flowers of opopanax. The plaintiffs, and their chemists, swore that the said opopanax was used in the preparation, distillation, and manufacture of said perfume, and that the perfume was made from it. Several perfumers also made affidavits that it was not possible for any perfumer to tell the ingredients of the plaintiffs' perfume. Under this contradictory state of evidence, the rule was not available to the defendant. The injunction was restored with costs from defendant. The fact that a § 494. Fictitious Name of Manufacturer. trade-mark bears a fictitious name as the name of the manufacturer does not affect the owner's right to protection, where it is shown that it is not used with any fraudulent intent, and does not in fact deceive the public. This point is illustrated by the case of Dale v. Smithson, where Thomas Nelson Dale was adjudged to have a lawful right to the exclusive use of the following: "Courtria Flax, Thomas Nelson & Co. Warranted, Fast Colors and 16 oz." The defendants, who had closely imitated the plaintiffs' label (which strictly speaking is not a trade-mark), contended that the plaintiffs could not acquire an exclusive right to the use of said label, because it did not indicate the true origin or ownership of the thread to which it was affixed, the name of Thomas Nelson & Co. being that of a fictitious firm; and that as the plaintiffs were thus practising a deception upon the public, by passing off the thread as being manufactured by persons who had no real existence, a court of equity should not interfere to protect them in their fraud. § 495. The court, by Hilton, J., said in reply, that "the label is manifestly one not intended to delude the public, by making any representations or asserting any thing in respect to its qualities or properties, which are untrue; therefore, it cannot be said that, in protecting the plaintiffs in its use, we are assisting in the perpetration of a fraud. It is not contended that the thread to which this label is affixed is an article without merit; 1 12 Abb. Pr. R. 237. . while, on the contrary, the testimony at the trial fully establishred the fact that by its excellence it had acquired a valuable celebrity among dealers, and, besides, has become well-known as the thread of the plaintiffs. . . . The use of the name was not with any fraudulent intent, but, as is stated by Mr. Dale, it arose from the fact that his Christian name is Thomas Nelson, and it is quite obvious that it was used for purposes of identification, and with about the same object as if, instead, he had adopted some familiar emblem, figure, or picture, by which the thread might be designated, and become generally known in the market. The public is not in fact deceived, as it is shown that no such firm exists as Thomas Nelson & Co., who are known to be manufacturers of thread; and the label does not pretend to hold out that any particular manner of manufacturing the thread is followed by which this pretended firm are enabled to furnish a better quality than any one else. Apart from the use of this fictitious firm name, it is not claimed that the label is false in any other respect; and, under the circumstances shown in this case, 1 think it would be a gross injustice to deny the plaintiffs protection in the use of a trademark to which their title has been so clearly established." This is the doctrine held by the court in Stewart v. Smithson,2 in the New York Common Pleas Court, in banc. After issue. joined, the defendants move to amend their answer by adding the following allegations: "And the defendants, on information and belief, state that the mark claimed by the plaintiffs, and set out in the third section of the complaint, viz., Hall & Moody's patent thread, Barnsley,' was and is a false and fraudulent mark, used by the plaintiffs to deceive and defraud, and that the thread containing said mark, sold or kept for sale by the plaintiffs, was not and is not patent, and that no patent for. said thread has ever existed; nor was said thread manufactured by Hall & Moody, nor by any person or persons their as 1 This term is improperly used here. See definition of "trade-mark signees or successors, nor was said thread manufactured at, or brought from, Barnsley, all which the plaintiffs well knew." There was also another proposed amendment, involving the same point. The motion was denied, upon the ground that the proposed amendments contained no defence. The defendants appealed. The court, by Brady, J., said that " The mere fact that names used on a trade-mark are fictitious would not authorize the use of it by strangers. The question to be determined in these cases is, whether the mark used by the party claiming the protection of the court is owned by him, without regard to its form, which such party has a right to design according to his judgment or his fancy. If the defendants had alleged that the firm names used on the marks never existed, that would, for the reason stated, furnish no justification for their use of it, and it would not have presented a defence in this action. They have not done so, however, nor have they alleged that firms whose names do appear on the mark did exist, and that the use of their names by the