out;" and in Shakespeare we find, "Macbeth does murder sleep," as he did murder his benefactor King Duncan; and we might say that, when congress enacted that "every person who commits murder," it used the word "murder" as it is used by English writers and speakers, and it would have added nothing to the meaning to have added the words "with malice prepense or aforethought." We can further say, which I have no doubt would be true, that we are cited to no case to show that the word "murder" is not sufficient of itself, and that forms and text-books or precedents copied from forms can alone be cited as showing the indictment insufficient. And I think that we could also cite section 1025, Rev. St., to say that the words omitted in the indictment related only to form, or, as Mr. Justice Brewer expresses it, "mere manner of stating a fact"; and we could go still further, and say that the defendant must have understood, from the use of the word "murder," that the killing charged against him was with malice prepense or aforethought, and that no one reading the indictment could come to any other conclusion than that the indictment charged murder, and cite Mr. Justice Peckham in Price v. U. S., 165 U. S. 315, 17 Sup. Ct. 368, 41 L. Ed. 729: "When this is the case, the indictment is good enough." In the case supposed, notwithstanding the cogency of these reasons, the indictment would be held bad in every court in this country; but the suggested case well illustrates the danger of departing in criminal pleading from well-recognized principles, and particularly from that declared in U. S. v. Carll, supra:

"The fact that the statute in question, read in the light of the common law and of other statutes on a like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent."

(108 Fed. 821.)

SHAVER et al. v. HELLER & MERZ CO.

(Circuit Court of Appeals, Eighth Circuit. April 29, 1901.)

No. 1,474.

1. UNFAIR COMPETITION-INJUNCTION PROPER RELIEF.

The sale of the goods of one manufacturer or vendor as those of another is unfair competition, and constitutes a fraud which a court of equity may lawfully prevent by injunction.1

2. TRADE MARKS-GEOGRAPHICAL AND DESCRIPTIVE WORDS MAY NOT Be. Geographical terms and words descriptive of the character, quality, or places of manufacture or of sale of articles cannot be monopolized as trade-marks, 2

8. SAME-USE OF, IN UNFAIR COMPETITION, MAY BE ENJOined.

But the use of such geographical or descriptive terms to palm off the goods of one manufacturer or vendor as those of another, and to

1 Unfair competition in trade, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.

2 Use of geographical names, see notes to Hoyt v. J. T. Lovett Co., 17 C. C. A. 657; Illinois Watch-Case Co. v. Elgin Nat. Watch Co., 35 C. C. A. 242.

carry on unfair competition, may be lawfully enjoined by a court of equity to the same extent as the use of any other terms or symbols. 4. SAME-PROPRIETARY INTEREST IN, NOT ESSENTIAL TO INJUNCTION AGAINST

USE.

A proprietary interest in the terms or symbols used to palm off the goods of one manufacturer or vendor as those of another, or to commit any other fraud, is not essential to the maintenance of a suit to enjoin the perpetration of the wrong, but an interest in the good will of the business or in the other property threatened is sufficient.

5. "AMERICAN"-USE OF TO CREATE UNFAIR COMPETITION ENJOINED.

A manufacturer had applied to certain articles which it made the names "American Ball Blue" and "American Wash Blue" until they became well known to the trade and the public by these names, and commanded a large and lucrative trade. A firm of merchants applied these names to goods of other manufacturers, and offered them for sale under these names for the purpose of diverting complainant's trade to themselves. Held, the use of these names and of the word "American" therein by the defendants was properly enjoined.

6. UNFAIR COMPETITION-ATTACHING NAMES OF FRAUDULENT DEALERS WILL NOT EXCUSE.

One who offers the goods of one manufacturer under the well-known names and established reputation of articles of another manufacturer for the purpose of deceiving the public and defrauding the latter aggravates, rather than justifies, his wrong by placing his own name upon the packages.

7. EQUITY WRONG OF COMPLAINANT BARRING RELIEF MUST RELATE TO EQUITY SUED FOR.

The principle, "He who comes into equity must do so with clean hands," repels a complainant only when his iniquity has an immediate and necessary relation to the equity for which he sues.

Thayer, Circuit Judge, dissenting.

(Syllabus by the Court.)

Appeal from the Circuit Court of the United States for the Northern District of Iowa.

