circulated advertisements, stating that the publication under its old title would be continued by him, and that a sixth number of the magazine would be, as it accordingly was, soon afterwards published by him. The defendant at once advertised and published the first number of a periodical work under a title similar to the plaintiff's, but described as a "New Series, Improved." An injunction was applied for, to restrain him from selling any copies of his publication, and from printing or publishing any future or other number, either under the same or any similar appellation, and from borrowing and using the appellation, or copying the ornaments, or any part of the plaintiff's original publication. Several circumstances were alleged by the bill to show that the defendant's work was intended to mislead the public to the conclusion that it was a continuation of the plaintiff's, such as the general resemblance, though not an exact similarity of its title-page or wrapper; the continuation in the new magazine of an article left unfinished by the old; and the publication of an index to the first five numbers of the old work, under the name of an index to the first part. This intention was, however, denied by the answer, which attempted to give a sufficient reason for the steps taken in composing the form and substance of the new magazine, to show that it was not intended to represent it to the public as a continuation of the old work; and the defendant submitted that he had a right to publish a work under a similar title. The court held, that, upon the facts stated, there appeared to be an intention on the part of the defendant to put his work before the world as a continuation of the old magazine. Lord Eldon, in that case, did not rest his decision so much on the ground of copyright, or of contract, as upon that of fraud. He stated the question to be, not whether the work was the same as the original, but whether the defendant had not represented it to be the same, and whether the injury to the complainant was not as great, and the loss accruing to be regarded upon the same principles

between them, as if it were, in fact, the same work. What we may gather from this decision amounts to this: that, by a certain resemblance of form and matter, a publisher may not with impunity put forth to the public a literary work to be taken for another work of an established reputation, and thus fraudulently reap the advantage enjoyed by the original work; and that this advantage in the market corresponds in some measure with the property created by the Copyright Act, and is protected on analogous grounds.

§ 549. A case of a similar character is that of Spottiswoode v. Clarke. There the plaintiff was the owner of a publication called "The Pictorial Almanack, for 1847 ;" and the defendant of one called "Old Moore's Family Pictorial Almanack." The plaintiff alleged that the defendant's work was a piracy on his publication, and filed a bill for an injunction. With regard to the substance and internal portion of the two works, there was little or no resemblance; but the covers were, to a certain extent, similar, both being decorated with a pictorial representation of the Observatory at Greenwich, and in the title, as printed on the cover, making use of nearly the same expressions. The bill alleged that this imitation was intentional, and done with a view to deceive the public, to the injury of the plaintiff. The Lord Chancellor said, among other things: "In the course of argument, cases of trade-marks were referred to; but trade-marks have nothing to do with this case. Take a piece of steel the mark of the manufacturer from whom it comes is the only indication to the eye of the customer of the quality of the article. So it is of blacking, or any other article of manufacture, the particular quality of which is not discernible by the eye. In the present case, if anybody is deceived it is not by the eye; for any thing more different than the two articles in question can hardly be conceived. . Both covers represent a portion of Greenwich Observatory, and profess the work to be for all sorts of persons. It is diffi

1 10 Jur. 1043, and 2 Ph. 154.

cult to believe that all this is accidental; but if it is a fraud, it is the most clumsy fraud that I ever saw, for it could deceive no one." He accordingly dissolved the injunction granted below, the defendant undertaking to keep an account, with liberty to the plaintiff to bring an action. The whole gist of the matter lies in this: If no one could be deceived, the plaintiff suffered no injury; but if a casual observer would probably be misled, then the principle laid down in trade-mark cases would be applicable, and the use of a particular name, title, or wrapper, would be restrained. This case has been cited and followed." 1

§ 550. In Snowden v. Noah,2 the complainant had purchased from the defendant the right to publish at the city of New York a newspaper called "The National Advocate." The defendant subsequently published at said city "The New York National Advocate." Sandford, Ch., held that there was such a difference as to warrant the court in refusing an injunction to restrain the defendant. So, in Bell v. Locke, Walworth, Ch., denied an injunction to restrain the defendant from publishing or circulating a newspaper called the "New Era," which was alleged to be an infringement of the rights of the plaintiff, who published the "Democratic Republican New Era." Besides the difference in titles, the defendant's paper, upon its face, purported to be a revival of an old paper, in which he was formerly interested with the complainant, which paper had been voluntarily discontinued by both for more than eighteen months. In Matsell v. Flanagan, the complaint alleged that the plaintiffs were, and long had been, the publishers and proprietors of the "National Police Gazette," which was commonly known to the public as the "Police Gazette;" and it appeared that it was the only "Police Gazette," eo nomine, published in the United States, at the time of the publication of this paper. It further appeared that the See also Chappell v. Davidson, 1 K.

