sitate the inclusion of a large volume of legislation both civil and criminal in character. For this reason only a few classes of statutes having a direct bearing on competitive conditions have been selected for presentation in this chapter.

Section 2. Bribery of employees.

The bribery of another's employees has been made a criminal offense in a number of States. Although there are some variations in the terms of these statutes, they are similar in substance to an act passed in the State of New York. With respect to that statute, Justice Laughlin stated that

The corrupt practice of secretly offering bribes to servants, agents and employees, to induce them to place contracts for their masters or employers, had spread to such an alarming extent in this State that its viciousness and dishonesty and demoralizing tendencies attracted the attention of the Legislature at its session in 1905 and led it to declare it to be a misdemeanor to give or receive such a bribe, by enacting section 384r. of the Penal Code.2

The section above referred to is as follows:

Whoever gives, offers or promises to an agent, employee or servant, any gift or gratuity whatever, without the knowledge and consent of the principal, employer or master of such agent, employee or servant, with intent to influence his action in relation to his principal's, employer's or master's business; or an agent, employee or servant who without the knowledge and consent of his principal, employer or master, requests or accepts a gift or gratuity or a promise to make a gift or to do an act beneficial to himself, under an agreement or with an understanding that he shall act in any particular manner to his principal's, employer's or master's business; or an agent, employee or servant, who, being authorized to procure materials, supplies or other articles either by purchase or contract for his principal, employer or master, or to employ service or labor for his principal, employer or master, receives directly or indirectly, for himself or for another, a commission, discount or bonus from the person who makes such sale or contract, or furnishes such materials, supplies or other articles, or from a person who renders such service or labor; and any person who gives or offers such an agent, employee or servant such commission, discount or bonus shall be guilty of a misdemeanor and shall be punished by a fine of not less than ten dollars nor more than five hundred dollars, or by such fine and by imprisonment for not more than one year."

1 Connecticut Laws, 1905, ch. 99; Iowa Code Supp., 1907, secs. 5028 n, o.; Massachusetts Laws, 1912, ch. 495; Michigan Laws, 1905, No. 210; Nebraska R. S., 1913, sec. 8728; Nevada R. L., 1912, sees, 6786, 6796; New Jersey, 2 Comp. Stats., 1910, p. 1810, sec. 212e; New York Penal Law, sec. 439; North Carolina Penal Laws, 1913, ch. 190; Rhode Island Gen. Laws, 1909, ch. 349, secs, 21, 22; South Carolina Code, 1912. Cr. Code, sec. 277; Virginia Laws, 1906, ch. 260; Washington, Rem, & Bal, Code, secs, 2678, 2679; Wisconsin Stats., 1913, ch. 185, sees, 4575m, 4575n,

2 Sirkin r. The Fourteenth Street Store, 124 N. Y. App. Div., 384, 387 (1908). And see Ballin r. The Fourteenth Street Store, 193 N. Y. App. Dlv., 582 (1908), where Justice Hooker observed that the facts " reflect one phase of an unfortunate condition which is all too prevalent in the business world, namely, the bribing by wholesale deniers of purchas ing agents of prospective customers,”

New York Laws 1905, ch. 136; Penal Laws, sec, 4:39. See also Indiana Laws, 1907, ch. 120, prohibiting the bribery of railway employees, and 36 U. S. Stat»,, 553, prohibiting the disclosure by common carriers of information concerning shipments in interstate Commerce, pp. 499 500, and note.

In the first successful prosecution under this act it appeared that the defendants, one of whom was the superintendent of the Conley Foil Co., had paid a workman to obtain employment with a competitor, and had subsequently received from him the names of its customers, the dimensions of certain machinery, and a sample of its foil.1 It may be noted that this act has been availed of by merchants to avoid payment for goods received and retained by them, and unsuccessfully urged in an attempt to recover the entire sum expended for repairs to wagons which had since been worn out or destroyed.3

Section 3. Adoption of corporate names already in use.

GENERAL STATEMENT.-A number of States have statutes regulating the adoption of corporate names by domestic corporations. All of these statutes prohibit the adoption of a name already in use, while many also enjoin the taking of a name so similar to one already in use as to be likely to cause confusion. Those protected in the use of a previously adopted name are: Domestic corporations, foreign corporations which have been admitted to do business, companies, associations, and partnerships. Furthermore, it is provided in two States that a corporation can not adopt the name of a natural person unless words are used in connection therewith indicating the nature of the business to be carried on, followed by the style "Company," "Corporation," or "Inc." Some States provide that no foreign corporation will be admitted to do business under any name which is not plainly distinguishable from that of an existing domestic corporation, or that of a previously admitted foreign corporation. None of these statutes is of a penal nature, the effect being simply to prescribe certain conditions upon which charters or authority to do business shall be granted to corporations. In one

1 People v. Edward Pergoli and James Flood, N. Y. Law Journal, Jan. 14, 1907. Per Deuel, J. In the present case the defendants did not attempt to suborn an actual employee; they hired a spy to go into the business house of Lehmaier, Schwartz & Com pany; they made it a condition that he become an employee; they made no payment until he became such employee; they resorted to the spy system, which is universally condemned, save in the enforcement of law and the detection of evildoers. Such methods in ordinary trade competition do not appeal to the sympathy of a court."

