mark for which protection is sought must not itself deceive the public,' and secondly, that the imitation, to be an infringement, must be one calculated to deceive a purchaser using ordinary caution.

But it must be remembered that while the test of an infringement may be whether or not the public, exercising ordinary caution, are deceived, yet the ground upon which the jurisdiction of the court rests, in such cases, is not the fraud upon the public, but the invasion of property.2

457. Any name, symbol, or emblem may, in general, be a trademark.

But a word which is merely descriptive of the article, or which is the current name of an article, or which merely denotes the general character of the business, cannot be used as a trademark.3

The name of a country or section of a country cannot be appropriated as a trade-mark by the owner of a particular product (e. g. coal), of that country, so as to exclude owners of other similar products coming from the same country or section of country, from using the name. But it seems that the use of the name of a country, by a person whose merchandise does not in fact come from that country, will be enjoined; and if the name of a country is stamped or branded upon the article, it may become a trade-mark.5

A man's name may be a trade-mark; and it may become one to such an extent as to prevent any other person of the same name from using his own name in connection with a similar article."

1 The maxim that "he who comes into a court of equity must come with clean hand" applies in such cases; Palmer v. Harris, 10 P. F. Sm. 156. See, also, Pidding v. How, 8 Sim. 477; Flavel v. Harrison, 10 Hare, 467. See, however, Ford v. Foster, L. R. 7 Ch. App. 611.

2 See the opinion of Lord Westbury in 10 Jur. (N. S.) 81. See, also, Clark v. Freeman, 11 Beav. 112; Dixon Crucible Co. v. Guggenheim, 2 Brews. 332; Joyce on Injunctions, 312.

3 Perry v. Truefitt, 6 Beav. 66; Gillott v. Esterbrook, 47 Barb. 455.

Canal Co. v. Clark, 13 Wallace, 311. See, also, Newman v. Alvord, 49 Barb. 588; McAndrews v. Bassett, 10 Jur. (N. S.) 550; Seixo v. Provezende, L. R. 1 Ch. App. 192; Amoskeag Manufac. Co. v. Spear, 2 Sanf. Sup. Ct. 599; Boardman v. Meriden Britannia Co., 35 Conn. 402. 5 McAndrews v. Bassett, 10 Jur. (N. S.) 550.

6 Holloway v. Holloway, 13 Beav. 209; Burgess v. Burgess, 8 De G. M. & G. 896.

A man cannot acquire a trade-mark until the article to which it is applied is actually made and put in the market. Thus an injunction was refused to a publisher, who had announced, but had not actually published, a magazine called "Belgravia," to restrain another publisher who had hastily brought out another magazine bearing the same name, from continuing to use that title.1

458. In order to obtain relief for the protection of a trademark it is necessary that due diligence should be used, and it is further necessary that the trade-mark itself should not contain any misrepresentations; for (as stated above) a trade-mark which is false and thereby calculated to deceive the public, will not be protected by a court of equity."

Any imitation of a trade-mark whereby an ordinary purchaser might be deceived into the belief that the article he was buying was produced or manufactured by the owner of the trademark, is an infringement. It has often happened that differences have been introduced by persons desiring to infringe a trade-mark in order to escape from the rule above stated; but all such colorable differences are disregarded by the court, if the general result is a misrepresentation.3

The remedies which equity applies to cases of infringement of trade-marks, are those already noticed in patent-right and copyright cases, viz., an injunction, an account, and an inquiry into damages.

459. Another class of cases in which injunctions are issued, is where irreparable damage may be done by the alienation of property prior to or pending litigation, or even where no litigation may be in contemplation. One of the most striking instances of this class of cases is the restraining the transfer of negotiable instruments which have been fraudulently, illegally, or improperly obtained, or which ought not to be negotiated. From the nature of these instruments it is obvious that if they once get into the

1 Maxwell v. Hogg, L. R. 2 Ch. App. lott v. Esterbook, 47 Barb. 455; Walton 307. v. Crowley, 3 Blatchf. C. C. 440; Clark v. Clark, 25 Barb. 76; Brooklyn White Lead Co. v. Masury, Id. 416; Williams v. Johnson, 2 Bosw. 1; Kerr on Injunctions, 484.

