quotations by communicating them to the telegraph companies.1 In a subsequent case the same court held that quotations on the New York Cotton Exchange were the property of the exchange, and that it could control their distribution in such a way as it saw fit." Similarly where a telegraph company, at considerable expense, collected news relating to current prices of securities, race track, baseball, and other events, it was held that the company's property in the news, which consisted largely in making it available in the shortest possible time after the happening of the events reported, was entitled to protection, and that this company could enjoin another from taking the news from its tape in the office of its patrons and delivering it with only a few moments loss of time to its own customers. And a company which collected advance information respecting the proposed construction of buildings, sewers, waterworks, and other public works, which it sold to subscribers under contract that it should be held in strict confidence, was granted an injunction restraining another from procuring the information from its subscribers and selling it in competition with it. The same principle appears to have been applied to entirely different facts in Fonotipia Co. (Ltd.) et al. v. Bradley.5 There the Fonotipia Co. manufactured records for use on graphophones. The Continental Record Co. manufactured records from a matrix produced by them from the commercial records of the Fonotipia Co., and sold them in competition with it, advertising them at greatly reduced rates and as reproductions of the voices of artists under contract with the Fonotipia Co., asserting also that the records were identical with the originals. The Fonotipia Co. was granted an injunction restraining the rival company from selling copies of its records, the court holding it to be a wrongful appropriation of the property of the Fonotipia Co. Similarly, where a company manufactured illuminating gas called Prest-O-Lite for use on automobiles, and sold it in containers of peculiar construction, and had established depots in all the larger towns of the United States, where an empty container could be immediately exchanged for a filled one, it was held that the company could restrain a dealer from having said containers filled with a competing gas and disposing of them in competition with it without first obliterating therefrom the company's name, the word

1 Board of Trade v. Christie Grain & Stock Company, 198 U. S., 236 (1905).

2 Hunt v. New York Cotton Exchange, 205 U. S., 322 (1907).

3 National Telegraph News Co. v. Western Union Telegraph Co., 119 Fed., 294 (C. C. A., 1902). See also Board of Trade v. Hadden-Krull Co. et al., 109 Fed., 705 (C. C., 1901); Illinois Commission Co. et al. v. Cleveland Telegraph Co. et al., 119 Fed., 301 (C. C. A., 1902); Board of Trade v. Cella Commission Co. et al., 145 Fed., 28 (C. C. A., 1906); Kiernan v. The Manhattan Quotation Telegraph Co., 50 How. Prac., 194 (N. Y. Sup. Ct., 1876); Board of Trade r. Tucker, 221 Fed., 305 (C. C. A., 1915).

4 Dodge Co. v. Construction Information Co. et al., 183 Mass., 62 (1903). 171 Fed., 951 (C. C.. 1909).

"Prest-O-Lite" and any other marking identifying the container with the manufacturer of Prest-O-Lite.1 So also a company which had incurred the initial expense of a series of advertisements by publishing a picture of a young woman with the words "Wink at the grocer and see what you will get. K. T. C.," for the purpose of exciting curiosity and attracting attention to subsequent advertisements that would disclose the character of the goods advertised and the name of the manufacturer, was granted a preliminary injunction restraining another from publishing advertisements in such form as to create the belief that its goods were referred to in the advertisement first issued. The case was not carried to a final hearing. On the other hand, the St. Louis court of appeals held that a laundry company which had inaugurated a similar series of advertisements by having an advertising company publish on signboards and cards the word Stopurkicken," could not recover from an envelope company which, with knowledge of the purpose for which public attention had been directed to the word, itself printed and distributed a large number of cards bearing that word, followed by the name of the envelope company.3

ENGLISH DECISIONS.

The decisions in some of the above cases are in accord with opinions of the English courts. Thus, where a telegraph company purchased the sole privilege of obtaining quotations from the floor of the London Stock Exchange and sold the information to subscribers on condition that they would not sell or communicate it to nonsubscribers, and also later printed it on sheets for the use of subscribers, it was held that the company could enjoin others from obtaining the quotations from its tapes or sheets and from inducing any of its subscribers to supply the information in violation of their contract.* In like manner, a telegraph company which collected information regarding the results of horse races and sold it to hotels, clubs, and news rooms, was granted an injunction restraining a rival company from surreptitiously obtaining or copying this news from its sheets, tapes, or other documents and from communicating the news so obtained.5

1 Prest-O-Lite Co. v. Davis et al., 209 Fed., 917 (D. C., 1913). Cf. Victor Talking Mach. Co. v. Armstrong, 132 Fed., 711 (C. C., 1904).

