C.

Where words have acquired such a secondary meaning as to indicate in the trade the source of the goods to which they are applied, use thereof by another on similar goods, so as to be likely to deceive purchasers, will be restrained as unfair competition, within the territorial boundaries within which such secondary meaning is known. A. Briggs Co. v. National Wafer Co. (1913) 102 N. E. 87, 215 Mass. 100. Redress for infringement must be had at common law if the trade-mark is unregistered and if no application has been made for its registration. Smith v. Imus (1885) 24 N. W. 830, 57 Mich. 456, rehearing denied Same v. Walker (1886) 26 N. W. 783, 57 Mich, 456.

Where one was not entitled to the exclusive use of certain words, he was not entitled to restrain defendant's similar use of the words, where he did not use them to mislead the public. Smith v. Library Tea Co. (Mich. 1913) 144 N. W. 489.

Where plaintiff manufactures knit underwear and defendant knit sweaters and heavy lumbermen's underwear, and shortly before the trial of the action to enjoin the use of a trade-name defendant ceased manufacturing articles of underwear and limited his product to sweaters, the fact that he abandoned this part of the work does not affect the question presented; both parties being engaged in manufacturing articles of knit wearing apparel of the same general character. Northwestern Knitting Co. v. Garon (Minn. 1910) 128 N. W. 288.

The use of a trade-name so like that of another person in the same business as to probably mislead and deceive the public, will be restrained. Sanders v. Jacob (1885) 20 Mo. App. 96.

Although plaintiff cannot acquire the exclusive right to use the word "American" as descriptive of beer, it is entitled to enjoin an imitation of its signs, bearing that word conspicuously, in size and colored lettering so as to deceive the public. American Brewing Co. v. St. Louis Brewing Co. (1891) 47 Mo. App. 14.

A jobbing corporation, which had established an extensive trade selling "Cristo Canon Coal," is entitled to an injunction against the use of that name by another as a trade-mark for the same coal. Consolidated Fuel Co. v. Brooks (Neb. 1912) 136 N. W. 60.

Evidence held to show that defendant's adoption and use of the word "Eureka" as part of its corporate title and otherwise was in fact for the purpose of availing itself to some extent of the trade reputation complainant had given to goods marketed under that name. Eureka Fire Hose Co. v. Eureka Rubber Mfg. Co. (1906) 71 A. 1134, 71 N. J. Eq. 300.

A manufacturer who uses the word "Eureka" misleads the public, and gains an unmerited advantage from the

trade reputation given to such word by another company will be restrained from the use thereof, not only in its corporate title, and in connection with competitive goods, but also in connection with noncompetitive goods manufactured by it, so long as it continues to manufacture any goods in competition with the company first using the word. Eureka Fire Hose Co. v. Eureka Rubber Mfg. Co. (N. J. 1907) 65 A. 870.

The proprietor of a hotel managed as "The Hotel Dominion" is entitled to restrain the use by another proprietor of a hotel of the name "The New Dominion" on the ground that the name of the new hotel will aid in procuring guests theretofore patronizing the old one. O'Grady v. McDonald (N. J. 1907) 66 A. 175.

Equity will restrain the fraudulent use of trade-marks by injunction. Coats v. Holbrook (N. Y. 1845) 2 Sandf. Ch. 586; Taylor v. Carpenter (N. Y. 1846) 2 Sandf. Ch. 603.

He who affixes to his own goods an imitation of an original trade-mark, by which those of another are distinguished and known, seeks, by deceiving the public, to divert and appropriate to his own use the profits to which the superior skill of another has given him the exclusive title. Amoskeag Mfg. Co. v. Spear (1849) 4 N. Y. Super. Ct. (2 Sandf.) 599.

