On the same principle members of societies have a right to stop the use of the name of the society or its emblem or label by persons not members and not entitled to use these various things.'

These cases all proceed upon the theory that a community mark represents the reputation or good will of those making up the community or group, that anyone of them has a sufficient interest to stop a wrongful use by an outsider,10 and that it is wrong by misrepresentation to steal away the customers of an individual trader or of a group of traders.

A trade mark is not a name or device in the abstract, but is a means applied to goods to indicate their commercial origin. It does not exist as an extrinsic thing." When applied to merchandise, a

they are the goods dealt in by the plaintiff. Moreover, since the goods containing an admixture of cotton can be profitably sold at a less price than the all-wool goods, the tendency must be to unfairly divert custom from the plaintiff to the defendant." Jaffe v. Evans, 70 N. Y. App. Div. 186 (1902); Anheuser-Busch v. Fred Miller Brew. Co., 87 Fed. 864 (1898).

• Carson v. Ury, 39 Fed. 777 (1889); Society of Accountants v. Corporation of Accountants, Scottish Session Cases, 4 Ser., vol. 20, p. 750 (1893); Society of Accountants & Auditors v. Goodway (1907), 1 Ch. 489, 76 L. J. Ch. 384, 96 L. T. n. s. 326, 23 T. L. R. 286, 24 R. P. C. 159.

10 In Wm. Rogers Mfg. Co. v. Rogers & Spurr Co., 11 Fed. 495, 500 (1882), Judge Lowell said: "It is further argued that the Rogerses are so many that the court cannot find an intent to appropriate the reputation of one of them more than another; and that, if any suit will lie, it must be by all those who use any trade mark whose distinctive feature is the name 'Rogers.' I believe it to be true that the Greenfield Rogerses did not inquire, nor did the defendants care, whose reputation they were making available; but I am of opinion that any one of those who rightly uses the name may enjoin its interfering use by others."

11 In Rey v. Lecouturier, 25 R. P. C. 268 (1908) (House of Lords), Lord Shaw said: "In short the business of Chartreuse liqueur, as such is carried on by them (the monks), and the English trade marks are therefore trade marks in respect of a thing, the business in which is not and cannot be conducted by the appellants. The trade marks are in the latter; the business in the monks. My Lords, such severance is not legally possible."

Weston v. Ketcham, 51 How. Pr. 455, Cox Man. 487 (1876), Sedgwick, J.: "There is no such thing as a trade mark 'in gross' to use that term by analogy. It must be appendant to some particular business in which it is actually used upon, or in regard to specific articles." Mayer v. Virginia-Carolina Co., 156 O. G. 539, 35 App. D. C. 425, [1910] C. D. 399, 4 Pomeroy Eq. (1905), sec. 1405, n. 10; Bozon v. Farlow, 1 Mer. 459 (1816); Baxter v. Connolly, 1 Jac. & W. 576 (1820); Coslake v. Till, 1 Russ. 376 (1826); Metropolitan Bank v. St. Louis Dispatch, 149 U. S. 436 (1893); Bulte v. Igleheart, 137 Fed. 492 (1905); Allan on Good Will, p. 12; Eiseman v. Schiffer, 157 Fed. 473, 476 (1907); Rey v. Lecouturier, 25 R. P. C. 265, 291 (1908); Robertson v. Quiddington, 28 Beav. 529 (1860); Musselman's Appeal, 62 Pa. St. 81 (1869); Commonwealth v. Ky. Distilleries Co., 116 S. W. 766 (1909); Metropolitan Nat.

trade mark is of value exactly as the information it conveys or implies is of value. If it is valuable that the public should know that a certain article is produced by a certain trader, then the trade mark or other thing by which that information is conveyed is of equal value. The value, however, is not in the trade mark but in the mark plus the information it conveys concerning the origin of the merchandise to which it is applied the trade mark as symbolizing a business good will or reputation,12 and it is the good will or reputation which is the property not the symbol as a separate thing."

