UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A MANUAL OF TRADE-MARK CASES. COMPRISING SEBASTIAN'S DIGEST OF TRADE-MARK CASES, COVERING ALL THE CASES REPORTED PRIOR TO THE YEAR 1879 ; TOGETHER WITH THOSE OF A LEADING CHARACTER DECIDED SINCE THAT TIME. WITH NOTES AND REFERENCES. BY ROWLAND COX. BOSTON: HOUGHTON, MIFFLIN AND COMPANY, ftitoergitie $reg, CambriUge. 1881. Copyright, 1881, BY ROWLAND COX. All rights reserved. The Riverside Press, Cambridge : Printed by H. 0. Houghton and Company. PREFACE. WHATEVER of virtue there may be in this compilation is to be credited to the intelligence and industry of the English author. The American editor has attempted only to supple- ment the original text, and to adapt it to the wants of the American reader. It is hoped that the work will be found to be a convenient manual, and useful, in a broader sense, as tending to assist the growth, in a right direction, of a branch of jurisprudence of constantly increasing interest and impor- tance. R. C. 229 BROADWAY, NEW YORK, June 20, 1881. iii PREFACE TO SEBASTIAN'S DIGEST. THIS work completes the design with which the author un- dertook his treatise on " The Law of Trade-Marks," &c. The object aimed at in the present compilation has been to present a concise statement of the facts and decisions in all cases connected with the law of Trade-Marks and kindred topics, as ascertained by a careful comparison of all the various reports in which each case appears. It has been decided to arrange this collection of cases in chronological order, supple- menting the body of the work with a full index, in preference to digesting the matter under heads, because, where the latter form of arrangement is adopted, one of two things must hap- pen either the bare decision on each point is given without the facts necessary to enable it to be rightly appreciated, or else the facts have to be repeated on each mention of the case ; besides which, the connection between the points decided in the case is obscured, and points on which the case is only in- cidentally useful escape notice altogether. It is hoped that the Index may supply a sufficient guide to the contents of the book. The present volume contains cases decided in the courts of all the English-speaking countries. But it has not been thought advisable to extend the scope of the book so as to include decisions of the courts of other countries, since, apart from the difference in language, the principles by which the Courts of France, Germany, &c. are governed are entirely independent of those recognized in the Courts of the United Kingdom and the United States. A number of cases hitherto unreported, decided principally PREFACE TO SEBASTIAN'S DIGEST. under the recent Registration Acts, are contained in this volume, taken sometimes from the Times or the author's own notes, but generally from the shorthand notes, for the use of which the author desires to express his thanks to the author- ities at the Trade-Marks Registry Office. In a few instances the existing reports have been supplemented from the same sources. All the places in which each case is reported, so far as could be ascertained, are given. The English cases are brought down to the Easter Vacation, 1879 ; the cases from other courts as nearly to that date as was practicable. It should be mentioned that a few of the more recent decisions are under appeal. In some instances statements of the law on various points by learned judges, intended to be of general application, are appended to the cases in which they were made, and it is hoped that these extracts may be found useful. L. B. S. 2 NEW SQUARE, LINCOLN'S INN, May, 1879. vi TABLE OF CASES. The numbers refer to the numbers of the cases. A. Abbott v. Bakers' and Con- fectioners' Tea Association (Limited) 379 Adams, Williams v. 662 Ainsworth v. Bentley 259 v. Walmsley 257 Albert (Prince) v. Strange 98 Aleploglu, Gout v. 51 Alexander, Jurgensen v. 211 Allegbany Fertilizer Co. v. Woodside 364 Allen, Kinney t>. 557 Osgood v. 410 Wamsutta Mills v. 660 Allsopp v. Walker 545 Alvord, Newman v. 282 American Grocer Publishing Association v. Grocer Pub- lishing Co. 503 American Leather Cloth Co. (Limited), Leather Cloth Co. (Limited) v. 223 American Lubricating Oil Co. In re 486 American Sardine Co. In re 422 Amoskeag Manufacturing Co. v. Garner (1) 314 (2) 500 Amoskeag Manufacturing Co. v. Spear 100 Anchor Tube Co., Selby v. 566 Anderson, Hostetter v. 652 Andrews, Sherwood v. 263 Anglo-Swiss Condensed Milk Co. v. Swiss Condensed Milk Co. 370 Ansell v. Gaubert 163 Apollinaris Co. (Limited) v. Edwards 509 Apollinaris Co. (Limited), Fish- er & Co. v. 457 Apollinaris Co. (Limited) v. Moore 6 75 Apollinaris Co. (Limited) v. Norrish 465 Archbold v. Sweet 49 Ardley, R. v. 349 Armistead, Blackwell v. 392 v. Blackwell 399 Army and Navy Cooperative Society (Limited) v. Junior Army and Navy Stores (Lim- ited) 640 Atkins, Schweitzer v. 298 Atkinson, In re 596 Aubin v. Holt 135 Austen v. Boys 156 Austria (Emperor of) v. Day and Kossuth 197 Ayer . Rushton 574 B. Bachof, Frese v. (1) . 484 v. (2) 603 Badger, Emerson v. 309 Bailey, Gardner v. 365 Bain v. Munro 588 Baird, Colladay v. 186 Baker, Mvers v. 167 Shackle . 13 Bakers' and Confectioners' Tea Association (Limited), Ab- bott v. 379 Balmer, Lamplough v. 288 Bank of London, Lawson v. 140 Banks v. Gibson 248 Barbara, Power v. 56 Barlow, Broadhurst . 411 Barnard v. Pillow 293 Vll TABLE OF CASES. Barnett v. Leuchars Wolfe v. Barrows, Ex parte In re Hall v. v. Knight 253 390 553 540 215 184 r. Pelsall Coal and Iron Co. 530 Basch, Kinney v. 542 Bass v. Dawber 310 Bassett, M'Andrew v. 234 Batty v. Hill 218 Baxter . Conolly 32 Societ^ Anonyme des Mines et Fonderies de Zinc de la Vieille Montagne v. 559 Beachim, Braham v. (1) 599 (2) 633 Beard v. Turner 251 Bedford, Bury v. 222 Beeton, Bradbury v. 320 Ward v. 450 Belcher, M'Intyre t; 220 Bell v. Locke 65 Bell & Co., Bell, Black & Co. v. 514 Bemis, Taylor v. 231 Benbow, Edmonds v. 33 Bennett, Hudson . 261 Bentall, Ransome v. 53 Bentley, Ainsworth v. 259 Berger, Samuel v. 143 Berndes, Hinrichs v. 594 Bevill, Thornbury v. 71 Billings, Marsh v. Ill Binning, Day v. 47 Binninger v. Wattles 240 Blackman, Filkins v. 502 Blackwell v. Armistead 392 ^rmistead v. 399 v. Crabb 274 v. Dibrell 590 v. Wright 466 Blakeslee & Co. In re 376 Blanchard v. Hill 2 Blanford, Willett . 70 Block & Co. In re 584 Blofeld v. Payne 50 Bloomer, BIoss v. 146 Bloss v. Bloomer 146 Boardman v. Meriden Britan- nia Co. 302 Boehm & Co. In re 470 Bohmer, Duwel v. 613 Bolles, Fenn o. 166 Bolton, Kinahan v. 228 Bolton, Singleton v. 4 Bond v. Milbourn 383 Boon v. Moss 576 Booth v. Jarrett 524 Bostwick, Lockwood v. 319 Bothin, Taylor v. 664 Boulnois v. Peake 294 Bowker, Carver v. 581 Bowman v. Floyd 201 Boyington, Tucker Manufact- uring Co. v. 474 Boys, Austen v. 156 Bozon v. Farlow 22 Bradbury o. Beeton 320 t;. Dickens 173 Bradley, Coe v. 489 v. Norton 250 Braham v. Beachim (1) 599 (2) 633 v. Bustard 226 Brain, Purser v. 92 Brakell, Schiele v. 219 Bramble, Wilkins & Co., Mar- covitch v. 595 Brandreth, In re 626 Braun, Witthaus v. 492 Brebner, In re 649 Breidenbach, 'Rowland v. 686 Brewster, Constable & Co. v. 39 Brill, Singer Man. Co. v. 672 Broadhurst v. Barlow 411 Brook, In re 622 v. Evans 190 Brooklyn White Lead Co. v. Masury 154 Broughton v. Broughton 451 Brown, Collins Co. v. 151 v. Mercer 435 Browne v. Freeman (1) 230 (2) 424 Brownrigg, Day v. 631 Brunton, Coffeen v. (1) 99 (2) 109 Bryan, Curtis v. 291 Rt>. 147 Bryson v. Whitehead 36 Bulloch, Lade & Co. v. Gray 452 Bullock v. Chapman 95 Reynolds v. 615 Bulmer, Rolt v. 614 Bunn v. Guy 11 Burfield v. Rouch 208 Burgess v. Burgess 117 v. Hately 169 v. Hills 170 Burke v. Cassin 415 Vlll TABLE OF CASES. Burke, Wolfe r. 434 Burnett v. Phalon 277 Burrows v. Foster 207 Bury v. Bedford 222 Burys & Co. In re 643 Bush & Co. In re 506 Bustard, Braham y. 226 Byass . Sullivan 188 Byles, Kelly v. 661 Byron (Lord) . Johnston 23 C. Campbell, Charleson c. 520 i'. Hollins 548 Candee, Swan & Co. v. Deere & Co. 339 Canham v. Jones 19 Carbon Metallic Paint Co., Prince Metallic Paint Co. v. 573 Carlan, Stone v. 104 Carlier, Killet v. 334 Carlile, Cartier v. 204 Caruiichel v. Latimer 521 Carnrick v. Morson 543 Carpenter, Taylor v. (1) 78 (2) 83 (3) 84 Carroll . Ertheiler 669 Carter, R. v. 287 Cartier v. Carlile 204 v. May 200 v. Westhead 199 Carver v. Bowker 581 v. Pinto Leite 356 Case, Morrison v. 394 Cassin, Burke v. 415 Caswell v. Davis 289 Cathery, Farina v. 275 Cave v. Myers 304 Chadsey, Genin v. 330 Chance v. Sheppard 317 Chandler, Cocks v. 351 Chapman, Bullock v. 95 Chappell v. Davidson 136 v. Sheard 132 Charbonnel, Robineau v. 498 Charleson y. Campbell 520 Chase v. Mayo 523 Cheavin v. Walker 528 Chissum v. Dewes 45 Chooneeloll Mullick, Orr Ewing v. 241 Choynski v. Cohen 336 Christie v. Christie 414 Christy v. Murphy 137 Chubb v. Griffiths 255 Churton v. Douglas 172 Clark v. Clark 148 Delaware and Hudson Canal Co. . 327 v. Freeman 93 v. Leach 210 Clarke, Spottiswoode . 85 Wylam v. 488 Clemens v. Such 429 Clement v. Maddick 174 Clements, Shipwright v. 350 Closs, R. v. 155 Clowes v. Hogg 345 Clybouw, Moet . 533 Clyde, Winsor v. 396 Coats v. Holbrook 79 Cocks v. Chandler 351 Coe v. Bradley 489 Coffeen v. Brunton (1) 99 (2) 109 Coggin, Kidder & Co. In re 490 Cohen, Choynski v. 336 Coker, Hitchcock v. 58 Cole, Popham v. 425 Colladay v. Baird 186 Collender, Phelan v. 479 Collingridge, Cook . 37 Collins, Crawshay v. 14 Collins Co. v. Brown 151 v. Cowen 152 v. Reeves 164 v. Walker 171 Colman v. Crump 579 Colonial Life Assurance Co. v. Home & Colonial Assurance Co. (Limited) 236 Colton v. Thomas 305 Commissioners of Inland Rev- enue, Potter v. 1 28 Comstock v. White 180 Condy v. Mitchell 561 Congress & Empire Spring Co. v. High Rock Congress Spring Co. 354 Connell v. Reed 670 Conolly, Baxter v. 32 Consolidated Fruit Jar Co. In re 578 Consolidated Fruit Jar Co. v. Dorflinger 444 Consolidated Fruit Jar Co. v. Thomas 665 Constable & Co. v. Brewster 39 Cook v. Collingridge 37 IX TABLE OF CASES. Cook v. Starkweather 395 Cooper, Hennessy v. 549 v. Hood 168 v. Watson 5 Cope, Dakin v. 48 v. Evans 433 Corcoran, Witt v. 423 Corns v. Griffiths 420 Cornwall, In re (1) 563 (2) 565 Cornwell, Morse v. 445 Correspondent Newspaper Co. v. Saunders 246 Corwin v. Daly 187 Coslake v. Till 42 Cotton i'. Gillard 447 Couston, Moet v. 235 Cowen, Collins Co. v. 152 Crabb, Blackwell v. 274 Crawshay v. Collins 14 v. Thompson 72 Croft v. Day (1) 76 (2) 77 Crookes v. Fetter 181 Crowley, Walton v. 138 Crump, Colman v. 579 Cruttwell v. Lye 1 7 Cumston, Hallett . 891 Curling, England v. 75 Currie, Wotherspoon v. 329 Curtis v. Bryan 291 Cutter, Hardy v. 427 D. Dakin v. Cope 43 Dale v. Smithson 195 Daly, Corwin v. 187 Isaacs v. 440 Darbey v. Wlritaker 153 Darley, Hagg v . g04 Davidson, Chappell v. 136 Davies, Dawes v. 426 v. Hodgson 158 Davis, Caswell v. 289 v. Kendall 103 v. Kennedy 281 Davol Mills, Ferguson . 307 Dawber, Bass v. 310 Dawes v. Davies 426 Dawes & Fanning, Ex parte 382 Dawson, Labouchere v. 385 Day v. Binning 47 v. Brownrigg 631 Croft v. (1) 76 (2) 77 Day v. Day 21 Day & Kossutb, Austria (Em- peror of) v. 197 Dayton v. Wilkes 178 De Conto, Stephens v. 295 Decker v. Decker 525 Deere & Co., Candee, Swan & Co. v. 339 Deiz v. Lamb 266 Del Valle v. Mayer 326 Delaware and Hudson Canal Co. v. Clark 327 Delondre v. Shaw 44 Dence v. Mason (1) 534 (2) 570 Denham, Hirst v. 400 Denicke, Reeves v. 368 Dent v. Turpin 196 Derringer v. Plate 249 Devlin v. Devlin 463 Dewes, Chissum v. 45 Dey, Swift v. 245 Diaper, Orr v. 519 Dibrell, Blackwell v. 590 Dick & Co. In re 493 Dickens, Bradbury v. 1 73 Dicks, Weldon v. 638 Dickson v. McMaster & Co. 260 Dixon v. Fawcus 194 v. Holden 311 v. Jackson . 271 Dixon Crucible Co. v. Guggen- heim 331 Dobell, Newling v. 303 Dole Brothers, In re 577 Dorflinger, Consolidated Fruit Jar Co. v. 444 Dougherty v. Van Nostrand 64 Douglas, Churton v. 172 Hammond v. 9 Downman, Motley v. 61 Downs, England v. 74 Drat, Ward v. 607 Du Boulay v. Du Boulay 312 Dunbar v. Glenn 529 Duncan, Hoffman . 122 Dundas, R. v. 120 D'Utassey, Faber v. 355 Dutcher Temple Co. In re 371 Duwel v. Bohmer 613 E. Eagle Pencil Co. In re 522 Easterbrook, Saxby v. 606 Ede Bros. & Co. Ex parte 632 TABLE OF CASES. Edelsten v. Edelsten 213 v. Vick 119 Edgington v. Edgington 237 Edinburgh Correspondent Newspaper, In re 34 Edmonds v. Benbow 33 Edwards, Apollinaris Co. v. 509 Ehlers, Siegert v. 432 Eichele, Peltz v. 485 Elkan, Upmann v. 369 Ellinger & Co., Twentsche Stoom Bleekery Goor v. 583 Ellis v. Zeilen & Co. 348 Emerson v. Badger 309 Emery, Mickle v. 495 England v. Curling 75 v. Downs 74 English, In re 342 Eno v. Stephens 609 Ertheiler, Carroll v. 669 Estcourt v. Estcourt Hop Es- sence Co. 449 Esterbrook, Gillott v. 269 Evans, Brook v. 190 Cope v. 433 v. Hughes 127 Turner v, 114 Everett, Smith v. 1 76 E. Faber v. D'Utassey 355 v. Faber 278 v. Hovey 481 Falkinburg v. Lucy 296 Farina, In re (I) 592 (2) 642 (3) 654 v. Cathery 275 v. Gebhardt 118 v. Shaw 113 v. Silver-lock 130 Farlow, Bozon v. 22 Farr v. Pearce 28 Fassett, Filley v. 313 Fawcus, Dixon v. 194 Featherstonhaugh v. Fenwick 1 6 Fenn v. Bolles 166 Fenwick, Featherstonhaugh v. 16 Ferguson o. Davol Mills 307 Fetridge v. Merchant 145 v. Wells 144 Field v. Lewis 280 Filkins v. Blackman 502 Filley v. Fassett 313 Findlater, Raggett v. 431 Siegert v. 591 Finlay, Robinson v. 585 Fisher, Seeley v. 67 Fisher & Co. (Limited) v. Apol- linaris Co. (Limited) 457 Flanagan, Matsell v. 270 Flavel v. Harrison 116 Fleming, McLean v. 580 v. Newton 94 Flint, Leidersdorf v. 629 Floyd, Bowman o. 201 Folgham, Green v, 38 Foot v. Lea 107 Ford v. Foster 384 Foss, Ex parte, In re Baldwin 159 Foster, Burrows v. 207 Ford v. 384 v. Megevand 499 Fowle v. Spear 90 Fox, Millington v. 63 Fran9ais, Hobbs v. 191 Francis & Mallon, In re 375 Franks, Pierce v. 81 v. Weaver, 87 Freeman, Browne v. (1) 230 (2) 424 Clark v. 93 Frese v. Bachof (1) 484 (2) 603 Fullwood v. Fullwood (1) 421 (2) 602 Fulton v. Sellers 279 G. Ganton, Lemoine v. 125 Gardner v. Bailey 365 Harrison v. 25 Garner, Amoskeag Manufac- turing Co. v. (1) 314 (2) 500 Garner, Merrimack Manufact- uring Co. v. 134 Garnhart, M'Cartney v. 332 Gaubert, Ansell v. 163 Gebhardt, Farina v. 118 Gee v. Pritchard 30 Geisendorf, Sohl v. 367 Genin v. Chadsey 330 Gibblett v. Read 3 Gibbs, Missouri (State of) v. 436 Gibson, Banks v. 248 Gillard, Cotton v. 447 Gillespie & Co. v. Marshall 648 XI TABLE OF CASES. Gillies, Taylor v. 448 Gillis v. Hall (1) 335 (2) 353 Gillott v. Esterbrook 269 v. Kettle 126 Gilman v. Hunnewell 541 Gladstone, Steuart v. 605 Glen & Hall Manufacturing Co. v. Hall 443 Glendon Iron Co. . Uhler 439 Glenn, Dunbar v. 529 Glenny v. Smith 247 Glines, In re 471 Godillot, In re 446 v. Hazard 461 Goodyear Rubber Co. In re 547 Gordon, In re 572 Goulard, Wolfe v. 179 Gouraud v. Trust 460 Gout v. Aleploglu 51 Graham, In re 412 v. Plate 347 Graham & Co. v. Kerr, Dods & Co. 315 Graveley v. Winchester 272 Graves, Smale v. 102 Gray, Bulloch, Lade & Co. v. 452 v. Koch 363 Gray & Co., Wotherspoon & Co. v. 227 Gray & Gosling, R. v. 183 Green, In re 473 v. Folgham 38 v. Rooke 889 t>. Shepherd 262 Griffiths, Chubb . 255 Corns v. 420 Grillon v. Guenin 532 Grimshaw, Ex parte 535 Grocer Publishing Co., Ameri- can Grocer Publishing Asso- ciation v, 503 Grosvenor, Seabury v. 562 Gue"nin, Grillon v. 532 Guggenheim, Dixon Crucible Co. v. 331 Guinness v. Heap 617 v. Ullmer 89 Guy, Bunn v. 11 H. Hagg v. Darley Haley, Lee v. Hall v. Barrows 604 325 215 Hall, Gillis v. (1) 335 (2) 353 Glen & Hall Manufacturing Co. v. 443 v. Hall 129 Hall and Co. In re 596 Hallett v. Cumston 391 Hammond v. Douglas 9 Hampshire and North W T ilts Bank, London and County Banking Co. v. 618 Hanbury, Liebig's Extract of Meat Co. v. 286 Hand, Worral v. 6 Hankinson, In re 464 Hardy v. Cutter 427 Hargreaves, In re 645 v. Smith 338 Harper v. Pearson 193 Harrington v. Libby 538 Harris, Palmer v. 308 Harrison, Flavel v. 116 v. Gardner 25 v. Taylor 244 Hart, Wolfe v. 653 Harter v. Souvazoglu 454 Hately, Burgess v. 169 Hauthaway, In re, (1) 357 (2) 377 Hayward, Parsons v. 206 Hazard, Godillot v. 461 Heap, Guinness v. 617 Heath v. Wright 133 Helleley, Johnson . 238 Helmbold v. Helmbold Man- ufacturing Co. 575 Hemmons, Weston v. 517 Henderson v. Jorss 198 Hendrickx, Laferme (Com- pagnie) v. 512 Henley, Rose v. 551 Hennessy v. Cooper 549 v. Hogan 651 v. Kennett 556 v. Rohmann, Osborne & Co. 531 v. Wheeler 483 v. White 650 Henriques, Howard v. 108 Henry v. Price 48 High Rock Congress Spring Co., Congress & Empire Spring Co. v. 354 Hill, Batty v. 218 Blanchard v. 2 Hills, Burgess v. 170 XII TABLE OF CASES. Hine v. Lart 80 Hinrichs v. Berndes 594 Hirsch v. Jonas 494 Hirschfeld, Leather Cloth Co. P. (1) 214 (2) 224 (3) 252 Hirst P. Denham 400 Hitchcock v. Coker 58 Hopkins v. 216 Hobbs v. Fran9ais 191 Hodgson, Davies v. 158 Hoffman v. Duncan 122 Hogan, Hennessy v. 651 Hoge, Moorman p. 373 Hogg, Clowes v. 345 v. Kirby 10 Maxwell p. 264 v. Maxwell 265 Holbrook, Coats v. 79 Holden, Dixon v. 311 Hollins, Campbell v. 548 Holloway v. Holloway 106 Holmes, Booth & Haydens . Holmes, Booth & Atwood Manufacturing Co. 340 Holt, Aubin v. 135 Home and Colonial Assurance Co. (Limited), Colonial Life Assurance Co. v. 236 Hood, Cooper v. 168 Hookham v. Pottage 398 Hoosier Drill Co. v. Ingels 627 Hopkins v. Hitchcock 216 Horn, Sawyer p. 667 Horsburgh, In re 597 Hosteller v. Anderson 652 v. Vo winkle 366 Houghlon, Rowley v. 301 Hovenden v. Lloyd 337 Hovey, Faber v. 481 How, Pidding v. 60 Southern v. 1 Howard v. Henriques 108 Howe v. Howe Machine Co. 284 v. M'Kernan 203 v. Searing 185 Whittaker v. 66 Howe Machine Co., Howe v. 284 Hudson v. Bennett 261 v. Osborne 323 Hughes, Evans v. 127 Humphrey, Peterson v. 149 Hunnewell, Oilman v. 541 Hunt P. Maniere 239 Hunter, R. . 287 Hutton, Kelly v. Hyde & Co. In re 292 593 I. Imbs, In re 518 India Rubber Comb Co. In re 476 v. Meyer, 475 Ingels, Hoosier Drill Co. v. 627 Ingram v. Stiff 175 Isaacs v. Daly 440 Isaacson v. Thompson 381 J. Jackson, Dixon v. 271 James u. James 388 Newbery v. 24 Oldham v. 209 Spicer v. 46 Jaques, Jollie i. 105 Jarrett, Booth v. 524 Jelley, Son & Jones, In re 616 Jendwine v. Slade 8 Jenkins, Wade v. 192 Johnson t;. Helleley 238 Kiddt>. ' 666 Sohier v. 408 Williams v. 150 Johnson & Co. In re 404 Johnston, Byron (Lord) v. 23 Johnston & Co., Orr Ewing & Co. v. 646 Jollie P. Jaques 105 Jonas, Hirsch v. 494 Jones, Canham v. 19 R. p. 182 Jorss, Henderson v. 198 Junior Army and Navy Stores (Limited), Army and Navy Cooperative Society (Lim- ited) P. 640 Jurgensen v. Alexander 211 K. Kane & Co. In re Keen, Mellersh p. Kelly P. Byles v. Hutton Kendall, Davis v. Kennedy, Davis p. p. Lee Kennett, Hennessy p. 480 177 661 292 103 281 27 556 Xlll TABLE OF CASES. Kerr, Dods & Co., Graham & Co. v. 315 Ketcham, Weston v. (1) 455 (2) 487 Kettle, Esterbrook v. 126 Kidd v. Johnson 666 Kidd & Co. v. Mills, Johnson & Co. 437 Kimball, In re 553 Kimball & Morton, Singer Manufacturing Co. v, 413 Kinahan v. Bolton 228 King, Exparte 341 King & Co., Strahan & Co. v. 539 Kinney v. Allen 557 v. Basch 542 Kirby, Hogg v. 10 Knight, Barrows v. 184 Knott v. Morgan 57 Prudential Assurance Co. v. 453 Welch v. 157 Koch, Gray r. 363 Kuhn&Co. In re 637 L. Labouchere v. Dawson 385 Laferme (Compagnie) v. Hen- drickx 512 Laight, Shrimpton v. 123 Laird v. Wilder 418 Lamb, Deiz v. 266 Lamplough v. Balmer 288 Landgraff, Stokes v. 121 Langdon, Lewis v. 55 Lamed, Lowell Manufacturing Co. v. 428 Larsen, Singer Man. Co. v. 659 Lart, Hine v. 80 Latimer, Carmichel v. 521 Lautz Bros. & Co. v. Schultz & Co. 496 Lawrence & Co. Ex parte 630 In re 504 Lawrence Man. Co. v. Lowell Hos. Co. 673 Lawson v. Bank of London 140 Lazar, Woodward v. 212 Lazenby v. Lazenby 160 v. White (1) 344 (2) 346 Lea, Foot v. 107 v. Millar 513 v. Wolff 407 Leach, Clark v. 210 Leather Cloth Co. (Limited) v. American Leather Cloth Co. (Limited) 223 Leather Cloth Co. (Limited) v. Hirschfeld (1) . 214 Leather Cloth Co. (Limited) v. Hirschfeld (2) 224 Leather Cloth Co. (Limited) v. Hirschfeld (3) 252 Leather Cloth Co. (Limited) v. Lorsont 324 Ledger v. Ray 550 Lee v. Haley 325 Kennedy v. 27 Leidersdorf v. Flint 629 Lemoine v. Ganton 125 Leonardt, In re 610 Leuchars, Barnett v. 253 Levy v. Walker 639 Lewis, Field v. 280 v. Langdon 55 Libby, Harrington v. 538 Liebig's Extract of Meat Co. v. Hanbury 286 Linoleum Manufacturing Co. v. Nairn 536 Lisner, In re 600 Llewellyn v. Rutherford 462 Lloyd, Hovenden v. 337 Locke, Bell v. 65 Lock wood v. Bostwick 319 Loftus, Rose v. 608 London Assurance v. London and Westminster Assurance Corporation (Limited) 221 London and County Banking Co. v. Hampshire and North Wilts Bank 618 London and Provincial Joint Stock Life Assurance Co., London and Provincial Law Assurance Society v. 88 London and Provincial Law Assurance Society v. London and Provincial Joint Stock Life Assurance Co. 88 London and Westminster As- surance Corporation (Lim- ited), London Assurance v. 221 Longman v, Tripp 12 v. Winchester 15 Loog, Singer Manufacturing Co. v. 635 Lorsont, Leather Cloth Co. v. 324 Lowell Hos. Co., Lawrence, &c. Co. v. 673 XIV TABLE OF CASES. Lowell Manufacturing Com- pany v. Lamed 428 Lucy, Falkinburg v, 296 Lumley v. Wagner 112 Lye, Cruttwell v. 17 Lysaght, In re 623 M. Me Adam, Morgan r. 267 McAndrew v. Bassett 234 McBride, Procter et al. v. 657 McCardel v. Peck 233 McCartney v. Garnhart 332 McCormick v. McCubbin 35 McCubbin, McCormick v. 35 Macdonald v. Richardson 165 McGowan, McGowan Bros. Pump Machine Co. v. 406 McGowan Bros. Pump Ma- chine Co. v. McGowan 406 Mclntyre v. Belcher 220 McKernan, Howe v. 203 Mackintosh, Scott v. 20 McLean v. Fleming 580 McMaster & Co. , Dickson v. 260 McXulty, Powell v. 26 Mack v. Fetter 403 Macrae, Young v. 205 Maddick, Clement v. 174 Major, Turner v. 202 Manhattan Medicine Co. v. Wood 628 Maniere, Hunt v. 239 Marcovitch v. Bramble, Wil- kins & Co. 595 Marsh v. Billings 111 Marshall, Gillespie & Co. v. 648 v. Ross 316 v. Watson 162 Martin v. Wright 52 Mason, Dence v. (1) 534 (2) 570 Smith v. 458 Massam u. J. W. Thorley's Cattle Food Co. 560, 564, 668 Masury, Brooklyn White Lead Co. v. 154 Matsell v. Flanagan 270 Maxfield, Wilson v. 459 Maxwell v. Hogg, 264 Hogg v. 265 May, Cartier v. 200 Mayer, Del Valle . 326 Mayo, Chase v. 523 Megevand, Foster v. 499 Meikle, In re 515 Mellersh v. Keen 177 Menck, Partridge v. 91 Meneely v. Meneely 472 Mercer, Brown v. 435 Merchant, Fetridge v. 145 Merchant Banking Company of London (Limited) v. Mer- chants' Joint Stock Bank 619 Meriden Britannia Co., Board- man v. 302 Meriden Britannia Co. v. Par- ker 409 Merrimack Manufacturing Co. v. Garner 134 Messerole v. Tynberg 300 Metzler v. Wood 587 Meyer, India Rubber Comb Co.v. 475 Mickle v. Emery 495 Milbourn, Bond v. 383 Millar, Lea v. 513 Millington v. Fox 63 Mills, Johnson & Co., Kidd & Co. v. 437 Milner v. Reed 328 Missouri (State of) v. Gibbs 436 Mitchell, In re (1) 568 (2) 611 Condy v. 561 Moat, Morison v. 110 Moet v. Clybouw 533 v. Couston 235 v. Pickering 567 Montague v. Moore 242 Moore, Apollinaris Co. v. 675 Montague v. 242 Tallcotv. 478 Moorman v. Hoge 373 Morgan, Knott v. 57 v. Me Adam 267 Morgan Sons Co. v, Troxell 674 Morison v. Moat 110 v. Salmon 68 Morris v. Moss 131 Morrison v. Case 394 Morse v. Cornwell 445 v. Worrell 445 Morson, Carnrick v, 543 Mortimer, Prowett v. 141 Moses v. Sargood, Ewen & Co. 636 Moss, Boon v. 576 Morris v. 131 Motley v. Downman 61 Munro, Bain v. 588 Murphy, Christy v. 137 XV TABLE OF CASES. Myers . Baker Cave v. 167 304 N. Nairn, Linoleum Manufacturing Co. v. 536 Newbery v. James 24 Newby v. Oregon Central Rail- way Co. 318 Newling v. Dobell 303 Newman v. Alvord 282 Newton, Fleming v. 94 Nixey v. RofFey 343 Noah, Snowden . 41 Norfolk, Peabody v. 290 Norman, Radde v. 397 Norris, Rivero v. 299 Norrish, Apollinaris Co. . 465 Norton, Bradley . 250 Nowill, Rodgers v. (1) 82 (2) 115 O. O'Connor, Wolmershausen v. 552 Ogden, R. v. . 54 Oldham v. Jamea 209 Oregon Central Railway Co., Newby v. 318 Orr v. Diaper 519 Orr Ewing & Co., In re 586 Orr Ewing & Co. v. Chooneeloll Mullick 241 Orr Ewing & Co. v. Johnston & Co. 646 Osborne, Hudson v. 323 Williams v. 254 Osgood v. Allen 410 v. Rockwood 439 P. Paine, Stevens v. Palmer, In re v. Harris Park, In re Parker, In re Meriden Britannia Co, Parsons v. Hayward Partridge v. Menck 297 378 308 544 582 409 206 91 Paton, In re 601 Payne, Blofeld v. 50 Peabody v. Norfolk 290 Peake, Boulnois v. 294 Pearce, Fair v. 28 Pearson, Harper v. 193 Peck, McCardel v. 233 Peel, Stephens v. 273 Pelsall Coal and Iron Co., Bar- rows v. 530 Peltz v. Eichele 485 Perry v. Truefitt Peru (Republic of) v. Reeves 482 Peters, Swift v. 554 Peterson v. Humphrey 149 Weed v. 387 Peto, Ponsardin v. Exparte Uzi- elli 229 Petter, Crookes v. 181 Mack v. 403 Phalon, Burnett v. 277 v. Wright 232 Phelan v. Collender 479 Philp, Rodgers v. Pickering, Moet v. 567 Pidding v. How 60 Pierce v. Franks 81 Pillow, Barnard v. 293 Pinto Leite, Carver v. 356 Plate, Derringer v. 249 Graham v. 347 Ponsardin v. Peto, Exparte Uzi- elli 229 Popham v. Cole 425 v. Wilcox 425 Porter Blanchard's Sons, In re 358 Pottage, Hookham i;. 398 Potter v. Commissioners of In- land Revenue 128 Powell, In re 589 v. McNulty 526 Seltzer v. 374 Power v. Barham 56 Pratt, In re 589 Partt & Farmer, In re 527 Price, Henry v. 48 Prince Metallic Paint Co. v. Carbon Metallic Paint Co. 573 Pritchard, Gee v. 30 Procter & Gamble v. McBride 657 Provezende, Seixo v. 256 Prowett v. Mortimer 141 Prudential Assurance Co. v. Knott 453 Purser v. Brain 92 xvi TABLE OF CASES. Q. Quiddington, Robertson v. R. R. v. Ardley v. Biyan v. Carter v. Gloss v. Dundas v. Gray & Gosling v. Hunter v. Jones v. Ogden v. Smith v. Suter & Coulson Rabone Bros. & Co. In re Radde v. Norman Rader & Co. In re Raggett v. Findlater Ransome v. Bentall Ratcliff, Woollam v. Ray, Ledger . Read, Gibblett v. Reed, Connell v. Milner v. Reeves, Collins Co. v. v. Denicke Peru (Republic of) v. Reid v. Sibbald Reynolds v. Bullock Smith v. (1) (2) (3) Southern v. Richards v. Williamson Richardson, In re Macdonald v. Rillet v. Carlier Rivero v. Norris Roach, In re Roberts, In re (I) (2) (3) (4) Robertson v. Quiddington Robineau v. Charbonnel Robinson v. Finlay Ward v. Rockwood, Osgood u. Rodgers v. No will (1) (2) v. Philp v. Rodgers b 189 349 147 287 155 120 183 287 182 54 161 285 643 397 612 431 53 217 550 3 670 328 164 368 482 438 615 401 402 511 243 441 416 165 334 299 516 359 360 361 362 189 498 585 585 430 82 115 352 442 Roffey, Nixey v. 343 Rogers v. Taintor 283 Rohland, In re 497 Rohmann, Osborne & Co., Hen- nessy & Co. v. 531 Rolt v. Bulmer 614 Rooke, Green v. 389 Rose v. Henley 551 v. Loftus 608 Rosing, In re 621 Ross, Marshall v. 316 Rotherham, In re 647 Rothschild, In re 456 Rouch, Burfield v. 208 Routh v. Webster 86 Rowe & Post, In re 491 Rowland v. Breidenbach 386 Scott v. 393 Rowley v. Houghton 301 Royal B'k'g Powder Co. v. Mc- Quade 670 Royal B'k'g Powder Co. v. Royal Chemical Co. 656 Royal Chem. Co., Royal B. P. Co. v. 656 Rubber Clothing Co. In re 507 Rudderow v. Huntington 101 Rush ton, Ayer v. 574 Rutherford, Llewellyn v. 462 S. Salamon, In re 569 Sales, Pollard & Co. Ex parte 620 Salmon, Morison v. 68 Samson, Steinthal v, 546 Samuel v. Berger 143 Sands, Woods v. 467 Sargood, Ewen & Co., Moses v. 636 Saunders, Correspondent News- paper Co. v. 246 Saunion & Co. In re 625 Sawyer v. Horn 667 Saxby v. Easterbrook 606 Saxony, Ex parte King of 598 Schiele v. Brakell 219 Schultz & Co., Lautz Bros. & Co. v. 496 Schweitzer v. Atkins 298 Scott v. Mackintosh 20 v. Rowland 393 v. Scott 268 Scoville v. Toland 97 Seabury r. Grosvenor 562 Searing, Howe v. 185 xvil TABLE OF CASES. Sedon v. Senate 18 Seeley v. Fisher 67 Seixo v. Provezende 256 Selby v. Anchor Tube Co. 566 Sellers, Fulton v. 279 Seltzer v. Powell 374 Senate, Sedon v. 18 Shackle v. Baker 13 Shakespear, Wheeler & Wilson Manufacturing Co. v. 322 Shaw, Delondre v. 44 Farina v. 113 Sheard, Chappellw. 132 Shepherd, Green v. 262 Sheppard, Chance v. 317 Sherwood v. Andrews 263 Shipwright v. Clements 350 Shrimpton v. Laight 123 Sibbald, Reid v. 438 Siegert v. Ehlers 432 v. Findlater 591 Silverlock, Farina v. 130 Simpson & Sons, In re 508 Singer Manuf. Co. v. Brill 672 v, Larsen 659 v. Loog 635 v. Wilson 477 Singer Manuf. Co. v. Kimball & Morton 413 Singleton v. Bolton 4 Slade, Jendwine v. 8 Smale v. Graves 102 Smith v. Everett 176 Glenny v. 247 Hargreaves v. 338 r. Mason 458 R. v. 161 v. Reynolds (1) 401 (2) 402 (3) 511 Wedgwood v. 96 v. Woodruff 276 Smithson, Dale v. 195 Stewart u. 142 Snowden v. Noah 41 Socie"te Anonyme des Mines et Fonderies de Zinc de la Vieille Montague v. Baxter 559 Sohier v. Johnson 408 Sohl v. Geisendorf 367 Southern v. How 1 v. Reynolds 243 Souvazoglu, Harter v. 454 Spear, Amoskeag Manufactur- ing Co. v. 100 Fowle v. 90 Spence, Williams v. 225 Spicer v. James 46 Spottiswoode v. Clarke 85 Spratt's Patent v. Ward & Co. 644 Standish v. Whitwell Starkweather, Cook v. 395 Steffens, U. S. v. 658 Steinthalu. Samson 546 Stephens, Ex parte (1) 505 (2) 510 v. De Conto 295 Eno v. 609 v. Peel 273 Sternberger v. Thalheimer 417 Stetson, Town v. 306 v. Winsor 396 Steuart v. Gladstone 605 Stevens v. Paine 297 Stewart v. Smithson 142 Stiff, Ingram v. 175 Stokes v. Landgraff 121 Stone v. Carlan 104 Stonebraker v. Stonebraker 333 Strahan & Co. v. King & Co. 539 Strange, Albert (Prince) v. 98 Such, Clemens v. 429 Sullivan, Byass v. 188 Suter & Coulson, R. v. 285 Sweet, Archbold v. 49 Swift v. Dey 245 v. Peters 554 Swiss Condensed Milk Co., Anglo- Swiss Condensed Milk Co. v. 370 Sykes v. Sykes 40 T. Taintor, Rogers v. 283 Tallcot v. Moore 478 Taylor v. Bemis 231 v. Bothin 664 v. Carpenter (1) 78 (2) 83 (3) 84 v. Gillies 448 Harrison v. 244 r. Taylor 124 Thalheimer, Sternberger r. 417 Thomas, Ex parte 69 In re 634 Colton v. 305 Cons. Fr. Jar Co. v. 665 Thompson, Crawshay v. 72 Isaacson v. 381 xvill TABLE OF CASES. Thomson v. Winchester 59 Thorley's Cattle Food Co., Mas- sam v. 560, 564, SB8 Thornbury v. Bevill 71 Thurber, Wharton v. 663 Till, Coslake v. 42 Toland, Scoville v. 97 Tolle, In re 405 Tonge v. Ward 321 Town v. Stetson 306 Tripp, Longman v. 12 Troxell, Morgan Sons Co. v. 674 Truefitt, Perry v. 73 Trust, Gouraud v. 460 Tucker Manufacturing Co. v. Boyington 474 Tucker v. Turpin 196 Tudor v. Tudor 419 Turner, Beard v. 251 v. Evans 114 v. Major 202 Turpin, Dent v. 196 Tucker v. 196 Twentsche Stootn Bleekery Goor v. Ellinger & Co. 583 Tynberg, Messerole v. 300 U. Uhler, Glendon Iron Co. v. 439 Ullmer, Guinness v. 89 United States i\ Steffens 658 Upmann v. Elkan 369 V. Van Nostrand, Dougherty v. 64 Vick, Edelsten . 119 Vickery v. Welch 62 Vidvard & Sheehan, In re 469 Volta Belt Co. In re 468 Vowinkle, Hostetter v. 366 W. Wade v. Jenkins 192 Wagner, Lumley v. 112 Walkden Aerated Waters Co. In re 558 Walker, Allsopp v. 545 Cheavin v. 528 Collins Co. v. 171 Walker, Levy v. 639 Walker & Co. Ex parte 624 Walmsley, Ains worth v. 257 Walton v. Crowley 138 Wamsutta Mills v. Allen 660 Warburg & Co. In re 571 Ward v. Beeton 450 v. Drat 607 v. Robinson 585 Tonge v. 321 Ward & Co., Spratt's Patent v. 644 Watson, Cooper i'. 5 Marshall?;. 162 Wattles, Binninger v. 240 Weaver, In re 501 Franks v. 87 Webster, Routh v. 86 v. Webster 7 Wedderburn v. Wedderburn 139 Wedgwood v. Smith 96 Weed v. Peterson 387 Welch v. Knott 157 Vickery v. 62 Weldon v. Dicks 638 Wells, Fetridge v. 144 Westhead, Cartier v. 199 Weston v. Hemmons 517 v. Ketcham (1) 455 (2) 487 Wharton v. Thurber 663 Wheeler, Hennessy v. 483 Wheeler and Wilson Manufact- uring Co. v. Shakespear 322 Whitaker, Darbey v. 153 White, Comstockv. 180 Hennessy v. 650 Lazenby v. (1) 344 (2) 346 Whitehead, Bryson v. 36 Whiteley, In re 641 Whittaker v. Howe 66 Whitwell, Standish v. 258 Whyte, In re 380 Wilcox, Popham v. 425 Wilder, Laird v. 418 v. Wilder 372 Wilkes, Dayton v. 178 Willett v. Blanford 70 Williams v. Adams 662 v. Johnson 150 v. Osborne 254 v. Spence 225 v. Williams (1) 26 (2) 29 Williamson, Richards v. 441 Wilson v. Maxfield 459 XIX TABLE OF CASES. Wilson, Singer Manufacturing Co. v. 477 Winchester, Graveley v. 272 Longman v. 15 Thomson v. 59 Winsor v. Clyde 396 Stetson v. 396 Winyard, Yovatt v. 31 Witt v. Corcoran 423 Witthaus v. Braun 492 Wolfe v. Barnett 390 v. Burke 434 v. Goulard 179 v. Hart 653 Wolff, Lea v. 407 Wolmershausen v. O'Connor 552 Wood, Manhattan Medicine Co. v. 628 Metzler v. 587 Woodruff, Smith v. 276 Woods v. Sands 467 Woodside, Alleghany Fertilizer Co v. 364 Woodward v. Lazar 212 Woollam v. Ratcliff 217 Worral v. Hand 6 Worrell, Morse v. 445 Worthington & Co. In re 655 Wotherspoon v. Currie 329 Wotherspoon & Co. v. Gray & Co. 227 Wright, Blackwell v. 466 Heath v. 133 Martin v. 52 Phalon v. 232 Wylam v. Clarke 488 Y. Young, Ex parte, In re Lemon Hart & Son 537 v. Macrae 205 Yovatt v. Winyard 31 Z. Zeilen & Co., Ellis v. 348 XX TABLE OF ABBREVIATIONS. A. J Australian Jurist. Abb. Pr Abbott's Practice Reports (New York). Act. Comm Acting Commissioner. Ad. & E Adolphus and Ellis. Alb. L. J Albany (New York) Law Journal. Allen Allen (Massachusetts). Am. L. Reg American Law Register. Am. L. Rev American Law Review. Am. L. T American Law Times. Amer. Rep American Reports. App. Gas Appeal Cases. Asst. Comm Assistant Commissioner. Atk. ...*.... Atkins. B. & Ad Barnewall and Adolphus. B. & Cr Barnewall and Cresswell. Barb. Ch Barbour's Chancery Reports (New York). Barb. S. C. or Barb. . . Barbour's Supreme Court Reports (New York). Beav Beavan. Beng. L. R. App. . . . Bengal Law Reports, Appendix. Biss Bissell (U. S. Circuit Court). Bl. C. C Blatchford (U. S. Circuit Court). Bos Bosworth (New York). Bos. & P. N. S Bosanquet and Puller New Reports. Brews Brewster (Pennsylvania). Browne Browne (Massachusetts). Bush Bush (Kentucky). C. B Common Bench. C. C. C Central Criminal Court. C. C. C. Sess. Pap. . . Central Criminal Court Sessions Papers. C. C. R Court of Crown Cases Reserved. C. & P Carrington and Payne. C. P Common Pleas. xxi TABLE OF ABBREVIATIONS. C. P. Div Common Pleas Division. Cal California. Ch. D Chancery Division. Chicago L. N Chicago Legal News. Chitty Gen. Pr. . . . Chitty's General Practice. Cine Cincinnati. Codd. Dig Coddington's American Digest of Trade-Mark Cases. Comm Commissioner. Comm. of App. . . . Commission of Appeals (New York). Conn Connecticut. Coop Cooper. C. P. Coop C. P. Cooper. Cor Cory ton (Bengal). Cox Cox's Criminal Cases. Pi. Cox R. Cox's American Trade-Mark Cases. Cro Croke. Ct. of App Court of Appeal. Ct. of Sess. Cas. . . . Court of Sessions Cases (Scotch). Cush Gushing (Massachusetts). D. & B Dearsley and Bell. D. & R Dowling and Rylands. Daly Daly (New York). Deady Deady (U. S. Circuit Court). De G., F. & J De Gex, Fisher and Jones. De G. & J De Gex and Jones. De G., J. & S De Gex, Jones and Smith. De G., M. & G De Gex, Macnaghten and Gordon. DeG. & Sm De Gex and-Smale. Dill Dillon (U. S. Circuit Court). Doug Douglas. Drew Drewry. Drew. & Sm Drewry and Smale. Duer Duer (New York). E. & B Ellis and Blackburn. Ell. & Ell Ellis and Ellis. Eq. Rep Equity Reports. Esp. N. P. C Espinasse, Nisi Prius Cases. Ex Exchequer. Ga Georgia. Giff. Giffard. H. L. C House of Lords Cases. H. of L House of Lords. xxii TABLE OF ABBREVIATIONS. H. & M Hemming and Miller. H. & N Hurlstone and Norman. H. & Tw 'Hall and Twells. H. & W Harrison and Wollaston. Hand Hand (New York). Hilt Hilton (New York). Hoff Hoffman (New York). Holmes Holmes (U. S. Circuit Court). Hopk Hopkins (New York). How. App. Cas. . . . Howard's Appeal Cases (New York). How. Pr Howard's Practice Cases (New York). Hughes Hughes (U. S. Circuit Court). Hun Hun (New York). Ill Illinois. Ind Indiana. Ir. Ch Irish Chancery. Ir. Eq Irish Equity. Ir. Jur Irish Jurist. J. & H Johnson and Hemming. J. & S Jones and Spencer (New York). Jac , . Jacob. Jac. & W Jacob and Walker. Johns Johnson. Journ. of Jurisp. . . . Journal of Jurisprudence (Scotch). Jur Jurist. K. & J Kay and Johnson. Keyes Keyes (New York). Ky Kentucky. L. J. Bkptcy Law Journal, Bankruptcy. L. J. Ch Law Journal, Chancery. L. J. C. P Law Journal, Common Pleas. L. J. Ex Law Journal. Exchequer. L. J. K. B Law Journal, King's Bench. L. J. M. C Law Journal, Magistrates' Cases. L. J. Notes of Cases. . Law Journal, Notes of Cases. L. J. P. C Law* Journal, Privy Council. L. J. Q. B Law Journal, Queen's Bench. L. R. Ch Law Reports, Chancery Appeals. L. R. C. P Law Reports, Common Pleas. L. R. Eq Law Reports, Equity. L. R. H. L Law Reports, House of Lords (English and Irish). L. R. P. C Law Reports, Privy Council. xxiii TABLE OP ABBREVIATIONS. L. T Law Times. La. Ann Louisiana Annual Reports. Lans Lansing (New York). Lathrop Lathrop (Massachusetts). Leg. Obs Legal Observer. M. M. A Merchandise Marks Act, 1862. M. & Rob Moody and Robinson. Mac. & G Macnaghten and Gordon. Madd Maddock. Man. & G Manning and Granger. Mass Massachusetts. McLean McL an (U. S. Circuit Court). Md Maryland. Me Maine. Mer Merivale. Mich. C. C Michigan Circuit Court. Mich. N. P Michigan Nisi Prius. Mo Missouri. Mod Modern Reports. Mont., D. & De G. . . . Montague, Deacon and De Gex. Monthly L. R Monthly Law Reports. Moo. P. C Moore's Privy Council Cases. My. & Cr Mylne and Craig. N. Car North Carolina. N. P Nisi Prius. N. R New Reports. N. S New Series. N. Y New York. N. & M Neville and Manning. N. & P Neville and Perry. Neb Nebraska. Paige Paige (New York). Pemb Pemberton on Judgments. Penn. L. J Pennsylvania Law Journal. Penn. St Pennsylvania State Reports. Ph Phillips. Phila Philadelphia. Pick Pickering (Massachusetts) Post Post (Missouri). R. I Rhode Island. Rep Reporter (Boston). Robertson Robertson (New York). Russ Russell. xxiv TABLE OF ABBREVIATIONS. S. & S Simons and Stuart. Sandf. Ch Sandford's Chancery Reports (New York). Sandf. S. C Sandford's Supreme Court Reports (New York). Sawyer Sawyer (U. S. Circuit Court). Scot. L. Rep Scottish Law Reporter. Scott N. R Scott's New Reports. Seton Seton on Decrees. Sickles Sickles (New York). Sim Simons. E. D. Smith E. D. Smith (New York). Story Story (U. S. Circuit Court). Sup. Ct Supreme Court. Super. Ct Superior Ct. Swanst Swanston. T. M. A Trade-Marks Registration Act. Thomp. & C Thompson and Cook (New York). Trade-Marks British and Foreign Journal of Commerce, Trade-Marks, and International Exhibitions. Trans. App Transcript Appeals (New York). U. S Otto, U. S. S. C. Reports. U. S. C. C., Dt. of . . United States Circuit Court, District of . U. S. Pat. Comm. Decis. Decisions of the U. S. Commissioner of Pat- ents. U. S. Pat. Gaz United States Official Patent Gazette. U. S. Rep United States Supreme Court Reports. U. S. Sup. Ct United States Supreme Court. V. & B Vesey and Beames. V. R. Eq Victoria Reports (First Series) Equity. Va Virginia. Ves Vesey. Viet. L. R. Eq. . . . Victoria Law Reports (New Series) Equity. W. N Weekly Notes. P. W. N Phila. Weekly Notes of Cases. W. R Weekly Reporter. W. Va West Virginia. W. & W. (I., E. & M.) . Wyatt and Webb's Victoria Reports (Insol- vency, Ecclesiastical and Matrimonial). W., W. & A'B. Eq. . . Wyatt, Webb and A'Beckett's Victoria Re- ports (Equity). W., A'B. & W. Eq. . . Webb, A'Beckett and Williams Victoria Re- ports (Equity). Wallace Wallace (United States Supreme Court). XXV TABLE OF ABBREVIATIONS. Wall. Jr Wallace, Junior (U. S. Circuit Court). West. L. J Western Law Journal. Wils Wilson. Wilson (Ind.) .... Wilson's Indianapolis Reports. Wis Wisconsin. Wood. & M Wood bury and Minot (U. S. Circuit Court). Y. & C. Ch Younge and Collyer's Chancery Reports. xxvi TRADE-MARK CASES. 1. Southern v. How. Temp. Jac. 1. Common Pleas. Popham, 144; Cro. Jac. 471; 2 Rolle, 28; R. Cox, 633. ACTION" on the case for deceit. Doderidge, J., cited a case in which it was held by the Court of Common Pleas, in the reign of Queen Elizabeth, that an action on the case for deceit would lie against a cloth- ier who had applied another's mark to his own inferior cloth. Popham says the action was brought by the defrauded cloth- ier ; Croke, by the purchaser ; but Rolle states that this was not mentioned, but conjectures that it was by the purchaser. 2. Blanchard v. Hill. December 18, 1742. Lord Hardwicke, C. 2 Alk. 484 ; R. Cox, 633. MOTION for injunction, to restrain the use of the Great Mogul stamp on cards, refused. " Every particular trader has some particular mark or stamp ; but I do not know of any instance of granting an injunction here to re- strain one trader from using the same mark with another, and I think it would be of mischievous consequence to do it. Mr. Attor- ney General has mentioned a case where an action at law was brought by a clothworker against another of the same trade for using the same mark, and a judgment was given that the action would lie. But it was not the single act of making use of the mark that was sufficient to maintain the action, but doing it with a fraudulent de- sign, to put off bad clothes by this means, or to draw away custom- ers from the other clothier ; and there is no difference between a 1 1 SINGLETON V. BOLTON. tradesman's putting up the same sign, and making use of the same mark, with another of the same trade." " An objection has been made that the defendant, in using this mark, prejudices the plaintiff by taking away his customers. But there is no more weight in this than there would be in an objection to one innkeeper setting up the same sign with another." 1 3. Gibblett v. Read. 17 Geo. 2. Lord Hardwicke, C. 9 Mod. 459. SUIT by the children of the proprietor of nineteen 'out of twenty shares in the St. James' Evening Post newspaper. Held, that such shares belonged to the personal estate of the deceased proprietor, and must be accounted for by his widow and executrix accordingly. " The case was put of physical secrets or nostrums, where every- thing was carried on by the materials purchased after the testator's death, and yet the nostrum is part of the personal estate of the v tes- tator. This has been resembled to the case of a shoemaker ; and, in that case, suppose the dealing has been extensive, and carried on in partnership, and with the father's stock, the son, who is executor, would be accountable. Suppose the house were a house of great trade, he must account for the value of what is called the good-will of it." " In the case of Tipping, if anybody had thought of his nostrum, as he had no patent, any discoverer might have sold it." 4. Singleton v. Bolton. 1783. King's Bench. 3 Doug. 293 ; R. Cox, 634. THE plaintiff manufacturing and selling, in succession to his father, a medical preparation under the name of " Dr. Johnson's Yellow Ointment" and the defendant having begun to sell a medicine under the same name, plaintiff nonsuited in an action, and a rule which had been obtained for a new trial discharged. 1 In Amoskeag Man. Co. v. Spear, an injunction in a case in which, at 100, commenting upon this case Judge the present day, one would certainly Duer said : " Lord Hardwicke refused be granted." 2 WORRAL V. HAND. Per Lord Mansfield, C. J. " If the defendant had sold a medicine of his own under the plaintiff's name or mark, that would be a fraud for which an action would lie. But here both the plaintiff and de- fendant use the name of the original inventor, and no evidence was given of the defendant having sold it as if prepared by the plaintiff. The only other ground on which the action could be maintained was that of property in the plaintiff, which was not pretended, there being no patent, nor any letters of administration." 5. Cooper v. Watson. 1 784. -King's Bench. 3 Doug. 4. 1 3. ACTION of covenant on articles of partnership in a brewing business, by which it was covenanted that the partnership should continue for eleven years, with a proviso that either partner should be at liberty to quit the trade and mystery of a brewer, on giving six months' notice to the other, and that the party to whom such notice should be given might be at liberty to continue the trade on his own account. The defendant continuing to trade as a brewer on his own account, after giving the six months' notice : Held, that on the construction of the covenant the defend- ant must quit the business altogether. 6. Worral v. Hand. 1 791. Lord Kenyan, C. /., at N. P. Peake, 105. ACTION of assumpsit for goods sold and delivered, the de- fendant being the administratrix of a publican, and having sold the good-will of the public-house for a sum of money : Held, that the sum which she had received was assets in her hands, though she was tenant at will after the death of the intestate. 3 HAMMOND V. DOUGLAS. 7. Webster v. Webster. May 19, 1791. Lord Thurlow, C. 3 Swanst. 490. MOTION by one of three executors of a deceased person for an injunction to restrain the other two executors, whose part- ner the deceased had been, from continuing to use the name of their deceased partner in their business, refused, on the ground that no liability could thereby be thrown upon the deceased partner's estate, and that the possible fraud upon the public gave the executor no claim against the defendants. 8. Jendwine v. Slade. July 12, 1797. Lord Kenyan, C. J., at N.P. 2 Esp. N. P. C. 572. ACTION to recover damages on the sale of two pictures, copied respectively from Claude Lorraine and Teniers, but sold under a catalogue which described them as by those artists. Held, that the description did not amount to a warranty. "It was impossible to make this the case of a warranty. The pictures were the work of artists some centuries back, and there being no way of tracing the picture itself, it could only be matter of opinion whether the picture in question was the work of the artist whose name it bore, or not. The catalogue only expressed the opin- ion of the vendor, but left the determination to the buyer's own judg- ment." 1 9. Hammond v. Douglas. July 31, 1800. Lord Loughborough, C. 5 Ves. 539. ON exceptions to the master's report, which stated the purchase money of the good-will of a partnership business to belong to the joint estate of the partners, one of whom was dead : Held, that the sum belonged to the survivor. 1 See Power v. Burham, 56 ; Lord Byron v. Johnston, 23. 4 HOGG v. KIRBY. The Lord Chancellor was " clearly of opinion that upon a partner- ship without articles the good-will survives ; and a sale of it cannot be compelled by the representative of the deceased partner, being the right of the survivor, which the law gives him, to carry on the trade : it is not partnership stock of which the executor may compel a division." 1O. Hogg v. Kirby. March 15, 1803. Lord Eldon, C. 8 Ves. 215. THE plaintiff being the proprietor of a magazine called " The Wonderful Magazine" the defendant began to bring out an extremely similar publication, which he described as a " New Series, Improved.' 1 Injunction granted to restrain the wrongful acts of the de- fendant ; and Held, that the fact that the plaintiff's work was incorrectly stated to be " by William Granger, Esq.," did not disentitle the plaintiff to his injunction, but should be left to form an ingredient in the action for damages. It is competent to any person, perceiving the success of a literary work, " to set about a similar work, bond fide his own. But it must be in substance a new and original work, and must be handed out to the world as such." " I shall state the question to be, not whether this work is the same, but, in a question between these parties, whether the defendant has not represented it to be the same ; and whether the injury to the plaintiff is not as great, and the loss ac- cruing ought not to be regarded in equity upon the same principles between them as if it was, in fact, the same work." l 1 In Edmonds v. Benlon, 33, the name Dear Minnie." In Prowett v. Mortimer, " The Old Real John Bull " was held 141, " The Britannia " newspaper was to be an infringement of " The Real combined with "John Bull," under the John Bull." " The Edinburgh Philo- name of " The John Bull and Brit- sophical Journal, conducted by Dr. Brews- annia;" the former publisher of " The ter and Prof. Jameson," was held to be Britannia " was restrained from print- ' infringed by " No. 1 of a New Series of ing " The True Britannia " as a contin- the Edinburgh Philosophical Journal, con- nation of " The Britannia." In Clement ducted by Dr. Brewster." In Chappell v. Maddick, 174, plaintiff's newspaper T. Davidson, 136, the name " Minnie " was called " Bell's Life in London ; " an was used by plaintiffs; an injunction injunction was granted to restrain the was granted to restrain defendants from use of the name " The Penny Bell's using " Minnie Dale," and " Minnie, Life and Sporting News." In Ingram BUNN V. GUY. 11. Bunn v. Guy. November 7, 1803. King's Bench. ! East, 190. CASE sent from Chancery. Held, that a contract entered into by a practising attorney to relinquish his business and recommend his clients to two other attorneys for a valuable consideration, and that he would not himself practise in such business within certain limits, and would permit them to use his name in their firm for a certain time, but without his in- terference, etc., was good in law. v. Stiff, 175, the name " The London Journal " was held to be invaded by " The New London Journal." " The United States Police Gazette " was treated as a fraudulent imitation of " The National Police Gazette," the two papers being of the same general appearance, in Matsell v. Flanagan, 270. " The Bedfordshire Express and General Advertiser for the County," and " The Bedfordshire Express and Gen- eral Advertiser for the Counties of Cam- bridge, Hertfordshire, Huntingdonshire, and Middlesex," were held to conflict, the words " The Bedfordshire Express " being in similar type. In Clowes v. Hogg, 345, " London Society " and " English Society " were held to con- flict, the two publications being much the same in appearance. In Mack v. Fetter, 403, plaintiff's book was called " The Birthday Scripture Text Book ; " it was held to be infringed by " The Children's Birthday Text Book." " The Iron Trade Circular (Rylands')," and " The Iron Trade Circular (Edited by Samuel Griffiths)," were held to conflict in Corns \. Griffiths, 420. In Metzler v. Wood, 587, the plaintiff's book was called "Henry's Royal Modern Tutor for the Pianoforte," and was protected as against " Henry's New and Revised Edition of Jousse's Royal Standard Pianoforte." In Snowden v. Noah, 41, plaintiff's paper was called " The Na- tional Advocate," and defendant's " The New York National Advocate ; " the pa- pers not being of the same size and appearance, an injunction was refused. In Bell v. Locke, 65, the names were " The Democratic Republican New Era," and " The New Era;" in Stephens v. De Conto, 295, " La Cronica " and " El Cronista ;" in both cases the papers did not look alike, and the prayer for relief was denied. In Bradbury v. Bee- ton, 320, " Punch," and " Punch and Judy ; " in Tallcot v. Moore, 478, " The Little Red Book, New Series, \ 876," and " The Red and White Book ; " in The American Grocer Publishing Association v. Grocer Publishing Company, 503, " The American Grocer," and " The Grocer," in all of which instances the court refused to interfere. It is scarcely possible to reconcile the decisions upon this branch of the law of trade-marks, except by recognizing that the American cases, and probably the English, proceed upon the assump- tion that, as a general rule, the appear- ance of the papers is a controlling con- sideration. See Jollie v. Jaques, 105. SHACKLE V. BAKER. 12. Longman v. Tripp. November 21, 1805. Common Pleas. 2 Bos. P. N. R. 67. ACTION of assumpsit. Held, that the right of printing and publishing the Bristol Mercury newspaper passed, on the bankruptcy of the printer and publisher, to his assignees in bankruptcy, as being goods and chattels within 21 Jac. I. c. 19, s. 11, notwithstanding an assignment thereof as a se- curity previously made to a creditor, but not made public. 13. Shackle v. Baker. February 6, 1808. Lord Eldon, C. 14 Ves. 468. MOTIOX for an injunction to restrain the defendants from proceeding at law under a judgment, the plaintiff alleging that the defendants, the good-will of whose business he had bought, were carrying on business in competition with him, after they had persuaded him to omit a covenant against so doing in the agreement for sale, on the ground that it was unnecessary for him to have more than their word, refused. " I cannot see my way to grant an injunction in this case. If it had been nothing more than a purchase of the good-will of this trade, the vendor would be at liberty to set up the same trade in any other situation. Against that the purchaser has the choice of several se- curities. He may rest upon the assurance of the vendor ; he may require a covenant ; but resting upon a covenant, he can have noth- ing more than an action for damages, and the observation that such an action is an extremely imperfect remedy has been repeatedly made. The parties may, therefore, proceed to ascertain for them- selves what shall be the damages from time to time, and, unless they are so awkward as to put that in the shape of penalty instead of liquidated damages, there is a perfect and absolute remedy." 7 FEATHERSTONHAUGH V. FENWICK. 14. Crawshay v. Collins. July 26, 1808. Lord Eldon, C. 15 Ves. 218. PARTNERSHIP suit. P. 27. The Lord Chancellor agreed with the doubt ex- pressed by Sir Samuel Roniilly upon the decision in Ham- mond v. Douglas, 5 Ves. 539, that the good-will of a partner- ship business survived to the surviving partner. 15. Longman v. Winchester. November 23, 1809. Lord Eldon, C. 16 Ves. 269. MOTION to dissolve an injunction which had been granted to restrain the pirating of a court calendar refused. " In the case of Hogg v. Kirby there was no doubt that any person might publish a work of that description which was the subject of that injunction. Each party might publish his own collection, and the articles might happen to be the same, but the one could not ex- cite the public curiosity by copying into his work from that of the other. The defendant in that case had not done that ; but he pub- lished a number of a work as a continuation of the plaintiff's old work, taking the credit which had been acquired by that to his own, and that he was not permitted to do." 16. Featherstonhaugh v. Fenwick. April 18, 1810. Grant, M. R. 17 Ves. 298. PARTNERSHIP suit. Held, that the consequence of the dis- solution of a partnership, where there were no articles pre- scribing the terms, was a general sale and account of the joint property ; and that some of the partners could not, therefore, insist on taking the share of another partner at a valuation, nor that he should remove his property from the premises, so as to deprive him of his share in the good-will, nor retain the benefit of a clandestine renewal to them of the lease of the partnership premises, since that would be to give them the whole benefit of the good-will, but that such renewed lease must be included in the valuation of the partnership property. 8 SEDON V. SENATE. 17. Cruttwell v. Lye. November 21, 1810. Lord Eldon, C. 17 Ves. 335 ; 1 Rose, 123. THE plaintiff having bought from the defendant's assignees in bankruptcy the good-will of his principal carrying business, and a subordinate business of the same kind having been bought back for the defendant at the same time, the latter recommenced business in such a manner as to render a mis- take between the two businesses possible. Motion for an injunction to restrain the defendant from so doing refused, on the ground that the defendant was enti- tled to carry on a similar business, if he did not hold it out as being the same. " There can be no doubt that this court would interpose against that sort of fraud which has been attempted by setting up the same trade in the same place, under the same sign or name, the party giv- ing himself out as the same person." " I cannot say that any of those interests which a bankrupt is sup- posed to have by the effect of the certificate, or in the surplus of his estate after payment of his debts, form a principal upon which he should not be permitted to engage again in the like trade, which in this sort of case is materially distinguished from the same trade. In Hogg v. Kirby, the defendant's magazine, being published as a con- tinuation of the plaintiff's, was the same." " The good-will, which has been the subject of sale, is nothing more than the probability that the old customers will resort to the old place." 18. Sedon v. Senate. 1811. Grant, M. R. Cited 2 V. if B. 220. THE defendant, having sold a medicine to the plaintiff, be- gan to sell another under a similar description, and to put forth advertisements containing verses which had before been used on the original medicine. Injunction granted to restrain the defendant from continu- ing so to do, though the plaintiff had no patent for the medi- cine. 9 DAY V. DAY. 19. Canham v. Jones. June 23, 1813. Plumer, V. C. ofE. 2 V. B. 218. THE plaintiff being the proprietor of a secret medicine called " Velno's Vegetable Syrup" the defendant, who had been in the plaintiff's service, and had there become ac- quainted with a part of the secret, began to make and sell a spurious preparation under the same name. Demurrer to a bill for an injunction to restrain him from so doing allowed, on the ground that there was no exclusive right in a medicine, not protected by patent, such as to pre- vent the sale of a medicine under the same title by another person, the latter not assuming the name and character of the original maker. 1 2O. Scott v. Mackintosh. May 8, 1813. Lord Eldon, C. l V. B. 503. MOTION to revive an injunction to restrain the defendant from proceeding at law refused. " Where a man sells the good-will of a trade and covenants to make it as profitable as he can, the actual profit made is not that which the vendee is bound to take ; but he will have an action of covenant, if he can establish his title to more through the default of the vendor." 21. Day v. Day. 1816. Chancery. Eden on Inf. (ed. of 1821) 314. THE defendant having placed on his blacking certain labels in imitation of those used by the plaintiff on his, injunction granted to restrain the infringement. 1 See Burnett v. Phalon, 277. 10 LORD BYRON v. JOHNSTON. 22. Bozon v. Farlow. July 29, 1816. Grant, M. R. l Mer. 459. BILL by the vendor, for the specific performance of an agreement for the sale of an attorney's practice, dismissed, on the ground that the agreement contained no express stipula- tions enabling the court to carry it into effect on the vendor's part, in return for the purchase money, and that there were no conditions so generally applicable to such transactions as to be capable of being inserted by way of " usual clauses." And Held, that it was doubtful whether such an agreement was in its nature valid, either on the ground of morality or of public policy ; and further, whether, if legally valid, it was of such a nature as to be capable of being enforced in equity. 23. Lord Byron v. Johnston. November 28, 1816. Lord Eldon, C. 2 Mer, 29. THE defendant having advertised for sale certain poems of which he represented the plaintiff to be the author, on motion on behalf of the plaintiff (he being absent abroad), and upon affidavits by his agents of circumstances leading to the belief that the poems were not his work, and the defendant refusing to swear to his belief that they were so, injunction granted to restrain the defendant, until answer or further order, from publishing such poems in the plaintiff's name, or as his work. 1 1 In Archbold v. Sweet, 49, damages In Clemens v. Such, 429, a false use were recovered against defendant for of the nom de plume "Mark Twain" issuing an inaccurate edition of a book was enjoined. falsely purporting to have been pre- On the contrary, in Martin v. Wright, pared by plaintiff. 52, the court refused to restrain a false In Seeley v. Fisher, 67, it was ruled use of the name of a painter; but upon that au action would lie for an untrue the same facts it is probable that the statement that a book was not the work same tribunal would not now decline of the author " while still vigorous." to grant an injunction. In Regina v. In Prince Albert v. Strange, 98, de- Closs, 155, it was, in effect, decided that fendant was restrained from exhibiting the name of a painter applied to his certain etchings and publishing a cata- picture is a trade-mark, logue of them, the etchings having been See Hogg v. Kirby, 10. surreptitiously obtained. 11 HARRISON V. GARDNER. 24. Newbery v. James. March 27, 1817. Lord Eldon, C. 2 Her. 446. ON motion by the defendants, injunction which had been granted to restrain them from violating an agreement not to divulge the secret of a medical preparation dissolved, on the ground that if there were a real secret in question, the court would have no means of interfering to enforce its order. 25. Harrison v. Gardner. July 23, 1817. Plumer, V. C. ofE. 2 Madd. 198. THE defendant having been partner with the plaintiff, and having, on his retirement from the firm, accepted a sum awarded to him by arbitrators in respect of his share of the good-will, and calculated by them upon the understanding that he would not set up the same trade in the same street or its vicinity, injunction granted to restrain him from setting up the same trade in the same street or its vicinity. P. 219. "What is the 'good- will' of a retail shop in a populous neighborhood ? ' Good-will ' is defined by Lord Eldon to be ' the probability that the old customers will resort to the old place.' Oruttwell v. Lye, 17 Ves. 346. A person, not a lawyer, would not imagine that when the good-will and trade of a retail shop were sold, the vendor might the next day set up a shop within a few doors, and draw off all the customers. The good-will of such a shop, in good faith and honest understanding, must mean all the benefit of the trade, and not merely a benefit of which the vendor might the next day deprive the vendee. The authorities, however, are strong to show that the sale of a good-will does not impart restraint, and that a person selling the good-will of a business, for however large a con- sideration, is not prevented from setting up the trade. In Shackle v. Baker, 14 Ves. 468, it was held that the sale of a good-will leaves the vendor at liberty to set up the same trade in any other situation. But here the trade is carried on in the same situation." 12 FABK V, PEARCE. 26. Williams v. Williams. (1.) August 6, 1817. Lord Eldon, C. 3 Mer. 157. OK motion by the defendant, injunction which had been granted to restrain the defendant (among other things) from divulging a secret in respect of a medicine, dissolved, on the affidavit of the defendant denying the truth of the facts as stated upon the plaintiff's affidavit, and on the ground that there was no secret. And Held, that it was doubtful whether a court of equity, in its jurisdiction to decree specific per- formance of an agreement, could interfere by injunction in such a case. " I do not think that the court ought to struggle to protect this sort of secrets in medicine." 1 27. Kennedy v. Lee. November 17, 1817. Lord Eldon, C. S Mer. 441. PARTNERSHIP suit. Held, that an agreement to buy up his partner's share in a nursery gardener's business did not bind the purchasing partner to pay for the outgoing partner's share in the good-will. And Held, that, unless there were some provisions in the agreement with respect to the good-will, and preventing the outgoing partner from carrying on business in a specified locality, the latter would be at liberty to carry on the same trade " where, and when, and with whom he pleased." 28. Farr v. Pearce. February 10, 1818. Leach, V. C. ofE. 3 Madd. 74. SUIT by the personal representative of A., who had entered into articles of partnership with the defendant in his surgeon's practice, and had paid a premium. The defendant having sold the good-will of the practice, after the death of A. : Held, upon the construction of the ar- 1 See Burnett v. Phalon, 277. 13 GEE V. PBITCHARD. tides, that A.'s representative was not entitled to a share of the money produced by the sale of the good- will. " In this case the articles define the interest which the representa- tives of a deceased partner are to take, and there is no provision which gives them the benefit of the good-will of the concern. But if the gen- eral question had arisen here, I think it would have been difficult to maintain that where a partnership is formed between professional persons as surgeons, and one dies, the other is obliged to give up his business and sell the connection for the joint benefit of himself and the estate of his deceased partner. When such partnerships deter- mine, unless there be stipulations to the contrary, each must be at liberty to continue his own exertions ; and where the determination is by the death of one, the right of the survivor cannot be affected. Such partnerships are very different from commercial partnerships." 29. Williams v. Williams. (2.) June 10, 1818. Lord Eldon, C. 2 Swanst. 253 ; 1 Wils. 473. THE plaintiffs having bought up the interest of the defend- ant, one of the partners in their coaching business, and the defendant having undertaken not to be concerned in any coach running a specified route, or prejudicial to the partnership business, but having subsequently begun to run a coach in violation of the agreement, injunction granted to restrain klin from so doing. 30. Gee v. Pritchard. July 17, 1818. Lord Eldon, C. 2 Swanst. 402. INJUNCTION granted to restrain the publication of private letters. P. 413. " The publication of a libel is a crime, and I have no jurisdiction to prevent the commission of crimes, except, of course, such cases as belong to the protection of infants, where a dealing with an infant may amount to a crime, an exception arising from that peculiar jurisdiction of this court." 14 EDMONDS V. BENBOW. 31. Yovatt v. Winyard. May 15, 1820. Lord Eldon, C. 1 Jac. tf W. 394. THE plaintiff, being the proprietor of the secret recipes for certain veterinary medicines, having taken the defendant into his employ under an agreement by which he was to have a salary and be instructed in the business generally, but was not to be taught the secrets, the defendant secretly acquainted himself with the secrets, and, setting up for himself, made up the medicines and sold them with directions for use copied from the plaintiff's. On motion by the plaintiff, injunction granted to restrain the defendant from using or communicating the secret recipes, except as to the treatment of animals then in his care, and from printing and publishing the directions, on the ground that the defendant had become acquainted with the secrets by breach of trust. 32. Baxter v. Conolly. July 13, 1820. Lord Eldon, C. 1 Jac. W. 576. MOTION for an injunction, to restrain an action at law brought to recover an annual payment due by way of pur- chase money for good-will, refused. P. 580. " The court certainly will not execute a contract for the sale of a good-will ; at the same time, it will not enjoin against any proceeding at law under such an agreement. Suppose, for instance, there is a contract for the good-will of a shop ; it cannot be conveyed, and the court would say, ' Go and make what you can of it at law ; if you can recover, very well, we won't prevent you ; if you cannot, very well again, we won't assist you.' " 33. Edmonds v. Benbow. February 20, 1821. Leach, V. C. of E. Seton, 3d ed. 905 ; 4th ed. 238. THE plaintiff being the proprietor and publisher of a news- paper called The Real John Bull, injunction granted to re- 15 BRYSON V. WHITEHEAD. strain the publication by the defendants of a newspaper called The Real John Bull, or The Old Real John Bull, and of any other newspaper as a continuation of the plaintiff's news- paper. 1 34. In re The Edinburgh Correspondent Newspaper. May, 1822. Ct. of Sess. Ct. of S ess. Cos. 1st Ser. I. (New ed. 407, n.) THE plaintiffs being the proprietors of a newspaper enti- tled The Edinburgh Correspondent, interdict granted to re- strain the publication of a new paper under that name. Per Lord Balgray. "The partners under the existing firm, as publishers of the former paper, have a right to prevent any paper from being published under such title or firm as may mislead the public into a belief that it is the former paper." 2 35. M'Cormick v. M'Cubbin. July 4, 1822. Ct. of Session. Ct. of Sess. Cos. 1st Ser. 1. 541 (New ed. 496.) ON the death of a person entitled to one half of the copy- right and good-will of a newspaper called The Ayr Adver- tiser, bill of suspension and interdict presented by the persons entitled to the other half (who had themselves refused to pur- chase the share of the deceased proprietor) to restrain the lat- ter's executors from offering the half share for sale refused, on the ground that the copyright and good-will of a news- paper were a species of property capable of transmission by the proprietor to his representatives, and that the latter were entitled to the benefit to be derived from a sale of the share. 36. Bryson v. Whitehead. November 25, 1822. Leach, V. C. of E. l S. fr S. 74 ; 1 L. J. Ch. 42. IN a suit by the vendor of the good-will of his dyeing busi- ness, with the exclusive use of a secret mode of dyeing, spe- 1 See Hogg v. Kirby, 10. * Ibid. 10. 16 GREEN V. FOLGHAM. cific performance of the agreement between the vendor and purchaser granted. " Although the policy of the law will not permit a general re- straint of trade, yet a trader may sell a secret of business, and re- strain himself generally from using that secret. Let the master, in settling the deed which is to give effect to this agreement, introduce a general covenant to restrain the use of the secret for twenty years, and a covenant limited in point of locality, as to carrying on the or- dinary business of a dyer, both parties being willing that the agree- ment should be so modified." 37. Cook v. Collingridge. January 27, 1823. Lord Eldon, C. Jac. 607 ; 1 L. J. Ch. 74; Colbjer on Partnership (2d /.), 215. PARTNERSHIP suit. On petition in this cause (see Coll- yer, ubi sup.') subsequent to the decision of the above date : Held, that the partnership having expired by mere efflux- ion of time, the former copartners were under no obligation, after the sale of the business, to refrain from carrying on the same kind of business, or uniting in a new partnership with any other persons, and that notice of this must be inserted in the particulars of sale of the partnership property and effects. 38. Green v. Folgham. June 10, 1823. Leach, V. C. ofE. l S. S. 398; 1 L. J. Ch. 203. THE secret recipe of a medical preparation, called " Dr. Johnson's Ointment for the Eyes" having been settled upon the parents of the parties in the suit, and after the death of the survivor of them, to be sold for the benefit of the plain- tiffs and defendant, the mother, being the surviving parent, communicated the secret to the defendant for the benefit of himself and the plaintiffs, his younger brothers and sisters. In a suit by the younger brothers and sisters, after the mother's death, Held, that the defendant held the secret upon the trusts of the settlement, and must account for the profits 2 17 SYKES V. SYKES. since his mother's death (an allowance being made him for his trouble), and that an issue must be directed to ascertain the value of the secret. " If this secret could be made a subject of sale, the plaintiffs would be next entitled to ask from the court that a sale should be directed accordingly. But inasmuch as the court has no possible means either to communicate this secret to a purchaser with cer- tainty, or to protect him in the enjoyment of it, a sale becomes im- practicable. But although the court cannot direct a sale, it has the power of taking a course which, in point of advantage, will be equiv- alent to the plaintiffs. It can inquire what would be the value of this secret to sell, provided it could be made the subject of sale ; and the annual profits which have actually been made by the sale of the oint- ment from the death of the mother will be a fair criterion by which that value may be estimated." 39. Constable & Co. v. Brewster. July 6, 1824. Ct. of Session Ct. of Sess. Cas. 1st Ser. III. 215 (New ed. 152). THE plaintiffs having employed the defendant for five years as one of the editors of The Edinburgh Philosophical Journal, which was described on the title-page as " conducted by Dr. Brewster and Professor Jameson," and the defendant having, at the end of the five years, separated from the plaintiffs and announced the publication of " No. 1 of the New /Series of the Edinburgh Philosophical Journal, conducted by Dr. Brewster" interdict granted to restrain the publication of a work under that title. 1 40. Sykes v. Sykes. November 11, 1824. King' 's Bench. 3 B. S? Cr. 541 ; 5 D. $ R. 292 ; 3 L. J. K. B. 46. THE plaintiff having been in the habit of marking his shot- belts, powder-flasks, etc., with the words " Sykes 1 Patent " (though the patent which had been taken out had been 1 See Hogg v. Kirby, 10. 18 COSLAKE V. TILL. held to be invalid), the defendants copied this mark on their own goods. Action on the case. Held, by Bayley, J., at the trial, and afterwards by the Court of K. B., that the defendants had no right to mark their goods as and for the plaintiff's goods, and that the fact that the immediate purchasers knew who was the maker made no difference. Per Abbott, C. J. " It was established most clearly that the de- fendants marked the goods manufactured by them with the words ' Sykes' Patent,' in order to denote that they were of the genuine manufacture of the plaintiff ; and although they did not themselves sell them as goods of the plaintiff's manufacture, yet they sold them to retail dealers for the express purpose of being resold as goods of the plaintiff's manufacture. I think that is substantially the same thing." 1 41. Snowden v. Noah. January, 1825. N. Y. Chancery : Sandford, C. Hopk. 347 ; R. Cox, 1. MOTION by a person who had purchased the right to pub- lish a newspaper called The National Advocate in the city of New York, for an injunction to restrain the vendor from start- ing a paper in that city called The New York National Ad- vocate, refused, on the ground that the names were suffi- ciently distinct to prevent deception. 2 42. Coslake v. Till. August 4, 1826. Lord Gifford, M. R. 1 Russ. 376. SUIT by the purchaser for the specific performance of an agreement by a tenant at will of a public-house for the sale of the possession, trade, and good- will of the house at a fixed sum, and of the stock and furniture at a valuation, one of the terms 1 See Edelstonv. Viet:. 119 ; Leather 2 See Hogg v. Kirby, 10. Cloth Co. v. American Leather Cloth Co. 223. 19 CHISSUM V. DEWES. being that possession should be taken and the money paid on a given day. Held, (1.) that time was of the essence of the contract, and that the plaintiff not having been ready with the purchase money till the day after the given day, specific performance could not be granted ; (2.) that it was doubtful whether a court of equity would enforce the performance of a contract for the purchase of a subject matter, of which the good-will of a pub- lic-house, unconnected with any fixed interest in the premises, formed the principal part. 43. Dakin v. Cope. June 1, 1826 ; April, 1827. Plumer, M. R. ; Lord Giffbrd, M. R. ; Lord Eldon, C. 2 Russ. 170. IN a suit by the executors of a publican, with whom the defendant had entered into an agreement for the purchase of the leasehold public-house and the good-will and licenses connected therewith, specific performance of the agreement granted. 44. Delondre v. Shaw. April 16, 1828. Shadwell, V. C. ofE. '2 Siin. 237. SUIT commenced jointly by Delondre, the inventor, and Pelletier, the compounder, by agreement with Delondre, of " Sulphate of Quinine," to restrain the imitation of the la- bels and seals used on the bottles of quinine. Demurrer allowed, on the ground that the parties who asked joint relief were not entitled to joint relief, Pelletier not being shown to have any interest in the labels and seals in question. 45. Chissum v. Dewes. July 21, 1828. Leach, M. R. 5 Russ. 29. THE unexpired term in a house, and the good-will of the business there carried on, having been sold in a creditor's suit, with the consent of an equitable mortgagee, and having 20 DAY V. BINNING. brought a price less in amount than the debt due to the equitable mortgagee : Held, that the equitable mortgagee was entitled to the whole of the purchase money, whether arising from the value of the good-will, or from the value of the lease apart from the good-will. " The good-will of the business is nothing more than an advantage attached to the possession of the house ; and the mortgagee, being entitled to the possession of the house, is entitled to the whole of that advantage. I cannot separate the good-will from the lease." 46. Spicer v. James. November, 1830. Leach, M. R. Collyer on Partnership, Id ed. 104. THE administrator of an attorney having carried on the business of the intestate until the latter's son came of age, upon which he transferred the business to the latter, the lat- ter afterwards became insolvent. Suit by one of the creditors against the administrator for an account of the profits of the business while managed by him, and insisting that he was indebted to the intestate's estate in respect of the good-will of the business, dismissed, on the ground that the good-will of a trade of a personal nature as that of an attorney was not a subject of administration. 47. Day v. Binning. January, 21, 1831. Shadwell, V. C. of E. C. P. Coop. 489; 1 Leg. Obs. 205. THE plaintiffs being manufacturers of blacking, which they sold in bottles labelled, among other things, with the words " Manufactured by Day $ Martin" the defendants began to sell other blacking in similar bottles, bearing similar labels, except that for the words " Manufactured by Day $ Martin " were substituted the words " Equal to Day Martin's" " equal to " being in very small letters. On motion by the plaintiffs, injunction granted to restrain 21 ARCHBOLD V. SWEET. the defendants from using labels imitated from the plain- tiffs'. 48. Henry v. Price. March 29, 1831. Shadwell, V. C. of E.l Leg. Obs. 364. THE plaintiff preparing calcined magnesia, in succession to his father, and selling it in bottles of a special shape, labelled " Henry's Calcined Magnesia, Manchester" the defendant began to prepare magnesia, and to sell it in similar bottles, similarly labelled. On motion by the plaintiff, injunction granted to restrain the defendant from continuing to infringe the plaintiff's rights. 1 49. Archbold v. Sweet. February 9, 1832. Lord Tenterden, C. J., at N.P. lM.fy Rob. 162; 5 C. if P. 219. THE publisher of a legal work issued an inaccurate edition of the work, falsely purporting to have been prepared by the author. Action on the case by the author. Held, that he was entitled to recover damages for the in- jury done to his reputation by the defendant's conduct, not- withstanding that the defendant was the owner of the copy- right. " The question is for the jury, whether the third edition in the form in which it is put forth would be understood by purchasers to be by the plaintiff; if purchasers who paid reasonable attention to its contents would not so understand it, the verdict must be for the defendant ; if they would, for the plaintiff. " The nearest resemblance to the present case seems to me to be furnished by those cases in which a person, having a reputation for the manufacture of a particular commodity, but not protected by a patent, brings an action against another for selling an inferior article in his name. The cases are not exactly alike : there the sale of the 1 See Williams v. Johnson, 150. 22 GOUT V. ALEPLOGLU. commodity is affected, here the character of the author ; but they bear a close analogy to each other." 1 5O. Blofeld v. Payne. January 12, 1833. King's Bench. ! B. & Ad. 410 ; 1 N. & M. 353 ; 2 L. J. K. B. N. S. 68. THE plaintiff being a manufacturer of metallic hones, which he sold in certain special envelopes containing directions for use, etc., the defendant sold other hones in similar envelopes. Action on the case. Held, that although no specific dam- age was proved, and the jury found the defendant's articles to be equal in quality to the plaintiff's, the plaintiff was still entitled to some damages for the invasion of his right. Lord Den man, C. J., told the jury at the trial that " even if the defendant's hones were not inferior, the plaintiff was entitled to some damages, inasmuch as his right had been invaded by the fraudulent act of the defendant." Per Littledale, J. " The act of the defendant was a fraud against the plaintiff, and if it occasioned him no specific damage, it was still to a certain extent an injury to his right." 51. Gout v. Aleploglu. April 15, 1833. Shadwell, V. C. ofE. 6 Beav. 69, n. ; 5 Leg. Obs. 495 Chilly Gen. Pr. 721. THE plaintiff having long manufactured watches for the Turkish and Levantine market, and marked them with his name, the Turkish word " Pessendede " (meaning " warrant- ed "), a sprig, etc., the defendants began to manufacture and export watches similarly marked. On motion by the plaintiff, Held, that the plaintiff had acquired, by long previous usage, the exclusive right to desig- nate his watches by that Turkish word in Turkish characters, 1 See Lord Byron v. Johnston, 23. 23 KANSOME V. BENTALL. and that an injunction must be granted to restrain the de- fendants from infringing the plaintiff's rights. 1 52. Martin v. "Wright. August 9, 1833. Shadwdl, V. C. of E. 6 Sim. 297. THE defendant exhibited a large painting, which he repre- sented to be a copy of a picture by the plaintiff. Suit for an injunction and account. Held, that equitable relief could not be granted until the plaintiff's right had been established at law. " With respect to the defendant representing his copy as Martin's picture, it must be either better or worse : if it is better, Martin has the benefit of it ; if worse, then the misrepresentation is only a sort of libel, and this court will not prevent the publication of a libel. If Martin had exhibited his picture as a diorama, then he might have been entitled to an injunction." 2 53. Ransome v. Bentall. December 11, 1833. Shadwdl, V. C. ofE. 3 L. J. Ch. N. S. 161. THE plaintiffs having been in the habit of marking their patent ploughshares with the words "Ransome's Patent," and the letters " H. H." and also with a number denoting size, as " 6," the defendant began to sell ordinary plough- shares stamped with a similar mark. Injunction granted to restrain the defendant from continu- ing to infringe. " If the defendant had been in the habit of marking his ploughs with only ' H. H. 6,' and if I could see the marks so placed that no person could be deceived in purchasing the ploughs, then I might re- fuse the injunction as to that part of the prayer. But here the de- fendant wants me to decide ab ante that no possible use of If. H. 6 ' may have the effect of misleading persons, and therefore the whole prayer must be granted." 1 Of this case the author of a highly on Trade-marks, 223. Certainly the esteemed work on trade-marks says : word would not be broadly protected " The court did not decide that ' Pes- as such to-day. sendede' was a trade-mark." Browne 2 See Lord Byron v. Johnston, 23. 24 POWER v. BARHAM. 54. B. v. Ogden. November 29, 1834. C. C. C. : Bolland, B. Park, J. 6 C. & P. 631. Ox an indictment under 13 Geo. III. c. 52, s. 14, and 38 Geo. III. c. 69, s. 7, for unlawfully transposing the Hall- mark of the lion passant from one gold ring to another : Held, that the language of the act being express, the prisoner must be convicted, notwithstanding that both rings were genuine, and that the prisoner had acted without any fraudulent intention. A pardon was subsequently granted. 55. Lewis v. Langdon. May 30, 1835. Shadwell, V. C. of E. 7 Sim. 421 ; 4 L. /. Ch. N. S. 258. AFTER the dissolution of the firm of " Brookman $ Lang- don " (makers of lead pencils, which they stamped with their name) by the death of one of the partners, the surviv- ing partner, J. Lewis, took a new partner, and began to carry on business as " James Lewis $ Co., Successors to Brookman $ Langdon" and the defendant, one of the execu- tors of the deceased partner, subsequently began to carry on business as " Brookman & Langdon." On motion by the surviving partner in the old firm and his new partner, injunction granted to restrain the defendant from carrying on business as " Brookman $ Langdon " until after the trial of an action at law. 56. Power v. Barbara. November 26, 1835; January 14, 1836. Coleridge, J., at N. P. 7 C. if P. 356 : 1 M. if Rob. 507. King's Bench. 4 Ad. E. 473 ; 6 N. tf M. 62 ; 1 H. W. 683 ; 5 L. J. K. B. N. S. 88. THE plaintiff bought from the defendant certain pictures which he said were by Canaletto, and which were described 25 KNOTT V. MORGAN. in the bill of parcels as " Four Pictures, Views in Venice Canaletto" but which turned out not to be by that painter. Action of assumpsit. Held, that it was for the jury to say what was the effect of the words in the bill of parcels, and whether they implied a warranty of genuineness, or conveyed only a description or an expression of opinion. 1 57. Knott v. Morgan. July 27, August 19, 1836. Lord Langdale, M. R.; Lord Cottenham, C. 2 Keen, 213. THE omnibuses of the London Conveyance Company being painted, and their servants clothed, in a special and distinc- tive manner, the defendant began to run omnibuses similarly painted, with servants similarly clothed. On motion by the plaintiffs, injunction granted to restrain the defendant from imitating the plaintiffs' line of omnibuses. Per Lord Langdale, M. R. " It is not to be said that the plaintiffs have any exclusive right to the words ' Conveyance Company,' or ' London Conveyance Company,' or any other words ; but they have a right to call upon this court to restrain the defendant from fraudu- lently using precisely the same words and devices which they have taken for the purpose of distinguishing their property, and thereby depriving them of the fair profits of their business by attracting cus- tom on the false representation that carriages, really the defendant's, belong to and are under the management of the plaintiffs." In Woollam v. Ratdiff, 1 H. & M. 259-261, Wood, V. C., remark- ing upon the above case, said that there " the words ' Conveyance Company] the green omnibus, etc., were held sufficient together to entitle the plaintiffs to an injunction. The defendant might have had those words painted on a yellow omnibus without objection, and so of the other resemblances ; the wrong lay in their accumulation, not in any one of them alone." 2 1 See Jendwine v. Slade, 8. had an exclusive right. The court 2 This case, perhaps, marks a pro- found in substance that the defendant nounced advance in the law of trade- had imitated the appearance of the marks. It differs from earlier cases in plaintiffs' coaches, besides using the that relief was granted although it was words by which its line was known, not made to appear that the plaintiff It is quite apparent that the words 26 THOMSON V. WINCHESTER. 58. Hitchcock v. Coker. February 6, 1837. ExcJi. Ch. Q Ad. E. 438-454 ; 1 N. Sf P. 796-814 ; 2 H. fr W. 464-471 ; 6 L. J. Ex. N. S. 266-269. ACTION of assumpsit. Per Tindal, C. J. " The good- will of a trade is a subject of value and price. It may be sold, bequeathed, or become assets in the hands of the personal representative of a trader." 59. Thomson v. Winchester. March, 1837. Mass. Sup. Ct. 19 Pick. 214; R. Cox, 7. THE plaintiff selling certain medicines of his own prepara- tion under the name of " Thomsonian Medicines," the defend- ant began to sell inferior medicines under the same name. Action on the case. " Conveyance Company " were descrip- tive and could not be monopolized ; but the defendant painted his coaches so that they would not, under ordinary circumstances, be distinguished from the plaintiffs'. There was an obvious attempt to trade upon the plaintiffs' reputation, a constructive fraud coupled with pecuniary loss, which was made the ground for the issuance of a broad injunction. The case is not the same as Stone v. Carlin, where the use of the words ''Irving Hotel " upon coaches and badges was restrained, or Marsh v. Billings, where the use of the words "Revere Souse " was enjoined. In these cases and others there was an exclusive right to the use of the names of the hotels, out of which flowed the exclusive right to use the name on coaches, badges, etc. The principle laid down in Knott v. Morgan was distinctly reiterated by Lord Langdale in Croft v. Day, 76, who concluded an opinion as follows : "My decision does not depend on any peculiar or exclusive right the plaintiffs have to use the names of Day & Martin, but upon the fact of the de- fendant's using those names in connec- tion with certain circumstances, and in a manner calculated to mislead the public, and to enable the defendant to obtain, at the expense of Day's estate, a benefit for himself, to which he is not in fair and honest dealing entitled." The same view has been repeatedly expressed by the ablest English and American judges, and has long been settled law. In McLean v. Fleming, 580, Judge Clifford, delivering the unanimous opin- ion of the Supreme Court of the United States, said : " Nor is it necessary, in order to give a right to an injunction, that a specific trade-mark should be infringed ; but it is sufficient that the court is satisfied that there was an intent on the part of the resporident to palm off his goods as the goods of the complainant." See Lee v. Haley, 325 ; Williams v. Johnson, 150. 27 THOMSON V. WINCHESTER. Held, (1.) that a plaintiff who sold medicines under a cer- tain name was entitled to recover at least nominal damages from another person who had sold other medicines under that name, or had sold them, or placed them in the hands of others to be sold, " as and for " the plaintiff's medicines ; (2.) but that there was no exclusive right to compound and sell an un- patented medicine ; (3.) that there was no exclusive right in the name, if it had become generic and descriptive of a class of medicines ; (4.) that the sale of inferior medicines under a name which had become generic and descriptive gave no right to another person selling medicines under the same name to recover damages, though his medicines had become discred- ited by the inferiority of the medicines sold under the same name ; (5.) that a new trial must be granted. Per Shaw, C. J. " The right to make and to sell is common to all, if no deceit is practised by one, in falsely assuming the name and credit of another." 1 1 The use of descriptive words for there can be no foundation for an ex- purposes of description is a common elusive right to use. right which courts have uniformly re- A number of the later cases proceed fused to disturb; but the fact that a upon principles which are distinctly word is technically descriptive will not different. They assume that the fact always justify its employment. It is that a word has been truthfully used thought the cases disclose a well-de- by a defendant that it is as true of A.'s fined conflict of principle. The weight goods as it is of B.'s is not in itself of authority is to the effect that a de- enough ; they go below the surface, and scriptive term may be employed by a finding that the truth is used as a cloak defendant, even though it has long been for fraud, unmask and restrain the associated with plaintiff's goods ; and wrong. They rest, not upon the as- it has even been held that this is true sumption that there must be a right of where the term may have been selected property, but upon the broad principle by the defendant to enable him to trade that equity abhors fraud, and will for- upon plaintiffs reputation. The phi- bid the continuance of that in which losophy of this doctrine is, that the fraud and injury are coexistent factors. word having a natural signification See Lee v. Haley, 325; Williams v. which is as true in its application to Johnson, 150. one man's product as it is to another's, 28 PIDDING V. HOW. 6O. Pidding v. How. June 21, 1837. Skadwell, V. C. o/E. S Sim. 477; 6 L. J. Ch. N. S. 345. THE plaintiff having sold tea under the name of "Howqucfs Mixture" and in packages marked in a special manner, the defendant began to sell tea under the same name, in similar packages. On motion by the defendant to dissolve an injunction, which had been granted ex parte to restrain him from infring- ing the plaintiff's rights : Held, that the plaintiff was primd facie entitled to an in- junction ; but that the plaintiff having in his advertisements made a number of false representations to the public, with respect to the origin, composition, and value of his tea, the injunction ought not to have been granted until he had estab- lished his right at law, and must be dissolved, liberty being given to bring an action. " It is a clear rule, laid down by courts of equity, not to extend their protection to persons whose case is not founded in truth." 1 1 Where the interposition of a court moved by defences of an artificial char- of equity is sought, the defence of in- acter. The rule is, probably, nowhere equitable conduct on the part of the more clearly stated than in the case of complainant is a familiar one, and has Meriden Britannia Company v. Parker, been the subject of much discussion. 