Where defendants, having connected themselves with plaintiffs in business, and having induced plaintiffs to expend large sums of money in advertising, suddenly, and without notice, severed their connection with plaintiffs, and set up the same business for themselves, defendants' use of plaintiffs' trade-mark constituted a willful attempt to deceive the public. Comstock v. White (N. Y. 1860) 18 How. Prac. 421, 10 Abb. Prac. 264.

Where it appears that defendant designed to appropriate, through a counterfeit label, the market obtained by the plaintiff, and that he has to some extent been successful, and thereby injured the plaintiff, an injunction will be granted restraining the use of the label. Smith v. Woodruff (N. Y. 1867) 48 Barb. 438.

Where one has adopted a word to designate an article which he is manufacturing and selling by that name, he acquires a property in the use of the word as applied to the article, although the article was previously sold in France by the same name; and an injunction will lie to restrain the use of the name by another manufacturer. Rillet v. Carlier (N. Y. 1870) 61 Barb. 435, 11 Abb. Prac. (N. S. 186.

Plaintiff manufactured and vended an article called "Gouraud's Oriental Cream." Defendants, sons of plaintiff, but having a different surname, commenced to manufacture and vend an article of like nature with plaintiff's,

Defendants have a right to advertise their experience and skill in the manufacture of wagons, but they have no right to represent their present business as the same they formerly conducted as the Fish Bros. Wagon Company, or to call the attention of customers to the change of firm name. Fish Bros. Wagon Co. v. La Belle Wagon Works (1892) 82 Wis. 546, 52 N. W. 595, 33 Am. St. Rep. 72, 16 L. R. A. 453.

Use of the same distinctive symbol as plaintiff's, with much the same wording and ornamentation, but only partially the same coloring, was an imitation, and constituted unfair competition in trade. Manitowoc Malting Co. v. Milwaukee Malting Co. (1903) 97 N. W. 389, 119 Wis. 543.

17. Right to use of name-In general. -A later competitor whose use of his own name on his goods will lead the public to understand the goods are the product of an established firm known under that name must take reasonable precautions to prevent mistake. 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); Walter Baker & Co. v. Sanders (1897) 80 Fed. 889, 26 C. C. A. 220.

Every person is entitled to honestly use his own name in, business, either alone or associated with others, but may not use it as an article to mislead the public as to the identity of the business or corporation or the article produced, and thereby unfairly divert the business of another, and such a use of one's own name may be enjoined. Royal Baking Powder Co. v. Royal (1903) 122 Fed. 337, 58 C. C. A. 499; Sheffield-King Mill. Co. v. Sheffield Mill & Elevator Co. (1908) 117 N. W. 447, 105 Minn. 315, 127 Am. St. Rep. 574.

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) 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118.

A mark consisting of a surname registered by virtue of the ten-year clause of section 9490, ante, is not imitated contrary to this section where one bearing the same name uses it in his own business, though dealing in similar goods, when not used in a manner to mislead as to the ownership of the goods. Thaddeus Davids Co. v. Davids (1914) 34 Sup. Ct. 648, 233 U. S. 461, 58 L. Ed. 1046, reversing decree (1912) 192 Fed. 915, 114 C. C. A. 355.

Where complainant has established a trade in a mixture known as "Bull's Cough Syrup" and "Dr. Bull's Cough Syrup," and defendant has placed on the market a mixture inclosed in similar wrappers, and designated as "Dr.

B. L. Bull's Celebrated Cough Syrup," complainant is entitled to restrain defendant not only from using such name on such wrappers, but also from using such name on any wrappers so as to deceive the public. Meyer v. Dr. B. L. Bull Vegetable Medicine Co. (1893) 58 Fed. 884, 7 C. C. A. 558.

A corporation which, by arrangement with one R. W. R., takes his name and stamps it upon articles sold by it, with the purpose of inducing the public to think that they are purchasing the product of another "R." company, of established reputation, will be restrained from using such stamp. R. W. Rogers Co. v. Wm. Rogers Manuf'g Co. (1895) 70 Fed. 1017, 17 C. C. A. 576, affirming order Wm. Rogers Mfg. Co. v. R. W. Rogers Co. (C. C. 1895) 66 Fed. 56.

