WITH CHAPTERS ON TRADE SECRET AND TRADE LIBEL, AND

D. M. KERLY, M.A., LL.B.,

Sometime Fellow and MacMahon Law Student of St. John's College, Cambridge; Author of
“An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery,"

OF THE INNER TEMPLE, BARRISTER-AT-LAW.

LONDON:

SWEET AND MAXWELL, LIMD., 3, CHANCERY LANE,
Law Publishers,

MEREDITH, RAY, & LITTLER, MANCHESTER;

HODGES, FIGGIS, & CO., LD., AND E. PONSONBY, DUBLIN;

C. F. MAXWELL, MELBOURNE & SYDNEY.

LONDON:

PRINTED BY C. F. ROWORTH, GREAT NEW STREET, FETTER LANE, E.C.

PREFACE.

THE progressive development in recent years of the law with regard to trade-marks and trade descriptions, and the growing importance of the rights which this branch of the law is designed to protect, originally suggested to the Author that a more detailed and systematised statement of the decisions and statutes in which it is contained than had previously been made might possibly be found useful. The presentation of such a statement has rendered it essential to trace the origin and growth of the rights and remedies which are involved, and to make some attempts at the definition of general principles and the formulation of rules; and this has been the more necessary because the leading authorities on trade-mark law are, in an unusual degree, involved with the facts of the particular cases in which they are embodied.

The Author has sought to present, in his Introductory Chapter, a general view of the law, to trace in outline its origin and history, and to mark the

improvement in the remedies for infringement of trademark rights which has attended the growing importance of the rights themselves. A consideration of the common law action on the case for damages for passing off goods as those of another, and the corresponding suit in Equity for an injunction, which seem to have been first admitted and recognised at the beginning of the present century, and which, in a developed form, still afford remedies of great value and importance, and a comparison of them with the highly specialized action for the infringement of a registered trade-mark at present in use, show an interesting and remarkable transition. And that the progress of the law has been beneficial is thousands evidenced by the fact that, besides the many of unregistered trade-marks which are in use, upwards of 70,000 trade-marks have been entered upon the Register.

In addition to the general matter already mentioned, Book I. sets forth the substantive law in relation to trade-mark, trade-name, and analogous rights, and deals with the provisions and effect of the Trade-Mark Acts, and the law and procedure generally with regard to the registration of trade-marks. It is hoped that sufficient regard has been had to the recent decisions which vindicate the principle that the right of property in trade-marks does not depend on registration. The common law right in trade-marks, which is now definitely

established, must obviously be of very great importance so long as the unregistered trade-marks continue to be numerous; and the Author has, accordingly, considered in separate chapters the definition and mode of acquisition of a trade-mark apart from registration, the effect of registration and of the want of it, and the infringement of an unregistered trade-mark.

Book II. is almost wholly occupied with a commentary on the Merchandise Marks Act of 1887. That statute is at present somewhat bare of judicial interpretation, although it is not without difficulties of construction. It has already operated with some success as a deterrent of frauds, especially by checking the importation of foreign goods bearing English names or marks, or other deceptive indications of an English origin. The Act would probably be found of still greater utility if it were so amended as to provide for the summary punishment of frauds effected under cover of false trade descriptions by word of mouth.

The Author has availed himself of the very valuable Report of the Departmental Committee over which the present Lord Chancellor presided in 1887; and also, in dealing with the Merchandise Marks Act, of the evidence given before the Select Committees of the House of Commons appointed in 1887 and 1890 to consider the law with regard to merchandise marks and false marking.