combination. It does not include legitimate combinations of capital for the purpose of saving running expenses, and thereby, perhaps, ultimately lowering prices to the general public, nor "trusts" for the mere purpose of maintaining or raising prices, which, although unlawful on grounds of public policy, contain no elements of unfair competition, and, therefore, are not germane to the present discussion.

2. Those in which a business concern seeks, by lying representations, oral, written, or printed, to draw away and divert to itself the public patronage enjoyed by a competitor.

3. Those in which a party, by means of what Mr. Justice Brown (Coats vs. Thread Co., 149 U. S. 562), aptly terms "imitative devices," seeks to beguile the public into patronizing him under the impression that they are patronizing his rival.

The settled principle of law is, that, with respect to a business which in any way depends upon the public favor, rival concerns shall deal openly and fairly towards each other and the public, to the end that whosoever will, may, by his skill and integrity, acquire and hold the patronage of the public, and be protected against unfair attempts to deprive him of its benefits. The courts, both of law and of equity, are keenly sensitive to any effort which violates this principle; and to their credit be it said that it is doubtful if human ingenuity can invent any scheme for that purpose, so subtle that a court of equity will not be able to penetrate its disguise, and will not be swift to interfere with its accomplishment and to punish its authors so far as lies within the authority of the chancellor. It is even probable that a court of equity would disregard its ancient traditions by taking jurisdiction of a case of libel or slander, provided it were made to appear that the libel was a continuing one, and that its design was to prejudice the public against a competitor and thus secure an unfair advantage in business.

By reason of this judicial repugnance to all attempts to misuse the public conveniences or deceive the public itself, to

the disadvantage of a competitor, it is comparatively easy for the injured party to obtain, by injunction or otherwise, complete redress for his grievances. It is only necessary for him to go to the proper court, present the facts in such a way that they can be understood, and await the result. It is not too much to say, that in no class of cases that come before the judicial department, is the plaintiff so strongly favored as in those which involve the allegation of unfair competition in trade on the part of the defendant; because in such cases it is always within the power of the court to make an order which shall be perfectly fair to both parties, but which shall at the same time prevent any future possibility of the evil complained of. It would be unfruitful, therefore, to consume further time in discussing the general character of unfair competition in trade, because the law itself is so simple and plain that even a child can understand it, and there are absolutely no limitations upon its enforcement, no judicial disinclination to enforce it, and no need of any other remedy than injunction and damages.

But it often happens that where there is no difficulty in understanding the law itself, and no judicial indisposition to enforce it, serious difficulties are encountered in its application to the particular facts of cases as they arise; and it remains for us to consider whether any, and, if so, what, difficulties present themselves in the application of the laws relating to unfair competition in trade.

One difficulty, common to all three classes of unfair competition cases, is liable to arise on the question of jurisdiction. In the absence of Federal statutory provisions, the state courts would have jurisdiction of all such cases, and the Federal courts would have concurrent jurisdiction only where the parties were citizens of different States. But the Federal Government, under the constitutional power to regulate interstate and foreign commerce, has enacted what is called the Inter-State Commerce Act, prohibiting, among other things, unfair arrangements with common carriers engaged in inter-state or foreign trade; and, under the same constitu

tional power, it has enacted the Anti-trust Act, prohibiting all acts in restraint of such commerce, and has also enacted statutes providing for the registration of trade-marks employed in commerce with foreign nations or Indian tribes; and to enforce the provisions of these acts the Federal courts have, of course, exclusive jurisdiction.

With respect to the inter-state commerce and anti-trust acts, the Supreme Court has, by a long series of decisions culminating in the Addyston case, 175 U. S., settled the constitutionality of the acts, and rendered the jurisdictional questions under them so clear that there is little danger of further misunderstanding on those questions. These two acts contain many provisions affecting only the general public, and, therefore, not germane to the present discussion. So far as they bear upon the subject of unfair competition in trade, they seem to be only declaratory of the principles of the common law hereinabove referred to.

