such as simply denote the quality of the articles to which they are attached."

In the case of The Amoskeag Manufacturing Co. v. Spear, 2 Sandf. S. C. 599, the court say:

The "good-will" of a business is that intangible, incorporeal appurtenance to an established trade or manufacture which is only created by a long course of fair dealing, or of skillful industry, and belongs

It cannot pertain to a new business or manufacture, because time, the essential element to create "goodwill," is wanting. It belongs only to those who, by years of industry and enterprise, have obtained the public to confide in their goods. When acquired it is as much "property" as if it had a bodily existence, and the courts have always protected those to whom it belongs in the rightful enjoyment of it.

"Every manufacturer, and every merchant for alone to a long-continued business and a well-estabwhom goods are manufactured, has an unquestion-lished reputation. able right to distinguish the goods that he manufactures or sells by a peculiar mark or device, in order that they may be known as his in the market for which he intends them, and that he may thus secure the profits that their superior repute as his may be the means of gaining. The owner of an original trademark has an undoubted right to be protected in the exclusive use of all the marks, forms or symbols that were appropriated as designating the true origin or ownership of the article or fabric to which they are affixed, but he has no right to an exclusive use of any words, letters or figures which have no relation to the origin or ownership of the goods, but are only meant to indicate their name or quality."

Again, in Fetridge v. Wells, 13 How. 385, Mr. Justice Duer declares that a name can only be protected as a trade-mark "when it is used merely as indicating the true origin and ownership of the article offered for sale."

It is defined, by Mr. Justice Story, to be "the advantage or benefit which is acquired by an establishment, beyond the mere value of the capital stock, funds, or property belonging therein, in consequence of the general public patronage which it receives, or on account of its local position, or common celebrity or reputation for skill, or even from ancient partiality or prejudice. Story on Partnership, § 99.

The adoption, therefore, by a new manufacture, of any name or device which, by long use, has come to be known and recognized as the distinguishing mark

And in the case of Stokes v. Landgraff, 17 Barb. by which the productions of an old-established con608, the court say:

"The principle is well settled that a manufacturer may, by priority of appropriation of names, letters, marks or symbols of a kind to distinguish his manufactures, acquire a property therein as a trade-mark. In all cases where names, signs, marks, brands, labels, words or devices of any kind can be advantageously used to designate the goods or property, or particular place of business of a manufacturer, or a person engaged in trade, he may adopt and use such as he pleases which are adapted to that end, and have not been before appropriated."

"In respect to such as denote only the kind or quality of the article, a different rule prevails. In these last property cannot be acquired."

The invariable rule of law, recognized by all the authorities, is that the honest and skillful manufacturer, who has produced or brought into market an article which has found favor with the public, and who has affixed to it his own name, or any other mark or device which serves to designate it as his, and to distinguish the goods of his manufacture from all others, is entitled to receive the reward of his enterprise, and shall, in no manner, and to no extent, be deprived of the same by another; and that no person shall be permitted to appropriate and apply to his own productions the same, or a colorable imitation of the same, so that the public are, or may be, deceived or misled into the purchase of the wares of the one as and for the wares of the other.

It is out of this doctrine that all the value which is denominated the "good-will" of an establishment or business arises.

cern are known, and which is calculated to deceive the public into a diversion of patronage from the latter to the former, is a violation of the rights of property for which the law will always afford a remedy.

In the language of the court in Stokes v. Landgraff, 17 Barb. 608, before cited, "the wrong in such a case, for which those remedies are given, consists in misrepresenting to the public, by the use of that trademark, the goods or wares of another person, as having been manufactured by the true proprietor of that mark, and thereby depriving him, to a greater or less extent, of the benefit of the good-will of his establishment, and the reputation of his articles."

The question, then, arises, can a person, by the use of his own name as a trade-mark, be held to violate the property rights of another of the same name who, by long priority of application of his name to an article of manufacture, has thus distinguished its origin, acquired a "good-will" to his business, and obtained an established and extended reputation for the goods of his manufacture?

If the parties were of different names, and the one then adopted the name of the other, there would be less difficulty in arriving at a just conclusion. In such a case the proper analogy is found, I respectfully submit, in the case of Howard v. Henriques, 3 Sandf. S. C. 725, where the court say, "every man may and ought to be permitted to pursue a lawful calling in his own way, provided he does not encroach upon the rights of another, or the public good. But he must not, by any deceitful or other practice, impose upon the public, and he must not, by dressing himself in another man's garments, and by assuming another

man's name, endeavor to deprive that man of his own
individuality, and thus despoil him of the gains to
which, by his industry and skill, he is fairly entitled."
But in the case under consideration a more difficult
question is presented. The name Meneely" is the
true and proper name of the defendant, Clinton H.
Meneely, as well as of the plaintiffs, and it would
seem, at first blush, as the exercise of an extraordi-
and unwarranted power to deprive a man of the
nary
use of his own name, in the pursuit of a lawful busi-
ness, because another happens to bear the same name,
and is engaged in the same business.