Where a corporation assumed the name of an employé holding a few shares of its stock, with the evident purpose of appropriating the trade of others of the same name, who had long used it in connection with their product, such corporation would be enjoined from using the name as part of its corporate name, or in its business. Garrett v. T. H. Garrett & Co. (1896) 78 Fed. 472, 24 C. C. A. 173.

Where the name, portrait, and fac simile signature of another are employed without his consent and against his will, and are so assumed with a view to deceive the public, an injunction will be granted. Kathreiner's Malzkaffee Fabriken Mit Beschraenkter Haftung v. Pastor Kneipp Medicine Co. (1897) 82 Fed. 321, 27 C. C. A. 351.

Where the parties have an equal right under the law to the use of the same name for their products, purchasers must be presumed to know such fact, and the defendant discharges his full legal duty if he so dresses his product that one who seeks to know whose manufacture it is can readily learn by a reasonable examination. Centaur Co. v. Marshall (1899) 97 Fed. 785, 38 C. C. A. 413.

Where complainants were entitled to the exclusive use of the word "Chickering" as a trade-name in the sale of pianos, defendants, whose name was Chickering, were properly enjoined from advertising that they were the only "Chickerings" manufacturing pianos, and that theirs were the only pianos made by a Chickering. Chickering v. Chickering & Sons (1903) 120 Fed. 69, 56 C. C. A. 475; Id. (1914) 215 Fed. 490, 131 C. C. A. 538.

The right of individuals to use their own name in their business does not extend to the right to use it in the corporate name, or in marking the product of such corporation, in which they were only stockholders, where it must have been known and intended it would produce confusion. Wyckoff, Seamans & Benedict v. Howe Scale Co. of 1886 (1903) 122 Fed. 348, 58 C. C. A. 510, reversing decree Wyckoff V. Howe

Scale Co. of 1886 (C. C. 1901) 110 Fed. 520, 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.

Defendant, John Eberhard Faber, held not entitled to use the word "Faber" without the prefix "E.” or “J. E." or "Eberhard" or "J. Eberhard" on lead pencils sold in competition with the German house of A. W. Faber. Von Faber-Castell v. Faber (1906) 145 Fed. 626, 76 C. C. A. 538.

Where plaintiff's copyright on the name "Webster," as used in the title of dictionaries, expired, and O. published dictionaries bearing that name, using a title-page, and printing on the back of the book similar to plaintiff's and likely to mislead the public, though O. printed his name on the back or cover and on the title page of his dictionaries, and used "Imperial" and "Universal" in the title, and not "International," as used by M., he was guilty of unfair competition. G. & C. Merriam Co. v. Ogilvie (1908) 159 Fed. 638, 88 C. C. A. 596, 16 L. R. A. (N. S.) 549, 14 Ann. Cas. 796, modifying decree, Ogilvie v. G. & C. Merriam Co. (C. C. 1907) 149 Fed. 858, and writ of certiorari denied (1908) 28 Sup. Ct. 761, 209 U. S. 551, 52 L. Ed. 922.

Where one sold his patent rights and the right to use his name in connection therewith, but was entitled to describe himself as the inventor of the original article in connection with the sale of the articles made under the later patents, a corporation of which he was president and its licensees to manufacture, under such later patents, were entitled to the same right. Dr. A. Reed Cushion Shoe Co. v. Frew (1908) 162 Fed. 887, 89 C. C. A. 577.

Complainant held not entitled to injunctions restraining defendants from using the name Webster as part of the title of dictionaries published by them. G. & C. Merriam Co. v. Syndicate Pub. Co. (1913) 207 Fed. 515, 125 C. C. A. 177.