409, decided by the Supreme Court There can be no doubt that where the of Connecticut. It was there said : trade-mark or label of the plaintiff in- " Courts of equity will not protect a volves the use of what may be justly trade-mark that deceives the public, regarded as an actual or constructive We do not suppose, however, that that misrepresentation, such as is really cal- deception need be of such a character culated to mislead the public, or where as to work a positive injury to purchas- the article is ma/um in se, a court of ers, nor, on the other hand, that every equity will leave the parties where it erroneous impression which the public or finds them. a portion of the public may receive will be There is little uncertainty in the ap- sufficient to destroy the validity of a plication of the rule if the misrepresen- trade-mark. The question is, whether tation or fraud is clear ; but it is often .... the representation is of such a difficult to determine whether a depart- character as to defeat the petitioner's ure from the strict letter of the truth claim to protection." is to be regarded as fraudulent. It is The classes of misrepresentation safe to say that courts have been dis- which have been passed upon are nu- posed to require nothing more than merous. substantial truth, and to refuse to be It has been repeatedly held that a 29 MOTLEY V. DOWNMAN. 61. Motley v. Downman. July 5, 1837. Lord Cottenham, C. 3 My. if Cr. 1; 6 L. J. Ch. N. S. 308. THE plaintiff having been in the habit, while lessee of cer- tain works at Carmarthen, of marking the boxes of tin plates false use of the word "patent" will dis- the manufacturers of the goods have entitle a plaintiff to relief. See Leather Cloth Co. v. American Leather Cloth Co. 223. On the other hand, it has been held in a number of instances that the use of the same word as a descrip- tive designation, after the patent has expired, is not fraudulent. See Edel- ston v. Vick, 119. A misstatement as to the place of manufacture of an article is undoubt- edly such a misrepresentation as will defeat a suit in equity, and this is often true where the misstatement is of the simplest character. In Hobbs v. Fran- cais, 191, the use of the word "London," upon an article made in New York, was held to be fatal to the plaintiff's suit. In Palmer v. Harris, 308, the use of the word "Habana," upon cigars manufactured in America, was made the ground for dismissing the bill. In Connell v. Reed, 673, a false use of the words "East Indian " was held to be fraudulent. There are, however, many instances where geographical names used in a fictitious sense have been protected as trade-marks. The words "Persian," 78, " Chinese," 109, " Liverpool," 400, " Dublin," 565, with others, have been treated as valid, where there was no attempt to deceive, and the words as employed had not a geographical mean- ing. These cases do not conflict with the class of which Newman v. Alvord, 282 (which see), is an illustration ; where it is ruled that there can be no strictly exclusive right to use a geo- graphical word in a geographical sense. Another line of decisions is that where the names of persons other than been used upon the label. Of this class Partridge v. Menck, 91, is a leading il- lustration, it there appearing that the plaintiff omitted his own name and used that of a person who had formerly been in his employ. The injunction was refused chieMy on this ground, al- though the difference in the labels was not without weight. Similar decisions have been made in a number of other cases; but here, as in the case of the use of the word " patent," well-defined distinctions have been recognized. In Meridtn Britannia Co. v. Parker, supra, plaintiff's mark was "Rogers Bros. A ;'' the court treated the defence as insuffi- cient, it appearing that the words were not used with any fraudulent intent, and that the manufacture of the com- pany's goods was superintended by two brothers named Rogers, who had been connected with the firm of Rogers Bros., which firm had formerly used the mark. In Dale v. Smithson, 195, Thomas Nelson Dale used the name Thomas Nelson & Co. on his labels, which was held to be an innocent use that did not prejudice his right. The weight of authority is to the ef- fect that the bond fide use of the name of a predecessor in business as a trade' mark is not to be regarded as fraudu- lent if the plaintiff is carrying on busi- ness at the establishment in connection with which the name had been used. In England the rule is well settled (Leather Cloth Co. v. American Leather Cloth Co. 223) ; and in the Supreme Court of the United States, in Kidd v. Johnson, 669, the learned author of the opinion, speaking of the right of a 30 MOTLEY V. DOWNMAN. there made with the letters " M. (7.," and having afterwards removed his establishment forty miles off, where he continued an injunction was refused because plain- tiff advertised his compound as free from all mineral and poisonous sub- stances, whereas it contained an injur- ious mineral. In Wolfe v. Burke, 434, it was held to be a fraud to represent what was substantally an alcoholic be- verage as a medicine. But in Dixon Crucible Company T. Guggenheim, 331, a statement that the article was prepared from " pure car- buret of iron," which seemed to be technically untrue, was treated as of no moment ; and in Colman v. Crump, 579, the Court of Appeals of New York de- clined to attach any significance to the fact that the plaintiffs had used the same designation upon mustard which con- tained a foreign substance as they had used upon mustard which was strictly pure. In Apollinaris Co. v. Moore, 678, it was sought to defeat plaintiffs' right to an injunction by showing that it had used the word " natural " upon a water which it was urged was artificially pre- pared, but the defence was held to be insufficient, the court deciding that the word " natural " as used was certainly substantially true. From the foregoing and other exam- ples it is not difficult to formulate the conclusion that, in proceedings in eq- uity, in the absence of special condi- tions, the question of misrepresentation is always one of fact. The principle on which the cases have been decided has not been departed from ; it may appear to have been very differently interpreted ; but where the plaintiff has failed, the controlling consideration has invariably been that to sustain his mark would be to countenance what was either substantially untrue or morally wrong. The above discussion is to be taken as having relation to proceedings in equity or such as are tantamount there- to. party to dispose of the use of his name in connection with the establishment where the goods were made, said : " We do not think there can be any reason- able doubt." So in Dixon Crucible Co. v. Guggenheim, 331, the court ignored the defence that the words, "Manufact- ured by Joseph Dixon $ Company," had been used while the article was made by the plaintiff corporation. A differ- ent rule may prevail where the manu- facture of the goods has been divorced from the original establishment. See Carmichael v. Latimer, 521. The use of the name of a person, who has ceased to be connected with an es- tablishment in the ordinary transaction of business, in such a way as to induce the belief that his connection has not terminated, will, however, usually be treated as a substantial misrepresenta- tion. But in Holmes, frc. Co. v. Holmes, Booth $ Atwood Alan. Co. 340, a Con- necticut case, where a corporate name was used which imported that partners who had retired were still connected with the company, the court granted an injunction. It is not improbable that the existence of state enactments has been an important factor in the de- cision of some of the American cases in which this question has been consid- ered. See Hegeman $ Co. $-c. 677. A substantial misrepresentation of the character of the article in connec- tion with which the trade-mark is used is sufficient to prevent a recovery. In Estcourt v. Estcourt Hop Essence Corn- pan;/, 449, the court said : " It is im- possible not to see that these substances are introduced, recommended, and sold for the purpose of enabling brewers to supply to the public a liquid which they may represent to the public as be- ing made with pure hops, when, in fact, it is not so made. It is not the prov- ince of the court to protect speculation of this kind." In Laird v. Wilder, 418, 31 VICKERY V. WELCH. to use the same mark, the defendants, subsequent lessees of the Carmarthen works, began to mark their boxes with the letters " M. G 7 .," and to call themselves " The M. '. GV Tin Plate Company" Injunction, which had been granted on motion by the plain- tiff, to restrain the defendants from the use of the initials and name, dissolved, liberty being given to bring an action, on the ground that there was at least a substantial question whether the plaintiff had not obtained the use of the mark only as a tenant of the works at Carmarthen, to which locality it was really attached, and that in all such cases the court of equity would not act otherwise than as ancillary to the court of law, the question being one of a legal right. 62. Vickery v. Welch. October, 1837. Mass. Sup. Ct. 19 Pick. 523. THE defendant, having entered into a bond with the plain- tiff to convey to him his chocolate mill, together with his ex- clusive right or secret of manufacture, subsequently declined to communicate the secret to the plaintiff, or to covenant not to communicate it to others. Action of debt on the bond. Held, that the defendant ought to have conveyed the ex- clusive right, with covenants to communicate the secret to the plaintiff, and not to others, and that the defendant's refusal had constituted a breach of the bond. " It was contended for the defendant that this obligation was void as being in restraint of trade. But we cannot suppose that the case comes within that doctrine. The defendant claims to operate by a secret art. The public are not prejudiced by the transfer of it to the plaintiff. If it were worth anything, the defendant would use the art and keep it secret ; and it is of no consequence to the public whether the secret art be used by the plaintiff or by the defendant." 32 DOUGHERTY v. VAN NOSTRAND. 63. Millington v. Fox. March 24, 1838. Lord Cottenham, C. 3 My. Cr. 338. THE plaintiffs and their predecessors in business having for many years carried on business as manufacturers of steel, which they stamped with the names and letters " Crowley" " Crow- ley Millington" " J. H." the defendants marked other steel with the same marks and sold it so marked. Injunction granted to restrain the defendants from contin- uing to use those marks, though they had acted without any fraudulent intention : but Held, that no costs could be given, since the plaintiffs had persevered with the suit after the de- fendants had offered to give them all to which they were en- titled. " I see no reason to believe that there has, in this case, been a fraudulent use of the plaintiffs' marks. It is positively denied by the answer, and there is no evidence to show that the defendants were even aware of the existence of the plaintiffs as a company man- ufacturing steel In short, it does not appear to me that there was any fraudulent intention in the use of the marks. That circumstance, however, does not deprive the plaintiffs of their right to the exclusive use of those names." 64. Dougherty v. Van Nostrand. July 15, 1839. N. Y. Chancery: Hoffman, A. V. C. Hoff. 68. PARTNERSHIP suit. Held, that the good-will of the business and lease of the partnership premises did not survive to the surviving partners, but were partnership property. " Upon a sale of the lease of trading premises, the good-will of course enters into the value of the lease, and enhances the purchase money. In truth, in a lease of a trading establishment it constitutes a large part of the value." 3 33 SEELEY V. FISHER. 65. Bell v. Locke. January, 1840. N. Y. Chancery: Walworth, C. 8 Paige, 75 ; 7?. Cox, 11. THE plaintiffs being the proprietors and publishers of a newspaper called The Democratic Republican New Era, the defendant began to publish another paper under the name of The New Era. Injunction to restrain the defendant from publishing his newspaper under that name refused, on the ground that there was no real probability of deception. 1 66. Whittaker v. Howe. January 18, 1841. Lord Langdale, M. R. 3 Beav. 383. THE defendant, a solicitor, having sold his practice to the plaintiff, and agreed not to practise as a solicitor in Great Britain for twenty years, nevertheless continued to practise as such. On motion by the plaintiff, Held, that the agreement was not invalid, and that an injunction must be granted to re- strain the defendant from practising in any part of Great Britain, and from endeavoring to induce the clients of the firm to cease to employ the firm. 67. Seeley v. Fisher. February 5, 1841. Lord Cottenham, C. ll Sim. 581 ; 10 L. J. Ch. N. S. 274 ; 21 Leg. Obs. 474. THE plaintiff being the owner of the copyright of Mr. Scott's Commentary on the Bible, and having brought out a fifth edition of the work, after the author's death, with his last improvements and corrections, the defendants reprinted the fourth edition, and in their advertisements reflected on the plaintiff's work as not containing the work of the author while still vigorous. Injunction, which had been granted on motion by the 1 See Hogg v. Kirby, 10. 34 MORISON V. SALMON. plaintiff, dissolved, on the ground that the statements made by the defendants did not represent their work to contain any matter which was the plaintiff's exclusive property, under his copyright, and that, so far as they disparaged the plaintiff's work they merely amounted, if untrue, to a libel, for which the proper remedy was an action at law. 1 68. Morison v. Salmon. January 14, 30, 1841. Common Pleas. 2 Man. G. 385 ; 2 Scott N. R. 449 ; 10 L. J. C. P. 91. THE plaintiffs being the proprietors and compounders of " Morison 's Universal Medicines," which they sold in boxes, inclosed in wrappers bearing those words, the defendants sold other medicines in similar wrappers. Action on the case. A verdict having been found for the plaintiff, with one far- thing damages, and the judge having certified for costs : On motion for a new trial, Held, (1.) that the allegation that the defendant had used wrappers similar to those used by the plaintiffs, for the purpose of causing his medicines to be mistaken for the plaintiffs', disclosed a sufficient cause of action ; (2.) and that, inasmuch as a right was in question, the judge had power at the trial to certify for costs, although the jury gave only one farthing damages. Per Erskine, J. " The ground of action is not that the defendant prepared and sold medicine in imitation of ' Morison's Universal Medicine,' but that he prepared and sold it under a false represen- tation that it wast he article prepared and sold by the plaintiffs, whereby the plaintiffs were prevented from selling large quantities of their medicine. This is a good cause of action." Per Maule, J. " The right is of a well-known description. It is not a general right to carry on a particular trade, but a right to pro- tection which a party has who uses certain marks, and to the use of which he may have as good a right as though he were a patentee." a 1 See Lord Byron v. Johnston, 23. 2 See Burnett v. Phalon, 277. 35 WILLETT V. BL AN FORD. 69. Ex parte Thomas. July 21, 1841. Court of Review in Bankruptcy : Sir J. Cross 2 Mont., D. De G. 294 ; 10 L. J. Bank'cy, 75; 5 Jur. 967. ON petition in the bankruptcy of hotel keepers : Held, that the good- will of a bankrupt's trade, so far as it was personal, remained with the bankrupt ; so far as it was local, passed to the assignees in bankruptcy ; and that, in the case in question, owing to the special circumstances, the as- signees had not acquired any interest in the good-will. " It is easy to conceive there to be such a thing as local good-will, arising from the habit which customers have been in of frequenting the same place. There is another kind of good- will which may be called personal, and this has been said to be incapable of sale. But there may be a good-will, like that in the present case, which is partly personal and partly local." 70. Willett v. Blanford. January 12, 1842. Wigram, V. C. 1 Hare, 253; 11 L. J. Ch. 182; 6 Jur. 274. PARTNERSHIP suit. Held, that in ascertaining the inter- est to which the estate of a deceased partner was entitled in the profits of the business after his death, his capital not hav- ing been taken out, a variety of considerations must be re- garded ; but that where the business consisted substantially of good- will, the interest would usually be determined by the shares in the business. P. 270. " The whole, or the substantial part, of a trade may con- sist in good-will, leading to renewals of contracts with old connections. In such a case it is the identical source of profit which operates both before and after dissolution ; and this appears to me to be the ground- work of Lord Eldon's reasoning in Cook v. Collingridge." 36 CRAWSHAY V. THOMPSON. 71. Thornbury v. Bevill. May 2, 1842. Kniyht Bruce, V. C. 1 Y. if C. Ch. 554; 6 Jur. 407. SPECIFIC performance of an agreement between two so- licitors refused, on the ground of want of acceptance by the plaintiff. P. 564. " This is not quite a case of dissolution of partnership, but something between a dissolution of the partnership and a pur- chase of the business ; and notwithstanding the case of Sunn v. Guy, from which I do not mean to express dissent, decided as it was by judges of high authority, I am not prepared to say that it is fit that a court of equity should enforce an agreement between two solic- itors, that one on retiring from the business shall permit the other to carry on business in his name. Whether such an agreement be or be not within the strict policy of the law, it may be doubtful whether this court ought to assist it." 72. Crawshay v. Thompson. May 26, 1842. Common Pleas. 4 Man. if G. 357 ; 5 Scott N. R. 562 ; 11 L. J. C. P. 301. THE plaintiff, an iron-master, marking his iron with the letters " W. C" in an oval, the defendants, also iron-masters and merchants, sold other iron marked with the letters " W. 0." in an oval. Action on the case. A 'verdict having been found for the defendants, on motion for a new trial : Held, (1.) that it was necessary for the plaintiff to prove fraudulent intention, and that the only evidence of this being the alleged resemblance, it had been properly left to the jury to say, first, whether there was such a resemblance as to de- ceive an ordinary purchaser, and injure the plaintiff, and sec- ond, whether there was fraudulent intention on the part of the defendants ; (2.) that notice which had been given to the defendants by the plaintiff, that they were using a mark cal- culated to deceive, was evidence for the jury to consider with 37 PERRY V. TRUEFITT. regard to the defendants' intention, but could not of itself alter the legal rights of the parties, since it only informed the defendants of what was the plaintiff's opinion. 1 73. Perry v. Truefitt. December 9, 1842. Lord Langdale, M. R. 6 Beav. 66; 1 L. T. 384. THE plaintiff being the compounder of " Perry's Medicated Mexican Balm" the defendant began to make up and sell another compound under the name of " Truefitt? a Medicated Mexican Balm." Motion by the plaintiff for an injunction to restrain the defendant from infringing his rights refused, with liberty to the plaintiff to bring an action, on the ground of misrepre- sentations contained in the plaintiff's show-cards as to the origin and substance of his composition. "I think that the principle on which both the courts of law and of equity proceed, in granting relief and protection in cases of this sort is very well understood. A man is not to sell his own goods under the pretence that they are the goods of another man ; he can- not be permitted to practise such a deception, nor to use the means which contribute to that end. He cannot, therefore, be aljowed to use names, marks, letters, or other indicia, by which he may induce purchasers to believe that the goods which he is selling are the man- ufacture of another person. I own it does not seem to me that a man can acquire a property merely in a name or mark ; but whether he has or not a property in the name or the mark, I have no doubt 1 The importance of bearing in mind empted from damages and costs, the the substantial difference between a continuance of the use may be justly suit in equity and an action at law is restrained, since it involves a violation made apparent by this case. of a right of property that, if persisted In an action at law it is, probably, in, with a knowledge of the fact, would essential to prove an intent to deceive ; be fraudulent." Duer, J., in Amoskeag in a suit in equity, whatever may be Co. v. Spear, 100. true of the earlier cases, it is now set- This view has long been accepted tied that the intent is of no moment as as incontestable ; if a trade-mark is affecting the right to an injunction, property, it is plain that the fact that "Even where no fraud can be justly the defendant did not know of plain- imputed, where the use of the name or tiff's ownership is immaterial, except style originated in mistake, and not in as affecting the question of damages, design, although the party may be ex- 38 ENGLAND V. CURLING. that another person has not a right to use that name or mark for the purposes of deception, and in order to attract to himself that course of trade, or that custom which, without that improper act, would have flowed to the person who first used, or was alone in the habit of using, the particular name or mark." 1 . 74. England v. Downs. December 17, 1842. Lord Langclale, M. R. 6 Beav. 269 ; 12 L. J. Ch. 85 ; 6 Jur. 1075. THE widow of a licensed victualler, who was carrying on the business, assigned her household goods, stock in trade, etc., prior to a second marriage, to trustees, upon trusts for herself and her daughters, excluding the second husband. Suit by the daughters, after their mother's death, for the execution of the trusts of the settlement. Held, that, under the circumstances of the case, the good- will passed to the trustees of the deed, and not to the hus- band ; as being incident to the stock and license, and not to the premises on which the business was carried on. "This, in one way of looking at it, is the good-will. It is the chance or probability that custom will be had at a certain place of business, in consequence of the way in which that business has been previously carried on." 75. England v. Curling. July 20, 1843 ; July 15, 1844. Lord Langdale, M. R.8 Beav. 129. PARTNERSHIP suit. Injunction granted to restrain the defendant Curling, be- tween whom, the plaintiff, and another, there was a subsisting agreement for a partnership for a certain term, from carrying on business with the other defendants under the old firm name of " Goodwin, Curling $ Co.," and from opening let- ters, etc., addressed to or intended for the old firm, and from publishing notices of the dissolution of the existing partner- ship until the expiration of the term for which it was to last. 1 See Pidding v. How, 60. 39 CROFT v. DAY. 76. Croft v. Day. (1.) December 18,1843. Lord Larigdale, M. R. 7 Beav. 84. THE plaintiffs being the executors of the surviving partner in the firm of " Day Martin," of 97 High Holborn, black- ing manufacturers, who sold their blacking in bottles labelled with the name and address of the firm, the defendant ob- tained the authority of a man named Martin to use his name, and began to sell blacking in bottles labelled with the name and address "Day $ Martin, 90 Holborn Hill" in imita- tion of the genuine labels. On motion by the plaintiffs, injunction granted' to restrain the defendant from using labels or show-cards calculated to produce deception. " It has been very correctly said that the principle in these cases is this that no man has a right to sell his own goods as the goods of another. You may express the same principle in a different form, and say that no man has a right to dress himself in colors, or adopt and bear symbols, to which he has no peculiar or exclusive right, and thereby personate another person, for the purpose of inducing the public to suppose, either that he is that other person, or that he is connected with and selling the manufacture of such 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. " It is perfectly manifest that two things are required for the ac- complishment of a fraud such as is here contemplated. First, there must be such a general resemblance of the forms, words, symbols, and accompaniments as to mislead the public ; and, secondly, a sufficient distinctive individuality must be preserved, so as to procure for the person himself the benefit of that deception which the general re- semblance is calculated to produce. To have a copy of the thing would not do ; for though it might mislead the public in one respect, it would lead them back to the place where they were to get the gen- uine article, an imitation of which is improperly sought to be sold. For the accomplishment of such a fraud it is necessary, in the first instance, to mislead the public ; and in the next place, to secure a 40 TAYLOR V. CARPENTER. benefit to the party practising the deception, by preserving his own individuality." 1 77. Croft v. Day. (2.) July, 1844. Lord Lanydale, M. R. 28 Leg. Obs. 378. ON motion to commit the defendant in Croft v. Day (1) for breach of the injunction, it appearing that the plain- tiffs had taken no notice of a form of label suggested by the defendant, which he proposed to adopt in place of the one against the use of which the injunction had been granted, and the plaintiffs alleging that the suggested alterations were merely colorable : Held, that if the defendant was willing to make a proper distinction, and the plaintiffs refused to attend to his propo- sal, the court itself would determine whether the proposed distinction was sufficient. 78. Taylor v. Carpenter. (1.) October, 1844. U. S. C. C. Dt. of Mass. : Story and Spragiie, JJ. 3 Story, 458 ; R. Cox, 14. THE plaintiffs being English manufacturers of thread, which they sold on spools labelled on the top with the words " Taylor's Persian Thread" and on the bottom with the name " J. $ W. Taylor, Leicester," the defendant, an Ameri- can citizen, made up similar spools of inferior thread and sold them similarly labelled. Injunction granted to restrain the defendant from infring- ing the plaintiffs' rights, notwithstanding their alienage. Per Story, J. " It is suggested that the plaintiffs are aliens. Be it so. But in the courts of the United States, under the Constitution and laws, they are entitled, being alien friends, to the same protection of their rights as citizens. There is no pretence to say that if a sim- ilar false imitation and use of the labels of a citizen, put upon his own manufactured articles, had been designedly and fraudulently per- petrated and acted upon, it would not have been an invasion of his 1 See Knott v. Morgan, 57 ; Williams v. Johnson, 150. 41 HINE v. LART. rights, for which our law would have granted ample redress. There is no difference between the cases of a citizen and that of an alien friend, where his rights are openly violated." l 79. Coats v. Holbrook. July, 1845. N. Y. Chancery: Sandford, A. V. C. 2Sandf. Ch. 586; 3 N. Y. Leg. Obs. 404; R. Cox, 20. THE plaintiffs being Scotch thread manufacturers, who sold their thread on spools labelled (among other things) with the words "J". P. Coats' Best Six Cord,'" the defendants, Amer- ican commission merchants, made up inferior thread in a sim- ilar manner and similarly labelled. Suit for an injunction. Held, (1.) that the conduct of the defendants was intended and calculated to deceive ; (2.) that the fact that the plaintiffs were aliens did not deprive them of their right to an injunc- tion ; (3.) that it was no defence to say that the purchasers from the defendants were informed that their article was spu- rious, since the statement did not pass to subsequent purchas- ers ; (4.) that the injunction must, therefore, be granted ; (5.) that with respect to the costs up to bill filed, the defendants must pay them, there being no necessity for the plaintiffs to have given them notice before filing their bill, and that the defendants must also pay the subsequent costs, an offer of submission by them having been imperfect. 8O. Hine v. Lart. January 12, 1846. Shadwell, V. C. ofE. WJur. 106; 7 L. T. 41. THE plaintiffs being hosiers, who sold a special kind of black stockings made on purpose for them, and marked with the word "Ethiopian" and six white lines, the defendants, also hosiers, began to sell stockings similarly marked. Motion to dissolve an injunct.on which had been granted 1 The language of Judge Story in sented with a knowledge that it had this case had the effect of setting at no foundation in reason or authority, rest a defence which was probably pre- 42 RODGERS v. NOWILL. to restrain the infringement of the plaintiffs' marks refused ; and Held, that although persons other than the plaintiffs, viz. the personal representatives of a deceased partner in the plain- tiffs' firm, might have some interest in the marks, yet the plaintiffs had a sufficient interest in them to be entitled to sue. 81. Pierce v. Pranks. January 13, 1846. Knight Bruce, V. C. 15 L. J. Ch. 122; 10 Jur. 25. THE plaintiff dealing in certain kinds of brushes, which he stamped with the name and address, "Smyth's, Bond Street" the defendant sold other brushes similarly marked. Suit for an injunction. Held, (1.) that the injunction must be granted ; (2.) that the plaintiff had not exceeded his right in filing his bill with- out previous communication with the defendant, and that the plaintiff was entitled to the costs of the suit, notwithstanding that the defendant said he would have submitted if applica- tion had been made to him ; (3.) but that the defendant was entitled to whatever costs were occasioned by a particular un- founded allegation in the bill as to private marks. 82. Rodgers v. Nowill. June 30, 1846; November 2, 1847; December 9, 1847. Wigram, V. C. 6 Hare, 325. Common Pleas. 5 C. B. 109 ; 1 7 L. J. C. P. 52 ; 11 Jur. 1039 ; 10 L. T. 88. THE plaintiffs being cutlers, who stamped their cutlery with the name " J. Rodgers $ Sons," with a crown and " F". R" the defendants began to sell cutlery stamped with the same marks and the word " Sheffield." Suit for an injunction. Held, that the bill must be retained for a year, leave being given to bring an action, the defend- ants claiming the name as their own firm name. Action on the case. A verdict having been found for the plaintiffs, with forty shillings damages, on motion for a new. trial : 43 TAYLOR v. CARPENTER. Held, that the judge at the trial was right in directing the jury that the action was brought to try a right, and not to recover substantial damages, and also in leaving to them the following questions : (1.) Whether the mark as used by the defendants was calculated to deceive ordinary persons ; (2.) whether they had adopted the particular form of deceit charged ; (3.) whether they had acted with fraudulent inten- tion ; and that no allegation of special damage was required, and that the motion for a new trial must be refused. On motion by the plaintiffs, injunction granted to restrain further infringements, with the costs of the proceedings at law and in equity, except the costs of the evidence in equity. 83. Taylor v. Carpenter. (2.) October, 1846. U. S. C. C. Dl. of Mass. : Woodbury and Sprague, JJ. 2 Wood, fr M. 1; R. Cox, 82 ; 9 L. T. 514. THE plaintiffs, an English firm of thread manufacturers, marking their thread in a special manner, the defendant, an American citizen, sold other thread marked in imitation of the plaintiffs'. Action on the case. A verdict having been returned for the plaintiffs, with substantial damages, on motion for a new trial : Held, (1.) that the existence of a foreign custom to infringe American trade-marks, if established, would not debar an American court from protecting foreign trade-marks ; (2.) that it was no defence that the defendant's goods were equal in quality to the plaintiffs' ; (3.) that it was no defence for the defendant to say that he had informed the immediate purchasers that the mark on the goods was not genuine ; (4.) that it was no defence to plead that the plaintiffs had delayed, unless the delay amounted to a license to use the marks, or an abandonment to the public ; (5.) that actual damage having been suffered by loss of sales by the plaintiffs, they were en- titled to recover more than nominal damages ; (6.) but that 44 TAYLOR V. CARPENTER. exemplary damages should not be given in an action for in- fringement of trade-mark. 1 84. Taylor v. Carpenter. (3.) December, 1846. N. Y. Chancery: Sandford, C. N. Y. Ct. of Errors. 2 Sandf. Ch. 603; 11 Paige, 292; R. Cox, 45. THE defendant, an American citizen, sold spurious thread in America labelled with the same marks as those used by the plaintiffs, English thread manufacturers, on their " Taylor's Persian Thread." Injunction to restrain the defendant's infringement granted and affirmed. And Held, (1.) that the trade-mark of an alien would be protected in the American courts ; (2.) that the quality of the thread on which the spurious marks were placed was immaterial; (3.) that it was no defence for the defendant to say that he had informed the immediate purchaser that the marks were spurious. Per Lott, Senator. " The object of the complainants' bill is to prevent the commission of a fraud, not only on them and to the prej- udice of their rights, but on the public, by the sale of an article with an imitation of their trade-mark thereon, in such a manner as to deceive purchasers, and through the false representations thus held out to deprive the owners thereof of the profits of their skill and enterprise." Per Spencer, Senator. " The right claimed by the complainants does not partake in any considerable, if in any degree, of the nature and character of a patent or copyright The defendant is at full liberty to manufacture and vend the same kind of thread to any ex- tent he pleases, and whenever he chooses. He is only required to depend for success upon his own character and fame He is only required not to pirate upon the rights of others." 1 See McLean v. Fkming, 580. 45 ROUTH V. WEBSTER. 85. Spottiswoode v. Clarke. December 11, 1846. Lord Cottenham, C. 2 Ph. 154; 1 Coop. 254; 10 Jur. 1043; 8 L. T. 230-271. THE plaintiff being the proprietor and publisher of " The Pictorial Almanack" the defendant published another alma- nac in a very similar wrapper, under the name of " Old Moore's Pictorial Almanack" Injunction, which had been granted by the V. C. of E. to restrain the defendant from the publication of his almanac, dissolved, the defendant keeping an account, and the plain- tiff having liberty to bring an action, on the ground that the court was dealing with a legal right, and that the conse- quences of an erroneous view of the legal right would be very serious to the defendant. 1 1 Coop. 264. The possibility of acquiring an exclusive right in a general word, such as " Pictorial," " Illustrated," denied. 2 Ph. 157. "Take a piece of steel: the mark of the manufact- urer from whom it comes is the only indication to the eye of the cus- tomer of the quality of the article. So it is of blacking, or any other article of manufacture, the particular quality of which is not discern- ible by the eye. But these cases are quite different from the present case, in which, if you are deceived at all, it is not by the eye." 86. Routh v. Webster. January 28, 1847. Lord Langdale, M. R. 10 Beav. 561; 11 Jur. 701; 9 L. T. 491. THE defendants, being the provisional directors of a joint stock company called " The Economic Conveyance Company" published a prospectus in which the plaintiff's name appeared as a trustee of the company, without his authority. On motion by the plaintiff, injunction granted to restrain the defendants from using the plaintiff's name, without his authority, in their prospectus, or so as to identify him with the company. 1 See Hogg v. Kirby, 10. 46 LONDON, ETC., ASSURANCE SOCIETY v. LIFE ASSURANCE CO. 87. Franks v. Weaver. March 10, 1847. Lord Langdale, M. R. 10 Beav. 297; 8 L. T. 510. THE plaintiff being the inventor and compounder of " Franks' Specific Solution of Copaiba" which he sold in wrappers containing that title, directions for use, testimonials, etc., the defendant began to sell another preparation, which he called " Chemical Solution of Copaiba" and placed in wrappers in which he made use of the plaintiff's name and testimonials in such a manner as to lead, primd facie, to the belief that they were applicable to the defendant's preparation, though on a close examination it appeared that they were used by him in praise of the genuine article, with which his own was compared. On motion by the plaintiff, injunction granted to restrain the defendant from acting so as to deceive. 88. The London and Provincial Law Assurance Society v. The London and Provincial Joint Stock Life Assur- ance Company. November y, 1847. Shad well, V. C. of E. 17 L. J. Ch. 37; 11 Jur. 938; 10 L. T. 127. MOTION for an injunction to restrain the defendants from using the first three words of the title of their company re- fused, and an action directed to be brought, on the ground that no deception or damage was probable, and that there was a doubt as to a sufficient length of user by the plaintiffs. " The principles, I apprehend, are clear, that the court will always have regard to this, whether there has been such an exclusive right to a name on the part of the plaintiffs as to justify the court in inter- fering in a summary way against the defendants ; and the court will consider whether, takiug all the names together, it is or is not ap- parent that there is such a deceptive quality as is likely to produce the injury complained of." 47 PARTRIDGE V. MENCK. 89. Guinness v. Ullmer. November 11, 1847. Shadwell, V. C.ofE. lO L. T. 127. THE plaintiffs being porter brewers at Dublin, the defend- ants, who were engravers, engraved blocks or plates in imita- tion of those from which the labels placed on the plaintiffs' porter were printed. On motion by the plaintiffs, injunction granted to restrain the defendants from making or disposing of any such blocks or plates. " If a thing contains twenty-five parts, and one only is taken, such an imitation will be sufficient to contribute to a deception, and the law will bold those responsible who have contributed to the fraud." 90. Fowle v. Spear. November, 1847. U. S. C. C. E. Dt. of Perm.: Kane, J. 7 Penn. L. J.176-, R. Cox, 67. MOTION for injunction to restrain the use of wrappers, la- bels, and bottles, similar to those in which a quack medicine called " Wistar's Baham of Wild Cherry " was contained, re- fused, on the ground of misrepresentations by the plaintiff as to the quality and properties of his medicine. 91. Partridge v. Menck. January, 1848. N. Y. Chancery : Sandford, V. C. ; Walworlh, C. N. Y. Ct. ofApp. 2 Sandf. Ch. 622; 2 Barb. Ch. 101; 1 How. App. Cos. 558; R. Cox, 72. ORDER dissolving an injunction which had been granted on motion by the maker of " A. Grolsh's Friction Matches" to restrain the sale of matches in boxes labelled "Menck Backus' Friction Matches, late Chemist to A. Grolsh" affirmed, on the ground, (1.) that ordinary purchasers would not be de- ceived ; (2.) that the plaintiff was disentitled by reason of his continuing to use the name of Golsh, to whose business he had succeeded, after the latter had ceased to be connected with the business. 48 CLARK V. FREEMAN. Per "Walworth, C. " The question in such cases is not whether the complainant was the original inventor or proprietor of the article made by him, and upon which he now puts his trade-mark, or whether the article made and sold by the defendant under the complainant's trade-mark is an article of the same quality or value. But the court proceeds upon the ground that the complainant has a valuable interest in the good-will of his trade or business ; and that, having appropriated to himself a particular label, or sign, or trade-mark, indicating to those who wish to give him their patronage that the article is manu- factured or sold by him or by his authority, or that he carries on business at a particular place, he is entitled to protection against a defendant who attempts to pirate upon the good-will of the complain- ant's friends or customers, or the patrons of his trade or business, by sailing under his flag without his authority or consent." 1 92. Purser v. Brain. January 21, 1848. Shadwell, V. C. ofE. ll L. J. Ch. 141. THE plaintiffs, trading under the name of " The London Manure Company" the defendants began to trade as ''The London Patent Manure Company" and to issue circulars imi- tated from the plaintiff's. On motion by the defendants, an injunction which had been granted on motion by the plaintiffs, to restrain the defendants from the use of their name, and from issuing such circulars, dissolved, and an action at law directed, on the ground that there might be a question as to the plaintiffs' having acquired an exclusive right by length of user, which ought to be con- sidered by a jury. 93. Clark v. Freeman. January 31, 1848. Lord Langdale, M. R. ll Beav. 112; 17 L. J. Ch. 142; 12 Jur. 149; 11 L. T. 22; 35 Leg. Obs. 436. THE plaintiff, Sir James Clark, being an eminent physi- cian, who did not compound or sell pills, the defendant began i See Pidding v. How, 60. * 49 BULLOCK V. CHAPMAN. to compound and sell a quack medicine as " Sir J. Clarke's Consumption Pills" Motion by the plaintiff for an injunction to restrain the defendant from so doing refused, on the ground that there was no right of property to be protected, and that the court had no jurisdiction to stay the publication of a libel, the rem. edy for which must be sought at law. 94. Fleming v. Newton. February 17, 1848. Ct. of Session. Ct. of Sess. Cas. 2d Ser. VIII. 677. House of Lords 1H.L. C. 363. THE respondent's name was placed upon the register of protests for non-acceptances of bills of exchange. Interdict to restrain, so far as the respondent's name was concerned, the publication of a copy of the register granted by the Court of Session, but rescinded by the House of Lords, on the ground that the question of defamation was one for a jury. Per Lord Cottenham, C. (1 H. L. C. 376). "The liberty of the press consists in the unrestricted right of publishing, subject to the responsibilities attached to the publication of libels, public or private. But if the publication is to be anticipated and prevented by the inter- vention of the Court of Session, the jurisdiction over libels is taken from the jury, and the right of unrestricted publication is destroyed." 95. Bullock v. Chapman. March 1, 1848. Knight Bruce, V.C. 2 De G. Sf Sm. 211; 12 Jur. 738 ; 11 L. T. 326. MOTION by the plaintiff for an injunction to restrain a banking company from returning his name to the Stamp Office, under 7 & 8 Viet. c. 113, among the names of the shareholders in the company, he alleging that he had ceased to be a shareholder, refused, on the ground that the plaintiff's case was not clearly proved, and that, in any case, the appre- hended damage would not be irreparable. 50 PRINCE ALBERT V. STRANGE. 96. "Wedgwood v. Smith. 1848. Shadwell, V. C. ofE. THE plaintiff being a manufacturer of pottery, which he marked with his name, " Wedgwood" the defendant began to sell other pottery marked " Wedgwood" or " Wedgewood" Injunction granted to restrain the defendant from infring- ing the plaintiff's mark. 97. Scoville v. Toland. 1848. U. S. C. C. Dt. of Ohio. 6 West. L. J. 84. THE defendant imitated the labels used by the plaintiff on certain medicines prepared by him. Injunction to restrain the defendant from so doing refused, on the ground that the case was not within the jurisdiction of the Circuit Court ; and Held, that such labels were not capa- ble of protection by means of the provisions of the Copyright Acts, though an application of them to spurious medicines would be restrained on general grounds by the proper court. 98. Prince Albert v. Strange. January 16, February 8, June 2, 1849. Knight Bruce, V. C. 2 De G. if Sm. 652; 13 Jur. 45-507 ; 12 L. T. 367; 13 L. T. 341; 37 Leg. Obs. 276. Lord Cottenham, C. l Mac. if G. 25 ; 1 H. if Tw. 1 ; 8 L. J. Ch. 120 ; 13 Jur. 109 ; 12 L. T. 441 ; 37 Leg. Obs. 394. THE defendant published a catalogue of certain etchings executed by the plaintiff, some copies of which had been ob- tained surreptitiously and by breach of trust, the catalogue being so framed as to lead to the belief that the defendant was acting with the plaintiff's consent. On motion by the plaintiff, injunction granted to restrain the exhibition of the etchings and publication of the cata- logues ; and Held, that the Court of Chancery would exercise an original and exclusive jurisdiction to restrain the publica- tion, not only of unpublished compositions which the author 51 COFFEEN V. BBUNTON. desired to keep private, but also of any catalogue or descrip- tion of them made and published without his consent. 1 99. Coffeen v. Brunton. (1.) May, 1849. U. S. C. C. Dt. of Ind. : McLean, J. 4 McLean, 516; R. Cox, 82. THE plaintiff being the inventor and proprietor of a medical preparation which he called " The Chinese Liniment" the defendant began to make and sell another preparation under the name of " The Ohio Liniment" in bottles labelled with directions, etc., similar to those on the plaintiff's bottles, and made other misrepresentations calculated to deceive, in ad- vertisements and handbills. On motion by the plaintiff injunction granted to restrain the defendant from using such directions and making such misrepresentations ; and Held, (1.) that without a patent there could be no exclusive right of manufacture ; (2.) that where a trade-mark was infringed some damages must be given at law, though no specific injury was proved. " It would seem that an intentional fraud is not necessary to en- title the plaintiff to protection, but that where the same mark or label is used which recommends the article to the public by the established reputation of another who sells a similar article, and the spurious ar- ticle cannot be distinguished from the genuine one, an injunction will be granted, although there was no intentional fraud. And I am in- clined to think that this is a correct view of the principle, for the in- jury will be neither greater nor less by the knowledge of the party." a 1 See Lord Byron v. Johnston, 23. purpose was to trade upon the plain- 2 This was not a trade-mark case, in tiff's reputation. The injunction re- the strict sense of the term, but was de- strained the defendant from using la- cided upon the ground that the defend- bels, directions, advertisements, or hand- ant had imitated the descriptive parts bills calculated to lead the public to of the plaintiff's label in such manner suppose that his " Ohio " liniment was as to create an impression that his lini- the " Chinese " liniment made by the ment was the liniment made by the plaintiff. plaintiff. The court said, that " from The case of Falkiriburg v. Lucy, 296, the body of the label it was plain that decided by the Supreme Court of Cali- the defendant had so assimilated the fornia, was a similar case. The court language employed by the plaintiff" there dissolved an injunction which had that it could not be doubted that the been granted in the court below, be- 52 AMOSKEAG MANUFACTURING CO. V. SPEAR. 10O. The Amoskeag Manufacturing Co. v. Spear. October, 1849. N. Y. Super. Ct. : Duer, J. 2 Sandf. S. C. 599 ; R. Cox, 87. THE plaintiff company manufacturing cotton tickings, which they sold with a printed label affixed on which the let- ters " A. C. A." were prominent, the defendants began to sell a similar article similarly labelled. On motion by the defendants to dissolve an injunction, which had been granted to restrain the defendants from using labels similar to those of the plaintiffs, or having thereon the letters " A. C. A. :" Held, (1.) that a partial imitation would be restrained, if it was calculated to deceive ; (2.) that a gratuitous acquies- cence by the owner of a trade-mark in its use by another was in the nature of a license which was revocable and might be withdrawn ; (3.) that the labels in question were, as a whole, calculated to deceive, and that the injunction must be main- tained as to them, but that as far as it regarded the letters "A. C. A.," which were merely indicative of quality, and could not be appropriated, it must be dissolved until an ac- tion at law should result in the plaintiff's favor. " The manufacturer's trade-mark is an assurance to the public of the quality of his goods, and a pledge of his own integrity in their manufacture and sale. To protect him, therefore, in the exclusive use of the mark that he appropriates is not only the evident duty of a court as an act of justice, but the interests of the public, as well as cause there was no technical trade-mark that in probably every instance where involved, the case having been brought the plaintiff has not prevailed it has under a statute of California providing been because of a misconception in for the protection of technical trade- bringing his suit, or because he has marks. It is not improbable that had failed in his proofs, the plaintiff proceeded at common law, This line of cases is not to be con- a diiferent conclusion would have been founded with the class of which Amos- arrived at. There may seem to be a keag Co. v. Spear, 100, is the leading conflict of opinion among the cases as American example, where labels ap- to the right of a person to be protected proximating nearer to technical trade- against deception by a simulation of marks have been passed upon and pro- descriptive matter, but it will be found tected. 53 AMOSKEAG MANUFACTURING CO. v. SPEAR. of the individual, require that the necessary protection shall be given." " The owner of an original trade-mark .... has no right to an exclusive use of any words, letters, figures, or symbols which have no relation to the origin or ownership of the goods, but are only meant to indicate their name or quality." " In an imitation of the original mark upon an article, or goods of the same description, the name of the proprietor may be omitted, another name, that of the imitator himself, may be substituted ; but if the peculiar device is copied, and so copied as to manifest a design of misleading the public, the omission or variation ought to be wholly disregarded. Its object, we may be certain, was not to communicate the truth, but to escape the penalty of falsehood. A fraud is in- tended, an unlawful gain is meant to be realized, but it is believed or hoped that an injunction may be avoided, and a claim for profits or damages be repelled. The fraud, however, if a court of equity is true to its principles, will be suppressed, and its fruits be intercepted or restored. My conclusions on this branch of the subject are : that an injunction ought to be granted whenever the design of a person who imitates a trade-mark, be his design apparent or proved, is to impose his own goods upon the public as those of the owner of the mark, and the imitation is such that the success of the design is a probable or even possible consequence ; and that an injunction must be granted whenever the public is in fact misled, whether intention- ally or otherwise, by the imitation or adoption of marks, forms, or symbols which the party who first employed them had a right to ap- propriate ; and this for the plain reason, that when a right of prop- erty has been thus acquired it must be protected." 1 1 This case is justly regarded as the in effect held that to constitute in- leading American adjudication, espe- fringement there must be such a simi- cially as defining the doctrine of in- larity as would mislead a person exer- fringement. It is not going too far to cising exceptional caution, would have say that the doctrines of the opinion given form to a permanent digression, have remained unshaken ; there have had it been possible. Although the been departures from time to time, opinion in that case was by a court of some of them of a notable character, last resort, the decision was singularly but the principles formulated by Judge unproductive of effect. It was followed Duer have not been permanently varied, in the Merrimac Manufacturing Com- The case of Partridge v. Menck, 91, de- pany v. Garner, 134, in the General cided by the court of last resort of Term of the Supreme Court of New New York in 1848, contemporaneously York a few years later, and to some with the principal case, in which it was extent in other adjudications, but not, 54 RUDDEROW V. HUNTINGTON. 1O1. Rudderow v. Huntington. October, 1849. N. Y. Super. Ct.3 Sandf. S. C. 252 ; R. Cox, 106. THE plaintiffs, auctioneers, having sold certain boxes of what was supposed to be, and was labelled as, "Thompson's Nor is it necessary, in order to give a right to an injunction, that a specific trade-mark should be infringed ; but it is sufficient that the court is satisfied that there was an intent on the part of the respondent to palm off his goods as the goods of the complainant. " Difficulty frequently arises in deter- mining the question of infringement; but it is clear that exact similarity is not required, as that requirement would always enable the wrong-doer to evade responsibility for his wrongful act. " Colorable imitation, which requires careful inspection to distinguish the spurious trade-mark from the genuine, is sufficient to maintain the issue Where the similarity is sufficient to convey a false impression to the public mind, and is of a character to mislead and deceive the ordinary purchaser in the exercise of ordinary care and cau- tion in such matters, it is sufficient to give the injured party a right of re- dress." In the case of Consolidated Fruit Jar Co. v. Thomas, 668, an opinion of ex- ceptional value was delivered in which Judge Nixon writes : "It is not necessary for the com- plainant to show an exact imitation. .... No matter how vague may be the resemblance, if it be sufficient to mis- lead the public, it is unlawful ; and when unexplained, it is the duty of the court to infer intent, and to hold that the resemblance was adopted for the purpose of deception." See, also, Royal Baking Powder Co. v. McQuade, 674. Not less advanced are the recent Eng- lish cases, although there may appear to be instances which point toward the ap- plication of a more exact rule. In Orr it is believed, in any instance by the court of final appeal of the state. On the contrary, the view announced in the Amoskeag case was accepted without regard to the more authoritative prece- dent in Burnett v. Phalon, 277 ; New- man v. Ah-ord, 282 ; Colinan v. Crump, 579, and other cases, the line having, it may be safely said, remained unbroken until the present time. It is not im- probable that judicial remark may be found which is not in perfect accord with what has been stated to be the accepted view ; but it is undoubtedly true that the great weight of authority fully sustains the comprehensive rule laid down at the beginning. In Colman v. Crump, 579, in the Court of Appeals of New York in 1878, which is the last decision of that court on the subject of infringement, the prin- cipal case is pointedly affirmed. The rule as laid down in New York has been unreservedly recognized in Connecticut, without variation (Mer. Britannia Co. v. Parker, 409), and to all the intents and purposes in the courts of all the other states in which trade-mark cases have arisen. Lowell Man. Co. v. Lowell Hosiery Mills, 676. The recent cases in the federal courts are not less liberal. In McLean v. Fleming, 580, decided by the Supreme Court in 1877, Judge Clifford, writing for the court, uses the following lan- guage : " Positive proof of fraudulent intent is not required where proof of infringe- ment is clear, as the liability of the in- fringer arises from the fact that he is enabled, through unwarranted use of the trade-mark, to sell a simulated ar- ticle as and for one which is genuine. 55 DAVIS V. KENDALL. Eye Water ; " but without any warranty, or false representa- tion, the purchaser, who had given a promissory note for the price, discovered the lotion and labels to be spurious, and re- fused to pay for it. Action on the note. Held, that the plaintiffs being igno- rant of the fraud, and having made no warranty or false rep- resentation, were entitled to recover the price. 102. Smale v. Graves. February 14, 1850. Knight Bruce, V. C. 3 De G. Sm. 706; 19 Z. J. Ch. 157; 14 Jur. 662 ; 15 L. T. 179. THE defendant, being the widow and acting executrix of a surgeon dentist, agreed to sell to a person, as his successor, the good-will of the practice and an introduction to the patients, for an annuity of 100 for five years, to be paid by half- yearly instalments, to be secured by mortgage. Administration suit. Held, that if not the whole, at any rate some part of the annuity belonged to the estate. 103. Davis v. Kendall. September, 1850. Rhode /. Sup. Ct. 2 R. I. 566 ; R. Cox, 112. THE plaintiff, being the original inventor and manufacturer of " Perry Davis 1 Pain Killer" the defendant began to make and sell another article as " Perry 1 s Vegetable Pain Killer" and in bottles similarly labelled to the plaintiff's. Action on the case. Held, that the plaintiff was entitled to judgment. Per Greene, C. J. " All are entitled to make and vend this com- pound, and to vend it as a similar article to that made and sold by the plaintiff; but no one but the plaintiff has a right to sell it as a medicine manufactured by the plaintiff. The adoption of the same label as the plaintiff's will, of course, be actionable ; and so the adop- tion of a label so like the plaintiff's as to mislead the public would v. Johnston, 646, and Thorley's Food Co. be the rule in England is perspicuously v. Massam, 671, what is to be taken to stated. 56 JOLLIE V. JAQUES. be actionable. If the difference be merely colorable, it will not avail the defendant." 1 104. Stone v. Carlan. 1850. N. Y. Super. Ct.: Campbell, J. 13 Monthly L. R. 360; R. Cox, 115. THE plaintiffs being coach-proprietors, who had contracted with the proprietors of " The Irving Hotel" at New York, for the conveyance to and fro of their visitors, and for the use of their name and that of their hotel upon their coaches and their servants' badges, the defendants used the names "Irving Hotel," "Irving House" "Irving," etc., upon their coaches and servants' badges. On motion by the plaintiffs, injunction granted to restrain the defendants from so doing. 2 1O5. Jollie v. Jaques. October, 1850. U. S. C. C. S. Dt. of N. Y. : Nelson, J. 1 Bl. C. C. 618. SUIT under the U. S. Copyright Act of 1831, to restrain an imitation of a musical composition entitled "The Serious Family Polka." It having been decided that the plaintiff's claim to copy- right could not be supported : Held, that the plaintiff not being entitled to the copyright in the composition, he was not entitled to protection in respect of the title. " The title or name is an appendage to the book or piece of music for which the copyright is taken out, and if the latter fails to be pro- tected, the title goes with it, as certainly as the principal carries with it the incident" 8 1 See Davis v. Kennedy, 281. But the name of a book is never a 2 See Howard v. Henriques, 108. trade-mark, and cannot be. For if it 8 Whatever right of property there is is, it is a common law right which is of in any symbol or word, wherever found, the same force in Great Britain as in or in any thing that serves to individ- the United States, and the author may ualize an article, depends upon princi- protect it in both countries. This he pies analogous to those which underlie cannot do, for the reason that the right the law of trade-marks. to print a literary composition involves 57 HOLLOWAY V. HOLLOWAY. 106. Holloway v. Holloway. November 9, 1850. Lord Langdale, M. R. 13 Beav. 209 THE plaintiff, Thomas Holloway, manufacturing and sell- ing pills and ointment at 244 Strand, as " Holloway 's Pills and Ointment" the defendant, his brother, Henry Hollo- the right to call it what it is. Or, as here decided, where a copyright fails, the right to the name of the work fails also, the two becoming publici juris at the same time. There would be a spe- cies of fraud in an American reprint of " Ivanhoe," under the title of " The Knight of the Black Plume," and yet no remedy of any sort. But to publish the story of '' Uncle Tom's Cabin " under the title of " Aunt Chloe's Home " would be an invasion of the copyright law ; while to print another novel un- der the name of " Uncle Tom's Cabin " would be an inj ury involving a remedy of an entirely different nature. In the instance last mentioned there would be no violation of the copyright, but an infraction, to all intents and purposes, of a trade-mark. But how can the injury be an inva- sion of a right at common law, and yet be confined to this country? The an- swer to this is, that the exclusive right flows from a statutory privilege. The author acquires the sole right to print the book, and the sole right to call it by its proper name is an inseparable inci- dent which remains in him, ex necessi- tate rei, as long as he alone can produce it. The sale of another book under the name of one which no other person has the right to sell is a misrepresentation, accompanied by a loss of sales, and an actionable injury under the principles which govern the law of trade-marks. The theory is not unlike that laid down in a number of cases. In the Congress Spring case, 854, it was decided that the word " Congress," when applied to water, was the property of the proprie- tors of Congress Spring, because " Con- gress water" could only be obtained from Congress Spring, and Congress Spring belonged to the plaintiffs. But it is quite apparent that, in or- der to be susceptible of protection, the title of a book must be distinctive, and not descriptive. That is, it must b original in itself, or in its application, and not a mere statement of a fact that would be equally true of other and dif- ferent books. To illustrate : "The Life of Thackeray " could not be monopo- lized, as it is a mere statement of a fact that is essentially publici juris ; but " Evenings with Thackeray " would be of a different nature, and analogous to a trade-mark, the words being invested with a secondary meaning, having re- lation to a particular volume, and which would be untrue in their application to any other. In addition to the title, under the re- strictions mentioned, the names of edi- tions may be protected, as they are in a true sense trade-marks ; but, in respect of designations of this class, the same doctrines obtain as in the case of other trade-marks, and they are without le- gal qualities unless of an arbitrary nat- ure at the time of their application. Thus, " The Riverside Edition " is good as a mark irrespective of the copy- right law. " Bric-a-Brac Series " would have been equally valid had it been used to denote an edition, the edition of a particular house, and not as a title to signify a particular collocation. But " American Edition " would be without a single element of force. The leading points above stated have never been fully examined by the courts. They are, however, deductions that are based upon established principles. See Hogg v. Kirby, 10. 58 FOOT v. LEA. way, began to sell other pills and ointment at 210 Strand, as " H. Holloivay^s Pills and Ointment" the pill-boxes, pots, labels, and wrappers being similar to those used by the plain- tiff. On motion by the plaintiff for an injunction to restrain the defendant from infringing the plaintiff's rights : Held, (1.) that the defendant's conduct was intended and calculated to deceive ; (2.) that the fact that the defendant's name was the same as the plaintiff's did not entitle him so to act ; (3.) that the assumption by the plaintiff, without author- ity, of the title of " Professor," and some exaggerated com- mendations of his medicines did not disentitle him ; (4.) that the injunction must be granted ; (5.) that the defendant al- leging that he had not had time to answer the plaintiff's affi- davits, liberty must be given him, expressed in the order, to move to dissolve the injunction. " The defendant's name beiug Holloway he has a right to consti- tute himself a vendor of Holloway's pills and ointment, and I do not intend to say anything tending to abridge any such right. But he has no right to do so with such additions to his own name as to de- ceive the public, and make them believe that he is selling the plain- tiff's pills and ointment." " I do not mean to say that I have any sort of respect for this sort of medicines. I have none ; but the law protects persons from fraud- ulent misrepresentations, and this is a species of property which the law does allow, and so long as the law recognizes it, it must be protected, and persons in the situation of the defendant will not be allowed to practise a fraud like that here complained of." 107. Foot v. Lea. December 5, 1850. Smith, M. R.ofl. 13 Ir. Eq. 484. THE petitioners, Lundy Foot & Co., being Dublin snuff manufacturers, who used a show-board over their door, and placed labels on their packets of snuff, on each of which their name appeared, the respondent, who had formerly been in their employ, opened a shop in Dublin, and styled 59 COFFEEN V. BRUNTON. himself on the show-board over his door, and on the labels on his packets of snuff, " A. Lea, late of Lundy Foot $ Co." the words " late of " being much smaller than the rest. Petition for an injunction to restrain the respondent from so doing dismissed, on the ground that the question was one of a legal right which must be decided at law. 108. Howard v. Henriques. March, 1851. N. Y. Super. Ct. S Sandf. S. C. 725; R. Cox, 129. THE plaintiff, being the proprietor of a hotel at New York, called the "Irving House," or "Irving Hotel," the defendant opened another hotel at New York under the same name. Motion by the defendant to dissolve an injunction which had been granted, on motion by the plaintiff, to restrain the defendant from so doing, refused. Per Campbell, J. " We think that the principle of the rule is the same, to whatever subject it may be applied, and that a party will be protected in the use of a name which he has appropriated, and by his skill rendered valuable, whether the same is upon articles of personal property which he may manufacture, or applied to a hotel where he has built up a prosperous business." x 109. Coffeen v. Brunton. (2.) May, 1851. U. S. C. C. Dt. oflnd.: McLean, J. 5 McLean, 256 ; R. Cox, 132. THE plaintiff being the proprietor of a medical preparation called " The Chinese Liniment," the defendant began to sell another preparation under the name of " The Ohio Lini- ment," in bottles similarly labelled. 1 Upon recognized principles, the " OSBORNE HOUSE," 323 ; " WOOD'S following names have been protected : HOTEL," 467 ; " BOOTH'S THEATRE," " WHAT CHEER HOUSE," 212 ; " RE- 524 ; " ASHFORD LODGE," 631. VERB HOUSE," 111 ; M'CAKDELL Protection to the name " STATION HOUSE," 233 ; " PRESCOTT HOUSE," HOTEL," 520, was refused, on the 266 ; " CARRIAGE BAZAAR," 294 j ground that it was descriptive. 60 MOBISON V. MOAT- Injunction to restrain the defendant from so doing refused, on the ground that the defendant was originally concerned with the plaintiff in bringing out the lotion, that a partner- ship between them had been in contemplation, and that it was at least probable that the defendant was acquainted with the composition of the plaintiff's lotion, so that the plaintiff should be required to try his right at law in the first place. " To entitle a complainant to protection against a false representa- tion, it is not essential that the article should be inferior in quality, or that the individual should fraudulently represent it so as to im- pose upon the public ; but if by representation it be so assimilated as to be taken in the market for an established manufacture or com- pound of another, the injured person is entitled to an injunction. The injury is not the less, though the false representations be made without a knowledge of such interference." 110. Morison v. Moat. August 20, 1851 ; January 22, 1852. Turner, V. C. 9 Hare, 241 ; 20 L. J. Ch. 513; 15 Jur. 787. Knight Bruce and Lord Cranworlh, L. JJ. 21 L. J. Ch. 284 ; 16 Jur. 321. THE plaintiffs being two of the surviving partners in the firm of Morison, Moat & Co., and the legatees of the secret recipe and prescription of an unpatented medicine called " Morison s Universal Medicine" the defendant, who was the third surviving partner in the firm, began, after the dissolu- tion of the partnership, to use the secret recipe, and sell the medicine under the same name, having made himself ac- quainted with the secret through a breach of confidence on the part of a third person. On motion by the plaintiffs, injunction granted to restrain the defendant from using the secret recipe or selling any med- icine under the name; and Held, that a defence of delay on the part of the plaintiffs failed. Per Turner, V. C. (9 Hare, 258). " What we have to deal with here is, not the right of the plaintiffs against the world, but their right against the defendant. It may well be that the plaintiffs have 61 LUMLEY V. WAGNER. no title against the world in general, and may yet have a good title against this defendant." Per Lord Cran worth, L. J. (21 L. J. Ch. 248). " There is no doubt whatever that where a party who has a secret in a trade employs persons under contract express or implied, or under duty express or implied, those persons cannot gain the knowledge of that secret and then set it up against their employer." 111. Marsh v. Billings. March, 1852. Mass. Sup. Ct. 7 Cush. 322; 14 Monthly L. R. (4 N. S.) 664; R. Cox, 118. THE plaintiffs being coach-proprietors, who had purchased from the proprietor of " The Revere House " hotel, at Boston, the exclusive right of conveyance of the visitors to that hotel, and the use of the name of the hotel on their coaches, servants' badges, etc., the defendants, who had had the same right pre- viously to the plaintiffs, continued to act in the same manner after the right had passed to the plaintiffs. Action on the case. Held, that the defendants were entitled to convey passen- gers freely, but that they were not entitled to falsely represent themselves as having the patronage of the proprietor of the establishment ; and that the plaintiffs were entitled to recover such damages as the jury, upon the whole evidence, should be satisfied that they had sustained, and not merely for the loss of such passengers as could be actually proved to have been diverted from their coaches to the defendants'." l 112. Lumley v. "Wagner. May 20, 26, 1852. Parker, V. C. 5 De G. fr Sm. 485. Lord St. Leon- ards, C.lDe G., M. Sf G. 604; 21 L.J. Ch. 898; 16 Jur. 871. THE plaintiff being a theatrical manager, the defendant, a singer, agreed with him to sing at his theatre for a certain period, and there only, but subsequently agreed to sing at another theatre before that period had elapsed. 1 See Howard v. Henriques, 108. 62 TURNER V. EVANS. On motion by the plaintiff, injunction granted to restrain the defendant from singing elsewhere without permission, dur- ing the existence of the agreement; and Held, that the posi- tive and negative stipulations formed one contract, and that the violation of the negative stipulation would be prevented, though the specific performance of the entire agreement could not be enforced. 113. Farina v. Shaw. June 3, 1852. Parker, V. C. Cited 3Eq. Rep. 886-7; 1 K. Sf J. 514; 24 L. J. Ch. 632; 25 L. T. 211; 3 W. R. 532. THE plaintiff being a manufacturer of Eau de Cologne, which he sold in bottles bearing special labels, the defendant, a printer, printed and sold other labels similar to those used by the plaintiff. Suit for an injunction. The defendant undertook not to print or sell any labels in infringement of the plaintiff's rights, and to give up all labels in his possession, and the plates for printing them, and to pay X50 costs. 1 114. Turner v. Evans. July 30, 1852; June 6, 1853. Knight Bruce and Lord Cranworth, L. JJ. 2De G., M. G. 740. Queen's Bench. 2E.tfB. 512; 22 L. J. Q. .412; 17 Jur. 1073; 21 L. T. 153; 1 W. R. 434. THE plaintiffs purchased from the defendant, a wine mer- chant in the counties of Carnarvon, Anglesea, and Merioneth, his business, stock in trade, etc., including 2,000 as a pre- mium for the good-will, and the defendant agreed (among other things) not directly or indirectly to carry on the busi- ness of a wine merchant in those counties. He subsequently set up business outside those counties, but solicited and ob- tained orders within them. On motion by the plaintiffs for an injunction to restrain the defendant from soliciting orders, Held, by Kindersley, V. C. 1 See Farina r. Silverlock, 130. 63 EODGEBS V. NOWILL. (affirmed by Lord Cran worth, L. J.), that there had been no breach of the agreement, and that the injunction must be re- fused until after a trial at law. Action of assumpsit. Verdict for the defendant directed, with leave to move to enter a verdict for the plaintiffs, with nominal damages. On motion by the plaintiffs accordingly, Held, that there had been a breach of the agreement. Injunction subsequently granted. > 115. Eodgers v. Nowill. (2.) January 17, February 22, 1853. Stuart, V. (7. 17 Jur. 109; 1 W. R. 122. Knight Bruce and Turner, L. JJ. 3 De G., M. G. 614 ; 22 L. J. Ch. 404; 17 Jur. 171; 20 L. T. 319; 1 W. R. 205-216. THE defendant having been restrained from the use of a certain trade-mark on cutlery, consisting of " J. Rodgers $ Sons" with a crown and " V. R" {Rodyers v. Nowill (1)), afterwards entered into a partnership with his father and brother in 1848, and thenceforward used the same mark, sometimes with colorable additions. On motion for committal for breach of the injunction in 1853, Held, by the V. C., that, on account of the plaintiffs' delay, the motion must be refused, but without costs ; by the L. JJ., that the defendant must be committed, unless within a week he suggested and undertook to use for the future a mark which the court should approve. Per Turner, L. J. " On the question of acquiescence, I think that in a case of this description, where there has been an injunction granted by this court, there must, in order to deprive the party who has obtained the injunction of the right to move for committal upon the breach of it, be a case made out almost amounting to such a li- cense to the party enjoined to do the act enjoined against, as would enable him to maintain a bill against others for doing that act. The party enjoined must, I think, show such acquiescence as would be sufficient to create new right in him." 64 BURGESS V. BURGESS. 116. Flavel v. Harrison. February 22, 1853. Wood, V. C. 10 Hare, 467 ; 22 L. J. Ch. 866; 17 Jur. 368; 1 W. R. 213. THE plaintiff being the manufacturer, in succession to his father, the original inventor, of an article which, though not patented, he called " FlaveTs Patent Kitchener" the defend- ant, who had been in the plaintiff's employ, began to adver- tise for sale other goods under the same name. Motion by the plaintiff for an injunction to restrain the de- fendant from so doing refused, liberty being given to bring an action, on the ground that, (1.) the plaintiff falsely de- scribed his article as patented ; (2.) he had delayed making his motion for four months after he had known of the defend- ant's use of the name. " I think that the use of the word ' patent ' operates to prevent the public from testing it (the invention) as they otherwise might ; they are dissuaded from examining the article with a view to imitation ; and it is in evidence that persons were prevented from making that free use of it which every purchaser has a right to make of an unpat- ented article. The knowledge that there was no patent would ena- ble and encourage every ironmonger who bought the article to take it to pieces, and examine, and make copies and models of all the parts, for the purpose of imitation, if he thought it likely to be useful, which he would never think of doing with regard to a patented arti- cle." 1 117. Burgess v. Burgess. March 17, 1853. Knight Bruce and Turner, L. JJ.3 De G., M. tf G. 896 ; 22 L. J. Ch. 675 ; 17 Jur. 292; 21 L. T. 53. THE plaintiff manufacturing ''Burgess' Essence of Ancho- vies" at 107 Strand, the defendant, who was his son, and had been in his employ, set up a business for himself, in which he styled himself, on his shop front and labels, as " late of 107 Strand" and called the article he made "Burgess' Es- sence of Anchovies" 1 See Leather Cloth Co. v. American Leather Cloth Co. 223. 5 65 BURGESS v. BURGESS. On motion by the plaintiff, before Kindersley, V. C., in- junction granted as to " late of 107 Strand," but refused as to ''Burgess' Essence of Anchovies" On appeal, Held, (1.) that in the absence of fraud the de- fendant could not be restrained from using his own name, or describing his article as being what in fact it was ; (2.) that a delay from October to March in appealing from the refusal of the motion for an injunction was fatal to the appeal; (3.) and that the wider injunction must be refused. Per Turner, L. J. " Where a person is selling goods under a particular name, and another person, not having that name, is using it, it may be presumed that he so uses it to represent the goods sold by himself as the goods of the person whose name he uses ; but where the defendant sells goods under his own name, and it happens that the plaintiff has the same name, it does not follow that the defendant is selling his goods as the goods of the plaintiff. It is a question of evidence in each case whether there is false representation or not." * 1 The right of a man to use his own name has been the subject of much dis- cussion. In the United States and Eng- land it is safe to say that the rule has been settled with reasonable certainty. It is now established that a court will not hesitate to direct the manner in which a man shall use his name ; he will not be prevented from using it, but he will be compelled to use it honestly ; as far as he makes it an instrument in the perpetration of fraud, just so far will equity pursue and check him. The rule was formulated by the Court of Appeals of New York in the case Me- neely v. Meneely, 472, in which it was said, that while the court would not ab- solutely restrain the defendant Meneely from the use of his own name, it would enjoin him from using it in such a way as to deceive the public and injure the plaintiff. The Supreme Court of Con- necticut, in Meriden Britannia Company v. Parker, 409, said : " We think the petition should be granted so far as to restrain the use of the words ' Rogers Bros.,' but the use of the name 'Rog- ers ' ought not to be prohibited." There can be no doubt that the American cases are all to this effect, and that the English decisions are only different as tending to enlarge the complainant's right. What may be accepted as the present position of the courts of both countries will be found in the opinion of Lord Justice James in Thorley's Cattle Food Co. v. Massam, 671, decided during the year 1880, the full text of which is published in this volume. It will be remarked that the learned judge nega- tives many popular interpretations of familiar cases, and that his conclusions carry the question under discussion to a point which, if advanced, is only in line with the intimations of the House of Lords, as expressed in a number of recent cases. 66 EDELSTEN V. VICK. 118. Farina v. Gebhardt. March 23, 1853. Wood, V. C. Cited 3 Eq. Rep. 891 ; 1 K. /. 517. THE plaintiff being a manufacturer of Eau de Cologne, which he sold in bottles bearing certain special labels, the de- fendant imitated those labels. Motion by the plaintiff for an injunction to restrain the defendant from infringing his rights refused, on the ground of the plaintiff's delay in making his application. The de- fendant subsequently submitted to pay his own costs, and undertook to refrain from future infringements. 1 119. Edelsten v. Vick. April 16, 1853. Wood, V. C. 11 Hare, 78 ; 1 Eq. Rep. 413; 18 Jur. 7. THE plaintiffs being the successors in business of the origi- nal patentees of " Tayler $ (70. 's Patent Solid-headed Pins," continued, after the expiration of the patent, to use on their packets of pins labels printed from the old blocks, describing the pins as "patent." The defendants made pins and sold them in packets made up and labelled similarly to the plaintiffs', except that they added " J. Vick, from the late" On motion by the plaintiffs for an injunction to restrain the defendants from so doing : Held) (1.) that the plaintiffs were entitled to an injunction to restrain a palpable fraud ; (2.) that the defendants could not be absolutely restrained from representing that their pins were made according to Tayler's expired patent, but that they must not do so in such a way as to deceive ; (3.) that the plaintiffs were not disentitled by reason of their continued user of the word " patent," since there had been a patent, and the word had not been first adopted after its expiration. " It does not follow, because upon the expiration of the patent the article and its known description become open to all, that therefore 1 See McLean v. Fleming, 580. 67 STOKES V. LANDGRAFF. all would become entitled to use the label by which the patentees had been accustomed to distinguish their goods. The public may have acquired confidence in that particular label, and that confidence may have given a value to it which the patentees may be entitled to have protected after the expiration of their patent." * 120. R. v. Dundas. 1853. York Assizes: Erie, J. 6 Cox, 380. ON an indictment for obtaining money by false pretences, the prisoner having induced the prosecutor to buy blacking of him, contained in bottles labelled " Everett's Premier " (that being the name of an article manufactured by a London maker of high reputation), on a representation that the blacking was Everett's and himself Everett's agent : Held, (1.) that an offer to sell on sale or return was imma- terial, the actual bargain being for cash ; (2.) that it was un- important whether the prisoner's name were or were not Ever- ett, as he asserted, if he had acted fraudulently ; (3.) that the jury must decide whether or not certain differences be- tween the labels on the prisoner's bottles and those on the genuine ones were mere small, colorable differences, and in- tended to deceive. Guilty. Two years' imprisonment. 121. Stokes v. Landgraff. October, 1853; September, 1854. N. Y. Sup. Ct. ll Barb. 608; R. Cox, 137. THE plaintiff being a manufacturer of glass, which he sold under the names " Gralen" " Lake" " Cylinder" " Wayne" " New York" the defendants made and sold other glass under the same names. On motion by the defendants, injunction, which had been granted on motion by the plaintiff to restrain them from so doing, dissolved, on the ground that those words were indica- tive, not of the manufacturer, but of the quality of the article. 1 See Leather Cloth Co. v. American Leather Cloth Co. 223. 68 SHRIMPTON V. LAIGHT. Per Strong, J. " The principle is well settled that a manufact- urer may, by priority of appropriation of names, letters, marks, or symbols of any kind to distinguish his manufactures, acquire a prop- erty therein as a trade-mark In respect to words, marks, or devices, which do not denote the goods, or property, or particular place of a person, but only the nature, kind, or quality of the articles in which he deals, a different rule prevails. No property in such words, marks, or devices can be acquired." 122. Hoffman v. Duncan. November 2, 1853. Wood, V. C. Seton, 4th ed. 256. PARTNEKSHIP suit. Injunction granted, after the dissolu- tion of the firm of " Hoffman Duncan" to restrain one of the former partners from the use of the name of the part- nership. 123. Shrimpton v. Laight. January 19, 1854. Romilly, M. R. 18 Beav. 164. THE plaintiffs being the makers of a needle which they called " the graduated, grooveless, drill-eyed, ground down," and sold in packets labelled with those words, and a state- ment that they were " invented and made solely by Shrimp- ton Hooper, at the Albion Needle Works, Studley" the defendant, authorized, as he alleged, by one David Shrimp- ton Turvey, who was not a needle-maker, began to sell other needles in packets similarly labelled, except that " Shrimpton $ Hooper " and "Albion Needle Works " were omitted, and " Shrimpton Turvey " substituted. On motion by the plaintiffs, injunction granted to restrain the defendant from imitating the plaintiffs' labels. " The way in which the court deals with these cases is, not to see whether manufacturers themselves would distinguish them, but whether the public, who may be more easily misled, would probably be deceived." 69 LEMOINE v. GANTON. 124. Taylor v. Taylor. January 19, 1854. Wood, V. C. 2 Eq. Rep. 290; 23 L. J. Ch. 255; 22 L. T. 271. THE plaintiffs being manufacturers of thread, which they sold on reels bearing labels, on which the words ''Taylor's Persian Thread " were prominent, the defendant began to sell thread similarly put up, except that before the name " Taylor " he inserted " Sam." instead of " J. W" On motion by the plaintiffs, injunction granted to restrain the defendant from selling thread on reels labelled with that name, or any other colorable imitation of the plaintiffs' labels. " In every case the court must ascertain whether the differences are made bondjide in order to distinguish the one article from the other, whether the resemblances and the differences are such as nat- urally arise from the necessity of the case, or whether, on the other hand, the differences are simply colorable, and the resemblances are such as are obviously intended to deceive the purchaser of the one article into the belief of its being the manufacture of another per- son. Resemblance is a circumstance which is of primary importance for the court to consider, because if the court finds, as it almost in- variably does find in such cases as this, that there is no reason for the resemblance, except for the purpose of misleading, it will infer that the resemblance is adopted for the purpose of misleading." 125. Lemoine v. Ganton. January, 1854. N. Y. C.P. 2 E. D. Smith, 343 ; E. Cox 142. THE plaintiff, a French manufacturer of calf-skin leather, adopted a new trade-mark for his leather, and discontinued the use of his old mark. About a year later the defendant sold leather not prepared by the plaintiff bearing the plain- tiff's discontinued mark. Action for damages. A verdict having been returned for the plaintiff, on motion for a new trial, Held, that the plaintiff was entitled to recover damages 70 EVANS v. HUGHES. for the defendant's infringement of his rights, notwithstand- ing that he had discontinued the use of the mark. Per Daly, J. "The wrong and injury to the plain tiff consisted in the sale of calf-skins falsely purporting and declared to be of his manufacture; and it makes no difference whether that object was effected by counterfeiting the trade-mark which he uses at present or one that he formerly used. An injury results to him in either case." 126. Gillott v. Kettle. March, 1854. N. Y. Super. Ct. 3 Duer, 624; R. Cox, 148. THE plaintiff being a penmaker, who sold his pens in boxes labelled respectively with the number " 303 " or " 753," the former denoting the superior, the latter the inferior quality, the defendant removed the labels with " 753 " from the boxes of inferior pens, and substituted for them labels imitated from the labels used on the boxes of superior pens, with " 303." On motion by the plaintiff, injunction granted arid upheld to restrain the defendant from so doing. Per Bosworth, J. " The fraud complained of consists in selling an inferior article of the plaintiff's manufacture as being one of a supe- rior quality. The fraud, to the extent that it may be successful, is twofold : The public is defrauded by being induced to buy the infe- rior for the superior article. The plaintiff is defrauded by an unjust destruction of confidence that his pens are put up for sale and as- sorted with reference to the quality indicated to dealers by the labels on the boxes which contain them." 127. Evans v. Hughes. March 30, 1854. Wood, V. C. 18 Jur. 691. THE plaintiff being the widow and executrix of one of the partners in the firm of " Evans and Hughes" which was con- stituted under articles of which one provided that, on the de- cease of either partner, his personal representative was to have the power, within three months, of electing to continue his share ; the defendant being the surviving partner in the firm, 71 HALL V. HALL. before the expiration of the three months, or election, began to carry on business in his own name. On motion by the plaintiff, injunction granted to restrain the defendant, until the expiration of the three months, or election, from carrying on the business under any other name than that under which it had been carried on in the lifetime of the deceased partner. * 128. Potter v. The Commissioners of Inland Revenue. June 15, 1854. Exchequer. 10 Ex. 147 ; 23 L. J. Ex. 345; 18 Jur. 778 ; 23 L. T. 269; 2 W. R. 561. CASE stated by the Commissioners of Inland Revenue. Held, that the assignment by deed of the good-will of a trade was a conveyance of property within the Stamp Act, 13 & 14 Viet. c. 97, and not of a mere possibility, and was therefore subject to ad valorem duty. Per Pollock, C. B. " Very frequently the good-will of a business or profession, without any interest in laud connected with it, is made the subject of sale, though there is nothing tangible in it ; it is merely the advantage of the recommendation of the vendor to his connections, and his agreeing to abstain from all competition with the vendee. Still, it is a valuable thing belonging to himself, and which he may sell to another for a pecuniary consideration." 129. Hall v. Hall. March 5, 1855. Romilly, M. R. 20 Beav. 139. PARTNERSHIP suits. Cross-suits having been commenced by each of the partners in a brewing business carried on un- der articles of partnership which provided that the surviving or continuing partner, in case of the death or retirement of the other, should have the option of taking over the share of the deceased or retiring partner in the partnership " property, credits, and effects," and it having been agreed that the part- nership should be dissolved, and that the continuing partner should take over the partnership " stock in trade and effects " at a valuation : 72 FARINA V. SILVEKLOCK. Held, that the good-will was not to be taken into account and valued as being included in the partnership " property credits, and effects," or " stock in trade and effects." 130. Farina v. Silverlock. June 6, 1855; July 9, 1856; June 1, 1858. Wood, V.C. l K.frJ. 509; 3 Eq. Rep. 883 ; 24 L. J. Ch. 632; 25 L. T. 211 ; 3 W. R. 532. Lord Cranworth, C. 6 De G., M. if G. 214 ; 26 L. J. Ch. 11 ; 2 Jur. N. S. 1008; 27 L. T. 277; 4 W. R. 731 ; 52 Leg. Ot>s. 342. Queen's Bench. SOL. T. 242; 31 L. T. 99. Wood, V. C. (after trial at law). 