user, have been sold by Plt: Leather Cloth Co. v. Hirschfeld, 1 Eq. 299; and the inquiry is "What damage, if any," &c.; not, as in patent cases, "What damage," &c.: see Davenport v. Rylands, 1 Eq. 308; followed in Fritz v. Hobson, 14 Ch. D. 542.

Discovery as to sales by Deft, and production of his books, will not be granted until the Plt has made his election between damages and an account of profits: Fennessy v. Clark, 37 Ch. D. 184, C. A.; and v. sup. Chap. VII., p. 88. Inspection by the Judge of the article complained of (e.g., a rival omnibus) under O. L, 4, must be supplemented by, and not substituted for, evidence: London General Omnibus Co. v. Lavell, (1901) 1 Ch. 135, C. A.

COSTS.

The duty of an innocent consignee of goods bearing a spurious label, and the steps he should take to avoid liability to costs in a suit by the injured owner, are discussed in Upmann v. Elkan, 12 Eq. 140; 7 Ch. 130. And see Burgess v. Hills, 26 Beav. 244; Hunt v. Manière, 34 Beav. 157.

Such a consignee, being a wrongdoer, must pay the costs of the action, though he disclaims all intention of selling, and offers all the relief asked immediately on being served with the writ: Upmann v. Forester, 24 Ch. D. 231; Fennessy v. Day, 55 L. T. 161; and see Adair v. Young, 12 Ch. D. 13, C. A.; Neilson v. Betts, L. R. 5 H. L. 1; Cooper v. Whittingham, 15 Ch. D. 501; but a retail dealer innocently purchasing and selling a small quantity of counterfeit goods will not necessarily be ordered to pay the costs of an action for infringement: American Tobacco Co. v. Guest, (1892) 1 Ch. 630.

Innocent consignees of goods bearing a spurious label or trade mark are entitled to a lien on the goods for their charges in priority to any claim of Plts (the owners of the trade mark) for their costs: Moet v. Pickering, 8 Ch. D. 372, C. A. (reversing 6 Ch. D. 770); and see Ponsardin v. Peto, 33 Beav. 642.

By the Patents, &c. Act, 1883, s. 77 (a) (Patents, &c. Act, 1888, s. 18). in an action for infringement of a registered trade mark the Court or a Judge may certify that the right to the exclusive use of the trade mark came in question, and if the Court or a Judge so certifies, then in any subsequent action for infringement the Plt in that action, on obtaining a final order or judgment in his favour, shall have his full costs, charges, and expenses as between solr and client, unless the Court or Judge trying the subsequent action certifies that he ought not to have the same.

The certificate may be granted although the validity of the trade mark, by lapse of five years from registration (v. sup. p. 632), is unimpeachable except by motion for rectification, if such a motion is made, and comes on for trial together with the action for infringement: Field & Co. v. Wagel Syndicate, (1900) 1 Ch. 651.

TRADE NAME.

As to the distinction between trade mark and trade name, see Goodfellow v. Prince, 35 Ch. D. 9, C. A.; Borthwick v. Evening Post, 37 Ch. D. 449, C. A.; and that the owner of a publication claiming an injunction to restrain the issue of another publication with a similar name, must show probability not only of the public being deceived, but of injury to himself from such deception, see Borthwick v. Evening Post, sup.; and see Walter v. Emmot, óf L. J. Ch. 1059; 53 L. T. 437.

The right of a man to use his own name in trade cannot be interfered with merely because the public may probably be misled by reason of its similarity to, or identity with, the name of another trader engaged in the same business: Turton v. T., 42 Ch. D. 128, C. A.; Tussaud v. T., 44 Ch. D. 678; but a man will not be permitted to lend his name to a new co. for the purpose of carrying on a business similar to an old-established business carried on under the same name: Tussaud v. T., sup. ; and see Re Brinsmead & Sons, (1897) 1 Ch. 45; Ib. 406, C. A.; Jameson v. Dublin Distillers Co. (1900), 1 Ir. R. 43; Cash v. C., W. N. (01) 46; Hawker v. Stourfield Park Hotel, W. N. (00) 51; and where a person had assumed the name of another for the mere purpose of using the name in trade to pass off his goods as the other's manufacture, he was restrained absolutely from using the name in connection with the sale or manufacture of such goods: F. Pinet & Cie. v. Maison Louis Pinet, Ltd., (1898) 1 Ch. 179, N.; and whether a man can for valuable con

sideration, or otherwise, confer on others the right to use his name for a business which he has never carried on, and in which he has no interest, quere: Ib.; and see Burgess v. B., 3 D. M. & G. 896; Rendle v. J. Edgcumbe, Rendle & Co., 63 L. T. 94.

That there cannot be copyright in a name, v. inf. p. 674.

