the exhibits we extract the following, which are deemed material to a proper decision of the case: Plaintiff did not coin the word "She." The label used by him bearing this name was designed by a printing concern in the State of New York in the year 1893, and was sold by it as a stock label from that time down to the time of the trial of this case. In the year 1894 plaintiff purchased a number of these labels, which he placed upon cigar boxes containing cigars made by him, and sold them to retail dealers doing business in Des Moines and a few surrounding towns. He made his cigars from selected stock, expended large sums of money in advertising this brand of cigars, and established a good trade therein. In 1900 plaintiff discontinued the use of the label made by the New York firm, and procured a somewhat different design, but bearing the same talismanic word "She," from a printing-house doing business in Wisconsin. These labels he used in the same manner as the original stock label. Defendant is not a manufacturer, but a wholesaler in cigars, whose territory covers Des Moines and vicinity, as well as some other towns and cities not reached by the plaintiff. In the year 1902 he purchased from the New York printshop some of the stock "She" labels, and directed a manufacturer at Davenport to make some cigars for him which should be placed in boxes bearing this "She" label; and these cigars so manufactured for him, and others manufactured by others for him, bearing the stock label above described, were sold by him in the territory where plaintiff had established this trade, and to dealers to whom plaintiff had previously sold. Many buyers of cigars handled by defendant under the stock label "She" purchased them believing that they had been manufactured by the plaintiff, and some of these persons complained to the plaintiff of the quality of the cigars so purchased. Defendant sold his cigars at a less price than plaintiff sold the same brand for, and, for one reason or another, did a considerable and increasing business in this brand of cigars. Defendant never expressly stated that the cigars he was handling were made by plaintiff, but he sold to the same dealers who had theretofore purchased plaintiff's goods, and evidently intended to take advantage of the reputation gained by plaintiff for his product. It is also admitted that cigars were sold at various places in Iowa bearing a "She" label from the year 1886 down to the present. Some of these were the identical stock labels first used by the plaintiff, but others bore the name of the maker in addition to the word "She"; and still others contained pictures of reclining human forms, and the name of the manufacturer. But at the time plaintiff adopted the label no one was selling cigars in the territory in which he did business bearing the "She" label, nor did they until about the year 1902, when one Smith commenced the use thereof, as also did the defendant. Plaintiff did not know of the use of the "She" label prior to the time he adopted it, and believed himself to be the only cigar maker or dealer in the State using a label bearing the word "She" as an essential feature. During the year 1899 he became advised that others in the State were contemplating the use of the same, and he caused the label he had been using to be registered as a trademark with the secretary of state, under our State law. The printers of the label did not consent to this registration, however. It was the custom of these printers not to sell labels to competing cigar manufacturers or dealers in the same locality at the same time. These labels were never copyrighted by the printers, but no one else has ever printed or sold the identical stock label printed by them. These are all the material facts, and we now come to the law of the case. Plaintiff has abandoned all claim to a right to the exclusive use of the "She" label on account of his having registered the same as a trademark; hence we shall not have occasion to consider the law on that subject, except incidentally. The case must turn primarily upon the doctrines applicable to that practically new branch of the law known as "unfair trade." These rules, while new, are nevertheless well settled, and easily stated abstractly. Difficulty only arises in making application thereof to concrete cases. There is a well-marked distinction between what is known as the "infringement of a trademark" and "unfair competition." A trademark is an arbitrary, distinctive name, symbol, or device, to indicate or authenticate the origin of the product to which it is attached. And an infringement thereof consists in the use of the genuine upon substituted goods, or an exact copy or reproduction of the genuine, or in the use of an imitation in which the difference is colorable only, and the resemblance avails to mislead, so that the goods to which the spurious trademark is affixed are likely to be mistaken for the genuine product, and this is upon the ground that the trademark adopted by one is the exclusive property of its proprietor, and such use of the genuine or of such imitation of it is an invasion of his right of property. Consequently in infringement cases we have all sorts of questions regarding what names and devices may be exclusively appropriated, whether or not they have been dedicated to the public or abandoned by the