he is entitled to protection against a defendant who attempts to pirate upon the good-will of the complainants' friends or customers, or the patrons of his trade or business, by sailing under his flag, without his authority or consent.1 § 36. The Public should be protected. Mr. Justice Duer, in his very able opinion in the case of the Amoskeag Manuf. Co. v. Spear,2 enunciated as one ground for protection the benefit to the public at large. The plaintiff's trade-mark is an assurance to the public of the quality of the goods, and the pledge of his own integrity in their manufacture and sale. To protect him, therefore, in the exclusive use of the mark that he appropriates, is not only the evident duty of a court, as an act of justice, but the interests of the public, as well as of individuals, require that the necessary protection should be given. Brady, J., in Matsell v. Flanagan, said that the enforcement of the doctrine that trade-marks shall not be simulated, does not depend entirely upon the alleged invasion of individual rights, but as well upon the broad principle that the public are entitled to protection from the use of previously-appropriated names or symbols, in such manner as may deceive them, by inducing to the purchase of one thing for another. He took the extreme ground that it is not necessary to the exercise of judicial powers that the plaintiff should have any other property in the name used than that possessed by other persons. He said that there is neither honesty nor honorable competition in adopting, for a similar purpose, a name used by another, if it be employed in such a manner that the public may be imposed upon; and such a result must follow if the simulation be so successful that one article or creation is purchased or accepted for another. He regarded those principles as established by the adjudged cases of both England and this country. Robertson, C. J., in Swift v. Dey, which was a controversy in 1 Chancellor Walworth, Partridge v. Menck, supra. 2 2 Sand. S. C. 599. 4 4 Robertson, 611. 3 2 Abb. Pr. R. (N.s.) 459. regard to a trade-mark on match-boxes, said that is eminently a question of fact, to be submitted to the practical experience of a jury, whether in a particular case a resemblance was likely to deceive the community. There is no article of more general consumption, less value, or more frequently bought by ignorant or careless purchasers, than friction-matches; none, perhaps, where their degrees of excellence are more widely apart. In such a case, the general appearance of whatever is adopted as a trade-mark must control; because it is the unwary, and not the wary, who are to be protected, as most likely to be taken in by its counterfeits. Bosworth, J., in Gillott v. Kettle,' said that the fraud complained of consists in selling an inferior article of the plaintiff's manufacture as being one of a superior quality. The fraud, to the extent that it may be successful, is twofold: the public is defrauded by being induced to buy the inferior for the superior article; the plaintiff is defrauded by an unjust destruction of confidence that his pens are put up for sale, and assorted, with reference to the quality, indicated to dealers by the labels on the boxes which contain them. By such a practice the defendant endeavors by a false representation to effect a dishonest purpose: he commits a fraud upon the public and upon the manufacturer. The purchaser has imposed upon him an article that he never meant to buy, and the manufacturer is robbed of the fruits of the reputation that he had successfully labored to earn. In such a case, there is a fraud coupled with damage; and a court of equity, in refusing to restrain the wrong-doer by injunction, would violate the principles upon which a large portion of its jurisdiction is founded, and abjure the exercise of its most important functions, the suppression of fraud and the prevention of a mischief that otherwise may prove to be irreparable. This language-which has the ring of the true metal is substantially that of Duer, J., of the same court, in the Amoskeag 1 3 Duer, 624. case. Fraud and damage resulting therefrom always entitle the injured party to relief; provided, of course, that he come into court with clean hands. The public, as an innocent party, - for a party it must be considered, although not directly on the record, should be sedulously guarded by the action of the tribunal which holds the culprit within its grasp. Duer, J., in the Amoskeag case, said, that it is the evident duty of a court as an act of justice, and the interests of the public as well as of the individual purchasers require, that the trade-mark be protected. This does not operate as an injurious restraint upon the freedom of trade. Its direct tendency is to produce and encourage a competition, by which the interests of the public are sure to be promoted, a competition that stimulates effort, and leads to excellence, from the certainty of an adequate reward. Vice-Chancellor Sandford, in Coats v. Holbrook,2 laid considerable stress upon the duty of protecting the public as well as