INN

RIGHTS ANALOGOUS TO THOSE OF TRADE-MARKS. 401

similar to the old one, but the identical business; and the court coming to the conclusion that such was the defendant's intention, granted an injunction, although the defendant's name was John, and the style was genuine. — In Howe v. Searing, Moncrieff, J., took the ground, in his dissenting opinion, that the words "Howe's Bakery" were nothing but a trade-mark, and as such passed by the assignment and transfer of the good-will, and, if not the thing itself, it was an integral part of it.. He was unquestionably in error in the use of the term trade-mark, and in his conclusion of law he is without the support of authorities.

§ 527. In the Tribunal of Commerce of Paris, in 1857 (Bautain v. Mercklein 1), it appeared that Bautain and wife had sold to Mercklein and wife their establishment as opticians. Among other conditions, it had been stipulated that the defendants, as successors, might avail themselves of the name of Bautain ast found convenient; but the Bautains reserved the right to continue to carry on another place of business which they had established in another street from that of their former place. The defendants used as a commercial designation the formula,Maison Bautain, Bautain Opticien, without the addition of the words Mercklein, successeur, whereupon the plaintiffs brought suit for damages for violation of contract in making a false representation. It was held, in the first instance, that the defendants had obtained the right to use the name of Bautain on their signs, cards, &c., and the case was dismissed, plaintiffs to pay the costs. The plaintiffs appealed. The judgment below was reversed, on the ground that it was only in the quality of successors in business that the respondents had the right to use the name of Bautain; but as no appreciable injury had resulted to the appellants, no damages were allowed. To suppress the evil for the future, the court forbid the respondents Mercklein to inscribe the name of Bautain on their invoices, addresses, and signs, otherwise than as successors of the said Bautain and

1 Annales de la Prop., tome iii. p. 207.

wife, that quality to be expressly mentioned in conjunction with the name of Mercklein. The respondents were adjudged to pay the costs of the trial and the appeal. — In the Tribunal of Commerce of Marseilles, in 1861 (Laurens v. Laurens 1), it appeared that the plaintiff, Gustave Laurens, had, ever since 1836, carried on the pharmacy founded by his uncle, Joseph Laurens, in 1814, with this sign: "PHARMACIE LAURENS." The plaintiff signed his name as "G. Laurens," and so was generally known. His cousin, the defendant, Paul Gustave Laurens, established a pharmacy in the vicinity of that of the plaintiff, and had for his sign " G. Laurens." The court ordered that the defendant should qualify his designation, suppressing the name of "Gustave." In the Court of Bourdeaux, in 1865 (Caminade & Co. v. Caminade 2), it was held, that although in case of similarity in the names of two merchants, in the same line of business, the later comer is not obliged to suppress the name of his firm on his marks and labels, nevertheless he can be adjudged as an instance of good-faith to add his distinctive designation. The defendant had announced in circulars that he had founded at Cognac a mercantile house, under the name of Ad. Caminade, for the purchase and sale of Cognac brandies. It was shown by him that, in his correspondence with his agents, he had notified them not to confound his house, just commenced, and the ancient house of Caminade, with which he had no connection, of either kinship or interest. Good-faith was shown. The court held that every person has a perfect right to use his patronymic, in commerce as in any thing else, subject, however, to the condition of being distinguished as much as possible from any other in the same trade. It was ordered, that the defendant's full name appear, thus: Adrien Caminade. This was affirmed on appeal, the defendant spontaneously agreeing to add to his labels, &c., the words "Maison fondée en 1864," so as to prevent any possible confusion. So, also, in the Tribunal of Commerce of the Seine, in 1857 (case of Pinaud & Amour