As to the right of a tradesman to use a name, although he is aware that a neighbouring tradesman intends to use that name, see Coles v. Civil Service Assoc., 13 Ch. D. 512; and that the assumption of the patronymic name of another family will not be restrained unless it has been exclusively used in connection with a particular business, see Du Boulay v. D., L. R. 2 P. C. 430.

An injunction cannot be granted where there is no attempt to interfere with trade, and no legal injury done, but simply inconvenience caused, e.g., to restrain the use of a cypher address for telegrams which had been long used by Plts: Street v. Union Bank of Spain, 30 Ch. D. 156, citing Day v. Brownrigg, 10 Ch. D. 294, C. A.

Recent cases in which an injunction against the use of particular names has been granted are:-M'Andrew v. Bassett, 4 D. J. & S. 380 (Anatolia Liquorice); Seixo v. Provezende, 1 Ch. 192 (Crown Seixo Port); Braham v. Bustard, 1 H. & M. 447 (Excelsior Soap); Cocks v. Chandler, 11 Eq. 446 ("Original" Reading Sauce); Wotherspoon v. Currie, L. R. 5 H. L. 508 (Glenfield Starch); Lee v. Haley, 5 Ch. 155 (Pall Mall Guinea Coal Co.); Radde v. Norman, 14 Eq. 348 (Leopoldshall"); Hirst v. Denham, 14 Eq. 542 (Turin, Sefton, &c., Cloths); Croft v. Day, 7 Beav. 84 (Day & Martin's Blacking); Stephens v. Peel, V.-C. W., 21 Mar. 1867, B. 621 ("Stephens' Writing Fluid" changed by Deft into "Steelpen's Writing Fluid "); Kinahan v. Bolton, 15 Ir. Ch. 75 (LL Whiskey); Schweizer v. Atkins, 16 W. R. 1080; 37 L. J. Ch. 847; 19 L. T. 6 (Cocoatina); Apollinaris Co. v. Norrish, 33 L. T. 242 (London Apollinaris Water); Siegert v. Findlater, 7 Ch. D. 801 (Angostura Bitters); Braham v. Beachim, 7 Ch. D. 848 (the Radstock Colliery Proprietors); Grillon v. Guenin, W. N. (77) 14 (Tamar Indien Lozenges); Moet v. Clybouw, M. R., 19 Jan. 1878, B. 86 (selling champagne in bottles with corks or labels bearing the brand or letters M. & C.); Reinhardt v. Spalding, 49 L. J. Ch. 57; 28 W. R. 300 (Family Salve); Tussand v. Tussand, 44 Ch. D. 678 (Louis Tussaud & Co.); Borthwick v. Evening Post, 37 Ch. D. 447, C. A. ("Evening Post" Newspaper); Massam v. Thorley's Cattle Food Co., 14 Ch. D. 748, C. A. ("Thorley's Food for Cattle "); Thompson v. Montgomery, 41 Ch. D. 35 ("Stone" Ale); Sanitas Co. v. Condy, 56 L. T. 621 (Sanitas," Condi-Sanitas"); Edgington v. E., 61 L. T. 323 ("Frigidomo "); Blair v. Stock, 51 L. T. 12 (Strathmore Whiskey); Jameson v. Dublin Distillers Co. (1900), 1 Ir. R. 43 ("Jamesons" whiskey sold without prefix to name of seller).

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Refused-Raggett v. Findlater, 17 Eq. 29 (Nourishing Stout); Liebig, &c. Co. v. Hanbury, 17 L. T. 298 (Liebig's Extract of Meat); Batty v. Hill, 1 H. & M. 264 (Prize Medal Pickles); Cope v. Evans, 18 Eq. 138 (Prairie Cigar Brand); Ainsworth v. Walmsley, 1 Eq. 518; Blackwell v. Crabb, 36 L. J. Ch. 504 (Piccalillie); Bradbury v. Beeton, 18 W. R. 33 ("Punch-andJudy"); Singer Co. v. Wilson, 2 Ch. D. 434; 3 App. Ca. 376 (Singer Sewing Machines); Hirsch v. Jonas, 45 L. J. Ch. 364; 3 Ch. D. 584; Lea v. Millar, M. R., 26 July, 1876, B. 1507 (Worcestershire Sauce); Linoleum Co. v. Nairn, 7 Ch. D. 834 (Linoleum); Kelly v. Byles, 13 Ch. D. 682 (Post Office Bradford Directory); Coles v. Civil Service Supply, 19 Ch. D. 512 (“ Civil Service Boot Supply "); Singer Co. v. Loog, 18 Ch. D. 395, C. A.; 8 App. Ca. 15 ("Singer" Sewing Machine); Street v. Union Bank of Spain, 30 Ch. D. 156 (Telegraphic cypher address, "Street, London"); Symington v. Footman, Pretty & Co., 56 L. T. 696 (“ Guaranteed Corset "); Re Leonard and Ellis, 26 Ch. D. 288, C. A. (" Valvoline"); Native Guano Co. v. Sewage Manure Co., 8 Rep. Pat. Cas. 125 ("Native Guano "); Pirie v. Goodall, (1892) 1 Ch. 35, C. A. ("Parchment Bank ").

