To sum up: If one person wrongfully mingles the money of another with his own, the person wronged has a right either to (1) an equitable lien on, or (2) a share of, the whole commingled fund or any traceable product of it.

(1) The equitable lien rests on the whole fund or its product, for the amount the claimant has contributed to it; the mere separation of the fund into parts by withdrawals which are preserved will not affect his interest; withdrawals which are dissipated will diminish his security, but, so long as the balance left does not fall below the amount contributed by him, will not diminish the amount he is entitled to take; if the balance falls below the amount of his contribution, and nothing more is added from other sources, he has a lien on the balance, or, if it is invested, on its product, for the amount of his contribution; additions made from other funds, unless treated as a restoration of the claimant's money, will increase the fund on which he has a lien, but not the amount he is entitled to take, which will be the lowest balance of the original commingled fund, or, if that balance and the subsequent additions are advantageously invested, the balance and the profit earned by it, up to the amount originally contributed by him.

(2) The extent of his share will depend on the proportion contributed by him; it will not be affected by the mere separation of the fund into parts by withdrawals which are preserved; any rise in value not resulting from new contributions will enure to his benefit, for the denominator of the fraction representing his interest will remain the same while the numerator will increase; any loss by withdrawals which are dissipated, or by a decline in value, will cause him a loss, for the denominator of the fraction will remain the same while the numerator will decrease; any new contributions of other funds, unless treated as a restoration of the claimant's money, will simply give him a smaller part of a larger whole.

Austin W. Scott

HARVARD LAW SCHOOL.

to restore, or on the ground that, since it was the wrongdoer's duty to restore, the person wronged has a claim to the newly acquired stock regardless of the wrongdoer's intent.

PREDATORY PRICE CUTTING AS UNFAIR TRADE.

THE

HE methods of the unfair trader are as many and various as the highly specialized ingenuity of a dishonest schemer can invent. The designation "unfair competition" or "unfair trade" seems to have been adopted as a convenient description of offences against commercial morals not included in trade mark infringement.

It was for many years assumed that unless a technical trade mark were violated, no relief could be had. It was soon demonstrated that the acceptance of any such rule opened the door to all manner of commercial knavery, and at an early day judges with consciences and a proper sense of sportsmanship began to decide cases in favor of the complainant which were in no sense trade mark cases, but where the defendant's conduct involved precisely the same wrongthe sale of one trader's goods as those of another-the result being accomplished by some ingenuous contrivance, the deceptive use of personal, geographical or descriptive names, imitated labels or form of package or in some of the infinity of ways which enable one trader to represent his goods as those of a competitor, whose reputation is better and whose trade he covets.1 The digesters and text

1 In Perry v. Truefitt, 6 Beav. 66 (1842), Lord Langdale said (p. 73): “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 pretense that they are the goods of another man; he cannot be permitted to practice such a deception nor to use the means which contribute to that end. He cannot, therefore, be allowed to use names, marks, letters, or other indicia, by which he may induce purchasers to believe that the goods which he is selling are manufactured 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 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."

In Croft v. Day, 7 Beav. 84 (1843), Lord Langdale said (p. 88): “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

writers at first were puzzled to know where to classify such cases. The author of a text book on Trade Marks would devote a chapter to Cases analogous to trade marks" and put them there. Finally, the term "unfair competition" was adopted (perhaps from the French Concurrence Deloyale) and has since been used to describe that class of wrongs where by artifice one trader's goods are sold as and for another's.2 Probably the phrase "passing off" commonly used in England more correctly describes the wrong as we now understand it in this country than "unfair competition," but "unfair competition" is the preferable designation if it can be given the meaning that, as a part of the English language, it ought

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."

(1845) Coats v. Holbrook, 2 Sandf. Ch. 586, R. Cox, Am. Trade Mark Cases, 20, where not only an imitated name was used, but a simulated mode of putting up goods including the peculiar spools and wrappers employed by the complainant. ViceChancellor Sandford said, (p. 594): "A man is not to sell the goods or manufactures of B. under the show or pretense that they are the goods or manufactures of A., who, by superior skill or industry, has established the reputation of his articles in the market. The law will permit no person to practice a deception of that kind, or to use the means which contribute to effect it. He had no right, and he will not be allowed, to use the names, letters, marks, and other symbols by which he may palm off upon buyers, as the manufacture of another, the article he is selling, and thereby attract to himself the patronage that without such deceptive use of such names, etc., would have inured to the benefit of that other person who first got up or was alone accustomed to use such names, marks, letters, or symbols."

