his own goods. If, for instance, one were to publish a book on banking under the name of a firm of bankers, it would be no answer to say that there was no competition between banking and publishing, or that the bankers had sustained no pecuniary damage, or that the book was a good book. The act would still be a trespass, for which the bankers would be entitled to at least nominal damages at law, and, that remedy being inadequate and the trespass being a continuing one, they would be entitled to relief in equity. Such is our decision in British American Tobacco Co. v. British American Cigar Stores Co., 211 F. 933, 128 C. C. A. 431, Ann. Cas. 1915B, 363, in which a company engaged solely in the wholesale tobacco business was protected against the use of a similar corporate name by a retailer of cigars, although there was no competition between them.

* * *

Dunlop Pneumatic Tyre Co. v. Dunlop Lubricant Co., 16 Reports Patent Cases, 12: In 1888 the word "Dunlop" was first used by complainant's predecessors to designate goods manufactured by them. Complainant made bicycle tires, rims, pumps, etc. One Funt started in business as the "Dunlop Lubricant Co.," and dealt in oils and lubricants for bicycles, which he sold in packages bearing the word “Dunlop" in large letters. Complainant had never dealt in oils or lubricants. Held, that the use of the word "Dunlop" by defendant was deceptive, and it was enjoined. * * *

Premier Cycle Company v. Premier Tube Company, 12 Times Law Reports, 481: This was a motion for a preliminary injunction to restrain the defendants from using the word "Premier" as a part of their business style. Complainant was a manufacturer of bicycles and tubes used in their construction. The defendants stated that they were tube manufacturers and had no intention of competing with the complainant in the making of bicycles. An injunction was granted.

We do not think these authorities apply to the appropriation of a trade-mark.

As the defendants' conduct was wrongful, the complainant is entitled to an injunction, notwithstanding the delay of some eight years. in asserting its rights (McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828), but is not entitled to an accounting for damages and profits. The decree is reversed.1

SECTION 5.-UNFAIR ADVERTISING

FEDERAL TRADE COMMISSION v. WINSTED HOSIERY CO. (Supreme Court of the United States, 1922. 258 U. S. 483, 42 S. Ct. 384, 66 L. Ed. 729.)

Complaint by the Federal Trade Commission against the Winsted Hosiery Company. An order by the Commission, directing the company to cease from using certain labels or brands, was set aside by the Circuit Court of Appeals (272 F. 957), and the Federal Trade Commission brings certiorari.

Mr. Justice BRANDEIS. The Winsted Hosiery Company has for many years manufactured underwear which it sells to retailers through

1 The concurring opinion of Learned Hand, District Judge, is omitted.

out the United States. It brands or labels the cartons in which the underwear is sold as "Natural Merino," "Gray Wool," "Natural Wool," "Natural Worsted," or "Australian Wool." None of this underwear is all wool. Much of it contains only a small percentage of wool; some as little as 10 per cent. The Federal Trade Commission instituted a complaint under section 5 of the Act of September 26, 1914, c. 311, 38 Stat. 717, 719 (Comp. St. § 8836e), and called upon the company to show cause why use of these brands and labels alleged to be false and deceptive should not be discontinued. After appropriate proceedings an order was issued. which, as later modified, directed the company to "cease and desist from employing or using as labels or brands on underwear or other knit goods not composed wholly of wool, or on the wrappers, boxes or other containers in which they are delivered to customers, the words 'Merino,' 'Wool,' or 'Worsted,' alone or in combination with any other word or words, unless accompanied by a word or words designating the substance, fiber or material other than wool of which the garments are composed in part (e. g., 'Merino, Wool and Cotton'; 'Wool and Cotton'; 'Worsted, Wool and Cotton'; 'Wool, Cotton, and Silk') or by a word or words otherwise clearly indicating that such underwear or other goods is not made wholly of wool (e. g., part wool)."

A petition for review of this order was filed by the company in the United States Circuit Court of Appeals for the Second Circuit. The prayer that the order be set aside was granted, and a decree to that effect was entered. That court said: "Conscientious manufacturers may prefer not to use a label which is capable of misleading, and it may be that it will be desirable to prevent the use of the particular labels, but it is in our opinion not within the province of the Federal Trade Commission to do so." 272 F. 957, 961. The case is here on writ of certiorari. 256 U. S. 688, 41 S. Ct. 625, 65 L. Ed. 1172.