holder, and many other intricate and puzzling problems which are not as yet fully settled. But aside from the law of trademarks, courts will protect trade names or reputations, although not registered or properly selected as trademarks, on the broad ground of enforcing justice and protecting one in the fruits of his toil. This is all bottomed on the principle of common business integrity, and proceeds on the theory that, while the primary and common use of a word or phrase may not be exclusively appropriated, there may be a secondary meaning or construction which will belong to the person who has developed it. In this secondary meaning there may be a property right. Scheuer v. Muller, 74 Fed. 225, 20 C. C. A. 161, and excellent note; Hygeia Dist. Co. v. Hygeia Co., 70 Conr. 516, 40 Atl. 534; Walter Baker & Co. v. Sanders, 80 Fed. 889, 26 C. C. A. 220; American Waltham Watch Co. v. U. S. Watch Co., 173 Mass. 85, 53 N. E. 141, 43 L. R. A. 826, 73 Am. St. Rep. 263. Consequently unfair competition is distinguished from trademark cases in this: that it does not involve necessarily the question of the exclusive right of another to use the name, symbol, or device. A word may not be capable of becoming an arbitrary trademark, and yet there may be an unfair use of the word which will constitute unfair trade. The whole doctrine is based upon the theory o protection to the public whose rights are infringed or jeopardized by confusion of goods produced by unfair methods of trade, as well as upon the right of the complainant to enjoy the good will of a trade built up through his efforts, and sought to be taken from him by unfair methods. Whether or not such facts are shown as to bring a particular case within these rules depends upon the testimony in each particular case in which the issue arises, and if it appear that such confusion has been or is likely to be produced, that there have been actual sales of one product for the other, that there have been actual mistakes of one or the other, or if there be such similarity of the two brands as that one may readily be mistaken for the other, a case is made out. Fairbank Co. v. Luckel, King, & Cake Soap Co., 102 Fed. 327, 42 C. C. A. 376; G. W. Cole Co. v. American Cement Co. (C. C. A.), 130 Fed. 703. With these rules in mind, it appears to us that plaintiff has clearly shown his right to an injunction, unless it be for certain defences interposed by defendant, to which we shall hereafter call attention. In this connection, it is immaterial that plaintiff had no right to trademark the name, that the printers had the right and authority to sell the label to whomsoever they would, or that the label was in use in other localities at the time plaintiff adopted it for his cigars. It had acquired in the locality in which plaintiff did business a peculiar secondary meaning, and stood for a brand of cigars made by the plaintiff, upon which he had built up a large trade. Defendant had no right to palm off his goods as those made by the plaintiff, or to so use the label adopted by plaintiff as to deceive purchasers who wished to purchase plaintiff's goods. Plaintiff had gone to large expense in building up his trade on these particular cigars, and is entitled to be protected therein. But defendant contends that plaintiff, on account of his laches, is estopped from now insisting upon an exclusive right to use the label for cigars within the territory in which he does business. . . . There was no such delay as to work an estoppel. If plaintiff's action were bottomed solely upon a trademark, we should have a decidedly different problem to deal with. But as already said, plaintiff has abandoned his claim to a valid trademark. The use of the word in other States or in other parts of this State by persons who did not compete with plaintiff is not controlling on the issue of unfair competition. There cannot be unfair trade unless there be competition, and in many cases, if not in most, this competition is of necessity local. The issue of unfair trade. cannot arise until there is such a showing of fraud or deception as we have hitherto indicated. It is further agreed that plaintiff has himself been guilty of such fraud and deception as to bar him of any relief. Of course, plaintiff must come into a court of equity with clean hands. If he himself has been guilty of unfair competition, or has made false statements on his label, calculated to deceive the public as to the nature of his wares, as to the makers of the article, as to its constituent parts, as to its being patented, or any other statements calculated to mislead or defraud, this will deprive him of his right to complain of the defendant for a fraud practised by him. This is fundamental doctrine, and we need not here cite any authorities in its support. If plaintiff had had notice of a prior appropriation, and had sought to acquire some rights, or even evidence against a prior user, in order to defeat his property rights therein, we would have an altogether different case. But nothing of the kind appears here. Plaintiff was simply endeavoring to protect his own trade as against what promised to be unfair competition with him, and this he had a right to do, so long as by so doing he was not attempting to gain an unfair advantage over others. The mere fact that others were in fact using the same trade name in