diverted passengei-s tnmi his coaches into B's. An action on the case was brought by M against P> I'or using said badge and diverting passengers, aud it was held, tliat M, by liis agreement with S, had an exclusive I'ight to use the words "Revere House," i'or the purpose of indicating that he had the patronage of that house for the transportaliou of passengei's ; that if ]i used those words for the i)nr- pose of holding himself out as having the patronage and confiden(!e of the lessee of the Revere House, and in that way to induce passengers to go in his coaches rather than in M's, this would be a fraud on the |)laintiJf and a violati(m of i)lainti]1'"s rights, for wliich the action would lie, without proof of actual, specillc damages. ILUJ, further, that M would be entitled to recover such dauiages as tho jury, ui)on the whole evidence, should be satislied that lie had sustaiued, and that the damages would not be conlined to the loss of such passengers as he could pi'ove were actually diverted from liis coaches to the defendant's ; but that the jury would be jus- tified in making such inferences, as to the loss of passengers and injury sustained, as they might think were warranted by the whole evidence in the case. J8,-)l, l^aprcine Jndl. CL of Mass., Marsh y. Billings, 7 Cush. H22. ^ 81). Ih/ adopt iou. — Certain music publishers m '} 1 f 5 1' 26 ACQUISITIOX OF TUADEMARKS. liaving adapted oriuinal words to an old Amevican air wliicli was ](»-iu'rauu:(Ml for tlKMii, gave to the song so coniposcd the Jianie of "MinTiie," iind im)- eured it lo Ih' sung by Madame Anna Thilhni, a pop- uhw singer, at M. .lulian's concerts in London ; and when it Juid by tiiat means become a favorite song, they published it Avitli a title page, containing a picture of the singer who had brought tlie song in- to noti(;e, and the words 'vMinnie, sung by Ma(hnne Anna Tliillon and Miss Dolby, at Julian's coucerts, wi'itten by Geoi-ge L^lnley," &v. Jlc/d, that the pnblishei's had by these means ol)tained a light of ju'oi)erty in that name and descriptiV>.v//\ ^22. § 1)1. />// ^^s•c. — Loii/t/t of tiiiie rrqitin/d. — It lias scmietimes ))een supposed that a manufactnrer can only ac([uire such a property in a tradennirk as will enable him to sue for an injunction against the piracy of it by others, by his having enjoyed so hmg andccmtinueda use of it as issullicient to give it reputation in the market where such goods are sold. ]3ut 1 entertain gic^at doubt as to the cori'ect- ness of that view oL' the law. The interfeience of a court of ecpiity cannot, it appears to me, depcMul ni)on the leugth of time the manufacturer has used ACQUISITIOX OF Ti:.\Di;:\[AKKS. 27 it. If the brand or mark ])e an old one formerly used, bnt since discontinued, the foi'iner proprietor undoubtedly cannot ivtain such a. lu'oiierty in il or event others from nsin^'it. l)Ul. ])i(»vi(h'd i( 1 lar been originally adopted by a. manufacturer aud lias been conliniiously ami still is used by him to (h^- note liis own y,'oods, wlien broug-ht into the markel and oll'ered for sale thei'e, I aptiiohend, althouuli the uiark may not liave been adopted aAveek, aud may not have acquired any reputation in the market, his neii^hbors cannot nse that mark. Weiv it otliei'- wisc, and wcrc^ the qnestion to dejx'ud (^ntii'ely on the tiuu; the maik had been used, or the reputation of it liad been aupiired, a very diiliculr, if not an insoluble inipiiry would luive to l)e o])ened in every case, namely, whether the mark had ac([uii(:Hl in the market a distinctive chai-acter, denotiug the goods of the person wiio lirst used it i 'J he ath)])- tion of it by another is proof that he consichMsat that time it is likely to l)ecouie benelicial. If tln-i manufacturer Avho lirst used it were iu)r ^jrotectcd from {\w earliest moment, it is obvious tliat mali<'- ions and pertinacious rivals mi.ght prtwent him from ever acquirinly to brands and mai'ivs genei'ally. 1803, JA/.vA/- f;/' !h<' Jinlls, Hall r. IJaiTows. S A. 7'. (xT. .S^) 1121 : s". (;., 11 Wirl.-h/ 11. iVi,') ; S. C, \) J arid tm '4 w^mmm 28 Acquisition of Tuademaiiks. {N. S.) 483 ; S. C, 32 Law J. {K. R) CJt. 548 ; 1 [New, 543 ; S. C, on appeal, 9 L. T. (xY. *S'.) 501 ; 12 W. It. 322 ; 10 Jurist (lY. H.) 55 ; 33 Law J. {N. ;S.) (Jk. 204. g 1)2. Bij license. — A party will be restrained bv ininnelion from the continued use of a trade- mariv bel()ii,ii;ing to another, Avhicli he has used ini- der an ni'.KHMnent and with the consent of the owner and lor the l)enelit of both, after the owr-^.' siiaii witiidraw his interest from the business and claim the use of his trademark exclusively, unless the i)aity claiming to use it shall show clearly by tile agreement that the owner intended lo and had forever parted with liis right to the use of such trademaik. 18(54, N. 1'. iSupreme Ct. G. 7\, Mc- Cardei r. i'eck, 28 Jlow. Pr. 120. § 93. Bti use. — *V/.r 2cee/is use sufficient. — The use of the trademark "Anatolia" for the period of about six weeks, during which it had become known in the market, hetd, sulhcient to confer an exclusive I'igUt thereto. The elemenis of the right of piopeity in a trademark may be repi'csented as being the fact of the article being in the maiket as a vendible article with the stamp or tradiMnark upon it at the time when the defendants imitate it. 1804, Defore Lord (Jh. WEsTr.uuY, on appeal, Mc- Andrew v. Jiassett, 10 Jurist (iY. >S'.) 550 ; «. C, 33 L(iw J. {A'. aV.) V/i. 501 ; IS. C, 12 Wee/cJi/ E. Ill ; S. C, 10 Leiw Times {N. ^.) 442; alhrming S. C, 10 Jurist {N. H.) 402 ; S. C, 10 Law T. {N. X) 05. 5^ 04. L'ssenliai qualities. — The essential quali- ties for constituting proi^erty in a trademark prob- ably would be found to be no other than these: First, that (he mark has been applied by the i)lain- tiirs properly ; that is to say, that they iiave not i mm Acquisition of TRAUE:\rAUKs. 29 ^ 3 copied any other person's mark, and that the mark does not involve any false representation ; secondly, that the article so marked is actually a vendible ar- ticle in the niaiket ; and thirdly, thnt the deiend- ants, knowing that to be so, have imitated the mark for the purpose ol' passing in the market other arti- cles of a similar description. 1804, Lord Chancellor WESTHniY, McAndrews r. Bassett, 10 Jurint N. S. Two ; S. C, ;};3 Law J. {N. .S\) (Jit. .001 ; S. C, 12 V^evldii E. 777; S. C, 10 Law T lines \N. S\) 442. ^ or). AdopUon and Vfic. — Any name, syml)ol, letter, figure or device adopted by the i)er,sons man- ufacturing or selling goods and used and put upon such goods to distinguish them from thos(? manu- factured or sold by others, and enii)loyed so often and for such a length of time as to rjuse the jire- sumption that the public would know that it was used to indicate ownership of the goods in the i)er- son manufacturing or selling them, constitutes his trademark. His I'iglit to the trademark accrues to him from its adoi)tion and use for the purpose of designating the particular goods he manufactures or sells, and although it has no value except when so employed, and, indeed, has no separate exist- ence, but is appurtenant to the goods designated, yet the trademark is property, and the owner's right of property in it is complete as that which he possesses in the goods to which ho attaches it, and the law protects him in the enjoyment of the one as fully as of the other. In (nxler that the claimant of the tradeniark may primarily acquire the right of property in it, it must have been originally adopted and used by him — that is, the assumed name oi designation must not be one that was then in actual use by others, and such adoption and use f i; -!>-( i ■1 I ...» ^ »'1 30 Acquisition of Tiiademakks. confer upon liini tlie ii;j:]it of projicrty in tlie trade- mark. 180."), t^fipre.nic Vf. of Ca/., Deirinc^'er ^\ Plate, 29 rV/A 202. i^j OG. IVol dependent on. statatori/ lam. — The ri2;lit of property in a trademark does not in any manner hy "(Jharles Emerson, Emerson Plaee." He em])h)yed and taii,;;'ht his business to iive of liis nephews, oi' wlioni .15. Baduer, the father of defendant, was the elch'st, and the plaintilf, the third. Said ]jad,uer, in his uncle's lifc^time, left his employment and continued, with his pin-niission, hut on his own account, to nianiifactur<» and sell such stia])s. and to use the same label thereon, and was succeeded in business bv his son, the defendant. The uncle died without issue; his nephews wei'e anionj^- his lieii's at law, and his business and tradeniaik w(M'e not disposed of })y himself, by will or othei'wise, or by his administratoi'. The plaintitf, afttM' his uncle's decease, continued the business at the same place, and, used a label precisely simiiai' to that for- merly used by the uncle. The lalud used by the defendant did not represent his vtv/.ov straps to be made by the i)laintilt' or by any person of tlie name of Charles Emerscm, but stated, with extu't fi'uih, the I'elation of the defendant to the oiiiilnal in- ventor and owner. Ifdd, that the ])lainlin', thongli bearing the same name as the oriu'inal (Jharles Em- erson, had no .u'l'ealer right than the defendant to hold himself out as such, or to use the label of his uncle. That the plaintift" had failed to prove either any infringement of his own rights, or any vrrong- ful act of the defendant. 1800, Siipn'iur JudJ. CI. of MdJis., Emerson v. Badger, 101 JIa.s.s. 82. i 101. A(?op/ion and use. — B}' the adoption and use of a mnne and device, adapted lo point out the ti'ue source antl origin of the manufactured article. fj / t ., su" 83 Acquisition of Trademarks. the mnmifactnrer acquires a property therein wliich the courts will protect. ISf)!), ,S///yri'//i<' CL of Mis- souri, Filley ?'. Fassett, 44 Mo. 1(58. § 102. Appropriation and vse. — Ev^ery person who uses a trademark, be it the label on a bottle, or the name or title of a periodical or magazine, l)y his appropriation and user of the name acquires a property in that name, and has a right to restrain any other person from using the same name in such a manner as would lead, or be calcidated to lead, the public to believe that they are jiurchasing one thing when, in truth, they are purchasing another, 18G0, Vice Ch. Malin's CL, Bradbury v. Beeton, 39 Laio Journal n. Ch. {K. S.) ni. § 103. In 1844, Sohnnon Lloyd invented a com- position for shaving, and called it "Lloyd's Euxesis." In 1874, his son, A. S. Lloyd, joined his father in business, at a weekly salary. In 18r)4, Sol- omon Lloyd died intestate, and no letters of admin- istrati(mwere taken out. From ]8i54 to ]8()7, A. S. Llovd and his wife, the defendant, carried on the manufacture of Lloyd's Euxesis. The widow of S. Lloyd made a claim on this account upon A. S. Lloyd, which he satisfied by making her a weekly allowance during the rest of her life. In June, 1867, defendant separated from her husband, insti- tuted proceedings for a divorce, and obtained a decree nisi for dissolution of their marriage. On September 13, 1808, before decree became absolute, A. S. Lloyd died. After separating from her hus- band, defendant continued to manufacture and sell Lloyd's Euxesis on her oavu account, and plaintilf had dealt with lier. A. S. Lloyd's estate, proving insolvent, was administered in the court of chan- cery, and the good will of the business and such A^Tiox (Cause of)— Adoptiox. nn right as he had to the trademark "Lloyd's Euxesis'' was fold to the i)huiitift' under a dccicc of the court. The secret of nialviiig tlie Kiixcsis was comiuunicated to plaintilT l)y a person in A. S. Lloyd's employ. Held^ tlmt A. S. Lloyd nc^t Irivinn' had any title to the trademark, defendant clainants are aliens ; in the courts of the United Smtes alien friends are entitled to the same i)rotection in their rights as citizens. 1844, U. S. Cireitlt Ct. Mass., Taylor v. Carpenter, 3 Story, 458. § 111. The alienage of the x^erson whose trade- marks are simulated, nor the fact that he resides abroad, does not alter his right to be protected in their exc^lusive use in this country. 184i5, Vice Ch. Sandfoud, Coats « Holbrook, 2 Sandf. Ch. 586 ; S. C, 3 N. Y. Leg. Obs. 404. § 112. The fact that complainant, in a suit in equity to restrain the fraudulent use of a Aliens. 33 trndfinark. is a subjccf of a foreign govt^'iiiiient, (loos not aliVct tlio riu-lifs of I lie parties. Tin; lionor oi our f'ountiy and the chai'acter of its juris[)iii- (leiice, for1>i(l that justice or equity should ever be iidniinisiered on such narrow, prescriptive, and in(^(piital)le pi-incii)les as to recognize a different i-ule of right and Justice between any class of suitors. 184(5, /Y. r. Ot. of Errors, Taylor <\ Car- penter, 11 Pl^tes, labels, &c., and the right to use the name of '' T. & Co." to E, the I a c Assignment. 37 l)liiiiirilT. wlio ever since fiirned on the bHsiiirs.> mc- coidiiiuly nnd used the snid hibds. In IS."):} K. dis- (•()V»'i'ed thjit v., tli*> d('i'eii(l:int, was iisiiiu" labels in pal]>al)le imitation oi' the j)lalntiirs. ////V//7>. 1(i3; S. C. 13 I/oic\ Ft. 342; S. C, 4 Abb. Pr. § 124. Wliere the lease of a bakeiy witli the tools, ilxtures, etc., and also the good will of the business of baking, then or previously cari'ied on at such place, liad been sold and assigned witli a covenant, by the vendor, not to carrj' on the busi- ness in the same city himself, it was Jield tluit the > ,5, , ■fit; is ■ml i «l ■■', s i 38 AsSIGNiMEXT, purchaser did not acquire the right to use the name of the assignor in the conduct ol' tlie business at the same phice, nor to designate oi' desciibe tlie ])akei\v (by signs tliereon or otheiwise) by the name ol' liis vendor. 18(30, iV. Y. .Sff/My/or\.'/. G. 7'., Howe V. Searing, 10 IIow. Pr. 14 ; S. C, 10 Abb. Pr. 2G4 ; S. C, Bosw. 354. ^125. Where the i^kdntiff sold to the dei'end- ant's assignor Ids lease of llie pi'ennses, ;No. 4:52 Bi'oadwav, New Yoil<. known I'V the name ol "Howe's Bakery,'' and stock in tinde, Avith thi; good will ol' the business ol' baking, now or liereto- I'ore ciirried on by liim in the city ol New York : Ib'lil., tliat the plaintiif was entitled to ;in injunc- tion, to resti'ain the defendant from designating such bakery estal)lishment as "'Howe's Hakerv," and from otherwise using the name of " How*'"' in tile business, so as to induce tlie public to be- lieve that the business carried on at 482 Hioadway was conducted by Howe. J bid. ^ 120. It is doubtfnl if the right of using a mere trademark, by itself, can be transferred like a copy- right, so as to make wares, not yet in existence, tlie sid)ject of them, and the injury to an assignee of it, greater or less by the use of it by others. The imitation of a trademark is entirely a pei'scmal injury ; it is merely passing oil the wares of the imitator as being those of the party injiii'ed. How can the reliiupiishment by the assignor of his trademark prevent the rest of tlie woi'ld from using that trademark to distinguish tlieir Avares '. On the other hand, although a name has been used by any one as a traih'niark, and is susce] tible of being- used as such, its pi'evious employnient by him does not x^'event any one else from emxiloying it to des- Assignment. 39 :f. ignate their wares. It is wholly iniinaterial liow^ miu'h or how long a word has ])een employed as a trademark. The employer of it can neither give any special right to another, norabandcm it to the community so as forever to take away the right of emph)ying it to designate his Avares. If he can, the iii'st use of a trademark gives a common law ])er- petual copyi'ight in it. Ohitei\ lloiSKin.^o.N, J., ISOO, N. Y. Superior CL, G. T., Corwin i\ Daly, 1 Bohii\ 2*22. i^ 127. If a name, impressed upon a vendible commodity, glasses current in the marivet as a lep- resentation that the commodity has l)een manufac- tured by a i)articuhu' person, this coui't would nor transi'er to anotlnu' pei'son the light to use the nanu; sim])ly and Avithout addition; ))ut if it sold tlie business carri(>d on by the owner of the nanu\ it might give to tlie i)urchaser the light to represent himself as the successor in the business of the iirst maker, and in that manner to use the name. Where a name, once allixcMl to a manufactured article, continues to l)e used after the death of the manu- facturer, the name in time becomes a more trade- mark or sign of quality, and ceases to d(Miote or be current as indicating that any pai'ticular person was the maker, and can, tlierefoie, be sold witli the business, and will be protected in a court of equity. ISO:), Before Lord Cii. \VKsTnrnY, on ap- peal. Hall y\ J]a]Tows, \V.\ Law J, (iV. >sV) Vh. 2<»4; H. C, L(m T. {X. X) 501 ; 8. C, 12 WrrkJ;/ B. :522; S. C, WJ//r/.sf{xY. >SV) Tnj ; ivversing «.'c., J/rr/H (.Y. >S'.) 4S:^, U Wcc/d// R. 52."), 8 L. T. {N. X.) 227, H2 Lam J. {N. ^.) i'h. oJS. ^ 128. A corporation ti'atlemark, granted by the Cutler's Company, undei" the various acts of I'ar- 40 AssiGx:\rEXT. liiiiiiont i'o,£^ii]atin,£>' the company, to a non-fi'eeiium, is a.s.signu])lc' ; but wlietlier such a mark ^'i-aatcd tt> a fivonuni is assii)<(!l, ]>ury t\ Ijedi'ord, to Jurist (iV. S.) 0(.);] ; S. C, )Vo Law ./. {N. X.) Ch. 40.1 ; S. C, 12 WccJcbj U. 720 ; S. C, 10 L. T. {N. .s^) 470 ; «. C, 4 New JL 180 ; revei'sin^^ S. C, 11 WceJchj IL 1)78 ; S. C, 8 Law T {N. X) i^-7; S. C, ;i-> yyrt?o J. Ch. {N. K) 7M C, Ja?/./>/. § 1130. J. 13., being a non-freeman of the Cutler's Company, acquired b}' grant from that com])aiiy a corporate tratlemark, consisting of the iigiire of a lion and the hMlersJ. B. O. S. ; he also acvpiired by purchase fi'om William Ash, (he right to tlie ex- chisive use of the tiademark *'\Vm. Ash I. Although a tradev may have a pi'operty in a trademark, giving him a right to exclude all others fi-om using it, if his goods derive their in- creased value fiom (h(^ personal skill or ability of I he a(lo[)tei' ()l the trademark, lie cannot give any other person the right to alhx his name or mark up- on their goods, for the ell'ect thereof Avould be to give them the right to practice a Iraud upon the l)ubiic. 18(m, honsc. of Lords, Leathei' Cloth Co. (limited) r. The Amei'ican Leather Cloth Co. (lim- ited), ;C) L(tw J. {X. N.) Ch. n;}; S. C, n House of Lords rV/.v. .^)2:?; S. C, i;3 Wvekh/ If. 87:}; 8. C, II Jurist {X. S.) rA'l- S. C, 12 L. T. U. (A^ .S'.) M-i : S. C, (i X. ]{. 201) ; alliiuiing S. C, W,] />. J. (A. >'.) (;//. IJJl): PJ Wcekh/ li. )>^\) \ \() .lurisl{N. >^\) 81 ; S. C, S) L. T. R. {X. H.) 038 ; and lo versing ■■".s 42 ASSIGN^EEXT. S. C, 1 IL & 3L 271 ; S. C, 32 Laio J. (iY. S.) Cli. 721 ; S. C, 11 Wecidy 11. 9:31 ; S. C, 8 L. T. {N. i^.) 829. § i;>2. Sciithle, per Lord Cijaxwouth. — The right lo a 1 1'aih'iuai'k is ii right closely resembling, though not exactly the .same as, copyj'iglit. The right which a maiiul'acturer has in his ti-ademark is the exclusive right to use it i'or the pni'pose of in- dicating wheie, or by whom, or at Avhat manui'ac- torv, the arti<'le to which it was alUxed was inanu- i'actui'ed. Tlie right to a trademark may, in gen- eral, tieating it as pro]iei'ty, or as an accessory of property, be sold and transfeiied upon a sale and transfer of the manufactory of the goods on which the mark has been used to be allixed. and may l)e lawfully used ))y the puichaser. Ditliculties, how- ever, m;iy arise where the ti'ademark consists mere- ly of tlie name of the manufactuier. AVhen he dies, those who succt^ed him, though thev mav not beai' the same name, yet ordinarilv continue to use the original name as a trademaik, and they would ]>e protected against any iid'iingenient of the exchisive right to that inarlv. They would be so protected, because, according to the ustiges of trad(\ they wonld be understood as meaning no moie by the use of their i)redecessors n ime than that they were carrying on the manufacture formerly cari'ied on l)y him. IS'or would the case be necessarily dill'er- eiit ii', instead of passing into other hands by devo- lution of law, the manufactory were sold and as- signed ton purchaser. The cpiestion in eveiy such, case must be, whel her th(» piu'cliaser, in continuing the use oT the origimd trademark would, according to the oi'dinary usag'es of trade, be understood as saying more than that he was carrying on the same A.SSIGXMLNT. 43 business as liiuT ht'.m roiincrly cnrricd on by tlio pp]-- son Avhosc iinme coustitiilcd iIk^ ti'ndemni'k. In siicli a <'as(i tlici'c is iiotliiii;;- t(» make il iniproper for the ])i!i'('lias<'i' to usc> lliv old ti-adeaiark. as llic^ mark would, in siicli a case, indicate only (iait tin' floods so niai'ked v,e\v made at the nKinuractory Avhich li(! had ])U]"cliascd. / h/'f/. ^ l;];]. !<(iiLi)h\ j)er Lord Kin(;sj>ow>:. — A ti-adei' may mark liis own manni'actiiro either hv his name or i)V usiau' anv svmbol or emblem: and if such svmbol or einblenj comes by nse to l)e lecounized ill tiade as the marlv of the u'oods oL' such trader, no other iiiidei' lias a ri^iipn-ior CL of ClilcctfH), Sherwood r. Andrews, f) .1//^ Lato lliuj. kn. , ) i>88. § 138. The purchaser of a tradem;iik is not pre I'. 46 Assignment. chuled from enjoining agninst its piracy by reason of his being only tlie assignee, nor by liis use of it without designating liiniself as assignee. 18G7, Superior Vt. l^ciui., Fulton v. Sellers, 4 Brews. 42. §189. A suit was instituted between B and 11 as to the propiietorship of a, newspaper, in Avhich it was ultimate y decided that tliey were entitled in equal moieties. During the progress of the suit B assigned his share in tlie newspaper and the right of juiblicatiou and in tlie yn'oiits thereof to \V. The assignment contained a recital of the jiioceed- ings in the suit, and a power of sale. Afterwards B mortgaged tlie same share to his 2~)artner II to se- cure sums due to H in respect to that share. W registered his assignment at Stationers" Hall under the provisions of the copyright act, and subse- quently sold the mortgaged share to the plaintiff under his power of sale. Both W and the plain- tilf permitted the newspaper to be carried on by B and H jointly. On a bill iiled by the x>l^ii^tiff for a declaration that he was entitled to a moiety of the newspaper, Held, iirst, that there is nothing ana- logous to copyright in the name of a newspaper, antl therefore the I'egistration of the assignment at Stationers' Hall was futile, luit that the proprietor has a right to j^revent any other person from adopt- ing tlie name, and that this right is a chattel capa- ble of assignment. Secondly, that as AV and the plaintiff knew of the suit between B and II, and also permitted them to carry on the newspaper as partners, the pi a in till' could only takes B\s share, subject to the equities subsisting between the j>art- ners. The decree of Stuaut, V. C, varied. 1808, before the Lords Justices, Kelly w. Hutton, L. R. 3 ASSIGXMEXT. 47 I f Ch. 703; S. C, 10 L. T. R. {N. Si.) 2'2S ; S. C, 1(5 TF. 7?. 1182; S. C, />^7<>w, 17 />. 7'. 7^. (iY. *s'.) 592 ; and see S. C, i^o /v. 71 7^. (/T. .SV) i^Ol. >j 141). Tliere is a right of property in n trademarlv whicli iscnpable of beini^; ti'aiisferred to another ))y ;-!ssi,i,niiiient. 1800, JY. V. t'omiiioii Pleas, S. 7'., Lockwood r. IBostwick, 2 Dal//, o-il, ^^ 141. Where the wood-cuts of a tradeniaik are sold, siicli transfer does not carry tlie i)]'operty in the trademark itself, unless the circumstances indi- cate that sucli was the intention. 1800, A\ Y. Com,. Fleas, ^'. 7'., Lock wood d. Bostwick, ih/d. g 142. In substance there is no distinction be- tAveen the sale of a business and good will }>y a trader himself, and a sale l)v his assignees in bank- I'uptcy. Tiierefore, (m a sale of a l)usiness l)y a trader's assignees in bankruptcy, the trader lias no right, upon setting up a fresh business after his discharge, to use the trademarks of his old lousi- ness, or in any other way to I'epresent himself as carrying on the identical business which was sold, although ho has a right to set up again in business of the same kind next door to his old ])lace of lousi- ness. In such [I case, it is no objeciion to the pur- chaser coming for the assistance of a court of chan- cery, that he' has continued to use the name of the old business which he found there. 1800, TVcc^ Ch. James, Hudson v. Osborne, 30 Laio J. {N. ^,) Ch. 70 ; S. C, 21 Law T. U. (iY. .S'.) 380. § 143, The joroperty in a trademark will pass by assignment, or by operation of law, to any one avIio takes at the same time the right to manufacture or sell the particidar merchandise to which said trade- mark has been attached ; there is no property in it as a mere abstract right. 1870, Ct. of Com. Picas, ^Cjcjg, 48 ASSIGNMEXT. Phil. Pa., Dixon Crucible Co. /). Guggenheim. 2 Brewster, ;J:21 ; S. C, 7 Pk/la. 408. § 144. Tlie plnintiir and the defendant, Reul)en P. Hall, were in [)artnei'.ship, under the name of R. P. Hall & Co., in the business of making and sell- ing a prepaiation called "Hall's Vegetable Sicilian Hair llenewer." Defendant sold to tlie plaintiff all his interest in the tirni, in the secret of snid pre- paration, tlie right to make and vend the same, and the exclusive right to use his name therefor in the future sales th(3reof, and he also covenanted not to use or allow his name to be used in the pre[)aration of any similar ai'ticles, or to engage in the manu- facture thereof, and that he would allow the plaintiff the exclusive use of his name in the mnnufacture and sa](j of said prejKiration. Held, that defendant would be enjoined from making or selling any pre- paration as and for those of the plaintili, and from using the name of Hall, or R. P. Hall, or Renlien P. Hall, either singly or in connection with others, but that defendant would not be enjoined from making pre])ai'ations for the hair, provided he did not use the name of Hall therefor. 1870, CY. of Comnion Pleas, Philadelphici, Pa., Gillis ?;. Hall, 2 Brewster, 843 {Pet/n.). § 145. A trademark may be devised and adopted by the party himself, or he may acquire it by pur- chase from his predecessor. The mode by pur- chase is as eifectnal as any other, and courts will go as far to protect such trademark as if tlie party devised and ;i(!o})fed it. A party purchasing part of a ti'ademaik, nnd adopting the balance, will be protected in his title to the former, as well as the latter. 1871, I/tdlam/polis Sn^jerfor Ct., /S'. T., Solil G. Geisendorf, 1 Wilson, GO {^Irid.). I \ ;a fl ASSIONMEXT. 40 ^ 140. Wliere a business is sold, the (Mitiie good will ;md ri^lit to use the trademarks pass to the purcliM^er williout any express mention of iIkmu beinu' nuiile in the (IcimI ^ V <^ 4 4s 6^ ^V- ^ , void, as heini? arietoi' estimates the value and sells it to anothei- ])ersou. to the extent and foi' the purposes foi- which h" sohl it, lie has no right to use it. 1871, (U. (>/' Com. Phn.^, Phil. Pa., Gillis?\ Hall; Ayer r. Hall. :{ Breics. 500 : S. C, 1 Leg. (Jaz. R. VU \ S. C, S Phil. 2:n. ^ ini. Property in trademarks may b(» fissi the ])lainrin's, who now sought to restrain the inventor from infringing the trademark. It ai)peared that the plaintiffs did not know the defendant's recipe, but made a sauce wdiich their witnesses deposed to be indistinguish- abh^from the defendant's. Held, that a trademark could not exist in gross, and that, as the ]>laintiffs did not know the recijie for the original aiticle, they could not have a right to aflix the trademark to a sliam article for the purpose of imi)osing on the public. 1874, Je.^sel, M. Ji., Cotton v). (.lillard, 44 L. J. {N. *s:) Ch. 90. § 153. The plaintiflF had established, and acquired AssrciXMKNT. 31 a valuable repiifafioii Hn* a hotel in (Jhi('a,u:o. imder the name of •* Wood's Hotel." He canicd on hiisi- iit'ss at said iiotel for a nnmUei' ol' y(>ai's. and tiien sold liis interest thei'cin to on.? Ciiiiunin!i;s, a,u"!V(!d Hot to open anotbfi' liotpl dnfiiiii; the i-emainder of the leased teem, and also assi^-nod the us(i of his aaiiu* to said (/iiin mine's. 'IMie pi-eniises w4. Qncrt/, — If a trademark, the reputation of which depends on \\w excellence of the ma nn- I'actnre, ov the skill and Inmesty of the manufac- turers, can lie legally assigned. 187(5, ^Supreme Ct. of 7?. /., Carmichael v. Latimer, nnreported. See Partneusiiip. Also §§ 87, 88, 92, 164. ^. 62 Association — Books. ASSOCIATION. See Origin and Owneusiiip, and §§ 201, 694, 750, 710, 1010. ATTACHMENT. See Contempt. AUCTIONEER. See Vendor. BANKRUPTCY. See §§ 121, 135, 142, 162. BARRELS. Peculiar shape of, not a valid trademark. See §§ 983, 985, 986. BOOKS. See Publications. BOTI'LES— Bu ILDINGS. ns ■ m mWm Si- BOTTLES. Peculiar shape of, not u valid trademark. BOXING. ^ inO. A selection of boxes, signs, colors, l:d)el», the ])lirns(M)l()gy of cautions, jind styN; of Jeltering-, tiiay all be designed to aid in liie per[)<'l ration of a fiaud, and may be th(* most concbisivc^ (nid t^aiidf. Kiiprrior VI. 723. j^ 1(51. The name establislied for a hotel is a trademark, in wliich tla^ proprietor has a valuable interest, Avliieh a couit of equity will protect by in- junction. J8(»;?, Sitprt'iiie rV. of Cd/., Woodward 0. Lazar, :2l ('((/. 44S. ^ 1(5:2. A p(>rson may have a ri,2;lit, interest or j)roi)erly in a paitieular name, which he has uiven to a i)articular house, and I'or which house, under the name <;i veil to it, a reputation and good will may liave been acquired ; but a ti'uant, by g'iviut;' a })articulai- name to a building which lie a]q)lies to some ])articular use, as a sign of the business done at that place, does not thereby make the name a lixtui'e to the building and 'j'ansfer it iirevocablv to the landloid. Accordir .y, whei'e the [)laintilt*, the lessee of a lot of land, erected upcm it a build- ing, which he occu[)ied as a hotel, and to which he gave tlu; name of ''What Cheer House," and be- fore the expiration of the lease purchased an ad joining lot, ui)on wliich he erected a largei' build ing, and for a time occupied both buildings as the " What (Jlieer House," the jjilncipal sign being re- moved from the first and i)laced ui)on the second building, and in November, ]8(i<). surrendered the leM.ied premises, with the buildings, to the owner of the land, but ccmtinued to cany on the " \Vhat Cheer House " in the adjoining building aforesaid, 15lildi.\gs. r)o nii;l ill J;iiiii;iry, 1fotei'tion in tlie exclusivti usii oC the name as j)i-opiietoi' of the new house. 1 1, id. i nj:>. Where I lie plaintilV had consented to the use ol' his name as a trademark by the defendant for a h(»tel, and the i)late and other articles in the hotel, and had afterwards withdrawn such con- sent, and it ap])eare.d that the plate and other arti- cles, marked with the name, would heconie value- less if their use was enjoined, and that no serious injuiy f':)m such use would accrue to the plaintilf, it was /i. hi that oidy the use of the nante, McCar- ih'l House, upon the huildiiii,^ itself, as a business siu;!!. wouid he prohibited. 18(54, X. Y. Sifprtnu' (if., (1. 7;, McCardel r. Peck, 28 ll(>u\ Pr. 120. ^ 1(54. An agreement by the ])roprietor of a hotel with, and license to, another, jtei'mittinn' the latter to i)lace the name of a hotel upon his coaches, such arraiiLi'iMuent to continue so lonu; oidy as the ))arties were mutually "satislied." held to be a valid contract, and would contiiuie until teiniinated by a notice from either party. Continuing- the use of such name, ])y the licensee, after the license has ceased, or is terminated, may be restrained. The l)roprietor of a ^■olel, and his licensee, may each claim the protection of the court for any vi(>lation of his individual rii^hts, and the pendency of a suit by such licensee, for the injury he has sustaine' i .■■■- i\. mw '% \ 1*:- m n ifi vr mm 56 BUII.IUNGS. N. Y. Suprr/or CI., R 71, Deiz r. Lanil), (5 AWV. r>:J7. ^' Km. Ill IS(;s 111.' i»kiintilf hiiilf ii tliciircr wliirh lie cMllcd " Booth's 'riK'iit'.M'." I'^'om I'\'l)ni:iry, IS(5!), to Jjiiiiiiiry :>(>, IS7;{, he uiantincd said theater aiul obtained I'or if a <2,reat r(»[)Utatlou iiiuhT said name. PlaintilV re-leased said theater under tiie desiunatioii of " Booth's Theater" to .1. !>., on Jan- uary :{<>, 187;}, and on Apiil 7. 1874, .1. 15. assigned said lease to der«'ndants. PlaintilV had iiiort,u,a,i;'ed the ])reniises under said designation, and in the foreclosure suit of the mort,S'. T., Boo\h c. Jarrett, 52 Ihno. Pr. 100. See also ^S 124, 12.1 147, 149, ir>3, 511. Causk of ACTIOX. 67 ; \ '5-' t'i BUSINESS SIGNS. liifrinfj;omeiit iind iinitjitiou oC l)iisiiiess .signs. Seo Signs; Buildings; Pai:tni;usiiii'. CAUSE OF ACTION. §170, An iiclion upon the case was l)iou,i>;lit in the Coninioii l*leas by a clothici', thai, wlicicas h(? liad u'aiiKMl uTcat reputation for liis iiiakiiiu' of his ('loath, by reason whereof lieliad great utterance tohisgi-eat benefit and prolit, and that he used to h't his mark to his ch)ath wherebv it sliouhl be Jvuown to b(^ liis <'h)ath ; and anofliei' ch»thi«^r per- ceiving it used the same mark to his ill-madf ch)al h on ])ur|)ose to (h'ceive him, and it was resolve/)// ff.'// R. 14;}, And Doderidge citcnl a case to b(^ adjudged :>;) Eiiz.. in the common bencli : A clothiei- of (.Tloucestershire sob I very good cloth, so that in L(m(b)n if tiiey saw any cloth of his mark tliev would buv it without seaiching tlier(M)f ; and another, win* made ill-cloth, i)ut his mark npon it without liis privity; and an acti(m n])on the case was brought by him who bought the cloth, for tliis deceit, and adjudged maintainable. 2 Cro. Jar. 471. But see S. c!, 2 liidh'. 11. 28, where Lord IJoLLi-: expressly states that Dodcridf/e did not say whether the action was brought by the clothier or by the vendee, but adds: Sc/jtl/fc c///r? r//.s7 /iitr 1e rmdee. See S. C, commented u])on in 4 M. ct- a. :]S0. ^ 171. The plaintiff, for a long time, had been H\n V '1 kV ■'. h ^J^ -^ 58 Caus^k of Actiox. !i nianufiH'liircr ol' sI ; jiiid s.-c S. ('.. Ksns, 4 Kcf/A.'.f. (;."■)(». i^ it:!. WIk'I'c ji i»iiiit('i' hiul bciMi in llic linbit of j)iiiiliii,u' ;iii(ls('llin,!4" indisciiininiircly liilx'ls ('oiitiiiii- iii'j," a f'opy <>i' <'((l()ial)le iiuifulion ol' llic tradi'iiiark of the plaiiiliir, tlu* n'!el»rat('(l inaiiiira«'lMi('r of can do cologne, and the plaint ilf had lilcd his hill Tor an injnnction to resti'ain snch print in,u- and scllinu'. wliicii was u'lanted by \Vo(»i», \'. (\, the Luid Chancellor dissolved tlie injnnction, with lihcrty to the j)lainlin' to hi-ini;" an action, on the .uToiind that it ap[>eared by the eviihMice that Ihei-e was a. leii'iti- inate object Tor which these labels niiu'lit \h\ api>lied by retail dealers, vi/, : to replace soiled labcJsalUxed to bottles <"ontainin,ii: tlie ^'ennine eau de cologne ut llu^ user cd' such bottles so as in fact to mislead I lie piiMie, altliou^Mi iiniiiteutioually, would l)(! rest rained, ()hil< r. J hid. ^ 17(5. Whether or not the onus was thrown ii[)on derendant of hd'orniing (lie |)Ml)lic that it was not plaintiirs soda water he was s^Ilin^. Quaere. I hid. '^ 177. The hill was tiled by an American tiadin^ coiniKiny. incori)orated by the law of the State of Connecticut, for an injnnctioi; io restrain the de- fendant, a manufacturer at 13irmin,<;liani, from con- tinuing- \\u^, fraudulent use, as alle^-(.'d, of the trade- marks of lh(» [jlainlill's, and for an account t>f the prolits m:ide by him fr(»m such use. The defen- dtinl, by his answer, admitted the user of the tiade- marks com[)lained of, but by way of rebuttal t)f thech:irii,'e of fraud, stated that in so usiiiu; the said trad(Mnarks he had only followed a custom preva- lent at 13irmlnMi]M»ii stiiiid disniisscd \villi costs. 1S,V.), Vice Cli. Kindimisi.ky, Collins Co. /'. IJocves. *J8 Loir Jour. (' h . .'■)(5. ^ 178. Witlioiir ii pMtciif 1'roni the .Q:ov('rnni<'Tit no one has an exclusive riuhr to inaiml'acliir»> and sell pills as ji useTul invention. Theiel'oiv an in- iiinction will not !)e oianted to i'«'strain an innocent defendant from iiiannl'actni'iim'. advertising; or sell- ing by nny name, desiunation or tradeinai k lesem- blinn" ]»laintitf's, pills pn^dsely like those niannfac- tni'ed ;ind sold by the piaintiff, nr pills «'onn)os(!d of the same elementaiy consiii utMits. ISDO, .Y. )". Suprnne CL, S. T., Comstock (\ White, IS JIo/o. Pr. 421. ^ 17i). A havin.i^ infrini^ed B's trado;nark on a blistei'ing ointment mannfactnred by A, it was agreed between them that all claims in respect of such invasii-:in(l, was dcjujsited with wlinilin,£2,eis. who, liaviiiLi" notice of the fraud an'A pjirts from various makeis, and putting: tlicni to2;ptli- (Tsoas rororin a conqjlete liik'. wliicli, after liavino; Ix'Pii viewed 'ind approved l>y liiiu, was sfaiiijied with liis i:ani(.» and trad»»mark on the lockplatc as a i:;uai"intee tlitit it liarl been exaiiiiiUMl and appictvrd liy liitn. lie also iitted to the rill<\s hnei's manu- factured by himself, foi' wliieii lie liad taken out a patent, and these levers were also niaiked with his name. The idaintiff's rilles so marked with his name had a ^-reat reputation. The ])laintilf snj)- ])lied I'illes so marked and ,t;"uai'anteed by him to the uoveinuKMit. and wlnni they l)eeaine unsuitable for u'ovennnent 'turposes they were taken to ]>i('ees and some of the parts mutilated and sold as old stoi'es. The dc^fendant bou^'ht some of these old stores as old iron in market overt, ineludin,!;: levers and loekplates with the plaintiffs name and trade- mai'k up(m them, and litted them to old rille bar- rels, which had been cut down to the siz(» oC car- bine barrels, and were not suit(>d to the action which f(n'med part of the rilles, as passed and uuaranteed by the ])laintiff. At this time the plain- tiff's ])atent foi" the lever had expirtnl. The coui't granted an injuncti(m to restrain the defendant fi(mi making' up said loekplates and level's into tiiearnis and allowing- plaint ilFs ti-ademark to I'e- niain on the loekplates and levers so as to induce the pul)lic to believe that the iirearnis were manu- factured by the plaintiff. 1874, Vice Ch. Bncon\s r/., Richards v. Williamson, 30 L. T. {N. S.) 740 ; 22 W. 11. 70.'). ^ 184. The plaintiff, a ci-ht an action to restrain the alleged inl'iinge- ment of his trademark. On a motion for an in- junction against the defendants, luid, that, there being no evidence of any contiact that (J should supply the plaintiff exclusively with that descrip- tion of cigars, tlie court could not on an interh^cu- tory a])plication restrain the defendants from using the label. 1870, Jcs^d^ M. R., Ilirsch d. Jonas, 4n //. ./. {^N. S.) Ck. 864; S. C, B'nff. L. li. 8 Ck. Dio. 584. See also §§ 821, 826. CIRCULARS. See Publications (Advertisements). CITY— NAME OF. When a valid trademark. See Name (Geoghapiiical Name). COACHES. Names of, when protected. See Vehicles. Contempt. 65 COLORABLE INFRINGEMENT. What constitutes a colorable infringement. See Imitation. COMMON USE. See Words ; Acquiescence. CONTEMPT. § 190. Where an injunction is granted to restrain the use of a trademark, and the defendant disobeys, and the plaintiff moves for n commital, acquiescence, if set up as a defense against the motion to commit, must be shown to be such as to amount almost to a license to use the mark, and entitling the defend- ant himself to a right in tlie use of the mark. 1858, Ch. Ct. of Appeal^ Rodgers v. Nowill, 22 Lam Journal li. {N. S.) Ch. 404; reversing S. C, 17 Jurlsf, 109, and S. C, 17 Bnr/. L. «& Eq. 8:3. § 191. When there had been a breach of tlie in- junction, the Vice Chancellor (Wood) refused to commit in respect of such breach on account of the plaintilFs delay in coming to the court, but ordered the defendant to pay the costs of the motion. July 12, 1801, Cai tier i\ May (unreport- ed), Reg. Lib. 1801, A. 1738 ; cited in Ludlow & Jimkiins on I'radciuarks., 42 ; and see Rodgers 'G. Nowill, 8 i). 3f. c& G. 014. § 192. The defendant had, by a series of inge- nious substitutions, managed to evade the letter of : mil 1 * I ■k ■IllUlf IP T 66 Contempt. the injunction, while evidently hivakini? it in spiiit, and the court accordingly was obli,, 1861), where a perpetual injunction was obtained in the year 1850, for the breach or the alleged breach of which a motion for committal was id'terwarch^ made, but was refused, and his Honor observed, whe* amotion was made before him on the ':^ 458, 403, 472, 478. ^ 211. An interim injunction having beini granted to restrain the defendant from continuing the publication of a song, containing a colorable imitation of the title-page of the plaintitr's song, a!id the defendant, instead of submitting, insisted on his right to continue the publication of his song, tind brought the nuitter to a healing, when th?^ injunc- tion was continued. Ihld, that the defendant must pay the costs of the motion against him to continue the injunction, although it appeared that no application had been made to him by the plain- tiflf to discontinue his publication previously to the filing of the bill. 18r)o, Vice Ch. Wood, Chappel V. Davidson, 2 ICay & J. 123 ; and see S. C, 8 De G. M. & G. 1. ^H' m\ ■I,-.' M ! r Sir, : 70 Costs. § 212. In oases where an injunotion restraining? the nse of a trademai'k is dissolved hecause tlie mark is false and fraudulent, and the plaintiff for that reason not entitled to the ])rotection of a court of equity against an infringement by the defendant, the order dissolving the injunction should be without costs, because the defendant ceitainly has no title to receive them. ]8.")7, -Y. V. ^Superior cy., .S'. 7% Fetridge c. Wells, 4 Abh. Pr. 144; S. C, rSJ/oio. Pr. JiSo. S 213. The defendant, insisting on an adverse right, after being made aware that the plain- tiif had been defrauded through his agency, was ordered to pay the costs of all <^lie pioceedings, both .it hnv and in equity. 1858, V. 0. Wood's 01. , Farina v. Silverlock, 4 Ka// d- .T. CoO. § 214. A suit was instituted to restrain the user of a trademark, and for an account. No applica- tion was made to the defendant before suit, and the defendant said he would have desisted if apjilied to. At tlie hearing tlie account was abandoned, but a perpetual injunction was gianted. lld(h that the defendant must pay the costs. 18r)8, RolU in., Burgess?). Hately, 26 Bear. 240. § 215. The defendant innocently used the plaintiffs trademarks, and, on being served with the bill, removed the labels, and gave an under- taking not to sell any more, but refused to pay the costs. The suit was continued to a hearing, and the account of profits, which were very trifling, was waived. Ileld^ that the defendant must pay ihe whole costs of the suit. IS.IS, Roll a Ct., ]5urgess v. Hill, 20 Bea}). 244; S. C, 28 L. J. R. {N. R) Oil. 850. § 210. AVhere an offer is made by the defendant w Costs. 71 !iH'l:H III ' after bill filed to (liscoiitiiiiie the viso of tlu* ]»l:iiii- tiif's trjulS'.) 020. ^221. The defendants with j)erfect bona fides liad adopted a trademark bearing a general re- semblance to the plaintiff's, but dill'ering from it in several particulars so that nobody could be deceived who looked at them attentively. Before and after suit, defendants offered to alter their trademaik, so as to make it distin(!t from the plaintiffs. The offer before suit was not accepted. The trourt was of f)pinion that the offer should be adheied to, and dismissed the bill with costs to the defendants. Ibid. ^ 222. A defendant whom the court held, on the chief point in issue, to have been guilty of a fraudu- lent misrepresentation, was, though successful on another point, ordered to pay the whole costs. 1809, Vice Ch. James' Ct., Wheeler & Wilson Manufacturing Company v. Shakespear, 39 L. J. II. {N. S.) Ch. 30. § 223. A trademark has not, of itself, as dis- tinct from the value of the article of which it is the trademark, any money value which can constitute a money basis on which to compute an extra allow- ance. 1871, N. Y. Superior Ct. G. T., Coates «. Coddard, 34 N. Y. Superior Ct. (2 /. c6 S.) 118. § 224. Bill by the jjlaintiif, a merchant, to restrain the defendant, an agent, (who received goods from the continent, and forwarded them to parties in Costs. 7.'? Enti^lnnd for n com:nission,) from forwu-diiii^,- ,u' >. .,.ls, l)(>Mi'in^' a, for^'cd imitation of tlu^ plaint iif's tiadc- mai'iv On a lii'st application, t he dclVndant readily •^•ave the names of the pei'sons from whom and l(» wliom the ^'oods Aver( sent, hut declini^d to i;i\(» an inKhMtakin'A" not to *'.ke them onr of llie dock. //('/(/, that uiid(!i' the circumstances the derenda::t should neither pay nor receive costs. S( iiihh\ il" he liad refused to give liis princiiiai's name, he woukl have liad to pay costs, and il" he liad niider- takeii without suit in the terms prayed, he woukl have been entitled to Ids costs. A j)ers(»n to whom the floods were sent, and who was innocent d' fraud, was made a party. Iltla, that he was entitled to his costs, Tlie jiei'sons by whom the goods were sent were in c(mimunication with th<'ir agents during tlie proceedings, and liaving no property "witlnn the jnrirdiction, except the goods, were not made paities to the suit. Held, that the plaintilFs costs sliould be diarged on tlie goods, with liberty for the owners to intervene. ISTl, Itolls (Jl., xVllones v. Elkan, and Cpmann i\ Eikan, 40 L. J. li. (xY. ^'.) Ch. 475 ; S. C, L. li. VI F.(/. 140 ; S. C, 19 W. li. 807; S. C, aflirmed, 41 />. ./. JL (iV. -S'.) C/i. 240; S. C, L. 11. 7 Vh. i;5(); S. C, 20 ^Y. R. 131 ; S. C, 25 L. T. R. {K. K) 813. § 225. The court will give no costs on either side in a case where both plaintiff and (kdVndant are engaged in the manufacture of an article intended to be used to deceive and nuslead the public. 1875, C7i. Ct. of Appeal., Eastcourt v. Estcourt lioj) Essence Company (limited), 44 L. J. It. (/Y. S.) C h. 223; S. C, L. li. (10 Ch.) 270 ; S. C, 32 L. T. R. (iY. /^'.)80; S. C, 23 W. li. 313; reversing S. C, 31 L. T. R. (xY. 8.) 567. •il »ll VY l:. i ' ^ 74 Ckimks. ^ 2:2(5. Costs irl'iiscd wliere pljiinliir liad doljiyecl (^omiiH'iiriiiii; suit, 1870, A\ )'. Xniti'tnir r/., Si'ivitil Tcnn, Amoskcji^ C()m])i«iiy ti. Garner, 4 Aiaciicaii Laic Tltius 11. (iV. aV.) 170. CRIMES. § 230. An indictment for false pretenses will be sustained by evidence, that the prisoiiei- liail sold to the prosecutor blacking?, wliich he had asseited to be Everett's l*reini«M', and which bor<' a label nearly, but not precisely, inutatini;- Everett's labels, the said blacking not being Everett's I'reinier, but a spurious manufacture of his own. V6h\\, Yurk Assizes^ Rfg"- ''• Duiidas, Cox Crim. C(fs-r.s\ oSO. § 231. Hi'inbh'., that if i\ man in the course of his trade or business, ()])enly cairied on, i)Uts a false mark or token upon a spurious article so as to \){\, ti> ()htn\n\nUms(':s. I8.")S, Cotirl of t'fiiii. Apptal,, Jlc;;-. r. Siiiilh, DiarHlvij d- B. hm ; S. C, 27 Laio Journal Mag. C. '22:). See j; U02. DAMAGES. §21^5. The owner of ti tiadcmaik is eiitill-jd to nominal damages for the viohitioii of his trade- mark, althoiiu'h it is not shown tliat h;; lias sus- tained actual dama,ii:«% an;l althoiiixh the delV-ndant's articles ar(^ not inferior in (|uality to his own, 18:«, CY. o/' Kiiiff.s JirHrft, niolinld r. Payne, 1 iVer. & Man. unii ; S. C, 4 Barn, d Ail. 410; S. C, :jz. ./. 11. {N. H.)m. ^ 2JJ0. Vindictive damages are not to be al- lowed in an acti(m for the violation of a trade- mark. 184(;, U. S. Cucuil CY., Mass., Taylor w. Carpenter, 2 Woodb. t£- M. 1. ^^ 2'iM. The i)roiier measure of damages is the profits realized upon the sales of goods to which the spnrioiis marks were attached ; and it is of no consequence that such goods were equal in {puility to the genuine. 1846, Taylor v. Cai'pentei', ihid. % 238. Where the nse of another's trademaik originated in mistake and not in design, the i)arty may be exempted from damages and costs. Obiter. 1849, jS'. Y. tiuperior Ct. 8. T., Amoskeag Manu- fscturing Company «. Spear, 2 8and. Hvpcrior Ct. mQ. But see §§ 452, 459, 462, 464, 472, 474, 478, 830, 1003. § 239. In an action on the case brought against the defendant for holding himself out, by using the name "Kevere House" on his coaches, as having :t 1:1 «T^ 1 76 Damages, the patrona.f^e of that house, for the conveyance of passenf!;er.s, when the plaintiffs,hya,i?reement with the lessee of the llevere House, had that exclusive right. Held, that if the jury found for the plaintiffs, they would be entitled to snch damages as tlie jury, npon tli(» whole evidence, shoukl l)e satislied they haxl sustained ; that the damage would not be con- linod to the loss of such X)assengers as the plaintiffs could prove had actually been diverted from their coaches to tliose of the defendants, but that the jury would be justified in making siu'h infei-ences as to the loss of passengers and injury sustained by the i)laintiffs, as they might think were warranted by the whole evidence in the case. IH.")!, J^'ffpreme Judicial CI. of Mass., Marsh v. Billings, 7 Cash. 322. g 240. In an action to restrain the violation of a trademark, as to the issue on the qnestion of dam- ages, a party is not privileged from answering a question which will reveal the materials with which his compound, Avhich he sought to protect by the trademark, was prepared. 18G0, iV^. Y. i^upcrior CI. G. T., Burnett v. Phalon, 11 iVbb. Pr. 157; S. C, 19 How. Ft., 030. ^ 241. The expenses of obtaining an injunction cannot be embraced within the range of damages for the infringement of a trademaik. 1801, i\'. V. i^upcrior CL G. T., Burnett i\ Phalon, 21 How. Pr. 100; S. C, 12 Abb. Pr. 186. ^ 242. An exception to the exclnsicm of an offer to prove a loss of danuiges by reason of the defend- ant's infringement of a trademark, coupled wilh the condition that the wirness (party plaintiff) would not disclose the ingredients of the manufactured article containing the trademark, cannot be sut;- Damages. 77 tained, wliore the couit liave previously decided that ii" tiie phiintiif elaimed damnges by reason of a k)ss of prolits, he must, if lequij-ed, slate the iu- ^•redients of his comi)ound, although he was jiot ('oini)elled to do so. 18G1, Burnett v. Plitdon, ibid. § 243. Where a defendant is ordered to account foi the prolits made by liim tln()Ui2,h a wrongful use of the plaintiff's tradenunk, he cnnnot be charged with bad debts as profits ; but on tlu^ other hand, he cannot cliarge the plaintiff witli the costs of manufacturing the goods in respect of which the bad debts were incurred. 1804, Vice Ck. \V<>of/\s CL, Edelsten v. Edelsten, 10 L. 7\ R. {N. S.) 780. § 244. Tlie bill in the cause had been tiled to restrain the infringement of the ])lnintiifs" trade- mark, and a decree had been ol)tained for an in- junction. A decree for an account of i)rolits had been ofi'ered by the court and refused by the plain- tiffs, who elected to take, in lieu thereof, an inquiry as to damages arising from the use by the defend- ants of their tiademark. On such inquiiy, the plaintiffs did not prove direct damage, and could not show lo what extent their trademark had been used, but claimed damages equal to all the prolits made by tlie defendants on all their sales of cloth. Jleld, that they were not so entitled, and had not given sufhcient proof of any damage sustaincnl ll)y them. Tliat on such an inquiiy, tin; onus lies on tlie plaintiffs of proving some special damage by loss of cus'om or otherwise, and it w^ii not be in- tended, in the absence of evidence, that the amount of goods sold by the defendant under the iVaudu- lent trademark, would have been sold by the plain- tiffs, but for the defendant's unlawful use of the I: IF ...J m ^1 W|^^ 78 Damages. plaintiffs' rrinrk. 1805, V/ce Ch. Wootr s CL, Lo:itlier Cloth Company (limited) v. riiisciilield, 113 L. T. n. {N. S.) 427 ; S. C, L. Ji. 1 Ef/. 209. ^ 24."). An aiTount of prolits refused on tlie p-ound of delay by the ]>laintiffs in commencing the suit. 180."), Vice Vh. \Vo«)(/\s' CL, Ilanison /'. Taylor, II JuriH{N. .s:)4()8; S. C, V2 L(ttP Times {N. /S'.) 339. Approved and followetl ; see § 251, infra. ^ 240, In an action to recover damages for a violation of plaintiffs trademark, the profit actually realized by defendants from the sales of the spur- ious article nndj-c>/(r Cf. Cirr/n'/, Wcrd r. IVtci-son, 12 Ahb. Pr. ^\ K 178. vj 240. On an assessment of daniai^es. l)y ivason of an in!'i'in<;'enient of a trademark, tlie referee found that i)lainti(Fs djimni^es Averi* e{iii;d to thr, prolifs they could !iav(^ made froni the uiannfaetnre and sale of tlie same numbei' of artieh's which (h'- fendant lind sold with the simnhited ir:i(h>ui:irlv thereon, llthl^ on a])peal, tliat there was no erroi* in said assessment. 187."), lA". Y. ^u[)r('iii(iH. ^L 7'., Fli'.sl D('p(.^ Dt'(\ 'JO, Faber /j. Ilovey, ii in'cjXHird. ^ "27)0. Where, in an a('ti(m for violatinu' a cov- enant not to miinufacture a certain ai'ticle, plain! iff merely cliarges that defendant lias diverted i)lain- tilf s patrouai^e to liimself, and thereliy injured or destroyed the good will of plaintilf's business, wit'h- out alleging any claim to the profits made l)y (h»- fendant (m articles, tiie exclusive right to manufac- ture wliich belonged to phiintiff, or to the profits derived from the use of a trath'mai'k, the exclusive right to which was In i)Iaintilf, his measure of dam- ages is not what defendant has gained but what he has lost l)y the breach, whether defendant's profits have been greater or less than that amount. And in ascertnining i)lainiifrs losses, defen(hint"s prolits ma3' be given in evidence in connection with the diversifm of customers from plaint ilf to defendant, and the amount of plaintiirs i)urchases and manu- factures and sales, and any reduction in the price of articles sold in consequence of the unhiwfnl com- petition. 187(5, SitjjreiHe CI. of Missouri., Peltz V. Eidiele, 62 Mo. 171. § 251. Damages, account of profits, and costs refused, where plaintiff liad delayed commencing suit. 1876, N. Y. Supreme Ct., k T., The Amos- i n < m^ iiWi I' fp^l 80 Deception — Defenses. keag Manufacturing Company v. Garner, 4 Am. Law Times Ji. (if. S.) 176. See also Discovery. DECEPTION. See Evidence ; Intent ; and Imitation. For cases of deception on the part of the plaintiff, see Misrepresentation. When evidence of actual deception of purchasers will be required in order to sustain plaintiff's right of action, see §§ 286, 289, 296, 297, 340, 343, 346, 349, 360, 368, 369, 377, 381, 389, 391, 395, 399, 400, 401, 447, 455, 494, 586, 850, 906. DEFENSES. I. — Misrepresentation on the part of the plaintiff. See Misrepresentation. II. — Laches, license, acquiesence, limitation. See those titles. III. — Prior use. See Prior Use. IV. — Words in common use, generic terms, de- scriptive names, geographical names, etc., cannot Defenses. 81 be protected and their use will not be enjoined, ex- cept in certain cases. See WoiiDs ; Name. V. — What are not ftood defenses. ■1 it ,..,, § 2.")2. Neither alienage of the ])ers()n wln)se trademarlvs are simulated, nor the fact that he resides abroad, constitute a defense. See Ai.rKXs. § 2.");j. To }in action for the infringement of a trach'mark it is wholly immiiteri:d whether tlu? sim- ulated article i' or is not of equal goodness and value with the genuine article. See Quality. ^ 2.')4. It is no excuse or defense that others have used the i)laintiff s ti-ademai'ks ; this rathei- aggra- vates than excuses the misconduct. Taylor i\ Car- penter, 13 '^loi'i/, 4r>8 ; Coats v. llolbrook, 2 Haitt/f. Ch. 586 ; and see Acquiesexce. ^ 25."). It is no answer tluit the mnker of the spurious goods, or the jobber who sells fiiem to the retailers, informs those who pui-cliase that the arti- cle is spurious or an imitation. 184,"), Vice Ch. Saxdford, N. F., Coats t. llolbrook, 2 f^andf. Ch. 586 ; S. C, 3 N. Y. Ler/. Ohs. 404 ; and see § 860. § 256. Ifelr : That a defendant could not esciii)e his liability for the infringement of ;i ti-jidemaj'k by cautioning his shojmien to explain to j)urcliasers that his article was not the same as the plaintilf's, because he could not secure that retail dealeis pur- chasing from him would give the same information to their customers. 1855, Vice Ok. Woof/'.s CY., Chappell r. Davids(m. 2 Art// dJ. 128 ; S. C, Okav eery CL of App., 8 De G. M. & G. 1. 6 • ■ -m- i' * If- it. iii|i!> m 82 Definitions — Desckiptiv e Name. § So?. As to whether want of an intent to deceive or defraud constitutes a defense, see Ixricx r. ^ 2i")8. It is no defense that the defendants liave not used all the i)laintiffs"' labels ; it is siilficicnl if there has been a violation of the plaintiffs' rights by the defendant in imitating and usini!; any of the hibels with a view to deceive the public. 1844, 67/- cail CL U. >S., Mass. D/'sL, Taylor c. Carpenter, 3 S/orf/, 458. See Imitation ; Exclusive Use ; Name ; Publi- cations ; Injunction ; Partnership ; etc. DEFINITIONS. See General Principles and Definitions, §§ 1-37. DELAY. Wlien ground for refusing an injunction. Limitation ; Laches ; Acquiescence. See DEMURRER. See Pleading. DESCRIPTIVE NAME. See Words ; Name (Descriptive Name). Dkvicks. 83 '1 ;• '. * DEVICES. § 2G0. The plaintiir had been in the hiibir df u.sln,!;' M lion stamp n])on cei-tain flotlis of their nianHl'aeture, made ror the Chinese niaik(^t, upon otliers an eh'pliant sliunp. These ^-oods were well known in tiie trade as " the lion chop," and "the elephant cho])/' It was hekl that such marks wt^re marks ol' (piality, and that theie was sneh a eohtr- able imitation as to injure the plaintiff's trade by the greater elieapnes.s oi" the inferior article, as well as by loss of the character of tlie plaintift"s uoods in tlie market. The injunction gi'anted was not to restrain altogether the use of such marks as the lion or elephant, by any other i)arties than the plaintiffs, but to restrain the use of them in any maimer which might rejHesent the goods so marked to he the plaintiffs. Ilenderscm /'. ,loip (V. (■. Wood, June 22, iSOl), cited \\\ LJoi/d on Trcr/f i/;(ii7iS\ p. ;")4. ^ 201. The illustration of a crown, ai)plied as a brand, by stencil plate or die, to cases, casks or vessels, containing paints, or printed on hibels or wrappers applied to such vessels, or on business cards, notices or placards, advertising such paints, may be a lawful trademark, for, when used in con- nection with paints, it may designate, by associa- tion in the minds ol purchasers of, and deah'is in such article, the origin or ownershij) of such article as being in a iiarticular manufactuier. 1872. (J. S. Circuit CL N. T., Smith /'. Reynolds, K> Blatch. a a 100. § 202. Plaintiff and defendant were refiners of lard, and packed the same for market in tin vessels. '^^ffS/. ■■'¥:■ ;iire of a boar surmounting a heinisi)iiere, and the word "trademark," adjoining the same, also his name and the words "prime leaf lard." Plaintilf claim- ed his device to his exclusive use as a trademark to be placed on packages of refined lard made by liim, and sought to enjoin the defendant in the use oi his device. It ai)i)earing from the evidence : — 1. That, although the plaintilf ckiimed to have used his de- sign for lifteen years, yet, on the witness stand, he could not tell who invented the device for use, on either crude or refined lard. 2. That, since 184."), the figure of a pig or swine had been extensively used on packages of natural or crude lard, by many persons ; and, since 18r)0, on packtiges of re- lined lard packed in wooden vessels; and that, from 1800 to 1808, one Brewster, a relinei", used the said device on tin boxes, aitlnjugh not stamped into the metal of the i)ackages ; and, for a long time past, h'/i pac/i'ar/e.s had been used by the ti'ade, for packing and shipping reiined lard. Ildd, that these facts establish in the plaintilf no exclusive right to the use of the figure or device of a pig or swine, on tin packages of crude or reiined lard. 'J'here is nothing, either in the device itself, or in the coTubiniition in which it is, (U' has been used by the plaintilf, which gives him any exclusive right to the same. 1874, N. Y. .Superior Ct. G. 7\, Popham V. Wilcox, 38 iT. Y. Superior CI. 274; and see S. C. at 8. 7'., 14 Abb. Pr. {N. S.) 200. i ) DiSCOVEKY. 85 §263. A device repiesentinj^' nn orl) ri.siiig l'i(»in the water, protected. See j^ 008. § 204. Where the phuntiif hiid lust adopted and npju'opriated tlie device reprcsiMirinu' I'ays ol' lig'ht, or sun's rays, as a trach'inark for ciuarcttes, lie was protected by injunction in its exciiisive use. 1877, A^. Y. Hap rem e VI. ^ *">'. 7'., Kinney (\ Basch, unrei)orted. See also Imitation, g 32r> to ^ 409, and ^^ ;J27, 359, 372, 376, 382, 428, 094, 980, 1035. *: DISCOVERY. § ^70. The i^laintift" conii)lained that the defend- ant had sold, under the plaintiff's nani(% sewing' machines which had not been manufactured by him, and he sought a discoverv of all the machines sold by the defendant, the price, tli<^ i>roiit, the names of the purchasers, and othei- ])aiticulars. The defendant refused to answei', saviiia,' that \w would thereby disclose the names of his customeis and the secrets of his trade. Jldd. that he was bound to answci\ 1802, 7^V/,s' CL, Ilovve r. McKer- nan, 30 Bcrrr. 547. ^ 271. Where a deci'ee has been made directing the defendant to account for all goods sold by him with a particular stamp thereon, he is comi)el]abIe to disclose the names of all persons to whom he has sold any such goods ; and if he be unable to give such information precisely, lie may then (but not otherwise) be required to disclose the names of all peisons to whom he has sold any goods which he will not swear positively were unstamped. 180L' t , 1 *4 I *• i! '■ i ' « ii.. > 'H * K' ^f • li ' m i » ^^ ''1' :f f , i ! ' f ; i \ r ■ ■ ■■>" '^1! '. ■ , \ v.. '■S- ' 'Tr'- my rh Mi,: W\ I^P If 86 Discovery V. C. WoofTs Ct., Leather Cloth Conipriny (limired) V). Ilirschfekl, 1 //. (£• M. 2. ^ 273. The defendants, in a suit to restrain the in- fringement of trademarks, having sealed up certain l)arts of entries and letters admitted to relate to the matters in question in the cause, were ordered by the Duchy Court of Lancaster to unseal the names of customers, and of x)laces, and tlie prices, forming parts of such entries, and to unseal the X)ortions of letters and copies of letters which c(m- tjiined the names of the writers and of the persons to whom the letters which were copied weie sent, and the places to and from which the letters weie sent, and the description of the marks to be placed, or which had been placed, on the goods relV^rred to in such letteis. JleM, on appeal, that the defen- dants ought not to be comi)elled to disclose the names of customers, or the names of persons to or from whom letters were sent or received, or any prices inasmuch as such discovery might be used in Emulkm. 87 a iTuinner prejudicial to the det'endants in their trade, and Vvas not likely to assist the ])laintills in niakin<^ out their case at the hearinu' ; but that the order of tlie Vice Chancellor was, in other iesi)ects, ri<'ht. lb',(L Jji?74. Plaintiffs, by their bill, alle^jed tluit goods bearing connterleit trademarks, similai- to their own trademarks, were being sold in laige qnantities in V. and elsewhere. They also alleged that the defendants, who were ship])ers at L., Iiiid shii)i)ed large qnantities of these goods to \'. Tliey Avrote to tlie defendants, asking for the names iii»d addresses of the i)ersons who had shipjjed the goods. On receiving no answer they commenced an action for discovery. Ihdd, overruling the de- mnrrer, that the defendants must answer inteirog- atories within one month. 1870, Vice Ch. IJaW s Ct., Orr v. Diaper, 40 L. J. {N. JS.) C/t. 41. See also, § 224. i tl n EMBLEM. See Devices, §§ 200-209. EQUALITY. Equality of goods upon which simulated mark is placed not a good defense. See Quality, § 912, et seq. m -J.M.: WTf" ijP EVIDKNCK. evidp:nce. § 280. Where tlie declaration iii case, for t\m violation of a trademark, stated tliatdeffMidaiits sold ^oods, marked with the same name as tlie plaiiitilTs, as and foi',ii:()odsmaniiraetiired hy the plaiiitill' :and it appeared in evidence that the persons who l)on,i;ht the goods of tlie delendanfs knew by whom they were mannfactnred, but that the defendants usetl the plaintiff's mark and sold the goods so marked in order that his custcmiers might, and in fact they did, re-sell them as and i'or gootls manufactuied by the plaintiff. IMd, that this evidence supi)orted the declaration. 18:24, Of. of Kiaf/'s Jknrli, Sykes T. Sykes, 8 Barn.. & C. 541 ; S. U, 5 DowL ct- /j*/y/. 292. ji 281. In an action on the casp for the violation of a trademark it was proved that the plaintiff had informed the defendants that he considered the mark nsed by them to be an imitaticm of his own, and reqniied them to desist from using it. The de- fendants, in their reply, denied that tluMr mark either was or was intended to be an imitation of the plaintiff's, and thej' ccmtinued to use it. Ild'h that this was proper evidence for the jury as to the intention of the defendants in persisting to use the mark, but that it made no difference in point of law in their right to use it. 1842, Ct. of Com. Picas., Crawsliay «. Thompson, 4 M. & Y. 357; S. C, 11 L. J. II. C. P. 301. § 282. A custom in Europe to violare trademarks is a bad one, and cannot affect the law as it exists in the United States. 184G, U. ^. Circiut Ct. Mass., Taylor v. Carpenter, 2 Woodh. & M. 1. Evii)i:n('K. bO § 283. The moinont the strai;4litr'>'t(pt'fwr 01. U. 7\, Coiwin /•. Daly, 7 Bosw. 222. ^ 284. In an action for an account and payment of prolits, and for damages on the* ^-round that the defendant had been unlawfidlv coi»\im;' and usin^• the plainlilfs tiadema^k oi- hdxd on botlU'd poilei-, the defendant, on b«;inii; called as a witJiess, leTused to answer the followin.ti,' (Questions. u[)on the n Porter i 4. Did you at any time diuinii,' t la; three years ending Ahiy 1, 18.-)7, put Ameiican porter in bottles and label them with labels like those attached to the comi)laint in this action i Ildd, that the defendant was privileiivd from answering tlie iirst, second and fourth questions, but was not pi-ivileged from answering the third question. IIclcl^ also, that the same ruh* of law winch excuses a witness from answering questions which may tend to convict him (;f a crime or rids- demeanor, excuses him from producing books or pajjfcrs which may be used in evidence against him mfm^m 90 Evidence. n tending; to the same result. 1800, Ii\ Y. S^Npreme (7. >s'. T., Byass >\ Sullivan, 21 How. P/\ r>(). i^ 2bT). Where certain correspondence passed be- tween the i)arties with a view to a compromise anterior to the iilin,i>" of the bill, by whicli terms were offered to tlie defendants, which, as was alleged tliem, I'endered the suit unnecessary. ]l->- )^ 289. Wiiere there is evidence showing that in point of fact some i)ersons hav<' b(;en actually mis- led, it is in vain for witnesses to sav that in their opinion persons could not be misled. And it is not the question whetlier the public generally, or tncn a majority of the public, is likely to l)e misled ; but whether the unwary, the heedless, the incautious porti(m of the public would be likely to l)e misle, S//- preme CL of lUuioU^ Candee t. Dei^re, H-t ///. 439. § 294. Wliere the plaintiffs luid been in tlie ex- clusive use of a trademark since 18."J8, it Avas held that they were not oldiged to show, ns aposed to have to a particular ntime or form of words. His right is to be protected against fraud, and fraud maybe practiced by means of a name, though the party practicing it may liave a perfect right to use that name, i>i'f>vided he does not acccmipany its use witli such other circumstances as to effect a fraud upon others. 1843, Rolls Ci., Croft v. Day, 7 Bi(n\ 84. § 301. The inventor of a medicine has no exclu- sive right of property in it. Any otlier individual has a right to make and sell the snme medicine. An exclusive right, as the inventor, can only be ob- tained under tlie patent law by a compliance with its provisions. 1849, U. K Circnlt Ct. Lid.., Cof- I'een v. 13runt(m, 4 McLean., 516. j5 302. The privilege of a party to the exclusive enjoyment of a trademark, does not rest upon the ground that the plaintiff has a right of property in ExcLUsivi: Right, 95 the trademark, but the relief of a court of equity is given because the mark is a sii;-u or repr<'s(Mitatiou, importing and so understood and acted upon l)y the public, that the aitick; to wJiicli ir is attached is tile manufacture or production wliicli isgencially known in market under tliat denominati'm. I8.")(5, AValton ik Crowley, 3 Bl. Cirrtiit (U. JL 440 ( l\ X. Circuit CL, N. if). i^ 1301]. The owner of goods, which he offers feu- sale in his own right, is entitled to pi-ocecd in his own name for thi^ protection of any traid. § 804. Althougli there is no excbisive ownership of the symbols which constitute a trademark apart from the use or ai)plication of them, yet the exclu- sive right to use such mark in crmnection with a vendible commodity is rightly called ju'operty, and the jurisdiction of the court to restrain the in- fi'ingement of a trademark is founded ui)on the in- vasion of such property, and not upon the fraud committed upon tlie pul)lic. The same things are necessary to conftititute a title to relief in equity in the case of the infringement of the right to a ti-ade- mark, as in the case of the violation of any other right of projierty. First, the plaintiff must prove that he has an exclusive right to use some particu- hir mark or symbol in connection with some manu- facture or vendible commodity ; and secondly', that this mark or symbol has been adopted, or is used by the defendant so as to prejudice the ijhiintiffs custom, and injure him in his trade or business. i M i3 "w|rr"P"P 96 ExcLUimvE Right. 18Gr{, Lord Chancollor \V;;^rrujiiY, The Lentlier Clotli Compnny (liniitod) v. j u ' Aincriwin Lcnthei" Cloth Company (liniihxl), 'VA Lk/o J. JL {X. K) Vk. 101); S. d., 12 W. R. 281); S. C, 10 Jurisf {N. ^'.) 81 ; S. C, 9 /_.. T. R. {X. .S'.) o.xS. i:^ IJO."). It is true tliat in some cases are found dicta l)y eminent jiidu'es, tliat tliero is no ])n)])er(y in a ti'adeniavk, wliicli must be understood to uiean Miat there can be no right to the exclusive owner- >(!'!) of any symbols or niarlvs universally in the ab- stract ; thus an iron founder, who uses a particular mark for his manufacture in iron, could not restrain tlie us*^ ■ f the same mark wlien impressed upon coitoji or Avo''len goods; for a ti'ademark consists in the exchisive right to the use of some name or symbol as applied to a particular nianul'actui-e. and such exclusive right is jiroperty. Nor is it correct to say, that tht; right to relief is founded on the fraud of the defendant, for, as appears by Milling- ton I). Fox, tire plaintilt' is entitled to relief even if tlie defendant can prove that lie acted innocently, and without any knowled,M;e of the rights of the plaintilf. Imposition on the public is indeed neces- sary for the plaintiffs title, but in this way only, that it is the test of the invasion l)y the defendant of the plaintiirs right of property ; for there is no injury, if the mark used by the defendant is not such as may be mistaken, or is likely to be mis- taken, by the public for the mark of the i)]aintiff. But the true ground of the jurisdiction of the court of chancery, is property, and the necessity iov in- terfering to xu'otect it by reason of the inadequacy of the legal remedy. 180J3, Lord Chancellor Wkst- iJUiiY, Hall 0. Barrows, 12 Weekly R. 322 ; S. C, 9 ExcLisivi: Right. 