With respect to trade-mark legislation, Congress, in passing the act of July 8, 1870, clearly misapprehended and exceeded the scope of its constitutional powers, by making the statute applicable to trade-marks which do not enter into inter-state or foreign commerce; and the Supreme Court (100 U. S.) having held that act and the supplementary act of August 14, 1876, void for that reason, Congress, unfortunately, rendered over-cautious by the fate of those acts, passed another, which failed to reach the limit of its constitutional powers, because not extended to trade-marks used in inter-state commerce, but only to such as are used in commerce with foreign nations or with Indian tribes. It is to be hoped that this defect will soon be remedied by a further act covering trade-marks used in inter-state commerce; for, until this is done, the federal statute relating to trade-marks is seriously ineffective, and, indeed, almost practically impotent. But in all cases of unfair competition in trade, the question of Federal jurisdiction, so far as it depends upon the distinction between domestic, interstate, and foreign commerce, has been, by the terms of the

statutes, and the decisions of the Supreme Court under them, made entirely clear.

The questions of jurisdiction which continue to be subject to more or less uncertainty and doubt, are those which arise out of the peculiar character of the acts constituting the defendant's alleged offense, and are confined, almost if not exclusively, to cases in which the trade-mark statute is directly or indirectly brought into controversy. It may be profitable for us to devote a brief time to the consideration of these peculiar difficulties in the application and enforcement of the laws against unfair competition in trade.

More than one hundred and fifty years ago, manufacturers and merchants who had obtained, or expected to obtain, the favor of the public for a particular article placed on the market by them, and who desired to hold their trade in such article, conceived the plan of marking their product in a peculiar way, so that the public should become familiar with the mark and should learn to identify its proprietor's product by means of it. These marks became technically known as "trade-marks.” Their office was to certify or warrant the genuineness of the goods upon which they are placed. As Mr. Chief Justice Fuller observes (Menendez vs. Holt, 128 U. S. 514, 520), such a mark is equivalent to the signature of its proprietor to a certificate that the goods are his goods, determined by him to possess a certain degree of excellence. In the language of Lord Justice James (Thorley's Cattle Food Co. vs. Massam, 42 L. T. Rep. N. S. 857), "It indicates this, a warranty that the article to which it is attached has come from the particular manufacturer of the goods with which buyers have been hitherto pleased." The counterfeiting or fraudulent imitation of such a mark is, therefore, an offense which in its nature is akin to the crime of forging a certificate of warranty, and, although not technically criminal except where made so by statute, the courts are swift to punish it with damages and to arrest its continuance by injunction. The essential requisites of a trade-mark are, that it shall be sufficiently specific or defi

nite in its character, and not merely descriptive; that, at the time of its adoption, it shall not be used by others on the same class of merchandise; and that it shall not be immoral or deceptive in its intendment.

In the first two trade-mark cases reported (Blanchard vs. Hill, 2 Atk. 484, A. D. 1742, and Singleton vs. Bolton, 3 Doug. 293, A. D. 1783), Lords Hardwicke and Mansfield held that to maintain a suit on a trade-mark there must be positive evidence of fraudulent intent on the part of the defendant; but in the later case of (Hogg vs. Kirby, 8 Ves. 215, A. D. 1803), Lord Eldon took the position approved by all the more recent authorities, that the mere use by the defendant of the plaintiff's specific mark or trade name may create a presumption of fraudulent intent. It has since been settled that the use by the defendant of the plaintiff's specific trade mark raises a conclusive presumption of fraud, and entitles the plaintiff to a decree restraining the infringement (McLean vs. Fleming, 96 U. S. 245; Lawrence Co. s. Tennessee Co., 138 U. S. 537).

So far, all is clear; but now comes the peculiar difficulty which in late years has produced more or less confusion in the minds of some of the courts and of many members of the bar as to the proper application of the law in particular cases.

A manufacturer or merchant may not choose to adopt a specific trade-mark; to the contrary, he may, and often does, elect to dress up his goods or their packages in such a way as to give them a distinctive general appearance by which the public can distinguish them from the goods of other manufacturers or dealers. Such distinctive general appearance is not a trade-mark-it is not a certificate or warranty of genuineness-it has no other function than to enable the public to become familiar with the "looks" of his goods, so as to recog nize them at sight, just as we recognize an acquaintance, not by the "strawberry mark" on his arm, but, by the entire combination of features which make up his outward personality, or as some ladies recognize each other by the dresses which they wear.