been a breach of confidence. We agree that a title to property cannot be obtained by fraud. But the answer to this suggestion of fraud is that A. must have had property before he could be despoiled of it. This unscrupulous act of B. is a wrong that must be adjudicated in foro conscientiæ, for no human tribunal can give redress. It is a clear instance of damnum absque injuria. We do not lack analogies to confirm this conclusion. It is a familiar fact that, by the fiction of the English patent-law, he is deemed to be the first inventor who first brings an invention into the realm, and that, although he is not the inventor in any sense. He has, in legal contemplation, been the first to find or discover the thing (a pleasant euphemism applied to theft). Hills, an American inventor of a machine for making brushes, embarked for England for the purpose of obtaining a patent. He had had confidential relations with one Sheldon in this country, and the latter conceived the idea of obtaining a patent for himself for the thing that Hills had invented, and actually reached England and secured a patent before Hills arrived there. Steps were immediately taken by the true inventor to enjoin the swift-footed sharper. Held, by the Lord Chancellor, to be a case of wrong without a remedy. (This case was cited by a legal gentleman in a trade-mark discussion. It is believed not to have been reported in print, the point having been decided in other instances.) In a hearing before the AttorneyGeneral (Sir R. P. Collier), Nov. 26, 1870, the counsel for the patentee in such a case argued: (1.) The law does not require the communicator to be the inventor. (2.) The nonresident inventor has no legal rights of invention. (3.) The person to whom the invention is communicated is the legal inventor. The adverse counsel, who represented the real inventor (one Overend, of San Francisco, Cal.), said that he could not controvert the argument. The Attorney-General dismissed the opposition, with costs against Overend. We

1 Dunn's application, No. 2427, Int. Pat. Off. circ., Jan. 1871.

may suppose a case wherein the actors are nations. It is ascertained by one nation that another nation is fitting out a fleet at great expense, with the intent of taking possession of a savage or an uninhabited country; and the nation first mentioned, without a moment's delay, pounces upon and holds. the prey, and annexes the new territory. Who becomes the sovereign, he who intended to seize, or he who actually did occupy the new country? Spain obtained her title to a large. portion of the Western Hemisphere by the planting of her flag; but what if, while Columbus, or Vespucius, was drifting over the ocean, a more swiftly-sailing flotilla had darted upon the coveted prize? Spain would have come to grief. The fact of first starting in the race would not avail. First come, first served. When a thing has no lawful owner, the first actual occupant obtains the exclusive right to it. This rule is as applicable to trade-marks as to any other property.

AN

Colorable Infringements. At Law, and in Equity. - Whole Trade-mark need not be imitated to constitute Piracy. As a General Rule, one may affix his Name to Product. - Exceptions. One's own Name may be used as an Accessory to Fraud.- When Trader debarred from using a Trade-mark originated by Himself. Use of Name of Old Commercial House. - Perversion of Mark.

To entitle a trader to

§ 385. What deemed Infringement. relief against the illegal use of his trade-mark, it is not necessary that the imitation thereof should be so close as to deceive persons seeing the two marks side by side; but the degree of resemblance must be such, that ordinary purchasers, proceeding with ordinary caution, are likely to be misled. Lord Cranworth, Chancellor, held:1 The actual physical resemblance of the two marks is not the sole question for consideration. If the goods of a manufacturer have, from the mark or device he has used, become known in the market by a particular name, the adoption by a rival trader of any mark which will cause his goods to bear the same name in the market, may be as much a violation of the rights of the rival as the actual copy of his device.

§ 386. In many cases, it may be difficult to determine whether the complainant's trade-mark has been actually pirated in such a manner as to be likely to deceive and impose upon his customers or the patrons of his manufactures or business, and in cases of doubt the court should not grant

1 Seixo v. Provezende, 12 Jur. (N.s.) part i. p. 215; 14 W. R. 357.

or retain an injunction until the cause shall have been heard upon the pleadings and proofs, or until the complainant shall have established his right by an action at law. But if the court sees that the complainant's trade-mark is simulated in such a manner as probably to deceive his customers, or the patrons of his trade or business, the piracy should be checked at once by injunction.1

§ 387. Now, although a court will hold any imitation colorable which requires a careful inspection to distinguish its marks and appearance from those of the manufacture imitated, it is certainly not bound to interfere when ordinary attention may enable a purchaser to discriminate. It does not suffice to show that persons incapable of reading the labels bearing the mark might be deceived by the resemblance. It must appear that the mass of ordinary purchasers paying that attention that such persons usually do in buying the article would probably be deceived.2

§ 388. In Clark v. Clark,3 in the Supreme Court of New York, at a general term, in 1857, the facts were these: The plaintiffs were manufacturers, at Mile-End, Glasgow, of spool cotton. In 1843, they used their trade-mark, consisting of four concentric circles; the inner one in gold, and the next in silver; the whole bounded by two concentric black lines. In the inner circle is the number of the cotton; in the next, "J. Clark, Jr., & Co., Mile-End, Glasgow," at the bottom. In the next circle are the words, "Six Cord Cable Thread, warr'd 200 yards." In the outer circle are the words, "Sole Agent, Wm. Whitewright, New York." J. & J. Clark & Co. were also manufacturers of the same class of goods at Seed Hill, Paisley, and the defendant was their agent. They both sold largely in the United States. The defendant, some years after the plaintiff's trade-mark was well-known, adopted one for his

1 Chancellor, in Partridge v. Menck, 2 Barb. Ch. R. 101; 1 How. App. Cases, 558. 3 25 Barb. 76.

2 Partridge v. Menck, 2 Sand. Ch. R. 622.

cotton to be sold in the United States, consisting of concentric spaces of precisely the same dimensions as those of the plaintiffs', of the same colors, in the same order, with the letters in black, or in gold, as the plaintiffs'. There is the same number for the inner circle, with the same kind of stamp. In the next circle are the words, "Clark & Co., Seed Hill, Paisley," "Clark & Co." being at the top, as in the plaintiffs', and the same words, so far as they go, as in the plaintiffs', and the other words below and in the reverse order, as are also the plaintiffs'; though these last words are entirely different from the plaintiffs'. Then, in the next circle, "Six Cord Cabled Thread, warr'd 200 yards," precisely as in the plaintiffs', in black ground and gold letters; and in the outer circle the words, "Sole Agent, George Clark, New York," the words "Sole Agent, New York," being the same as in the plaintiffs', even as to their position; the place of their beginning and ending, and the stamp for the letters, being exactly alike, also, in both.

§ 389. There was thus an evident design to imitate the plaintiffs' mark, and it was successfully carried out by actu ally transferring the face of the plaintiffs' die to the defendants', in all respects, except that the plaintiffs have on theirs "Wm. Whitewright, Mile-End, Glasgow," "J. Clark, Jr., & Co.," where the defendant has "George Clark, Seed Hill, Paisley," "Clark & Co." The effect of this imitation was that all, except very cautious persons, would be deceived. Some, who may have known that Wm. Whitewright was the agent of the plaintiffs, would naturally suppose that George Clark had been substituted; so that the difference in the names of the agents would not prevent deception. The name "Clark & Co." is so near to "J. Clark, Jr., & Co." that it would pass for the same; especially when placed in the same position, in the same kind of letters, and on the same ground. The difference in residence, being stamped so as to read in the reverse of the rest of that circle, might pass unnoticed.