long use had familiarized the public with this particular brand, began the sale of almost identical labels to other manufacturing dealers in mustard, the court did not refuse its protection to the original maker."

As might be expected, the proprietors of "Castoria" have not retained their customers unchallenged by the swarm of imitators which surrounds a successful enterprise. In resisting such an assault (after the name had become public property), it was proven that the defendant had copied the color, type, arrangement and general appearance of complainants' wrapper. In deciding the case, the court said:

"Bearing in mind that the complainants' wrapper was well known to the trade for years before the adoption of that of the defendant, it is impossible, in view of the accumulated resemblance, to avoid the conclusion that these similarities were not the result of chance, but are chargeable to design."19

The Federal court has well summarized the situation presented by cases to restrain unfair means of diverting trade when it said, in affording protection against imitators of Hire's Root Beer:

"An action like the present proceeds * * * upon the principle that one may not, by means lawful in themselves when devoted to a lawful end, perpetuate a fraud upon the public, or infringe the rights of another."20

That imitators are no respectors of persons but rather, mothlike, are attracted by the light of conceded excellence, is common knowledge. Literary distinction and reputation offer shining marks, as seen in efforts to duplicate "The Harvard Classics-Dr. Eliot's Five-foot Shelf of Books," and in the "Chatter-Box" cases.22 In each instance the court held that originality and use had conferred property rights.

18 Colman v. Crump, 70 N. Y. 573.

19 Centaur Co. v. Killenberger, 87 Fed. 725 (1898).

20 Chas. E. Hires Co. v. Consumers' Co., 100 Fed. 809 (1900), Id. v. George A. Hires, 182 Pa. St. 346 (1897), 37 Atl. 1117.

21 Collier v. Jones, 66 Misc. (N. Y.) 97, 120 N. Y. Suppl. 991; modified in 140 N. Y. App. Div. 911, 125 N. Y. Suppl. 1116.

22 Estes v. Williams, 21 Fed. 189, 190. Later cases in which the foregoing decision is approved and followed: Estes v. Worthington, 31 Fed. 154, 24 Blatch. 371; Estes v. Worthington, 30 Fed. 465; Estes v. Leslie, 27 Fed. 22, 23 Blatch. 476; Estes v. Worthington, 22 Fed. 822, 23 Blatch. 65; Estes v. Belford, 30 Off. Gaz. 99.

Petitioners must come with "Clean Hands."-Of course, it is not every complainant that is entitled to the court's aid. Those who are seeking some unfair advantage or are engaged in working off some worthless product will not be protected from assaults by others of the same class. Indeed, the assurance of some litigants is amazing and affords a source of amusement to readers of decisions, as it no doubt did to the courts which were in duty bound to pass upon the questions thus propounded.

An instance of this assurance in its most aggravated form appears in the early decisions. The proprietor of a concoction in the form of a cosmetic rejoicing in the euphonious title, "The Balm of a Thousand Flowers," obtained a temporary injunction restraining a rival from employing the still grander name, "The Balm of Ten Thousand Flowers."23 The proofs showed it to be compounded of oil, ashes and alcohol; whereupon the judge dissolved the injunction and refused relief on the ground that an article so composed, containing no trace of elixir from any flower, was calculated to attract, deceive and impose upon the public. In its opinion the court intimated that taking the claims of such mendacious dealers at their face value, it was folly to grow old and a mistake to die.24

5. IMITATORS DISPLAY ENDLESS INGENUITY.

Expansive Term Required. The framers of the Federal Trade Commission Act were wise in abiding by their determination to refrain from any definition whatever of "unfair methods of competition in commerce," recognizing that to meet and overcome new forms of deceit and unfairness as they arise, the term itself must remain elastic. That time will justify this course, there can be no doubt. As was well said by one of the Law Lords of the British court of last resort in the leading case of Reddaway v. Banham (page 215, supra): "But fraud is infinite in its variety"; and we acknowledge his wisdom by foregoing any attempt to enumerate all, or even a considerable portion of the classes of schemes predatory persons have contrived in order to

23 Fetridge v. Wells, 4 Abb. (N. Y.) 144 (1857).

24 For other illustrations of the principles applied by the courts when passing upon cases of this description, see page 247, ante; also, generally, -Nims on "Unfair Business Competition," and an article by William B. Hale on "Trade-Marks, Trade Names and Unfair Competition," in 38 "Cyc," page 674, etc.

extract unfair profits from the efforts and investments of their competitors.