And for instances of names and words which have been held incapable of registration as being "calculated to deceive," v. inf. Chap. LII., “PATENTS." A trader will not be permitted unfairly to revive a disused name which has in the meantime become associated solely with the goods of another: Daniel and Arter v. Whitehouse, (1898) 1 Ch. 685.

A former partner or assistant will be restrained from using the name of

the firm with which he has been connected so as to mislead the public into the belief that his shop is the shop of his former employers or partners: Hookham v. Pottage, 8 Ch. 91; Glenny v. Smith, 2 Dr. & Sm. 476; Condy v. Mitchell, 26 W. R. 269; 37 L. T. 766; Dence v. Mason, 41 L. T. 573; but so long as he does not attempt to mislead the public into the belief that articles sold by him are in reality manufactured by the Plt, a former partner will not, after dissolution, be restrained from selling articles under the name and labels used by the firm before dissolution: Condy v. Mitchell, 26 W. R. 269; Dence v. Mason, W. N. (78) 42.

The use of a particular name as applied to a house or property will not be protected: Day v. Brownrigg, 10 Ch. D. 294, C. A.

The assumption of the patronymic name of another family will not be restrained unless it has been exclusively used in connection with a particular business: Du Boulay v. D., L. R. 2 P. C. 430.

A foreign co. trading in this country is entitled to restrain the use of a name so similar as to be calculated to deceive its customers: National Folding Box and Paper Co. v. National Folding Box Co. Ld., 43 W. R. 156. As to the right at common law of a manufacturer to the use of a geographical term, see Rugby Cement Co. v. Rugby & Newbold Cement Co., 8 Rep. Pat. Cas. 241; S. C., 9 Ib. 46.

By the Companies Act, 1862, s. 20, no co. shall be registered under a name identical with that by which a subsisting co. is already registered, or so nearly resembling the same as to be calculated to deceive; and an application for registration under a name so similar to that of another co. (though unregistered) as to be calculated to deceive will be restrained: Hendriks (Universal Life Assce. Soc.) v. Montagu (Universe Life Assce. Association, Ld.), 17 Ch. D. 638, C. A.

Injunctions against the use by a co. of a name in colourable imitation of, or so much of a name as was identical with that of Plt co. have beenGranted in-The Accident Insur. Co. Ld. v. The Accident, Disease and General Insur. Corp. Ld., 54 L. J. Ch. 104; 51 L. T. 597; and see Guardian Fire and Life Assce. Co. v. Guardian and General Insur. Co. Ld., 50 L. J. Ch. 253; 43 L. T. 791; Army and Navy Co-operative Soc., Ld. v. Army, Navy and Civil Service Soc. of India, Ld., 8 Rep. Pat. Cas. 426 (erasure of name stamped on corks ordered); North Cheshire and Manchester Brewery Co. v. Manchester Brewery Co., (1899) A. C. 83; H. L. affirming C. A., (1898) 1 Ch. 539; National Folding Box and Paper Co. v. National Folding Box Co. Ld., sup.; Panhard et Levassor v. Levassor, &c. Co., 70 L. J. Ch. 738; W. N. (01) 153 (injunction against signatories to memorandum of co.).

Refused in-Colonial Life Assce. Co. v. Home and Colonial Assce. Co., 33 Beav. 548; London Assce. v. London and Westminster Assce. Corp. Ld., 32 L. J. Ch. 664; The Merchant Banking Co. of London v. The Merchants' Joint Stock Bank, 9 Ch. D. 560; Australian Mortgage Land and Finance Co. v. Australian and New Zealand Mortgage Co., W. N. (80) 6; Saunders v. Sun Life Assce. Co. of Canada, (1894) 1 Ch. 537 (on undertaking by the Canadian co. not to use any abbreviation of their corporate name without the addition of the words "of Canada"). The addition of the words "co., limited" is not sufficient to entitle a Deft to appropriate a trade name which has been used by Plt: Hoby v. Grosvenor Library Co., Ld., 28 W. R. 386.

DESTRUCTION OF FRAUDULENT MARKS.

By the Merchandise Marks Act, 1887 (50 & 51 V. c. 28), s. 2, every person who forges any trade mark, or falsely applies to goods any trade mark or any mark so nearly resembling a trade mark as to be calculated to deceive, or applies any false trade description to goods, or makes or disposes of dies, &c., for forging trade marks; and (subject to certain exceptions) every person who sells, &c., goods to which any forged or false mark or false description is applied, is guilty of an offence; and by sect. 12 provision is made for the seizure and forfeiture of goods or things by means of or in relation to which an offence has been committed, and any goods or things forfeited may be destroyed or otherwise disposed of as the Court of summary jurisdiction by which the same are forfeited directs; and the Court may, out of any proceeds

realized by disposition, award to any innocent party any loss he may have innocently sustained in dealing with such goods.