See also Applebee r. Skiwanek, 140 N. Y. Supp., 450 (1912), involving an attempt to secure knowledge of a secret process.

It appears that there have also been two successful prosecutions based on the giving of secret commissions to another's employees for the purpose of securing custom. See statement of Hooker, J., in Ballin v. The Fourteenth Street Store, 123 N. Y. App. Div., 582, 583 (1908), and Kelby, J., in Hearn et al. v. Schuchman, 141 N. Y. Supp., 242, 243 (1913).

Sirkin v. The Fourteenth Street Store, 124 N. Y. App. Div., 384 (1908), reversing 55 N. Y. Misc., 288 (1907), and 54 N. Y. Mise., 135 (1907), Cf. Ballin r. Fourteenth Street Store, 123 N. Y. App. Div., 582 (1908), affirmed without opinion, 195 N. Y., 580 (1909). Hearn et al. v. Schuchman, 141 N. Y. Supp., 242; Schank et al. r. Schuchman, 212 N. Y., 352 (1914). See also Becket e. S. S. Hepworth Co., 129 N. Y. App. Div., 914 (1908); Rosenwasser r. Amusement Enterprises, 150 N. Y. Supp., 561 (1914). See, also, Sandford r. Miller, 80 N. J. Law, 411 (1910).

instance it is provided that a corporation which is doing business under a name assumed in violation of law may be enjoined from using such name, although its articles of organization may have been approved and a certificate of incorporation may have been issued to it. DOMESTIC CORPORATIONS.-The Alabama statute provides that

A certificate of incorporation shall set forth the name of the corporation; no name shall be assumed which is identical with that of any corporation already existing in this State, or so nearly similar thereto as to lead to confusion and uncertainty, nor shall the name of any person or partnership be assumed without the addition of some word or words designating the nature of at least one of the businesses to be carried on, followed by the word "company," "corporation," and "Inc." 1

A similar statute is in force in Missouri.2

The provision respecting the adoption of corporate names in the Alaska statutes is as follows:

The articles of incorporation

shall contain and state:

The name of the corporation, which shall not be the same as, nor so similar as to cause confusion with, the name of any other domestic corporation or foreign corporation admitted to do business in this territory.3

Similar laws are found in Illinois, Michigan, Minnesota, Utah," and Washington."

The corporation laws of Arizona provide that—

The articles of incorporation must contain tion,

*

name of the corpora* provided, that not more than one corporation shall have the same corporate name." Similar provisions are contained in statutes of Colorado, District of Columbia, Florida,12 New Hampshire, Rhode Island," and Vermont.15

13

The Delaware general corporation law requires that certificates of incorporation shall set forth:

The name of the corporation, which

*

shall be such as to distinguish

it from any other corporation engaged in the same business, or promoting or carrying on the same objects or purposes in this State."

1 Alabama Civil Code, 1907, sec. 3146.

2 Missouri Rev. Stats., 1909, sec. 2978,

* Laws of 1913, ch. 58.

4 Laws of 1905, p. 130.

Howell's Stats., 1913, sec. 9523.

Gen. Stats., 1913, sec. 6147.

7 Comp. Laws of 1907, sec. 314.

Remington & Ballinger's Code (1910), sec. 3680.

Rev. Stats., 1913, sce. 2100,

10 Mills' Ann. Stats. (1912), sec. 976,

11 Code, sec. 604.

12 Comp. Laws, 1914, sec. 2676,

13 Pub. Stats., 1901, ch. 147, sec. 3.

14 Gen. Laws, 1909, ch. 212. sec. 2.
Pub, Stats,, 1906, sec. 4288,
16 Gen. Corp. Law, 1899, sec. 5.

Similar statutes are in force in Connecticut, Kentucky, Missouri,3 Nevada, and Virginia."

