announced as well in Paris as in Toulouse, the prospectus affixed reading thus: "I possess the sole general use of the cigarette-paper GUERRE A JOB, incontestably the best paper that exists, the superiority of which is recognized not only by all consumers, but also by the Messrs. Bardou & Pauilhac, proprietors of the Joв paper. The last observe silence to the defiance given to them to dare say that the paper GUERRE A JOB is not superior to theirs," &c., &c. The defendants voluntarily withdrew from their notice the names of the plaintiffs. The design of the defendants in using the name of the article and the names of the true owners of the mark was too manifest. The court therefore enjoined them from using the name JOB, saying, among other things, as follows:- As to the suppression of the name of JOB: Whereas, Sabatou, a fabricant of cigarette-paper, sells his products under the same form as those of the plaintiffs, and employs a paper wrapper of the same color, bearing the inscription "GUERRE A JOB" (&c., as above stated); whereas, the lawful competition which should exist between merchants, cannot be extended to include a right to take the distinctive denomination of a rival even for advertisements and circulars, with the design of diverting his custom; whereas, it is manifest that Sabatou, in the use of the name of JOB, and in indicating the superiority of his paper, had no other object than to destroy the reputation. enjoyed for the paper sold under the title of JOB, and to cause confusion by holding forth the said name; therefore, it is ordered that Sabatou cease for the future to use the name of JOB on his covers and prospectuses. As to damages: Inasmuch as, by the conduct of Sabatou, the plaintiffs have shown that they are entitled to reparation for injury received, and this tribunal possesses the elements for the appreciation of the same, let Sabatou be held to pay them the sum of 5,000 francs, with costs. On appeal to the Court of Paris, which heard the matter in 1869, the judgment was affirmed, although the damages were reduced to 3,000 francs.1

1 Annales de la Prop., tome xv. p. 115.

§ 399. The foregoing case has a peculiarity worthy of the observations which the reporting editor makes upon it. He says that it should be remarked that, for the purpose of duly estimating the wrongful act, the tribunal took into consideration the fact that the defendant Sabatou had disparaged the products of the plaintiffs, wherefore it peremptorily ordered the suppression of the use of their names and the denomination Job by him. This he deems to be just, as it cannot be admitted that the liberty of industry and commerce authorizes such use of the name of a fabricant or the denomination of a product, for the purpose of avowing superiority, and attracting the attention of the public. It is a usurpation, says he, from the instant one uses an acquired reputation to make known, and cause the acceptance of, his own products.

$400. The Court of Cassation (the supreme court of France), in 1867,— Lagarde v. Piper,1— Held: It is a fraudulent imitation of a mark, falling within the provisions of art. 8 of the Law of 23 June, 1857, to servilely copy the label of another merchant, although a name or pseudonym be interpolated other than that of the true owner. The offence is committed in France, and not in a foreign country, even although the label bearing the mark, which has been in part fraudulently imitated, is not intended for use in France, but is intended to be sold in foreign countries, for the purpose of there being affixed by others. The piracy consisted in the imitation in part, with the design of profiting by the reputation belonging to another.

§ 401. In Gillott v. Esterbrook,2 the defendants took only a portion of the plaintiff's mark, viz., the numerals 303 (which by themselves probably could not be a lawful trade-mark), and yet were found guilty of infringement. The defendants manufactured a pen in shape, color, size, and pattern, so closely resembling the pen of the plaintiff that it required an

1 Annales de la Prop., tome xiii. p. 293.

2 47 Barb. 455.

See §§ 225-233, ante; and also Glen & Hall Man'g Co. v. Hall, Albany Law Jour. vol. v. p. 109 (1872).