4 K. Sf J. 650. THE plaintiff being a manufacturer of Eau de Cologne, which he sold in bottles bearing a special label, with his sig- nature and other particulars, the defendant, a printer, printed and sold similar labels. On motion by the plaintiff for an injunction to restrain the defendant from so doing, Held, by the V. C., that the plain- tiff was entitled to an injunction to restrain the defendant from " scattering over the world the means of enabling par- ties to commit frauds upon the plaintiff." Held, by the Lord Chancellor, that since the labels might be printed for a legitimate purpose, viz. to replace genuine labels on genuine goods, which had become obliterated, the injunction must be dissolved, liberty being given to bring an action. An action having been brought, and having resulted in a verdict for the plaintiff, which was upheld by the Court of Queen's Bench, injunction restored. Per Wood, V. C. (1 K. & J. 515). " No man has a right to sell wares with a trade-mark upon them which has been used to desig- nate the wares of the party complaining. A man may acquire, not an absolute kind of property, but that kind of right in a trade-mark which entitles him to say, ' No one shall sell goods of his own making marked with my trade-mark,' which I have been in the habit of using in my trade, so as to make people think that they are of my manu- facture.' " Per Lord Cranworth, C. (6 De G., M. & G. 217). " This right 73 FARINA V. SILVERLOCK. cannot be properly described as a copyright; it is in fact a right which can be said to exist only and can be tested only by its violation ; it is the right which any person designating his wares or commodities by a particular trade-mark, as it is called, has to prevent others from selling wares which are not his, marked with that trade-mark, in order to mislead the public, and so incidentally to injure the person who is owner of the trade-mark I apprehend that the law is perfectly clear, that any one who has adopted a particular mode of designating his particular manufacture has a right to say, not that other persons shall not sell exactly the same article, better or worse, or an article looking exactly like it, but that they shall not sell it in such a way as to steal (so to call it) his trade-mark, and make pur- chasers believe that it is the manufacture to which that trade-mark was originally applied." P. 219. " I think it clear that any man would be at liberty, if it was writing instead of printing, to write, or if he was capable of printing and engraving, to print and engrave for himself, a label being a colorable imitation of, or a copy of the plaintiff's label, and to put it on Eau de Cologne, being the Eau de Cologne of the plain- tiff." * 1 It is not to be doubted that under articles of merchandise of the same class certain circumstances it is open to a as those upon which it is used by the pro- printer to manufacture and sell labels prietor, any device or symbol which by which embody the name or mark of a its resemblance to the established trade- manufacturer; but where it is made to mark will be liable to deceive the pub- appear that the actual or constructive lie and lead to the purchase and use of purpose is to enable a party or the pub- that which is not the manufacture of lie to violate a trade-mark, an injunc- the proprieter, believing it to be his." tion will be granted. The production The distinction would seem to be that by the printer of a fac-simile of a label where the facts of the case show that embodying the trade-mark is fraudulent the printer of the labels contemplated whenever the label is sold, actually or their use upon goods not made by the constructively, for use upon other than owner of the mark, the court will inter- the goods of the owner of the trade- fere whatever the intent ; but where the mark. In Colman v. Crump, 579, Judge purpose was that they should be hon- Allen, writing for the Court of Appeals estly used in such manner as to be tan- of New York, said : "It is an infraction tamount to an application of the mark of that right (the right to a trade-mark) by its owner, the courts will decline to to print or manufacture, or put on the interfere, market for sale and sell for use, upon 74 CHAPPELL V. SHEARD. 131. Morris v. Moss. July 24, 1855. Romilly, M. R. 25 L. J. Ch. 194. ADMINISTEATION suit. Held, that the good-will of a busi- ness which had been carried on by a wife before marriage, and afterwards by the husband and wife, on the death of the husband survived to the wife, and that she might dispose of it and receive the purchase money for her own benefit, even though it was carried on upon leasehold premises forming a part of the husband's estate, and of which he had disposed by his will. 132. Chappell v. Sheard. August 2, 1855. Wood, V. C. 2 K. &f J. 117 ; 1 Jur. N. S. 996 ; 3 W. R. 646. THE plaintiffs being the publishers and proprietors of a song entitled " Minnie" which was published with a special kind of title-page, the defendant published another song un- der the name of " Minnie Dale" with a title-page copied from the plaintiffs'. Suit for an injunction. Held, (1.) that the song was known to the purchasing public by four characteristics : the names of the song, of the singer, of the composer, of the publisher; (2.) that a statement on the plaintiffs' title-page " written by George Liriley" he having written the words, though not composed the music, did not disentitle the plaintiffs, though Linley was better known as a composer than as a poet ; (3.) that the plaintiffs were not disentitled by their own delay, they having first become acquainted with the piracy on June 18 ; (4.) and that the injunction must be granted. 1 i See Hogg v. Kirby, 10. 75 AUBIN v. HOLT. 133. Heath v. Wright. October, 1855. U. S. C. C. E. Dt. of Penn : Kane, J. 3 Wall. Jr. ; R. Cox, 154. THE plaintiff preparing and selling a toilet compound under the name of " Kathairon" the defendant sold another preparation under the same name. Motion by the plaintiff for an injunction to restrain the defendant from so doing refused on the ground that the mis- statements and exaggerations contained in the labels on the plaintiff's own bottle were such as to disentitle him to any relief. 1 134. The Merrimack Manufacturing Co. v. Garner. November, 1855. N. Y. C.P. 2 Abb. Pr. 318 ; 4 E. D. Smith, 387 ; R. Cox, 155. THE plaintiffs being manufacturers of cotton prints, which they sold labelled with the words " MerrimacJc Prints, Fast Colors, Lowell, Mass." the defendants sold other cotton goods labelled with the words "English Free Trade, Merrimack Style, Warranted Fast Colors" Suit for an injunction. Injunction which had been granted, on motion by the plaintiffs, to restrain the defendants from so doing, dissolved, on the ground that the infringement was not sufficiently clear for an injunction to be granted without a preliminary trial at law. 2 135. Aubin v. Holt. November 23, 1855. Wood, V. C. 2 K. /. 66 ; 25 L. J. Ch. 36; 4 W. R. 112. THE plaintiff and defendant, being the members of the firm of " Holt $ Aubin" solicitors, having agreed, upon the dissolution of the partnership, that the defendant should con- 1 See Pidding v. How, 60. 2 See Amoskeag Man. Co. v. Spear, 100. 76 CHAPPELL V. DAVIDSON. tinue to carry on the business in the old name after the dis- solution, he paying a certain annuity to the plaintiff, the re- tiring partner, the defendant failed to pay the annuity in accordance with the terras of the agreement. Suit for specific performance of the agreement. Held, that the agreement was not void as being against public policy, and that specific performance must be granted. 136. Chappell v. Davidson. November 26, 1855; January 11, 1856. Wood, V. C. 2 K. Sf J. 123; Knight Bruce and Turner, L. JJ. SDe G., M. Sf G. 1. THE plaintiffs, being the publishers and proprietors of a song called " Minnie" the defendant published another song under the name of " Minnie, dear Minnie," with a title-page copied from that of the plaintiffs' song. On motion by the plaintiffs to continue an injunction which had been granted to restrain the defendant from so doing : Held, by the V. C., (1.) that the plaintiffs were entitled to an injunction without a preliminary trial at law ; (2.) that the plaintiffs were not disentitled by reason of having placed on their title-page the words " written by George Linley," he being a well-known composer, the fact being that he had written the words, but not composed the music ; (3.) that the defendant could not escape his liability by instructing his shopmen to inform customers of the facts, since their state- ments would not pass on to subsequent purchasers ; (4.) that the defendant, having insisted on his right of publication, and refused to submit, must pay costs. Held, by the L. JJ., that the injunction ought to be con- tinued only on the terms of the plaintiffs' undertaking to bring an action, and to be answerable in damages. 1 1 See Hogg v. Kirby, 10. 77 WALTON V. CROWLEY. 137. Christy v. Murphy. February, 1856. N. Y. Sup. Ct. : Clerke, J.ll How. Pr. 77; R. Cox, 164. THE plaintiff being the original founder of the " Christy's Minstrels" during a temporary discontinuance of his perform- ances the defendants, most of whom had been in his service, began to perform under that name. On motion by the plaintiff, injunction granted to restrain the defendants from so doing, notwithstanding that the plain- tiff's performances were for the time being in abeyance ; and Held, that even if the defendants could have proved a license from the plaintiff to use the name, unless they could also prove it to be irrevocable, they would have had no right to continue the use of the name one moment after the plaintiff had signified his intention to withdraw the permission. 1 138. Walton v. Crowley. March, 1856. C7. S. C. C. S. Dt. of N. Y.: Belts, J. 3 Bl. C. C.440; R. Cox, 166. THE plaintiff being the sole vendor in America, under an exclusive contract with an English firm, of the needles made by that firm, the defendant sold other needles with trade- marks similar to those on the plaintiff's needles. On motion by the plaintiff, injunction granted to restrain the infringement of the trade-marks on the needles made in England and sold by him. " The plaintiff was not the inventor of this label or trade-mark, nor the one who originally adopted it, but he is the assignee of it, and of the good-will of the trade. He stands, thus, in the same relation to the defendant as his assignor would." " A tradesman, to bring his privilege of using a particular mark under the protection of equity, is not bound to prove that it has been copied in every particular by another. It is enough for him to show that the representations employed bear such a resemblance to his as 1 See Booth v. Jarrett, 524. 78 LAWSON V. THE BANK OF LONDON. to be calculated to mislead the public generally who are purchasers of the article, and to make it pass with them for the one sold by him. If the indicia or signs used tend to that result, the party aggrieved will be allowed an injunction staying the aggression until the merits of the case can be ascertained and determined." 139. Wedderburn v. Wedderburn. April 7, 1856. Romilly, M. R. 22 Beao. 84; 25 L. J. Ch. 710; 2 Jur. N. S. 674; 28 L. T. 4. PARTNERSHIP suit. Held, that the plaintiffs, being the representatives of a de- ceased partner in a partnership business, carried on under articles which provided that the good-will of the business should, on the death of one partner, belong to the survivors, were not entitled to share in profits attributable to the good- will ; though, in the absence of express agreement, good-will was partnership assets. 22 Beav. p. 104. " Good- will manifestly forms a portion of the subject matter which produces profits, which constitutes partnership property, and which is to be divided between the surviving partners and the estate of the deceased partner, according to the terms of the contract, and when that is silent, according to their shares in the con- cern. There is considerable difficulty in defining accurately what is included under this term good-will. It seems to be that species of connection in trade which induces customers to deal with a particular firm I am of opinion that, both on principle, on the author- ity of the decided cases, and on the ordinary rules of common sense, I must, whenever there is a reputation and connection in business constituting good-will, treat that as part of the assets of the concern." 14O. Lawson v. The Bank of London. April 22, 1856. Common Pleas. 18 C. B. 84 ; 25 L. J. C. P. 188 ; 2 Jur. N. S. 716 ; 27 L. T. 134 ; 4 W. R. 481. THE plaintiff having established a bank in London called " The Bank of London" the defendant bank commenced busi- ness under the same name. 79 PROWETT V. MORTIMER. Action on the case. On demurrer, Held, that it was a fatal objection that there was no averment in the declaration that the plaintiff had ever carried on the business of a banker at his bank, since, from that omission, it disclosed no cause of action, and that the demurrer must be allowed. Per Willes, J., p. 94. " In any way of reading this declaration, one cannot glean from it that the plaintiff had ever carried on the business of a banker. If that had been averred in the declaration, and it had been shown that the defendants carried on their business under the same name, for the purpose of making it to be believed that it was the plaintiff's business, then the question whether a corporation could as such be liable for such a fraud would have arisen. I am not prepared to say that they would not be liable if the cause of com- plaint were properly alleged. They would have capacity to do the act, and might possibly be responsible for its consequences." P. 93. " No action could, I apprehend, be maintained for the sale of goods branded or stamped with another manufacturer's mark, which mark had never been put forth to the world by the party com- plaining of the misuser of it." 141. Prowett v. Mortimer. May 3, 1856. Stuart, V. C. 2 Jur. N. S. 414 ; 27 L. T. 132 ; 4 W.R. 519. THE plaintiff having become by purchase the proprietor of The Britannia newspaper, incorporated it with another paper called The John Bull, and issued the combined paper as The John Bull and Britannia, and the defendant, being the for- mer printer and publisher of The Britannia, began to publish a new paper under the name of The True Britannia, as an imitation and continuation of The Britannia. On motion by the plaintiff for an injunction to restrain the defendant from so doing : Held, that the plaintiff, in the circumstances of the case, was not disentitled by the fact that he was not registered at the Stamp Office as the proprietor of either newspaper, and that an injunction must be granted to restrain the defendant from 80 SAMUEL V. BERGER. publishing his paper, or any other paper, as a continuation of the plaintiff's paper, and from soliciting custom as for the plaintiff's paper. 1 142. Stewart v. Smithson. May, 1856. N. Y. C.P. l Hilt. 119; R. Cox, 175. THE plaintiffs being manufacturers of thread, which they sold under a trade-mark consisting of the words " Hall $ Moody** patent thread, Barnsley" and " Grant <$ Wilson's celebrated patent thread, Berwick" the defendants sold other thread similarly marked. Action for an injunction and an account. Motion by the defendants for leave to amend their answer refused, 011 the ground that the intended amendments, to the effect that the plaintiffs' thread had never been manufactured by any such persons as those by whom it purported to have been manu- factured, and that no patent for the thread had ever existed, if true, would constitute no defence to the action. 143. Samuel v. Berger. December, 1856. N. Y. Sup. Ct. : Davies, J. 24 Barb. 163 ; 13 How. Pr. 342 ; 4 Abb. Pr. 88; R. Cox, 178. THE plaintiff being a watchmaker who had purchased from another watchmaker, named Brindle, the exclusive right to stamp on his own watches the name of the latter, which had acquired a reputation, the defendants sold other watches made by Brindle, before the sale to the plaintiff, and stamped with his name. Motion by the plaintiff for an injunction to restrain the defendant from so doing refused, with costs, since to have granted it would have been to protect the sale of the spurious article, and restrain that of the genuine. 1 See Hogg v. Kirby, 10. 6 81 FETRIDGE V. MERCHANT. 144. Fetridge v. "Wells. January, 1857. N. Y. Super. Ct. : Duer, J. Abb. Pr. 144; 13 How. Pr. 385; R. Cox, 188. plaintiff being the proprietor of a cosmetic called " The Balm of Thousand Flowers" the defendants began to prepare and sell a similar article, under the name of " The Balm of Ten Thousand Flowers" Injunction which had been granted, on motion by the plaintiff, to restrain the defendants from so doing, dissolved, on the ground, that (1.) the name did not constitute a trade- mark ; and (2.) the plaintiff was disentitled by his own mis- representations in the following particulars, namely : First, though the compound was not derived from flowers, the name was as above, and the directions for use contained direct state- ments to that effect; second, the plaintiff in his advertise- ments falsely overstated the amount paid by him for the secret recipe ; and, thirdly, the directions contained the most exag- gerated statements with respect to the valuable qualities of the cosmetic. The defendants being in pari delicto, no costs given. 1 145. Fetridge v. Merchant. January, 1857. N. Y. Super. Ct. : Hoffman, J. lAbb.Pr. 156; R. Cox, 194. THE plaintiff being the proprietor of a cosmetic called " Balm of Thousand Flowers" the defendants sold another preparation under a similar name. On motion by the defendants to dissolve an injunction which had been granted to restrain them from so doing : Held, (1.) that the name was a fancy name, and not de- scriptive; (2.) but that the injunction must be dissolved, the plaintiff to bring an action, on the ground of the uncertainty of the plaintiff's having been the first to appropriate the name. 2 1 See Pidding v. How, 60. 2 See preceding case. 82 B, V. BRYAN. "The further removed such an appellation (i.e. a fancy name) is from actually representing the article in question, the more exclusive and decided becomes the right to it." " Even if the term used may be used in common, yet it may be employed by one with such peculiar emblems, colors, and devices, as to give to him an exclusive right. Strictly, the right of appropriation in such instances results from the peculiar emblems." 146. Bloss v. Bloomer. March, 1857. N. Y. Sup. Ct. 23 Barb. 604; R. Cox, 200. THE defendant purchased from the plaintiffs a number of seed bags, marked with the plaintiffs' label, and agreed to fill them with seeds of good quality, but filled them with inferior seeds. Action for damages. On demurrer, Held, that the plain- tiffs were not entitled to recover damages from the defendant for injury caused to their reputation by his so doing, since the contract was for a fraud upon the public, and that the demur- rer must be allowed. Per E. D. Smith, J. " If it be a crime to counterfeit labels, words, or devices previously appropriated to distinguish property, or to vend goods thus stamped, without disclosing the fact to the purchaser, it is equally an offence against the spirit of the law, equally injurious to trade and commerce, and equally an imposition upon the public, to palm off spurious goods under cover of genuine labels and devices. Contracts to do this are clearly against public policy, and should not be upheld and enforced by the courts." 147. R. v. Bryan. May 11, 1857. C. C. R.D.Sc B. 265; 7 Cox, 312; 26 L. J. M. C. 84 ; 3 Jur. N. S. 620 ; 45 C. C. C. Sess. Pap. 529. ON an indictment for obtaining money by false pretences, the prisoner having been found by the jury to have obtained advances of money from pawnbrokers on certain plated spoons, by means of fraudulent representations that the spoons had as 83 PETERSON V. HUMPHREY. much silver on them as Elkington's A, and that the founda- ations were of the best material, knowing that to be untrue : Held, that the statement made by the prisoner merely amounted to an exaggerated commendation in the course of bargaining, with respect to a matter of opinion, and not to a deliberate, misstatement of a matter of fact, and that the con- viction must be quashed. 148. Clark v. Clark. May, 1857. N. Y. Sup. Ct. 25 Barb. 76 ; R. Cox, 206. THE plaintiffs being manufacturers of thread, which they sold in spools labelled with their name and other particulars, the defendant sold other thread labelled in a very similar manner. Suit for an injunction. Injunction, which had been granted on motion by the plaintiffs, to restrain the defendant from imitating the plaintiff's trade-marks on spool cotton, and which had afterwards been dissolved, restored in part, so as to restrain the use by the defendant of his own name (which was the same as the plaintiffs') only when so placed as to produce deception, and not absolutely. 1 Per Mitchell, J. " If the wholesale buyer, who is most conversant with the marks, is not misled, but the small retailer or the consumer is, the injury is the same in law, and differs only in degree. The right of action must exist for the last as well as for the first." 149. Peterson v. Humphrey. May, 1857. N. Y. Sup. Ct.: Mitchell, /. 4 Abb. Pr. 394; R. Cox, 212. AFTER the dissolution of the firm of " Peterson $ Hum- phrey " each partner commenced a new business, and one, the defendant, trading under the name of " Humphrey $ Co" at the old premises, continued to use the old sign with the old name on the premises, without sufficient alterations to show the change in the firm. 1 See Burgess v. Burgess, 117. 84 WILLIAMS V. JOHNSON. Injunction granted to restrain the defendant from so doing, and also to restrain him from publishing any notice to the effect that he was carrying on the business of the old firm ; but the defendant to be at liberty to state that he had been a member of the old firm, and was carrying on the same kind of business as formerly. 150. "Williams v. Johnson. 1857. S. C. N. Y. General Term. 2 Bos. 1. PLAINTIFFS were manufacturers of soap, which they sold under the name of " Crenuine Yankee Soap," using a particu- lar style of wrapper, form of cake, hand-bill, etc. ; defendant put up his soap in a similar manner with slight variations. It appeared that there was sufficient doubt about the exclusive right of the plaintiffs to use the words " Crenuine Yankee " to prevent their being protected, but an injunction was granted restraining the defendant from using the simulated wrapper, etc., complained of. Per "Woodruff, J. " They (plaintiffs) have adopted (in reference to their manufacture of an article which any and every one may man- ufacture and sell if he pleases) a form and size of cake, a partic- ular mode of covering and packing, a combination of three labels on each cake, an exterior hand-bill upon the box, and have so arranged the whole as to suggest to any one desiring to purchase their soap upon an inspection, that the article is theirs and made by them. All this the defendant has copied with an exactness which is calculated to deceive even the wary, much more to entrap those who are not in the exercise of a rigid scrutiny." After citing a number of cases, it is said : " We have no hesitation in saying that his (defendant's) acts are a clear infringement of the plaintiffs' rights. He has copied the form, appearance, color, style, and substantial characteristics, in all respects, which distinguish the plaintiffs' goods." l 1 This case is generally regarded as a specific trade-mark should he infringed, leading decision going to sustain the hut it is sufficient that the court is sat- doctrine of the later cases, that, as said isfied there was an intent on the part of by Judge Clifford in McLean v. Flem- respondent to palm off his goods as the ing, 580, " it is not necessary, in order goods of the complainant." Theopin- to give a right to an injunction, that a ion has been frequently cited as main- 85 THE COLLINS COMPANY V. BROWN. 151. The Collins Company v. Brown. June 10, 1857. Wood, V. C. SK.fr J. 423; 3 Jur. N. S. 929; 30 L. T. 62. THE plaintiffs being an American company of edge-tool manufacturers, who stamped their goods " Collins Co., Hart- taining in effect that where the appear- ance of a peculiar and original package has acquired through use an understood reference to the goods of a manufact- urer, and a competing manufacturer knowingly imitates the peculiar charac- teristics of the package, with intent to deceive the public, such imitation will be held to be an infringement of the rights of the person first using the package. An indirect recognition of this now probably well-settled doctrine may, per- haps, be based upon Edelsten v. Vick, 119, and other English cases, but it can hardly be said to have found distinct expression prior to the case of Frese v. Bachof, 603, decided by Judge Wheeler, holding the United States Circuit Court for the Southern District of New York. It there appeared that there was a sim- ulation of a package having peculiar characteristics, which characteristics the court protected by injunction. The learned judge said : " Probably no mere form of a package would ever alone amount to a representation, capable of deceiving, that the wares contained in it were those of any particular make ; but when the form of these packages, the color of the wrappers and papers done up with them, and the form and color of the labels, are considered all together, it is quite apparent that when they had been so long used by the ora- tor's firm for holding this particular compound when offered for sale, that the mere appearance of the packages would amount to a representation that they contained that article of manufacture. It is equally obvious that the very slight changes made by the defendant in the general appearance of his packages .... would not put the general public purchasing such articles on their guard, and that the use of such packages for a similar article would amount to a forcible representation that it was the same article the orator's firm had been accustomed to pack in that way." The court accordingly directed that an in- junction should be granted upon cer- tain amendments being made. In the case of Enoch Morgan's Sons Co. v. Schwackhoffer, 665, decided in the Supreme Court of New York, Judge Lawrence said : " I am, there- fore, of the opinion that the plaintiffs are entitled to an injunction, restraining the defendant from vending ' Saphia,' in the blue packages in which it is now sold. By this I do not mean to be un- derstood as holding that the defendant has not the right to manufacture and also sell ' Saphia/ nor to restrain him from the use of that name, or of the figure or device upon the label. But I do intend that he shall abstain from dressing his goods in wrappers so closely resembling the plaintiff's as to enable him to deceive the public and perpetrate a fraud. That he shall not sell ' Saphia ' as and for ' Sapolio.' In other words, he must sell under his own colors and not under those of the plaintiff." In an action by the plaintiff in the case just referred to, tried before Hon. Joseph S. Bosworth, an ex-judge of the Superior Court of New York, as ref- eree, the principle was applied in a very advanced case. The learned referee formulated the rule as follows : " There was an intent on the part of the de- 86 THE COLLINS COMPANY V. COWEN. ford Cast Steel, Warranted" the defendant, an English maker, made other goods with the same stamp. Suit for an injunction and account. Demurrer by the de- fendant, on the ground of the plaintiffs' alienage, overruled. " If a man has been in the habit of using a particular mark for his goods for a long time, during which no one else has used a similar mark, and then another person begins to use the same mark, that can only be with a fraudulent intent ; and any fraud may be redressed in the country in which it is committed, whatever may be the country of the person who has been defrauded." 152. The Collins Company v. Cowen. June 11, 1857. Wood, V. C. 3 K. J. 428; 3 Jur. N. S. 929 ; 29 L. T. 245; 30 L. T. 62; 5 W. R. 676. THE plaintiffs being an American company of edge-tool manufacturers, who stamped their goods " Collins $ Co., Hart- fendants to mislead the public ; the public has been misled, and the plain- tiffs have been subjected to loss and damage thereby. Fraud and damage are thus coupled together as cause and effect." Upon the same state of facts the law, as laid down by ex-judge Bosworth, was recognized in Enoch Morgan's Sons Co. v. Hunkde, in the United States Circuit Court for the District of New Jersey. In Sawyer v. Horn, decided by the United States Circuit Court for the District of Maryland, after a careful examination of the authorities the court say : " We have come to the conclusion in the case before us, that the respondent should be enjoined from putting up his goods in the manner in which he has been doing as shown by the exhibit, or in any other manner so simulating the form, color, labels, and appearance given by the complainant to his goods as to mislead purchasers into mistak- ing one for the other. " What we decide is, that whether the complainant has a trade-mark or not, as he was the first to put up blueing for sale in the peculiarly shaped and labelled boxes adopted by him, and as his goods have become known to pur- chasers and are bought as the goods of the complainant by reason of their pe- culiar shape, color, and label, no person has the right to use the complainant's form of package, color, or label, or any imitation thereof, in such manner as to mislead purchasers into buying his goods for those of the complainant, whether they be better or worse in qual- ity." There are numerous cases which make in favor of the rule as laid down in the foregoing in which the precise question under discussion did not arise. If there are a few isolated instances which look in a different direction, a careful exam- ination will show that they are not de- cisive of more than the uncontroverted proposition that the form and appear- ance of a package never constitute a technical trade-mark. See Lee v. Haley, 325. 87 BROOKLYN WHITE-LEAD COMPANY V. MASURY. ford Cast Steely Warranted" the defendants, English makers, made other goods with the same stamp. Demurrer by the defendants, on the ground of the plain- tiffs' alienage, overruled. " The question has nothing to do with the question of copyright. " I apprehend that every subject of every country, not being an alien enemy, and even to an alien enemy the court has extended relief in cases of fraud, has a right to apply to this court to have a fraudulent injury to his property arrested. And here the plaintiffs have the right a right recognized, I imagine, everywhere in the world, or at least in every civilized community of saying, ' We, being the manufacturers of certain goods, claim that another man shall not manufacture goods, and put upon them our trade-mark, and then pass them off as manufactured by us.' " 153. Darbey v. Whitaker. July 13, 1857. Kindersley, V. C. 4 Drew. 134 ; 5 W. R. 772. SPECIFIC performance of a written agreement for the sale of a leasehold public-house, good-will, etc., refused, the agree- ment containing a clause as to arbitration which the court could not enforce : although, but for that clause, specific per- formance would have been granted. " It is said there can be no specific performance of a contract to purchase a good-will. No doubt you cannot have a specific perform- ance of a contract to purchase a good-will alone, unconnected with business premises, by reason of the uncertainty of the subject matter. But when a good-will is entirely or mainly annexed to the premises, and the contract is for the sale of the premises and good-will, there is not the slightest ground for doubt that such a contract is a fit matter for a decree in a suit for specific performance." 154. Brooklyn White-Lead Co. v. Masury. September, 1857. N. Y. Sup. Ct. 25 Barb. 416 ; R. Cox, 210. THE plaintiffs and defendant alike manufactured white-lead in Brooklyn, and had a shop in New York. The plaintiffs 88 K. V. CLOSS. labelled their kegs " Brooklyn White-Lead Co." the defend- ant at first labelled his " Brooklyn White-Lead Pure, 100 Ibs." but afterwards changed this to " Brooklyn White-Lead and Zinc Company" Injunction granted to restrain the defendant from the use of the word " Company " or " Co" as being an unlawful imi- tation of plaintiffs' corporate name. Per Mitchell, J. "It is to protect the plaintiffs' right of selling their own that the law of trade -marks has been introduced. It must include a right to sell to all, to the incautious as well as to the cau- tious. Any false name that is assumed in imitation of a prior true name is in violation of this right, and the use of it should be re- strained by injunction." 1 155. R. v. Gloss. November 30, 1857. C. C. R. D.Sf B. 460; 7 Cox, 494; 27 L. J. M. C. 54; 3 Jur.N.S. 309. ON an indictment for obtaining money by false pretences, for a cheat at common law and for forgery, the prisoner having sold a copy of a painting as the original, with the sig- nature of the painter, J. Linnell, imitated in the corner, and the jury having acquitted the prisoner on the first count, but found him guilty on the others : Held, (1.) that as to the count for forgery, the conviction was bad, there being no forgery of a written document ; (2.) that as to the count for a cheat at common law, the conviction would have been good if the count had shown that it was by the false token that the money had been obtained, but that, this not being so, the conviction on this count was bad ; (3.) and, therefore, that the conviction must be quashed. Per Cockburn, C. J. " A forgery must be of some document or writing ; and this was merely in the nature of a mark put upon the painting with a view of identifying it, and was no more than if the painter put any other arbitrary mark as a recognition of the painting being his If a person in the course of his trade, openly and 1 See Newman v. Alvard, 282. 89 AUSTEN V. BOYS. publicly carried on, were to put a false mark or token upon an arti- cle, so as to pass it off for a genuine one, when in fact it was only a spurious one, and the article was sold and money obtained by means of that false mark or token, that would be a cheat at common law." 156. Austen v. Boys. December 7, 1857; June 23, 1858. Romilly, M. R. 24 Beav. 598 ; 27 L. J. Ch. 243; 3 Jur. N. S. 1285; 30 L. T. 216. Lord Chelmsford, C. 2DeG.frJ. 626; 27 L. J. Ch. 714; 4 Jur. N. S. 719 ; 31 L. T. 276; 6 W. R. 729. PARTNERSHIP suit. The parties, solicitors, having agreed, by their articles of partnership, to become partners for seven years, and the articles providing that, if either retired, he should receive the value of his good- will : Held, that on the retirement of one of the partners, by no- tice given two days before the end of the seven years, he was only entitled to receive the value of the good-will as for those two days, and not as of a going concern. Per Lord Chelmsford, C. " It is very difficult to give any intel- ligible meaning to the term ' good-will ' as applied to the professional practice of a solicitor in this abstract sense. Where a trade is estab- lished in a particular place, the good-will of that trade means nothing more than the sum of money which any person would be willing to give for the chance of being able to keep the trade connected with the place where it has been carried on. It was truly said in argu- ment that ' good-will ' is something distinct from the profits of a busi- ness, although in determining its value the profits are necessarily taken into account ; and it is usually estimated at so many years' pur- chase upon the amount of these profits. But the term ' good-will ' seems wholly inapplicable to the business of a solicitor, which has no local existence, but is entirely personal, depending upon the trust and confidence which persons may repose in his integrity and ability to conduct their legal affairs." 90 DAVIES V. HODGSON. 157. Welch v. Knott. December 22, 1857. Wood, V. C. 4 K. If J. 747; 4 Jur. N. S. 330. THE plaintiffs being manufacturers of soda-water, which they sold in bottles in which were moulded the words " J. ScJiweppe Co., 51 Berners Street, Oxford Street, Genuine Superior Aerated Waters" and which had a label of colored paper over the cork, with the words " J. Schweppe $ Co." the defendant sold other soda-water in old bottles of the plain- tiffs', moulded with their name, and with somewhat similar labels over the cork, but printed with the words " Soda Water," instead of the plaintiffs' name. On motion to dissolve an injunction which had been granted, on motion by the plaintiffs, to restrain the defendant from infringing the plaintiffs' rights : Held, that the injunction must be dissolved, on the ground that the bottles were not shown to have been sold, when re- filled, with any intention to deceive, or probability of decep- tion, although if a probability of deception had been caused, though unintentionally, by the defendant, the injunction would have been continued. 158. Davies v. Hodgson. February 15, 1858. Romilly, M. R. 25 Beav. 177; 27 L. J. Ch. 449 ; 4 Jur. N. S. 252; 31 L. T. 49 ; 6 W. R. 355. ADMINISTRATION suit. Held, that since a surviving part- ner or clerk, who is appointed executor, remains at liberty to continue to carry on the same trade, a purchaser of the good- will of a testator's business must take it subject to the chance of retaining the old customers, and that, in the case in ques- tion, the good-will was valueless, since the brother of the tes- tator, who had been actively concerned in the business, could not be prevented from continuing to carry it on. 91 B. V. SMITH. 159. Ex parte Foss ; In re Baldwin. February 16, March 23,1858. Evans, Comm. 30 L. T. 354. Knight Bruce and Turner, L. JJ. 2 De G. Sf J. 230; 27 L. J. BanWcy, 17 ; 4 Jur. N. S. 522; 31 L. T. 30. THE registered proprietor of the Standard and St. James' Chronicle newspapers became bankrupt while the sheriff was in possession of his premises. Held, that the right of publication of the newspapers was property, and therefore " goods and chattels " within the enactments in the bankruptcy acts as to reputed ownership ; but that it was intangible property, and, therefore, incapable of seizure by a sheriff, and, therefore, that though the sheriff was in possession of the premises at the time of the bank- ruptcy, the right of publication passed to the assignees in bankruptcy. 160. Lazenby v. Lazenby. March 17, 1858. Romilly, M. R. Seton, 175. Ingrain v. Stiff. June 3, 1859. Knight Bruce and Turner, L. JJ. 5 Jur. N. S. 947 ; 83 L. T. 195. THE plaintiff being the proprietor and publisher of a peri- odical called "The London Journal" the defendant, the for- 1 See Hogg v. Kirby, 10. 99 MELLERSH V. KEEN. mer proprietor and publisher of that journal, advertised a new periodical to be published by him under the name of "The London Daily Journal" On motion by the plaintiff, injunction granted by V. C. Wood to restrain the defendant from so doing, and continued on appeal. 1 176. Smith v. Everett. June 30, 1859. Romilly, M. R. 27 Beav. 446; 29 L. J. Ch. 236; 5 Jur. N. S. 1332; 34 L. T. 58; 7 W. R. 605. THE defendant, being the survivor of two partners in a banking business, sold the good-will of the business for a con- siderable sum. Suit by the widow and executrix of the de- ceased partner for the purpose of obtaining half the proceeds of the good-will for her testator's estate. Held, that the es- tate of a deceased partner was entitled to a share in the value of the good-will of the business, but that, in ascertaining the share, regard must be had to the rights of the surviving part- ner; and that in the case in question the share of the estate of the deceased partner in the proceeds of the good-will must be ascertained, regard being had to the facts, that (1.) the premises on which the business was carried on belonged to the survivor; (2.) the survivor was entitled to carry on a banking business at the same place after the sale of the good- will ; (3.) the sole right of issuing bank notes survived to the survivor. 177. Mellersh v. Keen. July 12, 1859 ; July 6, 1860. Romilly, M. R. 27 Beav. 236; 28 Beav. 453. PAETNEBSHIP suit. Held, (1.) that partners in a bank- ing business, who had obtained the whole benefit of the good- will and firm name, must account to the retiring partner for his share of the value of the good-will, etc., as at the date of the dissolution ; (2.) that, in estimating such value, regard 1 See Hogg v. Kirby, 10. 100 WOLFE V. GOULARD. must be had to the fact that the continuing partners were at liberty to carry on the business and issue notes, without that being treated as part of the good-will ; (3.) that the value had been correctly estimated by the chief clerk at one year's net annual profits, calculated on an average of the three years preceding the dissolution. 28 Beav. 456. "The difficulty of ascertaining the value of the good-will of a business is very great But the court is bound to look at it in this point of view : What would it have produced, if it had been sold in the most advantageous manner, and under such circumstances that it would have produced the largest sum for all the parties interested ? " 178. Dayton v. Wilkes. September, 1859. N. Y. Super. Ct. : Hoffman, J. 17 How. Pr. 510; R. Cox, 224. PARTNERSHIP suit. Held, that on the dissolution of part- nership between the proprietors of a newspaper called " Por- ter's Spirit of the Times," the good-will, title, etc., of the paper were partnership assets, and must be protected and dis- posed of for the benefit of the creditors of the firm, or of the partners jointly. 179. "Wolfe v. Goulard. October, 1859. N. Y. Sup. Ct. : Ingraham, J. 18 How. Pr. 64 ; R. Cox, 226. THE plaintiff being the manufacturer of " Wolfe's Schie- dam Schnapps" the defendant began to sell another spirit as " Voldner's Schiedam Schnapps." On motion by the defendant, injunction which had been granted to restrain the defendant from so doing dissolved, on the ground that there was nothing distinctive in the words " Schiedam Schnapps," which alone had been imitated. " No person can acquire a right to the exclusive use of words, ap- plied as the name of an article sold by him, if in their ordinary ac- ceptation they designate the same or a similar article." 101 CEOOKES v. FETTER. 18O. Comstock v. White. February, 1860. N. Y. Sup. Ct. : Sutherland, J. 18 How. Pr. 421 ; R. Cox, 232. THE plaintiffs and defendants having carried on business as pill manufacturers in partnership, under the name of " A. J. White $ Co." the defendants left the plaintiffs and car- ried on the same business on their own account, under the old name. On motion by the defendants, injunction which had been granted continued, so far as it restrained the defendants from applying to their pills the term " Dr. Morse's Indian Root Pills" in imitation of the plaintiffs', but dissolved so far as it restrained the use by the defendants, in connection with the manufacture of pills, of the name of their firm, " A. J. White $ Co." the name of one of the defendants being U A. J. White;" and Held, that exaggerated commendations of their medicines did not disentitle the plaintiffs as against defendants who had been engaged with them in the same business. 181. Crookes v. Fetter. February 16, 1860. Romilly, M. R. 6 Jur. N. S. 1131; 3 L. T. N. S. 225. THE plaintiff being the editor of a journal called The Pho- tographic News, under an agreement with the defendants, the proprietors of the journal, by which it was provided that the title should not be altered without mutual consent, the de- fendants terminated the agreement with the plaintiff, and omitted his name from the title-page. Motion by the plain- tiff for an injunction to restrain the defendants from so doing refused, on the ground that the name of the editor, appearing on the title-page, formed no part of the title. 102 HOWE V. SEARING. 182. R. v. Jones. March, 1860. Middlesex Sessions. Lloyd on Trade-Marks, 11; Po- land on the Merchandise Marks Act, 1862, p. 33.- ON an indictment for obtaining money by false pretences, the prisoner having used spurious wrappers similar to those in which Borwick's Baking Powder was inclosed, Prisoner convicted 3 years' penal servitude. 183. R. v. Gray & Gosling. Lloyd on Trade-Marks, 11. ON an indictment for obtaining money by false pretences, the prisoners having fraudulently used labels imitated from those placed on Allsopp's ales, Prisoners convicted 12 months' hard labor. 184. Barrows v. Knight. March, 1860. Rhode I. Sup. Ct. 6 R. I. 434 ; R. Cox, 238. THE plaintiff being a manufacturer of cotton cloth, which he stamped with the words " Roger Williams 9 Long Cloth," the defendants marked other cotton cloth with the name " Roger Williams." Action on thecase. Demurrer overruled, and Held, (1.) that the name was a good trade-mark, being the name of a dead celebrity ; (2,) that exact imitation was not requisite to entitle the plaintiff to his remedy. 185. Howe v. Searing. March, 1860. N. Y. Super. Ct. B Bos. 354 ; 10 Abb. Pr. 264 ; 19 How. Pr. 14 ; R. Cox, 244. THE plaintiff sold the good-will of his baking business at New York, known as " Howe's Bakery" to B., covenanting not to resume the same business in the same city without B.'s consent. He afterwards purchased from B. the right to 103 CORWIN V. DALY. resume business at New York, covenanting not to interfere with the latter's business. The defendant bought the bakery from B., and continued to trade in the old name of " Howe's Bakery" Action for an injunction. Held, that the plaintiff was en- titled to an injunction to restrain the defendant from using the old name of " Howe's Bakery" and otherwise using the plaintiff's name in the business, on the ground that the sale of a good-will did not of itself give a right to the use of the trade name. Per Hoffman, J. " It is, I apprehend, a well settled rule that the good-will of a partnership business does not survive to a continuing partner. It belongs to the firm as much as the ordinary stock in trade, and must be disposed of in some manner for the benefit of the firm." 186. Colladay v. Baird. 1860. Phila. C. P. : Ludlow, J. 4 Phila. 139; R. Cox, 257. THE plaintiff being a manufacturer of cotton goods known as " Aramingo Check" which he sold ticketed with a label on which the words " Aramingo Mills " were prominent, the de- fendant began to sell other goods, also bearing a label on which the name " Aramingo Mills " appeared. Injunction to restrain the defendant from the use of the words "Aramingo Mills " refused, on the ground that the manner in which the defendant used the words was so differ- ent from that in which the plaintiff used them that deception was not to be anticipated. 1 187. Corwin v. Daly. June, 1860. N. Y. Super. Ct. 7 Bos. 222 ; R. Cox, 265. THE plaintiffs selling gin in bottles labelled " Club-House Grin" the defendants sold other gin in bottles labelled "Lon- don Club-House Grin" Injunction to restrain the defendants from using the term 1 The decision in this case is entirely without force. See Burnett v. Phalon, 277. 104 ROBERTSON V. QUIDDINGTON. " Club-House " gin refused, on the ground that the term was generally understood to be indicative of a certain superior quality, and not of the plaintiffs' manufacture. 188. Byass v. Sullivan. July, 1860. N. F. Sup. Ct. : Bonney, J. 21 How. Pr. 50 ; R. Cox, 278. THE defendant sold bottled porter labelled in imitation of the plaintiff's labels with the words " Best Stout Porter from JR. B. Byass, London" and a fac-simile of his signature. On a reference to ascertain the damages sustained by the plaintiff by reason of the defendant's, wrongful conduct: Held, that the defendant was privileged from answering certain questions, and producing books or papers which might tend to convict him of a criminal offence, but that in other respects he must make full discovery. 189. Robertson v. Quiddington. July 1 7, 1860. Romilly, M. R. 28 Beav. 529. THE owner of a two thirds share in a partnership business having bequeathed two thirds of his share in the good-will alone to his son-in-law, and his share in the partnership prop- erty, apart from the good-will, having been assigned by his executors to the surviving partner : Held, that notwithstanding that the executors had assented to the bequest of the share of the good-will, it was not com- petent for the son-in-law and legatee to file a bill against the legatee of the remaining one third part of the testator's share of the good- will, and the surviving partner, who was entitled to all the rest of the good- will, to have the bequest specifically made good, and also, on the authority of Lewis v. Langdon, that the firm name survived to the surviving partner. " The good-will is a valuable and tangible thing in many cases, but it is never a tangible thing unless it is connected with the busi- ness itself, from which it cannot be separated, and I never knew a case in which it has been so treated." 105 HOBBS V. FRAN. 101. THE words " R. J. Roberts' Diamond-edge Razor. Every razor warranted," admitted to registration as a trade-mark. 362. In re Roberts. (4.) May 17, 1871. U. S. Patent Office: Leggett, Comm. U. S. Pat. Comm. Decis. 1871, p. 100. APPLICATION for the registration of the words " Razor- steel " as a trade-mark, in respect of cutlery, refused, on the ground that the words were purely descriptive of the sub- stance and qualities of the article. 363. Gray v. Koch. 1871. Michigan C. C : Sutherland, J. 2 Mich. N. P. 119. THE plaintiff having begun to style his establishment for the sale of ready-made clothes "The Mammoth Wardrobe," and having placed those words over his door, and advertised them, but always in connection with 'his name and address, the defendant, who kept an establishment next door to the plaintiff's, placed the same words over his shop. Motion by the plaintiff for an injunction to restrain the de- fendant from allowing those words to remain refused, on the ground that the words in question were descriptive of an estab- lishment of the kind, and were truthfully used by the defend- ant ; and that, further, the different names used in connection with those words would probably suffice to prevent decep- tion. " The plaintiff has no right to appropriate a sign or symbol which, from the nature of the fact it is meant to signify, others may employ with equal truth for the same purpose. Names having a definite and established meaning in the language, and which do not indicate ownership or origin, or something equivalent, cannot be appropriated 205 GARDNER V. BAILEY. 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 prop- erty, or peculiar place of business of a person." l 364. The Alleghany Fertilizer Co. v. Woodside. 1871. U. S. C. C. Dt. ofMd.: Giles, J. l Hughes, 115. THE plaintiff company manufacturing, at Boston, an agri- cultural compost, under the name of " Eureka Ammoniated Bone Superphosphate of Lime," the defendants, a Baltimore firm, who had been the plaintiffs' agents, began to sell an- other article as "Baltimore 'Eureka ' Ammoniated Bone Super- phosphate of Lime" Injunction granted to restrain the defendants from infring- ing the plaintiffs' rights, on the ground that the word "Eu- reka " was a valid trade-mark, though the remaining descrip- tive words could not be exclusively appropriated. " The natural or proper designation of an article can never become a trade-mark, because anybody making the article has a right to call it by its proper name. But a purely arbitrary or fanciful appellation, for the first time used to distinguish an article to which it has no natural or necessary relation, does, by virtue of that very appropria- tion and subsequent use, become a trade-mark." 365. Gardner v. Bailey. 1871. U. S. C. C. Dt. ofPenn. Codd. Dig. 131. THE plaintiffs being owners of certain mills called " The Stark Mills" and manufacturers there of seamless bags, on which they placed the word " Stark " over a semicircular arch, with the letter "A" beneath, the defendants made and sold similar goods, similarly marked, except that they sub- stituted the word " Star " for " Stark" Injunction granted to restrain the defendants from infring- ing the plaintiffs' rights. 1 See Howard v. Henriques, 108. 206 SOHL V. GEISENDORF. 366. Hostetter v. Vowinkle. 1871. U. S. C. C. Dt, of Neb. : Dillon and Dundy, JJ. 1 Dill. 329. THE plaintiffs being manufacturers of " Hostetter's Cele- brated Stomach Bitters," which they sold in bottles labelled with that name, directions for use, a device of St. George and the Dragon, a likeness of the inventor, and a fac-simile signa- ture " Hostetter $ Smith" the defendants began to sell other bitters under the plaintiffs' label without alteration, but after- wards changed " Hostetter " to " Hohteter" and " Hostetter Smith" to " Hohteter Smyte" Injunction granted to restrain the defendants from infring- ing the plaintiffs' rights, and damages assessed at the amount of profits which the plaintiffs would have made, if they had sold the same quantity of their cordial as the defendants had sold of theirs under the spurious label. 367. Sohl v. Geisendorf. 1871. Indianapolis Super. Ct.: Rand, J. l Wilson (2nd.), 60. THE plaintiffs being flour dealers, the defendants sold flour under similar trade-marks. On motion by the plaintiffs injunction granted to restrain the defendants from infringing the plaintiffs' rights ; and Held, (1.) that the fact that the plaintiffs had purchased part of their trade-mark and invented the rest did not inter- fere with their exclusive right ; (2.) that an abandonment of their mark by the plaintiffs was not proved by the fact that some isolated features of their mark had been used by others ; (3.) that the fact that the mark to some extent indicated quality did not disentitle the plaintiffs ; (4.) that the defend- ants could derive no title under a sale from one of the persons who had previously sold to the plaintiffs. " If the two marks were seen at different times or places, a major- ity of purchasers would not distinguish the oue from the other, unless their attention was specially called to the difference. If such be the 207 UPMANN V. ELKAN. case, the law is well settled that the defendants' trade-mark is an infringement of the plaintiffs', even if the marks, side by side, would not mislead." 368. Reeves v. Denicke. June, 1871. N. Y. Super. Ct. : Monell, J. 12 Abb. Pr. N. S. 92. THE plaintiffs trading as " E. H. Reeves $ Co.," the princi- pal partner being " E. H. Reeves" the defendants, who had formerly been in partnership with E. H. Reeves, as " E. H. Reeves $ (70.," and to whom E. H. Reeves had assigned his interest in the property of that partnership, traded under the name of " Robert C. Reeves, successor to E. H. Reeves $ Co." Injunction granted and continued to restrain the defend- ants from continuing to use the name " E. H. Reeves $ (70.," even in that combination. 369. Upmann v. Blkan. June 5, December 5, 1871. Lord Romilly, M. R. L. R. 12 Eq. 140 ; 40 L. J. Ch. 475; 24 L. T. N. S. 896 ; 19 W. R. 867. Lord Hather- ley, C. L. R. 7 Ch. 130 ; 41 L. J. Ch. 246 ; 25 L. T. N. S. 813 ; 20 W. R. 181. THE plaintiffs, being cigar manufacturers in Cuba, discov- ered that boxes of spurious cigars, bearing their marks, had arrived in the St. Katharine Docks, and were entered in the names of the defendants, Messrs. Elkan, forwarding agents. Suit for an injunction to restrain those defendants from dealing with the boxes of cigars in question, and from in- fringing their trade-marks. Held, (1.) that the defendants, Messrs. Elkan, were not protected from the injunction by the fact that they did not deal in the goods, but only acted as forwarding agents ; (2.) that, on their undertaking to give immediate notice of fresh consignments of marked cigars, they should not have to pay the plaintiffs' costs, since they had offered to give what infor- mation they could, had not participated in the fraud, and had 208 CONDENSED MILK CO. V. CONDENSED MILK CO. submitted to act as the court should direct ; (3.) that they were not entitled to receive their costs from the plaintiffs, not having submitted unconditionally ; (4.) that innocent con- signees of the goods spuriously marked were entitled to the costs occasioned by their being made parties to the suit ; (5.) that those consignees must pay their own costs of the appeal, having appeared, though informed that no alteration in the order as affecting them would be asked ; (6.J that the Dock Company who held the goods in the name of Messrs. Elkan were entitled to their costs ; (7.) that the consignors should be at liberty to intervene, and that, if they did not do so, the spurious marks should be erased, and the plaintiffs should have a lien on the cigars for their costs and the costs of the Dock Company. Per M. R. " It is his duty (i. e. the duty of the person in whose name the Dock Company hold the goods spuriously marked) at once to give all the information required, and to undertake that the goods shall not be removed or dealt with until the spurious brand has been removed, and to offer to give all facilities to the person injured for that purpose. If, after that, the person injured files a bill, though he will be entitled to all that he asks in the shape of relief, as he might have got it all without suit, he will not get from such defendants the costs of the suit, and he may have to pay them. I do not mean by this to lay down that the plaintiff by which I mean the person whose trade-mark is fraudulently imitated may not file a bill with- out making any inquiry at all." 370. The Anglo-Swiss Condensed Milk Co. v. The Swiss Condensed Milk Co. July 6, 1871. Malins, V. C. W. N. 1871,^. 163; L. J. Notes of Cases, 1871, p. 154. THE plaintiffs selling their condensed milk in tins bearing labels with the figure of a milk-maid, with a medal on either side, the defendants began to sell milk in tins labelled with the figure of a milkman, with the arms of Switzerland in a medallion on either side, and having other particulars imitated from the plaintiffs' labels. 14 209 MOORMAN V. HOGE. On motion by the plaintiffs injunction granted to restrain the defendants from infringing the plaintiffs' rights ; but the plaintiffs not having taken any proceedings on hearing of the arrival of the first small consignment, but having waited for the arrival of a larger quantity before doing so, the injunc- tion not to extend to the milk already arrived and warehoused in London. " It is not necessary, in order to enable the court to interfere, that there shall be absolute identity ; but there certainly is so close a re- semblance between the two as to deceive an ordinary purchaser." 371. In re The Dutcher Temple Co. September 21, 1871. U. S. Patent Office: Leggett, Comm. U. S. Pat. Comm. Decis. 1871, p. 248. THE letter ".D." enclosed within a lozenge, admitted to registration as a trade-mark on loom temples, on the ground that it was sufficiently distinctive of the origin of the goods, and was not descriptive of kind or quality. 372. Wilder v. Wilder. Kentucky Chancery. Cited 2 Sawyer, 78-89. INJUNCTION granted to restrain the defendants from selling a compound under the name of " J. B. Wilder $ Co.'s Stomach Bitters" and from imitating the bottles in which the plain- tiff's compound was contained, or the labels affixed to them. 373. Moorman v. Hoge. October, 1871. U. S. C. C. Dt. of Cal. : Sawyer, J. 2 Sawyer, 78 ; 4 Am. L.T.217; 6 Am. L. Rev. 365. THE plaintiffs being whiskey manufacturers, who sold their article in a barrel of peculiar dimensions, which had ac- quired the name of " The Cutter Barrel" after the plaintiffs' predecessor in business, and which, together with the brands impressed upon it, had been duly registered as a trade-mark 210 MOORMAN V. HOGE. in the U. S. Registry, the defendants acted as agents for the sale of whiskey contained in barrels of similar dimensions, but having entirely different brands. Injunction to restrain the defendants from infringing the plaintiffs' rights refused, on the ground that (1.) a certificate by the commissioner of patents, of registration as a trade-mark, did not preclude the court from considering whether a mark placed on the registry was a good one or not ; (2.) that a bar- rel of peculiar dimensions could not become a trade-mark, to be protected irrespective of the brands on it, although if the brands were partially imitated, an imitation of the peculiar barrel would be an element in deciding the question of fraud- ulent intention. " I find no case where the use of a package of peculiar form and dimensions has been restrained, without having imprinted upon, or connected with it, some other symbol, word, letter, or form, adopted as a trade-mark." l 1 The question considered in this case was whether a barrel of a particular kind could be protected as a trade-mark ; it is similar to Harrington v. Libby, 538, which see. The court said : " Complainants do not claim that there is any infringe- ment upon that part of what they claim to be their trade-mark, which consists of the words and devices stamped upon the barrel. The claim is that there is an infringement by the use of the bar- rel only. "Is the plaintiff entitled to the ex- clusive use of a barrel of this peculiar form, construction, and capacity, with- out regard to any mark or device im- pressed upon, or connected with it ? Can a barrel of this description be ap- propriated as a trade-mark, or substan- tive part of a trade-mark, so as to ex- clude the rest of the world from using it in the same branch of business ? . . . . The use of the barrel with a simulation of the complainant's trade-mark im- pressed upon it would, doubtless, be re- strained. But to extend the privilege of trade-mark to the barrel in question alone, without having impressed upon, or in any way connected with it, any of the other words, symbols, or devices claimed and used by the complainants as a part of their trade-mark, or any colorable imitation of it, would, in my judgment, be to go further than any case heretofore decided, and extend the privileges of trade-mark to subjects not recognized by any established legal principles applicable to the subject. After a careful examination of the question, my conclusion is, that the barrel in question, without any other marks or symbols, is not, and that it cannot become, a lawful trade-mark, or a substantive or integral part of a lawful trade-mark, and that complain- ants have no exclusive right to its use as such." 211 IN BE BLAKESLEB & CO. 374. Seltzer v. Powell. November, 1871. Phila. C. P. : Paxson, J. 8 Phila. 296. THE plaintiffs having manufactured whiskey, and sold it as " Silver Grove " whiskey, since 1867, though it did not appear that the name was generally known, the defendant began in 1870 to sell whiskey under the name of " Silver Brook " whiskey. On motion by the defendant, injunction which had been granted to restrain him from using those words dissolved, on the ground that the prior appropriation by the plaintiffs was not sufficiently clearly made out, and that they must establish their claim at law before they could obtain an in- junction. 375. In re Francis & Mallon. November 8, 1871. U. S. Patent Office: Leggett, Comm. U. S. Pat. Comm. Decis. 1871, p. 283. THE word " Beaverine " admitted to registration as a trade- mark on boots and shoes made partly of beaver cloth and partly of leather, on the ground that, though the word was suggestive of the material of which the article was in part made, it was not a word known to the language and in com- mon use, but a fancy word newly coined for the purpose of being used on the applicants' goods. 376. In re Blakeslee & Co. November 15, 1871. U. S. Patent Office: Leggett, Comm. U. S. Pat. Comm. Decis. 1871, p. 284. APPLICATION for registration of the words and letters " Cundurango Ointment, C. #.," as a trade-mark, in respect of ointment containing cundurango, a South American plant, refused, on the ground that the words were descriptive of the article, and that the letters did not add the requisite distiuct- iveness., 212 ABBOTT v. BAKERS', ETC., ASSOCIATION. 377. In re Hauthaway. (2.) November 15, 1871. V. S. Patent Office: Leggett, Comm. U. S. Pat, Camtn. Decis. 187 1, p, 284. AN application to register the words "Beeswax Oil" as a trade-mark having been refused on the ground of their being merely descriptive [In re Hauthaway. (1.)] : Motion to reopen the case, on the ground that the practice of the office had been changed since that decision, refused ; and Held, that there was no change in the practice. 378. In re Palmer. November 16, 1871. U. S. Patent Office : Leggett, Comm. U. S. Pal. Comm. Decis. 1871, p. 289. APPLICATION for the registration of the word " Invisible " as a trade-mark, in respect of packets of face powder, refused, on the ground that, though the word might be a trade-mark if used in a non-natural sense, yet, when applied to face pow- der, it was merely indicative of a quality of the article. 379. Abbott v. The Bakers' and Confectioners' Tea As- sociation, Limited. November 16, 1871 ; February 8, 1872. Malins, V. C. W. N. 1871, p. 207 ; L. J. Notes of Cases, 1871, p. 199. Lord Hatherley, C. W. N. 1872, p. 31. THE plaintiffs being tea merchants, the defendants sold tea in wrappers similar to those in which the plaintiffs' tea was sold, the general appearance being imitated, though the de- tails differed. Injunction granted to restrain the defendants from infring- ing the plaintiffs' rights. Per V. C. (L. J. N. of C. 1871, p. 199). "The rale of the court is that a man who has adopted a distinguishing mark has a right to be protected against any other person adopting one sufficiently like it to mislead an unwary public." 213 EX PABTE DAWES AND FANNING. Per L. C. (W. N. 1872, p. 31). " Though no one particular mark is exactly imitated, the combination is very similar and likely to de- ceive. It is true that there is no proof that any one has been deceived, or that the plaintiffs have incurred any loss ; but where the similarity is obvious that is not of importance." 1 380. In re Whyte. November 28, 1871. U. S. Patent Office: Duncan, Act. Comm. U. S. Pat. Comm. Decis. 1871,^. 304. APPLICATION for letters patent for a device described by the applicant as an " ornamental print for fabrics " refused, on the ground that the real intention of the applicant was to use the device by way of a trade-mark, and that this being so, he must apply for its registration as a trade-mark, and not for letters patent for it as a design. 381. Isaacson v. Thompson. December 6, 1871. Bacon, V. C. 41 L. J. Ch. 101 ; 20 W. R. 196. THE plaintiff trading as a milliner under the name of " Madame Louise" the defendant began to use on his shops the names of "Agnes Ellis " and " E. Louise" under the pre- tence that they were his daughters' names. Motion by the plaintiff for an injunction to restrain the defendant from using those names, or otherwise causing his shops to be mistaken for the plaintiff's, refused, on the ground that the plaintiff had delayed moving for nine or ten months after he had obtained sufficient evidence of actual deception. " It is one of the most wholesome rules that a person who comes for the extraordinary relief of an injunction should come speedily." 382. Ex parte Dawes & Fanning. 1871. U. S. Patent Office : Leggett, Comm. lU.S. Pat. Gaz. 27. ON an application to register a trade-mark for use on um- brellas, consisting of the number "140 ": 1 See Williams v. Johnson, 150. 214 FORD V. FOSTER. Held, that the number was a good trade-mark within the U. S. Statute of 1870, as consisting of an arbitrarily selected combination of numerals, and not used in its ordinary signifi- cation, and registration granted. 383. Bond v. Milbourn. December 20, 1871. Bacon, V. C. 20 W. R. 197. PARTNERSHIP suit. The plaintiff and defendant having carried on business in partnership under the style of "James Milbourn $ Co.," and the plaintiff having bought the interest of the defendant in the partnership, under a provision in the articles, the defend- ant set up business next door, and employed his former work- men, and used the former style, so as to render the good-will purchased by the plaintiff valueless. Held, that the plaintiff was not entitled to have the pre- mium he had paid on originally entering the partnership returned to him, since " Milbourn " was the defendant's own name, which he had a right to use in his business, and there was no provision in the articles for a return of premium. 384. Ford v. Foster. January 18, June 11, 1872. Bacon, V. C. L.R.I Ch. 616 ; 27 L. T. N. S. 220; 20 W. R. 311. James and Hellish, L. JJ.L. R. 7 Ch. 611; 41 L. J. Ch. 682; 27 L. T. N. S. 219; 20 W. R. 818. THE plaintiff being the manufacturer of " Ford's Eureka Shirt," which he marked " R. Ford's Eureka Shirt, London," the defendants sold other shirts as " The Eureka Shirt" and marked with those words. Injunction granted, on appeal, to restrain the defendants from using the name " Eureka " upon any shirts not of the plaintiff's make, but the injunction not to extend to advertise- ments between the defendants and the trade ; and Held, (1.) that the fact that the plaintiff had habitually used his own name with the fancy name did not deprive him of his 215 LABOUCHERE V. DAWSON. remedy ; (2.) that the name in question was not proved to have become publici Juris ; (3.) that the plaintiff was not disentitled by reason of having called himself " patentee " in his advertisements, the misrepresentation being, at most, col- lateral ; (4.) that the plaintiff not having been active in de- fending his rights, and the defendants' business and connec- tion being much larger than his, so as to make it impossible to calculate the sales lost to the plaintiff by those effected by the defendants, the account should be granted only from the filing of the bill. Per Mellish, L. J. "What is the test by which a decision is to be arrived at whether a word which was originally a trade-mark has become publici juris ? I think the test must be whether the use of it by other persons is still calculated to deceive the public ; whether it may still have the effect of inducing the public to buy goods not made by the original owner of the trade-mark as if they were his goods." 385. Labouohere v. Dawson. January 18, 1872. Lord Romilly, M. R. L. R. 13 .E?. 322; 41 Z. J. Ch. 427; 25 L. T. N. S. 894; 20 W. R. 309. THE plaintiffs having purchased a brewery business, the defendant, being one of the vendors, set up in business in an- other place, and solicited his former customers to deal with him and not with the plaintiffs, so as to destroy the value of the business he had sold. On motion by the plaintiffs injunction granted to restrain the defendant from so doing. " The good-will is the probability of the old customers going to the new firm to whom the business is sold." " The new firm, the defendant in this case, is entitled to publish any advertisement he pleases in the papers, stating that he is carry- ing on such business. He is entitled to publish any circulars to all the world to say that he is carrying on such a business, but he is not entitled, either by private letter, or by a visit, or by his traveller or agent, to go to any person who was a customer of the old firm and solicit him not to continue his business with the old firm, but to trans- 216 JAMES V. JAMES. fer it to him, the new firm. That is not a fair and reasonable thing to do after he has sold the good-will." 386. Rowland v. Breidenbach. Lord Romilly, M. R. Cited 1 Trade-Marks, 261. THE plaintiff being the manufacturer of Rowland's " Ma- cassar " Oil, the defendant began to manufacture and sell an- other article under the name of " Macas&arine" Injunction to restrain the defendant from so doing refused, on the ground that the name of the plaintiff's article was descriptive. 387. Weed v. Peterson. February, 1872. N. Y. Sup. Ct. : Learned, J. 12 466. Pr. N. S. 178. THE plaintiffs having succeeded to the business of " D. Simmons $ Co." and having acquired the right to use that name and the name "D. /Simmons" alone as their trade-mark, the defendants used the name " D. Simmons " on their goods, having received the stamps and labels from their predecessors in business who had wrongfully used the same. Action for an injunction to restrain the defendants from so doing. Held, (1.) that the plaintiffs were entitled to an injunction to restrain the defendants from using the name, notwithstand- ing that the latter had acted in ignorance of the plaintiffs' rights, and had since discontinued their business altogether, and that costs must be given ; (2.) but that the plaintiffs were not entitled to recover damages from the defendants, since they had acted perfectly bond fide. 388. James v. James. February 23, 1872. Lord Romilly, M. R. L. R. 13 Eg. 421 ; 41 L. J. Ch. 353; 26 L. T. N. S. 568; 20 W. R. 434. THE plaintiffs being persons entitled, under an assignment by Robert James, the original inventor, to an ointment known 217 GREEN V. ROOKE. as 'J Lieutenant James' Horse Blister," the defendant, Robert Joseph James, began to sell an ointment under the same name, with the signature " Robert James," and a statement that it alone was genuine. Injunction granted to restrain the defendant from omitting the name Joseph from his signature, and from stating that his ointment alone was genuine ; but Held, that the defendant could not be restrained from using the name " Lieutenant James' Horse Blister" that having be- come the name by which the article was known, and the de- fendant not having come into possession of the secret recipe by a breach of trust or fraud. " When a person has discovered a valuable invention, and has not patented it, any one who has discovered the ingredients (I am not talking of the case of a breach of trust, or of fraud, or the like) may sell those ingredients, and may use the name of the person who has discovered them after his death, but not in his lifetime, so as to sug- gest that they are made by him." * 389. Green v. Rooke. February 23, 1872. Wickens, V. C. W. N. 1872, p. 49; L. J. Notes of Cases, I872,p. 54. THE plaintiff being the proprietor of an ointment known as " Dr. Johnson's " or " Singleton's Golden Ointment," the recipe of which had been invented by one Dr. Johnson in the seventeenth century, and had long been in the possession of the Singleton family, the defendant began to sell an ointment under the name of " Dr. Moose's Grolden Ointment." Motion by the plaintiff for an injunction to restrain the de- fendant from selling any ointment under the name " Grolden Ointment" refused, on the ground that, although persons were not at liberty to sell " Singleton's Ointment," there was no law to prevent the sale of " Grolden Ointment " by those who could discover its composition. 2 1 See Thorley's Cattle Food Co. v. 2 See Singleton v. Bolton, 4. Massam, 671. 218 HALLETT V. CUMSTON. 39O. Wolfe v. Barnett. February, 1872. Sup. Ct. of Louisiana. 24 La. Ann. 97; 13 Amur. Rep. 111. THE plaintiff making and selling " Wolfe's Aromatic Schie- dam Schnapps," the defendants sold other spirits under the same name. Injunction granted to restrain the defendants from so do- ing, with damages ; and Held, that the following defences failed : (1.) that the defendants had used their mark for ten years ; (2.) that the plaintiff was not the first manufacturer of the article; (3.) that the separate words used by the plaintiff were not new, the combination being so ; (4.) that the defendants had a written permission from a Mr. Wolfe, not being the plaintiff, to use his name ; (5.) that the plaintiff's label, which he stated to be copyright, did not show the date of entry. 391. Hallett v. Cumston. March, 1872. Mass. Sup. Ct. 110 Mass. (14 Browne) 29. THE plaintiff having been in partnership with the defend- ant's father as " Hallett $ Cumston" and having, on the ter- mination of the partnership, entered into the latter's service under an agreement by which the latter was to have the use of the plaintiff's name during the continuance of the agree- ment, the defendant continued, after his father's death, to carry on his father's business under the old name, and on the plaintiff withdrawing his permission to use his name, obtained the use of the name of another person of the same name. Injunction to restrain the defendant from using the name " Hallett " or "Hallett $ Cumston " refused, on the ground that (1.) the plaintiff had no interest in the name or trade- mark of " Hallett Cumston ; " (2.) as to the name Hallett, although the defendant could not use the plaintiff's name with- 219 MORRISON V. CASE. out his consent, that did not prevent him from using the name of another person, though the same. 392. Blackwell v. Armistead. March, 1872. U. S. C. C. W. Dt. ofVa. : Rives, J.5 Am. L. T. 85; Browne on Trade-Marks, 510. THE plaintiffs being manufacturers of tobacco at Durham, North Carolina, who used as their trade-mark a side view of a bull, with the words " Genuine Durham Smoking Tobacco" the ' defendant also manufactured tobacco, and sold it with labels containing the figure of a bull's head, with the words " The Durham Smoking Tobacco." Injunction granted to restrain the defendant from infring- ing the plaintiff's rights. 1 393. Scott v. Rowland. March 16, 1872. Wickens, V. C. 26 L. T. N. S. 391; 20 W. R. 508. THE plaintiff having been in partnership with the defend- ant as glass-stainers, under the name of " John Scott $ Co." and having been bought out by the latter, the defendant con- tinued to trade under the old name of " John Scott $ Co." On motion by the plaintiff injunction granted to restrain the defendant from using the plaintiff's name in connection with his business, so as to represent that the plaintiff was a partner in his business, on the ground that the retention of the name of an outgoing partner, who survived the dissolution of partnership, in the firm name of the business, might to some extent render him responsible for the liabilities of the concern. 394. Morrison v. Case. April, 1872. U. S. C. C. Dt. of Conn. : Shipman, J. 9 Bl C. C. 548; 2 U. S. Pat. Gaz. 544. THE plaintiff being the proprietor of certain trade-marks registered under the United States Act of 1870, and consist- l See Blackwell v. Wright , 466. 220 COOK V. STARKWEATHER. ing respectively of the words " The Star Shirt" the words " The Star Shirt" together with the figure of a star, and the words and device " The * Shirt" the defendant sold other shirts under the same marks. Suit for an injunction to restrain the defendant from in- fringing the plaintiff's trade-marks. Held, that the marks in question were lawful trade-marks within the act, and that the injunction must be granted. 395. Cook v. Starkweather. 1872. N. Y. Sup. Ct. : Monell, J. 13 Abb. Pr. N. S. 392. THE plaintiffs being whiskey manufacturers who sold their whiskey in barrels branded with the words " Valley Whiskey " or " Old Valley Whiskey" the letters " A A A," and a Maltese cross, the head of the barrel being glazed in a particular man- ner and the rim painted red, the defendants sold other whis- key in barrels similarly prepared and branded, except that the letters " XXX" and a crown were substituted for the letters " AAA " and the cross. Action for an injunction to restrain the defendants from infringing the plaintiffs' rights. Held, that, whether the plaintiffs were or were not entitled to the exclusive use of the words " Valley Whiskey " or " Old Valley Whiskey" which was not clearly established, the course of conduct adopted by the defendants was intended and calcu- lated to deceive, and the plaintiffs were therefore entitled to an injunction. " The package, case, or vessel in which the commodity is put, if prepared in a peculiar or novel manner, though in itself, perhaps, not a trade-mark, may very properly be a very important part of it ; and where a peculiar device is applied to a box or barrel which has been especially prepared to receive and. give prominence to the design, such specially prepared box or barrel constitutes a part of the trade-mark, and may participate in the protection which will be given to the trade- mark itself." " The rule is, that the imitation of a trade-mark need not be exact 221 BADDE V. NORMAN. and perfect. It may embrace variations that a comparison would instantly disclose. Yet, if a resemblance exists which was designed to mislead the public, its use may be restrained." 1 396. Winsor v. Clyde. Stetson v. Winsor. May 21, 1872. Phila. C. P. 9 PUla. 513. CROSS motions for injunctions. Held, (1.) that Stetson & Co., who carried on business as shippers of merchandise by ships which they did not own, but of which they had the entire management while loading and unloading, etc., and who denominated each line of vessels used by them, and plying in a particular direction, by the name " The Keystone Line for ," had acquired a right of prop- erty in the name ; (2.) that Winsor and Harding, who had owned the steamships employed for a certain period on one of these lines, had acquired no right in the name by its appli- cation to their ships, but had at most been entitled to use the name under a revocable license ; (3.) that an injunction must be granted to restrain Winsor and Harding from continuing to use the name after the termination of their connection with Stetson & Co., and that their motion for an injunction must be refused. 397. Badde v. Norman. May 30, 1872. Wickens, V. C. L. R. 14 Eq. 348; 41 L. J. Ch. 525; 26 L. T. N. S. 788 ; 20 W. R. 766. THE plaintiff being entitled to the exclusive right of im- porting from the Leopoldshall mines in Anhalt a kind of rock salt called " Kainit" and who designated it " The G-enuine Leopoldshall Kainit" the defendants sold another article, not being the article which the plaintiff had the exclusive right of exporting, under the name of " Kainit \_Leopold$alt\" On motion by the plaintiff injunction granted to restrain the defendants from infringing his rights. 2 1 See Williams v. Johnson, 150. 2 See Congress, frc. Spring Co. v. High Rock Congress Spring Co., 354. 222 AKMISTEAD V. BLACKWELL. 398. Hookham v. Pottage. June 7, November 12, 1872. Malins, V. C. L.R.8 Ch. 93 n. ; 26 L. T. N. S. 755 ; 20 W. R. 720. James and Hellish, L. JJ. L. R. 8 Ch. 91 ; 27 L. T. N. S. 595 ; 21 W. R. 47. THE plaintiff, defendant, and defendant's brother having been in partnership as tailors, under the name of " Hookham and E. $ S. Pottage," on the dissolution of that partnership the plaintiff was held by the Court of Chancery to be entitled to continue in possession of the business, the defendant re- ceiving the value of his interest ; and the plaintiff continued to trade under the new name of " Hookham $ Co." The de- fendant subsequently set up in business within a few doors of the plaintiff, and placed over his shop the words " S. Pottage, from Hookham and Pottage" the words "from " and " and " being in small letters. Injunction granted to restrain the defendant from using the plaintiff's name in such a manner as to deceive, on the ground that, although the defendant was entitled to state fairly his connection with the former firm, he was not entitled to act so as to divert to himself custom intended for the plaintiff. 1 399. Armistead v. Blackwell. June 14, 1872. U.S. Patent Office : Leggett, Comm. 1U.S. Pat. Gaz. 603; Browne on Trade-Marks, 495. BLACKWELL (who manufactured tobacco at Durham, N. C., in succession to Green, who had begun to designate his to- bacco as " Durham " tobacco in 1865) having obtained reg- istration of a trade-mark consisting of the words " Durham Smoking Tobacco, Manufactured by W. T. Blackwell, Durham, North Carolina," Armistead, who manufactured tobacco at Lynchburg, Va., applied for the registration in his name of the words " Durham Smoking Tobacco" His business was carried on in succession to W. A. Wright, who had in 1860, when in partnership with Morris as " Morris & Wright," 1 See Cotton v. Thomas, 305. 223 HIRST V. DENHAM. begun to designate his tobacco made at Durham as " Best Spanish-Flavored Durham Smoking Tobacco" but had dis- solved partnership with Morris in 1861, and after a few months longer discontinued manufacturing altogether till 1869, when he again began to prepare tobacco for the market. Interference declared for the purpose of determining to which, if either, the words " Durham Smoking Tobacco " belonged. Held, (1.) that, to be entitled to claim the benefit of the prior user of Morris & Wright, Armistead should show that he claimed through Morris as well as through Wright ; (2.) that, at all events, the user by his predecessor was longer than that by Blackwell's predecessor ; (3.) but that the words were not registrable as a trade-mark, and that Blackwell had obtained registration by error, since a geographical name could not constitute a trade-mark capable of becoming the exclusive property of any one person, but must remain open to the use of all inhabitants of the town or district, although strangers might be enjoined against the use of it ; (4.) and that the fact that Blackwell had obtained a wrongful registration of the words mentioned, which could not be cancelled, could not entitle Armistead to a similar wrongful registration, and that his application must be refused. 1 40O. Hirst v. Denham. June 20, 1872. Bacon, V. C.L. R. 14 Eq. 542; 41 L. J. Ch. 752; 27 L. T. N. S. 56. THE plaintiff being a manufacturer of woollen cloths, who had invented and adopted certain new fancy patterns and named them respectively "Turin" "Sefton" "Leopold" "Liv- erpool" the defendants, one of whom had been in the plain- tiff's service, began to use the same names on tickets resem- bling the plaintiff's affixed to cloths of their own make of a similar pattern to the plaintiff's, but of inferior quality. On motion by the plaintiff injunction granted to restrain the defendants from describing their cloths by those names, 1 See Newman v. Alvord, 282. 224 SMITH V. REYNOLDS. and from placing them on tickets affixed to their cloths, imitat- ing the plaintiff's tickets, etc. 1 401. Smith v. Reynolds. (1.) June, 1872. U. S. C. C. S. Dt. of N. Y. : Blatchford, J. 10 BL C. C. 85; 3 U. S. Pat. Gaz. 213. SUIT for an injunction to restrain the infringement of the plaintiffs' trade-mark, registered under the U. S. Act of 1870. Injunction refused, on the ground that there was no suffi- cient evidence of the filing at the Patent Office of a declara- tion under oath as to the right to the mark, as required by the act, the only evidence produced being a certificate by the commissioner of patents of the registration of the trade-mark, of the filing of a statement in respect of the mark, and that the registrant had otherwise complied with the act, etc., but which certificate did not refer to any such declaration as was required. 402. Smith v. Reynolds. (2.) July, 1872. U. S. C. C. S. Dt. of N. Y.: Blatchford, / 10 BL C. C. 100; 3 U. S. Pat. Gaz. 214. THE plaintiffs being paint manufacturers, who had regis- tered as their trade-mark on paints, under the U. S. Act of 1870, a device of a crown, but who had not actually used it on white lead, the defendants, who, or their predecessors in busi- ness, had used a device of a crown on white lead previously to the use and registration of the device by the plaintiffs', con- tinued so to do. On motion by the plaintiffs for an injunction to restrain the defendants from so doing : Held, (1.) that the registration of the device in the name of the firm, and not in the names of the individual partners, was good ; (2.) that the registration for paints generally was 1 It appears that the circumstance that some of these words were geograph* ical names was not considered. 15 225 IN KB JOHNSON & CO. good, without further description of the particular goods ; (3.) that the device of a crown was a good registrable trade- mark within the act ; (4.) but that the prior use of the de- vice on white lead by the defendants prevented the plaintiffs from having a right to register the mark in respect of white lead, and that the registration, being bad in respect of part of the class it purported to cover, was bad altogether ; (5.) that the motion for injunction must be refused. 4O3. Mack v. Fetter. July 23, 1872. Lord Romilly, M. R. L. R. 14 Eg. 431; 41 L. J. Ch. 781; 20 W.R. 964. THE plaintiff being the proprietor and publisher of "The Birthday Scripture Text-Book" the defendants brought out a book of similar arrangement and style, under the name of " The Children's Birthday Text-Book" Injunction granted to restrain the defendants from publish- ing any book with that title, or any other title calculated to deceive, and from imitating the arrangement, binding, etc., of the plaintiff's book in such a way as to deceive. 1 404. In re Johnson & Co. September 12, 1872. U. S. Patent Office : Thacher, Act. Comm. 2 U. S. Pat. Gaz. 315. APPLICATION for the registration of two trade-marks, con- sisting respectively of the words and letters " Parsons' Pur- gative Pills, P. P. P." and " Johnson's American Anodyne Liniment, Established A. D. 1810" refused, on the ground that both designations were descriptive of the article ; the letters " P. P. P" becoming so when used in combination with the words of which they were the initials, though, if used alone, they might have acquired an arbitrary significa- tion ; and the date of discovery in the second case not sup- plying the needed distinctiveness. 1 See Hogg v. Kirby, 10. 226 McGOWAN BROS. PUMP MACHINE CO. V. McGOWAN. 405. In re ToUe. October 3, 1872. U. S. Patent Office: Thacher, Act.Comm.-2 U.S. Pat. Gaz. 415. APPLICATION for the registration of two trade-marks for flour, consisting of the words " Cherry St. Mills" in the one case, and " Market St. Mills " in the other, combined in both cases with the masonic emblem of the square and compass, refused, on the ground that as to the name of the locality no exclusive right could be acquired ; and as to the emblem, it could not be divested of its universal signification and be ex- clusively appropriated in a particular business ; and that, as to the whole, a combination of two objectionable parts could not constitute a valid trade-mark. 406. The McGowan Bros. Pump Machine Co. v. Mo- Gowan. October, 1872. Cincinnati Super. Ct. 2 Cine. 313. THE defendant in error, J. H. McGowan, having been in partnership with his brother, T. J. McGowan, as machine manufacturers, sold his interest in the partnership to his brother, reserving the right to manufacture under the part- nership patents. The notice of dissolution of partnership stated that T. J. McGowan was to use the firm name " in settlement," and to carry on business " under the old style firm name." T. J. McGowan, having joined with other per- sons, incorporated a company under the name " The Mc- Gowan Bros. Pump and Machine Co.," being the plaintiffs in error. J. H. McGowan, the defendant in error, recom- menced business under the name of "John H. McGowan Co." at " The McG-owan Engine and Pump Company's Works." Action by the defendant in error. , Injunction granted to restrain the plaintiffs in error from the use of the words " The McG-owan Brothers" as part of their name, except on patterns sold by J. H. to T. J. Mc- 227 LEA V. WOLFF. Gowan, and castings therefrom, on the ground that, although the good-will of the partnership business passed to T. J. Mc- Gowan, he had only a revocable license to use the name, and that the continued user by him was injurious to, and objected to by, the defendant in error. But the plaintiffs in error to be at liberty to style themselves " Successors to the Mc- G-oivan Brothers." Per Hagans, J. " There can be no doubt that, where one partner sells to another partner a going business, every advantage arising from the fact of the sole ownership of the premises, stock, and estab- lishment, including advantages acquired by the old firm in carrying on its business, whether connected with the old place or the old name, passes to the purchaser. But the vendor will not be pre- vented from carrying on a similar business when, where, or with whom he pleases." 407. Lea v. Wolff. November, 1872 ; October, 1873. N. Y. Sup. Ct. : In graham, P.J. IS Abb. Pr. N. S. 389; 1 Thomp. fl- C. 626. N. Y. Sup. Ct. l Thomp. C. 626; 15 Abb. Pr. N. S.I; 46 How. Pr. 157; 1 Am. L. T. N. S. 400. THE plaintiffs being manufacturers in Worcestershire of a sauce which they called " Worcestershire Sauce,'" the defendants began to manufacture a sauce elsewhere, which they called by the same name, and placed on their bottles labels very closely resembling those of the plaintiffs, except that their own names appeared as those of the manufacturers. On motion by the plaintiffs for an injunction to restrain the defendants from using the name and labels : Held, by Ingraham, P. J. : (1.) that the name, being the name of the locality in which the sauce was made, could not be protected as a trade-mark; (2.) but that an injunction must be granted to restrain the imitation of the labels. Held, by the General Term of the Supreme Court, that the injunction must be extended to restrain the use of the name " Worcestershire Sauce," since it was evident that the defend- 228 SOHIER V. JOHNSON. ants had acted with fraudulent intention, and they, further, did not manufacture within the county in question. Per Fancher, J. " Where words or names are in common use, no one person can claim a special appropriation of them to his peculiar use ; but where words and the allocation of words have, by long use, become known as designating the article of a particular manufacturer, he acquires a right to them as a trade-mark, which competing dealers cannot fraudulently invade. The essence of the wrong is the false representation and deceit. When the improper design is apparent an injunction should be issued." " As a general rule, geographical names cannot be appropriated as trade-marks ; but the rule has its exception, where the intention in the adoption of the descriptive word is not so much to indicate the place of manufacture as to encroach upon the previous use and popu- larity of another's trade-mark." 1 4O8. Sohier v. Johnson. November, 1872. Mass. Sup. Ct. 111 Mass. (15 Browne) 238. W. P. WINCHESTER, surviving partner in the firm of "_Z A. W. Winchester" whose trade-mark consisted of that firm name, having taken the defendant into partnership, and died, and the defendant having subsequently continued to trade under and use that name, for some years in partnership with others, and afterwards by himself, the plaintiffs, being W. P. Winchester's executors and trustees, sold the factory and premises to a third person. Suit for an injunction to restrain the defendant from using the trade-mark, and an order for him to join in conveying it to the purchaser from the'plaintiffs. Held, that the trade-mark had become the property of the partnership between W. P. Winchester and the defendant, on its formation, and had descended to the defendant on the death of the former, and that the plaintiffs had no right therein, and that the injunction and order must be refused. " The trade-mark is the device or symbol used to identify the ar- i See Lee v. Haley, 325 ; Lea v. Miller, 513. 