eralize is to omit, and in this instance to omit one characteristic of the complete corporation, as called into being under modern statutes, that is most important in business and law. A leading purpose of such statutes and of those who act under them is to interpose a nonconductor, through which in matters of contract it is impossible to see the men behind. However it might be with a partnership, (Russia Cement Co. v. Le Page, 147 Mass., 206, 211,) when this corporation sold its rights everybody had notice and knew in fact that it was not selling the rights personal to its members, even if, as always, they really received the consideration, or, as usual, they all assented to its act. That it contracted for such assent, if it did, by its undertaking to dissolve, does not make the contract theirs. But the case does not stop there. The purchasing company had the possibility of competition from the Halls before its mind and gave the measure of its expectations and demands by the personal contracts that it required. Those contracts were limited in time and scope and have been discharged.

A further argument was based on the confusion produced by the petitioner through his use of signs and advertisements calculated to make the public think that his concern was the successor of the first corporation and otherwise to mislead. This confusion must be stopped, so far as it has not been by the decree in force, and it will be. But it is no sufficient reason for taking from the Halls the right to continue the business to which they were bred and to use their own name in doing so. An injunction against using any name, mark or advertisement indicating that the plaintiff is the successor of the original company, or that its goods are the product of that company or its successors, or interfering with the good-will bought from it, will protect the right of the Herring-Hall-Marvin Safe Company, and is all that it is entitled to demand. (See Howe Scale Co. v. Wyckoff, Seamans & Benedict, C. D., 1905, 717; 116 O. G., 299; 198 U. S., 118; Singer Manufacturing Co. v. June Manufacturing Co., C. D., 1896, 687; 75 O. G., 1703; 163 U. S., 169.) Decree reversed.

[Supreme Court of the United States.]

HERRING-HALL-MARVIN SAFE Co. v. HALL'S SAFE Co.

Decided February 24, 1908.

134 O. G., 1053.

TRADE-MARKS-INFRINGEMENT-NAME OF INDIVIDUAL.

The Hall's Safe and Lock Company, a corporation, the stock of which was largely owned by Joseph L. Hall, the founder of the business, and his sons, sold all its property including trade-marks, trade-rights, good-will, and its business as a going concern to another company, which subsequently

conveyed such rights to the Herring-Hall-Marvin Safe Company and agreed to go out of business, which it did with the assent of all its stockholders. Thereafter the sons formed another corporation under the name "Hall's Safe Co." and began the manufacture of the same class of goods. Held that while the Halls had a right to engage in the same business after such transfer, the use of the name selected would of itself deceive unless explained, and that the company purchasing the rights of the original company was entitled to an injunction forbidding the use of the name Hall, either alone or in combination, in corporate name, on safes, or in advertisements, unless accompanied by information that the defendant is not the original Hall's Safe and Lock Company or its successor, or, as the case may be, that the article is not the product of the last-named company or its successors.

Mr. Lawrence Maxwell, Jr., and Mr. Charles H. Aldrich for the petitioner.

Mr. Judson Harmon and Mr. W. C. Cochran for the respondents.

Mr. Justice HOLMES delivered the opinion of the Court.

This is the suit referred to in Donnell v. Herring-Hall-Marvin Safe Company, ante, 587; 134 O. G., 1050. It was brought by the petitioner against the respondents to enjoin them from carrying on their business under their present name or any name calculated to make purchasers believe that they are dealing with the establishment founded by Joseph L. Hall, or with the plaintiff, and also to enjoin them from advertising or marking their product as Hall's Safes. The facts are stated in the case referred to. In brief, the petitioner is the successor by purchase to the business of Hall's Safe and Lock Company, an Ohio corporation founded by Joseph L. Hall, a safe-maker of repute, the stock of which belonged to his estate and his children. The respondents are sons of Joseph L. Hall and an Ohio corporation formed by them in September, 1896, immediately after they were discharged from their contracts with the purchasing company. It has been decided that the Halls did not give up the right to do business in their own name by the part they took when the original company sold out, and that the petitioner has the right, but not the exclusive right, to use the name Hall. Its rights arise by way of succession, out of the priority of the original company, not out of contract. This case requires us to discuss a little further what the respective rights of the parties are. The decision below is to be found in 146 Fed. Rep., 37, and 76 C. C. A., 495.