97 Law Tim ('ft X. f!. r>C>\ : S. C, ^3 Law Jour. (i\" S.) Ch. i.n)4 ; S. v.. K) ./////.sV X .s'. 55. j5 IjOt). The court of cliaiK'ory lias taken upon ifsoli' to pi-otcM't a man in tli(^ uso of u cerLain ti-adc- mark as applied to a ])ai'ti(Milar desciiption of aiti('l(\ lie has no property in that niarlv /n r .sv, any more than in anv other fancifrd denomination lie may assnme for his own ])]ivate use. otherwise than with nd'erence to his tra;h>. If he does not carry on a trade in iron, but carries on a trade in linen, and stam])s a lion on his linen, anollier i)er- son may stamp a lion on iron ; Imt when he has appropriated n maik to a jiarticular spe<'ies of goods, and caused his goods to cii'cnlate with this mark upon them, the court has said tliat no one shall be at liberty to d(d'raud that man by nsing that mark and passing olf goods of his manufacture as being the goods of the owner of that niaik. 18G0, \. C. Wood, in Alnsworth v, Walmsley, Laio li. 1 AV/. olS; S. C, ]-i Jvriftf {N. .s'.)20.")'; S. C, 14 WccM;/ R. :}(j:1; S. C, 14 Law Tiinr.s {N. X) 220; S. C., ?>:) Law Jour. {X. S\) Chanc. I^ri. >5' o(>7. A trademark to wduch a trader had originally an exclusive right, may in course of time become puhlic/' Juri.s\ and the exclusive right may be lost. The proper test of this having hap- pened is, that the use of the trademark by other persons has ceased to deceive the public as to the maker of tlu^ article. 1872, C/i. CI. of Apj)('al, Ford V. Foster, Law B., 7 C/taucery App. Cas. Gil ; S. C, 27 L. T. R. {^N. S.) 219 ; s". C, 41 Law Jour. {N. S.) C/i. GS2; S. C, 20 WeeAh/ R. 318; reversing S. C, 20 W.. R. 811. § 308. Jf ."^ecvis, that it is not necessary that the claimant of a trademark, in an action for its ini'ringe- 7 5? a m iir-T" 9d Exclusive Right. ment, should show an exclusive right to it. The right must be exclusive as against the defendant. The principle upon which relief is granted is that the defendant shall not be permitted, by tlie adop- tion of a trademark which is untrue and deceptive, to sell his own goods as those of the plaintilf, thus injuring the latter and defrauding the public. 1872, jY. Y. Commission of Appeals^ Newman «. Alvord, 51 N. Y. 189 ; affirming S. C, 49 Barb. 588 ; S. C, 35 IloiG. Pr. 108. § 809. The rule that descriptive terms cannot: be exclusively appropriated, has its exceptions, where the intention in the adoption of the descrip- tive word is not so much to indicate the place of manufacture as to intrench upon the previous use and popularity of another's trademark. 1873, xY. r. Supreme Ct. G. T., Lea ?). Wolf, 15 Ahh. Pr. {N. S.) 1; S. C, 1 Thompson and C. 020; S. C, 40 How. Pr. 157; modifying S. C, 13 Abb. Pr. {N.S.) 389. § 310. The interference of courts of equity, in- stead of being founded upon the theory of protec- tion to the owners of trademarks, 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 fraud- ulent intent, even though the person asking the in- tervention of the court may not have the exclusive right to the use of those words, numerals, or sym- bols. This doctrine is fully supported by the latest English cases of Lee v. Haley, 5. Ch. Ajyp. Cas. Law 11. 155, and Wotherspoon w. Currie, in the House of Lords, 5 Eng. & It. App. Laio R. 508, and also in the case of Newman v. Alvord, 51 N. EXIXUTOUS— -FOKKI<;XKUS. 99 Y. 189. 1877, m r. Sajyveine Ct., S. T,, Van BiiUNT, J., Kinney v. Basch, unreported. And see §§ 326, 345, 58G, 590, 657, 670, 726, 783. For cases concerning the exclusive right to the use of descriptive, geographical and firm names, see those titles. See also, Original Ownership, and Words. EXECUTORS. See Administrators. FALSEHOOD. See Misrepresentation, §§ 530-579. (i3 FANCY NAME. See Name (Fancy Name), § 680. FIGURES. See Numerals, §§ 740-749. FIRM NAME. See Partnership, §§ 780-819. FOREIGNERS. See Aliens, §§ 110-116. '»■' T^'^ 100 Foreign Words. FOREIGN WORDS. ^;3in. Where the plaintiit lind been aociistmned to iiiaunf.'U'lnro watches for tlie Turkisli market, in which coiinlry they liad acquired great repute and were known by the marks engraved upon tlieinsid(> thereof, to wif : in Turkisli cliaracters the plain- tiirs.name and the word "Pessendede," which sig- nirK^l " Wan-anted" or "Approved" ; and tlie(U'- l'en(hint got Messrs. Parkins(m to mannl'acture waiclies i'or him on wliich tliere were engraved, in Turlvish characters, tlie words "Ralph Gout" and "Pessendede" on the same part of the watch as the plaintiif and wliicli the defendant consigned to Constantinoi)le, IMO^ that defendant Aleploghe should be restrained by injunction fnmi sending or l)ermitting to go to Turkey or any other place, and from selling and disposing of any watches witli the name of thei;)laintilf thereon in Turkish charax'ters, or the word "Pessendede" thereon in Tirkish cliaracters, or any watches inimitaticm of theplain- titrs watches, and also that Ale[)loghe and Messrs. Parkinson should be enjoined fi'{mi manufactui'ing or vending sncli watches. 1833, Ylm Ch. Ct.^ Gout ?). Aleploghe, C Beai^. G9 ; S. C, CliiUiJ sGeiCl Pr. 72. § \\\Q. An injunction lies to jnotect the prior right of one who has tirst adopted in the United States a word from a foreign language to designate an article of his mannfa(5tui'e, although a similar artit^le was X)i'eviously produc(Hl and known under such designation in the foreign country. 1870, N. Y. Supreme CL, -6\ 7\, Rillet v. Carlier, 11 Abb. Ft. {lir. S.) 18G ; S. C, 61 Barb 4?5. FOUKKJN WollD?. 101 § 317. The ]»l;uiifin' made ;i synip from poiiic- grunates, uliich lie soltl uiidm' the ii:iiii<^ of "(I'lc'i- ade Syrup." The del'eiKhuif .soii^'lit to justiry his siibsvHpieiitly a(h)i)fiiig tht* same name for a lival ai'Hcie, by allei^'ing that the word '•(Ireiiadc,"' fiom the Fiviich ]an<;-uage. siuiiifyiiiij;- '* P()mei>'i'aiiat(>," wa.s used in France, at and bet'ore its ad<)])tion ))y [»!aIntilT here, as the name of a similar syrup sokl there. Held, that notwiiiistandin^ these facts, the plaintilf was entitled to an injnnction. Ibid. t -Jl^. The plaintiffs manufactuied and sold to foreit^n merchants, for ex[)ort in the east, pieces of S[)finish shirtin,a,s, ini[)ressed with a trademark con- sisting- of a ligure of a lion enclosed in an orna- mental l)order, and the words "Spanish Shirtin,i;s,'' inclosed in a scroll, with the iig-ures No. 120, to which wei'e added the words, "exactly twelve yards," in Turkish, Armenian, and lloman, placed one over the other. The bill alleged that the de- fendants were preparing Spanish shirtings for ex- portation, with marks almost identical with the plaintiffs' impressed upon them, except that an elephant was substitnted for a lion, and live lions for four. ITvJd, that though an elephant vais used by the defendants, the three sentences in the same order was an infringement of the i)laintiffs' rights, and an injunction should, therefore, be granted to restrain the use of the words in the three languages, in tile order used by the iDlaintiffs. Vice Ch. Wickkn's Ct., Broadhurst li. Barlow, Weekly Notea 1872, p. 212. Hi '*fvr "^ 102 Fraud — GEOoRAriiiCAL Name. FRAUD. Fraud by the owner of a trademark. See Misuepuesp:ntation, §§ 530-579. Fraud by one who infringes upon another's right to a trademark. See Intent, §§ 44.'5-489 ; Exclusive Right, §§ 301-314. GENERAL ASSIGNMENT. See §§ 121, 135, 142. GENERIC TERM. See Descriptive Name, § 640, et seq. ; Words, § 1010, et seq. GEOGRAPHICAL NAME. See Name, § 705, et seq. IIOTKI.S— I MITATIOX. 103 HOTELS, Namk of. See BuiLDrxTis, § 100, et seq. IMITATION. § 325. The plaintiifs and the defendant wore nian- iil'aetarers of blackin,!^, and the hitter sohl liis hhirk- inii; in bottles, wliich not only re.send)led the bottles nsed by the phiintiJfs, but were labeled in a similar manner; the onlv difference between the two labels was, that the hd)els of tlie plaintiffs described their blackiiii; as "manufactured by Day and Martin," wliilst tliat of the defendant described his blacking as "equal to Bay and Martin's." The words, "equal to," were ju-inted in a very small type. An injunction was granted ex parte to restrain the de- fendant from using his said labels or anv labels in imitation of those of the plaintiifs. 1831, Before the Alee Ch., Day «. Binning, 1 C. P. (Jooj)er^ 489. § 320. The plaintiffs were prox)rietors of the London Conveyance Company, which ran omni- buses between Paddingtt)n and the Bank. The defendant began to run between the same places an omnibus on which were the words "Conveyance Company" and " London CVmveyance Company," in such characters and parts of the omnibus as exactly to resemble the same words on the omni- buses of the plaintiffs ; a star and garter were in like manner simulated, and the green livery and gold hat b.:7ids by which plaintiffs distinguished the coachmen of their omnibuses were also imitated !;|i 1^» 104 Imitatiox. by Ihc defendant. Tlie plaintiffs served a nv)li('e (sii the dereiidant, intimating that an injiinerioii would 1)1' lipiilied for, and after such notice the defcMuhiut o!)liie;a(ed irom the back of liis omnibus the word " ''ompany," and painted on each side of liis omni- bus, over the words "Conveyance Company," the woi'd "Original," and between the words "Con- veyance" and "CVmipany" the word "for" in very small and almost invisible characters. The Master of the llolls held that the defendant intended to induce tlie j^ublic to believe that his omnibuses were those of the i)]aintiffs. That it was not to be said that the i)laintiirs had any exclusive right to the woi'ds "Ccmveyance Company," or "London Ccmveyance Company," or any other words ; but that plaintiffs had a right to call np'iJ'P<^^'' ^>f distinguishing their pro- I)tM'ty. and thereby depriving them of their prolits of their business bv attracting custom on the false representation that carriages, really the (h^fendant's, bc^longed to the plaintiffs. The defendant was en- joined from using on his omnibus the words "Lon- don ( 'onveyance," or "Original Conveyance lor Ccnnpany," or any other names jiainted tliereon, in such manner as to be a colorable imitation of the vvoi'ds, devices, &c. on i)laintiff's omnibuses. JS;)(), lions CI., Knott «. Morgan, 2 Keen, 21:5. § ;'.27. The plaintiff, and his father befoi-e him, had been for some years past in the habit of mark- ing the bai"s of iron manufactured by them, witli their initial letters, i)laced in an oval, thus : (^^ The plaintiff's iron so marked was in great estima- .,' '' tin IlMITATIOX. 105 tion in the Turkish luarket, whei'e the ni:iik in question was UMMierally known as "the coml) niaik."' In t\w, vear IS;]?, the defendants reeeived iVoni a Turkish merchant in Lonch)n, nn ordei" foi' a •]uau- tity of iron to be stami)ed AV, with a little O in an oval, thus: OV^ and to be ship])ed by a certain vessel. The order was executed, but the stamp was made W, with a dot in an oval, thus : OVj The defendants, in execution of other (nclns, and for the Turkish market, continued to supply iron stamped witli the foregoing- letters, wdiich were afterwards varied, accordintc to or- ders, to W, with a larg'e O in an oval, thus : ^vm The plaintill', in 18:>7 and 18:50, remonstrated with, and com])hiined to the defendants, but they did not discontinue the use of the stamp, but used it only in the execution of foreign ordei-s. Othei' nuiuu- facturers had used somewhat similar mai'ks, Imvini!: been ordered to do so for the Turkish uiaik(^t. There was no evidence to show that any person litul been actually deceived by the mark used by tlu^ de- fendants ; but (jne witness stated that possibly, in Asia Minor, it might be taken for the jtlaintilV's mark. The jurj^ found for the defendants. 184l\ CL Com. Fleas, Cniwshay v. Thompson, 4 M. and G. Jio7; S. C, II LaiD Jour. {C. P.) '301. § 328. The plaintiff sold a medicine in boitles containing not more than tliree-qnai'ters of a pound, covered with wrappers headed "Franks' Sped lie Solution of Copaiba," which, after eulogizing the medicine at some length, ccmtained "general direc- tions for its use," and concluded with cojjies of the ■% '■■j^ 1:1 ' ' %■'■ ,,■'■■ V-'-' Wr •mw^ 106 Imitation. several "testimonials" of the most eminent sur- geons. The defendant sold a similar medicine, in bulk, rhat is, by the pound, covered with a plain pai:)ei', and at a price less by two-thirds, than the medicine of the plaintiff. The defendant used a label headed "Chemical Solution of Copaiba," and after referinc^ to the curative powers of the balsam of cox^aiba, it stated that its nauseous pi-operties had been removed by Mr. Franks, to whom was due the merit of originally i'ntroducinu', under the apijellation of " Speciiic Solution of Copaiba," a preparation of the balsam, which was perfectly miscible with water, &c. It then went on to state tiu; merits of "The Chemical Solution," and pro- ceeded as f (allows : " Mr. Frank's Speciiic Solution of Copaiba was extensively adopted and employed by the following members of the profession," wliose testimonials are subjoined, "Sir Benjamin Brodie, F. R. S.," (and other names). The directions for use then followed, which were similar to those used by the plaintiff. Four of the testimonials given by said gentlemen to the plaintiff, and included in his wra})per, were subjoined in totldem verbis^ testify- ing to the merits of Mr. Franks' preijeration, lldO., that although the defendant had used the plaintiff" s name and certiiicates in sach an ingenious manner as, [yrima facie ^ though not in fact, to appropri:ito and ai)ply them to his own medicines, and notwith- standing the differences in the mode of selling, the proceeding was wrongful, and calculnted to deceive, and the defendant was restrained by injunction. 1847, llolh CL, Franks v. Wejiver, \() Biuio. 297. iJ 1329. Complainant's matches were put up in small jxiper box^s, usually of brown paper, made Imitation. 107 with a cap or cover, whicli, when placed on tlie box, covered about a third of its lengtli ; and his tiade- mnrks were a cut represenlin*^ a straw bee hive, surrounded by llowers arul foliag-ii, with tlie woids "A. Golsh's Friction Matches," above the liive. Both the cuts and the words were printed on a hibel, wliicli was pasted on tlie front of each box. UnA -' h . h u St:;! jtm |iipp 108 Imitation. t\iii bee liive, were "Late Chemist for A. Golsh." JMd, tliat the dilFerence in appearance between tliese two lal)el.s, was so great, even wliile tlie covers remained upon the boxes, that it was liardly possible to suppose a j)erson wlio had been in the habit of buying and nsing boxes of matches with tlie Golsh label, would suppose those with the defendant's laltel were the same article, from the reseml)lance between tlie two articles. 1848, JV. Y. CL of Ap- peals, Partridge v. Menck, 1 How. App. Cas. 548 ; alfirming S. C, 2 ^aiulf. Ck. 022, and S. C, 2 Barb. Ch. 101. § 340. Although the court will hold any imita- tion colorable which I'equii'es a careful inspection to distinguish its marks and appearance from those of the manuracture imitated, it is certainly not bonnd to interfere when ordinary attention will enable a purchaser to discriminate. It does not suffice to sliow that persons incax)able of reading the labels might be deceived by the I'esemblance. It must be made to appear that the ordinary mass of purchas- ers, paying that attention which sucli persons usually do in buying the article, wcmld probably be deceived. In cases of doubt the court should not grant or retain an injunction, until tlie cause is heard upon the pleadings and proofs, or until the complainant has established his right by an action at law. But if the court sees that the complainant's trademarks are simulated in such a manner as probably to deceive his customers or the patrons of his trade or business, the piracy should be checked at once by injunction. Ibid. % 341. Plaintilf in his label called his medicine "Chinese Liniment," the defendant called his Imitation. 109 "Ohio Liniment ;" from tlie body of tire label and from the directicms for the use of tlie medicine, it was clear that tlie language of tlie defendant was so as- similated to that of tlie plaintilf 's as to make his article apj^ear to Ix; the same medicine as the ])lain- tiffs, the altei-aticm being only colorable. Deftmdaat also published ahandbill asserting that the mtHlicine sold by him contained the qualities and ingredients of the '"Chinese Liniment," and some other ingre- dients which rendered it more ellicacious, and which allegations plaintiff averred to be false. An injunction was granted enjoining defendant fiom using his said label and directions, and fr(mi issuing said handbill. 1841), U. 8. CircuU CL Iivh, (Jofl'een V. Brunton, 4 McLean, oK). § ?A2. In o] der to convey a false impression to the mind of tlie iniblic, as to the true origin and manufacture of goods, it is not necessary that the imitation of an original trademark shall be exact or perfect. It may be limited and partial— it may embrace variations that a comparison with the original Avould instantly disclose ; yet a resem- blance may still exist, that was designed to mislead the public, and the effect intended may have been produced ; nor can it be doubted that whenever this design is ax^parent, and this elfect has follovvcd, an injunction may rightfullj' be issued and ought to be issued. 1849, N. Y. Superior Of., KT., DuEK, Ch. J., Amoskeag Manufacturing Co. n. Spear, 2 i-iamlf. l^iq^erior CL .091). § 534:1. An injunction ought to be granted when- ever the design of a person wdio imitates a trade mark, be his design apparent or proved, is to im- pose his own goods ui)on the public as those of the i-V ^ ; fVP 110 Imitation. owner of tlie mark, and the imitation is siicli tliat the success of the design is a probable or even i)os- sible (Kmsequence. Ibid. % I}44. In an imitation of the original mark npon an arti(?le, or goods of the same description, the name of the proprietor may be omitted — another name, that of ilie imitator himself, may be substi- tuted — but if the peculiar device is copied, and so cojiied as to manifest a design of misleading the public, the omission or variation ought wholly to be disregarded. Ihld. % 345. It is not enough that the public may be misled, or has been misled. The resemblance must arise from the imitation, or adoption of those words, marks or signs, which the person who first em- ployed them had a right to appropriate, as indicat- iilg the true origin or ownership of the article or fabric to Avhich they are attached ; and the resem- blance, Avhen it induces error and gives a title to belief, must amount to a false representation, ex- press or implied, designed or accidental, of the same fact. Ibid. § 34(5. Plaintiff's label was a paper pasted on the body of a bottle, on the upper part of which was the word "Pain-killer," printed in a scroll, below which were the words, "Manufactured ))y Perry Davis." and below this an engraving, intended to represent the plaintiff surrounded by an oval circle bounded on either side by a simple wreath, and having in its lower margin the words, "The original inventoi", No. 74 High Street, Providence." Below the circle, in small type, were the words, "Copy- right secured," and the jirice of the bottle ; and at the bottom of the label the words, "Destroy this Imitation. Ill til label as soon as the bottle is empty. Tliis will pre vent fraud." The defendant's label was similarly fixed to bottles of similar size with those of the plaintiff, though of somewhat dill'erent shape; at tiu? upper jtart were the words, "J. A. Perry's ye,ii,'etable Pain-killer,'' underneath which was rep- leseuted the bust of a man, and beneath this the words, " Manufactured in Providence, II. I. Price 30 cents. Copyright secured." The devices (m the plaintiff's label were on a light ground, those on the defendant's upon a dark ground, lldd^ that defendant's label was likely to deceive the public, and to lead them to suppose they were purchasing an ai'ticle manufactured by the plaintiff, instead of the defendant. Judgment ordered for plaintiff. (Action on the case.) 18.")(), i^nprcme CI. of Ilhode Island, Davis v. Kendall, 2 It. I. 560. ^ 347. The defendant, formerly the shopman of the petitioners, set up an estalilishment of his own, and used laliels corresponding closely as to their shape, size and general appearance, with those used by the jietititmers. The defendant's label con- tained the words, "A. Lea, late of Lundy Foot & Co., Dublin, Snuff Manufacturer, 1 Dame Street, Dublin," and round the label, "To prevent imposi- tion, ask for Lea's genuine Dublin snuff." On the lietitioners' label were printed the M'ords, "Lundy Poot &; Co., Irisli Snuff Manufacturers, Essex Bridge and Carlisle Bridge, Dublin," and round the label, "To prevent imposition, ask for Lundy Poot & Co.'s Irish Snuff." Over the defendant's door were i)rinted the words, "A. Lea, late of Lundy Foot & Co." IMrl,, that the case was not so clear as to induce the court to interfere by in- ' 35 '■I t i *', i ■ \mrr^ 112 Imitation. junction in the first instiuu"^*. nnrl the petition was ordered to stand over witli liben y to tlie petitioners to bj'ing ail action at law. See 2)ictures of the labels in the repfjrt. 18,'5(), J2olls CL, Foot v. Lea, i:] In.s/i Eq. n. 484. § 348. The plaintiiTs, Shrinii)ton and Hooper, manufactured needles which Avere packed and en- veloi)ed in labels bearing these names, and stating tliem to be " Invented and made solely by Shrimp- ton and Hooper, at the Albion Needle Works, Studley." The defendant, Laight, residing at Jledditch, authoiized', as he said, by one David Shrimpton Turvey, but who was not a needle maker, sold his needles in similar packets, omitting the words "Shrimpton and Hooper," and "Albion Needle AVorks," and substituting the name "Shrimpton Turvey." Ildd., that defendants' wra[)pers were a i^lain colorable imitation of the plaintilLs' trademark, and an injunction was there- fore issued. 18o4, Rolls CL, Shrimpton -«. Laight, 18 Beav. 104. § 1349. In cases of alleged colorable imitation of trademai'ks, the court has not to consider whether manufacturers could distinguish between the articles, but whether the public would probably be deceived by the alleged spurious imitation. Ibid. % 3.")0. In an alleged infringement of a right to trademarks, the court in every case must ascertain whether the dill'ei'ences are made bona fide in order to distinguish the one article from the other, whether the resemblances and the dilferences are such as naturally arose from the necessity of the case, or whether, on the other hand, the dilferences are Imitati(>n\ ii;j ^"^"M: simply colorable, and tlie lesemblancos ^Ui'h as are obviously intended to deceive the i)iu'cliasei' ol' the one article into the belief of its beinu* the nianufac- ture of another person. Resemblance is a circum- stance of primary impoi'tance I'or the conrt to con- sider, because, if the court find that there is no reason for the lesemblance, except for the pui-- 2)osG of mislead inii'. it will infer tliat the lescm- blance was adopted for the purpose of misleadin.L!;. 18r)4, Y. C. WoorVs Court, Taylor r. Taylor, 213 L'//f/. La.io and Eq. R. !281 ; S. C.^ 23 LaioJ. R. {N. >S\) (Jh. 2.W. ^ iJ,")!. The plaintiffs were seAving thread manu- facturers and winders, at Leicester, and on one end of the reels used for thread sold by them, were la- bels marked "Taylors Persian Thread," in a cir- cular form, liavirg an inner circle in which was marked the particular quality of the article wound on the reel. On the other end of the reed was placed another circular label, having in the centre tlie ai'morial bearings of the city of Ivncester, the Avords "J. & W. Tayh)r, six cord," and a ]iund)er denoting the cpiantity of yards wound on the reel. The i)lainti!fs commenced their ti'ade in Yo'l'^. The defendant Avas a thread manufacturer at Manches- ter. In 1S.V2, his foreman AA^as applied to by certain persons, to use i*eels for Ids thread similar to those used by the plaintill's, but this the defendant then refused to do. Subsecpiently the defendant used for his thread, reels of the same size and descrip- tion as the plaintiffs, and placed at one end a circu- lar label, Avith the AA-oids "Taylor's Persian Thread " thereon, and at the otliei' end of the reel a circular label Avith his OAvn armorial bearings, sur- ■1: m jiimi i"i»p 114 Imitation. rounded by the words, " Sara Taylor." Injunction f/ranlid. Ibid. i 1^)2. The plaintiffs were a corporation by the nanie of the Merrimack Manufacturing Company, au. Sm /'///, :i87; S. C.,2 AU. Pr. '.US. ^ '.iXl. A tradesman, to hrinn; liis i)rivilege of usill^• a i)a)'ticular mark under the i)rotection of a court of equity, need not prove that it has becm copied in every particulai*. It Avill he sullicient to show that th<' devices employed bear such a resem- blance to his as to be calculatcMl to mislead the public generally, who are purchasers of the article bearing the device, and to make it pass with tliem for his article. Hence, where on ordinary observa- tion, the labels us<'d by the two parti<3S Avoidd not be apt to be distinguished tlie one from the other, the size, shape, vignette, coloring and marking, be- ing so nearly ich^ntical as to make them easily pass for the same, and the only difference discernible, on considerable scrutiny, being in tlie name of the warrantor stamped upon them in letters so small as not retidily to attract attention, an injunction was granted. 18."5G, Walton v. Crowley, 8 Bhdchf. Cir- cuit at. 440 ; U. S\ iJir. Of. 2i. Y. % B.M. xV variation must be regarded as immate- rial, which requires a close inspecticm to detect, and which can scarcely be said to diminish tlie ef- fect of the few simile which the simuhded label in all other respects is found to exhibit. 1807, N. Y. Super ior Ct., Sjjecial T., Fetridge «. Wells, 4 Ahh. Pr. 144; S. C, 13 How. Pr. 38r>. § 355. The trademark of the plaintiffs, manu- facturers of spool cotton, at Mile End, Glasgow, was a label with four concentric circles thereon ; i :\ M I" lie Imitation. the innor one in f^old, and tho next in silvor, Jinu. chasers w^ould be deceived, and that Ih'' ''•' ndant should tliereiore ])e enjoined I'rom i ids said label, and ilrom any imitation of it wi, >u]y color- able difi'erences. ISoT, JV. Y. Suprant (Jt., ^. 7'., Clark 1). Clark, 2.5 Darh. 76. § 85(5. An imitation of a trademark, with partial deferences, such as the public would not observe, does the owner of the trademark the same harm as Imitation. 11' an (Milli'O countfU'fclf. If I lie wholcstilo hiiyei, who is iriost ('onvoi'siuit with thci iir.irks. is not mi !<• I, but the small letaihM', or tlu' ('onsiinicr is. the in- jury is the same in law, and dillVi-s only in deuiee. Tlie ri^ht of ac^lion mnst exist f(^i'tli(* last as well ns the iiist. If all coiisnniors do not (lis('riininat(», ill the end, it wonld he indiU'eient, oven lo (lie wholosale bnyers, houx which of Iho two they boMi-ht, and thus the extent also, of th(> injniy would be as fjjieat as it' they also were deceived. / A/V/. ^ i'.j?. The plaint iiV was an incorpoi'ated com- pany', and had been enga,L;ed in nianufaetui injjj white lead, at ibooklvn, lor more than tw(>ntv years, and had been in the habit, durin,i;' that ixniod, of markin/j;' its kegs "'ihooklyn White Lead Company," or "Co.," and the defendant had been en.iiaged in the same business, at th<' stinie place, since 1840, and had icctMitly cimngcd his mark, npon his kegs, which was *" Brooklyn White Lead, pure 100 lbs.," to "Brooklyn wiiilc Letid and Zinc Comi)any." The defendant had no sucli company, //r/c/, that this was an imitaiion oi' th(^ plaintiirs trademark, with only a coh)rable dill'ei- ence. The defendant was therefore restrained by injunction, from using the word "Company," or "Co." IS.-)?, ^\ y. .Supreme CL, G. 7'., Brooklyn AVhite Lead Co. r. Masurv, !2.") IJay!}. 410. $5 IJ.IS. To entitle a trademark to the protection of a conrt of equity, there must be, between the genuine and fictitious marlcs, such general similarity or resemblance of form, color, symbols, designs, and such identity of Avords and their arrangement, as to have a direct tendency of misleading buyers who exercise the usual amount of jjrudence and caution ; and there must also be such a distinctiv*. i; i ■yw ^m ' 118 Imitation. individimllty in the marlis employed by tlie coun- tei'l'v^itcr, us to procure foi' liini the benefit of the deception resnltinij^ I'roni tlie gomeral re;-laintiffs manufactured and sold a if w 120 Imitatiox. soap wliicli they callod "The Excelsior Wliite Sof!: S;);ii),''' and the dei'endants, six month.-; t hin-eai'ttM- nora;n(i;if'od to sell a soap under the nanu.^ of "• I3us- tard & Co. 's Excelsior White Sol't Sonp." Both plaintili'.-j and defendants nsed their respective names on labels attached to their jars and cnsks, and on handbills and placards, accoi-ding- to the usual custom iji such cases. It was held that defendants' arti(^]e was likely to deceive, and they were en- joined fi'om using the words "Excelsior White Sol't Soaj)" for any soap. I hid. § 305. Where the plaintiir's trademark consist- ed of the letters "L. L." for whiskey, which the plaintiff advertised as"L. L. Whiskey," al- thougli thos{^ letters on the labels were ahvays pre- ceded bv the word "Kinahan's," and the defen- dant used for his whiskey the letters " L. L.'- and sometimes "Bolton's L. L." : Ifdd, that the de- fendant was guilty of a plain and distinct piracy. That the use of the mark "L. L.," by the defendant, was calculated to lead the iniblic to believe, either that he had Kinahan's permission to use it, and had thus accpiiretl the right, or that the article which he sold was the same as Kinahan's. That in that way as much injury might be dcme as in any other, by inducing the belief that the spurious article Avas genuine, Avhicli was the probable consecpienco of such invasion. Defendant enjoined. ISd;), Lord Ch. Bit.VDY, Kinahan <}. Bolton, 1*") Irisk Ok. 7."). ^ ;5G(). A trademark was adopted by the j)lain- till's in 18.18, and c(msisted of the hgure of an ox, on which was printed the word "Durham," the word "Ilarriscm's," being printed above said iigure, and the word " Mustard" below it. At the exhibition of 18G2, the plaintiffs exhibited their Imitation. 121 '■K miislard and obtained an award of "honojablo mention," of wliicli they aftei'wnrds added a notice on their hibels. In May. 180;5, the (UMenthints af- lixed to th(Mi' ennisters and tins of mushird, lalu'ls containin'j,' as a trndenuirlc, the iiii'iire of an ox. in form and altitude like that used by th(; ])!aintiirs, but without the Avord "IJurham." and that Ihey knew nothin!:? of the plaintiifs' trad(miark. or oT his "honorable mention" aforesaid, until 180!], and that they (the defendants) had conceived the idea of theii" tracUnnark from seeing a ])riz(^ ox ;it tlie cattle show at TslinLi'tim. Tlie plaintiifs proved that their mustard was asked for as the "Ox Mustard.'"' whic^li tlie c(jurt said was not contradicted bv the evidence that pei'sons in the trader relied on the name, and not on the mark. Injunction .uranted. ISO."), l)e fore V. C. Wood, IlarriMm r. Tayloi', 11 Jwis'f lY. .S'. 408 ; S. C, 12 Lcko Times {X.\^:) IWD. )^ ;>G7. Where, in a stam[) used by the dehm- dants, the form of the printed words, the words thenselves, and th(» pictured symbol introduced among them, so nuich diifered from that of the l)lalntilfs', that any perstm with reasonable carc^ and observation must see the difference, and could not be misled into taking one for the other : //r/rf, that there had been no infringement. Vli/thnflhiifi noil (lormcntlhva le{/e.s siihi^erTjiunt. (!See the i-e- l)ort for ])ictures of the labels.) 1805, JIoiisc or Ijorr/70 .y^w/-. R. {N. S.) Ch. 721; iS. C, 11 Tr6Y'/.-Zy 7t\ 931 ; S. C, 8 Lam Tunes 11, (iv'. >S'.) 829. § 3G8. It is nmdi more easy in any case tore- cognize a (liiVerence, however minnte, after it is l")ointed out, than to discover it by the ordinary in- spection bestowed by jmrchasers. It would luirdly be a fair test of a (counterfeit that, after its errors or deviations from the original were Ivuown, it could be mistaken for it. The proper question shoidd be, not dilferentces but points of resemblance ; not the utmost vigilance of purchasers, but ordinary obser- vation. The value of the goods to be sold, and the intelligence of the persons dealing in and consum- ing them, besides other circunisj"ances, are also to be taken into account in determining the adaptibility of a simidated trademark to deceive purchasers. It is eminently, therefore, a question of fact, to be submitted to the practical experience of a jury, whether, in a particidar case, a resemblance was likely to deceive the community. 1805, N. Y. Superior 67., 8. T., Swift «. Uey, 4 Robertson, (511. § 309. To entitle a trader to relief against the illegal use of his trademark, it is not necessary uhat the inutaf ion thereof should be so close as to deceive persons seeing the two marks side by side ; but the degree of resemblance must be such, tiiat ordinary Imitation. 123 ' J pui'cliasers proceeding with ordinary cantion are likely to be misled. 1800, Bifore IaI. (Jh. Cran- worUi Oil appeal, Seixo i). Provezende, Liuc 11. 1 (Jh. 192; S. C, 12 Jurld {N. H.) 2!r>; S. C, 14 WceJdu JL 3.57; S. C, 14 Law Tlmoi R. {N. >S.) 314. § 370. The plaintiff, a Portuguese nobleman, was the owner of a vineyard on the south bank of the Duro, called the Quinta do Seixo (tlie word "Seixo" meaning stcmy or pebbly). Poi-tuguese nol)lenicn usually niarked the casks which contained the prodiu'e of their vineyards with a crown or crowns. The plaintilf had, since 1848, stamped the top of his casks with his coronet, the lett'-^i's "13. S.," and the date of the year; and the side of his casks, at or near the bung, Avith his coronet, tlie word '• Seixo," and the date of the year. Hence, the ])laintilf\s wine had at'quired in the London market the name of the "Crown Seixo" wine, un- der which name it had attained considerable celebrity. The defendants since 18r)4 had been proprietors or farmers of a vineyard adjoining that of the i)laintilf, and of some other small vineyards near it, but on the opposite bank of the Dui'o. In 1802 the defendants adopted as their trademai'k a brand on the top of their casks of a (;oronet, the letters " C. B." (the initials of their iirm), the words "Seixo de Cima" (meaning Upper Seixo), and the date of the year, and they put the same brand or stamj) at or near the bung. The defend- ants were enjoined. lOid. § 371. It is not necessary for a jilaintiff, in order to receive the protection of a court of equity, to show till., his whole trademai-k has been pirated or simulated.- A false impression can be as well con- ■ j.-ij ^^11 ~ 124 Imitation. voyod tf) tliG mind of the public, luid especially to the umvniy, by a partial as by a total counterfeit. The desi'^'u to defraud may l)e as apparent, and is i^eneraliy more injujious, in the partial than in the entire imitati(m. Where the trademark is a c(m- spicuous device, connected with the name of the true proprietor, of course the imitator would de- sire to avoid tile offense of forgei'y, and would omit on his own article the name of the tru(^ proprietor, and substitute his own ; but the real device might be copied with the imitator's name, and other words of the original added which may be also truti as reu'ards the in^iti'^or's article, and vet as effectually mislead the public as any other w^ay. ISfKi, iV. Y. ^xpreiue Vt., S.T.,Qi\\oitv. Esterbrook, 47 B(irh. 4.")o. § 872. A trader niny establish a trademark by the use of a crest, and anything which amounted to an imitation of the crest as a trademark would be restrained by the court. But the use of a differ- ent crest by another maker, if not accompanied by other indicia to make it a colorable imitation of the trademark of the plaintiff', will not be restrained. 18GG, V. C. WoocTfi CL, Beard v. Turner, VS. L. T. It {N. 8.) 747. § 373. A trader had jn-oduced and sold an ink whic.i he designated '' Stephens' Blue Black," and it was shown to the public in a label in white capital letters of large type. The defendant had sold an iidv in bottles similar in size to the plaintiff's, designated as "Steel- l)en's Blue Black,'' also in a label in white capital letters of large type. Ilelfl, that this was a colorable imitation of the plaintiff's trademark, and the defendant was restrained by injunction from Imitation. 125 i.. the fnrtluM- use of if. 18G7, V/ee Cli. Wood's CL, Stephens r. Pe.-l, 10 L. T. JL {^\ /<) M.'). ,^ 374. The court will not restrain the use of a hibel on the ,i.<;ourl, 108. § IJ78. A pnrly will ])(> resli-aiiied by iujiiiK'lion fiom nsinii; :i label ns a tiadeninrk, r(\sf'nil)lin,'j; one u.-.c(l by anollicr in size, form, color, woi'ds juid sym- bols, though in many respects dilferent, w hci'o it is apparent that I lie desi^-n was todepait fi'om tliei^vn- nln(; label snllicientlv to constitute a diU'eriMice wIkmi tlie 1 wo wei'(^ conipai'ed, and yet not so miicli so, that the diirei-ence would be detected bv an ordinary I)archaHer nnless his attention Avere particularly called to it, and he had a very perfect recollection of the other label. And in such a. case it will be in- fern^d that the design was to deceive and to obtain in tlui raanui'actur(^ and sale of an ai'ticlo any benelit or advantage that might be gained ])y its being l)urcha:>ed for another article of the sa?n(^ descrip- tion, which was known and distinguished by a particular trademaik. J 809, N. Y. Common, Pleas, S. 71, Lock wood 'o. Bos-:wi.ck, 2 Z>r/7//, 521. § '379. The defendants Avere enjoined fi'om nsing a label bearing the name "Bovina," on the ground that it was an imitation of a label used by the plaintiffs, bearing the name "Boviline," the labels having, also, otherwise, a close resemblance to each other. Ibid. % 880. The plaintiffs used the words "Stove Polish — Dixon's Prepared Carburet of Iron," as their trademark. The defendants were restrained from using "J. C. l)ix(m's Stove Polish." 1870, CI. of Com. Pleas, Phil. Pa., The Dixon Crucible Co. r. Guggenheim, 2 Brewster, 321 ; S. C, 7 Phila. 408. ^ 881. To justify an injunction against a defend- ant from the use of a certain brand as an alleged counterfeit or imitation of that of the plaintiff, it Imitation. 129 should jit lonsf apponr tliat tlio rosomblanco Ix^twoon the two hraiids was siillici('Ul!y close to laisc the l)i'()l)al)ilify of mislake on the part of the public, oi- (lesiuii and piirp!)se lo mislead and deceixe (Hi llie parr of lii.' defendants. iSTO, i^iiprciiie Cf. of Mis- .sf>nri. McCnilney r. (iarnhai't, 4.") Mo. (4 Pos/ ) ,V,):5. 5^ :}8:>. The ])laintill's reclilied whiskey, and branded a class of their goods with a device con- sistinu" of the i(>])i'esentation of two anchoi's placi'd near tou'ethev in an upright position. lh(> u])per l)arts incliiung outward, with ii rope attachment. Over the de\ ice. in circular form, Avei'e the initials S. .McC. The device and letters were stencileii ni)on the heads of bai'ivls containing a parliculai' article of whiskey, known in tli(^ trade as "double uiu'lioi-"' or "double anchoi- whiskey.'" The defendant stenciled upon the heads of his whiskey bai'rels ji device consisting of the repivsentation of two ])icks faced near togt-ther in an upiight position, with the handles inclining inward. Pietween the liandles was suspended a ])air oi' balanc(\s or scales. The defendant's name was placed over the picks, and the words "Old I^ourbon'' underneath; the whole inscrli)tion reading *'J. II. (Tarnhart's Old Bour- bon,"' lie used the wliiskey thus put" up and branded for his mountain trade, and called it the "pick brand." The resemblance between th(» two brands was held to be too sliglit to be likely to mislead, and an injunction was refused. Ibid. % 883. A similarity between two trademarks used by dilTerent manufacturers for tlieir goods, although of such a character as to induce a belief in the mind of tlie public that thej' belong to, and designate the goods of the same manufacturer or trader, is not, of Itself, sufficient ground for a pro- V. V-M -i*.-' •i*'' f' ' 6 ."■* (i-i 130 Imitatiox. liibition of the use of such tiadenunk by him wlio (lid not hi'st adopt it. Tlint siniilnrity, to sscnce of the wron^- done. J87(), S//pr(u//( Covri of Jlli- 110/'. s, Candee t\ Deere, CA lU. 4^9. ^ I]84. In this case tlie j)arty alleging]? a violation of his trad(MTiark upon plows manufactured by him at tlie town of Moline, Illinois, had in-anded or stenciled on the beams, the words 'M(»hn Deere," in large, heavy capitals, in l)lack j)aint, on the segment of a circle, with the words "^Moline, 111.," in a horizontal line underneath, in smaller capitals in like black paint, with a dash or ilourish between them. The brand or mark upon the other plows, which constituted the alleged violation, was this : The words " Candee, Swan & Co." in smaller capital letters, on a segment of a circle at least two inches longer than that of "John Deere," and the address " Moline, 111." in still smaller capital let- ters, on a horizontal line underneath, and a dash between them. Held., that while there was some resemblance be-tween these brands, there was no such similarity as would show that "Candee, Swan & Co." intended thereby to sell their i)lows as plows manufactured by " John Deere." I hid. § 38o. It is an infringement of a trademark, even though the imitation and original, when placed side by side, would not mislead, if the similarity is such that a difference would not be noticed when seen at different times or places. 1871, Indianapolis Su- Imitatiox. 131 pcrior n.. K T., Solil r. Geisondorf, 1 WiUon, 0(> ^ ;?sr5. The iniit:if ion of tlio trndciiiiirk <»f nnoflici' to l»(' milauriil, iMM'd not bo copied in ('v«M'y ])!ii'ti('ii- liir; itis sMdlcicnt to \v;ii'i;int ('(luittiMc rdid' lliiit it islilvcly to niislciid :uid deceive ; nccoi-dinuiy, \\\\ iniitiitioii of ;i iniinuriictMrer's laliel in evei-y icspect lilvc th<' oi-iuinnl. exc<'pt tliiit '' Ifostettei"'" was \\\- teicd to " llolsteter," and tlie words •• ITosterter A: Smith wei'c clian^'ed to " Iloistetei' A: Sniyte,"" was held to be il]ei;a]. and ^n-onnd I'oi' an injnnclioii and for damages. bS71, r. K Ciiriiif r/., Krhnis/,;/, Ilostettci- /'. Vowinkle, 1 DUhnu IJ'ii). ^ '587. In niatt(>rs of tmdeniarks or labels for- medical componiids, mere similarity of si/.e. or sqnare pjickagos or of classilication of disease^; (>r symptoms, is insnfficient to invoke oqnitable inter ferencc. Componndinuf medicines is an open ti-ade, and iH'otection bv law is onlv antlioi'ized when the J. a.' •/ peculiar symbols and devices are put nponihe pub- lic in fraud of individual riglits acquired by pri- ority of use and title therein. 1871, iht to use the ti-adcniaik belongs. Li>rd Ciiklmsfoim), Iloitsi' of Lords, 1872, W^otherspoon (\ Currie, 27 Lnio TIdk^h R. (.y. H.) \\%\ ; S. C, /.. R. o Bit if. & Jr. A p. ."iOS : S. C, 42 Law Jonr. 11. {K. H.) (Jh. 130 (containing pictures of the labels in (question). ^ 302. Where the defendant puts up for sale his manufactured article, with labels and wrapi)ers whi(Oi are a colorable imitation of those used by plaintiff, — c. //., where the color of the pajx'i', the words used, and the general apjx'arauce of the labels show an evident design to give a, rep]'<>sen- tation of those used by the ])lrMUtilf, he v.ill be enjoined fi'om so doing, and tln^ fact that lie puis his own name on tlu^ wrap]»ers, cV'c, as the manu- fa(tturer of the; article, will not i>revent it from being an inrringement on plaintilf's tiadcmark. 1872, N. Y. t is either an intention J:Ji| Imitation. K55 todcH'oive en' Ji piobabilhy of deoeption. 1874, Via; Ok. llair.s^ CL, Cope >\ Evans, L. li. 18 I^q. KJS; S. C, *J0 L. T IL {N. K) 2i)2 ; S. C, 22 Ti: A\ 4.");}. v^ ;30G. A pai'ty who, while he has avoided liabil- ity for the ini'riimenient of another's trademark, yet has adoptenl a course calculated to secure a i)oi- tion of the good will of the other s l)usiiiess will not be regarded with favor liy a court of e(]uity. 1874, X. r. CL App., AV(^lfe V. Burke, oO xV. Y. ll.'). § 307. Before tlie t)wner of a trademark can coll u[)0]i tlie courts, lie must show not only that lie lias a clear legal right to the trademark, l)ut that there has been a plain violation of it ; and where u \iolation is alleged, the true iiKpiiry is, wherhei- the mark of the defendant is so assimilated to that of the ])laintiif as to decouve purchasers. And it will make no difference whether the party designed to mislead the ])ul)lic. l>ur if it appears that the trademark alleged to be; imitated, though resem- bling thecomplainant's in some lespecls, would not 2)rol)ably di'C(^ive the ordinary mass of i>urcliasers, an injunctioii will not b(^ granted. An imitation is colorable and will be enjoined, whicli lecpiires a careful insjtectiiui t(j distinguish its mark and a})- pearance from that of the manufacturer imitated. 187."), Siij)rrine ('/, of Nor in, Vdroliiw, Blackwell r. Wright, r.\ X. ('. :/k). g :i!)8. Plaintiif's label was as follows: " Genu- ine Durham Smoking 'i'obacco, manufactured only l;y W. 'V. ]51ackwell, (successor to .1. K. (}reen tV. Co.) Durham N. ('.." with a ])icture of a bull in the cen're of the lal)el, over which were the woids, "trademark." Defendiint's label contauied the npf* 136 Imitatiox. words, "The Ofigirml Durham Smoking Tobacco, mnmil'actiu'ed by AV. A. Wrig'ht," above whicli words was the liead of a bidl. IRld^ ou demurrer, tliat I lie word ''Durliani," the name of tlie town wliere botli parties were doing business, coukl not be exclusively appropriated, as a tradc^mark, and that the defendant's label Avas not an imitatkm of the plaintiifs. Bill dismissed, 1875, Supreme Ct. (f North Caroli/ta, Blackwell ?\ Wright, 73 N. C. 310 ; but see ^ 390. ^ 399. If it appears tliat the tradeniark, alleged to be an imitation, though in s(mie respects resem- bling that of tlie i)laiiitiir, would not X'l'ubably de- ceive the ordinary mass of i)urchasers, an injunc- tion will not be granted, /hid. § 400. The imitation of a ti'ademark to render a party liable for an infjingement need not be a i)ro- cise copy of the original ; if there is a similarity so that the communitv would be likelv to be deceived it is a sullicient infringement of the right of prop- erty in the mark, and an injun(;tion is the sole ade- quate remedy. 187."), Connecticut Supreme Ct.^ be- fore all the justices, Bradley v,. Norton, 33 Comi. 157. § 401. In determining the question of infringe- ment, the criterion is not the certainty of success in misleading the public, but, as was said by Duku, J., in the Amoskeag Manufacturing CVmipany t. S])eai', its probability or even possibility. 1870, N. Y. Supreme Ct. S. T., The Amoskeag Mauul'actur- ing Company v. Garner, 4 Am. Laio Times R. ^N. S.) 170. See Name ; Words ; Labels ; Devices ; Paktxeusjiip : Signs. ''. : ^i'i'l Imposition — Ixjunction. ]37 IMPOSITION. See MiSKEPRESENTATION. INFANCY. See § 218. INFRINGEMENT. See Imitatiox; Namh; Words; Letters; Numerals; Larels ; Devices; Pub- LICATIO.VS ; Pa RTNEItSIIIP ; Signs ; Buildings ; &c., &c. INITIALS. See Letters. INJUNCTION. § 410. A motion was made on behalf of tlie X)lain- tiff for an injunction to restrain tlio defendant from making- use of the name ''Great Mo^'ul" as a stiinii) upon his cards, to tlie prejudice oi' the plaintilf, m'.v wm^ 138 iN.irxcTioisr. upon a sn.a'ii'cst'on tliat the plr.iiitift' had tlie sole liiilit t(j tills st:mi[», haviiiLC approx)riated it to hiiii- ,s(>il' (.'oiirorinable to the (^Jiai'ter granted to tlie Card- makers' Company l)y King Charles the First. Loi'd Haiidw k k !•: denied the iiijuuction, and said he knew of no instance ol* resi raining one trader from making nse of the same maiiv uitii anotiier. 1742, IJ/^ 42:2. The court^, in considering: the pi'opriety of enjoinin,':;' a defendant, pending a litigation, who emi)loys devices calcnlated and intench^l by him to secm-e tlie benelit of the re])ntation acqiiirc^l by the plainfiif, will not feel called upon to Ik; zealous to aid him ])v relined distinctions, so that lie mav evade the letter and violate the scope and spirit of tlie adjudged cases. 18157, iV. Y. Superior (U. K T., Williams r. .lohn.son, 2 Bo.'^w. 1. >^ 42o. On the trial of the action it Avas left to the jury to say whethei' tlu^ defendant had s<^ld any labels printed by him, knowing such labels to be copies of the plaintiifs ti-adeniark, and knowing that they Avere to lie applied to bottles containing spnrions ean do Cologne. I'lie jury found a Aerdict for the plaintilf, Avith nonnnal damages. The bill, having been retained until after the trial at law, came on for further consideration, //"/r/, that the defendant should be perpetually enjoined from printing or stalling labels similar to those nsed by plaintiff as his ti'ademark, notAvithstanding the possibility that some labels might be i^urchased 142 In'juxctiox. hona fi'ed fraudulent invasif)n of his trademark labels. 'J'he summons contained a conclusion for interdict. The piu'suer, at the closing of the I'eeord, moved for interim interdict. Ilclrl^ that lie was not entitled to that I'emedy until he liad established his right by action. 1800, Ct. of ^^ei^.^ion, f^eoilancl. Green v. 8iiei)herd, 88 ScQilit;h Jf/riftf, 528. ^ 4'27. An injunction will be granted where the design of the defendant to defraud the plaintiff is clear, and defendant has used a trademark in all respects similar to plaintiff's except the name of the manufacturer. But the injunction will not be made to include the manner of l)oxing an article, the phraseology of cautions, and other incidents which are to be considered open to the public. 1806, I.NMr\(T[<»N. 143 N. Y. Supreme CL, S. 7\, (Jlllctt r. l-^stcrbi-ook. -17 Barb. 4;").'). V? 4'J8. Tlic ('()m])l;iiiu'i' soiiu'lif to liinc llic ic- s])(>ii(l(Mif infcrdictcd JVoni llir ni;niiir:ictui'(' ;i! Iiii wdi'lvs (tl" l)jir iron stiiiiiiicfl oi- luimdcd *'<'o;its,'* with :i still' iiiiMM'dinlcly rollowin;;' — thus. (\;:i(s ■•■ — (til Iho i;T(HUid tluit Ihc trade oL' tlie complai;!;".' in " star iron '" was injured ))y tlie re^pondeii! a';-;aMi- iiifj^ tlie said mark. 'JMie Lord Ordinary J)as^.ed tln^ note ti» try tlie (Question lietweeii the parties ; ''Init liavinlaiiitM-"s iron was ent(M'ed as staiupi'd, not simply with a star, Imt as •* (rovan ■"'• " the L./vd Ordinary did not think that the use on tlie [tart of tlie respondent of theniai"k "Ooats"-" was^.?- /V/r/r so clear an adoption of a tradeniark Ijelonuin;;' to the coniplainer as to entitle him to an interim inter- dict. On appeal, tlie Lords Justices said that the {piestion whether the mark of a star us(Mi by the C()m])lainer was sncli a trademark as could obtain the ]irotectionof law, v/as a delicate one, on which they would at that tinu^ give no o}»iiiion. lint as it was clear that the complainer had used the mai'k for some time ; that it had some signification in the mai'ket ; that no one else had nsed it ; that the use of it by the respondent was recent, sudden and un- explained ; that it was veiy like a device on the part of the respondent of an unf-dr kind to make use of a trademark used by a i-ival, to the injury of that rival ; and as no injuiy could arise to the I'e- spondent by granting interim interdict, but very considerable injury might resnlt to the complainer by refusal of it, the true equity of the case demand- ed that protection should be given in the meantime. i;-i '' •' IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ISO 1^ 1^ 1^ 12.2 us 140 I 2.0 1.25 |U 1.6 < 6" ► 0% <%^"^ >^ fi: / Photographic Sciences Corporation 23 WIST MAIN STRIET WEBSTM.N.Y. US80 (716)672-4303 «• •^ 144 Ix.irxcTiox, 1807, Cll. of ,/ DixDii Juc] vSOTl, ;} S^v>// /.s// />. y?. 18S. j:? 4'29. Where flici'o wns a qnostion as to wliat wasting natnro and e.Toct- oC an arrangemont made bcrwcen the ])laintil1" and K. II., Jr., and whethei' it vested in the lattei' the ii;i:ht to nsr; the ri'achMiiark, and to transfer sn7, J\\ Y. i^irprriuc (H. (L 71, Howe /•. ' Machine Co., no Barh. 23(5. .; i;>(). In matters of trademark, in order to au- thorize tlio inteiposilion of a court of equity, the title to the nse and enjoyment must be clear and unquestionable. J 871, Supreme CI. of (Jeore/i (, Ki- lls V. Z(nlin, A2 (reor(flii- ated tluMvords "Silver Brook" as ap])lied to ]y<> whiskey in 1870, and ho had obtained a co[)yi'ig!it under tlu^ laws of the United States for a label c;»ii- taining tlu; words "Silvei- lirook Pure Ilye Whis- key." I)el'(»ndant swore jjositivel}' that jn'ior to liis own approjji'iation of the words Ik^ jnul nev<'r heard of the words '* Silver drove" in conntTtion with a trademark for wliiskey, and he produced afiidavits from a number of dealers that thej' nev(M' kiunv or heard of any '"Silver Giove" whiskey ex- ti'. IxjrxcTiox. 145 oept that sold by tlie defendunt. PlnintifPs prodiirod no aHidavits fo show thiit their whiskoy w:is known iu t\\(' market and to tlx; trndc as '•Silver (Jiovc," except the ailiihivit of their hookktv^jHM' that it was rliaru'ed as siicii upon their hooks. Tlu; two Irade- ni:irks were dissiinihir ; ouch contained tlie Uiune of the owner with his place of business: th:it of tlu^ l)l:iintiirs was smnll and perfectly plnin, whilst f certain words which do not in tlnMuselves designate the origin or ownership of the merchandise, and which lias not been used lonu' enough to be known in the traarty sliortly after, in «miir.'' ignorance of the fact, and witlumt any apparent design of hnitation, uses the same words as part of his trademark, a court of ecpiity will not interfere in a summary way bv injunction, Imt will remit the parties to a court of law, there to settle the ques- tion of the original appropriation of tlie tradiMuark by the verdict of a juiy. Equity will only inttn-fere when a clear case of piracy is made out. Let the l)lainti(f establish his right at law, and he may then be entitled to the inteiposition of the equity powers of the court. 1871, r/. of Com. Pleas, Phil., Pf'iin.., Seltzer v. Powell, 8 Phila. 200. § 4133, On an aiq^lication to restrain the un- authorized use of a lirm name, it is not necessaiy to show that actual damage or loss lias accrued to 10 '1 wr'^ 1 "'.^i i ' sHfift, 1 ' ^n 14C Injunctiox. ;■.!• 4/ ii H tlu' i)laintiffs. 1871, X F. St/prr/or 67., X 7'., lircvcs r. Denicke, 12 A/jh. Pr. {X. S.) 02. j^ A'X\. The i)laintilf claimed to b(^ exclusively }U)sse.sse(l of and entitled to the recipe i'oi' niakiiiij: an ointment called 'M)r. .Fohnson'fs oi' Sii"vl<^>to!r.s (lolden Oinrinent," or " Sin^ 4;io. Ileasonable ajiprehension of injury from tlie proceedings complained of is sufficient ground for an application for interdict, and it is not neces- sary to prove actual injury sustained. 187;>, Ct. ((f Sc6-sio/i, Singer Manufacturing Co. v. Kimball, 10 Scottlsli L. Ji. 173; S. C, 45 Scott Uh Jurlat, 201. Intknt. 147 Z ^ toO. It is always a matter of disrrotion with tlic court to issue an injunction or not, ni)on a (".is<' niade in a tradeinai'k suit. 187."), (7. *V. ('//•. (7.. III., Tuckoi' Mannra<'tui'in,i>- L\). v\ Boyington. J) O/;*. (idz. ( U. K PaUni o}fi('('\ ^m. i: A'M. In (lett^iniining whether an injunction should be granted, some regard slionld be had to tlu' nature and ext., 51 ILno. Pr. 402. ^ 4H8. When the answer and affidavits on be- lialf of the defendants so thoroughly and completely deny the winkle equity of the i)laintiirs' cast- as stated in their complaint and affidavits, and so thoi'oughly rebut all charges of evil intent and ini- projx'r design, as to rencU'r it inii)()ssibl(? for tin; court to say, upcui a mere motion, that defendants have injured the plaintiirs, or that the use of the mark is calculated to mislead the ])ul)lic, an injunc- tion peiulcnU'. lite will not l)e granted. 187(5, N. Y. Supreme (7., N. T., Decker v. Decker, C)2 IIow. Pr. 218. See also Name ; I.mitatiox. % \m ■ '■• ■"■*■ . i .'f ^■- INTENT. m § 44.'). The court will grant a perpetual injunc- tion against the use, by one tradesman, of tlie trademarks of another, although such marks have been so used in ignonince of their being any per- 1 1 ■: i 11^ •fn I" ' .• ■ i 'i . . 1 •i; V'' ■i ;. ^1^ if MS Intent. son's properly, nnd under tlio belief tliat llioy wovo iiiciv tccliiiiciil (criiis. ISI'S, Lord Cli. CorrKNiiA.M, Milliiiuloii r. Fox, ;} Mt/Jne& Cr. :};W. ^* -l-Kt. ('use Tor '' wron resenibljni^" one nsed by tlie phiintiif, which file (h'fenchmfs knew, jind intended to b(! in imitntion f»f the phuniilf's, and wiucli was iis»>d by t!(e defendants in or(hM' to denote that their iron w:is nunh' by the phnntilf ; and for knowingly, t^lc. sellinii' Hie ii'on so niai'ked as and for the iihiintilV s iron. I'>l(/, tlijit njxin (his declaratiijn the plainiilf was bound toestablisii tlie (h^fendants' inttMition to d(H'eiv. 3:)7; S. C, 11 Law Jour. C. P. 301. §447. It is no answer that the maker of the spui'ions iroods, or the jt)bber who sells them to the retailers, inl'orms those who ])nrchase that the arii cle is spr.rions, or an iinitati(m. 184,"), Vice; Cli. Sandfoiiu, ('oats t\ J[olbrook, 2 Suik//'. Oh. 58(5 ; S. C, H iY. y. Lcf/. ()h,y the lathM', and of .supplantini^' him in the good \ill of his trade or business. 184(5, IV. T. (V. o/' AV/o/.v, 'I^iylor t\ Ctirpeiitei-, II P<(f'f/(; i.H)L> ; S. C., 2 ^un:; 44!). It would seem that an intentiotial fraud by tile defendant is not ne<'essary to entitle Ih*! ownei'of a liademark to i)roteetion, but tliat wheiv tlu^ same inailv or label is used, which recommends thearticli' to the public by the established re])Utation of another, who sells a similar article, and the spinious article cannot be distinguished from the genuine The atlixing to his own goods by any [K'r- son of the name or style of another person, liiin or company known to be the manufacturers of similar goods, although othei' particulars contained in I he I'eal ti-Jidemark of tliose manufactures may l)e A\hoily omitted, is, generally si»eaking, conclusive evidence of a fraudulent intent ; but even where no fraud can be justly imi)Uted, wheie the use of tlu; name or style originated in mistake and not in tie- sign, although the party may be exemiited from damages and costs, the continuance of the use may l)e justly le strained, since it involves a vi(jlatiun of a. right of property that if persisted in, with a knowledge of the fact, would be fraudulent. 1840, J'. }'. JS'if/wn'or (7., >K 7'., Amoskeag Manufactur- ing Co. v. Spear, 2 ^aiulf. ^^ffp. VL ADO. ^ 4.')1. The original fraud in the ]n'ei)aiation of counterfeit trademarks does not attach itself to the goods in the hands of owners ignorant of the of if !.■ -'lis M ' i' , i l.W IVTENT. I fonsH, and fasten u\)im them tlio penalties of a wi'on^- ol" wliicli tliey are innoeent. 1840, SV. V. Sfipcrior ('/., (}. T.. lluddei-ow c. Huntington, '} ■j 4."i2. Tlie inventor of an uni>ateiited medicine lias no exclusive I'ight to make and vend the same, but if otJiers make and vend it, tliev have no liulit to vend it as the niannfactnie of the inventoi, nor to adopt his lahel or trademark, nor one so like his as to h^ad the i)ul)li(r to sni)pose the article lo which it is aiiixed is the manufactui-eof the inventor ; and theyaie equally liable for tije damaii'e wlielher such li-ademark lie ado])ted by I'raud or mistake. IH.IO, Siiprciiic Cf. of Jl/iode J.sl((/ic/, Davis i\ Kendall, 2 JL I. ;-)()(). ^ 4.")'}. In trademark cases it is not necessary or usual for the conrt to relv solely on the statements of the defendant, in oidei' to discover what his i)ur- ])ose or intent may have been. AVhere there is a sirong resemblance in mattei*, color and ai'iang*'- nient, the court will presume that it is not fortui- tous, but that it was intentional, with a view to mislead i)ui'chasers. JS.")!}, Yive Ch. Wood's CI., Edelsten t\ Mck, 11 llarc, 78; S. C, 18 Jurist, 7; )<. C, 23 Eii(/. Law & Eq. 51. 5^ 4.")4. Kesemblanceisti circumstance of primaiy importance for the court to consider, because, if the conit iind that there is no I'eason for the resem- blance, except for the pui'pose of mi.vleadiug, it will iid'er that the resemblan 'e was adopted fo:' the ])Ui'l)ose of mishnuiing'. J8.-)4, V. C. Wood s Cf., Taylor /'. Taylor, 23 Lo/r J. (^.Y. K) C/ia/,-c. 2.V3 ; fc. C* 23 E/if/. ^Laio <£• Ef/. 281. ^ Ai)o. Held., that a defendant could not escajie liis liability by cautioning Ids shopmen to explain IXTENT. 151 to piivcluisors tliJit his ;iiti<'lo \v;is not the saino as the |)liiiiitilVs', hccatiM' he could not s^'ciire that retail dealers ])ni'<'hasin,u' rroiii him would uive tlici same inloriiiation to theii" «Mistoin('rs. 18.').">, W ('. Woor/'s ('(.. ('happen i\ Davidson, 2 /u/// tt- ./. \'>'.\\ S. ('.. C/l. ('/. of A/ijirdl, 8 l)r(i. M. d'(j'. 1. ^ AM). To ien(h'i' a ])erson liahle for misi'<'])re- sentalions as to the ci'edir of anoth'r, by tlie use ol' false siuiis or trademarks, the siu'ii or mark must ))e jalse in fact, so known to the ])arty iisin.u' it, and have l)i'en u:;ed with the intention to dcc'.'ive, and of such a character as would niish'ada ix'rson usiiii^ ordinal y <'aution. An injunction may l)e i)ro[)er, without any other ])roof (tf tlie knowh»d,ii"e (\f the falsify or of the intention to deceive, than tliat wh'wli arises from the fact tliat there is falsity, and that the effect will necessarily be to deceive. lS.->7, j\\ y. Siiprriiic Cl.^ .V. 7^,, Peterson /". llumplnvy, 4 Ahb. Pr. :51)4. J; 457. In Older to establish a case for relief it is not necessary to show a '"fraudulent ])uri)ose " in the defendant, but it is suHicient if the similarity of title be such as to have led, and to be likely to lead, to mistakes. IS.li), Nice Ch. Stiakt, Clement r. >raddick. H .////•/>/ (X .s'. t ;V.):> ; S. C, I O'i/. t)8. V//r//, J)ixoii r. Fawcus, 7 .A/v/.v/ (X. X. ) 8:)r> ; S. C, :5() /v^^/o ./o/^/-. {(J. B.) i;37 ; S. v., 9 IIVr/.7// /.'. 414 ; S. C, :5 y>(//« 7V///f *• (iT. JS'.) co:'.; s. C, :rAV. d- AV. n:}?. ^400. Tli«> lii^lit of i)IaiiitilFs to maintain an ac- tion for a violation of a tradcniaik does not depend in any degi-ee nixni the defendants' intention to violate it. It is enough that the defendants liave violated the light. 18(51, ^Y. )'. Co///. Picas, G. T., Dale r. Sinilhson, 1:2 .!///>. I'r. '2:)7. ^ 4(')\. If it be found that there has been a col- orable imitation of a lrarolits made by, the nser of a i)laintiirs trademark, though at the time of the user he may have been ignorant of the rights and of the existence of the l)laintiif. J hid. % 4(53. The want of any knowledge or intent on th(» part of the defen'S ('iifitlcMl fo fin injunction, but \U){ to nn account of jd'olits or coiupcMisution, cxccjjt in ri'spcct of auy us(» l)y 15 after li(3 brior o\vn<'r- sliip. 1,S('»;). IxJ'orc ilic Ld . C/i. on r remedy is by an action on the case, and pi'oof of i'linuhdeiit user is of the essence of the Jiction, but to sustain a bill in a court of eijinty, it is not necessaiy to pi'ove fi-aud, or that th(^ credit of the plaintilf was injured by the sale of an iid'erior articl<' ; tlie injury don<; to the pliiintilf by loss oi' custom is sutlicient to sup[»oit his tiil(» to relief. J hid. % 4(5(5. It is not necessary to prove in trademark cases that tin; respondc-nt was aware that the mai'k used was a tnidemaik. 18(5:>. Lord Ch. Bu.dv, Kinnhan r. liolton, b") fri.sh (J h. T."). >; 4(57. The jui'isdii tion of the court of chancery in th(^ pi'otectiou of trach'mai'Ivs rests on property, and fraud in the defendant is not nec(^ssary f(»r the exercise of that jurisdiction. The i)laiulilf is en- titled to relief, even if the defendant can jirove that he acted innocentlv and without anv knowledne of the riiiiit of the defendant. Ohi/cr. JSO-l. Lord Ch. Westiumiy, Hall v. Barrows, /.. T. JL {X. >S'.) 5(51 ; S. (J., l^WetJch/ J}. '.\'22\ S. C, 10 Jurist {N. K) a") ; S. C, 3IJ Lfiw J. It. {N. S.) Oh. 204. ^ 4(58. Injunction granted to restiain the use oE the ])laintiirs trademark by the defendants, th(»ugli the .scienter was not proved, but an account (»f ]>rofits refused on the ground of delay by the plain- tilF in commencing the siut. The defendants given a month's time to discontinue the mark, but ordered !' •.: I f iiHi' . i^\ ?• 154 IXTEXT. :' h to i»;iy ill! Ihf costs. ISCu. V. O. WoofV s CI., lljir- ]is(ni r. T.-iylor, II .Inrisl tX ,s'.) 4U8 ; S. C, 12 ,^' 4()1). It (Iocs not siu'iiily, I'or tlio piii-posc ol" llic i)l;iijilili"s liulil to rclicl', whether tli« dcrciKhiiit liiis jict<'(l with ii riMiidiilciit intciiiioii or not : it is ciioiiu'h if. even wilhont nny nnl'iiii' intention, he li:is (lone tliiil whi<'h is cnlcnluted to inish'jid the ])iil)lic. 1S(5."), V. ('. K'niihrxltif x (7,, Ulenny r. Smith, 1 Dr. ct- S,u. 47('. ; S. C, Jl Jtni.sf {\. X. ) )t ; S. C, J;3 L. T. 11. (X aS'.) 11 ; S. C, ^no It. ).). ^ 47(». Tlie nse of the trademsirk oi smother niiinnnictnrer, wliethcr (huu? .svimtcr or not, is nii interrereiic(» with liis hnsincss wliich tlie conrt of chiuicery will inferi)ose to pi event, on the ground that the derendant is endeavoring; fo pass oil' the goods of his own, or Sv'iniehody cls(^\s niannfactnrc. as tlie nianufactnre of the i>lainti(l'. 18()(), \ . Ch. AVooi), Ainsworth c. Walinsley, Laii^ It. 1 />'«/• ^'>\^\ S. C, 12 .////•/.v/ (.y. N. ) 20.") ; S. C., 14 Wcclili/Jt. \)m ; S. C, 14 Jmh) Tinir-s It. {JS\ H.) 220; S. C, :{.") X(/?r./. yj'. (X. X) (7/. ;5:)2. jf 471. It is n(>t neces.sary to prove intentional I'rand. If the inntation is calculated to mislead, the intention to deceive is to he inferred therefrom. 18(5U, Siii>i-. All inriiiiiiPiiicnt of ;i tijidcniiirk will Im enjoined, :dllioii,u,li tiic intent of I lie inl'iine'er ni:iy linve Ix'cn entirely iniiofent. JiS.o. ('/. of Con/. Plitiu, P/iil., P(i., Dixon Cnicihic (.'o. (\ Cfnggen- heinu '2, lirrtc. \V2\\ S. (;., 7 /V/'7. 4()8. J^ 474. 'rrjideniiirks nic i)i(.i)erty. and a ])ej'soii iisinu: such marks withont iJie sanctii n and anthoi'- itv ol" the owner will hii resiri;!Me(| l)v ininnction, even whei'e it does not appear there was any I'laiid- iilent intent in their use, and will be reipiiied to ac- count i'oi- the jd'olits deiived from ilu^ sah; of i;()ods so nitirked. 1870, ManjUnifl VI. of App., Stone- breaker /". Stonebreakei-, oo JA/. ^.^J^. ?! 47."). The Li'round on whicli courts of (\]uity af- ford r(4i<'f in cases of infrin.ii'cinent ui)on the ri^ht of pi'operty in trademarks is the injury to the})arty a.u'urieved and the imposition \\\nn\ the public. The existence of theseconse(piences does not necessarily depend upon the question whether fraud or an evil intent does or does not exist. 'I'he quo (/uij//ot]H'H'- I'ore, would .s<<'iii to be aninimaterial inquiiy. 1870, ^Supreme ti'adfMiiaik. i'oi- tlie ])mi)ose of csfablisiiini!,- a case of iufriiiL>c- iiieiit, il is not necessaiy to shov,- that th(»re has b(>en tlu^ use of a niaik in all respects cori'esji()iid!nnrticu]ar colored paper, or kind of paper, for covering or inclosing his goods in any l)articular form. 1807, N. Y. Supi'cme (Jt., S. T., Faber v. Faber, 49 Barb. 357; S. C, 3 Abh. Pr. {N. 8.) 115. § 492. In an action to recover damages for an im Labels. 109 alleged invasion, by imitation, of the plaintiff's tradomnrk for the sale of a certain washing powder which consisted of a highly colored pictnre, repre- senting a Avash room, Avith tnbs, baskets, clotlies lines, etc., also the following legend inte^'blended with it : " Standard Soap Company, ErasiveAVash- ing Powder," followed liy directions for the use of the " washing powder," and the place of mannfnc- tnrc ; the alleged imitation by defendants consisted of a i^icture and label which were the same as in plaintiff's alleged trademark, only in the use of the words "washing powder," the directions for the use of the powd(n', and in the use of paper of the same color as that used by plaintiff. Held, that this did not constitute an infringement of plaintiff's trademark. 18G8, Supreme CI. of Cal.^ Falkinburg I). Lucv, 35 Cal. 52. § 493. The plaintiff, for the purpose of distin- guishing the spoons of his manufacture from all other Britannia spoons sold in market, and for the I)urpose of designating diff'erent classes of his own goods, adoj)ted different labels of jiarticular size, color and form, with his own name and some term descriptive of the spoons thereon, and certain figures arbitrarily chosen, each class of spoons being indi- cated by lixed luimbers. Said labels constituted the only trademark under which he introduced his goods into market, and under said labels and numbers his goods had become generally known in the mar- ket and had obtained a good reputation, and a large demand had grown up for them, and they were gen- erally known by their respective numbers and gen- erally ordered, bought and sold, by the numbers on the labels. Held, that the labels thus arranged and used were entitled to protection. The defendant 1 1 i 4 i f w SI i. 1: I" '^. !' ?■■ 1 ' •;j ■•■1-I m I a 1 160 Labels. iikkIo spoons similni* in cliii:.; ' ^^^ to those made by phiinrilV, llioiiu'li (lifFeringsomewii.it in style oi'i^it- lei'ii, and ])reparcd labels resembling the plaintilFs, jind adopted the sjinie numbers for similar kinds of s])()()ns. th(f labels being so similar that an unwary trader who did not r(^:id the name upon them might be d(M'eived. The del'(Midnnt adopted snid labels with the particular numbeis for the purpose of aid- ing the introduction ol' his spoons into the marlvct. IhiiJ, ijnit del'endani's labels wei'e a violation of the trademark of the plaintiff, although he put his own name on the lal)els in the place of that of the phuntilf ; and it seiMns that the use of the figures witii a ciplKH" prefixed would not vary the result. 18()S, (^oiLiiarl.iniU l^iip. C'/., Boardman «. Meriden Britannia Co., '.],") Conn. 402. § 404. Where the plaint ilf has the right to the exclusive use of a trademark, in a particular article of manufacture, anv labels used bv defendants whii'h are calculated to deceive the public into tlie belief that the article they are selling is the article made and sold by the plaintiff, will l)e restrained by injunction and the plaintiff fully protected. 18G8, 'n. Y. Com. Pleas, G. T., Curtis v. Brj^an, 2 Dalij. ?>\2 ; S. C, 30 llow. Pr. 33. $^ 41)."). A label at coiumon law is not a trade- mark, but when a manufacturer or seller of goods a(h)pts a label to distinguisli his good;' from those of another, lie is entitled to be protected in its use, and others will be enjoined from using the same, or a colorable imitation thereof. 1873, Suprcine CL ofCal., Burke v. Cassin, 45 Gal. 407. j^ 490. An imitation of a label used on goods is a false rejjresentation that the goods to which it is attached were manufactured or sold by the person LAr,i:L>5. 101 whoso label was ropiod or imitated, and ])iii"('lias(M'.s are deceived and liable to be defrand(Ml. (,'a.s<> of Ftdkinbiiruh /•. Lncy, ;3.") Cal. 52, explained. I hid. i 4!)7. Where a person, by a eonibination of elements and symbols, has in'<^tlnced a wra]>p<'r to enclose and desiiijiate an article manuractiired by liini, iindei- which il has ,: Superior CL 20."). § 498. Tlie jjlainliir imported and sold an article known as '•Julienne," composed of various vearinn' for use and usin.i;". Subsequently, the defendants s()ly (IcImv from iii;'lit to rf»lipf. 187."), C/f. f7. of J/>- pcnl, Eustcoui't /". Estcourt Hop Essence (.'oiiipMiiy ( Li mi ted), 44 L. J. U. {N. K) Vh. 2-i;} ; S. (\, />. //. 10 r//. L>70 ; S. C, 82 L. T. U. {N. K) 80; S. ('.. 2:5 ir. 7.». :m;{; reversino- S. C, 31 L. T. JL iX. s.