The Indiana law requires incorporators to make, sign, and acknowledge a certificate which shall state:

The corporation name adopted by the company, which name shall not be the same as, or strikingly similar to, that of any existing corporation.*

Statutes of like purport and substantially similar wording are in force in California, Idaho," Mississippi, Montana,10 New Jersey,11 New Mexico, New York,13 North Carolina, Oregon,15 Porto Rico,16 West Virginia," and Wisconsin.18

12

The Massachusetts 19 and Ohio 20 laws do not forbid unconditionally the adoption of a name already in use by any other domestic corporation, but require that as a condition precedent to the adoption of such name, the new corporation shall file with its articles of association the consent, in. writing, of the corporation already using the same or similar name.

Under a provision of the Pennsylvania corporation law which requires certificates of incorporation to be presented to a law judge for approval, it has been held that a certificate of incorporation may be lawfully refused if the name proposed to be adopted is the same as or similar to that of an existing corporation.22

FOREIGN CORPORATIONS.-A number of States provide that a foreign corporation having a name the same as or strikingly similar to that of a domestic corporation or a foreign corporation already doing business in the State shall not be admitted to the State under that name. The Indiana law on this subject is as follows:

No foreign corporation having the same or strikingly similar name as any Indiana corporation, or having the same or strikingly similar name as any foreign corporation previously admitted to do business in this State, shall be admitted to do business in this State under such name.23

1 Pub. Acts, 1907, ch. 155.

Kentucky Stats. (Carroll), 1915, sec. 539.

Rev. Stats., 1910, sec. 3339.

4 Rev. Laws, 1912, sec. 1108.

Virginia Code, 1904, sec. 1105a.

Burns' Ann, Stats, (1914), sec. 5062.

Civil Code (Kerr), sec. 296.

$ Laws, 1911, ext. sess., ch. 6, sec. 8.

* Code, 1906, sec. 936.

10 Code, 1907, sec. 3825.

"Comp. Stats. (1910), p. 1603.

12 Stats., 1915, sec. 891.

13 Laws of 1913, vol. 1, ch. 24.

14 Pell's Revisal of 1908, sec. 1137.

15 Laws of 1913, ch. 220.

16 Rev. Stats., 1911, sec. 413.

17 Code, 1913, sec. 2899.

18 Rev. Stats., 1913, sec. 1772.

10 Supp. to Rev. Laws, 1902-1908, p. 876.

20 Gen. Code, 1910, see. 8628.

Pepper & Lewis's Digest, 1907, col. 1699.

22 American Clay Mfg. Co. r. American Clay Mfg. Co., 198 Pa. St., 189 (1901). 23 Laws of 1907, pp. 286–290.

Similar statutes are in force in Florida, Illinois, Massachusetts. Missouri, New York," and Vermont."

Section 4. Unauthorized use of names of corporations or individuals.

In two States statutes are found which make it a criminal offense for any corporation to use a name which is the same as or similar to that used by any other corporation. The Georgia penal code provides that

Any firm, person, corporation, or association who shall use the name or seal of any other person, firm, corporation or association, in or about the sale of goods or otherwise, not being authorized to use the same, knowing that such use is unauthorized, with intent to deceive the public in the sale of goods, shall be guilty of a misdemeanor.

The Maryland law provides—

It shall be unlawful for any individual, firm, partnership, corporation, association or joint stock company with intent to defraud to trade, do or transact any business in the State of Maryland under any name, trade name or title, which is the same as, or similar to, that used by any other individual, firm, partnership, corporation, association or joint stock company, previously using, trading or doing business under such name, trade name or title in the State of Maryland, or to imitate such name, trade name or title, Provided that this Act shall not apply to individuals possessing similar names."

INDIVIDUAL NAMES.-In addition to the Georgia and Maryland statutes above quoted there is a Massachusetts law which prohibits one person from assuming the name of any other person without the latter's consent, and authorizes the courts to restrain such use of individual names. The act is in part as follows:

A person who carries on business in this commonwealth shall not assume or continue to use in his business the name of a person formerly connected with him in partnership or the name of any other person, either alone or in connection with his own or with any other name or designation, without the consent in writing of such person or his legal representatives.”

Section 5. Counterfeiting or fraudulent use of labels, marks, and brands.

COUNTERFEITING.-Statutes prohibiting the counterfeiting or imitating of labels, marks, and brands are in force in 21 States and in the District of Columbia. Most of these statutes appear to have been passed primarily for the protection of trade-marks, and the

10

1 Comp. Laws, 1914, sec, 2682h.

2 Laws of 1905, p. 130.

Revised Laws, 1902, ch. 126, sec. 8.

*Rev. Stats, 1909, sec. 2039.

Cons. Laws, ch. 23, sec. 15.

Pub, Stats,, 1906, sec. 774.

7 Park's Penal Code (1914), sec. 257.

8 Maryland Laws, 1910, ch. 595.

Roy Laws (1902), ch. 72, sec. 5.

1 Statutes relating to union labels have been omitted.