may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief, unless the Court or a judge in disposing of the costs shall otherwise direct (R. S. C. 1883, O. XVI. r. 1). Provision is also made for the substitution or addition of plaintiffs (r. 2), and the joinder of defendants (rr. 4, 5, 6,7). The question of joinder of parties is now of little importance, although it is still as necessary as heretofore to have the proper parties before the Court. It will be remembered that although a plaintiff may have a right to an injunction upon the strength of an equitable title, he must nevertheless join the owner of the legal title as co-plaintiff. The costs of and incident to all proceedings in the Costs. Supreme Court are now in the discretion of the Court: Provided that where any action, cause, matter, or issue is tried with a jury the costs shall follow the event, unless the judge by whom such action, cause, matter, or issue is tried, or the Court shall, for good cause, otherwise order (R. S. C., O. LXV. r. 1). Subject to this section, and to the general law on the subject of costs, which in most cases is as applicable to actions for the infringement of copyright as to any other species of action, the following decisions may be noted : Where a fatal objection appears on the face of a statement of claim, and the defendant does not raise the point of law in his pleadings, in dismissing the action it will be without costs, except where an injunction is sought (Page v. Wisden, 20 L. T. (N. S.) 435). A defendant who imported copyright matter for sale contrary to the statute, was ordered to pay the costs of an action, although he had acted without knowledge, and had sold none of the works (Cooper v. Whittingham, 28 W. R. 720). Where a plaintiff obtains a perpetual injunction he is entitled to costs, no matter how trivial the subject-matter of the action may be, sed aliter in some cases, as, for instance, where the defendant immediately after an interim injunction tenders the full costs up to that date (see Fradella v. Weller, 2 Russ. & My. 247). And so also where a defendant offers to submit to all the relief to which the plaintiff is entitled, it is the duty of the latter to stay proceedings, and, if he insists on further prosecuting the suit, he will not be entitled to costs from that time (Colburn v. Simms, 2 Hare, 543). But where a plaintiff is compelled to bring the action to a hearing, by reason of the defendant's refusing to pay costs which he ought to have paid, he will be entitled to the whole costs, even although he should at the hearing waive his claim for an account (Kelly v. Hooper, 1 Y. & C. (Ch.) 197). Where a person deliberately copies another's advertisement, although the Court cannot restrain him, it will as a rule refuse to allow him his costs (Cobbett v. Woodward, L. R. 14 Eq. 407, per Romilly, M.R., see ante, p. 73). The Court will not, save in instances of bad faith, take any notice of negotiations prior to the action, unless indeed they amount to a release or binding contract, and a plaintiff who proceeds to enforce his rights will accordingly be entitled to costs (Edelsten v. Edelsten, 1 De Gex, J. & S. 203). Where a plaintiff demands more than he is entitled to, and the defendant offers by way of settlement less than he ought to perform, and the plaintiff thereupon brings the action to a hearing, neither party is entitled to costs (Moet v. Couston, 33 Beav. 578). A plaintiff who after hearing but before judgment becomes bankrupt, cannot be compelled personally to pay the costs, assuming judgment to be entered eventually for the defendant (Boucicault v. Delafield, 10 Jur. (N. S.) 937, 1063). Where there is not a clear misrepresentation, but the conduct of the defendants is such as to justify the plaintiff in demanding an investigation, the action will be dismissed, and each party must pay his own costs (Ainsworth v. Walmsley, L. R. 1 Eq. 527). Where in an action (by reason of the defendant having discontinued the piracy), a judge makes no other order than "that the defendant do pay the costs of the action," an appeal by defendants is not for "costs only" within the 49th section of the Judicature Act, 1873 (Dicks v. Yates, 50 L. J. (N. S.) Ch. 809). Notwithstanding the provisions of the Act 3 & 4 Will. IV. c. 15, to amend the laws relating to dramatic literary property, or any other Act in which those provisions are incorporated, it is now provided (45 & 46 Vict. c. 40, s. 4), that the costs of any action or proceedings for penalties or damages in respect of the unauthorised representation or performance of any musical composition, published before the passing of the Act, shall in cases in which the plaintiff shall not recover more than 40s. as penalty or damages, be in the discretion of the Court or judge before whom such action or proceeding shall be tried. PART II.-TRADE MARKS. Difference between and a trade mark. CHAPTER VIII. ON THE RIGHT OF PROPERTY SUBSISTING IN A TRADE A TRADE MARK, although partaking to some extent of copyright the nature of a monopoly, differs essentially from copyright. Copyright refers to and is intended to protect the substance of a production, whether of a literary or artistic nature, while a trade mark merely protects the identification of an article, and of itself in no way affects the production or sale of a similar article by a third person (see Dicks v. Yates, 50 L. J. N. S. (Ch.) 809). Anyone who has adopted a particular mode of designating his particular manufacture has a right to say, not that other persons shall not sell exactly the same article, better or worse, or an article looking exactly like it, but that they shall not sell it in such a way as to confound the identity, and lead purchasers to believe that it is the manufacture to which that trade mark was originally applied (Farina v. Silverlock, 6 De G. M. & G. 218). The consideration of a true trade mark is primarily centered in an actual mark or device, necessarily annexed to some description of goods or to the envelope or receptacle containing them, and properly registered under the Patents, Designs, and Trade Marks Act, 1883 (46 & 47 Vict. c. 57). This Act and the gistration 1883. rules made in pursuance thereof repeal all previous Repeal of all preenactments and rules relating to the registration of trade vious remarks (see Sect. 113; Trade Mark Rules, 1883, r. 60), Acts by the except that the repeal of enactments is not to affect the Act of past operation of any of those enactments, or right to use a trade mark granted or acquired, or application pending, or appointment made, or compensation granted, or order or direction made or given, or right, privilege, obligation, or liability acquired, accrued, or incurred, or anything duly done or suffered under or by any of those enactments before or at the commencement of the Act, nor is such repeal to interfere with the institution or prosecution of any action or proceeding, civil or criminal, in respect thereof, and any such proceeding may be carried on as if the Act had not been passed. Further, such repeal shall not take away or abridge any protection or benefit in relation to any such action or proceeding (46 & 47 Vict. c. 57, s. 113), and the repeal of the rules made under the Trade Marks Registration Act, 1875, is without prejudice to any proceeding which may have been taken under such rules (Trade Mark Rules, 1883, r. 60). analogous marks It must be observed that there are other species of pro- Cases perty which are protected by the Courts, on principles to trade analogous to those governing trade marks proper, as, proper. for instance, the goodwill of a trade so far as it is contained in the style or title of the partnership, the name of a trader, the description of his place of business or peculiar manufacture or product, the wrappers in which goods are enveloped, such wrappers being of a distinguishing style, and the right to a trade secret under certain circumstances. The protection afforded in these and similar cases does. not necessarily depend upon the existence of any trade mark, qua trade mark, but is directed against false representations calculated to injure the property, legal or actual, |