had acquired a secondary meaning and their use by another would result in confusion. Thus in the well-known "Stone Ale" case1 the defendant was enjoined from carrying on the business of a brewer at Stone under the title "Stone Brewery" or "Montgomery's Stone Brewery" or from selling any ale or beer not of the plaintiff's manufacture under the term "Stone Ales" or "Stone Ale." Lord Hannen, in answering the defendant's contention that the word was merely used in a geographical sense, said:

The appellant is, undoubtedly, entitled to brew ale at Stone, and to indicate that it was manufactured there, but there are various means of stating that fact without using the name which has now become the designation of the respondent's ale.

Frequently the relief granted in such cases is merely an injunction restraining the use of the word unless it is accompanied by a statement sufficient to distinguish the two products. Such was the holding of the court as to the use of the words "Yorkshire Relish."" In this case the respondent had for many years manufactured and sold a sauce made according to a secret recipe under the above name. The appellants were engaged in manufacturing and selling a different sauce but which they termed "Yorkshire Relish." The House of Lords held that the term had come to mean the particular product of the respondent.

Where the same geographical name is given to two natural as distinguished from manufactured products of a particular locality, it appears that the courts are less inclined to interfere. Thus, in Braham v. Beachim, the plaintiff was the owner of and operated all the collieries in the parish of Radstock, carrying on the business under her own name, adding the words "Radstock Collieries." The defendants operated mines but none in this parish. They advertised themselves as "The Radstock Colliery Proprietors and Factors, etc.," offering to supply coal of every description direct from the collieries. An injunction was issued restraining the defendants from using the trade name unless they acquired a coal mine within the parish of Radstock or from using any name implying that they were selling coal from a colliery in Radstock unless and until they became authorized to sell coal mined within that parish. And in a later case, it appeared that the plaintiffs were owners of certain mineral springs in the township of Caledonia and marketed the water for medicinal and table purposes under the name "Caledonia Water." The defendants having discovered other springs in the same township sold water therefrom as "From the New Springs of

1 Thomas Montgomery v. Thompson et al., L. R. (1891), A. C.. 217.

2 Birmingham Vinegar Brewery Co. (Ltd.) v. Powell, L. R. (1897), A. C., 710.

338 Law Times Reps., 640 (1878).

Grand Hotel Co. of Caledonia Springs (Ltd.) v. Wilson et al., L. R. (1904), A. C., 103. 30035°-16-29

Caledonia" but under a different brand. Although it appeared that the defendants' goods were sufficiently differentiated from those of the plaintiff to avoid confusion, Lord Davey chose to distinguish the Stone Ale case1 on the ground that it involved manufactured articles and seems to have considered natural products as being governed by a different rule of law.

COMPANY AND TRADE NAMES.-Firm and trade names are usually registered under the companies' act2 or as trade-marks under section 9 of the act of 1905. The protection thus afforded is supplemental to the common law which protects the owner in the use of a name regardless of whether it is registered or constitutes a trade-mark if the use of a similar name misleads the public. So in an action by a company incorporated in 1821 as the "Guardian Fire & Life Assurance Co." it was held that the adoption of the name "Guardian and General Insurance Co. (Ltd.)," due to the similarity of the names, was calculated to deceive the public. And relief is sometimes granted, even though the injury may be prospective. Thus in an action by Lloyd's, the well-known association of underwriters, and their agents at Southampton, an injunction was issued against Lloyds, Southampton (Ltd.), although the defendant so far had only engaged in purchasing and selling yachts and acting as ship brokers. The defendant had, however, under its memorandum of association very extensive powers to carry on business of all kinds.

However, if there is no likelihood of competition, the action will not lie, even though the trade names used are identical. Thus where the plaintiff, publishers of Everybody's Magazine, sought to restrain the defendants from using the word "Everybody's" in connection with a weekly penny paper the action was dismissed on the ground that the two things were perfectly distinct and in no way likely to compete with one another."

The rule in regard to the use of misleading names is the same when corporate names are involved. A corporate charter grants no immunity in the use of a deceptive name. In a case decided by the House of Lords in 1898 a decree enjoining the use of a corporate name was affirmed. In this case the appellants were restrained

1 Thomas Montgomery r. Thomson et al., supra.

2 Companies' (consolidation) Act, 1908 (8 Edw., 7, ch. 69, sec. 8).

35 Edw., 7, ch. 15, supra.

4 Guardian Fire & Life Assurance Co. r. Guardian & General Insurance Co. (Ltd.), 50 L. J. Ch., 253 (1880).

Lloyd's & Dawson Bros. v. Lloyds, Southampton (Ltd.), 28 Times Law Reps., 338 Ct. of App. (1912).