Case not reported.

3 Westminister Laundry Co. v. Hesse Envelope Co., 156 S. W., 767 (St. Louis court of appeals, 1913).

4 Exchange Telegraph Co. v. Gregory & Co., L. R. (1895), 1 Q. B., 147. Exchange Telegraph Co. v. Central News Co. et al., L. R. (1897), 2 Ch., 48. Exchange Tel. Co. v. Howard et al., 22 Times Law Reps., 375 (1906).

30035°-16- -24

See also

Section 7. Defamation of competitors and disparagement of competitors' goods.

The reported cases show that it is not unusual for one competitor to attempt to injure another by means of libel or slander, or by disparaging his goods, and that this conduct has frequently interfered with the business of a rival who has been attacked. As shown below, such practices, in connection with other acts of "unfair competition," have been enjoined by the Federal courts in enforcing the Sherman law.1 Other courts, when declaring such methods actionable, have referred to them in substantially similar terms. Thus Vice Chancellor Malins described a proceeding as one "to prevent unfair trading, to prevent the issuing of a falsehood to the detriment of another," and in referring to the untrue statements complained of, said: "Is that fair trading?" and "That is unfair dealing." In another case, Lord Justice Cotton expressed the opinion that a circular giving the impression that the business of a competitor was about to fail was not justified as an act of "fair competition," and Lord Justice Bowen reached the same conclusion. Likewise Brett, J., referring to an alleged libel, left it to the jury to determine whether the defendant had not "gone beyond fair fighting and done that which brings him within the law." Similarly, in this country a Federal court expressed the opinion that a certain advertisement was not justified as "proper competition," and the Supreme Court of Georgia, while conceding that it is not always easy to draw the line between what may be considered "legitimate competition" and a libelous publication, came to the conclusion that an advertisement complained of exceeded the bounds of "legitimate competition.'

AMERICAN DECISIONS.

PERSONAL DEFAMATION.-Words imputing the commission of a crime are actionable in themselves without proof of special damage. Thus, in a Federal court an article charging a competitor with being a trust was held actionable, this being an offense punishable both by the laws of the United States and the State of Iowa, where both parties were engaged in business. It has likewise been held. actionable to charge an importer with attempting to evade and

1 U. S. v. Central-West Publishing Co. et al., p. 492.

Thorley's Cattle Food Co. v. Massam, L. R. (1877), 6 Ch. Div., 574, 587, 588. And see L. R. (1880), 14 Ch. Div., 763, 780.

3 Helmore v. Smith, L. R. (1886), 35 Ch. Div., 449, 454, 456 (Ct. of Appeal).

4 Latimer v. Western Morning News Co., 25 Law Times Reps., 44, 46 (1871).

5 Continental Insurance Co. v. Board of Fire Underwriters of the Pacific et al., 67 Fed., 310, 323 (C. C., 1895).

Holmes v. Clisby, 118 Ga., 820, 824 (1903).

Sternberg Manufacturing Co. v. Miller, Du Brul & Peters Manufacturing Co., 170 Fed., 298 (C. C. A., 1909). See also American Malting Co. v. Keitel, 217 Fed., 672 (D. C.,

defraud the revenue laws by making fraudulent invoices of books imported from Canada.1

To impute a want of integrity, capacity, or skill in the conduct of a business is also actionable without proof of special damage. It was so held where a grocer distributed circulars in which it was stated "that an unscrupulous grocer of the same name, in the immediate vicinity or neighborhood advertises 'Davey's teas and coffees,' with a view to deceive the public, and may sell an inferior article; " 2 and where an art dealer informed one who had purchased a painting from a competitor that he had been "roped in," and that the painting was not an original, but a copy, the court held that the words were actionable without proof of special damage, pointing out that the plaintiff had been in business seven years, and might, therefore, be assumed to know an original. The same rule was applied where a company publishing a city directory issued "a warning" to the effect that "certain unscrupulous parties, in making a pretended canvass of the city for a directory, persist in falsely representing" that the defendant company did "not intend to publish a directory "; that "these untruthful adventurers" knew full well that it was possible for them to secure business only on the basis of "misrepresentation "; that the people of the city had experience with "wandering fakirs, whose only capital" was "glowing promises and only object to capture their money"; and that it was "folly to pay money to irresponsible directory schemers" when they could be sure of a reliable work at the same or less cost. On the other hand, where the plaintiff was not referred to by name, it was held not actionable for a competitor to issue a catalogue containing language such as "There is no intent to mislead, exaggerate, or appeal to the selfish desire for gain through the imaginary misfortunes of others" and "We do not advertise books at the price of paper and printing because it would not be true."5 But it has been held actionable to refer to

