scriptive of it. Nashville Syrup Co. V. Coca-Cola Co. (1914) 215 Fed. 527, 132 C. C. A. 39, Ann. Cas. 1915B, 358, affirming judgment Coca-Cola Co. v. Nashville Syrup Co. (D. C. 1912) 200 Fed. 157.

Where a trade-mark consists of a hyphenated word, one part of which is descriptive, and not subject to exclusive appropriation, while the other is purely arbitrary, the appropriation by another of the descriptive part only is not an infringement. S. R. Feil Co. v. John

E. Robbins Co. (C. C. A. 1915) 220 Fed. 650.

Where the dominating characteristic of a trade-mark is a name by which the goods have become familiarly known to the public, another has no right to designate his goods by that name, even though he accompanies it with a different device. Carroll v. Ertheiler (C. C. 1880) 1 Fed. 688, 691.

One may be restrained from using his own name in such a way as to appropriate the good will of a business already established by others of that name; nor can he, by such use, appropriate the reputation of another by fraud, either actual or constructive. William Rogers Mfg. Co. v. Rogers & S. Mfg. Co. (C. C. 1882) 11 Fed. 495.

When an article is made that was theretofore unknown, it must be christened with a name by which it can be recognized and dealt in; and all who deal in the article have the right to designate it by the name by which alone it is recognizable. Leclanche Battery Co. v. Western Electric Co. (C. C. 1885) 23 Fed. 276.

There is no characteristic of a trademark in the words "Webster's Dictionary," or in the form or size of that work as usually printed by G. & C. Merriam, such as to prevent its use by others in publishing old editions on which the copyright has expired. Merriam v. Texas Siftings Pub. Co. (C. C. 1892) 49 Fed. 944, following Merriam v. Famous Shoe & Clothing Co. (C. C. 1891) 47 Fed. 411.

Twelve years before the real Carlsbad water was first imported to this country, defendant began to make and sell his artificial Carlsbad, and continued the same without protest for 34 years. His labels and bottles are radically different from those of complainants, in which the real Carlsbad is now sold here. Held, that defendant had a right to continue the sale of his product, but should be enjoined from using "Carlsbad" unless accompanied by some word (as "Artificial") plainly indicating that the water is not the natural spring water. City of Carlsbad v. Schultz (C. C. 1897) 78 Fed. 469.

A strict technical trade-mark in a name is not infringed by merely calling a similar article by that name, without affixing it to such article. Air Brush

Mfg. Co. v. Thayer (C. C. 1897) 84 Fed. 640.

Where the court has decided that each of the parties to a suit is entitled to use the same name and trade-mark to designate their product, neither may give out or claim that he manufactures the only genuine article of that name. Fish Bros. Wagon Co. v. Fish Bros. Mfg. Co. (C. C. 1898) 87 Fed. 203.

The Continental Insurance Company, which is usually further designated in its policies, advertisements, and literature as "of the city of New York," and is now engaged in the fire insurance business throughout the United States, has acquired thereby no exclusive right to the use of the word "Continental" in connection with such business, and may not enjoin the use of such word in the name of the "Continental Fire Association," with the additional designation, "of Ft. Worth, Texas," in the absence of proof of any fraudulent intent or conduct on the part of defendant, or that the public have been deceived by the similarity of the names. Continental Ins. Co. v. Continental Fire Ass'n (C. C. 1899) 96 Fed. 846.

Another maker of an article after the patent thereon has expired may use a trade-mark by which it has become identified. Frank W. Whitcher Co. v. Sneierson (D. C. 1913) 205 Fed. 767.

In suit to enjoin use of name similar to complainant's trade-name, fact that defendant had incorporated under its name held not a defense. Mobile Transfer Co. v. Schwarz (Ala. 1915) 70 So. 640.

While a trade-mark applies and is protected throughout the entire limits of the jurisdiction of the sovereignty granting the right, a trade-name not founded on any authority or right from the state, but based upon usage in the particular locality in which the party using it is doing business, is peculiarly local; and, as trade-marks may be owned by one person in one country or jurisdiction, and by another person in another state or country, so one person may have a property right in a trade-name in one locality, and another person in the same word or device in another locality. Sartor v. Schaden (1904) 101 N. W. 511, 125 Iowa, 696.