Ridgway Co. v. Amalgamated Press (Ltd.), 28 Times Law Reps., 149 (1911). See also Dunlop Pneumatic Tyre Co. (Ltd.) v. Dunlop Motor Co., L. R. (1907), A. C. 430, and Turner's Motor Mfg. Co. (Ltd.) r. Miesse Petrol Car Syndicate (Ltd.), 24 R. P. C., 531 (1907). Cf. Eastman Photographic Materials Co. (Ltd.) et al. v. John Griffiths Cycle Corp'n (Ltd.) et al., 15 R. P. C., 105 (1898).

7 North Cheshire & Manchester Brewery Co. (Ltd.) v. Manchester Brewery Co. (Ltd.) L. R. (1899), A. C., 83.

from using the name of the plaintiff company, the court holding that the public might be misled into believing that the two companies had been consolidated.

PERSONAL NAMES.-Apparently the view taken by the English courts is that the honest use of a personal name in trade can not be enjoined, although confusion may arise due to the fact that the names are the same or so similar as to mislead purchasers. In an early case the court of appeal held that where the plaintiff had for many years sold a sauce under the name "Burgess' Essence of Anchovies" the court would not in the absence of fraud restrain the defendant, his son, from selling a similar article under the same name. And in Turton v. Turton the plaintiffs, who for many years had carried on the business of steel manufacturers under the name "Thos. Turton & Sons," were denied an injunction where the defendant, who had for a slightly shorter period of time carried on a similar business under the name "John Turton" and upon taking his sons into the partnership as " John Turton & Sons." So in a recent case the court of appeal decided that inasmuch as the defendant had not attempted to imitate the mode in which the plaintiff's name was used, and as he had not acted dishonestly, an injunction would be refused, notwithstanding that he knew he was deriving some advantage from the fact that his name was the same as the well-known piano manufacturer's.

3

And it appears that the courts will not unqualifiedly enjoin the use of a personal name, even where fraudulent intention is established. Thus, where it appeared that the defendants adopted the name of their general manager, who held only one share of their stock, for the express purpose of securing the benefit of the plaintiff's business reputation, and in other ways attempted to imitate the latter's goods to their own advantage, the court, while restraining them from using the name in a manner likely to deceive customers, said: "We can not prohibit their using the name if they use it in a way not calculated to mislead the public." But where an Irishman having changed his name several times, ultimately took the name "Pinet," the name of a well known French company dealing in boots and shoes, the incorporators of a company to whom he transferred the use of the name were enjoined from using it in a similar business to that of the plaintiff.5

1 Burgess r. Burgess, 3 De G. M. & G., 896 (C. A., Ch. Div., 1853).

2 L. R. (1889), 42 Ch. Div., 128. Lord Esher, in holding that since the confusion resulted from the mere use of the defendant's own name without more, no relief should be granted, said (p. 136): “Therefore upon principle, I should say it is perfectly clear that if all that a man does is to carry on the same business, and to state how he is carrying it on that statement being the simple truth-and he does nothing more with regard to the respective names, he is doing no wrong."

John Brinsmead & Sons (Ltd.) v. Brinsmead, 30 R. P. C., 493 (Ct. of Appeal, Ch. Div., 1913).

Massam v. Thorley's Cattle Food Co., L. R., 14 Ch. Div., 748 (1880).

F. Pinet et cie. v. Maison Louis Pinet (Ltd.), 15 R. P. C., 65 (Ch. Div., 1897).

DESCRIPTIVE AND GENERIC TERMS.-Words merely descriptive of the article may not be exclusively appropriated by a manufacturer, but the use of such a word may become so closely identified with a particular manufacturer's goods that its use by a rival trader will be misleading. In a case1 where the plaintiff had for many years sold a medicinal preparation in the form of a powder under the name of "Fruit Salt," an injunction was granted restraining a competitor from selling a similar preparation in the form of tablets under the name of "Dunn's Fruit Salt and Potash Lozenges" or any other title in which the words "fruit salt" should form a part. The leading case on this point is that of Reddaway v. Banham,2 decided by the House of Lords in 1896. In this case the plaintiff for many years had manufactured belting which he sold as "Camel Hair Belting," and which in point of fact was made largely of camel hair, although this was not generally known. The defendant, a former employee of the plaintiff, subsequently began the manufacture of belting on his own account stamping the same "Camel Hair Belting." The jury found that these words had come to mean the plaintiff's goods as distinguished from those of any other manufacturer, and that the use of these words by the defendant would be likely to cause confusion. From these findings the court held that the plaintiff was entitled to an injunction restraining the defendant from using the words "Camel Hair" as descriptive of or in connection with belting manufactured by them without clearly distinguishing such belting from the plaintiff's belting.