2 Leather Cloth Co. v. American Leather Cloth Co., 11 H. L. Cas. 523.

See Leather Cloth Co. v. American Leather Cloth Co., 11 H. L. Cas, 523; Glenny v. Smith, 2 Dr. & Sm. 476; Seixo v. Provezende, L. R. 1 Ch. App. 192; Gil

Smith v. Haytwell, Amb. 66; 3 Atk. 566; Kerr on Injunctions, 595.

hands of an innocent holder for value, irreparable injury may be done to the party liable thereon, by depriving him of the opportunity of making a defence which he would otherwise be entitled to set up. Hence the jurisdiction to restrain the negotiation of such instruments upon a proper case being made out, is well established both in England and in this country.1 So also transfers of stock; sales of valuable chattels to which the complainant claims title; sales and mortgages of estates by a mortgagor who had improperly obtained the deeds from a mortgagee; and vexatious alienations of property pending litigation, may all be restrained by injunction. Equity, however, will not interfere to restrain a debtor from alienating his property, at the suit of a creditor who has not reduced his claim to judgment.3

460. Still another class of cases in which equity interferes, is where property which is the subject of litigation, is in danger of injury, and the interposition of the court is necessary for its protection. It will be remembered that technical waste could only exist when the party committing it was lawfully in possession, and that, therefore, if his claim was hostile, the remedy by injunction against waste, strictly speaking, did not lie. Where, however, special circumstances exist, as when the party in possession is insolvent, and unable to respond in pecuniary damages; or where his actions are such as to deprive the land of its chief value, an injunction may issue to protect the property pending litigation. This is especially so in the case of mines, for there the injury goes to the very substance of the estate. But any injury which is not adequately reparable by damages, would be a sufficient foundation for the application."

1 Metler v. Metler, 3 C. E. Green, 270; 4 Id. 457. See Ferguson v. Fisk, 28 Conn. 501; High on Injunctions, 712. See, also, Osborn v. The Bank of the United States, 9 Wheat. 738.

2 Kerr on Injunctions, 590, 593, 594; High on Injunctions, 251.

3 Wiggins v. Armstrong, 2 Johns. Ch. 144; Buchanan v. Marsh, 17 Iowa, 494; High on Injunctions, 250. The rights of a judgment creditor will be protected so as to restrain the judgment debtor from committing acts in the nature of waste; Witmer's Appeal, 9 Wright (Pa.),

455. See, also, Clark's Appeal, 12 P. F. Sm. 447.

4 Pillsworth v. Hopton, 6 Ves. 51. See, however, Shubrick v. Guerard, 2 Desaus. 616, note.

5 Meadow Valley v. Dodds, 6 Nev. 261; Kinsler v. Clarke, 2 Hill, Ch. 617; Hicks v. Michael, 15 Cal. 107; Peak v. Hayden, 3 Bush, 125. See, also, Kane v. Vanderburgh, 1 Johns. Ch. 11.

6 United States v. Parrott, McA. C. C. 271.

7 Kerr on Injunctions, 199.

The object of the court in granting such injunctions is to preserve the property in statu quo pending litigation. The complainant, however, in order to obtain the relief must present a fair prima facie case; and in order to secure the decision of the court without a trial at law, the case must be very clear and plain.1 In cases of a doubtful character, the court will either direct the complainant to establish his title at law in the first instance, or grant an injunction pending the litigation, according to circumstances, or the exigencies of the particular case. Interim orders are sometimes made, whereby the property is preserved without issuing the formal writ.2

461. The remedy by injunction to restrain the "breach of negative covenants, may be said to furnish the complement to the relief by specific performance. An affirmative covenant is an agreement whereby a man undertakes that something shall be done; and upon the breach of such a covenant, and upon a proper case for equitable interference being made out, the remedy is by a bill for specific performance. On the other hand, by a negative covenant, the covenantor promises that something shall not be done; and, therefore, the relief appropriate to a breach of such a contract is an injunction.