Where, in a suit to restrain the wrongful use of a trade-name, the only issue was as to the propriety of employing the particular name, the court was not required to suggest a method of enabling the public to discriminate between the business of plaintiff and defendant. Dyment v. Lewis (Iowa, 1909) 123 N. W. 244.

Use of the same letters, words, and numerals, in the same colors, and in the same places, as plaintiff has heretofore used them may be an infringement, even though the letters, words, and numerals do not in themselves be

long to plaintiff's trade-mark proper. Avery v. Meikle (1883) 81 Ky. 73.

Where plaintiff had acquired a right of property in a name for cigars manufactured by him, and was injured by defendant's use of the word, and defendant had no right to the word other than the general right to names that have not been previously appropriated, defendant an injunction restraining from using the word was proper. Cohen v. Nagle (1906) 76 N. E. 276, 190 Mass. 4, 2 L. R. A. (N. S.) 964.

On dissolution of the firm each partner has a right to use the partnership trade-mark if he continues in the business, unless it has been otherwise agreed. Smith v. Walker (1885) 57 Mich. 456, 22 N. W. 267, 24 N. W. 830, 26 N. W. 783.

as

a

One person cannot enjoin another from using a particular name trade-name, unless he has made actual prior use of same as his own tradename. Rodseth v. Northwestern Marble Works (1915) 152 N. W. 885, 129 Minn. 472.

A corporation may be enjoined from using as a trade-name, without something to distinguish it. a name adopted by it and previously established as the trade-name of another. Id.

Where "Charter Oak" stoves were not conspicuously known by the particular device which surrounded the name on them, but by the name itself, the use of the name "Charter Oak," separated from the other parts of the trade-mark, amounted to an infringement of the maker's rights. Filley v. Fassett (1869) 44 Mo. 168, 100 Am. Dec. 275.

A manufacturer of baseballs, who has a contract to make baseballs for the American League of Baseball Clubs, and who uses on his product the words "Official American League" may not restrain a rival manufacturer from subsequently using such words for the period covered by the contract, except on a showing that such words have become associated in the public mind with his product. A. J. Reach Co. v. Simmons Hardware Co. (1911) 135 S. W. 503, 155 Mo. App. 412.

No person has a right to use the names, marks, letters, or other symbols which another has previously got up, or been accustomed to use, in his trade, business, or manufactures. Coats v. Holbrook (N. Y. 1845) 2 Sandf. Ch. 586; Taylor v. Carpenter (N. Y. 1845) 2 Sandf. Ch. 603.

Where a manufacturer of glass used a brand consisting of his name followed with the representation of the size and number of feet of glass, another manufacturer could not be enjoined from using the words designating different qualities, following his name on a brand used by him. Stokes v. Landgraff (N. Y. 1853) 17 Barb. 608.

The use by defendant of the name of plaintiff's hotel as a trade-mark for his

cigars will be enjoined, though, at the time of the registration of such trademark, plaintiffs had not opened the hotel for business, where the hotel was well known by the name in question. Kinsley v. Jacoby (1892) 28 Abb. N. C. 451, 20 N. Y. Supp. 46.

Injunction will not be granted, at the suit of one who claims to own the trade-names "Oriole Vermilion" and "Peerless Green," to restrain another dealer from using the trade-names "O. Vermilion" and "P. Green." Lavanburg v. Pfeiffer (1898) 52 N. Y. S. 801, 23 Misc. Rep. 577.

Where defendant closely imitated plaintiff's catalogues, receipts, store arrangements, etc., and adopted a tradename which her father had abandoned some years before, but which was identical with that under which plaintiff had built up his business, plaintiff may enjoin the use of such trade-name. Arnheim v. Arnheim (1899) 59 N. Y. S. 948, 28 Misc. Rep. 399.

Where one adopted a trade-mark of certain words which do not in themselves designate the origin or ownership of the merchandise, and which has not been used long enough to be known to the trade, and another party in entire ignorance of the fact, and without any apparent design of imitation, uses the same words as part of his trademark, a court of equity will not interfere by injunction. Seltzer v. Powell (Pa. 1871) 8 Phila. 296.