^ 507. See also Acquipisckxck; Auaxdoxmext; Lim- I'lATIOXS. LETTERS. § 510. The plaintiffs had a patent for the man- ufacture of case-hardened ploughshares, which they Avere accustomed to mark with the words "Kansome's Patent," and with the letters II. II. to denote that the shares were case-hardened, and also with cei'tain numbers, as Xo. 0, to denote their size. The defendant marked his ploughs ''Kan- some & Co., II. II. ;" he admitted the use of the woids " Rans(mie & Co.,'' but said it had been dcme under belief that the j)atent had expired ; but he claimed the right of using the letters and figures H. II. G. An injunction was granted resti-aining the defendant from using said words or letters on ploughshares. 1884, Vice C/t. Cf., Ransom i\ Ben- tall, 8 La/D Journal R. {N. S.) 101. § 511. The boxes of tin plates made at parties ular works at Carmarthen were for a long series of years branded with the mark "M. C." S, a lessee of those works, who had used that mark while tenant of the works, subsequently removed his " 'I {■ r ,1 T si ■ i., ■ 1 fBb ill U ' II ■ i>' :l 104 Letters. iiinnufnrfory fo other worlxs, nt a distance of forty miles, and there used thc^ sjinie mai'k. Tlie ownei- of the ])i'o])ei'ty, as soon as tlie lease expired, re- nioiistiMted ii/^ninst Mr. S's continuing to use the s.iid iiijirk, which had always been used to desiu- nate tlie tin ])liites ninnufnctured at the Carmarthen ^vol•ks. Th(^ Carmartlien woiks vvei-e, for some y<\ns, unoccupied ; l)ut afterwards I), and others as c<)[)artners, liavinii; taken a leases of them, carried l]i(>iu on. and bianded tlieir boxes with tlie mark "M. ('.,"' and styled themselves "The M. C. Tin J'iatc ('(>m])any." S then obtained an injunction to ]esfiain J) and his partners from using the mai'k -M. V.r or the designatiim of "^JheM. C. Tin l^late Company ;" but u]Km appeal, it not appear- ing ceitain to the coui't that the pkaintilfs had acquired a light to prevent other subsequent tenants of llie woi'ks at Carmarthen from using said mark, which vas originally derived from said works, the injuiu'tion was dissolved, with liberty to S to bring an action. 1837, before Ld. Ch. Cottexham, Mot- ley /'. Downman, 3 ^ff/^. tt* Or. I ; S. C, C La?o J. ]i. (X X.) C/t. :J()8. § 0I2. AVhere plaintiffs used the words " Amos- keag Manufacturing Companj^ Power Loom, Yds. , AC A, Amoskeag Falls, N. IL," and defend- ant the words ''Lowell Premium Ticking, Power Loom, Yds. , AC A, Wananted Indigo Blue," the shape and color of the labels l)eing the same, an injunction was granted, i-estiaining the defendant fj(mi using his said labels. But that part of the injunction restiaining the use of any labels with the letters AC A therecm was stricken out. 1849, i\''. Y. Stnprr/or CL, f^. T., Amoskeag M'fg Co. v. Spear, 2 i-fa/id. Siqj. CL 599. t !, Lkttkus. 105 § 513. Tliere can be no doubt that two lotters may constitute a tiadoniaik. The lottei's 'vL. L." laid a tiadeniaik. 1S(;;{, I ^oid Ch. J3i:ady, Kinahan ». Bolton, 15 ///.vA Vh. IL 75. -;;• 514. A hnn originated and adopted a method of piei)aiing whiskey, whereby ii pecuHar llavoi- >v;!s imparted, and marked the wiiiskc^y so )>repared with tlie letters "L. L.," beini"' the initial lettcis of the words Lord Lieutenant, and sold it in boirles. jars and casks, having tlie letters '" L. L." with a ducal coronet impressed on the corks of the casks, of the bottles and jars, and also having a label alHxed on the outside of the casks, bottles and jars, having l)rinted theieon a ducal coronet and " L. L AVhis- koy." Evidence was given that in the tra(h> the letters "• L. L." were understood to mean a peculiar whiskev sold bv the lirm of Kinahan & Sons, and not any other whiskev of the same class. It ap- peared that the newspaper advertis«Mnents issued by tlie x>t*titioners described the whiskey sold by them as *' L. L. Whiskey" sim])h', although on the labels those letterswere alwavs preceded bv the word " Kinahan" s." The Lord Chancellor said that the word "Kiiuihan" vlid not seem to have been incorporated with the trademark, l)Ut to ha\e been inserted to say that the whiskev was madt^ or prepared by Kinahan, and could not be had else- where. The respondent was restrained by injunc- ti(m from using the letters "L. L." for whiskey sold by liim. Ibid. \% \* : liy-im: See also Imitation. See also §§ 656, 674, 751, 757. IF 'A J ■I -ijiia uijiiiiiwiwiiiigiHwwiiii WW '-■•■i , 166 LiCEXSE. LICENSE. ? 520. Elias Ilowe, Jr., in 1840 obtained a })atent for a sewin.i? niacliine, and gave a license to liis bi'otliei', the plaintiif, to nse liis patented right or ('oiiil)ination, in the niannfactui'e of sewing nia- cliincs. Before IS.")? the plaintiff phiced on the machines manufactuied bv him his own name, "A. B. Howe." In 1857 he snbstituted the name •"Jlowe" for "A. B. Ilowe " and snl)se(]iiontly cv«*i'v niacliine manufactured bv^ him had the word '"Howe" on a conspicuous place on it ; such word being used to denote the plaintill' as the manufac- tiirer, and not to denote Elias Ilowe, Jr., as the in- ventor. JId(f, 1. That the fact that the plaintiff w^as the licensee of the inventor and could not have manufactured his machines, without using the i)fft- ented combination of the inventor, and therefore could not have mannfactui-ed them without the in- ventor" s license, did not and could not interfere with or imi»air his right to adopt and appropriate a trade- mark to mark or distinguish the machines manu- factured by him from from those manufactured V)y other licensees of the inventor. 2. That the circum- stance that licensees did nse and liad to nse the patented right or combination of the inventor as liis licensees in mannfacturing their machines, did not affect the qnestion of the right of either of snch licensees to adopt and appropriate a tj'ademark, even as against Elias Howe, Jr., as a manufacturer of sewing macdiines. 18(57, N. Y. Snpreine Ct., G. T., Ilowe r. Ilowe Macliine Co., 50 Barb. 230. § 521. The nse of the name of a steamship line while the shippers Avere agents for a steamship i ' fe 'ji Limitation'. ic: m compnny, is ji inei-e license and ^ives no right to its use ai"t<^i' the a,i;en('y is terininuted. 187:^, i'l. <>/ Com. Pled.s, Vhil. Pa.^ Winsor v. Clyde; Stetson c. AVinsor, 'J Phil. i513. See also AcQUiESCiXCE. ■•■ *i LIMITATION. § 525. An action to i-ecover damages for the in- fringement of a trademark will lie, although at tli(3 time the article was sold by the defendant, tiie l)laintiif employed another inaik and had disccmtin- ued the use of the t)ne imitated. The wrong and injury to the plaintiff consist in the sale of an arti- cle falsely purporting and declared to be of his manufacture, and it makes no difference whether the deceit be effected b^' counterfeiting his present trademark, or one that he formerly used. Hence, the fact that the plaintiff had discontinued the use of his trademark for three years and had adopted a new mark, would not deprive him of a right of action against the defendant for selling leather which was not manufactured by the i)laintilf, ])iit stamped in the same manner in which tlie pltuntilf had formerlv designated the leather manufactured by him, thus purporting to be of his maimfac.'ture and declared by the defendant at the time of sale to be the genuine Lemoine calfskins. 1854, JV. Y. Com. Pleas, G. T., Lemoine «. Gauton, 2 PJ. 1). SmWi, 343. § 520. A person who does not assent to the use of his trademark by another, cannot be deprived of his rights by omitting to bring an action for a ~ V- J ';J'-' W' J "•■''■il IFf IC8 Makks — MisKi;pui:si;NTAiH)\. period of nine ycius. 1871, C/i. Ct. of Aj)i)<'((I, Lazeiiby v. White, 41 Law Jour. (iV. H.)V/i. 8;V1. See also Acquiescence. MARKS. See Devices. MAGAZINES. See Publications. MISREPRESENTATION. § o30. The plain tin." had made a new sort of mixed tea, and sold it under tlie name of ''now- qua's mixtuie ;" but as he had made false state- ments to the public, as to the teas of which his mixture was composed, and as to the mode in which they Avere procured (by intimating in his labels and advertisements that the mixture was made by llow- qua, in Canton, and iini)orted into England by the plaintitf, in the packages in which it Avas sold ; that the tea which gave it its peculiar liavor was very rare and high-priced, even in China, and was grown only in the province of Kyiang Nau ; and that it could not be prociiied in England, at any jjrice); the court refused to restrain the defendant from selling tea under the same name, until the plaintiff MisKi:i'Ui:si:xTATi(>x. 100 I K!^ » had cshiMisliod his title nt law— jiiid the cr jturfr iiijunctiou was (jissolvcd, with li'icily to llic plain- till" t(» hriiiu' such action as hr iiiiulit Itc advised. iy:5T, JI!>//( Ci. of Vlaihrifii, ridiliii<^- (\ How, S J^//N(>/i-'<, 477. jir);)!. If a [)Iaiiitill' ('(uniiiu- Cor an iiijiinction in a liadcniaik i'asc appears to have been iiiiilty of iuisrei»i'esentations to the pnblic. the conrt will not intei'l'ere ill Ihehi'st instance. Accord in,!i,-|y, whery T. & Co. for said pins, contin- ued, after the expirati^'ii'i'dr"s. would eor.iniit a IVaud upon tlie piaiiiti.'fs and iiiH)ii the })ui)li<' ; lait il' the i)lainti(l-'s are themselves eima'^ed in the execution of a sas- tematic plan foi- deceiving" the public, if they liave been, and still are, endeavoring, constantly and daily, to niultii)ly th!. T., Fetridn-e r. Wells, 4 AM. Fr. 144 ; S. C, 13 IIow. Pr. 385 ; «ee Fetridge r. Merchant, 4 Ahb. Pr. loO. § 541. Where it apjx'ars in an action to restrain an infringement of plaintiffs trademark, that de- fendant has deliberately and without an}^ previous connection with the particular business, adopted the emblenrs and ai^pellations employed by plain- tiff, simply to l)reak in upon the trade and pi-olit of the latter, in such cases, notwithstanding that it may ai)pear to the court that the trademark claimed by the plaintiff was intended and calculated to de- (;eive the ]mblic, the cpiesthm shoidd be .judged of solely as between the immediate parties, and the ])ublic should be left to its own guardianshij). IS.')?, A\ y. Hiipcrlor CL, S. 2\, Fetridge v. Mer- chant, 4 A'iO. Pr. I."i0. See Fetridge v. W\^lls, 4 Abb. Pr. 144 ; S. C, 13 How. Pr. 385. § 542. The legislature having passed an act to In II f I 'ft ■ 174 MlSRKPRESEXTATION. punisli and prevent fraud in tlie use ol false stamps and labels, and it being the policy of the hiw to protect the rights of individuals in respect to their own inventions, labels and devices, it would seem to be implied, since the legislature and the courts ai-e thus sedulous to protect the rights of in- dividuals in respect to their own inventions, labels and devices, that such individuals should not them- selves attempt or allow any imposition upon the public by the false and fraudulent use of such labels, devices, names or inventi3 Barb. 004. § 54'?. If the pills are an innocent humbug, the defendants have no right to deprive the jjlaintiffs of the reputation and customers which the plain- tiffs' money has been the means of acquiring for the pills antl themselves ; especially in this case, where the expenditure was in a great measure in- duced by the defendant. It does not appear that the pills are positively injurious ; but it is not for n Misiieimm:si:xtat[<)X. I.) the defendants to s;iy that tlie phiintilfs ai'e hnm- l)Hij:,i2:in,ii: the public and ai-<' therefore not entitled to anv I'clief aiiainst them, when the defendants liave been, and still are en^aucd in tlie same woi'lv. As to (he public : if the jhIIs are an innocent humbug, it is doubtful whether it is the dutvof the court, on the questions of the propei'ty, of right and wrong lietween the parties, to stf^}) outside of the case and abridge the innocent individual liberty, which all persons must be presumed to htive in common, of sutF(M'ing themselves to be humbugged. 1800, JV. r. ^'iprnne Ct., S. T., Comstoek v\ AVhite, 18 Jlotc. Pr. 4'Ji. § r)44. The courts Avill not interfere by injunc- tion, to protect a party in tlie use of trademarks, which are employed to mislead the j)ublic, and to deceive them by fraudulent representations con- tained in the labels and devices which are claimed to constitute wholly or in part such trademarks. The court does not refuse its aid in such a case from any regard to a defendant, who is using the same eiforts and misrepresentations to deceive the pub- lic. Hence, where the plaintiff's label was calcu- lated to induce the belief that the article in the box on Avliich it was pasted was manufactured in Lon- don, and that the sole proprietors of it had their place of business in London, and that the i)laintiff was their sole agent for the United States, when in fact the article was made in New York and the plaintiff was not the agent, but the mannfactiirer and proprietor, and injunction was denied. 18G0, iV. Y. Superior Ct., S. T., Ilobbs v. Francis, 19 How. Pr. 507. § 545. While it is true that a court of equity will not interfere preliminarily by injunction and ■ill M ,■,141 m m Sii| i*-Mi '[{^f 176 ]Miski:pkesextatiox. protoH'f a person in .'in ox .-'-^ right to a trade- luarlv (>r l:i!)o], inanirestly dovl'sj ,. ::nd int, if the statement was true at the time the mark was adopted, tliough the patent has been allowed to drop before its expiration. 180J?, 1^. (7. WooS'.) 81 ; and reversing S. C, 1 //. ct- 3L 271 ; S. C, 32 Law ,T. R. (.Y. >S'.) Ch. 721 ; S. C, 11 Wccldii R. 931 ; S. C, 8 Law Times R. (lY. K) 829. § 549. The plaintifTs purchased from a firm established in the United States, knowledge of a 13 \ \,.: r'i m. 178 MlSREPP.ESEXTATIOX. \ 'ir ^t secret mode of making crucibles, wliicli had ncqiiired a reputation in Ameiica as ''Patent PluuibnLi'o (h'ucibles," although the process had never l)e('n patented. JfcM, that the ijlaintitfs could not tuaiii- tain a bill to resti-ain others from pirating this designation. Tliat the use of tlie word "l^atent" by tlie plaintiffs was calcidated to mislead and do- iVaud the public witli whom they were dealing, and that therefore they would not be protected in its use. 18(50, I': C. Wood, Morgan ??. M'Adam, :{() Lrfw Jour. (iV. *S'.) C/t. 228. § Sno. In sn(;h a state of tlnngs, the court, what- ever may be the conduct of the defendant, does not ask whether or not it shall interfere to resti'ain a defendant, but it must see in the first instanc<», before it reaches the defendant's case, whether or not the plaintiff has made such a case as to en- title him to the court's assistance. All that the court has to determine is, has the plaintiff, who comes to seek relief, any ground whatever for ask- ing the court to assist him in protection of that right which he sets wp ? If the court finds it to be a light founded upon fraud, the court says it cannot assist a person in carrying on a fraud ; and when he comes and cannot establish to the satisfaction of the court that he has a case in which he is entitled to relief, he is told that when he has entitled him- self by a proper description to protection in re- gard either to a trademark or any trade designation of that kind, he will be assisted ; but until then, the court must disregard altogether any supposed wrong which he may suffer from other i^ersons car- rying on the same system of fraud that he carries on, imitating him in the false description of what Misi:i:im:i;si:ntatiox. 171) thoy sell, or in the title oC the compiiiiy under wliich they iind he I'alsely profess to exist. 1 hid . % k)7A. Dei'eiuhuit procured a label very cldsdy resembling plaintitrs" and ('oninien<'ed to attiicli it to a peii'iiUK' nianui'actured by him, Jidoptiu^' tln' same niiuie and style of paeka,!j;es, with the inten- tion of counterfeiting plaintill's' ti'ademnrk, as U(^ll as imitating the article and style of packages used, and with the design of appropriating to liiinself the market obtained i'or the plaintiirs' article. The plaintiffs in connection with their label put forth a pulf in whi(;li it was stated that "The opoponax is a native flower from ^[exico, of i-are and very rirh fragrance, from whlrh f/n's- cr/rarl f-s r//,s7/7AY/," Sec. Several perfumers on the part of the defendant made afTidavit tliat plaintiff's' article was not dis- tilled from the ffower of f)poponax, but was a com- 2X)und of essential oils, cond)ined with i)ure spirits, and that there was a resinous gum in the market, of a disagreenble odor, but no flowers of opoponax. Plaintiff's and their claimants swore the perfume was made from said flower. Held, that upon this contradictory state of the evidence, the defendant's defense that the plaintiffs are attempting to imi)ose upon and defraud the public was not available and that defendant should be enjoined. 18G7, K. Y. Supreme Ct., G. T., Smith «.' AVoodruft', 48 Barh, 438. § 552. The justice and morality of this defense is not very high, in the present instance ; but this rule of law or eqnity has been recognized in several cases, and must be followed if the case is brought within its application. It is a defense that ought to be suggested by the court in some cases, and |)robably wonld be in all cases where the imposition is flag- I'.'i t ■% r 180 MlSrwEPIlKSEXTATIOX. ft (**■ „ Hi ■f I!.t I'nnf. For instaiiro, wIkh'o a quack rompoinids noxious and da ngoroiis drugs, liurtfiil to the liiiiiiaii coiislitiifioii, and advertist^s tlieni as a safo andsiii-c I'cnicdy foi' disease; or wlieji some ehailatan a\'alls liimselt'ol' the pi'ejndire, superstition, or ignoi'aiicc <)[ some ])oition of tlie public, to palm oil' a woitli- less article, even when not injurious, the case falls beneath the dignity of a court of justice to lend its aid for the i"edi'(^ss of sucli a paity, Avho has been intei'fenMl Avith by the imitations of another (]uack or chai'latan. But tlu; suggestion comes witli a ])nor grace from one who lias, by tlie imitation, b(MMi guilty of the same fraud or imposition upon the i)ublic, if such it happens to be. Per Lkoxaim). r. J. fh/(7. ^ ,").");?. A person wlio in and bj' his tradmruk makes representations which deceive the public, can- not appeal to the equitable interposition of a (30urt of eqTiity to restrain the use of such decejitive ti'ademark by another. But a mere false oi' exag- gerated statement in an advertisement of tlie manu factured article, and not. contained in the ti-ademark itself, tending to recommend its use to the public, wdll not deprive the owner of a right to be protec^ted in the exclusive nse of ]iis ti-ademurk. Hence, where an advertisement of the plaintifFs artich^ (called "Mrs. Winslow's Soothing Syrup") con- tained these words : " Mrs. Winslow, an experi enced nurse and female physician, i)resents to the attention of mothers her Soothing Syrup," whereas the truth was, that Mrs. Winslow liad been for many years dead, and the defendant denied that Mrs. AVinslow had been an experien(;ed nurse and female physician : Ildd, that the statements in said advertisement did not affect the x>l!»intiirs m MlSKEPKESENTATIOX. 381 Imdetnat'k one w;iy or tlio other. 1808, X. V. Com. Pic (US, (J. 7'.,' Curtis 6'. 13ryun, 2 Dnhi. :5ii. and ;}G How. Fr. \Vi. ^ 5,")4. A person who has fraudule^itly iiiiitiilfd the trademark oi' anothei', and oll'ered I'oi' sale liis own i;*oods as those of Ww owner of th(! tiadcnuiik, can not he heard to raise the objection that tlu' hit- ters <2;i)ods are injurious to health. Tlie acts ol' the party conclude him. Ibid. %^)o7). The ground on which the jurisdictional' equity in trademark is vested, is the i)rom()tioii ol' honesty and i'air dealing, because no one has a right to sell his own goods as the gO(jds of another. There is no class of cases to wliich tlie maxim " lie who ct)mes into eqnity must come with clean hands" can nnn-e properly be applied. A ])a!ty Avho attempts to deceive the xjublic by the use oi' a trademark, which contains on its face a falsehood as to the place where his goods ai'e nianul'acturtMl. in order to have the benelitof the reputation which such goods have accpured in the market, is guilty of the same fraud of which he comphiins in (h'Tciul ants who imitate his mark, lie can liave no claim to tlie extraordinary interpcxsition of a tribunal constituted to administer ecpdty, for the pur])()st_- of securing to him the profits from his fraudulent act. It is not necessary that any one person has been actually deceived or defrauded ; it is enough that it is a misrepresentation calculated to have that elfect on the uuAvary and unsuspicious. A trademark on Spanish cigars made in New^ York, indicated that they were made in Havana. Held, that an injunc- tion would not be granted to restrain a counterfeit of the trademark. 1809, Supreme Ct. of Pa., Pal- mer 0. Harris, CO Pcnnsylcania, 15G. I >f m 182 MiSKKlMlKHKNTATIOX. § ru)C). Tlio use of tlio word " pate'iit " as [Kii't of rho (bvsci'lplioii ill a laix'l oi* tradcmai-k of ji^ood.s not prot('('r(!d by a patent, is not siicli a inisr(>[)i-e- siMitalioii as to depi'iv»; tin.' owihm" of Ids riglit to I)p l)i()tiH!t(Hl a,t;"aiust an iid'i'in,i;(^iiient of liis label wiierc! tlu; ;j;oods liavc, from the iisai^'e of many years, ac(iiui'ed the desi<^iiation, in lh«; tra'l<\ii'en- erally, of patent. 18o;), V. C. Jajiics'' Conrf^ Mar- shall r. Ross, Lam It. 8 Eq. CCA \ S. C, 21 Jmw Tlntr.s 11. (xY. H.) 2(50; S C, 17 Weekh/ li. 1080 ; S. (J., ;U) Law .J. R. {X. >^.fch. 22r). )^ k)Tu. 'V\\(\ plaintilfs instituti 11. 181, S. C, 21 Law Times {N. >S'.) o4G. ^ .O.kS. Although where suit is brouglit for the infrini2:ement of a trademark whicli is itself a false- hood and calculated to deceive and mislead th(^ ])ul)lic as to the true character of the ai-ticle sold under it, equity will not relieve ; yet where there is no intention to deceive and no falsehood is used, an injuncticm will issue. ^Vliere the trademark discloses truly the place of manufacture and sale MlSKKlMIKSKNTATloN, I8;j #v of flio i:,()(hIs, and sii))sta!ili:illy the tnio (>\vn('rslii[t of tliiMu, tlif> i'acl that tliii name oil ilio label is not the exact nani«^ of the niannractni'iTs, owinu' to ('lian,!;vs in the pci.sons inannractnrini;' al'lci' the inaniiracrm*' was coniincnci'd, will not dehar lln' plaintill's (»t' their injnnction. Ihbl^ that the dillVr- eiice 1)etu('eii .los. Dixon cS: Co., as ]»iinted on the labels and the Jos. Dixon Cnicibh; Company, the iiaint' ol" the mannl'actniei' and vender ol' the ^n»ods. was not ol" such a character as to destroy tin; ])lain- tillV ri-'-ht to ecinitahle relief. 1870, CV. of Com. ]^l('f/s., PJt'tl. P(i., Dixon Crucible Co. /'. Gng^cn- helm, 2 lircicslcr, ;}21, Pciin. ; S. C, 7 iV//7r^' 40S. ^j TmU. a joint st(!<'k company took its name from the names ol' I'onr of its principal stock- holders, ^subsequently an act of the legislature was ])assed re(purin: mere crimination or argument. 187:2, U. S. ('ircn'l CI. Va., Blackwell c. Armistead, 5 Am. Lmo Times, ST). ^ nO-l:. Trademarlvs intended to deceive ;ind |iia;'- tice a fraud upon the public, will not be protected by a court of equity. Cf. W. Laird institutinl t!iis action against J. B. Wilder & Co. to enjoin them from counterfeiting his trademark. Injunction ic- fused. In tins case the design of the botlk% {nu! the label of "Laird's Bloom of Youth or Liquid Pearl," a comjwund prepared and sold by (f. W. Laird, were unwai-rantably adopted by J. ]?. Wilder & Co., to misknid the public by inducing the belief that the compound prepared and sold by them was identical with tliat of (t, W. Laiid, and the imitation was so nearly exact as to be \vo!l calculated to produce that eifect. On the J'acis the court held, that the plaintilf in putting his conipound on the market as he did, witli his ex- press as well as implied assurance to the public that it was "free from all mineral and poisonous substances," deliberately engaged in the perpetia- tion of a fraud, which in a court of equity slutuld be rebuked ratljer than upheld or protected. To a party thus presenting himself, a court of equity, adhering to the maxim that ''^ he who n.sli.s tquii;/ must come lolth pure Iiand.s',''^ will not lend its aid when the object to be effected is to secure to himself the exclusive privilege of deceiving the publi(; in a particular way, although in doing so it might pre- vent another equally guilty from committing the same wrong*. 1872, Ct. of Appeals, Kc/tU //, Laiid V. Wilder, 9 Bush, V^l. g 5Gj. Equity will not j^rotect a tradenuiik which Mi i '■! ' ■' *-'*^'j iM i^fwnrsr- 18G MlSllEPllESEXTATIOX. 'ill ( m (l(»('(Mves the pultlit* : l)u! tliat deception need not be oi .siicli a cliaracter as t(; Avork a positive injury to 2)Ui(']iasers, nor, on the otlier hand, will the l'a(;t that some erroneous impression may be received by the public, be suil'ered to destroy the validity of the trademark. If the repi'esentation of the trademark does not in fact mislead the X)ublic, and may be un- dei'stood in any I'easonable sense as substantially true, the trademark will be entitled to X)rotection. 1872, >Sf(p. CL of Errors, Meriden Britannia Co. v. Parker, 39 Coun. 400. § noo. As it appeared that the Rogers brothers superintended the petitiimers' spoon and fork man- n factory, directed as to the style and quality of such goods, and had the general sux)ervision of the manufactui'iiig and sale thei'eof, it was held that the repi'esentation contained in the trademark cm the goods manufactured by the Meriden J3ritannia Company, that the Rogers brothers were the nianu- factureis, was true in a certain sense, to wit : that the goods were the production of their skill, judg- ment and experience, and therefore the misrepre- sentation, if any, was not of such a character as to defeat the petitioners' claim to the exclusive use of the tiademark. Ibid. % oOT. 11 si'ems, that a business wdiich is, to a certain extent, a fraud upon the public, such as the j)alming oif of an alcoholic beverage in common use exclusively as a medicine and as a specific for certain diseases, under a name not generally under- stood by the comnuuiity, is not entitled to the aid of a court of equity, and that the name will not be ])i'otected as a trademark. Cuuiuii, Ch. J., 1874, N. y. Court of Appeals, AVolfe r. Burke, 50 i\^. Y. 115. g 5(50. Complainants used to distinguish jars, the Miski!:pkp:sentltiox. 187 designations ^^J/ason's Pa/enf, jVoo. oO///, 18r)8,"' ''Masons Improved," "The Mason Jar oi' 18:)8." It appeai'ed tliat the jai's liad been protected by a l)atent that liad been adjudged to be invalid. 7/c7r/, tliat the designations had a tendency to mislead the l)id)lic, and could not therefore, be protected as trademaiks. In respect of the designation "• 7V/t' Million Jar of 1872,"" the (jbjecticm held not to be applicable. 1874, U. S. Circuit CI., Pcun., Con- solidated Fruit Jar Company c. Bortlinger, 2 Am. Law Tlnii.s{X. aS'.)o11 g 570. S. C, deceased, andphiintitf, G. C, jointly took out letters patent for a lilter, which they al- lovved to drop, but continued to allix to their liltei'S, "CI. C.\s imi)roved i)ateiit gold medal, self-cleans- ing, rapid water filter, Boston." Defendant com- menced to sell inters of sinular shape, inscribed " S. C.'s patent pi-ize medal, self-chninsing, rapid water lilter, imi^roved and manufactured by AV^. P. & Co.*" Iftld, that plaintilfs had acquired aright to protection of their inscription as a trademark, and that the use of " patent '' therein did not avoid such right. 1870, Ch. Die. Vice Ch. Bacon, Cheavin T. Walker, ?>:)L(fiD Times {N. S.) 707; S. C, 4G Law J. 11. {X. N.) Ch. 20."). § r)71. The plaintiffs' trademark or label was affixed to bottles containing quantities of brandy less than pints and quarts. Nothing appeared upon the bottles or the trademark to indicate that the bottles contained quarts and pints, and there was nothing in their appearance or form to deceive or impose u^xm any one. They were transparent, and any one h»oking at them could see the quantity they contained. It did not aiDpear that the bottles in the trade were ever used as the measure of quan- m 'SI' \ illil n iidm 188 MlSHEPItES]-:XTATIOX. I .,>( tity, or that tliey were ever sold or bouglit as actu- ally coiitaininij; quarts or pints. The phiintilt's were numurac'tuieis and wholesale dealers in the brandy, and the bottles, wlien inJi)orted in this country, were entered at the custom house with a statement of the true quantity (Contained in them. There was no proof tluit any purchasers from the i)laintilfs purchased ujion tlie faith that the bottles actually contanied quarts and jHUts, or that such purchaser did not understand perfectly their capacity. There was no i)roof that the plaintiffs ever represented to any one that tlie bottles contained quarts and pints, or that they ever deceived or imposed ux)on any one, or that any dealers ever sold tlie bottles as containing more than by measure they actually contained. It did not appear that the trademark Avas used or could be used by plaintiffs to inq)ose upon or deceive any one, or that they carried on their business for a dishonest i)urpose, or in such way as to cheat or defraud any one. It was not questioned that the brandy was genuine and just what it purported to be, and althoiKjli in the coia- 'plaiiit Uie hollies icere described as quart and 'piid bottles^ they appeared to be of the ordinary size used in the liquor trad(\ IMd^ that it might be assumed that the brandy in the bottles was sold by the bottle and not by measure. That as plaintiffs shipped their brandy to different parts of the woiid the fact that a quart ditt'ers in size in various coun- tries showed it to be impracticable to use bottles actually containing measure quarts and i)ints. That as the brandy was i)ut up in bottles of convenient size, and sold by the bottle in this country, they might be called quart and pint bottles because they were nearest in size to those measures, and the MlSr.EPllE>;F.XTATrOI*T. 180 designation wiis sufficiently aornrate for the pur- poses of ti'ade, and tliat no one would be necessarily oi- actually deceived. That th(^ case \v:is thei'elore jiot one \vli('ie it could be said that plaintill's cnnio iulo court with nnclean hands and g'uilty conscieu- (!es, and must therefore be denied e^xuitable relief; that the case was not one where the trachnnark was used to deceive or impose npcm the pnblic, or whei'e it was nsed npon a spurions, worthless or deleteri(ms oomponnd. or where the bnsiness in which it was nsed Avas ciirried on systematically in a dishonest and fraudulent way ; in such cases conrts will not lend their aid to protect trademarks. Jndgment of couit below denvini!; injunction on irround of misrepresentation rcn-ersed, and a new trial ordered. 1877, ^\ V. Court of Apj^pnls, Heimessy ii. Wheeler, not yet reported ; reversing S. C, 51 I/ow. Pr. 457. § 072. The plaintiffs claimed the excbisive right to the use of the word "Capcine" asaised in tlieir trademark " l^enson's Capcine Plasters," and tiled a, l)ill to restrain tin? defendants from nsin"' the word "• Capsicin *" for a similar article. " Althongh the plaintill's may have omitted the. fraudulent and deceptive and nntrne language from their circulars before this suit was commenced, yet if they have any i^i-operty in their trademark which they claim title to, they acquired such propei'ty by the use, for a consid(M-able time, of such language in the circu- lars which accompanied the articles they sold, and in respect to which the trademark is claimed. iSucli language Avas to the effect that 'a celebrated chem- ist had recently discovered a vegetable principle of great value, and, prior to making it generally known, had introduced it into hospitals, and had generously 'ft ill :, .hi I.. !.»;■;■ if: fW fr I' I, 190 Xame. extended its use to the most successful physicinns ; tliat tlie Ihittering and astonishing results wliich cluiracteii/ed its action, at once stamped it as tlie most I'emai'kahle principle ever discovered; that tliis powerful remedy was named Capcine, and that it was used in plasters prei)ared by the plaintiil's, and calh'd Benson's Capcine Plasters'. A regis- tered trademark is claimed in the word ' Capcine.' Courts of eiiuity refuse to interfere in behalf of poT'-i^s wlio claim jn'operty in a trademark ac- c ,ii -v. ^v advertisini^' their wares under such repre- f c,\iafoiis as those above cited, if they are f.alse. T/^ is shown there is no such article as Capcine know ' in . 'emistiy, or medicine, or otherwise. Tlie authonl^ie? Ave clear that in a case of this desci'ipfion a plaintiff loses his right to claim the assistance of a court of equity. The motion for an injunction is denied." 1877, U. S. Circuit CL JV. r., Seabury v. Grosvenor, nnrei)orted. See also §§ 152, 225, 824. i.r- ' NAME. I. In general, § 580, ct seq. II. How far one may be restrained from the use of his own name in business, § 000, et seq. III. Corporate name, § 0:^0, et seq. IV. Descriptive name and words, § 640, et seq. (and see Words, § 1010, c^ seq.). V. Faney name, ^ 680, et seq. VI. Geograi)liieal name, § 705, ct seq. Vir. Patentee, name of, § 731, et seq. VIII. Partnership name, see PARTNERsmp, § 780, ct seq. IX. Names of huiMings, see Buildings, § 160, et seq.y Sicixs, § 940, et seq. X. Kom de plume, see § 886. *• n ■: Hi m [Jn] Namk. [r/cncral.l 191 I. In general. § nSO. The i)rovisi()n;il directors of a joint stock company, liaving, without the authority of the phiintiif, publislied a prospectus, stating him to 1)0 a trustee of tiie company, were restrained by in- junction. lS-17, liolls Court, Jlouth d. Webster, 10 Bear. oGl. § nsi. A court of equity will protect by injunc- tion tlie name of .an enterxuise undertaken for the amusement of the public. The use of tlie name "Christy's Minstrels" pi'otected. 18.-)G, jVcio York i^uprtnie Ct. /8'. 7', Chiisty i\ Murphy, 12 IIou\ Pr. 77. § i)8"2. It is to protect a party's right of selling liis own, that tln^ law of trademarks has been in- troduced. The right must include the privilege of selling to all, to the incautious, as well as to the cautious. Any false name that is assumed in imita- tion of a prior true name, is in violation of this right, and the use of it will be restrained by in- junction. Hence the use of the word "ccmipany" in the mark "Brooklyn White Lead & Zinc Com- pany," by the defendant, who had no such company, in imitation of the trademark of the plaintilt, an inc'orporated company, was restrained by injunc- tion. 1807, N. Y. Sirpreme Ct. G. T., Brooklyn White Lead Company i). Masury, 2*5 Barh. 41G. § 083. Whether a manufacturer can acquire an absolute right in a name as a name merely, and whether the w^ords or name " Aramingo Mills" can be i)rotected as a trademark, doubted. 18G0, Ct. of Com. Pleas, Phil. Pa., Colladay v. Baird, 4 Phil. 139. * :\ I 192 im Naime. [general.'] I .. Yi\ ,f' , f I I § n84. It would 1)0 impossible to lay down any genou'iil rule as to when i)orson.s in business are en- titled to nse the names oi' others in the same busi- ness. TJH! ronrt has always purposely avoided do- ing so, that they might not thei-eby open a door to fraud. ]?ut th(5 general principle is, that the court will always interfere where there has been a fraudu- lent use of the name. Before the court will inter- fere to prevent one trader from making fraudulent use of th(3 name of anothei', it requires to be satis- fied not only tliat the course taken by the defend- ant is calculated to deceive the i)ublic but that rej)- lesentation has been made to him by the plaintiif that it will have that effect. If after such represen- tation the defendant persists in continuing the use of the name in the same mannei', then on the plain tiffs bringing the case before the court, the court would be justified in saving that that which Avas not fraud- iilent at first became so bj^ the defendant's jiersist- ing in the same course, and that therefore the plain- tiff would be entitled to relief. 18G,"), Vice Ch. Wood's Court, Williams v. Osborne, 13 L. T. {N. S.) 498. § o8."). The actual physical resemblance of the two marks is not the sole question for the court, for if the plaintilf's goods have, from his trademark, become known in the marlcet by a particular name, the adoption l)y the defendant of a mark or name which will cause his goods to bear the same name in the market, is as mucli a violation of the plaintiff's rights as the actual copy of his mark. 18G0, Be- fore Lord Chancellor Cr.vn'WORTII on appeal, Seixo V. Provezende, Laio li. 1 Ch. 192 ; S. C, 12 Jurifil {N. 8.) 215 ; S. C, 4 WeeJd?/ li. 357 ; S. C, 14 J Aim Tlmea {N. S.) 314. im Name. {r/enrral.'\ 193 Vf t § nSG. Althonii'h tlio dof(Mifl:nit mny h'.wo somo title to the iisn oC ;i iiiai'lv or iiaiiic, lie wiii not Ix' jiistili(Ml in adopting; it, if the i)rol)al>l(' oilVct ol' his so doino: is to lead the piildic. to su])])os(\ thai in liui'oliasinu' his goods they are purcliasini;' tliose oL" the plaiiitiir. I hid. § oST. A ])erson may acquire a valid tiadeniai-k in his own Christian name, as a desiirnation of liis place of business, which will be pi'otected by in- junction. X. v. i^iiperlor Ct.^ S\ 7\, Sraudinger V. Staudini"oved Blood Searcher" were held to be a legitimate trade- mark, and entitled to protecti(m in a coui't of equity. 1807, Sup. Cf., Pen v., Fulton v. Sellers, 4 Brews'. 42. § nSO. No right can be absolute in a name as a name merely. It is only when that name is i)i'int(Hl or stamped npcm a particular article and tlius l)e- coines identilied with a particular style and quality of goods, that it becomes a trademark. Hence, therefore, the fact that the defendant had suggested the name of " Heroine,'" to theplaintilf for his jars, was held to be inmiaterial, when he had not used the name until after the x>lnintiff had used it and established for it a reputation and value— and the defendant was enjoined from the use of said name on his jars. 1808, P//il. Com. Pirns, Pa., llowley ?). Houghton, 2 Brewster, 803 ; S. C, 7 P/u'ln. 39.' § 590. The plaintiffs had carried on for some i ■ r ! - - * i J y M ;-1' fp*^ 194 [Jn] Name. [general.'] 11- V ■ ■''; -' 'wEm years at No. 22 Pall Mall, under th(^ stylti of ''Tiu; Guinea Coal Comj)any " a large business, which had a considerable reputation. Tiicy wcr*; mIso freqnently spoken of as "The Pall Ma!! (iiiinea Coal Company.'' In March, 1809, the defendant, who had been th(nr mauagcn', set up a rival l)iisi- ness in Beanfoi'd Building's, Strand, under the name of "The Pall Mall Gninea Coal C<»nipany," and at the end of August removed it to No. 40 Pall Mall. On November 24, the plaintilfs linding that many persons had been misled into giving ordeis to the defendant in the belief that his concern was that of the plaintiffs, hied their bill to restrain him from trading under the above style, or any other colorable imitation of the plaintilfs' business style. The defendant, among other grounds of d(3fense, al- leged, that the plaintiffs had no exclusive right to the name "Guinea Coal Ccmipany,"' which was used by various other establishments about Lon- don. V^ice Chancellor Malixs granted an injune- tion restraining the defendant from using the name "The Pall Mall Guinea Coal Company" in Pall Mall. On appeal bydel'endant : Ift/d, that although the plaintiffs had no exclusive right to the name, the injunction had been properly granted, on the ground that the defendant had no right to use the name in such a way as to lead persons to believe that his business was that of the plaintiffs, and that therefoi'e there was no objection to confining the injunction to the use of the name in a particu- lar place, inasmuch as its tendency to deceive greatly depended on the place where it was used. 1869, Before Lord Justice Gifford on a^rpeal, Lee V. Haley, 18 Weelchj 11. 242; S. C, L. li. 5 Ch. im ; S,C., 22 Law Times B. {N. S.) 2ol ; S. C, 39 ^i: [Use of or/r's oicii \ Xamk. [irJn'ii n s:li'(U lud. \ ll'.') La}r J. R. {X. S\) (11,. 284; .MfTinniiii; S. C'., 18 Wecl'hi R. 181 ; S. C, 21 Ldx^ Times 11. \x.^.) .V}(). § T)'.)!. The iiinneniid ii(l(lr(\ss(»f the iniinurnctiirer comln'iKMl, may ('(Histitufc a fi'Mdcniai'k wliicli will entitle liiiii who adopts it to protection in its ex- clusive use, l)ut neither the name nor the addi'ess singly will be sufficient tor pi'otection ; both must be used. 187<>, t^npreinc CI. of lllnioh^ Candee i\ Deere, :)4 ///. R. \m. See ^;j 22, 740. § 592. A name has for cei'tsiin pui'posi>s a com- merchd value. If the pro[)rietor estimates that value, and sells it to another person, to the extent and for the purposes for which he sold it, he h;is no right to nse it. 1871, CL of Com. Pleas, Phil. 7^r^., Gillis ?). Hall, Ayer v. Hall, IJ Brews, tm ; S. C, 8 Phila. 231 ; S. C., 1 Lee/. Caz. 124. § 593. It is unlawful to put np inutation goods under the name of the real manufactni-ei', jind the excuse that such an act was authorized by a person of the same name as that manufactui'er, is al)surd. 1872, Hxpreme Ct. of Louisiana, W(jlfe v. Bai-- nett, 24 La. An. 97. §594. Title to property in the name "Keystone Line,'' actpiired by many years' certain, exclusive appropriation and use of it by sliipx)ers of mer- chandise, who did not own the vessels employed by them, will be protected in equity. 1872, Ct. of Com. Pleas, Phila. Pa., Winsor v. Clyde, Stetson i). Winsor, 9 Phila. 513. See also, §§ 283, 878. 1% . 4:. 11. How far one may he restrained from the use of Ms oion name in business. § 600. Where plaintiff marked his goods " Sykes' Patent," to show that they were his own y > h \ ' ' * il I ' 1 on [ TIsr of on «"' .v own^^ X am k, [when rcsfro Incd. ] mmiiifMcfm'o, nnd defomlant roplcd flu* nmrk on his <;•()()( Is fo show that tliey wei'*^ ])l:iiiitin"s iiianii- factin'o, and sohl tlio "ioods so niai'kcd as and f plaiiitiirs inanufartnr<' ; lly were not manufacituied by the plaintiff, but that th(^ defendant coj)ic(l ])laintifrs mark, and sold the goods so marked, in order that the purchasers might i-e-sell them as and foi'goods manufa(itnred by plaintilf, nnd which they did. KS24, K/nr/s' Bench, Sykes i\ Sykes, ;j Bar)i d- (\ :)41 ; S. C' 5 Dowl. & Ri/l. 292.' $^ ()()[. The right wliich any person may have . the protection of tlie court, do<»s not depend ui>on any exclusive right which he may be supposed to have to a particular name, or to a particular form of words. His riglit is to be protected against fraud, and fiaud may be pra(;ticed against him by means of a name, thongli the peiscm practicing it may have a perfect right to use that name, provided he does not accompany the use of it wdth sucli other circumstances as to effect a frand upon others. xV blacking manufactory had long lieen carried on under the firm nanu^ of Day & Martin, at 1)7 High Ilolborn. The executors of tlie survivor continued the business under the same name. A pei'son of the name of Day, liaving obtained the authority of one Martin to use his name, set np the s une trade at OOj Ilolborn Hill, and sold blacking as of the man- nfacture of Day & Martin, OOJ Ilolborn Hill, in bottles an .. labels having a general resemblance to [Useo/oncsotcn] Nami:. {m/nn rcsfriiiiu il.\ l'.>7 ! those of the <)ri,i;iuMl llrni, jiiid in :i iii:nniei' cuItMi- hited to iiiislead the imhlie. lie wms icstriiinrd hy injunction. 184:J, Jioll.s (V., CroL't i\ Diiy, 7 li'ifr. 84. jj OOU^ Tn a suit for an injunction nuninsf llic use by delV'udiint.s of a, certain name and niaik ui)ou tlieii' g'oods, the derendants admitted tlic use of the name and niaik, but said that it was their true name, and that thev weici cntithvl so to use it : the phnntill's, witliout moving- for an injunciiou, went in*:o evidence in equity. At tiie Jieaiiiii;- of the cause, the court, beinii,' of o[)inion that the evi- dence did not establisli the phiintilFs I'iulit to the iujunctum, but that it siiowecl th(^ y the phunliffs, gave tJie plaint ill's the opti(m either of having tlie bill disnussed against them without costs, or having the i-ight tried at law. The bill being retained for a yeai', wit h lib(;rty to the plaintiffs to bring an a(!tiou at law. the action was brought and the plaintilfs i-ecoveied a verdict. The court then granted the injunction and ordered the defendants to jxiy the costs at law and in equit\', except the costs of the evidence in equity. 1847, Vlca Chancellof s Ct.^ Kodgers r.. Nowill, G llare^ 325; and see H. C, 5 (.Joui.. Bench. (J/. (}. & R) 109 ; S. C, 11 Jurhf, lo;]7 ; S. C, 17 % G02. The plaintiff, Thomas Ilolloway, sold a medicine as "Ilolloway's Pills." The defendant, Henry Hollowfiy, commenced selling pills as -• II. HoUoway's pills," but in boxes, &c., similar to the plaintiffs, and with a view of passing off his ])ir V if 198 {Use of one' s owii] Name, [ic/uji refff rained.'] h it: W^ as the plaintiff's. The jiill l)()xes and pots wf^re similar in form to, and the labels and \viap])ers wei'e copied I'l'om, those used by the plaintiif. The defendant was restrained by injunction. IS.'jO, RolVs Court, IloUoway o. llolloway, 13 lieav. 200. § (JO;?. Where a person is selling- an article in his own name, fraud must be slujwn to constitute a case for restraining him from so doing on tlie ground that the name is one in which another has l(jng been selling a similar article. Therefore, where a father had for many years exclusively sold an article under the title of '' J3nrgess's Essence of Anchovies" the court would not restrain his son from selling a similar article under that name, no fraud being proved. 18.")'J, Bui-gess ?). Buigess, :> I)e G. M. & G. 890; S. C, 17 Jar. 292; S. C, 22 Law Journal 11. {N. S.) (Jliane. G7o ; S. C, 17 En(j. L. (t- Eq. 2o7. § 004. Where the plaintiff and the defeiulant have nearly the same names and are engaged in the same business, each has the right to use his own name, and a party will not be restrained l)y injunc- tion from using his own name, unless he so use it as to mislead. 18.57, JV. T. iiupreine (Jl., G. 7'., Clark V. Clark, 2o Barb. 7(5. g (JOf). Wliei'e a hini name, as "J. & P. Coats" in connecticm with cei'tain symbols, has {icquiivd the properties of a trademark, it is not an infringe- ment for two other individuals bearing the same name, to adopt the style of "J. & T. Coats'' to designate goods of the like desci'iption, provided they do not use it in connection with the residue of the trademark of the foiiner tirm. Coals /;. Piatt, 17 Leg. Int. 213; S. C, 7 Pift.^. /.. ./. 3(31, [Use of oat' s oioii\ Namk.. [^lohen rtsli'alued,\ 190 § GOG. A defendant sold robacco pipes packed in boxes or cases, upon which were hibels or de- scriptions of a siir.ihir cliaracter to those of the X)laintilf, using the plaintilf ,> name as being the real manufacturer, the defendant having a p(3isou in liis employ of that name : J.Lld., that such col- orable imitation and use of the labels and descrip- tions could be restrained by injunction. 180."), h<'- fore V. a Wood, Southorn v. Reynolds, 13 Lair T. § G()7. The court will not enjoin a defendnnt from using his own name in the prosecution of a manufacturing business, l)ecause it is similar to that of a rival manufacturer in the same business. Any injury which one manufacturer may suiter by competition of other persons of the same name, from the use of such name merely, is without a remedy. 18G7, iV. Y. Stfpreme CL, K 7% Faber r. Fabei', 41) Barl). 857; S. C, 'S AM. Pr. N. S. llo. ^ G08. A manufacturer has a right to adopt and appi'opriate his surname as a trademai-k ; and another manufacturer of the same ai'ticle, though his surname is the same, has no right to u;;e his own surname in such a way as to deceive th<' pub- lic and de])rive the former of the benelit of the no- toriety and market which his articles have gained. 18G7./iV^ Y. Sffprc/NC a., G. 7'., Howe ^\ Howe Sewing Machine Co., m Burh. 2I5G. g GO!). The ijlaintilfs preparations were known to tlie trade and public generally as "Stone- breakers medicines." One J)r. Stonebreaker. a bi'other of the plaintiff, t^i gaged with the defend- ants in th(3 sale and prepai'alion of medicines known as "Dr. Stonebreaker's Medicines," using on their wrappers and labels the language of the i)laintilf 5S A •^Jl ^ 200 [ CT^e o/' one's owii] Name. [loJtru rcslrauied.] on liis wrappers and labels, and printing on the wrappers of some of their medicines the cei'tilicates given to the complainant in recommendation of his prei)arations. The evidence in the case shovred that the whole agreement between all of the defend- ants was bnt a combination to deceive the i>nl)lic and to enable them to obtain for their medicines the benefit of the celebiity which the plaintilFs prepa- rations and medicines had in the market, at tlie ex- pense of the plaintiff and in fraud of his rights. IJdd^ that although Dr. Stonebreaker had a right to enter into an agi-eement with anybody to manu- facture and sell his own medicines, he had no right to lend or sell his name to i)ei'peti'ate an injury npon his brother, and a fraud npon the public. The defendants were restrained bv injunction from nsing the name Stonebreaker in titles of prepara- tions and medicines the same as those nsed by the plaintilf. 1870, Maryland ihnrt of Appeals, Stonebi'eaker g. Stonebi'eaker, 3;3 Md. ils}. § 610. Plaintilf manufactured an article called "Lazenby's Harvey's Sauce." Defendant em- ployed a person of the name of Chailes Lazenby to assist in manufacturing a sauce which he called " Lazenby's Harvey Sauce,'" and put vip with labels resembling the x>h nianiifacturers of pumps, and partners in business under the name of " McGowan Jirot-hers."' John II, sold out all his interest in the business and assets of the lirm to Theodore J., including- the old pat- terns, with the name " McUowan Brothei's" on them, and Theodore J. was to assume the liabilities and succeed to the business of the iirni, and associ- ate with himself others if he chose. After the C(m- tract of sale was executed, there was inserted in ihe notice of dissolution a privilege to Tiieodore J. of using the old lirm name, as to which there had been no previous negotiation. Theodore J., witli others, l)rocured a certihcate of inc()r[K)ration, under the name "The McGowan Brothers Pump and Machine Company,'' and transferred to the said corporation all his rights and interest as purchased from John 11. llckl, that John IL, who set up a simihir busi- ness by himself, was entitled to an injunction to re- strain the cor])oration from the use of "McClowan Brothers'' in its name; the use of the (jld iirm name, granted to Theodore, being in the nature of a revocable license. That the old name is not a trade mark to be used by the corporation; and while it lias a right to use the t)ld X)at terns and sell the cast- ings with the name "■McClowan Brothers" on them, it cannot hold out by the corporate name, that nil the articles made by it are in part the product of the skill and labor of John, or that the corporation is in fact tlie old lirm. That a well-founded appre- hension of injury is sufhcient to warrant an injunc- tion, where the act, if completed, must give a ground of action. 1872, f'^upcrior Vt. of Ciiicin- 'Hdli, 0., McGowan Bros. Pump and Machine Co. i). McGowan, 2 Cui. IJU]. § 015. The petitioners' spoons and forks were %> 1': - m f (J 204 \_Use of one's own,] Namk. [/c7ien restrained.'] 't\ |i if manufactured under tlie supervision oJ' the Rogers brothers and were stamped " 1847, llo,ii;(»rs Bros. A. 1." The respondent acquired tlie right from other jiersons, named Rogers, to stami) tlie name of Rog- ers on plated spo(jns and forks niMUufactured by respondent for himself and theui. lie stam})ed the got)ds so manufactured '"C. Rogers Bros. A. 1," and C. Rogers & Bi'os. A. 1." These stamps resembled the petitioners' tratlemark to such an extent that they were calculated to deceive, and did in fact deceive, unwary purchasers, and the respondent sold large quantities of his own goods thus stamped, upon the reputation of the petitioners' goods, stamped Avith their trademark. Held, that the respondent's trademarks were infringements of the petitioners' trademark, and that the petitioners were entitled to . Ct. of Errors, Conn., Meriden Britannia Co. r. Parker, 39 Conn. 4r)0. g OIC. A man cannot make a trademark of his \TJseofones niGii\ Name. Sji^lien rostraUmd.'] 205 name to the exelusion oC ji like use of If by another of the same nnme, the nse of it by tlu^ l:itt('i' Ix^inu; fair, and una('<'omj)nnie(l by eontiivances to(hM'eiv('. 187;3, N. Y. Hu.preme (U.^Cr. T., AVolfn r. Jiurke, 1 Ldiis. ir>i ; S. C, reversed on another point, HO N. Y. 11.-). §017. ''There was hitely before me, and befoi-e the court of appeal, who affirmed my decision, the Annatto case, Fullwood v. FuUwood. In tliat case the uncle, the plaintiif, had got the original l)usi- ness. The nephew, the defendant, set up th(^ same businesfr!, and used a label so like his uncle's that I liad great difficulty in saying, even on the label it- self, that there was not a case for interference. Upon the whole, T am inclined to think the court would not have interfered upon the label alone, as Ids name was FiiUwoorl, and he did make annatto, as long as he remained at a distance. At all events, the uncle did not ask for the interfei'ence of the court on that ground ; but nothing w(mld do but that, like the defendant in the Guinea Coal Com- pany case, he must i-emove from the place where he had been carrying on his business, into the same small street in Avhich his uncle carried on his business. Then, there being a combination of the name, a similarity of the labels, and the same place of manufacture, I thought, and in that I was af- lirmed by the court of appeal, that it was a case f(n' the interference of tlie court, l)ecause I Avas of opinion that he could not have removed into that street, of all streets in the woi'ld, except for the l)urpose of availing himself of the name and repu- tation of his uncle." Jfal/ns, V. C, Fullwood v. Fullwood, cited in L. 7?. 17 Bq. 40. § 618. Plaintiffs, who were two brothers, carried •h '\\\ ^^'f^ ■''■'^ :f ■,..i5'J..' ■ iiv 206 \_Use of one's oioii] Xame. \}o?if.)i refitrauu^d.] on business at West Troy, Albany county, N. Y., as bell founders, under the firm name of " E. A. & G. R. Meneelv." This business had ])een estab- lished bv Andrew Meneelv, tlie father of the i)lain- tiffs, who had acquii-ed an extended reputation of great vahie as a manufacturer of bells, and which had by his last will been given to plaintiffs. De- fendants, one of whom was a bi'other of i)laintiffs, after the father's death, began the manufacture of bells under the name of ''Meneely & Kimberly " at Troy, Rensselaer county, N. Y. The defend- ants by the use of the name "Meneely '' expected and intended to deriv^e a profit and advantage from the good reputation and celebrity in bell founding given to that name by Andrew Meueel}'. In an action to restrain defendants from the use of the name of " Meneely " in the bell business, /aid, (1) that equity woidd not interfere to i^revent defend- ant, Meneely, from the use of his own name in such business, no fraud or intention to injure plain- tiffs or deceive the public being shown, even though he intended to derive advantage from such name ; (2) that there was not such a resemblance in the names of the firms as would of itself tend to de- ceive the public or indicate a fraudulent purpose ; (3) that the location of defendants' business was not of itself evidence of an attemi)t to deceive the pub- lic, or an interference with plaintiff's business. 1874, N. Y. Supreme CL, G. T., Meneely y?. Me- neely, 1 Hwii, HOT; S. C, H T. & (J. 540; S. C, af- firmed, 62 N. Y. 427. § 610. Andrew Meneely, by his will, after making certain specific legacies, devised all the remainder of his estare, both real and personal, to the plain- tiffs, charging them with the sui)port and mainte- |i ! V, V!i I., , \_Use of one' s own] Xa.aii:. [n-'/()f i'(:,'in '\ r^ 208 f Use of ones own] Name, [ichcn rest rained.] I ■Hi- Bl !v using it in sndi a way as to decpivc! tlio ])ul)li(' nnd injure tlio plaintiffs. Tlio ninnncr ol' using tlie name is nil that Avonld be enjoined, not the simple use ol' it, Tor eveiy man has the absolute light to use his own nanwi in his own business, even though he may thereby interfere with or injure the ))usi- ness of anothei" person bearing tlu^ same name, pro- viih^d hedoes not resort to an\' artilice or contrivance i'or the i)urpose of producing t!ie impression that the estal)lishments are identical, oi' do anything calculated to mislead. Whei'e the only confusion cieated is that which results frojii tlu; similarity of the names the coui-t Avill not interfere. A person cannot make a trademark of his own name and thus obtain a mcmopoly of it which will debar all other pei'sons of the same name from \ising their own names in their own business. N. F. CV. o/* AppniU, Ibid., 02 N. Y. 427. jj (i'il. Plaintilf sold a cosmetic known as '• (lourard's Oriental Cream or Magi(vd Beautilier,'' and claimed those words as his trademark, and that the defendants inlringed his rights by using the words "Creme Orientate" and adding thei'eto "by ])]-. T. F. Gourarcrs Sons." Plaintilf was Ivuown by the name of Dr. J. W. Trust for a number of years, and the defendants, liis sons, wei'e known l)y that name. Three years l^efoi-e the commonce- miMit of this action, plaintilf s name was changed to Ti'ust Felix Gourard. The defendants were en- joined. 187."), N. r. S/fjjre/tie CY. (rcnl. 71, Gour- ard 6\ Trust, :J Ilim, 027. § G22. PlaintifTs i'or a long time had been engaged in business in New York City as manufacturers (;f pianos, under the firm name of Decker iJrolliers, and their pianos had actpured much celebrity. * [ Use of one's own] Namk. -[/rJien rrsfrnincd. \ i?()0 Defendants sinrp 1871, luid been in tliesjinic business, in tin; same place, undei- tlie iiini name of Dcckci- «fc Barnes, and defendant Decker prior to that tim(> had b<'en ennai^'ed in tin* same business under the nameol! J)ecl\.er & Ctj. The defendants caused tobe registered and recor(h^das a trademarlv, in tlie patent ■%r oflice, tlie words The Drrkn- Pi, mo. Plaiatilfs souylit to enjoin der<'ndants from tlie use of said tradenuuiv. clalniinu- it was obtained foi' the pmpose of niisleadini!,' tht; i)ublic, and that it was an arti- hcecalcuhited and int«Midod to induce ])iirchaseis to believe that defendants were solely entith'd to use the name of J)ecker, and tliat tlie pianos manufac- tured l)y them were those of the plaintiifs. Defend- ants claimed that their pianos were known in the trade as Decker pianos, long' before the plaintiifs ac- quired a reputation as the manufacturers of ])ianos. All the erpiities in the complaint and plaintiffs' affidavits were (hMiied and lebutted bv the answer and {iffidavits of defendants. Motion for injunc- tion peudenie lite denied. 1870, X. Y. Sifpreiite CL, S. 7\, Decker v. Decker, r)'2 IJoir. Pr. 218. j5 G2;3. The plaintiifs' trademai'k consists of the words "Prince's Metallic Paint," used in a partic- ular foi'm. The defendants, for their trach'mark, use the words " Piince Bros. Iron Ore I'aint,"' in an entirely dilferent foini. Prince is the name of the defendants ; they are brothers, and they man- ufacture and sell a paint which they call " iron ore paint." The injunction restrains them from using the name "Prince," as applied to the paint manu- factured by them, "or upon any label, caid, bill- head, or any advertisement."' The order is alto- gether too broad. The use of their own name in connpotion with their business, in any form that V, Ji ' ■■i'\ ' \ -•'•11 210 [Corporate] Namk. [)iamc.^ tgv does not infringe the pljiintiffs' ti-adeniark, rniinot be enjoined. But I thinlv tliiit ddVMidjinfs" tindc- niiirk is no iniVinyenifMit of tlie plaintiffs', TIm'ih is no similitude between the trademarks except tlu^ woi'd " Prince," and that is only used to indicate that Pi'ince Br.)s. nre the manufactureis oF iron ore ])aint, and not, 1 think, to hold out to puichasers tlmt theirs is a Piince metallic i)aint nuuh^ by plaintiffs. Motion denied and injunction order dissolved, with ten dollars costs of oi)posin2,-. 1877, N. Y. Supreme CL, S. 7\, Piince Metallic Paint Company ?), Carbon Metallic Paint Company, unre- ported. See also §§ 144, G89, 949. ai ■■] D' III. Corporate name. I ;'r ,.l II ■ i-; § 630. The plaintiff, " The London and Provin- cial Law Assurance Society,"' was project(>d in the year 1845, and its deed of settlement was re^nistei-ed in November, 1840. Some time afterwards anothei- Insurance company, the defendant in the suit, (tailed ''The L(mdon and Provincial Joint Stock Life 1\\- surance Company," was projected and completely registered on June 20, 1847. A motion was made by the plaintiff, to restrain the defendant from using the words: "London and Provincial." The Ai'-e Chancellor refused to grant the injuncfion. »ii ih-- grounds that it Avas a fair question utT the plaintiff was likely to suffer an; jmy, iiii^l^ whether there had been such a lengi of us< r by the plaintiff as to entitle it to comi)lain, bi gave the plaintiff leave to bring an action at law. 1847, Vice CJiancellof s Ct., London and Provincial Law Assurance Society v. London and Provincial Joint [Corporcf' \ Xamk. \_n(iint'.\ •il Stock Lifo Tnsui'ance Company, 11 J/fn's/, 0;18 : S. v., 17 Lam J. 11. {N. S.) Ch. 'Al. iVt'M. The ('or|Ktnito Tuime of a roi'iKirntion is ;i trndemark from tli*' iifcessitv oC the thiim*. juid til)on every ('(msideration of private jiislicf^ mid pid)li(' ])oli('y. deserves the siime eotisidciiitiou iiiid prote'-tion from :i court of eqiuty. A corpornte iiMiiie is a necessni'y element of ii corporn lion's ex- istence, and any act wliicli produces c(»n fusion or uncertainty concerninfi" such nnme, is well ctdcii- lated to injuriously nfTect the identity and ))usiness of the coi'poration. 1870, U. S. (Umill ('onrf, Newby '«. Oregon Central 11. II. Co., 1 Iharh,, (V>0. § G'1'2. The right toacoi-porate niinuMloes not rest in i)arol, but is sliown l)y tlie record ;nid is tiiiiMe l)y inspection tliereof in any foi'm of pi-oceed/ng. Therefore, a (!Ourt of ecpiity will n(»t refuse to enjoin the use of such name l)ecause the right to the same has not lieen established at law. I hid. % G8:^ The jurisdi(!tion to enjoin the use of a cor- porate name does not depend upon the insolvency of the defendant. IhkJ. § Go4. Where the name of a manufacturing cor- poration designates the origin and ownership of goods manufactured by it, it will be protected iu the use of its name to the same extent and upon the same i^rinciple that individuals will l)e pro- tected in the use of trademarks. AVliere a corpora- tion, with the consent of its principal stockliolders, lias embodied the names of such stockholders in tlie corporate name, the right to use the name so adopted will continue during the existence of the corporation. Another corporation subsequently formed, and composed in part of the same persons, will have no right so to use the names of such per- ■'•i'-' U • .-^.f % It w m 212 [Corporate] Name. [name.] ■I .;i'V| mi II: T. sons as to mislead those (lealinj? with tlieiii into the belief tluit the two companies are the same. 1870, i^irprenie Court of Errors of Connecticut, Holmes v. Holmes, Booth & At wood Maul'. Co., 37 Conn. 278 § (*);>.■). In 1853 the plaintiit' corporation was or- ganized under the joint stock laws of Ct^nnecticut. taking the name ''Holmes, Booth & Haydens" — being' the names of its principal coi-porators or pro- moters. Twt^ of tliem. Israel Holmes :ind J. C. Boorli, whose names appear in the corporate title, by long experience had acqnired consideral)le skill and r(^pntation in the manufacture of brass, the business for which the corj.-oration was organized. Thus organized, the corpoiution established and carried on a successful business, and tli(?ir coi-por- ate name accpiired a valuable reputation in the pub- lic markets of the ccmntry. Most of the respond- ent's coi'porators Avere officers, stockholders and (ini])l<»yees of the plaintiff corporation. One after another I'esigned his oflice or position, and sold out Jiis stock and secretly organized and put in (n)eia- tion a rival coinpany (in 1800) which bought the entire property of a similar corporal ion in a neighbor- ing town and located themselves permanently in the same town with the petitioners, established tlunr depots for the sale of their goods in New York and Boston as near as practicable to the depots of the petitioners, and organized uiuhn' the coi'i)orate title of "The Holmes, liooth & Atwood Manufacturing Company."' The similarity of the names of the two ccmipanies resulted in ccmTusion of llieir corresjion- dence, mistakes in the delivery of orders, goods, &c., and the court l)elow found that "by I'enson of this sinnlarity, dealers in the mark(^t are likely to be confused and misled into the belief that the mm \_Descript toe name] Name. [and wor/Ls.] 2i;5 companies are the same." Ilr/d, tliat; I ho respond- ents shoukl be restrained l)y injunction i'roni the use of their said title. I bid. § G30. Plaintiff, a manufacturing company, had h)ng applied its corpcmite name, "The Amoskeag Manufacturing Company," to numerous kinds of cotton goods, but had never made prints. Some- times its full name appeared upon th(i labels allixcd to its goods, at other times the word '' Amoskeag,*' and again "A. M. Co.'" or ''A. M. C." iJefendant used the word " Amoskeag" on prints: J/cI//, that plaintijf was entitled to an injunction restiaiuing the defendant from such use of its coi'porate name. 187G, iY. Y. Sf/prez/ie CL l^pccial Term, I'he Amos- keag Manufacturing Company c. Garner, 4 Am. Law Times It. {N. S.) 170. «ee 5G JJajb. 1.31, and Abb. Pr. {JY. S.) 205. IV. Dcscrijjiim name and words. § 040. The phiintiirs father prepared and s(jld a. medicine called ''Dr. Johnson's Yellow Ointment," for which no patent had been obtained. The })lain- tilF, after his fathers tleath, continued to sell tlu; same. The defendant sold a. medicine under the same name and mark, but no evidence was given of the defendant having sold it as if prepared by tin; plaintiir. Held, that no action could be maintained against him by the plaintilf. ITSo, Kukj s Ihrivh. Singleton c. ]3olton, IJ Dowjlas, 'i^i. % 041. There is no exclusive right in tlie manu- facture and sale of u medicine, and therefore the sale by another person of a medicine undei' the same title as the plaiiitilfs' will not be prevented — provided the defendant does not rei)i'eseat la;; ar.^- H^ •'v""'^^B . ■'i ' Mi )\ ft " 1 91' '1 if ..■far' I n'J r-jlr 214 [Descriptive] Name. [naine and woj'ds.] ole tol)e the same as the plaintiffs. 1813, Bifore llie Vice Chaiicellor, Caiihain v. Jones, 2 V. tC- li. 218. ^ G42. The bill stated that Isaac Hwanson was the owner of tlie recipe forpreiKirini^- Yelnu's Veii-e- tal)le Syrup, which he becpieathed to the i)laintilf, who continued its mannfactiire and sale. Tlie de- fendant, a former servant ol' ttwanson, manufac- tured and sold a spurious coini)Osition uiuku' the name of Velno's Vegetable Syrup, and stated by him in advertisements and handbills, to be the same medicine in (piality and composition as that made by Swanson antl the plaintilf . (ieneral denrur- wv to the bill allowed. I bid. i (54'). \Vliere certain medicines are d(\signated 1)>- tlie name of the inventor, as a generic term, designating their general character, the inventor is not entitled to the exclusive right of compounding or vending them, unless he lias a patent thei-elor ; and it' another person prei)ares such medicines of an inferior qualit\', and sells tlieni, and by this means all medicines of that class are brouglit into disrepute, such inventor can maintain no action for any loss sustained by him in consetpience thereol', unless he sold them, or placed them in the liandsoL' others to sell, as and for the medicines made l)y th(; inventor, so that persons pui'chasing the same suj)- posed and believed they were purchasing the medi- cines made and prepared by the inventor, l^o- tection of the words " Thomsonian medicines" as a trademark refused. 18'J7, fiiipreme JiuTl CI. of J/rr.sv^, Thomson i\ Winchester, 19 Pick. 214. § 044. There is no exclusive right in tin? use of marks, symbols or letters, whicli indicate the appro- priate name, mode, or process ol' manufacture, or the peculiar or relative (piality oi' the falnic manu- i 3 [Descr/pUce name] Xa.me. [and word.s.\ 215 mM fartured, us {listliiguished from tliose mju'ks wiiicli indk'iite the true oi'ig-in or ownership. 1849, N. F. Superior 01. , S. 7'., The Anioskeag Mfg. Co. v. Spear, 2 Sancl/. iS/tp' r CI. 51)1). § 045. No exclusive riglit to the use of words, marks, or devices, which do not denote tlie goods or property or particular i)lace of business of a person, but only the nature, kijid, or .^uulity, of the arti- cles in which he deals, can be accpiired. Tliere is ol>vi(>usiy no good reason wJiy one person shoukl liave anv better right to use tiiem than another. They maybe used by many dilferent jjersons at the same time, in their brands, n\arks, or hd)els on their respective goods, with perfect trutli and fair- ness. They signify nothing, wlien fairly interpre- ted, by whicli any dealer in a similar article could be defrauded. Hence, the court refusetl to protect the use of the words "Cylinder," ''Lake," "Xew York," and "(jfalen." 185:3, xT. )'. SKprcme CY., >S'. 7\, Stokes??. Landgraff, 17 7ir//7>. 008;am'dat G. T., Sept. 1854. jj 04(). A name niav, in some cases, be rightfully used and protectedas a trademark. But this is only true where the name is used as indicating the ti'ue oj'igin or ownership of th*.^ article olfered for sal(3 ; never where it is used to designate the article itself, and has become by adoption and use its proper appellation. 1857,'iy. Y. .'tif)n of which a rival manufacturer, not even the manuliu^turer by whom the distinctive name was first invented or ado[)ted, can justly complain ; and so far from there being any imposition upon the public, it is the use of the distinctive name that gives to purchasers the very information which they are entitled to have. In short, an exclnsive right to use, on a label or other trademark, the approi)riate name of a manufactured article, exists only in those who have an exclusive property in the article itself. This, however, is a species of proi)erty unknown to the law, and that can only be given to one by the infringe- ment of the rights of all. Ilrhl, that the i)lainrilt's have no exclusive property in the words '" lialm of Thousand Flowers." Ibid. ]3ut see Fetridue i\ Merchant, 4 Abb. Pr. 150. § 048. Whei'e a person forms a new word to designate an article made l)y him, which has never l)een used before, lie may obtain such a right to that name as to entitle him to the sole use of it as against others who attempt to use it for the sale of a similar article ; but such an exclusive use can never be successfully claimed of words in comnuHi use previously, as applicable to similar articles. Words as used in any language cannot be appro- priated by any one to his exclusive use to designate an article sold by him similar to that for which 'v Ml ^1) 5 i [Bescrij^lice name] Name. [and icor(Js.\ 217 they were previously used. That is, no pci-so)! cnu acquire a right to the exclusive use of words, ap- plied as the name of an article sold l)y hini, if in their oi-dinary acceptation they desiuniitc the same or a similar article. IfcJcf, that as it wiis very doubtful whether plaintift' had any I'iu'lit to the exclusive use of the name ''Schiedam Schnapps"' for <2:in, and his I'iglit being denied by the defend- ant, tliat a preliminary injunction restiaining the use of those win'ds by defendant slionld ))e dis- solved. 