The order of the Commission rests upon findings of fact; and these upon evidence which fills 350 pages of the printed record. Section 5 of the act makes the Commission's findings conclusive as to the facts, if supported by evidence.

The findings here involved are clear, specific and comprehensive: The word "Merino," as applied to wool, "means primarily and popularly" a fine long-staple wool, which commands the highest price. The words "Australian Wool" mean a distinct commodity, a fine grade of wool grown in Australia. The word "wool" when used as an adjective means made of wool. The word "worsted" means primarily and popularly a yarn or fabric made wholly of wool. A substantial part of the consuming public, and also some buyers for retailers and sales people, understand the words "Merino," "Natural Merino," "Gray Merino," "Natural Wool," "Gray Wool," "Australian Wool" and "Natural Worsted," as applied to underwear, to mean that the underwear is all wool. By means of the labels and brands of the Winsted Company bearing such words, part of the public is misled into selling or into buying as all wool, underwear which in fact is in large part cotton. And these brands and labels tend to aid and encourage the representations of unscrupulous retailers and their salesmen who knowingly sell to their customers as all wool, underwear which is largely composed of cotton.

Knit underwear made wholly of wool, has for many years been widely manufactured and sold in this country and constitutes a substantial part of all knit underwear dealt in. It is sold under various labels or brands, including "Wool," "All Wool," "Natural Wool" and "Pure Wool," and also under other labels which do not contain any words descriptive of the composition of the article. Knit underwear made of cotton and wool is also used in this country by some manufacturers who market it without any label or marking describing the material or fibers of which it is composed, and by some who market it under labels bearing the words "Cotton and Wool" or "Part Wool." The Winsted Company's product, labeled and branded as above stated, is being sold in competition with such all wool underwear, and such cotton and wool underwear.

That these findings of fact are supported by evidence cannot be doubted. But it is contended that the method of competition complained of is not unfair within the meaning of the act, because labels such as the Winsted Company employs, and particularly those bearing the word "Merino," have long been established in the trade and are generally understood by it as indicating goods partly of cotton; that the trade is not deceived by them; that there was no unfair competition for which another manufacturer of underwear could maintain a suit against the Winsted Company; and that even if consumers are misled because they do not understand the trade signification of the label or because some retailers deliberately deceive them as to its meaning, the result is in no way legally connected with unfair competition.

This argument appears to have prevailed with the Court of Appeals; but it is unsound. The labels in question are literally false, and, except those which bear the word "Merino," are palpably so. All are,

as the Commission found, calculated to deceive and do in fact deceive a substantial portion of the purchasing public. That deception. is due primarily to the words of the labels, and not to deliberate deception by the retailers from whom the consumer purchases. While it is true that a secondary meaning of the word "Merino" is shown, it is not a meaning so thoroughly established that the description which the label carries has ceased to deceive the public; for even buyers for retailers, and sales people, are found to have been misled. The facts show that it is to the interest of the public that a proceeding to stop the practice be brought. And they show also that the practice constitutes an unfair method of competition as against manufacturers of all wool knit underwear and as against those manufacturers of mixed wool and cotton underwear who brand their product truthfully. For when misbranded goods attract customers by means of the fraud which they perpetrate, trade is diverted from the producer of truthfully marked goods. That these honest manufacturers might protect their trade by also resorting to deceptive labels is no defense to this proceeding brought against the Winsted Company in the public interest.

The fact that misrepresentation and misdescription have become so common in the knit underwear trade that most dealers no longer accept labels at their face value does not prevent their use being an unfair method of competition. A method inherently unfair does not cease to be so because those competed against have become aware of

the wrongful practice. Nor does it cease to be unfair because the falsity of the manufacturer's representation has become so well known to the trade that dealers, as distinguished from consumers, are no longer deceived. The honest manufacturer's business may suffer, not merely through a competitor's deceiving his direct customer, the retailer, but also through the competitor's putting into the hands of the retailer an unlawful instrument, which enables the retailer to increase his own sales of the dishonest goods, thereby lessening the market for the honest product. That a person is a wrongdoer who so furnishes another with the means of consummating a fraud has long been a part of the law of unfair competition. And trade-marks which deceive the public are denied protection although members of the trade are not misled thereby. As a substantial part of the public was still misled by the use of the labels which the Winsted Company employed, the public had an interest in stopping the practice as wrongful; and since the business of its trade rivals, who marked their goods truthfully was necessarily affected by that practice, the Commission. was justified in its conclusion that the practice constituted an unfair method of competition; and it was authorized to order that the practice be discontinued.