Where defendants sold various patents to plaintiff, and assured him that the ownership would confer on him a monopoly of the trade in such articles, which was not a fact, plaintiff was nevertheless entitled to the name as a trade-mark, and might enjoin its use by defendant. Pittsburgh Brass Co. v. Adler (Pa. 1889) 2 Monag. 235.

Acquisition of trade-mark and priority of use in general, see notes under § 9490, ante.

21.

Names of persons, firms, or corporations.-A surname is not susceptible of exclusive appropriation as a trade-mark by any one. Any man may use his own name in all legitimate ways, as the whole or a part of a corporate name. The most a court will de where two individuals are entitled to use the same name is to correct any abuse by either of that right. Wm. Rogers Mfg. Co. v. Rogers & S. Mfg. Co. (C. C. 1882) 11 Fed. 495; Wm. A. Rogers, Limited, v. International Silver Co. (1910) 34 App. D. C. 410; International Silver Co. V. Rogers (1906) 63 A. 977, 71 N. J. Eq. 560; Walton v. Whann (Pa. 1876) 8 Leg. Gaz. 82; Hoyt v. Hoyt (1886) 2 Pa. Co. Ct. R. 152.

Where complainants sold "Brown's Iron Bitters," compounded by one Brown, and defendants later began to sell "Brown's Iron Tonic," prepared under a different formula by another Brown, in good faith, and the bottles,

labels, and wrappers of the two bore no resemblance, as there was no evidence of fraud or intent to deceive the public, there is no ground for equitable relief. Brown Chemical Co. v. Meyer (1890) 139 U. S. 540, 11 Sup. Ct. 625, 35 L. Ed. 247, affirming (C. C. 1887) 31 Fed. 453.

One using the generic name of the article after the expiration of the patent must accompany the name with such indications that the article is of his manufacture as will unmistakably inform the public of that fact. Singer Mfg. Co. v. June Mfg. Co. (1896) 16 Sup. Ct. 1002, 163 U. S. 169, 41 L. Ed. 118, reversing decree (C. C. 1889) 41 Fed. 208.

A corporation long engaged in the sale of fountain pens as "Waterman's" and "Waterman's Ideal" under the name of "L. E. Waterman Co.," will be protected against use of the name "Waterman" in the same business by the agent of A. A. Waterman & Co., except in the form "Arthur A. Waterman & Co." with the suffix "Not connected with the L. E. Waterman Co.," prominently displayed. L. E. Waterman Co. v. Modern Pen Co. (1914) 35 Sup. Ct. 91, 235 U. S. 88, 59 L. Ed. 142, affirming decree (1912) 197 Fed. 534, 117 C. C. A. 30.

One LePage, having originated and sold extensively throughout the United States an article styled "LePage's Glue," organized a corporation, to which he transferred the assets and good will of the business. Subsequently he manufactured individually a similar article which he sold as "Glue made by LePage," and thereafter formed a new corporation, "The LePage Company," which sold the article as "Glue made by the LePage Company." Held, this was a violation of the right acquired by the original corporation to the use of the name "LePage" in connection with glues. The LePage Co. v. Russia Cement Co. (1892) 51 Fed. 941, 2 C. C. A. 555, 17 L. R. A. 354.

Complainant acquired the right to manufacture and sell in the United States "Johann Hoff's Malt Extract," and which entered commerce under the name "Johann Hoff's" or simply "Hoff's" extract. Defendant became the selling agent for a malt extract, using the words "Hoff's Malt Extract" and also a perpendicular side label, "Manufactured by Leopold Hoff." Held, defendant should be enjoined from using the words "Hoff's Malt Extract," unless preceded by the word "Leopold," and that the perpendicular label was insufficient. Tarrant & Co. v. Johann Hoff (1896) 76 Fed. 959, 22 C. C. A. 644, affirming (C. C. 1896) 71 Fed. 163.

One Duryea and his brothers were the controlling members of the Glen Cove Manufacturing Company, which for a long time made and sold "Duryea's Starch." Duryea, having subsequently withdrawn from the company,

his sons procured other starch to be made for them, and sold it as "Starch Prepared by Duryea & Co.," etc., without any imitation of labels or packages. Held that this was a proper use by Duryea and his sons of their own name and could not be enjoined. Duryea v. National Starch-Manuf'g Co. (1897) 79 Fed. 651, 25 C. C. A. 139.