expert to distinguish them apart. That much they had a perfect right to do; and if they had gone no further toward imitation, no legal injury would have resulted. But they imitated the boxes used by the plaintiff, with a fancy-paper label similar to his, placed in the same position; took the number "303" by which the plaintiff designated his pen; and on the bottom of the box placed a "caution" somewhat similar. Potter, J., said, inter alia: These labels and cautions (except the names of the parties) are composed of words in common use in our language, which cannot be exclusively appropriated as trade-marks. True, this selection of boxes, sizes, colors, labels, cautions, and style of lettering, may all be designed to aid in the perpetration of a fraud, and may be the most conclusive evidence of the intent to mislead the public, and to commit a fraud upon the plaintiff in relation to some device of his connected with a trade-mark; yet merely because they are such evidence, or because they have been used with such intent, it does not follow that their use can be legally enjoined and restrained. It is where the person designing to practise a fraud by pirating a trade-mark uses these evidences so connected with the trade-mark itself as to effect a fraud, that he can be reached by the powers of the court. True, also, it is, that it is the right of the plaintiff to be protected against frauds, yet the fraud must be one in relation to a substantial legal right of the party, and protection will not, in all cases, be extended to the mere evidence of fraud alone; and the courts are bound to be especially cautious that in the exercise of the power to restrain injustice they do not encroach upon the public interest, by giving an improper check to a worthy and laudable spirit of enterprise, emulation, and competition in any department of business. It must be admitted that every citizen has the right, if he will, to manufacture and to sell steel pens of any pattern, shape, color, size, state of flexibility, or fineness of point; he may sell them singly or in quantities, on cards or in boxes of large or small size, and with such orna

mentation as fancy or interest may dictate; he may imitate any pattern or quality of pen, even if known to be made by any other manufacturer; he may, if he can, make a superior article in material, pattern, or quality, and if he can do so, he has the right to select a device or symbol, as a trade-mark, to designate his manufacture from others: and, if such device or symbol relates to the origin or ownership of the goods to which it is affixed, his legal right to protection is undoubted. Such protection is no restraint upon the freest exercise of talent, enterprise, and competition in trade, but rather a proper stimulant to encourage competition. His superior skill and enterprise give him the right to its profits and advantages, and this is giving no encouragement to monopolies so destructive to the freedom of trade. It may be that in this case the defendant's pen is equal in merit, or even superior to the plaintiff's. This was not an issue in the case. . . . It is no hardship upon the defendants to have them stand upon the merits of their own pen, unaided by the reputation of the plaintiff as a manufacturer, or by the merits of his pen. . . The design to defraud may be as apparent, and is generally more injurious, in the partial than in the entire imitation. When the trade-mark is a conspicuous device, connected with the name of the true proprietor, of course the imitator would desire to avoid the offence of forgery, and would omit on his own article the name of the true proprietor, and substitute his own.

§ 402. In Walton v. Crowley, Betts, J., said: On ordinary observation, the labels used by the two parties in this case would not be apt to be distinguished the one from the other,the size, shape, vignette, coloring, and marking being so nearly identical as to make them easily pass for the same; and the only difference discernible, on considerable scrutiny, being in the name of the warrantor, stamped upon them in letters so small as not readily to attract notice. It is this apparent similitude or counterfeiting which is the grievance complained of

1 3 Blatch. C. C. 440.

A tradesman, to bring his privilege of using a particular mark under the protection of equity, is not bound to prove that it has been copied in every particular. It is enough for him to show that the representations employed bear such a resemblance to his as to be calculated to mislead the public generally who are purchasers of the article, and to make it pass with them for the one sold by him. If the indicia or signs used tend to that result, the party aggrieved will be allowed an injunction staying the aggression until the merits of the case can be ascertained and determined.

§ 403. In one case,1 the plaintiffs, rectifiers of whiskey, had as a brand for their goods the representation of two anchors placed near together in an upright position, the upper parts inclining outward, with a rope attached. Over the device, in a circular form, were the initials "S. Mc." The device and letters were stencilled upon the heads of barrels containing a particular kind of whiskey known in the trade as "double anchor," or "double-anchor whiskey." They brought suit to enjoin the defendant from using in his whiskey trade an alleged counterfeit in imitation of their trade-mark. The supposed imitation consisted in the representation of two picks placed near together in an upright position, with the handles inclining inward. Between the handles was suspended a pair of balances or scales. The defendant's name was placed over the picks, and the words "Old Bourbon" underneath; the whole inscription reading, "J. H. Garnhart's Old Bourbon." The defendant stencilled this brand upon the heads of the whiskeybarrels. He used the whiskey thus put up and branded for his mountain trade, and called it "pick brand."

§ 404. The picks were alleged to be an imitation of the anchors on the plaintiffs' head. That was the only point of resemblance insisted on. In all other particulars the court said that the marks were wholly dissimilar. Currier, J., in delivering the opinion of the Supreme Court of Missouri, said

1 McCartney v. Garnhart, 45 Missouri (IV. Post's R.), 593.