years used as a sign, and upon their labels, circulars, and prospectuses, the words "PHARMACIE CENTRALE DE FRANCE." The defendants had as their sign the words "PHARMACIE RATIONELLE," but added thereto the words "CENTRALE DE FRANCE." This fact was recognized by the court as an attempt to create confusion between the two establishments, and the defendants were prohibited from the further use of the latter-mentioned words, as was also done in a case between the same plaintiff and Teissier & Co., the year following. In the same court, in 1858, came up the case of Schorthose v. Hogg,2 two Englishmen, cousins-german and pharmacists, and former fellow-students in the office of one Robert. The plaintiff, as successor in business of Mr. Robert, claimed the designation of "LONDON DISPENSARY," under which his pharmacy was known, and also the title of "PHARMACIE DE L'AMBASSADE D'ANGLETERRE." The defendant pretended to have certain rights in Robert's pharmacy, and accordingly used similar names and titles at his store in another street from that in which the plaintiff's was situated. When summoned before the court, for encroachment upon the plaintiff's rights in that respect, the defendant disclaimed all right to the said name and title; but subsequently he took the designations of "LONDON DISPENSARY," and of" ENGLISH EMBASSY CHEMIST." This was held to be an infringement, and defendant was forbidden to further use those titles to designate his place of business, and condemned to pay 500 francs damages, and the costs. In the same court, in 1859 (case of Lemercier v. Millin 3), it was shown that Claude Bully had given his name to an aromatic toilet-vinegar, of which he had transmitted the recipe to Jean-Vincent Bully. The plaintiffs had purchased from the latter his business and the sign of the inventor. The defendant made and sold a toilet-vinegar under the name of "Bully," with the sign "AU TEMPLE DE FLORE." Judgment for plaintiffs. In the court of Paris, in 1862 (case of Muller v. Compagnie immobilière1), 2 Ibid., p. 255. 1 Annales de la Prop., tome iv. p. 298. 4 Ibid., tome viii. p. 265. it appeared that the plaintiff had for more than fifteen years carried on a hotel known as the "HÔTEL DE LA PAIX," situate at the angle of the street de la Paix and the boulevard of the Capucines. The defendants built a hotel on the same boulevard, and gave it the same name as the plaintiff's. The court below the Tribunal of Commerce of the Seine-had declined to completely suppress the name thus assumed by the defendants, but accepted their offer to adjoin the word "Grand," and ordered that their sign be altered within the period of two months, so that in letters all of the same size-it should read "GRAND HOTEL DE LA PAIX." On appeal, it was held that the words "HÔTEL DE LA PAIX" were indicative and characteristic of the hotel owned by Muller, and that those words could not be employed by others in the same business without violating his rights. A few weeks later, the same parties were again before the court. Muller complained that, notwithstanding the judgment in his favor, the defendants continued to announce in the newspapers their hotel under the interdicted name; and that the napkins and towels for table and toilet, the bills of fare, &c., of the new hotel were thus marked; and the letters" H. P.” an abridgement of the sign were engraved upon the glass-ware, the bottles, and the plate. The defendants replied that the initials "H. P.," and even the words "Hôtel de la Paix " on the linen, all used in the interior of the establishment, could not prejudice the plaintiff, especially the use of the letters "H. P.," which had no precise sense. They also alleged that the interior arrangements had all been ordered and executed long before the first suit, and argued that the order of the court would not admit of such stringent interpretation as to prevent even the temporary use of the articles mentioned. Held, that the letters " H. P." on the porcelain, glass, vessels, silver, cutlery, and divers utensils placed at the disposition of guests, for a purely internal purpose, did not in contemplation of law prejudice the plaintiff. But, although the defendants acted without a fraudulent intent, the use of the words "Hôtel de la Paix " was a damage to the plaintiff. They were accordingly forbidden to let those words appear on objects either on the exterior or in the interior of their new hotel. But in consideration of all the circumstances, and the hardship that would result from instant suppression, the court granted a delay of six months for the removal of the words "de la Paix" from the linen and furnishing-articles; and allowed the plaintiff his costs. § 530. Partnership dissolved. Upon a dissolution of partnership, each of the partners has a right, in the absence of a stipulation to the contrary, to use the name and style of a partnership firm. The principles of this case are very plain and simple, and are well-settled by authority. The name or style of the firm "Banks & Co." was an asset of the partnership; and if the whole concern, and the whole good-will had been sold, this was a trade-mark or asset