Where the words "Baker's Chocolate" had come to mean, in the minds of the public, complainant's goods, held, that a subsequent maker of chocolate Iwith the same name was not entitled to use that name, whether with his given name or its initials, in such manner as to announce that the goods he sells are "Baker's Chocolate." Walter Baker & Co. v. Sanders (1897) 80 Fed. 889, 26 C. C. A. 220.

Where defendant, during his connec tion with a corporation, permitted it to use his name in connection with a patent of his, both the successor of the corporation and defendant were entitled to use the name in the manufacture and sale of such article, provided such words were used in connection with others clearly indicating the manufacturer of the particular article. Hygienic Fleeced Underwear Co. Way (1905) 137 Fed. 592, 70 C. C. A. 553, reversing decree (C. C. 1904) 133 Fed. 245.

V.

Where both complainant and defendant were entitled to use the name "Way" or "Way's" in connection with a patent owned by defendant, use of the words "manufactured and owned by" complainant, was objectionable as including the words "and owned," as they indicated that complainant alone had the right to make and sell goods of the kind to which they related. Id.

Although one has built up a business under, and known by, his own name, another of the same name, engaging in the same business, will not be restrained from any use of the name in the manufacture but only as to the use of the name without some explanation which would prevent deception. Rowley v. J. F. Rowley Co. (1908) 161 Fed. 94, 88 C. C. A. 258.

Where a patentee executed various licenses to use such patents and acquiesced in the use of his name by complainant and other licensees for a considerable period, during which they expended large sums to advertise shoes made under such name, complainant was entitled to restrain the use of such name with the patentee's consent by others manufacturing under later patents for alleged improvements, the effect of which was to mislead purchasers to believe that such shoes were those manufactured by complainant. Dr. A. Reed Cushion Shoe Co. v. Frew (1908) 162 Fed. 887. 89 C. C. A. 577.

Complainant held entitled to restrain defendant's use of the word "Williams," either in a corporate name or in the name of any business concern or individual name used in the advertising

and sale of soap without some other word to distinguish the goods from those of complainant's manufacture. Williams Soap Co. v. J. B. Williams Soap Co. (1911) 193 Fed. 384, 113 C. C. A. 310, writ of certiorari denied Same v. J. B. Williams Co. (1912) 32 Sup. Ct. 841, 225 U. S. 712, 56 L. Ed. 1268.

A lineal descendant of the original "Davids" who established complainant's business held entitled to use his own name in his own business, notwithstanding complainant had registered the name as a trade-mark. Thaddeus Davids Co. v. Davids (1912) 192 Fed. 915, 114 C. C. A. 355, reversing decree (C. C. 1911) 190 Fed. 285.

Defendants' use of the family name of one of them on labels used in selling their product held not an infringement of complainant's registered trade-mark "Davids." Id.

Where L. E. Waterman Company had established a business in fountain pens under such name and the trade-mark "Waterman's Ideal," defendant, as assignee of A. A. Waterman & Co., will be enjoined from using such name on pens sold in competition with complainant, without changing it to "Arthur A. Waterman & Co.," and adding the words "not connected with the L. E. Waterman Co." L. E. Waterman Co. v. Modern Pen Co. (1912) 197 Fed. 534, 117 C. C. A. 30, modifying decree (D. C. 1912) 193 Fed. 242, and decree modified (1912) 197 Fed. 536, 117 C. C. A. 32.

The word "Chickering," having been applied to pianos manufactured by Jonas Chickering and his successors in business since 1823, acquired a secondary signification which was available, as against others having the same name, to prevent them from advertising that there were two kinds of "Chickering" pianos, and that theirs was one. Chickering v. Chickering & Son (1914) 215 Fed. 490, 131 C. C. A. 538.

Plaintiff's use of name, without showing that it was merely the successor of the original party of that name, held not to deprive it of the right to protection against infringement. Knabe Bros. Co. v. American Piano Co. (1916) 229 Fed. 23, 143 C. C. A. 325.