We think it clear, as was conceded in the other case, that the plaintiff got all the grantable rights of the original company, including that of using the name Hall. It is true that trade-names were not mentioned in the deed, but its language was broad enough to include them. The deed, along with the plant, patterns, stock of safes, accounts, papers, etc., conveys all "trade-marks, patent-rights,

trade-rights, good-will, and all its property and assets of every name and nature," and agrees that the business is "taken over in all respects as a going concern." If a particular phrase is needed in addition to the general language and the nature of the transaction, "trade rights" will do well enough. The name Hall was used and was expected to be used as a part of the name of the first purchasing company, the Herring-Hall-Marvin Company. There was a stipulation in the deed that the seller should be wound up, but that, far from being, as was argued, a provision in favor of the seller to avoid the use of its name by the purchaser, was a covenant to the purchaser in aid of the seller's undertaking not to engage in any business thereafter. The Hall Safe and Lock Company expressly and in reiterated terms sold all its property and assets of every description as a going concern, agreed to disappear and disappeared. It had no reason for retaining any right and retained none, except the right to be paid. The circumstances of the case raise none of the nice questions that sometimes have arisen as to when the name is sold along with the other assets. It may be that, although the deed conveyed all that it could convey, the plaintiff could not use the corporate name proper of the original corporation, because that is a charter right, and could not be exercised without the consent of the legislature. (Montreal Lithographing Co. v. Sabiston, [1899] A. C., 610.) But that is not what it wants to do. It only wants so far as it may to appropriate the name Hall for its safes.

The original company, from 1867 to 1892, was attaching to Hall's safes the reputation that made the name famous and desired. Whoever achieved it did so through the medium of the company. The good-will thus gained belonged to the company, and was sold by it, with all its rights, when it sold out. (See Le Page Co. v. Russia Cement Co., 51 Fed. Rep., 941, 943.) So that the question is narrowed to what its rights would have been at the present day if it had kept on. The advantage which it would have had, and to which the petitioner has succeeded, is that of having been first and alone for so long in the field. Some of the Halls might have left it and set up for themselves. They might have competed with it, they might have called attention to the fact that they were the sons of the man who started the business, they might have claimed their due share, if any, of the merit in making Hall's safes what they were. (White v. Trowbridge, 210 Penn. Stat., 11, 18, 22.) But they would have been at the disadvantage that some names and phrases, otherwise truthful and natural to use, would convey to the public the notion that they were continuing the business done by the company, or that they were in some privity with the established manufacture of safes which the public already knew and liked. To convey that notion would be a fraud, and would have to be stopped. Therefore such names and

phrases could be used only if so explained that they would not deceive.

The principle of the duty to explain is recognized in Howe Scale Co. v. Wyckoff, Seamans & Benedict, (C. D., 1905, 717; 116 O. G., 299; 198 U. S., 118.) It is not confined to words that can be made a trade-mark in a full sense. The name of a person or a town may have become so associated with a particular product that the mere attaching of that name to a similar product without more would have all effect of a falsehood. (Walter Baker & Co. v. Slack, 130 Fed. Rep., 514.) An absolute prohibition against using the name would carry trade-marks too far. Therefore the rights of the two parties have been reconciled by allowing the use, provided that an explanation is attached. (Singer Manufacturing Co. v. June Manufacturing Co., C. D., 1896, 687; 75 O. G., 1703; 163 U. S., 169, 200, 204; Brinsmead v. Brinsmead, 13 Times L. R., 3; Reddaway v. Banham, [1896,] A. C., 199, 210, 222; American Waltham Watch Co. v. United States Watch Co., 173 Mass., 85, 87; Dodge Stationery Co. v. Dodge, 145 Cal., 380.) Of course the explanation must accompany the use, so as to give the antidote with the bane.