Manifold Forms of Deceit.-Appearances intended to deceive; equivalents that confuse buyers; substitution; false representations; unfair advertising; imitating the style of business names; counterfeiting the goods themselves-are a few instances of this infinite variety of subterfuges. In view of the subdivisions and re-subdivisions which are and always will be thought out and attempted while human nature remains what it is, no rational being should endeavor to compress all the types of this familiar form of chicanery into the space of a single paragraph. Nor will we attempt it here.

Principles of Fair Dealing Constitute Sole Guide.-The Federal Trade Commission like the courts when dealing with the subject of "fraud”—a term purposely left undefined in order that it may be construed to include new phases as they appear-will find that it must steer by the compass of sound judgment through applying recognized doctrines to particular cases, whenever charges of "unfair competition" are before it. The end sought to be accomplished must be what fair dealing requires.

Appropriate Judicial Ruling.-In this connection we consider ourselves fortunate to find judicial language appropriate to a condition where some novel form of unfair advantage in trade is disclosed and where the guilty party seeks to justify the fraud or imposture by sophistry in place of reason. A Federal Court of Appeals has said when passing upon an ingenious attempt to overreach and defraud:

"Property, even as distinguished from property in intellectual production, is not, in its modern sense, confined to that which may be touched by the hand, or seen by the eye. What is called tangible property has come to be, in most great enterprises, but the embodiment, physically, of an underlying life-a life that, in its contribution to success, is immeasurably more effective than the mere physical embodiment. Such, for example, are properties built upon franchises, on grants of government, on good will, or on trade names, and the like. It is needless to say, that to every ingredient of property thus made up-the intangible as well as the tangible, that which is discernible to mind only, as well as that susceptible to physical touch-equity

extends appropriate protection.

Otherwise courts of equity would be unequal to their supposed great purposes; and every day, as business life grows more complicated, such inadequacy would be increasingly felt.

"Nowhere is this recognition by courts of equity of the intangible side of property better exemplified, than in the remedies recently developed against unfair competition in trade. An unregistered trade name or mark is, in essence, nothing more than a symbol, conveying to the eye and ear information respecting origin and identity; as if the manufacturer, present in person, and pointing to the article, were to say, "These are mine'; and the injunctive remedy applied is simply a command that this form of speechthis method of saying, These are mine-shall not be intruded upon unfairly by a like speech of another.

"Standing apart, the symbol or speech is not property. Disconnected from the business in which it is utilized it cannot be monopolized. But used as a method of making an enterprise succeed, so that its appropriation by another would be a distinctive injury to the enterprise to which it is attached, the name, or mark, becomes at once the subject-matter of equitable protection. Here, as elsewhere, the eye of equity jurisdiction seeks out results, and though the immediate thing to be acted upon by the injunction is not itself, alone considered, property, it is enough that the act complained of will result, even though somewhat remotely, in injury to property. * Are we to fail

our plain duty for mere lack of precedent? We choose, rather, to make precedent."25

Another later decision by the same court approves the doctrine thus announced, and so far as we know it has not been questioned. This quotation from said other decision is of interest as showing the tendency of the courts to recognize and protect incorporeal rights as well as tangible rights:

"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

25 National Tel. News Co. et al. v. Western Union Tel. Co., 119 Fed.

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. * While service is not trade in articles of commerce, and while trade-marks, as such, must actually be put upon articles of commerce or their containers, we see no reason why an intending servitor may not offer his service under an arbitrary name or sign as well as under his real name. And the ultimate fact of importance is that in the automobile world Prest-O-Lite came to stand, not only for the physical article, but also for the incorporeal right to serve and be served. * * Appellee is entitled to have its lifeblood saved from leeches and its nest from cuckoos." "26 Development of Unfair Competition Law. That this wholesome view is neither new nor strange is abundantly shown by the writings of those qualified to speak on the subject. An earlier authority has thus noted and commented upon the growth of means to prevent dishonest or unfair competition: "Not yet fully adopted by all the courts, still to be developed in its application to particular circumstances and conditions, this broad principle of business integrity and common justice is the product and the triumph of the development of the law of trade-marks in the last half century, and the bulwark which makes possible and protects the world-wide business reputations common and growing more common in this new country.”27

General Conclusion Deduced from Authorities.-As deduced from the decisions and authorities generally, the rule is now quite clear that utilization of the names of persons, places, etc., and the various forms of emblems employed in trade will be restricted or prohibited where they lead to confusion or deceit, and result in the passing off of goods differing in source of manufacture, nature or quality, from those the intending purchaser purposed to acquire.

26 Searchlight Gas Co. v. Prest-o-Lite Co., 215 Fed. 692. See also other cases referred to in this decision.

27 W. K. Townsend "Two Centuries Growth of American Law,”— cited in Nims' "Unfair Business Competition," page 2.