1 Purser v. Brain, 17 L. J. Ch. 141. & J. 123.

2 Hopkins, Ch. R. 347.

3 8 Paige, 75.

defendants were engaged in publishing and selling a paper called "The United States Police Gazette," which, from its general character and appearance, was a fraudulent simulation of the plaintiffs' paper. The words "Police Gazette," forming a part of the title, were printed in type similar in character to that employed by the plaintiffs for their print, and a similar imitation characterized the general form, style, type, and device of the paper complained of. It was shown that the public were actually misled into purchasing the defendants' paper for that of the plaintiffs; and the more easily as when "The United States Police Gazette" was folded, and lying upon the newspaper stands, as is usual and customary, the words "United States," which made the difference between the titles of the two papers, would be concealed. The manifest fraud in this case distinguishes it in principle from Snowden v. Noah and Bell v. Locke (supra). The injunction was continued. -In Stephens v. De Conto,1 the main question was, whether the name of a newspaper in the Spanish language, called "El Cronista," published by the defendant, was an infringement upon the name "La Cronica." Monell, J., held that there was so manifest a dissimilarity in the general appearance of the two titles, both as respects the formation of the words and the character of the type employed in printing, that no Spaniard could be mistaken. But the case was relieved of all difficulty, as it appeared that the publication of "La Cronica" had ceased. The injunction was dissolved, and the complaint dismissed. In Dayton v. Wilkes, the good-will of a newspaper- that is, the celebrity which it had acquired under the name of "Porter's Spirit of the Times" was fully recognized a valuable property. And in Clement v. Maddick, where an injunction was granted to restrain the defendant from using the name "Bell's Life" for his newspaper, the court characterized the suit as "an application to support a right to property."

1 4 Abb. Pr. R. (N.S.) 47, and 7 Robertson, 343.

2 17 How. Pr. R. 510.

35 Jur. (N.s.) 592.

§ 551. In the Court of Paris, in 1858 (case of Estibal v. PetitDemenge1), an appeal from a judgment forbidding the defendant from using the name of a journal - the " Charivari "— on card-covers for the same, to be used in coffee-houses, lecturerooms, &c., it was held that such use did not constitute a case of illicit competition or infringement. The appellate court said that the gilt advertising-cards of the defendant were but covers for the "Charivari," which could not create confusion in the public mind with the paper itself; and although, in enclosing the "Charivari" in the covers the defendant addressed the readers of the journal, that fact in itself did not make him responsible in damages. The defendant offered to alter his cards so that they should read, " Cover for the Charivari,'" which the court thereupon directed should be done. § 552. In the Tribunal of the Seine, in 1855 (Castille v. Dennery2), it appeared that the plaintiff had published, in 1847, a romance, entitled "LES OISEAUX DE PROIE" (The Birds of Prey). The defendant brought out a drama under the same title, which was thought by Mr. Castille to be an infringement upon the name he had selected. Held: Considering that for a long time the words Oiseaux de Proie have been metaphorically employed to designate certain men; that those men offer types so varied that they are the objects of observations, of studies, and diverse paintings, to each of which the said words are as applicable as to a romance by Castille; and that there is no invention in the title, the demand of the plaintiff must be refused.

§ 553. An author or a publisher has, either in the title of his work, or in the application of his name to that work, or in the particular external marks which distinguish it, just such a species of property as a trader has in his trademark. He may, therefore, equally claim the protection of a court of equity against such a use, or such an imitation of that name or mark as is likely, in the opinion of the court, to 2 Id., tome ii. p. 27.

1 Annales de la Prop., tome iv. p. 334.