probable result is to deceive. In a recent case1 a manufacturer of door checks was enjoined from using the word "Blount" in a certain manner, although the evidence was conflicting as to whether the public was deceived. The court held that proof of actual deception was not necessary, and that the court may determine without it, from the exhibits themselves, whether deception would be the natural and probable result. And an injunction has been granted where the goods which the defendant had made in imitation of the complainant's were simply offered for sale, but none sold.2

It is interesting to note in this connection that if the ultimate purchaser will probably be deceived as to the identity of an article, it is no defense that the retailer or immediate purchaser is not deceived by the manufacturer. Relief will be granted against the latter if it is shown that his purpose in selling to retailers was to defraud the public. Thus in the case of Royal Baking Powder Co. v. Royal3 the defendant was enjoined from displaying his name on the front label of his cans in such a way that the retailer could easily pass off his goods for those of the complainant. And in a more recent case an injunction was granted where it appeared that, although the defendant manufacturer made no attempt to deceive the retailers of the product, it did intend that the latter should substitute "Gay-Ola " for "Coca-Cola" in selling to consumers. Owing to the similarity of the product, it was claimed that the consumers would not know the difference. This principle has been announced in many other cases."

On the other hand, a retailer or jobber may be enjoined from substituting the goods of one manufacturer for those of a competing manufacturer, and it is immaterial whether the substitution is made at the instigation of the competitor or upon the initiative of the retailer. Thus in a case decided by the circuit court in 1903 an injunction was issued restraining the defendant retailer from selling or delivering as Gold Dust that which was not Gold Dust. It appeared in this case that the defendant advertised Gold Dust for sale at a reduced price, and on several occasions handed out and delivered to his customers who called for this article another and inferior

1 Yale & Towne Manufacturing Co. r. Worcester Manufacturing Co., 205 Fed., 932 (D. C., 1913).

2

* Enterprise Manufacturing Co. r. Landers, Frary & Clark, 131 Fed., 240 (C. C. A.. 1904).

122 Fed., 337 (C. C. A., 1903).

4 Coca Cola Co. r. Gay-Ola Co., 200 Fed., 720 (C. C. A., 1912).

N. K. Fairbank Co. r. R. W. Bell Manufacturing Co., 77 Fed., 869 (C. C. A., 1896); Hostetter Co. r. Sommers, 84 Fed., 333 (C. C., 1897); N. E. Awl Co. t. Marborough Awi Co., 168 Mass., 154 (1897); Wolf Bros. & Co. r. Hamilton-Brown Shoe Co., 206 Fed.. 611 (C. C. A., 1913), appeal pending in U. S. Supreme Court; Samson Cordage Works r. Puritan Cordage Mills, 211 Fed., 603 (C. C. A., 1914).

N. K. Fairbank Co. v. Dunn, 126 Fed., 227 (C. C., 1903).

1

article known as "Buffalo." And in another case it was shown that customers asking for "Baker's Cocoa" or "Baker's Chocolate" were given William Henry Baker's goods instead of the product manufactured by the complainant, the Walter Baker & Co. (Ltd.), an older establishment. The defendant's salesmen, after suit was brought, were also instructed, when such goods were called for, to say: "We have two Bakers. Which do you want, W. H. or Walter Baker?" Nine out of ten would ask for the best, and thereupon would be given W. H. Baker's goods. An injunction was issued. restraining the defendant from advertising any product other than complainant's under the name of "Baker," or furnishing it in response to requests for "Baker's" goods, or in any manner using such name in connection with other goods without clearly designating by whom such goods were made.2

Just what similarity in name, label, or other method used amounts to unfair competition can best be shown by illustrative cases.3 The cases reviewed have been classified as follows: (1) Geographic or place names; (2) company and trade names; (3) personal names; (4) descriptive and generic terms; (5) dress of goods; (6) dress of store; (7) imitation of goods themselves. Many of the cases on this subject fall into more than one of the above-mentioned classes. For example, the confusion of goods may have resulted from the similarity of the name used in conjunction with labels not unlike those used by the plaintiff. Relief will be granted even though some of the imitations, if practiced singly, might not constitute unfair competition.1

GEOGRAPHIC OR PLACE NAMES.-Geographic names or names of places, as a rule, can be adopted by any one in connection with his business. This rule, however, is subject to the qualification that when such names have become so associated with the articles to

