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at law may be directed. The plaintiff need not specify in either his bill or his affidavit the parts of the defendant's publication which he thinks have been taken from his work. A general allegation of infringement accompanied by a verification by affidavit of the two works is sufficient. The practice has been that, "when the injunction has been moved for, the two works have been brought into court, and the counsel have pointed out to the court the passages which they rely upon as showing the piracy." 16 Clearer proof and a stronger case than would be sufficient to entitle a plaintiff to an injunction after the hearing is often required before he can obtain an interlocutory injunction." The difficulty of accurately determining the damages resulting from an unauthorized publication of his work will often have weight in leading the court to grant a preliminary injunction, when otherwise it might refuse one.1 But, on the other hand, the court will often refuse an injunction before the hearing, when it is plain that the defendant would suffer more injury from being obliged to discontinue the publication than will result to the plaintiff from his continuing it.19 It has been held in England that if a work be libelous, immoral, or blasphemous, which last named term would include one "which impugned the doctrines of the immateriality and immortality of the soul," 20 there can be no copyright therein, and a piratical edition thereof will not be enjoined." These decisions, however, one of which stigmatized as unworthy of protection Byron's "Cain," " have been severely criticised,23 and it is not likely that they would be fully sustained

rold v. Houlston, 3 Kay & J. 708; Pike v. Nicholas, L. R. 5 Ch. 251; Drone on Copyright, 513.

14 Jollie v. Jaques, 1 Blatchf. 618. 15 Farmer v. Calvert L. Co., 1 Flip. 228, 235; Sweet v. Maugham, 11 Sim. 51; Drone on Copyright, 513.

16 Sweet v. Maugham, 11 Sim. 51, 53. 17 Johnson v. Wyatt, 2 De G., J. & S. 18; Drone on Copyright, 517, 518. 18 Matthewson v. Stockdale, 12 Ves. 270; Wilson v. Luke, 1 Vict. Law R. 127; Prince Albert v. Strange, 1 Mac. & G. 25, 46; Little v. Gould, 2 Blatchf 165: Drone on Copyright, 516-519.

19 Spottiswoode v. Clarke, 2 Phil. 154; Cox v. Land & W. J. Co., L. R.

9 Eq. 324; Lodge v. Stoddart, 9 Rep. 137. But see Emerson v. Davies, 3 Story, 768.

20 Lawrence v. Smith, Jacob, 471.

21 Walcot v. Walker, 7 Ves. 1; Stockdale v. Onwhyn, 5 Barn. & Cr. 173; Murray v. Benbow, 6 Petersd. Abr. 559; Lawrence v. Smith, Jacob, 471; Southey v. Sherwood, 2 Meriv. 435. But see Burnett v. Chetwood, 2 Meriv. 441.

22 Murray v. Benbow, 6 Petersd. Abr. 559.

23 Campbell's Lives of the Lord Chancellors, ch. ccxiii; Drone on Copyright, 181–196.

if the question should be raised in the United States; although in a case in the Federal courts Judge Deady assigned as one among several reasons for refusing to enjoin an unauthorized representation of "The Black Crook," that it "only attracts attention as it panders to a prurient curiosity or an obscene imagination by very questionable exhibitions and attitudes of the female person." The injunction forbids the publication of only so much of the defendant's work as infringes upon the copyright of the plaintiff.25

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§ 218. Injunctions to restrain the unlawful use of trademarks.- Injunctions to restrain the use of trade-marks by others than their owners are granted by courts of equity, it has been said, partly to prevent the fraud upon the public which would otherwise be perpetrated, and partly on account of the difficulty of estimating the injury which would be caused the owner of a trade-mark from its improper use.1 The former ground of the interference of the court has, however, been expressly repudiated by a great judge, Lord Westbury, who said, when Lord Chancellor, in delivering the judgment in a leading case: "Imposition upon the public becomes the test of the property in the trade-mark having been invaded and injured, but not the ground on which the court rests its jurisdiction."2 "Trade-marks are of two kinds. They may consist of pictures or symbols or a peculiar form and fashion of label, or simply of a word or words, which, in whatever form printed or represented, continue to be the distinguishing mark of the manufacturer who has appropriated it or them, and the name by which his products are known and dealt in." "Where the trade-mark consists of a picture or symbol, or in any peculiarity in the appearance of the label, the imitation must be such as to amount to a false representation, liable to deceive the public, and enable the imitator to pass off his goods as those of

