others, to constitute a trademark or brand so similar in appearance a probably to deceive customers or patrons of plaintiff's trade or busi ness, although it is not shown that any one has in fact been deceived, or that there has been intentional fraud.

APPEAL from an order denying a motion to dissolve a temporary injunction. The question involved was the right or title of the defendant to use a trademark or label as a distinctive mark of the flour manufactured by it. The trademark, "Marvel," was originated by William Listman, who had used it individually, and who afterwards became a member of a partnership which commenced the manufacture of flour to which the trademark, "Marvel," was uniformly applied. The mark was registered in the name of Listman alone. Its use was continued by the firm and by a corporation which succeeded the firm in the operation of the mill, and also by the plaintiff corporation, which purchased the site and erected a new mill after the old one was burned down. Listman practically owned all of the stock of the former corporation when the business was transferred to the plaintiff. He was also largely interested in the latter and was its general manager for four years. Listman then sold his interest in the plaintiff corporation, and became the president and general manager of the defendant corporation, which thereafter used the trademark, "Marvel," upon the product of its mill, situated in another city. In these transfers there was nothing said about the trademark.

Catlin & Butler and A. C. Paul, for the appellant.

George H. Gordon and Winkler, Flanders, Smith, Bottum & Vilas, for the respondent.

340 NEWMAN, J. Only such names, words, and devices as may be held to be adapted to point out the true source and origin of the goods upon which such marks are used can constitute valid trademarks. Such words as are merely descriptive of the kind, nature, character, or quality of the goods cannot be exclusively appropriated and protected as a trademark. But a valid trademark may consist of some novel device, arbitrary character, or fancy word, applied without special meaning, which by use and reputation comes to serve the same purpose. Such words and devices are held to indicate sufficiently the true source and origin of the goods, without particular addition of the name of the manufacturer or dealer: Dunbar v. Glenn, 42 Wis. 118; 24 Am.

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Rep. 395; Marshall v. Pinkham, 52 Wis. 572; 38 Am. Rep. 756; Gessler v. Grieb, 80 Wis. 21; 27 Am. St. Rep. 20, and cases cited; Fish Brothers Wagon Co. v. La Belle Wagon Works, 82 Wis. 546; 33 Am. St. Rep. 72. The word "Marvel," used in the plaintiff's flour brand, is such an arbitrary or fancy word. It is not, in any true sense, descriptive of any characteristic or quality of the goods which it is used to designate, but rather indicates their origin or ownership. It is very much like the word "Bethesda," used to designate the water of a certain spring in Waukesha county, which was held to be a valid trademark in Dunbar v. Glenn, 42 Wis. 118; 24 Am. Rep. 395. It is used by the plaintiff in a similar way to designate the output of its mill. As was said in that case, the word seems to have been adopted to indicate origin or ownership, and to have a name by which the product of the mill could be distinguished when bought and sold in the market. As was said in Filley v. Fassett, 44 Mo. 168, 100 Am. Dec. 275, this word was the prominent, essential, and vital feature of the trademark. The goods were known by this word itself. It constitutes a valid trademark, such as equity will protect.

Title to a trademark is acquired and retained by appropriation and use. While William Listman owned and conducted 341 the business this word was a part of his trademark-the distinguishing and essential feature; while the business was conducted by a copartnership it was the trademark of the copartnership; and, when the same business was done by a corporation, it was the trademark of the corporation. Through all these changes of ownership of the plant and business it continuously designated the output and product of the same mill. It did not cease to be the trademark, to designate its output of flour, when or because Listman sold his stock in the corporation, and ceased to have an interest in the business. It had been appropriated and used to designate and give a name to the product of the same mill and business by which it was known in the market through all these successive proprietaries, and during this time it had not been used to designate any article of which Listman himself was sole proprietor.

Listman seems to have owned virtually the entire plant and business at the time when he conveyed to the corporation. He says that it was not understood that the title to the trademark passed by that conveyance. This seems to

mean that nothing was said about it. There was no agreement that it should pass. Under such circumstances it was a question of law whether it did pass. Listman was one of the promoters of the corporation. He conveyed to it the mill-site, with the business and goodwill-at least, all the title he had in it. Ordinarily the goodwill of a business passes by a conveyance of the place where the business has been carried on, without special mention. The purchaser who acquires such good will takes with it the exclusive right to the use of such trademarks as have been up to that time in use in the business, without mention of them in the contract of sale: 17 Am. & Eng. Ency. of Law, 1187, and cases cited in the notes; Fish Brothers Wagon Co. v. La Belle Wagon Works, 82 Wis. 546, and cases cited on page 562; 33 Am. St. Rep. 72; Shipwright v. Clements, 19 Week. Rep. 599; 342 Brass & Iron W. Co. v. Payne, 50 Ohio St. 115. Many of the cases are where one partner sells out to the other partners. It cannot be less clear when a mere stockholder in a corporation transfers his stock, for a mere stockholder has no title in the corporate property. So it seems right to hold that, whatever property Listman may have had in this trademark at some earlier date, none remained to him after he ceased to be a stockholder in the plaintiff corporation.