And again, in The Brooklyn White Lead Co. v. Masury, 25 Barb. 416, it is said: "The law of trademarks protects manufacturers in their exclusive right to sell their goods as well to incautious as to cautious purchasers."

And again, in The Amoskeag Manufacturing Co. v. Spear, Judge Duer remarks that, "in order to convey a false impression to the mind of the public as to the true origin and ownership of goods, it is not necessary that the imitation of an original trade-mark should be exact and perfect. It may be limited and partial. It may embrace variations that a comparison with the original would instantly disclose, yet a resemblance may exist that was designed to mislead the public, and the effect intended may have been produced, nor can it be doubted that where this design is apparent, and this effect has followed, an injunction may rightfully be issued and ought to be issued."

The same injury may be produced by the use of a name as by the use of any other mark, symbol or design. Why may it not be equally as well the re

But a careful consideration of the question, and of the authorities bearing upon it, will, I think, irresistibly force the conclusion that, even in such a case, the court may, and of right ought to, interfere to protect him who, by a long course of business, has acquired, by the use of his own name as a trade-mark, an extended and valuable reputation and patronage for an article, the origin and manufacture of which his name designates, and consequently has also acquired a very considerable property in the good-sult of the use of one's own name, when such use is will of his establishment, against another, although of the same name, who, by the use of his name, is enabled to pass off his own wares as the wares of the former, and thus deprive the former of the patronage and profit which would otherwise result from the reputation and good-will which belong to him.

Where there is an intent to deceive, or where the name used is calculated to deceive and mislead, it is enough. Fraud or scienter is not essential. Carter v. Carlisle, 31 Beav. 203.

The intention may even be inferred from the natural and necessary result of the act itself. Filley v. Fassett, 17 Am. Law Reg. 402.

And fraud is often a legal conclusion which courts infer from facts and circumstances. 1 Story's Eq., §§ 186-189; Lovett v. Sage, 29 Conn. 577.

"An intentional fraud is not necessary to entitle a plaintiff to protection for a wrongful use of his trademark. But where the same mark or label is used which recommends the article to the public by the established reputation of another who sells a similar article, and the spurious cannot be detected from the genuine, an injunction will be granted although there was no intentional fraud. Coffeen v. Brunton, 4 McLean, 519.

But it is not essential that detection shall be impossible. If the imitation is colorable, and calculated to mislead even the most incautious and unwary into the purchase of the one as and for the other, it is sufficient.

In the case of Clark v. Clark, 25 Barb. 76, the court say, "An imitation of his mark, with partial differences, such as the public would not observe, does him the same harm as the entire counterfeit. If the wholesale purchaser, most conversant with the mark, is not misled, but the small retailer, or consumer, is, the injury is the same in law, and differing only in degree."

designed or calculated to lead the public into the belief that the person applying it to his manufactures is another person of the same name who has long applied his own name to the products of his skill and industry, and by so doing has come to have his manufactures distinguished by it as of his mark, so that, as to him, his name has become a trade-mark?

But we are not without authority upon this point. In the case of Clinton v. Douglass, 1 H. R. V. Johns. 176, Vice-Chancellor Wood says: "The name of a firm is a very important part of the 'good will' of the business carried on by the firm. A person says, 'I have always bought good articles at such a place of business; I know it by the name, and I send to the house of business identified by that name for that purpose.' That the name is an important part of the 'good-will' of the business, is obvious when we consider that there are, at this moment, large banking houses, and brewing firms, and others in this metropolis, which do not contain a single member of the individual names exposed in the firm." See, also, Lewis v. Langdon, 7 Simons, 421.