18:)0, N. Y. ^Kpreine Lhnrf, H. 7'., Wolfe t\ Goulard, 18 How. Fr. 04. But see ;^;^ (5(51, (5(54. 1021). §040. No dealer in any commodity can b(> pio- tected by injunction in the exclusive use simply of a name by which to designate it, which do(>s not express the origin, ownershi]), or i)lace of manufac- ture or sale of the article, but merely its quality, kind, texture, composition, utility, destined use or class of consumers, or some other attril)ute which it has in c(mimon witli other similar cominodities. Hence, the term ''Club nouse,'' as a designation for gin, was not i)rotected, it being established thtit such name had been long in use as designating a sui)erior kind of gin used in such establishments. 1800, iY. Y. /Superior Court, G. 7'., Corwin v. Daly, 7 Bo.sw. 222. § 0.")(). The court will restrain the use by a third party of an arl)itrarj^ fancy name, which a plaintilf has invented and applied to a particular class of goods as sold l)y him and which has thus become identified with the plaintiffs goods. But where the plaintiff invents or discovers a product to which he gives a name, not as a fancifid l)ut as a descriptive name, and it becomes identilied with the plaintiff's goods, so that, by the use of the ' i a: ■■. ill L , I I 1 m m ■'sir Ki' .;(■ i't^ 1:1' 1 ti»- rl^^^^^^Hil ' ! r ( ,/5. ".*■-■■ j i 11 ■ 218 \_Descrlptim'\ Name, [naine and loords.] name alone, his goods would be referred to, not be- cause tliey are the plaintilf s, but because he alone as patentee can make and sell them, the defeiKhint Avill not be enjoined I'rom using the luune lixed upon by the patentee, for similar got)ds, manu- factured in such a way as not to infringe Ihe patent. Hence, the use of the words "Parafliue Oil" was not enjoined. 180:2, TVcc. 0/(. Wofx/'.s CL, Young V. Macrae, 9 Jurist {N. *S\) '^'22. % 051. A word Avhich is the nmtieoi the article, or indicates its quality, is not cai)able of an c^xclusive use as a trademark. Every one has the right to manufacture the same article and to call it bv its name or descriptive character. In doing so, there is no violation of propriety or of truth, nothing which intrudes upon the distinctive province of others. Were it otherwise, monoiiolies might be created which would be destructive of the freedom of trade. Hence, any one has the right to make an extract from the liower known as "The Aight Bloonung Cereus,'' and to call it what it is, by the name of the liower, and his use intiff, and are therefore calculated to deceive the public, the plain- [ k [Deseri/dice name] Name. [and words.] 210 tiff will be i^i'otected by injunction. 1 SC), ^T. V. Com . Pleafi, K T., Binninger t\ Wattles, 28 //(,w. Pr. 200. § 0.");}, A tnidenuii'k, which is nunely desci ii)tive of the kind of articles ") Am.. Law Rnj. {X. S\) iiSS. jj 004. In 1847, Baron \'on Liebig discovered and pid)lished a process for making an extract of meat. The extract was made extensively at the Koval Pliarmacy, Municli, and sold tliere, with the i)er- niission of the baron, as Liebigs extract of metit, from 1801 to 1804. It became generally known in Grermanv and other countries, and the term Liebig' s extract of meat became used as a term oi art in scientiUc treatises. In 1804, Baron Liebig gave the Fray Bentos Company the right of nsing his name in connection with the extract ol' beef niannfa(;tured by them. Li 1804, the plaintiff's company l)onght the bnsiness and property of the Fray Bentos Com- pany, and by a deed j)oll, dated April 12, 1800, the baron granted to the plaintiff's company the exclu- sive right and privilege to nse his name in connec- tion with the extract manufactui'ed by them. The defendants, who had previonsly sold extract manu- factured by the Fray Bentos Company, in 1800, began to sell as " Liebig' s extract of meat" an extract manufactured by a Mr. Tootli, in Australia, after Liebig' s process. On a suit being instituted ■ -M i ;• 220 \_Descrq->tlre\ Name. {iiauie and words.] II. ''< |i :,/ 11 ■.■/■ i^ I,;;: by tlio pljiintilT's c()nii)any to re.stniiii tlic defeii- daiits from so using- tlie mime Liebig's extract of meat, the court Jidld^ that the term having been used as a term of art to designiite a well known process before 18G1, the defendants were fully justified in using it, and the bill was dismissed with costs. 1807, Vict Ch. Wood' s CI.., Liebig's Extract of Meat Company (^limited) c. llanbury, 17 Lain Times It {N. .s'.)^2!)8. § 055. A manufacturer cannot accxuire a s[)ecial property in an ordinary term or expression, the use of which as an entirety is essential to the correct and trutliful designaticm of a particular article or compound. Thus, a dealer in salt hsh can not maintain an exclusive claim to the use of the term "dessicated cod-lish" as a trademark. It is a sequence of the right of eacli party to dessicate cod-lisli that he may sell the article tlius produced, under the designation which is strictly a])propriate to the altered or modified condition of the principal ingredient. A dealer may distinguish liis ''dessi- cated cod-fish" as the "Bismarck" or tlie '' \"on Buest," or by the prefix of any other proper name or common word not previously applied in that connection, and not essential to the truthful desig- nation of the article produced, and he will be pro- tected in its exclusive use. But he can no more ac- quire a special i^roperty in the word "dessicated,*' as applicable to an article which lias undergone that process, than he can to the words "dried,"' "pre- served" or " pi(!kled," as applied to that which has, in fact, been thus treated. It appearing that no attempt had been made to deceive the public or to palm off the defendant's dessicated cod-fish as that of the plaintiffs' manufacture, tlie temi)oi'ary in- I (1/ \_Descrl2iHv(' name] Nami:. [and words.] 221 junction was dissolved. 1SG8, X. V. Com. I^/cas, 'S. T., Town /'. Stetson, o Ahb. Pr. {X. *s'.) 218; S. C, allii'nied, J> />r////, oii. § Or)0, Althoiigli, l)y tli(^ lonu' continued use of cei'tiiin letieis, tiuuies, Avords, marks or syuibols, wliich do not. ol" tlieiiiselves, and weiv not desiu'iied to indicate the oi'igin or o\vnei'slii[) of tlie ^oods to "whicli tih^v are attached, but oulv to (h'siu'iiate the nature, kind or quality of the di'.l"ei(>nt vaiieties of the article, and because so marked, the i^oods liave become known as those of the manufacturer wJio lii'st used them, such fact cannot alter ihe oiii^iiial meaninii: of the words or svnd)ols. or the intent with which I hey were first used, as denotinii,- th(^ name of the tiiin,i>\ or its 'D, J. : "I find some authorities that hold there can be no '•■'■■'"'I ■ : j ! ''■'1 ;i k 222 [Dcscriptioe] Xame. [name mid /cords.] '■* il!^ ■ 'i' ' ."''•': i jrr ili It ''. 1^ .^'' exclusive right to a trjideiiiaik. wliicli only de'iiotes the qiinlity of tlie ni-tiele iiinnufiu'tni'rd. I believe, however, the Aveight of nutlrority is the; other way. Tlie later, and it seems tome, the better authorities, establish tin.' [)i'oposition that a trademark may be ecmiposed in part, if not entirely, of words, letters and characters, that denote the cpiality of the article. If a tiad(Mnark is once established, I hohl, whatever its design, it will, to some extent, neces- sarily indicate to the public the quality of the article. But if I am mistaken in this, still I am of opinion that the plaintiifs trademark does desig- nate much more than the simple quality, or quantity of the lionr in the barrel, and thei-efore is entitled to protection from infringement." 1871, Indianapolis Superior Ct. R 7\, Sold r. Geisen- dorf, 1 Wilson, GO (Ind.). § GoS. Xo one has aright to appropriate a sign or symbol Avhich from the natui-e of the fact it is meant to signify, others may em])loy with eqnal trnth for the same pnrpose. jS^ames having a definite and established meaning in the language, and which do not indicate origin or ownership, or something equivalent, can not be apjiropriated by one so as to exclude a similar use by others. No property can be acquired in words or marks which do not denote the goods or property, or particular place of business of a person. No i)erson by prior use can acquire an exclusive right to the words "Mammoth Wardrobe" as a sign or designation where a large amount of clothing is kej^t. 1871, 2Tlchlgan Circuit CL, Gray v. Koch, 2 Mich. N. P. 119. § 659. The owner of a peculiar product of nature, like natural mineral water, who has applied to it a m \_Descr}j)tlTC nam/'] Xa.mk. ['''//'''' ii''>rr7.'^.] '2'2] I*, conventional nainp, bv Avliicli it hns beronip licn- orally known, and under wliicli it has been exten- sively sold l»y him as a nscrul aiticlc, is entitled to be protected in the exclusive use of such name as his trademark in the sale oi' the ai'ticlc. J8TI. X Y. Court of Appeals, Congress Sc Kiui)ir(' Sjn-ini;' Company ??. TIi;L;,'h liock Congress S[)rinij; (.'omj)any, 45 zY. Y, 291;' S. C, 10 Ahh. I'r. (X X. ) IMS ; reversini? S. C, o? Barb. 520. j^ GOO. A j^eneiic njnts, or characteristics, cannot be employed as a tradcmtii'k. 1871. (J. K F^uprc.me C/., De'lawai-e c^- Hudson Canal Company r. Clark, 113 Wall. Dll. j5 001. A wend, figure, &c., in conmum use, which indicates the name, nature, kind, quality, or charat;- ter of the article, cannot be appropriated as a trademark. The word "Schnapps,'" which has long- been in use to designate gin manufactured at Schiedam, cannot be appropriated as a trademark for gin, in the United States, even if its former use liad been confined to Europe. 1873, Supreme Ct. ofCaL, Burke d. Cassin, 45 C«/. 407. See ^§ 048, 004, 1029. § 022. The word "Schiedam" cannot be adopted as a trademark, because it has hmg been used to denote quality or kind. Ibid. §003. The word "aromatic," when employed to express one of the qualities of liquor, cannot be jirotected as a trademark. Ibid. % 004. The employment in a trademark of a term, which is the true generic designation of the mer- chandise, cannot give any exclusive right to employ it. Hence the word "schnapps," intending abroad alcoholic drirkin general, and in common use here, 16 rf- ■ V. 4\. i , liis excbjsivo use. In tlie excbisive use of tUcin flie hiw ■will not jd'otect. nor docs it iniitlfM' tliiit the foi'iu of Words o)' i)lii';isos adopted also indicates llic oiinin and niakei' ol' the article. The combination ol' Avords niMst express only the latt and ownersliip alone, bnt also of J (>7"i. The defendant uscmI labels, devices, kv.. calcnlated to deceive the ]»nblic, and to induce a a belief that tlu; elixir which he sold was the sam^* as that made and sold by the plaintiffs. The ])]ain- tiffs soni>,'ht to have the defendant :). % 074. The applicants, who were iron masters, hud for some time i)rior to the pnssing of tlie Tr:i ' marks Kegisti'ation Act, 187.") (:}8 k 39 Vid. c. 1)1. .1(1 :5'.) & 40 Vicf. c been in tlu' ha1)it of usiiii !is trademarks the initials of their oi-iginal iirm, the name oC their works, or an abbreviation of it, and (•onil)inatio!is of them, and also these marks coii))led \\'\\\ symbols o." words denoting the i)articular quality oi' the ir<*ii. The registrar ol' trademaiks was willing to register as trademai'ks the initials, and tluMiame of the works and ahbi'eviation and tlieii' combinations, but I'efused to register the nuirks which contained tln^ symbols or woi'ds de- noting quality. On motion bel'oi'e Maijxs, \'. (!., that the rf'gistrar might be dii'ected to register tli(3 Avhole of th(^ marks clainn^d : I[( Id, that tlie sym- bols and words denoting qnidity. though l)y theiu- sel\(^s not trademarks, yet were trademai'ks in combination with the initials and the name of the works, a.nd abbreviations and their combinations, and weie entitled to legistration. On appeal by the registrar of ti'adeniaiks, the court of ai)])eal were of o[)inion that the j)roj)er foi'm of I'egistration would be "'B. 15. II., used either alone or in coni- l)ination with a crown, ln»rse-shoe, or crown an( I aoi'se-shoe, oi" with any other mai'k, device or word ignifying the (pialily ol' the iion," and such order ■/as made by agreement. 1877, Uh. Ct. of Appad, ' n. rv jjai'row's A[)plicati(ni, 25 IF. Ih 004; ►>. C, :^Wi nii] [Descr/jy^he 7ia7?ie] Name, [and icoi'ds.] 220 below, 3G L. T. 11. (X /<) 291 ; S. C, 25 IF. 7^. 4o7 : S. C, 40 L. J. 11. (/Y. .s'.) C7/. 4o(\ § (575. Tlie court at spt'cial term found tliar l)lamtilf.s, ill 1842, luid oiiiiinated a luedicine t'oi" the cure of diseases of tlie llii'oat, A:c., for wliicli they tlien devised and conmienced to use us ;i tradeniaik, to designate the origin, owjinsliii) niid pai'ticular manufacture of tlie article, in connection with the name "Ayei','' the words '* Cherry Pec- toral,'' which combination, " Clieriy iN'ctoral," was oriuinal and not previously used. Thar the word "Pectoral," though known as an adjective, was then of rare and infrecpient use as a substan- tive. That said words " Cherry " and " i'ect(»ial," suggested, partially, the oiigin and use of the aiticle. That the extract of wild i-heiry was one of the ingredients thereof. That said article be •anie well-known to the public under its name and title of "Ayer's Cherry Pectoral,'' and "Cherry Pec- toral;" was commonly known aiiumg dealeis as ''Cherry Pectoral;" and tiiat, by association wiili the name of Ayer, and long-continued and uninter- rupted use. tile title " Cheriy Pectoral" became estalilishi'd as plaintiffs' trademark. That it was geneially uiidei-stood l)y purchasers tliat the title "Clierrv Pcctoial," referred to and meant "Axel's Clierrv Pectoral," and none other. >>aid article was a liquid of a dee}) saiTron color, put up in oblong, Hat, clear glass bottles, containing alxait six ounces, ui)on whicli l)otth^s were stamped the words, "Ayer's Cherry Pectoial." The bottles were enclosed in a paper Aviai)per of a dee[) orange coloi', bearing tin; print(»d words, "Ayer's CluMry Pectoral f(n' the var'ous aifecth)ns of the lungs ami throat, such as colds, . . . Picpaicd and sol ' 230 \^Desc)'i]7tltc] Name, [imme and icorcls.'] by J. C. Aver, Lowell, Massacliusetts. Price One I)ol]ai'.'' In 1801), defendant c(>niin(Miced to make and sell ii medicine for conirll^<, A:c., Avliicli he called " ClieiTy Pectoral Tioclie.s;'' said article Avas in the form of lozenges, put np in small jia^tnr boxes of a salmon color, with a tigure of a red lion, holding ti scroll in his month, Avith the words '•('lieny Pectoral Troches" thei'eon, and also the wolds "Cherry Pectoral Troches foi- coughs . . , kc."' Soon thereafter, del'en(Uuit commenced to s<^ll and mannfactnre a preparation of the same color, taste, smell and ai)peai'ance as plaintilfs' article, and put up in oblong, Hat, clear glass bot- tles, containing about live and ii half ounces, of u somewhat smaller size, but of the same sliape and having the same general appearance as plaintilfs' article, and having (m the outer wrapper of white paper with red print, in large lettering, the Avords "Cheri'v Pectoral," and underneath the same in smaller lettering, the woitls, " Kushton's. F. \'.," and on an inside wrapper the words '• Cheriy Pec- toral." and, after some printed words of descriittion and recommendation, the words, "For sale, Avhole- sale and retail, by Hushton & Co., 11 Barclay Istreet, New York." Soon thereafter, defendant changed the color of Ins article to a ligliter shade, and somewhat changed the taste and smell thereof. The articles made by defendant, as aforesaid, con- tained the extiact of wild cherrv. Defendant ex- tensively advertised the words " Cherry Pectoral." for sale at 11 Barclay street, without the name of any person, and had conspicuously placed in front of liis premises, u sign, ''Depot of the Cherry Pectoral Company," and inside his i)remises a placard, "Ayer's Cherry Pectoral, One Dollar. M Itel \l)i'scrtpti}:e name] Name, {and ■words.'] 231 Rush ton's Cherry Pectoi'iil, Fifty Cents. AVliicli will vou have T' Defendant instrncted his clerks to answer to x>iii'chasers who called for Ay(M'"s Cherry Pectoral, that his Cherry Pectoral was not Ayer's, and that all peisons inquiring for Clieny Pectoi'al, sliould be asked which they wanted— ''Rushtons" or ''Aver's," and told tliat RiishtonVs was much better. The conrt also found that the said articles i)ut np by defendant were well calculated to deceive and mislead purchasers, Jind to iiiducH them to believe that they were the i)laint- itl's" aiticle ; and that defendant, well-knowing that said Avords and name, "Clieiry Pectoral," wei'e plaiutiflV trademark, and had by long use l)ecoiuo known as designating plaintiffs' article, and Icnown to the public as their trademark, with the wrongl'ul intent to induce i)archasers to believe that his article was the plaintiffs', and with the wi-ongful intention of securing to himself the benefit of plaintilfs' trademark, had imitated their trademai'iv so closely as to mislead and deceive purchasei's. Defendant was enjoined from using the woids "Clieirv Pectoral," and from imitatinu', &c. On appeal, the court at geneial term held that the said findings as to intent, &c., and as to imitation wer(^ not sustained by the findings describing de- fendant's acts and the respective articles. 'I'hat defendant had been cai'eful to distinguish his arth'le from plaintiffs', and had taken pi'ecaulioix to prevent |Hii'^'hasers from being misled. That although he had taken advantage of the celebrity of plaintiirs name, and had hoped to gain :idvan- tage fnmi the popularity ijlaintilfs aiiicle had acquired, by calling his medicine " Clierry Pecto- ral," and thus inducing peisons to try his com. i?"» o : /- J ■ 232 IFcmci/] Name. [name.] pound, if they could be persuadiMl that one "Cherry Pectoral" was as good as another; and had ])i'()i)osed to build up a business ui)()n and avail hiniseli" of the fame which years of sale and ) had copied the mai'k froiu plaintiffs' stockings, and de- nied any fraudulent ijitent in so doing. The evi- dence as to plaintiffs' right to the mark as a trade- ^' This ciitji' is now iu the Court of Appeals for review. {Fancy'] Najie. [iuuiie.] 233 mark was very unsatisfactory ; but held, that de- fendants, liavini;' made so complete a copy of pLiin- tittV mark, the dilference being only nominal, must be taken to liave d(me so with an intent to uain an advant;i,u:' to whicli tliey were not entitk^d — iind that tli(^ motion to dissolve the injunction should be denied. 184(5, Vice Chaiicdlor' s C/., lline /\» Lart, 10 Jurist, lOG ^ 081. The pkuntiff liaving iirst applied the mime "Pain Killer" to a medical comi)ound made* and sold l)y himself, it was held that the npplication of the same name to a similar compound sold by de- sendant, bottled and labeled in a somewhat similar Avay, was an infringement of the i)laintiirs trade- mark. 18.")(), Supreme 67. of Ithode .Inland, Davis V. Kendall, 2 IL J. otKJ. § 082, The distinction between a "fancy " name and a descriptive name— considered. J8."J7, J\". Y. ISupcrhr CI. aS'. T., Fetridge v. Merchant, 4 Abb. Fr. mo. J; 083. Whether a mere name of an article or a designation of a i)lace of manufacture, can or can- not become the subject of protect ion, as a trademark, or whether the words ''Genuine" or "Yankee" can or cannot in any possible coml)i]iation be used as a trademai'k, ihe court will lestiain the use thereof in i)eculiar devices and labels in imitation of trademaiks used by a manufacturer to distin- guish his goods and when such use tends to deceive the public. IS.")?, N. Y. Superior CL, (J. T., Wil- liams «. Johnson, 2 Bosa\ 1. !l, so that hi', name be so far peculiar, as applied to manufacture 234 l^Fancy] I^ame. \name.'] i' goods, as to be capable of distinguisliing, when known in tli(i niarkot, one nianuractiirei'''s goods of a ceitain description from those of another. "Roger Williams," thongli the name of a fainons j)erson, is, applied to cotton cloth, a fancy nan;e, and tlie ntime "'Roger Williams, Long Cloth," is capable of being appioiniated by a inannfactui-er to- cotton cloth of his manufacture, to distinguish it from cloth of the same general description manu- factured by others ; and if, to the knowledge of the public, it be so appropriated by the plaintitf, a per- son who stamps the name of '' Roger AVilliams " on his cloth of similar description, with the design and effect of fraudulently passing it upon the market as and for cloth manufactured by the plaintiff', to the lessening of the gains and credit as a manufac- turer of the latter, is liable to him for the injury caused thereby. 1800, Hapreme CI. of 11. /., Bar- rows i\ Knight, G li. I. 4-^4. § G8."5. AVliere the plaintiff' has the right to the exclusive use of a trademark, in a particular arti- cle of manufacture, any labels, devices or handbills used by the defendants which are calculated to de- ceive the i)ublic into the belief that the article they are selling is the article made and sold by the plaintilf, will be restrained by injunction, and the plaintiff' fidly protected. iSo held., where it ap- peared that the appellation "Yankee Soap" was known to indicate the plaintiff's soap, and that the defendant's labels were in imitation of the plain- titf s, and calculated to deceive. 18G8, N. Y. Sti- 2)6 r lor Ct.^ S. T., Williams v. Spence, 2o How. Pr. BGG. § G8G. Where A introduces into the market an article which, though previously known to exist, wl \Finicy\ Name. \)tamc.'\ 2;].^ is new as an article of comnierco, and lias acquired ii reputation therefrom in the market by a name not merely descriptive of the article, B will not be permitted to sell a similar article under the same na.ne ; and this although tlie peculiarity oi the nanie in question has long l)een in cojunwrn nse as applied to goods of a dill'erent kind, lIcJO^ that where the plaintiffs sold oidy one quality of soap, and that by the name of '"The Excelsior White Soft Soap," the word "Excelsior" was not a mark of quality or description, and that saitl word is one in which an exclusive I'iglit of riser as a trademark nray l)e obtained. 18 JiJ, Viu'. (Jh. W(n(l' -s 67., Braluim r. Bustard, L'l.o TIhk'.^ Ii''i). (.Y. .s'.) 11)1); S. C, 1 ][eni. & 31. 447; S. C, 11 II'. Ji\ loOl ; S. C, 2 M'W R. :u2. % 087. Tlie judge, before whom the action was tried, found as facts that the plaintiffs, in November, 1850, comi)ounded fnmi cocoanut oil and other ingredients, a mixture to be nsed as a hair wash, for which they devised as a trademark t\\Q name or word *' (Jocoaine ;" that they published tlu^ same verv extensively, with notice that thev had adoi)ted the said name or title as their ti'ademark ; and that the defendant, in Xoveml)er, 1808, commenced the preparation and sale of a similar ccmiponnd, in bottles and with labels under the name and title of "Cocoine;" and further, that the defendants, well knowing that the name, word or title of " Cocoaine " was, and for a considerable time had been, the trademark of the plaintiff's, ^vith the Avrongful intent of inducing the public to believe that the compound sold by themselves under the name, word or title of '" Cocoine," was that of the plaintiffs, and with the wrongful intention of securing to If 23G [Fane?/] Name. [name.] themselves the benefit of the skill, labor and ex- pense oi* the plaintiifs, luive so closely iniirated and used the aforesaid trademark of the plaintilfs as to deceive the pnblic, and to injure and damage the plaintilfs ; that the word, name, title or device "Cocoine" is a spurious and nnltiwfnl imitation by the defendants of the word, name, title or device '' Cocoaine,*' the aforesaid trademnrk of the plain- tilfs. // was hdd that the plaintilfs were entitled to a jnd^'inent enjoinini^" the defendants from uianu- lacturing, using, selling or in any uianner disposing of a (!()mponnd or preparation with the name, word or title of "Cocoine" printed or stamped upon the bottles, labels, wrappers, covers or packages there- of. 18G7, N. Y. Court of Ap/wuls, Burnett «. Phalon, ;j Trans. App. 1G7 ; S. C, 3 Kvijes, ,594; S. C, 5 Abb. Pr. {N. 8.) 212; S. C, 1 Abb. Vt. of App. Ih'c. 207; alfi'g S. C, 9 Bosm. 193; afli'g S. C, 12 Mo. Law R. 220. §088. The title and trademark of the plaintilfs article was "Perry Davis' Vegetable Pain Killer," and had been introduced in the market under that name as far back as 18-42. About live yeai's ago the defendant commenced tt) manufacture and sell an article sinnlar to the plaintiff's, which he called "The Great Iloine Kemedy, Kennedy's Pain Killer." Plaintilf filed a bill to restrain the use of the words "Pain Killer" by defendant. There was an obvious dilfereiice in the appearance of the labels and bottles when seen together. Defeudant contended that his label Avas not an iid'ringenient of the plaintilfs, and that, as the words J\iin Killer was descriptive of the article, that x>hdntilf had no exclusive right thereto. The evidence showed that the name Pain Killer was lirst invented by Perry [Fancy'] Namk. \_na)H('.'\ 237 Davis, that siucp 1S41 it was iiiidoistood by \\\i' public and tlie trade that IViiy Davis was (ho in- veiitoi' (>r "Pain Kilh'iv' that "Pain Killer" meant tlKMiiediciiie of th<3 ])]aiMti(t', that whenever " Pain Killer" was asked foi', the i»laintin"s medi- cine was understood as meant, and sni)[)lied wilhont I'lii'tlKM' inqiiii y. that his medicine was asked J'or and supplied without further designation, that the defendant's arti(^le coidd not he sold in considei'a- able quantities unless the name Pain Killer was conspicuously jtlaced thei"eon, and thai it was oidy since the defendant's article had been introduced that persons who asked I'or "Pain Killer" <;ave th(^ name of the maker. There was pi-oof that defend ant's article was obscurely known in the ti'ade, ))Ut that plaintilfs article had i)i'eviously obtained a great reputation. Jlt-hi, that tlie words "l*ain Killer" fell within the class of trademarks usually calleil fancy nami^s or trademarks, which are arbi- trarily selected by an Inventor or manufactui-er to catch th(^ eye or ear of the public, and to distin- guish his article from others of the like nature. Tiiat it was ti'ue tliat the term Pain Killer was sug- gestive of the use of the medicine, but that it was not an adjective or used adjectively ; that it was a quaint combinatitm of words n(3ver probably nsed together before, forming a mime bv which the in- ventor desired liis medicine to be known, and cdcu- hited, as lie liglitly judged, from its quaintness to lix itself in the memory of the general public. Hdd, further, that the words "Pain Killer" was the distinctive trademark of i^laintilf, and that even taking the whole title "Perry Davis' ^'egeta- ble Pain Killer" to be the trademark, the use of the words "Pain Killer" \\])o\\ the defendant's m ! i:W '■'t -,•1' ■ 1 '■] ■ ll ■^'iu IMAGE EVALUATION TEST TARGET (MT-3) 1 // '4^ 1.0 1.1 l^|2£ 12.5 ■^ Uii 12.2 2.0 Ui 1 I ^ ||L25 ||l.4 ,,.6 ^ 6" ► ^. f 7, /. '/ /A Photografdiic Sciences Corporation 33 WIST MAIN STRUT V^nSTH.N.Y. 14SM (716)I72-4S03 U.i 238 [Fancy] Name. [na/ur.] V '!• ■.\»i label IIS nfoiosaid was an iiifi'ingcmont of the plaiii- tilfs tnulciinark. Dofcndant was enjoiiuHl JVom tlie use (if said words, ordei'ed fo account for the profits lie had made, and to forthwitli destroy all dies, labels, wi-appers, and printed jtajieis in liis possession, power oi' control, ni>on which tlie plain- tilfs said tradeinai'k was used. ]8()T, Se[tt. :>, Vice (Jhdmrllofs Ct. held \ Atkins, :>7 J.rnr Jour. J*. {X. S.) c/i. 847 ; S. C, 10 L(nr 7V///r.v JL ( X. S.) C. § CiDO. Any contrivance, desigji, device, nanu% symbol, or other tliini;', may be empl(»yed as a trademark, ^vhich is adopted to point oiit the true source and ori.uin of the ,iroods to which said maik is a])i)lied, or even to point out .and desl^nat<' a dealer's ])lace of busin<'ss, distinuuishin^- it IVom the business locality of other dealers. The mai'k, however, must point out llu; source and origin of the goods, and not be merely descriptive of the style, cpiality, or character of the goods them- selves. The ])laintilf originated and applied to cooking stoves of his manufacture, (lie name "Charter Oak," whicli was so formed upon the patterns, as to lU'oduce the name u[)on the stoves in combination witii a s[)iig of oak lea\(»s. This name and device was employed to distinguish and designate tlie plaintiirs ai'ticles. //r/r/, that said name and dinice were i)ossessed of the recpiisite chai-acteristics of a trtulemark, and that as said stoV(?s were not generally known by tlu> i)articular device wliich surroundetl the name upon them, but by the name itself, the use of the name "Charter Oak," separated fiom other parts of the trademark, amounts to an infringement of the maker's rights. 18(59, Supreme Ct. of Missouri, Filley i\ Fassett, 4-i Missouri, 1G8. § 001. The plaintiff, being a shirt-maker in Lon- don, invented a particular form of shirt, to which ^^.i ■III ^|i n^ki ii m ^^ I- hi ■ li' I ■h im 240 \_Fancy'] Nami:. \iiame.'] he gave the nnme of "Eurokn," mid used, as a trademark, whicli lie affixed to the shiils, the words "'Ford's Eureka Sliirt." After tlie i>liiintilf had used this trademark for several yeais, tlie deH'iidaiits eomnu'iiced to use the word "'Eureka," affixinii' it to a shirt in exactly the same ])hu«'as the plaintiff allixed his mark, also boxes eontainin*,' small quantities of shirts, just as much as one i)ur- chaser would buy, with the mai'k "Foster, Porter k Com])any's Iin])i'()ved Eureka." The defendants Avei-e restrained hy injunetion from affixing or using any label or card, or other mark containing the word "Eureka," or from applying the word "Eureka," to or upon any shirts not of the plaintiff's manufac- ture. 1872, (Hi. Ct. of Apx)i'al^ Ford «. Foster, 7>rt?/) 11. 7 CMncery jVp. Ca.^. Gil ; S. C, 27 L. T. It. {N. S.) 219 ; S. C, 41 L. J. li. {N. S.) Ck. CS2 ; S. C, 20 W. 11. .'5 18 ; reversing S. C, 20 IF. IL WW. >? 002. The exclusive right to the use of a fancy name as a trademark, is not lost by the inventor lia])itual]y using it in conjunction with his own name as maker of the article. Ihld. i go:], a fancy name which designates a partic- ular kind of article, may be in general use in price lists which circulate between manufacturers and retail dealers, without prejudicing the light of the inventor to the exclusive use of a fancy name as a trademark in the sale of the article to the X)ublic. Ihid. i G04. For twenty years the plaintiffs used tlie trademark in question, by stamping or labeling it upon shirts, their packages and advertisements. In March, 1871, they registered their trademark in tlie patent oflice, under the act of Congress (IG ^. ^. Slat, at L. 210, &c. § 77, &c.). The trademark, jj' \F<'l)rU^ Xamk. ynoiiii'.'] 241 m ^ ' 7-11 < :.fi,.'i ;is nj^pcniiMl 1»y tlio ccrlilicMft' <»f tlic rnmniissiiouM" of jiMtciits. consists of tlic words. "Tlic St.-ir Sliirf;"" also llic woids, '-'I'Ik' Star Sliii-t." witli the (Icvicf of a si\'-j»oi!i!('(l stai' tlicrcwilli : also tlic device and words. *• The j|t Shiil "" eiiln-r one ())• all liei'iL!," used as convenience i-eipiires, *• 'I'lioimh this device (»i' mark is in pail arl)itrary and, io lliat extent, W(»ul(l have no natni'al or necessary sin,- nilicance in connection with (he ailicle nianufac- tuicd, apart IVoin its nse in that connection, yet. hy such use of the jilaintilVs. in coinu'ction with t heir inannlactare and sale of tliese article-^, ii has heconio well known to the tra(h', and has come to )>e taken hv dealei's as a iiecnliai' desiuiialion l>v which llie plaintilV's u'oods are distinguished in the market. It is, therel'ore, both in its chaiacler and nse, when t:d\en to/j^vthcr, a lawl'nl tradt'inaiU. it has hm<^ been employed l)y the ]»laintilfs. and well nnder- sons fi'oni using such name and mai'k to denote ar- ticles similar in kind and ajipciiram-e. althonuli he may have no exclnsive light of manufa<'tnring the article. If the use of sucli name and mark by any 10 'f! fW l! f: I; ■I- '^1 242 [i^«7i(??/] Xame. [name.] other person tlian tlie first inventor, has been adopted for the purpose of sellinii; p:()ods of an infe- lior quality, thoufi'h of similar external ai)]>eaiaiu'e, so that pui'cluiscrs may be misled into the bt'lief that they ai'e buyinu' the <;-oods of the lirst invciitoi', tlie injury to the lirst inventor is one for which he is entith^d to comptMisation in damages and relief by injuneticm. 1872, Vice 67/. liacort .s CY,, Hirst i\ Deidiam, L. R. 14 Eq. r)42 ; S. C, 41 Laip J(nn\ R. {N. .S'.) C/uuic. i:)2\ 8. C, 27 Lam Times >j (500. The i)laintiff, a woolen manufacturer, in- troduced into the market cloths of particular tex- tures, made by him, under arbitrary names, as "Turin," "Sefton," "Leopold," and " Livei-- pool." The defendant copied the patterns, which W'cre not re^'istei'ed, and sold, the cloths under the same names. The defendants alsr) used a ticket in sendiim" theii- cloth to the wholesale dealers, closelv 'T77 » resembling that of the plaintiif ; but they explained that they purchased the ticket, which was of a simple description, and did not bear the mannfactu- lers' nanie, from the stock of a tationer, without any intention to copy the i)laintu.'s. They claimed to be entitled to desci'ibe the cloths by the names given to them by the plaintiff. IMil^ that the phtiiitilf was solely entitled to the names as trade- m.'irks ; and that the use of the tickets, even if inno- cent, was unjustifiable. Ibid. % G97. The device consisting of tlie word " Star" stamped upon lead pencils, held to be a valid trade- mark. 1875, N. Y. Supreme CL Q. 71, Fird Depf. Dec. 30, Faber n. Ilovey, unreported. § 698. The plaintilf adopted as a trademark for his stove iiolisli a device of an orb, with rays of .. f ^' ■ f^ [f,'rof//-(/p7, }ciiT\ Xa m k. /Kf/Ur.] HA'.) Wisht lisino- over ;i l)()(ly of wnfcr, in ('omiccricn with tlic words, ''Ri.^h}}/ S/tfi Store Pol/,v(» polisli :i siiiiilni" (l(>vi('(» ( '" :in orb lisiim^ over ;i l)()(ly of w.-iloi-, in coniK'clioii \\itli llic woids '- RIsiii;/ .^fonn S! ore Polls]/." 'I'lic plMintJif lilid n bill. Mild fli<> defcndMiif by liis answer jidmitN-d iibove I'Mcts, Imt dt^nicd :niy int;> 44, :57n, 370, SO."), 431, 433, 871. M if: ! *. • '■ YI. Gcoriraphical name. § HOT). Thon,L!;h no exclnsive I'i^-ht of property can bo aeqnired in the pnblio and well known name of a p,'e()^'i'aplii('al distri<'t, siieh a ri.uht may lie ae- (piired in tlie ai)pli('ation of such a name to a particular artich.^ of manufacture, if the ai-tlcle has acquired a rei)utation in the market under sinh name as a trademark, 1804, lief ore Lord ('//. Wes(l)urf/ on. Appeal, ^T Andrew v. ]3asselt, li» Jiiri.sf (n. S.) TmO ; S. C, 33 Laic J. R. {X. >'. . Cli. .001 ; S. C, 12 ^Vee^dl| R. 777; S. C 10 Isinc T. R. {K. S.) 442; allirinin.ii: S. CL, 1(> Jifris'l (X S.) 402 : S. C, 10 La 10 T. R. {K. S.) 0."). § 700, The plaintiffs were manufacturers of li(|uor- ice, and having made in England a new description i m . m '• . '.'1.1 Si! it ,'J >«" II. i' »1; 211 {Ccoriraphica^ Xame. \imme.'\ of n'oods IVom a niixtun^ of jiiire exfrMctf^l from inols (>i)t;iined from Aiiiif(7. Ever since the year 18-18 the plaintiff, f'.iroii Seixo, had caused his casks to be stamped v.iili his coionet on the top, . and with, his coronet and the word ""Seixo" at the bnng ; and the evi- denc',' showed that his wines had thus acrpiired in tlie market the name of "Crown Seixo Wine." ^^'hen therefoi'e the defendants, in the year I80O. a(h)pt(.>d as their device !i coi-onet with the v.'ords '•Seixo de Cima" (meaning Upper Seixo), below it. the consequence was almost inevei table that persons Avith only the oidinary knoAvledge <.)f the usages of Avine trade from O]»orto would sup])ose, that i)i ])iirchasi!ig a cask of wine so marked, they wt've l>urchasing what Avas generally known in tin? mar- ket as "Crown Seixo" Aviiie. Against the use of ^uch a liademark the plaintilf has a light to htiA'e an injnnciion. Even assuming the truth of Avhat the tlefeiuhmts contend for, /. <'., that parts of their Ainevards were known bv the name of Seixo, that [Geoyraph tea ?] X a m f. {naiite.'] t?in does not justify tlioiii in iidoptiiii,' a (Icvicc or hraiil. the i^rohal)!*; ellV't-t of wliicli is to lead tin^ i)iiltiic. wlien purcluisinii; their wine, to sui>[)os(' ihat llicy are piirchasini^ wiu(! fi'oiu the vineyards, iio( of ili.' defendants, but of the i)laiiitiir. Tlie defeiidaiiis were enjoined from nsin,^;- the ei'own oi- th<' \\(.id Sc eixo" on their Avini?. i^There was no e\i(h'nee [> show that the (h?feiidants evei- oll'i'oved that tliey Imd oll'ei'ed it as ''Ci'own Seixo de Cinia ; "' and a wine broiver of eiuineiK.-ti de[»osed that he bt'!ie\< il ir. wlien oU'ered by tliat name, to be the iijainliir ■> wine.) Ji^()(5, Bcf'ori' Lord (' h. ('rmi ii^ari/i on Aji- l >('(i /. Seix xo r. Pi ovezen, /.. Ji. 1 C/i. ID-J : S. ( Vl .hnist {N. K) 21,'); S. (J., 14 UVr//// /A :j:)7 ; S. C, \A L((w T. J?. {lY. S.) :]\4. jj 708. AVhere ])lows in lefeienee to Mliicli ll:e words '• Moline IMow "' wei'e used (bejuM- tiKiiiu- factured in the town of ]\Iolint>, lll.i, said words wer(^ le.uarded as a ^'(Mieric tei'm, and as indic.-il inu- tile place at wliicli they wei(3 mach', and ii \vas /,lace. 1ST'». •^"/'re//i(i CL of llliiioh^ Candee c. Deere, .Vt ///. 4:v.). ,^ 709. One manufacturer of an article at a len- ticular town, whose wares Inive gaiiu'd celeluiiy, can not appropriate as Jus own, to the ex(dusinu of other persons in the same place, the name proi»riation of li'eneric names ov of thosei merely descrii)tive of tlie article mann- factui-ed, and which can be em[)loyed with truth. a]>[)ly with «'ipial force to the appropriation of •^•eographical names, designatin.n' districts of conn- try. Theii' nature is such that they cannot point to the origin (perscmal origin) or ownership of the ar- ticles of trade to which they may be applied. They l)oint only at the place of x^i'<><^l'i<*fi<'ii5 ii(>t t(» the l)roducer, and could they be appropriated exclu- sively, the a[)proprhition would J'esnlt in mischie- vous nuniopolies. Conld such i)hrases as " i^Mlll- sylvaniii wheat,'' " Kentucky hemp," A'ii-ginia toluu'co," or ''Sea Island cotton," be protected as trademarks ; conld any one prevent all others from using them, or from selling articles produced in the 1 [GiO'jraph ical] X a m k, [name.] 247 (iisfiicts they dt'sciibe mider those ap]>('ll;iti()iis, it would i;r»';illy cnihiiri'ass ti'iuh'. and secure cxchisive lights to indiviiluals in that wJiich is the eouiuioii l)rope!-ty of many. It can he permitted oidy when tlie reasons tliat lie at tlie I'oundaticjn of the i)i'ote('- tion ^iven to trademai'ks are entirely overlooked. 1H7I, L\ N. S//j)/-('///(' cy., Delaware and Hudson Canal Company r. Claik, \'.] \Vpel- lation as to prevent otli«'rs inliahitiniz; the district or dealin.ii; in sindlar ai'ticles coininsi; Ironi the dis- trict from tnithfullv iisini;" tlie same desiuiiation. It is oidy wlien tlie adoption or imitation of what is claimed to be a trachMiiark amounts to a false re[' resentatioii, «'xpress or implied, desi.uiH'd oi' inci- dental, that there is anv title to relief against it. True it may be tliat the use, by a seccmd proibicer, in describing truthfully his product, of a name or a coml)inati(m of words alivady in use by another, may have the eflfect of causing the public to mistake as to the oiigiu or ownershi[) of the i)roduct, but if it is just as true in its ai)i)Iication to his gtxxls ;is it is to those of another who hrst ai)plied it, and who therefore claims an exclusive right to use it, there is no legal or moral wrcjng done. Purchasers may be mistaken, but thev are not deceived bv false representati(ms, and (M[uity will not enj(»in against telling the truth. I hid. i) 7i;}. Where C(jal of one person who early and long unued coal in a valley of IViuisylvania known as the Lackawanna valley had been designated and become known as "Lackawanna coal," ILld^ that ^^1 li If 1; »■■■> J' 5 •' \i l lir I: •f'i 248 \a:irr ol' tli*- sjiine vnllcy, and ])('rs(»ns wlui sold flic conl so mined, could not be enjoined nuMJnsr cjdl- inu' iIk.mt coal •• l^a<'ka\vanna coal," it heinu- in fact and in its ^-eneric character i)i'o[)erly so desiuiiaied, alllionu'li nioi't! ])roperly described when specilically spoken ol' as '"Scranton coal" or "I'ittston coal,"' and when si-ecilictilly spoken oL' usually so called. J hill. ^ 714. A name mav become a trade denomination and as such the pi'Oi)erty of a particiilai' person who lirst ti(>n ; lliat tliev \v"ll knew lliat in JHiyiiiLi' ('"s si;nv||, ilicy were not biiyinn' lliat made l>y \V. an'///• //. :• A'-///, d- //•. Ap. :»iiS ; s. C, 4:> L .!. (X ,s'. > r/. |:!0: re- versini;- S. C, %\ Lair. T. 11. [X. ^.) A i.i: S. C. IS Wit Ida II. l)4!> ; and aiiiiuiinu- S. ('.. :>-.> L,nr T. li. {N. -s'.) :2(5:», and S. (J., IS Wirkhj li. .'I'.-i. ^ TIT). W'hiM'c the name of a plae*. has l>y user l)y a ])arti<'ular maker of a ])ar!i('iilar ailicle of mannractiire. ac([nii'ed n secondaiy siiiiiiiicafion in connection with that niaimfact iii'e. and has ohlaiiied currency and value in the market as ilic trade (UMiomination ol" that i)airK'nlar maker's uoods. it beccjines, in connection with that maniilarinre, llie Ijrojteity ol" that maker as Jiis trach'mai'k. or as pai-t of his trachMnark. 1 bid . § 71(5, The mime ol' an article, if it Jias accpiired a name, should not by an honest mannractiirei- i)e put njx)!! his yoods, if a i)revious maniiractm-ei' has, by ap])lyini;" it to his uoods, ac(iiiii'ed the sole use of that name. 1 mean the sole use in this sense ; tlitit his ,i;'oods have accpiired by that des- ci'i[)tion a name in the market, so that whenever that desi^-iiation is used, he is nnderstood lo be the make)', where people know who the maker is at all — Ol", if people have been pleased with an article, it \ wm i '!■ I1 1! I' Mf . sS it!: 4: ml ] V 1 ■-^ '. ■;:^ •l. 1 I : 1 't ^^ i ''1 250 \Gcoi(»i)rlate(l as tradtMiiarks. and tlicir uso 1)A' an<»lh<'i" will not be enjoined : but the i'nl(» lias its ex('e])tions, wluM-e the inlentioii in the adop- tion of the desciiptive word is not so much to iiidi- rate t!ie jilace of manufacture, as to iuti'ench ni)on the ])revious use and ])oi>ularity of anothei-"s tiade- niai'k. IS?;!. ^V ^11 pre III (' (H. I jea r Wolf, b') Ahh. Pr. (X. X.) 1 ; S. (\. 1 T/umip. & C. (yO; S. ('., 4(5 Iloin. Pr. IT)?; modi f vino- S. C, V.\ Ahh. Pr. (X X.) ;]81). ^ 72:5. Plaintilf luid niannfactni-ed at AVoi-ccster- shii'(>, foi' many years, an articl(3 known as " AVor- cestershire S: WWQ Defendant commenced the mannlactnre at anotlier place, of an article oC similar character, Avliich lie named " Worcester- shiie Sauce.'' The labels, wrappei's, &c., of [ilaint- ilfs article were closely imitated in size, color and api)eaiance. and were irresistible proof of an inten- tion of the defendants to deceive the pnblic and to lead i)urchasers to suppose that the defendant's preparation was the oritcinal AVorcestershire Sauce, so lonS7. 4(57. $5 72;"). The plaintiffs adopted the trademark "Glendon" for the iron manufactured by them; the place wheie their furnaces were was afferwards made a borough by the name of Glendon. Another company afterwaixls built a furnace at Glendon, and used the mark '* Glendon " on the iron of their manufacture. IlehJ, that the latter company could lawfully use said mark of *' Glendon," Ibid. § 72(5. The commission of a lawful act does not become actionable, although it jiroceerl from a malicious motive. Ibid. § 727. The plaintiffs, under a grant from the ownei's, ac(pured the exclusive right of importing and selling in Great Britain, the mineral water produced by a natural spring, called " Apollinaris" at Arhweiler, in Prussia, wdiich had for some years been known and sold in the English market under the name of "Apollinaris Water," and advertised and sold the same as "Apollinaris Water." Sub- sequently, the defendants made and sold an arti- ficial mineral water, being the chemical equivalent of the natural water, under the name and description of "London Apollinaris Water, possessing all the properties of the natural water." Held, on motion, that the plaintiffs were entitled to an interim injunction to restrain the use of the words "Lon- don Apollinaris Water," or of any other name of which the word "Apollinaris" so formed part as to [Gcorp-apli lcaT\ Xa y\r.. [)}' I )))('.'] oil; be cnlf'iilated to niislend the public. IST."), Vicp Ch. B(iro}i\s r//., A})olIinni'is Company (limittnl) ?•. NoiTish, '^'^ Lam T. B. {X. X) 242. § 728. PlaintifF nnd (l«4'eii(lant both nimnifarnired tobacco at Dui-ham, X. V<. I ft hi, that ncithci- ])ai'ty could exclusively iip])i'()print<» the word "• Durhtuii " as a ti'adeinrii'k. ISTn. Si/prriiw VI. of KorUi ('a ro- ll na, Blackwell v. Wright, 73 N. c' 'MO. Vnxt see § 1390 . § 720. I^laintiff's trademark for the cigni-ettes oC his mnniil'actui'e consisted of the words "St. James," the device of rays of the sun, and tiie numerals Defendants imitated said trade- mark npon cigarettes manufactured by them and defended an action brought to restrain snch imita- tion, claiming that plaintiff had no exclnsive i-ight to the words "St. James" as it was a geogi-aphical name, nor to the numerals " i^," as they contended that such numerals represented that plaintiif's cigarettes were made one-half of Periqne and one- half of Turkish tobacco. The conrt found that although the cigarettes might l)e so composed, said numerals did not indicate the fact ; that they might as well relate to price, to size, to quality, to num- bers, as to quality of tobacco. The court also found that dt'fendants, by Ihe nse of the words "St. James," intended to defrand the pnblic into the belief that when they bought cigarettes with those words upon the labels, they were buying cigarettes of the i)laintiff's manufacture. Defen- dants were enjoined from the use of said words, device and numerals. 1877, N. Y. i^upreme CL K T., Kinney ??. Basch, imreported. § 730. "The interference of courts of equity, in- stead of being founded upon the theory of protec- 'f ■I? '■ I M., il ,(.: 71/. TB" !:■' ;^Pi- 256 [Pr//(';//r^] Xame. [nome of.'] tion to tlio oAvners of tnulomarks, is now supported mainly to i)i'('V(Mit iVauds n])on the public. If tlie use of any words, numerals or symbols, is ado]ited for the pui"])Ose<)f defiaudinti,' the j)id)li(\ the courts will iutcifei'c to i)rotect the public JVom sucli fi'audiiloiit infi'Ut, even thouiih the person askiug the iuteiv<'nlloii of the court may not have IIkm.'x- clusive i-ig'lit to the use of those words, numerals or syinbols. This doctrine is fully sui)ported by the latest En^lisli casi^s of Lee c. Haley, f) (y/i. App. Cases, Law 21. If)."), and \Votlierspoon v. Curiie, Laio R. n Ell (J. d' Jr. App. J louse of Lor Us ^ 508, and also in the case of Newman ti. Alvord, 51 N. Y. 189." VAX BnuxT, J. Ibid. See also §§413, 590, 823. ;g: ■:■,* ■ ■1. YII. Patentee, name of. § 731. The pru'chaser of a patent and of the right to use the naim^ of the patentee for the goods mtm- ufactured by him thereunder, has no exclusive right to use of such name after the exjnration of the patent, and another manufacturer will not be pre- cluded from using such name in representing that his goods are manufactured according to the i)atent, provided he does not do so in a maimer liable to mislead. 1853, Vice Ch. Wood's CL, Edelsten ?. Alck, 11 Hare, 78; S. C, 18 Jurist, 7; S. ' .,, "' Ear/. Lain ct Eq. 51. ^ 732. ^Vhere articles of a particular kind ii ^ become genei'ally known in commerce under the name of the original manufacturer (or patentee, as the case may be), any person has a right, after the expiration of the patent, to manufacture such articles and sell them under that nam*.' ; but he ,'t i. [Patentee,] Name. [nnme nf.'\ 2i)l may not, l)y inscribing tlie name, as a pi'ojx^r name, on Ids sliop front or otherwise, lead tJie i)Mbli(; to beHeve tliat be is selHn,ir as the agent J'or the origi- nal nianiiracturer. The name "Wheeler A: Wilson"' machine held to have come to signify the thinu' ma nil- factiired accordingto th(^ i)rinci])leof \Vhe<>!cr«.\: Wil- s( m s 1 )a tent . 1 SO!), ] \ (J. ,/(/ iiw.s Ct. , Wheeler <.V W i 1 s( m Mfg. Co. c. Shakes] »( 'a 1'. IW Law J. E. ( X. S.) (7/. :!S'. Patent Office) 455. %riio. Held, that the words ''Tucker ^^pring Bed," as applied to a sx)ring bed, were common property from the date of the exjiimtion of the jKitent in such bed. That Avhen a party otlier than the one who formerly owned the patent manufac- tured a spring bed, lie had the right to designate it as the "Tucker Spring Bed," indicating that it was manufactured under the Tucker patent. Ibid. See Cheavin v. Walker, 35 L. T. B. {N. S.) 757 ; Ransom v. Bentall, 3 L. J. It. {N. /s.) Ch. IGl ; Howe t>. Howe Machine Co., 50 Barb. 236. NEWSPAPERS. See Public atioj^s. NOM DE PLUME. See § 886. .,1 f I V. 'S '.f NOSTRUMS. See Misrepresentation. NUMERALS. § 740. The name of a manufacturer, or a system of numbers adopted and used by him in order to It; NUMKltALS. 259 desii^nate goods oC his make, may be the subject of the same protecthm in equity as an oidinaiy trade- mark. 18G0, Vice Ch. WoixV s r/., Ainswortli r. \Valmesk;y, Law R. 1 Eq. .0.8 ; S. (J., I'i .liirhl k V. X.) 20."); S. C, 14 Wecldij R. 30;? ; S. C, 14 Ln ii^ TliiK'H (.Y. .S'.) 220 ; S. C, 35 Lam Journal (lY. N ) (Jh. 352. § 741. The name and address of a manufaeturci. used by liim as a trademark, may have added fo and e^'..^^.i^*^ f |l ;'>■ M... 'rl rf .Iff 2G0 Numerals. iiidicUiutif the true orii^in or ownorsliip of the art ides fo whu;h tlioy are aflixed. Plaintillf, a iiLniiit'actiirer of steel pens, lia; the same name and nnmends. Tlie pens were kno\Mi and ordered l)y dealers as " JJIKi'' pens. Such ligures did not express any quality or size of the pens, but were selected arbitrarily by plaintilf to tlistingnish the pattern or character of pen to which it was applied. Defendants began the maniifaxjture and sale of a steel pen, closely resembling plainlity's ])('n in every particular, on which was stamped •':{o:r' and " Esterbrook & Co., extra line." The p(Mis were put up in boxes of the same size and similar to those of plaintilf, with a label containing the same words and figures, except "Esterbrook & Co.," instead of "Joseph Gillott." In an acti(m bi-ought by j^laintilf to i"estrain defendant from using the ligures ''1501?" upon these pens and boxes : If('/(?, that plaintifl' had acquired the right to the exclusive use of those iiguies jis a trademark, and was entitled to the relief sought. 1872, JY. Y. Com. of Ap., Gillott r. Esterbi'ook, 48 JVeio Yorl; 874; affirming S. C, 47 Barb. 455. § 743. Plaintilf s trademark for umbrellas con- sisted of the numerals "140" in a white oblonu' placed in the ceuti'e of a live-pointed star. De- fendants used a mark for und)rellas, consisting of the number "142" in the centre of a sun-burst. The evidence showed that the use of numerals as trademarks among dealers in umbrellas was com- mon — and that no one with ordinary intelligence NUMKUAI, 201 or attention could inisttilve tlieoiu; (Lu'icoof •' II'.'." &t'., I'or the other ons of cigarettes, trjiongst other traih'iiunks. an Eastern fez surroiuuled hy rays of ligiit ; also. the numerical symbol r< pi-inted in bold chaniders. in red color, with the bar between the two liuiires obiicxue and nearly upiight ; with tlu; ligiue I elevated on the left; with I he tlgui-e 2 dejires^-ed on the I'ight ; the symbol as a whole being of such size that the circumferi'nce of a ciicle havinu- a radius of five-eighths of an inch, would jusl iucliKle all of its points. This character of f< v.as regis- tered in the U. S. patent oHice as a trad<'mark iu Maj', 187i). The original idea of the comi>laiiiMnl i:i using said character ^^^ was to indicate that the cigarettes stamped with it were made uj) of tuo kinds of tobacco, in the proportion of hall' aiil half. Defendant, in April, 187."), began to [)ur i;p cigarettes stamped with the same numerical chai- acter i^ in broad, scarlet, red color, with the (.li\id- ing bar oblique and nearly upright, and of size identical with the same character as used by com- plainant. The plnintilf tiled a bill for a peri)etual injunction forbidding the use of said trademark by defendant. I/eld, that said numerical character does not c.rprcss the idea of the tobacco being half and half, but that it uullculcd such idea ; that therefore, the case being one of nicetj^ and doubt, an injunction against the use of said character in any form., upon goods similar to the plaintilfs would not be granted, but that the defendaRi- n sTrf w\ , ,1 I f; |5 ^« ri il ■'!■ 11 262 Nl'MKllALS. vslioiild 1)0 enjoined from the use of any inii>rinr ui)on Ills ^oods of the chaiacter y^ in th(^ form, si/.c. coloi' and style, as nsed by plaintilf, and that jilaintilf had the right to the exclusive iis<> of said ('liara<'ter in the form, coloi', size and style in which !)(> had used it. I/cff/, further, that if lluMise by liie comphdnant of said character t^ had been abso- lutely aibitrary, theie could be no (inestion of his exclusive right to use it stamped in any form ni)on liis goods. 1877, U. S. CIrcKif CY., \'ii(/!iii(i. Kinney v. Allen, 4 Am. Lnio Times' IL {N. S.) 2.18. 5? Plaintiflf used the numeials " J/^ " in con- iiection with certain words and a device as a trade- mark for cigarettes manufactured and sold by him. Defendants imitated said tiadeniark ujion their cigarettes, and in an action brought by phiintilf to restrain such imitati(m claimed that the us(^ of said numerals by the plaintiff was intended to rei)ies('ii( that his cigarettes were made one half of Pericpie and G/ie lialf Turkish tobacco. The court found that altiiough plaintiffs cigarettes might be so com- posed, said numerals did not indicate the fact ; that they might as well relate to price, to size, to qual- ity, to numbers, as to the quality of the tobacco, and consequently coidd not be descriptive of any particular quality, except as they may have been so used in connection with the plaintiff's label. /A7c/. therefore, that plaintiff was entitled to protection in the use of said numerals in connection with his cigarettes. 1877, JV. Y. Supreme Ct. 8. 2\^ Kinney 1). Basch, unreported. k ■ ■i; See also §§ 510, 656, 674, 947. One's Own Name— Ouioin and Ownkrsi p. 2G3 ONE'S OWN NAME. See Namk, g OOO, et seq. OPERATION OF LAW. Acquisition of tnideiiuiiks by operation of law. See §§ 85, 97, 91), 121, 13o, 142, 14:3, 149. ''J < ORIGIN AND OWNERSHIP. § 7;j0. The owner of an original ti-ademark has an undoubted right to be protected in the exclusive use of all the marks, forms or symbols, that were appropriated as designating the true oiigin or ownershii) of the article or fabric to which they are alfixed ; but he has no right to an exclusive use of any words, letters, ligures or sj-nibols wliich have no relation to the origin or owneishij) of tiie goods, but are only meant to indicate their name or qual- ity, lie has no right to appropriate a sign or sym- bol which, from the nature of the fact which it is used to signify, others may employ with equal truth, and therefore have an equal right to emph)y for the same purpose. AV^re such an a]iproi)ria- tion to be sanctioned by an injunction the action of a court of equity would be as injurious to the pub- lic as it is now beneiicial ; it would have the effect, in many instances, of creating a monopoly in the sale of particular goods, as exclusive as if secured by a patent, and freed from any limitation of time. h' = ■ |i i-'i (■■fl 264 Origix and Owxersiiip. 1849, N. Y. J^Nprr/or Ct. S. T., The Anioskea<,^ Mf g Co. i\ Spear, 2 Saiulf. Hup. CI. m). J$ 7.") I. There was no evidence that the mark, which con.si.sred of the initials of a firm surmounted by a cr(jwn, was ever current or accepted in tlie mar- ket as a reju'esentation of the pers(ms who manu- factured, or of the p'ace of manufactui-e, or other- wise than as a brand of quality; there was nothing to show that tlie iron marked with the initials ever had a reputation in the market, because it was believed to be the actual manufacture of those who used the mark. Held, that said mark was a trade- mark properly so called, /. e., a brand which has reputatit)n and currency in the market as a well known sign of quality, and would be protected by injunction. 18G4, Before Lord Vh. Wesibury on (Appeal, Hall v. Barrows, 10 Jurist (lY. aS".) 5o ; S. C, 12 WeeJdi/ It. 322; S. C, Lcm Times R. {N. K) oGl ; S. 0., :?3 Law J. II. {N. 8.) Ch. 204 ; re- versing S. C, Jurist {N. H) 483; S. C, 11 WeeMi/ It 525; S. C, 8 L.am Times {N. >s'.) 227; S. C, 152 Law Jour. li. {N. S.) Ch. 548 ; S. C, 1 N. It. 543. § 752. By the common law, the manufacturer of goods, (jr the vender of goods for whom they have been manufactured, has a right to designate them by some peculiar nan^e, symbol, figure, letter, foi'm, or device, whereby thej' may be known in the nuir- ket as his own, and l)e distinguished from other like goods manufactured or sold l)y other persons ; and when original with him, the owner of such mark will be protected by the courts in its exclu- sive use, but only so far as it serves to indicate the origin and ownership of the goods to which it is attached, to the exclusion of such symbols, figures :'m'- Okigix and Owneksiiit'. 265 and combination of woi'ds wliifh may be inlerblend- ed with it, indicating tlieir name, kind or ([nality. Held, tliat wliere the allei^ed indtation by dei'end- ants consisted ol' a inctuie and label, which were the same as in plaintiitV allt\u- Cal. m. § 1^)'6. A trademark adopted by a manufacturer or merchant for his goods, to be clothed with the attributes of property entitling the ai)pro[)riatoi' to protection in its exclusive use nuist, l-y word, letter, ligure ov symbol, designate the ti'ue origin or OAvnership of the goods. When any mark, symbol or device is used merely to indicate the name, ipiality, style, or size of an article, it can not be protected as a trademark. 18(58, ^^nprcini'. CI. of Co)ui., Boardmtin /;. Meriden Britannia Co., 85 Coiut. 402. i? ITA. A n"'ne can only be protected as a trade- mark when it is used merely as indicating the true origin and ownership of the article oifered for sale, but never when it is used to designate the article itself, and has become by adoption and iis(^ irs proper appellation. 18(51), PliUadtlpliki CI. (f Com. Pleas, Pa., Ferguson v. Davol Mills, 1 Phlla. 258 ; S. (J., 2 lirtw.^. 814. ^ 755. No property can be accpiired in words, marks or devices wJuch do not denote tlie goods o/ property or place of business of a person, but oid\ the kind or quality of the article in which he deals, Ibid. : i I ^1 1 1 I 1 . 1 i i . % '■ 1 li 2GG OllIOIN^ AXD OWNEUSIIIP. hi 1 § 7.")(). It is r(n]nisift' tlint the device or symbol should ixmIoiiu f lie odicc oI" a linger board and indi- cate the name and ad(h'ess of the manufacturer, to invest it with the attributes and entitle it to the l)r()(ection of a trach'niarlv. //>/>/. ^ 7.")7. The l)ill charged that the com])iainants are llie nianufactuicrs of uoods known as silesias or bleacheil and dyed cotton twiilings ; tliat many years a,i;(>. by i^'reat outlay of timt^ and money, and l)y imi>roved machineiy, «!c(\, they succeeded in l)roducinii' tlie manufactured article in qu(»sti(m ; and that more than thirty years as^o they devised and have ever since nsed a cej-tain trademark and nauK^ for the said uoods, whi(?li consists of a circu- lar label with the letter "K"' in the centre, which letter is suri'ounded by plain lines and oi'namtMital tracings extendinLi; outwaid from the centie and liavini;' nothing written oi' i)rinted upon it excei)t, a little above the top of the letter "K,"' in an open space between two of the ciriudar lines, the piinted letters "'So.'' and at the bottom of the same the letters ''Yds." That one of said labels is i)laced on every piece of goods manufactured and I'oi'warded to market bv them, and by long nse this mark lias become identilied with the said goods, and that the goods have come to be known in the markets of the woild and to the trade everywhere by the said labels or traih^marks, and are known and called by the name of the " K" silesias. That the defenchmts are engaged in the manid'actnre and sale of goods similar in a])pearance, but inferior in quality to theirs, put up in pieces and covered with wrap- jiers similar to those of complainants, and that defendants affix npon one end ol" each piece an imitation copy and counterfeit of said label or OHKIIN AM) OU'NF.nSHIP. 207 tracleniurk, wliereby defeiulants iiro (l«'fi'iiud«'(l out of their jn'olits. Tlx? (lelVMuhints denied the I'lMiid cl'iMi'ued, and n^^sei'ted liijit tlie jtlaintilVs' device did nol constitute a tiadeniaik such as tlw-f hiw will ]>rotect. /njtturlion rrftt.scd^ on tlu^ ground thai th<' alleged ti'a(h'niai'k lias no name, words, signs, or luaiks hy Avlil<'h in any possible manner or degree the origin or ownei'shii) ol' comi)lainants' gooloyed as a tiadeinark and tlie exclusivt? us(; of it b(» entitled to legal protection. As was said in tin; Avell consideied cas<; of Anioskeag Manul'a.ctuiing Company i\ Spear, '"the owner (jf an oiiginal tiade'- nuu'k has an undoubted right to be jji'otected in the exclusive use ol' all the niai'ks, forms, or sym- bols that were a])[)i'opriated as (h'signaling tlui true origin or ownership of th(^ article oi- fabric to which they ai'e aflixed, but he had no right to tlu^ exclu- sive use of any words, lettei's, ligures, or symbols, Avhich have no relation to the oiigin or ownejship of the goods, but ai'(^ only meant to indicate theii- names or qualities. ]Ie has no light to ai)i)roi)riate a sign or a symbol, which fiom the natuie of the fact it is used to signify, others may emi)loy with equal truth, and theiefiu't; have an e(]ual right to emi)loy for the same pur])ose." 1871, U. N. *SV/,- lyrcme CY., Delaware & Hudson Canal Comi)any i\ Clark, 18 Walkfce, 311. ^ 7^0. The trademark must, either l)y itself or by association, point distinctively to the origin or '1 M-V !l. 268 Origin and Owxeksiiip. it\: tJ"! '! ownership of the niticles to whi<.'h it is applied. The reason of this is tluit unless it does, neither can he who first adopted it be injured l)y any ai)pro- priation or imitation of it by {»thers, nor can the l)ubli('. be deceived. The lirst appro[)riator of a name oi* device pointing to liis ownership, or whicli, by being associated Avith articles of ti'ade, has ac(piired an understood reference to the originator or manufacturer of tlie articles, is injured whenever another adopts the same name or device foi* similar articles, because said adoption is in effect rejjresent- ing falsely that the i^'oductions of the latter are those of the former. Thus the custom und advan- tages to which the enterprise and skill of the first appr()X)riator had given him a just right, are abstracted for another's use, and this is done by deceiving the public, by inducing the public to pur- chase the goods and manufactures of one person supposing them to be those of another. The trade- mai'k must therefore be distinctive in its original signification, pointing to the origin of the article, or it must have become such by association. I/)id. § 700. The petitioners' trademark consisted of the words '-1847, liogers Bros. A. 1." The Rogei's brotliers superintended the petitioners' spoon and fork manufactorv, directed as to the style and quality of f ach goods, upon which said tradmark was placed, and had the general supervisicm of the manufacturing and sale thereof. The petitioners furnished all the capital, power and machinery, em- ployed and paid laboreis, and controlled the sale and disposition of the goods manufactuivd. The respondents contended that said trademark did not indicate the true origin of the goods, J/dd, that the represeutation that the Rogers biothers were ■!^'( Pakties. 200 the nianufjirturors. was true in a certain sense, but lliat tlio iK'tilioners were, in anollier sense, the niannfaehii(Ms. ''Like all othei' syin1)()]s and de- vices used as tradeniarlcs, its import was nol at lirst ])erliaps lully understood, The effect, as well as the value oi' a tradeniarlc, is llic Avorlc ol" time and exp(3rience. This probably was no exc<»pIion to the ruh». However this may be, it seems to have been well understood by tlie trade at the date of this petition, that goods beai-ing that stamp were manufactured by the petitioners." Held,, that the trademark snlliciently indicated the origin and ownership '^^' the goods. 1872, i-'-^uprcme Ct. of Errors, Conn., Meriden Britannia Company v. Parker, 39 Conn. 450. ■i' ■»■'•, I , ,'.1 PARTIES. § 70,"). The plaintiff and another person, who carried on distinct trades at different places of business, had derived from a common ])red(H'essor in their I'espective bnsinesses, the right to use the name of Dent as a trademark. The defendants having iniVinged this right : Held, on demnrrer, that the plaint Jf, wilhont averring special damage, might sue ahnui for an injnnction and for the d<^- livery up of th(3 articles so marked to have the name erased. Ihld, also, that he miglit sue alone for an account of pi'olitsmade l)y the defenihint out of articles so marked, and for payment to the ])lain- tiff of such ])art of snch proiits as the ])laintiif shonld be entitled to. 18(51, Before V. C. Wood, Dent ?;. Turpin, Tucker ??. Turpin, 2 J. & IT. 189 ; I'^A 270 Parties. S. C, 30 Lcno J. R. {N. f^.) Ch. 40.-): S. C, 7 Jurist {N. .Sf.) 073 ; S. C, 4 L. T. R. {N. .S'.) 037. % 700. Two persons, sons of tlie one who liacl originated the nianufactnre of certain toliacco pipes and designated tlieni as " ^ontliorn's Brosely Pijies," on tlie death of tlieir fatliei', niannfactiired at Brosely, l)nt at separate establishments and for their sei)arate benefit, pipes of a like character. One of the brothers institnted a suit to restrain the use of this trademark, the other declining to join in such suit, lldd, that the one brother might alone iile a bill for an injunction and an account. 1805, Before V. C. Wood, Southorn «. Reynolds, 12 Law T. R. {^^. S.) 75. § 707. It is unnecessary in a petition for an in- junction brought by one who liar, the sole interest in the trademark, to join as a paity a silent partner in the business whose existence is unknown to the public. 180."), Sf/preme Ct. of Conn.^ Bradley g. Norton, 33 Conn. 157. § 708. When the manufacturer of goods wrong- fully stamped with the trademark of the petitioner conducted the business through an agent, who, with his knowledge and consent, Avas held up by his principal to the public as the proprietor, and as far as the public could reasonably judge, was the proprietor : Held, that an injunction against the farther use of the trademark should be granted in an action to which the i^rincijjal was not made a party. Ibid. § 70!). In an action to enjoin the violation of a trademark, persons who are not the publishers or makers of the infringing article, and who are en- gaged as the vendors thereof, may be joined as de- fendants with the former. The acts of both parties PaPvTNEIISIITP. 271 PARTNERSHIP. \ n are to be regarded as kindred, nnd botli ■wrong-doers may be joined in on(^ action. It is enongli to snp- port an injunction against s(3veral persons, that par- ticular acts of fraud, kindred in diameter, are cliarged against them. 1807, X. Y. ('oin. PIcos, -S'. T., ilatseil i\ Flanagan, 2 Abh. Pr. (.Y. .s'. ) 4.V.). § 770. In a suit to enjoin the use of a corijoi-ate name, the corporation whose name is alh'ged to l)e wrongfully used must be a party plaintilf or de- fendant, but if such corporation refuse to bring such suit upon request, its bondholder or creditor may do so and make such corporation a party de- fendant. 1870, U. S. Circuit CL Newby v. Ore- gon Central R. R. Co., 1 Dead?/, 009. See also §§ 809, 820. i: 1;';: I; § 780. Injunction to restrain surviving partners from using the name of a deceased partner in the firm of the trade refused. The Lord Chancellor said that the use of the testator's name could not subject his name to the trade debts, and that the fraud upon the public was no ground for the plain- tiff's (the executor of the deceased) coming into the court of chancery. 1791, Before the Lord Chan- cellor, Webster v. Webster, 3 ^wanston, 490. § 781. A and B carried on the business of pen- cil-makers, under the tirm name of A & L. A died and B carried on the business under the firm of B & Co., successors to A & L. A's executor having commenced the same bu&iness, under tlie firm of A & L, an injunction was granted to restrain him from using that tirm name until the right should n - i' i 1 ,1 ■1 ;'4 ( ; ■ !* t iJ ?.'• •. ■ fe 272 PARTNEIlSniP. liave been tried at law. 3 83."), Vice C7f. f?// a dwell, Lewis r. Laiif^'don, 7 Simon, 421. ^ 782. Altlioii^-U the personal re presenta fives of a deceased ])arhier may have a ri^lit to jKirticipate in the j^i-operfy in a tia(hMnark owned by tlie lirm, the siii'vivinu- partner lias a snflieient intei'est in the marlv to entitle hini to iile a bill to enjoin its use by another. ]84(), Vice CJiancellof s 67., Hine i\ Lart, U)JurifiU bX'^ § 78;]. 11' two parties are concerned in getting np a medicine, both c(mtril)uting to the conqxmnd as a partiHM'slii]) action, neitlier can claim the exchi- siv<^ ns(^ of tlie name or trademark used in connec- tion thei-ewith. 18,")!, Coft'een v. Brunton, H Mc- Lcan, 2:)G{IT. S. Circuit Ct., Ind.). % 784. A former copartner may be restrained from continuing the use of the signs containing the old lii'in name, without snflieient alterations or ad- ditions to give distinct notice of a change in the firm. And the absolute refusal of the defendant, befoi-e suit brought, to remove such signs, dispenses with any ol)ligation on the part of the plaintiif to contribute to the exjoense of the removal, or from allowing I'easonable time therefor. 18,") 7, N. Y. f^iiprciiic (V. ^'. T., Peterson 'i\ Humphrey, 4 Abb. Pr. 394. ^ 78."). A surviving partner is not entitled, with- out the consent of the representatives of the de- ceased i)artner. to use the lirm name upon goods manufactured by himself. It seem.^, that ii iirm nanus which the lirm has rendered valuable, is, like other assets of the partnershij), held in common after the death of one partner, by the survivor and the deceased's I'epresentatives. ]8,')8, i\". T. Super- ior CL S. T., Fenn i\ Bolles, 7 Abb. Pr. 202. 'v If ^ PARTXEnSTTTP. 27:3 § 780. Hobart IVnn had Itcon in pnitnorslii]) wirli tlie (lef(^ii(lniit IjoIIcs in tli(> niaiiiifnctiii'c (»1' faiu'ets, undor tlie li;ni imnic of II(»l)aif I'\'iin A: Co. In an action l>ron!i,'ht ))y tlio adniinistrniiix of lli(» <'sfafo of Fenn, dd, to sftllc the i)aitn(M'sliij) all'aii-s, on applicalion oi" iIk^ plaint ill", llic dcfcndanr was enjoinod, nntil the hearing, from nsini:' th:' name of Hohai't Frnn, or Hobart l'\Min A: Co.. n]»on any lancets inannfactnrcd by tlic (h'fenchnit. Ibid. i 787. A, ]) and (J cai'iicd on the l)nsiii(>ss of stnft' nuM'chants at X under tli(» lirni of A A: Co. A sold to W and C hi;? sliai'e in tiio Inisiness. and the i^-ood will thereof, and B and C (with A's assent) an- nounced themselves to the world as " I> it C, late A & Co." Some time afterwaids A ivsumed tlie bnsiness of a stnlF mercliant at X with othei' i)er- sons, nndei' tln^ name of "A & Co." and nnd(!r (urcnmstances sliowing" it to be his intention to i'e])i'esent to the imblic, that his was the old lii'm. The coni't 'granted an interim injnnction I'estraininu^ A from carryino; on the business of a stnif nKM'ciiant atoi'in the iin!nedial:e neiu'hborhood of X un(hM' tlie lirm of "A & Co." or from otherwise lioldini^- him- seli out as tlie successor of the old iirm. ,18r)i), Vive Vh. Woo(l\^ rv., Chnrton?;. Dou^-las, rulurl.