Whatever confusion to the public and injury to complainants results from the lawful use by defendants of their own name is not actionable; defendants being responsible only for the unlawful use of the name and for acts of unlawful competition. Chickering V. Chickering & Sons (1914) 215 Fed. 490, 131 C. C. A. 538.

Persons formerly connected with business conducted under their name held entitled to use their name, if they did not invade good will of purchaser of business or employ its trade-marks and trade-names. Knabe Bros. Co. v. American Piano Co. (1916) 229 Fed. 23, 143 C. C. A. 325.

While any one may manufacture an article after patent expired, and designate it by its well-known name, no one has a right to represent that his goods manufactured by the patentee.

are

Frost v. Rindskopf (C. C. 1890) 42 Fed. 408.

One is entitled to sell his own goods under his own name, but must not so mark or label them as to mislead the public into the belief that they are the goods of another of the same name. Allegretti Chocolate Cream Co. v. Keller (C. C. 1898) 85 Fed. 643.

One entering a particular trade may not use his own name in a way calculated to cause confusion between his own goods and those of an old established manufacturer, having the same name. Walter Baker & Co. v. Baker (C. C. 1898) 87 Fed. 209.

A man is not deprived of the right to use his own name upon his goods by the fact that another has established a trade in the same class of goods under the same name, provided he does nothing designedly to cause confusion, but takes reasonable precautions to prevent it. Guth Chocolate Co. v. Guth (D. C. 1914) 215 Fed. 750.

Where an individual would be restrained from using a certain word, in which another has acquired the right of exclusive user for trade purposes, a corporation will not be allowed to use the word, although it is a part of its corporate name. Hainque v. Cyclops Iron Works (1902) 68 P. 1014, 136 Cal. 351.

Under Civ. Code Cal. § 991, a partnership which for many years had designated itself as the "Cyclops Machine Works" has acquired property rights in the use of the word "Cyclops" which a court of equity will protect. Id.

The outgoing stockholders of a corporation named the "Van Auken Company," whose names were Van Auken, could not organize a corporation under the name of "Van Auken Steam Specialty Company," and compete in business with the older corporation. Van Auken Co. v. Van Auken Steam Specialty Co. (1895) 57 Ill. App. 240.

Where the lessee of a store called it "Tower Palace," and put up a sign to that effect, he could not prevent the subsequent use of the term to designate the building, although attempting to carry it with him to designate his new place of business. Armstrong v. Kleinhans (1884) 82 Ky. 303, 56 Am. Rep. 894.

or

Where defendant was enjoined merely from simulating the brand of plaintiff, and defendant, "whether in conjunction with [his codefendants] with others, had the right to use his name" on goods of his own manufacture, or of the firm to which he belonged, such defendant might use his name in the business of a corporation in which he held stock. Monarch v. Rosenfeld (1897) 39 S. W. 236, 19 Ky. Law Rep. 14.

Names which are mere descriptive terms, if they be odd, unusual, fanciful, or striking, may by long use become identified in the minds of the

public with the business of a particular trader, and in such case it is unfair competition for a subsequent trader to use them in such manner as to pass off his business for that of the other. Furniture Hospital v. Dorfman (1914) 166 S. W. 861, 179 Mo. App. 302.

The lease of a boarding house known as "Norwood Cottage" for 5 months and 15 days gives the lessee no exclusive right to the use of that name. Wilcoxen v. McCray (1884) 38 N. J. Eq. (11 Stew.) 466.

Where a firm did business under the name of "Brand & Smith," and, after transferring its assets and good will to a corporation, Smith began a new similar business under the name of "William Smith & Bro." he was not entitled to restrain the corporation from using the name "Brand & Smith" on the ground that such use would lead the public to believe that it represented plaintiff's business. Smith v. David H. Brand & Co. (1904) 58 A. 1029, 67 N. J. Eq. 529.

Equity will restrain a man from so using his name on or in connection with his own goods as to suggest, except as the mere name itself may suggest, that his goods are the goods of a competitor, and pass them off as such. International Silver Co. v. Rogers (1906) 63 A. 977, 71 N. J. Eq. 560.

