Not to let the matter drop without exhausting all means of

1

case to the court of last decided in the Court of

defence, the defendant carried his resort. In April, 1872, it was Cassation, where the claim of the Carthusian monks to the right of exclusive use of the word so much harped-on was fully sustained. Therefore, we may regard the single word "CHARTREUSE" as possessing all the essential characteristics of a trade-mark; 2 and we may rest assured that any one is an infringer who varies that word, as did the defendant, in the futile hope that he might evade the penalty of the law.

§ 411. In Edelsten v. Edelsten,3 Court of Appeals in Chancery, 1863, the facts of the case were that the plaintiff, a wire manufacturer, with a view of distinguishing his wire from that of other manufacturers, in the year 1852 adopted as a trade-mark an anchor on the metal labels, called "tallies," which were attached to each bundle of wire sent into the market by the plaintiff's firm. For this reason the plaintiff's wire acquired the name of the "anchor-brand wire," by which it has since been generally known to the trade. Plaintiff complained of the defendant's use of a crown and an anchor as being a colorable simulation of his trade-mark. Judgment with costs, and an account of profits. Affirmed on appeal, with

costs.

§ 412. In Woolam v. Ratcliff, the plaintiff and the defendant were both large silk throwsters. The plaintiff was in the habit of making up his bundles of silk in a particular form, with forty-eight heads of silk in each bundle, tied with five strings in different places, with the silk protected from the knots of the strings by pieces of foolscap paper of a particular form, the heads of silk being themselves tied with silken strings of different colors to mark the quality of silk, and containing the following particular mark: "St. A

1 Annales de la Prop., tome xvii. p. 257. 3 1 De G., J. & S. 185.

2 § 143, ante.

4 1 Hemming & Miller, p. 259.

which represented St. Alban's, the place where the plaintiff's manufactory was, and which was well known in the trade as the plaintiff's trade-mark.

§ 413. The defendant made up a quantity of silk in bundles, in exact imitation of the plaintiff's bundles, and affixed to them a label exactly like that of the plaintiff, except that the mark "St. A*****” was omitted. V.-C. Wood said, inter alia: "This is a very singular case. I have had considerable experience in cases of trade-marks, sometimes of trade-marks simpliciter, and sometimes of trade-marks as one of numerous indicia that a particular thing is the manufacture of a particular person." He then referred to the Omnibus Company case, where the words "Conveyance Company," "the green omnibus," &c., were held sufficient to entitle the plaintiffs to an injunction. The defendant, said he, might have had those words painted on a yellow omnibus without objection; and so of the other resemblances: the wrong lay in the accumulation, not in any one of them alone. In conclusion, he said that "in this case the plaintiff has a peculiar mode of making up his goods. This is not precisely a trade-mark. . . . I think it has been established that in the English market the St. A*****' would have been necessary and sufficient as indicia of the plaintiff's goods." Although there was an express direction to the defendant to imitate the plaintiff's bundles, an element of suspicion in itself, he could not treat it as conclusive. Bill dismissed with costs.

6

§ 414. In the Court of Caen, in 1872 (Carpentier v. Canivet 2), it appeared that the plaintiffs, the Brothers Carpentier, manufacturers of chocolate in Paris, have been in the practice of enclosing their products in envelopes bearing the fac-simile of a bill of exchange. The better to imitate a bill of exchange, the label, which has a double bordering of arabesques, represents engine-turned paper of a gray tint, with a band a little

1 Knott v. Morgan, 2 Keen, 213.

2 Annales de la Prop., tome xvii. p. 233.

depressed in the middle, on which are printed the words " CINQ KILOS DE CHOCOLAT" (five kilograms of chocolate), and the engine-turned work is so done as to let appear the words