229 THE MERIDEN BRITANNIA CO. V. PARKER. ticle manufactured, and the right to use it will pass with the business and good-will as an incident, unless something appears to show a dif- ferent intention of the parties." 409. The Meriden Britannia Co. v. Parker. November, 1872. Conn. Sup. Ct. 39 Conn. 450; 12 Amer. Rep. 401; 13 Am. L. Reg. N. S. 153. THE plaintiff having acquired from three brothers named Rogers the right to use a trade-mark, " 1847, Rogers Bros., A 1," and the brothers Rogers being employed by them to superintend the manufacture of the goods so stamped, the de- fendant began to place on similar goods stamps containing the words " 0. Rogers Bros., A 1," and " C. Rogers $ Bros., Injunction granted to restrain the defendant from using such stamps or any other stamp containing the words "Rogers Bros." though he had used his stamps by the permission of three brothers of the name of Rogers. But Held, that no injunction could be granted as to the name " Rogers " alone, nor with respect to goods already stamped by the defendant, the parties being left to their remedy at law as to the last point. Held, also, that the fact that the goods bearing the trade- mark were not actually made by persons whose names were Rogers was not such a misrepresentation as disentitled plain- tiff to be heard in a court of equity. Per Carpenter, J. " The fact that careful buyers who scrutinize trade-marks closely are not deceived does not materially affect the question. It only shows that the injury is less, not that there is no injury." J l Burgess v. Burgess, 117 ; Pidding v. How, 60. 230 OSGOOD V. ALLEN. 410. Osgood v. Allen. November, 1872. U. S. C. C. Dl. of Maine : Shepley, J. l Holmes, 185; 6 Am. L. T. 20; 3 K S.Pat. Gaz. 124. THE plaintiffs being the proprietors and publishers of a monthly magazine for the young, published at Boston, Mass., under the title " Our Young Folks ; an Illustrated Magazine for Boys and Girls" the defendant began to advertise and publish and sell at Augusta, Maine, a fortnightly illustrated paper for the young, under the title " Our Young Folks' Illus- trated Paper" J Suit for an injunction to restrain the defendant from using the words " Our Young Folks " as the title of a publication. 2 Held) (1.) that the title of a copyrighted publication was not capable of protection as copyright, except in conjunction with the publication which it was used to designate, and that the copyright in the paper not having been infringed, that in the title had not been ; (2.) that, treating the title on prin- ciples applicable to trade-marks, the case must be referred to a master to report whether the use of the title by the defendant was deceiving, or was calculated to deceive the public. 3 " Words or devices may be adopted as trade-marks, which are not original inventions of the one who adopts and uses them. Words in common use may be adopted, if, at the time of adoption, they were not used to designate the same or similar- articles of production. A generic name, or a name merely descriptive of an article of trade, or its qualities or ingredients, cannot be adopted as a trade-mark, so as to give a right to the exclusive use of it. The office of a trade-mark is to point distinctively to the origin or ownership of the article to which it is affixed. Marks which only indicate the names or quali- ties of products cannot become the subjects of exclusive use, for, from the nature of the case, any other producer may employ, with equal truth and the same right, the same marks for like products. Geo- 1 This case is not to be taken as of 2 See Hogg v. Kirby, 10. force in disturbing the well settled doc- 8 See Jollie v. Jaques, 105. trine that the name of a periodical is, primd facie, a trade-mark. 231 IN RE GRAHAM. graphical names, which point out only the place of production, and not the producer, cannot be appropriated exclusively, so as to prevent others from using them and selling articles produced in the districts they describe under these appellations." 411. Broadhurst v. Barlow. November 21, 1872. Wickens, V. C. W. N. 1872, p. 212; L. J. Notes of Cases, 1872, p. 183. THE plaintiffs being manufacturers of Spanish shirtings for export to the East, who marked their goods with a lion in a scroll, the words " Spanish Shirtings " in a scroll, the figures " No. 120" certain lines, and the words " exactly 12 yards" in Turkish, Armenian, and Greek, the defendants used on their goods an elephant and castle in place of a lion, and curved instead of straight lines, the marks being in other re- spects the same. On motion by the plaintiffs injunction granted to restrain the defendants from using the words " exactly 12 yards " in the same languages as the plaintiffs used, and placed between a figure or crest and the words " Spanish Shirtings " in a scroll, in a manner similar to that used by the plaintiffs. And Held, that an offer to submit and abandon the mark objected to did not deprive the plaintiffs of their right to the injunction. 1 > 412. In re Graham. November 30, 1872. U. S. Patent Office : Thacher, Act. Comm. 2 U. S. Pat. Gaz. 618. APPLICATION for the registration of the words " The New Manny" as a trade-mark for a harvesting machine, refused, on the ground that the term " the Manny" was commonly applied to a large class of machines, that the word '''new" was practically equivalent to " improved" and that the words, therefore, merely constituted a descriptive appellation of the article. 1 See Millington v. Fox, 63. 232 THE SINGER MANUF. CO. v. KIMBALL AND MORTON. 413. The Singer Manufacturing Co. v. Kimball and Mor- ton. January 14, 1873. Ct. of Session. Ct. of Sess. Cos. 3d Ser. XL 267; 10 Scot. L. Rep. 173. THE plaintiffs being American manufacturers of the " Sin- ger" sewing-machines, the defendants advertised machines for sale as " Singer " machines, but placed their own names, as those of the makers, on all of them. Interdict granted to restrain the defendants from using the name " Singer " in respect of machines other than those made by the plaintiffs, on the ground that the name was indicative of machines of the plaintiffs' make, and not of machines made according to a certain principle of construction. Per Lord President Inglis. " Whether it be a star, or any other device, or a name, as in the present case, the result is the same. If it be exclusively appropriated for a series of years, and has obtained a certain exclusive meaning in the trade, as signifying the goods or the productions of a particular manufacturer, then it is his property as a trade-mark, and no one else is entitled to use it." " In an application for an interdict it is not only not necessary to prove any pecuniary damage, but it is not necessary to prove that any injury has been actually inflicted. A threat of injury is a suffi- cient ground for an application for an interdict, and in like manner a reasonable apprehension of injury from the proceedings of the parties complained against is also in many circumstances a very good ground for such an application." Per Lord Ardmillan. " Singer & Co. have no monopoly of the invention, and no exclusive right to make or to sell the machine. Any one may make it, any one may sell it. But there must be no deception, no sailing under false colors, no unfair and delusive as- sumption of a trade-mark, or of a name appropriated and known as a trade-mark." 1 1 See Singer Man. Co. v. Wilson, 477. 233 BURKE V. CASSIN. 414. Christie v. Christie. January 15, March 20, 1873. Matins, V. C. 42 L. J. Ch. 261 ; L. R. 8 Ch. 502 n. Lord Selborne, C. and Hellish, L. J. L. R. 8 Ch. 499 ; 42 L. J. Ch. 544 ; 28 L. T. N. S. 607 ; 21 W. R. 493. THE plaintiffs being Messrs. Christie, Manson & Woods, auctioneers, the defendants issued a certain prospectus in which they styled themselves " Messrs. Christie $ Christie" and made preparations for carrying on business under the name of " Christie $ Co" Suit by the plaintiffs for an injunction to restrain the de- fendants from so doing. Exceptions for scandal to a state- ment in the bill, to the effect that one of the defendants had, on a previous occasion, been brought up in a police court on a charge of fraud. Held, on appeal, that the exceptions must be allowed, on the ground that such a charge of fraud, even if it could be substantiated, was wholly immaterial to the suit in question, and that its insertion in the bill was not' only scandalous but oppressive. i 415. Burke v. Cassin. January, 1873. Col. Sup. Ct. 45 Col. 467; 13 Amer. Rep. 204. THE plaintiff being the executor of Udolpho Wolfe, who manufactured and sold " Wolf e* s Aromatic Schiedam Schnapps" the defendants sold other spirits under the name of " Von Wolfs" or " Van Wolf's Aromatic Schiedam Schnapps." Injunction granted to restrain the defendants from using the name " Wolfe," or " Wolf," or " Von Wolf," or " Van Wolf," but not from using the words "Aromatic Schiedam Schnapps," those words being descriptive of the article. 234 STERNBERGER v. THALHEIMER. 416. In re Richardson. February 7, 1873. U. S. Patent Office: Leggett, Comm. 3 U. S. Pat. Gaz. 120. APPLICATION for the registration of the words " A. Rich- ardson's Patent Union Leather- Splitting Machine " as a trade- mark refused, as to the word ''patent" on the ground that, the patent having expired, the continued use of the word was deceptive ; and, as to the remainder, on the ground that the name, having been applied to a patented article during the existence of the patent, had become descriptive of the article, and open to the use of the public on the expiration of the patent. 1 417. Sternberger v. Thalheimer. February 8, 1873. U. S. Patent Office: Thacher, Act. Comm. 3 U. S. Pat. Gaz. 120. THALHEIMER having in five or six instances used the word " Centennial" as an experimental trade-mark on clothing, about March 6, 1872, and procured the registration of the word as his trade-mark, but not having used the word seri- ously until June, Sternberger, in February, 1872, registered a trade-mark containing that word, with other particulars, be- gan to use the word extensively about March 12, 1872, and applied for registration of the word as his trade-mark. Interference declared between the parties. Held, that, notwithstanding the prior registration of Thal- heimer, Sternberger was entitled to registration, since he was the first to use the word seriously, besides having previously registered it in combination with other particulars. 1 The decision here, as in other cases, is made to rest upon conclusions of fact. See Pidding y. How, 60. 235 TUDOR v. TUDOR. 418. Laird v. Wilder. February, 1873. Kentucky Ct. of A pp. 2 Bush, 131 ; 15 Amer. Rep. 707. THE plaintiff manufacturing and selling " Laird's Bloom of Youth or Liquid Pearl," the defendants began to sell another preparation in bottles of a similar shape to the plaintiff's, and with labels copied in all particulars from his, except that for " Creorge W. Laird, No. 74 Fulton Street, New York," were substituted the words, " Joseph Laird, No. 384 Broadway, New York." Injunction to restrain the defendants from so doing refused, on the ground that the plaintiff's preparation contained car- bonate of lead, or other noxious ingredients, whereas he de- scribed it as being " free from all mineral and poisonous sub- stances," and that he was, therefore, disentitled to relief. 1 419. Tudor v. Tudor. March 13, 1873. Malms, V. C. W. N. 1873, p. 72. THE plaintiff, W. Tudor, having transferred a business, which he had carried on in partnership with his brother S. Tudor, during the latter's lifetime, and since his death, alone, under the name of " S. $ W. Tudor," to the defendants, the sons of S. Tudor, the defendants continued to use the plain- tiff's initial " TF." as part of their firm name, notwithstand- ing that there was an express provision in the deed under which the plaintiff retired for the removal of his name from the business. On motion by the plaintiff injunction granted to restrain the defendants from continuing so to do. 1 See Pidding v. How, 60. 236 FULLWOOD V. FULLWOOD. 42O. Corns v. Griffiths. May 3, 1873. Malms, V. C. W. N. 1873, p. 93 ; Perriberton, 2d ed. 308. THE plaintiffs being the proprietors of a weekly newspa- per entitled The Iron Trade Circular (Rylands 1 }, the defend- ant, who had for many years published a weekly report of the iron trade, not in the form of a newspaper, as The Iron Trade (Griffiths' Weekly Report), substituted for this report a news- paper much resembling the plaintiffs', and entitled The Iron Trade Circular (Edited by Samuel Griffiths). On motion by the plaintiffs injunction granted to restrain the defendant from using a title for his newly established newspaper identical with that used by the plaintiffs for theirs. 1 421. Fullwood v. Fullwood. (1.) May 5, July 31, 1873. Matins, V. C. W. N. 1873, p. 93. James and Hellish, L. JJ. W. N. 1873, p. 185. THE plaintiff being a manufacturer of annatto, trading as " R. J. Fullwood $ Co." and who sold his annatto in earth- enware bottles, with special labels on the sides, the defend- ant, H. Fullwood, the plaintiff's nephew, began to manufact- ure annatto under the name of " H. Fullwood $ Co." though he had no partner, and removed into the same street as the plaintiff, and sold his goods in similar bottles, similarly la- belled to the plaintiff's, as to which several instances of actual deception were proved. On motion by the plaintiff, injunction granted to restrain the defendant from selling his annatto in similar bottles la- belled in a similar manner to the plaintiff's. 1 See Hogg v. Kirby, 10. 237 BROWNE V. FREEMAN. 422. In re The American Sardine Co. May 13, 1873. U. S. Patent Office: Leggett, Comm. 3U. S. Pat. Gaz. 495. APPLICATION for registration of the words "American Sardines " as a trade-mark on boxes containing a species of American fish, not the true sardines, refused, on the ground that the application of the words to fish, not being really sardines, was calculated to deceive purchasers, while, if ap- plied to true sardines, the words would be properly descriptive of the fish. 1 423. Witt v. Corcoran. June 13, 1873. Bacon,V. C. Seton, 4th ed. 257 ; 2 Ch. D. 69; 45 L. J. Ch. 603; 34 L. T. N. S. 550; 24 W. R. 501. THE plaintiff having been in partnership with the defend- ant and his son, under the firm of '''Bryan Corcoran, Witt $ Co." and having purchased the business, good-will, trade names, trade-marks, etc., the defendant carried on business under the name of " Bryan Corcoran $ Co." or " Bryan Corcoran, Son $ Co" Injunction granted to restrain the defendant from carrying on business under those names, or any other name calculated to induce the belief that the defendant was carrying on busi- ness in succession to the original firm, and from interfering with letters intended for the original firm. 424. Browne v. Freeman. (2.) July 23, 1873. James and Hellish, L. JJ. W. N. 1873, p. 178. THE plaintiff being the original inventor of chlorodyne, but who had lost his exclusive right in the name, the defendant represented that a medicine of his own manufacture was the " True and Original Chlorodyne" and made certain other rep- resentations with regard to his chlorodyne. Injunction to restrain the defendant from so doing refused, 1 See Pidding v. How, 60. 238 POPHAM V. WILCOX. on the ground that the name had become the name of the article ; that the defendant had always sold his under his own name, and that any false statements in the defendant's adver- tisements only amounted to slander, for which damages were the proper remedy. 1 425. Popham v. Wilcox. (Afterwards Popham v. Cole.) 1873; December 9, 1874; April 25, 1876. N. Y. Super. Ct.: Monell, J. - 14 Abb. Pr. N. S. 206. N. Y. Super. Ct. 38 N. Y. Super. Ct. (6 J. fr S.) 274. N. Y. Ct. of App. &Q N. Y. (21 Siekels) 69; 23 Amer. Rep. 22. THE plaintiff being a manufacturer of refined lard, which he sold in vessels stamped with the figure of a fat hog, his name, and " Prime Leaf Lard " the defendants began to sell the same article in vessels stamped with a globe, a small wild boar, their name, and " Prime Leaf Lard" Action for an injunction to restrain the defendants from in- fringing the plaintiff's rights. Held) by Monell, J., that although there was not much sim- ilarity between the marks when seen side by side, the defend- ants' mark was likely to attract to itself the same name as the plaintiff's, namely, "the pig brand," and that, therefore, the injunction which had been granted must be continued. Held, by the General Term of the N. Y. Superior Court, that the plaintiff being unable to prove himself to have been the first inventor, and it being proved that the pig mark had been used by various other refiners, the injunction must be dissolved. Held, by the N. Y. Ct. of App., that the decision in favor of the defendants must be maintained, on the ground that there was not sufficient resemblance between the marks to be calculated to deceive ; and, further, that it was doubtful whether the figure of the animal from which the lard was derived was not descriptive of the article, and, therefore, in- capable of being appropriated. 1 See Cocks v. Chandler, 351. 239 HARDY V. CUTTER. Per Monell, J. " The question in these cases always is, whether there is such a similarity of the two devices as to deceive the public. It is not required that the imitation shall be so close as to require a careful examination to detect the difference, nor that it shall be such that persons entirely familiar with one would not be mistaken. But it must have such a resemblance to the genuine that the general pub- lic would be likely to mistake the one for the other." " A mere design to injure would not of itself be sufficient. It must be accompanied by evidence of actual or prospective injury, but in establishing the injury the intent may properly be considered." Per N. Y. Ct. of App. " The question in this, as in every other case, is whether there is such resemblance between the two as to de- ceive a purchaser using ordinary caution The court is not bound to interfere where ordinary attention will enable purchasers to discriminate between the trade-marks used by different parties." 426. Dawes v. Davies. 1873. N. Y. C. P. Codd. Dig. 260. THE plaintiff being an umbrella manufacturer, whose trade-mark consisted of the number " 140," placed in a white oblong within a five-pointed star, the defendants used on their umbrellas the number " 142 " within a sunburst. Motion by the plaintiffs for an injunction to restrain the defendants from so doing refused, on the ground that it was not probable that persons of ordinary intelligence would be deceived. 427. Hardy v. Cutter. 1873. Dt. Ct. ofCal: Wheeler, J.3 U. S. Pat. Gaz. 468. THE plaintiffs being manufacturers of " Cutter " whiskey (as successors by purchase to J. H. Cutter), who branded their barrels with a crown and the words " J. H. Cutter Old Bourbon" and used wrappers and labels containing the same words with other particulars, the defendant, a sou of J. H. Cutter, also manufactured whiskey, and used wrappers and labels containing the words " J. F. Cutter, son of the late J. 240 CLEMENS V. SUCH. H. Cutter, of Louisville, Ky." the wrappers and labels bear- ing no other resemblance to the plaintiffs'. Action for an injunction to restrain the defendant from so doing. Demurrer allowed, on the ground that there was no simi- larity between the marks except in the use of the name " Cut- ter" and that, with regard to the name, the defendant was entitled to use his own name in an honest manner. " Every person has the right to use his own name in connection with the articles he manufactures or sells, provided he does not use it in such a way as to deceive or defraud the public, or to obtain for himself, at the expense of another, an undue advantage." 428. Lowell Manufacturing Co. v. Lamed. 1873. U. S. C. C. Dt. of Perm. Codd. Dig. 341. THE plaintiffs being carpet manufacturers, who were in the habit of rolling their carpets upon a peculiarly formed stick, made in two pieces, and with the ends shaped into oc- tagonal rings, which appeared in the centre of the rolls of carpet, and who had registered this stick in the U. S. as their trade-mark, the defendants began to roll their carpets upon similar sticks. Injunction granted to restrain the defendants from infring- ing the plaintiffs' rights. 1 429. Clemens v. Such. July 11, 1873. N. Y. Sup. Ct. Codd. Dig. 312. THE plaintiff, an author, who wrote under the nom de plume of " Mark Twain" having agreed to allow the defendant to publish one of his essays in a book of selections, and having delivered to him a volume of his essays, published but not copyrighted, for him to select one of them therefrom, the de- 1 While it is not improbable that the the injunction was granted upon an ex stick used by the complainant in this parts application, practically with the case was a perfectly good trade-mark, defendants' consent. 16 241 OSGOOD v. EOCKWOOD. fendant published in bis book six essays purporting to be by Mark Twain, with a statement on the title-page that they had been specially revised and selected by Mark Twain for the purpose, five of the six being taken from the plaintiff's vol- ume, and the sixth not being his at all. On motion by the plaintiff injunction granted to restrain the defendant from using the nom de plume on the title-page of his book, or as the author or reviser of any book, and from publishing any matter alleged to have been written by the plaintiff under his nom de plume, except one essay from the plaintiff's volume, but the defendant to be at liberty to state on his title-page that the book included a sketch by Mark Twain. 1 430. Osgood v. Bockwood. September, 1873. U. S. C. Ct. S. Dt. of N. Y. : BlatcTiford, J. 11 Bl. C. C. 310. THE plaintiffs being American patentees, under an assign- ment by the English inventor, of a class of prints known as " Heliotypei" and who had registered the word " Heliotype " as their trade-mark in respect thereof under the U. S. Act of 1870, the defendant used the word " Heliotype " or " Heilo- type " on prints not produced by the patented process. Injunction to restrain the defendant from using the word refused, on the ground that, whatever rights th6 plaintiffs might have apart from the act, and which the act preserved to them (but which the bill was not framed to assert), they were not entitled to any remedy in virtue of the registration under the act, since the defendant had not used the word upon substantially the same goods as those in respect of which it was registered by them. 2 1 See Lord Byron v. Johnston, 23. prevailed ; and it is equally plain that 2 It is not to be doubted that had the had their mark been more carefully complainants here relied upon their registered, an injunction might have common law right they would have issued. 242 SIEGERT V. EHLEES. 431. Raggett v. Findlater. November 11, 1873. Matins, V. C. L. R. 17 Eq. 29; 43 L. J. Ch. 64; 29 L. T. N. S. 448; 22 W. R. 53. THE plaintiff being a manufacturer of stout, who sold it in bottles bearing labels on which the words " Nourishing Lon- don Stout " were conspicuous, the defendants sold stout in bottles bearing labels having on them the words " Nourishing Stout," but differing in other respects from the plaintiff's. Injunction to restrain the defendants from using the words " Nourishing Stout " refused, on the ground that a right of trade-mark could not be acquired in a mere English adjective denoting quality. " It is of the highest importance that, on the one hand, every pro- tection should be given to trade-marks when fairly and properly used, and when used within just limits ; and, on the other hand, it is of great imporatnce that, by the use of a particular word or anything which may be called a trade-mark, the right should not be unduly extended so as to infringe on the right of traders to call their articles by a qual- ity they possess, or to give an undue protection to any man who hap- pens to use a particular word." 432. Siegert v. Ehlers. February 3, 1874. Trinidad Sup. Ct. Cited 1 Ch. D. 803; 38 L. T. N. S. 351. THE plaintiffs being a firm manufacturing at Ciudad Boli- var (formerly Angostura), in Venezuela, a fluid which they called ''Aromatic Bitters" and put up in bottles enclosed in wrappers, which were printed with the name of the prepara- tion, and a description in several languages of its virtues and uses, the defendant, an agent of another manufacturer at Ciu- dad Bolivar, sold another article in bottles in very similar wrappers. On motion by the plaintiffs injunction granted to restrain the defendant from using wrappers printed with the name 243 COPE V. EVANS. "Aromatic Bitters," and a description of the uses of the arti- cle, in imitation of the plaintiffs'. l 433. Cope v. Evans. February 14, 1874. Hall, V. C. L. R. 18 Eq. 138; 30 L. T. N. S. 292; 22 W. R. 453. THE plaintiffs being cigar manufacturers, who sold their cigars in boxes branded with the words " Flor Fina Prairie Superior Tabac" and the figure of a hunter, the defendants manufactured cigars and sold them in boxes branded with the words " Flor de la Prairie" and the half-figure of a girl. Injunction to restrain the defendants from using the word "Prairie" refused, on the ground that no actual deception was proved, and that it was not to be anticipated that decep- tion would occur. " In cases where it appears that defendants have adopted a plain- tiff's trade-mark, and it is proved that defendants' object in doing so was to pass off their own goods as those of the plaintiff, the court will, without further inquiry, restrain the defendants, and it will also do so where there has been such adoption, although proof of the de- fendants' object be wanting, if it appears that any one has in fact been thereby induced to buy the defendants' goods as being the goods of the plaintiff. In the absence of proof of such object and of such deception, if the two trade-marks are not to the eye of the court either altogether identical, or so similar that the court considers the difference unsubstantial, the plaintiff must make out to the satisfac- tion of the court that its intervention is required to protect the plain- tiff from the defendants' goods being taken for his (the plaintiff's). For the plaintiff to say that his name or mark is to be found on the defendants' goods is not sufficient." 2 1 See Coffeen v. Brunton, 99. said in effect : There is no evidence of 2 It is to be remarked that the court intent or of deception or mistake, and, declined to issue an injunction, because in view of the obvious differences in the the marks as applied presented a wholly labels and appearance of the goods and different appearance, and there was not want of proof of fraud, I cannot assume sufficient evidence on which to predi- the responsibility of saying that the cate the conclusion that the public case is one for an injunction. would be misled. The learned judge 244 BROWN V. MERCER. 434. Wolfe v. Burke. March, 1874. N. Y. Sup. Ct. l N. Y. Sup. Ct. (7 Lans.) 151; 2 U. S. Pat. Gaz. 441. N. Y. Ct. ofApp. 56 N. Y. (11 Sickels) 115. THE defendants manufactured and sold spirits, in succession to Udolpho Wolfe, as " Wolfe's Aromatic Schiedam Schnapps" and threatened proceedings against the plaintiffs, who sold " Hudson a. Wolfe's Bell Schnapps." Injunction, which had been granted to restrain the defend- ants from interfering with the plaintiffs' business by such threats, dissolved ; and Held, that the plaintiffs were not entitled to the favorable consideration of a court of equity, because : (1.) they had endeavored to secure a part of the good-will of the defend- ants' business, while avoiding an infringement of their trade- mark ; (2.) they, as well as the defendants, had improperly represented their article as, not merely a spirit, but a medic- inal preparation. 1 435. Brown v. Mercer. March, 1874. N. Y. Super. Ct.: Van Vorst, J. B7 N. Y. Super. Ct. (5 /. S.) 265. THE plaintiff being a manufacturer of a preparation for dressing leather, who sold his preparation in bottles enclosed in wrappers peculiarly colored and arranged, the defendant sold a similar preparation in similar bottles, and gradually assimilated his wrappers more and more to the plaintiff's. On motion by the plaintiff injunction granted to restrain the defendant from infringing the plaintiff's rights. " It is no answer that, in certain particulars, the defendant's label differs from the plaintiff's, so long as the imitation in other respects is so apparent that purchasers have been and are likely to be de- ceived." 2 1 See Pidding v. How, 60. 2 See Williams v. Johnson, 150. 245 KIDD & CO. V. MILLS, JOHNSON & CO. 436. Missouri (State of) v. Gibbs. March, 1874. Missouri Sup. Ct. 56 Mo. (15 Post) 133. THE defendant imitated Messrs. Lea & Perrin's " Worces- tershire /Sauce " and the labels and wrappers used upon it by them. Held, that the Missouri Statute of Feb. 22, 1870, making an infringement of trade-mark a criminal offence in that State, was applicable to cases in which the imitated trade- mark was the property of English or other foreign manufact- urers. " Trade-marks are valuable to the persons who have a proprietary interest in them, and to the people who buy and use the articles, be- cause they are a guarantee of their genuineness." 437. Kidd & Co. v. Mills, Johnson & Co. March 28, 1874. U. S. Patent Office: Leggett, Comm. 5 U. S. Pat. Gaz. 337. S. N. PIKE having, when in partnership at Cincinnati with H. Pike as " S. N. and If. Pike" adopted as trade-marks for whiskey the words " Magnolia " and " Dave Jones" continued to use those marks, sometimes trading alone, sometimes in partnership with various other persons. At a time when he was in partnership with Kidd as " S. N. Pike $ Co" he sold the premises on which, and the apparatus, etc., with which the company carried on business at Cincinnati, but which were his private property, to Mills, Johnson & Co., and gave them what purported to be a license to use the brands used by him. Mills, Johnson & Co. having registered those words as their trade-marks, Kidd & Co., consisting of Kidd and another surviving partner in the firm of " S. N. Pike $ Co." carrying on business at New York, since the removal from Cincinnati, applied for the registration of those words as their trade-marks. 246 REID V. SIBBALD. Interference declared between the parties to try the right to the marks. Held, (1.) that on the dissolution of the various firms in which S. N. Pike was concerned, the right to use the trade- marks must be held to have continued in him as the continu- ing partner, and to have been abandoned by the retiring part- ners, they having set up no claim thereto ; (2.) that he brought this right with him into the successive firms which he formed ; (3.) that at the time of the sale to Mills, Johnson & Co. the trade-marks were the property of S. N. Pike & Co., and not of S. N. Pike individually ; (4.) that the right to use the trade-marks did not, therefore, pass to Mills, Johnson & Co. on the sale of S. N. Pike's Cincinnati premises, nor under the license which he purported to give them ; (5.) that the trade-marks, therefore, remained the property of S. N. Pike & Co., and passed to Kidd & Co., the successors of that firm, and that Kidd & Co. were, therefore, entitled to registration. 438. Reid v. Sibbald. April 10, May 13, 1874. Home, Sheriff" Subs.; Monro, Sheriff of Linlith- gowshire. 18 Journ. ofJurisp. 392. THE plaintiff being a sheriff's officer named William Rob- erts, the defendant, a draper, began to issue circulars to his debtors, signed " Andrew Roberts," threatening proceedings if their debts were not paid within a certain time. Interdict granted, notwithstanding that the defendant had discontinued the practice, and had given up the remaining circulars, to restrain the defendant from attaching the name " Andrew Roberts," or " Roberts " with any other Christian name, to such circulars, on the ground that the defendant intended to induce and had induced a belief that the circulars were issued by the plaintiff, and that the plaintiff would be injured by his name being supposed to be affixed to such absurd documents. 247 RICHARDS V. WILLIAMSON. 439. The Glendon Iron Co. v. Uhler. May, 1874. Penn. Sup. Ct. 15 Penn. St.467; 15 Amer. Rep. 599; 13 Am. L. Reg. N. S. 543; 6 U. S. Pat. Gaz. 154. THE plaintiffs having long stamped the word " Glendon " on their iron manufactured within that borough, having com- menced to do so prior to the incorporation of the borough, the defendants set up in business in the same place, and began to stamp the same word on their iron. Injunction to restrain the defendants from so doing refused, on the ground that all persons manufacturing within the borough had an equal right to use the name. 1 440. Isaacs v. Daly. May, 1874. N. Y. Super. Ct.: Curtis, J. 39 N. Y. Super. Ct. (7 /. & 5.) 511. THE plaintiff being the author of a copyright play en- titled " Charity" the defendant purchased another play bear- ing the same name, and proceeded to represent it under that name. Motion by the plaintiff for an injunction to restrain the defendant from so doing refused, on the ground that the use of a word of such general application could not be restrained in the absence of bad faith, and that the defendant did not appear to have acted otherwise than bond fide. 441. Richards v. Williamson. June 10, 1874. Bacon, V. C. 30 L. T. N. S. 746 ; 22 W. R. 765. THE plaintiff being a gun-maker, who stamped the lock- plates and levers of his rifles with the name " ~Westley Rich- ards" or " Westley Richards $ Co." the defendants bought up some of such lock-plates and levers belonging to con- 1 This case is distinctive in that the it had acquired a geographical significa- narne had become a trade-mark before tion. 248 RODGERS v. RODGERS. demned or worn-out guns, and made them up with parts of other guns not of the plaintiff's make into complete carbines. Injunction granted to restrain the defendants from so using such lock-plates and levers. 442. Rodgers v. Rodgers. July 28, 1874. James and Hellish, L. JJ.S1 L. T. N. S. 285. THE plaintiffs being J. Rodgers & Sons, who had long car- ried on business as cutlers in Norfolk Street, Sheffield, and stamped their goods, among other marks, with their name and address, the defendants, R. Rodgers & Son, also carried on business as cutlers in Sheffield, and they and their pred- ecessor in business had since 1861 described their place of business and marked their cutlery as from " Norfolk Works, Sheffield:' Action for an injunction to restrain the defendants from using the words " Norfolk Works," or " Norfolk." Held, that the injunction must be refused, on .the ground of the plaintiffs' delay, and failure to produce evidence of actual deception, but that no costs of the cause prior to the appeal could be given, on account of the defendants' unfair dealing. Per Hellish, L. J. " I do not think that, as a matter of law, the mere fact that it (the title) has been used for a great number of years necessarily affords a defence. If it was clearly made out that it was originally used for the purpose of fraud, that it was continued for the purpose of fraud, and that it has the practical effect of deceiving the public, I do not think that the lapse of years would prevent the plaintiffs from having a remedy." " In my judgment, in order to make out a clear case when it has lasted for such a great number of years as this, the plaintiffs ought to prove satisfactorily that persons have actually been deceived." * 1 An explanation of this decision is afforded by the language of Lord Jus- tice Hellish above quoted. 249 CONSOLIDATED FRUIT JAR CO. V. DORFLINGER. 443. The Glen and Hall Manufacturing Co. v. Hall. September, 1874. N. Y. Sup. Ct. 6 N. Y. Sup. Ct. (6 Lans.) 158. N. Y. Comm. ofApp. Ql N. Y. (16 Sickels) 226; 19 Amer. Rep. 278. THE defendant being the successor in business of Joseph Hall, who had long carried on business at No. 10 South Water Street, Rochester, New York, began in February, 1869, to use in his hand-bills the words " The Old Joseph Hall Agricultural Works, No. 10 South Water St., Rochester, N. I 7 "." In September or October, 1869, the plaintiffs opened their establishment in the same street, and styled themselves in their hand-bills, etc., " The Grlen and Hall Manufacturing Company, No. 10 South Water St., Rochester, New York" Action for an injunction and counter-claim. Injunction granted on the defendant's counter-claim to restrain the plain- tiffs from using the words and figures " No. 10." l 444. Consolidated Fruit Jar Co. v. Dorflinger. October, 1874. U. S. C. C. E. Dt. of Penn. : Cadwallader, J. 2 Am. L. T. N. 5.511. THE plaintiffs being manufacturers of jars, on which they placed certain trade-marks, consisting respectively of the words " Mason's Patent, November 30th, 1858," " Mason's Im- proved," " The Mason Jar of 1858," as to which jars the pat- ent under which they were made had been decided to be in- valid, and also another trade-mark, consisting of the words " The Mason Jar of 1872," not open to the same objection, the defendants sold other jars similarly marked. On motion by the plaintiffs for an injunction to restrain the defendants from infringing their trade-marks : Held, that, as to the first three marks, the plaintiffs were disentitled by reason of the reference to the invalid patent as if it were valid ; but that, as to the last mark, a renewed ap- plication might be made. "No title can be successfully asserted in a trade-mark which is of 1 See Gillott v. Esterbrook, 269. 250 COTTON V. GILLARD. a tendency to mislead or deceive the public. This objection may avail a defendant, notwithstanding what would otherwise be imput- able to him as misconduct. The doctrine is that the complainant must come into a court of equity with clean hands." 1 445. Morse v. "Worrell. (Afterwards Morse v. Cornwell.) 1874; 1875. Phila. C.P. 9 Am. L. Rev. 368; Codd. Dig. 242. THE plaintiff being a manufacturer of stove polish, on which he used a trade-mark consisting of the device of an orb, with rays of light, rising over a piece of water, with the words " Rising Sun Stove Polish" the defendant sold other stove polish with a very similar device, with the words " Rising Moon Stove Polish" Injunction granted to restrain the defendant from using the device, also from using the name " Rising Moon" and from using the device of an orb rising over a piece of water. 446. In re Godillot. November 16, 1874. U. S. Patent Office: Spear, Act. Comm. 6 U. S. Pat. Goz. 641. APPLICATION for the registration of a label, under the Act of Congress of 1874, refused, on the ground that, inasmuch as it possessed all the characteristics of a trade-mark, it could only be registered as such. 447. Cotton v. Gillard. November 24, 1874. Jessel, M. R. 4A L. J. Ch. 90. THE defendant having invented a sauce which he called the "Licensed Victuallers' Relish" and placed in bottles labelled with a view of the Licensed Victuallers' Asylum, the sauce was sold at first by the defendant and his partners in business, and after the dissolution of partnership (on which event the 1 See Pidding v. How, 60. 251 TAYLOR V. GILLIES. recipes and formulas used by the defendant reverted to him) by the defendant's son, who also bought the interest of the defendant's former partners in the sauce. The son becoming bankrupt, his interest in the sauce was bought by the plain- tiffs from his trustee in bankruptcy, but the defendant re- tained the secret recipe, and publicly announced his claim to the title and trade-mark. Suit for an injunction to restrain the defendant from using the name and trade-mark. Injunction refused, on the ground that a trade-mark could not exist or be transferred in gross, and that the plaintiffs were not entitled to apply to an article of their own invention the name a,nd mark appropriated to an article of the recipe, of which they were ignorant, the result of such a course of proceeding being to pass off a spurious article on the public as the genuine one of the defendant's inven- tion. 1 448. Taylor v. Gillies. December, 1874. N. Y. C. P. 5 Daly, 285. N. Y. Ct. ofApp. 59 N. Y. (14 Sickels) 331 ; 17 Amer. Rep. 333. THE plaintiff being a manufacturer of saleratus, which he sold in packages labelled " Allen's Gold Medal Saleratus" and " Taylor's Gold Medal Saleratus" the defendants began to sell the same article in packages labelled " Gillies' Crold Medal Saleratus." Injunction to restrain the defendants from using the words " Gold Medal" in connection with their saleratus, refused, on the ground that no exclusive right could be claimed in those words, the words being necessarily descriptive in their nature. 2 1 See Pidding v. How, 60. 2 See Batty v. Hill, 218. 252 WARD V. BEETON. 449. Estcourt v. The Estcourt Hop Essence Co. December 3, 1874; January 21, 1875. Malins, V. C. 31 L. T. N. S. 567. Lord Cairns, C. ; James and Hellish, L. JJ. L. R. 10 Ch. 276 ; 44 L. J. Ch. 223; 32 L. T. N. S. 80; 23 W. R. 313. THE plaintiffs being manufacturers of a substitute for hops in brewing, which they called " Estcourfs Hop Supplement" the defendant company began to sell another article as " Est- court and Co.'s Hop Essence." Suit by the plaintiffs for an injunction to restrain the de-' fendants from using the name " Estcourt" and from using the secret of the " Hop Supplement" which they alleged to have been communicated to the defendants by the defendant C. Estcourt, who had been in connection with the plaintiffs. Held, on appeal : (1.) that the defendant, C. Estcourt, was under no obligation to keep the plaintiffs' secret, and, further, that it was not proved that the defendant company had ob- tained their knowledge from him ; (2.) that the plaintiffs were disentitled to obtain an injunction by having delayed to take proceedings for seven months after they became aware of the assumption of the name " Estcourt " by the defendant com- pany, and failing even after that period to produce evidence of actual deception ; (3.) that both parties being engaged in an improper speculation, and the defendant company having made statements in their advertisements calculated to lead to the belief that they were the original inventors of the article, the bill must be dismissed without costs. 1 45O. Ward v. Beeton. December 21, 1874. Malins, V. C. L. R. 19 Eq. 207; 23 W. R. 533. THE defendant's copyrights, stock in trade, etc., as a pub- lisher (including a publication called "Beeton's Christmas Annual "), having been purchased by the plaintiffs in 1866, in 1869 the defendant entered into an agreement with the plain- tiffs, under which he was to enter into the plaintiffs' service 1 See McLean v. Fleming, 580 ; Pidding v. How, 60. 253 BROUGHTON V. BROUGHTON. at a salary, and to give all his time to their business, and was not to permit the use of his name in publications without the consent of the plaintiffs, who were to have the right to use it. The plaintiffs and defendant having disagreed, the plaintiffs caused the Annual for 1874 to be prepared without the de- fendant's assistance, upon which the defendant put forth ad- vertisements denying that such Annual was in continuation of his series, and stating that the genuine Annual was one which was being prepared by persons other than the plaintiffs. Motion by the' defendant to dissolve an injunction which had been granted to restrain the publication of such advertise- ments refused, on the ground that the plaintiffs had a right to use the title, notwithstanding that the defendant had not prepared the work, and that the defendant's conduct was con- trary to his engagement. P. 216. " When you sell a newspaper, it is not merely the right to sell one number of it, but continuing to publish it from day to day, it may be as long as the world lasts, under the name by which it has become -known." 1 451. Broughton v. Broughton. May 25, 1875. Jessel, M. R. 44 L. J. Ch. 526 ; 23 W. R. 779. G. BROUGHTON and the defendant having carried on busi- ness in partnership, at the death of the former the partnership was insolvent, but the defendant, being also G. Broughton's executor, carried on the business alone with such success that he subsequently sold it for 1,700. Suit for the administration of G. Broughton's estate. Held, that the defendant was only chargeable with the value of a moiety of the business at the time of the testator's death, and not at the time of the sale of the business. 1 See Hogg v. Kirby, 10. 254 HARTER V. SOTJVAZOGLTL 452. Bulloch, Lade & Co. v. Gray. January 6, 1875. Guthrie, Sheriff" Subs. ; Dickson, Sheriff" of Lanarkshire. 19 Journ. of J wisp. 218. CROSS suits by two rival firms of distillers at Glasgow, of whom the one firm called their establishment " The Loch Ka- trine Distillery" and the other called their whiskey " Loch Katrine Whiskey" for interdicts to restrain the respective de- fendants from using the words " Loch Katrine" Interdict in both cases refused, on the ground that in each case the word was used as descriptive of the water used in the distillery, and that any one who used Loch Katrine water in the manufacture of his whiskey was at liberty to state that such was the fact. 1 453. Prudential Assurance Co. v. Knott. January 20, 1875. Lord Cairns, C.; James and Mellish, L. JJ. L. R. 10 Ch. 142; 44 L. J. Ch. 192; 31 L. T. N. S. 866 ; 23 W. R. 249. SUIT for an injunction to restrain the publication of a pam- phlet alleged to contain passages injurious to the plaintiff com- pany's reputation and business. Held, that the Court of Chancery had no jurisdiction to re- strain the publication of a libel, even when injurious to prop- erty. 454. Harter v. Souvazoglu. January 20, 1875. Hall, V. C.W.N. 1875, p. 11; Z. J. Notes of Cos. 1875, p. 20. James and Mellish, L. JJ. W. N. 1875, p. 101. THE plaintiffs being exporters of cotton cloths to Turkey and the Levant, who affixed to their cloths a certain heading consisting of different colored threads in combination, the defendants shipped similar goods to Constantinople with a similar heading. 1 This decision would seem to pro- whiskey is not always the pure juice of ceed upon the assumption that Scotch the grain. 255 WESTON V. KETCHAM. Injunction granted to restrain the defendants from infring- ing the plaintiffs' trade-mark. 1 455. Western v. Ketcham. (1.) February 1, 1875. N. Y. Super. C7. 39 N. Y. Super. Ct. (7 J. S.) 54. THE inventor of " Captain S. Pepper's Extra Signal Oil " (the secret of which preparation was only known to himself, his wife, and the plaintiff Weston) arranged with the de- fendant Ketcham for the sale by the latter of his oil, on terms of equal profits ; and, after Pepper's death, Weston and Ketcham entered into a similar arrangement as " F. 0. Ketcham $ Co." one tenth of the profits being paid to Pep- per's widow in return for her interest in the trade-mark. Weston subsequently arranged with the widow for the cancel- lation of the previous agreement with her, and the substitu- tion of an exclusive agreement with himself, for an annual sum, contrary to the wishes of his then partners, Ketcham and another, who had instructed him to negotiate on behalf of the partnership ; but the partnership continued to deal in the article under the same name, the annual payments being made out of the partnership funds, until the dissolution of the partnership two years later. After such dissolution the plaintiffs, being Weston and the third partner in the old firm, continued to manufacture the same article under the same name and trade-mark, as " Weston $ Fisk," and the defend- ants, Ketcham and another, who were not acquainted with the secret, also manufactured an article under the same name and trade-mark, as " F. 0. Ketcham Co." Injunction, which had been granted to restrain the use of the name and trade-mark by the defendants, dissolved, on the ground, that, (1.) under the circumstances of the case, Wes- ton's partners in the original firm of " F. O. Ketcham & Co." were entitled to treat him as a trustee for them of the rights which he had acquired under the new arrangement with Pep- per's widow ; (2.) that they were not debarred from enforc- 1 See Williams v. Johnson, 150. 256 FISHER & CO. V. THE APOLLINARIS CO. ing their right by acquiescence, since they were at a disad- vantage, in that Weston alone knew the secret, and were, therefore, compelled to submit ; (3.) that on the dissolution of Ketcham & Co. all the partners retained equal rights in the trade-marks, etc., of the firm ; (4.) and that the fact that the defendants were not acquainted with the secret gave no rights against them to the plaintiffs, whose right in the trade- mark was only equal to theirs ; whatever remedy might be open to any member of the public who was deceived by them. 456. In re Rothschild. February 13, 1875. U. S. Patent Office : Spear, Act. Comm. 7 U. S. Pat. Gaz. 220. ON an application for registration of a trade-mark : Held, that under the U. S. Statute of 1870, a new trade- mark, which had been devised and originated by the appli- cant, might be registered, although it had not been actually used by him previous to his application for registration. 457. Fisher & Co. (Limited) v. The Apollinaris Co. (Limited). February 25, March 23, 1875. Malins, V. C. L. R. 10 Ch. 299 n.; 32 L. T. N. S. 628. James and Mellish, L. JJ. L. R. 10 Ch. 297; 44 L. J. Ch. 500; 32 L. T. N. S. 628; 23 W. R. 460. SUIT by Fisher & Co. (limited), and E. Fisher, whose busi- ness had been bought by the company, for an injunction to restrain the defendants from continuing to publish a letter of apology which had been given them by E. Fisher, in order to induce them to discontinue prosecuting him under the Mer- chandise Marks Act, 1862, for selling spurious aerated water in the Apollinaris Co.'s bottles, such continued publication being injurious to the plaintiff company. Held, on demurrer, by the L. JJ., that there was nothing improper in compromising a prosecution under the act in 17 257 WILSON V. MAXFIELD. question, and that the defendants could not be restrained from continuing to publish the letter. 458. Smith v. Mason. March 4, 1875. Hall, V. C. W. TV. 1875, p. 62 ; L. J. Notes of Cos. 1875,^.44. THE plaintiff being a chemist and druggist, who sold a medicine of his invention under the name of " Pectorine" the defendant began to sell another preparation under the same name. On motion by the plaintiff injunction granted to restrain the defendant from so doing. 459. Wilson v. Maxfield. March 15, 1875. Malins, V. C. L. J. Notes of Cas. 1875, p. 51. THE plaintiff being a sewing-machine manufacturer, who had stamped a figure of St. George and the Dragon upon cer- tain sewing-machines made by him, and known as " England's Queen," but who had not used the device on bill-heads or cir- culars, or generally in his business, before bill filed, the de- fendant, who had formerly been in the plaintiff's employ, placed on machines of his own make, and on his circulars, a device of St. George and the Dragon, with the words *' Max- field $ (70. 's trade-mark." Injunction to restrain the defendant from using the device refused, on the ground that the plaintiff had acquired no rep- utation for the mark by use, and that there was no attempt by the defendant to deceive or probability of deception. 1 1 Under the English cases, there must would seem to be to the effect that as be something more than a mere adop- soon as the mark is applied it becomes tion and application of a trade-mark the property of him who is the first to to create an exclusive right at common formally make the application. Browne law. The American cases, however, on Trade-Marks, 52. 258 GODILLOT v. HAZARD. 460. Gouraud v. Trust. March, 1875. N. Y. Sup. Ct. 10 N. Y. Sup. Ct. (3 Hun) 627. THE plaintiff, whose name had formerly been " Dr. J. W. Trust," but had been changed to " Dr. T. F. Gouraud," be- ing the manufacturer of a cosmetic which he called " Grou- raucTa Oriental Cream or Magical Beautifier" the defendants, his sons, who had retained their original name, began to sell a cosmetic under the name of " Creme Orientale, by Dr. T. F. G-ouraud's Sons" Injunction granted to restrain the defendants from so in- fringing the plaintiff's rights, on the ground that the state- ment of the defendants' relationship to the plaintiff, though true, was made with the intention of deceiving, and was cal- culated to deceive. 1 461. Godillot v. Hazard. April, 1875. N. Y. Super. Ct. : Monell, C. J. 49 How. Pr. 5. THE plaintiff being an importer of an article made ex- pressly for him by a particular firm in Paris, consisting of compressed ingredients for Julienne soup, and which he sold under a label containing the words " Conserves Alimentaires" the arms of the city of Paris, with a monogram " A. <7." on each side, and the words ''Paris" and "Julienne" with directions for use, beneath; the defendants began to sell a similar article under a similar label, except that the mono- gram was changed to " F. G-. ; " and they admitted that their label had, by their orders, been copied from the plaintiff's. Suit for an injunction to restrain the defendants from in- fringing the plaintiffs rights. Held, (1.) that the plaintiff had no exclusive right in the word " Julienne, per se, that word being descriptive of an ar- ticle commonly made ; (2.) but that the plaintiff was entitled to an injunction to restrain the use of his compound label by the defendants ; (3.) and that the fact that the plaintiff did 1 See Let. v. Haley, 325. 259 LLEWELLYN V. RUTHERFORD. not himself manufacture the article constituted no defence, since the article was expressly made for and imported by him. " The property and right to protection is in the device or symbol which is invented and adopted to designate the goods to be sold, and not in the article which is manufactured and sold." 1 462. Llewellyn v. Rutherford. May 5, 1875. Common Pleas. L. R. 10 C. P. 456; 44 L. J. C. P. 281; 32 L. T.N. S. 610. Held, that the sum which an outgoing tenant of a public- house was entitled, under agreement, to receive on the ter- mination of his lease, as the value of the good-will, must be determined by a calculation of the sum which an incoming tenant would be willing to pay for the good-will in such a case, and that a general rise in the value of property in the neighborhood should be taken into consideration. Per Brett, J. " In some classes of business, when the trade has long been carried on in a profitable manner in a particular house, and a new tenant comes in and continues to carry on the same business there, it is found by experience that many, if not all, of the customers resort there as before. This is found so regularly to happen that it has become usual to pay a money value for it, which is commonly called ' good-will.' It may be that there may be a species of good- will which may be the subject of bargain and sale, although not de- pendent on the business being carried on in any particular place : for instance, in the case of what are called ' quack medicines.' But when we come to speak of the good-will of a public-house, it is obvious that it is a thing which is attached to a locality." 1 The decision in this case was af- that a mark used to denote that the firmed upon appeal by the unanimous goods on which it is used are the selec- opinion of the court of last resort of tion of a merchant will be protected. New York. There can be no doubt 260 IN BE HANKINSON. 463. Devlin v. Devlin. May, 1875; April 3, 1877. N. Y. Sup. Ct. ll N. Y. Sup. Ct. (4 Hun) 651. N. Y. Ct. ofApp. 69 N. Y. (24 Sickels) 212; 15 Alb. L. J. 290. THE plaintiffs being engaged in the clothing business as " Devlin $ Co." the defendant, J. S. Devlin, who carried on the same business alone, put out a wire sign in front of his shop, bearing the words " Devlin $ (70.," with the letters "<7. $." in a monogram above, the number of the shop, "826" on each side, and the word " clothing " below. An injunction having been granted to restrain the defend- ant from using the name " Devlin Go." and from continu- ing to use such sign, and from trading in any other name than his own Christian names and surname, in plain characters and without monograms, the defendant, upon service of the order, so varied his sign that it now contained the initials " J. S." with "826" on each side in the top line, "Devlin's" with a hand in the middle, and " clothing" in the bottom line. On motion by the plaintiffs to commit the defendant for breach of the injunction : Held, by the Supreme Court, that the defendant had not sufficiently obeyed the injunction, and was, therefore, guilty of contempt, and that a fine must be imposed and the sign removed. Held, by the Court of Appeals, that the decision of the Su- preme Court on a point of fact must be followed, but that the case was sufficiently open to doubt for no costs of the appeal to be given to either party. 1 464. In re Hankinson. June 2, 1875. U. S. Patent Office: Thacher, Comm.8 U. S.Pat. Gaz- 89. APPLICATION by a carpet-cleaner, who used a certain mark on his wagons, circulars, etc., and on tags attached to the carpets, for the registration of such mark as his trade-mark, refused, on the ground that the marks of manufacturers or 1 See Burgess v. Burgess, 117. 261 BLACKWELL V. WRIGHT. merchants were alone registrable within the U. S. Statute of 1870, and that the applicant was incapable of specifying, in accordance with that statute, the class and description of goods or merchandise to which the mark was appropriated. 465. The Apollinaris Company (Limited) v. Norrish. June 3, 1875. Bacon, V. C. S3 L. T. N. S. 242. THE plaintiffs being, by agreement with the owners of the Apollinaris Spring in Germany, the exclusive importers of "Apollinaris Water" into England, the defendants sold an artificial water, containing the same chemical constituents as the natural water, as " London Apollinaris Water," but in different bottles, differently labelled, from those of the plain- tiffs. On motion by the plaintiffs injunction granted to restrain the defendants from using the name " London Apollinaris Water," or making any other use of the name " Apollinaris " calculated to deceive. 1 466. Blackwell v. "Wright. June, 1875. No. Carolina Sup. Ct. 73 N. Car. 310. THE plaintiff being a manufacturer of tobacco at Durham, North Carolina, whose trade-mark consisted of the figure of a bull, with the words " Genuine Durham Smoking Tobacco, Manufactured only by W. T. Blackwell (successor to J. R. Crreen Co., Durham, N. C." the defendant used a trade- mark consisting of the figure of a bull's head, arranged to occupy the central part of a circular design, and the words " The Original Durham Smoking Tobacco, Manufactured by W. A. Wright," and published various denials of the exclu- sive right of the plaintiff to sell " Grenuine Durham Smoking Tobaceo." Action for damages, and for an injunction to restrain the 1 See Congress, etc. Spring Co. v. High Rock Congress Spring Co. 354 ; Apol- linaris Co. v. Moore. 262 BLACKWELL V. WRIGHT. defendant from infringing the plaintiff's trade-mark, and slan- dering his title. Demurrer allowed, and injunction refused, on the ground that there was no such similarity between the marks as to be calculated to produce deception. Per Bynum, J. " This rule (i. e. that of the protection of trade- marks) is grounded upon a twofold reason : 1st, that the public may be protected from being imposed upon by a spurious or inferior arti- cle, as an imitation or counterfeit almost always is ; and, 2d, that the inventor may have the exclusive benefit of the reputation which his skill has given to the article made by him." " It will make no difference whether the party designed to mislead the public, or whether the symbol adopted was calculated to deceive. But if it appear that the trade-mark alleged to be imitated, though resembling the complainant's in some respects, would not probably deceive the ordinary mass of purchasers, an injunction will not be granted. An imitation is colorable, and will be enjoined, which requires a careful inspection to distinguish its mark and appearance from that of the manufacture imitated." " We must assume that dealers and consumers of such a commodity have ordinary intelligence, and adopt ordinary precaution against imposition and fraud." 1 1 See Blackwell v. Armistead, 392. to deceive the unwary customer, differs In that case, which was decided by a from an absolute forgery, not in the federal court Judge Rives very ably nature, but rather in the extent of the formulates the doctrine of infringement injury. The dissimilarity to the expert as follows : wholesale dealer may be such as to save " The doctrine on this subject has him from the imposition, but too slight, grown with commerce ; so much of it and that perhaps by design, to diminish as is necessary or material for our pres- sales to the incautious purchaser. But ent inquiry is comprehended in a single upon the success of fraud depends ulti- proposition. It is the seminal princi- mately the extent of the injury." pie of the whole doctrine. The simple Concerning the principal case it is to statement of it is, that the dealer has be remarked that at the time it was property in his trade-mark. This is al- decided, the word " Durham " had been lowed him because of the right which adjudged to be publici juris in respect of every man has to the rewards of his the residents of that place, a circum- industry and the fruits of his discovery, stance which probably reduced the ques- and because of the wrong of permit- tion of infringement to a comparison ting one man to use as his own that of the two symbols. In the absence of which belongs to another. In regard to proof of actual mistake, or other evi- the latter, it may be well said that any dence of probability of confusion in the imitation of a trade-mark, calculated market, the conclusion arrived at was 263 IN KB VOLTA BELT CO. 467. "Wood v. Sands. 1875. U. S. C. C. Dt. of III Codd. Dig. 50. THE plaintiff, who had established and gained a reputation for a hotel at Chicago under the name of " Wood's Hotel" assigned his interest therein to another person, with the ex- clusive use of his name, and a covenant not to open another hotel during the remainder of the lease. During the continu- ance of such arrangement the hotel was burnt down, and the plaintiff having subsequently repurchased the right to the use of the name " Wood's Hotel" and opened a hotel under that name in a different situation, the defendant opened a new hotel in Chicago as " Wood's Hotel" and announced the re- opening of that hotel. Action by the plaintiff for an injunction to restrain the defendant from using the name. Held, (1.) that the name was capable of assignment, at all events for use in connection with the premises to which it was attached ; (2.) that it had passed to the plaintiff under the reassignment from his as- signee, and that he was entitled to the benefit of whatever value it possessed ; (3.) that the injunction must be granted to restrain the defendant from using the name. 1 468. In re Volta Belt Co. June 26, 1875. U. S. Pat. Office: Thacher, Comm. S U. S. Pat. Gaz. 144. ON an application for the registration of a trade-mark, con- sisting of a globe surrounded by clouds, from which lightning- flashes proceeded, with the words ''Electricity is life :" Held, that a description of the mark in the statement on applica- tion, as being "a symbol, consisting of the words 'Electricity is Life, placed beneath clouds, from which lightning-flashes a necessary one, and cannot be taken of Judge Bynum which are quoted will to negative the earlier case, or to affect not bear critical examination, the lucid reasoning of Judge Rives. See Amoskeag Man. Co. v. Spear, 100. It is plain that some of the remarks l See Howard v. Henriques, 108. 264 IN RE BOEHM & CO. proceed, the whole arranged generally as shown in the fac- simile" was insufficient, as not clearly distinguishing between the essential and non-essential parts of the mark claimed, and, in particular, making no mention whatever of the globe. 469. In re Vidvard and Sheehan. June 29, 1875. U. S. Patent Office: Thacher, Comm. 8 U. S. Pat.Gaz. 143. an application for the registration of a trade-mark : Held, that the requirement of the U. S. Statute of 1870, that a declaration should be made on oath " to the effect that the party claiming protection for the trade-mark has a right to the use of the same, and that no other person, firm, or cor- poration has a right to such use, either in the identical form, or having such near resemblance thereto as might be calcu- lated to deceive," was sufficiently complied with by a decla- ration that " no other person, firm, or corporation has a right to the use of the said trade-mark, or of one substantially the same." 470. In re Boehm & Co. August 24, 1875. U. S. Patent Office: Spear, Act. Comm.8 U. S. Pat. Gaz. 319. ON an application for the registration of the word " Cen- tennial " as a trade-mark in respect of " alcoholic spirits : " Held, that such an application for the general class of goods was sufficient, and that it was not necessary to make separate applications in respect of the several kinds of goods included in the class on which it was intended to use the mark, i. e. " Bourbon, wheat, and rye whiskeys, wines, brandies, gins, and bitters," except as to the last, " bitters," not being prop- erly included in the term " alcoholic spirits." 265 IN RE GREEN. 471. In re Glines. 1875. U. S. Patent Office : Spear, Act. Comm. 8 U. S. Pat. Gaz. 435. THE words " Slate Roofing Paint " admitted to registration as a trade-mark on paint, on the ground that, though the words might be suggestive of qualities of the paint, they were not, properly speaking, descriptive of its composition or use. 472. Meneely v. Meneely. September, 1875. N. Y. Sup. Ct.N. Y. Sup. Ct. (1 Hun) 663; 2 Thomp.Sf C. 540. N. Y. Ct. ofApp. 62N. Y. (17 Sickels) 427 ; 20 Amer. Rep. 489; 2 Am. L. T. N. S. 482. THE plaintiffs and their predecessors in business having long manufactured bells at Troy, New York, and sold them with the inscription cast on them, " Meneely 's, West Troy, N. Y." the defendants made bells at the same place, and stamped them " Meneely and Kimberly, Troy, N. Y." Injunction to restrain the defendants from using the name " Meneely " on their bells refused, on the ground that the de- fendants were entitled to use their own names without fraud, and that no attempt at fraud was proved. Per Rapallo, J. (62 N. Y. 427). " Every man has the absolute right to use his own name in his own business, even though he may thereby interfere with or injure the business of another person bearing the same name, provided he does not resort to any artifice or contrivance for the purpose of producing the impression that the establishments are identical, or do anything calculated to mislead. Where the only confusion created is that which results from the similarity of the names, the courts will not interfere." 1 473. In re Green. September 27, 1875. U. S. Patent Office: Spear, Act. Comm. 8 U. S. Pat. Gaz. 729. THE words " German Sirup " admitted to registration as a trade-mark, on the ground that the word " German " was 1 See Burgess v. Burgess, 117. 266 THE IXDIA-RUBBER COMB CO. V. MEYER. not used as descriptive of a German product, but was a purely arbitrary term. 1 474. The Tucker Manufacturing Co. v. Boyington. October, 1875. U. S. C. C. Dt. of N. Ill : Blodgett, J. 9 U. S. Pat. Gaz. 455. THE plaintiff company manufacturing the "Tucker Spring- Bed " under an expired patent, and having registered a trade- mark consisting of a picture of the bed, the monogram " T. M. Co." and the words " Tucker Spring-Bed" the defendant manufactured a similar bed, and used a label containing a picture of the bed and the words " Tucker Spring-Bed" Motion by the plaintiffs for an injunction to restrain the defendant from infringing the plaintiffs' rights refused, on the ground that the right to use the name and represent the bed had become common property on the expiration of the patent, and that the combination registered by the plaintiff company had not been used by the defendant, except as to such elements as were common property. 2 475. The India-Rubber Comb Co. v. Meyer. 1875. N. Y. Super. Ct. Cited 8 U. S. Pat. Gaz. 905. THE plaintiff company placing the words " The India- Rubber Comb Co." on combs and cases or packages of combs, the defendant used the same words on other combs, cases, etc. Injunction granted to restrain the defendants from infring- ing the plaintiffs' corporate name. 3 1 It is difficult to understand the logic vious that the German manufacturer of this decision. The theoretical effect would have the better right to the of registration was to confer an exclu- word, although not an exclusive right, sive right ; plainly the registrant here 2 See Singer Man. Co. v. Wilson, could hardly hope to maintain the exclu- 477. sive right to use the word " German " 8 The assumption that the words " In- in America as against exporters of Ger- dia-Rubber Comb Co." were decided to be many, who made German sirups within a trade-mark was erroneous ; the words German jurisdiction. It is quite ob- are obviously descriptive. 267 THE SINGER MANUFACTURING CO. V. WILSON. 476. In re India-Rubber Comb Co. November 24, 1875. U. S. Patent Office: Spear, Act. Comm. 8 U. S. Pat. Gaz. 905. THE words " The India-Rubier Comb Company of New York " admitted to registration as a trade-mark, on a rehear- ing, after a previous refusal, on the ground that the words were established to be the applicants' trade-mark by the de- cision of the Superior Court of New York in India-Rubier Comb Co. v. Meyer ; and that although registration of the mere name of a person, firm, or corporation was forbidden by the U. S. Statute of 1870, yet such a name might be regis- tered as being " a lawful trade-mark rightfully in use on the 8th July, 1870." 1 477. The Singer Manufacturing Co. v. Wilson. December 14, 1875 ; March 25, 1867 ; December 13, 1877. Jessel, M. R. 2 Ch. D. 434; 45 L. J. Ch. 491 ; 34 L. T. N. S. 858 ; 24 W. R. 1023. Ct. ofApp. : James, Hellish Sf Baggallay, L. JJ. 2 Ch. D. 448 ; 45 L. J. Ch. 490; 34 L. T. N. S. 863 ; 24 W. R. 1026. H. of L. 3 App- Cas. 376 ; 47 L. J. Ch. 481 ; 38 L. T. N. S. 303 ; 26 W. R. 664. THE plaintiffs being manufacturers of sewing-machines under various patents since expired, who placed on their ma- chines the words " The Singer Manufacturing Company" and also a trade-mark consisting of an ellipse containing a shuttle and needles, crossed with a line of cotton in the form of an S, and the words and letters " Trade-Mark" " The Singer M. F. Gr. Co., N. I 7 .," and who alleged that their machines had become generally known as the " Singer," or " Singer's " ma- chines ; the defendant, who manufactured sewing-machines on the principles of a variety of expired patents, began to use, among others, the patents formerly owned by the plaintiffs and their predecessors in business, and, by his agents and his price- lists, etc., described such machines as " Our Singer Machines" and placed on them his trade-mark, consisting of a brass plate representing St. George and the Dragon, within the words 1 See preceding case. 268 THE SINGER MANUFACTURING CO. V. WILSON. " Newton, Wilson $ Co,, Manufacturers, 14h High Holborn," arranged in a circle, and he alleged that the name " Singer," or " Singer's," was indicative of an article made on the prin- ciple of construction which he asserted to run through all the plaintiffs' patents, though they varied in minor particulars, and not of an article made by the plaintiffs. Suit by the plaintiffs for an injunction to restrain the de- fendant from using the name " Singer " or "Singer's " in con- nection with his machines. Held, by the M. R. and Ct. of App., upon the plaintiffs' evidence alone : (1.) that where a name or device is affixed to an article, or to a wrapper or vessel in which it is contained, thus becoming a trade-mark proper, it is not necessary, to con- stitute an infringement, for actual fraud to be proved ; (2.) that where a trade name is used in respect of an article, but is not placed upon it, actual fraud must be proved for there to be infringement ; (3.) that the present case falling into the second class, and the plaintiffs producing no evidence of actual fraud, the injunction must be refused; (4.) and that, this being so, it was unnecessary to inquire whether the name was indicative of the plaintiffs' make, or of a principle of construc- tion. Held, by the H. of L. : (1.) that, whether the name is or is not affixed to the article, it is not necessary, to constitute infringement, for actual fraud to be proved, if it is established that the defendant has acted in a way calculated to deceive ; (2.) that, in the case in question, the plaintiffs had shown a primd facie case, but that, the plaintiffs' evidence only being before their lordships, they were not in a position to decide finally whether the name " Singer " or " Singer's " was really indicative of the plaintiffs' manufacture, or of a principle of construction, or whether the defendant had acted in a way calculated to deceive ; (3.) and, therefore, that the case must be remitted to the court below for decision upon the whole of the evidence. Per Lord Cairns, C. (3 App. Gas. 389). " It may well be that, if an imitated trade-mark is attached to the article manufactured, there 269 THE SINGER MANUFACTURING CO. V. WILSON. will, from that circumstance, be the certainty that it will pass into every hand into which the article passes, and be thus a continuing and ever-present representation with regard to it ; but a representation made by advertisements that the articles sold at a particular shop are articles manufactured by A. B. (if that is the legitimate effect of the advertisements, which is a separate question), must, in my opinion, be as injurious in principle, and may possibly be quite as injurious in operation, as the same representation made upon the articles them- selves." P. 391. "I wish to state in the most distinct manner that, in my opinion, fraud is not necessary to be averred or proved in order to obtain protection for a trade-mark." " A man may take the trade- mark of another ignorantly, not knowing it was the trade-mark of the other ; or he may take it in the belief, mistaken but sincerely enter- tained, that in the manner in which he is taking it he is within the law, and doing nothing which the law forbids ; or he may take it, knowing it is the trade-mark of his neighbor, and intending and de- siring to injure his neighbor by so doing. But in all these cases it is the same act that is done, and in all these cases the injury to the plaintiff is just the same. The action of the court must depend upon the right of the plaintiff, and the injury done to that right." Per Lord O'Hagan (p. 396). " If a man has acquired legitimately a right to the property in an exclusive use of a name, it is of small account to him, should it be invaded, whether the invasion comes from a purpose to deceive, or from ignorance, or inadvertence, or an honest misconception of the relative rights of the parties, and the law ought not to permit, and will not permit, the continuance of the in- vasion, whatever may have been its origin." 1 1 There can be no doubt that the scriptive names, be treated as publici name which has been used during the juris. The cases are not at variance life of a patent to distinguish a patented with each other in respect of principles; article is to be regarded as a trade-mark, but different courts have reached dif- if the facts show that it indicates origin; ferent conclusions of fact, if they show that the name is, in a just See Singer Manufacturing Co. v. sense, descriptive, it will, like other de- Brill, ?fi ; Same v. Larsen, 662; 270 PHELAN V. COLLENDER. 478. Tallcot v. Moore. December, 1875. N. Y. Sup. Ct. lB N. Y. Sup. Ct. (6 Hun) 106. THE plaintiff sold certain medicines under the name of " The Magic Cure" and described their virtues in a small pamphlet with a red cover, ornamented with a group of fig- ures, and entitled " The Little Red Book, New Series, 1875 ; " the defendant sold other medicines under the name of "Moore'* Pillules" and published a book in a red paper cover, entitled " The Red and White Book" the words " Red Book " being in red letters, but with no figures on the cover, the contents being much the same as those of the plaintiff's book. Injunction, which had been granted to restrain the defend- ant from infringing the plaintiff's rights, dissolved, on the ground that deception was not probable, but an intention to deceive being held to be perceptible, no costs given of the appeal, nor of a motion in the court below to vacate the injunction. 1 * 479. Phelan v. Collender. December, 1875. N. Y. Sup. Ct. lS N. Y. Sup. Ct. (6 Hun) 244. THE defendant being the surviving partner of the firm of " Phelan and Collender," billiard-table makers, and having purchased from the executors of his deceased partner the in- terest of the latter in the partnership property, patents, trade- marks, etc., described himself as " H. W. Collender, Successor to Phelan and Collender" and his billiard-tables as " Phelan and Collender's Standard American Tables" Suit by the son of the deceased partner, himself a billiard- table maker, for an injunction to restrain the defendant from so doing. Injunction refused, on the ground that the plaintiff had no more right than any other person of the same name had to interfere with the defendant's use of his father's name, and, chiefly, that the defendant had not acted with any intent to deceive, or otherwise than he was entitled to do. 1 See Hogg v. Kirby, 10. 271 REPUBLIC OF PERU V. REEVES. 48O. In re Kane & Co. December 27, 1875. U. S. Patent Office: Duett, Comm. d U. S. Pat. Gaz. 105. APPLICATION for the registration of "galvanized iron hoops placed on a barrel of a dark color," as a trade-mark in respect of spirituous liquors, refused, on the ground that such hoops had long been used on barrels, and that, even if the applicants were the first to use them on barrels of spirits, they would convey no distinctive idea. 1 481. Faber v. Hovey. December 30, 1875. N. Y. Sup. Ct. Codd. Dig. 79, 249. ACTION by the plaintiff for an injunction to restrain an infringement of his trade-mark on lead-pencils. Held, (1.) that the word ''Star" was a good trade-mark; (2.) that there was no error in an assessment of damages by the referee, in which he found that the damages were equal to the profits which the plaintiff would have made from the manufacture and sale of the same number of articles as the defendant had sold under the spurious mark. 2 482. Republic of Peru v. Beeves. January 3, 1876. N. Y. Super. Ct. 40 N. Y. Super. Ct. (8 /. S.) 316. AN injunction having been granted and continued until further order, in 1873, without opposition by the defendant, to restrain an infringement of the plaintiffs' trade-marks on guano, and the defendant having died in 1874 : Motion by his administratrix, in 1875, to have the action continued against herself as such administratrix, refused, on the ground that it was not shown that the defendant had ac- quired any rights in the litigation, or that his estate would be prejudiced by the action not being continued. 1 See Williams v. Johnson, 150; of Appeals by a divided court. See Moorman v. Hoge, 373. Graham v. Plate, 347. 2 This case was affirmed in the Court 272 FRESE V. BACHOF. 483. Hennessy v. Wheeler. January. 1876; April 10, 1877. N. Y. C. P.: Robinson, J. 51 How. Pr. 457. N. Y. Ct. of App. 69 N. Y. (24 Sickels) 271 ; 15 Alb. L. J. 454. ACTION by the plaintiffs, brandy manufacturers and im- porters, for an injunction to restrain an infringement of their trade-mark placed upon the bottles containing their brandy, being nominally " quart " and " pint " bottles. Held, by the Common Pleas, that the action must be dis- missed, on the ground that the plaintiffs were themselves guilty of misrepresentation in selling, as quart and pint bot- tles, bottles which contained less, the deficiency amounting to about 7-30ths. Held, by the Court of Appeals, that the bottles were not sold by the plaintiffs or others as measures of capacity, but were of the ordinary sizes used in the trade, the capacity of which was generally understood ; that there was no evidence that any one had been or was likely to be deceived ; that the plaintiffs were, therefore, not disentitled, and that a new trial must be granted. 484. Frese v. Bachof. (1.) January, 1876. U. S. C. C. S. Dt. ofN. Y. : Johnson, J. 13 Bl. C. C. 234. THE plaintiffs selling tea in packets labelled " J. C. Frese $ Co., Hopfensack, 6, Hamburg," the defendant sold tea in packets similarly labelled. Suit for an injunction to restrain the defendant from infring- ing the plaintiffs' rights. On motion for preliminary injunc- tion : Held, (1.) that an injunction must be granted to restrain the defendant from using the name " J. C. Frese $- Co.," and from using on his labels the words "Ji C. Frese $ Co., Hop- fensack, 6, Hamburg," notwithstanding that he claimed to have discontinued the use of the name and label ; (2.) but that a preliminary injunction to restrain the defendant from is 273 IN RE AMERICAN LUBRICATING OIL CO. making up his tea in packages of the same size, shape, and color as the plaintiffs', must be refused, the defendant's labels containing his own name in distinct characters, and the plain- tiffs showing no exclusive right to the size, etc., of their pack- ages. 1 485. Peltz v. Eichele. January, 1876. Missouri Sup. Ct. 62 Mo. (21 Post) 171. THE defendant, having covenanted with the plaintiffs or their assignors, on the sale to them of his match business in St. Louis, with the good-will, trade-marks, etc., and the trade names of "A. Eichele" and " A. Eichele $ Co." that he would not resume the manufacture of matches at St. Louis, or in any other place, for five years, or assist others in so doing, set up as a manufacturer of matches in St. Louis, within the five years, under the name of " P. Eichele <$ Co." and di- verted customers of the plaintiffs. Held, (1.) that the covenant was good, at all events as far as regarded St. Louis, and that a breach had been committed ; (2.) that the measure of damages was the loss occasioned to the plaintiffs by the breach of covenant, and not the defend- ant's profits, though the defendant's profits were one element to be considered in ascertaining what the plaintiffs had lost. 486. In re The American Lubricating Oil Co. February 2, 1876. U. S. Patent Office : Duett, Comm. d U. S. Pat. Gaz. 687. APPLICATION for the registration of the word "Star" as a trade-mark on oil, refused, on the ground that there was already registered in another name, for use upon the same class of goods, a device representing a star, containing the letter " 6r," and that the use of the word " Star " by the ap- plicants would be calculated to deceive the public, inasmuch 1 The decision in this case upon final of package. See Williams v. Johnson, hearing, 603, fully recognized complain- 150. ants' exclusive right to use their style 274 WYLAM V. CLARKE. as their oil, as well as that of the parties already registered, would acquire the name of " Star Oil" 487. Western v. Ketcham. (2.) February, 1876. N. Y. Super. Ct. : Sedgwick, J. 51 How. Pr. 455. MOTION by the plaintiffs in Weston v. Ketcham (1.), f r an injunction to restrain the defendants in that case from selling "Pepper's Signal Oil" refused, on the ground (1.) that the plaintiffs showed no title to the trade-mark or name superior to that of the defendants ; (2.) that the agreement between the plaintiff Weston and the widow of the inventor could add nothing to the plaintiffs' rights, since the widow could acquire no right to the trade-mark in gross, and had succeeded to no business to which it was attached ; 1 (3.) that the allegation that the defendants sold as "Pepper's Signal Oil " that which was not so gave the plaintiffs no cause of action. " There is no such thing as a trade-mark ' in gross,' to use that term by analogy. It must be ' appendant' of some particular business in which it is actually used upon, or in regard to, specific articles." 488. Wylam v. Clarke. February 11, 1876. Bacon, V. C. W. N. 1876, p. 68. THE plaintiffs being manufacturers of Spratt's dog biscuits, which they stamped with " X " and the words " Spratt's Pat- ent" the defendant began to manufacture similar biscuits, but marked them with an anchor and the words "Buffalo Meat" Injunction to restrain the defendant from infringing the plaintiffs' rights refused, on the ground that the marks were not sufficiently alike to deceive, but the defendant not having proved his bona fides in the matter, no costs given, except as to a part of the case which the plaintiffs had abandoned. 1 See Witthaus v. Braun, 492. 275 IN BE COGGIN, KIDDER & CO. 489. Coe v. Bradley. February 17, 1876. U. S. C. C. Dt. of Mass. Shspley, /. 9 U. S. Pat. Gaz. 541. THE plaintiff, being the inventor of " COB'S Superphosphate of Lime" entered into a contract with the defendant, under which the latter was to have the exclusive use of the plain- tiff's trade-mark, consisting of the name of the article, for a limited period, the contract providing for the payment to the plaintiff of a certain share of the profits of the business, and also that a breach of the contract by the one party should re- lease the other from his obligations. Suit by the plaintiff for the recovery from the defendant of the share of profits agreed to be paid to the plaintiff. Held, that, notwithstanding that the plaintiff had broken the contract by the sale of an article under the name of " Coe's /Superphosphate of Lime," and " Andrew Coe's Super- phosphate of Lime," he was entitled to recover the share of profits agreed to be paid to him, but that there must be de- ducted from such share a sum to be assessed by way of dam- ages for the infringement by the plaintiff of the trade-mark which the defendant had acquired the exclusive temporary right to use. 490. In re Coggin, Kidder & Co. February 21, 1876. U. S. Pat. Office : Spear, Act. Comm. U U. S. Pat. Gaz. 1109. APPLICATION for the registration of a device, consisting principally of the word " Haxall " and a Maltese cross, as a trade-mark on flour, refused, on the ground that the word " Haxall " had for many years been the trade-mark of an- other firm, and that the use of the proposed trade-mark would be calculated to deceive. 276 WITTHAUS V. BRAUN. 491. In re Howe & Post. February 25, 1876. U. S. Patent Office: Spear, Act. Comm. 9 U. S. Pat. Gaz. 496. APPLICATION for the registration of the words " New York Cutlery Co." as a trade-mark refused, on the ground that the name, having only been used by the applicants for a fort- night, had neither acquired a reputation in the market, nor been in use as an existing trade-mark on the 8th July, 1870, and that its registration was, therefore, prohibited by the U. S. Statute of 1870, as being a " mere name of a person, firm, or corporation." 492. Witthaus v. Braun. March, 1876. Maryland Ct. of App. 44 Md. 303 ; 22 Amer. Rep. 44. THE plaintiff being a tobacco manufacturer, who had been accustomed to manufacture a certain kind of tobacco for an- other person, according to his instructions, and had recently purchased and had assigned to him the trade-mark used by that other person on the tobacco so manufactured, the defend- ants sold other tobacco under a similar trade-mark. Suit by the plaintiff for an injunction to restrain an alleged infringement of this trade-mark by the defendants : Held, (1.) that although a trade-mark could not be trans- ferred in gross, since that would involve a fraud upon the public, a transfer to one who was already the manufacturer of the article was not open to objection on this ground ; (2.) but that the title of the original user of the mark to its exclusive use was too doubtful for an injunction to be granted. " Where a trade-mark is used to designate the place and the person by whom the goods are made, the right to such trade-mark passes to the purchaser upon the sale and transfer of the business and manu- factory at which the goods are made. " The mere sale of a trade-mark, apart from the article to which it is affixed, confers no right of ownership, because no one can claim 277 HIRSCH V. JONAS. the right to sell his goods as goods manufactured by another. To permit this to be done would be a fraud upon the public. But where the trade-mark is assigned to the person who manufactured the article to which the trade-mark was affixed, there is no false rep- resentation to the public, because the tobacco is still manufactured at the same place and by the same person. It is, in fact, the same article." 493. In re Dick & Co. March 8, 1876. U. S. Patent Office: Duell, Comm. 9 U. S. Pat. Gaz. 538. APPLICATION for the registration of the words and letters " D. D. $ Co. Tasteless" as a trade-mark for drugs and medicines, refused, on the ground that the adjective was either descriptive of a quality of the article, or was decep- tive ; and that the fact that the other elements associated with the word were unobjectionable did not constitute the combination a valid mark. 494. Hirsch v. Jonas. March 12, 1876. Jessel, M. R. 3 Ch. D. 584; 45 L. J. CJi. 364; L. T. N. S. 228. THE plaintiff was a London cigar merchant, who imported cigars made by Genir, of Havana, and which were, at the plaintiff's suggestion, supplied to him by the latter in boxes labelled with a design of Britannia and the words " Gloria de Inglaterra," to which Genir added the words " Of Joseph Grenir, Manufacturer of Cigars, of Havana." Boxes of cigars so labelled were supplied by Genir, until shortly before the commencement of the action, to the plaintiff alone, but he had no contract with Genir for the continued exclusive or any supply of such cigars, and the defendants, being new London agents of Genir, began to sell boxes of cigars, consigned to them by Genir, similarly labelled. Motion by the plaintiff for an injunction to restrain the defendants from so doing refused, on the ground that, although 278 IN RE ROHLA.ND. it was possible for a trade-mark to indicate selection by a person of reputation in that capacity, all that was indicated by the trade-marks in question was that the cigars were of Genir's manufacture, and that there was no contract between Genir and the plaintiff securing to the latter the exclusive sale of the cigars. 495. Mickle v. Emery. March 18, 1876. Jessel, M. R. Seton, 4th ed. 234. ON motion by the plaintiff injunction granted, upon an undertaking as to damages, to restrain an infringement of the plaintiff's trade-marks registered under the Trade-Mark Act of 1875. 496. Lautz Bros. & Co. v. Schultz & Co. April 3, 1876. U. S. Patent Office: Duett, Comm. 9 U. S. Pat. Gaz. 791. INTERFERENCE declared between the applications of the parties for registration, for the purpose of deciding to which the trade-mark, the subject of the applications, belonged. Motion to dissolve the interference, on the ground that there was no statutory authority given to the Patent Office to declare an interference, refused, on the ground that the Commissioner of Patents was authorized to establish regula- tions for the conduct of proceedings in the Patent Office, and that this was sufficient to empower him to direct an interfer- ence in a trade-mark case. 497. In re Rohland. April 6, 1876. U. S. Patent Office: Doolittle, Asst. Comm. 10 U. S. Pat. Gaz. 980. ON an application to register the words " Dr. LobenthaVs Essentia Antiphthisica" as a trade-mark on a medical com- position : 279 THE AMOSKEAG MANUFACTURING CO. V. GARNER. Held, that the words were not merely descriptive of the article, and registration granted. 498. Robineau v. Charbonnel. May 4, 1876. Malins, V. C. W. N. 1876, p. 160; L. J. Notes of Cos. 1876, p. 104. THE plaintiff, carrying on business as a confectioner in Paris, under the style of " Maison Boissier" the defendants, who had been principal employes in the plaintiff's establish- ment, set up business in Bond Street, and placed in their win- dow the words " Ex l^ res de la Maison Boissier de Paris" the words " Ex l ires de la " being in very small letters. Injunction to restrain the defendants from infringing the plaintiff's rights refused, on the ground that, the plaintiff having no shop in England, the public would not be deceived, but no costs given, the conduct of the defendants not having been blameless. 499. Poster v. Megevand. May 19, 1876. Jessel, M. R. Pemb. 2d ed. 393. INJUNCTION granted to restrain an infringement of the plaintiff's trade-mark, with an account and inquiry as to dam- ages. 500. The Amoskeag Manufacturing Co. v. Garner. (2.) 