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fraud, and the prevention of a mischief that otherwise may prove to be unbearable.” The remedy could not be denied. The error of the judge manifestly consisted but in the loose use of one word for another, those words being in no sense convertible terms. The words were uttered more than twenty years before the first case of the kind had been reached in the highest court in the land, and were uttered in a case which required no definition of species. If there had been any need of a nice discrimination of technical terms, the acute mind of the judge would have seized upon it, and, by using the exact word, would have prevented the possibility of misunderstanding. The objectionable phraseology was this: “ When I compare the original trade-mark of the plaintiffs," &c. The correct word was label, not trade-mark. It must be obvious at a glance to any one, who has acquainted himself with the law and principles of trade-marks, that the single element that could possibly be a trade-mark was the “ ACA” symbol. The three letters were found not to constitute a lawful trade-mark, and were stricken from the injunction. Nothing, thereafter, remained but words in ordinary use, common to all the manufacturing world. But, if this was not a trade-mark case, what was it? Answer: it was a case of unlawful competition in trade, by means of a simulated label.

$ 94. In another place it will be seen that the Patent Office took action upon this question, and decided the three letters “ACA” to be at least a primâ facie trade-mark, from its long user and universal recognition.

$ 95. The case of Howard v. Henriques, in 1851, was decided by five out of six judges of the Superior Court of the city of New York, when that court was composed of as able minds as any in the land. The plaintiff was proprietor of a hotel known as the “ IRVING HOUSE,” or “ IRVING HOTEL,” and which was opened and named by him “ IRVING HOUSE," in 1848. The defendants opened another hotel in the same city, which they named the “ IRVING HOTEL." An injunction was granted, by one of the justices of the court, restraining the defendants from using the name thus taken by them. A motion was made to dissolve this injunction. Observe, the plaintiff's house, although originally designated by him as the Irving House, very soon became generally known also as the Irving Hotel, and was designated by both names indiscriminately for more than a year before the defendants opened their hotel. All these facts appear in the opinion of the court, delivered by Mr. Justice Campbell. It was urged by the defendants' counsel, first, that the plaintiff had not appropriated the name, because no such name appeared on the external walls of his house ; and, second, even if it did so appear, the name was not the subject of appropriation, as applied to a hotel ; that the principle upon which trade-marks and other similar rights had been protected, was applicable alone to personal property, to manufactured articles, to such things as were necessarily movable, and in reference to which frauds could be practised without being easily detected, or, at all events, frauds could be practised operating injuriously upon the party claiming the trade-mark, and also upon the public. The answer of the court was that there would be no more necessity for the plaintiff to place in large letters upon the front of his building, “ This is the Irving House,” in order to designate it and secure an appropriation of the name, than there would be to write on the public edifices of the city, “ This is the City Hall," and “ This is Trinity Church.” As to the second objection of the defendants the court spoke thus: “We think that the principle of the rule is the same, to whatever subject it may be applied, and that a party will be protected in the use of a name which he has appropriated, and by his skill rendered valuable, whether the same is upon articles of personal property which he may manufacture, or applied to a hotel where he has built up a prosperous business. We are not disposed to interfere with the lawful pursuits of any one. Every man may, and ought to be permitted to pursue a lawful calling in his own way, provided he does not encroach upon the rights of his neighbor or the public good. But he must not by any deceitful or other practice impose upon the public; and he must not, by dressing himself in another man's garments, and by assuming another man's name, endeavor to deprive that man of his own individuality, and thus despoil him of the gains to which by his industry and skill he is fairly entitled. To make the application : If one man has, by close attention to the comfort of his guests, and by superior energy, made his hotel desirable for the traveller, and caused its name to become popular throughout the land, another man ought not to be permitted to assume the same name in the same town, and thus deprive him who first appropriated the name, of some portion of the fruits of that good-will which honestly belongs to him alone.”