Fabrique de Chocolat," as if imprinted in the pulp of the paper. Besides the immediate use of the label by themselves, the plaintiffs have been in the habit of authorizing the use of it by their agents in the provinces of France, with the addition thereto of the name of the agent vending the article, the device being always claimed as the trade-mark of the plaintiffs. The defendant, for the chocolate sold by him, used a label also bearing the fac-simile of a bill of exchange, but in many respects it was quite dissimilar in appearance. In the Tribunal Civil of Caen, where the case was first heard, the defendant successfully relied upon the variations, and the complaint was dismissed with costs. In the superior court that judgment was reversed. Among other matters, we find as follows upon the point of part-infringement: - PER CUR. If, as matter of law, the Act of June 23, 1857, which prohibits the fraudulent imitation of trade-marks, could be applied only in a case where the imitation is absolute and complete between the genuine and the counterfeited mark, it would constantly be evaded, and be illusory; and, in effect, fraud - always so ingenious in the choice of means to which it has recourse would not fail to introduce in the execution of its work such modifications of detail as, while ensuring the benefit of the counterfeit, would guaranty impunity. It suffices, to bring it within the intendment of the above-cited Act, that the imitation reproduces the characteristic traits of the original, so that, at the first view of the purchaser, who has not under his eyes the points of comparison, and who cannot recollect all the details, he should naturally be led into error. In fact, the labels of the tablets of chocolate exposed for sale, and seized in the magasin of Canivet, reproduce in the ensemble the trade-mark of Carpentier Brothers; for the labels of both parties bear the facsimile of a bill of exchange; and the form, the dimension, and

the position of one and the other on the tablets are identical: and to him who has not under his direct gaze the mark of the Carpentier Brothers, the deceit is inevitable. . . . The judgment below is reversed, with costs, &c.

§ 415. In the Tribunal of Commerce of the Seine, in 1868 (Panckoucke v. Wittersheim1), came up the case of the famous "MONITEUR," of Paris. The facts are as follows: In 1789, the predecessors of the plaintiffs founded a political and literary journal, under the title of "GAZETTE NATIONALE," or "THE MONITEUR UNIVERSEL." In the eighth year of the Republic, it became the administration organ, and so continued to be until 1815. In 1816, it resumed its official relation. In 1852, the price of the journal was reduced; and in consideration of the superior advantages to the public occasioned by the increased publicity, it received the exemption of stamp and postage duties. In 1864, the "Moniteur" made a contract with the Minister of State for four years, as the official organ. It was during this period of time that the same owners commenced the publication of an evening edition of their paper, under the title of the "PETIT MONITEUR," which became exceedingly profitable to its publishers. In 1866, the Minister of State, not being inclined to longer submit to the inconvenience occasioned by the duality of the journal, authorized the publication of a new official paper by the defendant, and which paper assumed the name of "MONITEUR OFFICIEL DE L'EMPIRE FRANÇAIS." This act of the defendant was deemed by the owners of the old-established journal to be a usurpation of title; so suit was brought. For a defence, it was urged that the plaintiffs carried the inception of their journal back no farther than 1789; while, in fact, from the year 1760, other periodical publications had appeared under the same name; and that therefore the plaintiffs could not invoke the law applicable to the first occupant. Further, that the publication had long gone under the principal title of "Gazette nationale;" and that it was not until the year 1811

1 Annales de la Prop., tome xv. p. 5.

that it took for principal title the denomination of "Moniteur universel;" but this title was so taken with a knowledge of the fact that that name, as applied to journals, had become public property, wherefore care was taken to adjoin the distinctive qualification of universel; and that under the general name of "Moniteur more than one hundred and fifty journals had been published. Thus, said the defence, there is the "Moniteur de l'armée," the "Moniteur de la flotte," the "Moniteur de l'industrie," &c. The defendant claimed that in law, as in fact, he had the greatest degree of interest in avoiding confusion between the two journals; and that he had established a difference between them in taking the title of "Moniteur officiel." It was held, inter alia, by THE TRIBUNAL: The title of a journal is property. It incontestably appears that the "Moniteur universel," whether as a daily political and literary sheet, or as an historical collection, has always been known under the simple title of " Moniteur;" and as in ordinary language, so in parliamentary, and even in official phraseology, this single denomination serves almost invariably to designate this journal, even for the periods when it was not the organ of the Government, and was not charged with the publication of official acts; and this fact, which appears by all the documents, is also attested by the "Bibliographie historique et pratique de la presse française," p. 125, in an article devoted to said sheet, of which the editor, Charles Joseph Panckoucke, was the founder; and the plaintiffs, or those through whom they derived title, have not since 1789 discontinued to publish the journal under the denomination which was and is their property. If the word "Moniteur" is within the public domain as a generic expression, it nevertheless constitutes, for those persons who have adopted it to denominate their publication, a right of exclusive application. If the word has figured in the titles of certain journals which have ceased to appear, and figures still in those of a great number of others which have made themselves the organs of special professional or local