Injunctions to restrain breaches of negative covenants are issued when the contract and the threatened breach are clearly shown, and where the recovery of damages at law would furnish an inadequate redress. While the theory upon which this relief is based is that of preventing irreparable injury, yet the court will not enter into nice discriminations as to the extent of the damage. The mere fact that there has been a breach of covenant, is a sufficient ground for interference; and it is no answer to say that the act complained of will inflict no injury upon the complainant, or will even be a positive benefit to him.3

462. The leading authority upon this subject is, perhaps, Lumley v. Wagner. There the defendant had entered into an engagement with the plaintiff to sing at his theatre, and not to sing at any other theatre; and an injunction was granted by Lord St. Leonards restraining her from singing at any other

1 Kerr on Injunctions, 208, 209. 2 Id. 212.

3 Kerr on Injunctions, 532; High on Injunctions, 2 695, 717.

41 De G. M. & G. 604.

theatre. It was held in that case, overruling the former decisions,' that the circumstance that the court would have been unable to specifically enforce the defendant's affirmative covenant to sing, did not affect the complainant's right to an injunction to restrain a violation of the negative covenant; and this is, perhaps, the correct doctrine, although there have been decisions the other way.2

463. The instances in which injunctions have been issued to restrain the breach of negative covenants are very numerous. Thus injunctions have been issued to restrain a person who had entered into a covenant not to ring church bells, from so doing;3 to restrain an author, who, on the sale of a work, had covenanted with the purchaser not to do anything which might be detrimental to the sale or publication of that work, from publishing a rival work on the same subject; to restrain tenants from violating covenants in their leases as to the mode of cultivation, or the removal of machinery;5 to restrain the erection of buildings beyond a certain height; to restrain the carrying on of particular trades in demised premises; and in many other cases too numerous to mention. The jurisdiction is frequently exercised for the purpose of enforcing contracts in proper restraint of trade, the principles of which have been already explained; and also to enforce covenants which do not run with land, but of which the vendee had notice, and of which an observance on his part will, therefore, be compelled in equity.10

The mere fact that the covenant provides for a penalty upon its breach, is no ground for refusing an injunction."

1 Kemble v. Kean, 6 Sim. 333; Kimberley v. Jennings, Id. 340; Kerr on Injunctions, 528.

2 Sanquirico v. Benedetti, 1 Barb. 315; Hills v. Croll, 2 Phillips, 60.

3 Martin v. Nutkin, 2 P. Wms. 266. Barfield v. Nicholson, 2 Sim. & Stu. 1. 5 Fleming v. Snook, 5 Beav. 250; Grey de Wilton v. Saxon, 6 Ves. 106; Pulteney v. Shelton, 5 Ves. 260, n.; Hamilton v. Dunsford, 6 Irish Ch. 412.

6 Lloyd v. London, Chatham and Dover Railway Co., 2 De G. J. & Sm. 568.

7 Kemp v. Sober, 1 Sim. N. S. 517;

Hodson v. Coppard, 29 Beav. 4; Clements v. Welles, L. R. 1 Eq. 200; Parker v. Whyte, 1 Hem. & M. 167.

8 Kerr on Injunctions, 503, 504, 505. 9 Butler v. Burleson, 16 Verm. 176; McClurg's Appeal, 8 P. F. Sm. 51.

10 Tulk v. Moxhay, 11 Beav. 571; 2 Ph. 774. See, also, Clements v. Welles, L. R. 1 Eq. 200; Wilson v. Hart, L. R. 1 Ch. App. 463; Western v. McDermott, 2 Id. 72.

11 Hardy v. Martin, 1 Cox, 26. See ante, p. 187, and authorities cited in note 4.