13 Sand. S. C. 725.

§ 96. The perusal of this case of Howard v. Henriques relieves the mind from all doubt or embarrassinent as to the meaning of the court. The counsel had been reasoning from analogy ; and the court pursued the train of ideas thereby evolved. No one in that case assumed that the mere name of a hotel could be a trade-mark, but argued upon principle. How could any one so assume ? Did the proprietor of the name affix it to any vendible article ? No. But, it may be replied, he did use it upon all the bills rendered to his guests, on cards, and in numerous advertisements circulating throughout the country. True ; but advertisements are not trademarks. Nothing short of the sheerest sophistry could twist the title of a hotel into a mark of commerce, a visible mark affixed to a thing sold, or for sale. We cannot detect the essential elements of the thing technically so known. Then, if not a case of trade-mark, what was it? It was exactly what the Superior Court, by the lips of Mr. Justice Campbell, called it, the "good-will ” of the establishment. The case did not call for a definition. All that was required was substantial

1 Lord Chancellor, in Leather Co. v. Am. Leather Co., 11 Jur. (n.s.) 513.

justice, upon the allegation of an invasion of an equitable right.

§ 97. McCardel v. Peck, before the Supreme Court of New York, in banc, in 1864, is a case that is sometimes cited to prove that the name of a place of business is a trade-mark. The misconception is the fault of the syllabus of the reporter. The matter in dispute was the right to use the name of a restaurant known as the “ MCCARDEL HOUSE,” in the city of Albany. The court certainly did not treat the case as any other than a question of the right to the good-will. The language of Miller, J., who delivered the opinion, misled the reporter. He said: “ The use of names and trade-marks in business, when made valuable, has always been protected by the courts, and any improper appropriation of them without the authority of the owner will be restrained by injunction.” He said in another place, “ the use of a name or trade-mark.” This is all that was said of trade-marks: “ Names and trade-marks ;" and “ a name or trade-mark.” It needs no great power of discrimination to perceive that the employment of the conjunctions implied a distinction between name and mark.

$ 98. Howe v. Searing, 1860,is another case that is quoted in support of the theorem that the name of a place of business is essentially a trade-mark. But a careful examination of that case will show that the majority of the court placed it in its proper category. The plaintiff, a baker by trade, brought an action to restrain the defendant from designating the bakeryestablishment kept by him, in the city of New York, as “ Howe's Bakery," and from otherwise using the name of Howe, so as to induce the public to believe that the business carried on at his place was conducted by the plaintiff. It was not in anywise discussed as any thing other than what it really was, —“ the good-will of the business of baking." All the authorities commented upon by the learned Judge Hoffmann, who delivered the opinion of the court, are good-will cases. 1 28 How. Pr. R. 120. 2 10 Abb. Pr. R. 264; 6 Bos. 354; and 19 How. Pr. R. 14. He adopted the language of Vice-Chancellor Wood, in Clinton et al. v. Douglass : 1 “ The name of a firm is a very important part of the good-will of the business carried on by the firm. A person says, I have always bought articles at such a place of business ; I know it by that name, and I send to the house of business identified by that name for that purpose.” Moncrieff, J., dissenting, said: “ The name or words Howe's Bakery' was nothing but a trade-mark, and, as such, is now sought to be protected by the plaintiff. The name or trademark passed by the assignment and transfer of the good-will ;' and, if it was not the thing itself, it was an integral part of it.”

$ 99. What warrant had the dissenting judge to use the technical term trade-mark? We look in vain for any authority to sustain his remark. Consider the circumstances. The plaintiff, who had been doing a lucrative business as a baker at No. 432 Broadway, sold the lease of the premises, with all the stock, wagons, and fixtures, and the good-will of the concern, to one Baker. Baker subsequently sold back to Howe the right to resume business at another place, No. 850 Broadway, in the same city; and still later sold the lease to Searing, the defendant, subject, however, to Howe's right to conduct business in his own name. Searing continued the old sign-name, to the prejudice of the plaintiff's rights, and in a way calculated to mislead the public. Howe had a clear title to his own name; and so, indeed, had any other Howe the same right, and if he chose could put up a sign informing the public of the location of his place of business. Searing, the defendant, had no right to use Howe's name. Hence the suit. The mere name of Howe could not be a valid trade-mark, for it was not the exclusive property of the plaintiff. It was not a trade-mark unless intended to be stamped upon, or otherwise affixed to the articles sold. It was at best a mere advertising sign. Even if stamped upon the bread, it would not be a trade-mark; for it would not indicate origin. The purchasers

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