F.S.A., &c., in speaking of the lofty position gained by British manufacturers. He spoke some years before legislation had assumed definite proportions in this regard. He said substantially that the British manufacturers are well alive to the demands upon their skill and energies, and we see them everywhere striving to rival all competitors, and to maintain untarnished the reputation they have gained. Their aim is to produce articles which for their price may be unequalled and unexcelled in this or any other country; and whenever they stamp such articles with their names, ciphers, or labels, they enter into solemn guaranties that the goods so marked shall invariably be of the quality represented. Their endeavor is to establish such an intimate relationship between the manufacturer and the manufacture, that in whatever market such goods may be exposed for sale, the same may be received with the most implicit faith and reliance. A mark on a manufacture is like the impress of the sovereign's coin, a sufficient evidence, universally accredited, that the coin is of a specific rate and fineness. Why should it not be now as in former times, when the mark was not simply the signature of the merchant or manufacturer, but also a certificate of quantity, given by public authority, touching the quality of the produce, its origin, weight, &c.? 1 § 28. Trade-marks are assuming increased importance from the fact that in Europe. there is a growing tendency to abolish or greatly restrict the granting of patents for inventions and discoveries. This question of political economy has so far prevailed that in the empire of Germany, in Belgium, and in other countries, official inquiries are being made as to the working of the patent laws and their effect upon the general welfare, many statesmen and jurists believing that the system of monopolies, as they miscall it, has not met the expectations of the law-makers. In Holland, we 1 Journal Soc. Arts, vol. vii. p. 262. are informed, both legislative chambers have abolished the system entirely, the votes lacking but two voices of unanimity. Although such retrogression cannot be expected to occur in this developing country, with its myriads of ingenious artisans and earnest explorers of the inmost recesses of nature, minds intent upon releasing the human frame from the thraldom of drudgery, it is well to know what other nations think and do. It may be that in those countries labor is so cheap that human muscle and life rate with those of the beasts that perish. Be that as it may in regard to artificial property like patents, the rights of manufacturers and merchants rest on exterior signs, which have for an object to make known their industries and the products thereof. Lawful competition is open to all. All that is demanded is that encroachments upon the businessmark of another be prohibited. The Master of the Rolls, in Croft v. Day, said: "The principle in these cases is this, that no one has a right to sell his own goods as the goods of another." § 29. The world-renowned Wedgwood produced many fine pieces of work, which only his master-hand could afterwards improve. He did not patent his inventions, but with a consciousness of his own superiority - which he ever maintained he permitted all other potters to follow as nearly as they could in his footsteps. His trade-mark was ample protection, and indeed was more efficacious than any patent could be, unless we consider that he did possess an unencroachable patent, that bestowed by excellence itself. By means of his symbol he secured a full reward for his industry, his toil, his genius. With the largest manufactory of china and queen'sware in the known world, he could safely rely on this trademark to point out to the people of all countries the goods in which he so successfully combined the useful, the ornamental, and the ingenious. 17 Beav. 84. § 30. Imposition upon the Public, occasioned by one man selling his goods as the goods of another, cannot be the ground of private action or suit. This is a definitively-settled rule. We must not, however, dismiss this rule from further consideration until we are sure that we comprehend the scope of this brief enunciation. To speak more plainly, the mere fact of fraud upon the public will not induce a chancellor to interfere unless the plaintiff has sustained, or there is good reason to believe that he will sustain, pecuniary damages. Imposition on the public becomes the test of the property in a trade-mark having been invaded and injured, but it is not the ground on which the court rests its jurisdiction.1 § 31. The Lord Chancellor, in Spottiswoode v. Clark,2 in 1846, said that "These cases depend so much upon their own circumstances, that all that the court can do is to lay down principles under which such cases may fall. I have before this had occasion to express an opinion, that, unless the case be very clear, it is the duty of the court to see that the legal right is ascertained before it exercises its equitable jurisdiction. For this there are good reasons. The title to relief depends upon a legal