1 Baker v. Slack, 130 Fed., 514 (C. C. A., 1904).

2 For other cases in which retailers or jobbers have been enjoined from substituting other goods for those of a certain manufacturer, see American Fibre Chamois Co. v. De Lee, 67 Fed., 329 (C. C., 1895); Lever Bros. Boston Works r. Smith, 112 Fed., 998 (C. C., 1902); Gaines e. Whyte Wine Co., 81 S. W., 648 (Mo., 1904); Barnes v. Pierce, 164 Fed., 213 (C. C., 1908); and Mellwood Distilling Co. v. Harper, 167 Fed., 389 (C. C., 1909). But in Walter Baker & Co. v. Gray, 192 Fed., 921, the Circuit Court of Appeals for the Eighth Circuit in 1911 apparently makes the qualification that the substitution must be of goods so similar in dress, form, and pattern that the ordinary purchaser, by the exercise of reasonable care will be unable to distinguish between them. In this case it was contended that the defendants. who kept the products of the plaintiff and of William H. Baker, of Syracuse, N. Y., for sale in their grocery store were guilty of unfair competition in handing out the latter company's product when "Baker's Chocolate," was called for by customers. The court held that inasmuch as the labels of the two products were so dissimilar in appearance that one could not be mistaken for the other by a purchaser of ordinary prudence, the defendant's acts in pushing the product upon which he made the most profit were not unlawful. The Supreme Court of the United States subsequently denied a petition for a writ of certiorari (223 U. S., 732 (1912)). * Decisions affecting registered trade-marks are not discussed in this section. Sterling Remedy Co. v. Spermine Medical Co., 112 Fed., 1000 (C. C. A., 1901).

which they are attached that their use by a competitor in connection with his articles would confuse the public the courts will protect the first user. Such was the ruling of the court in a case where the word "Waltham" used in connection with the manufacture of watches was protected.1 The complainant had for nearly 50 years manufactured watches at Waltham, Mass. The defendant who was the sole selling agent of the Columbia Watch Co., had, by the use of the name "Waltham" and a system of numbering, misled the public into buying its watches under the impression that they were buying the watches manufactured by the older firm. An injunction and an accounting were granted, the court holding that such conduct is in violation of the law against unfair trade because intended to deceive and defraud the public and to deprive the complainant of the trade and good will to which it is entitled. And "Angostura" the name of a town in Venezuela, was protected in connection with the sale of bitters, although the name of the town had since been changed and the complainants no longer manufactured their product at that place. Similarly an injunction was granted restraining the defendant from using the name "Boston" in connection with the sale of wafers, an article of confectionery.3

The question often arises in the adoption of a company name, a part of which may be the location of the company. Thus the use of the name "Lock City Canning Co." was enjoined at the complaint of the "Lockport Canning Co.," both parties being engaged in canning tomatoes at Lockport, N. Y. It appears that Lockport is commonly known as the Lock City, and the court held that this, together with the fact that they were engaged in the same business, was calculated to deceive customers. And in a recent case the circuit court of appeals, at the instance of the British-American Tobacco Co., restrained the British-American Cigar Stores Co. from using the words "British-American" in its corporate name."

COMPANY AND TRADE NAMES.-Where the name of a company has acquired a secondary meaning the courts will enjoin its use by another company if confusion would otherwise result. In one of the earliest cases decided upon the ground of unfair competition the defendant was enjoined from using the name "Irving Hotel," the plaintiff's hotel, although originally designated as the "Irving House," being very generally known as the "Irving Hotel." Simi

larly the Supreme Court of Iowa enjoined the Atlas Insurance Co.

1 American Waltham Watch Co. v. Sandman, 96 Fed., 330 (C. C., 1899).

2 Siegert r. Gandolfi et al., 149 Fed., 100 (C. C. A., 1907).

C. A. Briggs Co. v. National Wafer Co., 215 Mass., 100 (1913).

♦ Lockport Canning Co. v. Pusateri, 139 N. Y. Supp., 640 (Sup. Ct., 1913), aff'd; 145 N. Y. Supp., 130 (App. Div., 1914).

211 Fed., 933 (C. C. A., 1914).

@ Howard v. Henriques et al., 5 N. Y. Super. Ct. Reps., 725 (1851).