plaintiffs was wholly unauthorized. If they had alleged this, then, in the application of the maxim, potior est conditio defendentis, the courts might relieve them from any disturbance by the plaintiffs." § 496. No Defence that Spurious Article is equal to Genuine. It is no defence to a suit for assuming a trade-mark, that the simulated article is equal in quality to the genuine.1 Upon this point the following distinctions are made: If a druggist prepare a certain kind of medicine, and designate it by the name of a superior medicine, invented, prepared, and sold by the plaintiff, and sells it as and for the medicine prepared by the plaintiff, the plaintiff may maintain an action against him, without proof of special damage. But where certain medicines are designated by the name of the inventor, as a generic term, descriptive of a kind or class, the inventor is not entitled to the exclusive right of compounding or vending them, unless he have 1 Coats v. Holbrook, 2 Sandf. Ch. 586; Partridge v. Menck, ibid. 622; Taylor v. Carpenter, 11 Paige, 292. obtained a patent therefor; and if another person prepare such medicines of an inferior quality, and by this means all medicines of this class be brought into disrepute, such inventor can maintain no action for any loss sustained by him in consequence thereof, unless they are sold as and for medicines prepared by him. Moreover, it is no defence that the marks of the spurious goods, or the jobber who sells them to the retailers, inform those who purchase that the article is spurious or an imitation.2 § 497. Laches. So if a plaintiff lie by for a long time before filing his bill for an injunction, the while being aware of the encroachment, that exhibition of laches will be deemed equivalent to a want of good faith. The case of Beard v. Turner,3 before Vice-Chancellor Wood, in 1866, affords such an instance. There, it seems, the plaintiff for two years before filing his bill saw done the identical thing of which he complained. The court said: "But suppose you wish to profit by the act of which you say you have a right to complain, and shall at some future period complain of, then I apprehend this court will say, You must come here at once, for this reason, that you ask in your bill for an account of the profits made by this gentleman upon the sale of these goods. The plaintiff may say: 'It may answer my purpose to let the defendant go on selling four or five years, and then at the end of that time to say he is my salesman, and I come for an account of profits.' I know of no instance in which the court has given relief with reference to a trade-mark except on a prompt application. By not complaining at the time when you might complain (I do not say that it is your intention: we must judge of the intention by the necessary result), you are lying by, the man continuing to use your property, with the hope (and such is the prayer in your bill filed two or three years afterward) of obtaining those profits which you stood by allowing him to make under this I Thomson v. Winchester, 19 Pick. 214. 8 13 L. T. R. (N.s.) 747. designation, without apprising him of your intention to make any such use of it. On that ground it falls within the principle enunciated, . . . in which it is stated that it is a fraud to allow a plaintiff to avail himself of delay to obtain benefit for himself. In that case you will not grant him relief. You will assume, when he allows another wrongfully to use that which, in the plaintiff's judgment, would facilitate a rival in trade, that being so, unless you come quickly, you must make a rival in trade your agent, for the purpose of carrying on that business, and for the purpose of getting an account at the end of four years. . . . It appears to me, therefore, that if I had come to a different conclusion, it might have affected the question of costs, although it would not have affected the question of relief. I could not give a person an opportunity of lying by, and then asking for an account of the profits made by an injury committed." In Harrison v. Taylor, in 1865, the ViceChancellor refused an account of profits, on the ground of the plaintiff's delay before commencing suit, although the defendant had persevered in the use of the mark after having been cautioned. — In The Amoskeag Manufacturing Co. v. Garner,2 before Barnard, J., at special term, in 1869, a delay of nine years in applying for an injunction to restrain the violation of a trade-mark, was held good cause for refusing relief. The plaintiff alleged that the defendants wrongfully used a trademark belonging to the plaintiff and used to stamp cotton cloths. The judge said that the plaintiff had by silence consented to, if it did not encourage, the defendants in the use of the mark in question upon their labels, introducing these prints to the trade generally throughout the country. That, under these circumstances, to deprive the defendants of the use of these labels would work to them great and irreparable injury, wrong, and hardship, and at the same time give to the plaintiff a dishonest and unconscientious advantage as the fruits of the plaintiff's own wrong and negligence. The rule is that the 11 Jur. (N.s.) 408. 255 Barb. 151. |