fered a prize for solution of the simplest | tained representations of fact concerning REPRESENTATIONS MADE WITH REASON- "There can be an honest, though mis- (See also Horn v. United States, 182 Where a so-called manual of instruc- ADVERTISING COURT DECREE TO INJURE "I see no reason why plaintiff should (See also Rollman Manufacturing Co. APPROPRIATION. [See also Misbranding, Passing off, Simulation.] I. VALUES CREATED BY ANOTHER. 1. Advertising matter of a competitor-Publishing maps. The copying and appropriation, by a publisher of maps, of the context, subject matter, statements, impressions, language, punctuation, typographical arrangement, and general appearance of the advertising matter of competitors, held to constitute an unfair method of competition. (Geographical Publishing Co., 1 F. T. C. 235.) COPYING OR USING ADVERTISING MATTER OF ANOTHER CONSTITUTES UNFAIR COM- The practical adoption, by an infringer, of the advertising literature of the manufacturer of a patented article, even including its trade name, held to constitute an unfair method of competition. (Farmers' Handy Wagon Co. v. Beaver Silo & Box Manufacturing Co., 236 Fed. 731.) THE USE OF ADVERTISING MATTER OF A COMPETITOR OBTAINED WHILE IN ITS EMPLOY IS UNFAIR COMPETITION AND ITS USE IN A COMPETING BUSINESS MAY BE ENJOINED. Making preparations for a competing business, and obtaining advertising matter from a manufacturer by trusted employees while in his employ, is unfair competition, and the use of such information by a competing firm with which said trusted employees have become connected may be enjoined. (Todd Protectograph Co. v. Hedman Mfg. Co. et al., 254 Fed. 829; affirmed, 265 Fed. 273.) RIGHT TO PARAPHRASE COMPETITOR'S Defendant practically paraphrased complainant's circulars and other advertising including its cuts and pictorial matter, and it also followed complainant in the use of blank order forms or coupons. In delivering the opinion in this case, Judge Kohlsatt said: "In the paraphrasing of complainant's advertising literature and the approximation of its pictorial matter, defendant's actions were unethical rather than fraudulent. * * * The evidence discloses that the two mixtures accomplish the same result. Naturally, the advertising would be more or less similar both in language and pictures. There was no bad faith in using order forms or coupons, since these are shown to be in common use in the mail-order business * * "The evidence discloses somewhat overzealous business competition rather than unfair competition or fraud." (S. R. Feil Co. v. John E. Rollins Co., 220 Fed. 650, 652.) NOT UNFAIR COMPETITION, WHEN PROPERLY ACCOMPANIED WITH THE NAME OF THE ADVERTISER, to appropriate and use cuts and expressions from complainant's advertisements in news and trade papers. when directed to obtain agents for its goods, and not intended to make sales to the ultimate purchaser. (Edward Hilker Mop Co. v. United States Mop Co., et al., 191 Fed. 613.) 2. Duplicating competitor's goods. Where a corporation engaged in the manufacture of perforated paper music rolls for player pianos, purchased rolls manufactured and sold by competitors from which it made and sold duplicates, thus avoiding the greater part of the cost of the production of a musical number in the form of a perforated paper roll, namely, cost of producing the original or "master" rolls of the different numbers published, from which "master" rolls duplicates in any quantity are readily manufactured, and thereby secured itself an undue advantage over competitors by appropriating results of their ingenuity, labor, and experience, held that such acts of appropriation constitute an unfair method of competition. (Orient Music Roll Co., 2 F. T. C. 176.) THE APPROPRIATION OF THE BUSINESS SYSTEM, COMMERCIAL QUALITIES AND REPUTATION OF COMPETITOR AND HIS GOODS, DECLARED TO BE UNFAIR COMPETITION. Complainant, an English company, sold mechanical toys, patented in England, accompanied by a manual copyrighted in the United States; the defendant later put on the market a mechanical toy which simulated the "collocation of details of appearance by which the consuming public had come to recognize the product of his competitor," in other words he appropriated the value created by and belonging to another. In delivering its opinion, the court said: "Unfair competition exists also in that the complainant has established a business system which is peculiarly its own. This was done at the expense of time, thought, labor, and much money. If it be assumed that this court is in error with respect to the findings of palming off of defendant's goods for the complainant's, establishing thereby unfair competition, yet the defendant uses complainant's business and the system it has established. In this it has acquired a property right of which its competitor can not deprive it by introducing his goods into, and as a part of, complainant's business and business system. * * * It can not be that the defendant can build up his own business by taking away complainant's business through the very method established by complainant for carrying it on." (Meccano (Ltd.) v. Wagner et al., 234 Fed. 912; affirmed in 246 Fed. 603.) Complainant was engaged in purchasing and selling records of vocal and instrumental music for use upon machines made under the Berliner patent. The defendant was engaged in advertising and selling records under the claim that they were all "duplicates from the original records made by the artists." The fact was, however, that defendant's * * records were made from the