per cent of pure coffee, the remainder consisting of a substitute. Suit was brought under section 1. The court held that in using the words "coffee mixture" and "superfine coffee mixture" the defendant had made an untruthful statement; that, taken in its entirety, the advertisement was of a nature to lead the public to believe that pure coffee was being offered to the public at a remarkably low price.1

As a result of the activities of British-American Tobacco Co. interests in Germany in acquiring control of cigarette manufacturers, the independent concerns adopted the policy of advertising themselves as "independent of a trust" (trustfrei). A cigarette concern in Dresden, a majority of whose stock had been secretly acquired by the trust in order to obtain the patronage of hostile dealers, advertised and proclaimed itself as independent. Suit was brought by an independent manufacturer for violation of sections 1 and 3 of the Law of 1909. The lower court enjoined the defendant from advertising itself in this manner, and upon appeal the decision was affirmed by the highest court.2

CREATING CONFUSION.-Cases involving confusion of products are usually brought under the various provisions of the trade-mark law (see p. 621); those involving confusion as to establishments under section 16 of the law of 1909. Frequently, however, confusion cases of both kinds are brought under the two general sections either alone or in conjunction with the special provisions. Numerous cases of this kind have dealt with the use of the designation "Pilsener" for beer not brewed in Pilsen. According to one writer, the Imperial Court in the beginning appears to have followed the view that such use of the designation "Pilsener" was contrary to section 16 of the law of 1909, but more recently it has, apparently, been inconsistent in its decisions, declaring, for instance, that the designation "Radeberger Pilsener" was permissible while "Engelhardt Pilsener" was not, that the designations "Hansaquell" and "Germania " Pilsener would mislead the public, while "Tinzer Pilsener" would not.3

A few cases involving confusion either in respect to products or establishments which have been brought under the general provisions follow.

A brewery in Bochum sold its beer under the designations "Schlegel-Pilsener" and "Deutsch-Pilsener." It also desired that its beer should be sold in the taverns as "Pilsener." Suit was brought by the breweries in Pilsen to enjoin the use of the designation" Pilsener " under section 1 of the law of 1909 and section 826 of the Civil Code. In keeping with former decisions, the court held that the use of such

1 Oberlandesgericht Kiel, Urt. v. 15. Juni 1911; Gewerblicher Rechtsschutz und Urheberrecht, 1912. S. 73.

# Reichsgericht, Urt. v 30. März 1915: Monatsschrift für Handelsrecht und Bankwesen, 1915, S. 126; also Kartell-Rundschau, 1915, p. 106.

* Markenschutz und Wettbewerb, Bd. XIII, S. 307.

words as "Pilsener" or "Münchner" for designating beers not brewed in Pilsen or Munich is permissible if by means of prefixes, especially those indicating definitely the location of the brewery, it is made clear, beyond a doubt, that these words designate only a quality and not the provenance of the beer. But in this case, as shown by the selling of the beer in the taverns as "Pilsener," the defendant intended to deceive the public by establishing a confusion between his products and the "world-renowned" real Pilsener beer, which involved an act repugnant to good morals within the scope of section 826 of the Civil Code, and especially within the scope of section 1 of the Law against Unfair Competition."

Some breweries in Berlin used the name "Engelhardt Berliner Pilsener" on their containers, price lists, etc. Suit was brought by the breweries in Pilsen to enjoin the use of this designation on the ground that it was a violation of section 16 of the trade-mark law, sections 1 and 3 of the law of 1909, and section 826 of the Civil Code, since it was a false statement of provenance made for the purpose of deception and was also repugnant to good morals. The lower court held that the suit was properly brought, but that the use of this des ignation was not a violation of these sections, since it did not refer to the provenance but to the manner in which the beer was brewed. Upon appeal the plaintiffs sought to prove that the beer was not brewed in the manner of Pilsener beer and that consequently the name was a false designation of process in the sense of section 3 of the law of 1909. The Imperial Court, however, ruled out this new evidence.3

A person having the name Adolf Hommel, jr., placed on the market a pharmaceutical product bearing his firm name and the name "Haematogen," in competition with a well-known product of the same name manufactured by the Hommel Haematogen Co. The latter brought suit against Adolf Hommel under sections 1, 13, and 16 of the law of 1909 and section 826 of the Civil Code. The lower court held that the words "Hommel" and "Haematogen" used by the defendant on his product created a confusion with the original product and, therefore, was a violation of section 16; also, that the act of wilfully creating confusion in this manner was repugnant to good morals and a violation of section 1. The Imperial Court affirmed the decision.*

