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§ 426. Curtis v. Bryan1 is a case where the defendant simulated the label of the plaintiffs, adopted a stamp similar to the plaintiffs', and fraudulently sold the article under the name of the original inventor, as Mrs. Winslow's Soothing Syrup. The plaintiffs' preparation had been in public use for nearly twenty-five years, and had an established and very valuable reputation. The name of Mrs. Winslow may be said to have lost its primary signification, and to have become a mere emblem, as in the case of the use of the historic name of "Roger Williams."2 The equity was clearly with the plaintiffs, and the defendant had, by unfair and dishonorable practices, sought to avail himself of, and turn to his own account, the labor and the expense which the plaintiffs had borne for years to bring their article into favorable notice and general use. He would have the public believe that the article he was selling was the plaintiffs'. It mattered not, so far as the principles of justice were concerned, whether the name did constitute a fancy denomination or not; for the general statute of the State embraced all cases of the kind, -the imitation of labels, stamps, &c., and the controversy before the court did not need any nice distinction in terms. We will continue the search.

§ 427. In Jurgensen v. Alexander3 it appeared that for twenty years previously to the suit the plaintiff was a manufacturer and vendor of watches in Switzerland and Copenhagen. It was found by the courts that the trade-mark used by the plaintiff for the purpose of distinguishing and designating the watches. manufactured by him was "JULES JURGENSEN, COPENHAGEN," and that said trade-mark was so used and employed by him on all such watches so manufactured, or sold, by him, being inscribed on the cap or inside back of each watch; and that in the faith and credit of the said mark, the watches were bought, sold, and dealt in, and had acquired a wide-spread reputation and extensive sale. It was also found that the defendant, a dealer

1 2 Daly, 212, and 36 How. Pr. R. 33.
2 Barrows v. Knight, 6 R. I. 434.

3 24 How. Pr. R. 269.

in watches and other merchandise, had exposed for sale four watches purporting to be manufactured by the plaintiff, and bearing the mark "Jules Jurgensen, Copenhagen," which mark thereon was false, simulated, and spurious. We are not told whether the said words were inscribed in any peculiar manner, or in any uncommon characters. It was a clear case of fraud, whether those words constituted a common-law trademark or not. That case therefore does not assist in the elucidation of the point under consideration. Nor does that of Byass v. Sullivan, where the plaintiff averred that the defendants unlawfully copied and used his trade-mark or label on bottled porter, viz.: "Best Stout Porter, from R. B. Byass, London," with a fac-simile of his signature underwritten; for that copy of a signature itself was a good trade-mark. In Clark v. Clark,2 it was held that a party will not be restrained by injunction from using his own name, unless the use by him be accompanied by circumstances indicating an intention to mislead the public. In Ames v. King, the answer denied that the plaintiffs had the sole right to use the word "Ames" upon shovels, and denied that the defendants ever stamped or marked any shovels with the name Ames" with intent to imitate the plaintiffs' shovels or their mark, or to represent the same to be the manufacture of the plaintiffs, or to injure, defraud, or deceive the public or the plaintiffs; but admitted that he had stamped two hundred dozen shovels for a dealer whose name was Edward B. Ames, and at his request had stamped the same " Ames," but not "O. Ames," and solely to denote that they were sold, or kept for sale, by Edward B. Ames. This alleged infringement was brought before the court under the Massachusetts statute of 1852, entitled "An Act further to protect trade-marks." That statute conferred upon the court the power to restrain by injunction the fraudulent use of trade-marks, and other similar devices, employed

1 21 How. Pr. R. 50.

8 2 Gray, 379.

66

2 25 Barb. 76.

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"for the purpose of falsely representing any article to be manufactured by" a person or firm who did not in fact make it. In the case at bar, the bill stated a case clearly within the statute above cited. But the essential averments in the bill, of a fraudulent use of the plaintiffs' name by the defendant, for the purpose of falsely representing articles to have been made by them which were in fact manufactured by the defendant, are particularly and fully traversed by the answer. Bill dismissed. This not being a case falling within the principles of the common law, but resting upon a local statute, cannot avail us in our present investigation.