This is an appeal from a decree which enjoins the appellants, Isaac H. Shaver, Frederick H. Shaver, James E. Blake, and Ella Bever-Blake, copartners as Shaver, Blake & Co., from using the brands or names "American Ball Blue" and "American Wash Blue" to palm off bluing made by parties other than the appellee, the Heller & Merz Company, a corporation, as the bluing made and sold by that corporation. 102 Fed. 882. The chief objection assigned to the decree is that it forbids the appellants to use the word "American" to deceive the public and to defraud the appellee, while the latter has no proprietary interest in that word, or in its exclusive use.

Charles K. Offield (Henry S. Towle, Charles C. Linthicum, and U. C. Blake, on the brief), for appellants.

Edmund Wetmore (Archibald Cox, on the brief), for appellee. Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

May a court of equity lawfully enjoin one from using the word "American" to sell the goods of one manufacturer as those of another to the damage of the latter and the deceit of the purchasers? This is the real issue which this case presents. It arises out of this state of facts: The appellee is a corporation which succeeded in 1889 to the business of manufacturing and selling bluing which had been established in the state of New Jersey by Heller & Merz in 48 C.C.A.-4

1869. In 1872 the predecessors of the appellee put upon the market. bluing of their manufacture in small round balls under the name "American Ball Blue," and from that time until 1898 they continued to make and sell this form of bluing under this name. By energy, enterprise, and perseverance they established a large demand for, and a lucrative trade in, this specific article of their manufacture. In 1898 there were many different names used to distinguish the origin or ownership of the various bluings upon the market in the form of balls. Among these were the "American Ball Blue" of the appellee, the "National Ball Blue," the "Royal Ball Blue," "Sauer's Ball Blue," and "Fischer's Ball Blue." The article made by the appellee became known to the trade by its name, quality, and character, and it was generally ordered, bought, and sold by its title "American Ball Blue." No one but the appellee had ever made or sold any bluing under this name, and the appellee's use of it had been continuous, notorious, and exclusive. In 1897 the appellants bought the business of a firm of soap makers at Cedar Rapids, in the state of Iowa, styled G. M. Olmsted & Co. Olmsted & Co. had for many years purchased of the appellee bluing of its manufacture styled "American Wash Blue," but they had never bought or sold the American ball blue. In the early part of the year 1898 the appellants bought bluing made by others than the appellee, and very properly issued notices to the trade that after May 1, 1898, the "American Wash Blue" which their predecessors, Olmsted & Co., had been selling, would be succeeded by the "Salome Laundry Blue." But in July of that year, after an effort to sell the Salome blue for two months, their cupidity seems to have overcome their honesty, and they proceeded to solicit purchasers, and to make sales of bluing not made by the appellee at greatly reduced prices, under the names "American Ball Blue" and "American Wash Blue." In their cor respondence they called these names their brands, and styled themselves "Manufacturers of American Ball Blue, American Wash Blue," although they never made any bluing of any kind, and never purchased any of these articles which they pretended to sell. Upon the packages in which they shipped the articles which they sold they placed their own names and their residence, Cedar Rapids, Iowa, and by colors and in other ways differentiated the dress of their goods from that of those manufactured by the appellee. But, as the appellee's bluing was generally ordered and sold by correspondence and by its names, these differences in the dresses of the packages did not prevent, and cannot prevent, the fraud and deceit which the appellants perpetrate by the use of these names, and by soliciting orders for and selling their goods under them. The result of this course of action on the part of the appellants was that they diverted to themselves a large portion of the trade of the appellee in the West, and reaped the benefit of the established reputation of its goods.

The history of the American wash blue differs to some extent from that of the American ball blue. The predecessors of the ap pellee applied the former name in 1874 to bluing of their manufacture in the form of lozenges packed in small cylinders, and proceeded to sell it. From 1878 to 1897 the predecessors of the appellants,