Before the above decision was rendered the defendant dissolved the firm of Adolf Hommel, jr., and organized the company of Adolf

1 See Entscheidungen des Reichsgerichts in Civilsachen, Bd. 79, S. 253.

2 Reichsgericht, Urt. v. 28. Nov. 1913; Gewerblicher Rechtsschutz und Urheberrecht, 1914, p. 162.

3 Reichsgericht, Urt. v. 15. April 1912; Markenschutz und Wettbewerb, Bd. XII, 8. 515 4 Reichsgericht, Urt. v. 10. Juli 1913; Markenschutz und Wettbewerb, Bd. XIII, 8. 06.

Hommel & Co. Another suit was then brought by the plaintiff under sections 1 and 16 of the law of 1909 to enjoin the new company from the use of the names "Hommel" in connection with "Haematogen." This the court did, and further ordered the dissolution of the new company and forbade the defendant to use the name "Hommel" in case another new company should be formed, on the ground that otherwise the same confusion would result. Upon appeal this decision was affirmed by the Imperial Court on the same date as the decision in the original suit. The court held that while the defendant had the right to use the word "Hommel" in business undertakings, that being his name, and even in the Haematogen business, he must not use it in such a way as to cause confusion with the business and products of a competitor.1

A manufacturer of spring mattresses registered a trade-mark which was an imitation of a competitor's design. Suit was brought to have the trade-mark canceled on the ground that its registration was against good morals. The Imperial Court held, in accordance with numerous decisions of the same nature, that the extinction of a trademark, although properly registered in conformity with the provisions of the trade-mark law, could be demanded on the basis of section 826 of the Civil Code, as well as section 1 of the law against unfair competition, if the effect of the registration was a breach of good morals.2 ARBITRATION BOARDS.-The most recent development in Germany regarding the suppression of unfair competition consists in having complaints of unfair competitive practices arbitrated and settled by a so-called board of arbitration (Einigungsamt), the members of which consist partly of business men.3

This new method of settling unfair competition cases, originated by practical business men, has proved so successful and has given such general satisfaction that it is being substituted for the regular court trials more and more throughout the Empire. It is argued in favor of this method that it does away with expensive and long litigation and the animosities, as well as the public disgrace, arising therefrom, and that it offers speedy relief instead of the cumbersome procedure and traditional rigid formality of ordinary court trials. In addition to arbitrating disputes the main functions of the board of arbitration are to exercise an educating and enlightening influence upon the business world regarding fair and lawful competition.

These new arbitration boards have proved to be especially useful in cases where the decisions of the Imperial Court, in conformity

1 Reichsgericht, Urt. v. 10. Juli 1913; Markenschutz und Wettbewerb, Ed. XIII, §. 67. * Reichsgericht, Urt. v. 16. Jan. 1913; Markenschutz und Wettbewerb, Bd. XII, S. 471.

* Berliner Jahrbuch für Handel und Industrie, Bericht der Ältesten der Kaufmannschaft von Berlin, 1912, Bd. I, S. 347, and 1913, Bd. I, S. 357.

with the letter of the law, were not broad enough and had not kept pace with the progress of current business methods and customs.

The first of these arbitration boards was organized October 8, 1910, by the Seniors of the Merchants of Berlin. Up to the close of 1911 it had acted in 20 sessions on 156 complaints, of which 106 were settled by arbitration. During the year 1913 the board received 82 complaints against 119 for the preceding year. In 40 cases an agreement was reached and in 16 other cases the claims were settled. This Berlin experiment rapidly found favor among business men and chambers of commerce throughout Germany, and within two years (1910-1912) similar boards were established in 16 German cities, among them Düsseldorf, Munich, Frankfurt a. M., Frankfurt a. O., Strassburg, etc.

Six other cities are planning to establish similar boards.

Regulations of the Berlin Board of Arbitration. For the settlement of contests on account of unfair competition a board of arbitration (Einigungsamt) in matters of unfair competition is established by the Corporation of the Merchants of Berlin:1

ART. 1. The board of arbitration meets whenever its mediation is agreed upon by the parties in interest. In case only one party appeals to the board the chairman shall notify the other party, and shall at the same time make an effort, to the best of his ability, that the second party also agree to appeal to the board of arbitration.

