practices in the end would spell destruction to the author or in

ventor.

Combinations may be formed to overcome or undersell useful inventions or other new productions and to crowd them out of the market by means which involve unfair or underhand dealings; and where wealth and business ability are allied against him, the originator has often been compelled to submit to the loss of years of earnest effort along useful lines. Thus it very frequently happens that the inventor and the author are concerned at least in equal measure with the public in the prohibition of those "unfair methods of competition in commerce" which it is the purpose, province and function of the Federal Trade Commission to prevent, in protection of public interests.

These methods have been in evidence in every State and Territory, not to mention the Insular Possessions and the other places under the jurisdiction of the United States, and the necessity for reforming and curative measures has not passed unnoticed by writers of authority upon the subject.

A recent writer, when discussing broadly the effect of such practices upon the rights of proprietors of trade-marks and tradenames, has treated the subject in a manner that appears equally applicable to those interests concerned in the ownership of patents and copyrights:

"Unfair competition is not confined to acts directed against the owners of trade-marks or trade-names, but exists wherever unfair means are used in trade rivalry. Equity looks not at what business the parties before the court are engaged in, but at the honesty or dishonesty of their acts. It is unfair to pass off one's goods as those of another person; it is unfair to imitate a rival's trade name or label; but he who seeks to win trade by fair means or foul is not limited to those methods. He may copy or imitate the actual goods made or sold by a competitor thus producing confusion in the minds of purchasers, which enables him to purloin his rivals' trade, and in a hundred other unfair ways secure another's trade. All acts done in business competition are either fair or fraudulent, equitable or inequitable, whether they relate to marks or not; and it is believed that the question of trade-marks will soon be lost sight of in discussing un

fair competition, in the problem of securing, through the principles of equity, full protection to every merchant against unfair business methods."24

The same author traces the source of the term "fair competition" or "unfair competition" to a decision by Lord Elden in 1803,25 and concludes: "It is, then, in reality the name, unfair competition, that is new, not the theory bearing the name; and relief formerly given ** was relief based on the principles of unfair competition."28

Genesis of Application of Anti-trust Ideas to General Business Methods.-Perhaps it may be permitted to deal briefly with the origin of the inclusion of unfair trade methods within the Anti-trust prohibitions,-a cause which was not without able advocates, as appears from the extracts contained in the preceding paragraph.

The history of the movement to protect business good-will controverts the charge that the administration of President Wilson was anti-corporation in establishing the Trade Commission. In this connection it is interesting and instructive to note that it was William Howard Taft, sitting as a member of the Circuit Court of Appeals, Sixth District, in 1898, who first applied the Sherman Act to the ordinary industrial combination. His definition of interstate commerce is very inclusive, viz:

the soliciting of orders for, and the sale of goods in one State, to be delivered from another State, is interstate commerce in its strictest and highest sense. If this extends Federal jurisdiction into fields not before occupied by the general government, it is not because such jurisdiction is not within the limits allowed by the Constitution of the United States."27

Ex-President Taft has confirmed those early expressions in the following words:

"It is hard to reach any other conclusion, after consideration of the old legislation and the new, than that unfair

24 Nims, Unfair Business Competition, 2.

25 Hogg v. Kirby, 8 Vesey 215.

26 Nims, Unfair Business Competition, 13.

27 U. S. v. Addystone Pipe, etc., Co., 85 Fed. 271, 806, 814; affirmed, 175 U. S. 211.

competition only includes those methods and practices in interstate trade the effect and intent of which would bring them within the scope and condemnation of the first and second sections of the Sherman Act."

The public sentiment thus voiced by authority found its way into the platforms of the respective political parties, and the Baltimore platform promised relief in the declaration—

"A private monopoly is indefensible and intolerable."

It was to effectuate this pledge that President Wilson urged upon Congress the enactment of legislation supplementing the Sherman Act and making its principles of broader application, in the hope and expectation that this course would reduce rather than enlarge the volume of prosecutions required to protect honest business from encroachment through unfair means.

Referring to the situation prior and subsequent to the passage and approval of the Federal Trade Commission Act and Clayton Law, President Wilson has said:

there was no law to check the practices by which monopoly was built up until the tree was full grown and its fruit developed, or, at any rate, until the full opportunity for monopoly had been created. With this new legislation there is clear and sufficient law to check and destroy the noxious growth in its infancy."

Ability and Prestige of Sponsors of Legislation Reinforcing and Enlarging Anti-trust Laws.-These sentiments represent more than mere opinions of citizens of highest repute and ability; they stand out in bold relief as sentiments of typical members of opposing parties who have joined in a common expression of the needs of the business interests in furtherance of the common good. One is a spokesman of the legal profession who adorned a judicial position of great importance and subsequently was elevated to the office of chief magistrate; the other has received equal honors after service as Governor of a State and as presiding officer of a university.

The Federal Trade Commission is the outcome of mature deliberation by Congress, aided and approved by citizens who individually and officially are the exponents of the progressive spirit of the times.

It is hoped and believed that the Commission will be mindful of the mandate it has received from the people and of the sterling qualities of its sponsors, and that this semi-judicial body will justify the deliberations and the judgment of those who are responsible for acceding to an awakened public conscience by this reinforcement and enlargement of the Anti-trust laws. That a movement so broad and so deep will include benefits to numerous interests, is assured; and the rights of authors and inventors will be certain to share in the equal protection which the Anti-trust laws, thus supplemented, provide for every citizen.

Experience Adjusts Problems.-It is one of the fortunateor unfortunate-features of older social organizations and governments that certain questions of necessity have been worked out, reduced to a system and filed away in the pigeonholes of things accomplished, before corresponding problems arise to vex the mind in jurisdictions instituted at a later date.

Monopoly an Incident to Chartered Companies. Thus, the trust question with its various ramifications of monopolistic tendencies in business had been met and to a considerable degree conquered during the period when the chartered companies of England and Holland flourished and were in possession of by far the greater portion of this continent. In fact, the rights conferred by King Charles the Second, in 1670, were so extensive that the Hudson Bay Company claimed title in fee to territories equal to the whole expanse of Europe. That those rights were no empty grant is seen by their commutation for a one-twentieth interest in the Canadian public lands under a compromise effected in 1870, and confirmed by the Parliament of that Dominion, thereby terminating a tenure extending through two centuries. It is true this phase of history has no direct connection with the topic before us, but it is nevertheless of some service in pointing out and emphasizing the fact that at a period when bison-trails were the only roads and savage tribes the only inhabitants of western plains destined to become great and powerful States-in Europe the forces of organized society were slowly but surely evolving solutions for the intricate questions that form an integral part of or at least are incident to existence under the forms of modern civilized life.