right, and the court only exercises its jurisdiction on the ground that that legal right is established. Our objection to granting an injunction, in the first instance, is, that it promotes after-litigation. The order either grants an injunction, and compels the plaintiff to bring his action, or suspends the injunction, with liberty to the plaintiff to bring his action. If you compel him to go to a court of law, you promote litigation; and this course is forced upon parties when their feelings are deeply engaged in prosecuting their imaginary rights. There is also another objection, which is, that the court expresses a strong opinion, and it ought to be a strong opinion, and then sends the right to be tried. I think it better that the court should abstain from expressing such an opinion. But, after 1 Lord Chancellor, in Leather Cloth case, 11 Jur. (N.s.) 513. all, the chief objection is, that the court runs the risk of doing the greatest possible injustice." § 32. When a person has adopted and used a particular mark, to indicate to those who deal with him that an article is manufactured or sold by him, or by his authority, others have no right, without his assent, with the view of deriving advantage from the same, to use such mark without change, or even with such colorable difference as is calculated to deceive the proprietor's customers, or the patrons of his trade or business. Such mark, when it has become known, is a species of property; and its owner will be protected against the attempt of others to appropriate to themselves, by its use, the benefit which such is entitled exclusively to enjoy. But there can be no harm done to the owner of which he has the right to complain, unless his trade-mark be appropriated without change, or unless it is simulated in such a manner as probably to mislead his customers, or the patrons of his trade or business, inducing them to suppose that in purchasing the article marked, they are purchasing that manufactured or sold by such owner.1 § 33. It is frequently a difficult matter to determine what is an infringement. The two marks, which are supposed by the plaintiff in a case to conflict, may resemble each other, and yet be different. The question then arises, Is the difference only colorable? No general rule can be laid down as to what is or what is not a mere colorable variation. All that can be done is to ascertain, in every case as it occurs, whether there is such a resemblance as to deceive a purchaser, using ordinary caution.2 In the case of the Leather Companies, in the House of Lords, in which remarks as follows were made, it was further said by Lord Cranworth for the court that in that case the difference was so palpable that no one could be deceived. "In the first place, the shape is different. The plaintiffs' trade-mark, if trade-mark it is to be called, is contained in a circle. The design of the defendants is a 1 Partridge v. Menck, 1 How. App. Cases, 558. 2 Lord Cranworth, 11 Jur. (N.s.) 513. semicircle mounted on a parallelogram. It is said that the defendants' goods may be so rolled as to expose only the semicircle, and so lead to the belief that the device, in its integrity, is a circle. There might, however, be some force in the observation if the upper half were the same as, or even if it closely resembled, the upper half of the plaintiffs' device. But this is not so. The name of the company is different. The word 'Crockett' is prominently exhibited twice in the plaintiffs' upper half, not once in the defendants'. No one taking the trouble to read the two can say that he would be deceived." § 34. The ownership is allowed, that one may have the exclusive benefit of the reputation which his skill has given to articles made by him, and that no other person may be able to sell to the public, as his, that which is not his. An imitation of his mark, with part differences, such as the public would not observe, does him the same harm as an entire counterfeit. If the wholesale buyer, who is most conversant with the mark, is not misled, but the small retailer or consumer is, the injury is the same in law, and differs only in degree. The right of action must exist for the last, as well as the first. If all consumers do not discriminate in the end, it would be indifferent, even to the wholesale buyers, from which of two they bought, and thus the extent of the injury would be as great as if they also were deceived. § 35. The question is not whether the complainant was the original inventor or proprietor of the article made by him, and upon which he now puts his trade-mark, or whether the article made and sold by the defendant under the complainant's trademark is an article of the same quality or value. But the court proceeds upon the ground that the complainant has a valuable interest in the good-will of his trade or business; and that having appropriated to himself a particular sign or mark, indicating to those who wish to give him their patronage that the article is manufactured and sold by him, or by his authority, or that he carries on business at a particular place, |