1876. N. Y. Sup. Ct. 4 Am. L. T. N. S. 176. THE plaintiff company manufacturing cotton goods, but not prints, and placing on the cotton goods labels containing the word "Amoskeag" or the initials "A. M. Co." or "A. M. C." the defendant sold prints labelled with the word "Amoskeag" Suit for an injunction to restrain the defendant from in- fringing the plaintiffs' rights. Held, (1.) that the defendant had no right to use the plain- tiffs' corporate name ; (2.) that his intention in so doing was immaterial ; (3.) that, to constitute infringement, it was suffi- 280 IN RE WEAVER. cient for there to be a probability, or even a possibility, of the public being deceived ; (4.) that the injunction must be granted ; (5.) but that, on account of the plaintiffs' delay in taking proceedings, no damages, account of profits, or costs, could be given. Per Barrett, J. " The only difference between the parties on this head is as to the legal treatment of the word ' Amoskeag.' The learned counsel for the defendant says: 'It is no part of our claim that Mr. Jones can use Mr. Baker's name on Mr. Jones's goods.' And he adds : ' If a baker puts forth a " Boston " cracker, and uses the name until it becomes a trade-mark, it does not prevent another baker from putting out a " Boston Roll," or a " Boston Pie," or a " Boston Plum-Pudding." ' " But now suppose that the plaintiff had received from the Legis- lature of New Hampshire the name of ' The Amoskeag Baking Com- pany,' and for forty years had been engaged in the humbler, though hardly less useful, avocation of 'manufacturing' almost every variety of bread, roll, muffin, cracker, biscuit, cake, and pie, on which articles of food it had invariably stamped its corporate name, or some abbre- viation thereof, such as 'Amoskeag B. Co.,' or 'Am. Baking Co.,' or 'Am. B. Co.,' or ' Amoskeag' '\ Suppose, however, that the plaintiff had omitted, or had not yet decided, to make and vend the single va- riety known as ' Crumpets,' and thereupon a rival baker attempted to sell his crumpets as ' Amoskeag Crumpets,' would not any cus- tomer, upon seeing the name thus applied, naturally say that the Amoskeag Baking Company had added crumpets to its other varieties of bread ? And would not the rival bakery be restrained upon the plain principle of an unauthorized use of the company's name ? The parallel is not precise, as the printing of calicoes may require some additional machinery. But the difference is. only in degree." 501. In re Weaver. June 6, 1876. U. S. Patent Office: Duett, Comm. lO U. S. Pat. Gaz. 1. AN alternative trade-mark, consisting either of the figure of a lion, or of the word "Lion" or of both, admitted to registration, on the ground that the above were merely three forms of the same trade-mark. 281 GROCER PUBLISHING ASS. V. GROCER PUBLISHING CO. 5O2. Filkins v. Blackman. June, 1876. U. S. C. C. Dt. of Conn. : Shipman, J. 13 BL C. C. 440. JONAS BLACKMAN, the inventor of a medicine which he called " Dr. J. Blackmails Genuine Healing Balsam" having assigned to M. L. Filkins, for ten years from January 1, 1866, the exclusive right to manufacture the medicine under that name, on certain terms, with a proviso that if M. L. Filkins complied with those terms for the ten years, the right should be continued for a further period of fifty years, the defendant, being the son of Jonas Blackman, began, after the expiration of the ten years, to make and sell a medicine under the same name. On motion by Filkins Brothers injunction granted to re- strain the defendant from so doing ; and Held, (1.) that the name was a good trade-mark ; (2.) that the assignment was a good transfer of the right to use it on the same goods, though it would give no right to it as used on different goods ; (3.) that after the assignment the original inventor could give no right in the name to the defendant ; (4.) that the fact that M. L. Filkins had his brother as a co-plaintiff was no defence, since the trade-marks of a person entering into a partnership became partnership property. " The right to the use of a trade-mark cannot be so enjoyed by an assignee, that he shall have the right to affix the mark to goods differ- ing in character or species from the article to which it was originally attached." 503. American Grocer Publishing Association v. Grocer Publishing Co. June, 1876. N. Y. Sup. Ct. 5l How. Pr. 402. ACTION by the plaintiffs for an injunction to restrain the publication of a newspaper in imitation of their paper, " The American Grrocer." Motion by the plaintiffs to continue pendente lite an injunc- tion which had been granted refused, on the ground that there 282 EX PARTE STEPHENS. was not such similarity between the papers as to justify the court in deciding in the plaintiffs' favor on motion, and that the balance of convenience was against the continuance of the interlocutory injunction. 1 504. In re Lawrence & Co. June 20, 1876. U. S. Patent Office: Duell, Comm. 10 U. S. Pat. Gaz. 163. APPLICATION for the registration of the German words " Fur Familien Grebrauch" and " Lawrence Feiner Familien Flannel" signifying respectively " For Family Use" and " Lawrence Fine Family Flannel" as trade-marks on flannel goods, refused, on the ground that they were mere words in common use and not distinctive. 5O5. Ex parte Stephens [T. M. A. 1875]. (1.) June 21, 1876. Jessel, M. R. 24 W. R. 819; 1 Trade-Marks, 13. APPLICATION having been made for the registration of a trade-mark under the T. M. A. 1875, and the registrar hav- ing declined to register the proposed trade-mark as not being within the act : On motion by the applicant for directions as to the proper mode of applying to the court, so as to obtain the registra- tion of the proposed trade-mark : Held, that the proper mode of applying for the opinion of the court was by way of mo- tion to rectify the register by the insertion of the applicant's name as the proprietor of the trade-mark, two clear days' notice being given to the Registrar of Trade-marks, and the application being supported by an affidavit by the applicant, stating the facts. 1 See Hogg T. Kirby, 10. 283 IN RE SIMPSON & SONS. 506. In re Bush & Co. June 21, 1876. U. S. Patent Office: Duett, Comm.lO U. S. Pat. Gaz. 164. APPLICATION for the registration of the words "Centen- nial, Isidor Bush $ Co., St. Louis, Mo.," in combination with the applicants' already registered trade-mark and the obverse and reverse of the centennial medal, as a trade-mark on sparkling wines, refused, on the ground that the word " Centennial " had already been registered in another name for alcoholic spirits, which would to some extent include wines, and that the obverse and reverse of the centennial medal had been registered in a third class, and that purchas- ers would not be likely to be deceived. 507. In re The Rubber Clothing Co. June 28, 1876. U. S. Patent Office: Duell, Comm. lO U. S. Pat. Gaz. 111. ON an application for the registration of the words " Rub- ber Clothing Co." as a trade-mark on clothing : Held, that although the words merely composed the name of a corporation, and, therefore, came within the. prohibition to register in the U. S. Statute of 1870, yet registration should be granted, as of a "lawful trade-mark rightfully in use on the 8th July, 1870," on its being satisfactorily estab- lished by affidavit evidence that the name was in actual use as a trade-mark at that date. 508. In re Simpson & Sons. July 13, 1876. U. S. Patent Office: Doolittle, Act. Comm. lO U. S. Pat. Gaz. 333. APPLICATION for the registration, as labels, of two labels, of which one consisted of the word " Eddystone," with a picture of a light-house and the words " Wm. /Simpson $ Sons, Philadelphia, No. yds." and the other of a picture 284 SMITH V. REYNOLDS. of three female figures standing near a tomb, with the words " Wm. Simpson Sons, Philadelphia," refused, on the ground that they were properly trade-marks, and must be registered as such. 509. The Apollinaris Company (Limited) v. Edwards. July 13, 1876. Bacon, F. C. Seton, 4th ed. 237. THE plaintiffs being the exclusive importers of Apolli- naris water into England, under agreement with the owners of the Apollinaris Spring in Germany, the defendants used the word " Apollinaris " in connection with waters other than the genuine. On motion by the plaintiffs injunction granted to restrain the defendants from so doing. 1 51O. Ex parte Stephens [T. M. A. 1875]. (2.) July 28, 1876. Jessel, M. R. 3 Ch. D. 659 ; 46 L. J. Ch. 46 ; 24 W. R. 963; 1 Trade-Marks, 13. MOTION to register as a trade-mark on inks the word or combination of letters "Aeilyton" such word not having been used as a trade-mark before the passing of the above act, re- fused, on the ground that the wording of the 10th section of the above act excluded from registration a mere combination of letters, newly adopted since the act. 511. Smith v. Reynolds. (3.) July, 1876. U. S. C. C. S. Dt. of N. Y.: Shipman, J. 13 Bl. C. C. 458. THE plaintiff having registered a crown under the U. S. Act of 1870 as his trade-mark for paints, but not having at that time, or since, used the crown on white lead, the defend- ants used a trade-mark containing a crown as their trade- mark on white lead, they, or their predecessors in business, 1 See Apollinaris Co. v. Moore. 285 LEA V. MILLAR. having done so from about a year previous to the registration of the plaintiff's mark. Injunction to restrain the defendants from continuing to use the crown on their white lead refused, on the ground that the registration of the plaintiff's mark for paints generally did not give him a right to interfere with the continued user by the defendants of a mark which they had acquired a right to use in connection with a particular kind of paint before the registration of the plaintiff's mark. 512. Compagnie Laferme v. Hendrickx. July 20, 1876. Jessel, M. R. THE plaintiffs being a Dresden company of cigarette mak- ers, who sold their cigarettes in certain special wrappers, etc., and under the name " Laferme" the defendant sold other cigarettes under the same name and in similar wrappers. Injunction granted to restrain the use of labels and wrap- pers imitated from the plaintiffs', but refused as to word "Laferme," on the ground that it was not established that the plaintiffs' predecessor in business was the first in Germany to use it. Costs up to the motion at which the interlocutory injunc- tion as to the wrappers, etc., was granted, given to the plain- tiffs, subsequent costs to be borne by the respective parties. 513. Lea v. Millar. July 26, 1876. Jessel, M. R. Seton, 4/A ed. 242. THE plaintiffs being manufacturers of a sauce which they termed " Worcestershire Sauce" the defendant sold a sauce under the same name and with similar labels. Injunction to restrain the defendant from using the name and imitating the plaintiffs' labels refused, on the ground that both the name and the style of label had been long used by sauce manufacturers other than the plaintiffs, and that the plaintiffs had publicly abandoned their old labels by the 286 IN RE MEIKLE. recent adoption of a new label bearing their signature as a distinctive mark. 1 514. Bell, Black & Co. v. Bell & Co. August 1, 1876. Bacon, V. C. THE plaintiffs being manufacturers of lucifer matches, who sold their matches in boxes bearing a label of deep blue and red color on a white ground, with the device of a bell, the defendants, who had sold the same article in boxes bearing a label of the same colors, but paler, with the device of a small bee-hive, diminished the difference between the labels by deepening the colors of theirs and enlarging the bee-hive. On motion by the plaintiffs injunction granted to restrain the defendants from infringing the plaintiffs' rights. 515. In re Meikle [T. M. A. 1875]. August 7, 1876. Hall, V. C. 24 W. R. 1067; 1 Trade-Marks, 22. THE Registrar of Trade-Marks refused to register, or ad- vertise for registration, a design accompanied by the words " The Registered Seal of the Bonus Tea Association" unless the word " registered " were omitted, on the ground that the Commissioners of Patents had directed him not to allow that word to appear in connection with any registered trade-mark. On summons to rectify the register, by the insertion of the applicants' name as proprietors of the unaltered mark, ad- journed into court: Held, (1.) that an order could not be made for the regis- tration of the trade-mark without the preliminary advertise- ment required by the rules being inserted in the official jour- nal; and (2.) that the court would not interfere with the directions given to the registrar by the Commissioners of Patents in their discretion, or direct an advertisement of the unaltered mark with a view to its registration. 1 It is not to be understood that the right to protect the features which were court decided that by merely adopting common to both old and new. a new label plaintiffs abandoned the 287 IN RE IMBS. 516. In re Roach. August 9, 1876. U. S. Patent Office: Duett, Comm. 10 U. S. Pat. Gaz. 333. APPLICATION for the registration of the words " Croup Tincture " as a trade-mark on a croup medicine refused, on the ground that the words were merely descriptive. 517. Western v. Heinmons. August 10, 1876. Victoria Sup. Ct. : MoleswOrth, J. 2 Viet. L. R. Eq. 121. THE plaintiff being the inventor of a secret medicine called "Weston's Wizard Oil" and the defendants having manufact- ured this medicine by agreement with him, after the termi- nation of the agreement the defendants continued to use the recipe and name. Injunction granted to restrain the defendants from using or imparting the secret recipe, and from using the name, except in respect of medicines manufactured before the termination of the agreement, but the order to be discharged if the plain- tiff should fail to pay for any ingredients, etc., purchased by the defendants for the purpose of the medicine, and which would have been charged in account against the plaintiff if the connection had continued. As to certain other medicines not satisfactorily proved to have been invented by the plain- tiff, or to have been sold in Victoria before the commence- ment of his connection with the defendants, no order made. 518. In re Imbs. August 29, 1876. U. S. Patent Office : Doolittle, Asst. Comm. 10 U. S. Pat. Gaz. 463. A DEVICE consisting of the letter " /" within a shield, the shield being surrounded with wheat and situated above the word " Charm," admitted to registration as a trade-mark, not- withstanding that two other trade-marks were already on the register, of which the one consisted of the words " Grolden 288 CHARLESON V. CAMPBELL. Charm " above a monogram of the letters " F. Gr. S. $ Co.," and the other of the words " Attrition Flour " above a shield on which 'were bunches of wheat, on the ground that the pro- posed trade-mark was not sufficiently similar to those already registered as to be calculated to deceive. 519. Orr v. Diaper. November 6, 1876. Hall, V. C. 4 Ch. D. 92 ; 46 L. J. Ch. 41 ; 35 L. T. N. S. 468 ; 25 W. R. 23. THE plaintiffs being manufacturers of sewing thread, who sold their thread in England and abroad, including Valparaiso, under certain marks, discovered that large quantities of thread bearing marks similar to theirs had been shipped to Valparaiso by the defendants on account of other persons. Action by the plaintiffs for discovery of the names and ad- dresses of the consignors, and particulars and dates of the con- signments of marked thread, with a view to further proceed- ings against the consignors. Demurrer ; overruled ; and Held, that the defendants must answer within a month. 520. Charleson v. Campbell. November 17, 1876. Cl. of Session. Ct. of S ess. Cos. 4th Ser. IV. 149 ; 14 Scot. L. Rep. 104. THE plaintiff being the proprietor of " The Station Hotel, Forres" the defendant, who had become proprietor of " The County and Family Hotel" in Forres, changed its name to " The Royal Hotel" and afterwards to " The Royal Station Hotel, Forres" Interdict to restrain the defendant from styling his hotel " Station Hotel " refused, on the ground, that (1.) the name of the plaintiff's hotel was a mere descriptive title, not a specific one, and that there was no averment that the defend- ant had assumed his title with fraudulent intent ; and (2.) the use of the word " Royal " by the defendant, as part of the 19 289 CARMICHEL v. LATIMEE. name of his hotel, was sufficient to distinguish it from the plaintiff's. 1 521. Carmichel v. Latimer. November, 1876. Rhode I. Sup. Ct. 11 R. I. 395 ; 23 Amer. Rep. 481; 16 Alb. L. J. 73. THE plaintiffs being A. Carmichel & Co., who had purchased the good-will of the business of Stillman & Co., woollen man- ufacturers, and with it the right to use the tickets or labels of that firm, bearing the name " Stillman $ Co." the defend- ants, Latimer, Stillman & Co., leased a mill formerly used by Stillman & Co., and known as the " Seventh Day Mill" or " Stillman Mill" and there began to manufacture goods sim- ilar to the plaintiffs', and to sell them ticketed with a label containing the words " Stillman Mill" On motion by the plaintiffs for an injunction to restrain the defendants from so doing : Held, (1.) that the plaintiffs' right to use the name " Still- man Co." there being no person of that name in the firm, was doubtful ; (2.) that the defendants were entitled to place the name of their mill on their goods, if they did so without fraud ; (3.) that there was no evidence or probability of fraud or deception ; (4.) and, therefore, that the motion must be refused. Per Potter, J. " In some of the cases the question has been be- tween partners, or there has been a sale of a business, to be continued by the vendee, and more or less connected with a place and the good- will of the business, and in many of these cases the sale of the trade- mark would be upheld. But where the reputation of the goods and of the name has grown out of excellence of manufacture, depending on the honesty and skill of the maker, it is more difficult to hold that it can be sold to a stranger, or that it is generally assignable." Per Durfee, C. J. " A manufacturer has a right to attach his own name to his manufactures, even though a rival manufacturer of the same name, who has given it prestige in the market, may suffer in consequence. The resulting damage is damnum absque injurid. And 1 See Howard v. Henriques, 108. 290 CARMICHEL V. LATIMER. if a manufacturer has the right to label the products of his mill with his name, I do not see why he has not an equal right to label them with the name of that mill itself, provided the name is not unfairly assumed for that purpose, or fraudulently employed." " There is to be noticed a peculiarity in some English cases, grow- ing out of the practice of keeping up the name of an old mercantile firm for several generations, or successions of partners, and when no partner of the original name remained. This practice is noticed and commented on in Hall v. Barrows, 215 ; The Leather Cloth Go. v. The Amer. Leather Cloth Co. 223 ; and by Lord Kingsdown, in the last named case in House of Lords, mentioning instances. See, also, Croft v. Day, 77. In such cases no one is deceived. The name and good-will are understood by the public to belong to the existing firm." " In the present case there has been no continuation of an old firm by a gradual change of its members. There is no person of the name of Stillman in the complainants' firm, and the goods (although one of the partners was superintendent of the old firm) are made by a new firm, and in another place. The goods had (and it may be as claimed, through the skill of Carmichel) acquired a valuable reputation ; but that old firm does not now exist. They do not describe themselves as successors, or the goods as made by one who was formerly super- intendent, but by the old firm as if it still existed. " It has not been claimed by the respondents that the complainants intend any deception. The facts are probably pretty well understood by the large dealers, and by the trade generally. And if we look upon the mark as having come to designate merely a quality or sort of goods, in that light the complainants would not be entitled to the exclusive use of it. " On the other hand, the defendants hire the old mill, formerly oc- cupied by Stillman & Co., and are making linseys there. While there is evidence that this mill was often called the ' Seventh Day Mill,' there is reliable evidence that it was also called the ' Stillman Mill.' It was leased to the defendants by that name, two years before they began the manufacture complained of. Persons of that name have been engaged in Westerly in manufacturing for many years, and there is evidence that the name of Stillman has also been applied to other mills. The defendants have a right to call their mills so, if they choose." 291 CHASE V. MAYO. Per Potter, J. " The trouble is, the label of the defendants does not resemble the label of the plaintiffs closely enough to deceive any person of ordinary discernment, unless the name ' Stillman,' which is prominent in both labels, may mislead him. The plaintiffs, therefore, can have no relief unless they can show that the defendants have no right to use that name as they do use it in their labels. How can the plaintiffs do this when the surname of one of the defendants is Still- man, and when the mill where the linseys are manufactured, though it may be popularly known as the ' Seventh Day Mill,' is also prop- erly called the ' Stillman Mill ? "' 1 522. In re The Eagle Pencil Co. November 21, 1876. U. S. Patent Office : Doolittle, Asst. Comm. 10 U. S. Pat. Gaz. 981. APPLICATION for the registration of a trade-mark on pencils stated to consist essentially in the combination of a fraction with the whole number usually marked on a pencil, as 1^ for 1, 2| for 2 (the figure of an eagle, or the. word "Eagle" or other characters, being added or omitted at pleasure), refused, on the ground that the alleged trade-mark was in reality a mere indication of the quality of the article. 523. Chase v. Mayo. November 23, 1876. Mass. Sup. Ct. 12l Mass. (7 Lathrop) 343. THE plaintiff being a packer and seller of fish, who was also an official inspector of fish, and who branded the parcels of fish packed by him for his private business with his official brand, the defendant branded other fish with a similar mark. Action for damages. Held, that the plaintiff was not enti- tled to recover damages, on the ground that a public officer could not acquire any private right of trade-mark in the brand used by him in his official capacity. 1 See Kidd v. Johnson, 669 ; Pidding v. How, 60 ; Bury v. Bedford, 222. 292 DECKER V. DECKER. 524. Booth v. Jarrett. November, 1876. N. Y. C. P.: Van Brunt, J. 52 How. Pr. 169. THE plaintiff being Edwin Booth, who had established a theatre in New York and called it " Sooth's Theatre" and who had assigned the lease to J. B. Booth, under whom the defendants claimed, the premises having been described in both assignments, and also in various mortgages made by the plaintiff, as " Sooth's Theatre," the defendants continued to call the theatre by that name. Motion by the plaintiff for an injunction to restrain the defendants from continuing to use the name " Sooth," in con- nection with the theatre, refused, on the ground that the plaintiff's name had become affixed to the establishment, and did not imply that it was conducted by him. 1 525. Decker v. Decker. November, 1876. N. Y. Sup. Ct. : Lawrence, J. 52 How. Pr. 218. THE plaintiffs being manufacturers of piano-fortes in New York, trading under the name of " Decker Brothers" the de- fendants, also manufacturers of pianos in New York, trading as " Decker $ Barnes" and whose senior partner had pre- viously been in business as "Decker $ Co." placed on their pianos a trade-mark consisting of the words " The Decker Piano" which they had registered in the U. S. Patent Office. Motion by the plaintiffs for an injunction to restrain the de- fendants from so doing refused, on the ground that the de- fendants could not be restrained from the use of their own names, if no fraud appeared ; and further, that it was doubtful whether the court was empowered to interfere with a trade- mark awarded by the Commissioner of Patents. 2 1 See Howard v. Henriques, 108. 2 See Burgess v. Burgess, 117. 293 CHEAVIN V. WALKER. 526. Powell v. McNulty. November 27, 1876. Bacon, V. C. THE plaintiff manufacturing a sauce under the name of " Yorkshire Relish" the defendant sold another sauce under the same name. Injunction granted to restrain the defendant from so doing. 1 527. In re Pratt and Farmer. November 27, 1876. U. S, Patent Office: Doolittle, Assl. Comm. 10 U. S. Pat. Gaz. 866. APPLICATION for the registration of the figure of a fish as a trade-mark for fishing lines refused, on the ground that the figure was descriptive of the purpose of the article. 528. Cheavin v. Walker. December 8, 1876 ; May 9, 1877. Bacon, V. C. 5 Ch. D. 854 ; 46 L. J. Ch. 265 ; 35 L. T. N. S. 757. Ct. of App. : Jessel, M. R. ; James and Baggallay, L. JJ. 5 Ch. D. 850 ; 46 L. J. Ch. 686 ; 36 L. T. N. S. 938. THE plaintiff being G. Cheavin, who manufactured filters on a principle patented by his father, S. Cheavin, in 1862 (but which patent lapsed in 1865), and who placed on his filters a tablet with the words " G. Cheavin' s Improved Patent Q-old Medal Self-Cleaning Rapid Water Filter, Boston, England" beneath a medallion with the royal arms and the words " By Her Majesty's Royal Letters Patent" the defendants, Walker, Brightman & Co., manufactured filters on the principle of the same patent, and placed on them a tablet with the words " S. Cheavin' s Patent Prize Medal Self-Cleaning Rapid Water Filter, Improved and Manufactured by Walker, Brightman $ Co., Boston, England" Action for an injunction to restrain the defendants from in- fringing the plaintiff's rights. 1 This case affords a striking illustration of the use of a geographical name in other than a geographical sense. 294 DUNBAR v. GLENN. Held, by the V. C. : (1.) that the plaintiff had acquired a right of trade-mark in the tablet ; (2.) that this right had been fraudulently infringed by the defendants ; (3.) that the plaintiff was not deprived of his right to an injunction by his reference to the lapsed patent ; and (4.) that the injunction must be granted. Held, by the Court of Appeal: (1.) that the alleged trade- mark was a mere inscription and not a trade-mark ; (2.) that in any case the defendants had committed no infringe- ment, but had merely stated the principle on which the filter was manufactured by them ; (3.) that the plaintiff was dis- entitled by reason of his reference to the lapsed patent being such as to induce the belief that it was still in force ; and (4.) that the injunction must be dissolved and the action dis- missed. Per Jessel, M. R. (5 Ch. D. 862). "You may state in so many words, or by implication, that the article is manufactured in accord- ance with a patent which has expired. But if you suggest that it is protected by an existing patent, you cannot obtain the protection of that representation as a trade-mark. Protection only extends to the time allowed by the statute for the patent, and if the court were af- terwards to protect the use of the word as a trade-mark, it would be in fact extending the time for protection given by the statute. It is, therefore, impossible to allow a man who has once had the protection of a patent to obtain a further protection by using the name of his pat- ent as a trade-mark." Per James, L. J. " It is impossible to allow a man to prolong his monopoly by trying to turn a description of the article into a trade- mark. Whatever is mere description is open to all the world." l 529. Dunbar v. Glenn. January, 1877. Wisconsin Sup. Ct. 42 Wis. 118. THE plaintiff being the proprietor of a spring of mineral water, which he sold under the name of " Bethesda Mineral Water," styling the spring the " Bethesda Mineral Spring" 1 See Pidding v. How, 60 ; Leather Cloth Co. v. Amer. Leather Cloth Co. 223. 295 BARROWS V. THE PELSALL COAL AND IRON COMPANY. the defendants, "who were the proprietors of a neighboring spring, which they alleged to contain exactly the same water, began to call their spring and water " Grlenn-Bethesda Min- eral Spring " and " Water," and to issue circulars using those terms, and stating that their water was " identical with Be- thesda " water. Injunction granted to restrain the defendants from using the name " Bethesda Mineral Water " in connection with the water of their spring, and from issuing circulars or trade-cards, etc., representing their water to be " Bethesda " water. " Where the trade-mark, in its original signification, or by associa- tion, distinctively points to the origin or ownership of the article to which it is applied, it will be protected. But where it is a generic or geographical name, designating a city or district of country, or is merely descriptive of the article manufactured, and can be employed with truth by other manufacturers, it is not entitled to legal protec- tion as a trade-mark." 1 530. Barrows v. The Pelsall Coal and Iron Company. January 11, 1877. Hdl, V. C. THE plaintiffs being manufacturers of iron, which they stamped with the letters " B. B. J?." (the initials of the orig- inal partners in the firm Bradley, Barrows & Hall) in Roman characters and a crown, the defendants, carrying on business in succession to Messrs. Boaz Bloomer & Sons, stamped their iron (as that firm had done) with the Roman letters " B. B. S" and a crown. In 1874 the plaintiffs com- menced a suit for an injunction, which was compromised, the defendants undertaking to discontinue the use of their mark. The defendants subsequently took proceedings to pro- cure the registration of the letters " B. B. /," in italic char- acters, with a crown, as their trade-mark under the Trade- Marks Act, 1875. On motion by the plaintiffs injunction granted to restrain 1 See Congress, etc. Spring Co. v. High Rock Congress Spring Co. 354. 296 MOET V. CLYBOUW. the defendants from using or procuring the registration of the mark in question. 531. Hennessy & Co. v. Rohmann, Osborne & Co. January 18, 1877. Matins, F. C. 36 L. T. N. S. 51. On an ex parte application on the part of the plaintiffs, being brandy merchants, who alleged that the defendants had obtained cases of the plaintiffs', and filled them with in- ferior brandy : Interim injunction granted, to restrain the defendants from selling brandy not the plaintiffs', so as to deceive, and order made, under Order LIL, Rule 3, for inspection of the de- fendants' premises to be made and samples taken by a proper person. 532. Grillon v. Guenin. January 19, 1877. Bacon, V. C. W. N. 1877, p. 14. THE plaintiff being a manufacturer of lozenges which he sold in boxes labelled with the words " Tamar Indien" the defendant sold other lozenges under the name of " American Tamar" Injunction granted to restrain the defendant from infring- ing the plaintiff's trade-mark ; and Held, that a defence that the words " Tamar Indien " were merely descriptive of the composition of the plaintiff's loz- enges failed. 533. Moet v. Clybouw. January 20, 1877. Jessel, M. R. THE plaintiffs being Moet and Chandon, wine-growers, who sold their champagne in bottles closed with corks branded with the letters " M. (7." in a circle on the bottom, and the word " England " on the side, the defendant sold other champagne in bottles closed with corks similarly marked, claiming to use the initials in right of a firm of " Meadows 297 DENCE V. MASON. Clybouw" to whose business he alleged himself to have suc- ceeded, and claiming to use the word " England " as common to the trade. On motion by the plaintiffs injunction granted to restrain the defendant from infringing the plaintiffs' rights. 534. Dence v. Mason. (1.) January 25, 1877; February 12, 1878. Malins, V. C. W. N. 1877, p. 23; 1878, p. 42 ; L. J. Notes of Cases, 1877, p. 33. THE plaintiffs having recently acquired a provision dealer's business in Little Stanhope Street, Mayfair, carried on under the name of " Brand $ Co." and which name was placed on all the packets of essence of beef and other preparations made by the firm ; F. Mason, who had been for many years in the employ of the plaintiffs' predecessor in business, and who al- leged that during that period he had been the discoverer of the essence of beef, left their service, and began to deal in the same class of goods, in partnership with one Brand as " Brand $ Mason" In consequence of proceedings taken by the plain- tiffs, this name was changed to " Mason $ Brand" and shortly afterwards Brand refused to continue in the partnership, or to permit the defendant to make use of his name, but the de- fendant nevertheless continued to trade under the name of " Mason $ Brand" and to represent that he was the original maker of the article. On motion by the plaintiffs for an injunction to restrain the defendant from infringing their rights, and again at the hear- ing of the action : Held, (1.) that during the continuance of the partnership between Mason and Brand it was impossible to prohibit en- tirely the use of the latter's name in the business ; (2.) but that after the retirement of Brand the defendant was not en- titled to continue to use his name for the purpose of imitating the plaintiffs' name and marks, although he was at liberty to manufacture the same article as the plaintiffs under his own name ; (3.) that in arranging with the proprietor of a small 298 LINOLEUM MANUFACTURING COMPANY V. NAIRN. shop in the same street as the plaintiffs for the exhibition on her shop-front of the words " Agent for Mason $ Brand's Essence of Beef" the words " Agent for " being in small and the rest in large letters, the defendant had acted in a manner intended and calculated to deceive ; (4.) that, supposing the defendant to have discovered the recipe of the essence of beef, which was not established, he was nevertheless not entitled to represent himself as the original maker, since whatever essence of beef he had made had been made by him as the servant of the plaintiffs or their predecessors, but that he might state that he had been in the plaintiffs' service, and had there learnt the recipe ; (5.) and that an injunction must be granted to restrain the defendant in the particulars above mentioned. 535. Ex parte Grimshaw [T. M. A. 1875]. January 25, 1877. Hall, V. C. W. N. 1877, p. 24 ; L. J. Notes of Cos. 1877, p. 24; 1 Trade-Marks, 23. Two applications being made for the registration of the same trade-mark: Motion by one of the two applicants for a direction that the case should be heard on motion, and not on special case as directed by the rules, refused, on the ground that the method of procedure directed by the rules was the more convenient. 536. Linoleum Manufacturing Company v. Nairn. February 1,1877; January 30, 1878. Hall, V. C. Chanc. Div. : Fry, J. 7 Ch. D. 834; 47 Z. J. Ch. 430; 38 L. T. N. S. 448; 26 W. R. 463 ; 1 Trade- Marks, 291. THE plaintiffs being manufacturers, under certain patents recently expired, of a new species of floor-cloth, which they called " Linoleum Floor-cloth" or " Linoleum" and who had used and registered as their trade-mark a device consisting of a fleur-de-lys in a lozenge, with the words " Linoleum Floor- cloth " and " F. Walton's Patent" the defendants made prep- aration, upon the expiration of the patents, for the manufact- ure and sale of a similar article, under the name of "Linoleum 299 EX PARTE YOUNG ; RE LEMON HART & SON. Floor-cloth" and adopted a trade-mark entirely different from the plaintiffs', consisting of a bunch of thistles with the name "Nairn's." On motion by the plaintiffs for an injunction to restrain the defendants from using the word " Linoleum : " Jleld, by Hall, V. C., that nothing having yet been done, and the question being purely one of the right to use the word, the matter must stand over till the hearing. At the hearing of the action : Held, by Fry, J. : (1.) that the word " Linoleum," as in- serted in the plaintiffs' trade-mark, did not form an essential feature of the mark ; (2.) that the word being descriptive of a substance which the defendants were entitled to make, they were entitled to use it as the name of the substance ; (3.) that the fact that the word had been previously used by the plaintiffs alone, they being hitherto patentees, did not give them an exclusive right in it, since a name appropriated to an article made under a patent was indicative in the first place of the article so made, and only in the second place of the manu- facturers ; (4.) and that the injunction must, therefore, be refused. " Until some other person is making the same article, and is at liberty to call it by the same name, there can be no right acquired by the exclusive use of a name, as showing that the manufacture of one person is indicated by it, and not the manufacture of another." x 537. Ex parte Young ; Re Lemon Hart & Son. February 3, 1877. London Ct. of Bankruptcy : Spring Rice, Reg. for C. J. LEMON HART & SON, wine merchants, whose trade-mark consisted of the initials " L. If. $ $.," having been compelled to liquidate by arrangement, and the partnership property, good-will, etc., having been sold by the trustee in the liquida- tion, the purchaser became bankrupt without having fully paid the purchase money. 1 See Burnett v. Phalon, 277 ; Singer Man. Co. v. Wilson, 477. 300 STRAHAN & CO., LIMITED, V. KING & CO. Motion by the trustee in liquidation for an order for the payment to him of the proceeds of a sale of the trade-mark by the trustee in bankruptcy refused, on the ground that the trade-mark passed to the purchaser from the trustee in liqui- dation, under the assignment from the latter, and that the purchaser's trustee in bankruptcy was entitled to the benefit of it; and Jleld, that the trade-mark was a chattel within sect. 15, sub-s. 5 of the Bankruptcy Act, 1869. 538. Harrington v. Libby. February, 1877. U. S. C. C. S. Dt. of N. Y. : Johnson, J. 12U.S. Pat. Gaz. 188. THE plaintiff, a manufacturer of paper collars, sold his goods in small pails of ornamented tin ; he was the first to put up paper collars in pails, and registered the form of the pail as a trade-mark ; the defendant sold his collars in pails of the same size as those of the plaintiff, but differently ornamented. Motion by the plaintiff for an injunction to restrain the de- fendant from selling his collars in pails, as being an infringe- ment of the plaintiff's trade-mark, refused, on the ground that the form of the pail could not constitute a trade-mark, and that the registration was without effect. 1 539. Strahan & Co., Limited, v. King & Co. February 22, 1877. Malins, V. C. THE plaintiffs being the proprietors of "The Contemporary Review" the defendants, the publishers and an ex-editor of 1 This case, like Moorman v. Hoge, lars, and that the registration of such a 873, which see, has been supposed by pail as a trade-mark was therefore nu- some to point to the conclusion that gatory. The two pails were not alike, the imitation of the appearance of a and there was no proof of actual mis- form or style of package will not be re- take; it was manifestly impossible to strained. What the court decided was grant the injunction, that no one could enjoy the exclusive See Williams v. Johnson, 150. right to use a tin-pail as a box for col- 301 IN RE BARROWS. that periodical, made preparations for publishing a new maga- zine or review under the title of " The Nineteenth Century" Motion by the plaintiffs for an injunction to restrain the defendants from so doing, and from representing their new magazine to be a continuation of " The Contemporary Review" and from misrepresenting the principles or objects of the latter periodical, refused, on the ground that the defendants were engaging in a perfectly fair competition with the plaintiffs, as they had a right to do, and that they had not been guilty of any misrepresentation with regard to either their own in- tended publication or the plaintiffs'. 1 54O. In re Barrows [T. M. A. 1875-6]. March 1, April 26, 1877. Malins, V. C. 5 Ch. D. 353; 46 L. J. Ch. 450; 36 L. T. N. S. 291; 25 W. R. 407; 1 Trade-Marks, 122. Ct. of App, : Jessel, M. R. ; James and Baggallay, L. JJ. 5 Ch. D. 364 ; 46 L. J. Ch. 725; 36 L. T. N. S. 780; 25 W. R. 564; 1 Trade-Marks, 1 26. ON motion by Barrows & Sons, successors to Bradley, Bar- rows & Hall, iron manufacturers, of Bloomfield Works, Staf- fordshire, for the separate registration of numerous trade- marks used by them in their business, consisting respectively of the letters " B. B. H" (being the initials of the former firm), and of the word ''Bloomfield" or "-Bloom" (repre- senting the name of the works), used with a variety of marks indicative of quality, as " Best" " Best, Best," etc., or com- mon to the trade, as the figure of a crown, of a horse-shoe, etc., and the Registrar of Trade-Marks having, by direction of the Commissioners of Patents, declined to place on the register all the combinations, but offered to register any one of them : Held, by the V. C. : (1.) that every valid mark used before the Act of 1875 was entitled to separate registration under it ; (2.) that the court was not bound by the direction of the Commissioners- of Patents ; (3.) that the motion must, there- fore, be granted. Held, by the Court of Appeal, that the proper mode would 1 See Hogg v. Kirby, 10. '302 GILMAN V. HUNNEWELL. be to register the letters " B. B. H" and the words " Bloom- field " and " Bloom" being the essential particulars, sepa- rately, a note being appended in each case, to the effect that the mark might be used either alone, or in combination with common marks, words of quality, etc., so that the various combinations would be protected by representative registra- tion. , 541. Gilman v. Hunnewell. March 1, 1877. Mass. Sup. Ct. 122 Mass. (8 Lathrop) 139. THE plaintiffs having purchased from John L. Hunnewell certain medicines and the wrappers, labels, trade-marks, etc., used upon them, the defendant, Edwin Hunnewell, who had formerly been in John L. Hunnewell's employ, set up in business in the same house as the plaintiffs as ''Hunnewell $ Co." and made and sold similar medicines with wrappers and labels similar in many respects to the plaintiffs', except that for " John L. Hunnewell " " Hunnewell $ Co." was sub- stituted. Injunction to restrain the defendant from infringing the plaintiffs' rights refused, on the ground, that (1.) the plain- tiffs could not have a right of trade-mark in such words as " cough remedy" or *' a sure remedy for chronic or common cough, sore throat, and other minor throat complaints so often by neglect the forerunner of consumption; " (2.) there was not such similarity as to be likely to deceive ; (3.) no intention to defraud was proved ; (4.) the circulars distributed by the defendant to his customers correctly stated his former relation to John L. Hunnewell. " A trade-mark may consist of a name, or a device, or a peculiar arrangement of words, lines, or figures in the form of a label, which has been adopted and used by a person in his business to designate goods of a particular kind manufactured by him, and which no other person has an equal right to use. The right in a trade-mark, so ap- plied, is recognized as property, which a court of chancery will protect by injunction. *' A mere general description, by words in common use, of a kind 303 KINNEY V. BASCH. of article, or of its nature or qualities, cannot of itself be the subject of a trade-mark. " A person may have a right in his own name as a trade-mark, as against a person of a different name. But he cannot have such a right as against another person of the same name, unless the defend- ant uses a form of stamp or label so like that used by the plaintiff as to represent that the defendant's goods are of the plaintiff's manu- facture. " The court will not restrain a defendant from the use of a label, on the ground that it infringes the plaintiff 's trade-mark, unless the form of the printed words, the words themselves, and the figures, lines, and devices, are so similar that any person, with such reason- able care and observation as the public generally are capable of using and may be expected to exercise, would mistake the one for the other." 1 542. Kinney v. Basch. March, 1877. N. Y. Sup. Ct. : Van Brunt, J. l Trade-Marks, 183; 16 Am. Law Reg. N. Sf 596. THE plaintiff being a manufacturer of cigarettes, on which he used a label containing a device of sun's rays, the words " St. James" and the symbol " ," the defendants sold other cigarettes with a label containing the words " St. James 1 Par- ish Perique Cigarettes " (of which the words " St. James " were much the more conspicuous), and the symbol " " in the same style as the plaintiff's, but the labels were in other respects different. Injunction granted to restrain the defendants from using the device of the sun's rays, and also the symbol " \ " and words " St. James" alleged to be the plaintiff's trade-marks, on the ground that whether the plaintiff had or had not an exclusive right in the marks, the defendants had acted so as to deceive. Per Van Brunt, J. " The use of any words, geographical or oth- erwise, numerals or symbols, adopted for the purpose of defrauding the public, will be restrained by the court. It is the duty of the court 1 See Amoskeag Co. v. Spear, 100. 304 CABNRICK V. MORSON. to protect the public from fraud, even at the suit of a plaintiff who has not the exclusive right to the use of such words, numerals, or symbols." " It has been urged upon the part of the defendants that geograph- ical names cannot be the subject of a trade-mark ; neither can numer- als, which only serve to indicate the nature, kind, or quality of an article. " It is true that the cases cited by the defendants sustain these propositions ; but the later cases have proceeded upon different and more equitable principles in defining the grounds upon which courts of equity interfere in cases of this description. u This interference, instead of being founded upon the theory of protection to the owners of trade-marks, is now supported mainly to prevent frauds upon the public. If the use of any words, numerals, or symbols is adopted for the purpose of defrauding the public, the courts will interfere to protect the public from such fraudulent intent, even though the person asking the intervention of the court may not have the exclusive right to the use of these words, numerals, or sym- bols. This doctrine is fully supported by the latest English cases ; .... and, also, in the case of Newman v. Alvord" [282]. 1 543. Carnrick v. Morson. March 22, 1877. Bacon, V. C. L. J. Notes of Cos. 1877, p. 71; Chem- ist and Druggist, 1877, p. 161. THE plaintiff, being the manufacturer of a medical com- pound which he called " Lacto-Peptine" the defendants sold a preparation in bottles labelled " Lacto-Pepsine" On motion by the plaintiff injunction granted to restrain the defendants from using the name ; and Held, that a defence that the word " Lacto-Peptine " was descriptive of the com- position of the plaintiff's article failed. 2 1 See Lee v. Haley, 325. extreme views which have been repeat- 3 The circumstances of this case were edly affirmed by the English courts of an exceptional character; it is not to concerning descriptive words. be regarded as a departure from the 20 305 STEINTHAL V. SAMSON. 544. In re Park. March 26, 1877. U. S. Patent Office : Spear, Comm. 12 U. S. Pat. Gaz. 2. ON an application for the registration as labels of three labels, each including a figure of a swan, or the word " Swan" which figure and word the applicant had previously sought unsuccessfully to register as his trade-mark on gin : Held, that, before this figure or word could be registered as part of a label, the applicant must establish his right of trade-mark therein. 545. Allsop v. Walker [T. M. A. 1875]. April 10, 1877. Jessel, M. R. THE defendants having applied for the registration of a device consisting of a female hand pointing horizontally, with the letters " W. $ 6r." upon it, as their trade-mark for bot- tled ale and porter, the plaintiffs opposed the application, on the ground that the use of the mark by the defendants, if permitted, would be calculated to deceive, by reason of the similarity between that mark and their own trade-mark on the same article, consisting of a male hand pointing upwards. Special case stated by the Registrar of Trade- Marks. Held, that the mark too nearly resembled the plaintiffs' mark to be admitted to registration in the same class. 546. Steinthal v. Samson. April 17, 1877. Ct. of App. : James, Mellish, and Baggallay, L. JJ. THE plaintiffs being manufacturers and exporters of cotton goods, to whom the defendant, a former partner, had, on the dissolution of the partnership, assigned all his interest in the business, the deed containing a proviso to the effect that the defendant should be at liberty to continue to carry on a sim- ilar business, and to use the trade-marks of the firm, except the private arms, crest, and motto of the plaintiffs, the motto 3U6 CAMPBELL V. HOLLINS. consisting of the word " Excelsior," the defendant subse- quently sold cotton goods bearing that word, but not used as a heraldic device. Injunction to restrain the defendant from the breach of the covenant alleged to be thereby committed refused, on the ground that the restrictive covenant had reference only to the heraldic use of the plaintiffs' arms, crest, and motto, and not to the use of the word ** Excehior " in another manner. 547. In re The Goodyear Rubber Co. April 25, 1877. U. S. Patent Office : DoolMe, Asst. Comm. 11 U. S. Pat. Gaz. 1062. APPLICATION for the registration of the words " Crack- proof" as a trade-mark on india-rubber goods, refused, on the ground that the term was merely descriptive of quality. 1 548. Campbell v. Hollins. April 26, 1877. Malins, F. C. House of Lords. THE appellant (defendant) Campbell and the respondent (plaintiff) Hollins having been in partnership as manufact- urers of china and encaustic tiles, separated the two busi- nesses in 1859, the former being styled by them " Herbert Minton $ Co" and' the latter " Minton, Hollins Co." and the respondent (defendant) Taylor was afterwards taken into the latter firm. On the retirement of Taylor in 1868, the partnership was dissolved, Campbell taking the china busi- ness, Hollins the tile business. Taylor having subsequently begun to manufacture tiles as " Robert Minton, Taylor $ Co., Hollins commenced proceedings to restrain him from so doing, but these were discontinued on Taylor's undertaking not to trade in any other name than "Robert Minton Taylor" Campbell purchased Taylor's business in 1875, and announced his intention of continuing it as " The Minton Brick and Tile Co." 1 See Burnett v. Phalon, 277. 307 LEDGER V. RAY. Action by Hollins for an injunction to restrain the defendant Campbell from using the name " Minton." Held, by the V. C. and House of Lords, that the plaintiff was entitled, as against the defendant, to the exclusive use of the name " Minton Co." in connection with the tile busi- ness, and that an injunction must be granted to restrain the infringement of that right by Campbell. 1 549. Hennessy v. Cooper. April 26, 1877. Malins, V. C. THE plaintiffs being brandy merchants, the defendant sold his own brandy in cases formerly belonging to the plaintiffs, and still bearing their marks. On motion by the plaintiffs injunction granted to restrain the defendant from so doing. 550. Ledger v. Bay. April 28, May 3, 1877. Bacon, F. C. Ct. of App. : James, Baggallay, Bramwell, and Brett, L. JJ. THE plaintiff being the proprietor of a dramatic and sport- ing newspaper called The Era, which had for many years published articles signed " Touchstone" the defendant made preparations for the publication of a new newspaper on the same subjects, under the title of Touchstone, or, the New Era. Action by the plaintiff for an injunction to restrain the de- fendant from so doing. Held, by the Court of Appeal, that the adoption of that name for a new newspaper was not calculated to cause it to be bought in mistake for the old one, and that an injunction which had been granted must, therefore, be dissolved. 2 i See Thorley's Cattle Food Co. v. 2 See Hogg v. Kirby, 10. Afassam, 671. 308 IN RE KIMBALL. 551. Rose v. Henley. April 27, 1877. Matins, V. C. Cited 47 L. J. Ch. 577; 38 L. T. N. S. 410. THE plaintiff being a manufacturer of lime juice, who sold his article in bottles moulded specially for him with a spray of lime-tree leaf and blossom and his name " Rose $ Co." and who further placed on his bottles a label containing the same spray and name, the defendant systematically collected the plaintiff's empty bottles, and sold them refilled with lime juice not of the plaintiff's preparation. Injunction granted to restrain the defendant from infringing the plaintiff's rights. 552. Wolmershausen v. O'Connor. May 3, 1877. Bacon, V. C. 36 L. T. N. S. 921. THE defendant (who had for many years been manager of, and for a shorter time partner in, the firm of Foster & Co., tailors, of High Street, Oxford, and Mayfair, and had latterly resided at Headington Hill, near Oxford) covenanted with the plaintiff, the principal partner, on the dissolution of the part- nership, not to carry on the business of a tailor, etc., within ten miles of Oxford, and not to represent himself in any man- ner as having been connected in trade with the plaintiff or his firm, as partner, manager, or servant, but shortly after- wards set up a tailor's business in Cavendish Square, and issued advertisements, in which he described himself as " late of Headington Hill, Oxford, and formerly of Mayfair." On motion by the plaintiff injunction granted to restrain the defendant from acting in breach of his covenant, and from issuing the advertisements in question. 553. In re Kimball. May 3,1877. U. S. Patent Office : Doolittle, Act. Comm. 11 U. S. Pat. Gaz. 1109. ON an application for the registration of the words " Van- ity Fair " as a trade-mark on cigarettes, the applicant having 309 EX PARTE BARROWS. prepared eight different arrangements of bis manner of using the words, by way of complying with the requirement of the U. S. Statute of 1870 for the manner of application to be de- scribed : Held, that one fac-simile was sufficient to illustrate the method of use, and that so many varieties of arrangement could not be permitted to be filed, on account of the incum- brance that such a practice would occasion. 554. Swift v. Peters. May 8, 1877. U. S. Patent Office: Doolittle, Act. Comm. 11 U. S. Pat. Gaz. 1110. INTERFERENCE declared between Swift, an applicant for the registration in his name of a trade-mark on an agricult- ural compost, consisting of the words " The John C. Ragsdale Ammoniated Dissolved Bone" and Peters, in whose name the trade-mark was already registered, for the purpose of deter- mining to whom the mark in question belonged. Held, (1.) that Swift had acquired no title to the mark by being the first to suggest it, the title to a trade-mark depend- ing on its adoption and use, and not on its invention ; (2.) that Swift had acquired no title to the mark by user, since whatever use of the mark had been made by him he had made in the capacity of agent for the firm of Snowden & Peters ; (3.) that the question whether Peters, the registered pro- prietor of the mark, was or was not entitled to the exclusive use of it, inasmuch as he was only one of the former members of the dissolved firm of Snowden & Peters, was a question for the courts and not for the patent office ; (4.) and, therefore, that priority must be awarded to Peters, Swift never having acquired any right to the mark by adoption or user. 555. Ex parte Barrows [T. M. A. 1875]. May 11, 1877. Jessel, M. R. W. N. 1877, p. 119 ; L. J. Notes of Cos. 1877, p. 110. MESSRS. BARROWS having long used as their trade-mark on 310 KINNEY V. ALLEN. bar-iron the letters " B. B. jET." surmounted by a crown, and having registered that device as their trade-mark in class 5 in the first schedule to the rules, Messrs. Halton & Co., who had used the letters " T. H. H" surmounted by a crown as their trade-mark on tin-plates, turn-plates, and sheet-iron, ap- plied for the registration of that device as their trade-mark in class 5, the articles on which they had used the mark being included with bar-iron and other goods in that class. On motion by Messrs. Barrows for a declaration that Messrs. Halton & Co. were not entitled to have the mark so registered : Held, that the mark in question, being an old mark, might be registered for part of a class only, and that leave should be given for the mark to be registered in class 5, for the articles on which it had been previously used only. 556. Hennessy v. Kennett. May 18, 1877. Malins, V. C. THE plaintiffs were brandy merchants, who sold two classes of brandy, the best being sold in cases and the other in casks. Injunction to restrain the defendant from selling brandy, not the plaintiffs' " case " brandy, in cases branded with the latter's name and trade-mark refused, on the ground that the only occasion on which the defendant was proved to have done so was when an agent of the plaintiffs bought some of the plaintiffs' " cask " brandy of the defendant, and the de- fendant, at the agent's request, placed the " cask " brandy in one of the plaintiffs' cases. 1 557. Kinney v. Allen. May, 1877. U. S. C. C. Dt. of E. Va. : Hughes, J. 1 Hughes, 106; 4 Am. L. T. N. S. 258. THE plaintiff being a manufacturer of cigarettes who placed upon several varieties of his cigarettes the symbol " ^" in red,, and had registered the same as his trade-mark in the U. S. 1 See Hennessy v. Cooper, 549. 311 KINNEY V. ALLEN. Patent Office, the defendants sold other cigarettes under la- bels, which were essentially unlike plaintiff's, but which bore a similar symbol. Suit for an injunction to restrain the defendants from using the symbol : Held, (1.) that as the plaintiff had always used the symbol on cigarettes containing tobacco of two different kinds, half- and-half, and as the symbol served to indicate this, though it did not clearly express it, an injunction restraining the use of the symbol generally could not be granted ; (2.) that a lim- ited injunction should be granted, restraining the use of the symbol in the identical form, size, color, and style in which the plaintiff had used and registered it, and this, notwith- standing that the defendants had used it on a label which was in other respects quite unlike those of the plaintiff. Per Hughes, J. " There are but two questions arising in the present case as to this numerical character . " (1.) The first is, its use by the complainant being in a critical sense merely arbitrary, as only indicating but not expressing the idea of half-and-half, but not absolutely arbitrary in a popular sense, whether or not complainant has a right to an injunction prohibiting the use by others of the character in any form on wares similar to his own. On the general principle'that exclusive privilege, in preju- dice of general right, ought not to be upheld in cases of nicety and doubt, I think it most proper not to grant a general injunction. " (2.) The next question is, whether the complainant has a right to the exclusive use of this trade-mark in the form, size, color, and style, in which he has used it upon his wares since 1873, and in which he registered it in 1875. Upon the authority of cases numerously re- ported, and upon principles well established, I decide that he has such a right, and will so decree ; and will insert in the decree an imprint of the character \ in the form, size, color, and style, in which an ex- clusive use upon his cigarettes is affirmed to the complainant." 1 1 See Lawrence Man. Co. v. Lowell Hosiery Mills, 676. 312 SOCIETY ANONYME, ETC., V. BAXTER. 558. In re The Walkden Aerated Waters Co. [T. M. A. 1875-6]. June 8, 1877. Jessel, M. R.l Trade-Marks, 39. ON motion to register as the applicants' trade-mark for mineral waters a newly adopted device of a cock standing on a circle, registration having been refused by the registrar, on the ground that two marks of a similar character were already on the register in respect of the same class of article : Held, that the consent of the proprietor of one of the two registered marks having been already given, the mark might be registered on the consent of the proprietor of the other registered mark being obtained. " The Commissioners of Patents have considered the point as to how often any new device or emblem may be registered as a trade- mark for goods or articles in the same class, and they have decided that, for the sake of distinctiveness, in no case whatever should the number of times exceed three. They have also decided that if a device is used by more than three persons it cannot be registered at all under the act, as by being used by so many persons it wants that element of distinctiveness which it is necessary for a trade-mark as defined by the act to possess. A mark that is common to several persons cannot be said to be a distinctive mark, and, therefore, cannot be registered." 559. Societe Anonyme des Mines et Fonderies de Zinc de la Vieille Montagne v. Baxter. June 12, 1877. U. S. C. C. S. Dt. of N. Y.: Blatchford, J. 14 U. S. Pat. Gaz. 679. THE plaintiffs being manufacturers of dry white oxide of zinc, the defendants sold white oxide of zinc ground in oil, under the same trade-mark as that used by the plaintiffs. Injunction to restrain the defendants from infringing the plaintiffs' rights refused, on the ground that the article on which the defendants used the mark was different from that on which it was used by the plaintiffs. 313 MASSAM V. J. W. THORLEY'S CATTLE FOOD CO. 56O. Massam v. J. W. Thorley's Cattle Food Co. June 14, 1877. Malins, V.C. Q Ch. D. 574 ; 46 L. J. Ch. 707; 36 L. T. N. S. 848. JOSEPH THORLEY having in his lifetime been a manu- facturer of a compound known as " Thorley's Food for Cat- tle," which was sold in packets labelled with those words and with Thorley's signature ; and Thorley's brother, J. W. Thor- ley, having been for many years his manager, and equally acquainted with the secret recipe of the compound ; J. W. Thorley, after his brother's death, founded the defendant company for the manufacture and sale of the same article, which was sold in packets labelled with the words " Thorley's Food for Cattle," with a fac-simile of the seal of the com- pany, composed of its name in a circle enclosing the heads of various animals, and the company also issued a prospectus stating its connection with J. W. Thorley, and containing the same directions for use as those issued by Joseph Thorley. Motion by the executors of Joseph Thorley, who had regis- tered the signature alone as the trade-mark of their business, for an injunction to restrain the defendants from represent- ing their business or goods to be those of the plaintiffs, and from infringing the plaintiffs' trade-mark, refused, on the ground (1.) that J. W. Thorley was entitled to use his own name, either alone or as part of the name of a company, or in the phrase " Thorley's Cattle Food" in the manufacture of an unpatented article, with the recipe of which he was ac- quainted, provided that he acted without fraud ; (2.) that the name " Thorley's Cattle Food " had become the common recog- nized designation of an article which any one might use who could produce the same article, although he might not repre- sent it to be made by any one but himself ; * (3.) that the article being the same as the plaintiffs', the same directions for use were correctly used ; (4.) that the trade-marks of the 1 See Singer Man. Co. v. Wilson, 477 ; Thorley's Cattle Food Co. v. Massam, 671. 314 CONDY V. MITCHELL. parties, consisting respectively of the signature and seal, were entirely different. 561. Condy v. Mitchell. June 15, November 27, 1877. Bacon, V. C. B7 L. T. N. S. 268. Ct. ofApp. : James, Baggallay, and Thesiger, L.JJ. 37 L. T. N. S. 766 ; 26 W. R. 269. SHORTLY after the dissolution of the firm of " Bollmann Condy $ Co.," who carried on business as manufacturers of " Condy' s Fluid" and " Condy' ' Ozonized Water " (those ar- ticles having been invented and formerly patented by H. B. Condy), under articles of partnership, by which the partner- ship profits, good-will, and property became, on dissolution, divisible in equal shares between the partners, H. B. Condy and Mitchell, Condy set up a separate business of his own as " H. Bollmann Condy" and Mitchell founded a company for the same purpose under the name of " The Condy^s Fluid Co." Action by Condy for an injunction to restrain Mitchell from using the name " Condy " in the title of his company and its manufactures. Injunction refused, on the ground, (1.) that the name " Condy's Fluid " had come to be the name of an article of commerce made under Condy's expired patent ; (2.) that on the formation of the partnership between Condy and Mitchell, the latter acquired an equal right with the former to manu- facture the article and use the name ; (3.) that this was not affected by the dissolution ; (4.) that Mitchell had not acted fraudulently in the adoption of the name for his company or otherwise, nor in a manner calculated to cause his article to be mistaken for the plaintiff's. 1 1 See Singer Man. Co. v. Wilson, 477. 315 J. W. THORLEY'S CATTLE FOOD CO. V. MASSAM. 562. Seabury v. Grosvenor. June 16, 1877. U. S. C. C. S. Dt. of N. Y. : Blatchford, J. 53 How. Pr. 192; 14 U. S. Pat. Gaz. 679. THE plaintiffs being manufacturers of " Benson's Capcine Plasters" which name they had registered in the U. S. Patent Office as their trade-mark, the defendant sold other plasters under the name of " Capsicin." Motion for a preliminary injunction to restrain the defend- ant from infringing the plaintiffs' rights refused, on the ground that the plaintiffs were disentitled by their own false representations of the origin and value of their plasters, the word " Capcine " being shown to be quite unknown, and not to imply any such qualities as were described by the plaintiffs, and that it was of no consequence that they had discontinued the false statements before filing their bill. 563. In re Cornwall. (1.) June 29, 1877. U. S. Patent Office: Doolittle, Act. Comm. 12 U. S. Pat. Gaz. 138. A DEVICE consisting of a star and crescent admitted to reg- istration as a trade-mark in respect of soap, notwithstanding that the figure of a star was already registered as a trade-mark on soap, on the ground that the use of the proposed mark was not calculated to deceive. 564. J. W. Thorley's Cattle Food Co. v. Massam. June 30, 1877. Malins, V. C. 6 Ch. D. 582; 46 L. J. Ch. 713. THE plaintiffs in Massam v. J. W. Thorley's Cattle Food Co. began, shortly after the decision of that case, to issue adver- tisements of their cattle food, in which they stated that they alone were possessed of the secret recipe of the article. Motion by the defendants in that case for an injunction to restrain the issue of such advertisements, as being detrimental to them, refused, on the authority of Prudential Assurance Co. v. Knott ; but 316 SELBY V. THE ANCHOR TUBE CO. Held, that, notwithstanding tnat decision, the court had now power, under the Judicature Act, 1873, s. 25, sub-s. 8, to grant an injunction in such a case. The plaintiffs' costs made costs in the cause, but the defendants to pay their own costs in any event. 1 565. In re Cornwall. (2.) July 7, 1877. U. S. Patent Office: Doolittle, Act. Comm. 12 U. S. Pat. Gaz. 312. THE word " Dublin " admitted to registration as a trade- mark on soap, on the ground that the fact that the soap was not manufactured in Ireland, but in America, showed that the word was not used in its ordinary descriptive geographical sense, but as an arbitrary fancy designation. 2 566. Selby v. The Anchor Tube Co. July 19, 1877. Bacon, V. C. W. N. 1877, p. 191. THE plaintiff and defendants having been partners in a firm of tube manufacturers, who carried on business at Birmingham as " The Imperial Iron Tube Co.," and at Smethwick as " The Birmingham Patent Iron and Brass Tube Co.," the plaintiff became entitled, on the dissolution of the partnership, under the articles of partnership, to the Smethwick premises, and the styles and good-will of the firm, and the defendants be- came entitled to the Birmingham premises. The plaintiff then began to carry on business on his own account as " The Imperial Iron Tube Co." at new premises in Birmingham, and also at the Smethwick premises, and the defendants carried on business at the old Birmingham premises, and issued cir- culars headed " The Anchor Tube Co. (late~) the works of and partners and manager in the Imperial Tube Co., Gras /Street, Birmingham," and also employed a traveller to solicit orders from the customers of the old firm. 1 See Thorley's Cattle Food Co. v. 2 See In re Green, 473. Massam, 671. 317 MOET V, PICKERING. On motion by the plaintiff injunction granted to restrain the defendants from representing that they were lately the partners in the plaintiff's firm of the Imperial Tube Company, or that they had succeeded to the business of that company, or that that company had ceased to exist, and also from solic- iting or executing orders on any such representations. 567. Moet v. Pickering. July 23, 1877; March 29, 1878. Chanc. Div. : Fry, J. Q Ch. D. 770. Ct. ofApp. : James, Cotton, and Thesiger, L.JJ. 8CLD.372; 47 L. J. Ch. 527 ; 38 L. T. N. S. 799 ; 26 W. R. 637. v THE plaintiffs being French wine-growers, who branded on the bottoms of the corks used by them for a special quality of wine the letters " M. $ (7.," enclosed, together with a star, in a circle, and also branded the word '''-England " on the side of each cork, the defendant Pickering had consigned to him from abroad a quantity of wine having corks similarly branded to the plaintiffs', the wine being in the possession of certain wharfingers. Action by the plaintiffs for an injunction to restrain the de- fendant Pickering from infringing the plaintiffs' trade-mark, and from dealing with the wine in the wharfingers' possession, and to restrain the wharfingers, who were also made defend- ants, from parting with the wine, except under the direction of the court, and for an order on Pickering to deliver up all spuriously marked corks, and for an account and damages from him. Held, by Fry, J. : (1.) that the plaintiffs were entitled to the injunctions, order, and account; (2.) that the plaintiffs were entitled to a lien upon the wine for their costs in priority to the wharfingers' lien for their charges ; (3.) that, the wharfin- gers having only submitted to act as the court should direct upon having their charges and costs paid or provided for, and it having been argued on their behalf that, even if the plain- tiffs' right were established, they would not be entitled to touch the bottles for the purpose of removing the spurious 318 IN RE SALAMON. corks until the charges were paid, the wharfingers, as well as Pickering, must be made liable for the plaintiffs' costs. Held, by the Court of Appeal, on appeal by the wharfin- gers : (1.) that the wharfingers were entitled to a lien on the wine for their charges, in priority to any lien of the plaintiffs for their costs, if such plaintiffs' lien existed, which was doubted ; (2.) that the wharfingers had done nothing to dis- entitle them to their costs, and that the plaintiffs must pay such costs in both courts. 568. In re Mitchell [T. M. A. 1875-6]. (1.) August 2, 1877. Hall, V.C. 7 Ch. D. 36 ; 46 L. J. Ch. 876 ; 26 W. R. 326 ; 1 Trade-Marks, 55. MOTION to register the applicants as the proprietors of a trade-mark for steel pens, consisting of the letter "A," re- fused, notwithstanding that the applicants and their predeces- sors in business had used that letter and other letters of the alphabet as their trade-marks for many years, on the ground that a single letter was not within the definition of a regis- trable trade-mark contained in the T. M. A. 1875, and that that definition was not extended by the Act of 1876. 569. In re Salamon [T. M. A. 1875]. August 3, 1877. Jessel, M. R. 1 Trade-Marks, 135. AN application for the registration of certain trade-marks on sewing-machines, consisting respectively of the words " Howe Sewing-Machine Company" a monogram inscribed with the same words, and the name "Little Howe" having been opposed mainly on the ground that the exclusive right to use the name " Howe " as a trade-mark belonged to the opponents, and that the applicant had never used the name as a trade-mark, nor otherwise, except as agent for them or their predecessors in business : On motion by the opponents for a direction as to how the case should be heard : Held, that the question being one of title 319 IN RE GORDON. to the marks and their user by the applicant, one of the parties should bring an action to try the right. u I always direct that these cases should be mentioned to the court, that I may decide the proper way in which they are to come before the court : that way depends on the circumstances in each case. If it be a simple question of law, it had better be by special case ; if for directions as to carrying out the act, by summons at chambers ; if of disputed facts, by motion." 570. Denoe v. Mason. (2.) August 8, 1877. Malms, V. C. THE defendant F. Mason, in Dence v. Mason (1), having been enjoined from using the name " Brand " in connection with his articles, nevertheless continued to sell goods bearing the words " Frank Mason $ Co.'s (' Brand's ') Essence of Beef." On motion by the plaintiffs defendant committed for contempt. (On December 18 he was discharged, on un- dertaking not to use the name " Brand " until the hearing of the action.) 571. In re Warburg & Co. August 25, 1877. U. S. Patent Office: Doolittle, Act. Comm. l3 U. S. Pat. Gaz. 44. APPLICATION for the registration of the words " Cachemire Milano " as a trade-mark on silks (the words being claimed as the essential part of the mark, though used in connec- tion with the name " R. Same $ Co." and a picture of Milan Cathedral), refused, on the ground that the words were either descriptive of the quality and appearance of the arti- cle, or deceptive. 572. In re Gordon. August 27, 1877. U. S. Patent Office: Doolittle, Act. Comm. 12 U. S. Pat. Gaz. 517. ON an application for the registration of a strip of leaf to- bacco, intended to be wrapped round the mouth-piece of a 320 AYER V. RUSHTON. cigarette, and to vary with the size of the cigarette, as a trade-mark on cigarettes. Held, (1.) that the mere fact that the proposed trade-mark was consumed with the article to which it was attached was no objection to it ; (2.) but that the proposed trade-mark was, in fact, adapted to serve a me- chanical purpose rather than to distinguish the applicant's goods from others, and that, therefore, registration must be refused. 573. Prince Metallic Paint Co. v. Carbon Metallic Paint Co. 1877. N. Y. Sup. Ct. Codd. Dig. 209. THE plaintiffs manufacturing paint, on which they placed the words " Prince's Metallic Paint " in a special form, the defendants, being brothers of the name of Prince, manufact- ured a paint which they called " Iron Ore Paint" and sold under the words " Prince Bros. Iron Ore Paint" Motion by the plaintiffs to continue an injunction which had been granted to restrain the defendants from infringing the plaintiffs' rights, and using the name " Prince" refused, and injunction dissolved, on the ground that the defendants were entitled to use their own name so as not to deceive, and that the manner in which the defendants had used it was not intended or calculated to deceive. 1 574. Ayer v. Rushton. 1877. N. Y. C. P. Codd. Dig. 229. THE plaintiff being the inventor and manufacturer of a medical preparation which he sold under the name of " Ayer's Cherry Pectoral" the defendant began to make lozenges, which he called "Cherry Pectoral Troches" and subsequently to make a liquid medicine which he put up in bottles some- what similar to the plaintiff's, and labelled with the words, " Cherry Pectoral, for sale, wholesale and retail, by Rushton 1 See Burgess v. Burgess, 117. 21 321 HELMBOLD V. HENRY T. HELMBOLD MANUFACTURING CO. ^ Co., 11 Barclay Street, New York." He also put up over his premises a sign, with the words " Depdt of the Cherry Pec- toral Company" and inside a notice, " Ayer's Cherry Pectoral, One Dollar ; Rushtorfs Cherry Pectoral, Fifty Cents. Which will you have ? " and he instructed his employees to explain the differences between the articles to customers. Injunction which had been granted to restrain the defend- ant from using the words " Cherry Pectoral," and otherwise infringing the plaintiff's rights, dissolved ; and Held, (1.) that the defendant had only traded in compe- tition with the plaintiff, and had not acted in a manner in- tended or calculated to cause his article to be mistaken for the plaintiff's ; (2.) that the plaintiff could have no exclusive right in the words " Cherry Pectoral," since the first word described one of the ingredients in the compound, the wild cherry, and the other described the intended application of the compound, so that the whole term was common property and incapable of appropriation. 1 575. Helmbold v. The Henry T. Helmbold Manufactur- ing Co. September, 1877. N. Y. Sup. Ct.: Westbrook, J. 53 How. Pr. 453. HENRY T. HELMBOLD, having invented an article which he called " H. T. Helmbold's Highly Concentrated Compound Fluid Extract of Buchu," and having become bankrupt, the plaintiff, his brother, claimed to have manufactured the article for H. T. Helmbold and his assignee in bankruptcy, and to have purchased the assignee's rights in the preparation. The defendant company was subsequently formed and assisted by H. T. Helmbold, and sold the same compound under the same name. Motion by the plaintiff for an injunction to restrain the defendant company from so doing refused ; and Held, (1.) that the plaintiff was in any case disentitled by reason of his own false representations in continuing to use i See Lee v. Haley, 325. 322 BOON V. MOSS. labels guaranteeing the personal inspection and supervision of H. T. Helmbold ; (2.) that while H. X. Helmbold could himself have sold the right to use his name, a sale by the as- signee in bankruptcy could not deprive him of the right to use it ; (3.) that the same principle applied to his trade secret, even assuming the plaintiff to be acquainted with it, which H. T. Helmbold denied ; (4.) that the remainder of the title of the preparation (exclusive of the name) was purely descrip- tive and incapable of appropriation. 576. Boon v. Moss. September 18, 1877. N. Y. Ct. ofApp. lQ N. Y. (25 Sickels) 465. HALL, the proprietor of a newspaper called The Water- town Weekly Reunion, entered into a contract with Warren to sell to him (subject to certain conditions, including certain specified payments) " The Watertown Weekly Reunion print- ing establishment, including the presses, machinery, type of all description, newspaper and jobbing material, tools, im- plements, etc., appertaining to the said printing business." Warren assigned his interest under the agreement to Moss and Boon, and Hall assigned his to Flower. Boon and Moss failed after some years to make the payments, and an action was commenced between them for dissolution of partnership, etc., in which a receiver was appointed. An action was subsequently brought, by leave of the court, by Flower against the receiver, to enforce his rights under the agreement. Held, that the agreement between Hall and Warren being for a conditional sale, the title did not vest in the purchaser till the payments were made and conditions fulfilled ; that the good- will of the business, including the name of the pa- per, subscription list, etc., was included in the sale ; and that Flower was entitled to recover from the receiver the value of the good-will, which had been sold by him. " The good-will of a newspaper establishment often constitutes its largest value There is one kind of good-will which has been 323 IN RE CONSOLIDATED FRUIT JAR COMPANY. said to be only a probability that customers will resort to the old place ; and another, far more valuable, when a retiring partner agrees not to engage in the same business in competition with the old estab- lishment. The good-will of a permanent newspaper establishment is generally more tangible than either." * 577. In re Dole Brothers. September 20, 1877. U. S. Patent Office: Doolittle, Act. Comm. 12 U. S. Pat. Gaz. 939. AN application for the registration of the words " Egg Macaroni " as a trade-mark on macaroni having been refused, on the ground that the words were either descriptive of the article, or, if no eggs were used in its manufacture, deceptive ; on a renewed application based on the proviso in the U. S. Act of 1870 admitting to registration lawful trade-marks right- fully in use on July 8, 1870 : Held, (1.) that long before the adoption of the words by Pfeiffer, the applicants' assignor, in connection with his maca- roni, the words were in common use ; (2.) that, besides this, Pfeiffer had always used the words in connection with his own name, as " Pfeiffer's Egg Macaroni" and generally with a landscape picture ; (3.) and that, for both these reasons, the words " Egg Macaroni " alone were not a lawful trade-mark rightfully in use on July 8, 1870, and that registration must, therefore, be refused. 578. In re Consolidated Fruit Jar Company. September 20, 1877. U. S. Patent Office: Doolitlle, Act. Comm. 14 U. S. Pat. Gaz. 269. ON an application by the assignees of certain patents for screw-neck bottles and jars granted to J. L. Mason, for the registration as their trade-mark of the name " Mason" which they alleged that they had used on their jars, cards, circulars, etc., for many years : Held, (1.) that the name, being the name merely of a per- 1 See Hogg v. Kirby, 10. 324 COLMAN V. CHUMP. son, unaccompanied by a distinctive mark, could only be reg- istered if it were a lawful trade-mark rightfully in use on July 8, 1870 ; (2.) that the name was not such a lawful trade-mark, since it was the name of the inventor of a patent article attached to that article, which article the applicants had, indeed, the sole right to make, and therefore to designate by its name, until the expiration of the patents, but which article would then cease to be the exclusive property of the applicants, whereupon all makers of it would be entitled to describe it by its appropriate descriptive name ; (3.) and that the application must, therefore, be refused. 579. Colman v. Crump. October 2, 1877. N. Y. Super. Ct. 40 N. Y. Super. Ct. (8 J. & 5.) 548. N. Y. Ct. ofApp. lQ N. Y. (25 Sickels) 573; 16 Alb. L. J. 352. THE plaintiffs being English manufacturers of mustard, which they sold in packages labelled with the device of a bull's head, the defendant, who was a label-printer, sold labels bearing bulls' heads generally similar to that used by plain- tiffs. Injunction granted to restrain the defendant from infringing the plaintiffs' rights, notwithstanding that there were points of difference between the two bulls' heads, and that the same device had long been used by other manufacturers on other classes of goods. 70 N. Y. 578. "It is not necessary that the symbol, figure, or device used, or printed and sold for use, should be a fac-simik or precise copy of the original trade-mark, or so close an imitation that the two cannot be distinguished except by an expert, or upon a crit- ical examination by one familiar with the genuine trade-mark. If the false is only colorably different from the true, if the resemblance is such as to deceive a purchaser of ordinary caution, or if it is calcu- lated to deceive the careless and unwary, and thus to injure the sale of the goods of the proprietor of the trade-mark, the injured party is entitled to relief. Neither is it necessary to establish a guilty knowl- edge or fraudulent intent on the part of the wrong-doer. It is suffi- 325 MCLEAN v. FLEMING. cient that the proprietary right of the party and its actual infringe- ment are shown. " P. 580. " The fact that the same device is used upon other articles of merchandise does not take from the plaintiffs their right to its ex- clusive use on this one article of their manufacture." * 58O. McLean v. Fleming. October, 1877. U. S. Sup. Ct. 9Q U. S. Rep. (6 Otto) 245; 13 U. S. Pat. Gaz. 918. THE plaintiff (respondent) being entitled, under the will of the previous proprietor, to a druggist's business and good- will, first established by Dr. C. McLane in or about 1834, an important part of the business consisting of the manufacture and sale of pills known as " Dr. C. McLane's Liver Pills" which pills were, from the year 1847, put up in boxes sealed on the top with a red seal bearing the name of the inventor, and inclosed in a certain wrapper containing, among other things, the name of the pills, the defendant (appellant), Dr. J. H. McLean, commenced a similar business in 1849, and from and after 1851, to the knowledge of the plaintiff or his predecessors in business, manufactured and sold pills under the name of " Dr. McLean's " or " Dr. J. H. McLean's Uni- versal Pills" and placed them in boxes sealed similarly to the plaintiff's, and enclosed in wrappers of similar color and ap- pearance, bearing the name applied by the defendant to his pills, but in 1872 he changed his wrappers, and adopted new and unobjectionable ones, on complaint made by the plaintiff. Suit by the plaintiff for an injunction to restrain the de- fendant from infringing his rights, and for an account. On appeal by the defendant from the decision of the U. S. Circuit Ct. for the B. Dt. of Missouri, awarding an injunction with a decree for the sum of $ Held : 1. That in trade-mark cases the original invention or pro- prietorship of the article with which the trade-mark is con- nected is not in question, but that the court proceeds on the 1 See Farina v. Silverlock, 130. 326 MCLEAN v. FLEMING. ground that the plaintiff has a valuable interest in the good- will of his business, and that in this is included the trade-mark by which his goods are distinguished. 2. That a trade-mark may consist of a name, symbol, figure, letter, form, or device, if adopted and used by a manufacturer or merchant as distinctive of his goods. 3. That even common words and phrases, not invented for the purpose, may be so adopted and used, if not previously applied to the same or similar articles. 4. That a name when so adopted and used, but not other- wise, may be a good trade-mark, as against a trader or dealer of a different name. 5. But that there is no exclusive right of trade-mark in a name, even a man's own name, as against a person of the same name. 6. But that a person will not be allowed so to use his name as to represent his goods to be those of another person of the same name. 7. That a person may have a good trade -mark for goods which he exposes for sale, though not of his manufacture, and this, although the name of the actual manufacturer is included in the device. 8. That, to constitute an infringement of trade-mark, exact similitude is not required, but that an infringement has been committed when ordinary purchasers buying with ordinary caution are likely to be misled. 9. That positive proof of fraudulent intention is not required when probability of deception has been produced. 10. That it is not necessary to prove infringement of a specific trade-mark if the defendant has acted with fraudulent intention, and has refused to change his course of conduct. 11. That an injunction will not in general be refused only on the ground of delay. 12. But that, although the injunction may be granted, yet, where there has been great delay, an account may be refused. 13. That, in the case in question, a probability of deception had been established, and the injunction must be continued. 327 MCLEAN v. FLEMING. 14. And that the plaintiff must, therefore, have his costs in the court below. 15. But that, on account of the plaintiff's great laches, the account granted by the court below must be refused. 16. And that, that being so, the appellant was entitled to his costs of the appeal. 1 1 The points of chief importance de- cided by this case were : (1.) that long- protracted delay on the part of the complainant in bringing his suit will not prevent the issuance of an injunc- tion ; but (2.) that where there has been such delay an accounting will be re- fused. The first of these points had been considered in numerous cases, and while, perhaps, the current of authority was strongly in favor of the view announced by the Supreme Court, there were not a few precedents of weight which made against it. It is to be remarked that there has been a broad divergence in the United States from the rule laid down in England ; and the American reader may safely dismiss from his mind what- ever has been said elsewhere than in the courts of his own country. The point is one which was neces- sarily brought to the surface at an early period in the history of trade-mark litigation. It was first prominently mentioned by Judge Story, who inti- mated that the defence was one of very doubtful force. Taylor v. Carpenter, 78. Judge Woodbury referred to it in his charge to a jury in the case of Taylor v. Carpenter, 88, decided in 1846 ; but, in eft'ect, only went so far as to decide that the acquiescence must be at least for a period equal to the time fixed by the statute of limitations. In 1849 the question arose in Amos- Jceag Man. Co. v. Spear, 100, and was answered by Judge Duer, who fore- shadowed what may be taken to be the final disposition which was made by the federal court of last resort a quarter of a century later. Judge Duer writes as follows : " The allegation that there has been such an acquiescence for some years on the part of the plaintiffs, in the conduct of the defendants, as to bar the former from the relief they now seek, I cannot regard. Not only is the allegation suf- ficiently disproved, but I am satisfied that the doctrine of an acquiescence operating as an absolute surrender of an exclusive right is inapplicable to the case. The consent of a manufacturer to the use or imitation of his trade- mark by another may, perhaps, be justly inferred from his knowledge and si- lence ; but such a consent, whether ex- pressed or implied, when purely gratui- tous, may certainly be withdrawn ; and when implied, it lasts no longer than the silence from which it springs. It is, in reality, no more than a revocable license. The existence of the fact may be a proper subject of inquiry in taking an account of profits, if such an account shall hereafter be decreed ; but even the admission of the fact would furnish no reason for refusing an injunction." Substantially this view was adopted in Gillott v. Esterbrook, 269, and other cases, but was, for a time, unsettled by a number of decisions. In Amoskeag Man.Co. v. Garner, 500, which arose in 1869, and which was a case where the circumstances were prob- ably such as to prevent the issuance of an injunction whatever the conclu- sion in respect of the point under dis- cussion, Judge Barnard held that an acquiescence of eight years created an estoppel which could not be overcome. During the following year, Judge 328 CARVER V. BOWKER. 581. Carver v. Bowker. November 10, 1877. Lancaster Chanc. : Little, V.C. l Trade-Marks, 252. THE plaintiffs, carrying on business at Manchester as mer- chants and shippers of cotton goods, on which they used cer- tain combinations of marks, of which combinations the first consisted of a heading of specially colored stripes, certain other stripes, the number " 109," the figure of a coroneted eagle, the words "Carver Irmaos" the initials " R. H." and the name of the firm of Portuguese importers, and the other combinations were substantially the same, but with varia- Blatchford, holding the Circuit Court of the United States for the Southern District of New York, decided in Dela- ware $ Hudson Canal Co. v. Clark, 327, that an acquiescence of eleven years was equivalent to a license which estopped the complainants. Judge Blatchford's opinion, was followed in a number of instances ; contemporane- ously with which adjudications were made that tended to negative his view. Perhaps the most marked case in this group was that of Rogers v. Philp, 352, which arose in the Supreme Court of the District of Columbia in 1872. The facts showed that the plaintiffs had permitted a promiscuous piracy of their mark for nearly a quarter of a century, which the court said was certainly fatal to their suit whatever the original char- acter of their rights. But, although on the hearing of a motion for a prelimi- nary injunction the views of the court had been carefully formulated at con- siderable length, upon the merits, a per- petual injunction was granted. Browne on Trade-Marks, 684. In 1876 there was a pointed return to the broader and better doctrine of Judge Duer, in a well-considered opin- ion by Judge Barrett, delivered in the case of Amoskeag Man. Co. v. Garner, in connection with which Judge Bar- nard had in 1869 arrived at a different conclusion. In closing his opinion Judge Barrett said : "There is, therefore, no just reason why the injunction, at least, should be refused, upon the ground of laches. It was properly refused, pendente lite. The plaintiff's case was not so clear as to warrant the interference of the court before the hearing upon the pleadings and proofs. As to the correctness of that interlocutory decision, there can scarcely be two opinions ; that is, as to the result. Much of the reasoning upon the general merits of the case was un- necessary, and it certainly is not bind- ing upon the Special Term, sitting to try the issues, especially as the facts fairly dedncible from the testimony now be- fore the court differ in many respects from what appeared in the ex parte af- fidavits read upon the motion. " There must, therefore, be judgment for the plaintiff, enjoining the defend- ants, but without damages or account of profits, and, under all the circum- stances of the case, without costs." Whatever uncertainty existed in 1878 was set at rest by the opinion of the court in the principal case. In Cons. Fruit Jar. Co. v. Thomas, 668, decided by Judge Nixon, holding the Circuit Court of the United States for the District of New Jersey, the rule of McLean v. Fleming, was applied upon a motion for a preliminary injunction. 