fringing the appellant's rights, their conduct in the eye of the law amounts to fraud and they must be held responsible for the consequences."

In the famous trade-mark case of Singer Machine Manufacturers 7. Wilson, Lord Chancellor Cairns asserted that:

"What the motive of the defendant may be the court has very imperfect means of knowing. If he was ignorant of the plaintiff's rights in the first instance, he is, as soon as he becomes acquainted with them and perseveres in infringing upon them, as culpable as if he had originally known them."

In this country, too, it has been similarly held that an innocent. intention in adopting plaintiff's distinguishing marks is no defense, once defendant is shown to have persisted in their use after it has been pointed out to him that by so doing he is in fact passing off his goods as plaintiff's. For example, in New England, etc., Company v. Marlborough, etc., Company, it was said by Holmes, J., in restraining the defendant's use of a label similar to the plaintiff's:

"It is found that the defendants did not intend to deceive the public by passing off their goods for the plaintiff's, but this must be taken pretty strictly. They knew that they were putting the power to do so into the retail dealers' hands. It can hardly be doubted that they contemplated that the wholesale dealer at whose request they put up their awls in this form with full knowledge of the plaintiff's prior use would or might try to deceive the public, and whether they did or not is immaterial. They knew it after they were warned by the plaintiff and stood upon their rights."

And in the recent case of Fuller v. Huff, in which defendants were enjoined from using the descriptive words "Health Food" as part of the title under which they carried on the business of making nutritious food-products, upon the ground that these words had become identified with the plaintiff's business and manufacture, it was said by Shipman, J., for the Court of Appeals:

Although the intent of the defendant's principal when it commenced to use the name Health Food' may have been innocent, the continuance after it had learned of the complainant's prior use, indicates its deliberate

1 (1877) 3 App. Cas. 376 at 391.

2 See also Mitchell v. Henry (C. A. 1880), 15 Ch. Div. 181, 191; Army, etc., Society v. Army, etc., Society of India (1891), 8 R. P. C. 426; Orr v. Johnston (C. A. 1880), 13 Ch. Div. 434 at 454; Hendriks v. Montagu (C. A. 1881), 17 Ch. Div. 638 at pp. 646, 647, 651; Chivers v. Chivers (1900), 17 R. P. C. 420, 426; Edge v. Gallon (H. L. 1900), 17 R. P. C. 557, 566.

(1897) 168 Mass. 154.

4 (C. C. A. 1900) 104 Fed. Rep. 141 at 145 (Shipman, Wallace and Lacombe, JJ.).

intention to use the name without reference to the complainant's possible prior rights."

It is obvious that persistence after notice to desist may not constitute the moral turpitude, the conscious fraud, apparently demanded by Lawrence Manufacturing Company v. Manufacturing Company, Coats v. Thread Company, or the "Elgin" case. Oftentimes, the persistence may be the result of an honest opinion on defendant's part that his acts do not tend to pass off his goods as and for the plaintiff's. Yet, in the eye of the law, such a continuance in a course of conduct which he has been cautioned is an invasion of the plaintiff's rights, amounts to fraud; and if our courts are still to insist on fraud presumed in the case of technical trade-marks and actual in other cases as an essential element of unfair competition, it is to be hoped that they will be satisfied with proof of this "legal fraud" in place of actual fraudulent intent and " perfidious dealing" heretofore emphasized. Such an attitude, if once adopted, will enable the courts to apply the law of unfair competition to specific cases with much greater certainty. After a notice to desist, the only issue to be determined will be that of likelihood of deception of the public by the defendant's words and marks to the plaintiff's hurt. The defendant's secret intent or motive, always difficult to discover, as remarked by Lord Cairns in Singer Machine Manufacturers v. Wilson, supra, will no longer be a controlling factor. No longer will it be true that the same act accompanied by the same deception of the public and the same resulting injury to the plaintiff will be enjoined in the one case because the defendant intended that result, only to go unrestrained in another because the defendant was ignorant or skeptical that such would be the effect of his conduct. Even in cases of technical trade-mark it is important that this definition of fraud should obtain, for though conclusively presumed, for the purpose of relief by injunction, it may be nevertheless rebutted in exemption of damages.1 Surely if a defendant uses plaintiff's marks after he has been warned of the consequences, his persistence in their use should be at his own risk and peril, and should be punished accordingly by an award of damages.2

199.

1 "Elgin" case, 179 U. S. 665, 674; Edelsten v. Edelsten (1863), 1 DeG. J. & S. 185, 2 See Lord Blackburn in Singer Mfg. Co. v. Loog (1882), L. R. 8 App. Cas. 15 at 31.

Yet even then, our old friend "actual fraudulent intent," need not become wholly a supernumerary. In cases where direct evidence as to the likelihood of deception resulting from defendant's use of words or marks is evenly balanced, evidence of an actual fraudulent intent is important and material. The intent to deceive on the part of the defendant, once proved, is equivalent to an admission by him that the means he has adopted are likely to deceive; and where the court might be otherwise in doubt, this fact of fraudulent intent may well turn the scale against the defendant.

