and property in a name or distinguishing style, as connected with a literary publication or a work of art. So do also the continental writers and jurists; for although in their tribunals a single action may, it seems, embrace a claim for damages for infringement of a patent, a demand based on a trespass on the good-will property by false representations, the piracy of a label and violation of a mark, and may unite a demand for both civil and criminal penalties, -i.e., when all the alleged wrongs shall have arisen from one transaction, yet we find that the different classes of injuries are separately considered in arriving at a conclusion, although constituting the warp and woof of the same web; and in adjusting remedies each species has its own peculiar redress. This mode of procedure, so different from that of countries under the domination of the common law of England, springs from the flexibility of the Code Napoléon. Yet this complexity need cause no confusion of ideas, except in the minds of superficial readers and unreflecting dabblers in law.

§ 92. In the case of Woodward v. Lazar,' in the Supreme Court of California, in 1863, before all the justices, the name of a hotel was treated as a trade-mark. It was an appeal from an order refusing to dissolve an injunction by which the defendants were restrained from using the name of "WhatCheer House," as the title or name of a hotel in the city of San Francisco. Norton, J., in delivering the opinion of the court, said: "It has been decided, and with good reason, that the name established for a hotel is a trade-mark, in which the proprietor has a valuable interest, which a court of chancery will protect against infringement. Howard v. Henriques, 3 Sand. S. C. 725. The point of dispute in the case is as to whom the name 'What-Cheer House,' as a business-sign, belongs. The plaintiff claims that it belongs to him, as the keeper of the hotel, which he continued to conduct under that name after he surrendered the leased premises; while the

1 21 Cal. 448.

defendants claim that it is the designation of the building in which the business under that name was first conducted, and became theirs when they became owners of the building." Now let us examine the case cited by the judge, and decide for ourselves whether or not there was not a mistake made in the name of the thing, a mistake quite as wide of the truth as would be the confusion of the terms freehold, mortgage, lease, all relating to landed property, yet distinct in their natures. Names are sometimes things.

§ 93. In Amoskeag Manufacturing Co. v. Spear, in 1849, a distinguished jurist, Mr. Justice Duer, inadvertently misused terms. The defendant had pirated plaintiffs' label, making it correspond in size, color, fancy border, position, general arrangement and size of the letters, including the alleged trademark, the capital letters "A CA." These letters were decided not to be a trade-mark, being merely indicative of quality. What, then, was the trade-mark? Nothing. Compare the language of the two labels. That of the plaintiffs read thus: "AMOSKEAG MANUFACTURING COMPANY. POWER LOOм. Yds.

. ACA. AMOSKEAG FALLS, N. H." That of the defendant read thus: "LOWELL PREMIUM TICKING. POWER LOOM. Yds. A CA. WARRANTED INDIGO BLUE." The judge had a clear conception of all the principles involved, and his decision was unquestionably correct. The extraordinary powers of a court of equity had been invoked to prevent the continuance of fraud. In what did that fraud consist? In a “designed, studied, elaborate imitation" of the label of the plaintiffs, said his Honor. The defendant endeavored by a false representation to effect an unlawful purpose. To quote the judge's own words: "In this case there is a fraud coupled with a damage; and a court of equity, in refusing to restrain the wrong-doer by an injunction, would violate the principles upon which a large portion of its jurisdiction is founded, and abjure the exercise of its most important functions, the suppression of

12 Sand. S. C. 599.

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 "A CA" 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 prima 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

13 Sand. S. C. 725.

to

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, 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."

§ 96. The perusal of this case of Howard v. Henriques relieves the mind from all doubt or embarrassment 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.