We must assume that the name Hall in connection with safes has acquired this kind of significance. This, or very nearly this, is alleged by the answer and must have been the finding of the courts below. It was suggested that really the value of the name was due to the use of patents that have run out. But we think it appears that the meaning of the name is not confined to the use of Hall's patents, and further, has had a particular succession of makers so associated with it that the principle of the injunction granted is right. The defendants say that they have corrected advertisements, and so forth, that might be deemed fraudulent, when called to their attention. But the name of the defendant company of itself would deceive unless explained. It may have repented but it has transgressed, and it even now asserts rights greater than we think it has. Therefore the injunction must stand.

We are not disposed to make a decree against the Halls personally. That against the company should be more specific. It should forbid the use of the name Hall, either alone or in combination, in corporate names, on safes, or in advertisements, unless accompanied by information that the defendant is not the original Hall's Safe and Lock Company or its successor, or, as the case may be, that the article is not the product of the last-named company or its successors. With such explanations the defendants may use the Halls name, and if it likes may show that they are sons of the first Hall and brought up in their business by him, and otherwise may state the facts.

There is a cross-bill seeking to prevent the plaintiff from making use of the names Hall's Safe and Lock Company, Hall's safe, etc.,

but it does not need separate consideration. The defendant shows nothing of which it can complain or which should bar the plaintiff from its relief. The portion of the decree dismissing the cross-bill is affirmed.

Decree modified and affirmed.

[Supreme Court of the United States.]

CONTINENTAL PAPER BAG COMPANY v. EASTERN PAPER BAG COMPANY.

1. INFRINGEMENT

Decided June 1, 1908.

136 O. G., 1297.

EQUIVALENTS-RANGE DEPENDS UPON NATURE OF 'INVENTION. The range of equivalents depends upon the extent and nature of the invention. If the invention is broad and primary in its character, the range of equivalents will be correspondingly broad under the liberal construction which the courts give to such inventions.

2. CONSTRUCTION OF CLAIMS-LIMITATION BY DESCRIPTION.

An inventor must describe what he conceives to be the best mode of construeting his invention; but he is not confined to that if his claims are broad, particularly where he states in his specification that means other than the means shown may be employed.

3. SAME " MEANS" FOR PERFORMING CERTAIN FUNCTIONS.

The following claim: In a paper-bag machine, the combination of a rotating cylinder provided with one or more pairs of side-forming fingers adapted to be moved toward or from each other, a forming-plate also provided with side-forming fingers adapted to be moved toward or from each other, means for operating said fingers at definite times during the formative action upon the bag-tube, operating means for the forming-plate adapted to cause the said plate to oscillate about its rear edge upon the surface of the cylinder during the rotary movement of said cylinder, the whole operating for the purpose of opening and forming the bottom of the bag-tube, and means to move the bag-tube with the cylinder," Held not merely for the function of the machine, but for mechanical means to bring into working relation the folding-plate and cylinder.

4. INJUNCTION EFFECT OF NON-USE OF PATENTED INVENTION.

The non-use of a patented invention by the owner of the patent occa sioned by a desire to save the expense incident to changing from an old type of machine to the patented device is not so unreasonable as to warrant a court in refusing injunctive relief during the latter part of the term of the patent, there being no question of a diminished supply of the product of such machine or of an increase of prices.

5. CERTIORARI-REVIEW OF FACTS.

The concurrent finding of a circuit court and circuit court of appeals on questions of fact will not be disturbed by the Federal Supreme Court on certiorari unless clearly erroneous.

ON WRIT OF CERTIORARI to the United States Circuit Court of Appeals for the First Circuit.