which might have been sold with it. But if the partners chose to divide the partnership assets, each is at liberty to use the trade-mark just as much as before. Held, that both are entitled to use the style or firm of " Banks & Co." $531. Representations contained on the blinds and brasses of a shop-front, calculated to induce the public to believe that the owner is connected in business with a firm of established reputation, will be considered upon the same principles as govern rights in trade-marks. In Glenny v. Smith, it appeared that the defendant had been employed by the plaintiffs for three years in their shop, up to April, 1865, and that in May of that year he set up in a like business for himself. The defendant's name, Frank P. Smith, was posted immediately over his shopwindow, in black letters upon a white ground, while upon the sun-blind and brass-plate under the window were the words "From Thresher & Glenny," the word "from" being printed diagonally to, and in smaller letters than, the rest. On the part 1 Banks v. Gibson, 11 Jur. (N.s.) 680. of the plaintiffs, the sun-blind and brass-plate were produced in court, and photographs of the shop-front, from which it appeared that when the sun-blind was drawn down the defendant's name was not visible, except to persons passing immediately under the window. They also proved four cases in which persons had actually been misled; and to show that the defendant had some misgivings as to the propriety of his conduct, a conversation between him and one of the plaintiff's assistants was given in evidence. The evidence of the defendant consisted of opinions of persons who had inspected his shop, to the effect that the public were not likely to be misled, and of his directions that nothing should be said to purchasers to induce them to think that Messrs. Thresher & Glenny were connected with his business. § 532. Held, by Kindersley, V. C.: The same rule that applies in the case of manufacturers applies also to tradesmen by retail. A man having been in the employment of a firm of reputation, has a right, in setting up in business for himself, in any way in which he thinks fit (subject to the restrictions of the rule laid down in the Leather Cloth Co. case, and in Perry v. Truefitt), to inform the public that he has been in such employment; and in that way he does appropriate to himself some of the benefit arising from the reputation of his former employers. This makes it the more necessary that he should not act in such a way as to mislead the public to the detriment of his former employers. For the purposes of the plaintiff's right to relief, the intention of the defendant is of no consequence it is enough if, without any unfair intention, he has done that which is calculated to mislead. § 533. After commenting upon the nature of the evidence on each side, his Honor continued: That it was in vain for witnesses to say on defendant's part, that, in their opinion, persons could not be misled. When a person goes to try the effect of his own inspection, he knows what he will find, and is prepared to look for the word "from;" but the general public are off their guard when they pass the shop. But further than this, it is not the question whether the public generally, or even a majority of them, are likely to be misled, but whether the unwary, the heedless, the incautious portion of the public would be likely to be misled. The injunction prayed for was accordingly granted. § 534. In the Tribunal of Commerce of the Seine, in 1867 (Mondin & Co. v. Sari et als.1), it appeared that the plaintiffs had adopted as a sign to indicate the nature of their business the words" AGENCE DES THEATRES." It was held that another in the same line of business, who had adopted as his sign the words "OFFICE DES THEATRES," did not infringe upon any right, the words being generic and common. It was no answer that the words might lead to confusion. § 535. It is unfair competition to indicate by one's sign an industrial product under a name very similar to that of another product, in such manner as to create confusion. In the case of Berthelon v. Vergé,2 in the Tribunal Civ. of Lyons, in 1865, it appeared that the plaintiff was the patentee of an invention to which he had given the name of "CONFORMATEUR DU TAILLEUR." From the name, we may infer that the invention was embodied in an instrument for the shaping of garments to the person. Under this denomination, the machine was indicated in the sign, and in the prospectuses of the plaintiff. The defendant, also a patentee, with the evident intention of causing confusion between his machine and that of the plaintiff, placed upon his sign the words "CONFORMATEUR POUR HOMMES ET DAMES," in characters corresponding with those upon his rival's sign. Per Tribunal: This act on the part of Vergé does not constitute a counterfeiting or a usurpation of the trade-mark of the plaintiff, but it is an unlawful competition, and therefore the word "CONFORMATEUR" upon the business-sign of the defendant must be suppressed, as also upon his circulars and prospectuses. 1 Annales de la Prop., tome xiv. 352. 2 Ibid., tome xi. p. 349. |