(1857) Williams v. Johnson, 1 R. Cox, Am. Trade Mark Cases, 214, involved an imitation of the get-up of Williams' Yankee Shaving Soap. Woodruff, J., (p. 222): "It is so palpable as to admit of no reasonable doubt that the devices employed by the defendant were calculated and intended by him to secure the benefit of the reputation which the plaintiffs had acquired. He is in this respect entitled to no favor. The court, in considering the propriety of enjoining him pending the litigation, will not feel called upon to be zealous to aid him by refined distinctions, so that he may evade the letter and violate the scope and spirit of the adjudged cases."

2 Powell v. Birmingham Vinegar Brewery Co., [1894] 3 Ch. Div. 449, [1894] 3 Ch. Div. 462, [1896] 2 Ch. 54, 64, [1897] A. C. 710; Dyment v. Lewis, 144 Iowa 509 (1909), 123 N. W. 244, 245, 26 L. R. A. N. s. 73 (note); Reddaway v. Banham, [1896] A. C. 199; Bates Mfg. Co. v. Bates Numbering Machine Co., 172 Fed. 892, 894 (1909); Weinstock, Lubin & Co. v. Marks, 109 Cal. 529, 42 Pac. 142, 145 (1895); Manitowoc Pea Packing Co. v. Numsen, 35 C. C. A. 267, 93 Fed. 196, 197 (1899); Shaver v. Heller & Merz, 108 Fed. 821 (1901); Garrett v. Garrett, 78 Fed. 472 (1896); Pillsbury v. Pillsbury-Washburn Flour Mills Co., 64 Fed. 841 (1894); Hires v. Consumers' Co., 100 Fed. 809 (1900); R. J. Reynolds Tobacco Co. v. Allen, 151 Fed. 819 (1907); Sterling Remedy Co. v. Spermine Co., 112 Fed. 1000 (1901); Scriven v. North, 134 Fed. 366 (1904); Walter Baker & Co., Ltd., v. Slack, 130 Fed. 514 (1904).

to have that it includes not alone "passing off" but any conduct on the part of one trader which tends unnecessarily to injure another in his business. Universally in this country, until very recently, "unfair competition" was assumed to involve the element of actual or constructive fraud - a misrepresentation, express or implied, concerning the commercial origin of goods. This was so whether the false representation in that respect affected a single trader or a group, for in either event there was deception of the public coupled with damage to the business good will of the individual or group. The wrong may consist, as it does in the common case, where an article is falsely represented to be the product of an individual whose goods are sought after because of public belief in their excellence, in diverting custom to the pirate which would otherwise have gone to the reputable producer. The same wrong less centralized may also be perpetrated, where the false representation concerns geographical origin, by the false use of a reputable place name. It is well recognized at the present time, though there are some earlier cases to the contrary, that the manufacturer of a product in a certain district has a right as against a person not manufacturing in that district to the use of the name of the district. All or any rightfully and truthfully using the place name may sue. One of a

3 New York & R. Cement Co. v. Coplay Cement Co., 44 Fed. 277 (1890); 45 Fed. 212 (1891).

Pillsbury-Washburn Flour Mills Co. v. Eagle, 86 Fed. 608 (1898); Newman v. Alvord, 51 N. Y. 189 (1872); California Fruit Canners' Ass'n v. Myer, 104 Fed. 82 (1899); Key West Cigar Mfg. Ass'n v. Rosenbloom, 171 Fed. 296 (1909); El Modelo v. Gato, 25 Fla. 886, 7 So. Rep. 23, 6 L. R. A. 823 (1890); Keller v. Goodrich, 117 Ind. 556, 19 N. E. 196 (1888); Blackwell v. Dibrell, 3 Hughes 151, F. C. 1475 (1878); Anheuser-Busch v. Piza, 24 Fed. 149 (1885); Southern White Lead Co. v. Coit, 39 Fed. 492 (1888); Southern White Lead Co. v. Cary, 25 Fed. 125 (1885); Pike v. Cleveland Stone Co., 35 Fed. 896 (1888); Northcutt v. Turney, 101 Ky. 314, 41 S. W. 21 (1897); Gage-Downs Co. v. Featherbone Co., 88 Fed. 213; Elgin Nat. Watch Co. v. Loveland, 132 Fed. 41 (1904); Collinsplatt v. Finlayson, 88 Fed. 693 (1898); Braham v. Beachim, L. R. 7 Ch. D. 848 (1878); Southern v. Reynolds, 12 L. T. n. s. 75 (1865); Dunnachie v. Young, Scottish Session Cases, 4th Series, vol. 10, p. 874 (1883); Lochgelly Iron & Coal Co. v. Christie, Scottish Session Cases, 4th Series, vol. 6, p. 482 (1879); The Canterbury Frozen Meat & Dairy Produce Co., Ltd., v. The Christchurch Meat Co., 8 New Zealand Law Rep. 49 (1889).