When an article has come to be known by a personal name one may not use it to palm off his goods as the goods of another who has first adopted it, and by which appellation the goods have come to be known, when the use of his own name for such purpose works a fraud. International Silver Co. v. Rogers (N. J. 1907) 67 A. 105, reversing decree (1906) 63 A. 977, 71 N. J. Eq. 560.

Where a man's conduct has been such that he cannot engage in a particular business, in his own name, without profiting by his prior fraud, to the detriment of another's trade, he must so distinguish his name as to avoid confusion, and the words, "Not connected with any other of the same name," are insufficient. Id.

Where a name is one which has come to indicate the source of manufacture of particular devices, the use of such name by another, unaccompanied by any indication, is an artifice calculated to deceive the public. Id.

Where the proprietor of a hotel had established a high reputation for his house under a certain name, another could be enjoined against using the same name for another house. Howard v. Henriques (1851) 5 N. Y. Super. Ct. (3 Sandf.) 725.

Where one has attached to his business a name indicating where it is carried on, he thereby acquires property in the name, which will be protected from invasion by a court of equity on principles analogous to those applicable in case of the invasion of a trade

mark. Glen & Hall Mfg. Co. v. Hall (1874) 61 N. Y. 226, 19 Am. Rep. 278, reversing (N. Y. 1871) 6 Lans. 158.

Where a well-known business is carried on under the name of "E. A. & G. R. Meneely," and a brother of plaintiffs, under the name of "Meneely & Kimberly," began the same kind of business in an adjoining county, there was not such a resemblance as would of itself tend to deceive the public or indicate a fraudulent purpose. Meneely v. Meneely (1874) 1 Hun, 367, 3 Thomp. & C. 540, affirmed (1875) 62 N. Y. 427, 20 Am. Rep. 489.

One Higgins sold to plaintiff, Chas. S. Higgins Co., a soap business long established at Brooklyn, together with the good will, labels, and trade-marks; reserving the right to engage in the same business. Thereafter Higgins organized a company to manufacture soap at Brooklyn under the name "Higgins Soap Company," and within four months thereafter received over 28 business letters intended for the other corporation. Held that, though the new company took its name from the family name of its organizers, and adopted it in good faith, without design to acquire plaintiff's trade, it would be restrained from using it. Charles S. Higgins Co. v. Higgins Soap Co. (1893) 71 Hun, 101, 24 N. Y. Supp. 801 (judgment reversed [1895] 144 N. Y. 462, 39 N. E. 490, 43 Am. St. Rep. 769, 27 L. R. A. 42); Charles S. Higgins Co. v. Amalga Soap Co. (1894) 10 Misc. Rep: 268, 30 N. Y. Supp. 1074.

One who has manufactured and sold an article under his name or combinations thereof until it has acquired an extensive reputation may enjoin another from placing such article on the market under the former's name, to his damage, even if the spurious goods are better than those which the tradename owner had originally offered. Cutter v. Gudebrod Bros. Co. (1899) 55 N. Y. Supp. 298, 36 App. Div. 362.

One must use his own name honestly, and not as a means of pirating on the good will and reputation of a business rival; and where he cannot use his own name, without inevitably representing his goods as those of another, he cannot use his name. Kaufman v. Kaufman (1910) 123 N. Y. Supp. 699.

The right to publish uncopyrighted books with the nom de plume of the author carries with it the right to state the true name of the author, either upon the title page or otherwise. Ellis v. Hurst (1910) 128 N. Y. Supp. 144, 70 Misc. Rep. 122.

One may use his own name in his business, where he does so honestly, and does not resort to unfair methods to the injury of another, or commit a fraud on the public. Zagier v. Zagire (1914) 83 S. E. 913, 167 N. C. 616.

Where one has established a business and a reputation for an article under a particular name and label, whether