24 Martinetti v. Maguire, 1 Deady, Blatchf. 440; Shaw Stocking Co. v. 216, 223. Mack, 12 Fed. R. 707.

25 Webb v. Powers, 2 W. & M. 497; Story v. Holcombe, 4 McLean, 306; Farmer v. Elstner, 33 Fed. R. 494.

§ 218. 1 Perry v. Truefit, 6 Beav. 66, 73; Croft v. Day, 7 Beav. 84; Leather C. Co. v. American L. C. Co., 10 Jur. (N. S.) 81; Walton v. Crowley, 3

2 Leather C. Co. v. American L. C. Co., 10 Jur. (N. S.) 81. But see the language of Coxe, J., in Shaw Stocking Co. v. Mack, 12 Fed. R. 707, 710.

3 Judge Rapallo in Hier v. Abrahams, 82 N. Y. 519, 523.

the person whose trade-mark is imitated. And when there is such an absence of resemblance that ordinary attention would enable customers to discriminate between the trade-marks of different parties, the court will not interfere." "But where the trade-mark consists of a word, it may be used by the manufacturer who has appropriated it, in any style of print, or in any form of label, and its use by another is unlawful. The statute" of New York "requires only that the imitation should be either the same to the eye, or in sound to the ear, as the genuine trade-mark, and this accords with the authorities."" To make an exclusive right to use a name or symbol as a trade-mark, such use must be new; if ever before used as applicable to a like article, it cannot be exclusively appropriated. If the article is known to commerce in general, by the term claimed, as a trade-mark, the claim is ill-founded. If the term employed indicates the nature, kind, or quality of the article, instead of showing its origin, an exclusive right to its use is not maintainable." In accordance with the maxim that he who seeks equity must come with clean hands, it is well established that, if the trade-mark for which protection is sought contains representations calculated to deceive the public, an injunction will be denied the plaintiff. An act of Congress allowing suits to enjoin the use of trade-marks to be brought in a Federal court against a citizen of the same State as the complainant, was held unconstitutional. A subsequent act of Congress gives the Federal courts jurisdiction of such a suit when the plaintiff has registered his trade-mark for use in foreign commerce or commerce with the Indian tribes, and the defendant has used such registered trade-mark in such commerce. The constitutionality of this act is an open question.10 This statute does not give the Federal courts jurisdiction of a suit between citizens of the same State to enjoin unfair competition in trade, where the complainant has no valid and exclusive trade-mark."

4 Ibid.

5 Ibid.

6 Van Beil v. Prescott (The Rye & Rock Case), 82 N. Y. 630.

7 Leather C. Co. v. American L. C. Co., 11 H. L. C. 523; s. c. in a lower court, 10 Jur. (N. S.) 81; Fowle v. Spear, 7 Penn. L. J. 176; Heath v.

Wright, 3 Wall. Jr. 141; Ginter v. Kinney Tobacco Co., 12 Fed. R. 782. 8 Trade-Mark Cases, 100 U. S. 82. 921 St. at L. 502; Graveley v. Graveley, 42 Fed. R. 264.

10 Elgin Nat. Watch Co. v. Illinois Tr. C. Co., 179 U. S. 665.

11 Ibid.

$219. Injunctions to prevent the opening of letters.-Injunctions may be granted to restrain the opening of business letters.1

§ 220. Injunctions to compel the performance or prevent the breach of contracts not affecting land.- The performance of a contract not affecting lands will be enforced in equity by means of an injunction when, and only when, a judgment for damages would be no adequate remedy for its breach;1 and it does not require a purely personal act which it would be impossible for the court to enforce. The inadequacy of the remedy at law which will entitle one to specific performance of a contract may, it has been held, be proved by the fact that the damages in money cannot be ascertained. In some cases an injunction may be obtained to restrain a defendant from violating a negative promise contained in a contract, although the court has no power specifically to enforce the affirmative promises contained therein. Thus, when opera singers of extraordinary talent had contracted to sing at the plaintiffs' theatre and nowhere else, injunctions have been granted to restrain them from singing in rival establishments, although they could not be compelled to sing for the plaintiffs. The rule has been thus stated by Judge Lowell: "I think the fair result of the later cases may be thus expressed: If the case is one in which the negative remedy of injunction will do substantial justice between the parties, by obliging the defendant either to carry out his contract or lose all benefit of the breach, and the remedy at law is inadequate, and there is no reason of policy against it, the court will interfere to restrain conduct which is contrary to the contract, although it may be unable to enforce a specific performance of it." But where the affirmative promise cannot