For the Continental law on this subject see Kohler "das Recht des Markenschutzes," pp. 108-118.

The wine producers in the vicinity of Rheims and Epernay have been diligent and successful in enjoining vineyard proprietors outside of the Champagne district from the geographically false use of the word "Champagne." (Walbaum v. X., 5 Propriété In

number of truthful users of a personal name has a right to stop a person from the false use of the same name and to be compensated in damages proportionately to his interest in the subject matter." A person who is rightfully using the generic name of a patented product has a right to stop a person falsely using the name or using the name in connection with a different product." This probably applies as well to the use of generic names of unpatented articles, that is to say, the manufacturer of an article under a name indicative of a reputable class of goods may stop persons from using the name on goods not of the class where the false representation is sufficiently specific to involve origin as well as class.

dustrielle 19; Syndicate of Wine Merchants v. Ackerman, 19 Journal du droit International Privé 1068; Chapin v. The Syndicate of Dealers in Champagne, 20 Journal du droit International Privé 406, decision of Landgericht de Strasbourg, 19 Feb. 1896, 12 La Propriété Industrielle 78.) This controversy culminated in the delimitation decree of Dec. 7, 1909, and the riots which followed.

The brewers at Pilsen succeeded in stopping brewers outside of Pilsen branding their beer "Pilsener," 20 Patent Blatt, No. 12, p. 104.

5 Pinet v. Pinet, 14 R. P. C. 933 (1897); Smail v. Sanders, 118 Ind. 105, 20 N. E. 296 (1889); DeYoungs v. Jung, 25 N. Y. Supp. 479 (1893), 27 N. Y. Supp. 370 (1894); Barber v. Manico, 10 R. P. C. 93 (1893); Clark Thread Co. v. Armitage, 67 Fed. 896 (1895), 74 Fed. 936 (1896); Wm. Rogers Mfg. Co. v. Rogers & Spurr Mfg. Co., 11Fed. 495 (1882).

6 Wm. Rogers Mfg. Co. v. Rogers & Spurr Mfg. Co., 11 Fed. 495, 500 (1882).

7 Singer Co. v. Hipple, 109 Fed. 152 (1901); Janney v. Pan-coast Ventilator Co., 128 Fed. 121 (1904).

* In Jaeger v Le Boutillier, 24 N. Y. Supp. 890 (1893), it was held that the complainant had no exclusive right to the name "Jaeger" because indicative of a system, but that the name could truthfully be applied only to woolen garments. Defendant described as "Jaeger," garments made partly of cotton. Held, that notwithstanding the lack of exclusive right in the name complainant could sue. Gildersleeve, J. (p. 901): “The plaintiff's right to use the name 'Jaeger' as designating underwear made in accordance with the Jaeger system, is so qualifiedly exclusive that its right to protection of its use against infringement by others rests upon the ground that such use by them is an untrue or deceptive representation. The application of the name 'Jaeger' or 'Jaeger System' to underwear containing an admixture of cotton is an untrue and deceptive representation, and, as against such a use, the plaintiff is entitled to relief. It is a false representation of fact, which tends to confuse the identity of the defendant's goods, not made after the Jaeger system, with the goods of the plaintiff, made in accordance with that system, and creates a dishonest competition, detrimental to the plaintiff. One of the uses by the defendant of the name 'Jaeger' to designate underwear containing an admixture of cotton must be held to be for the purpose of taking advantage of the reputation the all-wool Jaeger goods have acquired, and of the Jaeger name, as applied thereto. The application of the name 'Jaeger' by the defendant to goods part cotton tends to deceive the purchasers and users of plaintiff's goods, and actually mislead them into buying the goods containing cotton sold by defendant, in the belief that