^f {N. K) 887: S. C, 1 //. y. Jo/r/h'i. 174; S. C. 7 IF. JL 385. >j 788. The d(^f(>ndant was one of the j)ro])i'ietors and the editor of a weekly periodical called "House- hold Words." Ilclfl, on a dissoluti(m of the })art- niM'ship, that he was not justilied in advertisinjjj that the publication would be discontinued ; for that the ri,!j;ht to use the name must lie sold for the benefit of all the partners, it beinu; jiart of the part- nership assets. But hchl that he miglit advertise the discontinuance of the i)ublication as re^i^ards 18 m' n 1' I! ^: 274 Paktnersiiip. himself. 1859, lioUs CL, BviuUniry r. Dickens, 27 Jieara/i, M. § 78'.), On tlio dissolution of nnd windinu; uj) of n ]>jntn<'rslii]), where a valiiMhle jKirt of the ]):irtiier- siiip consists in the ,ij;ood-will of the l)iisiiu\ss cariitvl on by file ])artners (piiblisliini;" a newspaiuM) such value, as much as the furniture of the olliciMtrdrhts due to the lirni, must he ]>rote(!te(l and disp(He(l of foi' the beiK'lit of the creditors of the linn, or of I he partners jointly. \Vher(^ there is a dissolution of jiartnershi)) in fln^ business of pid)lishini. r., Dayton i\ \Vilkes, 17 How. Pr. olO. § 700. Where it a])peare(l that the defendants, in having ccmnected themselves with the ])laintin's in the business of manufacturiiiij:, advertising and selling pills by a particular name, or designation, and having induced the plaintiffs to expend large sums of money in advertising, &(;., the ])ills so manufactured and then suddenlv and without notice, in an unjnstiliable manner, and apparently from improi^er motives, severed their connection with the plaintiffs and set up the same busini^ss for themselves: Held, that an injunction should be granted, restraining the defendants from using the name or designation ("Dr. Morse's Indian Root Pills") used by the plaintiffs, in designating, mark- P.\UTNKiisnn'. 275 r 'If i in^, labellrifif, advcrtisiiii^ or scllin^^ I ho pills luanii- fachiiod by llic ]>l!iiiitiirs ; iiiid also icstiaiiiin.u; the (l(>r(Mi(laiils IVoni iisini^ cither of tlic lalx'ls oi* tiinh^- inaiks ol' th«> ])laliit ill's, or siny other labels or Irade- iiiaiUs made so siiiiilai* b> (he plaiiitlU's' as would be calculated to de(M!iv(^ th(i public. ISfJO, JV. V. ^iij>reinc i'l. S. 7\, Coinstock f\ White, US //o/r,. Pr. 421. ^ 71)1. Tile supreuici judicial (rourt of Afassachu- s<'tts lias Tio power to enjoin the us(M)r a tiaxh;- iiitiik wlucli consists in ])art of llie nain(! of one with wJKUU some of the defendants weie formerly associated as partners, and whii^h was invented, adopted and used by tlnmi durin;^- his lif<'lim<;, Avithout objection on Ins part, and has been us(mI by them ever since; buton the appli<^ation of his exec- utors, the court lias power, un(h!r Gen. Sis. c. rA), ^ 4, to restrain the use of Ids name in their busi- ness and iirm without liavinii^ obtained his writt(;n consent in Ins lifetime, or that of Ins excH^utors since his d I -I 270 Pautneksiiip. parfncrsliii) .stock iif Ji valuntion, tho vnliio of Mi(> :}, PuJ'ort' Lord Vli. W(.slhiirf/ on c^i, )(■:', I!:il] .-. niu'i'ow.;, ',V.\ Lair .lour. II. U'V. **>'.) (Vi. 204; S. ('., 1) Linr T. K^X. K) r^'A ; S. C, I -J \V(H-/f/ IL \V2-2 ; S. (\, 10 Jiirisl {I\\ K) iM ; wvrvs- in-; S.V., .///ri.s-/ (X X.) 48:5; S. 0., 11 llVr/-/./ y/. Cy2r> ; S. (\, S /yr^//« 7V///r.s' ( .V. .S'.) 227 ; S. ()., 'k Law ./. /<». (X S.) ('/,. :)4S ; S. (,'., 1 N. U. MW. ^ 71)4. Ijy ai'ticU's of copnitnoiship it was ])ro- vidcd, that if eillici- of the partiKU's wiiould die bof()i(^ llm cxpindioii of tlu? (loiKirtiuM'sliip, tlie siu- vi villi;' [»artner sliould have tlu; option of takint? to himself all the stock helon^iiiii; thereto on paying to (he executors of the party dying, th(; valine of his sliai(\ The ilim weie in the habit of n.nng as a trademark the initial hitters of tlie names of the oi'iginnl miinufacturers of the articles sold ; but Ihe imirk h:id ceased to be a re[)resentation that tlie ar- ticles on which it was impressed were the mnnufac- ture of (he persons whose initials it bore, and had come to be a mere bi'jind, denoting (fx(^ (juality of the Jirticles. Jlcld^ reversing the decision of the MastcM'of the Rolls, thnt the exclusive right to the trademark behmged to the partnership as piirt of its j)roi>eity, and must be included in the valuation. /hid. % 7!!."). Tpon the formntion of a partnership with a peison entitled to (he beiK^lit of a ti'adc^marl;, in the absence of exi)ress provision in rehition to it, it becomes an asset of the partnership. 18154, Ch. (U. of ApiK':tl, Bury o. Bedford, 10 Jicri.sl {X. A) 5015 ; S. C, ;j;J Law Jonr. U. \X. R) Ch. 405; S. C, 1:2 WeeJdf/ II. 720 ; S. C, 10 Law Times {X. IS.) 470 ; S. C 4 X. n. 181) : reversing S. C, 11 Wcddy li. -I' m Pai:tni:i:siiip 277 07:$; S. C, 8 Law 7V///r.v (.V. S.) S17: S. ( ;{2 Law Jour. It {N. S.) r//. 711 ; S. ('., 1) Jnr/.s/ (JV. s.)i)r)(\; s. c, I X A\ r.. ^ 7!)(!. rpo!! tlic (l('('!';ist' (if one piil'tlKM'. a (!(»- crcc! wjis iiindc I'oi* (lie sale of ili<> l)iisiii<>ss as m ^o- ]i\ sMi-vivinu; jtartncr, William .lohiison. had still a rii>hr to curry on the same hnsiiios in llic satne town in his own name. On appeal, it was //('/tf that tlie words ''with the exclusive li^ht in the [)n!'chaser to hold himsell' out as llie snc'cessor to the said linn of S. .lohnson «N: Sons." slion striclsen out, and these words added: "'\ Id I) lie sal(^ will u'ive to the purchaser holli the prcmiscv-; in wliich the business lias hwm carried on and the bcn- eiit to be derived from tli(» habits of the <'nstom"rs resortiui;' to such pi-emises, but it will not prevent any of the ])ersons liei-ctofore intei't'sted in I he Ixis- iness, or those w!iomay i'e[)resent them, fromcarry- ini;' on the like business." 18(54, AVv/Av Courl, Johnson /'. TIelh'ly, \\\ Brm\ ():{ ; S. ('., on api)eal, 2 l)e <}(%v. ./. cl- 440 ^707. On the dissolution of a partnershij) each ])aitnei' is, in tin* absence of any special aui-eement, entitled to trath-i under the name or style of the old linn. ISC)."), Rolh (UmrL lianks (ribson, :M ll((i\ nOd; S. C, i;J Wrrhhj R. lOl-i; S. C, IH Law .L U. (X .v.) i'li. :^\V2. % 798. The plaintilFs husl)and, B, and the de- fendant for nrany years carried on business under the style of B & Co. The plaintilf, on the death of her husband, continued the partnei'shij) in pwrsu \ i\ 27S Partnership. M ance of a proviso in the articles of partnership. Tlie ])hiintiff and defendant afterwards dissolved part- nership by nintnal consent, and no stipulation was made with respect to the nse of the name of the firm. The defendant continued to trade under tiie style of B & Co., while the plaintiff traded in her own name, B. There was evidence to show that customers of the plaintiff had been deceived by tlie use of the name of the old firm, and had sent to the defendant orders intended for the plaintiff ; but there was no evidence of fraud on the part of the defendant. I/eld, that the plaintiff was not enti- tled to an injunction to restrain the defendant from trading as B & Co. Ibid. § 799. A partnership deed witnessed that the lands, mills, and machinery, which theretoiore had belonged exclusively to M (one partner) should re- main his sole property, subject during the partner- ship to be used for all partnership purposes ; and l)rovided that the retiring j^artners should, at the end of the partnership, be paid, by M's promissoiy notes, the value of their respective shares in the partnership stock and capital. No mention was made therein of the good will, name of the firm, or trademarks. After eight years the partnership was dissolved. The outgoing partners insisted that M should pay them for the name, good will, and trademarks, at a valuation. Held, that M was en- titled to the name, &c., upon paying the outgoing partners pursuant to the deed ; but without theii- being separately valued. The petition, praying im injunction to restrain M from using the name &c., was dismissed with costs. Dicks(>n ti. M' Master, (Affirmed with the court of C. A., with this variation, that in taking the account, the good will W ) ■■ Partxeiisiiip. 270 should be valued separately.) Gamble's Index, y8;J; S. C, 11 /. Jar. (xT. >S\) 202. § 800. R. Scott and the plaintiff, W. Scott, carried on business at N. and G. in partnership, under the linn of R. and \\ . Scott. By an agiee- ment for dissolution it was agreed that one of the XJartners should remain at N. but there was no stipulation by which either party bound himself not to continue the business, but only that thev would not carry it on together. There was no dispo- sition of the good will to the partner who remained at N. Neither party was to use the name of the firm except so far as might be necessary in winding up the partnership affairs. Shortly after the date of the agreement, VV. S(!ott retired from the busi- ness and set up business for liin)self at T near N. The inscription used by the lirm over the door of their place of business at G had been '' R. and \V. Scott, of N." R. Scott made over his business at N and (x to the defendants, who, at their premises at (i made use of the inscription "Scott and Nixon, late R. and VV. Scott, of JS." On the appli- cation of the plaintiff', the court granted an injunc- tion restraining them from using such an inscrip- tion, inasmuch as it amounted to a representation that they had succeeded to the business of the late lirm. Held Jurlker^ that the plaintiff' need not prove special damage. 1860, Vice Ch. Wood' a Cl.^ Scott V. Scott, 10 L. T. R. (yV. *V.) 143. § 801. Fay, J, R and T, as copartners, began the business of manufacturing machinery at Wor- cester, in 18i)2, under the lirm name of F k, Co. ; and Fay, J, R and C, as copartners, began a similar business at Cincinnati in 1853, under the same lirm name, using it as thy liavin^u; an account taken, 1870, Mf/. VI. <>J /l/;/-'rf//.v, Hton(;')reak(M' r. Stonebi'i-akei'. WW Md. 2r right to use the iirni name of *' E. 11. lleeves tt Co.." under which the business of the partnei'shi[) had pi'eviously be(}n conducted, as a, label on their goods. or to advertisi.' themselves as the successors of such iirm. 1871, X. V. .^i/jwrior (H. K 7'., Reeves r. Denicke, 12 Ahfj. Pr. (X X.) t)2 ; ciiticising and disap})roving Peterson i\ Humphrey. ,4 804. That there may be and is "properly" in a nam(> seems to be conceded, atid the names ol' news- pa])eis. hotc^ls and places of amusement aic in- stances ol" this species of propiM'ty. Such names nray be dealt with as pro])erty, and are the subject ol' sale and transfer, and are (»l"ten of gj'eat value. Where the name under which a l>usiness of aiiv !>/'!( h>i It nature is carried on, is that of the pro^ would lecpure clear and express woids of conxcy- ance to secnn^ a transfer to a [)urchaser of the right to continue the use of such name, for his cojive- nience or pi'()lit. When, therefoi'e, tne i>ame and style of a mercantile iirm is that of the princijial, and most resi)onsil)le and iniluential mend)er of the pai'tnership, the mere transfer of the interests of \lll ,•.«(., ms 'M m i> •■ 1 282 Partnership. such member, in the partnership property, will not convey the iKirtnership name to the purchaser, or give to him the right to continue its use against the consent of such person. Ibid. § 80,'). In the sense of a very common practice of persons who have acquired the property of an old and well established mercantile firm, of using the term "successors to'' such firm, there maybe an assumed right to so continue the use of such hi'm name. But sucli common practice does not give the right. It can be acquired only by a grant from the owner, and when such grant has not been made there is no succession to it. Ibid. § 80G. It is a very common mistake to suppose that a purchaser of the property of a mercantile hrm is the "successor" of the linn. lie succeeds to the property, to all that is conveyed to him, but to nothing more ; and he has no more right to describe himself as the successor of such firm because he has purchased its property, than he has to designate himself the successor of a manufactur- ing companj' from which he had casually purchased some goods. Ibid. § 807. One Daniel Simmons, who, from 1842, had been engaged in the business of making axes, took the plaintiffs into partnership with him in 1848, under the name of "D. Simmons & Co." which they used on their stamps and labels. The lirm continued until Simmons's death in 1800, witli- out any change in the trademark. In October, 1801, plaint ill's made an arrangement with Jonas Sim- mons, the legatee t)f Daniel Simmons, and with the executors of the latter, under which they continued the use of the name "D. Simmons & Co." as their trademark. Held,, that the plaintiffs are entitled iir Partxehsiiip. 283 to use the trademark "D. Simmons & Co.," and that Jonas Simmons did not have (at least after October, 1861) any right to use tliat name. 1872, IV. Y. Supreme Ct. Circuit, Weed c. Peterson, 12 Abb. Pr. {N. S.) 178. § 808. On a dissolution of partnership between S and H, all the property of the partnership was bought by 11, and paid for on a valuation, but he did not pay for good will, nouiinAiliiu. S was liv- ing, and not a bankrupt. Held, that II was not entitled to continue to use the name of S, in the style of the firm. 1872, V. Ch. Wood's Ct., Scott v. Rowland, 26 Law Times R. ^\ K 391 ; S. C, 20 WeeJdf/ 11. 508 § 809. A entered into a copartnership with B, soon after dissolved it and formed with C a part- nership nnder the name of A & Company. Two years afterwards A died, and his administrator conveyed to B the right to use A's name in his business. Held, that the administrator and B might join in a bill in equity under the Gen. Sts. c. 56, § 3, to restrain C from continuing to do business under the name of A & Company. 1872, Mass. Sup. Jud'l Ct., Morse v. Hall, 109 Mass. 409. § 810. A trader, who has been a manager or a partner in a firm of established reputation, has a right, on setting up an independent business, to make known to the public that he has been with that fu'm ; but he must take care not to do so in a way calcu- lated to lead the i)ublic to believe that he is carrying on the business of the old iirm, or is in any way con- nected with it. 1872, Ch. Ct. of Appeal, L. J. ./., llookham v. Pottage, L. 11. 8 Ch. 91 ; S. C, 27 L. T. R. {N. S.) rm ; S. C, 21 W. R. 47; affirming S. C, 20 L. T. (iY. S.) 755, and S. C, 20 IF. i?. 720. } ■ . ^!i- 8« ,<,''•■ ■ U 'S 284 PAUTNEIiSillP. »!' ! ^/, <^ cSll. TIk; plaiutifF. an old (3sLiiblishod tailor, t<)o!v (he (Icl'oiidaiil, wlio had been liis rorciiniin, inio partiicishi]), and llic business was eairicd on under I lie name oi' II ct P. The partnersliip was al'terwai'ds dissolved bv u decree of the court, in wliicli it was provided liiat the busiue-;s of the part- nersjiip shoidd beloufj,' to tho i)laiuti[f. The plain- till' accordingly kei»t up tlie shop under the nani<; of II '^ Co. iSubsecjuenrly the del'tnidant set up u ;-h(' > ' V a few doors I't'om the plaintiifs shop, and pni ; ' ■{ ^ "i" tho door the woids "P, I'roni II & P." Ild'd (,al;iiming the doCi'ee of Mai inn, V. C). that liaving r(\gai'l U) the niann<4' in which the names were p.'nte,! up, tli. if not needed foi- j);tyment of hcijncsrs, unless nil liis fi'ustees (one of ^vliom should Mhwiys he ;i mrMiibci' of tlie iirni) sliould de(>ni if projH>r to withdrnw sneli real jind personnl propei'ty ; and he nnmed tli(> plnin- tiifs and the defendant exeeutoi's and tiiistcnvs. The def(Mi(huit continncd thi^ business under the same name, lirst alone and then with i)artners, usinii; the firm name as a trademark, until K^'O?, when the partnershij) was dissolved. In 18(iS, the executors and trustees sold tin* manufactory with the fixtures and utensils to L. //r/r/, that the plaintilTs c.ould not maintain a bill in ecpiily to re- strain the defen(hnit f om usinu' th(^ name " E. A. and \V. Winehestei'," as a trademark, and to eom- ])el him to join in an a£2:ieement to transfer to L the I'i^ht to us(- it. 187-J, S//j). .}u(TL CV. A/rfss., Sohiei' r. Johnson. Ill .V'/.v.v. 2:38. ^ 81o. When a lirm under a e(mtraet with the ownei- has the right to the exclusive vise of a ti'ade- mai'k, and during the partnership one of the iirm enters into an agreement with tlu^ owner, Avhereby the previous contract is canceled and a new one matle, giving to such member the exclusiv(^ use of the trademai'k for a certain number of years, (m (!ertain conditions, and at the end of that tiu-m, the conditions having been performed, the sole and ex- clusive right and title to the traxh^mark: ILlfl, that uich [)artnertook and held the contract, and all the rights and interests given thereby, as trustee for th(^ firm. AVhen one ])artner, during the partner- ship, negotiates respecting, and obtains the exchi- ;Vr-i ^^1 I, 'X ■ m I'- ■ I? 286 Paktnp:rsiiip. 'I' I 'A- I sive use of a right in vvhicli the lirm was interested, lie will be declared to hold such use in trust for the lirm. IcS^n, N. Y. Superior Ct. G. T., Weston w. Ketcliani, ;39 N. Y. Super /or Ct. 54 ; and see S. C, 01 IIow. Pr. 45{). ^ 814. In the trademark case last above put, the other partners, after knowledge of the contract made by their copartner, expressed their disapprobation, but did not immediately resort to their legal rem- edy, tind notwithstanding the act of their copartner still continued the firm, and in its business used the trademark, and manufactured under it as before, and paid to the owners out of the firm's funds the sums stipulated to be paid ; yet it appearing that the copartner who procured the contract for his own benefit alone knew the secret of the maiiufacture, Held, a forced acquiescence, which would not sustain a finding of ratification. If they had moved in the matter adversely, they would, in asserting their remedy, not have possessed the knowledge by the use of Avhich the capital employed in the manufac- ture (all of which was contributed by them) might be made remunerative. Ibid. § 815. Although in the case last above put the defendant does not know the secret of the manu- facture, and was selling under the trademark an article different from that represented by it, yet (whatever may be the effect of these elements in other cases) no cause of action arises therefrom against him in favor of one who has no more right to the trademark than he has. Ibid. % 810. Defendant, survivor of the firm of Phelan «& Collender, on decease of his partner, purchased of his executors all the trademarks and the business of the old firm ; he continued the business, describ- Partnership, 287 ing himself as "11. W. Collondoi-, sucoossor to Phelan & Collender," and describing his billiai-d tal)l«»s as "Phelan & Collender' s Standard AnKM'ican Tables." Plaintiff, a son of said deceased, was ennagc^d in the same bnsinoss, and alk\i?ed that defendant by use of the words "successor to Phelan & Collender" and said description on billiard tables, was injuriuijj his business by inducing customers of the hite lirm, who would otherwise have dealt with plaintilf, but who had been misled by the use of such name, to deal in billiard tables with defendant. Ileld^ that i)lain- tiff' s right of action did not rest on his relation ship to his deceased father, nor upon any right or interest in the concerns of the late iirm, but solely on the ground that his name was Phelan, and that he was engaged in the business of manufacturing and selling billiard tables, and that his l)usiness was injured by the use of that name by defendant, in connection with his business : that anv other Phelan, who happened to be in the same business, would have the same legal right to enjoin the use of the na.me by defendant, and could maintain an action for that purpose if i)laintiflP could do so ; and that, as he did not allege that the defendant had used the name Phelan in such a way as to make it appear to be that of plaintiif himself, or had re- sorted to other artilice, to induce the belief that the establishment of defendant was the same as that of plaintiff, or to mislead customers to purchase of him imder the belief that they were buying of plaintiff, or were buying articles of lolaintilfs manufacture, he was not entitled to any injunction. 1875, N. Y. Supreme Ct. Q. T., Phelan /;. Collender, Ihrn, 244. § 817. A, C & Co. being the successors by pur- chase of Stillman & Co., woolen manufacturers, If ' i ..I I— ; 'U} Iw: 288 PAnrxKiisiiip Name— Patent. oontinuod to nso *' Still man ».*i: Co."" as a ( i adomark on llieii' tickot for f^'oods. Lali'Mcv, Slillnian, & Co. the le.s.s(M»s ol* a mill foi-nici'ly iiscfl by Slilhnan & Co., known bolli as the "Stillniau Mill," and as tli(3 "S(n-«Mith Day Mill,"" also used "Slilhnan A:. Co." as a tiadciiiai'k. On a petition for injunction, l)i'()U injunction conld not l)e granted. J/rlr/, Curtlier, that a mannl'actnier has llHM'ight to label his goods with his own name or that of his mill, if no I'i'auduleiit i)urpose is int(Mid<>d. 1870, S/f/jrr//ie Of. of II. /., Carmichael i\ Latimer, uiu-epcnted. j^ 818. Query. If the English practk'e of retain- ing a hrni name, when no original partner remains, is generally recognized in Ameiican law % Ibid. See nlso §§ 614, 767, 870. PARTNERSHIP NAME. See Partnership. PATENT. As to the nse of the word "Patent," see Mis- rep uksknt a tion. Patkxtee (Xamk of)— PLi:ADiNrj. i?SO HI As to the right to use the name of a pntentee, see Patextkp: (Name of). See also §§ 4, 32, 510. PATENTEE— NAME OF. .•■. i\ •Ii^ See Na:\[e. PERIODICALS. See PUBLICATIOT^S. PLAYS. See Publications. PLEADING. IS- § 820. D, the inventor of a medicine, employed P, a foreigner, residing abroad, to manufacture it for him tliere, and D sold it in England f(n' liis own sole.prolit. A label and seal denoting that tlie medicine was manufactured by P and sold l)v D, were affixed to each of the bottles in wliich it v;as sold. The defendants imitated the labels and seals, and D & P liled a bill for an injunction and an ac- count. Demurrer allowed on the ground that it did not appear that P had any interest in the labels and seals — the parties asking joint relief, not being entitled to joint relief. 1828, Jliffh Ct. of Chan- ctry, Delondre v. Shaw, 2 Sim. 237. 19 m ,'5. 200 pLKADrxr,. :|i ^ 8-Jl. Tlio di'diiration, ni'tor sratinii: tluit tlio plaiiitill's ])ivj)nr('(l, vended and sold. J'or piofit, ti CPi-fain medicines called ''Morrison's Univei'std Med icine."' wliicli lliey wei'c accisloim'd lo sell in lio\( ^vl•apl)ed n^) in [)ai)(M', avIucI) had tlio;-<' woi-ds printed Miereon, alle^-ed that (lie dcreiidanl. intend- in.ii: to injure tlie j)laintill's in the sah' of lh<'ir said nielislifd ;i hank by or niuhn' Mint name, and had ('stublNlh'd thf' said hank af ^^^rcaf ('V]>(Mis(s and caused the name to I'e }>nl)lislied and aiiixed on the otiices oT t!ie said haidv so that the same miiiht be seen and InIkkvii by the pid'He. and had (•anselaintiir //laintiil's, with their labels on the same, in Dutchess County, Xew York, and nowhere else ; and that the plaintiff fuliilled their part of said agreement, but that tlie d'^fendant, wrongfully in- tending to injure tlie plaintiffs in their business and rei)atation as seedsmen, tilled said empty s(^ed bags witli seeds of a poor (piality and sold oi' dis- posed of them, together with the said bags of seeds sold to him by the plaintiffs, at divers other places than in said Dutchess County, l)v reascm of which premises the plaintiff's had suffered damages to the extent of >^*i(K). Ilrld, that the contract for sale of said empty bags with the plaintillV labels thereon, for the purposes a foresaid, was against public policy and void, and that — as the considemtion is entire — a demurrer to said complaint was well taken. ]S.-)7, X. Y. Supreme CL, G. T., Bloss v. Bloomer, 23 Barb. 004. ^ 82."). In an action on the case, where the "w PLEADINa. 295) cleclaration allei^'ecl in .substance that the defendant, well knowing the plaintiffs' trade nuirk "•llouvr Williams Lon.ii; Clotii/' and tor the pur[)<)se and with the ellect of de(^eitfiilly passing' oif his own goods for tliose of the plaintiffs, did stain [) the words " lloger Williams'' npon cotton clorh not raanufactiii'ed by the plaintiif, and to his st'i'ious injury: /Ir/f?^ that undnr the rule that a ]).u'tial imitation of a trademark, if calculated to (Icceivc. will support an action, this is a suliicient aUcgiitiou of an invasion of the plaintiffs' rights. bSOo. >^ 820. A declaration alleged that the phiintiff was employed by the defendant to make certain articles, and that the defendant fi-jiuduiently directed the jdaintiff to i)lace on each of ihe said jirtich's a mark which was the trademark of one R : and that tlic defeinhint did so innix-entlv, ajid was thereby subjected to a clnuicery suit at the suit of H, which he had to pay a hirgc sum to coin[)romise. I [(hi, that as this suit coukl have been ju-osecutcd by \l successfully for an injuncti(m and an account, thcdeclarntion sh.twed a good cause of action. itSOl, (^iK'vii' -s Ihiich, Di.Kon i\ Fawcus, 7 .lin'isl, {X. S.) S'.).'); S. C, 30 &ffO J. R. {Q. B.) 137; S. C, I) nW/d// 7^.414; S. C, 3 Law Tliiie.s IL {X. S.) ;/. 037. ;^ &21. In an action Ijrought fo restrain the dcfen- huits fi'om infringing ])laintiJl's' titidemnrk and for -2, iV. Y. i^nperlar Ct. G. T., Gnillion r. Liiido. Bosk^ (505. § 828, Coinplainants alleii'ed that they are entitled to the sole and ex(^lnsive riii'lit to manufaetui'e and sell a cei-tain pi-eixn-ation known as l)i-, Sinmions' Liv(M' Ileii;ulalor or Medicine, and have acquired right theieto' by purchase; and that they have ex- pended laruv sums of money in manufacturinii: and advei'tisim!: it, bv whicii it lias ])ecome widelv known and justly celebrated lor the pur|X)ses it is intended to accomplish. And that they have ado[)ted ceitain ti'udemarks, in which their ])ack- ages are put up; and tliat tlie plaintiif in erroi- has couimenced to sell a i)reparation which he calls by nearly a similar name, and is puttinu' it np in ])ack- ages oT similar fonn and size, and that the general appearance and printed inchn'sements thereon, is inteiiih^d to take advantage of the reputation acquired by the reputation of Zeilen & Co., which they allege is a fraud upon their rights, &c. To which bill a demuri'er was tiled, which was over- ruled by the court. 7/c7c/, that as the demui'i-er aduiits (hat what was d(me, was done intentionallv to tak(! aatter be deterunned upon its merits. 1871, Siq^reme Ct. of da., Ellis v. Zeilen, 42 (id. 01. ij 821). A sale of a mineral spi'ing canies to the ])urcliaser the right to us(? the tiiulemai'k of the watci's : and in an acticm by the pur<'haser to enjoin third persons from infringing, tlie complaint need Pleading. 295 not allege any express assignment of the trademark. 1871, JV. Y. 67. Aj>/>ro}.s\ Congress &' Empire Spring Company v. High llock Congress S[)iing Company, 4.") X F. '2'.)\ ; S. C. 10 Abb. Pr. {X. .^'.) ^48; reversing S. C, o7 Bdih. :>:>(}. ^830. In an action Tor daninges for iirfringemenr ol' a tindemark, :in answer deiivim!,' knuwledu'e of l)]aintift"s ownership of the trademai'k, and any in tenlion fo do \vi2. In an nction to restrain (he violation of a tradeniai'k, a eounter-claini on the i)art of defend- ant ulle.n'ing that he is himself the owner of the name, that phiintill' has Avrongfully used it, and asking that plaintilT be restrained from such use, and be required to ptiy damages for the infringe- ment t)f tlie defendant's ri^^l.t thereto, is i)roper ; and iC the allegations are sustained, defendant is entitled to tlie relief sought. It is a cause of action connected with the subject of the action set foi'th in the complaint, and so falls within the definition of a counter-claim, as given by the Code of Procedure (§ loO). 1874, iY. T. Com. of App., Glen & Hall Mfg. Co. v. Hall, 01 N. Y. 220 ; rev'g S. C, 6 Laiis. 158. ' ■ 'i^ : r • 1 t ' ; it ;: 1 ■ '\ fi. _ 'W'' i I:: PRACTICE. § 840. It ftee?:is, that on a motion to dissolve an injunction restraining the use of a trademark, gi'anted on the complaint and affidavits, the i)lain- tiffs !ire not tit lil)erty to read new affidavits to sup- port the idlegatious in the complaint. Per Woou- uui'F. J. Whether in a case wherein the defense rest upon new matter set up in the answer, in avoid- ance of the facts charged in the complaint, but admitting tlu^ clmrges to be true, the answer may be i'egard(>d as itself an affidavit, so as to permit counter aflidavits by the plaintilfs il Qiiere. 18."}.li, K. Y. Coiiimo)! Pleas, G. 71, Merrimack Mfg. Co. 0, Garner, 4 E. 1). Sniltlu 387 ; S. C, 2 Abb. Pr. 318. J" Practice. 297 § 841. Wliei'e a prelimiiuiry injunction is dis- solved on the liTonnd tliut tlie plaintiifs legal title to his trndeniaik is doubtful, it is proper to impose, as a condition to such dissolution, that the dei'end- tmts enter into an undertaking to keep an account ot* their sales and render the same when required by the order of a ccmipetent court. Tlie plaintiil' to esiablisli in the action his legal title, if he can, as well as any other grounds of relief, upon tlu3 trial. The undertaking to be considered as security for keeping the account and rendering it. 18,37, jY. Y. t^aperlor Gt. 8. T.^ Fetridge v. Merchant, 4 Abb. Pr. 1.5G. ij 842. If a party is examined as a witness, his refusal to answer a cross (pU:;stion, pertinent to the issue, is liis own act. It must entail upon him tlie loss of his testimony in his own favor, or may sub- ject him to the usual conipulsory process lo compel a witness to testify if his adversary require it. 1800, N. Y. t^iriH^rior CL G. T., Burnett r. Phalon, 11 Abb. Pr. 157 ; S. C, IJ) How. Pr. r)?>(). ^ 84)]. Whether a referee appointed merely to computi^ and I'eport the damages susttiined by the l)laiiitiil's l)y leason of the vioiatiiiu of their trade- mark, admitting he has tlie power to strike out the plaintiifs testimony in chief, for refusing to answer a pertinent question, on cross examination, has the power to issue a compulsoi-y process to require the plaintiif to answer. (J/zcrc / Ibhl. i 844. The better practice is for the referee to give a certilicate setting forth the (piestions, with the objections in detail of tlie witness to answering them, and his decision upon them, that the court may pass upon the remedy. Ibid. % 845. Where, however, the referee in sucli case \- fl-; ". FV;-? ! ti ■ji: #. i ' '^HSi 298 Practice. struck out the plaintiiFs testimony as to damages, for liis rel'iisal to answer a pertinent question on his cross examination, nnd then chxsed the case, and thereby shut out all testimony on tliat question, wliicli miulii liave formed a, general exception to the rei)ort : I/c/^/, that iin ex(;epti(m to this decision brought up the case to be I'eguhirly XJassed upon by the court. Ibid. § 84(3. In tradenrark cases, under tlie Code of Procedure, tlie judgment cannot direct the damages to be ass(\ss(;'d by a sheiilf s Jury. The proofs must be taken by tlie court or referee. 180-2, iY. Y. Sa- pen'or C(. G. 71, Guilhon v. Lindo, 9 Bos/d. GO;"). § 847. AVliere in an action brouglit to enjoin tlie use by defendant of pla.intiff's trademark and for damages, judgment is ordered for frivolousness of defendant's i>leadings, the judgment should be either iu the i'oiui pi-oper where nothing is left to be ascertained but the amount of damages, or it should simply adjudge the pleading fi'ivolous and leave the plaintilV to apply to the court for the relief he seeks. 7 />/>/. ^ 848. The plaintifl' in an action is entitled to an injunction at the timeoL' issuing the summons upon the com[)hiint alone, if it makes a proper case and is verilied in tlie manner stated in the one hundred and thii'teenth secticm of the practice act {Laws of California)., but if he asks for an injunclion there- after, h(^ must do so upon affidavits. Where an injunction has bren gjanted witlnmt notice to the defendant, lie may move to dissolve, lirst upon the pai)ers, whatever tliev may have been, upon Avliich it was granted, oi' second, upon the papers upon which it was granted and affidavits on the part of the defendant, with or without the answer. If the f) ii' s PkioPw Use. 200 defendant rests his motir)n on the papers upon wliirh tlie injunction was ui-anted, tli(^ i)laintifr caii make no I'ui-tlier shouinu". but niusf stand ii]»on liis complaint, or liis complaint and aflidavits, as the case may l)e ; but il' the (U'Tendant makes u countoi* showing-, by aflidavits, with or without the answer, the i)laiutilt' may min^t it with a lurther showiu^' on Ids jiart. If tlip del"en(hint movinij; t<» dissolve an injunction, uses his verilied answcjfor that purpose. he makes it an aUidavit in the sense of section IbS of the i)ractice act for all the purposes of his motion : and, as in the case of his use of affidavits for that, purposf.^ Avitliout the answer, the ])laintin" is ecpially entitled to reply byway of aifidavits on liis i)ai't. 1808, Siiprrine Ct. of Oil., Falkin])urii- y\ Lucy, i>.) (Jal. .'-J. ^ 840. An app(nd from a decree uiantiii,!;: an ia- junction to restrain tlie use of a tradeiuaik ordered to be advanced, on the ground that the injui-y done to the defendant by the continuance of the iiijuiu' tion, if wrongly granted, would be irrei)arable. 1870, Before the Lords Jnstice.Sy La/enby r. White, Law n. Ch. A/). 89 : S. C, 10 W. li^-2\n. ^ 800. In a suit in ecpiity to restrain an alleged infringement of a tnuleiiiark right iji the title of a publication, where it did not appear wlietli(>r or not the public was actually deceived, or in danger of ]jeing deceived, it Avas referred to a master, to ascer- tain and report whether such A\'as the fact. 1872, U. ^. Virc. CI. Maine, Osgood t. Allen, 1 lloliueH, 185 ; S. C, Am. Lam T. 11. 20. ln:m in "^RIOK USE. § 85(5. In asserting a prior use of the trademark, the claim is not supported by proof that one term of ■ V '1 I* 1^' ; ' ; ii' f. 300 Prior Use. m • !■ \{M !«! il. i' W " ''a I' # I 111 ■•;' I i IV ^ the same appeared incidentally in a longer phrase, whereof the conspicuous element was quite differ- ent ; for instance, a trademark, in 18G.">, of "Gen- nine Durham Smoking To])acco" is not inval- idated by the defendant's use in 1800, of a brand ot "Best Spanish Flavored Durham Smoking To- bacco,'' where the i)leadings and proofs show that " Durham" was used incidentally and without sig- nihcance ; ;ind the chai-acteristic and descriptive phrase was "J3est Spanish Flavored," having spe- ci:il reference to a iiavoring compound, which was claimed as a discovery in the treatment of the article. 1872, U. >V. Circ. CL Va., Black well v. Armistead, 5 Am. Law Times., ^T^. % 8.")7. Three brothers, William, xisa II. and Simeon S. liogers, were engaged for many years in the business of manufacturing plated spoons and forks, sometimes as partners under the name of *' Rogers Brothers," and s(^metime,s as st(K'kholders in joint stock coi'[)orations. The goods manufactured by such ])artnersliii)s and cori)orations were stamped with vaiious devices, each of which contained the name " ilogers." In 1862, all such partnership)s and corporations, with one exception, had ceased to do business, and the three brothers entered into a contract with the x)laintilfs, by which the latter agreed to manufacture such goods under their su- pervision. The goods so manufactured were stamped "184:7, Rogers Bros., A 1," which stamp differed somewhat from any stamp previously used. The plaintiifs claimed protection, not in the words, " Rogers Brothers," but "• Rogers Bros, " with the li,relixed and the letter and iigure '' A 1" annexed. The respondent contended that the name '• Rogers Brothers " could not lawfully be used by tt - [Fuhlicat/ons} Publications, [generallf/.^ 301 the plaintifTs as a trademark, for tlie reason that long before the plaint iff sromnienced to stamp their goods wirli that name, it liad Ix'en appi'opriuted by other matiufactiirers for that purpose, and for the reason that it was tlien well known in the market as a brand for the goods of mannfactni'ers otlier than the X)laintiiTs. Held, that the plaintiffs i\-c- (piired a lawful riglit to tlie nse of sncli name as a piii't of their trademark. That the mei-e fact that the name '• Kogers Brothers " had l)een piwiously nsed by otlier i)ersons and corporations, conhl not, of itself, operate to prevent the plaintiffs from af- qniring a right to the use of the same name as a pai't of their trademark. That said parinoi'ships and corpoi-ations, save one, having lost or siii'i-en- dei'ed the right to said name by ceasing to manu- facture goods, the right to the nse of I heir own name reverted to the Rogers brothers, who might under certain legal restrictions impart that lig'it to the plaintiffs. That the respondent had no cause of complaint, or right to derive any advantage from the fact that the trademarks of the plainfiifs and said single corporation which nsed the name ''Rogers & Brothers," resembled each other. 1872, ^^uprcvie CL of Error's, Connecticut, ]Meriden Britannia Co. v. Parker, 39 Co?in. 450. See § 262, Acquisition of Trademarks. ^i:- PUBLICATIONS. I. Publications — generally, § 8G5. II. Advertisements, circulars, &c., § 8G7. III. Books, plays, &c., § 87V. IV. Xewspapers, § 890. m i -if i |l J': m n t\ 11 302 [Advcrilscmefils,] Puijlicatioxs. [circulars.] I. Pnblicalions — (/oieraUi/. % 80;"). Tlie court will not jn'otet't tlie owner of a misrliiovons or libelous imbliciition by ]'(\straining tho publication of it by other pei-sons. 1802, Lord CIi. EI(Um, Wiilcot t\ W^alker, 7 V V.v. ,//•. 1 ; 1817, Lord, (Jh. Eldon, Soiitliey v. Slierwood, 2 Mer. 4;3."). § 8C?r). The court of chancery has jurisrliction to prevent the publication of any lettei-, advertise- ment, or other document, which, if permitted to go on, would have the effect of destroying the prop- erty of another person, whether that consists of tangible or intangible property, whether it consists of money or reputation. The publication of a no- tice stating that the plaintiff was a paitner in a ])ankrui)t lirm, restrained. 1809, Vice Ch. M(flins, Dixon r. Ilolden, L. li. 7 Eq., 488. See 1 //. L. C. :?G;i; 11 Beat). 112; L. R. Eq. 551 ; L. B.2 Ch. 807. II. Adt'crtisements and Circulars. % 807. The defendant, a chemist and druggist, had inserted advertisements in the public journals, so expressed as to induce the world at large to believe that certain pills sold by him, and intended for tlie cure of consumption, were pills prepared and sold by him, with the sanction of the plaintiff", who was a physician of great eminence, practising in the me; ropolis, and celebrated for his skill in cases of consumption. Held, on application for special injunction to restrain the publication of such adver- tisements, that the court had no jurisdiction to grant the siune, the injury being that of defamation [Advertisements,] PrDLiCATioxs. [clmtfnrs.] 303 rather than injiiry to pioperty. 1818, Uolts Ct.^ Clark y\ FriH'inan, 17 La.io ."/. Yi*. (7/. {^\ H.) 142; S. C, \'2Jiir. U\)\ S. C, 11 Pxar. 118. !j 8(58. PlainfilTs, who were nitiiiiiractiuvi's, had moved for an injunction to resti-ain tii«^ dd'tMidanis I'roni sellinL?anv eotton sewing' tliread hv tlie name oi' '"CTlaee," or "Pat<'nt Ghice Thread," or havin/i, labels or wi'appers with tlie words ••(Uaco" oi' '•Patent (Tlace" thereon, those teiins lieinu' claimed by th<^ plaintilfs as their tradeinaiks. The coiii-L directed the motion to stand over, with liberty to tlu^ plairiliiVs to brinu; such action as they miiilit be advised. The i)laintiirs published in I lie news- l)apers, and circidated by means of handbills, a ]'e[)ort of the proceedings on the motion, in which repoit it Avas, amouii'st other tliiii,Li;s, stated that it was ''established in evidence that the piainl ill's were thi> first to use the word in qn(\sti(m,'' The defendunis moved to restrain publication of the repor*, on the grouml that it was uiurue, the fact being that evidence was not gone into on the mo- tion ; and that it woidd have the elFect of ol)struci- ing justice, and prejudicing the defendants' case. The court considered that the publication, though unfair, was not a libel, and not such as would obstruct the course of justice, and refused the mo- tion ; the costs to be costs in the cause. 180(), Vice (Jh. Stuarts' Ct., Brook v. Evjins, 2 L. T, 1?. {X. R) 740; S. C, affirmed, 2D L. J. 11. {N. >^'.) (Jh. 61G. § 8G9. The plaintiffs and defendants carried on business of a similar description. On the expira- tion of the term in a lease of certain works of the plainiilis, where they had carried on their business, the defendants, fifteen months aftei'wards, had pro- V, 'f'-. 804 [Advci'lisemcnts,] PinLTCATioxs. [rircvlars.'] t 1^ V I ''' ■l cured a lease of the same works, wiili tlie cxreption of certain mines of day. Tlie (Icfcndiints issued u clrcnlav and cai'd tendinis; to lead tlii^ piiMic to sup- pose that the defendants liad suocrcMh^d to the busi- ness of tlie phnntilfs, and were working; the same material as tlie i)liiintin's had formerly nsed. TTiJd, that, althon;^h the words of the ciividar and card might be literally ti-ne, yet, if they tended to mis- lead the public, the court would restrain them from further circulating or issuing such or any similar circular or card. 1801, Vice (lit. Wood'.s' Courts Harper i). Pearson, !3 Law TimcH 11. {N. K) r)47. § 870. The defendant Foster had carried on bus- iness as an insurance broker as a member of the lirms of Foster, Lacy, & Co., and Bashall, Lacy, & Co. ViX indenture, it was agreed that said iirnis should be dissolved, and that the plaintiff Burrows should have the benefit and advantages of the busi- ness and connections of the said two iliins, and should \h'. at libei'ty to make such ariangenumts as he might think ])r()per with said Lacy for forming a new copa)'tn(>rship, with a view to continue the bus- iness of the said two iirms. After the said dissolu- tions and formation of the new lirm, the defendant Foster sent circulars to the old correspondents and business connections of the late firms, anncjiincing the dissolution of his firm of Foster, Lacy, & Co., stating that ho should continue to act as an i' su- rance broker as tlier«4ofore, and solicitiu"' vor of their esteenuHl oideis. The defenda as en- joined from further sending saitl circi rs, frcmi representing hi., business to be in continuiitior of that of the lirms dissolved, and from soliciting any of the customers of said dissolved firms. 18G2, Ok. [Adorrlisenients,] rumACvnosA. [circulars.] 30.') Co., ^ ai- vor en- from of CL of Appeal., L. J, ./., Buii'ows ??. Fostor, 1 New R. iro. jj 871. The court doos not recognize pi-oporl;}' in unpnteiitod ai-ticlos, and will not intoircjc to id- stniin tlic sale of spuj'ioiis articles, tlu)n,i;'li des- ciibed to bo tlu* same as tlioso nianufacturoil by anotlKir, uid{;s:4 such articlos are lield out by the imitator to bo the nianufacluroof thatotlier person. Whore B invented and sold a s(»(;ret mediciiK^ called chlorodyue, auvd F advertised a sjjurious imitation of it as ''tlie original clilorodyne,'' and in conse- quence of said advertisement B added the words ••the ori/^inal and only .ujenuine" to the des(':'iption under which he had i)reviousl3^ advertised his medi- cine, and continued to advertise it in that manner, and the evidence showed that F's article was not mistaken for B's, but onlj' that F was t;dven to be the lirst inventor. Held., tliat B was not entitled to an injunction to restrain F from issnin^^ such adver- tisements. That although the court believed the statements of 1», that h(? was the oi-iginal inventor, it could not intei'fero with the defendant making a counter-statement, much as it disapproved of his conduct and disbelieved his statements. 1804, Vice Ch. WoofVs CL, ]3rowne t. Freeman, 4 N. R. 47G ; and see S. C, 12 WeeJdi/ R. 'Mr). § 872. A circular was used by parties then re- cently in the employ of a hrm of manufacturing engineers, wdiich informed the trade and public that they liad commenced business on their own account, and made precisely tlie same goods as their former employers, with great improvements in the same, and could sell them at a much leduced l)rice as being satished with smaller profits. It appeared that several customers of the former lii-m 20 ■4 m MIS: ft !■' •.is; 3' ■1' 'if I !^ 306 [A??7ia7iac5,J Publications. [hooIi.laintiff's emi)loy com- menced the publication of a similar magazine under the same title with a similar device on the cover, and that on inspection the defendant's magazine ap- peared to be a succeeding number of the ])Iaiutilf"s l)ublication, it taking uji the same article in contin- uation which had been left untiniwhed in the middle of a sentence in plaintiff's nund)er preceding defend- ant's publication, tlie defendant was enjoined from selling his said publication, or from publish- ing any other work as being a continuation of the plaintiff's work, but he was not enjoined from the Ii ;■'' ■;•<■ [Almanacs^} Pi^blicatioxr. \hookn, &c.] HO? \ ' ])ubj5('ation of an original work of rlio sanuMinture and under a similar title. 18(K^ Lord C/i. Eldnru Hogg T. Kirln-, 8 IV.vr.y .//•. 215. ^ 878. The defendant, a ])nl)lisher, advertised for sale cerlaiu poems, wliieli he fuisely re])r(>s(Mited by advong, on Vladame mg by J alien's and this i'endant listing of png(i on Madnnu' publica- ns Mad- I'iouH at- tion I'oi' (he piib- )y an in- l^on the at law. lAlmanacs,^ Puclicatioxs. [hoolcs, <£-c\] o09 1855, Chai:)pell v. Davidson, 2 Kai/ & ./. 123. On appeal, the court did not consider tin* fraud clearly made out and therefore : Ihld, that the injunction ought only to be continued on the terms (tf the plaintill: undertaking to bring an action and to be answerable in damages. 18.*)G, ('h. Vt. pear, and in the meantime accepted an order from M, for advertising M's magazine on th*; covers of his own publicaticms, and the iirst day on which he in- formed M that he objected to iiis publishing a mag- azine under that name was the 2.")th of September, on which day the Iirst number of U's magazine ap- l)eare(l. M's magazine appeared in Octol)er. lfs'.) C k. 4\VX ^ 883. \V'ords wduch in their ordinary and universal nsedenote the virtues, such as ''Charity,'" "■Faith," can not ordinarily be ai^propriated by any (me as a title or designation I'or a book, ]^lay, &c., written, &c., by him, treating oi-enfoicuig, sym- l)olizing, &c., a virtue, to the exclusicm of any otlier person who may write, &c., a book, play, &c., treat- ing npon, enforcing, symbolizing, c\:c., the same virtue. There may l)e cases where a title is made nse of in bad faith, or to j^romote some imposition, or to inflict a wrong, when a court of justice siiould interfere to prevent its nse or to compensate a paity who has in consequence sustained an injury. 1874, N. y. Superior Ct., S. 7'., Isaacs r. Daly, ;'>9 X. )'. Superior Ct. (7 J. & S.) 511. § 884. The plaintilf, in Decemlier, 1873, deposit'M I in the copyright office at Washington th(^ title of a play called ''Charity," and copyright'^l such di"i- matic composition. The defendaui, in .lanuary, 1874, i)urchased manuscript copie?'! of a different play, also called "Charily," prepared it for iwr- formance in February following, and advei'tised it If ;■;. is :.:lt w [Almanacs,] Publicatioxs. [boo/cs, &c.] 311 for public representation on March 3, 1874. Plain- tilf s motion for an injunction was denied on the grounds stated in the precedini? section. /O/f/. § 88."), Plaintiff for upwards of oi,uht y(^ars had bee'" engaged in selling pills uiuler the nanu; of "Magic Cure " for the tieatnient of malarial diseases. Tlie subject of diseases in general, and of mala- rial diseases in particular, with a desciiption of the effects expected to be secured by use of the "Magic Cure," was treated of in a small pampldet wirh red cover, called '"The Little Rod Book. New Series, 187.").''' The pamphlet contained a large number of commendatory letters, and references were made to persons named. Defendant was at one time em- ployed by plaintiff in said business. After that relation was terminated he commenced to sell pills called "Moore's Pilules" for nudarial diseases. He also published a book called the "Red and White Book," with the figures "oO, 50" at foot of first and top of last page of cover; the words "The" and "White" and the figures were printed with white letters, wliile the words "Red Book" weie pi'inted in red letters. The same subject wjis discussed in defendant's as in plaintiff's l)0()k, but in a different manner. Ills l)0()k had iu> com- mendatory letters, but a list of refeiences was in it, ccmtaining most of the names in plaintiff's l)ook. The points of difference were prominent and strik- ing, although i)y the red cover, tlie title and the references, indicated a disposition on the part of tlie defendant to impose on plaintill's customers. Ilr/(K that plaintiff was not entitled to an injunc- tion y^r'/zr/r;//^' ///^^ Courts of e(pnty will interfere to prevent oiu person from imposing ui)()n or deceiviniJ: the customers of another bv means -of i - Ml ic^iSi 11 ;i' 812 [Almajiacs,] Public atiox.s. [booLs', d-c] simulated labels, marks, indicia or advei'tisenients, but it must be shown that the devices adopted are such as would ordinarily lead peisons dealing in the articles to suppose them to be the same. 1875, J\r. Y. Supreme Ct. G. T., Tallcot «. Moore, 13 N. Y. Supreme Ct. lOG. § 880, The plaintiff had acquired a reputation for his literary productions under the nom, de plume of "Mark Twain." The defendant obtained permis- sion from the plaintitt' to publish one of his essays in a pamphlet entitled "Pun, Fact and Fancy," containinj^ advertisements, anecdotes, sketches, &c., and the plaintiff ielivere^T t-^^ the defendant a vol- ume of essays \.'hich had been published but not coi)yiii2,hted, in order that one essay therefrom might be selected for said pamphlet. The defen- dant published in said pamphlet six essays purport- ing to have been written bv "Mark Twain,"' and with the false statement upon the title page that said essavs had been revised and selected bv the author "Mark Twain" for said pamphlet. Five of said essays had been taken from the volume deliv- eied by the plaintiff as aforesaid, and tlie remaining essay had not been written by the plaintiff. The defendant was enjoined pendeule lite from using said nom de plume on the title page of said pamph- let or as the author or revisor of anj- pamphlet or book, or from publishing any matter alleged to have been written by the plaintiff under the )iom de plume (►f "Mark Twain," excf3pt one essay from said volume delivered to the defendant as aforesaid ; and defendant was permitted to state upon the title page of said pamphlet that the book contained among other things a sketch by "Mark Twain." [jVeics-] PuiJLiOATioxs. [papers.] 313 1873, June 12 and July 11, iV^. Y. Supreme Ct. 8. T. 1st I)ist., Clemens v. Siicli, unreported. See also §§ 139, 201, 203, 490. IV. Neipspapers. § 890. " Let an injunction be awarded to restrain the defendants B and II, their sei-vnnts, workmen and agents, from i')rinting and publishing, compos- ing, and offering for sale the n(nvs])iiper in the pleadings mentioned, called 'The Ileal John JjuH' or 'The Old Ileal John Ball,' and from printing, or publishing, or exposing or offering for snle any newspapers or newspaper as and for a continual ion of the plaintiff H said newspaper cnlle'd 'The Ileal John Bull ;' until," &c. Edmonds /-. Beubow, F(!b- ruary 20, 1821, .1. 572; settled by the V. Ck. ; Hdon. on Decrees^ 3rd Edition, 905. See Tonson r. Walkei', 3 Swan. 081. §891. A person having sold a news[)aper estab- lishment, togethei- with the name of the papei'. has no right to i)ublish another paper as that which ho has sold. 1825, (JJi. Sand/'ord, JV. Y., Snowden /;. Noah, IJopJclns Ch. 347. § 892. Plaintiff acquired from defendant the right to publish at the city of New York " T/ie Xatio^xil Adrocate."' Defendant subsequently published at said city " TJte JVew YorJc Naliondl Adrocafcy Held., that there was such a difference as to warrant the court in refusing an injunction to lestiain de- fendant. That wh(!i'e there is so great a diff'eience as to afford room for reasonable doubt, a court of equity will not interfere l)y injunction, l)ut will leave the parties to their remedy at law. Ibid, h: I ^\ 314 [Weios-] Public ATiox--^. [papers,] § 89:?. Tlie name of a newspaper is tlie proper subject of propejly, and may be a trademark. I hid, ^ 894. One wiio assumes tlie name of anotlier s newspaper for the fraudulent jMirpose of imposing upon the public, and of supx)lanting him in the good will of his paper, may be restrained. 1840, Ch. WalworUt, N. F., Bell v. Locke, 8 Pdif/c, 7i). § 80."). To entitle the complainant to the inter- position of the court of chancery to restrain the use by defendant of the name of coniphiinant"s news- paper, the name of the complainant's jyaper must be used in such a manner as to be calculated to de- ceive or mislead the public, and to induce them to siqipose that tlie i)aper x^rinted bj- the defendant is the same as that which was previously being i)ub- lished by tlie complainant ; and thus to injure the circulation thereof. lb id. >^ 800. Jfeld, that the name " Mrw Bra '' was not jsuificiently assimilated to the name " DcmocratlG liepnbUcdii New Era,^'' the type and other iiivi- dents being dissimilar, to entitle i)laintiif, the owner of the latter, to an injunction. 1 bid. ^ 807. The i)laintiff, C. (i. P., became by pur- chase in February, 1850, the proprietor of a weekly newspaper called "The Britannia," which he sub- sequently incorporated with anotlier newspaper called "The John Bull," and issued the publica- tion under the title of " The John Bull and Britan- nia." 'I'lie plaintilf had not registered his name at tlie stamp office, under the act for that purpose, as the proprietor for either newspaper. On April 12, a notice was inserted in "The Britannia" to the effect that the paper would be united with "The John Bull." On April 19, the defendant J. M., who had been the printer and publisher of " The [jVcws-] PiniLiCATioxs. [papfir.s-.] ol5 Britannia,'" issued a publication railed the '"True Britannia," in imitation and as a continuMtion of "The Britannia." The bill was tiled against the defendant as the pi-oprietor of the new ne\v.sp;)pei" to restrain him from pablishini^ it. The def(>ndant in his affidavit said that A B was tlie reij;istei'e(l pro- prietor of the " True Britannia," aiid that he was the i)rinter and publisher only, Ou motion for an injunction, the court ordered the deleudant to be restrained from printing and publishing, &c., the "True Biitannia," or any other newspaper as a continuation of "The Britannia." IS.IO, Vice Ok. i^luart, Prowett v. Mortimer, '2 Juri.sl (J'. 1^.) 414. ^ 81)8. The registered pi'oprietors of "Bell's Life in London and Sporting Ciironich?,"" piiblislnHJ weekly, at the price of iive pence, iiled a bill against tlie proprietors and publishers of a new newspaper called "The Penny Bell's Life and Sporting Xews," anil which was published at the price of one penny. The evidence pioduced showed that from tlie similaritvof the two names, mistakes had occurred, and were likely to occui, on the pait of the public, antl that incpiiries hail been made at the office of "Bell's Lii".' in Lond(m" for "The Penny Bell's Life." On motion on behalf of the plaintilTs, the court granted an injunction to re- stniin the defendants from the us(^ of the words "Bell's Life" in the title of theii- newspaper. 1859, Vice Ch. ^Slu^art, Clement v. M:iddick, f) Jurld {X. kS.) 592; S. C, 1 (J//. 98. § 899. Li October, 1857, A being the proprietor of a v/eekly publi(;ation called "The London .lonrnal," the price of which was one penny, assigned his copy- right and interest therein to B for value, and en- *%' ■#■! K& f m w m 'i i '}' %■ ■V 'I' .,1 ii -Wi: 310 [iVe«o.9-] Publications. [papers.] tered into a covenaiii, with B not to publish, eithir alone or in pMrtiiersliip witli iiny other porson, any weekly |)erio(lical ol' a iiatiirt? similar to " TJie Lon- don Jonrnal." In May, 18.")9, A issued an adver- tisement, announcini^ tlu; piiblieation by him on June 1, following, of a daily nowspap-Mv to be called "The Daily London Journal."' The order for an injunction against A restraining his publica- ti<S\) 47; S. C, 7 Ilohertson, 34:3. g 903. If, in an action brouglit to i-esti'iiin tlie publication of deTendant's newspaper, n])()n the ground tliat ho j,s infrinp,in^' trademarks adopted by the plaintiif in the pid)lication of a newspaper previously established, it apjieais tliat the names of the two papers are so dili'erent, that, considering the dissimilarity of type and general appeai-ance, one is not liable to be mistaken foi' tlie other, no injunction can be granted. Ibid. § 004. The right of jn-operty in what is com- monly denominated the "good will" has never been protected, except where it had been made the subject of some express covenant between tlie i)arties. It may be sold by private agr(!ement, 'ind the stipula- tion of the parties in respect to it will be enl'oi'ced; but in the absence of any covennnt, and on a i)ur- chase at an involuntary sale, the vendee is not sub- rogated to all the rights of the original owner. Hence it would seem to follow that where a public It'- "\ WfP" %' 318 [News-] PuHLiCATiONs. [papers.] administrator soils at i)iibli(! auction tho ri;:iht, fitlo and interest wliicrh a decedent hnd in his liferinK^ in a newsjKiper, incliidini^ the good will theicof, the pnrchaser would not acquire such a right of pi'op- erty in the name oi" title of tho newspaper, as would ])revent the same name being assumed afterward by anothej' ])ei'son. //y/V/. ^ 1)0."). The proprietors of a long established weekly conuc peri(jdical called "Punch" moved to restrain the [)ublication of •"Punch and Judy," a rival poriodit'al of like chaiacter, and of the same size as and somewhat similar in appearance to "Punch," but with a dilTerent illustration on the cover and sold at a less i)rice. It was in evidence that another well known comic periodical was i)ublislied weekly under the name of "Judy" : JlcM, that the adoption of the whole title, Pun(!li and Judy, was no infi'ingement of tlie plaintiff's right to use and property in, the name Punch ; and that the general public were not likeh' to bo misled into pur- chasing the defendant's publication by nustake for that of the plaintiffs. And the motion for injunc- tion was ]-efused — without costs. 1809, Vice Ch. 3Iali)is^ Bradbury v. Beeton, 30 Law Jour. II. {N. S.) Ch. 57 ; S. C, 21 L. T. R. {N. S.) 323 ; S. C, 18 W. E. 33. § 900. The class of persons to be considered in trademark cases are those of common intelligence and observation. The court Avill not interfere for the sake of heedless people who linow not, or will not take the trouble to see, what they are purchasing. Ihid. % 907. A court of equity will protect a person in the use of a trademark, such as the name of a new^s- paper, although the name adopted is one that be- I - *}-• ■ PuFFKiiY — Qr AC K M i:i)r< i x i;s. 319 longs to the laiif^iiii.i^a" of fix' ('<)mitiy. tiiid ni:iy ho employed in any way, or Cor any purpose, whirli will not (Iffraiid individuals or deceive the jmhlic. 1870, N. Y. Sffpn'/,/r ('/. S. 7'., American (li-ocei- Publisldng Association t\ (ii-ocer Piil)lisliing('o., ;")! Ilou\ Pr. 402. ^ 008. A newspaper estaMisliment is a subject of proppi'ty and of i'ontract, and tlie liglit to it may he jirotected by a court of ecpiity, and a person who sells such an establislinieni has no riglit to continue a publication as the same, but he may set up a dif- ferent rival paper. If the (piestion whether the rival paper is the same or dilferent be doubtful, that doubt is a sufficient reason to refuse an injunc- tion and to leave the parties to their remedies at law. Ibid. % 909. If it appears that the defendant's paper is an imitation or simulation of th(^ plaintiffs' paper, and as such designed to nuslead the public, an in- junction will be granted. I bid. PUFFERY. See MiSREPRESENTATIOX. PURCHASE. See Assignment. QUACK MEDICINES. See Misrepresentation. \ .i.\ i ;> 320 Quality— Questions of Law and of Fact. m * I I: QUxVLITY. § 912. The owner of a trademark is entitled to re- cover daninges for its violation notwitlistaiidliig- tlint the goods upon which the simulated nmrk is placed nre not inferior in quality. 18;]l), Kliuf a Bench, ]51olield i). Payne, 1 N. &M. :jr):j ; S. (;.', 4 B. & Ad. 410 ; S. C, 3 L. J 11. (iY. 8.) 08. § 9i:}. It is no answer to ,i, snit for the violation of a trademark that the simulated article is equal in quality to the genuine. 184."), Vice Ch. ^^niid- ford, N. r., Coats?). Ilolbi-ook, 2 Scuidf. Ch. n80 ; S. C, 3 N. Y. Leg. Ohs. 404. ^ 014. It is wholly immatei'ial whether the simu- lated article manufactured bv the defendant is or is not of equal goodness and value to the real article manufactured and put up for sale by th(^ complainant. 1840, X. V. I'l. of Errors, 'WxyUn- t^. Carpenter, 11 Palr/e, 202; S. C, 2 Hand/- ^'f'- ^'^^^•"■ % 91."). It is of no importance that the manufac- ture of the defendants is of equal or even suptM'ior quality to that of the plaintitFs; they have never- theless no right to ur.e the hitter's trademark, or to make and use any imitation of it to help or increase their trade in the article. 1872, N. Y. S/tperhr CL S. T., Cook V. Starkweather, 153 AbO. Pr. JV. 8. 392. For words denoting quality see DKseurPTiVK Name, § C40, et scq.; and Woi'.ns, § 1010, et seq. QUESTIONS OF FACT AND OF LAW. P '% m § 920. In an action on the case brought for imi- tating the plaintiff's trademark; held., that it was '■''& Questions of Laav and of Fact. 321 properly left to the jury to say, first, wlioMier there wus, in fact, so clos*' a. r<'S(MHl)Ianc(; in t]u) marks used, as would dofeivc; [x'rsons of ordinary skill ; and, secondly, whether (he (h'fendants used tlie mark with the intention of supplan(in:jf ihe plain- tiiT, or wii(!thor it was done in the ordinary course of business in execution of oi'diM's. 184?. (^onrt of Com. a")?; S. C, II L. .J. n. {('. P.) :5()l Plras, Crawsliay r. 'I'honipson, 4 M. & d ind see llod- gers t). Nowill, 17 L. J. U. {X. K) C. P. :>2. ^ 021. Where the ])laintifT used the woids *' Roger Williams Louij;- Clolh," upon cotton cloths as a trademark, and the defendant used the woids "Roger Williams"' upon cotton cloths: J/r/f/^ that the court could not, as matter of law, decide that such partial use of the designation of his goods appropriated by the plaint iff was noL de- signed, calculated and effectual to carry out the fraud charged, and must leave that to be settled upon the evidence by the jury. 1800, i^i/prciix'. Ct. of n. /., Barrows ?\^Knigiit. A'. /. 4;',4. § 922. The first question which ai'is(»s in trade- mark cases is one of fact, and is, wlu^thei- the mark used by the defendant is a colorable imitation of a genuine trademai'k of the j»laintiff^ That is a question to be determined at law by a jury, and in equity by the judge. If it be found (hat the trad*;- mark used bv tlie defendants is not a colorable imitaticm of the genuine mark, tlie whole (liing is at an end ; there is no imitation, and the person may go on using it. 18(52, Bolh Courts Cartier v. Car- lisle, J3l Beat). 202 ; S. C, 8 Jurist (iV. S.) 183. See also Evidence. 21 322 Registration — R?:medies. REGISTRATION. Registration of trademarks, see Statutes (Con- struction of), and § 295. REGISTRATION OF PRINTS AND LABET^? § 923. The act of Congress of June 18, 1874, is to be regarded as an amendment of the copyriglit laws. To acquire a copyriglit in any print or label deposited in the patent olfice, it is essential that the title of the print or label be first deposited in pursuance of the provision of the U. S. Revised Statutes concerning copj'rights. 1877, U. S. Cir- cuit C/., i^outhern Di.sf. of i\>?o Yor/i\ Marsh «. Warren, 4 Aju. L. T. 11. (n. 8.) 12G. *■ I REMEDIES. § 928. An action on the case for the violation of a trademark may be maintained without proof of special damage. 1837, Sup. JucVl Ct. of 3Tasfi., Thomson i^. Winchester, 19 Pick. 214. § 929. An acticm on the case may be maintai ued })y a manufacturer against another manufactur«M' who marks iiis goods with tluOvuown and accustomed mark of the plaintiff, where the marlv used by the de- fendant resembles the plaintiffs mark so closely as to be calculated to deceive, and as to induce persons to believe the defendant's goods to be of the plaintiffs manufacture—and the defendant uses sncli mark with intent to deceive — and sells the goods so marked. "Remkdtks. 323 (CoN- m' as and for floods of the plaintiff's nianufacture ; and proof of special daraau;e is not necfvssary. 18-17, Ilod.^ers r. Nowill, 11 Juris'/, 1037; S. (1, o C. B. iMan. Or. ct: *S'.) 100 ; S. C, 17 L. J. R. {X. S.) V. P. .02. And see S. C, Han, 32.-). >^ !):](). The violation of a trademark will be en- joined .md the party viola.tini;- may be c/nipelled to produce the articles to which the spurious l)i-ands are attached, to the end tliat such brands may be canceU'd or erased, at the cost and ex[)ense of the defendant. 18G2, N. Y. CI. of Cum-. PIcafi, X J'., Jnrgensen i). Alexander, 21 IIoio. Pr. 2(;9. j5 031. An injunction was obtained to restrain I he defendants, who were wharlin^t.n's, from ])ar(- inii' with ceitain u;()ods, on the ,jj;round th;it they had been imported with counterfeit trademarks. r, wlio was not a ])arty .o the suit, had bona fide advanced nionev before bill tiled, on I he secui-itv of the dock wai-rants. Tpon ruotion by r, pro in/cr- r.v.sv .sv/o .■ Ill-Id, that he had a pihu'ity, in res[)ect to his advance, over the plaintiffs" costs of suit, he niulertakiuu' to destroy th(» counterfeit marks and paying the costs of the motion. That the whar- fingers' chai'ges and costs of suit were the jirst charges upon th(^ goods; U to ])ay these costs and add them to his advance, and the total to form (he second chr.rge ; the plaintiff's costs (»f suit to be tlie third charge. ISiil, RoUa CV., Poiisardin r. Peto, 33 Ih(((\ 642; S. C, 10 Jnri.st (X X.j (5; S. (..'., 12 W. P. 11)8; S. C, 33 L. J. U. {NX.) ('//. 371. ^ 932. S, liaving engaged in the manufacture (»f various medicines and other preparations adopted and nsed thei'eon certain labels and trademarks, to ^24 Resemblance — Secret, imm 'h .tjI^^H ■ : kI^^^H ,lflH 1 'f^M^H * ' f^^^M i distinfjiiish. his medicines and preparations from all others. These hibels iind trademarks were gener- ally known to the trade and consumers, so that by them the preparations were distinguished, recog- nized and bought. The manufacture and sale of these preparations had become the source of profit and emolument to S. Certain persons thereupon fraud ulentlv^ engaged in the manufacture of medi- cines and other preparations and sold large quanti- ties thoieof, with labels and trademarks corres- ponding wjth those used by S, or with only a color- able difference, and designed to deceive the public, and to enable the vendors to obtain for their medi- cines tlie celebrity which the medicines and prepar- ations of S had in the P'arket. On application by S it was Held: that he v.as entitled to be protected by injunction and to be compensated by having an account taken. 1870, Mar viand Court of Ap- peals, Stonebreaker v. Stonebreaker, 33 Md. 252. See also Contempt ; Injunction ; Statutes, Construction of. RESEMBLANCE. See Imitation. SECRET. See Trade Secret. Scienter — Signs. 325 SCIENTER. See Intent. SIGNS. § 940. A sign containing a lirrn name used over the doorway of a store may be tlie snbj(H;t of a trademark. 1857, jY. Y. l^iipn'iue Ct. >S. T., Peter- son w. Ilumplirey, 4 A/)b. Pr. 394. § 941. Tile plaintiff, a son and former partner of Jolin liiirgess, manufactured and sold for many years "Burgess's essence of anchovies" at No. 107 Slra/id ; and carried on business theiv, after the death of liis father, under the style of John Burge.ss & Son, which had been used lu-eviously to his father's death. Tlie defendant, W. II. Burgess (a son of the plaintiff), who liad been employed for mauy years by the plaintiff and had l)een permitted to reside on the premises No. 107 Strand, o])ened a house in King William street, and had letters and figures over his sliop front, as follows ; on one window "\V. 11. Burgess,'' on the othei- window '' 107 Strand," and in tlie intermediate spac(^ over the fanlight, ''late of." Tin; defendant was enjoined from tlie use of the woi-ds '' 107 Strand," "late of," and also from continuing a i)late which he had on the sides t)f his shop do(»r with the words "Burgess' Fish Sauce W^arehouse, lat(!i of 107 Strand; "but was not enjoined from using the wortls "Bury-ess's essence of anehxnies" on the article sold by him. ISo;*, Il/{//t (U. of (' /idnrrj-y. Bur^^ess i\ Burgess, '6 De (J. M. d'- (J. 890 : S. C., ..i>>.. a T'WPP'WPJW'r'i'T 326 Signs. 17 Jar. 292 ; S. C, 22 Law Jour. 11. {N. S.) Cli. 675 ; S. C, 17 Enri. L. d; Eq. 2r)7. § 942. Where Smith, a tradesman, who liad been in the eniphty of a large lirm, put his own name over his shop, but on the plates under the shop windows, and on tlie sun awning "i'roni Thresher & Ulenny," his former employers; the word "IVom" being much small than the woi'ds, "Thresher & Glenny," and it was i)roved that some persons liad bern misled into thinking that the shoji was the shop of '■'Thresher ct Olenny :" The court Held., that what Smith was doing, was calculated to mislead the incautious, unwary and heedless portion of the pu'olic ; and on bill by Thresher &: (ilenny, granted an injunction n^strain- ing him from using the name of their lirm about his shop in such a way as to mislead the public into the belief that his shop was the shoj) of Thresher & Glennv, or that their business was carried on there. 180o, Vice V It. Klnderslci/., Glenny o. Smitli, 11 Jurist {N. S.) 904; S. C, VS L. T. It. {N. *V.) 11; S. C, 2 Dr. ct .S///. 470; S. C, Ncld R. 363. § 94;j. There is no question but that if a man. having been in the employment of a iirm of reputa- tion, sets up in business for himself, he has a right in any way in whi(;h he thinks lit (prcjvided he does not use names, marks, letters or other Indicia by which he may induce purchasers to believe that the goods which he is selling are those of another person), to inform the j^ublic that he has l>een in such employment, and in that way to apj)ropriate to liimself some of the beneiit arising from the reputation of his former eniployeis. J3ut in so doing he must take especial caie ih-Jl it is done in i'i Signs. 327 siicli ji way as not to mislead the public to the detriment of his former employers. Ih'id. % U4-1. The use of a simulated card, advertisement, or sign, calculated to deceive the incautious oi- iiii- wary, whereby a party may be dei)rived of his just gains and prolits, will be restrained by injunction. Accordingly, wliei'e the plaintilfs sign was "Coiton Dental Association," and the defendant, a former emploj'ee of the i)laintilf, used cards and had a sign over Ills ollice in i'oi'm following : J)r. F. \\. Tliomas, late operator at the Colton Dental Rooms, the woids "late operator at" in small letteis, the court held the cards and signs to be deceptive, and compelled their discontinuance, until changed. 