1 Worthington v. Houghton et al., 109 Mass., 481 (1872). See also Young et al. v. Kuhn, 71 Tex., 645 (1888); Mowry v. Raabe et al., 89 Cal., 606 (1891); and Blumhardt v. Rohr, 70 Md., 328 (1889), involving charges that the plaintiffs, who were butchers, sold diseased or unwholesome meat, this, according to the latter case, being punishable at common law; and see Marino v. Di Marco, 41 App. D. C., 76 (1913), where it was held actionable to say of a fruit dealer that he sells "rotten goods," especially in view of the food and drugs act; and Dorn & McGinty et al. v. Cooper, 117 N. W., 1, 127 N. W., 661 (Iowa Sup. Ct., 1910), where the plaintiffs were charged with being interested in a pool to control the local hog market.

2 Davey v. Davey, 50 N. Y. Supp., 161 (Sup. Ct., 1898). Freisinger v. Moore, 65 N. J. Law, 286 (1900).

Robinson v. Eau Claire Book & Stationery Co. et al., 85 N. W., 983 (Wis. Sup. Ct.,

1901).

5 Clarkson v. The Book Supply Co. et al., 170 Ill. App., 86 (1912). Per McSurely, J.: "We fail to see how the words complained of can possibly be stretched so as to be held defamatory of the plaintiff. To do so would subject any merchant advertising articles for sale as 'genuine' or 'well made' to an action for libel by other merchants, on the ground that the advertiser intended to charge them with selling articles which were imitations and poorly made." Cf. Hubbuck & Sons (Ltd.) v. Wilkinson, Heywood & Clark (Ltd.), p. 381.

4

a rival trade journal as a “fake," to charge a rival press association with stealing news by means of tapped wires,2 and to charge a publisher with having sold the support and advocacy of his newspaper to certain corporations for a large sum of money. Likewise where a retail druggist advertised the goods of a manufacturer at reduced prices, it was held actionable for the latter to reproduce this advertisement, followed, in large type, with the words "The above ad is a fraud." A cause of action was also disclosed where it was alleged that a corporation published an advertisement to the effect that the plaintiff, its former agent, had not been connected with that company since a specified date, and that any contracts made by him. for the company would be void, the purpose being to injure the plaintiff in his business by making the public believe he was undertaking to act as the agent of the defendant when in fact he was not so doing.5

As noted above, it is actionable to charge a tradesman with being unskillful in the conduct of his business. Thus, where the agent of a corporation manufacturing ice machines wrote a letter to a firm which had accepted the bid of a rival manufacturer, stating that the latter was a "secondhand dealer," that it did inferior work, and used inferior material, that it ran a "scab establishment," and did not have a "mechanic" in the whole establishment, "including the head of the concern," it was held that the words were actionable without proof of special damage. And in Louisiana it has been held actionable for a merchant to place in his show window a card bearing the words "Don't be misled. This store and window has no connection with the would-be auction next door."?

To impute dishonesty to a trader is likewise actionable. Thus, where a commission merchant called attention to the fact that his former partner was a minor and not legally responsible for his contracts, and observed that "a word to the wise is sufficient," it was held that the words were libelous for the reason that they conveyed

1 Midland Publishing Co. v. Implement Trade Journal Co. et al., 108 Mo. App., 223 (1904).

2 Union Associated Press v. Heath, 63 N. Y. Supp., 96 (Sup. Ct., App. Div., 1900).

3 Fitch v. De Young, 66 Cal., 339 (1885). See also Coleman v. Southwick, and Marais v. The Volksstem Co., p. 380.

The Washington Post and Durham Duplex Razor Co. v. O'Donnell, 43 App. D. C., 215 (1915).

Behre v. National Cash Register Co., 100 Ga., 213 (1897). See also Warner v. Clark, 45 La. Ann., 863 (1893), and Miller v. Green, 33 Nova Scotia, 517 (1900).

Pennsylvania Iron Works Co. v. Henry Voght Machine Co., 96 S. W., 551 (Ky. Ct. App., 1906). And see Green v. Davies, 83 N. Y. App. Div., 216 (1903), where it was held actionable to conspire to injure a competitor by causing his customers to believe that he was insane and incapable of attending to his business; and Southwick v. Stevens, 10 Johns., 443 (1813), where the editor of the Albany Register recovered damages in an action against the editor of the Ontario Messenger, based on an article appearing in the latter paper to the effect that the plaintiff was insane and had recently been restrained by his friends.

7 Gilly v. Hirsh, 122 La., 966 (1909).