13

Bank v. St. Louis Dispatch Co., 36 Fed. 722 (1888); People v. Roberts, 159 N. Y. 70, 76, 53 N. E. 685 (1899); MacMahan Pharmacal Co. v. Denver Chemical Mfg. Co., 113 Fed. 468, 474 (1901); Dietz v. Horton, 170 Fed. 865, 871 (1909); Williams v. Farrand, 88 Mich. 473, 50 N. W. 446, 448 (1891); Sebastian on Trade Marks, 4 ed., 9; Avery v. Meikle, 81 Ky. 73 (1883); Grocers' Journal Co. v. Midland Pub. Co., 127 Mo. App. 356, 105 S. W. 310, 312 (1907); MacMillan v. Erhmann, 21 R. P. C. 357, 361, affirmed (C. A.) 21 R. P. C. 647 (1904); Spiegel v. Zuckerman, 175 Fed. 978, 984 (1910); Messer v. The Fadettes, 168 Mass. 140, 46 N. E. 407 (1897); Pinto v. Badman, 8 R. P. C. 181, 192 (1891); Kidd v. Johnson, 100 U. S. 617 (1879); Thorneloe v. Hill, 8 Reports 718, 11 R. P. C. 61, 71 (1894); Dixon v. Guggenheim; 2 Brews. 321, R. Cox, 559, 576 (1870); McVeagh v. Valencia Cigar Factory, 32 O. G. 1124, P. & S. 970, 973 (1885).

12 State v. Bishop, 128 Mo. 373, 31 S. W. Rep. 9, 29 L. R. A. 200 (1895), Burgess, J.: "Abstractly and apart from its application and use, a trade mark has no recognized ownership. Its value is in its employment in marking the goods upon which it is placed. This gives it the character of property. It is then a symbol of reputation or good will." Ball v. Broadway Bazaar, 194 N. Y. 429, 87 N. E. 674, 676 (1909); Commonwealth v. Ky. Distilleries Co. (Ky.), 116 S. W. 766 (1909); Carroll v. McIlvaine, 171 Fed. 125, 128 (1909); Royal Co. v. Raymond, 70 Fed. 376, 380 (1895).

13 While there are a number of cases which hold that the right to a trade mark is property, a little examination will demonstrate that the notion is unsound, and that the true theory is that there is no such thing as property in a trade mark. The property is in the business good will which the trade mark symbolizes, not in the trade mark itself. Reddaway v. Banham, [1896] A. C. 199, 209, 210, 13 R. P. C. 218, 228.

Lord Herschell: "The word 'property' has been sometimes applied to what has been termed a Trade Mark at common law. I doubt myself whether it is accurate to speak of there being property in such a Trade Mark, though, no doubt, some of the rights which are incident to property may attach to it.”

Chadwick v. Covell, 151 Mass. 190, 194, 23 N. E. 1068, 1069, 6 L. R. A. 389 (1890).

Holmes, C. J.: "Undoubtedly, the exclusive right to use a certain collocation of words or signs to designate a certain class of goods may have a considerable money value as an advertisement, but the fact that a right would have a money value, if it existed, is not a conclusive reason for recognizing the right. The exclusive right to particular combinations of words or figures for purposes not less useful than advertising for poetry, or the communication of truths discovered for the first time by the