329 IN RE PARKER. tions in the number and color of the stripes, and in the num- ber, for " 109 " being substituted " 406," " 409," " 413," etc., the defendant, who carried on a similar business at Man- chester, used on his goods combinations of marks resembling those of the plaintiffs. Suit by the plaintiffs for an injunction to restrain the de- fendant from infringing their rights. Held, (1.) that as to the component parts of the various combinations, the eagle and the number " 109 " were in com- mon use and descriptive of quality ; (2.) that, although the remaining numbers were not in common use, they could not be exclusively appropriated ; 1 (3.) that the remaining parts of the combinations were distinctive of the plaintiffs' goods ; (4.) that an injunction must be granted to restrain the de- fendant from the use of the combination marks as a whole, and also of the individual component parts, with the excep- tion of the eagle and the numbers, on any goods to be ex- ported for sale in the Oporto market ; (5.) and that the plaintiffs were further entitled to an account of profits or to damages, the defendant not being able to establish a system- atic infringement amounting to public user. 582. In re Parker. November 13, 1877. U. S. Patent Office: Doolittle, Asst. Comm. 13 U. S.'Pat. Gaz. 323. ON an application for the registration as a trade-mark of the figure of a boy, together with certain words surrounded by a border of lines, and printed in minute squares upon a card, for the purpose of serving as a pattern for sampler- work to be wrought in the squares, and then the whole to be attached to a piece of abrasive paper and used in firing fric- tion matches: Held, that the combination in question was not a trade- mark but a design, inasmuch as it was not intended to be attached to an article as a distinguishing feature, but was it- 1 See Kinney v. Basch, 542. 330 RE BLOCK & CO. self the article, and, therefore, that application should have been made to patent it as a design, and that registration as a trade-mark must be refused. 583. Twentsche Stoom Bleekery Goor v. Ellinger & Co. November 15,1877. Matins, V. C. 26 W. R. 70. ON motion by the plaintiffs, a Dutch bleaching company, injunction granted to restrain the defendant, a commission agent, from infringing the plaintiffs' trade-marks ; and Held, (1.) that the fact that the plaintiffs' marks were not registered, and that the writ in the action was issued on a date (July 27, 1877) subsequent to the date (Jan. 1, 1877) fixed by the T. M. A. 1876, as the date before which a trade- mark must have been registered to entitle its proprietor to sue for an infringement, and before the royal assent (Aug. 15, 1877) had been given to the T. M. A. 1877, by which the time was extended to Jan. 1, 1878, did not disentitle the plaintiffs to their remedy ; (2.) that the assertion of the de- fendant that the goods had been marked, packed, and ex- ported without his knowledge was no defence ; (3.) that the defendant must pay all the costs, though it might have been otherwise if he had submitted at once, having regard to the fact that no proper notice had been given him by the plain- tiffs before the issue of their writ. 1 584. In re Block & Co. November 22, 1877. U. S. Patent Office : Spear, Comm. l U. S.Pat. Gaz. 235. AN application for the registration of a trade-mark having been refused, on the ground that the proposed mark did not constitute a registrable trade-mark, an application was made for the registration of an essentially different mark, which was granted, but an application for the second application to 1 See Millington v. Fox, 63. 331 ROBINSON V. FINLAY. be considered and treated as an amendment of the original application was refused. On an application for the return of the fee paid upon the filing of the original application as having been paid by mistake : Held, that a fee paid upon an application could only be re- turned when it had been paid by actual mistake, such as when it was a payment in excess of the proper amount, or was not required by law, and that the application must be refused. 585. Robinson v. Finlay. Ward v. Robinson. November 24, 1877; May 14, 1878. Bacon, V. C. 9 Ch. D. 489. Ct. ofApp.: James, Baggallay, and Bramwell, L. JJ. 9 Ch. D. 487; 39 L. T. N. S. 398; 27 W. R. 294. A CERTAIN group of five trade-marks, consisting respec- tively of Robinson's name, his coat of arms, his crest, a figure of an elephant, and a varying number called a range number, together with a heading of colored threads, having been ex- clusively used on cotton goods, which, in the habitual course of business, were manufactured by Ward, exported by Robin- son, and consigned to Galbraith, who sold them, after bleach- ing, at Rangoon (three of such marks having been previously used by Robinson, one, in a slightly different form, by Rob- inson and Galbraith, while the other one was new) ; after the interruption of the connection, Robinson continued to use the same group of marks, and Ward began to export goods bear- ing substantially the same marks, through Finlay. Cross actions commenced respectively by Robinson against Finlay, and by Ward against Robinson, for an injunction to restrain the use of the group of marks. Held, by the V. C. : That the marks were indicative of goods selected by Robinson, and exported and sold on his responsibility, and that an injunction must be granted in the first action. 332 IN RE ORR-EWING & CO. Held, by the Ct. of App. : That, inasmuch as the group of marks had never been used except on goods which had passed through the hands of all the three parties (although separately some of them had been so used), the group of marks, as a whole, was indicative of goods which had passed through that particular course of trade, that neither of the parties was enti- tled to the exclusive use of the group, and that both actions must, therefore, be dismissed without costs. Per Baggallay, L. J. " It being clear upon the evidence that the designs were designs in which three persons were interested for the purpose of carrying on a business or adventure in which all three were interested, it follows that, upon the termination of that adven- ture, none of the three could claim any title against the other." 1 586. In re Orr-Ewing & Co. [T. M. A. 1875-6]. November 15, 1877 ; June 7, 1878. Hall, V. C. 8 Ch. D. 798 ; 47 L. J. Ch. 180 ; 38 L. T. N. S. 313 ; 26 W. R. 259 ; 1 Trade-Marks, 211. Ct. of App. : James, Baggallay, and Bramwell, L. JJ. 8 Ch. D. 794 ; 47 L. J. Ch. 807; 38 L. T. N. S. 695 ; 26 W. R. 777. AN application having been made for the registration of certain trade-marks in respect of cotton goods, consisting of triangular green labels or tickets with a device in gold, being a curtain bearing an inscription and held up by supporters, the Committee of Experts at Manchester placed such marks in the second class as being not entitled to registration, on the ground that the shape and style and principal component parts of the marks were in common use in the trade, though the exact combinations were only used by the applicants. On motion by the applicants for a declaration that the marks were true trade-marks within the Trade-Marks Regis- tration Acts, and for a direction to the registrar to proceed with the registration : Held, by the V. C. : That each of the tickets, looked at as a whole, was distinguishable from the other tickets in use, and that the motion must be granted. 1 It is here ruled that a person may have a trade-mark upon goods selected by him. See Godillot v. Hazard, 461. 333 METZLER V. WOOD. Held, by the Ct. of A pp. : That the Committee of Experts were constituted by the Trade-Marks Registration Acts and Rules a tribunal to decide as to the validity or invalidity of cotton marks ; that their decision should not be reversed, ex- cept on proof that they had proceeded on some wrong prin- ciple, or in some improper manner ; that, in the case in ques- tion, this was not established ; and that the motion should have been refused. 587. Metzler v. Wood. December 17, 1877 ; April 1, 1878. Malms, V. C. 8 Ch. D. 608. Ct. of App. : James, Cotton, and Thesiger, L. JJ. 8 Ch. D. 606; 47 L. J. Ch. 625; 38 L. T. N. S 541; 26 W. R. 577. THE plaintiffs being the proprietors of " Hemy 1 8 Royal Modern Tutor for the Pianoforte" published in a yellow cover bearing that title, the defendant employed Hemy to prepare a new edition of an obsolete work called " Jousses Royal Standard Pianoforte Tutor" and published it in a gray cover with the title " Hemy 1 8 New and Revised Edition of Jousse's Royal Standard Pianoforte Tutor" the name " Hemy's " being in large and conspicuous letters. Injunction granted to restrain the defendant from infring- ing the plaintiffs' rights ; and Held, by the V. C. : (1.) that the plaintiffs were not disen- titled by reason of a representation that this was the 600th edition of the plaintiffs' work, it being proved to be a trade custom to style every issue of 250 copies a new edition, nor by a statement that their work was specially revised by Hemy, the words being properly interpreted to mean that it was a specially revised edition, but not to distinguish it from all previous ones in that respect ; (2.) that the plaintiffs hav- ing set up claims as to copyright and gone into the inter- nal structure of the defendant's work, but failed on that point, the defendant must pay one half, instead of the whole, of the plaintiffs' taxed costs. 1 1 See Pidding v. How, 60. 334 BAIN v. MUNRO. 588. Bain v. Munro. January 10, 1878. Ct. of Session. Ct. of Sess. Cos. th Ser. V. 416; 15 Scot. L. Rep. 260. ACTION to recover from the widow and executrix of a med- ical man a sum of money guaranteed by the defendant's hus- band to the plaintiff. Held, by the Lord Ordinary (Lord Curriehill) and the court, that a sum of money paid to the defendant by way of purchase money for the good-will of her husband's medical practice, with a recommendation from herself, belonged to the defendant, and not to the estate of her deceased husband, on the ground that the good-will of a medical practice was per- sonal and not transmissible, and that the money was, in fact, paid for the defendant's recommendation. Per Lord Curriehill. " There is truly no such thing as good-will in the case of a business carried on by a professional man, such as a physician, surgeon, or law agent, whose success depends entirely upon his own personal skill. It is quite different in the case of a trade or manufacture, where the employer may have the possession of patents or trade secrets, or may, by long exercise of his trade or manufacture in some particular locality, have drawn together skilled artisans and attracted the custom of a district to his establishment. In such a case it is not the individual skill of the employer, but the reputation which his establishment has acquired, which creates that incorporeal, but frequently valuable, estate known as the 'good-will' of a trade. But there is no such thing in the case of a professional man. His busi- ness dies with him, and the man who comes after him in the district must depend for success upon his own exertions. It is quite true that such businesses are occasionally sold ; but what is thus sold in the case of a living professional man retiring from business is truly the per- sonal recommendation which the seller gives to his former clients or patients in favor of his successor, coupled with the predecessor's own retirement from business. But where the physician or law agent is dead, nothing of the kind can take place. He has been removed by death from all possibility of competing with the new doctor or the new solicitor, and his voice being forever silenced, he cannot give any recommendation to his clients or patients. But if the family of 335 IN RE POWELL; IN RE PRATT. the deceased professional man offer to recommend a successor to the clients or patients of the deceased on receiving a money equivalent, what is paid for is merely the recommendation of the living members of the family of the deceased." Per the Lord Justice Clerk. " It is quite clear that a distinction has always been drawn between the good-will of a trade, where the individual skill of the trader has often less to do with the success of the undertaking than other circumstances connected with it, and a pro- fession which is only carried on with success by means of the brain and other personal qualifications of the person conducting it. The distinction which has been drawn between these is thorough, and so the law has been laid down in these cases which have been quoted to us. The benefit derived from the exercise of a profession seems to me to be so personal to the individual exercising it that nothing can be said to transmit to the effect of being assets in the hands of an ad- ministrator." Per Lord Ormidale. " I think it is impossible to hold that a med- ical man's practice can transmit, and that the value of the good-will of such a practice can be considered an asset in the deceased's execu- tory." Per Lord Gifford. " I think it is quite clear that there may be the good-will of the practice of a professional man as well as of a trade. You have instances of this in the case of medical men every day. It is said that this is only the case when both parties are living, the retiring doctor and his successor. But I cannot assent to this. I see nothing to prevent a medical man bequeathing his practice to a friend." 589. In re Powell; In re Pratt, [T. M. A. 1875]. January 12, 1878. Jessel, M. R. l Trade-Marks, 237. A REPRESENTATION of a willow-pattern plate having been used by the former of the above parties since 1864 as his trade-mark on his " GroodaWs Yorkshire Relish" and by the latter of the parties since 1868 on his " Club Sauce" and each of the parties having applied for the registration of the device as his trade-mark, and opposed the application of the other : 336 BLACKWELL v. DIBRELL. On two summonses taken out by the parties by direction of the judge and adjourned into court: Held, that, inasmuch as each of the parties had used the mark independently and bond fide for several years, the mark should be registered in both names. 59O. Blackwell v. Dibrell. January 14, 1878. U. S. C. C. E. Dt. of Va. : Hughes, J. 14 U. S. Pat. Gaz. 633. THE plaintiffs being manufacturers of tobacco at Durham, in North Carolina, who labelled their tobacco with the figure of a Durham ox and the words "Durham Smoking Tobacco " (their title being derived as stated in " Blackwell v. Armis- tead "), the defendants manufactured tobacco at Richmond, Virginia, and labelled it in the same way, except that the head and neck of the bull were substituted for the entire figure. Suit for an injunction to restrain the defendants from in- fringing the plaintiffs' rights. Held, (1.) that even if W. A. Wright (through whom the defendants claimed to be entitled to use the label) had, as he alleged, adopted the label used by the defendants before Green, through whom the plaintiffs claimed, had begun to use the label used by them, yet he had lost whatever rights he had in the mark by abandonment and disuse for eight or nine years from 1861 ; l (2.) that during that period of disuse the name had acquired a local signification, as indicating tobacco grown at the town of Durham ; (3.) that whether the plaintiffs had or had not an exclusive right in the mark as against other manu- facturers at Durham, they were at all events entitled to a rem- edy against the defendants, who did not carry on business at Durham, and that an injunction must be granted, with an account. " That the right to use a trade-mark may be lost by abandonment or disuse is too clear to need argument or the support of authority." 1 See Blackwell v. Wright, 466. 22 337 SIEGERT V. FINDLATER. 591. Siegert v. Findlater. January 15, 1878. Chanc. Div. : Fry, J. 7 Ch. D. 801 ; 47 L. J. Ch. 233; 38 L. T. N. S. 849; 26 W. R. 459. DR. SIEGERT having in 1830 commenced manufacturing at Angostura (since 1846 renamed Ciudad Bolivar), in Vene- zuela, a fluid which he termed "Aromatic Bitters," and sold in peculiarly shaped bottles, enclosed in wrappers printed with descriptions of the virtues and uses of the preparation, in par- allel columns of Spanish, English, and German, and under- neath in French, the heading of the centre column being " Aromatic Bitters, prepared by Dr. Siegert at Angostura (now Ciudad Bolivar)" and the fluid having generally acquired the name of "Angostura Bitters" though not so termed by Dr. Siegert ; in 1870 Dr. Meinhard began at Ciudad Bolivar to make and sell another preparation in bottles similarly shaped to Dr. Siegert's, with similar descriptions on the wrap- pers in the same languages similarly arranged, the heading of the centre column being " Aromatic Bitters, prepared by Teo- doro Meinhard, Ciudad Bolivar, formerly Angostura," which inscriptions he somewhat altered in 1874, after the suit of Siegert v. Ehlers, in Trinidad, so that the new heading was " Angostura Bitters, prepared by Teodoro Meinhard, Ciudad Bolivar, formerly Angostura," and across the three columns the words " Angostura Bitters " were printed in red letters. Action by the successors in business of Dr. Siegert, who had in 1875 removed their business to Port of Spain, in Trinidad, and thereupon somewhat varied their wrappers, adopting the term " Angostura Bitters " for the first time, so that the head- ing now ran " Aromatic Bitters, or Angostura Bitters, pre- pared by Dr. Siegert, at Angostura (now at Port of Spain, Trinidad)," and who, after the commencement of the action, again changed their wrappers, for an injunction to restrain an infringement by the English agents of Dr. Meinhard. Held, (1.) that Meinhard had acted in a manner intended and calculated to deceive, and which had deceived ; (2.) but that the plaintiff was not entitled to the exclusive use of the 338 IN RE FARINA. term "Angostura Bitters" since that had become the name of an unpatented article which any one who could discover the secret recipe might make and call by its name, although it had hitherto been made by only one firm, because they alone knew the secret ; l (3.) that a defence, based on the plaintiffs being disentitled by reason of misrepresentation in their new wrap- pers, failed, there being, in the first place, no substantial mis- representation, and the label having, in the second place, not been adopted till after the commencement of the action ; (4.) and, therefore, that an injunction must be granted to restrain the defendant from using the word " Angostura" or the words " Angostura Bitters" in such a way as to be calculated to de- ceive, but not so as to prevent their being applied to an article identical with the plaintiffs', by whomsoever made. " It is to be observed that the person who produces a new article, and is the sole maker of it, has the greatest difficulty (if it is not an impossibility) in claiming the name of that article as his own, because, until somebody else produces the same article, there is nothing to distinguish it from. No distinction can arise from using the name of the class so long as the class consists of only one species, for then the name of the species and the name of the class will be the same." 592. In re Farina [T. M. A. 1875]. (1.) January 17, 1878. Hall, V. C. 26 W. R. 261. J. M. FAKEN A and his predecessors in business having long manufactured Eau-de-Cologne at Cologne, which was sold in bottles bearing a label on which was printed Farina's signa- ture, with a peculiar nourish, and with a medallion of his family arms in the upper left-hand corner, and he having reg- istered this label as his trade-mark in Germany and England, another manufacturer of Eau-de-Cologne, who used a label on his bottles very similar to Farina's, but having a different medallion in the corner, obtained registration in Germany, and applied for registration in England, of a medallion identical l See Siegert v. Ehlers, 432. 339 IN BE HYDE & CO. with that contained in the plaintiff's label, asserting that it was also his own family arras. Motion by the registered proprietor for a declaration that the applicant was not entitled to registration, and to restrain him from taking further proceedings with a view to registra- tion, refused, on the ground that the question whether regis- tration should be allowed must depend on whether an injunc- tion would be granted in an action independent of the regis- tration acts, and that in the case in question the, medallion, used alone, was not so similar to the label with the medal- lion in the corner as to be calculated to deceive. 593. In re Hyde & Co. [T. M. A. 1875]. January 18, 1878. Jessel, M. R. 1 Ch. D. 724; 38 L. T. N. S. 777 ; 26 W. R. 625; 1 Trade-Marks, 245. HYDE & Co. obtained the registration of the words " Bank of England" which they had used on sealing-wax for upwards of forty years as their trade-mark on that article, notwith- standing that the words had been used by various other seal- ing-wax makers for different periods up to thirty years, and for at least six years to Hyde & Co.'s knowledge. On motion by other firms of manufacturers of sealing-wax for the removal of the mark from the register : Held, (1.) that where an old mark had been used habitually by more than three firms on the same class of goods, it had become a common mark and incapable of appropriation ; (2.) that this was the case with the words in question, and that the registration must, therefore, be rescinded ; (3.) that Hyde & Co. having registered a mark to which they were not enti- tled, and having declined until the hearing of the motion to consent to the rectification of the register, they must pay the costs of the motion, notwithstanding that the firms moving in the matter had allowed the mark to be placed on the register without opposition. 340 IN RE HALL & CO. 594. Hinrichs v. Berndes. January 18, 1878. Jessel, M. R.W. N. 1878, p. 11 ; L. J. Notes of Cos. 1878, p. 11. MOTION for an injunction to restrain the publication of certain libellous statements refused ; but Held, that if a plaintiff in an action of libel had obtained a verdict, and the libel were repeated, damages might be given at the hearing for the past libel, and at the same time its continuance in the future be restrained by injunction. 595. Marcovitch v. Bramble, Wilkins & Co. January 24, 1878. Malins, V. C. ON motion to commit for contempt of court an auctioneer, who had had served on him a notice of an injunction which had been granted to restrain his firm from offering for sale a parcel of cigarettes marked with the plaintiff's trade-mark, the words " Vanity Fair" and who had nevertheless offered them for sale, but without success, he supposing the notice of injunction to require some further official authentication : Held, that while the defendant had made himself liable to committal, under the circumstances, he should only be required to submit to the injunction and pay the costs. 596. In re Hall & Co. In re Atkinson. February 2, 1878. U. S. Patent Office: Doolittle, Act. Comm.l3 U. S. Pat. Gaz. 229. ON two separate applications for the registration of the name " Calhoun " as a trade-mark on ploughs : Held, that although the name had, when first used, been the valid trade-mark of the firm of Calhoun and Atkinson, under the latter of whom both applicants claimed, it had since then become publici juris by being used by a number of 341 EX PARTE THE KING OF SAXONY. firms without opposition by the representatives of Calhoun and Atkinson, and that registration must, therefore, be re- fused in both cases. 1 597. In re Horsburgh [T. M. A. 1875]. February 3, 1878. Jessel, M. R. l Trade-Marks, 260. THE registered proprietors of a trade-mark used by them on lubricating oils, and consisting of a certain device with the word " Valvoline" opposed an application by other oil mer- chants for the registration in their name of another trade- mark, consisting of an entirely different device with the word " Valvoleum" on the ground that it was calculated to pro- duce deception. On summons adjourned into court : Held, (1.) that each of the words in question was simply equivalent to " Valve Oil" and, therefore, merely descriptive of the use of the article and incapable of appropriation, al- though, if the words were ornamented in some special man- ner, the manner of ornamentation might be claimed ; (2.) that the devices used in combination with the words being per- fectly distinct, each might be registered with or without the additional word, the device being the essential particular, which must be encroached upon for the trade-mark to be in- fringed ; (3.) that the enactment in 6 of the T. M. A. 1875, forbidding the registration of any words the exclusive use of which would not, by reason of their being calculated to de- ceive or otherwise, be deemed entitled to protection in a court of equity, has reference to deceptiveness inherent in the mark itself, and not to any question of comparison or similarity be- tween two or more trade-marks. 2 598. Ex parte the King of Saxony [T. M. A. 1875]. February 7, 1878. Hall, V. C. 1 Trade-Marks, 245. THE King of Saxony being the proprietor of certain long- established marks for porcelain, which had been registered in i See McLean T. Fleming, 580. a See Burnett v. Phalon, 277. 342 BRAHAM V. BEACHIM. England, opposed an application by another person for the registration in the latter's name of certain marks for porcelain, on the ground that they so nearly resembled his own regis- tered marks as to be calculated to deceive. On an ex parte application on behalf of the King of Saxony for a direction as to the mode of trial : Held, that the case should be heard on motion, but that leave should be given to the other party to give notice of mo- tion for the following week to have the case heard in some other way, if he wished to do so. 599. Braham v. Beachim. (1.) February 12, 1878. Chanc. Div. : Fry, J. 7 Ch. D. 848; 47 L. J. Ch. 348 ; 38 L. T. N. S. 640 ; 26 W. R. 654. THE principal plaintiff, Countess Waldegrave, being the owner or lessee of all the collieries within the parish of Rad- stock, except one very small piece, and raising and selling the coal therefrom under the style of " The Radstock Coal Com- pany" the defendants began to sell coal under the same title ; after which the plaintiff changed her style to " The Countess Waldegrave's Radstock Collieries" and the defendants adopted the style of " The Radstock Colliery Proprietors" and, upon remonstrance, of " The Radstock Coal Company Colliery Pro- prietors," in newspapers and on their office blind, although they were never entitled to raise coal within the parish of Radstock, nor, until after the commencement of the action, within any part of the district through which the seams of Radstock coal extended. Action by the Countess and her trustees for an injunction to restrain the defendants from infringing their rights. Held, (1.) that the defendants were not entitled to call themselves " The Radstock Colliery Proprietors" since that was calculated to attract to them custom intended for the plaintiff as practically the only colliery proprietor in the par- ish, as well as the largest proprietor in the district ; (2.) that the defendants were not entitled to style themselves proprietors 343 IN RE PATON. of collieries at Radstock, since that designation also pointed to the parish, and, therefore, to the plaintiff's works ; (3.) that the course of conduct adopted by the defendants was calcu- lated to deceive, and that proof of actual damage having been sustained by the plaintiff was, therefore, not requisite ; (4.) that an in junction must, therefore, be granted to restrain the defendants from using either of the above appellations ; (5.) but that this injunction should not extend to prevent the de- fendants from adopting those appellations if they should at any time become owners or lessees of collieries within Rad- stock parish. 1 60O. In re Lisner. February 14, 1878. U. S. Patent Office: Doolittle, Act. Comm. lS U. S. Pat. Gaz. 455. ON an application for the registration of a trade-mark in respect of " fancy goods : " Held, that although a trade-mark might be registered on a single application for an entire class of merchandise, it could not be so registered for the numerous classes of goods included in the term " fancy goods," and that registration must, there- fore, be refused until the particular class of goods in respect of which the application was made was more clearly specified. 601. In re Paton [T. M. A. 1875]. March 1, 1878. Jessel, M.R. l Trade-Marks, 285. AN application for the registration of the word " Alloa " as the applicants' trade-mark for woollen yarns being opposed, On motion for a direction as to the manner in which the case should be heard: Held, (1.) that the case should be heard on summons taken out by the opponents and adjourned into court ; (2.) that a delivery at the Trade-Marks Registry Office by the opponents' solicitors of a copy of the notice of the opposition motion, to- 1 See Newman v. Alvord, 282. 344 FULLWOOD V. FTJLLWOOD. gether with a copy of the indorsement of acceptance by the applicants' solicitors, was a sufficient compliance with the re- quirement in the Instructions to Applicants for Registration (paragraph 37), for notice of the opposition motion having been brought before the court to be given to the Registrar of Trade-Marks, by the delivery at the office by the opponents' solicitors of a copy of the notice of motion, with an indorse- ment of service on the applicants, signed by the opponents' solicitors, and that the personal service on the applicants and the indorsement might be dispensed with. 602. Fullwood v. Fullwood. (2.) March 5, 1878. CJianc. Div. : Fry, J. 9 Ch. D. 176 ; 47 L. J. Ch. 459 ; 38 L. T. N. S. 380 ; 26 W. R. 435. THE plaintiff carrying on at Somerset Place, Hoxton, the business of an annatto manufacturer, established by his father in 1785, under the name of " R. J. Fullwood $ Ob.," the de- fendants, one of whom had formerly been the plaintiff's part- ner, but had sold his interest to the plaintiff, began to carry on the same business under the name of " E. Fullwood $ Co." and to put out advertisements, in which they described them- selves as " late of Somerset Place, Hoxton, Original Manufact- urers of Liquid and Cake Annatto" and their business as having been " Established in 1785" Action by the plaintiff for an injunction to restrain the de- fendants from representing their business to be identical with or similar to his own. Held, (1.) that the defendants had acted in a way intended and calculated to produce deception ; (2.) that the fact, if it were established, that the plaintiff had delayed till November, 1876, to commence his action, he having been aware of the defendants' conduct early in 1875, was no defence, the period fixed by the statute of limitations not having elapsed ; (3.) and that the injunction must be granted. " The right asserted by the plaintiff in this action is a legal right. He is in effect asserting that the defendants are liable to an action 345 HAGG V. BARLEY. for deceit. It is clear that such an action is subject to the statute of limitations, and it is also clear that the injunction is sought merely in aid of the plain tiff's legal right. In such a case the injunction is, in my opinion, a matter of course if the legal right be proved to exist. In saying that, I do not shut my eyes to the possible existence in other cases of a purely equitable defence, such as acquiescence or ac- knowledgment, and the various other equitable defences which may be imagined. But mere lapse of time, unaccompanied by anything else, and to that I confine my observations, has, in my judgment, just as much effect and no more in barring a suit for an injunction as it has in barring an action for deceit." 1 603. Prese v. Bachof. (2.) March 22, 1878. U. S. C. C. S. Dt. of N. Y. : Wheeler, J. 13 U. S. Pat. Gaz. 635. THE plaintiffs being a firm of tea-merchants, who sold " Hamburg Tea " in a peculiar form of package, the tea being enclosed in long cylindrical parcels with pink wrappers, and with crimson papers of directions and yellow ones of warning tied in, and having a white label with the firm name within a circle pasted across the ends of the string, and another white label with the same and the words " Hamburg Hopf en- sack, 6 " embossed thereon, pasted on the package, the defend- ant at first put up his tea in a precisely similar manner, with the firm name and address, but after the commencement of the suit discontinued the use of the firm name and address, and substituted his own. Injunction granted to restrain the defendant from using packages similar to those of the plaintiffs, and an account ordered. 2 604. Hagg v. Darley. March 25, 1878. Bacon, V. C. 47 L. J. Ch. 567 ; 38 L. T. N. S. 312. THE plaintiff purchased from the " Government Sanitary Company" composed of the defendant and three others, the 1 See McLean v. Fleming, 580 ; Cons. 2 See Williams v. Johnson, 150. Fruit Jar Co. v. Thomas, 668. 346 STEUART V. GLADSTONE. good-will of their business of manufacturing certain fluids and soaps known as the " Government Carbolic Disinfectants " (on which occasion the defendant and his partners covenanted with the plaintiff not to manufacture or sell disinfectants for fourteen years, nor for the same time to disclose the secrets of the manufactures in question), and carried on the busi- ness of the company under the old name with the defendant as his manager. Action by the plaintiff, alleging that the defendant had left his employ and set up in business as the " Old G-overnment Sanitary Company " and was committing other breaches of the covenant by communicating the secret to his workmen, etc., and claiming an injunction to restrain the defendant from using the name, carrying on the manufacture of disin- fectants, communicating the secret, etc. Demurrer by the defendant overruled, on the ground, that (1.) the defendant had both pleaded and demurred without the leave of the court, under Order XXVIII. Rule 5 ; (2.) the covenant was not too wide or unreasonable. 605. Steuart v. Gladstone. March 25, 1878 ; March 4, 1879. Chanc. Div. : Fry, J. 10 Ch. D. 646 ; 47 L. J. Ch. 423 ; 38 L. T. N. S. 557 ; 26 W. R. 657. Ct. of App. : Jessel, M. R. ; James and Bramwell, L. JJ. IQ Ch. D. 626 ; 40 L. T. N. S. 145; 27 W. R. 512. PAKTNEKSHIP action. The plaintiff had been expelled from the defendants' firm of commission merchants, in which he had been a partner, and which was carried on under articles, one of which provided that a retiring partner should receive the share in the part- nership property to which he was entitled upon the basis of annual accounts taken, under another article, of the partner- ship " estate and effects," provision being thereby made for a fair valuation and appraisement of all the particulars included in such accounts, which might be in their nature susceptible of valuation, but no mention being made of the good- will of the business. 347 WARD V. DRAT. Held) on appeal, that the share of partners in the good-will of a commission business not being ordinarily estimated in calculating their annual share of profits, and it not having been so in the present case, the good-will could not be taken into account and valued as being included in the partnership " estate and effects." 606. Saxby v. Easterbrook. March 25, 1878. C. P. Div. 3 C. P. D. 339 ; 27 W. R. 188. ACTION for damages, and an injunction to restrain the publication of statements with regard to certain patents, the property of the plaintiff, which statements were found by the jury to be libellous. Held, that the question of libel or no libel having been decided by the verdict of the jury, the injunction must be granted. Per Lindley, J. " The principle upon which the courts of equity have acted in declining to restrain the publication of matter alleged to be libellous is, that the question of libel or no libel is preemi- nently for a jury. But, when a jury have found the matter com- plained of to be libellous, and that it affects property, I see no prin- ciple by which the court ought to be precluded from saying that the repetition of the libel shall be restrained." 607. "Ward v. Drat. April 3, 1878. Chanc. Div. : Fry, J. L. J. Notes of Cos. 1878, p. 67. MOTION for an injunction to restrain the defendant from sending libellous demands for payment of rent having been refused by Malins, V. C., who reserved the costs : Held, that the court had no authority to grant an injunc- tion in such a case, either original, or under the Judicature Act, 1873, 25, sub-s. 8. 348 ENO V. STEPHENS. 608. Rose v. Loftus. April 10, 1878. Malins, V. C. 47 L. J. CA.576; 38 L. T. N. S. 409. THE plaintiff being a manufacturer of lime juice, which he sold in bottles moulded specially for him with a spray of lime-tree leaf and blossom and his name " Rose Co." and who further placed on these bottles a label containing the same spray and name, the defendant, who manufactured a similar article, on one occasion, at the request of a customer, filled some of the plaintiff's bottles brought to him by the customer with his own article, but washed the plaintiff's labels from the bottles and replaced them with his own, and also gave the customer a large printed card with the words "Lof- tus 1 Lime Juice Cordial" for public exhibition. Action by the plaintiff for an injunction to restrain the de- fendant from infringing his rights. Held, (1.) that the defendant had acted wrongfully, not- withstanding that he had placed his own labels on the bot- tles, since they still bore the plaintiff's name and mark ; (2.) but that he had not acted with any fraudulent intention, and that charges of fraud made by the plaintiff in his statement of claim were not established ; (3.) and, therefore, that on the defendant undertaking not to repeat the act the injunction should not be granted, nor any costs or account of profits. 1 6O9. Eno v. Stephens. April 11, May 29, 1878. Bacon, V. C. l Trade- Marks, 324. Ct. of App: Jessel, M. R.; James and Bramwell, L. JJ. 1 Trade-Marks, 325. THE plaintiff being the proprietor of " Una's Fruit Salt" who had for some time used, and had registered under the T. M. A. 1875 certain labels containing, with other words and devices, those words, and the words " Fruit Salt" " Fruit Saline," or " Fruit Powder," without the name, the defend- ant sold certain preparations under the names of "Fruit 1 See Millington v. Fox, 63. 849 IN RE MITCHELL. Saline" " Stephens $ Co.'s Effervescing Vinous Fruit Salts," and " Stephens' Vinous Salts." Injunction granted to restrain the defendant from using the words " Fruit Salt" " Fruit Saline" or " Fruit Powder" or any such combination of words. 610. In re Leonardt [T. M. A. 1875]. April 12, 1878. Jewel, M.R. l Trade-Marks, 316. A STEEL-PEN manufacturer procured the registration, as parts of his trade-marks on pens, of certain words and devices, consisting respectively of the royal arms, the words " Penna Vittorio Emmanuele " with a portrait, the word " Garibaldi " with a portrait, the word " Masonic " with the Masonic arms, and the words " Selected" " Improved" " Superior" " Office" " Commercial" and "International," those words and devices having been in common use by more than three firms of steel- pen makers for some years. On motion by certain firms of steel-pen manufacturers, and with the consent of the registered proprietor : Held, that there must be added to the registration of the marks in question a note containing a disclaimer of an ex- clusive right in the particulars specified. 611. In re Mitchell [T. M. A. 1875]. (2.) April 12, 1878. Jessel, M. R. W.N. 1878,^. 101; 1 Trade-Marks, 317. THE words " Selected Pens, London," together with the arms of the city of London, were registered by a steel-pen manufacturer as his trade-mark on steel-pens, the word " Se- lected " having been in common use by more than three firms of steel-pen makers. On motion by certain firms of steel-pen manufacturers : Held, that on evidence of the consent of the registered pro- prietor being produced, a note must be added to the registra- 350 DUWEL V. BOHMER. tion of the mark in question, to the effect that the word " Selected " in the above-mentioned mark was common to the pen trade. 612. In re Rader & Co. April 16, 1878. U. S. Patent Office: Spear, Comm. lZ U. S. Pat. Gaz. 596. APPLICATION for the registration of the words ''Iron Stone" enclosed in an oval border (other words descriptive of the article and place of sale or manufacture being also included within the border), as a trade-mark on water-pipes, refused, on the ground that the words were in themselves merely de- scriptive of the substance of the pipes, and that the oval bor- der in which they were enclosed did not give the requisite distinctiveness ; and, further, that the oval border was not as- sociated with the words in question only. 613. Duwel v. Bohmer. AprU, 1878. U. S. C. C. S. Dt. of Ohio : Swing, J. 14 U. S. Pat. Gaz. 270. SUIT by a citizen of the State of Ohio for an injunction to restrain an infringement of his trade-mark, registered in pur- suance of the statutes of the United States, by another citizen of Ohio. Demurrer, on the ground that the U. S. Circuit Court had no jurisdiction in such a suit between citizens of the same state, overruled ; and Held, that the U. S. Circuit Courts had jurisdiction in trade-mark cases between citizens of the same state concurrent with that of the state courts. 1 1 This decision has been rendered v. Steffens, declaring the acts of Con- obsolete by that of the Supreme Court gress concerning trade-marks uncon- of the United States in United States stitutional. 351 IN RE JELLEY, SON & JONES. 614. Rolt v. Bulmer. May 13, 1878. Jessel, M. R. W. N. 1878, p. 119. ACTION for a dissolution of partnership and accounts, the partnership having been carried on under articles which pro- vided for an account being taken, at the determination of the partnership, of the partnership " moneys, stock in trade, debts, effects, and things," but did not directly refer to the good-will of the business. Held, that the good-will must be taken into account, as be- ing included in the "effects and things." 615. Reynolds v. Bullock. May 13, 1878. Hall, V. C. 47 L. J. Ch. 773; 39 L. T. N. S. 443; 26 W. R. 678. ACTION for a partnership account commenced by one of two members of a partnership firm, on the expiration of the part- nership term, the partnership having been carried on under articles which provided for the valuation of the partnership " property and effects " on the dissolution, but contained no reference to the good-will of the business. Held, that there being no direct negative stipulation in the articles, the good-will must be taken into account and valued, as being included in the "property and effects." 616. In re Jelley, Son & Jones [T. M. A. 1875]. May 18, 1878. Jessel, M.R. l Trade-Marks, 346. APPLICATION having been made for the registration of a device, consisting of a pointer eating out of a porridge-pot (which the applicants had long used on a variety of metal goods contained in class 13, but not on other goods), as an old trade-mark for class 13, and as a new trade-mark for other classes, in particular for class 12, containing cutlery and edge- tools, and for fencing wire, being one of the kinds of goods included in class 5 ; the application was opposed by the pro- 352 GUINNESS V. HEAP. prietor of another trade-mark, consisting of a device of a pointer dog standing at a point, with the word " Staunch," and registered for all the goods contained in classes 5, 12, and 13, on the ground that the applicants' device so nearly resem- bled his as to be calculated to deceive. On summons adjourned into court : Held, (1.) that with respect to old marks the rule of the court was to permit registration of even identical old marks, up to the number of three, though if more than three applica- tions for the registration of the same old mark were received it must be treated as common ; and that, with regard to class 13, the mark being a bond fide old mark, must be admitted to registration ; (2.) that with respect to new marks, it was the duty of a person about to adopt one to make it as distinct as possible, and that the fact that a man had been in the habit of using a certain trade-mark on one class of goods did not en- title him to begin to use it on another class if it would inter- fere with another person's mark, and, therefore, with respect to class 12, that inasmuch as the applicants' mark so nearly resembled the opponent's as to be calculated to deceive, es- pecially when they were compared as stamped on the metal, registration in class 12 must be refused ; (3.) that, with re- spect to class 5, the mark might be registered in that class for fencing-wire only, as that would not interfere with the opponent's trade ; (4.) that no order could be made as to costs. 617. Guinness v. Heap. May 30, 1878. Malins, F. C. THE plaintiff being a brewer of stout, who used a trade- mark on his bottles containing the words " Guinness' Extra Stout," with a harp, the defendant sold other beer in bottles bearing labels of the same shape as those used by the plain- tin , but which had the words " Genuine Extra Stout" substi- tuted for the words " Guinness' Extra Stout " in the plaintiff's 23 353 MERCHANT BANKING CO. V. JOINT STOCK BANK. mark, and also contained a device in imitation of the harp used by the plaintiff. Injunction granted to restrain the defendant from infring- ing the plaintiff's rights, notwithstanding that the defendant had altered the device, discontinued the use of the labels, and offered to undertake not to use any more of them. 618. The London and County Banking Co. v. The Hampshire and North Wilts Bank. June 7, 1878. Jessel, M. R. MOTION by the plaintiff company, under 20 of the Com- panies Act, 1862, for an injunction to restrain the defendants from changing their name to " The Capital and Counties Bank " refused, on the ground that the adoption of the latter name by the defendants was not calculated to deceive per- sons who used ordinary care in the conduct of their business transactions. 619. The Merchant Banking Company of London (Lim- ited) v. The Merchants' Joint Stock Bank. June 29, 1878. Jessel, M. R. 9 Ch.D. 560 ; 47 L. J. Ch. 828; 26 W. R. 847. ON motion by the plaintiff company for an injunction to restrain the defendant company from using its name recently assumed and registered, as being too similar to the name of the plaintiff company, or any other too similar name : Held, (1.) that inasmuch as 20 of the Companies Act, 1862, only affected the question of registration of the name of a company, the rights of companies after registration were not varied by that enactment ; (2.) that the similarity be- tween the names was not sufficient to show an intention or probability of deception ; (3.) and that the motion must, therefore, be refused. 354 IN HE ROSING. 62O. Ex parte Sales Pollard & Co. [T. M. A. 1875]. July 8, 1878. Jessel, M. R. ON motion by the registered proprietors of a trade-mark on snuff, consisting of the letters " S. P." (the initials of the firm), which they had discovered, subsequently to registra- tion, to have been in common use for many years in the snuff trade, though used originally by themselves : Leave given to rectify the register by striking out the mark in question. 621. In re Rosing [T. M A. 1875]. July 11, November 13, 1878. Bacon, V. C. l Trade-Marks, Ml. Ct. of App. : Jessel, M. R.; Baggallay and Thesiger, L. JJ. APPLICATION having been made for the registration of the applicant's family arms, consisting of a sprig of two roses and a twisted horn, as his trade-mark for several classes of goods, and among others for classes 5, 12, and 13, containing cutlery and other metal goods, the Cutlers' Company of Sheffield op- posed the application as to classes 5, 12, and 13, on the ground that the mark in question so nearly resembled a Sheffield cor- porate mark many years previously assigned to another manu- facturer of cutlery, and still used by him, as to be calculated to deceive, the latter mark consisting of a plain horn suspended by a looped cord. On motion by the applicant for a direction to the registrar to register the mark in the classes in question : Held, by the V. C. : (1.) that the two marks were not suf- ficiently similar for deception to be anticipated, and that the applicant's mark must, therefore, be registered ; (2.) that the Cutlers' Company must pay the costs, notwithstanding that they had intended to act in the public interest. Held, by the Court of Appeal : (1.) that the two marks were too similar, especially when looked at as stamped on the metal, for the applicant's mark to be admitted to registration in classes 12 and 13 (as to class 5 the Cutlers' Company aban- 355 IN RE LYSAGHT. doned their opposition) ; (2.) that the applicant must pay the costs of the appeal, but that no costs of the motion in the court below could be given, the applicant having succeeded as to class 5. 622. In re Brook [T. M. A. 1875-6-7]. July 13, 1878. Hall, V. C. 26 W. R. 791. AN application having been made for the registration of a considerable number of trade-marks in respect of cotton goods, the Committee of Experts at Manchester placed half of the marks in the first class, as being entitled to registration, and the other half in the second class as not being so entitled ; and the Registrar of Trade-Marks refused registration to the marks so placed in the second class, and further divided the marks placed in the first class, admitting six of them to sepa- rate registration, but offering only representative registration to the remainder, on the ground that the essential feature in all of them was a device consisting of a goat's head crest, and the name " Brook's." On motion by the applicants for the separate registration of the whole of the marks : Held, (1.) that as to the marks placed by the committee in the second class, the case was governed by In re Orr Ewing $ Co., and that the court was debarred from reconsidering the decision of the committee ; (2.) that as to the marks placed in the first class, but offered only representative registration, the case was governed by In re Barrows, and that separate registration must be refused ; but that the goat's head crest and the name " Brook's " should each be registered separately, as a repre- sentative mark, with the additional words to mark its rep- resentative character appended to each. 623. In re Lysaght [T. M. A. 1875]. July 19, 1878. Jessel, M. R. A TRADE-MARK having been registered in respect of the goods contained in class 5, on motion by the registered proprie- 356 IN RE SAUNION & CO. tor, order made to rectify the register by limiting the regis- tration to galvanized sheet iron, on which alone it was his old mark. 624. Ex parte Walker & Co. July 25, 1878. Matins, V. C. ON motion by the registered proprietors of a trade-mark on iron, consisting of the letter W., a crown, and the word " Neth- erton," leave given to rectify the register by substituting the word ''Dudley " for the word " Netherton" the address being held not to be an essential particular of the trade-mark in question. 625. In re Saunion & Co. [T. M. A. 1875]. August 2, 1878. Jessel, M. R. THE Anglo-Portuguese Oyster Fisheries Company having been for some years in the habit of importing oysters dredged in Portuguese waters into England, and selling them there, either without previous fattening, or after fattening at beds at Queenborough, and Saunion & Co. having acted as the agents for the company in this undertaking, under an agreement which amounted in law to an agreement for a partnership ter- minable at the will of the company, the partnership was dis- solved, and the connection terminated by the company, who then carried on business through a new agent. Saunion & Co. afterwards applied for the registration of a trade-mark consisting of a device containing, among other particulars, the words " Anglo-Portugo Oysters," those words being the words by which the company had designated their oysters, and they claimed to use this mark upon any oysters which they con- sidered to-be of the same breed as the company's, whether brought from Portugal or not. On motion by the company: Held, that the inclusion of the words " Anglo-Portugo " in the applicants' trade-mark was either deceptive, if the oysters did not come from Portugal, or descriptive, if they did, or if 357 THE HOOSIER DRILL CO. V. INGELS. the words denoted a particular breed, and not the country of origin, and that the words must be struck out of the trade- mark which it was proposed to register. 1 626. In re Brandreth [T. M. A. 1875]. August 8, 1878. Jessel, M. R. 9 Ch. D. 618 ; 47 L. J. Ch. 816 ; 27 W. R. 281. ON application, by way of adjourned summons, for the reg- istration of the word " Porous " as a trade-mark in respect of " AllcocTc's Porous Plasters" and opposed : Held, (1.) that the word " Porous " was descriptive, and, therefore, incapable of registration ; (2.) that in any case it could only be registered as included in the phrase "AllcocJc's Porous Plasters," which phrase was itself descriptive ; (3.) that the application must be refused with costs ; (4.) that the only costs which, under Order LV., could be given were the costs of the proceedings subsequent to security for costs being given by the opponents, that being the time when, by Rule 16 of the Trade-Marks Rules, the case stood for the determination of the court, and that the costs of the previous proceedings in the Trade-Marks Registry Office could not be given. 627. The Hoosier Drill Co. v. Ingels. 1878. U. S. Patent Office: Doolittle, Act. Comm. 14 U. S. Pat. Gaz. 785. A TRADE-MARK having been registered in the name of Ingels at a time when another application by the company for the same trade-mark was pending, and an interference having been declared between the parties, the Commissioner of Patents held that only the question of priority of adoption could be inquired into on an interference, and not questions of disputed ownership. On motion by the company to rehear : Held, (1.) that neither prior invention, use, or adoption was necessary to entitle to the registration of a trade-mark under 1 See Newman v. Alvord, 282. 358 THE MANHATTAN MEDICINE CO. V. WOOD. the U. S. Statute, a simple intention to use being sufficient ; and (2.) that in investigating the title to a trade-mark, all matters relating to the ownership should be gone into, and not only the question of priority of adoption, and that the motion must be granted. 628. The Manhattan Medicine Co. v. Wood. September 21, 1878. U. S. C. C. Dt. of Me. : Clifford, J. 14 U. S. Pat. Gaz. 519. THE plaintiffs manufactured a medicine called "Atwood's Vegetable Physical Jaundice Bitters " (which they sold in peculiar shaped bottles, having the words " Atwood's Genuine Physical Jaundice Bitters, Greorgetoivn, Mass." blown in the glass, and bearing a yellow label), in succession to the firm of Carter & Dodge, who had purchased from the original inven- tor and proprietor the right to manufacture and sell the medi- cine and use the trade-mark used by him, but not in Maine and some other excepted places. The defendant in 1861 pur- chased from the son of the original proprietor the genuine secret recipe for the medicine, to be used in Maine, and from that time till the commencement of the suit he continued to manufacture and sell the medicine and use the trade-mark without interference, though it did not appear that the son had sold by his father's authority. Suit for an injunction and an account. Held, (1.) that the plaintiffs had no exclusive right to sell the medicine or use the trade-mark ; (2.) that neither they nor their predecessors in title had ever had any right to do so in Maine ; (3.) that the rights possessed by some of the assignors to the plaintiffs had been lost by reason of their having used the genuine trade-marks on spurious medicines of inferior quality ; (4.) that the plaintiffs were, further, dis- entitled by their delay ; (5.) that the plaintiffs' assignors had lost whatever right they had in the trade-mark by not confin- ing themselves to the districts to which alone the grants from the original proprietor extended; (6.) that the trade-mark 359 LEIDERSDORF v. FLINT. used by the original proprietor had been abandoned by those claiming under him, when they adopted new bottles and labels in place of those used by him ; (7.) that the article not being patented, and the defendant being in possession of the genuine recipe, and the plaintiffs having no exclusive right, and none at all in Maine, the defendant could not be restrained from using the trade-mark, and that the injunction must be refused with costs. 1 629. Leidersdorf v. Flint. 1878. U. S. C. C. E. Dl. of Wise. : Harlan and Dyer, JJ. IS Am. L. Rev. 390. THE plaintiffs and defendant being alike citizens of Wis- consin, the defendant used upon his packages of tobacco a trade-mark which the plaintiffs alleged to be an infringement of that used by them on theirs. Suit for an injunction to restrain the defendant from in- fringing the plaintiffs' rights, brought under the U. S. Re- vised Statutes, section 4942 (Act of 1870, section 79). On demurrer: Held, that, inasmuch as Congress was only authorized by the Constitution of the United States to " secure for limited times to authors and inventors the exclusive right to their re- spective writings and discoveries," and the right to a tra'de- mark did not depend upon invention or originality but upon prior user, legislation by Congress upon the subject of trade- marks was ultra vires ; and therefore that, although if trade- marks had been within the legislative power of Congress, the federal court would have had jurisdiction, under the author- ity conferred on it by statute, even between citizens of the same state, that not being so, the demurrer must be sustained on the ground of want of jurisdiction. 2 1 See Seaburyv. Grosvenor,562; Me- 2 See United States v. Steffens, 660. Lean v. Fleming, 272. 360 EX PARTE LAWRENCE & CO. 630. Ex parte Lawrence & Co. [T. M. A. 1875]. November 2, 1878. Jessel, M. R. LAWRENCE & Co., carrying on business as manufacturers of printers' rollers and of the composition used for coating the same, and having since 1872 used a trade-mark thereon consisting of a device of a printer's roller, with the words " The Durable " in an oval, their manager, Marler, during the absence abroad of the members of the firm, and without their knowledge, obtained the registration of a mark substan- tially the same as theirs in his own name, describing himself as a manufacturer of the same articles as his employers, and of their address. On motion by Lawrence & Co. for rectification of the reg- ister, either by the insertion of their firm name in the existing entry in place of that of Marler, or by that entry being ex- punged, with liberty for them to proceed to advertise their mark, with a view to registration, de novo : Held, (1.) that relief in the first alternative could not be granted, since the registration of Marler, having been effected without instructions from the applicants, was not a registra- tion on their behalf, or one of which Marler could be treated as a trustee for them, but a wrongful act from the beginning, of which, if the applicants wished to take the benefit, they must at the same time take the inconveniences, so that the applicants could only utilize the existing entry by obtaining an assignment from Marler ; but that this was impossible, since he had never carried on any business, and, therefore, could not assign the mark, being unable to assign with it the good-will of the business in which it was used ; (2.) that the proper method of rectifying the register was by expunging the improper entry altogether, and that relief must, therefore, be granted in the second alternative. 361 , EX PAKTE EDE BROS. & CO. 631. Day v. Brownrigg. November 6, December 4, 1878. Matins, V. C. 39 L. T. N. S. 226. Ct. of App. : Jessel, M. R. ; James and Thesiger, L. JJ. 10 Ch. D. 294; 39 L. T. N. S. 553; 27 W. R. 217. THE plaintiffs being the owners of a house and estate at Ashford, Middlesex, known as " Ashford Lodge " and " The Ashford Lodge Estate" the defendant acquired another house in the same neighborhood, known as " The Villa, Ashford ," or "Ashford Villa" and changed the name to "Ashford Lodge" Action for an injunction to restrain the defendant from using that name fro the injury of the plaintiffs' property. On demurrer: Held, by the Ct. of App. : (1.) that the plaintiffs could not acquire an exclusive right in the name of a house apart from trade, and that the demurrer must be allowed ; (2.) that no extended power of granting injunctions was conferred upon the court by the Judicature Act of 1873, s. 25, sub-s. 8. 632. Ex parte Ede Bros. & Co. [T. M. A. 1875-6-7]. November 8, 1878. Jessel, M. R. APPLICATION having been made for the registration of cer- tain trade-marks for goods included in the cotton classes, such trade-marks were placed by the Manchester Committee of Experts in the first class of marks submitted to them, as being marks qualified for registration. On subsequent application by other firms for the registration in their names of trade- marks substantially identical with those so classed, the com- mittee placed the marks in respect of which such later appli- cation was made in their second class, on the ground that the later applicants had no title to the marks which they sought to register. On motion by the later applicants : Held, that the function of the Committee of Experts was to decide whether a trade-mark offered for registration con- tained the particulars necessary to constitute a registrable 362 IN RE THOMAS. trade-mark, and not to decide questions of title between rival claimants ; that in the cases in question the committee had acted on a mistaken view of their functions ; and that, not- withstanding the classification by the committee, the registrar must proceed to advertise the marks with a view to registra- tion, leaving the question of title to be decided in the future, on any opposition which the prior claimants might offer to the registration of the marks, after due advertisement. 633. Braham v. Beachim. (2.) November 14, 1878. Chanc. Div.: Fry, J. AFTER the decision in Braham v. Beachim (1), the defend- ants in that case acquired a colliery, but not in the parish of Radstock, and carried on business as " The Radstock Coal and Wagon Co., Colliery Proprietors, Radstock, /Somerset." Motion by the plaintiffs to commit the defendants for breach of the injunction refused, on the ground that the term used by the defendants did not imply more than that they were pro- prietors of collieries, whose place of business was at Radstock, which they were entitled to state, and that no breach of the injunction had been committed. 1 634. In re Thomas. November 18, 1878. U. S. Patent Office : Doolittle, Act. Comm. 14 U. S. Pat. Gaz. 821. ON an application for the registration as a trade-mark of a certain device, to be used in conjunction with other words and symbols, among which were certain of the words and symbols used in Freemasonry : Held, that the fact that such words and symbols were used in Freemasonry did not disentitle a manufacturer to use them in his trade, by reason of probability of deception of the public or otherwise, and that the application must be granted. 1 See Newman v. Alvord, 282. 363 MOSES V. SARGOOD, EWEN & CO. 635. The Singer Manufacturing Co. v. Loog. November 21, 1878. Bacon, V. C. DUKESTG the pendency of an action by the plaintiffs for an injunction to restrain the English agent of German manu- facturers from infringing the trade-mark on the plaintiffs' sew- ing machines, the publisher of a newspaper called TJie Sew- ing Machine Grazette published a paragraph in which it was stated that the action was pending, that during its pendency unprincipled traders had issued unfair and illegal advertise- ments, and that, after the conclusion of the existing action, further proceedings would be taken. Motion by the defendant to commit the publisher of the newspaper for contempt of court refused, on the ground that the paragraph in question was not calculated to prejudice the fair trial of the action. 636. Moses v. Sargood, Ewen & Co. November 22, 1878. Hall, V. C. THE plaintiffs being merchants and manufacturers of ready-made clothing, who placed on their goods a trade-mark registered in England and the colonies, consisting of one or more royal crowns, up to the number of six, the number va- rying according to the quality of the goods, from which mark the goods had acquired the name of " Crown Clothing" the defendants, who alleged that they had long exported to the colonies quantities of material for clothing not made up bear- ing a trade-mark consisting of an imperial crown between two standards, began to export ready-made clothing ticketed with that mark. On motion by the plaintiffs injunction granted to restrain the defendants from selling or shipping ready-made clothing bearing the mark in question, or any other mark infringing the plaintiffs' rights, on the ground that, although the mark might not deceive if placed side by side with the plaintiffs' mark, it was calculated to obtain for the defendants' goods 364 WELDON V. DICKS. the same name as that by which the plaintiffs' were known, and to deceive an ordinary purchaser who had not an oppor- tunity of comparing the marks. 637. In re Kuhn & Co. [T. M. A. 1875]. November 29, 1878. Jessel, M. R. KUHN & Co. having obtained registration as their trade- mark of a mark to be placed on steel pens for the German market, containing a description of the pens in German, with a figure of a steel pen : On motion by other manufacturers of steel pens : Held, (1.) that the figure of a steel pen was common to the trade, and could not be exclusively appropriated, and that a note must be appended to the registration to the effect that that figure was not claimed per se, but only in combination ; (2.) that Kuhn & Co. must pay the costs of the proceedings, notwithstanding that the applicants had not given them pre- vious notice of their intention to take action in the matter, but that no costs would have been given if it had been fur- ther proved that the mark had only become common by Kuhn & Co.'s mark being copied by English firms without their per- mission, and that their entire mark had been registered for a year and a half before any objection was made to it. 638. Weldon v. Dicks. December 3, 1878. Malms, V. C. 10 Ch. D. 247 ; 39 L. T. N. S. 467. THE plaintiff being the proprietor of the copyright in a novel entitled " Trial and Triumph," first published in 1854, and republished in 1860, and since then long out of print, the defendant in 1875 published a tale under the same name in Boiv Setts, and republished it in a volume, with other tales, at the end of the same year, and again, in a separate form, in 1877. Action for an injunction to restrain the defendant from infringing the plaintiff's copyright in the title. 365 LEVY V. WALKER. Held, (1.) that the title of the plaintiff's book was included in the copyright, by which the book was protected ; (2.) that the fact that the plaintiff's book had been long out of print did not deprive him of the right to protection against infring- ers ; (3.) that the plaintiff was not disentitled by reason of delay, he having commenced his action within two months after he first became aware of the assumption of the title by the defendant ; (4.) that the injunction must be granted. " There can only be acquiescence where there is knowledge. This court never binds parties by acquiescence where there is no knowl- edge, though it is true that knowledge and acquiescence is in many cases fatal to parties." 639. Levy v. "Walker. December 21, 1878 ; February 5, 1879. Hall, V. C. 39 L. T. N. S. 654. Ct. of App. : Jessel, M. R. ; James and Bramwell, L. JJ. 10 Ch. D. 436; 48 L. J. Ch. 273 ; 39 L. T. N. S. 656. THE plaintiff, Mrs. Levy, having (while Miss Charbonnel) carried on business in partnership with the defendant as con- fectioners, under the name of " Charbonnel and Walker" on the dissolution of the partnership and sale of the business under the direction of the court, the defendant purchased the entirety of the partnership business, leasehold premises, stock in trade, good-will, etc., and continued to carry on the busi- ness under the old firm name. On motion by the plaintiffs (Mrs. Levy and her husband) for an injunction to restrain the defendant from using the old firm name, and from representing that the plaintiffs or either of them were or was in partnership with her : Held, on appeal, that the plaintiffs were not entitled to an injunction, on the ground that neither of them could be subjected to any liability by the use of the name by the de- fendant ; and {per James, L. J.), that, in any case, the sale of the business and good-will carried with it the right to use the old firm name. Per James, L. J. " The sole right to restrain anybody from using 366 IN RE WHITELEY. any name that he likes in the course of any business he chooses to carry on is a right in the nature of a trade-mark. That is to say, somebody has a right to say ' You must not use a name, whether fic- titious or real, or a description, whether true or not, which is in- tended to represent, or is calculated to represent, to the world that your business is my business, and therefore deprive me by a fraudu- lent rnisstatement of yours of the profits of the business which would otherwise come to me.' That is the sole principle on which the court interferes. The court interferes solely for the purpose of protecting the owner of a trade or business from a fraudulent invasion of that business by somebody else. It does not interfere to prevent the world outside from being misled into anything. " I hold that the sale of the good-will and business did convey the right to the use of the partnership name as a description of the articles sold in that trade, and that that right is an exclusive right as against the person who sold it, and as against all the world, if any person in that world were representing himself as carrying on the same business." 64O. The Army and Navy Cooperative Society (Lim- ited) v. The Junior Army and Navy Stores (Lim- ited). January 17, 1879. Jessel, M. R. MOTION by the plaintiffs for an injunction to restrain the defendants from using in their business their name (as above), or any other name calculated to deceive, refused, on the ground that the word " Junior " prefixed to the defendants' title was quite sufficient to prevent deception ; and that in any case there could be no mistake, since the only persons admitted to deal with either establishment were sharehold- ers, or persons introduced through shareholders, who would not be deceived. 641. In re Whiteley [T. M. A. 1875]. February 8, 1879. Jessel, M. R. AN application having been made by Whiteley, a universal provider, for the registration of a trade-mark, consisting prin- 367 IN BE FARINA. cipally of two globes, for goods comprised in numerous classes, including classes 11, 12, and 13 (surgical instruments, cutlery, metal implements, etc.), which trade-mark he had used for some years on wrappers, labels, bill-heads, etc., and on metal plates affixed to some of the articles, the application was op- posed as to classes 11, 12, and 13 by a firm of cutlers, who had for many years stamped a single globe on their cutlery and metal goods, and had obtained registration of that mark on goods included in the classes in question. On adjourned summons ; Held, that registration of the applicant's mark should be granted in the classes in question, he giving an undertaking (of which a note was to be entered on the register) not to stamp or impress the mark on any part of the metal of any article in classes 11, 12, or 13, but to affix it to, or use it in connection with, articles in those classes, in the manner in which it had previously been affixed or used. 642. In re Farina [T. M. A. 1875]. (2.) February 13, 1879. Hall, V. C. 27 W. R. 456. J. M. FARINA having long used and recently registered three trade-marks on Eau de Cologne, consisting respectively of a label with his signature, and a seal in the corner, to be applied to the side of the bottle, a circular stamp with three parallel lines running from it, to be applied to the top and neck of the bottle, and a label consisting of a picture of his house, " G-egenuber dem Jiilichs Platz," with medals and let- ter-press, to be applied to the boxes containing the bottles, another maker of Eau de Cologne applied for the registration in his name of three trade-marks similarly composed, to be used in the same manner. On motion by the registered proprietor for an injunction to restrain the second applicant from proceeding with his appli- cation : Held, (1.) that the trade-marks were too similar to those already on the register for registration to be allowed, and that 368 IN RE RABONE BROS. & CO. the fact that the house on the applicant's third mark, described as " Gregeniiber dem Elogius Platz" was said to be a correct view of his house in a street turning out of that square, did not prevent his label from being a colorable imitation of the original, having regard to the similarity in the letter-press and the position of the medals, though these last were not them- selves the same as those in the label registered ; (2.) that the applicant's allegation that he had used his marks for several years without interference did not entitle him to registration, since it was not proved that the original proprietor was aware of such use ; (3.) that the injunction must be granted as to all three marks, notwithstanding that the German Court of Appeal, differing from the Court of First Instance, had, while prohibiting the registration in Germany of the label with the signature, permitted that of the label with the house, the question of resemblance being purely one of fact, as to which the German decisions were to be merely regarded aa opposite verdicts by two special juries. 643. In re Rabone Bros. & Co. [T. M. A. 1875.] In re Burys & Co. (Limited). February 15, 1879. Jessel, M. R. RABONE BROS. & Co. having long used a trade-mark con- sisting of a lion couchant, with their trade name, upon iron bars, sheets, and hoops (included in class 5), and upon a large variety of cutlery, edge tools, and other implements (included in classes 12 and 13), applied for the registration of their trade-mark in classes 5, 12, and 13. Burys & Co. having long used a trade-mark consisting of a lion couchant, with or without their trade name or other additions, upon steel (in- cluded in class 5), and upon edge tools, files, and other goods (included in classes 12 and 13), also applied for the registra- tion of their trade-marks in classes 5, 12, and 13. Each ap- plication was opposed by the other applicants. On adjourned summonses : Held, (1.) that both parties should be registered in class 5, 24 369 IN RE HARGEEAVES. for the goods respectively specified only ; (2.) that since Ra- bone Bros. & Co.'s trade had been mostly confined to the colo- nies, both parties should be registered in classes 12 and 13, upon an undertaking being given by Rabone Bros. & Co. not to use their mark in Europe, and an undertaking by Burys & Co. not to use theirs in Australia, Tasmania, New Zealand, the West Indies, or British Columbia, a note of each undertaking to be entered on the register ; (3.) that inasmuch as Burys & Co.'s marks were cutlers' corporate marks, which had been as- signed to them by one John Bedford, but had not been sur- rendered by him to the Cutlers' Company, or reassigned by the company to Burys & Co., without which Burys & Co.'s title was not recognized by the company, the registration of their marks must be deferred until their title was perfected. 644. Spratt's Patent v. Ward & Co. February 27, 1879. Bacon, V. C. 40 L. T. N. S. 250; 27 W. R. 470. ACTION for an injunction to restrain the defendants from selling dog-biscuits under the name of " Fibrine Dog Cakes" or any other title intimating that their biscuits were manu- factured under Spratt's patent, the property of the plaintiffs. Notice having been given by the defendants that they required the action to be tried before a judge and special jury, on ad- journed summons taken out by the plaintiffs for the trial to be before the judge himself : Held, that there being questions involved beyond a mere simple issue of fact, an order must be made on the summons, as asked. 645. In re Hargreaves [T. M. A. 1875]. February 27, 1879. Hall, V. C. 27 W. R. 450. ON motion for leave to register a new trade-mark consist- ing of an anchor with the words "Anchor Brand" for bacon and ham, being goods included in class 42, in which class there were already four marks registered in which an anchor 370 ORR EWING & CO. V. JOHNSTON & CO. was a conspicuous feature, such four marks being used, not for bacon and ham, but for butter, dog-biscuit, preserved fish and meat, and cattle food, respectively, all of which came within class 42 : Held, that leave would not be given to register the mark in question, being a new mark for part of a class, nor at all, there being more than three similar marks already on the register. 646. Orr Ewing & Co. v. Johnston & Co. March 15, 1879. Chanc. Div. : Fry, J. 40 L. T. N. S. 307 ; 27 W. R. THE plaintiffs being manufacturers and exporters to the Indian markets of Turkey red yarn, on which they had long placed a triangular ticket or label, in green and gold, on which a conspicuous feature was two elephants supporting a banner with an inscription, with a crown between the elephants, the defendants, who had for some years exported other goods to India, with a ticket bearing a figure of the elephant-headed Hindoo goddess Gunputty, began to export Turkey red yarn, and to place upon it a ticket of a similar shape and in sim- ilar colors to the plaintiffs' (the shape and colors being com- mon to the trade), and having upon it two different elephants supporting a banner with an inscription, with the figure of Gunputty between the elephants in place of the crown. The plaintiffs' ticket was proved to have acquired a variety of names in India, among which was the name " Bhe Hathi" or " Two Elephant " ticket. Registration had been refused to this ticket (In re Orr Ewing (70.), on the ground that ele- phants were common to the trade. Action by the plaintiffs for an injunction to restrain the de- fendants from infringing their rights. Held, (1.) that though it was not probable that English purchasers or Indian dealers would be deceived, it was not im- probable that the ultimate purchasers in India would be, in consequence of the defendants' ticket being calculated to ob- tain the same name of " Bhe Hathi " as the plaintiffs' ; (2.) 371 OEK EWING & CO. V. JOHNSTON & CO. that it was not necessary to prove any fraudulent intention on the part of the defendants ; (3.) that the fact that a variety of names had become attached to the plaintiffs' ticket and goods did not destroy their right to protection for the mark, where one of those names was likely to be attributed to the defend- ants' ticket and goods ; (4.) that the two elephants, forming a material and substantial part of the plaintiffs' trade-mark, having been taken by the defendants, the burden was upon them to disprove the probability of deception, not upon the plaintiffs to prove it ; (5.) that the two elephants were not established to be common to the trade, since, though a num- ber of other tickets bearing those animals were produced, it was not shown that they had been used or known ; (6.) that the rights of the plaintiffs in their mark were not affected by the refusal to register, and that the injunction must be granted. 1 1 The court said : " Having de- scribed the tickets, I repeat the ques- tion, Should I be deceived so as to take the one ticket for the other, even if the two tickets were not before me, sup- posing me to be a purchaser of ordi- nary caution and ordinary intelligence ? I answer I should not, and for this reason, that the two tickets certainly do not impress the eye throughout as being the same. There is a great sim- ilarity, undoubtedly; but more than that, I am bound to observe in the one there is a name I can read, and in the other there is a name which I cannot read, therefore there is a very strong difference between them. I can under- stand from whom the one emanated, but I cannot tell from whom the other came. I can read the place of manu- facture upon both, and I can see they are different ; and further than that, that the plaintiffs always used this green ticket with a trade-mark, which trade- mark the defendants have not imitated, and to which trade-mark they have challenged the attention of the reader by marking it as their trade-mark. That question, therefore, I should have to answer in the negative. "But then arises the second question, Have the defendants taken a material and substantial part of the plaintiffs' ticket ? For this purpose it seems to me immaterial to consider whether the ticket is justly entitled to be called a trade-mark strictly or not, for the rea- sons which appear in the course of what I am about to say. Before I can an- swer the question as to materiality of the parts taken I must have regard to two things. In the first place, I must look at the tickets and inquire whether a large part which impresses the eye has been taken, whether a significant characteristic of the ticket has been taken ; and I answer that it has. I find that the two elephants in the two top corners of the plaintiffs' triangular ticket are repeated by two elephants in the two top corners of the defendants' ticket. It is quite true that the ele- phants are in a different position; one set of elephants have howdahs upon them, and the others have not, and the trunks are turned in different direc- 372 IN RE ROTHERHAM. 647. In re Rotherham [T. M. A. 1875]. March, 27, 1879. Bacon, V. C. 27 W. R. 503. MESSRS. ROTHERHAM & SONS, of Coventry, having long manufactured watches and exported them to Messrs. Tod & tions ; but still in each corner there is an elephant that impresses the eye with a considerable amount of similarity. Then, I must next inquire the mode in which the plaintiffs' goods have been accustomed to be sold, and what people have called those goods An- other argument has been addressed to me which requires attention. It is this : It has been proved that the name ' Bhe Hathi ' is not the sole name which has been used for the plaintiffs' goods in the Bombay market. His goods are known as ' Hathi ' yarn, ' Bhe Hathi,' ' Asul Graham,' and various names; and it is argued that where goods bear a number of names another man- ufacturer may introduce a trade-mark, and may appropriate to himself one of those names, though he could not do that if the goods bore one name only. In my opinion, no such argu- ment ought to prevail for a moment. If goods are sold in the market as A. or B. by a particular maker, in my judg- ment no rival manufacturer has the right to appropriate to himself either the name A. or B. Therefore that does not in any way shake the conclusion which I have come to. Now, having arrived at the conclusion that the goods of the plaintiffs which bore the trade- mark in question were known as the ' Two Elephants ' or ' Bhe Hathi ' goods, it follows, in my judgment, that two elephants were a material and sub- stantial part of the plaintiffs' ticket, because they were that part of the ticket which communicated this name to the goods. Lord Westbury, in the case to which my attention has been drawn (Edelsten v. Edelsten, ubi su- pra), observed upon the fact that the goods derived their trade name from that particular part of the ticket. I think, therefore, that where the defend- ants did take these two elephants they took that which was a material and substantial part of the plaintiffs' ticket. Now, what is the result of that ? It appears to me that the result of that is this, to throw upon the defendants the burden of proving that their ticket did not deceive purchasers, so that they should believe that the defendants' goods were the plaintiffs' goods. In the case of Ford \. Forster, James, L. J., makes this observation : ' The plain- tiff makes this prima fade case, that he has a plain trade-mark, a material and substantial part of which has been taken by the defendants. Then the onus is, under those circumstances, cast upon the defendants to relieve themselves from that prima facie liability.' It ap- pears to me to be in accordance with the view of the Lord Justice that Lord O'Hagan made the observations in the case of The Singer Machine Manufact- uring Company v. Wilson, in the House of Lords (p. 395), to which my attention has been drawn this morning : ' If one man will use a name the use of which has been validly appropriated by an- other, he ought to use it under such circumstances and with such sufficient precautions that the reasonable proba- bility of error should be avoided, not- withstanding the want of care and cau- tion which is so commonly exhibited in the course of human affairs. I do not say that the mere possibility of decep- tion should suffice to make appropria- tion improper, but the chance of mis- leading should be jealously estimated with a view to this consideration, even 373 IN RE ROTHERHAM. Co., of Alexandria, by whom they were sold, such watches bearing on the dial the word " Tod" in Arabic characters (and that word, when treated as an Arabic substantive, de- noting " a high mountain "), applied for the registration of that Arabic word as their trade-mark, but registration was re- though ordinary attention might have been enough to protect from mistake.' " It appears to me that I ought, therefore, to hold that, if one man will appropriate to himself a material and substantial part of the ticket of another man, which has been used for the pur- pose of indicating his goods, he ought so to appropriate it with such precau- tions, that reasonable probability of error should be avoided, and therefore I proceed to inquire whether the de- fendants have in this case so appropri- ated that material part, which I hold that they have appropriated, with those due precautions to prevent error. Now, it strikes one at first, in considering and answering that question, that the de- fendants have thought fit to print the name of their firm upon the ticket B. in a language which would be read un- doubtedly by the original purchasers of the goods, but which will not be read by the ultimate purchasers in the In- dian markets, and therefore the pro- tection which would be given by a name capable of being read wherever the goods go is not afforded by their tick- et. To explain that, it is necessary I should observe that, according to the evidence before me at present, when those goods reach Bombay they pass generally into the hands of merchants dealing in a wholesale manner ; that they are then distributed through the intervention of a series of middle-men ; and Mr. Dick has explained clearly that there are numerous classes of middle- men employed in the distribution of these goods over the country. Now, the first class of customers would prob- ably, in my judgment, not be deceived ; but I think, upon the whole of the evi- dence before me, that there is a strong probability that the ultimate purchas- ers, the weavers who buy these goods in the villages, probably also the retail dealers who sell to them, would be de- ceived by the defendants' ticket, and the grounds upon which I have arrived at that conclusion are put as forcibly as they can be by Goolalehund, who is a dealer in English yarn in Bombay, who says that in his opinion the native buyers would be deceived because they would ask for ' Bhe Hathi, and there,' he continued, referring I understand to the defendants' ticket, ' are Bhe' Ha- thi.' It appears to me that there is a great deal of evidence to which I attach weight to show that these goods are sold largely by name, and that, although the first dealers no doubt look at the tickets, and the brokers in Bombay probably look at the tickets, yet that the ultimate purchasers and the pur- chasers from the dealers in Bombay probably do not look at the tickets, and at any rate are liable to be deceived by the name by which the goods are sold. In coming to that conclusion, I do not forget that there is a conflict of evi- dence upon the point ; that there are those who say that native buyers will not be deceived, and there are many who say that the ticket would be known as the Gun putty ticket; that there are those who say that the goods exported by the defendants have received the name of the Gunputty ; but it seems to me that the burden resting, as I hold that it does, on the defendants to show that they have used all due precaution to prevent deception and error, they have failed to discharge that burden." 374 GILLESPIE & CO. V. MAESHALL. fused by the registrar, on the ground that he was instructed by the Commissioners of Patents not to register words in for- eign languages. On motion by the applicants, Held , that the direction given by the commissioners was contrary to the act and ultra vires, and that the registration must proceed. 648. Gillespie & Co. v. Marshall. April 7, 1879. Ct. of App. : Brett, Cotton, and Thesiger, L. JJ. THE plaintiffs, agents for a Canadian firm, contracted with the defendant, a sheet-iron manufacturer, to purchase from him a quantity of " Marshall's Canada Plates" The term "Canada Plates" was proved to have come within the pre- vious twelve years to mean plates of iron for roofing purposes, rolled in a particular manner with respect to grain, and to be usually made by tin-plate makers. Formerly " Canada Plates " were mere plates of sheet-iron cut irrespective of grain, and the defendant, who had occasionally supplied such plates, and on one occasion to the plaintiffs themselves, under the name and mark of "Marshall's Canada Plates," now sup- plied the same article to the plaintiffs, by whom the plates were shipped to their principals in Canada. The latter ob- jected to the quality, and resold them at a loss. Action by the plaintiffs to recover the amount of the loss on the resale. The jury having found at the trial (1.) that the contract was for Canada plates as made by Marshall ; (2.) that the plates were reasonably merchantable ; (3.) that the goods were not in the commercial sense " Canada plates ; " on which verdict judgment was entered for the defendant : Held, on appeal, by Brett and Thesiger, L. JJ., that the contract was for the goods usually supplied by the defendant under the name of ''Marshall's Canada Plates," that the de- fendant was justified in supplying those goods, and that the judgment must stand. Held, by Cotton, L. J., that the contract was for " Canada 375 IN BE BREBNER. Plates" in the commercial sense, to be of Marshall's manu- facture, there being no evidence to show that " Marshall's " plates had a different meaning in the market, and that the plaintiffs were entitled to judgment. 