ART. 2. The board of arbitration consists of the chairman and four associates. The chairman is the syndic of the Corporation of the Merchants of Berlin; his substitute as chairman is the deputy syndic or a jurist who is eligible for a judgeship.

In each case the Seniors of the Merchants of Berlin and, in urgent cases, their presidents, shall appoint four business men as associate members; of these, if possible, two shall belong to the same branch of business as that in which the act of unfair competition is alleged to have been committed. The associate members, who shall belong to the branch of business in question, are to be selected primarily from the lists proposed by the branch association. In the same way four substitutes are appointed.

It is permissible to appoint as associate members also employees in a qualified position.

ART. 3. The plaintiff shall file the complaint, together with motivation and any proofs, if possible, in three copies, with the chairman of the arbitration board.

ART. 4. The proceedings before the board of arbitration shall be oral and secret. Associations for promoting business interests are entitled to be present; upon request they are also to be heard.

ART 5. The parties may be represented by business men or persons with a knowledge of law.

ART. 6. A record is to be kept concerning the proceedings before the board of arbitration. By being incorporated in the record, the results of the proceedings. especially agreements and decisions, are to be established.

1 Berliner Jahrbuch für Handel und Industrie, Bericht der Ältesten der Kaufmannschaft von Berlin, 1910, Bd. I, 8. 538.

ART. 7. If an agreement is not reached the board of arbitration may issue an award, provided the parties have signed the following written declaration: "We agree that the arbitration of the legal contests existing between us relating to unfair competition shall be effected through the board of arbitration of the Corporation of the Merchants of Berlin in matters of unfair competition, which shall also decide as regards the costs of the trial; furthermore, that we shall be liable as joint debtors for the expenses of the board of arbitration-reserving any claims on our part for restitution; also, that the Royal Lower Court. of central Berlin, or the Provincial Court I of Berlin, shall be considered the proper court for filing the decision."

ART. 8. No fees are collected for the trial by the board of arbitration. The chairman may demand a suitable advance for covering expenses.

Section 11. Austria.

INTRODUCTORY.—Unfair competitive practices in Austria are prosecuted under various provisions of the Penal Code and special laws. There appears to be no general provision of law applicable to such practices. The Civil Code contains in section 1295 a general provision similar to article 1382 of the French Civil Code, which reads as follows:

SEC. 1295. Every person is entitled to demand from the injurer compensation of the injury which the latter has done him as a result of a wrong; the injury may have been caused by a breach of a contract obligation or without any relation to a contract.

This section has not been utilized as a means of protection against unfair competition on account of the narrow interpretation given it by the courts. Austrian jurisprudence has always, in theory and practice, interpreted the term "wrong" (Verschulden) in this section in such a manner that to constitute liability for compensation it requires the breach of a contract obligation or the violation of an explicit provision of a law or of a legal decree.' The Administrative Court (Verwaltungsgerichtshof) declared it to be a generally estab lished principle that "every kind of competition is permissible which does not conflict with the legally protected rights of others."2

Austria as yet has no comprehensive special law against unfair competition. In order to prepare such a law, the Austrian minister of commerce, in a decree of September 7, 1899 (Z. 47800), called upon the chambers of commerce and trade for their opinions and suggestions concerning certain kinds of unfair competition, and a bill was drafted in 1906.3

1" Gutachten über die mit dem Erlasse des K. K. Handelsministeriums, 6. Okt. 1906, versendeten Gesetzentwürfe betreffend den Schutz gegen unlauteren Wettbewerb," Wien, 1906, S. 22.

2 Erkenntnis v. 4. Okt. 1882, Z. 1513, Budwinski: Die Erkenntnisse d. K. K. Verwaltungsgerichtshofes, 1882, Nr. 1513, S. 443.

3 Entwurf eines Gesetzes betreffend den Schutz gegen unlauteren Wettbewerb; No. 2596 der Bellage zu den stenograph. Protokollen des Abgeordnetenhauses, XVII. session, 1906. See also Leonhard, Der Unlautere Wettbewerb und seine Bekämpfung, 1903, S. 96 fol.