Pomeroy & Olmsted and G. M. Olmsted & Co., purchased this article from the appellee and from its predecessors, and sold it from their place of business at Cedar Rapids, in the state of Iowa. They advertised this article of bluing in connection with their advertisements of the soaps they were selling, and at their request the manufacturers of the bluing, in addition to putting upon the packages their trade-mark, which was the letter "U" surrounded by a triangle and the name of their factory, "American Ultramarine Works," placed the names of Pomeroy & Olmsted and G. M. Olmsted & Co. thereon. During five years of this term G. M. Olmsted & Co. bought the American wash blue of the Consolidated Ultramarine Company, Limited, but that company was a distributer for the appellee and other manufacturers, and the bluing was made and packed by the ap pellee or its predecessors during all this time. The customers who purchased of Pomeroy & Olmsted and of G. M. Olmsted & Co. knew the bluing, its character, and its name, but they did not know who manufactured it, and supposed Pomeroy & Olmsted or G. M. Olmsted & Co. to be its manufacturers. When the appellants purchased the business of G. M. Olmsted & Co., they bought its good will, and they insist that they thereby became entitled to use the name "American Wash Blue" upon any bluing which they may buy and sell, whether it is manufactured by the appellee or not. The facts which condition this claim were stated more at length and were carefully considered by the court below in its opinion in Heller & Merz Co. v. Shaver, 102 Fed., at pages 882, 886. That court came to the conclusion that the appellants had no better right to use the name "American Wash Blue" to palm off the goods of other manufacturers as those made by the appellee than G. M. Olmsted & Co. had, and that the latter firm stood in such a fiduciary relation to the appellee that they could not be permitted to take such action. It held that the good will of the business established under the name "American Wash Blue" was the property of the appellee. These conclusions are, in our opinion, well founded in fact and in law. The brand "American Wash Blue" was conceived and applied to their manufacture by the predecessors of the appellee. The excellence of the article, and the introduction which the appellee gave it or induced Olmsted & Co. to give it, by the character and price of the bluing it furnished, established the trade in it, and gave that trade its value. Purchasers in the trade and the public came to know, to demand, and to buy the appellee's manufacture by this brand. The inevitable result is that the good will of this trade became the appellee's property, which neither Olmsted & Co. nor their successors could lawfully lead away from it by fraud or falsehood. One does not lose the good will of his trade in an article of his manufacture by placing upon it the names of his customers who are engaged in selling it, nor by the fact that the consumers know only the name and excellence of the article, and neither know nor care who makes it. Brewery Co. v. Powell [1897] App. Cas. 710, 716; Lichtenstein v. Goldsmith (C. C.) 37 Fed. 359. The conclusions which must be drawn from the facts of this case, therefore, are that by industry and energy the appellee has built up an extensive and lucrative trade in the specific articles of its manu

facture, which have become known to the trade and the public as "American Ball Blue" and "American Wash Blue"; that these articles are ordered, bought, and sold by mail and telegraph by their names or brands, without a view of the packages in which they are inclosed; that the appellants have put these names or brands on goods made by other manufacturers, have offered these goods to the public at reduced prices, and have solicited purchasers to buy them under these names, for the purpose and with the intent of selling these goods as the manufactures of the appellee; that they succeeded. in this way in deceiving purchasers and defrauding the appellee of a portion of its trade; and that these brands cannot be used as the names of the products of other manufacturers than the appellee without creating confusion in the trade and purloining the latter's custom.

In this state of the case the appellants have been enjoined from using these names, and one of their loudest complaints is that the goods they sell are made in America, and that they are forbidden to use the word "American" to notify the public of this fact. There are two answers to this objection: (1) That the injunction does not prohibit the appellants from using the word for that purpose, and (2) that they neither need nor seek so to use it, but their only object in trying to make use of it is to filch the good will and trade of the appellee. The injunction restrains them only from "holding themselves out to the public as the owners of the names or brands 'American Ball Blue' and 'American Wash Blue," or as the manufacturers of the commodities heretofore known and sold under these names, or from selling or offering for sale under these names or brands, or names or brands intended to simulate the same, any blue or bluing manufactured by parties other than complainants." They insist that they have the right to state that the goods they sell are made in America, and the right to use the word "American" for that purpose. The injunction does not forbid them from doing so. They may state in their correspondence or upon their packages, notwithstanding the inhibition of the court, that their ball blue or wash blue is an American manufacture, an American article, or an American product. They may express the same idea by the declaration that it is a New York, or a New Jersey, or an Iowa product, as the case may be, and they may convey the same thought in many other ways without impinging upon the decree of the court. The truth is, however,-and there could be no more conclusive proof of it than the prosecution of this appeal,-that they do not desire to use the word "American,” or any other word, for the purpose of declaring that the articles. which they sell are made in America. Every one who purchases them either knows or presumes that to be the fact already. What they seek, and the only thing they really desire, is to use this word to divert to themselves the appellee's trade in American ball blue and in American wash blue, and they well know that they can accomplish this only by using it in those brands for the sole purpose of conveying to the public the falsehood that the goods they sell are made by the appellee.