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medicine, employed B, a foreigner, residing abroad, to manufacture it for him there, and sold it in England for his own sole profit, and a label and seal, denoting that the medicine was manufactured by B and sold by A, were affixed to the bottles in which it was sold, on a bill filed by A and B, against certain engravers and printers, for manufacturing seals and labels, the exact imitations of the plaintiff's labels and seals, with a view to their being affixed to bottles containing the medicine invented by the plaintiffs, for an account and injunction; a demurrer was allowed on the ground that B had no interest. It was held that the court would not protect the copyright of B in such seals and labels, he being a foreigner, and therefore not entitled to an account. The bill, too, did not charge that there was any sale of spurious medicine, and the court would not intend a fraud where none was alleged.' The name of a particular firm seems to be considered in the nature of good-will, and therefore the right to use the name of any firm goes to the surviving partner, and his representative on his death has a right to make use of that name in any manner he pleases, and may restrain others from using it. Thus, when A and B carried on business together, under the firm of A and L, and A died, and B carried on the business under the firm of B and Company, successors to A and L, and A's executors commenced the same business, under the firm of A and L, an injunction was granted to restrain him from using the name of that firm. When a party in asserting his title to vend a particular article, falsely states the manner in which he became possessed of the secret of the manufacturer, or the mode of obtaining and preparing the article, the court will not grant its protection to him, even though the article sold be a new production, or at least first introduced into this country by him. The vice-chancellor there said,

Delondre v. Shaw, 2 Sim. 237.
Pidding v. How, 8 Sim. 477.

Lewis v. Langdon, 7 Sim. 421.

"there has been such a degree of representation, which I take to be false, held out to the public about the mode of procuring and making the plaintiff's mixture, that in my opinion a court of equity ought not to interfere to protect the plaintiff until he has established his right at law." It was not necessary for the vice-chancellor to decide the point how far a plaintiff, having by some means or other acquired a method of mixing teas which was much approved by the public, sold it under the name of "Howqua's Mixture," and the defendant, finding that the plaintiff's mixture was in considerable demand, sold a mixture of his own, under the same designation, was entitled to restrain the defendant from so doing; but he expressed his opinion that the defendant was not at liberty to do that. If by "designation" the vice-chancellor meant "Howqua's mixture," it is apprehended, from the tenor of the other cases on this subject, that such a doctrine could not be supported; for if it could, it would go to the extent of creating, in such person, a monopoly for the sale of any particular production, which he might be the first to import. If by "designation" his honor meant "Howqua's Mixture" in packets, with labels and devices similar to the plaintiff's, then the doctrine is in accordance with the other authorities, and it is apprehended such must have been his honor's meaning, though at first sight it seems to the contrary. In Motley v. Downham,' a curious point arose, as to how far the non-user of a particular mark, and the user of by another person, transferred that right. The case was, whether a person, who, as tenant of particular works, had derived the benefit of using a distinguishing mark, employed for the purpose of marking the goods made there, and who, during the term of his lease, quits the premises, and establishes a similar manufactory elsewhere, and there, after the expiration of his lease, con

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'3 M. & C. 1.

tinues to use the mark which he had obtained the right to use, or at all events the benefit of using, by being tenant of the works, so far obtains the right to use that mark ever after, to the exclusion of the owner of the works, as under these circumstances to say to the landlord of the works, "not only have I acquired the right to use this mark, but you have lost the right to use it." The question was a matter of much nicety, and had never before come before the court; the court of chancery, under these circumstances, refused to grant the injunction, but permitted the right to be tried at law. It does not appear whether this right was ever tried at law; or if it were, what the result was. It would seem, however, that the right to use such a mark might, under the circumstances, be considered as attached to the manufactory, it having been first, and for a great number of years, continuously used by all the occupants of the works, whether owners or lessees. And it is suggested whether the right to use such a mark may not be considered as good will, and annexed to the situation of the works. The infringement of any right to use a particular name or mark does not consist in using the exact name or mark: a colorable imitation is as much an infringement of the right --and this, on the principles before laid down. A company was constituted by deed, under the title of "The London Conveyance Company," for the purpose of running omnibuses, and on their omnibuses were painted the words, "London Conveyance Company;" the defendants started omnibuses with the words "London Conveyancer Company."

It was then held,' that the company had a right to restrain the defendants from using those words in the manner specified, or in any manner, so as to induce the public to believe that their omnibuses were the omnibuses of the plaintiffs. The master of the rolls then said, he did not

'Knott v. Morgan, 2 Keene, 213.

hold "that the plaintiffs had any exclusive right to the words Conveyance Company, or London Conveyance Company, or any other words; but they have a right to call upon this court to restrain the defendants from fraudulently using precisely the same words and devices which they have taken for the purpose of distinguishing their property, and thereby depriving them of the fair profits of their business, by attracting custom on the false representation that carriages really the defendants' belong to and are under the management of the plaintiffs." According to the principle in this case, which is the principle pervading all the modern cases, lord Hardwicke's doctrine- that the court would not interfere to prevent one tradesman using the sign of another, is completely overruled; and, at the present day, there seems no reason to doubt but that in such case the court would grant an injunction. In a case decided in Easter term, 1833,' the vice-chancellor granted an injunction restraining the defendants from manufacturing and vending watches with the word "Pessendede," in Turkish characters, together with the plaintiff's initials, in Turkish characters, or with the plaintiff's cipher, engraved on them,the plaintiffs having been in the habit for many years of supplying watches for the Turkish markets with those marks and words upon them, although the defendants used such word and cipher with their own name, and not the names of the plaintiffs, and the word "Pessendede" signified in the Turkish language "warranted." The court then held, that in this case the principle of fraudulent representation applied. The case of Millington v. Fox carries the doctrine even further than the former cases. The plaintiffs in that case filed a bill to restrain the defendants

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Goutt v. Aleploghler, not reported, but argued by Mr. Knight Bruce and Mr. Roe, for the plaintiffs, and by Mr. Spence for the defendants. Register Book A. 1832, folio 1247.

23 Mylne & C. 338.

from using certain trade marks, and the court, on the hearing of the cause, granted a perpetual injunction; although it appeared that the defendants had used such marks in ignorance of their being any person's property, and under the belief that they were merely technical terms. We here see, that the fraudulent use of the marks need not be wilful fraud, and it seems that this is a natural consequence of the principle on which relief is granted in these cases. The plaintiff has a right to be protected, and to restrain any improper use of his name or reputation; and he has a right to this whether the injury be done innocently or otherwise. In a late case, heard in July last,' the plaintiff claimed to be entitled to use a certain mark upon his iron, which was intended for, and regularly sold in, the Turkish market, and was well known there: the mark was W. C. in an oval ring. The infringement complained of was, that the defendants supplied the Turkish market with iron marked with W. O. in an oval ring, and that such mark was a colorable imitation of plaintiff's mark, and that the difference between the two in appearance was so slight that parties were deceived. The mark was stated in the bill to have been used by the grandfather and father of the plaintiff, who carried on the same business; but the affidavit of the plaintiff swore only to user by him, and it appeared that the infringement took place very shortly after the plaintiff's commencing to use this mark. The defence set up, was, that the mark W. O. in an oval ring was a well-known ' mark used by the Romans, and that iron so marked was in great request in the Turkish market, and that the defendants had no intention of imitating plaintiff's mark. The vice-chancellor, however, refused to grant the injunction on the ground of the plaintiff not having shown a sufficient

1 Crawshay v. Thompson, not reported, but argued, by Mr. Jacob, for the plaintiffs, and Mr. Knight Bruce and Mr. Roupell, for defendant.

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