Where one has used his name in connection with his goods in such manner and for such length of time as to make it a guaranty that the goods bearing the name emanate from him, he will be protected against the use of that name, even by another bearing the same name, in such form as to constitute a false representation of the origin of the goods. Landreth v. Landreth (C. C. 1884) 22 Fed. 41.

Hohner is a well-known maker of harmonicas in Wurtemberg, most of which are sold under his name in this country. Leiterd made harmonicas in Saxony, and put upon them his own name, with the word "nach" and the words "Improved Hohner" in larger and plainer letters, and sold them in

this country. Hohner's right to the use of his own name was infringed, and he was entitled to an injunction and accounting. Hohner v. Gratz (C. C. 1892) 52 Fed. 871.

A manufacturer cannot, by extensively advertising his name in connection with goods made by him, acquire the right to enjoin another person with the same surname from selling similar goods under that surname, when such other person has for many years been engaged in the manufacture of such goods, and puts his full name on his labels. American Cereal Co. v. Eli Pettijohn Cereal Co. (C. C. 1896) 72 Fed. 903.

One selling goods in packages prominently marked with his own name and initials, not tending to induce greater confusion than would naturally result therefrom, cannot be restrained by another of the same name, even though the former expected that unscrupulous dealers would offer his goods as the goods of the latter. Wm. Rogers Mfg. Co. v. Rogers (C. C. 1898) 84 Fed. 639, order denying preliminary injunction affirmed (1899) 95 Fed. 1007, 37 C. C. A. 358.

The manufacture and sale in good faith by a man named Stewart of "Dr. Stewart's Dyspepsia Tablets" is not an infringement or unfair competition in respect to "Stuart's Dyspepsia Tablets," where the former are put up in packages dissimilar to those of the latter. Stuart v. F. G. Stewart Co. (C. C. 1898) 85 Fed. 778, decree reversed (1899) 91 Fed. 243, 33 C. C. A. 480.

No special right to use a family name which has become a trade-name applied to a manufactured article accrues by virtue of the relation which descendants bear to the original manufacturer of the same name, such descendants being entitled to no other than their natural rights to use their own names in the transaction of their Own business. Wyckoff v. Howe Scale Co. of 1886 (C. C. 1901) 110 Fed. 520, decree reversed Wyckoff, Seamans & Benedict v. Same (1903) 122 Fed. 348, 58 C. C. A. 510, which is reversed Howe Scale Co. of 1886 v. Wyckoff, Seamans & Benedict (1905) 25 Sup. Ct. 609, 198 U. S. 118, 49 L. Ed. 972.

Giving the name "Remington" to a corporation engaged in making typewriters by two stockholders of that name, such persons not being manufacturers of typewriters, nor having their own names put on the machines, was not a legitimate use of their natural right to use their name in their own business to the injury of the plaintiff, who had purchased from the original Remington the right to use that name. Id.

Where a pencil business became widely known under the name "A. W. Faber," use of the word "Faber" by another of that name was unfair trade, and plaintiff was entitled to restrain him from using the word without the

prefix "Eberhard" or "John E." or "J. Eberhard." Von Faber v. Faber (C.

C. 1903) 124 Fed. 603, decree reversed Von Faber-Castell v. Same (1905) 139 Fed. 257, 71 C. C. A. 383, writ of certiorari denied (1905) 26 Sup. Ct. 750, 199 U. S. 609, 50 L. Ed. 331.

Where complainant purchased the right to use the name "Rowley" in the artificial limb manufacture, defendant Rowley was not entitled to use his name in such connection. J. F. Rowley Co. v. Rowley (C. C. 1907) 154 Fed. 744, decree reversed Rowley v. J. F. Rowley Co. (1908) 161 Fed. 94, 88 C. C. A. 258.

A prior right to a trade-name under which a business is conducted and good will established, though that of an individual, will be protected against another of the same name who uses it to pass off a fraudulent imitation as the goods of the one first acquiring a right to its use. Dr. A. Reed Cushion Shoe Co. v. Frew (C. C. 1908) 158 Fed. 552, decree reversed (1908) 162 Fed. 887, 89 C. C. A. 577.

