is the copy of device and advertisements, the inference is irresistable that the defendant must have handed over the plaintiff's make of tool and his advertisements as models to be exactly reproduced. In this respect a case of unfair trade is made out beyond successful denial. There is, and can be, no doubt of the fact that the defendant has taken the plaintiff's device, reproduced, and is selling it on the market which the plaintiff has called into being.

It is not within our province to pass judgment upon the business ethics of the defendant's conduct, unless there has been a trespass upon the plaintiff's legal rights. Every claim of right must have a basis upon which it rests. A claim to legal protection from encroachment by others upon the right to sell a particular device or make of product must rest upon a statutory proprietary right to sell the thing itself, or upon the common-law right to prevent the goods of one from being palmed off upon purchasers as the goods manufactured by another. As applied to the conditions of this case, the one basis of claim presupposes an exclusive right to the device as the invention of the plaintiff; the other assumes the existence of a demand for the particular make of tool as manufactured by him. The argument for the defense in substance is that the plaintiff can lay no claim to control the sale of the device as his invention, because he has not protected it by a patent, and that he has no common-law right in his particular make of tool, because there has not been time for the public to have learned of his particular make and to have any make of tool known on the market as his tool; in other words, that an infraction of such common-law right involves the thought of deception, and the plaintiff's make of his device has been so short a time before the public that his make as such is unknown to the general public, among whom, in consequence, there cannot be said to be any demand; and that the trade and the middlemen cannot be deceived, because they buy direct from the manufacturers, whose different makes are in consequence known to them.

The fact as to the statutory proprietary right is found with the defendant, and this branch of the argument in his favor must therefore prevail. The other fact cannot, however, be found for him. In the first place, the introduction of the automobile has not only greatly quickened

Page 587.

transportation, but, because of the rapid development of the automobile business itself, it has produced such an alertness of mind toward everything connected with it, and a readiness and willingness to accept and adopt novelties, that there is the same relative difference in the speed with which the reputation of builders and others may be acquired and lost and good wills grow up and decline. Moreover, the question of time relates more to the extent of the market and its value than to the fact of a market, and in consequence more to the amount or extent of the damage done by the encroachment upon it than to the kind of injury done or the fact that injury has been done. A limited market or a modest reputation acquired by a manufacturer for his own particular product is as much entitled to protection as if it were more enlarged or wider spread. Imitation of another's make or brand of manufactured product is as sincere a form of flattery in business affairs as imitation is in other things, because it implies an acknowledgment that the make of goods copied has created a market, and this acknowledgment is evidence of the fact in itself. We therefore find that the plaintiff has created and had acquired a right to the good will or trade property indicated, and that the defendant has trespassed upon this right by intercepting and directing this trade to himself.

Had the defendant contented himself with merely appropriating the inventive idea or features of this appliance, he could not have been convicted of any trespass upon the legal rights of the plaintiff. When, however, he went further, and in addition to the device itself he imitated the very form and shape and appearance of plaintiff's make, and copied also the advertisements, cuts, and illustrations by means of which plaintiff had introduced it to the public, and by which characteristics it had become known as the plaintiff's manufacture, he was guilty of unfair trade, from which he should be required to desist. The slight departure in defendant's marking of the tool made by him from that made by the plaintiff carries the conviction, not that the defendant was seeking to distinguish his make, but that the similitude was meant to deceive, and that the defendant was guiltily conscious of it. Since the output of his first make of tools and of his first advertisements, the defendant has made changes in the latter and in the literature issued, which

goes a little toward lessening the deception. He does not, however, go far enough, and plaintiff has the right to a preliminary injunction. It must, however, be expressly limited to enjoining the defendant from selling or advertising such make of the tool in question as may be imposed upon intending purchasers as the make of the plaintiff.

Counsel may submit drafts of a form of decree embodying these views, together with the form of bond required, and a decree will then be entered.

[222 Federal Reporter, pp. 584-587.]

STONE & MCCARRICK, INC., v. DUGAN PIANO CO. ET AL.

(Circuit Court of Appeals, Fifth Circuit. February 8,

1915.) No. 2665.

COPYRIGHTS-SUBJECT OF COPYRIGHT ADVERTISEMENTS.

Stone & McCarrick, Inc.,

Where a so-called manual of instruction in a system of v Dugan salesmanship consisted of a collection of forms of adver- Piano Co., Feb. 8, 1915. tisements to be used by dealers in connection with special sales of pianos and piano players, and, though they were intended to be used by all dealers licensed by the publisher to use them, they contained representations of fact concerning the sale and the success thereof, which could not possibly be true as to all dealers, and by their extravagant puffing and misrepresentation had a tendency to mislead and deceive the public, such forms were not copyrightable, and the use thereof was not an infringement of a copyright of the manual of instruction, since, if mere advertisements are ever copyrightable, the law should extend its protection to those only that speak the truth, and not to that class of matter the effect of which is to mislead and deceive the public, especially as one applying to a court of equity for relief must come with clean hands.

Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, judge.

Suit by Stone & McCarrick, Incorporated, against the Dugan Piano Company and others. From a decree dismissing the bill (210 Fed. 399), complainant appeals. Affirmed.

The appellant filed its bill in the district court against the appellees, Dugan Piano Company, the New Orleans

Page 838.

Item, and others, to prevent the infringement of the copyright of a book containing forms of advertisements and other matter, interspersed with rather attractive illustrations. The bill prayed an injunction, damages, and an accounting. The questions presented for decision arise upon an order made by the trial court dismissing the bill, which, among other allegations, contains the following:

That complainant was organized for the purpose, among other things, of carrying on, and since its orgarization has carried on, and is now carrying on, the business of writing, making, editing, publishing, and selling, books relating to the sale of pianos and player pianos. That complainant, its officers and employes, have spent much time, effort, study, and money in devising, writing up, editing, publishing, and selling books adapted for instruction in the sale of pianos and player pianos, aforesaid, and especially intended to be used by its subscribers and its licensees for reprinting in the form of advertisements in newspapers, magazines, periodicals, and other literature.

Complainant further avers that, for the purposes aforesaid, it has written, or caused to be written, and prepared, published, edited, and copyrighted, a book entitled “Manual of Instruction in the Use of Stone & McCarrick (Incorporated) System of Salesmanship," and that its officers, agents, and employees, have spent much thought, skill, time, effort, and money in devising, writing, editing, publishing, introducing, and selling the book aforesaid; and that the book aforesaid was especially intended to be used by its subscribers and its licensees for reprinting parts thereof in a series of articles intended for advertising purposes, and was printed in such form as to be specially adapted for use as "copy" for advertisements in newspapers, magazines, periodicals, and other literature; and that the said book so prepared was proper subject matter for protection under section 5, class A, of the copyright act of March 4, 1909 (act Mar. 4, 1909, ch. 320, 35 Stat. 1076, U. S. Comp. St. 1913, sec. 9521).

The Manual of Instruction, denominated a book by the appellant, and made an exhibit to the bill, consists of 25 sheets, of approximately the size of a sheet of an ordinary newspaper, 22 of which are devoted to advertising matter, and the three last to what are termed "Prospect and Premium Letters." These sheets are bound together, and in this form they are disposed of by the author. The lower left-hand corner of each of the 22 sheets contains brief directions as to the time of the publication of the advertisement and as to the space required. For example: On page 1 are the following words and figures, "Ad No. 1, Wednesday, 7 cols." Page 2, "Ad No. 2, Thursday, 7 cols.," and so on through the entire series. This collection, or book, of advertisements, contains both

letterpress and pictorial illustrations. The following excerpts are taken from the letterpress of the book:

First. On page 1 the advertisement begins as follows: The pianos for this cooperative sale were personally selected at the factory by Mr. and upon arrival are being tested and

inspected by Prof.

300 New Pianos Worth $350 Each to be Sold for $248.75 Each.

With the opening of our store to-morrow morning, a new plan of selling pianos in will be inaugurated. And a gigantic sale will have begun. The sale will consist of three hundred new pianos. No more. No less. These instruments were contracted for and this sale planned and arranged months ago. (This will be told of fully in another advertisement.) The pianos have been arriving now direct from the factory at the rate of a carload a day. The store is packed.

Second. Page 2:

300 persons will each save $101.25 (101 dollars and 25 cents) by obtaining their piano through this cooperative sale.

Third. Page 6:

When you begin to pay you begin to own your piano and in event of death all unpaid payments are immediately canceled.

Fourth. Page 7:

Don't get away from the principal fact that first of all you get a piano through this cooperative plan for 248 dollars and 75 cents which will ordinarily cost you 350 dollars.

Fifth. Page 10:

Saving millions by cooperation. A saving of $30,375 through this one transaction in pianos.

Sixth. Page 11:

One-third of these $248.75 pianos have been sold. Two weeks ago to-day we announced this cooperative sale. To-day-one-third of these pianos (in round figures) have been sold. We told you then that cooperation was power. This has been fully proved by the instantaneous success of this sale.

Seventh. Page 13:

Once again we tell this whole piano story. This is a story of success—of unprecedented success. It's a story of planning-then of concentrating unlimited power on working out the plan until it's a story of such stupendous success that the telling is spontaneous. We could not help repeating it if we would, or would not if we could. It's inspiring. It runs off the pencil faster than we can write. The reason for it, is the plan itself. Here it is: Don't miss a single syllable.

Eighth. Page 15:

You are missing the opportunity of your life if you don't get one of these pianos during this cooperative sale.

76228°-17-28

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