Independently of the statute, Courts of Equity have long exercised jurisdiction to order the delivery up and destruction of counterfeit labels: Edelsten v. Vick, 11 Ha. 86; Farina v. Silverlock, 4 K. & J. 650; and of articles made in infringement of a patent: Betts v. De Vitre, 34 L. J. Ch. 289; Tangye v. Stott, 14 W. R. 386; and by analogy to order the destruction of bank-notes of a foreign State made in this country for insurgents, and cancellation of the plates: Emperor of Austria v. Day, L. J., 12 June, 1861, A. 1243; 3 D. F. & J. 217.

SECTION. VII.-INFRINGEMENT OF LETTERS PATENT.

1. Interlocutory Order to restrain Infringement of Patent. ON usual undertaking as to damages [Form 1, p. 518]-Let the Deft T. be restrained until further order from manufacturing any tube expanders similar to the tube expander which has been purchased by the Deft B., as in the Plt's statement of claim mentioned, or otherwise constructed so as to imitate or resemble the roller expanding tool, described in the specification in the Plt's letters patent in the statement of claim mentioned, and to restrain the Defts T. and B., their agents &c., from selling or offering for sale, or otherwise parting with the custody of, any tube expanders, or parts of any tube expanders, which have been so manufactured by the said Deft T.-Liberty to either party to apply to expedite the hearing.-See Dudgeon v. Thomson, M. R., 24 March, 1874, A. 723.

2. The like Order.

ON usual undertaking as to damages-"Let the Defts S. and C., their servants &c., be restrained until judgment in this action or until further order, from either directly or indirectly making, using, or putting in practice the invention described in the specification and drawings filed under the letters patent, granted to N., dated the &c., and numbered 2190, and now vested by assignment in the Plt, or any part thereof, except as to any skates made by the Plt, or his agent or agents."--Plimpton v. Spiller, M. R., 16 March, 1876, B. 424.

For the like injunction made perpetual by consent, see March v. Bird, M. R., 3 July, 1876, B. 1379.

3. Interlocutory Injunction for Infringement refused on Terms. UPON motion &c., for injunction to restrain &c.; And the Deft by his counsel undertaking to keep an account of all moneys received or

to be received by him, by reason of the sale or use of the parlour or roller skates in the (bill) mentioned, this Court doth not think fit to make any order upon this motion, but doth order that the costs of this motion be costs in the cause.-Plimpton v. Malcolmson, M. R., 4 March, 1875, B. 421.

4. Perpetual Injunction against Infringement of Letters Patent.

UPON the appeal of the Plts &c., and upon hearing counsel for the appellants, and for the Defts, Let the Defts A., B., and C., their several agents and workmen, be restrained during the continuance of the letters patent, No. &c., from manufacturing, selling, letting on hire, supplying or using any incandescent electric lamps, manufactured according to or in the manner described in the specification, filed in pursuance of such letters patent, or according to or in any manner only colourably differing from the same, and generally from infringing the rights of the Plts in respect of such letters patent.-Edison and Swan United Electric Co. v. Holland, C. A., 18 Feb. 1889, A. 443; 41 Ch. D. 28, C. A.

5. The like Judgment.

UPON the appeal of the Plts from the order of &c., and upon hearing counsel for the appellants and for the Defts, Let the Defts A., B., their servants and agents, be perpetually restrained from manufacturing, selling, or exposing for sale, bustles or dress improvers in infringement of the Plts' patent, No. &c., or from making, selling, or exposing for sale, articles in colourable imitation of the articles manufactured by the Plts under the said letters patent.-American Braided Wire Co. v. Thomson, C. A., 2 Feb. 1888, A. 200; 5 R. P. C. 375; affd. in H. L., 3 June, 1889; 6 Rep. Pat. Cas. 518.

6. Against Infringement of Letters Patent-Mechanical Equivalents. THIS action coming on for trial &c., in the presence of counsel for the Plt and the Defts, and upon reading &c., Let the Defts A., B., and C., their agents, servants, and workmen, be restrained during the continuance of the letters patent, No. &c., from using or permitting to be used the invention described in the specification and drawings, No. &c., filed by the Plt, or any part or parts of the same invention, and from using and permitting to be used in the manufacture of iron and steel forgings any appliances or means, being the same as the appliances or means now or lately used by the Defts as mentioned in the said particulars of breaches, or which, as to any part or parts thereof, are arranged or constructed according to the said invention, or any part thereof, or differ therefrom only colourably, and by the substitu