in his business at the said place, upon the occasion of a disagreement left his father's service, and commenced trading on his own account, at No. 36 King William Street, same city. He caused to be placed over his shop-front the words, "W. H. BURGESS, late of 107 Strand," and on each side of the door of his shop fixed a metal-plate, with the words, "Burgess' FishSauce Warehouse, late of 107 Strand." The bill complained also that the defendant was selling a fish-sauce purporting to be "Burgess' Essence of Anchovies," but at a lower price than that of the article sold by the plaintiff under the same description or title, and that such sauce was offered for sale by the defendant in bottles similar in size and shape to the bottles used by the plaintiff, accompanied with labels, wrappers, and catalogues bearing a general resemblance to those used by the plaintiff in the sale of his essence of anchovies; and in particular, that upon such labels, wrappers, and catalogues he used the title "Burgess' Essence of Anchovies," under which the article sold by the plaintiff was well known, and had long enjoyed a great celebrity in the market. It was alleged also that the said words had been used by the defendant with the fraudulent object of deceiving the public, and leading purchasers to believe that they were purchasing the plaintiff's article. Vice-Chancellor Kindersley ordered an injunction restraining the defendant from using the words "late of 107 Strand," and "Burgess' Fish-Sauce Warehouse, late of 107 Strand," but refused to restrain him from using the words "Burgess' Essence of Anchovies." The decision of the ViceChancellor was affirmed on appeal. § 433. This is so manifestly an instance of unfair competition in trade, and not a trade-mark case, that remark were supererogatory, unless to cite it as an additional illustration of the doctrine that a man's name cannot be transmuted into a technical trade-mark. § 434. In the Court of Paris, in 1863 (Massez v. Joly1), 1 Annales de la Prop., tome x. p. 318; 11 Beav. 112; 11 Jur. (N.s.) 513. the plaintiff, a shoemaker, had for a mark the name of "JOLY," surrounded by an oval. The defendant, Joly, used his own name in the same manner and with the same object. The court ordered that the defendant should modify his mark, either by joining his Christian name, or by omitting the oval form, so as to prevent a confusion in the mind of the public. The oval constituted the essence of the symbol. In the Leather Co. case, in the House of Lords, in 1865, both parties made conspicuous use of the surname "Crockett," being that of the inventors of a certain process, and yet the court did not entertain the notion that that name could be an essential part of a trade-mark. Nor does the following case sustain any such idea, although sometimes cited in support thereof. § 435. The complainant, Samuel Stonebraker, being engaged in the manufacture of certain medicines and other preparations, adopted and used certain labels to distinguish his preparations from all others. These labels became generally known to the trade and consumers, so that by them the preparations were recognized, distinguished, and bought. The manufacture and sale became a source of profit and emolument to the complainant. Certain persons thereupon fraudulently engaged in the manufacture and sale of medicine and preparations, which they sold, bearing a similar label with only a colorable difference. Two of the defendants had employed in business another, a brother of the complainant, for no other reason than that his name was Stonebraker, and because they believed that by employing a person of that name they could with impunity consummate their intended frauds against the complainant and the public. Pinkney, J., who heard the case, said, that the evidence showed beyond all doubt that the agreement between the parties was but a combination to deceive the public, and to enable the parties to it to obtain for their medicines the benefit of the celebrity which those of the complainant had in the market, at the expense of the com1 Stonebraker v. Stonebraker, 33 Maryland, 252. plainant, and in fraud of his rights. The defendant who had thus loaned his name was himself a medical man, and had a right to compound and vend medicines. His offence was in selling his medicines as those of his brother. The defendants copied the names given by the complainant to his medicines; and on their wrappers and labels the language that he had on his; and, as if to leave no doubt of their fraudulent intent, printed on the wrappers of some of their medicines and preparations the certificates given to the complainant, in recommendation of his medicines, &c., &c. This design became a perfect success, so that experienced druggists were deceived. § 436. The Circuit Court passed a decree perpetually enjoining and restraining defendant Stonebraker and his partners, their agents, and all persons claiming under them, from manufacturing or imitating any of the medicines, &c., which had been known as "Stonebraker's Medicines or Preparations," and from counterfeiting the labels, marks, &c. The Court of