The defendant has used this word "Marvel as a part of its flour brand or trademark against the plaintiff's protest and objection. It has used it in combination with other words, so as to constitute a brand or trademark so similar in appearance to the plaintiff's that the difference might easily pass without observation to casual observers. The plaintiff complains only of its use of the distinguishing word "Marvel." In order to support the action the imitation of the trademark need not be exact or perfect. It may be limited and partial. Nor is it requisite that the whole should be pirated. Nor is it necessary to show that any one has in fact been been deceived. Nor is it necessary to prove intentional fraud. If the court sees that the plaintiff's trademarks are simulated in such a manner as probably to deceive customers or patrons of its trade or business the piracy should be checked at once by injunction: Filley v. Fassett, 44 Mo. 178; 100 Am. Dec. 275, and cases cited. It is a proper case for the issuance of an injunction.

By the COURT. The order of the circuit court is affirmed.

TRADEMARKS are for the purpose of pointing out the source, origin, or ownership of the goods to which they are applied, or the dealer's place of business; and they usually include the name of the manufacturer or dealer, though they sometimes consist of some novel device, arbitrary character, or fancy word, applied without special meaning, and which, by use and reputation, comes to serve the same purpose: Gessler v. Grieb, 80 Wis. 21; 27 Am. St. Rep. 20. An exclusive proprietary right cannot be acquired in a word which is a generic term, and in its nature descriptive of that to which it pertains, rather than its origin or proprietorship: See note to Keasbey v. Brooklyn Chemical Works, 40 Am. St. Rep. 630. The right to a trademark is derived from its appropriation and continued user: Caswell v. Hazard, 121 N. Y. 484; 18 Am. St. Rep. 833. A trademark affixed to articles manufactured at a particular place may be lawfully sold and transferred with the estab lishment: See note to Fish Brothers Wagon Co. v. La Belle Wagon Works, 33 Am. St. Rep. 82. But a voluntary assignment of a trademark may probably be effected without especially mentioning it, as where a business is sold, and the goodwill thereof assigned: See monographic note to Symonds v. Jones, 17 Am. St. Rep. 496, discussing the assignment of trademarks of which the assignor's name is a part. Thus, if a manu. factory of wagons, in which the names of the founders of the business and ▲ rebus to represent their surname have been used as trademarks, is sold and assigned to a corporation, the corporation acquires by the sale and assignment the goodwill of the original business, and the right to use such names and rebus as trademarks, although they were not specifically mentioned in any of the transfers of the business to the corporation. But, if there has been no agreement to give to the corporation the exclusive right to use such names and rebus and trademarks, a new firm composed of such original founders of the business transferred to the corporation may use the same names and rebus in advertising wagons made by them, provided they do not use them in a way calculated to induce persons to buy the same as and for those manufactured by the corporation. The new firm, however, has no right to represent that their business is the same as that originally conducted by them: Fish Brothers Wagon Co. v. La Belle Wagon Works, 82 Wis. 546; 33 Am. St. Rep. 72. One who has infringed the trademark of another may be restrained by an injunction from making use of the imitation: Note to Liggitt etc. Co. v. Reid etc. Co., 24 Am. St, Rep. 316. When a trademark is calculated to deceive, an intention to deceive will be presumed, and an injunction to prevent its use will be granted: Note to Radam v. Capital Microbe Destroyer Co., 26 Am. St. Rep. 793.

BERGERON v MILES.

[88 WISCONSIN, 397.]

DECEIT JOINT PURCHASE OF LAND.-If one party induces another to join with him in the purchase of land, each to pay one-half of the purchase price, which the former falsely represents to be greater than it really is, and the latter gives the former one-half of such excessive price to be used in paying for his share, and the former pays for the land with a smaller amount, keeping the remainder himself, the deceit is actionable and the latter may recover the amount paid in excess of his share of the actual price, though the land is worth the price represented.

ACTION to recover money obtained by deceit. Defendant, Miles induced the plaintiff, Bergeron, to join with him in the purchase of certain land, each to pay one-half of the purchase price. Miles falsely represented the purchase price to be eight thousand dollars, when, in fact, it was but three thousand. Bergeron gave Miles four thousand dollars to be used in paying for his share. Miles paid out three thousand dollars of this money for the land, this being its actual purchase price, and kept the remaining one thousand dollars himself. There was a judgment for the plaintiff for two thousand five hundred dollars, and the defendant appealed. T. J. Connor and H. H. Hayden, for the appellant.

T. F. Frawley, for the respondent.

398 NEWMAN, J. On the question whether the relation of the parties was such that the deceit practiced upon the plaintiff by the defendant will support the action, the case very much resembles Grant v. Hardy, 33 Wis. 668. To make the deceit actionable it is not necessary that the relation of the parties to each other shall be that of partners or tenants in common. Other relations which require and inspire trust and confidence to be reposed by the party deceived in the other may be sufficient to bring the case within the rule, as stated in Grant v. Hardy, 33 Wis. 674. If the defendant was under no obligation to the plaintiff to tell him all he knew about the land he was, at least, under obligation not to deceive him by false statements with reference to it or the price at which it was to be bought by them. This he did, and so obtained from him much more than plaintiff's share of the price.

It is not denied that the defendant purposely deceived the plaintiff as to the purchase price of the land. Plaintiff supposed that the price to be paid was eight thousand dollars. It was, in truth, only three thousand dollars. As it was represented to plaintiff, his share of the price was four thousand dollars. In truth, his share of the 399 price was only one thousand five hundred dollars. He gave to the defendant, on his representation, two thousand five hundred dollars more than his share of the price and more than he would have given if the defendant had not deceived him. Yet it is argued that this deceit is not actionable, because, it is said, the plaintiff was not damaged by it. This contention