§ 428. Rodgers v. Nowill1 is frequently misquoted. The facts of that case are short and simple. The defendants, manufacturers of cutlery at Sheffield, received an order from the Messrs. Lord & Son for a quantity of pen-knives and pocketknives, to be stamped or marked with the letters V. R., with a crown between them, and the words "J. Rodgers & Sons, Sheffield," underneath. They accordingly made and marked the knives as ordered. The knives, when made, were, it is said, received by the defendants, accompanied by a bill of parcels describing them as purchased from John Rodgers & Sons. The plaintiffs brought their action; and, having proved the order for knives so marked as to resemble and pass for their manufacture, and its execution by the defendants in the manner stated, the case went to the jury. It was found that the defendants had adopted the plaintiffs' mark. We perceive that the in-. fringement covered the whole of the mark, and not alone the names of the plaintiffs.

§ 429. The case of Morison v. Salmon,2 in the Court of Common Pleas, in England, in 1841, appears at the first glance to throw light upon this question, but, in reality, it does not. The declaration, after stating that the plaintiffs prepared, and sold, for profit, a certain medicine called "Morison's Universal Medi

1 5 Man., Gr. & Sc. 109; 11 Jur. 1039; 17 L. J., C. P. 52.

2 2 Scott, N. R. 449; 2 Man. & G. 385.

cine," which they were accustomed to sell in boxes wrapped up in paper, which had those words printed thereon, alleged that the defendant, intending to injure the plaintiffs in the sale of their said medicines, deceitfully and fraudulently prepared medicines in imitation of the medicines so prepared by the plaintiffs, and wrapped up the same in paper, with the words "Morison's Universal Medicine" printed thereon, in order to denote that such medicine was the genuine medicine prepared and sold by the plaintiffs, &c. Held, on a motion to arrest the judgment, that the declaration disclosed a sufficient cause of action. Looking at this as a trade-mark case, where do we locate the essence of the commercial symbol? It does not reside in the generic term "medicine," for that is common property, free to all who use the language; nor is it in the name of the plaintiffs, for any one else bearing the same surname had the same right to stamp it upon the same unpatented, articles of merchandise. How could we hesitate to fix upon the word "universal" as the talisman! That word is used here as an arbitrary symbol, or fancy denomination. It does not pretend to intimate that the medicine to which it is affixed is universal; for then it would be obnoxious to the charge of quackery, and even though it might not deceive the most credulous, it would meet the fate of the marks in Heath v. Wright and Fowle v. Spear.2

§ 430. In Holloway v. Holloway, in the Rolls Court in England, in 1850, the plaintiff, Thomas Holloway, complained that his brother, the defendant, Henry Holloway, had commenced selling pills and ointment at 210 Strand, under the description of "H. Holloway's Pills and Ointment." The pill-boxes and pots were similar in form to, and the labels and wrappers were copied from those used by the plaintiff, whose place of business was at 244 Strand. The plaintiff prayed an injunction to restrain the defendant from selling any pills or ointment

13 Wall. Jr. 141.
3 13 Beav. 209.

27 Penn. L. J. 176.

described as, or purporting to be, "Holloway's Ointment," or "H. Holloway's Pills," or " H. Holloway's Ointment," in boxes or pots having labels so contrived or expressed, as by colorable imitation or otherwise to represent the pills or ointment sold by the defendant to be the same pills or ointment as were sold by the plaintiff.

§ 431. THE MASTER OF THE ROLLS (without hearing a reply). "This case, upon the evidence before me, is perfectly clear. The defendant's name being Holloway, he has a right to constitute himself a vendor of Holloway's pills and ointment; and I do not intend to say any thing tending to abridge any such right. But he has no right to do so with such additions to his own name as to deceive the public, and make them believe that he is selling the plaintiff's pills and ointment."

§ 432. In Burgess v. Burgess,1 in the English High Court of Chancery, in 1853, it appeared that, for upward of forty years prior to 1800, John Burgess, the father of William R. Burgess, the plaintiff, carried on business on his own account as an Italian warehouseman at No. .107 Strand, London. In 1800, the plaintiff was taken into partnership by his father, and from that time until 1820, when the father died, they continued the partnership business under the style or firm of "John Burgess & Son." The son, as sole executor and residuary-legatèe, succeeded to the business, and continued it on his own account, but under the same style of "John Burgess & Son," and on the same premises at No. 107 Strand. Amongst the articles in which the firm originally, and afterward the plaintiff, had been in the habit of dealing, was a fish-sauce called "Essence of Anchovies," which had been originally manufactured by John Burgess, the father of the plaintiff, about forty years prior to 1800, and ever since sold by the firm under the name of "Burgess' Essence of Anchovies." The defendant, William Harding Burgess, the son of the plaintiff, after being for many years employed, at a salary, by his father

1 17 Jur. 292; 22 L. J. Chanc. 675.

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