Thus it was said by Kekewich, J., in Saxlehner v. Apollinaris Company: 1

"If in a case like the present, the defendants' goods on the face of them, and having regard to surrounding circumstances, are calculated to deceive, it seems to me that no evidence is required to prove the intention to deceive, nor ought time and money be expended on any such evidence. The sound rule is that a man must be taken to have intended the reasonable and natural consequences of his acts, and no more is wanted. If, on the other hand, a mere comparison of the goods, having regard to surrounding circumstances, is not sufficient, then it is allowable to prove from other sources that what is or may be apparent innocence was really intended to deceive. There can be no better evidence of intention to deceive than that of the deceiver himself, and this evidence may be given with equal force by admissions, oral or in writing, or by inference from conduct. If the intent to deceive be once established, it is but a short step, though it is a step and not an inevitable one, to the conclusion that the intention has been fulfilled and that the goods are calculated to deceive. I am by no means sure that any such distinction as I have just briefly formulated between the two classes of cases has ever been sanctioned by judicial authority, . . . but my notion is that it has nevertheless been observed in practice and that evidence of intent has only been used in the second class above noticed."

So it was said by Farwell, J., in Chivers v. Chivers: 2

1 [1897] I Ch. 893, 900.

2 (1900) 17 R. P. C. 420 at 427. In Lord Macnaghten's opinion in Payton v. Snelling, [1901] A. C. 308, it was intimated that a plaintiff would find it easier to prove probable deception by defendant's devices, if a fraudulent intent were established. Lord Macnaghten says (p. 310): "Now when a person comes forward to restrain a colorable imitation of this sort in a case like this, and when he cannot prove that the defendants have tried to steal his trade, he has to make out beyond all question that the goods are so got up as to be calculated to deceive. The principle is perfectly clear — no man is entitled to sell his goods as the goods of another person."

"

In the "Cellular Cloth case, [1899] A. C. 326, 335, Lord Halsbury explained the importance of the letter in Reddaway v. Banham, in which a jobber ordered belting

"Of course if the court finds as a fact that the man has a fraudulent intention, that finding may well be material because the fraudulent intention is evidence against the defendant of probable deception. . . . In other words, it does not lie in the mouth of a rogue when he is found to be a rogue as a fact, to say that his roguery was so clumsy that it could not possibly succeed."

One word in conclusion. Even though it be conceded that a defendant who has innocently and inadvertently passed off his goods as plaintiff's, or at least run the risk of so doing, by reason of similitude of names or marks, should be restrained from a continuance of such acts, it does not necessarily follow in case of the use either of plaintiff's technical trade-mark, or other distinguishing marks which may have become associated with the plaintiff's goods, that an innocent defendant must pay damages for the period prior to notice of the plaintiff's rights. It is thoroughly consistent and equitable, that a defendant who cannot set up absence of a fraudulent intent as a bar to an injunction, should be nevertheless allowed to prove it in exemption from damages or an accounting.

SCHENECTADY, January 1, 1903.

E. R. Coffin.

from the defendants marked merely "Camel Hair Belting," without the addition of the defendants' names as manufacturers, not as evidence of fraud but as evidence against the defendants of the confusion likely to result from the omission of their names on "Camel Hair Belting." So too, Lord Blackburn in Johnson v. Orr Ewing (1882), 7 App. Cas. 219 at 230: "As against these defendants their own conduct is evidence, and I think their own conduct is such as to prove against them that the resemblance was calculated to deceive:" and again (p. 231), he speaks of the defendants' conduct "as evidence of an intention to mislead, or what I think is more the true question, as evidence of what the effect of the similarity was likely to be" (i. e., deception of purchasers).

HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

PRESIDENT'S POWER TO PARDON CONTEMPTS. In the Circuit Court of Appeals of the Eighth Circuit, Judge Sanborn has most vigorously assailed the proposition that "contempts of court are public offenses, pardonable like any other." He draws a very clear distinction between criminal or punitive contempt proceedings, i. e., those conducted to preserve the power and vindicate the dignity of the courts, and proceedings which are civil, remedial, or coercive, i. ., those instituted to protect and enforce the rights of private parties and to compel obedience to decrees made to enforce those rights. Though both classes of cases are discussed, the actual decision falls within the latter division. Two county judges were ordered by mandamus from a circuit court to levy a tax for the payment of a judgment recovered against the county. The judges refused, were imprisoned, and filed a petition for a writ of habeas corpus. The court refused to stay the proceedings in order to allow a petition to the President for pardon, holding that the commitment was not in execution of the criminal laws of the nation, but was to secure to a suitor his legal rights, and that therefore the President was without power to pardon. In re Nevitt, 117 Fed. Rep. 448 (C. C. A.).

The subject of presidential pardons is divisible by two intersecting lines of cleavage. One divides fines or forfeitures due to an individual from those due to the Government. Obviously this distinction is applicable to all cases, civil and criminal. The other line divides contempt proceedings from other cases; and notwithstanding the first distinction of Judge Sanborn noted above he strongly advises that the operation of the pardoning power be excluded from all contempt cases. Thus there are four possible