the complainant from the consequence of barefaced roguery; and Story, J., in Taylor v. Carpenter, was no less emphatic; and Sandford, Ch., in Snowden v. Noah,' said that the injury for which redress is given in such cases results from the imposture practised upon the customers of an existing establishment, or upon the public. But we need not multiply instances to prove that courts will habitually regard the interests of the public at large, in acting upon particular cases, or applying the rules of justice to an individual wrong-doer. § 37. In the Dixon Crucible Co. v. Guggenheim case, Paxson, J., remarked that "the jurisdiction of chancery in trademark cases attaches because of the injury to the one whose goods are simulated, by interference with his profits, not because of the deception upon the public. The fraud upon the public will not induce a chancellor to interfere, unless the plaintiff has sustained, or there is good reason to believe he will sustain, pecuniary damages." 1 2 Sand. S. C. 606. 3 3 Story, 458. 2 2 Sand. Ch. R. 586. 4 Hopkins, Ch. R. 347. 5 2 Brewster, 321. § 38. In Comstock v. White, Sutherland, J., said, on the other hand, on a motion to dissolve an injunction: "As to the public, if these pills are an innocent humbug, by which both parties are trying to make money, I doubt whether it is my duty, on those questions of property, of right and wrong between the parties, to step outside of the case, and abridge the innocent individual liberty which all persons must be presumed to have in common, of suffering themselves to be humbugged." It did not appear that the pills were positively injurious. Hoffman, J., in Fetridge v. Merchant,' said the question of fraud by means of a false mark should be judged of solely as between the immediate parties, and that the public should be left to its own guardianship. § 39. James, J., in the case of the Congress and Empire Spring Co. v. High Rock Congress Spring Co.,3 said that the doctrine of protection to trade-marks is now well established. The principle which underlies the doctrine is, that he who by his skill, industry, or enterprise has produced or brought into market or service some commodity or article of use, convenience, utility, or accommodation, and affixed to it a name, mark, device, or symbol, which serves to designate it as his, is entitled to be protected in that designation from encroachment, so that he may have the benefit of his skill, industry, or enterprise, and the public be protected from the fraud of imitators. § 40. An able French writer remarks that it is clear that the fabricant who by the superiority of his products, or by the cleverness of his manufactures, has acquired a merited renown, has a great object in investing with his mark articles of his make, to the end that such mark, which certifies them to the preference of the public, may thus secure an assurance and facility of sale. It is clear that he who sees his mark sought for by the public, finds, in his own interest, strong reasons to 1 18 How. Pr. R. 421. 2 4 Abb. Pr. R. 156. 357 Barb. 526; 4 Am. Law Times R. (St.) 168. make incessant efforts of intelligence, and of obedience to law, to conserve to himself the preference accorded to him. It is manifest, also, that the example of marks honored, eagerly looked for in commerce, and becoming for their possessors a source of fortune, is for others a powerful incitement to walk in the same path. But on what condition shall industry really find such signal advantages? On the condition that such marks shall be truly and efficaciously protected by the law; that the manufacturer shall find entire security in the use which he shall make of his mark; and finally, that he shall receive from the law sufficient guaranties for reclamation against the counterfeiter. § 41. In the House of Lords,' in 1865, Lord Kingsdown said: "The fundamental rule is, that one man has no right to put off his goods for sale as the goods of a rival trader, and he cannot, therefore, in the language of Lord Langdale in the case of Perry v. Truefitt, be allowed to use names, marks, letters, or other indicia, by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person.' A man may mark his own manufacture, either by his name, or by using for the purpose any symbol or emblem, however unmeaning in itself; and if such symbol or emblem comes by use to be recognized in trade as the mark of the goods of a particular person, no other trader has a right to stamp it upon his goods of a similar description. That is what I apprehend is usually meant by a trade-mark, just as the broad arrow has been adopted to mark government stores; a mark having no meaning in itself, but adopted by and appropriated to the government." § 42. Wherein consists the Wrong in using the Trade-mark of Another. It is not in imitating a symbol, device, or fancy name, for in such act may not be involved the slightest turpitude. The wrong consists in unfair means to obtain from a person the fruits of his own ingenuity or industry, an injus 1 The Leather Cloth Co. v. The Amer. Leather Cloth Co., 11 Jur. (N.s.) 513. |