commercial records of the complainant and were copies of the same. In delivering the opinion of the court in this case, Judge Chatfield said: "We therefore reach the broad question of the power of the court of equity to secure an individual, by injunction, full enjoyment of both corporeal an incorporeal rights in property created by him or at his expense, and capable of taking by another, where such taking either diminishes or destroys the enjoyment of those rights by the owner and diverts a part of the enjoyment or profits. * Equity has granted relief in certain typical lines of cases where the doctrine of unfair competition seems to have been the guide to the decision, but where the basis upon which the relief was granted was the unfair taking of the complainant's property rather than the deception of the purchaser. It can not now be determined how far such appropriation can be prevented; but it would seem that where a product is placed upon the market under advertisement and statement that the substitute or imitating product is a duplicate of the original, and where the commercial value of the imitation lies in the fact that it takes advantage of and appropriates to itself the commercial qualities, reputation and salable properties of the original, equity should grant relief." (Fonotipia (Ltd.), et al., v. Bradley, and Victor Talking Machine Co. v. Bradley, 171 Fed. 951.) Complainant manufactures and sells acetylene gas for automobile illumination put up in metal containers of peculiar construction, and also provides an exchange system by which an automobile owner having once purchased a tank can exchange it when empty for a filled tank at a nominal charge in almost any town in the United States of over 2,000 inhabitants. Defendants sold for a similar use acetylene gas made by a competitor of complainant and put up in different containers. The competing manufacturers also having a similar exchange system, but in order to enable purchasers of its gas to take advantage of complainant's exchange system, purchased a quantity of complainant's empty cans which defendants filled with competing gas and sold to consumers. It was held that while defendant had a perfect right to purchase complainant's empty containers from the owner, complainant's exchange system was a property right which was impaired by defendants filling such tanks with competing gas and selling them, which constitutes unlawful competition even though defendant pasted a paper label over the trade name of complainant's which purchasers could by close observation discover and see that the gas con tained therein was not that of complainant's. (Prest-O-Lite Co. v. Davis et al., 209 Fed. 917; affirmed in 215 Fed. 349.) In a similar case the court said: "So it is apparent that something more is involved here than the question of rights flowing from the sale and purchase of original Prest-O-Lite gas packages; that something more is an incorporeal right that may best be called service, the right to serve and be served without interference from outsiders. Such a right, as a species of property, has been recognized and upheld." (Searchlight Gas Co. v. Prest-O-Lite Co., 215 Fed. 692.) (See also: Prest-O-Lite Co. v. Avery Lighting Co., 161 Fed. 648; Prest-O-Lite Co. v. Post & Lester Co., 163 Fed. 63; Prest-O-Lite Co. v. Bogen, 209 Fed. 915.) 3. Using a competitor's methods and material.-A corporation having offices in many of the more important cities had long engaged in the biennial publication of the well-known reference book Who's Who, the general appearance of which was uniformly the same; thereafter a competitor, with the intent and effect of misleading the public into confusing it with said corporation and thereby securing desired data and subscriptions, sent prospective customers certain letters containing such statements as "You will find attached a proof of your biographical matter, prepared for insertion in the forthcoming edition of Who's Who and Why" and "Attached hereto is a clipping of your biographical matter" (taken from the latest edition of Who's Who), requesting any necessary additions or corrections and its return, together with a subscription to the forthcoming edition of Who's Who and Why, following the method used by the original Who's Who in soliciting such data and subscriptions, and thereby misleading many into complying in the belief that they were subscribing to the original Who's Who; held that such appropriation constituted an unfair method of competition. (Federal Press (Inc.) and C. W. Parker, 3 F. T. C. 345.) 4. Trade name of competitor.—A corporation engaged in the manufacture and sale of electric lighting plants used its well-known trade name "Universal" in advertising, referring to, and selling its product; thereafter two competitors adopted and applied said trade name to their respective products in advertising and selling the same, held that such appropriation of trade name constituted an unfair method. of competition. (Universal Motor Co. and Universal Products Co., 3 F. T. C. 387.) THE USE OF THE SAME TRADE NAME ON "The registration and use by complain- AUTHORITY FROM STATE TO USE CERTAIN In an action to restrain sale of rubber (See also Coca Cola Co. v. Stevenson IN GENERAL-THE RIGHT OF THE PUBLIC Upon the expiration of a patent, the "The use of the word 'Scandinavia' as not give the public the right to use the THE RIGHT OF THE PUBLIC TO THE USE It may be stated as a general rule that On the expiration of either a patent or THE UNAUTHORIZED USE BY A RIVAL IN One who gathers news, at his own ex- |