It seems as if good will in this connection is more a sentiment than the thing we commonly run across in judicial opinions. Good will, to define it inexactly, is the friendliness which a consumer may have toward a particular trader's goods. It is that friendliness which induces him to buy one product rather than another. In order that his inclination toward a particular article may be exercised it is necessary that he be furnished the means of distinguishing the thing he wants to buy from others of a similar kind. Therefore, the trade mark, or whatever it is that enables the purchaser to pick out from among others the thing that he wants, is with him, at least, the

writer, for art or mechanical design — has needed statutes to call it into being, and is narrowly limited in time. When the common law developed the doctrine of trade marks and trade names, it was not creating a property in advertisements more absolute than it would have allowed the author of Paradise Lost, but the meaning was to prevent one man from palming off his goods as another's, from getting another's business or injuring his reputation by unfair means, and, perhaps, from defrauding the public. It is true that some judges, noticeably Lord Westbury, have preferred to rest the protection to trade marks on the notion of property, rather than of fraud; but it is plain, upon reading his judgments, that he means no more than that the deception which equity will prevent, need not have been intended, as when a man ignorantly adopts a trade mark already in use, and that within certain limits a trade mark may be sold, which nobody denies. Hall v. Barrows, 4 De Gex, J. & S. 150, 158; Leather Cloth Co. v. American Leather Cloth Co., Id. 137. The limitations are clearly marked by the language of Lord Cranworth and Lord Kingsdown in the latter case on appeal to the House of Lords. II H. L. Cas. 523, 534, 538. See also Manufacturing Co. v. Loog, L. R. 8 App. Cas. 15, 29, et seq.; Wotherspoon v. Currie, L. R. 5 H. L. 508, 514, 519; Ainsworth v. Walmsley, L. R. 1 Eq. 518, 525; Collins Co. v. Brown, 3 Kay & J. 423, 426. At least as strict a rule is to be drawn from Pub. St. c. 76, § 1; Gilman v. Hunnewell, 122 Mass. 139, 148."

Collins Co. v. Brown, 3 K. & J. 423, 69 Full Reprint, 1174 (1857). W. Page Wood, V. C.: "It is now settled law that there is no property whatever in a trade mark, but that a person may acquire a right of using a particular mark for articles which he has manufactured, so that he may be able to prevent any other person from using it, because the mark denotes that articles so marked were manufactured by a certain person; and no one else can have a right to put the same mark on his goods, and thus to represent them to have been manufactured by the person who originally used that particular mark. That would be a fraud upon the person who first used the mark in the market where his goods are sold."

See Lord Justice James' remarks in Singer Co. v. Loog, L. R. 18 Ch. Div. 412, 413 (1880); Judge Loring's observations in Cohen v. Nagle, 190 Mass. 4, 76 N. E. 276, 282 (1906), and Chief Justice Knowlton's in Fox v. Glynn, 191 Mass. 344, 78 N. E. 89, 91 (1906). See also Canada Publishing Co. v. Gage, 3 Can. Com. Law Rep. 119, 129; Turton v. Turton, 42 L. R. Ch. Div. 128, 61 L. T. N. S. 571, 576 (1889); Lee v. Haley, 22 L. T. N. S. 251 (1869); Powell v. Birmingham, 13 R. P. C. 235, 250 (1896); Walton v. Crowley, 3 Blatch. 440, R. Cox, 166, 173 (1856); Carroll v. McIlvaine, 171 Fed. 125, 129 (1909).

embodiment of the friendliness or good will which he has toward that product. The probability of successive purchases is what the courts call good will.

The theory of all the cases enjoining trade mark infringement, as well as those restraining the diversion of the business of one trader to another by artifice or contrivance, by means of which a false representation concerning the commercial origin of merchandise is made, is that every trader is entitled to the first reward of his honesty, skill or enterprise; that if his product has a reputation and is preferred by purchasers to the goods of others, he has a right to every benefit which ensues from that fact. He has the right to take advantage of this public preference for his goods, and by a trade mark or otherwise to announce to the public the fact of their origin with him and thus visibly to symbolize and perpetuate his reputation.14 In short, that the good will which he has created belongs

14 In McLean v. Fleming, 96 U. S. 245, 251 (1877), Mr. Justice Clifford said: "Suppose the latter has obtained celebrity in his manufacture, he is entitled to all the advantages of that celebrity, whether resulting from the greater demand for his goods or from the higher price the public are willing to give for the article, rather than for the goods of the other manufacturer, whose reputation is not so high as a manufacturer. . . . Everywhere courts of justice proceed upon the ground that a party has a valuable interest in the good will of his trade, and in the labels or trade mark which he adopted to enlarge and perpetuate it. . . . A trade mark may consist of a name, symbol, figure, letter, form, or device, if adopted and used by a manufacturer or merchant in order to designate the goods he manufactures or sells to distinguish the same from those manufactured or sold by another, to the end that the goods may be known in the market as his, and to enable him to secure such profits as result from his reputation for skill, industry, and fidelity."