other jurisdictions is not controlling. One person may have a trademark in one country or jurisdiction, and another the same trademark in some other State or country. Derringer v. Plate, 29 Cal. 293, 87 Am. Dec. 170; Richter v. Reynolds, 59 Fed. 577, 8 C. C. A. 220; Carlsbad v. Kutnow, 71 Fed. 167, 18 C. C. A. 24. This is the rule applied to trademarks, and, when the question of unfair trade is involved, one person may have a property right in the secondary use of a word in one locality, and another in the same word or device in another. This is one of the distinguishing features between a trademark, strictly speaking, and a trade name. One is of necessity geographical, and covers the entire limits of the jurisdiction of the sovereignty granting the right; and the other is of necessity local, not founded upon any authority or right from the State, but based upon usage in the particular locality or localities in which the party is doing or seeks to do business. Draper v. Skerrett (C. C.), 116 Fed. 206; Hainque v Cyclops Works, 136 Cal. 351, 68 Pac. 1014; Clark Thread Co. v. Armitage, supra. But it is argued that the exclusive appropriation of the stock label as a trade name resulted or was likely to result in a fraud upon the printers thereof. Not so we think. The printers had the right to print these labels, and to sell them to whomsoever they saw fit. They are not enjoined from the printing thereof, nor could they be. Defendants are not enjoined from buying them, except inferentially. These printers did not see fit to copyright their design; hence any other person could print it who saw fit to do so. It is the use of the label with intent to deceive and injure the plaintiff which is enjoined. By selling the label to manufacturers, they knew or should have known that each of these might build up a trade thereon which would be entitled to protection under the doctrine of unfair trade. . . . If these printers desired to protect themselves, they could have done so by contract, or they could have had their design copyrighted. But this they did not do. Every one is presumed to know the law, and of the right of another to secure the exclusive use of a device, symbol, or mark, and they must take the chance on such use becoming exclusive in him in a particular locality. They have no property in the word "She," nor in the designs sent forth by them, except as they copyright these designs. But we need not further elaborate this proposition. The principal points relied upon by appellant are that plaintiff could not obtain an exclusive right to the use of the name "She" upon a stock label, and that he was guilty of such fraud as disentitles him to relief in equity. Neither of these propositions is sound, although both might have been, had plaintiff been relying upon a trademark. Without further elaborating this opinion, which has already exceeded due bounds, it is sufficient to say that we agree with the trial Court in its conclusions, and its decree is affirmed. 187. SARTOR v. SMITH ET AL, (Iowa. 1904. 125 Ia. 665, 101 N. W. 515.) Appeal from District Court, Polk County; James A. Howe, Judge. Suit in equity for an accounting, and to enjoin defendants from using a trademark, being a cigar label bearing in large letters thereon the word "She," which was pasted on the inside lid of cigar boxes filled with cigars. The trial · Court granted the relief prayed, and defendants appeal. Reversed. Henry H. Griffiths, for appellants. Orwig & Lane, for appellee. DEEMER, C. J. This case was submitted on the same agreed statement of facts as Sartor v. Schaden (decided at the present term), 101 N. W. 511, with this exception: In this it was agreed that defendants Smith procured labels from the firm of F. M. Howell & Co., of Elmira, N. Y., knowing them to have been stock labels, bearing the word "She," and caused to be added thereto the word "Smith's" before the word "She" thereon, and certain comment stating the cigars in the box to be made by union labor, and of good quality of tobacco. Some of the first goods gotten out by said Smiths did not have such additions to said label, but the goods not bearing the words "Smith's She" were mainly sold outside the city of Des Moines. All of the output of the said Smiths was sold to Mr. John P. Schaden, of Des Moines, Iowa, at wholesale, and he resold them to dealers in his territory until after he was enjoined by plaintiff herein. Defendants had a contract with said Schaden to take their entire product. Upon his being enjoined, as they had their entire means tied up in tools, tobacco, boxes, and some manufactured cigars, they sold some of their cigars to dealers in Des Moines, but did not state to any one that they were made by plaintiff. Both the defendants, who are husband and wife, make cigars, and did work on those so made and sold until enjoined herein by plaintiff. They still continue to make and sell "She" cigars. On a few of the labels they used early in the year 1902, and before this suit, they stamped the word "Original,” but afterwards added only the word "Smiths" both before and after the commencement of this suit. The decree was the same in this as in the Schaden case, and the defendants appealed. In oral argument before this Court, plaintiff's counsel conceded that he had no case, unless based upon the theory of unfair trade. He now makes no claim |