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

§ 97. McCardel v. Peck,1 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, 1860,2 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. 128 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: "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

11 H. R. N. Johns. 176.

could not tell by the mere name what one of many persons of the same name had baked the bread. Conclusion: the remarks of Mr. Justice Moncrieff were not a judicial decision, and must be classed with unauthoritative obiter dicta.

§ 100. We must not infer from the foregoing decisions that the name of a place of business cannot become a valid trade-mark. If it possess the true characteristics of such a mark; if it be not generic, merely descriptive, or one that any other person in the same trade may truthfully use; and if it be affixed to a vendible article, then it may be made a trade-mark as well as any other symbol. The case of Choynski v. Cohen,' in the Supreme Court of California, in 1870, before all the justices, is in point. The plaintiff claimed the exclusive right to the name, "ANTIQUARIAN BOOK STORE," which name was placed upon his sign, stamped upon all articles sold by him, and used in his correspondence. Held, to be a mere designation of trade.

§ 101. It was of little or no moment in the cases cited what term a judge may have used to express an idea. Substantial justice did not depend upon preciseness of terminology. It is, however, of moment in our present purpose to accurately define, lest by looseness of language we fall into looseness of application of principles, and so end in egregious error. In judicial matters, a rose by any other name may not smell as sweet. A name is sometimes of the very essence. We could not arrive at any result other than this: the name of a hotel and a trademark are not convertible terms.

§ 102. The British "Merchandise Marks Act," of 1862, says that "the word 'mark' shall include any name, signature, word, letter, device, emblem, figure, sign, seal, stamp, diagram, label, ticket, or other mark of any other description; and the expression trade-mark' shall include any and every such name, signature, word, letter, device, emblem, figure, sign, seal, stamp, diagram, label, ticket, or other mark as aforesaid lawfully used by any person to denote any chattel, or (in

1 39 Cal. 501.

Scotland) any article of trade, manufacture, or merchandise, to be an article or thing of the manufacture, workmanship, or production, or merchandise of such person, or to be an article or thing of any peculiar or particular description made or sold by such person; and shall also include any name, signature, word, letter, number, figure, mark, or sign which in pursuance of any statute or statutes for the time being in force relating to registered designs is to be put or placed upon or attached to any chattel or article during the existence or continuance of any copyright or other sole right acquired under the provisions of such statutes or any of them." This language savors more of enumeration than definition, and may possibly mislead by its breadth of expression, embracing as it does things incongruous in their several natures, as registered designs and copyright matters. Being a statute applicable only to British courts, its form of expression cannot be taken as an infallible guide for our present purpose. Many of the terms used cannot be understood unless taken with their judicial definitions, as name, word, label, &c. It should, however, be observed that the expression "trade-mark" not only includes every mark lawfully used by a person to denote any chattel to be an article of the manufacture, workmanship, or production of such person, but also to be an article of the merchandise of such person, or to be an article of any peculiar or particular description made or sold by such person. This will include such cases as Mottley v. Downman, where it was contended that the right to use the trade-mark was attached to a particular place and works, and to cases where the articles are distinguished by the name of a person who did not manufacture them, and to similar cases.2

§ 103. Is the NAME OF A NEWSPAPER a trade-mark? This question has been thoroughly discussed pro and con. in the Patent Office, but has probably not been definitively decided

13 M. & C. 1.

2 See notes of H. B. Poland, Esq., to the English Act of 1862.

by any court. Upon an application for registration, all the authorities bearing upon this point were examined. If a technical trade-mark, the application would be favorably acted on; if not, it would be rejected. The matter being ex parte, the pleasing task of collating judicial decisions devolved upon the Office. We will let the cases cited again pass in review.

§ 104. Snowden v. Noah, in the Court of Chancery of New York, before Sandford, Chancellor, in 1825,1 was treated by counsel and by the court as a good-will case. The chancellor said: "The defendant Noah was the editor, but not the proprietor, of the newspaper establishment called the National Advocate; and immediately after the sale of that establishment by its former proprietor to the complainant, Noah established another newspaper, under the title of the New York National Advocate.' This new gazette thus established is sent to the subscribers of the former National Advocate,' and Noah has solicited and continues to solicit the support of the patrons of the former paper and of the public to his newspaper. This is briefly and in substance the case upon which an injunction is now asked." After some other remarks, he continued: "The subject in respect to which an injunction is asked, is what is called the good-will of the establishment, or the custom and support which the National Advocate' had before received from its subscribers and patrons, or from the public. The effort of Noah is to obtain for his newspaper the support of the public in general, and especially the custom and good-will of the friends of the National Advocate.' This object is distinctly avowed; and an open appeal is made to the friends of the National Advocate' and to the public to give their support to the new paper. The question is, whether the acts of Noah are an invasion of the private rights of Snowden, as the proprietor of the National Advocate,' or merely an exercise of the common right to print and publish a new journal, and to obtain for it patronage. . . . The only circumstance in this

1 Hopkins's Ch. R. 347.