Complainant, the Thaddeus Davids Company, and its predecessors, owned and controlled by persons whose family name was Davids, had used the word "Davids" as a trade-mark for 25 years. Defendant, also composed of persons whose surname was Davids, adopted it as a trade-name, and the corporate name, "Davids Manufacturing Company," using the name "Davids" in a similar manner, except that the words "Davids Manufacturing Company" were placed in prominent type at the bottom of their label. Held, that defendant's use of the name was not objectionable. Thaddeus Davids Co. v. Davids (C. C. 1908) 165 Fed. 792, decree reversed (1910) 178 Fed. 801, 102 C. C. A. 249.

Where a corporation by using the term "Dodge's" became well known and built up a large business, another corporation in the same business would be enjoined from using the term "Dodge's" on its signs, although a man named Dodge was the manager of the latter corporation, and although the term was not used on its signs with any actual fraudulent intent. Dodge Stationery Co. v. Dodge (1904) 78 P. 879, 145 Cal. 380.

As between father and son bearing the same name, the adoption and use by the son after the father's death of his own name as a trade-mark and stamp, viz.: "[Eagle.] Wm. Rogers. [Star.]"-is not, in the absence of fraud on his part, an infringement of the trade-marks, "Wm. Rogers Mfg. Co.," "1865. Wm. Rogers Mfg. Co.," and "[Anchor.] Wm. Rogers & Son," used as stamps by the father during his life, and by his successors in business after his death. William Rogers Mfg. Co. v. Simpson (1887) 54 Conn. 527, 9 Atl. 395.

An original unincorporated beneficial association had no exclusive right to

the words "Freundschaft Lodge," or "Humboldt Lodge," or to the word "Hertha," or to such words combined. Freundschaft Lodge, No. 72 D. O. H. v. Alchenburger (1908) 85 N. E. 653, 235 Ill. 438, affirming judgment Alchenburger v. Freundschaft Lodge No. 72 D. O. H. (1902) 138 Ill. App. 204.

Where a manufacturer had for some years painted upon the sides of his wagons the words "Shaver Wagon, Eldora," painting the same words upon wagons made and offered for sale by defendants was an infringement which would be enjoined. Shaver v. Shaver (1880) 54 Iowa, 208, 6 N. W. 188, 87 Am. Rep. 194.

One will not be prohibited from using his own name on articles of his own manufacture because it had first been rightfully used by another, but will not be permitted to induce the belief of customers or others desiring to purchase that the articles so marked are the products of the other. Etna Mill & Elevator Co. v. Kramer Milling Co. (1910) 109 P. 692, 82 Kan. 679.

Where partners, as J. G. M. & Sons, sell their business, good will, and trademark, a firm composed of J. G. M. and one son, who was not in the first firm, cannot use the firm name and brand of J. G. M. & Sons. J. G. Mattingly Co. v. Mattingly (Ky. 1895) 31 S. W. 279.

Lamb, an inventor, sold rights under his patents to two corporations located in different states, both of which adopted the name "Lamb Knitting Machine Company," and sold the machines they manufactured as Lamb machines, and goods manufactured thereon became known as "Lamb," or "Lamb Knit," goods. Thereafter Lamb organized a corporation, known as the "Lamb Knitting Company," and sold the property and business of this company to another corporation. Held, the latter company did not possess any exclusive right to use either the term "Lamb" or the peculiar stitch in the manufacture and sale of knit goods. Lamb Knit-Goods Co. v. Lamb Glove & Mitten Co. (1899) 78 N. W. 1072, 120 Mich. 159, 6 Detroit Leg. N. 97, 44 L. R. A. 841.

After an inventor severed his connection with the corporation which had been organized to manufacture and sell the grates invented, he patented a different grate, which was thereafter manufactured by a partnership formed by him. Held, that such partnership was entitled to advertise that they manufactured a grate under patent granted to such inventor, provided it was also stated, in language equally prominent, that the partnership was distinct from the corporation. Gordon Hollow Blast Grate Co. v. Gordon (1905) 105 N. W. 1118, 12 Detroit Leg. N. 789, 142 Mich. 488.

The name "Finney's Famous Orchestra," adopted as a name for a musical organization, is the property of those