1808, (JI. of Com. Pieas^ Phil. Pa., Colton v. Thomas, 2 linics. i 94."). The plaintiff was the proprietor of an oys- ter saloon, A^o. 214 Broadway, and had a sign over the door of "The Captains Live and J^et Live Oyster and Dining Saloon." Defendants carried on the same business next door and i)Ut up a sign with the words " G. \V. Chadsey & Co"s. Creat Eastern Live and Let Live Dining Saloon. '" The defendants were enjoined from using the words "Live and Let Live." Genin t. Chadsey, a 2s'ew York case, cited in 2 Brew.s'. IJtUJ. § 940. The parties to tlie suit were severally en- gaged in selling ready made clotliing. They occu- pied adjoining rooms in the same block, fronting on the same street. The C(mi])lainant caused to be put up on the wall of the l)uildii!g. over the enti'ance to his store, the words "Mammoth Wardrobe;" below it and over the door, his name in large gilt letters ; on toj) of the building a sign in these words: " W. N. Gray's Great Wholesale and ■^=?B m 328 SiGXS. n: )i R< ill I; iv Retail Clotliing Emporium;" on tli(^ windows on eitlier side of the entrance, other words indica- tive ol' liis business, including his name ; he also advertised his place of business and his tiade in the local news[)ai)ers and the directory, as the "Mammoth Wardi'obe," nniformly connecting with it his name and the number of his room. Subsequently to ccmiplaiuiint's adoption of the words "Mammoth \V^ardrobe," defenclant i^ainted the same words on an jiwning erected over the entrance to his store, and below them his name and the number of liis room ; he also i)laced liis name in large gilt letters over his door ; and above the awning, and on the building, below the awning jind n(\ir the entrance, a card displaying "The Mammoth Wardrobe," and defendant's name. Defendant advertised in the samc; newspapers and directory as complainant, but Avitliout mentioning the place of business as the "Mammoth Ward- robe." Complainant applied for a temporary in- junction. Jfcld, that without the suggestion of falsehood or suppiession of truth in woi-ds or acts, there can be no fraud. That even if the words " Mammoth Wardrobe " were sucli that tliev might be approi)riated as a trademark by having lirst been arbitrarily applied by comi)lainant, they not being an appiopiiate term according to general usage to describe such a place, still great doubt might be entertained whether the defendant had not by the addition of his name, number and other mtu'ks, so distinguished the designation of his es- tablishment from that of the conii)lainant, that though each was called the "Mammoth Ward- robe," they were not identical or so nearly so as to require close insj)ection to detect the dilTerence. I' I SiGXS. ;]20 The court could not see how any person could fail to recognize the two establishnients ; that it was ditKcult to believe that any customers atti'actcd by tiie advertisements, and guided by llieiu and seeing the two stores, or only the defendant's, could make any nnsiake. Ai)i)lication denied. 1871, MIl'Jl. iJlrc. (11., (jiay d. Kocli, 2 JZ/V-A. N. P. 110. ^ 047. Joseph Hall liad been engaged in tlie man- ufacture and sale of tiirashing machines at No. 10 Water stieet, in the city of lloch(}st(>r, and put n[) a sign with No. 10 upon it, and his shop was kninvn by that numbei". On the death of said Hall, in the Spring of 18j0, the premises and properly of said Hall were sold bv his exe(!Utors to the derendant, who continued the business at the same ])hice, aijd designated his place of business as "Old Joseph HalFs Agricultural \V(n'ks, No. 10 South Water St." The plaintilf, prior to \\\o. Fall of ISO,), eanied on the business (jf manul'aetui'ing agri(.'ulim'al imple- ments at Ih-ighton, souk^ two and a Inilf miles from Rochester, in the Kail of 1800 they i-ented a small olhce on South Water stri^et, near to defendant's shop; and, with intent to injure defendant, [>iit on the store the v;ords and ligures ''No. 10,"' thereby indicating their place of business as being "'No. 10" South Water street. The number was i»ut upon the implements manufactured l)y them. The plaintilf was restrained from using said number as its trademark, or keeping the same on its olhce or building in South Water street, or using it in any way in imitation of the defendant's trademark. 1874, jy. Y. VonimiHHion, of Appcdl^i, (ilea and Hall Manufacturing (Jo. w. Hall, 01 K. Y. 220; re- versing S. C, La us. 108. § 048. Where one has established a business at f i M ''tr. .130 Signs. w a particnlnr place, from whioh he has or may de- rive profit, and lias attached to such business a naniM indicating- to tli<' public where it is carried on, he thereby accpun^s property in the name, which will be i)r()tect«'(l I'rom invasion by a court of ecpiily on principles anahi^ous to those in case of the in- vasion of a ti-adcmark. / f^/fl. )J 1)49, The plaintiffs comi)osed the Jirm of Devlin & Co., enL!;a <;•('( 1 in the clothing business in Broad- way, New York. The (hd'endant, whose name was Jolm 8. Devlin, was engaged in the same business and in the same street, and had upon his [)lace of business a sign Avith the words "Devlin & Co." thereon. The use of the woids "«fc (yo." by defen- dant was found by the court to be the use of a d(!- libcrate falsehood to attract the plaintiifs" custom, and li(^ was enjoined from using tlie firm name " Devlin & Co." in any manner, and in the injunc- tion it was fui'ther ordered "that the said John S. Devlin be, and he is hereby confined — whenever the word or woixls 'Devlin' appears or is used in his advertisements, signs, placai'ds, slips, or other means and modes of making known his bursiness or i)lace of business, or offering for sale or selling his goods, wares and mei'chandise — to his own proper Chris- tian, middle and surname, conjoined and without mono.mlanf iiiadci use of a si<>-ii coutainiiii!; the nn?nl)er of his store and thewoi-ds ".I, S. Devlin's Clothiii,!;'"' so arraii,u,"('d as to atti'act and lix th(^ publiiM'Ve on ihe words " Devlin's Clothln,^'." The coui-t ad- jud,t:;e(l the (hd'endant in contempt I'oi* violating" said injunction. IST."), N. V. Suprcine (!(. (i. T., Dev- lin 0. Devlin, 4 llmi^ 0.")! ; S. (J., alliinied by N. Y. Ct. of A2)jjc'als, not yet reported. See also Buildinos, and §§ 124, 125 and 1023 ; also Partnkesuip. STAT UTES—CON STR UCTIOX OF. § 957. The stjitute of 1845, making it a penal offense to vend merchandise, having thereon foigvd or counterfeited trademarks, knowing tlicMii to be such, &G., without disclosing tiie fact to tiie i)ur- chaser, would prevent the vendor IVom recovering tlie price of the goods sold, if he knew that the marks were forged or counterfeited. But it must appear that the vendor had su(,'h knowledge or that there wasa warranty of the genuineness of the goods, or some re[)resentation on his part, to i)revent a re- covery. 1840, iY. Y. Superior Ct.,G. 21, Kudderow V. Huntington, 3 Saiirlf. 2.52. § 958. In Massachusetts a bill in equity to re- strain the fraudident use of trademarks cannot be maintained under St. 18.'52, c. 197, without alleging and jiroving that such use was for the purpose of falsely representing the articles so marked to be manufactui-ed by the plaintiff. 1854, !:Iished and proper names by which the " ai-ti- v'l's " to which they are attached, and by whi(!h th« • =-•" knowji in the market, nor something in- d. . .,j, their actual kind, character, or quality, but oy them is meant, as the subjects of i)i-otection against iid'ringement, something new, not before in use, — something of the manufacturer's own inven- tion, or lirst put to use by him, — something [)e( ti- liar to him, and not common to him and others, — something which is inti'insically foreign to the "articles" themselves, and only serves to designate them because it has been fancifully put to that use, in disregard of all natural relations. The statute does not vest in the manufacturer or vendor, as the case may be, any exclusive i)ro])erty in the "arti- cles" manufactured or sold, nor in names or the Avoids which most aptly apply and piopeily describe theni ; and even if such were the i)roper construc- tion of th(! statuti', it would be void for want of j)(>W('r in th(^ legislature to enact it. If the statute aoes bevond the conuMon law and end)ra('es within its protection matter which relates to kind, char- Hcter, or (puility of "articles," it is not peiceived why it does not trench upon the law of copy and l)atent rights, and is therefore void. It is sug- ■N ' .'.9 Statutes (Coxstruction of). 333 gested, l>uf not decided, that the terms used in tho statute, to wit: "to designate it as an ai'tielo of ])eruliar kind, chai'actei', or qualily," were inad- vertently inrorporated into it under a mislalveu notion of the functions of a tnuhMutiik, and tiiat in respect to tliose terms the statut(M'an huvr no in- telli^ihle opei'ation. 18(58, S/fprrti/e CI. <>/ Ca/., Falkinhur,iL>'h /'. Lucy, I}.") Cff/. 52. 5^ 0(51. Tlie statute of Missouri concerninii!,' trade- niai'ks, (Jen. Stat. 180."), p. 012, was not desi_i;ned to weaken or al)i-id2;e anv existing liuhts, or any future riii'lit to a tracU'nuii'k, wliich mi,<;ht bo acquii'ed by appropriati(m and use. A wiitlen claim to a disputed trademark, liled in the (Mcv, of recorder of d(M'ds in tlie count}' of St. Jjouis, under the act of March, 18(5f5, Gen. Stat. 1805, p. Ol'i, can- not avail th(^ manufacturer of stoves in another State. 18(50, Snjncnr CI. of Mo., Filley v. Fassett, 44 Mo. 1(58. i^ 0(52. rnd(M' the provisions of section 4 of <-hai)ter :5i)(5. Laws of 18(W (New York) entitled "•an act to prevent and punish the use of false stamps, labels or trademarks," as amended by section 2 of cha])ter 200, Laws of 18(5:5, to render a ]>ei'son liable to the penalty therein prescribed, tho act complained of must have been done with intent to defraud some person or jjeisons. or some body corpoiate. 1871, N. Y. Court of Ajipcal^., Low t). Hall, 47 X. y. 104. ^ 0(5:$. Secli(m 77 of tlu^ act of .hdy 8, 1870 (10 U. S. Stat, at Lar.i:,e, 210), provides, as a ivijuire- nient for obtaining' a trademark, the tilinu', in tho patent oflice, of a declaration under oath, as to the ri^ht to the trademark. A certilicate by tho C(mi- missioner of i)atents. of tho deposit, for legist lation, * '1 f : i< ■ "^mm ;534 Statutks (Coxstuuctiox of). of a trademark, of wliicli a copy is theroto annexed, and of I he lilin,i>" of a statement, of which a copy is annexed to the certificate; (but which statement does not contain any sucli dechirationi. and that the party depositinu; the tradeniarlc lias otl' rvvise conii)]ied with the act. and that tlie rradema»iv has l)een rei^istered and recorded, and will remain in foi'ce foi" a period named in the certificate, is not evidence of the fllinii^ of such ch^'hiiation. 187l\ f/. S\ Circ. C7. ^V. i'., Smitli c. Reynolds, 10 Blalrhf. 85. ^ 9(54. The firm of J k. Co., in registering a trademark foi- ])aints in the patent office under secs ticms 77, :(»d tliat 11 had inlTini^cd such rii^lif, and if a!)[»;'ar(;d that a brand of Ji crown had Ix.mmi nscd by B, for white Ivid alone, of a paiticular qnalily and description, niiuh' by liini continnonsly, from a i)eri()d ])rioi' to the use j.nd to the re;i;istration, of snch biand as a trademai-k by J &, (Jo., and nntil 11 purchased from 13 liis paints, materials and labels, and tlie riL-'ht to use them, inclmllntir tiie labels embodvin.''' the device of a ci-own, and tiiat R, fi'oiu the time of his yxirchase, which was i)rior to snch reg'ist ration, had continnonsly nsed the device of a crown on some description of paints: //r/c/, that, at the time of re^'isierin.ijf the trademark, J & Co. liad no ri;2;ht to the use of it for paints generally, becans*' R then had a right to use it for tin? class of paints for which 1), as well as 11, had previously used it. /fti(/. p. 100. vi 007. A registration under the act of Congress must stand or fall, as a whole, for that to whicli the registration declares it is intended to a])i)r()pi'i- ate it, tiiere l)eing no provision to maintain a suit on it, Avhere the gi-aiit is valid as to .i part but not as to the whole. J hid. 100. i^ 008. The protccti(Mi given by the act of July 8, 1870 (lO L\ 8. Stat, at L. :210, 211), to the use of a trade- mai'k, is to the e.Kclusive use of such trademark only so far as regards the i)a]ticular desci'iptiim of goods set forth in the statement liled under said act as the particular description of goods to or by which the ti'adcmaik has been, or is intended to be, appropriated ; and the prohibition is only against the use, by another, of substantially the same 330 Statutks (Cox^^TiUTCTioisr of). tradmnni'k on iroods of su!) sliintially the same de- scn[)tive qualities as sucli particular description of ^oods H(^t foi'lli in such iiled rlatenient. 1873, If. S. Cirr. in. N. >'., Os.ijood ^?. liockwood, 11 lUaichf. :]1(). ^ DO!). A sta lenient filed by O set forth that his trademark consisted of (h(^ word " Ileliotype,'' " in conncM'Jion willi llic j)roduction and i)ul)Iica- tiou of prints," and th;it *'tli(^ particular article of tiad«; " ni)on which lie had used it was "the prints" which he designated as " Ilelioty})e." Siicli priuts w(n'e made by a process to which the name " lleliotyi)e" was ap[)lied, and which was a ])ro(;ess seciured by h^ttei's patent of the United States, under which O was the sole licensee. Tlie dehMidant used the word " lleliotypci " on prints l)ublished by him, \vhich were not nindc^ by such l)atented process. /AVr/, that the right of O lo tlie iecord(>d trademnrk was limited to its use on prints made by such ])atenled process. Ibid. % 1)70. The act of Congress of July 8, 1870,— providing for the registration rf trad(Muarks, — does not (at least in a State ' art) furnish any further or greater protection than the court might liave i)revionsly given. 1873, N. Y. i^npcr'ior CI. 8. T., Popham* r. Wilcox. M Ahb. Pr. {N. H.) 206 ; S. C. on appeal, 38 iV. Y. .^>/per. Of. 274. ^ 971. The act to piotect merchants, «Src., ngainst counterfeit tradeuiaiks, approved lA'bruary 22, 1870 (Adj. Sess. Acts 1870), was designed to pro- tect foi'eign as well as domestic trademarks, and may be invoked l)v citizens of other States and (H)untries. 1874, Sxprcnic CI. of Missouri., State of Missouri t\ (libbs, m Mo. 133." §072. Query. — whether, when a trademark, w^ Statutes (Coxstiiuction of). 337 on jainst 22, pro- \, and and 1 State nark, registered nnder the act of C<)n,u:ress con'^ists of a combination of words, letters, nionou'ianis and pic- tures, it is infringed wlien the wjiolc 'Mnubiiiation is not used. IcST."), 17. K Clrnill C, JIJ., Tucker Mfg. (Jo. >\ Boyington, 9 Of. tiaz. {if. aS'. Patent Olilcc) 455. i> 073. A person wlio liad l)oon using for upwaiS'.) C/i. 450; S. C, '2:^ W. 11. 407, 504 ; S. C, 30 L. T. R. {N. S.) 201. See also § 284. 23 1 ' ■""" lll M " 338 Symbols — Thademarks. "11 SYMBOLS. See Devices. TRADEMARKS. It ol hy which he (guaranteed to the l)u:cliaser the verity and orii^in of rhe compound, would be a violation of the I'iiihts of both. And wliy '. For that the j)ni'«'haser has a right to have the very thinii; whicli he seeks, and tlie ownei- has the right that the veiy thing sought shall be sold at his i)r()lit. It does not alter this right that the com[»ound held for sale and sought for, is made by nature and not by ai't. The owner of its sole place of production is the exclusive owner of it in the lust case, as in the lirst. And in the last case, as in v. y: 1^ 340 Trademakks in Gknkkal. lU'-i fii I hi ?) ■ '4 I 'K I' 'v Ifl .'ft? If: ^' 'Wi the iii'st, tlie l)uy«M' se(!k.s that vory thiiiLi;. And both h.ive the ]ii;ht that the tnitlifiil syinlx)! or (hnlce whicli tells of the genuineness ol' lis origin shall not l»e imitated wilh intent oi ed'ec-t to dcei'ive. Jl is the peeuliaiity of the article, its merit which is individual and exclusive, which at tiacts the l)uyje)\ 78. § 'J84. The defendants were I'estrained from sell m TUADKMAUKS IN GkXKKAL. 341 ing *'aiiy })repai';Ui(>ii oi' t'oiiipoiiiul mikU'IIIu- iiiiiiit' :iml style ol! '•,!. B. Wilder iV Ci.'s Slomiicii 15il- fer.s" printed, st;iliil>ed or eiluT;ived ii[)(>ii lliebot- tlt's, Inlx'l.s, wi:i])|»ei.s, coveis, boxes or juiekiiiies fliereof, ulso froiii using the bottle herein exhibiieil niarUt'd ' H 'J,' nnd I'roni imitating (^f causing lo lie imitated in any manner, either the bottle or label of the plaintiir herein marked ivsper-lively, "A, and 1',/ " Wihh'r r. Wild.-r, ('/. o/C/nn/. Vw/., eiled in M()o]inan /'. lloge, 2 S((w//rr, 81). § DS."). Althongh the name ad(»i)re/l by dealers foi' their article \h', not one to the exclnsivt; nse (»i' \vhi<'h the}' are entitled, yet the iH-cnliai' style (.f the package in which they put n]) the ailicle, and the combination constituting the lal>el may be pro- tected. Where a pecadiardevice is ai>]>lied loa box or barrel ,'s]>ecially prepannl to dis])lay il. the spechd prei)aratioii oi' the box or baiiel <'onslilutes a part oi' the tratlemark, and may ]»articip,ite in its protection. This piincii)lL! ap[»lied, to protect ]tlaintill's in the iiseol'a baiicl with a led I'im and a. gla/ed surface on the In-ad, with the letteis A A A and a ^hdlese cjoss, and to enjoin defendants from nsiiig a similarly prejjared head with the leilers XXX and a crown, 1872, A'. )', :SffjM r/o/' C7. N. 7'., Cook r. starkweather, i:{ AM. Pi . {S. ^.) \\\y>. >; U8(5. 'J'lie plaintiil's sijice ]8.')r) had I'olled ilieir carpets ui)oii ti hollow sti<'k, which stick, when jait into the centi'eof theii' rolls of cai|)et, they claimed to be their trademark, 'i'he stick consisted of two pieces, ground on the inside, so that wlu'ji the two jtieces were |)nt together the}' foiined a shell wiih a lectangular o2)eiiing and with tlie coi-iieis of the outside rounded olf so that the entls of the slick or This rim-' was siiell formed an octagomd ring ^ ■•: 1'*- 342 TliADEMAItKS r.\ GkNKIJAL. I*' »!> r' if botli visible mikI tanui'*!*' l'< ciicli cud <•(' t';i('li roll ol! cMi'iM^t. The stirk ov shc-ll was iMiidf llif U'liirtli of tl»»! i-ulls of ••ai'iH'r, so MS to i'xliil)ir lln' riii.t;s. Th«^ slu'll was a(l»»[)tt'(l in isr>r> and used ooiititiii- ously v\{'V siiu'«' l>y jtlaiiitilVs as a tradciuark, and was r('_<;isttM-ed as a iradcinark ii» ili* I'. S. |»at<:Mit olli<'(' ill 1S7I. TU(>d«dVndaiifs» in ls7*J. ('(Wiimciicrd to make and stdl «'ar|H'ts lolk'd upon sticks ii'scni- bliny tliu sticks usimI liy tlic plaiiililis. 'I'Ik' plaiii- lill's lilcd a hill to enjoin the ddciidants from the usol)ytiiein of such stidvs I'of ca;p»'ts. 'I'lic cvi deuce ill tli(> casH showed that such slicks in rolls of caipel indicated to the puhlic tliat the licwuls con- tainiiii;- them were made by tht^ i)laintin*s; that any oiu' seeini;- the shells in carpets would suppose them to bo the i»laintiilV dout to be spurious, and the labels up(mthem forgvd ami counterfeired. Jf<'l(l^ that such facts constituted no defense to an actiim upon a note given for the pni'chase price ; there l)eing no proof that the auctioneer knew the fact of the siiurious nature Vkxdor. n4.") of th(> ijroods, or that lie had anv better means ol' jud^nnn'ol' their ^■('iiiiineness than the buyers. ]811.>, i.y. )'. SiijH run' (It. a. 7'., Jiiidderow o. Jlmitinu-- ton, ;i ^iindf. 2r/i. >^ 1()<»;{. If one manufaetures ,u;o()ds himself, and puts upon them tlie trachuniirk of anotlier, thouf^h lie may not know to whom that mark belonn's, lie must at lenst know that he has iiimscll' no riti'ht to the mark. That knowh'duc makes liiui liable to account for the i)rolits he may have realized by his conduct. But if one buys ^oods fiom a third party, believini^ them to be i^enuine, whih^ in fact they are spnriou'^, it is not until Ik^ has been told that they are so that he can be considered to be guilty of any fraud, or to be li.-ibh' to renth'r any account. 1SG4, Manltr of Uw ItoJh, Meet r. Cou- Kton, 10 Law Times 11. (ZV. *V.) ai).") ; iS. C, 'X\ Bcav. oTH. § 1004. The defendants, who had innocently bought and sold as genuine an article wliicli was in fact spurious, were resti'ained from selling it with the plaintilf's ti'ademark, but were not ordered to account foi' the prollts they had made. Ibid. § 100."). The phiintilf being a tiu'ead manufac- turer of repute, the defendant bought in the market thread, wound on spools, not made by the ])hiinti(f, of inferior cpial it y, and che!i[)er than his, and not bearing his name, but marked with the name of a lirm of winders of thread, who were known to be accustomed to pur<'hase of the plain- tilf thread in the hank for the pui'pos(» of winding, and selling it when wound. Defendant sold the gt)ods to a wholesale 'justcmier, with the assurance (given, as he said, without knowledge of any mis- representation) that they were of the plaintilf's ;^ k'' '" ..' . ' ' >" ^■' ■ y,' ^i *\ m t 346 ViOLATio>^ — Words. make, and invoiced tliem to the customer un- der tlie desci'iption of certain numbers, wliich the phiintiif liad ndoi)ted and exclusively used in order to desi<>'nate his iKirticiilar manufacture. The customer attached tlie X)laintiirs name and numbers to the spools of thread, and retailed it to the ])ul)- lic as of the itlaintilfs make. I/ii)('haser does not know the name of the merchant and rests (^ntiiely on the re])ntation acipiiied by the ]»aiticu- lar o-oods. 180;?, Hatty v. Hill, 1 //. cO J/. ^(U : S. C, 1 1 W. It. 745 ; S. C., 8 L. T. li. (A'. X.) 71)1 ; S. C, 2 N. li. 20,-). ^ 1011. The comi)lainers, AVotlierspocm and Co., nianul'actnrini; confectioners, ap[)lied hiv an in- terdict ai^ainst the I'espondents, .bilin Gray and Co., to prohibit them from vending' lozen<;<^s made by the res|)ondents or otlK^rs except the com- plainers, nnder tlie style and title of " X'ictoria Lozen,;j:es,'' and from imitating, &c. Tlu; com- l)lainers said they were the lirst to npply the tei-m " Mctoria "" to the loiyMiges nianufactnred bv them, and tliereby acqniied right to the exclusive nse of that name as a trademark. On the otuer hand, the respondiMits contcMided th:it the complaineis had no exchisive riglit to the aiticle, and no exclusiv(^ right to the same, even supposing they had l)een. the lirst to :ij)ply the term '" Victoria'" to lozenges, whicli was d(Miied. It was said to Ix? (pute ;i com- mon tiling to api>Iy the name '* A'ictoria"' to 348 Words. I -fe 'I' shawls, perfiimeiy, and fancy articles in all sorts of trades, and that the lust use of such a name bv one manufacturer of an article well known in the trade gave him no exclusive right to the nanie, so as to i)revent other traders from giving tlu; same name to a similar article which is fairly and opcndy rc[)res(Mited to be manufactured by themselves. The Lord Ordinary thought the docti'ine well founded, and that by calling their lozenges " ^VothersJ)oon^s Victoi'ia Lozenges" the com- l)l:uner.s were not entitled to prevent the resi)ond- euts from selling their lozenges under the name of ".John Gray and Company's A^ictoi'ia Lozenges." Interdict refused. ISG-i, Court of /SV.s•.s•/o/^s•, aSVo^- Jiiinf, Wotherspoon i\ Gray, 86 ScoUish Jurist, 5? 101:2. A company cannot, by iTser, ac(xuire an exclusive light to use, in its title of in(M)ri)oration, a uenei'al term descrii)tive mei'i^lv of the local it v with which the business can-led on by thecomi)any is connected ; and the court will not restrain the use of such general term by a new company, even though it be in evidence that the former comi)any may have been pi-ejudiced by similarity of uame. Protection of the Avoi'd "'Colonial "' refused. 1804, Ilolls (7<>?A/*^, Col (mial Life Assurance Company v. Home and Colonial Assuram'e Company (^Limited), 33 L. J. IL {K S.) Ok. 741 ; S. C, 33 hrftr. 540. § 1013. AVh.-i'e th.^ name "Ne Plus Ultra" had become common in the trade as applied to needles, it was held, that anybodv might use that name to designate any (xuality of needles be pleased. 1860. Vice a/t. Wood\s' ^01., Beard v. Turner, 13 L. T. R. (/T. .s:) 747. § 1014. Where words, or names, r.re in common w " Words. 349 nse, the law does not permit sncli an npjn'opi-intion of them to be made, so far as tlicy nic roniinv- hended by siicli use, and for thut reiison, woi'ds :iiid names havinij; a known or estnblisluMl siii-nincalidu cannot, within tlie limits of sucli si^iiilic-Mtion, be exclusively appropriated to the ndvnnctMnent of the business purposes of any i)ai'ticulai' individutil, firm oi' coniiKinv. The iniibilitv to mnke such 1 c *. ii[)i)ropriation out of them nrises out of the cii-cuni- staiice thut on account of tln.'ir general or popular use. every individual in the community has ;m e(xual rii^ht to nse them ; and lliat I'ight is. in all cases, piiramf)unt to the rights and interests of nny one person, lirm or com2)any. AVhat may alike be claimed and used bv all, cannot be exclusivelv approj»i'iatod to advance the interests of any per- son. Numerous cases have been bei'oi'e (lie <'oui"ts ill which this linntatiou upon the use of woi'ds and names as trademai'ks has btMMi maiutaiuefl and estal)lislied, and no good reason can be given for questioning or impeaching their coiu'lusion. 1)a.\- lELs, J. i&C>7, N. Y. Siqrn'me Com/, d. 7'., New- man /'. Alvord, 49 Bcirb. HSS ; S. C, aflirmcd, 01 X. Y. 189. jj lOlT). But while this limitation is entirely rea- sonable, theie can be no propriety in exteiuling it beyond the circumstance n[)on which it is fouiuled. And accordingly any member of tlu^ community whose interests and business may be promoted by doing so, should be at liberty to tipply even names and words in comuKm use to the products of his industry, in such a manner as to indicate their origin or i)ai"ticula)' manuftu'ture, where such appli- cation will not intrench upon and be in no way included in their use by the public. By doing so. 350 WOKDS. r if ■5 the rights of no member of the rommunity can be in any manner infringed, and no public inconve- nience whatever can be occasioned by it. The pub- lic will still be left at full liberty to use such words or terms as they were used before ; wliilc for spec- ical purposes, a new office or i)urpose may be im- l)osed upon them. In cases of that description no greater inconvenience or embarrassment can be found in protecting parties in the enjoyment of the new use or purpose engrafted upon a i)opular term than lias been found in extending that protection to the cjise of a word created for the occasion, which was done in the case of Burnett v. Phalon. Daniels, J. Ibid. § 1016. The object of the law in cases of this description, is to restrain and prevent fraud upon the manufacturer, and imposition upon the public. And tliat object would be entirely defeated, in many cases, if courts of justice were bound to with- hold their protection from i)ersons who imposed a new office and signiffcation upon an old word for the purpose of I'endering it serviceable as a trade- maik. Tliere is no more reason iov allowing a person's business to be laid open to the fraudulent invasions and misrejn'esentations of competing mnnufactui'ers and dealers in such a case than.tlierc would be where the term was entirely new an:' .v vioui^ly unused. Where one person, by me i\: o" superior skill, intelligence and industry, has cicr :i a valuable trade for his goods or wares in the market, and idcntiffed such trade by the appropriate use of t(-rms, labels or devices, the party who simulates those terms, labels, or devices, for the purpose of diverting or securing the trade to himself, is guilty of a double fraud — upon the person creating the Words. 351 ring a trade and also upon tlie public. The ninn who goes upon the market in that inanner, .substantially represents that the goods or wares whicli he ofl'ei's for sale are those of the jjerson who lirst secured the public contidence for them. And the act cm- bodies all the essential elements of fi-aud. Tiie appropriation or use of terms of a pul)lic nature is sustained by Avell-c(msidered and v.ell-establislied authorities. Banies, J. Ih'ul. % 1017. The use of the woi'ds "AVashing Powder : " ITcTfl, not to constitute an infringement of i)laintiirs label and trademark, which had those words upon them. 1808, Supreme CI. of Val., Falklnburg ??. Lucv, 3.") Cal. rr2. § 1018. In an action bi-ought to enjoin the de- fendant from using the plaintiff's trademark, if the plaintiffs can be pronounced the lii'st to use the word claimed by them, all hough it be a popular term, and one in general use, e. f/., the word Bis- mar<'k, as a designation of a x>:ii'ticular styl(^ of goods made by them, and to have acquired by its manufacture and sale under that nan)e a valuable interest in such designation, the defendant may be restrained from using it to the same purpose. The plaintiffs had the right to appropriate such name, in common with others, for a new i)uipose, and having done so, are entitled to avail tliemselves of all the advantages of their superior diligence and industry. 1868, K Y. Ct. of Com. PJe^i.s, S. 7\, Meserole v. Tynberg, 4 Abb. Pr. (xY. .S'.) 410; s! C, 80 IIoiD. Pr. 14. § 1019. There is no reason for making any dis- tinction between a common word or term used for an original or new pur^wse which has accomplished its object and a new design adopted by a manufac- 352 Words. i . s^ tiirer. Both give currency to the arlicles to which they are applied, jjikI distingiiisli tlitMii from other niannfactures of a similar charactei-. / d/r/. ^ 1i0'20. The word, symbol, or term, ahsti'actly considered, is not the snhji^ct of special light or lW)i)erty, but it may beccmie so when the ai>plica- tion of it ideiitiHes a particular manufa<-ture, and the thing made, and the word, term or syml)ol, as applied to it, are synonymous. Pi'operty in a word, for all i)urposes, cannot exist, but property in a word, as applied l)j" way of a stamx) upon goods, does exist the m(mient the goods once get into the market so stamped, lieputation in the market, whereby the stamp gets currency aUvl an indication of superior quality, or of scmie other circumstance which would render the article so stamped accept- able to the public, is property. Ib/d. i 1021. No absolute right of property can exist in a word. A person may enjoy the exclusive right to use a particular word upon a particular article, and yet have no I'ight in respect to the same word when applied to another article. 1800, JV. Y. Su- preme CL, S. 7\, Amoskeag Manufacturing Co. o. Garner, driBarb. lot ; S. C, 6 Abb. Pr. {N. "S.) !26o. § 1022. The Amoskeag Manirfacturing C(mipany had for making years manufactured aoiton clotliH exclusively, to which it a^^plied the word "iVmos- keag" as a trademark. The defendauis subse- quently made x>rlnt.^^ and also used the word "Amoskeag." Held, that defendants had not in- vaded i)laintiirs trademark. Ihld. § 1023. Teiins in common use to designate a trade or occupation, in connection with other words indicating that a particular class of merchandise ol the same general description is si;)eciaily dealt in, i:i A.- Words. 353 ca.inot be exclusively appropriated by any one as a trademark. The words "Antiquarian Book Store" cannot be protected as a trademark. 1870, Supreme Ct. ofCal., Clioynski /). Cohen, 30 Cal. 501. ^ 1024. Where there are a great nunibei' of per- sons who i)roduce the same article, "orii^inal " means the iirst inventor. That is the meaniun' of the word "original" which the court of (chancery lias always recognized. The original inventor of a new manufacture, and persons claiming under him, are alone entitled to designate such manufacture as "the original ;" and if he or they have been in the habit of so designating their manufiuUure, an injunction will be granted to restrain another manu- facturer from applying the designation to his goods, 1871, Rolls Courts Cocks «. Chandler, Law 11. 11 Eq. 446; S. C, 19 Weeldn R. 593; S. C, >24 Lam Times {N. S.) 379; S. C," 40 L. J. R. (]Y. S.) C/i. 575. And see § GIO. § 1025. The original inventor of a sauce known as "Reading Sauce" had by long acquiescence lost the right of preventing other persons from manu- facturing and selling a similar article under the same name. The plaintiff, who was successor in trade of the original inventor, described his sauce as "The Original Reading Sauce,'' and on a bill by him to restrain the defendant from selling his sauce by the same title, an injunction was granted against the use of the word "original," notwithstanding the original inventor's said acquiscence. There was no evidence that the defendant had ever sold any of his own Reading Sauce as the plaintiff's Reading sauce, or that any one had ever purchased the defendant's sauce in mistake for the plaintiff's Reading Sauce. Ibid. 23 !^jj-aBppp 11 If; 'I ,1 If -N • ft ;* 364 Words. § 1026. When the spring lirst known as and named "Congress Spring" produces natural min- eral water of peculiar medical and curative i)r<)« j)erties, possessed by no other spiing, the words "Congress Water" and "Congress Spring Water" approjiriately indicate the origin and ownership of the water flowing from Congress Spring, and the woi'd " Congress," used in connection with the bot- tling and sale of such water, is a proper and legiti- mate trademark. 1871, JV. Y. (hurt of Appeals, The Congress and Empire Spring Company «. High Rock Congress Spring Company, 4;) N. Y. 291 ; S, C, 10 Abb. Pr. {N. S.) 348; reversing S. C, f)? Barb. 526. § 1027. Undoubtedly words or devices may be adoped as trademarks which are not original inven- tions of him who adopts them, and courts of equity will protect him against any fraudulent appropri- ation or imitation of them by others. Property in a trademark, or rather, in the use of a trademaik or name, has very little analogy to that which exists in copyrights, or in patents for inventions. Words in common use, with some exceptions, may be adopted, if, at the time of their adoption, they were not employed to designate the same or like articles of x>i"oduction. The office of a trademark is to point out distinctively the origin or ownership of the article to which it is affixed ; or, in other words, to give notice who was the x^i'oducer. This may, in many cases, be done by a name, a mark, or a device well known, but not previously applied to the same article. 1871, U. aS'. Sif,pre//ie Cotnt, Dalawaro and Hudson Canal Company t. Clark, 13 Wall. 311. § 1028. Though it is not necessary that the word adopted as a trademark should be a new creation, WOKUS. IJoC never before known or used, tlieic nie some limits to the ri<:;iit of selection. This will be manifest when it is considered tlmt in all cases where ri7 right to the descriptiofi "(folden Ointment" was the subject of liti<^ution as far back as IS'.V2, and in the case iit that tiin" before the (MMirt the plaintiff obtained an injunction. Plaintilf moved for an interlocutory irijun<'tion. The Vice Chan- cellor said that, considerin<; the exi.stin.i; state of the authorities, all he (m)u1(1 decide at ])res«'nt uas, that he was not at liberty to grant an interlocutory injunctitm, but must order the motion to stand over to the hearin;i. Tliere can be no right to the ui-e of mere generic words. Hence, "Julienne," designat- ing a manufactured article for julienne soup, does not denote origin or ownership, and like "Schnapps" and "Club House (Tin," it is a word used merely to designate the article or its quality. 1875, N. Y. Super lor Ct. S. T., Godillot v. Hazard, 40 iroi(\ Pr. r>. $^ 1034. T!ie words "conserves alimentaire," which are alike applicable to every descrijjtion of l)reserved or dessicated food, do not relate exclu- sively to the name or quality of any particular pre- paration, and are therefore the sul)je(;t of an ex(;lu- sive appropriation in connection with words wiiiv^h do not denote the name or quality ; and in that sense they may be regarded as designating the true origin or ownership of a manufacture upon the label on which they appear. Ibid. % 1035. A copy of the coat of arms of the city of Paris, when in connection with other marks, words or devices, not denoting name or quality, will cover a property in it, which will prevent its use in the same ('onnection or combination by another person. Ibid. % 1030. The words "consca'ves alimentaire," or the coat of arms of the city of Paris as a symbol, used upcm packages of "Juiienne" for julienne soup, could, if it was necessjuy, })e separately legarded as a tiadeujark. Obiter. 1 1) Id. % 1037. Where it was shown that the word Words. 359 ?s alimentaiie," or Paris as a symbol, line" for julienne uv, he separately /•." /hid. vvn that the word "Caporal" had been used in connection with manu- factured tobacco for many years prior to its appro- priation by the plaintifl: as a trademark it was held, that he was not entitled to its exclusive use as a trademark for tobacco. 1877, JV. Y Supreme CL aS'. 2\, Kinney v. Basch, unreported. § 1038. The symbols of a crown, a horseshoe, and words "Best," "Scrap," "Plating," &c., are symbols and words common to the iron trade. 1877, V. C. Ifaluis, In re Barrow's Application, 4(3 L. ./. li. (iV. JS.) Ch. 450 ; and see S. C, on appeal, 25 Weekly Ji. 664. See Desceiptive Name, Fancy Name, and also §193. \-2»W!lfPff" ■ !i: . J> TRADEMARK TABLE. EXCLUSIVE OF FRENCH CASES. I. Fancy Names and Devices Puotected. wm '''- Pessendede'''' (watches). 18:33, Vice Chancel- lor's Ct., Eng., Gout v. Aleploglu. "//. //. G" (ploughshares). 18:U, Vice Chan- cellor'B Ct., P^ng., Ransom t. Bentall. '"'' Morrisoii s Uiiiiier.sal Medicine.'^'' 1841, Com- mon Pleas, Eng., Morrison v. Salmon. " Taylor' a Persian Threadr 1844, U. S. Cir- cuit Ct., Stouy, J., Taylor ii. Carpenter ; 184(5, N. Y., Ct. of Errors, Taylor t\ Carpenter ; 1854, Vice Ch. ^Vo()l), Eng., Taylor r-. Taylor. '-'- Ethiopian'''' (stockings). 184G, Vice Chancel- lor's Ct., Eng., Hine «. Lart. ''Chinese Liniment:' 1849, U. S. Circuit Ct., Ind,, Coffeen v. Brunton. ''Pain Killer y 1850, Sup. Ct., R. I., Davis ?). Kendall ; 18G7, Vice Ch.'s Ct., Canada, Davis v. Kennedy. " Genuine Yankee Soap:'' 1857, N. Y. Superior G. T., William i). Johnson ; 1803, N. Y. Superior S. T., Williams g. Spence. [3C1J ■^s SffPi 362 Trademark Table. Is! : IS. i; '^ Cocoa ine^'' (Infriiia:ement : ^^ Coco'me'^ ). 1859, N. Y. Superior, 18G7, N. Y. Court of Appeals, Burnett v. Phalon. " lior/e?' WlU/ams Long Cloth:' 18G0, Sup. Ct., R. I., Barrows ». Knight. " Dr. Morsi^s Indian Root P Ills'' 1860, N. Y. Sup. S. T., Comstock v. White. ''Cross Cotton." 1861, Vice Ch. Wood, Eng., Cartier c. May. ''Excelsior" (soap). 1863, Vice Ch. Wood, Eng., Braham v. Bustard. "L. L." (whiskey). 1863, Lord Ch. Brady, Ireland, Kinahan v. Bolton. "Diamond State"" (matches). 1865, N. Y. Su- perior, G. T., Swift '«. Dey. " 303" (pens). 1877, N. Y. Supreme, 1872; N. Y. Com. of Appeals, Gillott v. Esterbrook, "Sweet (}poponax of Mexico" (perfume). 1867, N. Y. Sup. G. T., Smith ^. Woodruff. "Mrs. Whnslow's Soothing Sgrup." 1867, N. Y. Com. Pleas. G. T., Curtis v. Bryan. "Govan'-^" (iron). (Infringement: "Coats*"). 1867, Sessions, Scotland, Dixon v. Jackson. "Cocoatina" (Infringement: " Cocoa fine"). 1868, Vice Ch. Malins, Eng., Schweitzer v. Atkins. " Bis^marck" (collars). 1868, N. Y. Com. Pleas, S. T., Messerole v. Tynbergh. "The Hero" (jars). " The Heroine" (jars). 1868, Com. Pleas, Phil. Pa., llowley y. Houghton. TUADKMAUK TaBLE. 3G3 ''Charter OaW (stoves). 1869, Sup. Ct. Mo., Filley ?j. Fassett. '' BoDhia"' (pomade). (Inf rincjement : '^ Bom- Ihie''). 1809, Lockwood y\ Bostwick. '' Lii-ie and Let Lim'' (restaurant sigu). Geiiin v. Chadsey. ^' Ilair s Ver/efah/e Sicilian Hair Jienewery 1870, Com. Pleas, Phil. Pa., Gil lis v. Hall. ''Grenade Syrupy 1870, N. Y. Sup. 8. T., Rillet V. Carlier. '^Orif/inal Readiuff Sauced 1871, Rolls Ct., Eng., Cocks «. Chandler. "Conf/resfi Water'''' "Com/ress Spri)ip Water."' 1871, N. Y. Ct. of Api)eals, Congress & Empire Spring Co. r. High Rock Congress Spring Co. " Turin'' (cloth). "Leopold'' " " Sefton'' " " Liver pooV " 1872, Vice Cli. Bacon, Eng., Hirst d. Denham. "Eureka'' (shirts). 1872, Ch. Ct. of Appeals, Eng., Ford v. Foster. "Exactly tweloe yards " (in Turkish). " Exactly I iieloe yards'''' (in Armenian). "■ Exactly tweloe yards'" (in Roman). 1872, Ch. Ct. of Appeals, Eng., Broadhurst i\ Barlow. " Aromat ic Schiedam Schnapps.'" 1872, Sup. Ct. La., Wolfe i\ Barnett. Contra., Wolfe w. Goulard ; Burke ??. Cassin. "Keystone Line'"' (steamships). 1872, Com. Pleas, Pliil. Pa., Stetson r. Winsor ; 1872, Com. Pleas, Phil. Pa., Winsor v. Clyde. 8G4 TiiADEMAiiK Table. '' The '^ Shirr' 1872, U. S. Circuit, Conn., Mor- rison 0. Case. ''Mark Twain'' {iioni deplume). 187:3, N. Y. Sup. S. T., Clemens d. Such. ''Conserves Allmcntalre.'''' 187i5, N. Y. Superior S. T., God i Hot c. Hazard. "I/" U'i,i,^arettes). 1877, N. Y. Sup. S. T., Kinney v. Basch, and see Kinney w. Allen. "/;. B. ir (iron). 1877, Cli. Cr. of Appeals, Eng., In re Barrow's Api)lication. See also, 1842, Crawshay v. Thompson ; 18(51, Henderson v\ Jorp ; 1802, Cartier o. Carlile ; 180:}, Hall (\ Barrows ; 180:}, Edelsten v. Eldesten ; 1803, Wotheispoon /'. Gray; 1871, Sold v. Geisendorf ; 1872, Smith o. Reynolds ; 1875, Morse v. Cornwell, and other cases in the digest. II. Geographical Names. a. Protected. "'Anatolia " (liquorice). 1804, Vice Ch. Wood, Eng., Mc Andrew v). Bassett. ''Se'ixo" (wine). 1800, Lord Ch. Cran worth, Seixo v.. Provezende. 'Tall Mall Guinea CoaV 1800, Ch. Ct. of Ap[)eal, Eng., Lee v. Haley. "(ilenjlehV (starch). 1872, House of Lords, Wotherspoon i\ Currie. " LeopohWiall" (kainit). 1872, Vice Ch. Wickens, Eng., Radde v. Norman. m inw Tradkmauk Tat?le. 365 "A/tTOTi" (coment). 187:?, N. Y. Com. of Ap- peals, Newrnjui r. Alvoid. " Worrr,sf(rfi/tire " (sauce). 187:}, N. Y. Sup. S. T., Lea?'. Wolf. " A'p/)o/l///or/s "" (niiiieral wafer). 187.'^, Vioe Ch. Bacon, Vavj^., Api^olliuaris (Jo. (Litiiifed) w. Noirish. ''S/. Jrrmr.'i'' (ci,i?arettes). 1877, N. Y. Sup. S. T., Kinney r. IJascli. And see other cases in the digest. h. Not prolcctnd. ''Coloniair 1804, Rolls Ct., Eng., Colonial Life Assurance Co. i). Home and Colonial Life As- sui'ance Co. (Limited). '' Molhie, inr (ploughs). 1870, Sup. Ct. 111., Canth^e /'. Beere. '' Lavhnmivna:' (coal). 1871,11. S. Sup. Ct., Delaware and Hudson Canal Co. ?\ Clarlv. ''Glcndon:' (iron). 1874, Sup. Ct., Pa., Glen- don Iron Co. V. Uhler. ''Durham'' (tobacco). 1875, Sup. Ct., N. C, Blackwell v. Wright, and see Blackvvell v. Armis- tead. And see other cases in tlie digest. III. Descriptive Names axd AVouds in Com- mon Use not Pkotected. ''Dr. Johnsoiis Yellow Ointments 1783, Kings Bench, Singleton >\ Bolton. " Velno\s Ver/etahh: Si/rupr 1813, Vice Chan- cellor's Ct., Eng., Canham v. Jones. 366 Trademark Table. '^ TJiouisoninn Medicincsr 1837, Sup. Jiid'lCt., Mass., Thomson «. Winchester. ''A. V. iV (tickings). 1840, N. Y. Superior S. T,, Amoskeauf Ml'iJj. Co. o. Spear. " Ci/lhi(ler'' (glass). ''Lake'' (do.) " New YorJc'' (do.) ''Galen'' (do.) 18.j3, K Y. Sup. S. T., Stokes v. Landgralf. " Bahn of Tlioasanrl Flowersr 1857, N. Y. Sn])eri. 1" do. "XiV^o. 1" do. "i\^o. ;r' do. ''B.No.V do. 1870, Sup. Ct. 111., Can- dee T. Deere. '' Novrishinff Stout:' 187:}, Vice Ch. Malins, Raggett r. Findlater. " Gold Medair 1874, N. Y. Ct. of Appeals, Taylor i\ Gillies. ''Char it ir (name of a play). 1874, N. Y. Su- perior S. T., Isaacs v. Daly. ''■Julienne'''' (for julienne soup). 1875, X. Y. Sup. S. T., Godillot v. Hazard. ^;^|jj— jjjjggj^l 368 Trademark Table. |i' i " Turl-rr Ffprhu/ Brdr 1875, U. S. Circuit 111., Tiickor Mfg. Co. v. Boyington. "7?r.7, Pidding «. How. "■Medicated Mexican Balm'"' 1842, Perry v. Truetitt. ''Dr. W I star's Balsam of Wild GUerry.'" 1847, Fowle V. Spear. "FlatelVs Patent Kltcliener.'' 1853, Flavell v. Harrison. "Kathalron." 1855, Heath v. Wright. " Balm of Tliousand Floioers." 1857, Fetridge r. Wells. And see Fetridge ?>. Merchant. "Mecn Fun:' 1800, Hobbs r. Fiancais. * Now in the Court of Appeals for review. \\ '■''' If TllADKMAIIK TaHM: nni) ''Extract of K'kjU BJoohuikj Cn-iusr IHC.-I, Plialon r. Wri'^^ht. " Pdfnit Vlinnhaijo UnicUtJcs:' IS(5(;, Moriiaii r. M'Adain. ^'doh/rii Crown Ch/arsy IWJD. Palmer v. llairis. ''■Ldirtrfi Bloom of YontJi^or Liquid levari." 1872, Laird t\ Wilder. "J/r/.vo^r.s ratntt. Korewt)fr '^{\ ISns." 1874, Consolida/ed Fi'iiit Ja:- Co. v. DorlliiiLrer. '■'Capvine Pta.'^fers." 1877, Seabiiry f\ Gios- \e\mv. See also. 1848, Patridge ?i. Menek : 180,"), LeaflnM- Cloth Co. (Limited) v, American Clotli Co. ; 18(;(). Sherwood v. Andrews ; 1875, Eastrourt r. Esr- coiirt Hop Essence Co. (Limited), and other cases in the digest. V. IxjuNCTioNS Refused by Reason of De- lay, ACQUIESCEXCE, FaILUIIE OF PlIOOF, AND AVaNT of JURISDICTIOX. L-idge ''Great MoguV (cards). 1742, Blanchard v. Tlill. "M. or (tin plates). 18.")7, Motley >\ Down- man. 1847, London and Provincial Law Assuiance Society v. London and Provincial Joint Stock Life Ins. Company. "London Manure Coy 1848, Pursers. Brain. 24 ! -«*ffir^ 370 TlJADEMAUK TaIJLK. 18.")4, Amos «. Kini;- ; IS.m, Meiiinuick Mfg-. Co. ». Gariior. '^ Ara mi nfjo Millar 1800, Colloday /'. Biiiid. 1800, (Jiooii ?'. Shepherd; 1800, l^'iird r. Tiiriier; 180(5, Aiiiswoith v. Wahiiesley. ''Ll(>i/(l\s Eiuvvsisr 1870, lloveiiden v. Lloyd. ''mrrr Brook WhisJcci/r 1871, Seltzer /\ Powell. 1871, Isaacson ?). Tliompson. ''doldcn Ohdnientr 187-2, Green ?5. Rooke. '"' CMorodi/ne.'''' 1874, Browne ??. Freeman. 1874, Rod<^er.s ??. 187."), Rodgers ; Eastcoiirt v. Esteourt Hop Essence Co. (Limited). And see other cases in the digest. VL Names of Hotels axd Vehicles ; Busi- ness Signs, &c. '' Inrhify IToiisr,'" protected. 1850, N. Y. Supe- rior S. T., Stone v. Carlan. '•'' Revere Iloitse,'''' protected. 18,')1, Sup. Jnd'l Ct. Mass., March r. Billings. ''In)inp House,'' protected. IS.")!, N. Y., Su- perior S. T., Howard /'. Henriques. ''Howes Balierii;' protected. 1800, N. Y. Su- perior G. T. , Howe «. Searing. " What Cheer Housed 1803, Sup. Ct. Cal., AVoodward c. Lazar. TUADEMAUK TaULE, 371 *^ McCnrrld Jloirse,'' protected. 1804, N. Y. Sup. (1. T., .McCardel i\ IVck. ''Pra^roll Thiixr;' protected. 1871, N. Y. Sii- l^erior, S. T.. I)(mz i\ Liunb. '■'• Aii/i(jii(if(((n, Book iSVo/V'," not protected. 1870, Sup. Ct. Cal., Choyn.ski i\ Cohen. ''Maviinolk Wordrohc,'' not protected. 1871, Cii'cuit Ct. Mi<'h., Gray r. Koch. " Wood's Hotel;' protected. 187;'), Circuit Ct. 111., Woods i\ Sands. And see 18:^0, Knott \\ Morgan; 18.");i, Buriyess t. Burgess; 18.')7 ; Peterson ». Humphrey; ISC)."). Glenny n. Smith; 1808, Colton w Thomas; 1874, Glen and Hall Ml'g. Co. i\ Hall ; 187."), Devlin >\ Devlin; 1870, Booth w. Jarrett ; and other cases in the digest. VII. Labels. a. Protected, Siee, 1810, Bay t. Day; 1831, Bay ?). Binning; 1843, Ci'ol't (\ Day ; 184.i, Coats v. Ilolbi-ook ; 1847, Franks v. AVeaver; 1849, Amoskeag Mfg. Co. i\ Spear; 1S,')3, Edelsten /). Vick ; 18,)4, Shrimptim >\ Laight; 18^4, Taylor v. Tayloi-; 18.")0, Walton w Crowley; 18.")0, Stewart }\ Sniithson ; 18.')7, Clark i\ Clark; 18.')7, Williams v. Johnson; 1S(J1, Dale ?\ Smithson; 1805, Ilarristm i\ Taylor; 180."), Southoi-n ?'. Beynolds ; 1807, Stephens t. Peel; 1807, Curtis i\ ]3ryan ; 1808, Boardman v. Meriden Britannia Co. ; 1809, Lockwood (\ Bostwick ; 1870, Dixon Crucible Co. «. Guggenheim ; 1871, Ilostet- f.f 372 Trademark Table. ter V. V(3wmkle ; 1871, Gardner ?'. Bailey; 1871, A1)l)ott ^5. Baker and Confectioners' Tea Association ; 1872, Blackwell /). Armistead ; 187:J, Lea f\ Woll ; 1874, Brown (}. Mercei' ; 187,"), Godillot n. Hazard ; 1870, Anioskeag Mfg. Co. r. Garner ; 1877, Kinny v\ Bascli ; 1877, Ilennessy o. Wheeler ; and otlier cases in the digest. b. Not protected. See, 1840, Partridge ?). Menck ; ISno, Foot v. Lea ; IS,")."), Merrimack Mfg. Co. v. Garner ; 18G(>, CoUoday ??. Baird ; 1803, Wookim v. liatcliff ; 18(5."), Leatlier Cloth Co. (Limited) v. American Cloth Co. (Limited); 1800, Ainsworth «. Walmesley ; 1807, Blackwell t\ Crabb ; 1807, Paber v. Fa1)er; 1808, Falkinbiirgh o. Lucy ; 1809, Bass i\ Daw])er ; 18()0, Ferguson v. Davol Mills ; 1808, Amoskeag Mfg. Co. t\ Garner ; 1871, Scoville g. Toland ; 187."), Blackwell o. Wright ; and other cases in the di- gest. VIIL Publications, If .-: I! '1 See, 1^02, Walcott i\ Walker: 18()3, Hogg ?t. Kirby ; 1810, Lord Byron d. Johnston; 1877, Southey v. Sherwood ; 1821, Edmonds (\ Benbow ; 182."), Snowden (\ Noah ; 1840, ]3ell i\ Locke; 1840, Spottiswoide ?'. Clark; 1848, Clark v. Freeman; 18.")(), ,b>llie r. Jaques ; 18.').'), Chappell (\ Sheard, Cliappell i\ Davidson; 18r)0, Prowett r. Mortimei" ; 18.VJ, Clement v, Maddick ; IS.V,), Dayton r. AVilkes; 1859, Ligram ?«. Stiil' ; 18.')9, Bradbury V. Dickens; 1800, Brook o. Evans; 1800, Har- Trademark Table. 373 per c. Pearson ; 18G2, Burrows o. Foster ; 1804. Browne v. Fi'eein;in ; 1807, Houg r. Maxwell, Max- well v. llo.u'.i;' ; 1808, Stevens i\ Paine; 1808. Stephens i\ DeCJonto ; 18(58, Kelly t). llutton ; 180!>, Dixon r. IIol(l<.'n; 180!), Bra(Il)ury r. Beeton ; 180;), WlieehM* and Wilson Ml',^•. Co. n. Shakespi^n- ; lS7-i, Os.i^^ood t\ Allen; 1873, Christie v. Cliiisti.> ; 1873, Clemens i\ Such; 1874, Isaacs v. Daly ; ]87,"), Tallcott V. Moore ; 1870, American Grocer Publish- ing Association v. Grocer Publishing Co ; and other cases in the digest. IX. Firm Names. Sec, 1701, AVebster ?\ Webster; 183."), Lewis r. Langdon ; 1857, Peterson y. llumpluvy ; 18,-)8. Fenn y\ Bolles ; 1S.)9, Churton «. Douglas; 1801. Bowman ti. Floyd ; 1804, Johnson y. Ilelldy ; 1804, Bury v. 13edl'ord ; 180.-), Banks r. Gibson ; 1800, Dickson d. M' Master ; 1800, Scott v. Scott; 18(57, Hodgers /'. Taintcn*; 1871, Reeves r. Deincke ; 187:2, Weed i\ Peterson; 1872, Scott d. llowland : 1872, Morse v. ilall ; 1872, Sohier v. Johnston; 187."), Phelan v. CoUender ; 1870, Carmicdiael i\ Lati)ner ; and other cases in the digest. X. Restraint ix the Use of Oxe's Own Name. See, 1824, Sykes v. Sykes ; 1843, Qvoh v. Day ; 1847, Ro'igers i\ Nowill ; 18:)(), llolloway v. IIollo- way ; 18.">;{, Burgess w. Burgess ; 18.")7, Claik a. 374 Trademark Table. Clarlv ; 18.");'), Sor.thoi'n v. Reynolds ; 18G7, Howe v. Howe Miicliine Co, ; 1800, Firnei-son v. Badger ; 1870, Slonebi'eaker v. Stonebroaker ; Coats t. Piatt; 187.1, La/enby ?j. White ; 1872, James t. James; 1872, llallett v. Cumston ; 1872, McCrowaii Bros. Pump and Machine Co. v. Mcdowan ; 1872. Meri- den Bi'itanniii Co. w. Parker; 1874, W'olfe n. Bnrke; 187."), Meneely v. jMeneely ; 187."), Devlin 'i). Devlin ; 187;"), (iourard «. Trust ; 187(5, Deekei- /'. Decker; 1877, Prince Metallic Paint Co. v. Caibon Metallic Paint Co. ; and other cases in the digest. DIGEST OF FRE^^CII DECISIONS. BY FRAXCIS rORDES, COUXSELLOn AT LAW. PREFATORY NOTE. Before the revolution tliere were no tradenitvi'lvs. as now understood, in France. Tliei-e were certain ohli,•« -I • ) ( .» FuKxcH Dkcisioxs. I of (iiitintal liosipiy were anlii()]'ize, the niaiiufiK'tiirei's of the eity ol' liouviers wne ui-aiitcd I lu' exclusive i'i<^lit to use a ycllnw and blue Ixtrdcr to th(^li' cloths. A decree of December '2'2, 18H), ,ii,TantHd to all other cities of France the li^ht to use bory I )harmaceuirsts. The oeneral hnv of July IS, 18:24, left in I'orce the law of vear XI, and secth>ns 142 and 141} of the Penal Code in leference to maiks. and sou^^ht to protect the use of names of persons and places. In 18r)7 a ,ii,'enei'al law, su[)ersedinii; all I'oi'mer laws, in i-elation to marks, was passed.'^' l>ut it did not repeal nor supersede the law of 1824, in I'ef- Tlie pi inise 'in;i riv of miumfacturc or of coinmcrfM IS ^I^i(•l ill ihc. law; inaiks of iiiaiiul'acturc iiciiiu,- tlic inaiks usoil by llie inainil'actiircr to ilistiiiiiuish his luaiiul'aL'Uirt's, and marks of coiii- iiurcc those I'liiploycd by the iiici't'liaut to {li>tin,niii>ii ihc iioods bv li nil. The whole jilifase may be lraii>lated liyoiie woii -trademark. Freiicli authors, in translating' tradeniai'k into the I'^iviich lantiiia.Lje, have used one or other of said terms, iiKii'iiiii' ill I'lihritiiie or 7 l)i't ween I'ra nee aiK iiKiiii'ir lie I'iniitiicrrc. In the treaty of iSii'.t, 1 the I'nited Slates, tiuidtnairk and nKtnj'o.' da juh iri(t: are •d interehanyeably. >! >n I'. 378 Fkexcii Decisions. eience to names, &c., nor take away the riglil of action Avliich existed under art. V38'2, of the Civil Code, for unlawful rivalry in business. Th(^ law of IS.'Ji? is not intended as a vc'iilieation by the state of the quality or natui-e of the nierchandise, bur only as a proof of its orilaeed on sal(% one or more pi-odncts invested with a mark frandnlently imitated, or bearini^ indications of a kind to deceive the bnyer as to the nature of the product. Art. 9. Are punished by a fine, of from fifty francs to one thonsand francs, ;ind by an imi)i'is- onment of frcmi fifteen days to six months, oi' by one of these ]ienalties : 1st. Those who have not fixed npon their pro- ducts a mark declaied obligatory. 2nd. Those who have sold, or placed on sale, one or more products, not bearing the mark de- clared obligatory for that kind of products. 8rd. Those who liave contravened t!ie provi- sions of the decrees rendeied in execution of arti- cle first of the present law. xVrt. 10. The penalties established by the pres- ent law cannot be cnmulated. The greatest penalty is alone pi-ononnced for all the acts {interior to the fii'st jjrocess. Alt. 11. (Penalties may be doubled in case of repetition of offense.) mv '■ 884 PUKXCH STATrrilS, Art. 12. Arfirlc 1(5:3 of tlie Pciuil Codt' iii.'iy ho applied to niisdfMHciMioi's iindtM' tlic ])i'(*s(Mif hnv. Art, i;}. (OnV'iKU'rs iiiny he d('i)rived of the'" ri.!:^!its to ])articip;it«> in certMin elections. Tor :i te; of less than ton years.) The coiii't may order the ]>ostinLij of rlu^ jiidn'ineiit in places that it determines, and its insertion in I'nll or by extracts in the ne\vs])apers that it desin;- nates ; the whole at the expense of the conde'inned. Art. 14. The confiscati(m of the ])rod:icrs, the mark of which shall be found to be contrary to tlie provisions of articles 7 and 8, even in case of ac(]uittal, can be ordeivd by flie conrt, as well as the instruments and utensils which s])i>cially served for the commission of the wi'onsj^. The court may order that tlie ('(mtiscated ])roducts be delivered to th ])r()priet(n' of the mark counterfeited oi- fraiK lently ailixed, or imitated, independently of anipiei damau'es, if there iu' occasion therefor. Tt pre- scribes, in every case, the desti'uction of the mark found to be contrary to the provisions of articles 7 and 8. Alt. IT). (Imposition of obligatory mark"' must always be decreed. The court may decree the con- tiscation of the products in case of condemnation for same offense within live years.) Tiile IV. Jurisdiction. Art. IG. Civil actions relative to marks are brought before the civil tribunals and judged as summary matteis. In case of an action brought criminally, if the defendant raises for his defense questions relative to the f^^vnershii) of the mark, the tribunal Frexcii Statutes. nso 11 y bfl hnv. the'" on in tlesir?- miiod. s, the \vy to ■ase of ns the -ed for V order to tV rant ampit'i t IH'H- ' ni;nk tides 7 of Police CorrertioneUc passes jiidu^rneiit on tlie question. Articles 17 and 18. (Ilegulato proceed ini;s before the courts.) Title V. General and Transitory Arranr/cments. Art. 10. (Provides tliat all foieiixii ])rodu('ts bearinu; the mark or name of a mannljM'fiirci' resi- dent in Fiance, oi' the name, or tiie i>lace of a i*'rpn<'li factory, shall he excluded from France, oi- s(^iz<>d.) Article 20. All the rc<^ulations (»f this law are applicable to wines, eau-de-vie, and other drinks, to animals, grains, tlour, and generally to all ngri- cultural products. Articles 21, 22, and 23. (Provide for dei)osit of trademarks: that kiw sliall talve ell'c(^t in six months: for rules of deposit and puMication; and that this law shall not affect pnnious deposits.) T must lie con- mation IKS are Iged as if the lehitive libunal LAW OF NOVEMBER 26, 1873. Relatioe to the eatahlisliment of a stamp, or spe- cial sign designed to be placed, on trade marks. Art. 1. Every proprietor of a mark of manu- facture or of commerce, de]K)sited in conformity to the law of June 23, 1807, is entitled, on his written demand, to have placed by the State, either on the paper label, band or wiapi)ei-. or on the metal label or seal, on which is shown his mark, a special printed or impressed stam[), de- signed to alHrm the authenticity of said mark. 85 u It ?i 1 13 386 French Statutes. The stamp may be placed on a mark which forms part of the objects themselves, if the administra- tion considers them capable of rtceiving it. (The remainder of the law refers to details of its administration.) FRENCH DECISIONS. § 1050. Initials of proper namps. — Rcquisiteft of mark. — lleriiHtr>i. — Vignettes, containing* the lef ters G. F., interlnced with the letter JN. followed l)y a space for a nuineial, — printed by a copper i)lare on slips of paper, — were i:>asted by ])()th coni])lainaiit and defendant on their goods. Tlie ordy diUVMence between the two marks was the letter C, phici^d by defendant so as to ap])ear to foi-ni part of the letter F. (complainant had re<;-istered his mark. Ildd., that the manufacturer who adopts a mark ought to arrange it so that it cannot lie confounded with that of another manufacturer who has alieady made use of it. This is applicalde even in the case of simple letters of the alphabet, initials of manu- facturer's name. 2. An imprint on paper attached to the manufac- tured object, may be a trademark. 3. Property in a mark is not acquired by the formality of registry. Registry is only lequired as a condition precedent to the acti(m for infriiig(>- ment. Gurrin t\ Forest, C. de Cass., 'J8 ^[ay, 182'J, Journal da Palais, 1822, 380. § 1051. Damages. — Damages ought to be calcu- lated according to the loss of the complaiiuuit, and not according to the profits that the ini'ringer has [387] 388 French Decisions. t been able to make. C. de Nancy, 20 March, 1827, Germain ?). Sevene, Sirey, 150, 1, 8(5.5. ITu.ard M. do. Fah. p. 47. § 10r)2. Ilcld^ on the contraiy, that the infringers onght t ) restore to tlie eomplainants, wliose ])rop- erty they luive usurped, all tlu^ illegitinjate b(»iielirs which tli(\v have realized hy aid of tlieir fraudulent practices ; that they also ought to aeoount for thn prolits which they have deprived romplninants of, and to repair the wrong wliieh thev have cjiMsed l)V the depression of the price of the n»e]'(;handise mannf;ictured, and the rise of the price of the r;nv material, usual and almost necessaiy consequences of an unlawfid rivalry ; they onglit also to indem- nify largely com})lainants for all they havesnlfeied in their credit, sacri1ic(^s of all kinds which thev have been obliged to submit to, and all the expenses which they have been obliged to sustain to protect their rights. On these conditions only can the great industries which honor the country, and which have too often to fight against the culpable maneuvei's of infringers, maintain and defend them- selves. Tribouillet i\ Monnier, Tr. CVmi. de la Seine, 8 Aug. 1857, Ilaard M. de Fah p. 48. See Blanc de la Contrefa(;on, ]). G8:i. §10,5'?. Name as mark. — Uxc of name of third party. — A. Seignette & Pontier had been for a l same style as the old house. K. S. ^: Co. claimed that they were authorized by Alex. Seignette of the United States, a bi-other of one of the jKirtners, to tise his name. Use of the mark A. Seignette, or I. 4-,. French Decisioxs. 389 any other similar innik by dt^fdudants eiijoiiierl. X commercial liouse can demand that another house in the same trade use m difToreni mai-k from that whicli it lias stamped for a \ovj; time o:i its <'X[)ort«. Seiii-uette r. >>eJ<^netU\ 0. de Poiliers, 12 July, J8:}3, Joai'uaJ (In Palais^ 18'};J, (578. ^ 1().')4. NmncraJ-'i. — lnfrUi.(io.:n<'nL — OhajHjc of inarJc ordered. — The? nKU-k adopted must Ix; so dis- tinct from the marks of other nninufactiuvM's. Ihat it cannot be confounded with tliem. Wlien a man- ufactui'ei', adding numerals to his name, lias us(^d for a long time the mark Diiuiu^ :3'2, another mauii- facturei' cannot, by adding numerals to the name of liis partner, take the mark DiinKta V.\2. There is too little difference between thes(3 two intirks, to [trevent their being ccmfounded. In conscipience, (lie use of the mark Dniuas l'}2, was enjoined. Tn ease of nnintenti(»ird resemblance between t vo marks, the c(Mirt, alth!)!igli denying any dasn- ages for infringement, sliould always order tliesuji- I)i'e-vsion or change of the marks to ])revent future confusion. Dumas r. IJernard and Dumas, V,. lie Hiom, 18 February, 18:M, Jintrii'd dn Piltis, 18:34, 178. ii lOo,'). Generic lenn. The word ink is \ generic term, wliich everyone may make use of, but no (me but the lirst possessoi* can usi; the words, encre de la petite virtu, {^htk of ike lillle rlrtiie.) Laren- audiere i). Perine-Lruyot, C. de Paris, July 24, 18:]r>, Ifnard M. de Fab. p. 1."). i^ lO.VJ. ^tar. A star, printed u[)oa a coloretl cai'.', without initial lettei's indicative of the name of the mamiiacturer, or of the jtlace of manufacture, is a good trademai'k. Lelaige ^?. Brossom, C. de Rouen, 530 Nov. 1840, Jovrmd dit Palais, 1840. i! i 390 French Decisions. If :« I § 1057. Geograpl deal name. — A manufacturer of lime, wlio without beiniu; the exclusive proprietor of the quarry from wliich the rougli uuiterial is taken, cally his products by the name of tlie district wliere the (piariy is situated, cannot hinder anothei- \\\'x.\- ufacturer of lime, who uses the same (piarj-y, rr;)i:i ^ivin/j," his pioducts the same name. De Lahnj .-. Grig'uon, C. de Cass, 24 February, 1840, Juiwivd dn PalaiH, 1840. § 10,")8. Name. — The merchant wlio sells, as com- ing from one manufacturer, produ(!onjean ^vas the original manufacturer, the plaintilfs his succes- sors and proprietors of the name under Law of 1824. Iloyer c. Birtiche, C. de Paris, i;3 March, 1841, Journal da Palais, 1841. Koie. Nevertheless there are objects to which general usage has given a name, e. (/.., himps of the kind called Careel, whi(;h are all calknl Carcel, al- though they are not made at the factory of Carcel, or his successors. § 10.")D. It is not necessary that the eml)leais adopted as trademarks be new ; it is necessary and it is sufficient that their ai)plication be new. llol) ertson v. Langlois, Tr. CVmmi. de la Seine, '.'A March, 1841, 1/ttard M. de Fab. p. 12. Id. Sevin /-. Provost, Tr. C(mim. de la Seine, 14 Octobei', 1847. Hnard M. de Fab. 12. J? 1000. One s own name. — Whenever the mark IS made up of the name of the person who uses FiiENCii Decisions. 391 it, others, who have the same name, have an equal right to use it; and one cannot forbid its use by the otlier. Mounier v. Jobit, C. de Bordeaux, 2^ June, 1841, Journal dit Palais^ 1841. § lOGl, Descriptive name. — The phrase " sic- catif brillant""' (brilliant dryer) although indicating a fact, is nevertheless not a necessary title to tiie product, and is a good mark. Aff. Raphanel Tr. de Comm. de Paris, 5 October, 184:J, Uaz. des Trio. lluard M. de Fab. p. lo. ^ 10G2. Rigid lines, not a trademark. IJiglit lines running parallel upon the surface of a cake of soap do not constitute a commorcial designation worthy of the protection of the court. Diusilly V. Droux, Tr. de la Seine, 28 February, 1844, llaard M. de Fab. ^. 19. § ]()G3. Form of product. The form given to a product, — e. //., the form of a pipe, — is not analo- gous to a mark of manufacture. It is only a simple designation of merchandise protected by article 1382 of the Code Napoleon. Fiolet r. Duval, Tr. de Morlaix, 25 March, 1844, Iluard M. de Fab. p. 19. § 1064. Hidden mark. The device which man- ufacturers of champagne X)lace on the part of the cork inserted in the bottle is a trademark. A court cannot refuse to grant an iujunction against the infringement (jf such a mark, because, ])eing placed in the interior of the bottle, it is not appar- ent, and could not therefore serve to deceive pur- chasers. Min. Pub. r. Bernard, C. de ('ass, 12 July, 1845, Journal du Palais, 1845, ]). (555. § 10G5. Limitation of action s for in^'rinr/cment. Infringement of a mark, or of a name, cannot bo legalized by the longest use. The proprietor of a ■ i' ft- ^SppSSP PV i-« ;ja2 Fkejvcii Decisions. 6 M name or a mark is always at liberty to hrin/;- lii;j suit, wlion, and against whom he pleases. 24 July, 1840, Tr. d' Amiens, Kooult i\ Andicy (Vinaigre d' Orleans), Id. 531 December, 1852, C. de Gnnoble, Gamni «. llivorri (Liqueur dii la Grande Chartrum), I/l. 2 Aug'ust, 18j4, C. du Paris, Chre- tien v. Bal mount ( Vai du Sunel Tr.) Iltiard Marq^ie de Fah. Tr. p. 8:n. § 1000. Wrapper, imitation., damage a. — By the court. ^ * As the suit is brought by the appel- lant for the fraudulent imitation by Boudin of the envelopes which contain the ])roduct placed on sale ; '•■ '^ as the insi)ection, only of the seized packages and their comparison with those placed on sale by the appellant sufTices to demonstrate that by the yellow color of the lirst wrapj)er, by the rose color, and by the ornaments and medals of the prospe(!tus annexed, and by the gieen color of the band, in a word, by the care used in the whole dis- p;)siti()n of the packages m-inul'ac!:ured and sold by Boudin, to give them a resemblance to those made by Lecoq and Bargoin, Boudin has attempted to facilitate a confusion between the two, &c. Judg- ment for plaintitfs, damages. (Under C C. ^ 1382). Lecoq and Bargoin o. Boudin, C. de Lyon, 15 Jan. 1851, Journal da Palais, 1851], vol. 2, p. 'M)S. § 1()G7. 2, Joanial dn Palais, 1852, 1, 190. ^ 1009. Form. To the lirst user belongs the special form given to a ])i'odn(Tt, if the form is not reipiii'ed by the natur(> of the object. Aubi- neau r. Gillemont, Tr. Comiii. d(^ la Heine, 17 Feb. 18i"52, Ilifard V. dc Fah. 18. See -< 1078. vj 1070. Marks not aUachnl. — [nfrhtf/cuiciU. — There is no infringemiMit when the marks have? been made separate from the goods, and never l)laced thereon. Alf. Barbeh-, C. de Paris, 18 Febuary, 1852, Dalloz, 1832, 1, 2ji). ^ 1071. Eaude Botot. — Na/me in. conunoii vsc— Form of hollies. — Infrinf/ciiicitL—WXumw lic]uid kiiov.-n by the name of its inventor, has (>ntered in!o common use, the impression of its title on thc^ body of the bottles intended to coiitain it. i:i not a mark of manufacture susceptible of exclusive property. Impressing a mark on empty bottl(>s does not con- stitute a punisluible act. Barbiei- v. Bouman, C. d(^ Cass, 9 July, 1852, Journal d;ii Palais, 1C52, 1, 413. "• I * Changed by law of 1837. Sec § llHo. r;i 394 French Decisions. § 1072. Vignette.— Puhlic tmildhif/s.— The vig- nette adopted by a maniil'acturer to distinguish his piodiictions, and wliioli lie places upon the boxes and wrappers in which they are shii)ped, constitutes his trademark, even though the vignette represents a public establishment belonging to the State, which had previously been placed on a scientilic i)ublication. (A work of art distinguished I'rom a mere print used to designate a certain thing.) Ben v. Larband, C. de Riom, 23 Nov. 1852, Journal da Palais^ 1853, 1, 244. § 1073. Generiename. — Viaeifard proprietors. — The use by a merchant in his marks and labels of a generic; name, previously used by another, does not render him liable to a suit for damages by the latter, especially if he has introduced in his name and the vignettes accomi)anying it, such changes as to avoid all confusion. Bv THE CouKT. As the plaintiffs have not chosen for the essential features of their mark, a proper name susceptible by itself of being property ; as they have not adopted a fancy name, which by a species of lirst occupation thoy had a right to claim as their exclusive property ; as the title under which they export their producit — Lcs ^:>ro/?r/V- taircs de xir/noules^ in English, Vineyard 'propri- etors., is a generic term, belonging to an indelinite number of i)roprietors ; as the term is similar to a name belonging to several persons, of which the law has never enjoined the use by the owner, even though a person of the same name has adopted it for a mark of his products, '^ * Judgment for defendant, &c. Salignac & Co., had obtained an injunction in England. They were required by this judgment to II t French Di:cisioxs. 30n have it dissolved. S:iligna(; v. Savanior, C. de Bor- deaux, 19 Apiil, 185-}, Journal da P((Iais, 18.')4, 1, p. 120. § 1074. Generic name. — An pelit pot. — Altliouuli a product lia.s been sold I'roni time inimciuorial in a little pot {^un j)ctU pot), the words "at tli(; little pot" (ail i)etit pot), do not constitntt? on that iic- count a generic name, and the one who lirst adopted it has an incontestable right to the <'x- clusive nse. RnfTy «. Gerard, Trib. dc Coaiin. de la Seine, 8 February, 1854, Haard Marque de Fab. 15. 5^ 1075. Title of inoe)rtor. — Xo one but the true inventor has the right to desci-ibe hiniself as the in- ventor of a patented article, even though the ])atent shall have expired and fallen iulo public use. Therefore the patentee, — and after his decc;ise his son as heir, — has an action to pi-evcnt such usui'pation, and for damages. ( Defendant falsely de- scribed himself as " Inventor of ai)p'iratus called distillatory kitchens,") Peyre Sons i\ Ilocher, C. de Rennes, 12 March, 1855, 1 Ann. da la Pro. 183. § 1076. Fancy name. — Label of cliampagne 'wines. Thomas used for two years a label on champagne sold by him containiug the words, "Marquis de Lornie, Sillery niousseux," a fan(!y name. Lcu'vie used same Avords on chnm])ngne, con- tending on trial that they were iictitious, and indi- cated neither the maker, or i)lnce of manufnctuie, and no rights i)assed to the i)lainti(T. It does not appear that remainder of label was imitated. Held, that although the use of an anonymous name as above might lead to abuses, yet rivals in business could not take the mark of a merchant or 890 FiiENCii Decisions. 1 1 ^■M ■ '1:-: manufacturer, and (L.'privo liiin of his customers by a confusion impossibhi to bo avoided. Decree for injunction, destruction of mark on boxes and bot- tles of wine belon.u;in;'^ to deiVMuUint, and damages. C. do I'aris, T) November, 1850, Thomas v. Lovie, 1 Ann. de la Pro. 222. § 1077. Iiifrin(/cnient of name. — Acf/uiesccnce. — InUia/.s\ — Fdron de. — The name of a manufacturer or merchant is i)roperty ; tlierefoie a manulacturer cannot use on his wrappers and l)ills the name of another manufacturer, even by putting before it the woi'd f((ron (styk;), unless it is pi-oved that by long usage and l)y the tacit or express consent of the intei'ested i»erson, the name has become tlu^ usual title of tlie article, serving to indicate in commerce a certain kind of manufacture. If iji the lattercase, it is exceptionally permitted to thostuiot owneis of the name to use it, it is on the condition that it be used in a manner avoiding confusion be- tween the products of different manuiactnrers. 2. A manufacturer may take for Ids trademark the initial hitters of his name ; but in that case he can- not stop the use of the same letters in a dilferent order. Thus tlie manufactui'er who lins taken for his trademark S. T. cannot object to another using the letters T. S., although theie results an easy confusion between the two establishments. 