649. In re Brebner. April 30, 1863. Victoria Sup. Ct. : Molesworth, J. 2 W. If W. (1. E. fr If.) 12. ON appeal from a decision of the Geelong District Commis- sioner of Insolvent Estates, by which the appellant, an insol- vent, was refused his certificate on various grounds, among which was one that he had squandered his means in litigation, he having infringed a trade-mark used by other persons on flour, which led to a litigation, which he had to compromise at considerable expense. Held, that the certificate should be suspended for a year, but not refused. " The last ground of objection is the general conduct of the insol- vent, and under this head comes the imputation against him of having imitated the brands or trade-marks of another person. I must regard this as a great dishonesty. It is depriving another man of the benefit of his good name. He is fairly entitled to the benefit of the repute which he has obtained for personal skill and honesty, or the good quality of his produce ; and another person who deprives him of that robs him of his own. Such person, indeed, not only takes that which does not belong to him, but risks the loss by the true owner of his good repute altogether, when an inferior article is substituted for the genuine one. It is also a fraud on the purchaser. Whether he rightly or wrongly thinks an article produced by a particular per- son to be a superior one, he is cheated if an article made by another person is substituted. It is no answer to say to the purchaser, ' I gave you an article substantially as good as that which is represented ; ' he would not have given his money at all if he had known the article was made by another person. If a man wants an article of oak, and gets an article of deal, and pays an oak price, it is no answer to say that deal will do as well. A fraud of this sort must also have been accompanied with a great deal of deliberation and contrivance ; there 376 HENNESSY V. WHITE. must have been combination and systematic continuous action re- solved upon and carried out." 65O. Hennessy v. White. April5, September 2, 1869. Victoria Sup. Ct.: Molesworth, J. 6 W. W. fr A'B. Eq. 216. Victoria Sup. Ct. : 6 W. W. & A'B. Eq. 221. THE plaintiffs being brandy merchants, of Cognac, who sold their brandy in cask and in bottle, the latter being of the bet- ter quality, and who placed on their bottles certain distinctive labels, corks, and capsules, the defendants purchased a large quantity of the plaintiffs' inferior or cask brandy, and sold it in bottles bearing labels, corks, and capsules of a similar shape, color, and design to the plaintiffs', except that instead of " Jas. Hennessy $ Co., Cognac" on the plaintiffs' labels, corks, and capsules, the defendants' had ''Jas. Hennessy $ Co.'s Cognac ; " that instead of an arm with a battle-axe on the plaintiffs' they had a spread eagle ; and that the defend- ants' labels also had in small letters the words " Bottled by T. $ W. White, Melbourne.' 11 And there were some minor differences. On motion by the plaintiffs: Injunction granted to restrain the defendants from infring- ing the plaintiffs' rights. Per Molesworth, J. " According to the authorities, an intention to produce a mistake is sufficient to warrant the interference of this court by injunction. According to the authorities, also, it is not necessary that the intention should be to deceive persons who care- fully examine. It is enough that there are a class of customers who examine so carelessly that they would be deceived by the resemblance between the two." " I think a new feature which has not been present in any other case, and is, therefore, not touched by the language of the other cases, is one which I ought to act upon here ; that is, that the makers of articles of different qualities are entitled to brand their best article in a particular way, to show the superior value they put upon it I put this case upon the particular ground, that an article of Hen- nessy & Co.'s manufacture of a higher quality has had a particular 377 HENNESSY v. HOGAN. mark used for it, and that the defendants' brand is an attempt to de- ceive, probably not the direct purchaser of the article, but the ulti- mate consumer." Per Stawell, C. J. " If a brandy different from that which the manufacturer bottled is put into bottles and sold as the manufacturer's bottled brandy, the fact that it is the manufacturer's bulk brandy does not make the sale less an imposition." " We were invited to consider the arm and battle-axe on the re- spondents' label as their trade-mark, and, because it was not adopted by the appellant, to disregard all other matters as of no importance ; but this is precisely the course which the courts have carefully avoided, namely, selecting any one or more matters, either of resemblance or difference, and considering them essential, or attempting to define a priori what might or might not constitute an improper imitation by one person of the manufacture of another, for such a course would manifestly offer inducements for fraud ; persons so disposed would then endeavor to avoid the one or more objectionable points, but yet so present the particular article for sale as to impose on the un- wary, who accept as sufficient proof of genuineness a resemblance in the main, without closely examining details. An imitation of the trade-mark would, no doubt, render the case still stronger against the appellant ; but the mere substitution of one mark for another, both being in the same position and of the same color, does not, in our opinion, neutralize the effect of all the other points of resemblance." 651. Hennessy v. Hogan. April 29, 1869. Victoria Sup. Ct.: Molesworth, J. QW. W. Sf A'B. Eq. 225. THE plaintiffs being brandy merchants, of Cognac, who sold their brandy in cask and in bottle, the latter being of the bet- ter quality, and who placed on their bottles certain distinctive labels, corks, and capsules, the defendants purchased a quan- tity of the plaintiffs' inferior or cask brandy, and sold it in bottles bearing labels, corks, and capsules of a similar shape, color, and design to the plaintiffs', except that the name of the plaintiffs did not appear on the defendants' corks and cap- sules ; that the defendants used the device of an arm holding a dart, instead of an arm holding a battle-axe ; and that the 378 WOLFE V. HART. defendants placed on their labels, in bold type, the words " Bottled by Hogan, Money Co" On motion by the plaintiffs : Injunction granted to restrain the defendants from infring- ing the plaintiffs' rights. " It is not necessary that the imitation should be such as to deceive a person accurately scrutinizing it. It is sufficient if it is done with the intention of deceiving any class of purchasers, or to enable sub- vendees to make the article in question more attractive." 652. Hostetter v. Anderson. February 17, 1870. Victoria Sup. Ct.: Molesworth, J. l V. R. (1 W. A'B.lf W.)Eq.7; 1 A.J. 4. THE plaintiffs being American manufacturers of bitters, which they sold in bottles having the words "Dr. J. Hostet- ter's Stomach Bitters " moulded in them, and labelled with the words " Hostetter 's Celebrated Stomach Bitters" the de- fendants bought up a considerable quantity of the plaintiffs' moulded bottles, and sold them refilled with other bitters, and labelled " Celebrated Stomach Bitters" but the labels did not in form or color resemble those used by the plaintiffs. On motion by the plaintiffs injunction granted to restrain the defendants from infringing the plaintiffs' rights. 653. Wolfe v. Hart. July 8, September 19, 1878. Victoria Sup. Ct.: Molesworth, J. 4 Viet. L. R. Eg. 125. Victoria fry. Ct. Viet. L. R.Eq. 134. THE plaintiff selling gin under the name of " Udolpho Wolfe's Aromatic Schiedam Schnapps" in square moulded bottles, enclosed in wrappers bearing inscriptions in blue and red inks, the defendant, a former agent for the plaintiff, began to sell gin under the name of " Hart's Imperial Schiedam Schnapps" or " Imperial Schiedam Aromatic Schnapps," and to sell them in somewhat similar bottles, enclosed in somewhat similar wrappers to the plaintiff's. 379 IN BE FARINA. On motion by the plaintiff for an injunction to restrain the defendant from infringing the plaintiff's rights : Held, by Molesworth, J., that the words " Aromatic Schie- dam Schnapps " were descriptive and incapable of appropria- tion, but that the bottles and wrappers were intended and calculated to deceive, and that an injunction must be granted in that respect. Held, on appeal to the full court, that the injunction must be affirmed as granted. Per Stawell, C. J. " Nor do I concur in the argument that we are to consider the intelligence or want of intelligence of the purchaser. We ought not to pronounce a decision which would be applicable to the one and inapplicable to the other, or ignore an uneducated and illiterate person, who may desire to ascertain whether the article he is about to purchase is the same he has had before. We are to con- sider whether the infringement of the plaintiff s rights has been proved, not by taking particular isolated points, but by looking at the general resemblance of the packages, labels, bottles, and other points." 654. In re Farina [T. M. A. 1875]. (3.) April 22, 1879. Hall, V. C. J. M. FARINA having long used, and recently registered, two trade-marks on Eau-de-Cologne, consisting respectively of a label with his signature and flourish, the words " Q-egen- ilber dem Jillichs Platz" and a seal in the corner, to be ap- plied to the side of the bottle, and a label bearing a circular seal with three parallel lines running from it, to be applied to the top and neck of the bottle, another manufacturer used on the sides of his bottles a label of similar appearance bearing the signature " Joseph Anton Farina, Gegeniiber dem Central Bahnhof," with a similar flourish, and with a similar seal in the corner, and on the tops and necks of his bottles a label with a circular seal and three parallel lines, similar to J. M. Farina's second label, though differing in some details. The latter manufacturer applied for the registration of the two circular seals used respectively in the corner of the first 380 ROYAL BAKING POWDER CO. V. ROYAL CHEMICAL CO. label and on the top of the bottle, without other accom- paniments. On motion by J. M. Farina for an injunction to restrain the rival manufacturer from proceeding with his application for registration, Held, (1.) that the two seals might be regis- tered, but only, as to the first, with a note that it was not to be used with, or as part of any label similar to or only color- ably differing from, J. M. Farina's first label ; and, as to the last, with a note that it was not to be used upon the top or cork of any bottle of Eau-de-Cologne, or with or as part of any label similar to, or only colorably differing from, J. M. Farina's second label ; (2.) that the applicant for registration must pay the agreed costs of the application. 655. In re Worthington & Co. May 9, 1879. Jessel, M. R. BASS & Co. having long used and since registered as their trade-mark on ale and beer (included in class 43) tke figure of a triangle, which in practice was colored red, and from which the beer was known as " triangle beer," Worthington & Co. applied for the registration of a new mark to be used on beer, wine, and spirits (all these articles being included in the same class, No. 43, in which Bass & Co.'s mark was regis- tered), such new mark, consisting of a triangular device which contained a church in the centre, and the words " Beccles Brewery Established 1830" in a border. On motion by Bass & Co. injunction granted to restrain Worthington & Co. from taking any further proceedings for the purpose of obtaining the registration for which they ap- plied, on the ground that the marks were so similar as to render deception probable. 656. Royal Baking Powder Co. v. Royal Chemical Co. 1873. N. Y. Superior Court. Not reported. THE plaintiffs being manufacturers of baking-powder ap- plied the designation " Royal " to their product. Defendant 381 PROCTER & GAMBLE V. McBRIDE ET AL. used its corporate name upon the same class of goods, giving a special prominence to the word " Royal." Action for an injunction and account. Held, that the word " Royal" as used by plaintiff, was a valid trade-mark, that the same had been infringed by de- fendant, and that plaintiff was entitled to an injunction as prayed for with costs. 1 657. Procter & Gamble v. McBride et al. 1875. C. C. U. S. N. D. Ill IB U.S. Pat. Gaz. 1278. THE report of this case is in the language of Judge Blod- gett of the court in which it was decided : " A suit was brought by Procter & Gamble against McBride & Co., of this city, to enjoin the use of a trade-mark which had been adopted by Procter & Gamble for a certain brand of soap which they manu- factured. Procter & Gamble claimed that they had introduced to the public, under a trade-mark of their own, a brand of soap under the term ana* designation of ' Mottled German Soap,' and they had adopted as a trade-mark upon their packages those words with a cir- cle with a moon and stars in the middle. The defendants, McBride & Co., who were manufacturers in this city, had put upon the market a brand of soap which they termed ' S. W. McBride's German Mottled Soap,' and they had marked these words upon the outside of their pack- ages in combination with a crescent, within which was a single star instead of a number of stars The defendants departed widely from the complainant's trade-mark. They changed the arrangement of the words, so instead of its being ' Mottled German Soap ' it was ' German Mottled Soap,' and instead of a circle containing several stars it was a crescent containing a single star prefixed by the name of each maker ; and it was argued in that case there could be no pos- sibility of intelligent consumers being deceived. So strong was the case made before me on an application for an injunction that I refused 1 In an action by the same plaintiffs court against Jenkins et al., it was held against Sherrill et al., in the N. Y. Su- that the word " Royalty " was an in- preme Court, the word " Royal " was f ringement of " Royal " applied to bak- sustained as a mark for flavoring ex- ing powder. See R. B. P. Co. \. Me- tracts as against the words " Royal Quade, 674. Standard; " and in an action in the same 382 SINGER MANUFACTURING CO. V. LARSEN. the injunction ; but after the proofs were taken and the case brought to hearing before Judge Drummond, he sustained the infringement and ordered a perpetual injunction against the defendants. It was also shown in that case that " mottled German soap " or " mottled soap ' had been in common use in the trade for nearly fifty years, and that ' mottled soap ' was a commodity well known to the trade ; but Judge Drummond sustained that trade-mark, as the exclusive prop- erty of the complainant, and held that the defendants infringed." 658. United States v. Steffens. s. c. u. s. Held, that the acts of Congress providing for the registra- tion of trade-marks are unconstitutional and void. 659. Singer Manufacturing Co. v. Larsen. 1878. C. C. U. S. N. Dist. III. Chicago L. N. November 6, 1880. Held) that the complainant could not enjoy an exclusive right to the name or designation " Singer" the same being a word descriptive of a particular kind of machine. Drummond, J. " As I understand this case, I think there can be no doubt that the plaintiff cannot claim the exclusive right to manu- facture the ' Singer Sewing Machine.' All that it can claim is to make a machine of its own peculiar manufacture, with a device so that it becomes in the nature of a trade-mark. Otherwise, after a patent has expired which has established the nomenclature of a sewing-ma- chine, as the Howe patent, or the Wilson patent, the patentee might go on and have the benefit of the patent indefinitely. " On a machine called ' The Singer Sewing-Machine ' there were various patents. These patents have all expired, and nothing can therefore be claimed under them. Other persons cannot be prevented from manufacturing a machine like the Singer sewing-machine, and which may be called, to distinguish it from other machines, ' Singer's Sewing-Machine' If a sewing-machine has acquired a name which designates a mechanism or a peculiar construction, parts of which are protected by patents, other persons, after the expiration of the pat- ents, have the right to construct the machine and call it by that name, because that only expresses the kind and quality of the machine. I 383 SINGER MANUFACTURING CO. V. LARSEN. have read the reports of the case of the Singer Manufacturing Com- pany v. Wilson (477), .... and I do not know that I controvert the general rule there laid down, that there must be something to indicate that the thing manufactured is not the same as that of the complain- ant ; in other words, to show it is not manufactured by the plaintiff. That is, it is a question of manufacture, not of name. A person could not claim a right to construct a peculiar form of barrel as to dimen- sions and capacity, irrespective of any marks or brands impressed upon it. That of itself could not be a lawful trade-mark. The same rule would be applicable to the construction of a wagon or carriage, which, owing to some peculiarity, might possess a particular name as that of the original manufacturer. A man might construct a wagon or carriage precisely like it, and he would not be liable if he did not claim in some form that it was constructed by the manufacturer. The only principle upon which an action can be sustained under such cir- cumstances, as I understand, is through a trade-mark. If there were a valid trade-mark called a ' Singer Machine,' then there would be some force in the plaintiff's claim. Here the plaintiff and the defend- ant have a trade-mark somewhat similar, and if there is on the ma- chine manufactured by the plaintiff a valid trade-mark to indicate that it is of the plaintiff's manufacture, no one else ought to be per- mitted to put anything on his machine to show that it has been man- ufactured by the plaintiff ; that is, to use the same trade-mark. It may be the defendant has made his machine to imitate the plaintiff's, and to induce people to believe that it is the same. But as I have said, I do not think, under the circumstances of this case, there can be a trade-mark for the name, ' Singer Sewing-Machine" " An illustration is furnished in the opinion of the Lord Chancellor in the House of Lords in the case already referred to. A carriage called a ' brougham ' had been in very general use for many years. If that were devised by a man of the same name, so that, from its pe- culiarity of construction it was generally known by that name, it cer- tainly cannot be claimed that the man who devised it, or his assignees, would have a right to construct a ' brougham ' for all time to come. If no patent existed upon it, or any of its parts, any one who has the requisite skill could construct just such a ' brougham ' as was origi- nally constructed. There could in such a case be no trade-mark which the law would protect in the name ' brougham,' and I therefore do not think that the opinion of the House of Lords can be construed 384 WAMSUTTA MILLS V. ALLEN. to mean what is claimed by the counsel of the plaintiff in this case. So that, while I hold that the defendant is not prevented from con- structing a ' Singer Sewing- Machine,' still, he cannot be permitted to do any act the necessary effect of which will be to intimate, or to make any one believe, that the machine which he constructs and sells is manufactured by the plaintiff. Neither has he the right to use any device which may be properly considered a trade-mark, so as to induce the public to believe that his machine has been manufactured by the plaintiff; and, therefore, I shall modify the injunction in this case by simply requiring the defendant to refrain from selling any Singer sewing-machines manufactured by any person or company other than the plaintiff, without indicating in some distinct manner that the said machines were not manufactured by the Singer Manu- facturing Company." 1 66O. Wamsutta MiUs v. Allen. 1878. Com. PL of Ph ila. P. W. N. COMPLAINANT alleged that it had long been accustomed to attach the name " Wamsutta Mills " to cotton or muslin shirt- ings manufactured by it, that its goods had become well known as " Wamsutta " muslins, that the defendants, dealers in gentlemen's furnishing goods, were using the name " Wam- yesta " on shirts made from muslin of an inferior quality, and advertising their shirts as made of " Wamyesta " muslin, whereas there was no such brand of muslin known. Action for injunction and account. Held, that complainant was entitled to an injunction to re- strain the use by defendants of the word " Wamyesta " on shirts not made of complainant's goods. 1 See Singer Man. Co. v. Brill. It and still be fraudulent to use the fol- cannot be disrespectful to remark, that lowing : it is not difficult to understand how it might be open to the public to use a mark as follows : LARSEN'S SEWING-MACHINE. Made according to the principle of the Singer machine. 25 ~385 THE SINGEE MACHINE. ' This machine was manufactured by Larsen. KELLY V. BYLES. The Court. " It must be obvious that the question is not whether experts would be deceived, but rather whether persons who buy would probably be deceived by the name which the defendants have adopted. Upon this point we are of opinion that the resemblance between the two words is of a character to deceive and mislead a certain class of purchasers those who are acquainted with the reputation of the Wamsutta muslin, but who have little knowledge of the fabric itself. Such persons might readily confuse the two names and purchase the defendants' shirts for shirts made of the plaintiffs' muslin. ' Wam- yesta ' might well be mistaken by many people for * Wamsutta,' in view of the fact that, as appears by the proofs, there is only one mus- lin manufactured which is known by a name resembling that which the defendants use. It is difficult to conceive that the defendants have adopted this name innocently or by accident. The resemblance is strongly suggestive of the hypothesis that the defendants have adopted it because of the facility with which the two words may be confused in the minds of a certain class of purchasers. I need not cite authorities to show that a man may acquire property in a trade- mark, or that having acquired it he is entitled to the restraining proc- ess of a court of equity to prevent the injury he will experience by its being unlawfully appropriated or imitated by others " As to the point made by the defendants that the plaintiffs are manufacturers of muslins and the defendants are manufacturers of shirts, and therefore the plaintiffs cannot complain of the use of their trade-mark, or a servile imitation of it by defendants when affixed to their shirts, we do not see the force of such reasoning. It is too plain to require any demonstration that if the defendants manufacture shirts of a muslin greatly inferior in quality to the plaintiffs' muslin, and pass them off upon the public as shirts made of the plaintiffs' muslin, the plaintiffs may suffer greatly thereby in their reputation as manu- facturers, and consequently in their sales of the muslin which they manufacture. Against this injury the plaintiffs are entitled to be protected by the writ of injunction." 661. Kelly v. Byles. 1879. 40 L. T. 623. PLAINTIFF had published since 1852, numerous trade direc- tories, which he called "post office " directories, and was the 386 TAYLOR V. BOTHIN. registered proprietor of " The Post Office Directory of the West Riding of Yorkshire." The defendants compiled a directory of the town of Bradford, which they proposed to call the " Post Office Bradford Directory." In an action to restrain the use of the words "post office" etc., Held, that the taking of part of the title of a registered copyright work without fraud, and without any circumstances from which an animus furandi could be inferred, was not an infringement ; that as to plaintiff's property in the name "post office" as a quasi trade-mark, a right of that kind could only attach where the wares offered for sale were so nearly identical that the use of the particular trade-mark or name might mislead unwary pur- chasers. 662. Williams v. Adams. 1879. C. C. U. S. N. Dist. III. 7 Rep. 613. COMPLAINANT had long used the word " Yankee " to de- signate his soap; defendant used the same word on similar goods. On suit in equity, Held, that the word " Yankee " was a valid trade-mark, and that complainant was entitled to an injunction. 663. Wharton v. Thurber et al. 1879. Supreme Court N. Y. ; General Term. Not reported. PLAINTIFF used as a trade-mark for his whiskey the words " Chestnut Crrove ; " defendants inadvertently employed the same designation, but, upon being notified, discontinued its use. Action for injunction and account. Injunction granted, but without costs or damages. 664. Taylor v. Bothin. 1879. U. S. C. C. Dist. Cal. S Rep. 516. IT appeared that complainant had discovered a process for making a valuable yeast powder, and that afterward with de- 387 TAYLOR V. BOTHIN. fendant had manufactured and sold the same under the name of " Mrs. Mills' Cream." In the second year of their connec- tion, defendant secretly applied to the patent office and reg- istered the words " Mrs. Mills' Cream " as a trade-mark for the powder. On a suit in equity, Held, that the registration was invalid, and that the parties were equally entitled to use the name " Mrs. Mills' Cream:' Field, J. " The only serious question for deliberation is, whether the complainant is entitled to the exclusive use of the trade-mark, or only to a joint or equal use of it with the defendant. Had the name been suggested' and used by the complainant before the business con- nection with the defendant, there would be no doubt of his exclusive right to it. But it having been suggested and adopted after that con- nection was formed, upon a consultation of the parties on the subject, and then used for their joint benefit, we are led to the conclusion that they are equally entitled to its use after that connection ceased. Clearly the defendant has no such exclusive right, and the represen- tations which he must have made to obtain the letters of registration required by law, " that no other person, firm, or corporation " had the right to its use, are inconsistent with the facts. It matters not whether the arrangement between the parties constituted a partnership, or whether the complainant was to receive a portion of the profits of the business as his salary ; in either case, it was his process of mak- ing a valuable powder which was to be used, and it was to his dis- covery that the name was to be given. We do not understand that when the complainant said he gave his process to the defendant, he intended to abandon all right to the use of it, and to the manufacture of the powder designated by its new name ; but only that he made the defendant acquainted with the secret of the process the manner in which the powder was to be made. Having imparted that knowledge, and the two, in conjunction, having subsequently adopted the name, they must be regarded as equally having the right to use it." 388 CONSOLIDATED FRUIT JAB CO. V. THOMAS. 665. Consolidated Fruit Jar Co. v. Thomas. 1879. C. C. U. S. Dist. N. J. Not yet reported. THE Consolidated Fruit Jar Company had used as a trade- mark a monogram, consisting of the initials of its corporate name, which it applied to its goods in characteristic ways ; defendant sold goods of the same nature, to which a monogram composed of different letters had been applied, to all the in- tents and purposes, in the precise manner that had been prac- tised by complainant. On motion for preliminary injunction, Held, that complainant was entitled to an injunction ; and that the fact that it had neglected to sue for a considerable period was immaterial as affecting the issuance of the writ. Per Nixon, J. " There is no difficulty about this case in regard to the infringement. The embarrassment arises in determining to what extent the injunction should go, or what it should include. " The complainant corporation and the Hero Glass Works, which are the producers of the articles complained of, are the principal makers of fruit-jar caps in the country ; any interference with the business of the one would practically give a monopoly to the other. But such a consideration should not and will not hinder the court from protecting the complainants in all their rights. The question of infringement is ordinarily more easily determinable in trade-mark cases than in patent cases, because they are less dependent upon the testimony of witnesses. Whether one thing is a colorable imitation of another is answered most satisfactorily by judicial inspection and comparison of the two ; and if the court is convinced by such inspec- tion and comparison that the two things are near enough alike to deceive or mislead the ordinary purchaser in the exercise of ordinary care and caution, no amount of expert evidence of substantial differ- ences would justify the court in withholding the injunction. " The infringement by the defendant is clear; the monograms differ because the letters are not the same ; but it is not necessary for the complainants to show an exact imitation or similarity before they are entitled to the protection of the court. No matter how vague may be the resemblance, if it be sufficient to mislead the public, it is un- lawful, and, when unexplained, it is the duty of the court to infer in- 389 CONSOLIDATED FRUIT JAR CO. V. THOMAS. tent, and to hold that the, resemblance was adopted for the purpose of deception " It is difficult to lay down a general rule, which will be applicable to all cases, of what constitutes the infringement of a trade-mark. It may be said, however, as was substantially held by the Supreme Court in McLean v. Fleming (6 Otto, 245) [580], that an injunction should be granted when the imitation is so close, that by the form, marks, contents, words, or their special arrangement, or by the gen- eral appearance of the infringing device, purchasers exercising ordi- nary caution are liable to be misled into buying the article bearing it for the genuine one. " Both parties in the present case have the right to manufacture and sell fruit-jar caps. The complainants have adopted and registered as their trade-mark a monogram composed of the initial letters of the corporation name. They began its use early in the year 1878, to distinguish their manufacture from the product of other houses, and particularly of their great rival, the Hero Glass Works. They placed the monogram on the circular depression on the top of the cap. The caps were put up for the market in wooden boxes, in each end of which the trade-mark was printed in red ink. Each box was also fur- nished with printed circulars on which the monogram appears near the bottom between the words ' like ' and ' this.' " The jar caps in the defendant's possession have also a monogram, put in the circular depression on the head of each cap ; the same was also printed in red ink on the end of the wooden boxes containing the caps, and the boxes are supplied with circulars in a style of print- ing to give them the general appearance of the complainants' cir- culars, and also showing in the same relative position a printed mono- gram between the words ' like ' and ' this.' " It is proved that all these resemblances have been adopted and used by the manufacturers of the defendant's caps since the registry and use of the complainants' trade-mark. They are not accidental, but intentional and misleading, and therefore unlawful. "The court suggested to counsel on the argument, that the delay of the complainants in applying to the court for the injunction until the season for furnishing fruit-jar caps had fully arrived, had a suspicious aspect, and that we should be reluctant to interfere with the defendant whatever might be the legal rights of the complainants if there had been laches in bringing the suit. The suggestion was, perhaps, un- 390 KIDD V. JOHNSON. called for by the facts of the case, but it was prompted by the ex- treme sensitiveness which always springs up, when any disposition is suspected of using the process of the court to obtain a temporary business advantage. " There has been large discussion of the question how far laches, in stopping the infringement of a trade-mark, will deprive a complainant of the benefits of a preliminary injunction. But that discussion has been put to rest, so far as this court is concerned, by the recent de- cision of the Supreme Court in the case of McLean v. Fleming, supra, where it was held that acquiescence of long standing was no bar to an injunction, although it precluded the party acquiescing from any right to an account for past profits. " This was only anticipating the later decision of the High Court of Justice in England in the case of Fullwood v. Futtwood, 9 L. R. Ch. Div. 176 [602], where the single question involved was the effect of delay in prosecuting for the infringement of a trade-mark, and where the defendant set up as a defence to an application for an injunction, that the plaintiff had known all the material facts stated in the plead- ings for a period of at least two or three years before the action was brought. The court said this was no defence, and that where an in- junction is sought in aid of a legal right mere lapse of time was no bar to granting it. The injunction was treated as always a matter of course, if it appeared that the legal right existed. " The court is of the opinion that the complainants are entitled to an injunction restraining the defendant pendente lite from the use of the monogram on the fruit jar caps, and on the ends of the boxes, and from circulating the printed circulars so closely resembling the circulars of the complainants, and it is ordered accordingly." 666. Kidd v. Johnson. 1879. S. C. U. S. To appear in 102 U. S. IN 1849 one S. N. Pike, doing business in Cincinnati as wholesale dealer in whiskey, adopted as a trade-mark for his manufacture the words " S. N. Pike's Magnolia Whiskey-, Cincinnati, Ohio" enclosed in a circle, which he placed on packages containing the liquor. Between that date and 1863 he was in partnership with different persons, doing business there under the name of S. N. Pike & Co. In 1863, having 391 KIDD v. JOHNSON. dissolved his connection with others, he took as partners two of his former clerks, Tilney and Kidd, continuing the original firm name. The same trade-mark was used by the new firm as it had been by the preceding firm, without any change. At this time, and subsequently until its sale in 1868, the real property in Cincinnati, upon which the business was conducted, and the distillery, with its fixtures and appurtenances, be- longed to Pike individually. In 1868 the firm removed its entire business to New York city, and Pike sold the real prop- erty in Cincinnati, and the stills, tubs, engines, boilers, tub- ing, and all apparatus in his distillery, to the firm of Mills, Johnson & Co., who were also engaged in the manufacture and sale of whiskey at that place. At the same time Pike ex- ecuted and delivered to the purchasers a separate instrument, stating that, having sold his premises to them, he extended to them and their successors the use of all his brands formerly used by him in his Cincinnati house. Mills, Johnson & Co. continued for some years the manu- facture and sale of whiskey on the premises thus purchased, using without objection from any one the brands previously used by S. N. Pike & Co. They were succeeded in business by the complainants, who, it is admitted, are entitled to all the rights which they possessed in the trade-mark in question. S. N. Pike died in 1872, and his surviving partners formed a new partnership, under the name of George W. Kidd & Co., which was subsequently dissolved, and to its business Kidd, the appellant in this case, succeeded. Held, that the trade-mark was the exclusive property of Mills, Johnson & Co. Per Field, J. " As to the right of Pike to dispose of his trade- mark in connection with the establishment where the liquor was manufactured, we do not think there can be any reasonable doubt- It is true, the primary object of a trade-mark is to indicate by its meaning or association the origin of the article to which it is affixed. As distinct property, separate from the article created by the original producer or manufacturer, it may not be the subject of sale. But when the trade-mark is affixed to articles manufactured at a particular 392 SAWYER V. HORN. establishment and acquires a special reputation in connection with the place of manufacture, and that establishment is transferred either by contract or operation of law to others, the right to the use of the trade-mark may be lawfully transferred with it. Its subsequent use by the person to whom the establishment is transferred is considered as only indicating that the goods to which it is affixed are manufact- ured at the same place and are of the same character as those to which the mark was attached by its original designer." 667. Sawyer v. Horn. 1880. C. C. U. S. Dis. Md. Not yet reported. COMPLAINANT alleged that to individualize and identify his bluing he adopted a peculiar and original form or style of package, consisting of a blue cylinder having a red top, and that his goods had long been known and identified by consum- ers by the peculiar appearance of the package. It was, also, set forth that his method of packing, includ- ing the size, shape, and color of his cartoons or large packages, was original with him, and had never been varied. The respondent was shown to have knowingly made and sold bluing put up in boxes and packages which involved the employment of imitations of all the leading incidents and features of complainant's article ; complainant's goods being copied in substantially every particular, except that defendant used his own name and made changes in the phraseology of his labels. Suit in equity for injunction and account. Held, that complainant was entitled to an injunction re- straining the imitation of his package, and to an accounting as prayed. Per Morris, J. " We have come to the conclusion in the case be- fore us, that the respondent should be enjoined from putting up his goods in the manner in which he has been doing as shown by the exhibit, or in any other manner so simulating the form, color, labels, and appearance given by the complainant to his goods as to mislead purchasers into mistaking one for the other. 393 SAWYER V. HORN. " What we decide is, that whether the complainant has a trade-mark or not, as he was the first to put up bluing for sale in the peculiarly shaped and labelled boxes adopted by him, and as his goods have become known to purchasers and are bought as the goods of the complainant by reason of their peculiar shape, color, and label, no person has the right to use the complainant's form of package, color, or label, or any imitation thereof, in such manner as to mislead pur- chasers into buying his goods for those of the complainant, whether they be better or worse in quality. " And finding from the exhibits and proof in the cause that the bluing put up by the respondent is not only well calculated so to mislead purchasers, but has actually done so to the injury of the com- plainant, we are of opinion that respondent should be perpetually en- joined, and that he should account to the complainant for the dam- ages sustained by him." The final decree was as follows : " This cause having come on to be finally heard at this, the term aforesaid, upon the pleadings and proofs, and having been fully ar- gued by the counsel for the respective parties, and fully considered by the court, it is thereupon, this 17th day of February, in the year 1880, by the Circuit Court of the United States, in and for the Dis- trict of Maryland, adjudged, ordered, and decreed : " I. That heretofore, to wit, as early as the year 1866, the com- plainant was engaged in the manufacture of bluing, at the city of Boston, in the State of Massachusetts, and that, in order to distinguish and identify his bluing from that of all other producers, he caused the same to be packed in cylindrical boxes enclosed in a blue label and provided with a red seal at their tops, each box arranged to pre- sent the appearance of a blue cylinder having a red top as shown with sufficient accuracy in the illustration marked ' complainant's small box,' and hereto appended and made a part hereof; that such box presenting the appearance, to wit : the appearance of a blue cylinder having a red top, was originated and first used by the com- plainant, and by him adopted as a means of distinguishing and iden- tifying the bluing made by him, and has been employed by him continuously, since the day of its first use and adoption, to indicate and signify the origin of his goods. " II. That the complainant's bluing is generally known and identi- fied by consumers in the city of Baltimore and elsewhere by the 394 THORLEY'S CATTLE FOOD CO. V. MASSAM. appearance of the said box by him originated and used as aforesaid, to wit : as being packed in a blue cylinder having a red top. " III. That the respondent, James G. Horn, has violated and in- fringed the rights of the complainant by preparing and vending blue in boxes having the appearance of blue cylinders with red tops, and prepared in such close imitation of complainant's bluing as to deceive the public and cause respondent's bluing to be purchased by consum- ers as and for the bluing of complainant. " IV. And it is further adjudged, ordered, and decreed that an in- junction issue perpetually enjoining and restraining the respondent, James G. Horn, his servants, agents, and workmen, and all persons acting for him or under his directions, from packing, or selling, or of- fering to sell bluing put up in boxes with labels in imitation of the boxes and labels used by complainant, as shown in these proceedings, to wit, in cylindrical boxes with blue labels and red tops (one of said respondent's boxes being hereto appended), and from putting up, pack- ing, selling, or offering to sell any bluing prepared in any manner so similar to the boxes, labels, and appearance of complainant's bluing as to cause confusion in the market and mislead purchasers into mistaking respondent's bluing for the bluing prepared by the com- plainant. " V. And it is further adjudged, ordered, and decreed that the complainant is entitled to have and recover the profits which have been diverted from him by reason of said infringement upon his rights, as aforesaid, and by reason of the sales of bluing made by re- spondent in imitation of said complainant's goods ; and to enable the court to ascertain the said profits to which the complainant is entitled, it is ordered that this cause be, and the same is, hereby referred to G. Morris Bond, Esq., one of the commissioners of this court, with directions to state an account thereof, from the proceedings and proofs now in the cause, and such other proof as may be laid before him. " VI. And it is further adjudged, ordered, and decreed that the said respondent, James G. Horn, pay the costs of these proceed- ings." 668. Thorley's Cattle Food Co. v. Massam. 1880. English Ct. App. 42 L. T. Rep. N. S. 851. THE facts proved in evidence were briefly these : Joseph Thorley, the original maker of the cattle food, died 395 THORLEY'S CATTLE FOOD CO. V. MASSAM. in 1876, having by his will directed that his business should be carried on by his executors, with the assistance of his son Joseph Thorley. J. W. Thorley, whose name was given to the plaintiff com- pany, was a brother of the late Joseph Thorley, and both brothers were equally acquainted with the secret for com- pounding the cattle food, which they had obtained from a person named Fawcett. J. W. Thorley had at one time been in the employ of his brother, and being acquainted with the business, he was, on the death of Joseph Thorley, induced to join in getting up a company, which was registered, with a capital of 200, divided into 4,000 shares of Is. each, J. W. Thorley having signed the memorandum of association as the holder of one share. In the action of J. W. Thorley'' s Cattle Food Company v. Massam, witnesses were examined on both sides upon the question whether the article sold by the defendants was the same as that manufactured by the plaintiffs. Among the wit- nesses for the plaintiffs were several well-known analytical chemists. The effect of their evidence was that, although the analysis they had made differed in some unimportant items from that of the defendants, the variation was so slight that the two articles, for all purposes of food, were essentially the same. The differences might be traced to the variation in the quality of the ingredients used. On the other side, the evidence went to show that there was an ascertainable dif- ference between the two compounds, and that as the defend- ants' mixture contained more spice and more sugar, it was likely to be more palatable to the cattle than the plaintiffs' mixture ; but it was admitted that if the two mixtures were placed before a cow in the same manger, she would, in all probability, be unable to distinguish the difference, and would eat them both. In the second action, by the executors against the company, witnesses were examined upon the question whether or not the travellers sent round the country by the company had or had not represented to the purchasers, or led them to believe, that J. W. Thorley & Co. were the succes- 396 THORLEY'S CATTLE FOOD CO. V. MASSAM. sors to the business formerly carried on by Joseph Thorley, deceased, and that they were, in fact, carrying on that busi- ness. The company had issued an almanac in which appeared a report and analysis by Dr. Hassall of " Thorley 's Food for Cattle," which had been made at the request of Joseph Thor- ley, and on the article made by him ; and a list of the prizes obtained for cattle through the use of " Thorley's Food for Cattle ; " though in fact the condiment had been that sup- plied by Joseph Thorley. There was also in the almanac the following statement : " The executors have continued to manufacture some food and sell it under the name of ' Joseph Thorley,' which they have registered as their trade-mark. The public may by this ruse be induced to imagine that Mr. Joseph Thorley is still living and manufacturing the cattle food which is being sold by his executors, whereas the only surviving Mr. Thorley (Mr. J. W. Thorley) has no connection whatever with the persons trading under the name of the late Joseph Thorley." The packets in which the article sold by the company was made up were of the same shape and size, and wrapped in the same colored paper, as those used by Joseph Thorley and by his executors, and bore the same directions for use. But it was stated that the company sent out their packets in boxes of a different shape and size from those used by Thorley and his executors. Malins, V. C., came to the conclusion upon the evidence, that the two articles sold by the executors and the company respectively were substantially the same, and in J. W. Thor- ley's Cattle Food Company v. Massam he restrained the ex- ecutors from issuing advertisements injuring the company in their trade by representing in effect that the cattle food sold by the company was spurious. He dismissed the action of Massam v. J. W. Thorley's Cattle Food Company, being of opinion that there was not sufficient evidence adduced by the plaintiffs, on whom the burden of proof lay, to show that the 397 THORLEY'S CATTLE FOOD CO. V. MASSAM. company represented that they were the successors, or were carrying on the business, of Joseph Thorley. 1 The executors appealed from both decisions. James, L. J. " In the first case we came to a decision really, prac- tically, and substantially, without hearing the respondents, the mo- ment we had the two documents read to us, one of them throwing a light upon the other. We thought that the executors, the defendants in that action, had said more than they ought to have said. They might have given warning by saying that the company were not car- rying on their business, and were different from them, and they might have said that they were not successors of Joseph Thorley ; but they went on to make allegations which were really allegations imputing to them that they were foisting a bad article upon the public, and so on, stating in substance that it was a fictitious article, and an article calculated to do mischief. We thought Mr. Glasse had not proved his justification of that libel. There was a libel if not justified ; and having our attention called to the evidence, we thought the executors had failed to prove that there was any foundation in point of fact for the assertion that the company were foisting an article as something they were not entitled to represent it, that is, independently of what I may call the trade name or trade-mark. Now in the other case, which is probably the more important one, I am of opinion that the executors, the plaintiffs in the action, ought to have succeeded, and ought therefore to succeed before us. In the first place I will dispose of this point which has been raised, that there is anything in the nature of an estoppel, or anything in the nature of a bar to the plain- tiffs' right to relief on any ground of this kind by reason of their hav ing discontinued the former action of Massam v. J. W. Thorley' s Gat- tie Food Company. The plaintiffs there failed to get an interlocutory injunction, and having failed to do that they discontinued the action, and paid the costs. That is not a resjudicata which can be pleaded or dealt with as resjudicata. All that amounts to is, that the vice chan- cellor did not then think a case had been made out for the interfer- ence of the court upon interlocutory application. No doubt the vice chancellor gave reasons in his judgment, which reasons he has also repeated in the present case, basing his decision principally upon a case of James v. James, 26 L. T. Rep. N. S. 568 ; L. Rep. 13 Eq. i See the report, 41 L. T. R. N. S. 542. 398 THORLEY'S CATTLE FOOD CO. V. MA.SSAM. 421. Now I am of opinion that that application for an injunction ought to have succeeded, assuming the facts to have been, as we are told they were, substantially the same as the facts now before us, be- cause I am clearly of opinion that the defendant company never had a right to use the term ' Thorley's Food for Cattle.' The right to use that name depends, or may be supposed to depend, upon what was supposed to have been decided in Burgess v. Burgess, 3 De G., M. & G. 896, and afterward decided in James v. James. Now, Bur- gess v. Burgess, has really been very much misunderstood, if it has been understood to say that anybody can always use his own name as a description of an article, whatever may be the consequence of it, or whatever may be the motive for doing it, or whatever may be the result of it. No doubt, Knight Bruce, L. J., made a very epigrammatic judgment, which probably has therefore caused it to be recollected more than that of Turner, L. J., who followed him. Knight Bruce, L. J., in his judgment, said : 'All the queen's sub- jects have a right, if they will, to manufacture and sell pickles and sauces, and not the less that their fathers have done so before them. All the queen's subjects have a right to sell these articles in their own names, and not the less so that they bear the same name as their fathers ; nor is there anything else that this defend- ant has done in question before us.' Then he goes on : ' He car- ries on business under his own name, and sells his essence of ancho- vies as " Burgess's Essence of Anchovies," which, in truth, it is. If any circumstance of fraud now material had accompanied, and were continuing to accompany the case, it would stand very differently, but the whole case lies in what I have stated.' But the way in which Turner, L. J., puts it is this, which I take to be much more accurate : ' I concur in the opinion that this motion should be refused with costs. No man can have any right to represent his goods as the goods of an- other person, but in applications of this kind it must be made out that the defendant is selling his own goods as the goods of another. Where a person is selling goods under a particular name, and another person not having that name is using it, it may be presumed that he so uses it to represent the goods so sold by himself as the goods of the person whose name he uses ; but where the defendant sells goods under his own name, and it happens that the plaintiff has the same name, it does not follow that the defendant is selling his goods as the goods of the plaintiff. It is a question of evidence in each case whether there 399 THORLEY'S CATTLE FOOD CO. V. MASSAM. is false representation or not.' That I take to be the accurate de- scription of the law which was really adopted by the House of Lords, which now, of course, has settled the law paramount to all the cases before it in that case of Wotherspoon v. Currie, L. Rep. 5 II. of L. 508, in which the House of Lords differed from the view that I orig- inally took in that case. I thought myself bound, in Wotherspoon v. Currie, to apply what I thought was the rule of law as laid down in Burgess v. Burgess, and some other cases which seemed to have fol- lowed it, that a man had a right to use a name if he was not telling that which was untrue on the face of it. But the House of Lords came to the conclusion that there were things which were marks of fraud in that case. The words used were, ' Currie & Co., starch and corn flour manufacturers, Glenfield.' Now the name of the starch of the plaintiff was ' Gleufield Starch,' and the defendant was actually manufacturing starch at Glenfield for the purpose of enabling him to say that he was manufacturing it at Glenfield. There could be no doubt about that; and the House of Lords said the mere fact that he was really carrying on the manufacture at Glenfield, and was not therefore telling a lie in that respect, did not exempt him from the consequences of this, that the whole thing was intended and calculated to produce on the mind of the purchasers the belief that his article was the article of the plaintiffs. Lord Westbury sums it up in a few words : ' I take it to be clear from the evidence that long antecedent to the operations of the respondent the word " Glenfield " had ac- quired a secondary signification or meaning in connection with a par- ticular manufacture. In short, it had become the trade denomination of the starch made by the appellant. It was wholly taken out of its ordinary meaning, and in connection with starch had acquired that peculiar secondary signification to which I have referred. The word " Glenfield," therefore, as a denomination of starch, had become the property of the appellant. It was his right and title in connection with the starch. Now the question is, has that property been invaded by the respondent ? and I take the whole proceedings of the respon- dent from beginning to end to have been nothing in the world more than a contrivance for getting the word " Glenfield " associated with his manufacture. If that be true, what the respondent has done has been done malo animo with a view of possessing himself of a denom- ination which was the property of the appellant.' I should like to say a few words on that case of James v. James, which the vice chan- 400 THORLEY'S CATTLE FOOD CO. V. M ASSAM. cellor in this ease considered himself bound by. There may be a dis- tinction, which I am going to point out, between that case and this ; but if they be practically the same, which I am bound to say I think they are, for myself, I cannot concur in the decision in James v. James, nor in the reasoning which led to it, nor in the distinctions which were attempted to be taken. Now in James v. James, a Lieut. James had invented a thing called a horse-blister ' Lieut. James's Horse-blister.' It was manufactured by himself, and he conveyed it to persons upon trust for some members of his family. Another person of the name of James, a member of the family, then made it after the death of Lieut. James, and sold it under the same name. Now Lord Romilly, JVL R., was of opinion that although during the lite-time of Lieut. James that could not be done, it could be done after his death. I am utterly unable to perceive any ground for that dis- tinction. If Lieut. James had the trade-mark, or what was equivalent to a trade-mark, during his life ; if Lieut. James had the right to pre- vent anybody of the name of James or otherwise from selling * Lieut. James's horse-blister/ I cannot conceive how that right was not trans- mitted to his legal personal representatives, or why his legal personal representatives had not the same right as Lieut. James had to enforce that which was his right of property, to use Lord Westbury's expres- sion, in connection with the manufacture of a horse-blister. It is possible that in that case the master of the rolls may have thought that ' Lieut. James's horse-blister ' being a mere recipe, anybody who had got the recipe might go and get it made up by any chemist or druggist, and therefore that Lieut. James's horse-blister ' was merely an indication that it was made according to Lieut. James's recipe, which I am bound to say I am unable to concur in ; still there might be that distinction that there the recipe was the whole thing. Now I cannot apply that to a case like the present, where two people could make the article in question from the same recipe, and yet make arti- cles as dissimilar as possible in point of quality. Of course, where we are dealing with an article of food, a condiment, the merit and the value of the article depends on the great care which the one man might or might not take in selecting the very best articles he was compounding together, and in the manipulation of the articles, and the preservation of them during the course of manufacture. But I do not think that there really is any substantial difference between the two cases. What, as it appears to me, was in the mind of the 26 401 THORLEY'S CATTLE FOOD CO. V. MABSAM. master of the rolls at the time, and what led to the fallacy, was this : there is no doubt that if a man takes out a patent for a thing, and the thing is known as his patent, for instance, say ; Flavell's Patent Kitch- ener,' and the patent expires, if the patent was known as the plain- tiff's patent, then anybody else might make the thing as ' Flavell's Patent Kitchener,' because Flavell's kitchener then does not mean made by Flavell, but made according to Flavell's patent. What have we got in this case ? In the first place, the thing here was not in- vented by any Thorley at all, and therefore ' Thorley's Food ' cannot signify a food made according to Thorley's invention. The invention is said to be by somebody else, whose recipe is said to have been pur- chased by the original Thorley, and Thorley's Food for Cattle ' here, according to my view, does not mean food consisting of particular in- gredients, or made up according to a particular recipe, because no purchaser would care about that ; but ' Thorley's Food for Cattle ' meant that food which for many years was manufactured at works be- longing to Joseph Thorley, and afterward was manufactured by his executors carrying on his business at the same works. The words ' Thorley's Food for Cattle ' would indicate, according to my view of the case, to a purchaser, this : You have always had a very good article called ' Thorley's Food for Cattle ; ' any article bearing that name is to you a guarantee that it comes from the same place from which that has come with which you have hitherto been well satisfied and content. That in truth is the meaning and object and result of a trade-mark. That is what a trade-mark is ; it does not signify what it is whether it is a name, or a symbol, or a fancy name, or anything else. It indicates this, a warranty that the article to which it is at- tached has come from the particular manufacturer of the goods with which buyers have been hitherto pleased. ' Thorley's Food for Cat- tle ' never became an article of commerce as distinguished from the particular manufactory from which it had proceeded. I referred in the course of the argument to a case as an illustration which was the converse of this, the case of Liebig's Extract of Meat Company, where the company wanted to prevent some defendants from selling Liebig's extract of meat, or selling anything of that name, the company hav- ing got Liebig to assist them and lend them his name. The answer to that was : Liebig's extract of meat has ceased to be a thing made by Liebig, because Liebig has published to the world the mode by which it is made, and it has been made and manufactured generally, 402 THORLEY'S CATTLE FOOD CO. V. MASSAM. and has got into the Pharmacopoeia, into books of cookery, into a dozen places where a dozen people can make it, and has now become as much known as if it were called ' Extract of Meat ' alone, or any- thing else, and Liebig's extract has ceased to have any connection with Liebig as the maker of it for the purpose of the manufacturer, and was merely the description of it as the article known to the medical world and other persons who had occasion to use it. That was the converse of this case. There is nothing like that in this case of ' Thorley's Food for Cattle.' Then we have to consider what was the animus. It appears to me that that would be almost sufficient to dis- pose of it ; but there is one thing that struck me in this all through. We have had nothing like a satisfactory explanation of how J. W. Thorley's Company came into existence ; how they came to form themselves into a company, unless it was that they thought that Thorley was making a very good thing ; that they thought that Thor- ley's food was a very profitable thing ; that it had got a very great reputation, and that some of them would like to steal the reputation which Thorley's article had acquired. In order to do that, they seem to have somehow or other got into communication with a gen- tleman who was a relation of the late Joseph Thorley, and a con- nection of his executors, and who for some years had been in the ser- vice of Joseph Thorley, and during those years, according to his own account, which I take to be true, had acquired a knowledge of the recipe, and had acquired the exact knowledge of the manufacture, but who for several years previous to the existence of this company had never had anything to do with the manufacture of food for cattle, but was probably gaining his livelihood in some other way ; but having the same name of Thorley, which was the distinguishing mark of food for cattle, he either tendered himself for sale, or was found for pur- chase by some person, in order that his name might be got into a joint-stock company limited, for the sake of selling these goods. Why was that name got in there except for the purpose of inducing the world to believe that it was the same concern, or that it was the Thor- ley, that it was the same Thorley whose name was the principal charac- teristic of the name of the article ? The name of the company, I can- not help observing, was J. W. Thorley & Co., Limited, and that J. W. Thorley & Co., Limited, is, to my mind, to begin with, a fiction, an in- tentional fiction. The meaning of J. W. Thorley & Co., Limited, that which it would convey to any person's mind, is that there was a part- 403 THORLEY'S CATTLE FOOD CO. V. MASSAM. nership of J. W. Thorley & Co. ; a real partnership, which had been carrying on business in the manufacture of this food for cattle, and that for some reason or other, such as we have seen constantly in our experience in this court, the partnership had been minded to convert itself into a limited company for the more convenient transaction of its business. But here the J. W. Thorley was not a partner. J. W. Thorley was employed as an agent, as the manager ; and J. W. Thor- ley's only connection with the company, qua company, is that he had a one shilling share in it, the company itself having a capital of 200, or something of that kind. To my mind that really would be ex- actly the same thing as if somebody were to establish a brewery at Burton, finding some one of the name of Bass, or somebody who would take the name of Bass because there is no law to prevent a man assuming any name he likes and then calling themselves J. Bass & Co., Limited, or W. Bass & Co., Limited, and advertising Bass & Co.'s pale ale. I really can see no distinction between Bass & Co.'s pale ale as advertised by such a company got up in that way ? and ' Thorley's Food for Cattle,' advertised by the company which has procured a person of the name of Thorley to be connected with their company. That of itself, to my mind, is a very strong thing to begin with. And then next we have to look at the advertisements and circulars, and the almanac. First of all, as to the packages, could anything be more calculated to deceive ? Those are the things by which the company really influenced customers. It is said by the defendants that they are very careful, and they have always been very careful, to avoid anything which could be considered as indications of any inten- tion on their part to pass their goods off as the others'. If they had been so very much minded in that way, why did they not make their packages different the same shape and the same size it might be, because it might be convenient ; but why did they not put them in a scarlet, blue, or orange and blue wrapper, or something that would have immediately shown not only to a person minutely comparing the things together, but to any person who was in the habit of having the things in an orange packet, that it was a blue packet ? Why did they not do that, if they were minded, as they say they were, not only to take care that their things should not be mistaken, but that the world should know that they were rival manufacturers ? Then there is the almanac which they have circulated, and in which they put things which were paid for by Thorley Dr. Hassall's description and re- 404 THORLEY'S CATTLE FOOD CO. V. MASSAM. port, and things of that kind, and other passages for the pur- pose of implying that they were the persons for whom Dr. Has- sall's report had been obtained, and that Dr. Hassall's report was a report on their manufacture. Then there is this again : they put, ' It is the best cattle food in the world. Upward of 95,000 has been awarded to horses and cattle fed on Thorley's food for cattle. It has gained the diplomas from the Pennsylvania State Agricult- ural Society and of the Royal Agricultural Society,' and so on, all of which was true of the article which was manufactured by Jo- seph Thorley, but was not true of the article which was manufact- ured by them ; that is to say, their article had not received any of these things. They may say their article is the same, or as good, but in my opinion the representation is not, ' We are mak- ing an article as good or the same as Thorley's, which gained the prize,' but ' This is the thing, we are the persons who are selling the thing, the produce of the manufactory, which has obtained those prizes.' There are other things which I need not stop to dilate upon. On the parol evidence I am satisfied, and I agree very much with what Mr. Townsend said, with regard to the witness Stillwell, who was a traveller for the company, and who went to people and said, ' I come from Thorley's ; Joseph Thorley is dead ; the persons I repre- sent are carrying on the business.' I have not the slightest doubt that, being well warned that he was not to say anything which could be construed into a positive assertion that the company were carrying on the same business at the same premises, or were the successors in business, he took care to say that they were carrying on the business of manufacturing food for cattle. It might be said, it was true that they were carrying on the food for cattle business ; but the intention and the effect of that, in my mind, was to cause a belief to be enter- tained by the persons to whom it was addressed, who all say they did form that belief from it, that it was the same concern ; that the com- pany were carrying on the same manufactory from which the things used to be distributed to the world. I am therefore of opinion that in this case, what the defendant company have done has been calcu- lated to deceive, and 1 am bound to say in my judgment I have no doubt was from the first intended to deceive, the persons purchasing their article, into the belief that they were purchasing the article which Joseph Thorley had formerly manufactured at the works which had obtained the great reputation which Thorley's manufacture appears to 405 CARROLL V. ERTHEILER. have obtained from the purchasers of those condiments. I am of opinion that the order should have been granted very much in the general words in which it was asked." Baggallay and Bramwell, L. JJ., concurred. 669. Carroll v. Ertheiler. 1880. C. C. U. S. E. Dist. Penn. Not reported. PLAINTIFF'S bill set out the adoption of the arbitrary words " Lone Jack " to denote a special brand of tobacco manufact- ured and sold by him. It further alleged that after the plain- tiff's tobacco had become well known to the public under the name " Lone Jack" defendant manufactured and put into the market smoking tobacco in the shape of cigarettes, under the name or symbol of " Lone Jack Cigarettes" The device or figure used by defendant was different from that used by the plaintiff, and defendant's name was conspicuously applied. On motion for preliminary injunction, Held, that defend- ant should be restrained from using the words " Lone Jack " during the pendency of the suit. Per Butler, J. " The defendant rests upon a denial, first, that the defendant has used the trade-mark ; and second, that he has used it as a designation of ' smoking tobacco.' "The second branch may, most conveniently, be noticed first. While the revenue laws, for purposes of taxation, distinguished be- tween smoking tobacco and cigarettes, there is, we believe, no sub- stantial difference. Cigarettes consist of smoking tobacco similar in all material respects to that used in pipes. The circumstance that a longer ' cut ' than that commonly used in pipes is most convenient for cigarettes is not important ; nor that the tobacco is smoked in paper instead of pipes. It may all be used for either purpose ; and is all embraced in the term ' smoking tobacco.' We do not believe the pub- lic or the trade draws such a distinction as the defendant sets up. We have not overlooked the statements contained in his affidavits. But the method pursued in obtaining this testimony, generally, does not recommend it to our confidence. The affidavits seem to have been prepared without seeing the witnesses, and sent over the country to be signed by those who might be found willing to sign them. They 406 CONNELL V. REED. are, generally, similar in language, and printed. This method of ob- taining testimony is not worthy of encouragement. If the public and trade draw such a distinction, and, therefore, do not suppose the de- fendant's cigarettes to be made of the plaintiff's tobacco (and the de- fendant so understands), why does he adopt the designation by which this tobacco is familiarly known, and persist in using it ? "The dominating characteristic of the plaintiff's trade-mark is the name, ' Lone Jack.' His tobacco has come to be known and de- scribed by this name throughout the country, to such an extent that the accompanying device has ceased to be important, if it ever was so doubtless rarely observed, and slightly remembered. At home and abroad, to the trade and the public, it is familiarly known as < Lone Jack ; ' and is thus designated as the plaintiff's manufacture, by purchasers and sellers. " The defendant's application of this name to his smoking tobacco is an adoption and use of the essential part of the plaintiff's trade-mark. Surrounding it with a different device signifies nothing to the public who attach no importance to the device of the plaintiff. The de- fendant's name upon the cigarettes, if recognized (and it would not be without close inspection), would not inform the public that the to bacco is not of the plaintiff's manufacture." 670. ConneU v. Reed. 1880. S. C. Mass. Rep. A BILL in equity was brought to restrain the defendants from infringing an exclusive right claimed by the plaintiff in the words " East Indian" used with the word " remedy " or " remedies " as a trade-mark upon bottles of medicine. It appeared that the plaintiff adopted these words to denote and to indicate to the public that the medicines were used in the East Indies and that the formula for them was prepared there, neither of which was the fact. Held, that to maintain the bill under these circumstances would be to lend the aid of the court to a scheme to defraud the public. Per Gray, C. J. "Although the master reports that there was no evidence that any other person than the plaintiffs or their agents had ever used these words in connection with the manufacture and sale of 407 ROYAL BAKING POWDER CO. V. McQUADE. medicines, it is at least doubtful whether words in common use as des- ignating a vast region of country and its products can be appropri- ated by any one as his exclusive trade-mark, separately from his own or some other name in which he has a peculiar right. But the con- clusive answer to this suit is that the master has found, upon evidence which appears to us to be satisfactory, that the plaintiffs have adopted and used these words to denote, and to indicate to the public, that the medicines were used in the East Indies, and that the formula for them was obtained there, neither of which was the fact. Under these cir- cumstances, to maintain this bill would be to lend the aid of this court to a scheme to defraud the public." 671. Royal Baking Powder Co. v. McQuade et al. 1880. C. C. U. S. Not yet reported. COMPLAINANT had used and acquired a right of property in the word " Royal " as a trade-mark for baking powder ; defendants, long after complainant's goods had acquired ce- lebrity in the market, made use of the word "Loyal " upon the same class of goods and simulated complainant's label. On motion for preliminary injunction, Held, that the word " Royal " was a good trade-mark, and that the use by defend- ants of the word " Loyal " should be enjoined pendente lite. Per Blodgett, J. " I think that it is very manifest there was an intention on the part of the manufacturer of this, the defendants' powder, to obtain the benefit of whatever labor and effort the com- plainant has used to give reputation and character to his goods. There is the adoption, in the first place, of a word which is substantially idem sonans with the word ' Royal.' The words are not, of course, precisely the same, but when rapidly spoken by people not accus- tomed to notice the nice distinctions of speech, they might be taken for the same word. There is also the adoption of a label which in colors, in its design, and collocation of the letters, and even of the vignette, and in all the characters which strike the eye, is so identical with that of the plaintiff, that it confirms the impression which would be created by the use of the general name, or generic term, that there was an intention on the part of the manufacturer of defendants' goods to avail himself of the reputation of the plaintiff. It is true that the 408 SINGER MANUFACTURING CO. V. BRILL. defendants have announced on the face of their label that this is not the ' Royal,' but that is in a place where it would perhaps be the last thing that would be read, and that after the goods had been obtained and paid for, and it is after all a reservation which would avail the defendants nothing. It is an explanation which comes too late in the transaction to really exculpate the defendants. The make-up gener- ally of the package is so similar, and the imitation of the name is so similar, as to create naturally, and be calculated to create, the impres- sion upon people who are not particular in reference to terms, that they were buying the ' Royal ' when they were buying the ' Loyal.' The class of persons who would naturally be sent to a grocery store to buy this class of goods would be such as might be imposed upon readily by the similarity of these two names." 672. Singer Manufacturing Co. v. Brill. 1880. Superior Court of Cincinnati. Not yet reported. THIS was an action, under the code of the State of Ohio, for an injunction and an account. Three causes of action were recited. Plaintiff alleged that it was a corporation engaged in the manufacture and sale of sewing-machines, which ma- chines were known (1.) by the name or designation " SlNGER," and (2.) by their appearance ; that defendant had violated its rights by selling sewing-machines of similar appearance, under the name of " ENGLISH SINGER SEWING-MACHINES." The evidence tended to show that the defendant had never actually attached the word " Singer " to his machines, and that he had never directly represented in any way that they were made by the plaintiff. The court (Foraker, J.) said : " There are but three general ques- tions presented. The first is : whether or not the word ' Singer,' as it has been used by the plaintiff and its predecessors, denotes the manufacturer, or is a word of description only. " The second question is, as to whether or not, assuming that the plaintiff has trade-mark or trade name rights in the use of the name Singer, the defendant has infringed them. " The third is, as to the right of the plaintiff to enjoin the defendant 409 SINGER MANUFACTURING CO. V. BRILL. from dealing in machines made in imitation, as to the form, appear- ance, ornamentation, etc., of the plaintiff's machines. " The first of these questions is a question of fact to be determined from the evidence." After examining the question at great length the court con- cludes : " From these considerations, united with the direct evidence offered by the plaintiff in support of its claim that its machines are not manu- factured according to any one system, pattern, or principle ; and that the word Singer was always used by it and its predecessors to desig- nate that they were the manufacturers, I come, as I have said, without hesitation, to the conclusion that the decided weight of the evidence is with the plaintiff on this question. " In this review of the evidence I have omitted to make mention of many things confirmatory of this conclusion, because it is a matter of great tediousness to refer to all, and I deem it sufficient to name only enough to show the ground upon which my conclusion rests. " If I were to refer to any other, however, it would be to the fact established by all the witnesses in the case, those for the defendant as well as those for the plaintiff, that if an order were to be received simply calling for a Singer machine, it could not be filled until there had been an explanation specifying what kind of a machine was wanted. This seems to have been regarded as a vital point on this branch of the English cases that have been referred to. And justly so, since it shows that by the word Singer can not be meant any par- ticular machine or kind of machine." Concerning the second point, after referring to certain similarities of little importance, his honor writes : " The word ' Singer ' nowhere appears upon the machines sold by the defendant, but in all his cards, circulars, and newspaper adver- tisements he represents them to be ' English Singer Sewing-Ma- chines, manufactured by the Williams Manufacturing Company, at Montreal, Canada.' .... Can there be infringement of a trade name by merely advertising an article by the name .... without selling or offering it with the name attached. " However it may be in the case of a trade-mark, as distinguished from a trade name, I am satisfied both upon reason and authority that there may be infringement in that way of a trade name. " I don't know how I can better show this authority and the reason 410 SINGER MANUFACTURING CO. V. BRILL. of it than by quoting from the opinion of the Lord Chancellor in the case against Wilson, 3 App. Cases L. R. 389, where he says, speak- ing upon this point : " ' My Lords, I am unable to see that this makes any difference in point of principle. It may well be that if an imitated trade-mark is attached to the article manufactured, there will, from that circum- stance, be the certainty that it will pass into every hand into which the article passes, and be thus a continuing and ever-present representa- tion with regard to it ; but a representation made by advertisements that the articles sold at a particular shop are articles manufactured by A. B. (if that is the legitimate effect of the advertisements, which is a separate question) must, in my opinion, be as imperious in principle, and may possibly be quite as injurious in operation, as the same rep- resentation made upon the articles themselves.' " The next question here presented is that suggested by the paren- thetical sentence of the Lord Chancellor, as above quoted, viz. : What is the effect of the advertisements made by the defendant ? " It is earnestly insisted by him that his advertisements and repre- sentations are of such a character as to preclude all possibility of de- ception ; .that every one reading them is thereby apprised distinctly. and plainly that the machines dealt in by him are not the machines made by plaintiff; and it is claimed that this was especially intended to be made to appear in order that defendant might have the benefit of the superiority which he claims for his machines. " There is no question but that it does appear from defendant's ad- vertisements that the plaintiff is not the maker of them, and that his machines are called ' English Singers,' and there is no question either but that, to one informed, these statements would be sufficient to im- part all that is claimed. " But we must remember the fact, common to the knowledge of all, that the great mass of people likely to buy and use these machines are not so informed. The most that such persons know is that the machines called Singer Machines are what they want, and conse- quently, when they find the word Singer they are not apt to stop and read what accompanies it ; but whether they are or not, the fact that they must do so to avoid being misled is sufficient. The defendant has no right to put them to that trouble or the plaintiff to that risk. "But again, if such advertisements do not deceive, if they are not in- tended to deceive, as defendant claims, why should they be made ? If 411 LAWRENCE MANUF. CO. V. LOWELL HOSIERY MILLS. defendant wants to distinguish his machines from the plaintiff's why use a word that can have no other effect than to make an explanation necessary ? It would seem easier for the defendant to guard and pro- tect the reputation of his machine against what he claims to be the inferior machine of the plaintiff if he avoided the use of the word altogether. But however this may be, the authorities are, without exception, that such use of the word Singer by the defendant, as he is shown to be making, is an infringement upon the rights of the plain- tiff in its use as a trade name, assuming, as I have found, that the plaintiff has such rights." The plaintiff's contention, that it had a right of property in the " form, appearance, and ornamentation " of its machine, and that this right had been infringed by the defendant, was also sustained. The injunction restrained defendant from using the name " Singer," either alone or in combination with other words, in advertisements of his machine, and from selling sewing-machines having the external appearance, shape, or ornamentation of the machines of plaintiff's man- ufacture. 673. Lawrence Manufacturing Co. v. Lowell Hosiery Mills. 1880. S. C. Mass. 10 Rep. 809. PLAINTIFFS used as a trade-mark upon a certain grade of hosiery of their manufacture a certain device with the figures 523 under it ; these goods were known and called for as " 523's." The defendants afterwards used as a trade-mark upon goods of their manufacture a device somewhat resem- bling that of the plaintiffs' and the figures 523 printed in the same kind of type, and placed as to the other parts of the de- vice in the same relative position as the plaintiffs'. Held, that the plaintiffs had established their right to the exclusive use of their device ; that the numerals 523 were an essential part thereof ; that the defendants had violated the plaintiffs' right by the use of an imitation of said trade-mark, and had thereby deceived the public and injured the plaintiffs ; and that the plaintiffs were entitled to the relief prayed for in their bill. 412 LAWRENCE MANUF. CO. V. LOWELL HOSIERY MILLS. Per Colt, J. " The statutes of this commonwealth protect a per- son who uses any peculiar name, letters, marks, device, or figures upon an article manufactured or sold by him, to distinguish it as an article manufactured by him. " Gen. Stat c. 56, 1. " It is said that there can be no exclusive right to use marks, fig- ures, or letters which are intended merely to indicate the quality of the fabric manufactured, as distinguished from those marks which are in- tended to indicate its origin, because one has no right to appropriate a sign, or symbol, or mark which, from the nature of the fact it is used to signify, others may use with equal truth, and therefore have an equal right to employ for the same purpose And in Canal Company v. Clark, .... (327,) it was declared by Strong, J., that no one can claim protection for the exclusive use of a mark which would practically give him a monopoly in the sale of any goods other than those of his own manufacture Letters and figures when used only for the purpose of denoting quality are, from the very nat- ure of the use, incapable of exclusive appropriation. These consider- ations would be decisive, if the plaintiffs here claimed the exclusive right to the numerals ' 523 ' when used only to indicate the quality and not with reference to the origin of the goods. But such is not the plaintiffs' position. Their claim is, that the purpose of using those figures in connection with the other parts of their trade-mark was to aid the buyer in distinguishing their goods from similar goods made and sold by others. " A trade-mark when applied to manufactured articles may well consist of the name and address of the manufacturer, with the addition of some peculiar device or curious figure, so disposed as to attract attention, and advertise more effectually the origin of the article to which it is attached. And it may be that mere numerals, or letters of the alphabet, can be combined and printed in such unusual and pe- culiar forms that the result would be quite sufficient for use as a trade- mark. In Boardman v. Meriden Britannia Co. . . . (302) it was said that if numbers were once shown to have been used for the pur- pose of indicating origin or ownership, and to have had that effect, it would not be easy to assign a reason why they should not receive the same protection as trade-marks. The numbers in that case, however, were held, by virtue of their connection, to form an important part of the trade-mark itself. " It is not necessary that the resemblance produced should be such as 413 MORGAN SONS CO. V. TEOXELL. would mislead an expert, or such as would not be easily detected if the original and the spurious were seen together. It is enough that such similitude exists as would mislead an ordinary purchaser." 674. Morgan Sons Co. v. Troxell et al. 1880. Supreme Court of New York, General Term: before Davis, C. J., and Brady and Barrett, JJ. Not yet reported. COMPLAINANT manufactured a scouring soap, which it put up in silver foil paper with a blue band, the band being car- ried around the cake lengthwise ; the defendants put up a similar article in silver foil paper with a blue band which was passed around the sides of the cake. Defendants' band was broader than complainants', and their cake somewhat differ- ent in size and shape ; the color of the paper and brands were substantially the same. The following cuts illustrate the points of resemblance between the two cakes : BLUE. SILVER. Complainants' Cake. Defendants' Cake. The words upon the bands, which were employed as labels, were entirely different. Held, that complainants' rights had been violated, and that it was entitled to an injunction. Per Barrett, J. " My impressions upon the argument of this case were that the referee had gone too far. There seemed to be con- siderable dissimilarity between the respective packages of ' Sapolio ' and ' Pride of the Kitchen ' submitted for our examination. It did not appear probable that any person of intelligence could, even upon a casual inspection, mistake the one for the other. Upon the one, 414 MORGAN SONS CO. V. TROXELL. * Enoch Morgan's Sons' Sapolio,' printed in gilt letters, met the eye ; upon the other, ' Troxell's Pride of the Kitchen Soap.' Indeed, the principal similarity, aside from the form and size of the cake, was the wrapper of tinfoil paper encircled by a band of ultramarine blue. The further question suggested itself to my mind, Could the plaintiffs appropriate this peculiar combination of tinfoil paper with an ultra- marine blue wrapper and gilt letters printed thereon, and by applying it to scouring soap secure a trade-mark therein ? A careful exam- ination of the evidence and further reflection have removed these im- pressions, and led me to the conclusion that the learned referee's judgment was not only just, but sound in law. Whatever there is of dissimilarity in the two articles is but seeming. While there is an almost ostentatious display of variation in matters not likely to attract the attention of the casual purchaser, there is substantial similarity in the picture to which the eye has become accustomed. In this con- nection, we must not lose sight of the character of the article, the use to which it is put, the kind of people who ask for it, and the manner in which it is ordered. Very broad scene-painting will deceive an ignorant, thoughtless, or credulous domestic, looking for an article in common and daily use, and of no particular interest to her person- ally. The same kind of deception would be instantly detected by an intelligent woman of the world looking for her favorite perfume, soap, or dentifrice, or by a man of luxurious tastes inquiring for some special brand of champagne. Now, the evidence in the case is clear and abundant that the ' Pride of the Kitchen ' was sold by many grocers as ' Sapolio,' and that many housekeepers were actually de- ceived. Nor can there be any doubt (we regret to say) that the ' Pride of the Kitchen' was delivered by the defendants to these gro- cers with the intent that it should be sold as ' Sapolio.' It was thus the defendants' purpose to take advantage of the market secured by the industry of the plaintiffs and their predecessors, and by a large expenditure of time and money. They thus determined, by selling their goods as the goods of the plaintiffs, to build up a busi- ness in scouring soap upon their neighbors' labor and capital. It would be a reproach to the administration of justice if the execution of this purpose could not be checked. " It is said that the plaintiffs cannot monopolize the use of tinfoil nor of blue paper. This is quite true, but it does not meet the ques- tion. The plaintiffs do not seek to monopolize tinfoil nor blue paper. 