$219. 1 Scheile v. Brakell, 11 W. R. 796; David Kennedy Corp. v. Kennedy, 165 N. Y. 353, 359.

§ 220. 1 Buxton v. Lister, 3 Atk. 383; Robinson v. Cathcart, 2 Cranch C. C. 590; Tayloe v. Merchants' Fire Ins. Co., 9 How. 390; Very v. Levy, 13 How. 345.

2 Clarke v. Price, 2 Wilson Ch. Cas. 157; Mair v. Himalaya T. Co., L. R. 1 Eq. 411.

607; Sullivan v. Tuck, 1 Md. Ch. 59; Finley v. Aiken, 1 Grant's Cases (Pa.), 83; Bispham's Eq., § 369.

4 Lumley v. Wagner, 1 De G., M. & G. 604; McCaull v. Braham, 16 Fed. R. 37.

5 Singer Co. v. Union Co., 1 Holmes, 253, 258. See also Goddard v. Wilde, 17 Fed. R. 845; W. U. Tel. Co. v. Union Pac. Ry. Co., 3 Fed. R. 423; W. U. Tel. Co. v. St. Joseph & W. Ry. Co., 3

Adderley v. Dixon, 1 Sim. & Stu. Fed. R. 430.

be specifically enforced, the court will not import into it a negative covenant, neither expressly nor by a fair implication contained therein. It has been held that a court should not enjoin laborers from striking nor from advising other laborers to join in a strike; but that it may enjoin them from combining to quit work in order to cripple their employer's property and embarrass his business; and from refusing to handle or operate cars while remaining in the employ of a railroad company.

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§ 221. Injunctions to compel the delivery of personal property tortiously withheld.— Under very extraordinary circumstances, equity will interfere to compel by injunction the delivery or return of letters, documents, or other articles of such a unique character that it would be impossible to replace them, when they are tortiously withheld from their rightful owners.1

§ 222. Injunctions authorized by statute.-The statutes of the United States also authorize an injunction in the following cases, amongst others, besides those arising from infringements of patents and copyrights: "Any person who considers himself aggrieved by any warrant of distress issued under the " provisions of the statutes authorizing one to be issued by the Solicitor of the Treasury against an officer in default for not accounting for and paying over public money received by him, 'may prefer a bill of complaint to any district judge of the United States, setting forth therein the nature and extent of the injury of which he complains; and thereupon the judge may grant an injunction to stay proceedings on such warrant altogether, or for so much thereof as the nature of the case requires. But no injunction shall issue till the party applying for it gives bond with sufficient security, in a sum to be prescribed by the judge, for the performance of such judgment as

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6 Clarke v. Price, 2 Wilson Ch. C. 157; Pickering v. Bishop of Ely, 2 Y. & C. Ch. C. 249; Johnson v. S. & B. Ry. Co., 3 De G., M. & G. 914; Bispham's Eq., § 464; Kerr on Injunctions, 524.

Cf. Allen v. Flood, Appeal Cases (1898), 1; supra, § 215.

9 S. Cal. Ry. Co. v. Rutherford, 62 Fed. R. 796; In re Lennon, 166 U. S. 548, 555.

$221. Pusey v. Pusey, 1 Vern. 273; 7 Arthur v. Oakes (C. C. A.), 63 Fed. Duke of Somerset v. Cookson, 3 P. R. 310.

8 Arthur v. Oakes (C. C. A.), 63 Fed. R. 310, 324, 329, a decision on this point of very doubtful authority.

Wms. 389; Clarke v. White, 12 Pet. 178; Prince Albert v. Strange, 1 Macn. & G. 25, 42; McGowin v. Remington, 12 Pa. St. 56.

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