In Partridge v. Menck, 2 Sandf. Ch. 622, 2 Barb. Ch. 101, 1 How. App. Cas. 558, R. Cox, 72, 77 (1848), the Chancellor said: "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 manufactured of 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 complainant's friends or customers, or the patrons of his trade or business, by sailing under his flag without his authority or consent."

In Amoskeag Mfg. Co. v. Spear, 2 Sandf. S. C. 599, R. Cox, 87, 91 (1849), Judge Duer said: "Every manufacturer, and every merchant for whom goods are manufactured, has an unquestionable right to distinguish the goods that he manufactures or sells by a peculiar mark or device in order that they may be known as his in the market for which he intends them, and that he may thus secure the profits that their superior repute, as his, may be the means of gaining. His 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

to him alone, and that attempts by others to divert it to themselves are wrongful.

It would seem as if the damage to good will rather than deception of the public is really the important thing, which induces the courts to interfere in trade mark infringement and passing off cases. Whether or not the defendant's conduct is calculated to deceive the public into the belief that his goods are the complainant's is, of course, a material inquiry, because if this false representation is being made, the complainant is certainly damaged for he is in danger of having his customers decoyed away from him by the defendant's misrepresentations and "thus the custom and advantages to which the enterprise and skill of the first appropriator have given him a just right, are abstracted for another's use, and this is done by deceiving the public, by inducing the public to purchase the goods and manufactures of one person supposing them to be those of an

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 of the individual, require that the necessary protection shall be given. It is a mistake to suppose that this necessary protection can operate as an injurious restraint upon the freedom of trade. Its direct tendency is to produce and encourage a competition, by which the interests of the public are sure to be promoted; a competition that stimulated effort and leads to excellence, from the certainty of an adequate reward."

Judge Thompson said in Skinner v. Oakes, 10 Mo. App. 45, Price & Steuart's Trade Mark Cases, 459, 468 (1881): “The courts have proceeded upon the twofold principle that the public have a right to know that the goods which bear the signature or mark of a particular manufacturer or vendor are, in fact, the goods of such manufacturer or vendor, and that the manufacturer or vendor of such goods has the right to any advantage which may accrue to him from the public knowing that fact."

In Dennison v. Thomas, 94 Fed. 651, 657 (1899), Judge Bradford said: "The function of a trade mark is to indicate to the public the origin, manufacture, or ownership of the articles to which it is applied, and thereby secure to its owner all benefit resulting from his identification by the public with the articles bearing it."

In Congress & Empire Spring Co. v. High Rock Congress Spring Co., 57 Barb. 526, R. Cox, 599, 621 (1871). Judge James said: "The principle which underlies this doctrine is that he who by his skill, industry or enterprise has produced or brought into market or service some commodity or article of use, convenience, utility, or accommodation, and affixed to it a name, mark, device, or symbol which serves to designate it as his, is entitled to be protected in that designation from encroachment, so that he may have the benefit of his skill, industry, or enterprise, and the public be protected from the fraud of imitators."

In Williams v. Brooks, 50 Conn. 278, P. & S. 654 (1882), Judge Pardee said (p. 659): "The purpose to be effected by this proceeding is not primarily to protect the consumer but to secure to the plaintiffs the profit to be derived from sale of hair pins of their manufacture to all who may desire and intend to purchase them."