415 MOKGAN SONS CO. V. TKOXELL. Any one may use these articles, and use them freely. They may be applied to aay other soap. They may even be applied to scouring soap. All that the plaintiffs ask is that they shall not be applied to scouring soap in such form and manner, with such peculiar relations to each other and to the cake, as to deceive that special public which relies upon similar methods long since adopted by the plaintiffs aiid their predecessors. > " A trade-mark is not necessarily limited to a device or name. Nor are we prepared to admit that a party cannot be protected in the combined arrangement of form and distribution of color, with which his goods are put up and placed before the public, especially where there is a fraudulent purpose, and where customers have, in fact, been deceived. If the plaintiffs cannot be protected in a ' . . . . pressed and stamped cake enclosed in a tinfoil wrapper, encircled with an ultramarine blue band, printed in gold,' neither can they, though other and still more novel, distinctive, and striking forms and colors be added. There might be double and treble bands of various colors and sizes, crossing each other in different places, with the margins cut or stamped in different shapes and styles. Yet, if the defendants' contention be well founded, the plaintiffs could not be protected against their fraudulent reproduction. According to this doctrine, it is only necessary for the dishonest trader to avoid the use of some special word or device, to which the technical name trade-mark has been given, and to gain his piratical end, by imitating everything which really conveys to the public belief in the genuineness of the article sought. It must have been this shallow, as well as unworthy idea, which was in Troxell's mind, when he declared his purpose of imitating ' Sapolio ' as closely as possible, without absolutely making himself liable. " The law of trade-marks has been gradually expanding so as to meet just such cases. The courts, in a long and unbroken line of de- cisions, have endeavored to uphold and enforce commercial morality, and have afforded their protection to honest enterprise and skill. It will not be necessary to go over these cases. They have, in fact, be- come too numerous for extended analysis It will be suffi- cient to state the general result .... so far as may be applicable to the case at bar. We deem it, then, to be well settled upon author- ity, that to justify the interference by injunction of a court of equity, it is sufficient that there is a fraudulent intention of palming off the 416 MORGAN SONS CO. v. TBOXELL. defendant's goods as those of the plaintiff's, and that such intention is being carried into execution. " Caswell v. Davis [289] is supposed, by the appellants, to con- flict with this position, but we think without reason. " All that was held in that case was, that there can be no trade- mark in words or phrases in common use, which merely denote the character, kind, quality, and composition of an article. Consequently, the name ' Ferro-Phosphorated Elixir of Calisaya Bark ' could not be protected. But there was no suggestion that the defendant would have been permitted to palm off upon the public his own preparation of ' Ferro-Phosphorated Elixir of Calisaya Bark ' as that of the plaintiffs, had the latter given their preparation any name exclusively indicative of origin or maker. If the plaintiffs there had called their medicine ' Caswell's Ferro-Phosphorated Elixir of Calisaya Bark,' or ' Caswelline,' the defendant certainly would not have been permitted to palm off his elixir as that thus characterized. Nor would he have been permitted, by the imitation of Caswell's labels, signs, marks, or other symbols, to effect the same purpose. The Caswell case simply applies to the well-known doctrine, that a trade-mark cannot consist of anything which merely denotes the name or quality of the article, and that, as was said by Judge Duer, in the Amoskeag case, 2 Sand. 609, ' it is not enough that the public may be misled, or has been misled. As already intimated, the resemblance must arise from the imitation or adoption of those words, marks, or signs, which the per- son first employing them had a right to appropriate, as indicating the true origin or ownership of the article or fabric to which they are at- tached.' It does not disturb the rule, that a trade-mark may consist of anything marks, forms, symbols which designates the true origin or ownership of the article " The true rule is well stated in the late English case of Mitchell v. Henry (43 Law Times N. S. 186). There the plaintiff's trade-mark consisted of ' a white selvage on each side of the piece, having a red and white mottled thread interwoven the full length of the selvage between the edge of the piece and the edge of the selvage.' The goods sold by the defendant had ' a black or very dark selvage, the plaintiff's being white or nearly so ; and the defendant's had an inter- woven thread made up in their goods, composed of red, white, and yellow strands- placed at the edge of the piece between the piece and the selvage.' Upon that state of facts, Lord Justice James observed : 27 417 MORGAN SOXS CO. V. TROXELL. ' The master of the rolls seems to me to have considered that when he had satisfied himself, on the examination of the things before him> that the twisted thread in the defendant's selvage was in a position different from that of the plaintiff's, and that the plaintiff's selvage could not be said to be white, then that determines the question. I am bound to say, that to me the question is not whether the selvage is white, but whether it was what the trade knew as white selvage whether anybody connected with the trade could have any doubt whatever as to what was meant by white selvage. Then, it is not at all conclusive to my mind whether the position of the defendant is the same or different from the position of the plaintiffs. It resolves itself into the old question, which has always been the question to be determined in these cases, " Are the defendants, not in words, but by acts, and by something on the face of the articles, representing their goods as being the goods of the plaintiffs'? " That is to say, "Are they using something which is calculated to pass off" their goods as the goods of the plaintiffs ?"'.... " The fact that the imitation is but partial cannot avail the defend- ants. The question is, whether such a general resemblance remains as is designed to mislead the public (the Amoskeag case), and of that, as we have seen, there can be no doubt. It all comes to this, that as was said in Perry v. Truefitt [73], 'a man is not to sell his goods under the pretence that they are the goods of another.' The law does not limit the form of the pretence ; that depends upon the facts of each particular case. Here that element is clearly present, both in the picture presented to the public eye and in the facts disclosed by the witnesses. The fraud, for such it was, was long planned, and its execution proceeded by regular and steadily advancing steps. When it was found that bars of soap were unsatisfactory, a pressed and stamped cake was resorted to. Then we have the polished pan and the face reflected therein, with the variation of a monkey for a man. Then came the various colored bands, none of which were found to answer the fraudulent purpose, culminating at last in the plaintiff's ultramarine blue. What was done was done artfully, with a view to reach thoughtless and ignorant buyers, and yet to evade the law by an apparent exhibition of mere rivalry. It was also done srhewdly, by enlisting the retail grocers through the bait of reduced prices and increased profits, thus making allies of these men for the general dif- fusion of direct misrepresentation. It will not do to call this enter- 418 THE APOLLINAKIS CO. V. MOORE. prise and energy, nor to stigmatize the demand for protection against such practices as an effort to limit legitimate competition and to pro- mote monopoly. " We find no error in the rulings of the learned referee upon any of the other questions presented, and we think that the judgment should therefore be affirmed, with costs." 675. The Apollinaris Co. Limited v. Moore. 1880. C. C. U. S. E. D. of Pa. : before Butler, J. Not reported. COMPLAINANT being the lessee of a certain mineral spring, known as the " Apollinaris Spring," brought suit for an injunc- tion against the defendant, to restrain the use of the word " Apollinaris " in connection with the sale of water compounded by him. It was contended on behalf of the defendant that complain- ant had no standing in a court of equity by reason of its having fraudulently sold the water as a natural water when it was in fact an artificial water. Held, that it appeared from the evidence that the water came from the Apollinaris spring, and that the statement that it was a natural product was substantially true ; that the com- plainant's rights had been infringed, and that an injunction should be issued. 419 INDEX. NOTE. The numbers refer to the numbers of the cases. "A" PENS, 568. ABANDONMENT of trade-mark by dismissal of suit for injunction, 230. not established by other persons having copied some details, 367. by non-claim, 437. by adoption of a new mark, 513, 628. by disuse, 590. injunction granted to restrain infringement after, 125. " A. C. A." COTTON TICKINGS, 100. ACCOUNT OF PROFITS given, though persons other than the plaintiff interested in the mark, 196, 243. though defendants ignorant even of the plaintiff's existence, 204. only after the defendant was aware of the prior ownership, 213. only in respect of goods actually sold, 333. not given where plaintiff's user short, 234. where defendant had acted bond fide, 235, 608. where plaintiff had delayed, 244, 251, 384, 500, 580. where sales small, 253. ACQUIESCENCE by owner of trade-mark in infringement, when gratuitous, is mere rev- ocable license, 100, 137. when it will authorize breach of injunction, 115. can only be established where knowledge is proved, 638, 642. held not to be established, 228. by persons at a disadvantage is no defence, 455. See DELAY. ACQUISITION of trade-mark by long user, 51, 459. without long user, 215, 234, 325, 364, 456, 627, 629. limited to a particular class of goods, 215, 223, 234, 257, 616. 421 INDEX. ACQUISITION continued. of trade-mark from trustees for creditors, 222, 323, 575. there must have been vendible goods in the market bearing the mark for, 140, 215, 223, 234, 264, 301, 339. containing a false assertion is impossible, 223. previously used by others, 276, 301. on formation of a partnership, 222, 399, 408, 437, 502. from a person who had already sold his right, not possible, 367, 502. in gross not allowable, 447, 487, 492, 630. except by previous maker of the goods, 492. ACTION on the case, 4, 40, 50, 59, 68, 72, 82, 103, 111, 125, 140, 338, 374. fraud must be proved in, 2, 4, 72, 82, 140, 213, 338. plaintiff in, must show that his mark was on vendible goods in the market, 140. under 5 & 6 Will. IV. c. 83, s. 7, 167. for damages occasioned by an order for spuriously marked goods, 194. for discovery, 519. manner of trial of, 644. ADDRESS, injunction granted to restrain imitation of, 443. ADJECTIVES indicative of quality cannot be appropriated, 85, 226. See DESCRIPTIVE WORDS. ADMINISTRATION must be taken out to a deceased proprietor of a trade-mark before his next of kin can claim the mark, 4, 337. ADVERTISEMENT, deceptive, 18, 163, 248. complicated label held not to be a trade-mark, but a mere, 223. expense incurred in, gives no right of trade-mark, 264, 339. a necessary preliminary to registration in England, 515. " AEILYTON " WRITING FLUIDS, 510. AGENT, principal responsible for fraud of, 321. acquires no personal right, 534, 554. AGENT FOR " Mason & Brand's Essence of Beef," 534. AGRICULTURAL implements, marks on, 412. preparations, marks on, 250, 364, 489, 554. " AINS WORTH'S THREAD," 257. " AKRON " CEMENT, 282. 422 INDEX. ALE, marks on. See BEER. ALIENS, infringement of trade-marks of, in England, 151, 152, 164, 171, 199, 200, 275. America, 78, 79, 83, 84, 125, 251. "ALLOA" WOOLLEN YARNS, 601. " ALLSOPFS ALES," 183. ALMANACK, wrapper of, 85. See PUBLICATION. ALTERNATIVE trade-marks recognized in the United States, 394. registered in the United States, 501, 544. " AMERICAN GROCER, THE," 503. " Sardines," 422. " AMOSKEAG" COTTON CLOTHS, 314, 500. " ANATOLIA " LIQUORICE, 234. " ANCHOR BRAND " bacon and hams, 645. wire, 213. " ANCHOR TUBE COMPANY, THE," 566. "ANCHOVIES, BURGESS' ESSENCE OF," 117, 169, 170. " ANGLO-PORTUGO OYSTERS," 625. " ANGOSTURA BITTERS," 591. ANNATTO, marks on, 421, 602. ANNUAL, BEETON'S CHRISTMAS," 450. " ANTIQUARIAN BOOK-STORE, THE," 336. " APOLLINARIS WATER," 457, 465, 509, 675. APPEAL from an injunction restraining the use of a trade-mark, advanced, 346. delay disentitling appellant on, 117. " ARAMINGO CHECK " GOODS, 186. ARMS AS TRADE-MARK. See CREST. "ARMY AND NAVY COOPERATIVE SOCIETY, THE," 640. "AROMATIC BITTERS," 432, 591. ARTICLES of partnership, construction of. See PARTNERSHIP. " ASHFORD LODGE," 631. ASSETS, good-will of attorney's practice is not, 46. medical practice held to be to some extent, 102. not to be, 588. 423 INDEX. ASSETS continued. good-will of newspaper is, 3, 35. partnership is, 16, 64, 70, 139, 176, 177, 185, 192, 202, 206, 210, 215, 248. public house is, 6. shop is, 3, 58. of partnership, good- will of newspaper is, 1 73, 1 78. trade-mark is, 80, 215, 337. trade name is, 248. ASSIGNMENT of trade-mark, possibility of, depends on the circumstances, 222, 223, 521. together with the good-will, 257, 279, 319, 331, 521, 580, 630. on sale of good-will, without direct reference to it, 350, 354, 492. places assignee in position of assignor, 138, 257, 279. held that notice of must be incorporated with the mark, 263. need not be incorporated with the mark, 279. twice over by the same person not allowable, 367, 502. does not give a right to use it on another class of goods, 502, by assignee in bankruptcy, 222, 323, 575. with limitations as to locality of user, 628. of Cutlers' mark possible, where owned by a non-freeman, 222. name of hotel, 467. theatre, 524, good- will is subject to duty within the Stamp Acts, 128. ATTACHMENT issued for contempt, 353. ATTORNEY, contract by, to retire from business and recommend clients, etc., en- forced, 11. specific performance of agreement by, for sale of practice, refused, 22. good-will of practice of, not assets to be administered, 46. See GOOD- WILL; PARTNERSHIP. " ATWOOD'S VEGETABLE PHYSICAL JAUNDICE BITTERS," 628. AUTHOR, improper use of nom de plume of, restrained, 429. See NAME. " AYER'S CHERRY PECTORAL," 574. BAGS, marks on, 365. 424 INDEX. BAILEES of goods spuriously marked, 229, 239. BAKING POWDERS, marks on, 161, 182, 656, 671. " BALM OF THOUSAND FLOWERS," 144, 145. BANK NOTES, spurious issue of, restrained, 197. " BANK OF ENGLAND " SEALING-WAX, 593. "BANK OF LONDON, THE," 140. BANKRUPTCY, good-will of newspaper passes as " goods and chattels " on, 12, 159. trade-mark passes as "goods and chattels" on, 537. transmission of good-will on, 69. trade-marks on, 222, 323, 447. sale of good- will on, 17, 69, 323. by assignees in bankruptcy held not to deprive bankrupt of the right to use his own name, 575. " BANKS & CO." 248. BARREL, special form of, no trade-mark, 373. an important element in the trade-mark, 395. hoops on, no trade-mark registrable in the U. S. 480. " BASS' BEER," 310, 655. BAZAAR DEALER AT CALCUTTA, infringement of trade-mark by, 241. "B. B. H." IRON, 215, 530, 540, 555. "BEAVERINE" BOOTS, 375. "BEDFORDSHIRE EXPRESS, THE," 317. BEER, marks on, 89, 183, 188, 261, 310, 431, 545, 617, 655. "BEESWAX OIL," 357, 377. " BEETON'S CHRISTMAS ANNUAL," 450. "BELGRAVIA," 264, 265. "BELL'S LIFE IN LONDON," 174. "BENSON'S CAPCINE PLAISTERS," 562. "BENTLEY'S MISCELLANY," 259. " BETHESDA MINERAL WATER," 529. BHE HATHI " YARN, 646. "BIRMINGHAM PATENT IRON AND BRASS TUBE CO. THE," 56. " BIRTHDAY SCRIPTURE TEXT-BOOK, THE," 403. " BISMARCK " COLLARS, 300. BITTERS, marks on. See SPIRITS. 425 INDEX. BLACKING, marks on, 21, 47, 76, 77, 120. BLACK LEAD, marks on, 343. " BLANCHARD CHURN, THE," 358. BOOK, name of. See PUBLICATION. " BOOTH'S THEATRE," 524. BOOTS, marks on, 375. " BORWICK'S BAKING POWDERS," 161, 182. BOTTLES, imitation of, 48, 291, 421, 628, 653. trade-marks moulded in, 157, 551, 608, 628, 652, 653. plaintiff not disentitled by misrepresentation as to size of, 483. "BOVILENE" POMADE, 319. " BRAND'S ESSENCE OF BEEF," 534, 570. BRANDY, marks on. See SPIRITS. BREACH OF CONTRACT on sale of good-will restrained, 114, 303, 335,350, 485, 548, 552, 604. measure of damages for, 485. damages not given for, where fraud on the public, 146. as to use of initial, restrained, 419. by licensor, damages given to exclusive licensee for, 489. by registration of trade-mark, restrained, 530. BREACH OF COVENANT, not to use motto, held not to be committed, 546. BREACH OF INJUNCTION, motion to commit for, 77, 115, 200, 245, 463, 570, 595, 633. attachment issued for, 358. BREACH OF TRUST, in respect of trade secret, restrained, 31, 110, 290. publication of catalogue of etchings obtained by, restrained, 98. " BRISTOL MERCURY, THE," 12. " BRITANNIA, THE," 141. "BROOK'S THREAD," 622. "glace thread," 190. "BROOKLYN WHITE LEAD COMPANY," 154. " BROOKMAN & LANGDON'S " LEAD PENCILS, 55. BROOMS, marks on, 342. " BROSELEY PIPES," 243. 426 INDEX. BRUSHES, marks on, 81. BUNDLES OF SILK, mode of making up, 217. "BURGESS' ESSENCE OF ANCHOVIES," 117, 169, 170. BYRON, unauthorized use of name of Lord, 23. CACHEMIRE MILANO " SILKS, 571. CALCUTTA, infringement of trade-marks by bazaar dealer at, 241. "CALHOUN" PLOUGHS, 596. CALIFORNIAN STATUTE OF 1863, 249. "CALISAYA BARK, FERRO-PHOSPHORATED ELIXIR OF,' 289. " CANADA PLATES," 648. " CAPITAL AND COUNTIES BANK, THE," 618. CARDS, injunction refused in case of stamp on, 2. CARPET-STICKS AS TRADE-MARKS, 428. " CARRIAGE BAZAAR," 294. CASE, action on the. See ACTION. CATALOGUE OF PAINTINGS, 8. etchings improperly obtained, publication of, restrained, 98. CATTLE FOOD, marks on, 560, 645. " CAVE'S DRESS-BASKETS," 304. CEMENT, marks on, 282. " CENTENNIAL " CLOTHING, 417. alcoholic spirits, 470. wines, 506. CHARBONNEL AND WALKER," 639. CHARITY," 440. "CHARTER OAK" STOVES, 313. CHEAT, 155. " CHEAVIN'S FILTERS," 528. " CHERRY PECTORAL,' ' 574. "CHERRY ST. MILLS" Flour, 405. " CHINESE LINIMENT," 99, 109. "CHLORODYNE," 230, 424. "CHRISTY'S MINSTRELS," 137, 242. CHUBB' S SAFES," 255. 42T INDEX. CHURNS, marks on, 358. CIGARS, marks on. See TOBACCO. CIRCUIT COURTS, jurisdiction of the U. S. in cases of registered trade-marks, 613, 629. CIRCULARS, issue of deceptive, 92, 163, 193, 207, 272, 305, 438. " CLARIBEL'S " SONGS, 293. "CLARK'S THREAD," 148. CLARKE'S CONSUMPTIVE PILLS," 93. CLASS OF GOODS, trade-marks can only be acquired for a particular, 215, 223, 234, 257, 555, 559, 616. infringement must be by use on the same, 314, 559. assignment of a mark gives no right to use it on another, 502. marks common in one, not necessarily common in other classes, 342, 579. registration of old marks for part of a, granted, 555, 616, 623, 643. new marks for part of a, refused, 645. for a, for part of which alone an old mark was registered, refused, 655. "CLICQUOT" CHAMPAGNE, 239. CLOTH, marks on, 1, 321, 400. CLOTHING, marks on, 417, 636. "CLUB HOUSE" GIN, 187. COAL, marks on, 327, 599, 633. COAL HEWERS, false tokens used by, 287. " COATS' THREAD," 79. " COCOAINE," 277. COCOATINA, marks on, 298. " COE'S SUPERPHOSPHATE OF LIME," 250, 489. COLLAR BOXES are not trade-marks, 538. COLLARS, marks on, 300. " COLLINS & CO. Hartford Cast Steel, Warranted," 151, 152, 164, 171. 428 INDEX. "COLOGNE, EAU DE," 113, 118, 130, 275, 592, 642,654. " COLONIAL LIFE ASSURANCE COMPANY, THE," 236. COLORABLE authority to use name, 76, 123, 243, 298, 390, 391, 409, 533, 534. imitation, 76, 96, 103, 106, 119, 120, 123, 124,134, 138, 150, 154, 170, 174, 175, 199, 200, 204, 213, 225, 228, 240, 244, 258, 271, 273, 275, 277, 291, 298, 310, 316, 317, 319, 329, 330, 331, 338, 345, 365, 366, 370, 374, 379, 395, 411, 415, 421, 435, 442, 445, 461, 463, 465, 466, 514, 545, 579, 580, 591, 603, 616, 617, 621, 636, 642, 646, 650, 651, 653. See PARTIAL IMITATION. no general rule to be laid down as to, 223. statement as to relationship, 460. " COLTON DENTAL ROOMS," late operator at the," 305. COMBINATION MARKS ON COTTON GOODS, 581, 585. COMMISSIONERS OF PATENTS IN ENGLAND, position of the, 515, 540, 647. in America, position of the, 525. COMMIT, motion to, 77, 115, 200, 245, 463, 570, 595, 633, 635. See ATTACHMENT. COMMITTEE OF EXPERTS AT MANCHESTER, position of the, 586, 622, 632. COMMON marks cannot be protected as trade-marks, 85, 218, 223, 226, 227, 236, 251, 263, 269, 274, 279, 282, 286, 289, 296, 306, 339, 363, 364, 407, 410, 431, 440, 448, 513, 520, 541, 581, 593, 596. See DESCRIPTIVE WORDS; QUALITY. marks do not become, unless similar marks have been in actual use, 646. under the Registration Acts marks used by more than three firms be- come, 558, 589, 593, 610, 611, 620. COMPANIES ACT, 1862, THE, 618, 619. COMPANY, name of, 88, 92, 154, 221, 236, 318, 325, 340,475,476, 500, 507, 548, 566, 604, 618, 619, 640. use of, restrained within certain limits, 325. COMPROMISE OF PROCEEDINGS, 194, 209. " CONDY'S FLUID" AND "OZONIZED WATER," 561. " CONGRESS SPRING WATER," 354. CONSTRUCTION, principle of. See PRINCIPLE OF CONSTRUCTION. CONTEMPORARY REVIEW, THE," 539. 429 INDEX. CONTEMPT, attachment issued for, 353. See COMMIT, MOTION TO. CONTINUANCE of action against administratrix refused, 482. CONTRACT for sale of attorney's practice enforced, 11. goods to be supplied under a certain name or mark, questions as to, 216,. 648. implied on sale of surgeon's practice, 220. CONVEYANCES, use of name of hotel on, 104, 111, 266. COPAIBA, Franks' Specific Solution of," 87. COPYRIGHT, trade-marks distinguished from, 84, 97, 130, 152, 246, 265, 292, 325. connected with, 105. in title of publication asserted, 638. only protected with the rest of the publication, 410. " CORRESPONDENT, THE," 246. COSMETICS, marks on. See TOILET, PREPARATIONS FOR THE. COSTS of litigation occasioned by infringement must be paid by infringer, 79, 81, 82, 169, 170, 171, 211, 213, 234, 255, 280, 387, 512. though an infant, 255. infringer can only escape paying, by offer of complete submission, 79, 136, 169, 170, 171, 234, 235, 321, 369, 583. of unnecessary litigation, successful plaintiff deprived of, 63, 170, 253, 261, 369, 663. occasioned by unfounded allegations thrown on successful plaintiff, 81, 258, 587, 608. not given when both parties are in pari delicto, 144. to successful but disingenuous defendant, 223, 230, 237, 257, 264, 265, 324, 442, 449, 478, 488, 498. to plaintiff who demanded more than his right, 285, 488, 512. delayed to take proceedings, 251, 500. acted too hastily, 254, 583. thrown upon plaintiff who had refused to accept a sufficient offer, 810. disentitled by misuse of the word " patent " and aware of the objection, 267. in doubtful case, 463. 430 INDEX. COSTS continued. of motion to commit thrown on defendant, though motion refused, 200. appearance on appeal thrown on party unnecessarily appearing, 369. innocent agents relieved from payment of, 369. given to innocent holders of goods spuriously marked, 369. of questions as to registration, 593, 616, 621, 626, 637. lien for, 369, 567. COTTON GOODS, marks on, 100, 134, 184, 186, 198, 199, 200, 204, 241, 307, 314, 338, 356, 411, 454, 500, 546, 581, 585, 586, 622, 646. " COUGH REMEDY," 541. COUNTER-CLAIM, injunction granted on, 443. " COURTRIA FLAX THREAD," 195. COVENANT compelling retiring partner to quit trade altogether, 5. vendor of solicitor's practice to quit practice in Great Britain, 66. to make good-will of business sold as profitable as possible, 20. not to publish a periodical like one sold, 259. not to trade within certain limits usual on sale of good-will, 168. by vendor of good-will and trade name enforced, 485, 604. "CRACK-PROOF" INDIA-RUBBER GOODS, 547. CREST AND ARMS as trade-marks, 251, 258, 338, 546, 592, 621, 622, 642, 654. CRIMINAL OFFENCE. See CHEAT; FALSE PRETENCES; FOBGERY; MISSOURI. discovery of matters tending to convict of, not enforced, 188. " CROCKETT'S LEATHER CLOTH," 223. "CRONICA, LA," 295. " CROSS " COTTON, 199, 200, 204. " CROUP MEDICINE," 516. CROWLEY MILLINGTON " STEEL, 63. " CROWN AND ANCHOR " WIRE, 213. Seixo wine, 256. paints, 402. clothing, 636. CRUCIBLES, marks on, 267. "CUNDURANGO OINTMENT, C. O." 376. CUSTOM, foreign, to infringe is no defence, 83. of trade to place makers' marks on goods made for them, 164. 431 INDEX. CUTLERS' COMPANY'S marks, 222, 621, 643. assignable where owned by a non-freeman, 222. title to, must be perfected before registration, 643. CUTLERY, marks on, 82, 115, 222,352,359,360,361,362,442,616,621,641,643. See EDGE TOOLS. " CUTTER" barrel, 373. whiskey, 427. "CYLINDER" GLASS, 121. " D," THE LETTER, in a lozenge, as a trade-mark, 371. DAMAGE, specific, need not be proved to constitute infringement of trade-mark, 50, 68, 82, 99, 196, 218, 280, 313, 379. entitle to substantial damages for imitation of carriages on hire, 111. for an interdict to be obtained in Scotland, 413. where there is proof of, substantial damages will be given, 83. the burden lies on the plaintiff to prove, 252. DAMAGES, nominal, given for infringement of right, 50, 59, 68, 82, 99. exemplary, not to be given for infringement of trade-mark, 83. substantial, given without proof of specific damage, 111. inquiry as to, given, though persons other than the plaintiff interested in the mark, 243. for breach of contract not given, there being a fraud on the public, 146. occasioned by order for spuriously marked goods, action for, 194. whole profits produced by sale awarded as, 347. important elements in determining the amount of, 354. not given where the defendants had acted bonajide, 387. plaintiffs had delayed, 500. profits which would have been made if an equal quantity of genuine goods had been sold, given as, 366, 481. for breach of contract given to exclusive licensee against licensor, 489. "DAVE JONES," WHISKEY, 437. " DAVIS' PAIN KILLER," 103, 281. " DAY AND MARTIN'S BLACKING," 21, 47, 76, 77. DECEPTION, there must be probability of, to constitute infringement of trade-mark, 53, 65, 72, 73, 84, 85, 91, 109, 123, 138, 157, 186, 215, 217, 223, 432 INDEX. DECEPTION continued. 230, 245, 256, 274, 293, 295, 332, 425, 426, 433,459, 466, 478, 488, 529, 541, 550. there must be probability of, to constitute infringement of name of company, 88, 221, 236, 618, 619, 640. burden of proof as to probability of, 646. "DECKER PIANO," 525. DECREE, FORM OF, in U. S. Court, 667. DEFENCE, knowledge of immediate purchaser is no, 40, 79, 83, 84, 136, 213, 247, 253. that a person infringing an author's rights is the owner of the copy- right is no, 49. the fact that no specific damage is proved is no, 50, 68, 82, 99, 196, 213, 280,313, 379. equality of quality is no, 50, 83, 84, 109, 213. descriptiveness of plaintiff's mark is, 4, 59, 100, 144, 179, 187, 205, 232, 269. See DESCRIPTIVE WORDS. plaintiff's own misrepresentations constituting, 60, 73, 90, 91, 133, 144, 191, 223, 232, 267, 308, 418, 434, 562, 575, 628. not constituting, 10, 106, 132, 136, 180, 195, 276, 323, 325, 348, 483, 587, 591. delay constituting, 116, 117, 118, 246, 314, 337, 352, 381, 442, 449, 628. not constituting, 83, 110, 115, 132, 228, 244, 304, 313, 325, 344, 455, 580, 602, 638, 642. on motion to commit, 115. misuse of word "patent" constituting, 116, 223, 267, 288, 324, 343, 444, 528. not constituting, 40, 119, 142, 214, 267, 304, 316, 384. having ceased to use the mark infringed is no, 125. not being registered at the Stamp Office as proprietor of news- paper is no, 141. mark not having been on goods in the market is a, 140, 215, 223, 234, 264, 301, 339. alienage is no, 78, 79, 83, 84, 151, 152, 164, 171. having acquiesced gratuitously in the infringement is no, 100. having adopted an additional mark is no, 226, 384. having adopted the mark only recently is no, 215, 234. not being solely interested in the maik is no, 80, 196, 243. own improper conduct in misleading the defendant is, 265. merely collateral misrepresentations are no, 291, 384. own goods being injurious is no, for a defendant in pari deliclo, 291. 28 433 INDEX. DEFENCE continued. plaintiff's not having registered his mark in the United States is no, 352. having partly purchased and partly invented is no, 367. abandonment of his mark held not to be established, 367. mark consisting of known words is no, if the combination is new, 390. copyright being insufficient, held to fail, 390. not being himself the manufacturer of the article is no, 461. having used the mark beyond the limits fixed on the assignment to him is, 628. publication having been long out of print is no, 638. goods having become known in the market by a variety of names is no, 646. defendant's name being placed in the spurious mark is no, 198, 226, 269, 280, 301, 310, 329, 609, 646. may be an element of, 227, 232, 251, 363, 484, 608. mark being permitted by foreign law is no, 275. licensed by foreign sovereign is no, 352. having ceased to use the spurious mark is no, 484, 603, 617. not being personally cognizant of the fraud is no, 321, 583. absence of fraudulent intention is no, 63, 99, 109, 157, 171, 174, 194, 204, 213, 247, 253, 313, 315, 329, 340, 387, 433, 466, 477, 500, 579, 580, 608, 646, 650. foreign custom to infringe is no, 83, 275. colorable differences are no, 76, 103, 138, 213, 228, 250, 256, 302, 305, 313, 329, 352, 370, 379, 395, 435, 636, 646, 650, 651, 653. See COLORABLE IMITATION. absence of probability of deception is, 53, 65, 72, 73, 84, 85, 91, 109, 123, 138, 157, 186, 215, 217, 221, 230, 236, 245, 256, 274, 293, 295, 332, 425, 426, 433, 459, 466, 478, 488, 529, 541, 550, 618, 619, 640. that the name used is the defendant's own name, and that there is no fraud, is, 82, 106, 117, 148, 180, 240, 257, 278, 427, 472, 521, 525, 534, 541, 560, 573, 580. that the mark is used on other classes of goods, is no, 579. DELAY, plaintiff disentitled by, 116, 117, 118, 246, 314, 337, 352, 381, 442, 449, 628. on motion to commit, 200. to account, 244, 251, 500, 580. to costs, 251, 500. to damages, 500. 434 INDEX. DELAY continued. plaintiff not disentitled by, 83, 110, 115, 132, 228, 244, 304, 313, 325, 344, 455, 580, 602, 638, 642. on motion to commit, 115. for the purpose of obtaining evidence, 304, 325. effect of, on the account, 384, 580. does not affect right to injunction, 580, 665. DELIVERY-UP of spuriously marked goods for erasure, 196, 211. after erasure to indorsee of dock-warrants, 229. DEMOCRATIC REPUBLICAN NEW ERA, THE," 65. "DENT'S WATCHES," 196. "DERRINGER'S PISTOLS," 249, 347. DESCRIPTIVE device, 425, 527. words cannot be claimed, 59, 279, 528, 529, 541. See COMMON MARKS ; QUALITY. " Dr. Johnson's Yellow Ointment," 4. "A. C. A." cotton tickings, 100. "Burgess' Essence of Anchovies," 117. " Galen," " Lake," " Cylinder," " Wayne," " New York " glass, 121. " Balm of Thousand Flowers," 144, 145. " Schiedam Schnapps," 179, 415, 653. " Club House Gin," 187. 'Paraffin Oil," 205. " Extract of Night-blooming Cereus," 232. " Old London Dock Gin," 240. "Liebig's Extract of Meat," 286. " Ferro-Phosphorated Elixir of Calisaya Bark," 289. " Desiccated Codfish," 306. " Lackawanna Coal," 327. " Antiquarian Book-store," 336. "Beeswax Oil," 357, 377. " Razor-Steel," 362. " Mammoth Wardrobe," 363. "Cundurango Ointment, C. O." 376. "Invisible " face-powder, 378. " Macassar Oil," 386. " Lieut. James' Horse-blister," 388. " Golden Ointment," 389. " Parson's Purgative Pills, P.P. P." 404. "Johnson's American Anodyne Liniment, Established A. D. 1810," 404. 435 INDEX.. DESCRIPTIVE continued. " New Manny Harvester, The," 412. " Richardson's Patent Union Leather-splitting Machine," 115. " American Sardines," 422. " Chlorodyne," 424. " Loch Katrine " whiskey, 452. " Julienne " soup, 461. " Tasteless " drugs, 493. " Fiir Familien Gebrauch," 504. " Lawrence Feiner Familien Flannel," 504. " Croup Medicine," 516. " Station Hotel," 520. " Cough Remedy," 541. " Crack-proof "india-rubber, 547. " Cachemire MHano," 571. " Cherry Pectoral," 574. "Highly Concentrated Compound Fluid Extract of Buchu," 575. " Egg Macaroni," 577. " Angostura Bitters," 591. " Valvoline " oil, 597. " Iron-stone " water pipes, 612. " Anglo-Portugo Oysters," 625. " Porous " plasters, 626. " Ne Plus Ultra " needles, 262. " Nourishing Stout," 431. " East Indian Medicines," 670. " Post Office" directory, 661. " Charity " as name of a play, 440. "Iron Stone," 612. " Singer Machine," 659. " DESICCATED CODFISH," 306. DESIGN PATENT, will not be granted in the United States to a trade-mark, 341. distinguished from trade-mark, 582. " DEVLIN & CO." 463. DIRECTIONS FOR USE, imitation of, 31, 50, 99, 163, 296, 432, 560. DISCONTINUANCE OF USE, by plaintiff of genuine mark, is no defence, 125. defendant of spurious mark, is no defence, 484. DISCOVERY, enforced in full, 203, 224, 519. 436 INDEX. DISCOVERY continued. enforced in full, with limitations, 356. of matters tending to convict of a criminal offence not enforced, 188. DISENTITLED, plaintiff, by his own misrepresentations, 60, 73, 90, 91, 106, 133, 144, 191, 223, 267, 291, 308, 418, 434, 562, 575, 628. however obvious they may be, 223. misuse of the word " patent," 116, 223, 267,288, 324, 343, 444, 528. improper conduct in misleading the defendants, 265. delay, 116, 117, 118, 246, 314, 337, 352, 881, 442, 449, 628. retaining guarantee of his assignor's personal inspection, 575. using trade-marks beyond the limits fixed on assignment, 628. not, by incorrect statements as to authorship of his magazine, 10. authorship of his musical composition, 132, 136. make of his thread, 142, 195. size of his bottles, 483. his "pianoforte tutor," 587. as against a defendant in pari delicto, 180. assumption of title of professor, 106. use of word "patent," 40, 119, 142, 214, 267, 304, 316, 384. name of vendor of the business, 323. delay, 83, 110, 115, 132, 228, 244, 304, 313, 325, 344, 455, 580, 602, 638, 642. alienage, 78, 79, 83, 84, 151, 152, 164, 171. discontinuing the use of the mark infringed, 125. non-registration at the Stamp Office as proprietor of a newspaper, 141. book having been long out of print, 638. his goods having become known by a variety of names, 646. DISMISSAL of suit for injunction, abandonment of trade-mark by, 230. DISSOLUTION, of partnership, right of partners on, 37, 122, 149, 156, 172, 173, 176, 177, 180, 202, 206,^207, 210, 215, 238, 248, 260, 368, 383, 393, 406, 408, 437, 455, 548, 561, 566, 585, 639. notices of, not to be published until expiration of term, 75. specific performance granted of agreement between solicitors on, 135. "DIXON'S STOVE-POLISH," 331. "DOCTOR Johnson's Yellow, or Golden Ointment for the Eyes," 4, 38, 389. "Morse's Indian Root Pills," 180. 437 INDEX. " DOCTOR " continued. 11 3. M. Lindsey's Improved Blood-Searcher," 279. " Simmons' Liver Medicine," 348. "Lobenthal's Essentia Antiphthisica," 497. " J. Blackman's Genuine Healing Balsam," 502. " C. M'Lane's Liver Pills," 580. DOG-BISCUITS, marks on, 488, 644, 645. " DOWNER, BEMIS & CO." 231. "DUBLIN" SOAP, 565. " DURABLE " PRINTERS' ROLLERS, 630. " DURHAM SMOKING TOBACCO," 392, 399, 466, 590. " EAGLE BRAND " IRON, 258. " Pencil Company, The," 522. "EAU-DE-COLOGNE," 113, 118, 130, 275, 592, 642, 654. "ECONOMIC CONVEYANCE COMPANY, THE," 86. EDGE-TOOLS, marks on, 151, 152, 164, 171. See CUTLERY. "EDINBURGH CORRESPONDENT, THE," 34. " Philosophical Journal, The," 89. EDITOR OF NEWSPAPER, rights of, 39, 181, 450. "EGG MACARONI," 577. " EICHELE & CO.'S" MATCHES, 485. ELEMENTS, necessary to found jurisdiction of court, 228, 234. "ELEPHANT CHOP" CLOTHS, 198. yarn, 646. " ELKINGTON'S A" SPOONS, 147. EMBROIDERY COTTON, marks on, 199, 200, 204. " EMERSON'S ELASTIC RAZOR STROP," 309. EMPLOYMENT, rights of servant on leaving. See FORMER EMPLOYMENT. "ENGLAND'S QUEEN" SEWING-MACHINES, 459. "ENGLISH'S X BROOMS," 342. ENGRAVERS, infringement of trade-marks by, 89, 113. ENLARGEMENT of injunction to cover further fraud, 200. "ENO'S FRUIT SALT," 609. "EQUAL TO DAY & MARTIN'S " BLACKING, 47. 438 INDEX. EQUALITY IN QUALITY IS NO DEFENCE, 50, 83, 84, 109, 213. " ERA, THE," 550. ERASURE OF SPURIOUS MARKS, 196, 211, 369. "ESSENCE of anchovies, Burgess'," 117, 169, 170. " beef, Brand's," 534, 570. "ESTCOURT'S HOP SUPPLEMENT," 449. ETCHINGS, publication of catalogue of, improperly obtained, restrained, 98. "ETHIOPIAN STOCKINGS," 80. "EUREKA Ammoniated Bone Superphosphate of Lime," 364. shirts, 384. "EVERETT'S PREMIER" BLACKING, 120. EVIDENCE of defendant's intention, 72. plaintiff not disentitled by delay for the purpose of obtaining, 304, 325. EX leres DE LA MAISON BOISSIER DE PARIS," 498. "EXCELSIOR" COTTON GOODS, 546. white soft soap, 226. EXCEPTIONS FOR SCANDAL, 414. EXCLUSION of patentee from using his own name as his trade-mark by its prior adoption by another, 284. EXCLUSIVE right in article exists only by patent, 3, 4, 19, 59, 68, 84, 99, 103, 130, 388, 389, 416, 461, 591, 628. trade-mark acquired by long user, 51, 459. without long user, 215, 234, 325, 364. only for a particular class of goods, 215, 223, 234, 257. by purchase from trustees for creditors, 222, 323, 575. which contains a false assertion cannot be obtained, 223. And see REPRESENTATIONS. has been partly purchased and partly invented, 367. words maintainable, irrespective of fraudulent imitation, 63. And see FRAUDULENT INTENTION. not maintained, 57. of quality cannot be maintained, 59, 85, 100, 121, 187, 226, 232, 236, 269, 279, 289, 339, 410, 431, 541, 557, 581, 626. And see DESCRIPTIVE WORDS. right in name applied to goods made under patent not claimable, 205, 474, 528, 536, 561, 578. prize medal not claimable, 218. 439 INDEX. i EXECUTORS, action by, 338, 347. EXEMPLARY damages not to be given for infringement of trade-mark, 83. EXHIBITION in public held to be evidence of defendant's bona fides, 251. EXPERTS, committee of, at Manchester, 586, 622, 632. EXPORTER OF GOODS, question between manufacturer and, 5S5. " EXTRACT OF MEAT, Liebig's," 286. "FABER'S PENCILS," 278. FALSE PRETENCES, 120, 147, 155, 161, 182, 183, 285, 287, 349. FAMILY name, no right of property in, 312. residence, no right of property in name of, 63-1. FANCY NAMES valuable in proportion to their extravagance, 145, 205. " Howqua's Mixture " tea, 60. " Medicated Mexican Balm," 73. " Persian Thread," 78, 83, 84, 124. "Ethiopian Stockings," 80. " Wistar's Balsam of Wild Cherry," 90>. "Chinese Liniment," 99, 109. " Perry Davis's Pain Killer," 103, 281. " Everett's Premier " blacking, 120. "Kathairon," 133. "Balm of Thousand Flowers," 144, 145. " Genuine Yankee Soap," 150, 225, 662. " Dr. Morse's Indian Root Pills," 180. "Meen Fun " skin powder, 191. " Cross" cotton, 199, 200, 204. " Anchor Brand " wire, 213. " Excelsior White Soft Soap," 226. " Chlorodyne," 230. " Anatolia " liquorice, 234. " Ox " mustard, 244. " Star " iron, 271. pencils, 481. oil, 486. " Sweet Opoponax of Mexico," 276. " Cocoaine," 277. 440 INDEX. FANCY NAMES continued. " Bismarck " collars, 300. "Hero" jars, 301. " Golden Crown " cigars, 308. "Charter Oak " stoves, 313. " Bovilene" pomade, 319. " Grenade " syrup, 334. "Congress Spring " water, 354. " Eureka" goods, 364, 384. " Silver Grove " whiskey, 374. " Beaverine " boots, 375. "Durham Smoking Tobacco," 392, 399, 466, 590. " Keystone Line " of steamships, 396. " Turin," " Sefton," " Leopold," " Liverpool" cloth, 400. " Centennial Clothing," 417. "wines," 506. " Magnolia," " Dave Jones " whiskey, 437. " Rising Sun " stove polish, 445. "Licensed Victuallers' Relish," 447. " Pectorine," 458. " Gouraud's Oriental Cream," 460. " Slate Roofing Paint," 471. " German Sirup," 473. " Lion " goods, 501. " Tamar Indien " lozenges, 532. " Lactopeptine " medicine, 543. " Dublin " soap, 565. " Wamsutta" muslin, 660. " Mrs. Mills' Cream," 664. " FARINA'S EAU DE COLOGNE," 113, 118, 130, 275, 592, 642, 654. " FERRO-PHOSPHORATED ELIXIR OF CALISAYA BARK," 289. "FIBRINE DOG-CAKES," 644. FILTERS, marks on, 528. FIREWORKS, marks on, 253. FIRM NAME. See TRADE NAME. FLANNEL, marks on, 504. "FLAVEL'S PATENT KITCHENER," 116. "FLOR FINA PRAIRIE SUPERIOR TABAC " cigars, 433. 441 INDEX. FLOUR, marks on, 367, 405, 490, 649. "FORD'S EUREKA SHIRT," 384. FOREIGN custom to infringe trade-marks is no defence, 83. language, words in, used as trade-marks, 51, 334, 411, 581, 647. trade-marks, infringement of. See ALIENS. FORGERY, 155, 161. FORMER EMPLOYMENT may be stated by a former servant or member of a firm so as not to produce deception, 107, 210, 223, 247, 254, 309, 398, 498, 534. but not in such a way as to produce deception, 117, 119, 247, 305, 398, 566. nor in breach of contract, 552. FORWARDING AGENTS, injunction against, 369. "FRANKS' SPECIFIC SOLUTION OF COPAIBA," 87. FRAUD disentitling to remedy. See DEFENCE ; DISENTITLED. name of place of business may be used without, 521. on the public. See PUBLIC. FRAUDULENT intention, there may be infringement without, 69, 99, 109, 157, 171, 174, 194, 204, 213, 247, 253, 313, 315, 329, 340, 387, 433, 466, 477, 500, 579, 580, 608, 646. trade-marks may not be imitated with, 73, 119, 294, 398,407, 433, 542, 580, 650. must be proved in a common law action, 2, 4, 72, 82, 140, 213, 338. an action under 5 & 6 Will. IV. c. 83, 7, 167. imitation of name over shop frontage, 304. use of another's testimonials, restrained, 87. man's own name, restrained, 106, 117, 124, 148, 333, 340, 388, 580. "FRESE & CO.'S" TEA, 484, 603. "FROM Thresher & Glenny," 247. " the late R. Hendrie," 254. " Hookham & Pottage," 398. " FRUIT SALT, ENO'S," 609. "FULLWOOD & CO.'S" ANNATTO, 421, 602. "GALEN" GLASS, 121. INDEX. GENUINE marks, infringement by misuse of, 126, 253, 441, 549, 556, 650, 651. Yankee soap, 150, 225. GEOGRAPHICAL NAMES as trade-marks, 234, 282, 327, 339, 392, 399, 405, 407, 410, 439, 452, 529, 542, 565, 590, 599, 601. "GERMAN SIRUP," 473. " GILLOTT'S PENS," 126, 269. GIN, marks on. See SPIRITS. "GLACE" THREAD, 190. GLASS, marks on, 121. " GLENDON " IRON, 439. " GLENFIELD STARCH," 329. "GLOBE" CUTLERY, 641. " GOLD MEDAL " SALERATUS, 448. " GOLDEN OINTMENT," 389. "GOLSH'S FRICTION MATCHES," 91. GOODS AND CHATTELS," within the Bankruptcy Acts, good-will of newspaper passes as, 12, 159. trade-mark passes as, 537. GOOD-WILL, what is, 17, 25, 45, 58, 74, 128, 139, 156, 172, 206, 385, 462, 588. personal and local, distinguished, 69, 462. of profession and of trade, distinguished, 156, 588. of newspaper, what is, 576. incapable of seizure by a sheriff, 159. connection of, with the business itself, 189. trade name, 1 72. marks, 91, 168, 331, 350, 630. trade-marks cannot be severed from, 331, 447, 487, 492. of trading business is assets, 3, 6, 35, 58. of professional practice held to be assets to some extent, 102. not to be assets, 46, 588. of partnership is assets, 16, 64, 70, 139, 165, 176, 177, 185, 192, 202, 206, 210, 215, 248. of newspaper is partnership assets, 173, 178. " goods and chattels " within the Bankruptcy Acts, 12, 159. of partnership carried on under articles held to survive, 139, 208. without articles held to survive, 9. not to survive, 14, 64, 139, 165, 185. may not be appropriated by one of the partners, 75, 122, 149, 202, 206. 443 INDEX. GOOD- WILL continued. of medical practice held to survive, 28. of newspaper held not to survive, 35. of married woman's business survives to her, 131. transmission of, on bankruptcy, 69, 323, 575. of public-house held to be incident to the stock and license, 74. value of, how ascertained, 462. option under articles to representative of deceased partner to retain share in, enforced, 127. value of deceased or retiring partner's interest in, how ascertained, 70, 156, 158, 176, 177, 206, 208, 215, 238, 248, 260, 451. of share in business, specific transfer of, under legacy, not enforced, 189. sale of, 11, 13, 20, 25, 27, 82, 36, 45, 58, 62, 102, 114, 128, 153, 158, 168, 172, 176, 185, 220, 238, 248, 406, 423, 479, 485, 576, 588, 639. facts to be stated on, 37, 158, 215, 238. sum payable on, 20, 25, 27, 32, 156, 158, 260. assignment on, subject to duty within the Stamp Acts, 128. by executors, 479. assignees in bankruptcy, 323, 575. trade-mark held to pass on, without express mention, 350, 354. name held to pass on, without express mention, 639. not to pass on, 185, 575. when it can be specifically enforced, 153, 168. of legal practice permissible, 1 1 . after vendor restrained from practising in Great Brit- ain, 66. agreement for, not specifically enforced, 22, 71. of medical practice, implied contract on, 220. of public-house, specific performance of agreement for, granted, 43. specific performance of agreement for, refused, 42, 153. breach of contract on, restrained, 114, 303, 335, 350, 485, 548, 552, 604. after, vendor may set up a similar business, 1 7, 25, 27, 1 72, 383, 406. may not set up the same business, 17, 25, 29, 207, 272, 323, 385, 423. a similar business in the same situation, 25, 36, 172, 323. rights of purchaser of, 479, 639. held not to be included in partnership " property, credits and effects," 129. " stock in trade and effects," 129. " premises, stock in trade," etc., 208. " stock in trade, goods, chattels, and effects," 260. " estate and effects," as ascertained by annual valuation, 605. 444 INDEX. GOOD- WILL continued. held to be included in " stock belonging to tbe partnership," 215. partnership " premises and effects," 350. " effects and things," 614. "property and effects," 615. " GOOD-WILL," ETC. the meaning of the expression, explained, 168. "GOURAUD'S ORIENTAL CREAM," 460. " GOVERNMENT SANITARY COMPANY, THE," 604. " GREAT MOGUL " STAMP ON CARDS, 2. " GRENADE SYRUP," 334. GROSS, trade-marks cannot be acquired in, 447, 487, 492, 630. except by the previous maker of the goods, 492. " GUINEA COAL COMPANY, THE," 325. " GUINNESS' STOUT," 89, 617. " GUNPUTTY " YARN, 646. GUNS, marks on, 441. "HALL'S VEGETABLE SICILIAN HAIR RENEWER," 335, 853. HALL-MARK, transposition of, criminally punishable, 54. false representation as to, 285. " HALLETT AND CUMSTON," 391. " HARRISON'S MUSTARD," 244. " HARVEY'S SAUCE," 160, 344, 346. "HAXALL" FLOUR, 490. HEADINGS ON COTTON GOODS, 454, 581, 585. HELIOTYPES, marks on, 430. "HELMBOLD'S HIGHLY CONCENTRATED COMPOUND FLUID EXTRACT OF BUCHU," 575. "HEMY'S ROYAL MODERN TUTOR FOR THE PIANO- FORTE," 587. " HENNESSY & CO.'S COGNAC," 483, 531, 549, 556, 650, 651. " HENRY'S CALCINED MAGNESIA," 48. " HERO " GLASS JARS, 301. " HOBART FENN & CO." 166. " HOLBROOK'S SCHOOL APPARATUS," 263. "HOLLOWAY'S PILLS AND OINTMENT," 106. " HOME AND COLONIAL LIFE ASSURANCE COMPANY (LIM- ITED), THE," 236. HONES, marks on, 50. 415 INDEX. "HOOKHAM AND POTTAGE," 398. HOOPS ON BARRELS are not trade-marks registrable in the United States, 480. "HOP SUPPLEMENT, ESTCOURT'S," 449. HORSE BLISTERS, marks on, 209, 388. " HOSTETTER'S CELEBRATED STOMACH BITTERS," 366, 652. HOTEL, name of " Irving House," 108. "What Cheer House," 212. "McCardel House," 233. " Wood's Hotel," 467. " Station Hotel," 520. use of, on carriages, " Irving House," 104. "Revere House," 111. " Prescott House," 266. is assignable, 467. belongs to lessee of hotel, 212, 467. HOUSE, name of, " Osborne House," 323. " Booth's Theatre," 524. " Ashford Lodge," 631. "HOUSEHOLD WORDS," 173. " HOWE " SEWING-MACHINES, 203, 284, 569. " HOWE'S BAKERY," 185. "HOWQUA'S MIXTURE" TEA, 60. HUNGARIAN NOTES, spurious issue of, restrained, 197. IDENTICAL, marks need not be, to constitute infringement, 100, 138, 184, 250, 256, 305, 313, 329, 352, 370, 514, 579, 636, 646. And see COLORABLE IMITATION. registration of two, 589. substance, injunction limited so as not to restrain the use of the mark on the, 591. "ILLUSTRATED," the word, cannot be exclusively appropriated, 85. IMITATION, COLORABLE. See COLORABLE IMITATION. "IMPERIAL IRON TUBE COMPANY, THE," 566. IMPOSITION on the public is the test of infringement, 215, 223. 446 INDEX. INDIAN CASES, 241, 315. "Root Pills," 180. " INDIA-RUBBER Comb Company, The," 475, 476. goods, marks on, 475, 476, 507, 547. INDICTMENT. See CHEAT ; FALSE PRETENCES ; FORGERY. INFANT INFRINGES must pay the costs of the proceedings, 255. INFERIORITY IN QUALITY not required to constitute infringement, 50, 83, 84, 109, 213. no ground of action where name used is common, 59. INFRINGEMENT, principles on which, is prohibited, 73, 76, 84, 91, 100, 108, 109, 124, 126, 130, 145, 154, 213, 215, 223, 269, 270, 302, 320, 325, 329, 340, 354, 407, 413, 466, 477, 580, 649, 665, 667. what constitutes, 73, 76, 89, 109, 123, 138, 213, 223, 234, 241, 256, 300, 425, 433, 474, 500, 579, 580, 636, 646, 650, 653, 665, 667, 674. marks need not be identical to constitute, 100, 138, 184, 250, 256, 305, 313, 329, 352, 370, 514, 579, 636, 646, 665, 674. probability of deception is necessary to constitute, 53, 65, 72, 73, 84, 85, 88, 91, 109, 123, 138, 157, 186, 215, 217, 221, 223, 230, 236, 245, 256, 274, 293, 295, 332, 425, 426, 433, 459, 466,478,488, 529, 541, 550, 618, 619, 640. colorable. See COLORABLE IMITATION. fraudulent intention is not necessary to constitute, 63, 99, 109, 157, 171, 174, 194, 204, 213, 247, 253, 313, 315, 329, 340,387,433,466, 477, 500, 579, 580, 608, 646. progressive, 275, 514. imposition on the public is the test of, 215, 223. knowledge of the immediate purchaser is immaterial in case of, 40, 79, 83, 84, 136, 213, 253, 646. equality of quality is immaterial in case of, 50, 83, 84, 109, 213. actual deception or specific damage is not necessary to constitute, 50, 68,82, 99, 196, 280, 313, 379. by misuse of genuine labels and stamps, 126, 253, 441, 549, 556, 650, 651. by adoption of name tending to produce deception, 256, 636. by engravers, 89. by printer, 113, 130. must be by user on same class of goods, 314, 559. no injunction obtainable in early times to restrain, 2. mode of trial of action for, 644. of name of newspaper, what is, 34. INDEX. INFRINGEMENT continued. of rights of legal author, what is, 49. expounded and explained, 665, 672, 674. where mark not attached to the goods, 672. INITIAL LETTERS, trade-marks consisting of, or containing, 53, 61, 63, 72, 100, 199, 200, 204, 215, 216, 222, 307, 338, 371, 376, 404, 493, 530, 533, 537, 540, 567, 568. injunction granted to restrain the use of, in breach of contract, 419. INJUNCTION, jurisdiction of court to protect property from injury by, 197, 665. fraud on the public is no ground for an, 7, 455, 487, 639. enlarged to cover further fraud, 200. limited to goods not yet arrived, 370. interlocutory, refused, where nothing had been done, 536. granted, though persons other than the plaintiffs interested in the marks, 80, 196, 243. notwithstanding offer of submission by defendant, 63, 169, 170, 171, 235, 261, 411, 663. that no previous application had been made to defend- ant, 169, 280, 653. that defendants were ignorant even of plaintiffs' exist- ence, 204. that plaintiffs' mark had been used first by others, 276. on counter-claim, to restrain use of address, 443. so as not to restrain use of mark on identical goods, 591. until certain events, 591, 599. to restrain publication of catalogue of etchings improperly ob- tained, 98. partial imitation, 100, 138, 184, 250, 256. And see IDENTI- CAL MARKS. misuse of genuine marks, 126, 253, 441, 549, 556, 650, 651. surviving partner from trading under a new name, 127. infringement by forwarding agents, 369. soliciting customers, 114, 141, 207, 385, 566. publication of statements as to newspaper, 162, 173. injurious to property, 211. the unauthorized use of trade name by purchaser of good- will, 185. misrepresentations by lessees of fire-brick works, 193. issue of spurious Hungarian notes, 197. one partner from monopolizing the good-will of the partner- ship on dissolution, 202, 566. 448 INDEX. INJUNCTION continued. granted to restrain infringement, though plaintiff had adopted an ad- ditional mark, 226, 646. purchaser of hotel from using plaintiff's name, 233. action for damages for non-delivery of spuriously marked goods to indorsee of dock-warrants, 239. the appearance of a man's name in connection with a magazine, 259. a purchaser from one of two partners from monopolizing the part- nership style, 268. passing goods spuriously marked into the market, 299, 326. exact imitation only, 557. improper representations on dissolution of partnership, 566. the use of name of hotel. See HOTEL. house. See HOUSE. man's own name, where fraud exists, 106, 117, 124, 148, 333, 340, 388, 580. discontinued mark, 125. spurious mark, since discontinued, 484. name of publication. See MUSICAL COMPOSITION ; PUB- LICATION ; SONG. name of company. See COMPANY. moulded bottles, 551, 652, 653. appellation of medical man, 328. a father's altered name by his sons, 460. labels and wrappers, but refused as to name of goods, 512, 653. name of goods by persons who had manufactured for the plaintiff, 517. trade-marks on goods sent to a specified market, 581. a trade-mark to which registration had been refused, 646. breach of contract on sale of good-will, 25, 29, 114, 303, 335, 350, 485, 548, 552. by singer, 112. as to use of initial, 419. not granted, where joint plaintiffs were not entitled to joint relief, 44. the defendant's book was not represented to be the plaintiff's, 67. plaintiff's title not clear, 134, 145, 191, 246, 284, 374, 391, 410, 487, 492, 494, 512. plaintiffs set a trap for the defendant, 556. on account of former close business relations between the parties, 109. unless plaintiff's mark on vendible goods in the market, 140, 215, 223, 234, 264, 301, 339. 29 419 INDEX. INJUNCTION continued. not granted to restrain sale of genuine goods, 143. publication of an unfair report of proceedings in a trade-mark case, 190. unauthorized use of prize medal, 218. breach of covenant not to use motto, 546. a fair comparison of rival articles, 574. use of deceased partner's name by surviving partners, 7. man's own name, where no fraud, 82, 106, 117, 148, 180, 240, 257, 278, 427, 472, 521, 525, 534, 541, 573, 580. moulded bottles, 157, 608, 628. trade name, 283. motion to commit for breach of, 77, 115, 200, 245, 463, 570, 595, 633, 635. attachment issued for breach of, 353. INK, marks on, 273, 510. INNOCENT VENDORS, price of .spuriously marked goods recovered by, 101. INSCRIPTIONS on bottles, etc., 18, 31, 163, 248. claimed as trade-marks, 123, 523, 541. INSOLVENCY produced by defending an action for infringement of trade-mark, 649. INSPECTION, order made for, 531. INTENTION of infringer immaterial, 63, 99, 109, 157, 171, 174, 194, 204, 213, 247, 253, 313, 315, 329, 340, 387, 433, 466, 477, 500, 579, 580, 608, 646. INTERDICT granted in Scotland to restrain improper use of name of sheriff's of- ficer, 438. INTERFERENCES in the United States Patent Office, 399, 417, 437, 496, 554, 627. INTERIM INTERDICT refused in Scotland till after damages recovered, 262. INVENTION of article on which trade-mark is used is immaterial, 91, 339, 390, 580. trade-mark is immaterial, 138, 410, 554. INVISIBLE" FACE POWDER, 378. IRON, marks on, 72, 215, 216, 258, 271, 439, 530, 540, 555, 623, 524, 648. And see CUTLERY; STEEL. 450 INDEX. IRON continued. " iron-stone " water-pipes, 612. " Iron Trade Circular, The," 420. " IRVING HOTEL," 104, 108. "JAMES' HORSE BLISTERS," 209, 388. JARS, marks on, 301, 444, 578. "JOHN BULL, THE," 33. "JOHN BULL AND BRITANNIA, THE," 141. "JOHN DOUGLAS & CO." 172. " JOHN G. LORING & CO." 201. "JOHN C. RAGSD ALE Ammoniated Dissolved Bone," 554. " JOHN SCOTT & CO." 393. "JOHNSON'S AMERICAN ANODYNE LINIMENT, ESTAB- LISHED A. D. 1810," 404. JOINT plaintiffs not entitled to joint relief, 44. JUDICATURE ACT, 1873, sec. 25, sub-s. 8, 564, 594, 606, 607, 631. "JULES JURGENSEN, COPENHAGEN," WATCHES,' 211. "JULIENNE" SOUP, 461. JURISDICTION of court, elements necessary to found, 228, 234. of U. S. Circuit Court in cases of registered trade-marks, 613, 629. JURY, questions for the, 49, 56, 72, 82, 92, 120, 167, 338. K. & G. PATENT ELASTIC" PENHOLDERS, 167. KAINIT, marks on, 397. "KEYSTONE LINE" OF STEAMSHIPS, 396. "KIRBY'S neplus ultra" NEEDLES, 251. KITCHENER, marks on, 116. " L. H. & S." WINE, 537. L. L." WHISKEY, 228. LABELS, complicated stamps on leather cloth held not to be trade-marks, but mere, 223. LACHES. See DELAY. " LACKAWANNA " COAL, 327. "LACTOPEPTINE" MEDICINE, 543. "LAFERME" CIGARETTES, 512. 451 INDEX. "LAIRD'S BLOOM OF YOUTH, OR LIQUID PEARL/' 418. "LAKE" GLASS, 121. LANCASTER, cases in the Chancery Court of, 328, 581. LANGUAGES, words in modern foreign, used as trade-marks, 51, 334, 411, 581, 647. use of several, in labels, 291, 411, 432, 591. LARD, marks on, 425. "LATE of Lundy Foot & Co." 107. "of 107 Strand," 117. " Tayler & Co., J. Vick from the," 119. " Harpers & Moore," 193. Leach & Clark," 210. " with Crockett," 223. " Robert & Walter Scott," 268. " operator at the Colton Dental Rooms," 305. " of Headington Hill, Oxford, and formerly of Mayfair," 552. " the works of and partners and managers in the Imperial Tube Com- pany," 566. "of Somerset Place, Hoxton," 602. " LAZENBY'S HARVEY'S SAUCE," 344, 346. LEATHER CLOTH, marks on, 214, 223, 224, 252, 324. LEGAL AUTHOR, improper use of name of, 49. "LEOPOLD" CLOTH, 400. " LEOPOLDSHALL KAINIT," 397. LETTERS, opening, 75, 219, 237, 423. trade-marks consisting of or containing, 53, 61, 63, 72, 100, 199, 200, 204, 215, 216, 222, 307, 371, 338, 376,404, 493, 530, 533, 537, 540, 567, 568. deception assisted by use of small, 47, 107, 212, 247, 305, 398, 534, 650. large, 329. LIBEL, question as to injunction to restrain, 30, 52, 67, 93, 94, 95, 424, 438, 453, 457, 564, 594, 606, 607. LICENSE, plaintiff must prove that defendant has no, 228. gratuitous acquiescence by owner in infringement is mere revocable, 100, 137. 452 INDEX. LICENSE continued. to use trade-mark and sue infringers, acquiescence by owner of trade- mark must amount to, to cause motion to commit to fail by reason of delay, 115. to use name on hotel, held to be revocable, 233. to use name of hotel on coaches held to be revoked on sale of hotel by licensor, 266. trade-mark on goods made according to patent by, 284. from foreign sovereign to use spurious trade-marks is no defence, 352. to use a certain name on a line of steamships, 396. to use a certain partnership name, 406. to use a trade-mark exclusively for a certain period, 502. " LICENSED VICTUALLERS' RELISH," 447. LICENSOR, damages given to exclusive licensee against, 489. " LIEBIG'S EXTRACT OF MEAT," 286. LIEN on spuriously marked goods for costs, 369, 567. " LIEUTENANT JAMES' BLISTERING COMPOUND," 200. LIME JUICE, marks on, 551, 608. LINE of omnibuses, 57. steamships, 396. LINNELL'S PAINTINGS, 155. " LINOLEUM," 536. "LION" hall-mark, transposition of, 54. "chop" cloths, 198. mark registered in alternative shape, 501. LIQUORICE, marks on, 234. " LITTLE RED BOOK, THE," 478. "LIVE AND LET LIVE" OYSTER AND DINING SALOON, 330. "LIVERPOOL" CLOTH, 400. "LLOYD'S EUXESIS," 337. LOCAL and personal trade-marks distinguished, 215. "LOCH KATRINE" WHISKEY, 452. LONDON conveyance company's " omnibuses, 57. , " and Provincial Law Assurance Society, The," 88. "Manure Company, The," 92. 453 INDEX. " LONDON " continued. "Journal, The," 175. "Club House" Gin, 187. " Assurance, The," 221. " and Westminster Assurance Corporation, Limited, The," 221. " Dock "gin, 240. " Society," 345. " and County Banking Company, The," 618. "LONE JACK" SMOKING TOBACCO, 669. LORD BYRON, unauthorized use of name of, 23. LOZENGES, marks on, 227, 532. "LUNDY FOOT & CO.'S" SNUFF, 107. "M. & C." WINE, 533, 567. MACARONI, marks on, 577. "MACASSAR OIL," 386. "McCARDEL HOUSE, THE," 233. "McGOWAN BROTHERS PUMP AND MACHINE CO., THE," 406. "MADAME LOUISE," 381. MAGAZINE. See PUBLICATION. "MAGIC CURE, THE," 478. "MAGNOLIA" WHISKEY, 437. "MAISON BOISSIER DE PARIS," 498. "MAMMOTH WARDROBE, THE," 363. MAN'S OWN NAME. See NAME. "MANNY HARVESTER, THE," 412. " MANUFACTURER AND PATENTEE," 343. misuse by assignees of name of former, 223. "MARK TWAIN," 429. MARKET, plaintiff's goods must have been a vendible article in the, 140, 215, 223, 234, 264, 301, 339. marks on goods sent to a special, 581, 585, 646. St. Mills Flour, 405. "MARSHALL'S CANADA PLATES," 648. "patent thread," 316. "MASON " JARS, 444, 578. MASONIC EMBLEMS, question as to registration of, in the United States, 405, 634. 454 INDEX. MASSACHUSETTS STATUTE (Gen. St. c. 56) respecting trade names, 201, 283. MASTER responsible for fraud of servant, 321, 583. MATCHES, marks on, 91, 245, 485, 514. MEDAL, no exclusive right in a, 218, 223, 448. registered in America, 516. MEDICAL man, injunction to restrain use of appellation of, 328. practice, sale of, 28, 102, 220, 588. preparation, 4, 18, 19, 24, 26, 31, 38, 44, 48, 59, 68, 87, 90, 93, 97, 99, 101, 103, 106, 109, 110, 180, 230, 279, 281, 288, 291, 333, 348, 376, 389, 404, 424, 458, 478, 493, 497, 502, 516, 517, 543, 562, 575, 580, 626, 628. "MEDICATED MEXICAN BALM," 73. "MEEN FUN" SKIN POWDER, 191. " MEXEELY'S " BELLS, 472. MERCHANDISE MARKS ACT, 1862, THE, 267. prosecution under, may be compromised, 457. " MERCHANT BANKING COMPANY OF LONDON, THE," 619. < MERRIMACK COTTON PRINTS," 134. METAL GOODS, marks on, 616, 621, 641.' And see CUTLERY; EDGE TOOLS; IROX; STEEL. MILK, marks, on, 370. " MINNIE DALE," song of, 132, 136. " MINTON " TILES, 548. MISREPRESENTATIONS. See DEFENCE ; DISENTITLED ; REPRE- SENTATIONS. MISSOURI, infringement of English trade-marks criminally punishable in, 436. MODE OF making up bundles of silk, 217. trial of action for infringement, 644. " MOET'S CHAMPAGNE," 235, 533, 567. " MOLINE " PLOUGHS, 339. MONOGRAM PROTECTED AS TRADE-MARK, 665. " MOORE'S PILLULES," 478. "MORISON'S UNIVERSAL MEDICINES," 68, 110. " MORSE'S INDIAN ROOT PILLS," 180. 455 INDEX. MOTTO, covenant not to use, 546. " MRS. WINSLOW'S SOOTHING SYRUP," 291. MUSICAL COMPOSITION, 105. And see PUBLICATION; SONG. MUSTARD, marks on, 244, 579. NAME may become a mere ordinary transferable trade-mark, 215, 223, 257, 279, 580, 666. not in all cases assignable as a trade-mark, 222, 223. colorable authority to use, 76, 123, 243, 298, 390, 391, 409, 533, 534. of celebrated person may be used as a trade-mark, 184. of true maker, sale of goods stamped with, not restrained, 143. of inventor of machine appropriated by another person as his trade- mark, 284. no defence that plaintiff's was used in his mark, and has not been copied, 384. the fact that defendant's is contained in the spurious mark is no de- fence, 198, 226, 269, 280, 301, 310, 329, 609, 646. may be an element of defence, 227, 232, 251, 363, 484, 608. right of property in, exists, 264. but not apart from business, 312. of house, no right of property in, apart from business, 631. use of, not restrained, except when a right of property is concerned, 93. on shop, use of, 107, 117, 149, 254, 268, 304, 323, 363, 381. use of man's own restrained, where fraud exists, 106, 117, 124, 148, 333, 340, 388, 580, 668. not restrained where no fraud, 82, 106, 117, 148, 180, 240, 257, 278, 427, 472, 521, 525, 534, 541, 573, 580. cases reviewed and explained, 668. whether used alone or in combination, 560. criminally punishable, when fraudulent, 120. in connection with a certain magazine, restrained, 259. not restrained by reason of a sale by his assignee in bankruptcy, 575. unauthorized use of poet's, restrained, 23. legal author's, 49. painter's, not restrained, 52. not amounting to forgery, 155. person's, as that of a director of a company, restrained, 86. former maker's, so as to disentitle, 91. 456 INDEX. NAME continued. unauthorized use of by purchaser of good- will restrained, 185. of partnership held to survive, 55, 189. passes on sale of good-will, 639. may not be appropriated by one of the partners, 75. by a purchaser from one of the partners, 268. used by continuing partner where liability will be thrown upon outgoing partner, 393, 639. changed by surviving partner while representative of de- ceased partner has an option of continuing in the business, 127. of deceased or retiring partner may be used by surviving or continu- ing partner, if no liability will be thrown upon his estate, 7. not be used by surviving or continuing partner if liability will be thrown upon his estate, 260. partner may not be used by surviving partner in Massachusetts without the consent of his representatives, 201, 283. of predecessors in business, without more, may be continued in use as trade-mark, 223, 666. early painter, use of, no warranty, 8. modern painter, use of, may be warranty, 56. solicitor, agreement to allow use of, on retirement, 71. line of omnibuses, 57. steamships, 396. sheriffs officer, improper use of, 438. play, 440. place of business may be used without fraud, 521. proprietor of theatre, 524. publication, copyright in, asserted, 638. And see PUBLICATION. company. See COMPANY. musical composition. See MUSICAL COMPOSITION ; PUBLICA- TION; SOXG. society. See COMPANY. song. See SONG. " NATIONAL Advocate, The," 41. " Police Gazette, The," 270. NATURAL PRODUCTS, marks on, 327, 354, 397, 465, 509, 529, 599, 633. name descriptive of, cannot be appropriated, 205. NEEDLES, marks on, 123, 138, 251. 457 INDEX. "NEW Era, The," 65, 550. " Manny Harvester, The," 412. "York" glass, 121. " Cutlery Company, The," 491. NEWSPAPER, good-will of, what is, 576. is assets of proprietor, 3, 35, 173. partnership, 173, 178. is "goods and chattels" within the Bankruptcy Acts, 12, 159. sale of, 450. question of title to, 246. title of, is property, 1 74. rights of editor of, 39, 181, 450. proprietor of, not disentitled by non-registration at the Stamp Office, 141. right of publication of, incapable of seizure by a sheriff, 159. injunction granted to restrain publication of statements as to, 162, 173. motion to commit publisher of, 635. And see PUBLICATION. "NIGHT BLOOMING CEREUS," 232. NINETEENTH CENTURY, THE," 539. NOM DE PLUME OF AUTHOR, improper use of, restrained, 429. NOMINAL DAMAGES given for infringement of right, 50, 59, 68, 82, 99. more than, given where specific damage proved, 83. " NORFOLK WORKS, SHEFFIELD," 442. " NORTHERN Daily Express, The," 162. "Weekly Standard, The," 162. NOTES on register of trade-marks, 586, 610, 611, 622, 641, 643, 654. NOTICE by plaintiff to defendant that he is infringing the plaintiffs rights does not alter the rights of the parties, 72. need not be given by plaintiff to defendant before taking proceedings, 79, 81, 169, 280. of dissolution of partnership may not be published until expiration of term, 75. "NOURISHING STOUT," 431. 458 INDEX. NUMERALS as trade-marks, 53, 126, 257, 269, 302, 382, 411, 426, 522, 542, 557, 581, 585, 673. OFFER OF SUBMISSION, must be complete for defendant to escape paying costs, 79, 136, 169, 170, 171, 234, 235, 321, 369, 583. OFFICIAL mark cannot become a trade-mark, 523. " OHIO LINIMENT," 99, 109. OIL, marks on, 357, 455, 486, 487, 517, 597. " OLD LONDON DOCK GIN," 240. " Moore's Pictorial Almanack," 86. " OLDFIELD LANE DOCTOR, THE," 328. OMNIBUSES, imitation of line of, restrained, 57. See CONVEYANCES. OPENING LETTERS, 79, 219, 237. OPTION of representative of deceased partner to continue in business, pro- tected, 127. surviving partner to take over partnership business, protected, 215. ORDINARY PURCHASER, deception of, 49, 72,91, 123, 138, 148, 154, 223, 245, 247, 256, 293, 329, 370, 379, 425, 426, 466, 541, 579, 580, 636, 650, 651, 653. " OREGON CENTRAL RAILWAY COMPANY, THE," 318. ORIGINAL The," 212, 230, 344, 346, 351, 424, 534, 602. invention of article on which the trade-mark is used is immaterial, 91, 339, 390, 580. trade-mark is immaterial, 138, 410, 554. maker has no claim to inventions made in another's service, 534, 602. " OSBORNE HOUSE," 323. " OUR YOUNG FOLKS," 410. "OX" MUSTARD, 244. OYSTERS, marks on, 625. OYSTER SALOON, " Live and Let Live," 330. PACKAGE, size, shape, and color of, not capable of appropriation, 484. will be protected in U. S. 667, 674. 459 INDEX. "PAIN KILLER, PERRY DAVIS'," 103, 281. PAINTER, use of name of early, no warranty, 8. modern, may be warranty, 56. not restrained, 52. counterfeited name of, on work of art, 155. PAINTS, marks on, 402, 471, 511, 573.' "PARAFFIN OIL," 205. " PARSONS' PURGATIVE PILLS, P. P.P." 404. PARTIAL IMITATION, 100, 138, 184, 250, 256, 305, 313, 352, 379. See COLORABLE IMITATION. PARTIES other than the plaintiffs interested in the marks, injunction granted though, 80, 196, 243. PARTNERSHIP, trade-marks of the partners become the property of the, 222, 399, 408, 437, 502, 561, 664. may not be appropriated by one of the partners, 455, 664. without articles, good-will of held to survive, 9. not to survive, 14, 64, 139, 165, 185. good-will of, held to be assets, 16, 64, 70, 139, 165, 176, 177, 185, 192, 202, 206, 210, 215, 248. to survive to surviving partner under the articles, 139, 208. medical, held to survive, 28. newspaper is assets of, 173, 178. name of, held to survive, 55, 189. pass on sale of good-will, 639. may not be appropriated by one of the partners, 75. by a purchaser from one of the partners, 268. used by continuing partner, when liability will be thrown upon out-going partner, 393, 639. changed by surviving partner while representative of de- ceased partner has an option of continuing in the business, 127. deceased or retiring member of, may be used by surviving or con- tinuing partner, if no liability will be thrown upon his es- tate, 7. may not be used by surviving or continuing partner, if lia- bility will be thrown upon his estate, 260. member of, may not be used by surviving partners in Massa- chusetts without the consent of his representatives, 201, 283. sale of one partner's interest in name and trade-mark of, refused, 231. 460 INDEX. PARTNERSHIP continued. rights of part owner of business purchasing the remaining interests, 162, 479. premises, specific transfer of share of good-will of, under legacy, not enforced, 189. agreement for dissolution of, and purchase of the practice, 71. notices of dissolution of, may not be published until expiration of term, 75. rights of partners on dissolution of, 37, 122, 149, 156, 172, 173, 176, 177, 180, 202, 206, 207, 210, 215, 238, 248, 260, 368, 383, 393,406, 408, 437, 455, 548, 561, 566, 585, 639, 664. value of deceased or retiring partner's interest in good-will of how as- certained, 70, 156, 158, 176, 177, 206, 208, 215, 238, 248, 260, 451. retiring member of, compelled to quit trade altogether, 5. in a certain locality, 25, 29, 172. specific performance granted of agreement between solicitors on dis- solution of, 135. " property, credits and effects," good- will held not to be included in, 129. " stock in trade and effects," nor in, 129. " premises, stock in trade," etc., nor in, 208. " stock in trade, goods, chattels and effects," nor in, 260. " estate and effects," as ascertained by annual valuation, nor in, 605. " stock belonging to the," good-will held to be included in the, 215. " premises and effects," and in, 350. " effects and things," and in, 614. " property and effects," and in, 615. PATENT, trade-mark distinguished from, 84. plaintiff disentitled by improper use of the word, 116, 223, 267, 288, 824, 343, 444, 528. not disentitled by improper use of the word, 40, 119, 142, 214, 267, 304, 316, 384. disentitled by improper use of marks on articles made under, 167. article may be stated to be made according to expired, 119, 205, 322, 416, 474, 528, 578. when name applied to goods made under, may be generally used, 205, 474, 528, 536, 561, 578. " Plumbago Crucibles," 267. word descriptive of publici juris, 659. "PECTORINE" 458. PENCILS, marks on, 278, 481. 461 INDEX. PENS, marks on, 126, 269, 568, 610, 611, 637. "PEPPER'S EXTRA SIGNAL OIL," 455,487. PERFUMES, marks on. See TOILET. "PERRY'S MEDICATED MEXICAN BALM," 73. "PERRY DAVIS' PAIN KILLER," 105, 281. "PERSIAN THREAD," 78, 83, 84, 124. PERSONAL, a trade-mark may be so, as to be incapable of assignment or use by assignee, 222, 223, 521, 575. and local trade-marks distinguished, 215. assets, trade-mark is, 80, 215, 337. good-will of newspaper is, 3. shop is, 3, 58. public house is, 6. partnership is, 16, 64, 70, 139, 165, 176, 177, 185, 192, 202, 206, 210, 215, 248. legal practice is not, 46. medical practice held to be to some extent, 102. held not to be, 588. "PESSENDEDE" WATCHES, 51. "PHARAOH'S SERPENTS," 253. "PHELAN AND COLLENDER'S" BILLIARD TABLES, 479. "PHOTOGRAPHIC NEWS, THE," 181. PIANOFORTES, marks on, 525. PICKLES, marks on, 274. And see SAUCES. PICTORIAL," the word, cannot be exclusively appropriated, 85. " Almanack, The," 85. PICTURE. See PAINTER. "PIG BRAND" LARD, 425. "PIKE'S MAGNOLIA WHISKEY," 666. PILLS, marks on, 93, 106, 180, 404, 478, 580. PINS, marks on, 119. PIPES, marks on, 243. PISTOLS, marks on, 249. 462 INDEX. PLOUGHS, marks on, 53, 339, 596. PLUMBAGO CRUCIBLES, marks on, 267. POET, unauthorized use of name of, restrained, 23. " POROUS PLASTERS," 626. PORTER, marks on. See BEER. "PORTER'S SPIRIT OF THE TIMES," 178. POTTERY, marks on, 96. " PRAIRIE FLOWER " CIGARS, 433. " PRESCOTT HOUSE" HOTEL, 266. PRICE of spuriously marked goods recovered by innocent vendors, 101. " PRIME LEAF LARD," 425. " PRINCE'S METALLIC PAINT," 573. PRINCIPAL responsible for fraud of agent, 321. PRINCIPLES on which infringement of trade-marks is prohibited, 73, 76, 84, 91, 100, 108, 109, 124, 126, 130, 145, 154, 213, 215, 223, 269,270, 302, 320, 325, 329, 340, 354, 407, 413, 466, 477, 580, 649. protection is given in cases of trade name, 325, 477, 639. of construction, names indicative of, 322, 413, 477, 528. And see PROCESS OF MANUFACTURE. PRINTERS, infringement by, 113, 130. rollers, marks on, 630. PRIZE MEDAL, no exclusive right in a, 218, 223, 448. registered in America, 516. PROCESS OF MANUFACTURE, marks indicative of, 286, 388, 536, 560. And see PRINCIPLES OF CONSTRUCTION. PROFESSION, good-will of, distinguished from good-will of trade, 156, 588. PROFESSOR, false assumption of title of, held not to disentitle, 106. PROPERTY, jurisdiction of court to prevent injury to, by injunction, 197, 223. right of, in trade-mark denied, 73, 130. 463 INDEX. PROPERTY continued. right of in trade-mark asserted, 106, 121, 145, 174, 213, 215, 223, 249, 253, 257, 320, 329, 354, 413, 477, 541. not limited by territorial bounds, 249. in man's name asserted, 264. but not apart from business, 312. in name of house cannot exist apart from business, 631. in prize medal denied, 218. PUBLIC, fraud on the, is no ground for an injunction, 7, 455, 487, 639. is ground for refusing an injunction, 143. damages for breach of contract, 146. specific performance of contract, 209. what is. See ORDINARY PURCHASER. mere continued use of name of predecessor in business as trade- mark is not, 223. imposition on the, is the test of infringement, 215, 223. house, good-will of, is personal assets, 6. " PUBLIC CORRESPONDENT, THE," 246. PUBLICATION, name of, right of property in, asserted, 174. but only after actual issue, 264. copyright in asserted, 638. not protected by registration as copyright, 246, 265, 292. infringement of, what is, 34. restrained, 10, 15, 17, 33, 34, 39, 141, 173, 174, 175, 270, 317, 345,403, 420, 587, 638. not restrained, 41, 65, 246, 264, 265, 295, 320, 410, 503, 539, 550. And see NEWSPAPER ; SONG, PUNCH," 320. PURCHASER, deception of. See ORDINARY PURCHASER. PYRETIC SALINE," 288. QUALITY, marks merely indicative of, cannot be appropriated, 59, 85, 100, 121, 187, 226, 232, 236, 269, 279, 289, 339, 410, 431, 541, 557, 581, 626. And see COMMON MARKS ; DESCRIPTIVE WORDS. trade-marks varying to denote, 339, 342, 367, 400, 636, 650, 651. transfer of marks indicative of one quality to goods of another re- strained, 126, 253, 441, 549, 556, 650, 651. equality of, no defence, 50, 83, 84, 109, 213. inferiority of, no ground of action where name used is common, 59, 91. 464 INDEX. QUESTIONS FOR THE JURY, 49, 56, 72, 82, 92, 120, 167, 338, 648. as to construction of contracts for supply of goods, 216, 648. of title. See TITLE. " RADSTOCK " COAL, 599, 633. RAILWAY COMPANY, name of, 318. "RAMSAY" FIRE-BRICKS, 194. " RANSOME'S PATENT" PLOUGHSHARES, 53. " RAZOR STEEL," 362. " READING SAUCE," 351. "REAL JOHN BULL, THE," 33. RECTIFICATION OF REGISTER. See REGISTRATION (OF TRADE- MARKS IN ENGLAND). " REEVES & CO." 368. " REGISTERED," the word, will not be registered in England, 515. REGISTRATION at Stamp Office, proprietor of newspaper not disentitled by want of, 141. as copyright, name of newspaper not protected by, 246, 265, 292. as design described as patent, 304. of trade-marks in England, under the Trade-Marks Registration Acts, 1875-6-7. question as to, how to be tried, 569. to be tried by special case, 535. motion, 505, 598. action, 569. adjourned summons, 601. advertisement a necessary preliminary to, 515. of two identical old marks, 589. of old marks for part of a class, 555, 616, 623, 643. up to three, but not more, 558, 589, 610, 611, 616. of new marks for part of a class, refused, 645. up to three, with consent, but not otherwise, 558, 645. granted in a representative form, 540, 622. with limitation as to mode of user, 641, 654. locality of user, 643. after refusal in Germany, 642. subject to perfection of title with Cutlers' Co. 643. notwithstanding allegations of similarity, 592, 597. prohibition of Commissioners of Patents, 647. 30 465 INDEX. REGISTRATION continued. of trade-marks in England, under the Trade-Marks Registration Acts, 1875-6-7. directed to proceed, though the marks were placed in the second class by the Committee of Experts, 632. refused to words adopted since the Act, 510. word " Registered," 515. a single letter, 568. marks too similar, 545, 616, 621, 642. marks used by more than three makers, 593. marks previously used in one class as new marks in another, 616. a new mark for a class of goods for part of which alone an old mark was registered, 655. deceptive or descriptive words, 625. descriptive words, 626. notes appended to, 586, 610, 611, 622, 637, 641, 643, 654. notice to be given to registrar of opposition to, 601. rescinded on application of proprietor, 620. as to part of a class, 623. rectified on application of proprietor, as to the address, 624. rectification of, by transfer to a new name, refused, 630. rectification of, by expunging wrongful entry, granted, 630. question as to similarity of marks offered for, to be deter- mined by appearance in actual use, 616, 621. in breach of contract, injunction granted to restrain, 530. costs of questions as to, 593, 616, 621, 626, 637. position of Commissioners of Patents with respect to, 515, 540> 647. Committee of Experts with respect to, 586, 622, 632. injunctions granted to restrain infringement of registered marks, 495, 609. to restrain infringement of unregistered marks, 583, 646. of trade-marks in America, under the United States Act of 1870 (Revised Statutes, sections 4937-4947). is a proper mode of obtaining the exclusive use of a mark, 341, 380, 446, 508, 544. not to be granted to a design, 582. for too wide a class is bad, 402. not necessary to entitle to remedy for infringement, 352. gives no right against valid old marks, 511. Commissioner's certificate of, not conclusive as to validity of mark, 373. 466 INDEX. REGISTRATION continued. of trade-marks in America, under the United States Act of 1870 (Revised Statutes, sections 4937-4947). cannot be cancelled, though wrongful, 399. separate applications for, held to be necessary, 342. declaration on oath as to the right to the mark must be filed, 401. must be made in substance, 469. in the name of a firm, and not in the names of the individual partners, is good, 402. for " paints " generally, is good, 402. claim for " alcoholic spirits " is good, 470. claim for " fancy goods " is too general, 600. essential and non-essential parts must be distinguished on ap- plication for, 468, only one fac-simile showing mode of use need be produced on ap- plication for, 553. fees paid upon application for, only recoverable in case of gen- uine mistake, 584. in questions of, all matters relating to the ownership of the mark to be investigated, 627. position of Commissioner of Patents with respect to, 373, 525. jurisdiction of United States Circuit Courts with respect to regis- tered trade-marks, 613, 629. granted, notwithstanding objections, 342, 358, 359, 360, 361, 371, 375, 471, 473, 497, 518, 525, 563, 565. notwithstanding prior registration by another, 417. to name of person, firm, or corporation, as an old mark, 358, 476, 507. numerals, 382, 557. alternative marks, 394, 501, 544. device of a crown, 402. form of carpet-stick, 428. mark invented, but not actually used, 456, 627. geographical mark, 565. masonic emblems, 634. refused to descriptive marks, 357, 362, 376, 377, 378,412, 416, 422, 504, 612. figures, 527, geographical marks, 399, 405. masonic emblems, 405. deceptive or descriptive marks, 422, 493, 571, 577, mark not used on " goods or merchandise," 464. marks too similar to others, 486, 490, 506. 467 INDEX. REGISTRATION continued. of trade-marks in America, under the United States Act of 1870 (Revised Statutes, sections 4937-4947). refused to name of corporation as a new mark, 491. numerals, 522. name of patented article, 578. formerly patented article, 416. mark become common, 596. hoops on barrels, 480. collar-box, 538. strip of leaf-tobacco, 572. infringement of registered mark must' be on goods of the same kind, 430. RENEWAL of genuine marks on genuine goods is legitimate, 130. REPRESENTATIONS, trade-marks containing false, cannot be acquired, 223. plaintiff disentitled by his own false, 60, 73, 90, 91, 133, 144, 191, 223, 232, 267, 308, 418, 434, 562, 575, 628. however apparent they may be, 223. not disentitled by his own false, 10, 106, 132, 136, 180, 195, 276, 323, 325, 348, 483, 587, 591. when merely collateral, 291, 384. that one man is carrying on another's business, 237, 247, 268, 272, 297, 304, 323,541. REPRESENTATIVE REGISTRATION, 540, 622. RESTRAINT OF TRADE, retiring partner compelled to quit trade altogether, 5. in a certain locality, 25, 29, 172. vendor of good-will of business restrained from trading in a certain locality, 36, 114, 168, 303. using old firm name, 272, 484. solicitor's practice restrained from practising in Great Britain, 66. trade secret restrained from using secret, 36. one of two partners restrained from monopolizing a part of the business after dissolution of partnership, 202. contract by attorney to retire from practice, etc., good in law, 11. specific performance of, not enforced, 22. See GOOD- WILL; PARTNERSHIP. "REVERE HOUSE, THE," 111. RIGHT OF PROPERTY in trade-mark denied, 73, 130. 468 INDEX. RIGHT OF PROPERTY continued. in trade-mark asserted, 106, 121, 145, 174, 213, 215, 223, 249, 253, 257, 320, 329, 354, 413, 477, 541. infringement of, nominal damages given for, 50, 59, 68, 82, 99. "RISING SUN" STOVE POLISH, 445. ROBERTS' RAZOR-STEEL SCISSORS," 359. " diamond-edged razors," 360, 361. " RODGERS' CUTLERY," 82, 115, 352, 442. " ROGER WILLIAMS " LONG CLOTH, 184. " ROSE & CO.'S " LIME JUICE, 551, 608. "ROYAL" BAKING POWDER, 656. flavoring extract, 656. "RUBBER CLOTHING COMPANY, THE," 507. S. & H. (CROWN) " IRON, 216. "S. P." SNUFF, 620. SAFES, marks on, 255. " ST. JAMES' Evening Post, The," 3. " Chronicle, The," 159. cigarettes, 542. SALE OF MARK, with place of manufacture, lawful in U. S. 666. SALERATUS, marks on, 448. SAUCES, marks on, 117, 160, 169, 170, 344, 346, 351, 407, 436, 447, 513, 526, 589. SCANDAL, exceptions for, 414. " SCHIEDAM SCHNAPPS," 179, 390, 415, 434, 653. SCHOOL APPARATUS, marks on, 263. " SCHWEITZER'S COCOATINA," 298. "SCHWEPPE'S SODA WATER," 157. SCOTCH CASES, 34, 35, 39, 94, 227, 262, 413, 438, 452, 588. practice as to interim interdict, 262. " SCOTT'S COMMENTARY ON THE BIBLE," 67. SEALING-WAX, marks on, 593. SECRET OF TRADE. See TRADE SECRET. "SEFTON" CLOTH, 400. " SEIXIO " WINE, 256. 469 INDEX. SELECTION, trade-mark may be used to denote, 494. "SERIOUS FAMILY POLKA, THE," 105. SERVANT, rights of, on leaving employment. See FORMER EMPLOYMENT. master responsible for fraud of, 321. SEWING-MACHINES, marks on, 203, 284, 322, 413, 459, 477, 569, 635. SHEFFIELD CUTLERS' MARKS, 222, &21, 643. SHERIFF'S OFFICER, improper use of name of, 438. SHIRTINGS, marks on, 411. SHIRTS, marks on, 384, 394. SHOP, name on, 107, 117, 149, 254, 268, 304, 323, 336, 381, 398. SHOWBOARD, use of name on, 107. " SHRIMPTON & HOOPER'S " NEEDLES, 123. SIGNATURE as trade-mark, 130, 188, 560, 642, 654. SILK, marks on, 217, 571. SILVER GROVE " WHISKEY, 374. " SIMMONS' LIVER MEDICINE," 348. SINGER, breach of contract by, restrained, 112. sewing-machines, 413, 477, 659, 672. " SINGLETON'S GOLDEN OINTMENT," 389. SLANDER. See LIBEL. " SLATE ROOFING PAINT," 471. "SMYTH'S BOND STREET" BRUSHES, 81. SNUFF, marks on, 107, 620. SOAP, marks on, 150, 225, 226, 280, 563, 565, 657. SOCIETY, name of. See COMPANY. SODA WATER, marks on, 157. SOLICITING CUSTOMERS restrained, 114, 141, 207, 385, 566. 470 INDEX. SOLICITOR'S name, agreement to allow use of, on retirement, 71. practice, sale of, 66. practice, what is the good-will of, 156. specific performance granted, of agreement between, on dissolution of partnership, 135. See GOOD- WILL ; PARTNERSHIP. SONG, name of, 132, 136. distinguishing characteristics of, 132. statement as to authorship of, 293. SOUP, marks on, 461. " SOUTHORN'S BROSELEY PIPES," 243. SPIRITS, marks on, 179, 187, 228, 240, 332, 366, 372, 373, 374, 395, 415,432, 434, 437, 452, 483, 531, 544, 549, 556, 591, 650, 651, 652, 653. SPOONS, marks on, 302. " SPORTING LIFE, THE," 292. " SPRATT'S DOG BISCUITS," 488, 644. SPURIOUSLY MARKED GOODS, price of, recovered by innocent vendors, 101. not protected at the expense of the genuine, 143, 209. action for damages occasioned by order for, 194. delivery-up of, for erasure, 196, 211. to indorsee of dock warrants, after erasure, 229. refused by wharfingers, 239. question as to lien on, for costs, 369, 567. " STANDARD, THE," 159. " STAR' iron, 271. shirts, 394. pencils, 481. oil, 486. soap, 563. STARCH, marks on, 329. "STARK" BAGS, 365. " STATION HOTEL, THE," 520. STEAMSHIPS, name of line of protected, 396. STEEL, marks on, 63, 151, 152, 164, 171, 222. See IRON. 471 DTDEX. " STEPHENS' BLUE-BLACK WRITING FLUID," 875. "STILLMAN MILL," 521. STOCKINGS, marks on, ML STONEBRAKER'S MEDICINES," SSL STOVE POLISH, marks on. 331, 445. STOVES, marks on, 313. STYLE OF PACKAGE will be protected, 667, 674. SUBMISSION, offer of, by defendant must be complete for him to escape paving costs, 79, 136 ? 169, 170, 171, 234, 235, 321, 369, 533. " SUCCESSOR to E. H. Reeres & Co." 368. " to Phelan & Collender," 479. SULPHATE OF QUININE," 44 " SUPERFINE, SUPERIOR," the words, cannot be appropriated, 226. " SWAN " GIN, 544. " SWEET OPOPONAX OF MEXICO," 276. " STKES' PATENT " SHOT BELTS, 40. SYRUP, marks on, 334. " T. H. H." IRON, 555. " TAMAR INDDZN," 532. "TANNED PATENTED" LEATHER CLOTH, 214, 223. * TASTELESS " DRUGS, 493. "TAYLER & CO.'S PATENT SOLID-HEADED PINS," 119. "TAYLOR'S PERSIAN THREAD," 78, 83,84, 124. TEA, arks on. 60, 379, 484, 515, 603. TEMPLE BAR," 259. TERRITORIAL BOUNDS, right of property in trade-mark not limited by, 149. TEST OF INFRINGEMENT, imposition on the public la the, 215, 223. TESTIMONIALS, improper use of another's, restrained, 87, 333. "THEATRE, BOOTH'S," 524. "THOMPSON'S EYE WATER," 101. " THOMSONIAN MEDICINES," 59. 472 INDEX. " THORLEY'S FOOD FOR CATTLE," 560. THREAD, marks on, 78, 79, 83, 84, 124, 142, 148, 190, 195, 257, 316, 519, 622. "THRESHER & GLENNY, FROM," 247. TILES, marks on, 548. TIN PLATES, marks on, 61, 648. TITLE, plaintiff's, must be clear for injunction to be granted, 134, 145, 191, 246, 284, 374, 391, 410, 487, 492, 494, 512. to trade-mark cannot be acquired from a person who has already sold his right, 367, 502. question as to, between successive lessees of same works, 61, 193. lessor of mines of fire-clay and lessees of fire-brick works, 193. landlord and tenant of hotel, 212, 233. exporter and manufacturer, 585. cannot be tried by Committee of Experts at Manchester, 632. of musical composition. See MUSICAL COMPOSITION*. TOBACCO, marks on, 299, 308, 369, 392, 399, 433, 466, 492, 494, 512, 542, 553, 557, 572, 590, 595. " TOD" WATCHES, 647. TOILET, marks on preparations for the, 73, 113, 118, 130, 133, 144, 145, 163, 191, 232, 275, 319, 335, 337, 350, 353, 378, 386, 418, 592, 642, 654. "TONGE'S" CLOTH, 321. " TOUCHSTONE," 550. TRADE-MARK, what is a, 215, 223, 300, 327, 541. 580. common, descriptive or quality marks are not. See COMMON MARKS; DESCRIPTIVE WORDS; QUALITY, MARKS INDICATIVE OF. fancy names, foreign words, initials, numerals, may be. See FAXCY NAMES; FOREIGN* LANGUAGE; INITIALS; NUMERALS. special form of barrel is no, 373. may be an important element in, 395. hoops on barrels are no, 480, collar-box is no, 538. strip of leaf tobacco is no, 572. in an alternative shape, 394, 501, 544. name of inventor appropriated by another person as his, 284. may consist of a new combination of letters, 277. 473 INDEX. TRADE-MARK continued. may consist of a new use of old words, 282. varying to denote quality, 339, 342, 367, 400, 636, 650, 651. official mark cannot become, 523. difficult to claim in name of new article, 536, 591. connection between trade name and, 172. good-will and, 91, 168, 331, 350, 630. copyright and, 105. distinguished from trade name, 201. patent, 84. % copyright, 84, 97, 130, 152, 246, 265, 325. into local and personal, 215. compared with name of hotel, 108. held to be either deceptive or descriptive, 232, 422, 493, 571, 577, 625. trade name may become a mere impersonal, 223, 279. may be used to denote selection, 494. is a chattel within the Bankruptcy Act, 1869, 537. indicating goods dealt with by three firms, 585. use of, limited to a particular locality, 628. attached to certain works, 61. moulded into bottles. See BOTTLES. questions as to title to. See TITLE. right of property in, denied, 73, 130. asserted, 106, 121, 145, 174, 213, 215, 223, 249, 253, 257, 320, 329, 354, 413, 477, 541. is personal assets, 80, 215, 337. bequeathed to different persons by will, 196. renewal of genuine on genuine goods is legitimate, 130. cannot be severed from good-will, 331, 447, 487, 492, 630. may be partly purchased and partly invented, 367. name may become mere ordinary transferable, 215, 223, 279. can only be acquired in connection with a particular class of goods, 215, 223, 234, 257, 555, 559, 616. acquired by long user, 51, 459. without long user, 215, 234, 325, 364, 456, 627, 629. cannot be acquired in gross, 447, 487, 492, 630. except by the previous maker of the goods, 492. of partners becomes the property of the partnership, 222, 399, 408, 437, 502, 561. of partnership cannot be appropriated by one of the partners, 455. not in all cases assignable, 222, 223, 521. assignment of, without direct mention, on sale of good-will, 350, 354, 492. 474 INDEX. TRADE-MARK continued. cannot be twice assigned by the same person, 367, 502. lost by becoming common to a trade, 263, 593, 610, 611, 637. sale of part interest in refused, 231. principles on which infringement of is prohibited. See PRINCIPLES. not required to be completely changed where used bonafide, 310. See ABANDONMENT; ASSIGNMENT; COLORABLE IMITATION; CUT- LER'S MARK; INFRINGEMENT; INJUNCTION; NAME; PARTNER- SHIP; REGISTRATION. TRADE-MARKS REGISTRATION ACT, 1875, 6, explained, 597. TRADE NAME, 7, 172. connection between trade-mark and, 172. distinguished from trade-mark, 201. may become a mere impersonal trade-mark, 223. the same, used by two firms, 283. not in all cases assignable, 223. may not be appropriated by some of the partners, 75, 122, 149, 166, 248. a purchaser from one of two partners, 268. changed by surviving partner while personal representative of deceased partner has option of continuing in the business, 127. is assets, 248. held not to pass on sale of good-will, 185. held to pass on sale of good-will, 248, 639. sale of part interest in refused, 231. principles on which protection is given in cases of, 325, 477, 639. actual fraud unnecessary for infringement of, if deception probable, 477. breach of contract in respect of restrained, 485. Massachusetts General Statute respecting, 201, 283. See GOOD-WILL; INJUNCTION; NAME; PARTNERSHIP. TRADE SECRET is personal assets, 3. use of restrained, 31, 36, 110, 163, 290, 517, 604. not restrained, 19, 24, 26, 517, 591, 628. trusts of enforced, 38. specific performance of agreement for sale of enforced, 36. damages given for breach of agreement to sell, 62. ascertainment of value of, 38. sale of, by. assignee in bankruptcy, does not deprive bankrupt of his right to use it, 575. 475 INDEX. TRADE SECRET continued. trade-mark not to be used by persons unacquainted with, 447. except as against persons who have no better right in the mark, 455. TRANSFER of marks indicative of one quality to goods of another, 126, 253, 441, 549, 556, 650, 651. TRANSFERABLE TRADE-MARK, name may become mere ordinary, 215, 223, 279. TRANSMISSION of trade-marks on bankruptcy, 222, 323, 447. of good-will on bankruptcy, 69. of trade-marks of partnership, 399, 408, 437. " TRIAL and Triumph," 638. of action for infringement, mode of, 644. " TRIANGLE BEER," 655. TRUST, breach of, in respect of trade secret, restrained, 31, 110. etchings, restrained, 98. TRUSTS of trade secret enforced, 38. of good-will enforced, 74. "TUCKER SPRING BED, THE," 474. " TURIN " CLOTH, 400. TURKISH LETTERS, word in, used as trade-mark, 51. "TWO ELEPHANT" YARN, 646. TYPE, deception aided by use of special, 317. And see LETTERS. UNFAIR REPORT of proceedings in a trade-mark case, injunction not granted to restrain publication of, 190. " UNITED Service " soap, 280. States Act of 1870, held to be invalid, 629, 658. registration under, held not to be compulsory, 352. Circuit Court, jurisdiction of, in cases of registered trade-marks, 613, 629. UNPATENTED ARTICLE, no exclusive right in, 3, 4, 19, 59, 68, 84, 99, 103, 130, 388, 389, 416, 461, 591, 628. 476 INDEX. UNWARY PURCHASER. See ORDINARY PURCHASER. USER, acquisition of trade-mark by long, 51, 459. without long, 215, 234, 325, 364. question as to insufficiency of, 88, 92, 246. registration granted, with limitation as to mode of, 641, 654. locality of, 643. "VALLEY" WHISKEY, 395. VALUE of deceased, or retiring partner's interest in good-will of partnership, how ascertained, 70, 156, 158, 176, 177, 206, 208, 215, 238, 248, 260, 451. of good-will of public house, how ascertained, 462. "VALVOLINE" OIL, 597. "VANITY FAIR" CIGARETTES, 553, 595. VEHICLES, imitation of line of, restrained, 57. use of name of hotel on, 104, 111, 266. " VELNO'S VEGETABLE SYRUP," 19. VENDIBLE article in the market, plaintiff's mark must have been placed on a, to support an action, 140, 215, 223, 234, 264, 301, 339. VENDOR of trade-mark cannot resell, 367, 502. price of spuriously marked goods recovered by innocent, 101. VICTORIA cases, 517, 649, 650, 651, 652, 653. lozenges, 227. "VOLDNER'S SCHIEDAM SCHNAPPS," 179. "WAMSUTTA" MUSLIN, 660. WARRANTY not implied by use of name of early painter, 8. may be implied by use of name of modern painter, 56. WASHING POWDER, marks on, 296. WATCHES, marks on, 51, 196, 211, 647. WATER pipes, marks on, 612. marks on mineral, 354, 465, 509, 529, 558. "WATERTOWN WEEKLY RE-UNION, THE," 576. "WAYNE" GLASS, 121. 477 INDEX. " WEDGWOOD " POTTERY, 96. "WESTLEY RICHARDS" GUNS, 441. "WESTON'S WIZARD OIL," 517. WHARFINGERS' lien, 369, 567. "WHAT CHEER HOUSE, THE," 212. "WHEELER & WILSON'S" SEWING-MACHINES, 322. WHISKEY, marks on. See SPIRITS. WHITE LEAD, marks on, 402, 511. WILDER & CO.'S STOMACH BITTERS," 372. WILL, trade-mark bequeathed to different persons by, 196. WINE, marks on, 229, 235, 239, 256, 506, 533, 537, 567. WIRE, marks on, 213. "WISTAR'S BALSAM OF WILD CHERRY," 90. "WM. ASH & CO.'S" STEEL, 222. "WOLFE'S SCHIEDAM SCHNAPPS," 179, 390, 415, 434, 653. "WONDERFUL MAGAZINE, THE," 10, 15, 17. " WOOD'S HOTEL," 467. WOOLLEN YARNS, marks on, 601. "WORCESTERSHIRE SAUCE," 407, 436, 513. "WOTHERSPOON'S VICTORIA LOZENGES," 227 "X BROOMS, ENGLISH'S," 342. "YANKEE SOAP," 150,225. YEAST POWDER, marks on, 664. "YORKSHIRE RELISH," 526. "ZINGARI" BOUQUET, 350. 478 ALBERT M, MOORE, ATTORN 7 ; AT LAW, AXl) s. SOLICITOR i vr g f So &S0 Central Block LOWELL, - - 000 688 453