Reversed.

MCREYNOLDS, J., dissents.

FULTON GRAND LAUNDRY CO. v. JOHNSON.

(Court of Appeals of Maryland, 1922. 140 Md. 359, 117 A. 753, 23 A. L. R. 420.) Suit by the Fulton Grand Laundry Company against Edward JohnFrom a judgment for defendant, plaintiff appeals.

ADKINS, J. This is an appeal from an order sustaining a demurrer to the bill of complaint filed by appellant, and dissolving a preliminary injunction which had been previously granted. The allegations of the bill, so far as it is necessary to recite them, are substantially as follows:

The plaintiff is a corporation engaged in the general laundry business at No. 1719 East Oliver street, in Baltimore city; that the most valuable asset of the said business is the good will thereof which has been created by a course of dealing with customers for a number of years, which customers were secured only after great labor and expense; that plaintiff draws business from all that portion of said city lying east of Charles street, which section is divided by plaintiff into districts or routes, one of which is designated No. 6; that a driver, who also acts as a solicitor for new work, is assigned to each route, and is given a list of customers thereon from whom he receives laundry bundles, which he takes to the plant, and which, after they are laundered, he returns to the customer, and collects the charges thereon; that the expenses of maintaining the route are borne by plaintiff; that the defendant has for three years been employed by plaintiff as a driver and assigned to route No. 6; that the defendant was a trusted employee, and while in the service of plaintiff acquired knowledge of and access to all the customers of plaintiff on said route; that the defendant left the employ of plaintiff on September 3, 1921, without any previous notice, and without any opportunity to the plaintiff to pro

cure another driver for said route; that while in the employ of plaintiff, and without its knowledge or permission, defendant advised customers of plaintiff on said route that he intended to go into business for himself, and induced them to substitute his service for that of plaintiff and on the 5th day of September, abusing the confidence imposed in him, collected laundry bundles from about 45 of plaintiff's customers on said route, which number represents about 90 per cent. of those who usually send their work to plaintiff on the first trip Monday morning, and turned the work over to some other laundry; that defendant was able to do this because of the knowledge of plaintiff's customers acquired by him while in its service, and by virtue of his representation of it; that a few days before leaving plaintiff's employ defendant told plaintiff he had no intention of leaving, and at that time was undermining its business by attempting to entice its customers away from it; that, if he is permitted to solicit the business and patronage of plaintiff on said route, great and irreparable damage will be done to plaintiff in its said business.

The theory of appellant is that the list of customers of appellant is a trade secret, and that an employee who has obtained the names of customers and has acquired his good standing with them by reason of the opportunity derived from his employment should not be permitted to use such information, or capitalize his popularity thus acquired, to the injury of his employer after the termination of his service.

We have been referred to no decisions of this court, nor have we been able to find any, bearing directly on this question. The decisions in this country and in England seem to be fairly harmonious in principle as to the duty of courts to protect owners of trade secrets from disclosure by employees, but the divergences begin when the question to be determined in particular cases is whether the thing sought to be protected should be classed as a trade secret. And this is the real question presented in this case. A thing can hardly be said to be a secret, in the sense that it should be guarded by a court of equity, which is susceptible of discovery by observation, and which is open to the observation of any one who thinks it worth while to observe. In this case it was not necessary for the new employer of appellee to seek his services in order to obtain the names of appellant's customers whom appellee served. He could obtain this information by the simple process of observing each day for a week where he stopped on his daily rounds. We have no difficulty in reaching the conclusion that

there is no trade secret involved in this case.

*

We have been referred to several California decisions and to two decisions by the intermediate courts of New York and to an English case which support the view contended for by appellant. * * That view is also supported by Nims on Unfair Competition, § 222. But, while we do not decide that there might not be cases in which an employer should be protected from the use by an employee of a list of customers fraudulently and surreptitiously obtained, or where, in the nature of the particular case, or by reason of the care used in concealing them, the names of customers are so guarded as not to be easily obtainable by others than confidential employees, we are not willing to hold that, in any ordinary business, an employee, on going into business for himself or into the employ of another, should be enjoined from seeking to do business with friends he has made in the course