from using the word "Atlas" in its name in a misleading way, there being at that time an insurance company known as the Atlas Assurance Co. (Ltd.). The same rule applies to corporate names, and there are many cases in which the use of confusing names has been enjoined. In 1887 the circuit court issued an injunction restraining the defendant from using the name "Cellonite Manufacturing Co.," due to its similarity to the name of the complainant, the Celluloid Manufacturing Co.2 In another case the complainant since 1891 had manufactured and advertised a numbering machine known as "the Bates numbering machine." In 1895 Bates, the patentee, severed his connection with the complainant and later organized the Bates Machine Co. In 1909 the defendant changed its name to the Bates Numbering Machine Co. and referred to its machines in its advertisements as Bates numbering machines. The court affirmed an order of the circuit court which restrained the defendant from using the words "Bates Numbering Machine Co." as its corporate name, or any other words resembling the trade name of the complainant which would mislead the public. In another case the complainant corporation, which was the first user of the name "Hall" in connection with the manufacture of safes, was granted an injunction restraining the defendant, a corporation engaged in the same line of business, from using the name "Hall" either alone or any combination as a corporate name, unless it was accompanied by a statement clearly indicating that the defendant was a separate and independent concern from the complainant. And in a recent case the Court of Civil Appeals of Texas held that the adoption of the name "Howe Grain Co." by a former manager of the "Howe Grain & Mercantile Co." upon engaging in a similar business at the same place, under the circumstances, was a fraud and deception upon the complainant and the public.5

4

The adoption of names likely to be confused with existing corporations is regulated to some extent by statute, but the fact that the State issues a charter to a corporation by a certain name does not give such corporation a right to use it for the purpose of deceiving the public. Of course, the right to a particular name will only be protected within the locality where the name is known. As was said by the Supreme Court of Washington, "There can not be unfair. trade competition unless there is competition." In this case the

1 Atlas Assurance Co. (Ltd.) v. Atlas Insurance Co., 138 Iowa, 228 (1907).

2 Celluloid Manufacturing Co. v. Cellonite Manufacturing Co., 32 Fed., 94 (C. C., 1887). 3 Bates Numbering Machine Co. v. Bates Manufacturing Co., 178 Fed., 681 (C. C. A., 1910).

4 Herring-Hall-Marvin Safe Co. v. Hall's Safe Co., 208 U. S., 554 (1908).

Hughes v. Howe Grain & Mercantile Co., 162 S. W., 1187 (1914). See also Crutcher & Starks et al. v. Starks et al., 161 Ky., 690 (1914); Buzby v. Keystone Oil & Manufacturing Co., 206 Fed., 136 (D. C., 1913).

* See p. 505.

Eastern Outfitting Co. v. Manheim et al., 110 Pac., 23 (1910).

plaintiff, under the name of the "Eastern Outfitting Co., of Seattle, Wash.," was engaged in the business of selling clothing in the city of Seattle and vicinity. It did no business in the eastern part of the State with the exception of one transaction with a customer who had moved from Seattle to Spokane. The defendant was engaged in the retail mercantile business in the city of Spokane under the name of "Eastern Outfitting Co." Subsequently the plaintiff undertook to engage in business in Spokane, claiming to have an exclusive right to the above name by reason of being the first user thereof. The court held, however, that the protection a party is entitled to in his trade name is only coextensive with his market, and instead of granting the relief prayed for by the plaintiff, enjoined the latter from using the name "Eastern Outfitting Co." in the city of Spokane. In like manner, it has been held that there can be no confusion of identity between two tailoring establishments of the same name located in the cities of New York and Chicago, although the contrary is true where such establishments conduct a mail-order business.2

3

PERSONAL NAMES.-As a general rule, equity will not prevent a person from using his own name, but when the name of a person has become closely associated with his goods or business the courts often regulate its use by a competitor of the same name who afterwards engages in business. One of the "Baker" cases illustrates the relief granted in such instances. There the defendant was restrained from using the words " & Co." and from using the word "Baker" alone, and was required to use the name in some distinctive manner when applied to the manufacture of chocolate. The business of the complainant had been established about the year 1780, while that of the defendant was of recent origin. This is only one of the many cases in which Walter Baker & Co. (Ltd.) have been complainants. In 1897 a defendant was required to place upon his packages in prominent type the words "W. H. Baker is distinct from and has no connection with the old chocolate manufactory of Walter Baker & Co." And in a suit by the same firm against William P. Baker the court required that the defendant should use his name in full," William P. Baker" or "William Phillips Baker."5 And in 1904 the defendant was restrained from advertising the goods of William H. Baker, of Winchester, Va., as "Baker's" goods."

A similar line of cases illustrating the care which a man must exercise in using his own name when entering a particular business in

1 Arnheim v. Arnheim, 59 N. Y. Supp., 948 (1899).

2 Ball e. Best, 135 Fed., 434 (1905); and see Grant r. Levitt, 18 R. P. C., 361 (1901). Walter Baker & Co. (Ltd.) v. Baker, 77 Fed., 181 (C. C., 1896).

4 Walter Baker & Co. (Ltd.) v. Sanders, 80 Fed., 889 (C. C., 1897). Walter Baker & Co. (Ltd.) v. Baker, 87 Fed., 209 (C. C., 1898). Baker & Co. v. Slack, 130 Fed., 514 (C. C. A., 1904).