13ri- card V. Teissier, C. de Cass, 24 Dec. 18rx"), 2 Ann. de la Pro. 18. ^^ 1078. ErnJ)leins. — Form of j) rod. net. — lufrhige- ■iiwnt. — Plaintiifs weremanufactuiers of solid laun- dry bluing in cakes in the form of sad-irons, with the raised iigures of vromen on one side in the act of ironing, and on the otliei', of washing or i)lacing clothes on lines to dry. Regular deposit was made h'' French Decisioxs. 397 of their mark. Defendants mado tlioir bluiiii; also in the form of snd-irons witli the ilLjure of a woman on one side in tlie act of wasliinu' oi- jionin::?. IlelcK in the k)wer('onrt, lliat fsinc.' tliere was only a resemhiiince in form, and in the Jhjiires lietwe»Mi the two i)i'odu('ts, and it w:is not easy for any one to be (hu'eived, heeanse (Mich hore the \\:\\w\ oF llie mannuiotnrer, and the boxes wliich cnclosrd thn cakes were not alike in color or iiisciipMon, and there Avas I'ather a rescMnblance than servile imita- tion, plaintilfs had no right of action. On nppoMl judgment was reversed, it being held that dd'cnd- ants had infringed the marks and einl)lems :ido])r;>d })y ])Iahitilfs ; that the circumstance that Ihe bluing of delVndants bore his name was unim])ortant, as the difference in name did not justily the usuipa- tion of a mark which most generally guid(>s the l)urchaser. Damages. Boilley i\ Jollivet, C de Lyon, 14 May, JH.")?, 3 Ann. (hi la Pro. •jr):)."' § 1079. French citizen and forcif/ner. — fn- frinr/einent of iradeinark. — The l-'rench coni-ts liave jnrisdictiy/ !3 to 184tJ, when flicy sold ir to Mr. and Mrs. Le-sare. In 18,VJ, Mr. liossure died, and some time alteiwards liis widow (the establishment having been managed by her brother) sohl it to llobineaii, the phiiniilF. The ))rother i'onned a i)ai-tn(U-shi[) with Diiiiot. iiis eo-defendant, givin >; to it his trade of " rK|iioris!e.*" Shortly after, they put on their shoi) front, and on their labels and mannfaetnres, '' Morcdu.r, Jll.s fie Id. Mere Morcdn.v, d Dnrlof." The Tj-ibimal of Conmiei-ee held Moreanx had :i i-ight to use his own name, but not to add it t(» anything to h'ssen the rights of Hobinean, and directed the words •'de la Mere Moreanx" to be erased from defend- ants' signs, &c. On appeal by Robinean it was contended for him that the partnership of Dnriot & ^SToreanx iils was iictitious. By defembints, that there was no frand ; that Moreanx Iils had been engaged all his life in the manufacture of liquors, and had only used his right, in associating liimself with Dnriot, to bring to the j^artnership his name and trade. He had no part in the sale to ]lobin('!ii. and was not personally bound by any giiarnn* to him. Held, that when a person bearin name of a commercial house associates jiim with a rival house, and it appears from the circiiin-tai' I's of the case, and espechilly from the stipulation.s of the agreement, that tlie partnership is only a fraudulent means invented with a view to establish FRENon Dkcfsioxs. ;wn a confusion between the two houses, tlie eouit can order the suppression of Ihe name of fh«' pretended partner, althougli, l)ein.i;* sf)n of tlie founder of Ihe lirst house, h(i had iM^i'sonally contiiuicd in the exercise of tlie sauK^ kind of industry. Robincau V. Duriot, C. de Paris, 5?8 ,Jan. 18.")0, 2 .1 //,. (/c ht Pro. 54. § 1081. Firm name. — Sinillnril >/ of iiaiiws and illJe. — (Jotwurrcrice delot/ale. — .. luMe a part- nersliip lias introduced into its firm name, even in tlie second place, the name of another i)artnershi|), — c. //., Richer et Oie., in Iluf^uin, Riciier et C'le., and the addition was made with the end of mak- ing a ('(HLCurrence (lelot/al (unlawful rivalry), tho courts may order the suppression of the name of the partner which causes confusion between the two iirms. (Richer was taken into the business that his name mii^ht be nsed.) 2. The inventor who has sold to an associate the X)roperty and exclusive use of patented apparatus to which he has given his name can afteiwards neither use the same appai'atus nor give anew his name to apparatus, even different, which he uses in the same trade. Richer & (Jo. r. lluguin, llicher & Co., Trib. de Comm, de la Seine, 5 ^iar. ISHG, 2 Ann. de la Pro. 120. § 1082, Infringement of name and trademarJc. — Foreigners. — A stranger not domiciled in France has no right of action to enjoin the use of his name or trademark. But a Frenchman Avho proves himself the owner of a name and trademark, legally registered in France, has an action to enjoin not only the use of such name and trademark, but also the imita- m M 11 ' 1 400 Frettcit Decisions. II: i^e^ tions of it which may cause confusion.'- Farina v. Camus, Tiib. do Comm. do la Seine, 24 Mar. 1850, 2 Ann. de la Pro. ]o9. § 108;}. Wnippcrs.—Like fonn., ciKor (ind size. — PlaintiJf sold clicinical paper enclosed in a ma- roon colored ])asteboard roll. This roll had been depositiHl with the Kegister of the Tribunal of (Jonunerce. Defendants put up and sold the same i)aper in jvn-^teboai'd rolls of (he same form, size, and color. Held, that Ihese circumstances w Ji. de Ca- pncins, employed II. and Y. The latter afterwards established themselves at No. 11 same street, with a sign reading "llerlich, A^ust & Co. in this Inmse, ex-artists of the house Mayer and Pierson, wjjeie they had the honor to paint the [)hotogra])iiic por- traits of their ;>rajesties'the Hmperor and J^ini)r<}ss, as well as of the principal dignitaries of (he C-rown, the King of \Vurtemburg and of Pojtugal, Abd- el-Kader, Arc.'' On suit brought, II. & V. volun- tarily omitted the words "ex artists of the house Mayer c\: Pierson,'' retaining the reniaind<>i'. They contended that the ai-tist added by painting, to the stifl' photographs i)reviously taken, and that I h(\y had performed this work for M. & P. That they had a right to sav so, because thev had always re- tained possession of their artistic talent, and there- fore they could claim the authorship of the ])()i'- I raits which they had painted in the workshop of their old en]])loyers. Held, that II. & V. could not use the name of their old employers. Also that no cinployei^ or ai'tist woi'king on account of a coninie:cial house, can claim the right to preserve his indivicbiality in the work on which he has been engaged. Also, that 26 .• r— -"■-••■'^ 402 Frexcii Decisioxs. H. & V. should pay damages and costs. Mayer v. Ilerlich, Tiil). de Comm. de la Seine, 2'S Jan. 1857, 3 An7L de la Pro. O.'j. § 1087. Industrial nanie.—D. formed a com- pany with title ''' Oalsse des report'^.'"' V. & C(j. adopted s;ime name in addition to their own name previously used. On objection being m:ul(\ tliey changed it to " Ca/.v.9e general de rcporU^''' which couhl mislead the public into l>elicving tliat I)'s place was but a branch of Vs. IL'Jd^ that there is an infringement of a trade name wlien that which is taken by the rival can lead to confusion between tlie two establishments, although one may not be literally the reproduction of the othev. Damages not withheld when change has been tardily made. D'lnville w Vergniolles, C. de Paris, C Feby. 18.'57. W \nu. dela Fro. 202. ^ 1088. Fancy name. — Paper Job. — Jean 1 Par- don, amanufacturer of cigarette paper, mark(*d tiieiu witli his initials J. B., which he separatt'd i)y a loz- enge, so tliat the mark appeared to l)e the word "Job."' The public called for Job paper. L., an- other manufacturer of cigarette paper, associated with himself one Job and took the mark "Jol)."' saying, that as his partner was named Job, he had a better right to use the mark tlian 13ai'dou, who liad only acquired it by the error of the public. (B, had previously (1852) brought suit against L. in the police court, for counterfeiting his trademark, and obtained judgment, that he (B.) was entitled to the word "Job," as his trademark.) Held, that L. cS: J. should be restrained from using the word '•Jol)." Damages. Bardou o. Lassausee, Trib. de €omm. de la Seine, 20 Feby. 1857, 3 Ann. de la Pro. 125. French Decisions. 403 ^ 1080. f^ifjn. — Rif/hts of fixccessors. — The mer- chant wlio, in sellinu; his stock in trade, gives to the buyer the right to use liis name and title as suc- cessor^ can st(4> the puicliaser from using on liis sign,adveiHsements and manufactures, his (tlie sel- ler's) name alone, without adding his (the pur- <'iiaser's) own name and his position as successor. IJautain t\ Mercklein, U. de Paris, "21 March, J8o7, :{ Ann. de hi Pro. 207. ^ 101)0. LiJce names, — Signs. — Unlamfnl ri- i'dlnj. — Pinaud k Amour were hatters at No. 87 Jlue Ridielipii, under style Malson Pinavd, Ilene IMneau afterward established himself in same busi- ness at No. 01, under title Malson Pinean. He used (m tlie lining of his liats a servile imitati■ § 1092. Business signs. — Pharmacie CentraU de France. — Plaintiffs were proprietors of a pharmacy, and were the lirst to use the sign Phcw- macie Centrale de France. Defendants afterwards called theirs Pharmacie Bat ion ale Centrale de France. They were enjoined the use of the wortls Centrale de France. Damages. Dorvault v. Ilure- aux, Trib. de Comm. de la Seine, 24 July, 18r)7, ^ Ann. de la Pro. 125. § 1098. Labels.— Title of products .—Cafe des Go u rm rts. — Tnfrinr/em ent. — When a nia n uf actu ler has adojited for his products a special title — as Cafe des Gourmets (the gourmand's coffee) — and legally deposited his labels, another who imitates not only the 'shape of the boxes and labels of the first, but also uses the. phrase Aux Vrais Gourmets (ti'ue gourmands), instead of C(ffe des Gourmets., is guilty of unlawful rivalry and should be enjoined and adjudged to pay damages. Guerineau v. Ar- gant, Trib. Civ. de la Seine, 13 Aug. 1857, 4 Ann. de la Pro. 155. § 1004. l^tme trademarlc as § 1093.— Defen- dants in this case substituted the words Cafe des Connoisseurs for Cafe des Gourmets, imitating, however, the arrangement and text of the label of the plaintiff's, excepting the name and place of niannfncture. The same was printed in l)lue in stead of black. Held, there was an infringement of tradcnuuk under law of 1857. Uiiorineau v. Mignon, Trib. Corr. de la Seine, 27 January, ^^7)S, 4 Ann. de la Pro. 157. ^ 1095. Labels. — Circulars. — London Pispen- sari/. — The use on circulars and labels of the title London Dispensary., and Pharmacie de V Anihas- sade d' Anyleterre (Pharmacy of the English Em m FuKxcii Di-xisiONS ■VXi bnssy), which had been previously used by an En- ^^iish pharmaceutist at Paris, is an act of unlawJ'ul rivalry in business, and subjects the oileiider to an action for damages and injunction (Civii Cod(\ ^ l'^S2). Schortliose v. Hogg, Tiib. de Comm. de hi Seine, 25 March, 18ij8, 4 Aim. de la Pro. t^-Jil § 1(M)(). Fiffure of looman reprcfientiiiff " Pliar- ■Diarij.'" — When a pharmaceutist has a(L)ptod for his products a hibel sliowing a woman representing Pharmacy, having one hand on a book, as a symbol of science, and in the other a caducous; anotlier pharn)aceutist is liable for infringement and unlaw- ful rivalry who uses a label on which he reproduces the same figure in similar frameworlv, even fli()i;gh he usesdiiferentdetails,(t\ ,7., different arrangement of the accessories to the figure of the woman,) and the names of the two houses be given. Dorvault V. Teissier, C de Paris, 28 April, \'&:)d,^ 4 Ah 11. de la Fro. 2!)8. ^ 1097. A^'ame.s and, labels. — Form of hoUlr.s.— Although the manufacture of Veau, de Botol (Botot watei') has become public, manufacturers of that wafer are not allowed to use the same foj'in of bot- tles and seals as the successors of P)Otot, \\u\ oiigi- nal ])roprietoi's of the watei', nor to sell theij' pro- ducts ns (urilable eait de Boiot (pure Botot watei-). Barbier v.. t^inion, Trib. de Comm. de la Seine, 8 Ai)i'il, A^":)^, 4 2\nn. de la Pro. 191 ; aflii'med on a[)|)eal, 5 Id. HOO. 2. To same ( effect, case on Elixir l^aspail. Conibier- Destre v. Maller-Liiudas, I'rib. de Comm, de la tSeine, 1H August, 1857, 8 iVnn. de la Pro. :?.")1. ^ K)98. (ieneric name. — Benzine parfHine. — When the wi>rd used to qualify a product is gen- eric, xvAi^f^rfumed applied to benzine, henzhie pur- ■ '••myf^'1 i i " «i ff ^'^ 40G French Di<:cisioisrs. M II |i fume (perfumed benzine), no one can rlniin exclu- sive proiKM'ty in such word. Tliil)iei(Ml and sold by a lithographer are not his trad<'niarks. They can only be protected as artistic designs under the law in 1 elation to designs. By 'nil-: Couirr. — The trademark rcguhited l)y tlie law oi' June 25, 18.")7, is the characteristic sign by which the manufacturer distinguidies the product of his factory, or the niei'cliant, th(^ objfM-t of his trade ; it is not itself, and cannot become, a [noduct of manufacture or an object of trade. By the use that a merchant may muke of a label in ap[)lying it to a receptacle containing a product of liis nian- nfactnre, it is possible that the label may biM'ome for him a trademailv. It will be for him a distinc- tive sign or seal of his product without l)ei!ig the subject of his trade ; whereas, so far as 1 li<» plaintills are ccmcerned, tliese labels can never he othei- than the products themselves of their nianufactuie, and the special object of their industry. Lalaiub.^ r. * 1. It u-iis lu'ld under law of !8;j4, that a maniit'actuivr wlu) aflixed to liis "ioods tlic naino of a placf otlicr tlian tliat of Jiis fa('t(»ry, was liable to an action In- a niannlactiircmf tlic same kind of (roods in tlio \)\nvxt whose name liad l)een adopted. Blaise i'. Pitet, C. de Paris, 12 AMi,nist, lS(i4, 11 15 Ho;]. Kfintc. — Viu(iif/re de BuUi/. — WIkmi a luiniiiriH'turer has i^iven his name to a special picj- dac't oi" his nianuractiiie {c «/., Bnlly, his name, to vinef-'ar, tlius, vuiaUjrc dc lhdly\ no one can employ the same name to indicate similar products to the detriment oi tin; roriuer or his successor. Lemerciei- i\ Millin, Ti-ih. Comin. de hi iSeine, 1 July, J8r)0, T) Ann. de la Pro. ?A\(). % 1104. Fancy Kajnc — Poitdre brcsih'enne. — Infrinf/ement. Poiidre hrislHenne, a name given to a powder for destroying insects, is a good trade- mark. 2. Defendant is g'uilty of an infringement of the trademark, if he use it on packages of his own, although the X)owdor contained therein may be diat manufactured by the owner of the mark, (lourbeyre r. Bcxlevin, C. de Paris, 9 July, ISo;), o Ann. de la Pro. 2T)(). § 1105. Si(/ns. — Every merchant who has a sign has a right to oppose the adoption ])j^ a rival of a sign which can cause (umfusion with his own, even though the rival was the lirst in the xxirticular lint; of business. Sign and name >S/dlaii were used Hrst, Au Grand SuUan last. The latter was ordered to be taken down because there was not sudicient difference between the two. Ben-Sadoun )\ Xessim- Dahan, Trib. de Comm. de la Seine, 7 September, 185'J, 5 Ann. de la Pro. 419. g 1100. J//.s'rc;;rc.s'6V^/«//o;?..— Article VIII. of the law of 1857, which punishes the nse of a mark designed to deceive the i)urchaser in reference to the nature of the product, is not aioplicable to a notice iilaced on a kind of food for fowls, indi- ;4i ■w FuENcii Decisions. 4oa eating a greater quantity of phosphate than that whicli it really (contains. Min. Public d. lleuzo, C. de Cass, 3l) Dec. ISoi), 18 A/iu. de la Pro. 180. § 1108. Secret remedy. — Name of liuenlor. — Rob depuraHf de D^fjccau-La^'ecleur. — Dei'en- dants used the nuaie oi the remedy sold l^y plaint ill", but added the words in italics, "rob vegetal depuratir, J'ormide de Boyveau-Lalfecteur." The remedy iiseir had become public property. ILld., that when the manui'acture antl sale of an article has become public property, any one may adver- tise and sell the same by the name which the inventor gave to it, and by which it is usually known. 2. This pi'inciple applies also to the name oi' the inventor, if his name has become by his own action a necessary element hi the title oi the product ; but his name may only be used as a simple designation oi' the thing, and not in «iu'h a maimer as to lead the i)iibli(' into error as to the individuality ol' the manui'acture and the source oi" the pi(Kluct. 3. A secret remedy especially, which has become public, may h(' advertised and sold by any one under the name of the inventor, preceded by the wolds, seloitJa J'or//iule de . . . il' the inventor himself gave his name to it, — it l)eing uiulerstood always, that th(3 advertisement and labels are so arranged as not to create a false imi)ression as to the nianui'acturer. (liraudeau de tSaint-(iervais o. Cliari)eutier, C. de Cass, 31 January, 1800, A/ut. de la Pro. 100. s^ 110!). Imitalioih of hottle.s, wrappers and lubels. — Defendant, manufacturer of ferruginous pill;, imitated the form and color of the bottles, 410 FiiENCii Decisions. r I -*.■■ p4 ■I'.r ' and the wrappei-s and hibels of i)lnintiff, mannfac- tiirer of a siinilar article, but cliaui^ed the form of the bottles sliu;lit!y, and the title as shown by the italieize(l woids '' Unalterabh; cjirbonate of iion pills (ivciu'di iKj to llie fonnula i^i V'nllet, :ti)])roved by the Academy of Medicine." //c/r/, that (I'lVn- dant laid a <'iilpablc intenticm to imitate the mark of plaintiil' in such a manner as to d(M'(M\c the pid)lic, and cause a confusion in their miud between the true i)roduct sold by plainriil's and the false. Fi'ere et A'allet r, Mauchien, Tril). Cori', de la Heine, lo Februar^^ 1800, Aidi. dc la Pro. 11 ;i § IIIO. Inilkds. — Plaintiff, a manufactuicr of velvet, was the owner of a ti'adeaiark, represenl- ing' two fauK^s, (me blowing- a trumpet, the othe- supportiug a crown of flowers, in which were placed the initials J. B.J). Defendant, also a manufac- turer of velvet, used as a tradeuiark an anchor, sur- mounted by a star ; below the anchor were traced the mitials J. B. D. Held no infringement. Da- vid i\ Brossier, 0. de Lyon, 20 Nov. 1800, 7 Ann. dela Fro. 110. §1111. — ^Shndar/f// of names. — Ana/or/o/fs trades. — Whenever there is a similarity between the surname and Chi'istian name of two rival traders, the one who has been the longest established has the right to demand that the new-comer take such measures as are necessary to prevent confusion be- tween their establishments. For tliis j)urpose the new-comer may be required to snppress his Christian name 7. Clave i\ Celurd, C. d(; Lyon, '11 N(n-. 1801, 8 .1////. d, l(U*ro. 2.V.). j^ 1 1 1;>. J ol nil I'ddcmarl: bt'iici'c n lud.io/j'drhircr.s' of same phice. — ManuCaetiirers of a cily or locality may ai;ree upon a common mark I'oi' theii' i>roducts. In such case, those of the mannfactnrtMs who have regularly de[)osited this common mark, ha\e an action a,uainst the manufacturers of another locality who have adopted ii mark likely to cause C(^iifusion between the products of tlui two i)luces. 2. A ])order composed of four r(is(!-colored threads running from (me end to the other of cloth, indicating" that it was manufactured in a certain locality, is ii trademaik, and it is an in- fringement to adojjt for the sanur kind of cloth ii like airangement of threads, although the threads he red instead of rose-colored. liicipi(v/\ Forges, C. de Paris, 28 Nov. 1801, 8 .1/;/^ dv la Pro. ^17). " § 1114. Mark in conivwti iisv. — Altliough the deposit of :i trademark estal)lishesa itresumption of property in him who has made the deposit, this presumption may be destroyed by proof tending to show that the mark was in common use p.ievlous to the (h'[)Osit. 2. A manufacturer cannot ai)proi)riate in a spe- cilic industr}", by deposit, a mark in general use. 8(jmborn i\ Men^^el', C. de Metz, 31 Dec. 1801, 8 Ann. de la Pro. 78. § 11 IT). Fancy name. — Liqncur du Monl (kir- mcl. — Bv Tiir: (Joiut. — Because Faivre deposited ■ J J 412 French Decisions. J before the defendants, nt the ofRce of the .secretary of the tribiiniil of coMinierce, unchu' the law of I8,")7, ;i hottk^ containing a liquor witli the name; Liqiteur (le Moid Carnid ; and by means of this (h'posit ac- ({iiired an exclusive title to tliis name as a mark of manufactnre; and because the name J/o///// iUirnul is not a geiiei'ic name behjnging to commerce, but a I'aucy nauK^ drawn from an imaginary province : and I)uquaii'(> tV- Kussy liave infringed the mark of man- ufacliii'c of Faivre by malving or selling a, licpior under the same name, cS:c. Damages adjudged. Faivre i\ l)u(iuaire, Trib. Civ. de la Seine, 18 Mar. USC.ri, 8 .1////. i 111(5. Fane f/ name. — Translation. — Ban ecar- latr.. — When a nr.inufactnrer has given a fancy name to a well-known prodnct, that name belongs to liini, and he has an action against tho.se who nse either the name ado[)ted, or the translation of it in- to a foivigu language. {Eau ecarlate was trans- lated into Kvnrlci icaicr^ and the translation used.) I5urdel c. .lozean, Tri!). de Comm. de la Seine, IJO May, 1802, 8 Ann. de la Fro. 239. $^1117. Imitation. — Papier Job. — Priority of la^c. — Althongh the manufactnrer who is sued for the infringement of a mark may prove that it was used previously to the deposit, the owner of the mark may show in opposition that his possession commenced before the nse proved. 2. That there be the olfense of frandnlently imi- tating a mark under article 8 of law of 18.')7, it is not iiecessaiy that tlie imitation be servile ; it is snf- ilcicient if it is of the kind to deceive the ordinary buyer. In conseqnence, the dissimilarities which ( .;cape the examination, necessarily snperiicial, of biivejs — such asthenameof the manufacturer, or a FiiENCii Decisioxs. 4i:i iiotioo stating that his products must not be con founded witli those of auotluM- luauuI'Mr'turcr -cau- iiot be invoked as a dof>/d fran<;als was a company of marine assurance, l)earing a good reputation. A new company was founded for tlie same pur])ose nndei- the name of Uoijd Central. Use of name Llo>/d, i^enlral wiis enjoined. Lloyd Fran(;ais /'. Lloyd Central, Tril). de Comm. de la Seine, 7 July, 1802, 8 Ann. dr la Pro. 412. § 1120. Papier de riz & Papier ereme de rlz. — By the Couut. — Considering that the manufacture of rice paper {papier de rlz) is open to the i)ublic : that the mark of Prudhon, "00 feuilles de papier creme de riz, systeme Prudlum et Ce. a Paris; ne pas confondre avec le papier de riz,'' cannot be re- garded as reproducing tlie mark of Abailie, which 414 French Decisions. li-l reads lis follows : " PapieM' de ri/, formal franrais. Notivelle rabi'ication speciale. Abadie et Ce, fabri- caiits brevetcs s. t,^ d. g., a Palis. Finesse, soliditc douceur.'"; that the ])ookof Priidlion is roiled and composed of a continuous sheet, wliieh, in unwind- hv^ presents a, succession of little leaves for enclos- ing tobacco, having a different appearance from the books of Abadie, wliicli f')ld Hat, and the leaves of which form a little volume : that these differences leave without importance, the only point of resem- blance, which exists l)etween the two products, /. e., the salmon color of the wrapper, wliicli cannot be claimed by Abadie. Complaint dismissed — there being neither a, violation of law of IS.")? or of article j;>8:2 Code Civil — overruling the court below, which held, that "if the use of salmon-colored paper is general and C(mun(m for enveloping all kinds of products, its use, joined to the words crenie de riz^ nnvnUs an intentional imitation susceptible of creat- ing a courusion with the products of the plaintiff." Ai)adie /'. Pi-iullKm, C. de Paris, H.luly, 18G2, 8 Ann. (la hi Pr French Decisioxs 415 iliior with less electro-negative bodies. And furtlier, he pretended to liave always talcen cai-e that there be mai'ked diffei'ences between his bottles, labels, prospectnses, advertisements, and prices, and those of plaintili's. Decree affirmed, (iiiislaiii r. Liib- rugnei'e, C. de Paris, 15 Nov. 1802, U Atni, dc la. Pro. 40. § 112:2. Pttpil. — Name of Voiron. — An appren- tice or workman cannot annonncc himscit ns a ])npil of Ids former employei', on establishing a business for himself, without the employci-'s con- sent, liommetin i\ Crette, C. de Paris, 4 Marcli, 18G:5, 9 Ann. de la Pro. UW. ^w. ^ 11 ±'). § 11:23. Geor/r(ip7ii<'((I Xonir. — A majiiifactnrer who places on his ])r()dncts the nain<» used by an- other, does not infilnge liis tradejnark (Law of IS.")?), if the name is that of rhe place where; the products are made. The name of a luuidci, siru- a'ed in the townsiiip where the dilTcicut indus- tries are established, may be taken as the place of manufacture, even though the lirst person to intio- duce the jM-oduct gave the name to the hamlet. Desire Michel i\ Achard, C. de Cass, lo -inly, b-^O!], 9 Ann. de la Pro. 328. See to same effect, ^^ 1099, 1100.-* ^ 1124. Pane;/ Name. — When P^r <>f True Name Modified.— The manufacturer who takes for his trademai'k a name othei- than his own, can object to the use of the same name, by a manufac- turer of a similar article, with siu-h surroundings as to cause confusion. (Plaintilf took :is his trade- mark the word /o///, surrounded by an oval. I)c- ■■" C'lihfra, if tlic name l)i'lontfs to ii private domaiti ((iraiido CImrtrcuso). §l~li), or if it i^< a faiiry iiumc (Mont Caiinci^ § 1115. "fliri 416 French Decisions. fendant, wliose name was Joly, imitated plaintiff'^ mark.) 2. In such case, tlie court should order sucli modiiications as it tliinks necessary to hinder the confusion produced ; especially conii)el1inij; the last- comer to change his mark, eithei" by adding his given name or by changing the form and dimen- sions of its surroundings. Massez f\ Joly, ('. , — by which alone the nianul'aclurers could make it kucnvn to the public, — and no cause of Fr.Excii Di.cisioxs. 417 action was sliown. On '^ippcal it was lield, tliat as the iiciiior of wliicli llaspail had publishetl his formula in tlie Manuel AiDtvairc dc J^.nilc, was linown to the public under tlie name L'tqiu ur on Elixir Ran pail ; that as ll.'ispail oidy publishtsd his formula, and did not give liis name to the pub- lic, and the name was an inipi'es('ri[)tible ])i'o])ei'ty, llaspail had the right to limit his license in its use, and in default of liis contiinwd consent, tli(^ use which defendants had made of Ins name^ hail been without light. Judgment reversed. Kasjiail v. Combier-Destre, C. de Paris, U Novemb«M', JSO;}, Ann. (Ic la Pro. 377. ^ 1127. Natural prodnH. — Fancij nautc. — Lu- ciline. — Evidence. — A fancy name, such as I nciline., used to designate an essentially natural pi'oduct, (rehned petroleum) is the property of him who lirst makes use of it, and sliould be ])rorected as a trade- mark Avheii its legal dei)osit has been made. 2. The burden of proof is on tlio party who pre- tends that the name has gone into public use. Cohen (\ iMaris, ('. de Paris, :28 Noveml)er, 1803, 10 Ann. de la Pro. 1 (>."). See § 1114. § 1128. (Jeneric name. — Eoreiffn languape. — Peppermint-London. — Mi.srejn'esentation. — The one wlio, in dejiositing his tiademark, gives to the product the usual name which it bears in common language, without a special title or the addition of a distinctive sign, cannot claim property in the name, — e. //., Pepi)ermint-London. 2. It is so, although the name is translated into a foreign language. o. If there has been added to the common name the false namo of a foreign ])lace of manufacture, there is deceit in the nature of the thin^^ sold, which i' .n'X il mm m !t * 1 '"> French Decisioxs. do[)iive.s tlie author of the falseliood of liis ri/^lit of action for infringement. Maiiprivez v. IjonclK't, C. (le Paris, 2G Febnuiry, 18(34, 10 .1/^;^ de la Pro. 820. § 1120. Brposit of marl'. — Ahandonnicnt.— Use. — Tlie deposit required by article 2 of hiw of 1857, is a prerequisite; to a suit for infiingenient of a trademark, but it does not create properly in the mark. Tliei'efore, it belongs to tlie judges of th(; fact, to decide, in case of a contest \ Caliuel, C. de Cass, 10 March, 1804, 10 Ami. \le la Pro. im. See § 1127. § 1130. Fancy navie. — Pcrhs tTl'llicr. — The name j??rTZr.s% applied to etluu'and other iiliarmaceu- tical produ(!ts, is applied to the capsules oi" enve- lopes, and not to the medicine itself, and not being otherwise a generic; name, and one necessary to dis- tinguisli the prodnct, can legally be an object ot exclusive property, protected by law ol" IS.')?. Clertan i\ Charpentier, C. de Cass, 22 March, 18(54, 10 Ann. (le la Pro. 841. § 1131. Eniployee, — Lllve name. — An employee cannot state, in his circulars, on entering into busi- ness for himself, his services in a house of which he is a rival. In the case of like names tlie mann facturer who founds a new house, ought by the ij f- FiiExcii Dkcisioxs. 41!) addiiioii of liis given ni'iiio, or by somf otluM- tMs- tliK'tivo (luulilicntioii to jivoid till coiii'iision witli llio old lioiiso. Foiild i\ Iloiiegii^oi', Trih. dc (V)niiTi. df la Seine, 11 April, 1804, 10 Aim. de la Pro. '.l'2'.\. See§^ 1122, 112."). ^ 11152. Ndinesi of Forel(f)i M(t)iiif(i('f)ir( rs. — Loit'j use ill Franco. — Altliough the law of \Ku. and the treaty of ISOO, between Fiance and Yavz- land, gave to English nianiifactiii'ers tlie light to obtain the exelusive n.se in l-'rance of tlieir names and marks, by making the deposits I'eqiiii'*^! by law, this is n;>t the eas;» if tin^ names and mnrlvs so deposited h;id pix.'vioiisly g()n;3 into geiuMtd nse ; consequently the judgment was ron-ect whieh decided that the English maiiiii'-u'turers have a legal riglit in Fi-ance to the s])eci.d mark which tliev have deposited bv reason of the treatv. but not to tlie employment of tlu^ir name, ir being proved, that for more than lifty years that name had been used in Prance, to indicate not the origin, but the nature of certain products. Spencer /•. Peigney, C. de Cass, *3() April, 18(54, 10 .1;/;/. (h- hi Pro. 197. '•• § li;53. Fancy name. — ^'- Eiurc iiidieinir.^'— \ fancy name, such as "Encre indif * To the same effect. Stubbs r. AstiiT. ('. de Paris. •,".» .\|.ril. 1804. 10 Ann. de la Pro. 213 ; S. ('.. on ;i|.)K'al, C. do ( a-. { Fcl)riiiiry, 1805 ; 11 Id. 81. Before the Ircaly, Spriicer >\ Meii- nier, C. tie Paris, 3 June, 1843, Jouriud du Paliih, 1843. A20 FiiENcii Decisions. hooves. — The name "//Z d' Alsace,'" Alsace thread, is a good trademark wlieii applied to thread. 2. There is an unlawful rivalry in the servile imi- tation of the form, color and disposition of the boxes of another manufactnre, so as to establish a confusion between their products (C. C. V.iS'I). Dollfus V). Lalleniand, C de Paris, H January, ISO."), 11 Ann. de la Pro. 110. § 1185. Faiwii name. — "Z«ffi frapp 1st Ine.'" — The fancy name ''La trappistin.e,''' given to a liquoi-, is a good trademark. There is such an imitation of a mark as to give rise to an action, when the adoption of the names and labels may create a (ion- fusion between the products of different manufac- turers, even though the name is preceded by the words "■ dite'^ or '•''faoonde''' ("said" or "style of"). (The word "' trapplstlne'''' was derived from the name of the convent La Trappe, where the liquor was first made.) Michel ?). Stremler, Trih. de Comm. de la Seine, 17 January, 1865, 11 Ann. de la Pro. 284. § 1135r^ Similarity of names. — The use of a firm name, identical with that of a firm already exist- ing, is not unlawful in itself, and the use of the name cannot be enjoined. But when the use of the name is accompanied by unwarranted manoeuvres, to deceive buyers, the new-comers should be decreed to add such things as are proper to i)r('- vent confusion, — especially the nnMitiou in \\\e\x firm name, and in their marks and labels, of tin' given name of the merchant, and the date when the second house was founded. Louis Roederer k Co. Ti. Theophile Roedei-er, (J. de Paris, G F(>bruaiy, 18G5, 11 Awn. de la Pro. 68. See § 1118. FiiENCii Divisions. 421 § IVoob. Gi/Undrhud form. — Qi gar die. jxipcr. ~ The cylindrical sluipe of ii packa^-o of cigai'f^lte pai)er is not of itself a good trademark. Tlie imita- tion of this shape is not an act of iiidawfiil livaliy in business, Prudhon r. Villaret, C. de Paris, ^4 June, ISG,"), 11 Ann. de la Pro. 44;J. § llIiG. Generic erahJem. — Leaf. — A tiadeniark made up of a number of elements, of which tlie principal is a vine leaf, a generic object, is not in- fringed or fraudulently imitated b^^ the use of the same generic object, if accompanied by tliilVMent names or ornaments, striking to the eye. Denis v. Vignier, C. de Bordeaux, August, \'!^()7)., J 2 Ann. de la Pro. 43t). § 1137. Name qfmanvfaeturer. — Lifrhujcment. — When a label, adopted as a trademark, contains among other distinctive signs the name of the manufacturer, it is not necessary that tiie name be I'eproduced or imitated, to constitute an infringe- ment, — it is sufficient if the other parts of tlje label are so imitated as to tend to deceive l)uvers. ]3ass T. Harris, C. de Paris, 31 March, 180.1i, and C. de Cass, 12 August, 1865, 12 Ann. de la Pro. 101. § 1138. Imitation of Label. — (reneric name. — Serpents de Pliaraon. — A fraudulent imitation of a mark or label, under art. 8, law of 18,")7, is made when the imitation is of such a nature as to deceiv(? the public. Therefore, differences in details,— such as a modification of the name of the i)roducf, and the indication of the name of the manufactui-er, — do not take out of the operation of the law, marks and labels on which are imitated the form and ai'rangement of the labels of another manufa(*turer in such a manner avS to create confusion between their products. 4:2 FnKxcii Diyisioxs. mM 2. The word serpent, as nppliod to :i toy TTindf iVoni sHlpJioct/anitle of uierrnrj/, \\\\\c\\ iissiinifs the form of a sei'peut on beiriu; set on lire, is a gen- eric name. Burnett o. Kubler, C. de Paris. '2\ March, 1800, 12 ihui. de hi Pro. 144. >^ li;»9. Fancii name. — Popicr Joh^ and papitr Oner re d Job. — Plaintiff used as his trachoma ik his initials J. B., separated l)y a lozenge. His cigarette paper became x>opnlarly known from tin's, as Job paper. Defendant sold ('i.g-iirette pa])ei' i)Ul in books of the same color as those of ])hiiiitilf. but with different ornaments, Ix^iriii,!^ in lar.uv characters, Guerre d Job. Papier tre.s Kirperirur. Paris, 80 Rue de llivoli, 80 (War on Job. Very snpei"i(n' prtper, &c.). On the revei'se was a notice that the mark was not the same as that which was called Job, bnt the x)aper enclosed was rendeied superior to the Jobhy the addition (»f hy, \M Ann. de hi Pro. ^m. i 1L41, Sale of nuirk. — A nianuracruier may adopt dilTerent mai'ks and names for his produfts. lie may sell one of his marks to another. Ahadie V. Priidon, C. de Cass, 27 July, 18G0, 12 Ann. '. la Pro. :u:5. See §>5 1149, 1154. ^' 1142. Fancy name. — Rot/alVicloria. — T!ie union of two English words, sucli as lioijal \U-- iurla, constitutes a good trademark in France, even thougii the same words had been employed se})- arately in la])els on simihir merchandise, especially on iiins, — or even united, but on different merchan- dise, such as needles. 2. Where a label is composed of a title, sucli as lioi/al Victoria., and various statements and <»i'na- ments, the use of the label with the distinctive title changed {e. r/., lloyal Victoria to Royal llegina), is a fraudident inutation of it (Art. 8, Law of IS.")?). Sargent v. Romeu, C. de Paris, 17 Janiuiry. 1807, VS Ann. de la Pro. 21. To same elfect, Sargent «. Roger, 12 Id. 170. g 1143. Geographical name. — Unlanrf'id rir.al r ij . — liuitaiion of lirodtictH. — When a manufacturer has adojDted a mark containing the name of the place where liis factory is situated, it is an act of unlawful rivalry on the loart of a manvd'acturer of a neighboring township to servilely indtate the kinds and the styles of the products of the first, and to insert in his jDrospectuses and letter headings, the name of the same place. In enjoining such an abuse, however, the use of the name of the X)lace should not be forbidden, if it is necessary to indicate the situation of the nuinu- 424 FuKxcir Diocisroxs. ^1 factory, and e.spocially to inak(; known tin; poft olTive of the manul'actnrei'. (Plaintill' cstablisluMl ;i ivpntation tis ii nianiifatituiei' of niachine-niadt^ tiles at Montchaniu. Defendant set up a rival fac- tory at Saint-Julien-snr-d'lleune, five miles jiway. He imitated not only tlie tiles of the plaintiff, but also all the changes made by him, and inserted in his mark ^' par Montchanhiy) Avril v. Perrusson, C. de Dijon, 8 May, 1807, 13 Ann. de la Pro. ;}4r>. § 1144. PlwraULij of trademarks. — ^Tliere is no law preventing the adoption and use by a manufac- turer or merchant, of more than (me trademark at the same time. The same trademark may be the property of several pers(jns jointly. Abadie t\ Berha, C. de Paris, 23 May, 1807, 13 Ann. de la Pro. 348. See §§ 1113, 1141, llo4. § 1145. Creme d' Arr/ent, applied to a new chem- ical product, of use in the arts, is a good trademark. It l)elongs to the first one who used it, irresi)e('- tive of the date of deposit with tlie clerk of the Tribunal of Commerce. Its use by another, without right, before the deposit, does not invalidate the mark. Levy v. Bizet, Trib. de Comm. de Rouen, 31 Nov. 1807, 14 Ann. de la Pro. 105. § 1140. Trnitatlon. — Like names. — Charles Ca- mille Heidsieck was a manufacturer and exporter of champagne. Defendants formed an association for the manufacture and exportation of champagne to the United States, and obtained the use of the name of Herman Heidsieck who lived in Saint Louis, U. S. They servilely imitated the mark of Charles Heidsieck upon tlie corlvs of bottles, substituting only "Hermann " in place of " Charles ;" they also imitated the four red bars on the covers of the bas- Fkkncii I)i:risi<».vs. 42.1 k<^!s enclo.siiiL!; his ('liaiiipn^^-iic. IlchL Mint lli<> iTprodiurfion ol' tlni luime, thr iirraii.u'cmnit. and the cmMeiiis of a niarlv in orch'r to cause a coiil'ii- sioii between i)r()(lii('ts, and to (h'ceive buyers, is a I'rauduk'nt imitation of ;i mark undei- aits. S, i), \',\ and 14. of Law of IH.')?, even thouuli a i)erson bear- iw^ the same name lias been associated in the fiaiid, and his ^iven name 8u])stitiited for that of the owiiei' of tlie imitated mark. 2. All those who have i)arti('ipat<'d in such a fraud should be i-e^arded as accoiiii)lic('S, whelhei- they have caused the false marks to be made, or have [)ted as a trademark for his i)roduct, a name which indicates its composition, — e. /y., pctpiir dcriz (i-ice paper), he cannot forbid the adoption by another manu fact luer, in his trade, of the genuine name rice, — c. > Hiotographic ^Sciences Corporation 33 WIST MAIN STRUT WIBfTIR.N.Y. 145t0 (716) •72-4503 ^ w Mi m m FiiExcii Decisioxs. IK'.V/. Weilo ?\ veuve Clicquot, C de Paris. 5 Marcli, lfU;8, 14 Ann. dc la Pro. 288. X 1 140. tilth' of tracIcnKU'k. — Propeiiy. — Ea ii laintilf, not being a pharmaceutist, had no I'uht to make and sell it. Ileld.^ that a trademaik regu- larly deposited is propeity, and is not affected by the riiiht of the owner to manufacture the i)roducts of which it is the trademark. Boyer v. Boyer, C. de Cass, 8 May, 1808, 15 Ann. de la Pro. 102. g lino. "^ Name of i^roduct. — Eau de Melisse dts Carnies. — Iniilation of labels, seals, vials and hoj-es. — The name of a product (c. g., Eau dcs Carnies or Eau de Melisse dcs Carme.'i), which de- signates its origin and the name of its inventors, is the ])roperty of the latter and their legal jejire- sentatives. In consequence, the use of that title on labels and goods, as well as on prospectuses and advertisements, is an unlawfid rivalry {concurrence deloyale), giving rise to an action for an injunction * This section should immediately iirecede § 1055. ^IF Fjie.ncii Dixisiox^?. 4-27 and (lamjigfs. The case is still s{ ron.^vr if rlie mni'ks, labels, vials and boxes oi" the inventor are imitated, as well as the name. 2. Complete it'entitv of nuirk is not ncces.sjirv to ■La «. (3onstitute an infringemr-nt ; it is snfTicient if the infringing mark resembles the true so as to lead the publie into an errorprejudieul to the proprietor. Injunction against use of title, also against indtaticm of lal)els, vials, &<•. Damages. Boyer n. Massieu David & Co., Trib. de Comm. de la Seine, 11 April, 18:1"), C. de Paris, 11 May, 1830, 21 Ann. de hi Pro. 11. § 115]. Iiifrinijeincid. — M ■ were generally made by nianiifacriireis and called THi'naux shauls,) Bourulioiiet r. Tisseion, C. de Paii:s, 11) November, 18(58, 15 A/ui. de Id Pro. 90. ^ li.")3. VurchaHiu'8 of ((rlides hcur'unj false iradcnuirk have a light of activ)n against ':^w seller if they bought the same in good faith, and have been adjudged to be guilty of infringement in a suit by the owner of the mark. Sargent /'. Willems, Trib. Civ. de la Seine, 2 January, 18G0, 16 Ann. de la Pro. 27. § 11/54. Varietij of marks of same person. — Family seal. — Aeqtiisition e, 10 March, 1809, 15 Ann. de la Pro. V>1. % 1157. Name. — Treaty IntirHn England and France. — The name of a i)erson is not a trademark protected by the law of 1857, unless it is used in a special form. The usurpation of a person's name is punishable by the law of 1824. 2. Article 12 \)f the treaty of January 23, 1800, between France and England, is applicable both to r 4;]:) FitExcir Dixisiox- f< t I; ist tradcmtiiks and to cotniriorcinl iiaiiu's wliicli dis- tiii;j;nisli the articles of a nianul'actiuer or a nicr- <'liant. Therefore, an Englisli rnaniifa<'tiirei- who marks liis products with his own name, or the name of liis predecessois. Vvhich lie has leually de- posited in France, has the rigiit to an action for in- fringement, under the law of 1824, AVickers r. Frion, C. de Cass, 19 J^Iarch, 1809, K) Ann. dr la Pro. 179, To same effect, Wickt^rs i\ Maichand, (J. de Cass, 27 May, 1870, Id. 188. § 1108. JS\Uioii(d codt of anus. — A national coat of arms cannot become the trademark of a manufacturer. It may fojm part of a design which is a good trademark. Plaintiff's mark (on hats) was composed of the English arms, surrounded by a ribbon containing the words "Christy's London" or '"Chrwstv's Best London." Defendant substituted the words "Quality Sui^erfine London,*' in place of "Chris- ty's Best London," lea,ving the mark othemvise the same. Held an infringement. Christ}^ i". J)aude, Trib. Civ. de la Seine, 150 June, 1809, 10 Ann. de la Pro. 31. § 1159. Imitation of a trademark is only action- able, when it is of such a nature as to deceive the public. This is so under either article 1382 of Code Civil or law of 18r)7. Prudhon i\ Bardou, C. d' Alger, 10 July, 1809, 10 Aun. de la Pro. 282. § 1100. S/f/ns. — Different ^;/r/cr. — A business sign cannot become a trademark until it is legally deposited as required by law of ]8r)7. 2. The right which results from the priority of use of a sign, does not extend beyond the h^cality where the use took place. It bectmies the exclu- sive property of the first user in each place. H FuExcii Dkcisioxs. 4:11 PhiinlifT's establishment at PiU'is Ix);-;' tlu^ innu! jukI si.i^n l^Jiolof/rapJilc Uil'iox. Dd't'iulant after- wards r()mmHnc«Ml business at Troycs, and cMlicd his establishment, on his si that si_ii;n in that place. Injunction ^laiih'd. Lancelot t\ Pierthaud, C. de Pai'is, ri(5 .Mai-cli, IMTO, 1(5 .1/^;^ (h' Id Pro. 2i)2. § 11(52. Eitihl'iiiH in roinmon use. — Bv tiik CorifT, — Considcrinji; that Ilei-old dcposiK'd as a tradem^u'k, :May 24th, 18G7, at the oliice of tla^ secretaiA' of the Tribunal of Commerce of the Spin*', 51 design, representing a gilded- bcc, intended as a stamp for the linings of the hats which he nuule ; that it i-esults from the proceedings, that at a time I)receding the deposit of Ilerold's mark, Gerbeau was in the habit of stam[)ing his goods with a, gilded bee, and that this was known to Ileiold. Considering, that as end)lem or ornament, tlie bee is in common use, and that, in adopting it as a trademark, without attempting, by the aid of a com- bination of distinctive signs, to produce an original design susceptible of a propiietary right, Ilei'old has misunderstood the spirit of the legislation on the subject, wlilch permits the use of names, — and by analogy of emblems, — in connnon use, as trademarks, on the condition of producing them in a distinguishing form Judgment for i P 1 hi 1:1 I % I 1:1 '^'J Mi |r. 1> 4:]2 ri:E\'rii Dr.cisroN's. tlcfondanf. IIi'r.')l(l r. (jrfn'wnn, C. on.--B('laii.—('hovohil Mi- ulcr. — There is a fraudulent imitation of a mark (a)'t. 8, law of 1857), wlieii the i)rin<'ii)al ehaiactci- isti(!S and the general asjx^ct of a label, lawfully rev)ous to deposit. — Prcstrmption in favor of depositor. — Infrlnrfement. — (JJiocolat Menier. — Abandonment. — Property in a traden)aik is acquired by possession and nse in addition to the deposit. It is sufficient to sustain an action on a trademark, that the last deposit is valid, without reference to previous deposits, or to nse by the plaintiff previous to any deposit. 2. The deposit of a mark raises a presumption of priority in favor of the depositor. It is for his opponents to prove that it was in public nse pre- vious to the employment which the depositor made, or that it has since entered into public use by abandonment. 3. The abandonment of a deposited and used mark is not presumed, and the title to the mark m TriT" Fkknch DKrisioNs. 4:15 cnnot 1)!> injiinvl by n(»irl<'ct to pnwecnfo infringe- i:!(!!its (liinng Ji long or sliort [HM'iod. Si'«' si 11(57. 4. WIk^m tlici proprietor of a mark or Inhel, legjilly (]('})ositeil. hvings an action for tlie usurpa- tion or imitation of his labels, as well as the form of l)is goods, the mode of wrapping them, aiir, sold in similar bottles, covered with labels v)f the same shape, ar- ranged in the same manner, and containing tlu? name Pierre, with the same pric^emark as that of plaintiff, confusion between them was easy. Defend- ant was ordered to adoi)t the following title " Eau dentifrice de Pierre Proux, Medecin-deiitiste, Conrs de rintendence 42, a Bordeaux," the word Proux, in larger character than Pierre. Choiiet i\ Pierie Proux, Trib. de Comm. de la Seine, 18 February, 1873, 19 Ann. de la Pro. 18G. § 117."). Infrinr/ement. — Paper Job and Joe. — The word Joc^ and the initials J. H. B used on like products (cigarette i)aper) are an infringement of the trademark Job, when they are printed in like characters, in the same place, on a cover of the same size, and accompanied by analogous inscrii)- lions and ornaments (Articles 7 and 8, law of 18.')7). Bardou v. Berha and others, Trib, Corr. de la feeirie, 20 February, 18713, 18 Ann. de la Pro. C5. ^ ! 17(5, Fancy name. — Deceit. — Although the merchant who first madense of the \ya\\\.q pltosplto- r/uano, may have a exclusive right to the use of it ; he has no action against another who uses the words iiliospliate-giiano., or guano-phospJioazotv, without remainder of mark. 2. Although, at first, the use of the word gyano.,—- FiiK\c!i Dkcisions. •> 4 led lliiil \ use U)V tMl«Hl by iing (Umi- [he same net beinjj; ,1 similar iliape, ar- iiviiiL!; th« s that of , Defend- itlo "Kau ste, Cours I'd Pi(»nx, ; V. rieire February, 7i- Ixmmi an inl'raction oH tiic law of IS(»7 au-ainst (h'i>'s«'n<'f> of llu* gtMUMai nsagi'ol' so naming all aitilicial manures, which are more oi lexs simihii- lo the natural. Lawson r. Drciiailh', C. de Paris. r>() Maivh, 187:?, 18 A/ui. r/r la Pro. 7-i. For another oause, on same tiiuhMir.irk, In same plaint ill's, see Ijjiwson /'. Wei, C d' Amiens, '2.\ .lune, 187l^ bS Aim. (h' hi Pro. :57S. §1177. Fraudnh id ii.sr of li<'r(i>/(ieh's. -('us- tom irt, Hninc tnuli . — ^Vllen r"('ei»taeles, siich as bags, for natnial or manufaetured ]n(Klu<'ts, l)ear the trademark or name of ji niannfa' .urer oi' niei- chant, another person in the sann' tiM, R i yal V^ic- toiia. $^ 1171). I^^inn name. — A lirui name can aldiie be made up from the names ai tlie i)arlueis. E\oiy interested person has the ri^-ht to dc-niand the sui»- pression Lorn a lirm name, of a name which does not belong to any of the partiujis. Lei)er('he /'. Ricaumont, 0. de Boixleaiix, 27 A'ovember, 1873, IS Ann. de la Pro. 391. § 118(). Ntune of patented product. — The name given by the inventor, to a i)atented product, be- comes i)ublic property at tlie expiration of the pat- ent.'- Patents for improveuieuts do not preserve to the owners of tlie improvements, the ri;j;ht to the name given in the lirst patent, and prevent it enter- ing into common use. But, although every one may use the name, no one has the right to use boxes, lal)els and bill-lieads, similar to those of the inventor or his successors. Michel B. Gerstle, C. de Paris, 24 December, 1873, 19 Ann. de la Pro. 75. See § 1130, Perles d) ether ; § 1172, Cliarhon de Paris. § 1181. Product and process in common use. — Name of inventor. — Emblems. — Liebig's Extract of Meat Co., an English corporation, having a j^lace of business in Paris, put up an extract of meat, in- vented by Dr. Liebig, and known in commerce as Extractimi Carnis Liehig. They made a legiil de- posit of their trademark, which contained that phrase as an essential part. It was also surrounded with emblems, such as the head of an ox, &c. * Such is the general principle in cases of generic or necessary names. iiin Frkxcii Decisioxs. 430 c or necessary Defendants i)ut np nn extract of meat under same name. The pi-ocess and product had been f^iven to the public by Dr. Liebii;-. On suit brou,iJ!:ht to iv- strain defendants from usini^ the name Liebiij^ and infringing theii' mark, Ilcld^ 1. That tlie abandonment of the ownei-sljip or use of a i)roper name was not to be presumed. The inventorof a product or process, wh(> has published it with the intention of giving it to the pul)lic, can- not be i)resumed by thai al(me, to have abaii/io-!/u■ II' If ' ■]; •f-lO Fkencii Diccisioxs. ju'cessory element of the nuirk. Liiwson n. Dior, C. de Caen, 20 Jnnumy, 1874, 20 A?in. de la Pro. :ns. See j? §1170-1 101. § 118;}. Unlawful rivalry. — General appear- ance. — Name. — Snccessors. — A merchant who im- itates tlie Hliape of the bottles and labels of another manufactuier on products similar to his, is guilty of unlawful rivalry. This is so, even though the product is in use, and tlie infrin.L!,-er has introduced in his labels such dilferences as to enable them to be distinguished from the original when compared directly with them. It is sufficient that the general appearance of the bottles and labels was intended and results in the production of confusion be- tween tlie products. 2. Although the exjMration of the patent for a product gives eveiy one the right to manufacture and sell the product, it does not give the right to use the name of the inventor : esi)ecially when the product has not ceased to be made under the name of the inventor by his successors. 3. The successors of an inventor or manufacturer who has manufactured, sold and made known, under his own name, a certain product, have a right of action against the use of the name by rivals In their products, or even in their prospectuses. 4. The successors have a right in their own \)Vo^- pectuses to warn the public against the use of the stolen name. 5. The law of 1857 on marks, has not abolished the law of 22 germinal an. XL, forbidding tiie use of the name of another manufacturer or of an- other city, preceded by the words Fa(joii de, ctr. Landon v. Leroux, C. de Paris, February, 1874, 19 Ann. de la Pro. G8. inpfP FiiKNCii Decisions. n T. Dior, la Pro. apptar- wlio iiii- i another is guilty ?>\v^\i the troduced ) theni to :oiu pared e o'ciieral intended ision be- ^nt for a lul'acture riglit to vlien the he name ifacturer known, have a ^y rivals uses. \vn pros- ^e of the bolished tiie use of an- ^y, 1874, ? 1 18-1. fj.sc. btj rdalh'rH of mark of ic/toJe.s((le dealer. — A nierohant who buys at wholesale ii;oo(ls, for re-sale at retail,— such as writing paper, — has the right to reproduce the mark of the manufac- turer on goods sold l)y him in small (piantiiies. The court reasoned that this could not be regarded as a fraud ; and instead of being an injury to the man- ufacturer, it had the contrary elFect of guarantee- ing his goods and increasing their sale. Thomas de La Rue o. Massias, Trib. Civ. de la Seine, 7 Feb- ruary, 1874, 21 Arui. de la Pro. IWl.^' § 1185. Infrlnf/enteut. — Proi ITT Ho- ^ 4a: 10 French Decisions. !tf* i ■ I ,' m m lie called Carmellne, liqueur de Xoire-Dmnr rhi Moid-Car mel. The bottles containing i)laintilfs liquor were of an antique pattern, wheieas those of defendant were of a modern form. Held, that there was no infringement, the principal title of defend- ant's i)roduct being Canii'dliu\ that of i)laintiff, liqueur du Mord-Caniicl ; and (otherwise no confu- sion being possible between the two marks from the ai)pearance of the whole or of jiarts. Faivre T. Boulan, C. de Paris, 4 June, 1874, 19 Ann., de la Pro. 378. § 1188. Prior use. — Infringement. — In opposi- tion to the defense of use of a mark piior to its deposit, the depositor may prove that he was its in- ventor ; and that, if it was used by third persons before the deposit, it was by his authorization and without an abandonment of his rights. 2. He has an action against an infringer, after the legal deposit, even though it be proved that the use of the mark by the infringer ccmimenced before the deposit, and was only continued afterwards. Guil- lou 0. Derossy, C. de Paris, 20 Nov-ember, 1873, C. de Cass., 20 June, 1874, 19 Ann. de la Pro. 321. See § 1117. § 1189. LiJce names. — JMoet & Cliandon. — Moet & Co. — Injunction. — Although one's family name is his property, he has no right to make it an instru- ment of unlaw^iul rivalry. 2. A merchant or manufacturer, who, being pre- viously a complete stranger to a certain industry, is called into a new firm, because of the similarity of his name with that of an old house, may be per- petually enjoined against the use of his name in that industry. 3. Plaintiffs were the old house of Moet & liilfp French Decisioxs. 443 Cltandon, dating from 1807. The firm Moet & Co. was formed l)y Leblanc, a biewer of Reims, who bronglit one Jean Fredeiic Moet. a (rleik in a commercial house at Mai'Stricht, Holland, to Reims, for the purpose. This Moet had no knowledge of the manufacture of champagne wines, and only came to Reims to prolit by the use of liis name. Defendants took every precaution ag-ainst liabil- ity to an action by Moet & Chandon, wIjo had u place of business at Epernay, by ostablisirujg tliem- selv'es at Reims, by putting at the head of their bills, letters and shipping receipts, '•'' House founded in 1872," and by reproducing it on the bottom of their corks, where the name of the manufacturer is usually placed in the trade of champagne wines ; the two dots over the e weie also omitted from the name of Moet. These differences were held not sufficient to prevent the deception of tlu' public. Injunction and damages. (Art. ];J82, Civil Code.) Moot et Chandon o. Moet et Co., C. de Paris, 31 July, 1874, \QAnn. de la Pro. 311. § 1190. Fancy name of patented article. — Form, of mark. — Fraudulent imitation. — Plaintiff depos- ited as his mark for umbrella frames, Parar/on de Fox., stamped on a little coppered plate attached to one of the ribs. Defendant Meurgey, used the words Pararfon M et C\ jDlaced in same manner. Held., a fraudulent imitation under article 8, law of 1857. 2. Defendant Teste adopted the form and posi- tion of the plate, but stamped his own name on it. Held, no infringement. 3. The frames of plaintiff were patented, but the patent had expired. Held., that it makes no differ- ence that the product to Avhich a fancy name is '11 / ' ( French Decisions, 9 *<" f ,i,^iven, is patented, if it was not patented under tliat name, and the name was not independently^ of the jialent, generic ; also that the pul>lic h:ive applied the name to all products of a similar kind. This, being independent of the manufacturer, cannot cause him to lose h^'; mark. Fox v. Meurgey and Teste, C, de Paris, 19 August, 1874, 19 Anu. de la Pro. 3i.^7. Same case on appeal, § llO.li, § 1191, Fancy name. — Infringement. — Pliosplio- (juario. — When a trader has deposited a trademark which is composed of a fancy name, phos])]i.o-f/iiano and accessory signs and emblems, the whole form- ing the trademark, the Judges of the fart may de- cide that the depositor did not intend tr reserve to himself tlie right to the name phospho-guano dis- connected from the accessory signs. In that case the isolated use of the name is not an infringement (Law of 1857), Gallet-Lefebvre o. Goubean, C, de Cass,, .JO December, 1874, 20 Ann. de la Pro. 314, See § 1182. § 1192. Name. — Use hy imhlic. — Liehig. — By THE CouiiT, — As it results from the proofs of the judgment attacked, that the deposit made by the company is valid and regular ; that the use of the name of Liebig in England, as a necessary title of the 131'oduct to which it was given, is not p'-o-i-T-i; and if a commission taken there, estabjisl -hiii: there was prepared under the name of I;; »>; • aii extract of meat, in certain prescription ico; of apothecaries, these preparations were isolated, in pharmaceutical doses, and did not have the publicity requisite to give Liebig such notice as to require him to protect his name. Objection of contrary decision in English court of chancery, November 19, 1867, FiiKxcii Dkcisioxs, 415 an overruled. Ap[)eal dismissed. Demot (\ Society dos licritiers Liebig, C. de Cass., January, lyTH, 20 Ajih. de la Pro. 11. 0. See § 1181. § 1103. Name of Inventor. — Tlie name of tli<; inventor does not become public property on the exi)iratiou of his patent, unless the same is neces- sary to describe the thing invented. In the case of Jouvin, who had taken a patent for an insti-ument and process for cutting out kiowder and bismuth, is a trademark which, when legally deposited, gives a right of action against tliose who make use of it without permission on siiuiljir i)ro- ductions. Fay o. Durand, Trib. Civil de la Seine, 8 May, 1875, 20 Ann. do la Pro. 24;"). § 1200. Name. — Inventor of paicnied, machine. — Hotce sewing machine. — Franco - American Treat?/. — Property in a proper name is imprescrip- tible, and its abandonment is not presumed. It is the same in case of the name of the iuAeiitor of a patented machine, even though his parent has ex- pired, and, in common language, the |)arented machine is called by his name. This usage, though constant, cannot rob an inventor of his name, especially if he has not ceased to manufacture and sell machines of the same kind. 2. He is an infringer of a name under law of 1824, who puts it on a machine not made by him- self, although he places before it the words system of or adds his own name. Fi:i:x(ii DKCii^roxs. 4\) Thr tie;itv of 1S(50 bctwcon the I'liittMl States ami Fi'ancc, and that of ISfJO hetween KM^laiul and FraiK'o, stipidatin^' reciprocal ^iiuranries of trade- marks, incliKh's the mimes of business men \vhi<'h distinguish tlieir goods. IIowo Machine do. r. Maquaire, C. de Paris, JS Novendiei-. IST."), :iO Ann . de la Pro. !C);i. Case be'.ow re])orted hi. '.V.M. % 1201. Inffhujcuif'iit. — Faiii (If toilctir fl> Lnhln is infringed l)y the title Eaii, de toileUc i}(.s- et fl.enr.'i de Lupin., or Eau that in- fringed. Prot V. Cabridens, Trib. Civ. de la ^-^eine, 22 November and 10 December, J 875, 20 Ann. de la Pro. 309. § 1202. Fraudulent im'tation. — Eau. de melisse. — Plaintiff's label (legally deposited) was i>rinted in black on a white ground, Eau de.s Carmes d^chausses de la rue de Vamfirard, de Ihn/er. Rue Taranne., No. 14, a Paris. Blown on his bottles were the words Eau des (Jar men., Bovkk, rue Taranrte., No. 14. Defendant Roger Boyer |)nt up eau de melisse in bottles on which weie blown p](tu de melisse de Boyer., pharntarien d Paris. Ilis labels were printed in black, on a white ground, Eau de melisse des Cannes ])ieparee par R. Roi/er., Rue Taranne., No. 0, The boxes in whicli tlie bottles were i)ut up, were imitated. Defendant claimed that there were sufficient differences be- tween tlie products to distinguish them. 29 y. I 450 FiJKxcii T)i:c'isioxs. f i ,' V V 'i ■/.« ft //f7r/, that it is suflicicnt to coiiHtitiitH ji fiaiidii- loiit imitation of a murk iiiidor artirlo 8 of law ol' 18.-t7, tliat tlie i^Hiieral aspect of tlio infrini;;iiig' mark !)»' tlu; samo, and that (h'signcd rcscmbhinccs of ('(M'tain details, siicli as tho form, color and airanyo- ment of hibels, stamps and seals, be of snch a kind as to deceive inattentive or inexperienced bnyers. 2. In snch a case the frandulent intent may be estal)lished not only by resemblances of the labels and other distinctive si^ns deposit(>d, but also by a(;cessory facets, such as the shape of the recepl:icles, the method of packin.u", Arc which do not constitute a trademarlv in themselves. When a meichant 1ms made liimself known in a certain industry, or in the manufacture of certain ^'oods, I'ival nn'rchanls of the sanu' name should, more than any others, avoid resemblances of marks of snch a kind as to lead to confusion. A. Boyer i\ 11. Boyei-, C. de Paris, 27 November, 187;"), 21 Ajin. de la Fro. 20. See §§ 1140, 1150. § 1203. A. Boyer, mentioned in section 1202, bronght suit against Cassius Boyer and Bate], who, in selling Eau de melisse, used a square lal)e] printed in black on a white ground, J^a/i de nicU.SKc dcs- Cannes i^a hit- Jacques^ C. Bot/er, Rxe Brezln., jS^o. 33, Paris. The name C. Boyer was printed in the same manner as that of plaintiff, but at the left of the label instead of the right. The type employed Avas different. Held, that there is a fraudulent imitation of a mark, the moment that the labels and stamps em- ployed present resemblances of snch a kind as to deceive any number of buyei-s, even though differ- ences had been introduced and the name raodilied. 11 Ji ■"^ FlMCXClI PlX'IsroNS. -i:.i A. Pioycr /". C'lssiiis Pxiyyi", Trih. (Unr. dc ]:i Seine. '.) December, IST."), "il *\i/n. f/c /(f l^m. -2:^. ^ ]:?()4. Trr((ft/ hctirctii FriDn-c anfl Kii'jJdinl. — J'^rn who have lei^ally deposited tlwMr marks in l""'iance. to 1)rin-^ pement. — nufaoturer )osits. nnd )n to pre- ., it is no liat he has 'ringers for signature, !, is an evi- judging of mit, C. de Fro. '?7. 's6 after ex- of persons, trademarks, j\. The un- ame of tlie ling acces- cles 7 and 8 on of name snal Code, o-ive the use )lic, unless lis own act designated, nanufacture avoid every irchasers as em. ation of the he inventor le word dii long accom- to show tlie name (mly, and to prodiKu; a confusion l)etu>HMi \\\{\ pi'odiicts. Rogier /?. Frai)piei-, C d(3 l*aiis. {{) March, 187G, 21 Ann. de la Pro. ()."5. § 1208. Master anxl servant. — Foruiatio)i of neio estahlisknicnt. — An employee who i'ouiids a new commercial house, has no right to meution the name of his former employer in his circulars. Use of name enjoined. Courtois V). Ilolzmann, Trib, de Comm. de la Seine, 30 March, 1876, 21 Ann. de la Pro. 111. See g 1131. § 1209. Name of inventor. — Use of\ after expira- tion, of patent. — Howe. — Bijou. — An English com- I)any which has obtained from an American company the exclusive right to make and sell in Europe a certain kind of sewing machine, and to us(> tli<^ iianic and trademarks of the American invenloi-. has a right of action in France against infringers ol' said name and marks, by virtue of the treaties of 18(iO and 18G2 with England. 2. The inventor of a patented machine and his assignors or heirs preserve the exclusive right to use his na 3 after the expiration of the patent, unless it is proved that he has v(»lunt;jri]y aban- doned it to the public. 3. Although any one may manufacture the machine after the expiration of the patent, he may not add to it the name of the inventor, either alone or with any qualification, — e. (/., Bijou ^ thus, Ilowe- Bij'on. Howe Machine Co. 1". ]3rion, C. de Paiis, 20 May, 187U, 21 Ann. de la Pro. 170. See $^ 1214. § 1210. False designation of j)taee of manu- facture. — The manufacturer is guilty of unlawful rivalry who gives to his products the name of '<*> w™ m' i^: 'I 'I W li 1^ 4.")4 Frexcii Decisions. ])l!U'e different from that of production, wlieii (lu'i'c exists in the i)la{'e whose name is talcen, a inauu- fa('tiir«M" wliose products liave jdrc^ady acquired a celebrity under its name. In such a case the lirst occupant lias a right of action for the supjiression of the name which may cause confusion, tis well fi'om the letter-heads as ficmi the trademarks of liis rival. Lonquety v. Famchon, C. de Douai, July, 1870, 21 Ann. de la Pro. 317. See jJ 1143. § 1211. Frauduh'id hn ilaiion .—Vhimt'ifT h de- posited trademark consisted of a square label, reading as follows : USIXES DE WYGMAEL E. rp:my ET C« AMIDON ROYAL DE lUZ MEDAILLE jVoU EXPOSITION — Paris, 1807 — universelle LOUVAIN These words were surrounded bv a frame-work of medals, obtained at various exhibitions. Defendants adopted a new label in 1875, as follows : amidoxnekie S* REMY O^'^ AM 1 1) ON 1)E RIZ MEDAILLE d' A UGEXT EXPOSiTiox — Paris, 1807 — i'mverselle MAISOX FOXDEE EX 1822 It was printed like plaintilfs in white cm a blue ground; the fiame work was of medals nearly the same as j^laintilf s ; the shape scpiare. By the Couut. — Although neither the blue color of the paper, nor the white color of the letters, nor the square form of tlie label, wc:e ])roperty of plaintiffs, they having been in universal use for a FiiKxrn Becisioxs. 4r)n 1.1,1 ;• fi.ao to de.si^ii;iuito these pi-odiicts, y<'t ronsider- inix that in the mark of the plaintilf, the iianie Heuiy vi Ce. I'onns the essential and chai-acteiistic siuii. as well because it is the name of the mannfactiircis of the Amidon as because it is jninted at tlie head of the label in large characters, and it is the name which best distinguishes the merchandise to ])nr- chasers. Considering that defendant, instead of announcing liis goods in his labels by his name, concealed the same completely, and searched for a means of inscribing the name Kublic cm the origin of the merchandise defendants are guilty under law of IS.")?, articles 8, 11], 14, Damages and ccmtiscation of labels, llemy t. Manger, C. de Paris, 8 .July, 187(5, 21 Ami. do la Pro. 200. § 1212. LHce names. — Unlawful rlmlry. — In- juneiion. — When a merchant makes useof the simi- larity of his name and that of an old and well-known house, with the evident intent of profit ing by its 4oG Frexcii Decisioxs. notoriety, the proper courts liiive authority either to o^'dor tlie necessary measures to avoid all confu- sion or to enjoin the use of the name in the same kind of industry as that of the older house. 2. It is an act of unlawful rivalry cm tdie part of a merchant or manufacturer to mention a known and old house, in such a way as to cause those who do not know well the two establishments, to sup- X)ose that his is the oldest and the most interested in hindering confusion. Veuve Erard v. Nicolas Erard and Coda, C. de Paris, 29 July, 18T6, 23 Aitti. de la Fro. 277. § 1213. Phd.r mace lit leal preparations. — Name of compounder . — Feincy name. — Fraudulent Imi- tation. — In matters of pharmaceutical preparations as well as in all others, the fancy name given to a product by its inventor or proprietor is, like his surname, his exclusive property unless he has abandoned it, or the preparation has no other dis- tinguishing name. 2. For a fraudulent imitation of a mark under article 8 of law of 1857, it is not necessarv that the whole label should be imitated ; it is sufficient if the title of the preparation is taken and an anal- ogous though different name of maker, the remainder of the labels being different. (Defendants, when asked for a bottle of Elixir tonique antiglaireux of Dr. Guillie, sold a bottle with a label bearing at the toj) the name of the pharmacy Negre, and in the center the title Elixir tonique antiylaireu.x F. Guillie. The remainder of the label was different from that of Paul Gage, manufacturer of the true elixir.) Ministere Pub- lic V. Negre, C. de Grenoble, 31 August, 1870, 2 Ann. de la Pro. 225. FItp:^x'il Dkcisioxs. 457 § 1214. Name. — Foreign firm. — Action in France. — Ilir/hls of asslc/)iee. — Treat tj l>e(ic('(ii. France and England. — The {issi r^-, -.^..^iit ^r/;/ <^7*:'.9 Cannes dh-hanHHeH de la rue de Yauqiriird dr B()f/ei\ Rue Taratiiie No. 14, d Paris, — of tle- feiiduiUs was Eaii, de melisse des Cannes de hi rue de Vaiif/irard, de (Jelin, Ko. 10."), a Paris, The bottles ol' (!U('li were oE the same form and size, a;\il liad the name of the produ(3t blown in the glass ; tliey were corked in the same way, sealed with a red seal in the same place, and put np for sale, at wholesale, in similar boxes, with inscriptions and desii^ns e(pially tendini!; to establish confusion be- tween the two. Defendant claimed that all the dealers in eau, de melisse had adopted like bottles and boxes, and that his name and address were snfli(Ment to prevent anj'" confusion. Held, a violation of article 8 of law" of 18.J7. Boyer v. Gelin, C. de Paris, 14 December, 1876, 22 Ann. de la Pro. 00. ^ 1210. Name. — Injunction against use of. — Whenever a merchant lends his name for the pur- pose of causing" an unlawful rivalry with anothei-, he commits such a Avrouii: as to authorize the court to enjoin the use of his name in the specific trade. J. F. Martell & Co. y. J. L. Martel & others, C. de Bordeaux, 17 July, 1870, C. de Cass., 27 March, 1877, 22 Ann. de la Pro. 94 ; Same Case beJow, 21 Id. 284. § 1217. Frandiilent imitation. — Papiers Joh and. Jop. — The use of the of the word Jop is a fraudulent imitation of the trademark Joh, Avhen the chaiacter and color of the letters are the same, and the surrounding designs and inscriptions are similarly arranged. Bardou v. lloux, Trib. Corr. de Toulouse, 3 May, 1877, 22 Ann. de la Pro. 189. § 1218. Name of manufacturer. — Sale. — The name of a manufacturer, when used in a peculiar I' y i»W!f>i.l« ruExcii Decisioxs. 4.")!) form as u trademark, {e.ff., a copy of tlu? sigaariirci is an object of sale together with the good will and sto(!lv of his business, and may be resold by tht^ assignee. Reasoning of court, — the stamp (copy of signature) being the only means of establishing the source of the goods, and of retaining the custom depending upon it, has become, by force of the cir- cumstances, an ac(?e,ss(jry t-o the business transferred to Morel — it can, consequently, be a matter of assignment to a second purchaser. Com}>('ie >'. Bajou, C. de Paris, 10 June, 1834, UpiotC a Tradv- marlcH. % 1219. Liquor a de la grande Chartrcihs-e. — The liquor generally known as Cltari reuse, having ac- quired a great celebrity in Fran(;e, was extensively imitated. The suits were so numerous that it is con- sidered desirable to group them togethei' iri'es Elective of dates. In 18r)2, Louis (jrarniei', head of the convent of the Grande Chartreuse, legally deposited his trade- marks and labels. In suit against Kivoire (4 Ann. de la Pro. llo), the Tribunal of Commerce of Grenoble decided, December 31, 18.j2, that Garnier was the sole owner of the liquor known as Vhartreusr, whicli takes its name from the place of its manu- facture, and enjoined defendants against the use t)f the title llqitear de Chartreuse. Damages were refused, however, because of the tolerance of the monks up to that time. On a|)peal defendants con- tended that the word Chartreuse hnd become a generic term to designate the kind of liquor made by the monks of Chartreuse. The jorinciples announced by the lower court were aflirmed by the cour de Grenoble, May 2,"), 18.");j, say- ins:, " that the name Chartreuse^ which was only an ^O) abbreviation of the label of the Chartreuse monks, " " -JUPif' ' ^r 43;) FiiENX'ii Decisions. 