1 Annales de la Prop., tome viii. p. 221.

2 Ibid., tome xiii. p. 268.

v. Pineau 1), where the names, although differently spelled, were idem sonans. It appeared that the plaintiffs had carried on a hat-store, founded twenty-five years before at No. 87 Richelieu Street, in Paris, by Juste Pinaud; and that the defendant quitted another street formerly occupied by him, and established a hat-store at No. 91 Richelieu Street. It was charged that he did this to profit by the similitude of name to draw away the custom of the plaintiffs. The defendant contended that he had a perfect right to remove into the street mentioned, and that the difference in the spelling of the two names was quite sufficient to avoid confusion; and, as a subsidiary precaution, he offered to prefix his baptismal name of René. PER CUR.: Whereas Pinaud & Amour are proprietors of a hat establishment in Paris, in Richelieu Street, 87, and known for twentyfive years under the name of " MAISON PINAUD;" and whereas Pineau, a hatter previously of the street Fossés-Montmartre, has recently established himself at No. 91 of the aforesaid street, and, with the intention of profiting by the similarity of names, he has placed over his store "MAISON PINEAU;" and whereas he employs for the lining of his hats an escutcheon which is a servile imitation of that adopted by Pinaud & Amour, all of which has been done to divert to himself the custom of the old house of Pinaud; now, although he has an incontestable right to establish himself under his true name, and to place that name upon his place of business, yet he must be interdicted from unlawful competition; and measures must be taken to prevent confusion in the mind of the public between the two houses. Ordered, that the defendant suppress the word Maison, which in the usages of commerce indicate an establishment of ancient date and reputation; also, that he change the escutcheons chosen by him and placed on the lining of his hats; and, finally, that the name of Pineau shall be preceded by the prenomen René, and that these two names shall be placed over both fronts of his store, and on his invoices and

1 Annales de la Prop., tome iv. p. 86.

letters of commerce, on the same line, and in the same characters. This judgment was to be inserted in two newspapers selected by the plaintiffs, the defendant to pay costs of advertisement and suit. The defendant accepted the condemnation, but he executed it in a tardy manner, and in a way indicative of bad faith. He placed his name, René Pineau, on his principal sign; but on the glass of his entrance-door he left the sole name of Pineau. Besides that, his shop having two fronts, the one on Richelieu Street and the other on Saint-Marc Street, he had placed his surname on one street, and his baptismal name on the other, so that passengers on Richelieu Street, who were more numerous than those on Saint-Marc Street, would see but the name of Pineau. He was again brought into court. For his reprehensible subterfuge in attempting to continue his unfair competition to the damage of the plaintiffs, he was condemned to pay them 2,000 francs, and the costs. In the same court, in 1858 (case of Bonnet et als. v. Henry Delisle1), it appeared that the sign of the Maison Delisle belonged for a long time to a house of commerce, to which name the founders and their successors the plaintiffs attached a very great importance. The defendant, whose place of business was not in the same street with that of the plaintiffs, used the same designation of "Maison Delisle," without any thing to distinguish his establishment from that of the plaintiffs. Ordered, that for the future the defendant cease to designate his place of business under the simple denomination of "Maison Delisle;" and that he the costs. pay And in the same court, in 1857 (case of Chevet v. Lemasson 2), it was held that when members of the same family, or merchants bearing the same name, have created rival establishments, the proprietor of the most ancient has the right to preserve the qualification of Maison, or Ancienne Maison, and in case of possible confusion, the junior should be compelled to add his quality of successor on his signs and prospectuses. In the Court of Paris, in 1858 (case of Ter1 Annales de la Prop., tome iv. p. 301.

2 Ibid., tome iv. p. 330.

naux v. Bournhonet1), it was held that the successor, however far removed, of a house of commerce, has a right to put on his bills and signs the name under which his house was founded.

§ 528. Courts of equity will protect a party in the use of a sign of an inn, hotel, or other place of business, where the sign or the name is simulated so as to deceive, or be calculated to deceive customers. The adjudged cases proceed solely on the ground of a valuable interest acquired in the good-will of the trade or business. At the foundation of the principle is the idea of falsehood. If a man create a reputation for his business, it is as the keeper of some particular house at a known location, and it is piracy to draw off the custom of his friends or customers who have identified him with the name of his house. It is a personal right. By giving a particular name to a building, as a sign of the hotel business, a tenant does not thereby make the name a fixture to the building, and the property of the landlord upon the expiration of the lease, as was decided by the Supreme Court of California, in Woodward v. Lazar.2 One may consent to the employment of his name to designate a place of refreshment; but if such consent be purely gratuitous, or unless there is some valid agreement binding upon the party who gives his consent, he may withdraw it at pleasure, and its further use will be enjoined, as in McCardel v. Peck. And a court of equity will protect by injunction the name of an enterprise undertaken for the amusement of the public, as in Christy v. Murphy. Even although one's place be designated by two names indiscriminately, a colorable imitation of the title will be enjoined.5

§ 529. In France this protection is frequently granted. In the Tribunal of Commerce of the Seine, in 1857 (case of Dorvault v. Hureaux), the plaintiffs had for about twenty-five

1 Annales de la Prop., tome iv.

2 21 Cal. 448.

4 12 How. Pr. R. 77.

p. 331.

3 28 How. Pr. R. 120.

5 Howard v. Henriques, 3 Sand. S. C. 725.

6 Annales de la Prop., tome iv. p. 125.