Appeals of Maryland affirmed the decree. § 437. A trader is sometimes debarred from using a trademark originated by himself; for by his own direct act, or by operation of law, the title to its use may have been alienated from him. In substance, there is no distinction between the sale of a business and good-will by a trader himself, and a sale by his assignees in bankruptcy. Therefore, on a sale by such assignees, the trader has no right, upon setting up a fresh business, after his discharge, to use the trade-mark of his old business, or in any other way to represent himself as carrying on the identical business which was sold; although he has a right to set up again in business of the same kind next door to his old place of business.1 The principle of this ruling of ViceChancellor James is plain. A trade-mark is frequently an indication of place, and purchasers look rather to the locality than the person. If certain goods are associated with the shop bearing the sign of the Crescent, or the Elephant, or any other 1 Hudson v. Osborne, 39 L. J., Chanc. 79. fanciful emblem, and go forth to the public bearing the stamp of the Crescent, &c., then it is clearly an infringement for any one else in the same line to use the mark. But if the mark be so personal in its character that it is identified with the person, and import that the goods bearing it are manufactured by him, then the rule would be different; for the law will not lend itself to the perpetration of a fraud.1 § 438. The employment by a firm of a name identical with that of an old commercial house is not illicit in itself, and the suppression of the name will not be decreed. But when to the use of this name are added abusive manoeuvres, having for an object to deceive consumers, then it becomes necessary to order that modifications be made in marks and tickets, with the first name of the junior party, and sometimes the date of the formation of the new house. In the case of Louis Roederer & Co. v. Théophile Ræderer,2 in the Court of Paris, in 1865, the plaintiffs, the well-known vintners of Rheims, complained of the defendant's use of the surname of the head of their house to their prejudice. The plaintiffs had adopted a mark called Carte Blanche for their finest champagne-wines. The Tribunal of Commerce of Rheims found for the plaintiffs, and directed that on the labels, corks, brands, tickets, &c., to be used by the defendant's firm, the word Théophile should be placed in letters of the same size, shape, &c., as the name Ræderer. The plaintiffs, thinking the remedy insufficient, appealed, and produced before the appellate court prospectuses which, both before and after the judgment of the court of first instance, had been circulated not only in France, but also in Belgium and in England. The following shows the contents of said prospectuses: "Grand vin de Champagne mousseux. T. ROEDERER & CO., OF RHEIMS, CARTE BLANCHE, qualité unique, francs: 5. Merchants and consumers are requested not to confound this wine with that of a similar house at Rheims, and to sus 1 See Bury v. Bedford, 10 Jur. (N.s.) 503. pect fraudulent imitations. Corresponding depository in Belgium: A. Vernaelde, wine merchant, 29 Ommeganech Street, Antwerp." "LONDON, October 13, 1864. "GENTLEMEN, In remitting herein enclosed the circular of the MESSRS. TH. REDERER & COMPANY, of Rheims, who give us the title of sole agents for the sale. of their CELEBRATED CHAMPAGNE-WINE, we request you to forward to us your orders. "The mark Carte Blanche' of Th. R. & Co. is so well known that there is no need for us to recommend it to you," &c. PER CUR. As to the principal demand tending to the prohibition of the use by the defendants in their firm name, their marks and labels, of the name of Roederer: Considering that Théophile Roederer, having formed with the brothers Bousigue (called Bley) an association under a collective name for the sale of sparkling champagne-wines, had a right to dispose of his name for the profit of the partnership, they consequently had a right to use it, as well in the firm title as in their marks, labels, and advertisements, beyond the reach of power to suppress the same, especially as against Roederer himself, if he has created the house on his own account. As touching the subsidiary conclusions, directing that the name of Théophile Roederer take precedence in the firm or title, marks, and labels: Considering that an association under a collective title may borrow from among themselves that name of any one most suitable for their title, marks, and labels, they are not, however, at liberty to take a sign tending to divert to their own profit the good-will of an old house bearing the same name, one already made popular in the same trade; that this goodwill should be the result of a free and legitimate competition and not of illicit actions, and that it is an illicit action to cause a coincidence of mercantile names to deceive the consumer: Considering that the judges of the first instance have found as a fact that Théophile Roederer's firm has established and organized for the purpose of appropriating, by means of the |