1/ was not a j^ono.Io n:im3, sach as a iiamo would be vvbicli was derivod from the nature of the liquor or the substance of which it was composed ; that this liquor had been thus named because it had been invented at the monastery of the Grande Chartreuse, and was made there by the Chartreuse monks, so that this name designated at the same time th'.' ui- oetilor.t, the maniifdcturers and the 2>l('(^(' of ni(Uiii- factitrc, and it (H)nstitutes, under each one of these, a distinctive mark ; a name which cannot be applied with truth to a similar or analogous product manu- factured at Grenoble by Rivoire frei-es." The judgment added that the monks not liaving a monopoly of their liquor, yet not having made known their process, Rivoire had the right to com- j)ound a similar liquor, if he could, and in default of another name to give it one drawn from its similarity even, — such as Imitation Chartreuse^ on condition that they be written in identical char- acters, or so that they may not have the effect to turn away the customers of the monks. C. de Grenoble, 23 May, 1852, Garnier «. Rivoire, 4 Ann. de la Pro. 115. § 1219 A. One Berthe, pretending to manufacture his liquors in the Commune of Saint Pierre, in which is the Grand Chartreuse Monastery, claimed the right to jjlace on his labels, liqueur fabrlqaee d Saint-Pierre de Chartreuse. He was adjudged guilty of a violation of law of 1 824, and of article 423 of Penal Code, and ordered to pay a line of 125 francs, and 500 francs damages, with insertion of notice in two newspapers. Gar- nier V. Berthe, Trib. Com. de Grenoble, April 2, 1857, 4 A?i?i. de la Pro. 119. § 1219 B. In 1808, numerous suits were brought FnExni DErisioxs. 4ni nirninst parties in and about Paris, wIkmo a ti-ad^ in spurious (lidrtrcu^i'. liadspruni^ up. Five of tlieni are iv[)orte(l at page 220 ol' the AitwiJes, vol. J4 ( L. Gurnier v. Ludiere and others), anotlier (L. Garnier v.. Piiul Garnier) at p. 2.')2, Id. The same cases on appeal are reported at p. ',\T)?>, Id. Some of the defendants reproduced the labnl of plaintiffs, but added in characters almost imper- ceptible the words, ImiUdlon of lhi\ and name or initials of the distiller. Another reproduced the label with the exception of Grande Charticnsr, in place of which was jnintcHl Grande Chrrrru.sr in the same characters. Another substituted Lapanr In/gieniqye de la Grande Vharlreiise, printed in two lines, in place of Grande Vhartrcuse, the le- mainderof label being' similar. Defendants sought to establish their good faith, and the absence of any real damage, resulting from the long tolerance of the monks, and from the difference in price of the true and imitation liquors, and the differences of labels. It was held in these cases, according to the cir- cumstances of each, that there is an infringement of a trademark (article 7 of law of 18.")7), the moment that the intention to imitate results in the repro- duction of the trademark with only such differences as are due to imperfect workmanship. Also that the offense of fraudulent imitation (article 8, law of 1857), may exist though the fraudulent mark would not necessarily deceive all purchasers ; consequently the indication of the name of the manufacturer or even the substitution of another name for the pio- duct, is not sufficient to remove the offense. That the manufacturer who sells products with labels in imitation of those of another manufacturer, ' 'r-* 4G2 FijENcii Dkcisiojn's. is, e(iii:illy wUli tlie rehiil deulei", liable to tlio [K-n- jilties established by the law, although the substitu- tion ol' his (the nianufactui'ei''s) name foibids Ihe belief that the retail dealers to whom he delivei'ed his /jfoods had been personally deceived as to their natui'e or origin. That it is not necessary to establish that the re- tailers at wlKjse stores these products were seized have deceived one or more consumers. It is suflicient that the mark or label be in its entirety ol' the kind to deceive a certain numl)er c^f pmchasei's. (xarnier y.'. Ludiei'e, Id. v. others, C. ile Pai'is, November 2."), and D.^cember :](), 18(58, 14 xi/ifi. place of manufacture, and its usurptition did not, therefore, come under law ui I8*J4. Paul Gamier, after the decision of 18(;8. uiodilied liis hd)els by replacing the darkened iiearls. wiijili liad been objected to, bv a solid fianie wo:!;. ;;;!d sid)stitutiiig in place of his former title the wor'ls liqueur v/i<(rlrvi(s(^ J'ahrlqni-i' par V. (>'iii niir. iSoon after he issued a secoiid edition, and added at the bottom of the label Xoi/oii (Oise) -jiis residence. In a third Ivind of label, hirger tlinii the othei-, with no framework, he placed the word (_'nAU'ri;i:r>i:. ia large characters with his signature and the word NOYOX. In court of iirst instance, IfeJd that the filh^ 6V(!«;"//Y?^/.se was a generic name, given to a certain kind of liquor invented l)y the (.'hartreuse monks; that it liad been for a long time in common use, and did not indicate by itself the place of manufacture. On appeal, Held that tlie name of ('h- plied to liquor compounded at the (fraiKh' Char- treuse, is not a generic name, such as a nanw.' (UMi\'ed from the naturoand com])osition of the liquors, but an abbreviation of the labels of the Chartixmse monks, indicating at once the inventor, the manu- facturer and the place of manufacture. Therefore, it is a usurpation of. name of place of manufacture, under law of 1824, for a manid'acturer to use the word Chartreuse to designate a liquor ■^m *!( f I I 1^' 1) ■;'.■ 4G4 Fkkxcii Dkcisions. moro ()!• less similnr to that of the convent of the G;"a:ule Cliarfrciise. It is so o\'M\ though the hibels used by tlie niann- factiuvr (liiFiMs from that of tlie monks, and indi- cates a diflorent phure of nianfacture, Lonis Guinier V. Paul Garnier, C. de Paris, 5 February, 1870, 10 Ann. f/f 1(1 Pro. 200 ; Same Case, again rei)orted, 17 Id. 240. Affirmed by Court of Cassation, 20 April, 1872, Id. '2r>7. § 1210 PI TJie action detailed in 1210 1) wa.s in the criminal court. A civil action was also brought on same state of facts. JL'ld, that tlie ownership of a title or a mark is ac(piired by the first use of it, independently of any deposit. Consequently, although the de- posit is necessary as a prerecjuisite to an action under tlie law of 18r)7 the use previous to the deposit which a manufacturer or merchant has made of a title or of a mark, cannot be pleaded as causing it to fall into common use. No more can the unpermitted use of it by a third person be pleaded. The title Chartreuse, employed by the Chartreuse monks to designate the liquor made by them at the Grand Chartreuse, is their exclusive property, indi- cating at the same time the manufacturer and the place of manufacture. Therefore the Chartreuse monks have an action to enjoin all other manufacturers or dealers against the use of the words Chartreux or Chartreuse to designate liquors or elixirs not coming from the Grande Chartreuse. Louis Garnier t. Paul Garnier, C. de Paris, 10 May, 1870, 10 Aim. de la Pro. 210 ; Same Case again reported, 17 Td. 241. The preceding judgment was followed in case of French Dkcisions. 405 it of the. le mann- ud iiidi- 4 Giiniier 1870, m iei)()rted, lalion. 2i') 1) WJLS was also I mark is lendently li the do- aii action IS to the liaiit has •leaded as more can jerson be L. Garnier tt. Martin, Trib. Civ. de la Heine, :U May, 1870, 10 A/.n. dc. la Pro. '229. >5 I'itO K. When a miuuifacturer has adopted complex trademarks, it is sulUcicnt to siisiaiu an action that he has deposited his principal tiath'- marks I'roni which the former weie madt.' up. Therefore, one is liable to the ])enallies iixed by article 8 of law of 18.")7, who has nsed one or m(»re elements of the deposited maiks, all hough the mark nsed, snch as the stanij* on ilie corks of bottles, has not been made the special and distinct subject of dei)osit, if otherwise its nse is of a kind to deceive buyers as to the ori<:;in of the product. Appeal from Tribnnal correctionnel. Grezier o. Chedeville, C. de Paris, 11 June, 1875. 30 Ihartreuse |em at the !rty, indi- |r and the m action I's against \treuse to ,&om the |l Garnier, Vo. 219 ; in case of m (yllJP.l I APPENDIX CONTAI.MXG umrm states trademark statutes • rut f^ ov ^T7T,-ir ^^'^^^ STATES PATENT OEEICE- SIATCTE, RLXES AND OEFICl VJ Foini^ r uf' THE REGISTRATION OF PRINTS Ldl^^^^^^^^^ AND TRADEMARK TREATIES AND CON VENTIONS WITH THE UNITED STATES UNITED STATES TlLil)E31AJ[K STATUTES. TRADEMARKS. Title LX, Rev. Stat., chai>. 2, p. 00^ : Any person or «nu domidl.d in the United S^ttf^nd any co.porat.oa created by the authority of tlu U.', ' on, hzm, cr corpoa-ation iPc-sident of or located i.^ tnv Wgn c.ount.^ .hid, by treaty or convention a^ord 2- ^ m. e.es to c.tj:.ns of ti.e United State., an. 210. [4G7J i mmmrm^w"^'' riy i I I'i ^i^: 4.;.> Umtijo Statks SxATrrKs. tt'C'tioii lied and used; and the length of lime, U' any, during which tlie tradi'mark lias lu'cn in usi'. Second. By making j)ayment of a lee of twenty-live dollars, in the same manner and for the same purpose as the fee required for jjatents. Third. l>y conipiying with such regulations as may be prescribed by the Comuiissiouer of Patents. Skc. 4D;J8. Acrouipauyhifj dedantfii)it audi r oath.* — The certilicate j)rescribed by \\w jjreceding section must, in order to create any right whatever in favor of the party liling it, lie accompanied by a written declaration verilieerson, or by some member of the iirm or officer of the corporation by whom it is tiled, to the effect that the party claiming jirotection for the trademark lias a right to the use of the same, and that no other person, Iirm, or corporation has the right to such use, either in the identical form or in any such near resemblance thereto as might be calculated to deceive ; and that the description and fac- similes presented for record are true copies of the trade- mark sought to be protected. Sec. 40;] 0. liestridlon on the rcf/htnitlon of trade- tnarks.] — The Commissioner of Patents shall not receive and record any proposed trademark which is not and can- not become a lawful trademark, or which is merely the name of a person, firm, or corporation, unacirouipanied by a mark sutKcient to distinguish it from the same name Avhen us'.'d by other persons, or which is identical with a trademark appropriate to the same class of merchandise and belonging to a different owner, and already register<'d or received for registration, or which so nearly resembles * 8 July, 1870, c. 230, s» 77, v. IC, p. 210. t Ibid., s. 79, p. 211. m^ L'xiTKi) States Statute? 40J ;mili>C', find II such c-i:iss, •I'lknl to be itsolf, with I it has been lie U'ligth of been ill iisi-. ■ twenty-live e purpose as i:s as may be liJa- oath* — section must, ■ of the party ■ation veriiieil n or offieer ol lYect tliat the ■k has a riglit ■rson, firm, or the identical as might be »tion and fac- of the trade- 'ioa of trade- 1 not receive not and can- is merely the i-ompanied by le same name entieal with a merchandise ady registen'd irly resembles 210. such last-mentioned trailemark a-; to be Iik(»ly to deceive the public. But this section shall not ]>revent the registry of any lawful trademark rightfully in use on the eighth day of July, eighteen hinidred and seventy. Sec. 4940. Tiina of rerrlpt of trademark for registra- tion to he eertifeil^' — The time of therecei)'>t of any trade- mark at the Patent O'Hce for registration shall be noted and recorded. Co])ies of the trademark and of the d;rte of the receipt thereof, and of the statement tiled therewith, under the seal of the Patent Office, certilied by the Com- missioner, shall be evidence in any suit in which such trademark shall be brought in controversy. Sec. 4041. Thirafio)! of protect km of rcffistcraj trade marl', and rencii'af.\ — A traflemnrk registered as above prescribed shall remain in force for thirty years from the date of such registration; exee))t in cases where such trade- mark is claimed for and a|>i)lied to articles not manu- factured in this country and in which it receives protection under the laws of any foreign country for a shorttr j)eriod, in which case it shall cease to have any force in this country by virtue of this act at the same time that it becomes of no effect elsewhere. Such trademark durijig the period that it remains in force shall entitle the person, firm, or corporation registering the same to the exclusive use thereof so far as regards the description of goods to which it is a])propriated in the statement tiled under oath as aforesaid, and no other person shall lawfully use the same trademark, or substantially the same, or so nearly resem- bling it as to be calculated to deceive, u))on substantially the same description of goods. And at anv time during the six months prior to the expiration of the term of thirty years, application may be made for a renewal of such registration, under regulations to be prescribed by the Commissioner of Patents. The fee for such renewal shall be the same as for the original registration; and a cer- * 8 July, ISTO, c. 2150. s. 80, p. 211. t Ibia.,'s. T8. p. 211. w ^J United Sjatks Statutes. i. fif lillvulc ol' suflj it'iiewiil shall be issued in the saine nianiicr us i'or the origiiuil registration; anil such tva4:i, Reintibj for liifrliif/cinent of ro/jtstcred tradr- Huxr/tS* — Any person whoshall reprotluce, counterfeit, copy, or imitate any recorded trademark, and affix the same to goods of substantially the same descriptive properties and i)lied and used. Foio-f/t. The length of time, if any, during whioli tlie trademark lias been used. Fifth, Tlie payment of a fee of twenty-five dolhirs, in the same manner and for the same purpose ,as tlie fee re- quired for patents. iSLcf/i. Tlie eom])lianec with such reguhitions as may be prescribed by the Cominissioner of Patents. Semnth. Tlie filing of a declaration, under the oath of the person, or of some member of the iirm or oflieer of the corporation, to the effect that the party claiming ]»rotectioii for the trademark has a right to the use of the same, and that no other person, firm, or corporation has a right to such use, either in the identical form or having such near resemblance thereto as might be calculated to deceive, and that the description and fac-similes presented for record are true copies of the trademark sought to be protected. The oath must also state the citizenship of the person de- siring registration. The petition asking for registration should be accom- panied W'ith a distinct statement or specification, se ting forth the domicile and residence of the applicant, the length of time the trademark has been used, the mode in Avhich it is intended to apply it, and the particular descrip- tion of goods comprised in the class by which it has been appropriated, and giving a full description of the design proposed, particularly distinguishing between the essential and the non-essential features thereof. 85. How long the rUjht may inure. — The i>rotection for such trademark will remain in force for thirty years, and may, upon the payment of a second fee, ^e renewed for thirty years longer, except in cases where such trademark is claimed for, and applied to, articles not manufactured in this country, and in which it receives protection under the laws of any foreign country for a shorter period, in llti RuLK> IX Tkadkmauk Cases. Hii^i I I II wliicli c;i>o it sli.ill ci'aso to li;i\i' rorco in this country, l>y virtuo of till- resist iMlioii, at tliL-saiiK' tiinu that it bt'i-oiius of no c'fTc'ct c'lsewhc'ie. 80. Proper Kufijicts j'lir tnnJi'hiarJiS. — Nu |ii'{il traih- mark will hu rcccivi'il (jr rcoonlcd which is not ami caiiiioi bt'coino a lawful trademark, or which is nicrcly the iiainc of a iiorsoii, linn, or cori»oration only, uriaccDiiipanicd hy a mark siiHiciciit to distiiigulsli it from the saiiK' nainc when used )»y other persons, or which is identical Avith a trademark appropriate to the same class of merchaiidisi- and beloii!4'iiig to a different owner, and alreatly registereil or received for registration, or which so nearly resembles such last-mentioned trademark as to be likely to deceive the public : but any lawful trademark riglitfidly nsvA al the time of the passa;|e of the act relating to trademarks (July 8, 1870) may be registered. Proceed III ijii in (he office.— All api)lications for registra- tion are considered in the first instance by tlie TracU'mark Examiner. From adverse decision by such Exaiiiner upon the applicant's right to registration, an ai>peal directly t<> the Commissioner will lie, no foe being charged therefor. In case of conflicting applications for registration, the Office reserves the right to declare an interference, in order that the parties may have opportunity to prove priority of adoption or riglit ; and the proceedings on sucli interfer- ence will follow, as nearly as practicable, the practice in interferences upon applications for patents. 87. Pac-.'iiiii/fe.^ to be Jileil, — Whei-e the trademark can be represented by a fac-simile which conforms to the rules for drawings i>f mechaiucal patents, such a drawing may be furnished by ap[)licant, and the additional copies will be produced by the photo-lithographic process, at the ex- pense of the OlHce. Or the ai)plicant may furnisli one fac- simile of the trademark, mounted on a card ten by fifteen inches in size, and ten additional copies, upon flexible pa- per, not mounted, as in designs, but in all cases the mount- ed fac-simile or the drawing must be signed by the appli- 1^ 71^ Official Forms. cant or liis authorized attornoy, and the signaturo must he attested hy two witnesses. H8. TfinlciiKn'h'K dxaitjHdbh'. — Tlie risijht to tlie ti - oi' any trademark is assi^nahk' hy any instrunient of wi and sueli assiLjnnient must he I'eeonled in the Patent ''^^'ice within sixty days after its execution, in default of whieli it shall he void as against any suhseijuent ])urehaser or mort«^a<^ee for a valuahle eonsideration, M'ithout notice. The fees will he the same as are preserihed for recording assignments of patents. -t I OFFICIAL FORMS. Petition. 11. — FOR THE REGISTRATION OF TRADEMARK. To the Commissioner of Patents : Your petitioner [or j)etitioners, if a firm] respectfully represents that he [or it, if a corporation] is engaged in the manufacture of , at , and at , , and that he is entitled to the exclusive use upon the class of goods which he manufactures of the trademark described in the annexed statement or spccifica ion, and illustrated in the accompanying fac-simile. He therefore prays that he may be permitted to obtain protection for such lawful trademark under the law in such cases made and provided. A. B. 8j)eciJication. 20. FOR A TRADEMARK. \_Ifthe application is imule hy a coiporation or a Jinn thisfonn should ie modijied to conform to the facts.] To nil ichom it may concern : Be it known that I, [here insert the name of the appli cant,] domiciled in the [United States, or in the Dominion Official Forms. iJ of Cuiada, or, as the case may be, | iviiil ii'sidiiig at , ainl (loiiiif husiiK'ss at , in the county of , and State of , have adopted [or intend to adopt] for my use a trademark for , of wliich the following specilieation is a full, clear, and exact description: My trademark consists of tlio letters and words, S. N. & Co.'« IJuckeye Sheetings. These generally have been arranged as shown in the accompanying fac-simile; above and below a figure of a man represented as ascending the side of a mountain and carrying a banner, upon wliich is inscribed the word " IJuckeye;" and the whole has been inclosed within an ornamental border substantially like that shown in the fac-simile. But the figure of the man with the banner may be omitted, or some other device sub- stituted for it, and the border may be changed at i)leasure or omitted altogether without materially changin<,' the character of my trademark, the essential features of which arc the letters S. N. ifc Co.'s and the word-symbol Buckeye. This trademark I have used in my business for ten years last past. The class of merchandise to which the trademark is ap- propriated is ; and the particular descrijition of goods [comprised in said class] upon which I use my said trademark are . I have been accustomed to print it in blue ink upon each piece of said goods, and also to have it printed on labels, which I afterward paste ujjon said ar- ticles or on boxes and cases containing the same. A. B. Witnesses : C. D. F. H. 30. — DECLARATION OF APPLICANT FOR REGISTRATION OF A TRADEMARK. [If tJie application is made hj a corporation, or a firm, this foi^m should be modified to cuvform to the facts.] State of -, Count}/ of- A. B., bei-.g duly sworn, deposes and says that he is the hi 48v) Registration of PnmTS and Labels. ujtplic.iiit named in the accompanying j^etif ion ; that lie vorily believes that the facts set forth in the foregoino: specification are true ; that he has a right to the use of the trademark described in said specification ; that no other person, firm, or corporation has the right to such use, either in the identical form or in any such near resemhlance thereto as might be calculated to deceive ; that the de- scription and f ac-similes presented for record are true cop- ies of the trademark sought to be protected, and that he is a citizen of the United States, (or, a citizen of the Re- public of France, or, as the case may be.) A. B. Sworn to and subscribed before me this loth day of , 187- E. F., Justice of the Peace. r !>■', I,;i* REGISTRATION OF PRINTS AND LABELS. By an act* of Congress entitled " An act to amend the law relating to patents, trademarks, and copyrights," ap- proved June 18, 1874, (to take effect on and after the 1st day of August, 1874,) it is provided, in the 3d section thereof, that certain prints and labels may be registered iu this Office : Sec. 3. That in the construction of this act the words "Engraving," "cut," and "print" shall be app'ied only to pictorial illustrations or works connected with the fine arts, and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law% but may be registered in the Patent Ofiice. And the Commissioner of Patents is hereby charged witli the supervision avid control of the entry or registry of such print or labels, iu conformity with the regulations pro- * See Marsh v. Warren, cited at foot of page 517. ELS. Regi^^tkatiox of Prtxts axd Labels. 4S1 1 ; that lie ! use of the D no other use, cither esemhlance lat the de- •e true cop- md that he of the Re- A. B. Loth day of :. F., the Peace. ,ABELS. |o amend the rights," ap- t'ter the 1st 3d section registered in 3t the words )iied only to fith the fine lisfd for any k under the Jatent Ofiice. Iharged with listry of such Vlations pro- 517. vidcd by law as to copyright of prints, except that thore shall be })aid for recording the title of any print or label, not a trademark, six dollars, which shall cover the expense of furnishing a copy of the record under the seal of the Connnissioner of Patents, to the party ontcruig the same. Skc. 4. That all laws and parts of laws incon-istent with the foregoing provisions be and the same are hereby repealed. ►Sec. 5. That this act shall take effect on and after the first day of August, eighteen hundred and seventy four. By the word "print," as used in the said act, is meant any device, picture, word or words, figure or figures, (not a trademark,) impressed or stamped directly upon the articles of manufacture, to denote the name of the manu- facturer or place of manufacture, style of goods^ or other matter. By the word "label," as therein used, is meant a sl"p or piece of paper, or other material, to be attached in any manner to manufactured articles, or to bottles, box»>s, and packages containing them, and bearing an inscription, (not a trademark,) as, for example : the name of the manu- facturer or the place of manufacture, the quality of goods, directions for use, &c. By the words " articles of mannfacture" — to which such print or label is applicable by said act — is meant all vendible commodities produced by hand, machinery, or art. But no such print or label can be registered unless it properly belongs to an article of commerce, and be as above defined; nor can the same be registered as such print or label when it amounts to a lawful trademark. To entitle the owner of any such print or label to register the same in the Patent Office, it is necessary that five copies of the same bo filed, one of \vhich copies shall be certified under the seal of the Commissioner of Patents, and returned to the registrant. The certificate of such registration will continue in force for twenty-eight years. 131 % ''K?vT *: " ■ n ft 4S. On ICIAL IA)liMS. I'lio fot' for registiMtloii of a print or label is six dollars, to 1)0 paid in the same maiinor as fees for patents. The benelits of this act seem to be confined to citizens, or residents, of the United States. i' ' ; i J) i It I"; I % 1 FORM OF APPLICATION FOR REGISTRATION OF PRINTS AND LABELS. [Making necessary changes to suit each case.] [for an individual.] To the Commissioner of Patents : The undersigned, A, B., of the city of Brooklyn, county of Kings, and State of New York, and a citizen of the United States, [or resident therein, as the ease may be,] hereby furnishes five copies of a label [or print, as tlic rase may he,'\ to be used for , of which he is the sole jiro- prietor. The said label [or "print"] consists of the words and figures, as follows, to wit : [Description.] And he hereby requests that the said jirint [or label] be registered in the Patent Office, in. accordance with the act of Congress to that effect, approved June 18, 1874. Brooklyn, N. Y., Atigtnt 1, 1874. Proprietor. [for a corporation.] To the Commissioner cf Patents: The applicant, a corporation created by authority of the laws of the State of New York, [or other authority, as the 'Case may be,] and doing business at , in said State, hereby furnishes five copies of a label, [or " print," as the case may it',] to be used for , of which it is the sole proprietor. .F : m OmriAr Forms. 483 Tlio said lal)ol consists of tlie words and fit^nri'S as fol- lows, to wit : [Doscriptioii.] And it is hereby requested that the same Udiel [or print] l)e rei^istered in the Patent Of'rice, in accordance with the act of Congress to that effect, approved .Inne IS, 1874. Witness the seal of said corporati'jn at , , 1874. [l. s.] President, [or otlier officer, ] NOTK. The registration of copyright matter is, by law, under the control of the Librarian of Congress, at Washington. At the time of the enactment of the trademark hiw of July 8, 1870, it was the custom of the Librarian of Con- gress to enter, under the provisions of the copyright law, labels and prints of commerce, many of Avhidi embraced legal trademarks. Notwithstanding the exi>stence of a sepa- rate statute iu 1870 for the registration of trademarks, the Librarian of Congress, in entering labels and prints of commerce, gave a semblance of })rotection to many trade- marks, of which the labels and prints entered by him were the mere vehicles. To remedy this difficulty Avas the ob- ject of the amendment to the copyright law of .June 18, 1874, referred to Jierein as the act for the registration of prints and labels. By this amendatory act the Lilirarian of Congress is restricted, in the registry of copyright mat- ter, to pictorial illustrations or works connected Avith the fine arts, and is prohibited from registering labels or prints designed to be used for any other articles of manufacture, i. e., articles of commerce. These are now registrable at the Patent Office ; while matter properly coming within the definition of copyright subject matter, as contained in the act of June 18, 1874, is registrable at the office of the Librarian of Congress.* *The act of Congress of .Tunc 18. 1874, is to be regarded as an amcnduicut of tlie copyright laws. To acquire a copyright 434 Treaties and Conventions. TREATIES AND CONVENTIONS. I i.-' I.i A' 1^ I ^ RUSSIA, 1868. Article respecting trademarks, additional to the Treaty of Nav- igation and Commerce of Decembei* 0-18, 1832, between tlie United States of America, and His Majesty the Kmperor of Russia, concluded at Wasiij ""*^on, January 27, I8t>8; ratiti- cation advised by Senate, July 2,"), 1 8(58; rati lied by President, August 14, 1808; ratificaticms exchanged at St. Petei-sburgh, September 21, 1808; proclaimed, Octoljer 15, 1808. The United States of America and Ilis Majesty the Em- peror of all the Russias, deeming it advisable that there should be an additional article to the treaty of commerce between them of the 6-1 8th December, 1832, have for tliis purpose named as their plenipotentiaries, the President of the United States, William 11. Seward, Secretary of the State; and His Majesty the Emperor of all the Russias, the Privy Councillor, Edward de Stoeckl, accredited as his Envoy Extraordinary and Minister Plenipotentiary to the United States. And the said Plenipotentiaries, after an examination of their respective full powers, which were found to be in good and due form, have agreed to and signed the following Additional Article. The high contracting parties, desiring to secure complete and efficient protection to the manufacturing industry of their respective citizens and subjects, agree that any in any print or label deposited in the Patent OtRce, it is essential that the title of the print or label be first deposited in luu-snance of tiie provisions of tiie lie vised Statutes, concerning copyrights. 1877. U. S. Circuit Court, Southern Dist. of N. Y., Jiarsh ». Warren, 4 Am. Law Times li. {N. *'.) 120. TnKATlKSi AND COXVKNTIOX;*, ■V^t of NrtV- weeu the ipevoi" of lib; ratiti- Mrsidoiit, ei-sburgh, r the Em- liat tliere 'ommorce e for this. sulent of vy of tlio Russuis, ed as lu» |ary to the lination of to he in tgued the |[? complete ^dvistry of I that any is cssciitiivl puvsuance |copyriglits. f'onntvifcithiLi: in (iue of the two ctMiiitrics, of tliv ti-;i(lc- inarks alHxed, in the otlicr on nKTcliaiidisc, \o show ils origin and (juality, sliaH he strictly jjrohihited and i\- j>ressod, and shall give gntiind for an action of (hnnagcs in favor of the ii)jiirc'ht hundred and thirty-nine, and if, one year JK'fori' tliat day, one of the liigli con- tracting parties shall not liave announced to the other, by an olli- cial notilication. its intention to nrr<'st the operation tliereof, tliis treaty sliaH remain obligatory one year l)eyond that day. and so on until theexpiration of the year which .slmll aunmenee after tlie date of a siniikr notilication. 48r. Treaties Ai\d Coxvextioxs. MM i:t -M. tr ary, in the year of Grace one tUous;uul eiglit lunidretl an<1 sixty-eight. "VViLi-iAM II. Seavakd, [L. S.] Edavaku Dii Stoeckl, [L. S.] Declaration by ancl between the United States and tlie Empire of Russia, respecting previous treatj' stii)uhitions iu regard to trademarks. Signed March 10-28, 1874. By the Pp.e.siuent of tuk Uxited States of America. A PRfX^LAMATIOX. Whereas a Deehxration concerning trademarks, for the purpose of tletining and rendering more efficacious the stipuhitions containeil in the additional article of the L'Tth of Jaiuiary, 1 808;, to the treaty of Commerce and Xavigri- tion between the Uniteil States and the Emperor of Russia of the 18rh of December, 1882, was concluded and signed at Saint Petersburg by their respective plenijjotenliaries on the lGth-28th day of March, 1874, the original of which Declaration is word for word as follows : DECLAKATIOX. The Government of the United States of America and the Government of His Majesty the Emperor of all the Eussias having recognized the necessity of defining and rendering more efficacious the stipulations contaihed in the additional article of the 15th-27th January, 1808, to the Treaty of Commerce and Navigation, concluded between the United States of America and Russia, on the Gth-lJith December, 1832, the undersigned, duly authorized to that effect, have agreed upon the following arrangements : Article I. With regard to marks of goods or of their packages, ancl also Avith regard to marks of manufacture and trade, the citizens of the United States of America shall enjoy in if'' "TfTr TllEATIES AXD COXVTCXTIOXS. 487 Russia, and Russian subjects sliall enjoy in tlic United States, the same protection as native citizens. Articlk ir. The preceding article, wliich shall come immediately Into operation, sliall be considered as forming- an inteoral ]):irt of the Treaty of the 0th-18th December, ] 8 ;;•_', !"i„l shall have the same force and duration as the said 1'reatv. In faith whereof the undersigned have drawn up and signed the present Declaration, and alHxed thereto their iseals. Done in duplicate in the English and Russian languages at St. Petersburg this lGth-28th day of .March, iHiZ [seal.] [seal.] Maiisiiai.l Jkweli,. Gonn wAcow. And whereas the said Declaration has been duly i-atifie.l, and the same, by virtue of a decree of His Imperial ."Majes- ty the Emperor of all the Russias, has gone into effect in the Empire of Russia : Now, therefore, I, Ulysses S. Grant, President of the United States, have caused the said Declaration to be made public, to the end that the same, and every clause and jiart thereof, may be observe TlIEATIKS AND CONVENTIONS. BELGIUM, ]8G8. Additionai. Ahtk'I.k to tlie treaty of commerce' iind iiivvigatjon of July, 17, I808, botAVceu the United States of Americii and His Majesty the Kin8; ratilieation ad- vised by Senate April 12, 1801); ratified by President April 18, 18Gi); ratilicat ions exchanged at Brussels June 19, 1809; proclaimed July nvi:ntio\s. lit 1 If iV > \ IcrritoriHs a tjuarantee of property in tni'liinarks, liavc ro- solved to coik'IikU' a special con vent ion I'or this purpose, and IiaviMianied as their IMenipotentiaries : the President of the United States, Hamilton Fish, Secretary of State, and His Majesty the Knvperor of the French, J. JJerthemy, Commander of tlio imperial Order of tlio Leujion of Honor, ''"40, 1005 Aleploglu, Gout V. 315 Alexander, Jurgcnson v. J)«0 Allen, Kinney f. 744 ill <^**^'9"i«"- 33, 8.-)0 Allones v. Elkan. 334 Alvord. Newman x\ yi 'Jos 7i'() American Cloth Co. (Limi- ted), Leather Cloth Co (Limited) v. U\, 1;J3, l;!;{, 1,-54 . _ . ^ 304, ;5«7, 548 American Grocer Pultlish- in,i? Association t. Gro- cer Publishing Co. 4;J7, 907 A„ r- ^08, 909 Ames J). King, ygo Amoskcag Mfg. Co. ». Gar- Q nt'"". ^ G8, 1021, 1022 4"84 ODo""""' ' '' ^^^'' ^^^' ^•^^' Same n Spear, 10 11 .'50 21 n 238,342,343, JMMiMHll.?' Andrew. Budoi., 1007 Andrews, Sherwood v. 97, i;{7 'g53 Apollinaris Co. (Limited) i\ iNorrisli, 707 Appel, Laiaiide r. n^g Aragon, Besson-Aragon :-. 1099 Argant, Guorinean r. ioj>3 ArmisteatI, Blaekwell r. ;j90, 4;J4 Arthur;-. Arthur, '^''nift Astier /•. Stubhs. i^g Atkins, Schweit/er t. (jh9 Aubineau <•. Gillemont, looj) Wilco.Y ('. iKjo Audicy. Rooiilt v. io63 Avril A Perrusson, ii4,« Ayer .. Hall, i,,o, ,,03, (HI t'. liushton, (j75 B. Badger, Emerson ?'. joo Badoureau, Jlartell r. n.^i iiaiky, Gardner v. yf^g Baird, Colloday r. 14, 358, 583 "a.]on, Compere r. 1213 Bakers' ic Confectioners' lea Association, Abbott Balmount, Chretien r. Bank of London, Lawson r. Banks r. Gil)son, Barbie r v. Bowman, V. Simon, Bardon i\ Berlia. Bnrdou v. Blanchard, i". Lassau.see, Pnidhon ». p. IJou.x, '499j 79 389 1005 823 <, 798 1071 1097 1175 1117 1088 1159 1217 ?F?'' •COO Table of Casks. I' if. h '^ 15,u(), (' 721), Bass V. DaAvl)cr, t'. Harris, Bassctt, jMcAiidicw r. 210, Batty i-. Hill, ;^^Bautaiii r. Merckliii, ; Beard r. 'riiriicr, Bedford, Bury v. V -i Hall r. !.•), l(i, <)1, 12; ;}(».■), 407, 751, 7!);!, ;!»4 r. Kiiight, 084, 82.*), , i:]0 705 Beeton, Bradbury v. 102, 005 J)0(> Bell r. I.ocke. 894, 85)5, 890 Belleeouit v. Lancelot, 1100 ,Ben r. Larband, 1072 Beiibow, Edmonds v. 800 "Bennett, Hudson v. 219 . Ben - Sadoun v. Ncssim- Dahan. 1105 Bentall, Itansom v. 510 Beruer, Samuel v. 12^ Beriiu, Abadle i\ 1144 Bardon i\ 1175 Bernard, Uumas v. 1054 iMin. Pub. V. 1004 Bernlieim, liian r. 1071 Bertliaud, Laneelol v. 1101 Bert he, (^arnier r. 1219rt Bertin v. Taeonct, 1140 Bietry v. Marcel, 1084 Bil!iii,!.cs, Marsh r. 88, 2^9 Blnin'^er r. Wattles, 052 Binnlnij:, l)av r. {J25 Birtich'e, Rover?-. 1058 Bisson-Aragon c. Aragon, 1099 Bi/et, Levy c. 1145 BlackwellV. Armistcad, *]90 4:J4, 50;], 850 V. CrabI), ;{74 V. Wright, ;>5, oJ»7 ^98, ;i99, 4811. 728 Blaise r. Pitet, 1100 Blanchard, Bardou r. r. Hill, Bloc r. niii!;s-\Vils, liiolicld ,'. Payne, Biocnur. Bloi^s r. B! /'. Bloomer, iin 410 10 i 9 2:!5. 912 54i, ,s24 54,>, 824 Boardman /'. Meriden Bri- tannia Co., 20, 49 J, 741, 753 Bodevin, Gourbeyre c. 1104 BoiUey /•. Joilivet 1077 Bolles, Fenn i: 785, 780 Bolton, Kinahan v. 02, 287, ;;05 400, 5iy, 514 Singleton /\ 040 Bouth r. Jarrett. 105 Bostv.ick, Lockwood r. 140, 142 o 1 8, i> ( 9 Bouchet, Mauprive/. iJ. 1128 Boulau, Faivre v. 1187 Bouman, Barbier r. 1071 Bournhonet r. Tisseron, 1152 Bowman v. Flovd, 791, 792 Buyer ;•. Boyer.' 1149, 1202, 120;J V. Gelin, L215 f. Lemit, 1200 V. Massieu, 1150 Bojington, Tucker Mfg. Oo. i\ 4lj0, 7o4, i;i5, 972 Bradbury v. Beeton, 102, 905 !)0(i V. Dickens, 788 Bradley v. ^Norton, 1^5, 400, 707 708 Braham v. Bustard, 280, a02, ;J0;{ y04, OSO Brain, Purser v. 4i;> Bricard v. Teissier, 1077 Briet, Biche r. 1008 Brion, Howe Machine Co. t\ Broadhurst t). Barlow, Brook i\ Evans, Brooklyn White Lead Co. 1209 yiH 808 V. jMasury, Brouse v. Cressent, Brossier, David v. Brossoni, Lelarge v. Brown, Collins Co. v, c. Mercer, Browne v. Freenuui, Brunton, Colleen /•. !i57, 582 1172, 1110 1110 lOi'ti 115 497 44, Y', 1 8.9, 114 JOl, :;-ll, 449 Same r. Same, 417, "iS:! Bry:in. Curtis i\ 21, 98, 290. 494 55y, 504 Table of Casks. HI r. 1117 ^10 10 i!) 2:r>, 'J 12 54.!. S24 r.4.J, (H-J4 •iden Bri- 0, 4'.).], 741, i:h\ yic f. 1104 107? 78"), 7^0 t'. (1-3, :;2,S7, ;;(ir) 4Gl>, olo, 514 1 V. U40 105 ood F. 140, 143 vczw. 11 --28 1187 • T. 1071 ■;i. .■,07 .„ 010, 004, ;5 Burnett i\ Plialon, 340. 341 34> 087, 843, 843, 844,' 845 Bnnows r. Fosier, S70 Bury r. Bedt'ord, 138, 130. 130 705 Bustard, Brahain /•. 380. 303 „ • 303, 304, Osd Byass i\ Sullivan, ^'st Byron, Lord i\ Julin.ston, 878 C. Cabrideus, Prot v. 1301 Calnicl, Loroy i\ ]1>h) Cimiu.s, Farina v. i(),st> Canal Co. r. Clark, 20. 70. (J()0 711, 713, 713, 758, 750, 1037 1038 Candco r. Deere, 31. 35 104 ''<»;', 3S3. 384,501, 650, 708', 700! 710 Canliani r. .lone.s, 041, 043 Charlton Metallie Paint Co., ' Prinee Metallic Paint Co. r. 033 Cardin, Lister v. 1004 Carlan, Stone v. ,s7 earlier, Billet v. 3Ifl, ;n7 Carlile, Cartier i\ 401, 403, 033 Carmioliael i\ Latitner, 154,' 817 818 Carnidade r. Carnidade. 1118 Carpenter, Tavlor v. 4, 5, H(! 113, 413, 448, 014. 1001 Taylor?'. 50. 110, 354, 358, 3M3 Same, Same r. 57, 58, 113, 33(!, Cartier r. Carlile, 401, 4t)3, 033 i\ May, 101, 103, 103 Carver r. Pinto Leite, 373, 3?;} Case, ^Morrison v. {\\)\ Cassin, Burke i\ 33, 303, 304 405, 49G, 001, 003, 0(i3 Caswell i\ Davis, 7(;, 0(i7, ()08 ^„ , CG9, 070, 073 Celard, Claye v. 1113 Cliad-cy, Genin r. Ciiandicr, Cocks r. CI;a!)ot(4 r. Fcron, C;ia;ij)ell /•. Davidron, 501 015 It '31, 1035 ■ >■). 80. '•• Shcard, CIiavpcMlicr, ClcrlMii v. . Co. V. 832, {i47, Low V. IVlorse V. Ilallett V. Cumston, Halphen, IMontagnac v. Hanbury, Liebig's Extract of Meat Co. (Limited) v. Harper v. Pearson, Harris, Bass v. Palmer v. Harrison, Flavell v. 01 V. Taylor, 00, 245 Hately, Burgess v. Hazard, Godillott r. 498, 1034, 1035, Heath v. Wright, Hcidsieck v. Souris, Helleley, Johnson v. Henderson r. Jorp, Henne, Pinaud r. Hcnnessyv. Wheeler, Henriques, Howard v. llcrlich, Mayer v. Herold r. Gerl)ean, Herve, Prot r. Hcuze, Min. Public r. High Rock Congress Spring Co., Congress & 590 Oil 127 794 Oil 948 9(52 809 013 1197 G54 809 1187 555 , 53(5 , 300 408 214 1033 1030 538 1140 790 200 1150 571 100 1080 1102 1198 1107 Table of Casea. o()5 Empire Spring Co. v. Itr, 118, 14!>, (551), 8-3!), Osi. IIill, n-AWyr. 1010 liliiiicliiinl /'. .jio Hills, IJiirgoss i'. ^>i,-) lline r. l^u', 85, ()Sl), 7S-.' 1 links- Wils, Bloc v. io;<. Bariicft r. 181 Levigouicii.x /'. Leconite, 1100 I.,('vy r. Bizet, 1145 Lewis r. liangdon, 781 liiebig r. Coleman, 1181 Liebig's Kxlraet of Meat Co. (Limited) v. llan- burv, 054 Lindo, Guilhon v. 403, 837, 840 847 Lister 'c. Cardin, 1304 Lloyd, Henderson t. 71, 103 Central, Lloyd Fran- (;ais ?'. 1119 FraiK;aiH v. Lloyd Central, 1119 Locke, Bell v. 804, 895, 890 Lockwoodi>. Bostwick, 140, 141 378, 379 London and Provincial As- surance Soc. V. London and Provincial .Joint Stock Life Ins. Co. 630 Longuetj' ('. Farnehon, 1310 Lord Byron v. .Johnston, 878 Louit, JVIenier v. 1109 Lovie, Thomas v. 1076 Low T. Hall, 903 Lowell Mfg. Co. V. Larned, 980 Lucy, Falkinburgh v. 1.59, 493 7.53, 848, 900, 1017 Ludiere, Garnicr v. 13196 M. McAdam, Morgan v. 549, 550 McAndrcw t: Bassett. 93, 94 310, 705, 700 McC^ardel v. Peck, 03, 93, 103, 194 McCartney ». Garnhart. 381,383 McGowan Bros. Pump Ma- chine Co. D. McGowan, 014 McKernan, Howe v. 370 M'Master, Dickson v. 799 ]SIacrae, Young v. 650 Maddick, Clement v. 457, 898 Maitrc, Gamier v. 1819c Mailer -Landas, Combier- Destre v. 1097 Manierc, Hunt v. 180 Maquain, Howe Machine Co. V. 1200 Taulk of Casks. n07 Murrol, Bictry r. iMiiiilmnd, W'icktTs r ^>Iaris, Colicii <•. Alursli /'. IJilliiins. >: W'iincii, Alursliull r. Hosh, Martfll r. IJuddurcau . '•• Marld. Miirlin, (Jam KM- V. Masse'/, r. ,J()lv, Alassias, I.a Unv i\ Mussit'ii, IJdvcr V. Alasmy, lirljoklyii Lead Co. r. Matsell r. Flaiiaj,Mii, 1084 ur,! Maucliion, Frore et Vallot 88. a;{,) iirii ll(i4 laiij/' 1124 1184 1150 While Jir>7, 583 7«li. 000 001 1101) 1311 1128 883 Mau,!,aT, Hcrny v. M;mi)rivc'Z r. IJonchct, Alaxwi'll r. llngi:;;, May, C.iilicr /•. lO]^ lojj i,,;{ Ala^ycr r. llc'rli(-]j, io8G Meikle's Tradeinaik, lu re, HT.i Aleiick, Partiidgf c. 7, ;]3», ;i40 Alencc'ley v. Aleiiecle}-, 018, 01!) Menicr v. Bius.soii, 1171 V. Loiiit, iKij, r. Aler^rot & Kosslcr, 1 1«7 «. Alt'unicr. Spoiicor V. Alenser, Soniborn v. Alcrecr, Brown i>. Alerchaiit, Fetridge v. 1100 ii;i3 1114 497 421, 540 Alcridcn Bnlania Co., Boaidnian r. 30, 40JJ, 741, 753 Men den Biitania Co. V. Parker, 505, 500, 015, 760 lif I,. T. . 857 Alercklm, Bautain v. 1089 Merget&KessIer, Alonieri). 1107 Alerrimack Alfg. Co. v Garner, ;j.w, 418, 840 AIe.serole c. Tynberg. 3i)l, 1018 Meunier. Alenier v. Aleurgoy, Fox r. Alichel V. Gersllu, V. Streniler, Mignon, Guerineau v. Alillin, Lemereier v. Millington v. Fox, 1019, 1030 1100 1190, 1195 1180 1135 1094 1103 208, 445 ''■ Negrc Moa(, Morrison /•. Moclcncl, Niv 1053 395, 9s;i 11.8 1197 330 ■)49, 550 0!)4 »95, !»9(J 831 (IU8 809 897 55, 511 1000 N ^egrc, Alinistere Pub. I313 Nessim-Dahan, Ben Sadoun v. 11Q5 Newby r. Oreiron Central it. U. Co. 031, 033, 033, 770 iNewman v. Alvord, 31, 308 719 730,731,731«, 1014, 101.5, 1010 In net d. Modenel, 1177 Noah, (Snowden v. 891, 893, 893 Norman, Baddo v. 717,' 7iy Norrish, ApoUinaris Co. ' (Limited) v. 737 Norton, Bradley v. 135, 400, 707 Nowiil, Kodgers v. 60, 190 V. GOlffi, 833," 939 O. Oldham v. Jones, 17!) Onlray, Compagnle Howe, 1314 Oregon Central J{. I{. (.'o. Newi)y V. 631, 033, 633, 770 374 143 584 33, 850 908, 969 Orr t\ Diaper, Osborne, Ilndson v. Williams v. Osgood V. Allen, V. Rockwood, r i ' I i 508 Table of Cases. p. Piiiiio, iSievciis r. 873 Palnior r. Harris, oo.j Parker, .Mcridoii Hritannia Co. /:. 50.1, '>m. air,, tiu), 8r,7 Pa^t^id,^a■ i: Moiick, 7, o^i). o4() n.)3, r,;>A Poi-k, .McCardL'l v. 33, 92, 1«;5 ;J7;] ii:i2 Payne, IJInfie'.d i\ Pearson, Harper v. Peel. S-C'iihcns v. Peigncy, Spencer v Pel'tz r. Eichelc, Porinc-Uiiyol, tliere i: Porriissoi), Avril PeiTV /■. Tnilitt, e. Petetsou r. Larenau- lOo,-) lU:i 1, .VJl lluinphrey, AM, TSt i)4i) Weed V. 248, 47s, 807 lo;.") !»:J1 Poyre Sons r. Roelier, P(^to, Ponsanlin r. Phalon, Unmet t r. 240, 241, 242 Osr, S42, 8W, 844, 845 Plielan r. W light, C'nIleiKlcr, U7, I'idding r. Howe, Pie 1-. Poniel, Pierce t\ J'"'ianks, Pinaiid (\ Henne, r l^ineau, Pineau, Pinaud, v. Pinet, Duru i\ Pinto Lcite, Carver, v. I Pilot, Blaise i\ Plate, (Jraliam v. Derringer Piatt, Coats V. Ponsanlin i: Poto, Poi'liani r. Wilcox, 051 81 (t 5;}o 11(18 20!) it.K; 1090 1000 1100 272 27:J Polta: llookliara r 202, 482, Poniel, Pie ;•. P(>U|(ier r. Lanrcncon, Powell, Sellzer v. Prince Metallic Paint Co. r. Carbon .Metallic Paint Co. Prut (•. Cabrideus, ('. llerve. 1100 2I() V. 18, 95, !)(' 9o'J 605 9;51 , 970 810 811 IKIH 10s:j 4^1 0215 1201 1198 Proux. Cliouct i\ 1171 Pnjve/.ciide, Seixo r. o(i!), oiJ 585, 580, 707 Provost, Scvin r. Prowctl ;•. Mortimer, Prndlion, Abadie *•. i: Jiardon, V. Villaret, Pui'ser r. Drain, R. 1059 897 1120,1141 1159 ii;;5i 41(J Hadde r. Xorman, 717, 718 l{au;'j.e1t r. Findlater, (KiO liaii>oni r. IJcntall, 510 Kas|)a!l '■. Conil)ier-Destre, 1120 HiV.cliir. Wooiani v. ;;(il Hecves, Collins Co. r. 115, 177 r. Deiiiclic, 4;J2, 81i:!, ^04 805, HU(i T'epublic of Peru c. 50 Keg. r. {'loss, 2:31 r. Dundas, 2;J0 r. Smilli. 2;32 licmy r. .Mauger, 1211 ]{ei>iiblic of I^eni r. Kecves, 50 j{evnal r. U'oliT, 1185, 1205 PieVnolds, Smith >\ 2;;i, iX):!, !i«4 !i(i5, i»i;(!, !)(i7 Sonlliorn r. Otlti, roo Rian i\ Bernheim, l(i91 Jiicauniont, Leperche t. 1179 Bichard, tJiiillol r. 1085 Kichi'.rds i\ Williamson, ]8:{ Uiche /•. Brict, Hichcr r. lluguin, l{ic(iuc r. Forces, Bil'elt r. Cariicr, Hivorri, (iamiu /'. l{i\()irc, (iarnier r. Bobineaii r, Diiiiot, Bochcr, Peyre Sons /•. Rockwood, (>.-good r. liodirers <-. Nowill, 1008 1081 111!} 310. ;ii7 10li5 1219 1080 1075 9(i;;, !«'.9 190 (ill. r. Nowill, 0J1",822, 929 r. Uodgers, j'udercr, U(ieiig( IS r. Tainlor, liogier /'. Frail] '•-'■'i Bomen. Sargent i. Uomnielin r. Crctte, J{ookc, Green /•. Booult r. Audicy, Boss, jMarsJiall «. I') li;i4rf. 1112 sol 1207 1142 1122 4o';], ui;io 10(15 55C I 1 Table of Cases. 500 T?outh )\ Webster, Roux, l>;ir(lon p. How land, Sfott ;;. Rowley r. 1 louijjliton, Rover /■. Jiirtiehe, 580 375, 58!) 1().-),S Ruclderuw i\ Huntington, 451 Ruffy r. Gerard, Rushton, Ajer v. S. 957, 1002 1074 075 Sabatou, Bardou v. ll;59 Salignac r. Savunier, 107;] Salmon, Morrison v. 831 Samuel r. IJerger, V2',i Sands, Woods c. 15;{ Sargent v. Roger. 1143 v. Romen, 1143 V. Willems, 115;j Savanicr, Salignao v. UK:] Sehortliose /•. Hogg, 1()!),"} Sehweltzer /'. Atkins, 080 Scott v. Rowland, 80S r. Seott, 800 Scoville V. Toland, 400 Seabury r. (irosvenor, 573 Searing-, Howe i\ 134, 135 Sedon I). Senate, I'M Seignetto r. Seignettc, 105:) Seixo V. Provenzonde, ;}(!0, ;J70 585, 580, 707 Sellers, Fulton v. US, 588 Seltzer v. Powell, 4;]1 Senate, Sedan v. Seveiie, (Jermain v. Scvin i;. Provost, Shakespear, Wheeler & Wilson :Mfg.Co.i'. 333, 733, 873 Shaw, Delondre v. 830 Sheard, Ohappell v. 89,880 Shepherd, Green i\ 430 Sherwood i'. Andrews,97, 137,053 Southeyv. 805 Shipwright r. Clements, 140 Shrimpton v. Laight, 348, 349 Silverlock, Farina v. 173, 173, 313, 433 Simon, I'arbier v. 1097 Singer Mt'g. Co. Kimball, 435, ^33 v. Wilson, 75)3 Singleton r. Bolton, 040 Smith, Gleiuiy r. 17, 289, 409 943, 943 Reg. V. 233 130 1051 1059 Smith r. Reynolds, 301, 903. 904 905, OilO. 9(;7 V. Woodruir, 551. 553 Smithson, Dale r. 4{iu. 545 Stewart /'. 539 Snowden r. X(;ali, 891, 893, 893 Soeiete des heriliers Lie- big, Deniot r. 1193 Sohier r. Johnson, 813 Sohl V. Giesendorf, 45, 145, 385 057 Sornborn r. ^len^er, 1114 Souris, Ileidsieckw. 1140 Soutiiern r. Howe, (case cited in) 170 Southey ;■. Sherwood, 805 Soulhorn c. Reynolds, (;00, 700 Spear, Amoskeag Ml'g. Co. r. 10, 11, 59, 310, 338, 343 343, 341, 345, 414, 450, 513 044, 750 Spear, Fowle i\ Spence, Williams r. Spencer r. .Menier, ('. Peigney, Spotliswoode r. Clark, Starkweather, Cook e. 085 1133 1133 879 390, 915 985 Staudinger r. Staudingcr, 587 State of Missouri v. Gibbs, 971 Stephens r. De Conto, 99, 903 903, 904 r. Peel, 373 Stetson, Town e. 055 r. Winsor, 30, 531, 594 873 539 899 045 87 Stevens r. Paini , Stewart r. Smithson, Stiir, Ingram i\ Stokes r. Landgrall, Stone r. Carlan, Stonebteaker r. Stone- breaker, 474, 009, 803. 933 Strender, Michel v. 1135 Stubbs V. Astier, 1133 Such, Clemens c. 880 Suirivan. Byass t\ 384 Swift V. DeV, 105, 3(i8 Sykcs V. Sykes, 280, 000 T. Taconet, Bertin fl. 1140 Taconnet, .laluzot V. 1155 Taintur, Rodgors v. bOl ^ 610 Taijli: of Cases. W. Taylorn Ciuix-ntcr, 4, 5, (i, 80 112. 41',', 448, U14, 1001 Wal(!Ott )'. Walker, 805 «. Carponter, 5{», 1 10 Walker, Cheavinw. 570 2.j4, 2o.s, 283 Collins Co. V. 458 V. Carpenter, 57, 58, 1 1;{ Walcolt r. 805 2a«, 2;J7 Walmesley, Ainsworth v. 130 v. Gillies, 073 300, 470, 740, 1005 Ilarrisoa v. 00, 343, 300 Walton V. Crowley, 133, 303, 303 408 353, 419, 420 V. Taylor, 350, 351, 454 Ward, Tonge c. Teissier, Brii-ard /•. 1077 Warren, Marsli v. »j3 Dorvuiilt v. 1090 Wattles, Bininger o. 053 Thibierge r. Oiipont, 1098 Weaver, Franks c. 338 Thomas, Collou v. 944 Webster, Routh r. 580 i\ Lovie, 1070 r. Webster, 780 Thompson, Crawshay c. 381 Weed r. Peterson, 348, 478, 807 :J37, 440, 930 Wei, Lawson (\ 1170 Isaac; on c. 73 Welch r. Knot, 174, 175. 170 Thomson v. Winchester, 043, 938 Wells, Felridge c. 213, 351, 541 Tisseron, IJournhonet c. 1 153 040. ()47 T'ssior r. liOcampion, 1078 Werle i". i-^mw Clicquot, 1148 Toland, Scovllle i\ 490 Weston ('. Ketcbam, 813, 814 Tonj^e i\ Ward, 473 815 Tournachon v. Tourna- Wheeler, Hennessey v. 571 chon, 1101 ic Wilson'Mfg, Town V. Stetson, 055 Co. r. Shake- Tribonillet v. Mounier, 1053 spear, 222, 732, 873 Truefltt, Perry v. 1, 531 White, Comstock e. 178, 543 Trust, Gouraud v. 031 790 Tuclcer i\ Turpiu, 705 Lazcnby r. 520, (ilO, 849 Tucker Mfg. Co. n. Boying- AVickers r. Frioii, 1157 ton, 430, 734, 735, 973 V. JIarcband, 1157 Turner, Beard i\ 373, 505, 1013 Wilcox r. Anbineau, 1103 Turpin, Dent v. 705 Popliam i\ 202, 970 Tuclior V. 705 Wilder, Laird v. 504 Tynbergh, Messerole «. 291 i\ Wilder, 984 1018, 1019, 1030 Wilkes, Dayton v. 789 Willems, Sargent «. 1153 U. Williams v. Johnson, 423, 083 t. Osborne, 584 Uhler, Glendoa Iron Co. v. V. Spencc, 085 734, 735, 720 Williamson, Hichards v. 183 Upmann v. Elkan, 224 Wilson, Singer Mfg. Co. v. 733 Uzieili, Exp. 931 Winchester, Thomson v. 043 928 V. Winsor v. Clyde, 30. 151, 521 594 Vergniolles, D'Invillo o. 1087 Stetson V. 30, 521, 594 Vick, Edelsten v. 131, 453, 537 Wolf, Lea o. 309, 392, 722, 723 731 1031 Viffnier, Denis 0. 1130 Wolfe r. Barnett, 27, 28, 74, 593 Viilarct, Prudhon v. 11356 1029 Vowinkle, Ilostettcr v. 347, 394 V. Burke, 34, 182, 39(i, 507 380 010, 004, 005 I' '''.- Il - It ^ i* Table of Cases. 511 "Wolfe, V. Goulard, "Wolff, lieynal v. "Woodruff, Smith v. Woods V. Sands, Woodward v. Lazar, Woolam V. Ratcliff, Wotlicrspoon v. Currie, 29, 391 477, 479, 480, 714, 715, 716 V. Gray, 1011 Wright, Blackwell v. 3i>, 397 398, 399, 483, 738 '*24, 048 1185. 1205 551, 552 153 IGl, 1(52 301 Wright, Heath ik Phalon V. Y. 538 547, 051 Young V. JIacrae, 050 Z. Zeilcu, Ellis v. 387, 430, 500, 828 Rj 1 ' In „ Si- 111 INDEX. THE NUMBERS REPEK TO THE SECTIONS. Abanclonraont. 44 4'? 1100 n-n ^^o^ ^.„ ^'"ss;:i4V4e""' '''• '«• '«■ '« "^' "• 41-5; sr=!?; Jli.lbo'"'' '"'• '''• ^". ^". «', «4, Account. See Damages. Acquiescence, 55 fo ?7, "1005, 1077, 112G, 11G7 1171 una .onp IS a revocable license, 50, G3 64 ' ' ' ^^^^ an abliorrent defense, 58, 1206 knowledge necessary, 02 cannot be inferred, (j4 issuing of a "caution," 65 by adoption, 80, 95, 101, 1059, 1074 1141 1154 by appropriation, 98, 403 ''*. ^ ^^i, n,,4 by license, 92 by operation of law, 85 97 00 101 lor lAn -,,.. .. by mu-chase ; See Assi^^nnient ' ^^' ^^^' ^^^' ^^^ SppTf^''^'. ^'^^'102, 104, il71 oee Partnership. l^Oo ; See Infringement; Kemedies. ' ' against agent, 224, 1151 auctioneer, 1002 ^^ [513] H 'I 514 Index. II !!t Action against uiiuiufiifturcr of spurious tradt'iuarlcs, 177, 1146, ll.jl, US.-), 120.-) vciulor, 170 ; 1000 to 1005 wliartiuLrcr. ISO, !):)1 by purchaser, 170, 11.-):] use of gcnuiiii' trjidcniark on spurious goods, 171, 174, 181, 1104. 11(58, 117:5 clanger of judieial proceedings, 183 sale of labels unattiiched to goods, 172, 17;], 4o3, 1070 reproduction of trademark l)y retailers, 1184 custom of manufacturer to affix ordered marks. 177, 184 custom to use another's marks, 382, 1108, 1177 Acts of Congress, p. 407 Address, as a trademark, 501, 740 Administrators and Executors, .50, 71, 85, 99, 601, 791, 794 Adoption, 80, 95, 101, 1059, 1074, 1141, 1154 Advertisements, \). 34 See Publications. Agent. 224, 47:2, 708, 873, 1151 "vl/ny// " cement case, 31, 308, 719, 720, 731, 731a, 1014, 1015, 1016 Alienation. See Assignment. Aliens, 110 to 115; 1079, 1083, 1133 Allowance, extra, 233 Almanacs. See Publications. "■ Alidce thrmiV case, 1134 -•.t. M. (7, "630 ".1. M. Co.;' 036 "yb//rW.yw/,"' 030, 1023 ''Aiififo/ia'' liquorice case, 93, 94, 316, 705, 706 Anchor, emblem of, 359, 383, 1110 •"^1. jVo. 1." ploughs, 056 Anonymous name, 880, 1076 '' Aiiti(jU(i,rlim Biiok Store'''' case, 1033 '' Apoll'niavlH Woter,''' 737 A]ipearance, general. See Imitation; Form; Color; Labels. Ai)pro|)riation. See Acipiisition. •' A18 ' Association, 2(il, 094, 71(5, 7.ji), 1010 See Oiigin and Ownersliij). Attaclied, marks not, 1070 Attaciinient for contempt, 194 ''At t/ic JittU- pot''' case, 1074 Auctioneer, 1002 See Vendor. All (jra))d Saltan'' case, 1105 Au jtelit jiof' case, 1074 Austro-IIungarian Convention, p. 493 " Au.t vmia gourmetn " ease, 1093 X. A7a 1," ploiiglis, 050 Ai/er's Cherry PcctoraV case, 075 -Baha<^Tho>^nd^ lowers- case, 213, 354, 431, 540, 541, C4C '' Bank of J^ndon'' case, 823 Bankruptcy, 131, 135, 143, 153 Barrels, lj|;^f''-'li'u- shape of, as a trademark, 983, 985, 980. See Bass & Co. 's case, 376 Bee, emblem of, 1103 Belgium, treaty with, p. 488 '' BcJgraria'' magiixine case, 882 "BelPs Life,"' newspaper case, 898 ''Bensoii's Capcine Plasters''' case, 572 ' Bcmlne parfntneo " case, 1098 ''Bert in (/lores " case, 1140 " Best " iron case, 1038 Bill in clKincery, effect of untrue allegation, 209 scope and design of, 5 in Massachusetts, 958 " Bismairl-'' coMiu-s case, 391, 1018, 1019, 1020 " Blood Searclur " case, 588 " Bloom (if Youth " case, 504 " B. Ko. J," ploughs, 656 tJour, device of, 203 Hooks. See Publications ; Copyright. are not Labels, 490 Borders of cloth, 1103 t( 51 G Index. if if- w If- Mi ''Ihtot, ^r«»t^?e"ciises, 1071, 1097 Bottles, peculiar shape, as a trademark, 98.1, 10G7, 1097, 1183, 1187. See Form. sellinfj sod'i water in bottles formerly used by others, 174, 175, 17U, 181, 1108,1173 •' Boufji« de Vefoile " case, 1170 "/i(>!;««" and "'B/Dlllne'' case, 140, 142, 378, 379 Boxes, style of, as a trademark, 159. See Form. Brand. Seo Devices. *' Bi'ittaina'''' newspaper case, 897 ''Broolbjii White Lead Co.'" case, 357, 583 ^'Bimeh/" pipes case, 006, 766 Buildings, Names of, 100-165; 134, 125, 147, 149, 153, 511 See Signs, p. 370 Vignette of, 1073 Burden of Proof. See Evidence. '■'■ B'D'fjesn'' Esxence of Anchovies''^ case, 603 Business Signs, pp. 57, 370 See Buildings; Partnership; Signs. Buyers of goods falsely marked, suit by, 170, 1153 Caduceus, device of, 1096 " Cninse dcs reports'''' case, 1087 " Cafe dcs Connoisseurs'''' cases, 1093, 1094 " Ciife des Gourmets''' cases, 1093, 1094 Cancellation of counterfeit marks, 930, 1076, 1080, 1211 " C- scntatioii. Compromise', ellect of negotiations for. 28") Concurrence dClovule, lOTO, lOMO, lOMl, lOsiJ, 101)0, lOO,";, 100(1, 101(0, 1100, ri;j4, 11:51), 1148, u.jo, nrvi, iir*."), no."), iih;), 1180, 1310, 1113, 13 lU Congress, acts of, p. 407 " Cm'jrenH Spring Water'" case, 147, 148, 140, Go9, 839, 081, 083, 1030 Construction of stirtutes, 957 to 974 Contempt, 190 to 195, Oil '* ConwrPtJt (diiiiiiitiiircH,"' 103G Conventions and Treaties. See Treaty. Coi)yriglit, 300 to 30;J ; 4, 33, 490 not like a tratlemark, 4, 33, 300 labels are not books, 490 Corporate name, GUO to 030 ; 97, 109 Corporation, name of, COO to 030 ; 109 trademark of, on dissolution, 97 Costs, 308 to 336 " Court ri(t Flax''^ case, 545 " Crime iVArgenf'' case, 1145 " Creme de riz^'' case, 1130 " Creme Orientale'''' case, 631 Crest, device of, 373, 504, 1154, 1158 Crimes, 330, 231, 333, 9G3, p. 471 " Cross Cotton'' case, 191, 193. 193 Crown, device of, 3G0, 359, 369, 674, 751, 966, 1038 "Crown Seixo" wine case, 3G9, 370, 585, 586, 707 Custom of manufacturers to affix ordered trademarks, 177 evidence of, to violate trademarks, 283, 11G8, 1177 See Acquiescence. " Cy?tKf7«' " glass, 645 Cylindrical form, 11356 Damages, 335-351; 66, 77, 1051, 1052, 1054 See Discovery. elTect of delay, 66, 77. See Delay. elTect of intent. See Intent. " Day tD Martin's Blading " case, 2, 300, 325, 411, 601 ''Decl-er Piano'' case, 023 Deception, p. 80 Sec Evidence; Intent; Imitation; Misrepresentation. Deicnses, pp. 80, 81, 83 . a- Index. nio Defenses, Misrojirfsontafinii by rdmplainiint. Sec :\ri.ropvo«'.n- tiitioii. Laches, l-iccnsi', Ac,|uics(cii('i', Liinil:iiir)ii. Sec tliosu titles. Want ol intent. See Intent. Prior Use. See i^ij:),' Ise. As to wliellier words in eoianinn ii>e, i^n-nerie tei'ins, (lesc-ri|)tive names. ^■eouri.|iiiie,il names, A;e., may be trademarks. See Words; Xmne. custom of manufaetnrers to atlix ordered iradeniarks 177 cu.stom to use anotiiers trademark, 2S-,>, IKiS, 1177 equality of spin-i,, us «,r(»()d.s. See (Quality. aliL'nai,'(; of owner of the mark. See .Miens. See also Deeopiion; Imitation; Injunction; Partner- shi]); Publications; Signs, &c. Definitions, 1 to ;]u Delay, cirect of, on damages, (50, 77 Sec Damages, ou costs, 77, li)l See Costs. injunction, CO, 08, 72, 7;!, 74, 77 SeoLaclies; Limitation; Acquiescence. '■'■ Democrat k licjnthlkmi Xrw /■Jro'" case, S!)0 Descriptive names and marks. ('.40 to G7.>; U)r,r>, U)r,H, lOfil 1(1(58 1071, l()7;j, 1074,1077, 1081,101)1, 1{)U8, llOS ' ll^y' See AVords; p. 305 Demurrer. See Pk'adinjr. ^'Dcmcated Cod FM" case, 655 Destruction of counterfeit marks, 930, 1070, 1080, 1311 Devices. 200 to 204 ; 359, 372, 370, 382, 428, 094, 098, 980, 1035 1050, 1002, 1078. 1113, 1130, 1154, 1158, 1102, 1181, 1194 ' See Imitation; p. 301 "■Diamond State''' matches case, 195, 308 Dimensions. See Form. '' Divine Wata-'' case, 1178 Discovery, 270 to 274; 224 Dramas, names of. See Publications. '■'Dried," 055 ^'Dr. J. M. Lindscj/s Improved Blood Searcher''' case, 588 "2>/'. Johrmn's Golden Ointment'' case, 433, 1030 '■^ Dr. JoJinson'n Yellow Ointment''' case, 040 ^^ Dr. Morse's Indian liooi Pills" caso, 178, 543, 790 "i?r. HooJce's Golden Ointment" case, 433, 1030 I 1 ^, IMAGE EVALUATION TEST TARGET (MT-3) '• ,^ 7^ fA 1.0 I.I 21 12.5 ■^ 1^ |2.2 "^1^ Wuu m 1125 |U.||.6 < 6" ► oil. ^'4»*' /. Hiotographic Sciences Corporation 23 WIST MAIN STRUT WEBSTIR.N.Y. MSSO (716) 872-4S03 ^^ ^\ '^\ ^^^' r)2() I.XDEX. 1% I I 1 i. .1? I: !I» '• Dr. StohchreaUfH MaJkincn,'" 009 ''Dr. Widar^H JliLvim »/ Wild Cherry,'' 533 '' D'tmuH ;'.2 " case, 10.>4 "Durham"' mustiird, !)()0 tobacco, aOO, 728 *■' EddcourVn Hop l^upjilcment^'''' 506 '' Eau de Botot " cases, 1071, 1097 " Eau dc hi Florulc'' case, 1121 "■ Eau de Miilhfie dcs Cannes " cases, 1149, 1150, 1202, 1203, 1206, 1215 " Eau dentifrice du Doctcur Pierre'''' case, 1174 ' T HI de toilette de Lubin " case, 1201 ■ j^ <,'' 318 "A'ttt/.swr" soap case, 304, G80 Exclusive Right, 300 tr 310; p. 99; 1100, 1170, 1181 Executors, 50, 71, 85, 99, 001, 791, 794 Exemplary damages, 230 " Extract of meat " cases, 054, 1181, 1193 '' Extradum ainiis'' canes, 054, 1181, 1192 ''Fa(oiide" (style of), 1077, 1108, 1135, 1183, 1200 See p. 379, Art. 17. ''Faith " as name of a drama, 883 Falsehood. See Misrepresentation. False Pretences. Indictment for, 230 False Represeojtation. When necessary to constitute infringe- ment. See Imitation. By owner of trademark. See Misrepre- sentation. False Statements. See Misrepresentation. Family name, 1200 See One's Own Name. Family seal or arms, 1154 Fancy names, 080 to 098; p. 301; 1055, 1001, 1070, 1088, 1093, 1094, 1104, 1115, 1110, 1121, 1124, 1127, 1130, 1133, 1134 1135, 1139, 1142, 1145. 1155, 1170, 1187, 1190, 1191, 1195, 1190, 1199, 1213, 1219 ' ' » . '' Ferro-Pho^phomteil Elixir of Calisaya Bark'' case, 76, 067. 068. GG9, 070, 072 » . > » " Feuille de riz"" case, 1147 Fictitious name, 880, 1070, 1080, 1101 Figures. See Numerals. '' Fils dWlsace'' case, 1134 Firm names. See Partnership. '' FlaveWs Patent Kitchener,'' 530 ''Fhr Fina Prairie Superior Tohac," 395 " Florida " and " Fliioriile " case, 1121 ' ' Ford's Eureka Sh irts, "091 Foreign Words, 315 to 318; 1116, 1128, 1178, 1142, 1188 Foreigners. See Aliens. Forgery, 232 Form, 159. SGI, 387, 497, 980, 983, 985, 980, 1003, 1007, 1069, 10-8, 1083, 1085, 1093, 1094, 1100. 1109, 1134, 11356, 1103, 1107, 1109, 1174, 1183, 1187 I i 1!^ !'■. ii? 1^1 i ;i . 522 Index. rormi< of U. 3. patent ofRcc, p, 478 Franci-, treaty with Enirland. 1157, 1180, 1200, 1204, 1209, 1214 United States, p. 491, 1300, 1214 Statutes of, p. oTO Deeisions of, p. oTO Fraud, p. 102 See Intent; Exclusive Right; Misrepresentation. '' Galea'' ghiss, 04.") " Oazof/ene''' case, 1008 General ajjpcarance. See Imitation; Form; Color; Labels, (ieneral assignment, 121, l;5."i, 142 General principles and deiinitions, 1 to 30; 1103 See Trademarks. " Gcituliic Yaidic /S'w/;/," 08;?, G85 Generic Names. See Descriptive Name; Words. Gcograpliical Names, TO.") to 730; 32, 413, 590, 823, 1057, 1092, 1099, 1100, 1131, 1133, 1143, 1310, 1319; p. 304 " Gluee thrmd;'' 808 " Gkndoii " iron, 725 " Glaijhhr' starch, 714 " GoldMohiir G7'3 " Guillen Criitni Cifjfirs'^ case, 555 " Golden Ointment,'' 433, 1030 " Golxh')! Friction Matches " case, 339, 534 Good will, 14(i, 904 See Partnership. " Gourard'n Oriental Cream " case, 031 " Gocan*" case, 428 '* Grande CIi" case, 1139 " Gninea Coal Co." case, 09, 557, 590 '■'■ IlaU'n Veijetahle Sicilian llair lienewer" Oil '^ Uarvei/'s Sauce," GIO " Ilelioti/pc," iiQd '"Hero" and " //c/w/ie" jars, 375, 589 ♦'i/; u. o,"5io Index. 023 Hidden mark, 1001 " Ifolhrofd'-s " school apparatus, G53 "■ ILilhunii/'.-i Pills." .■);!,■) IIorsL'.slioc, device of, OT-l, 10;)8 Hotels. Sec i;iiildin<.s. '■'• ILnmhobl Clotli" case, 1091 "y/./^r(''«y;/^/(/7/" case, 124, 125 '■ llnre Sririiuj Mic/iiiw'' cases, 520, 1200, 1209, 1214 '' ITinr(iii(i\s Mirtitrc," 500 Ignorance. See Intent. Imitation. ;)25 to 401; 220, 1054, 10(](J, 1077, 107^ 1087 108S 10!»:!, Km. 10%. 1105, 1112, in:!. 1117 U-) 1 r' \\'- ]^^^ Y^^ nM^. n,d, u:^i u:.i ^{{^ I'n': nS 11;;;; iio4;!2n:;2;;;:;2i^:;^ii:;^;:^""^' '^'^^' '"'-^'''^ SceHevices; I'onn: Lahcls; Letters; Name; ^'umorals; rartnership; Signs. Imposition. See -Misreprcseutation. Imjirint. See Labels. '• Ii<(liaH ink''' casL', 11 03 Indictment. See Crimes. Infant, infringement by, 218 Infringement, p. 137 See Cause of Action ; Name ; Words ; Letters ; Numerals ; Labels ; devices ; Publications ; J artnership ; Signs ; Form ; Concurrence de- loyale ; itc., &c. Initials, See Letters. Injunction, 410 to 4:18 ; 182 ; p. ;ja9 elTect of delay. See Delay, lajury, necessity of proof as to actual injury. See Lijuuctiou. '• I/d: " is a generic term, 1055 " Ink of the little rirfxe " case, 1055 Inns. See Hotels. ^°*''"/.;M:!^"!ol;;."^i'f.\ "^•^' -'*^^' ~^i' ~'^2, 9C2. 1054, no9, 1120, Interdict. See Injunction. Invention, name of, 10(W, 1071, 1081, 1108, 1173, 1180, 1183, ll!i2. 111);!. 1200, 120V, 1209 See Patentee, name oL Inventor, 7, 28, :!01 ^''V£!S!\i!!7!\m' ^^^^' ^^^^' ^^'^' ^^^^' ^^^^' ^^^- ^' Irving Uuuse," IGO 524 Index. ".7(y^*" paper, cases 1088, 1117, 1139, 1175, 1217 ''.lihn BnJV^ newspaper, 897 ''Johnson's Yellow Ointment,'' 040 Joint tradeinurk, 1113, 1141, 1144 Journals, names of. See Publications ^'Jiuly'" newspaper, 005 '' Julienne" &o\x\^, 1033, 1030 Jurisdiction, 201, 493, G33, 791, 1170. See Injunction. of Freneli courts, 1170 of U. S. courts, 201 «' K " silosias, 757 '' Kat/uiiron," 538 '' Kcntuchj Hemp," 711 "■ KeydoHC Line,'''' 594 Knowledge. See Intent. Labels, 490to4!)8; 1h4, lOGG, 1072, 1073, 1070, 1085,1093, 1094, 1005, 1090, 1102, 1109, 1112, 1137, 1138, 1142, 1151, 1104, 1109, 1211, 1213, 1215, 1219; p. 371 See Imitation, genuine labels on bogus goods, 171, 174, 181, 1104, 1108, 1173 selling unattached labels, 172, 173, 433, 1070 lithographing spurious labels, 1151, 1185, 1205 registrai ion of labels. See Registration; Trademark and Label Statutes; Patent Office llules. Laches, 505 to 509; 1171. 1200 See Acquiescence; Abandonment; Limitations. '' Lachawanna''' coal, 713 ''LniriVK Bloom of Youth " case, 504 ''Dike'" glass, 045 ''La Trappistine" case, 1135 " iMgenbi/'s Harvey's Sauce," 010 Leaf, emblem of, 1130 "L'eau lie Botot " cases, 1071, 1097 "Leopold" cloth, 090 " LeopokMall" Kainit, 718 " Les proprietaircs de vignoliles" case, 1078 Lettering, style of, as a trademark, 159 See Labels. Lettors, 510 to 514; 050, 074, 751, 757, 1050, 1077, 1110, 1175 See Imitation. License, 520 to 521 See Acquiescence. " LivUi/a Extract of Meat " cases, 054, 1181, 1193 Index. 525 Limitation of time to begin action, 525 to 526; 1065, 1206 See Acquiescence ; Laches. " Lindsej/n Improved Blood Searcher," 588 Lithograpliing spurious labels, 1151, 1185, ^05 Lithographs. See Labels. " Liqueur da Mont CarineV cases, 1115, 1187 " Liquor de la (irande Chartreuse'''' cases, 1219 " Little Red Booh" case, 885 '• Live aiul Let IJve " case, 945 ''Liverpool'' cloth, 090 *'L. 7.." whiskey case, 02, 287, 865, 466,513. 514 "i%(Z C (ios "!i:,'\'';U*^'<^- i'^V' ''"' 'l'^' lll'.>, '11247 1140 11. )2, 11. ,7, 1107, lli)8, 1200, 1218 See Div's h, ?/, miprn. 2K Parliicrshii) names. Sec PartntTship q. Patc-nwo, name of, 731 to 735 ; 1077," 1081 1193, 1200, 1207, 1209 "JVntioD'i/ Aio Liuimeid'' case, 8, 9, 114, 301, 341, 449 ' ' ~" ' " OU hmihti Doric Gin " G52 ' ' Old Moore's Fam ilij Pictorial Almnnack; "879 " Old Real John Bull,'' 890 One's own name as a trademark, 25, 587,592 GOS (511 (^^R 020, 1077, nil, 1118, 1119, 1134, 1140 1152 im' im 1198, 1200. 1213, 1218 ' ' ' ^^' See Assiynment. restraint in tlie use of, GOO to G23; p. 373; lOGO 1077 lOSO I212: nm ''''' ''''' ''''' ''''' ''''^^ "^^ i'^«' I'so; Openition of law acquisition of trademarks by, 85, 97, 99, 121, lOt), l*4rw, 1t:Oj I'lt} Orb, device of, 1, G98 '' Orientale Creme,'' ij21 Origin and Ownership, 750 to 7G0; 1070, 1154, 1219 Original, use of word, GIO, 871, 1034, 1097 '' Ori[/in(il C/dorodi/ne" cnse, 871 " Oriyinal lieadiiKj Sauce." 1025 pw 528 Index. r t : Own name, one's own. See One's Own Name. Ox's head, device of, 306, 1181 "OJ.•mws^»v/,"!3G0 Packages, sliajie of as a trademark. See Form. ''Pain Killer" eases, 840, 453, 081, 088 ''Pall MM Guinea CoaV case, 09, r».')7, 590 Paper, color and stj'le of as a trademark, 19, 159 See Labels; Form. ''Papier criime o t Exception ii, favor of marks in iiso on July H, 1870. Hnle S(j p. (4( Facsimiles of trademark rp(|tiire.|. Hnle H4. p. 47.-) formalities in filin;.'. Knie 87. p. 477 number rc.piired. Hnl,. 87. p 477 Foe, amount and how payal.l.-. Knie 84. p. 474 for i-ecordiiiM a^^i^rnnieni. |{iil.. SM p 478 FnrS r^"'."'"'-,-''":" '■'"'"•"' '" "■"^^''''•- '^"l'' 84. p. 474 lorm of lal»el application, p. I8v» trademark declaration (or oatln. Itide ;j(). p 470 pctifi(.n. Rill.. II. p. 47H „ , S|»ecific;,lio„. ]{„!,. on. ,, 47s tfoods, particular kind to Ih; recited. |{nie 84 p 47.-, Imerteieuces (trademark,, proceedings iegardin" 477 bpecihcalion, reiiuisites of. Rule 84. p. 47.> Stateinent by applicant, what it should recite, Rule 84 p 4 < 5 ■ ' ■ Trademark examiner, applications considered by, Rule 80. Transfer of right to registered trademarks, Rule 88. p 478 34 ^' r IPn ,-1, ' - !> 530 Index. Use, miuinor, or mode of, to b'> recited, Ruie 84. p. 475 " Patent Pliiftif>a(jo Crueihles,'' 540 Patron, use by pupil of name of, 1122, 1125 See Master and Servant. '' PenuHijlmida WUmt,'' 711 ''Penny IkU'n Life"' (newspaper), 898 '' Pqqiermint-London''' case, 1128 " Perfumed Benzine " case, 1098 Periodicals. See Publications. '^Perleit tVether " case, 1130 " Perry Bavin' Pain Killer'' cases, 346, 452, 681, 688 " Perry's Me32 Index. t' i. f i I i l.# , :? II ;>! 1^ I li :i* It -J^ " /.V 7 ty box or package bear- ing registered trademark, hovv pun- ished, p. 473 registry, no action can be maintained upon, ]). 470 Goods, particular kind to be rev;itcd, p. 407 Labels, fee for the registry of, p. 472 for articles of manufacture, their roo-istry authorized, p. 473 ° Lawful trademarks alone registrable, p. 408 Length of time used, to be recited, p. 407 Manufacturing fraudulent trademarks, penaltv for p. 473 1 J . Merchandise, class of, to be recited, p. 4«i7 Name of person, firm, or corporation, when registra- ble, p. 468 ' ' b 536 Index. if:- I ; W- Trademark and Label Statutes — miitinwd. Penalty for selling, or offering for sale, goods be ir- ing fraudulent trademarks, p. 471 Prints, fee for the registry of, p. 473 for articles of manufacture, their registry uuthoriyx'd, p. 472 Proceedings to detect fraudulent trademarks, p, 47;i Protection, who may obtain, and in what manner, p. 407 term of, p. 469 Proviso (section 4939), class of cases covered there- by, J). 468 Putting up packages bearing fraudulent trademarks, penalty for, p. 472 Registration of trademarks authorized, p. 467 in what cases refused, p. 468 Registry, rights secured thereby, p. 469 Remedy for infringement of registered trademarks, p. 470 Renewal of protection, p. 469 term of, p. 409 Restriction on the registration of trademarks, p. 468 upon actions for infringement, p. 470 Sale of coimterfeit trademark goods, how punished, p. 471 Statement to be filed by applicant, what it should recite, p. 407 Time of receipt of trademark at Patent Oftice to be noted, p. 409 Transfer of right to registered trademarks, ]>. 471 Use, manner, or mode of, to be recited, p. 407 Trade Secret, 144, 152, 240, 242, 012, 995, 990, 1108, 1120 Transfer. See Assignment. Translation. See Foreign Words. " TrappUthie'''' case, 1135 Treaty between England and France, 1157, 1180, 1200, 1204, 1209, 1214 TTnited States and Austria, p. 493 Belgium, pp. 488, 489 France, §§ 1200, 1214, p. 491 Germany, p. 495 Great Britain, p. 497 Russia, pp. 484, 480 •' Tucker Spring Bed'''' case, 735 " rwrm" cloth, 096 Unattached trademarks, 1070, 172, 173, 433 Uuited States, Statutes of, p. 407 •• IF* foods I)tMI'- r registry •ks, p. 473 iianner, p. ired tlierc- ademarks, t67 ademarks, ks, p. 468 p. 4T0 punished, it should [ice to be p. 471 407 00, 1204, t89 14, p. 491 JXDEX. o37 Tiiited S; itcs. Treaties witli. See Treaty. Patent Otiiee, See Patent OHiee. " riiitril S''j/rx J'oHcf (hizettf'' case, 901 Unlawful rivalry, lOTi), 10«(), 1081, 108(!. 1090, 10!»r,, WM), i 100 li:J4, IICO, 1148, 11-jO, 1152, Uor,, HG.-), 118;}, 1189, 1210, 1212, 1216 Use. See Aequisition; Exclusive Right; Prior Ise. Variation. See Imitation. Variety of nnirks used hy one person, 111;}, 1141, 1144, 1154 " Ve'jcfdhh' SlrUmn Hair Ilene iter,"" Oil Vehicles, 87. 88, ;)2(;, 594 " Vdao'>^ VfjcUiUc Si/nip,''' 640 " VrfoHfliH!" case, 1199 Vendor, 1000 to 1005; 80, 709, 1155, 1184 " Verttulile mu (/e Jhtot'" ciiHC, 1097 " Victorm''^ lozenges case, 1011 Vignette, 1072, 1078. 1085, 1090 See Labels. " Vinfi(frc(fe Bnlhj"' cases, lio;}, 1183 Vindictive damages, 230 Vine leaf, emblem of, 1130 " Vineyard ProjnieUm''' case, 1073 Violation. See Infringement. " Viryinia Tohaccu,^'' 711 " Vuu. Beiint,'' 055 " WashiiKj Poin/er,'' 1017 Wax, color of. 1007 Wharfingers of goods witli counterfeit marks, 180, 931 " W/mt Cheer lloxxe'' case, 101, 102 " Wheebr and Wihon'''' machine, 732 " WiiMljw'n Soothiiaj Sjinqr' case, 21, 98, 290, 494, 553, 504 " Wixtar'ii Baham of Wild Cherry,'" 532 *' Wonderful Mafjuziiie,'''' 877 " Wood')* Hotel " case, 153 " Worcestershire Sauce'' case, 309, 392, 722, 723, 1031 Words, 1010 to 1038; 193. 009, 1029, 1142, IISO; p. ,305 See Descriptive Names; Foreign Words, combined, 009, 1029, 1142 Wrappers. See Labels. "X ^Vr;. 1" i)loughs, 056 " Yankee «>«;>," 083, 085