In Croft v. Day, 7 Beav. 84, "two persons, the one named Day and the other Martin, manufactured an article of blacking, put up in bottles, to which was affixed a label with their partnership name, 'Day & Martin,' and their place of manufacture, ‘97 High Holborn.' This was their trade-mark, under which the article became extensively and favorably known. One of the partners died, and the business was continued by the survivor, who continued the use of the same trade-mark. The surviving partner, in his turn, died, and the business was continued with the use of the same trade-mark by his executor. Then, afterward, a nephew of the testator, whose name was 'Day,' associated with him in partnership a person named 'Martin,' and established a

blacking manufactory, using the same name, 'Day & Martin,' being their own proper names, as a portion of their trade-mark, and also imitating the labels of the old firm in such a manner as to produce the impression that the new concern was connected, in some way, with the old manufacture. Upon these facts, Lord Langdale ordered an injunction to issue, and, in the opinion delivered by him, remarks that 'No man has a right to dress himself in colors or adopt and bear symbols to which he has no peculiar and exclusive right, and thereby personate another person for the purpose of inducing the public to suppose either that he is that other person, or that he is connected with and selling the manufactures of that other person, while he is really selling his own."

And again he says: "The defendant's (Day's) contrivances were calculated to mislead the bulk of the unwary public into the impression that the new concern was connected with the old manufactory, and thus to benefit the defendants, to injure the plaintiffs, and to deceive the public."

In Sykes v. Sykes, 3 Barn. & Cress. 541, the name of the defendant was the same as that of the plaintiff, and he established a manufactory of the same articles, made in the same manner, and adopted his own name as a trade-mark.

The action was sustained, and the court say (Abbott, C. J.): "Where a man has adopted a particular mark for his goods, in order to denote that they are manufactured by him, an action on the case will lie against another who adopts the same mark for his goods, even though that mark be the proper name alike of both parties, if it be adopted for the purpose of denoting that the goods of the defendant are manufactured by the plaintiff, and, therefore, for the purpose of selling them as and for the goods of the plaintiff." See, also, Rodgers v. Nowell, 5 Mau., Grang. & Scott, 109.

"Trade-marks may be either the name of the maker, or symbolical, or the name of the compound." Davis v. Kendall, 2 R. I. 569.

"The right which any person may have to protection as to his trade-mark does not depend upon any exclusive right which he may be supposed to have to a particular name, or to a particular form of words. His right is to be protected against fraud, and this may be practiced against him by means of a name, though the person practicing it may have a perfect right to use that name, provided he does not accompany the use of it with such other circumstances as to effect a fraud upon others." Stone v. Carlan, 3 Mod. Law R. 361.

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mark, and the unwary public are thus actually misled, he should be restrained from such use, and it is immaterial whether the entire name or trade-mark is exactly and perfectly the same or not. Holmes, Booth & Hayden v. Holmes, Booth & Atwood Manufacturing Co., 37 Conn. 278.

CURRENT TOPICS.

The Cincinnati Gazette touches an evil not alone confined to Ohio, in the statement that the salaries of high officers in the State are always made the objects of retrenchment, while the salaries of "local feed officers," as it terms them, are left intact or else increased "because the managers of the parties hold them, and they are the prizes of the party service, and the sinews of party warfare." Under the workings of this party trickery, the Gazette says that they have had in Ohio "salaries of $1,500, $1,800 and $2,500 for judges of the supreme court, while judges of county and municipal courts had $5,000." The Gazette affords an illustration of some salary legislation in the following: "The need that the constitution should interpose in this affair, to the extent of forbidding the legislature to reduce the compensation of judges during the term of their election, is granted by all. But it was a great mistake to extend this prohibition to the increase of their salaries. It is wholly unnecessary, and in Ohio it has operated to prevent the provision of decent salaries for the judges by making any advance grossly unequal in its application. If salaries were raised, none of the sitting or elect judges could be benefited. At one time, in a spasm of decency, a law was passed raising these salaries to $5,000. One judge at $5,000 sat on the bench with his peers who were getting but $1,500. The next legislature repealed this law, and so Judge Peck was the only judge that got $5,000.

We happen to live in what somebody has been pleased to call "the white light of this nineteenth century;" but this said light has not sufficed to show us any better way to deal with witnesses in some criminal cases than to shut them up in prison for a year or two, and until it shall suit the convenience of the parties directly interested to have the case brought to trial. Three witnesses for the prosecution in the Stokes case have been in prison for nearly two years, and, so far as any thing appears to the contrary, are likely to remain there for two years longer. A motion was recently made for their release on their own recognizance, but the motion was denied. Nobody doubts the power of the court to keep them in confinement for fifty years if a trial can be dodged on one pretext or another for that length of time, but it seems very evident that the court should either insist upon an immediate trial of the case, or discharge the witnesses. This matter of confining witnesses in a case, and then permitting the case to drag

From these cases the doctrine seems to be an established one, that when a person, by the use even of his own name, designs to cause a belief in the public mind that his manufactures are the manufactures of another person bearing the same name, and who, by long-continued use in connection with his wares, has acquired property in his own name as a trade-along for years, is an evil that needs attending to.