Similarly, invented words or terms used in connection with articles may be protected even though they may not be the subject of a valid trade-mark. Thus, while the word "Silverpan " was held not to be a valid statutory trade-mark, a competitor was not allowed to use the words "Silver Pan," the court holding that the words had come to mean the plaintiff's product.3

DRESS OF GOODS.-The imitation of labels and packages is one of the most common methods of passing off one's goods for those of another. By appealing to the eye of a customer, it is only necessary to imitate the striking features of the plantiff's goods in order to cause confusion. Thus, where the defendant sold blacking under the same name as that of the plaintiffs and in bottles with labels of the same color, size, and similar arrangement of lettering as that of the plaintiffs, an injunction was granted restraining the defendant from using any label which would mislead the public as to whose goods they were buying. Name, color, or size may be a prominent feature of the label, but the question usually to be decided by the court is

1 Eno v. Dunn & Co., 10 R. P. C., 261 (Ch. Div., 1893).

L. R. (1896), A. C., 199.

Faulder & Co. (Ltd.) v. Rushton (Ltd.), 20 R. P. C., 477 (Ct. of Appeal, 1903).
Croft v. Day, 7 Beav., 84 (1843).

whether the entire dress of the article will mislead the ordinary purchaser. In Lever v. Goodwin the defendants sold their soap in packets of the same size and shape, wrapped in the same kind of paper, with spaced printing of the same color as that of the plaintiffs, the chief difference being in the name adopted, the defendants' soap being described as "Goodwin's Self-Washing Soap" instead of "Sunlight Self-Washing." The term "Self-Washing" had been registered by the plaintiffs as a trade-mark. The court held that these words were merely descriptive, but issued an injunction as to the use of the wrappers. It was also held that while retail dealers might not be deceived, the defendants were, nevertheless, guilty of a wrongful act because they had put into the hands of the middleman the means of committing a fraud. However, a manufacturer can not be held responsible for deception caused by the deliberate fraud of the retailer to which he is not a party. So where a wholesaler sold "Royal Coffee" in tins, enameled in bright colors, and the defendants adopted the same manner of packing their "Flag Coffee," an injunction was refused, although it was contended that a retailer might conceal the name on the can and thus substitute the defendant's goods for those of the plaintiff.2

Selling one's goods in refilled packages or bottles bearing another's labels is fraud of such a gross nature that it is seldom attempted. The chief difficulty lies in detecting the offense. Thus, where it was proved that a defendant sold an inferior brandy for that of plaintiff's "Three Star Brandy," using the bottles of the plaintiff with the labels still attached, an injunction was granted.3

DRESS OF STORE.-Mere similarity in dress of establishments apparently will not support an action for passing off, but it may, however, be part of a general scheme to pass one's business or goods off for those of another. Thus in a case where the rights of two rival cab companies was involved, it was charged that the defendant fraudulently secured the customers of the plaintiff by the adoption of a similar name; that the same insignia was also used and the dress of the cabmen and conductors was imitated. An injunction was granted restraining the defendant from using any conveyance bearing the name adopted, or any other names, words, or devices used in such manner as to form a colorable imitation of those used by the plaintiff. An injunction was also issued in a recent case in which the facts were

1 Lever v. Goodwin, 36 Ch. Div., 1 (1887). Lord Justice Cotton, speaking for the court of appeal, said (p. 5): "There may be no monopoly at all in the individual things, but if they are so combined by the defendants as to pass off the defendants' goods as the plaintiff's, then the defendants have brought themselves within the old common-law doctrine in respect of which equity will give to the aggrieved party an injunction in order to restrain the defendants from passing off their goods as those of the plaintiffs." 2 Payton v. Snelling, Lampard & Co. (Ltd.), L. R. (1901), A. C., 308.

* Hennessey & Co. v. Neary, 19 R. P. C., 36 (1901).

Knott r. Morgan, 2 Keen's Ch., 213 (1836).