The case came before V. Williams, J.; and his Lordship told the jury, "That it was actionable for one manufacturer to mark goods with the known and accustomed mark of another, with intent to pass them off as goods of that person's manufacture, and to sell them. with a false representation, that they were of the manufacture which such mark would denote them to be," and he left it to the jury to say, "1st. Whether the defendants had adopted a mark so closely resembling the known and accustomed mark of the plaintiff, as to be calculated to impose upon ordinary persons, and to induce them to believe the goods bearing such marks, to be of the plaintiff's manufacture; 2nd. Whether the defendants had adopted the mark alleged in the declaration, with intent to deceive, and had sold the goods so marked as and for goods of the plaintiff's manufacture," and the jury found for the plaintiff; and on a motion for a new trial, the Judges were unanimous in opinion that there was no ground for a new trial, and the rule was refused.

It is to be observed that in this case, not a word was said by the Court intimating that the trade mark was property; on the contrary, Wilde, C.J., said, "The plaintiffs do not claim any abstract right to the exclusive use of the mark in question; they merely say, that having adopted a particular mark, the public have been led to believe goods so marked, to be of their manufacture." And his Lordship added, "The learned Judge (V. Williams, J.) told the jury, that to entitle the plaintiff to a verdict, it was not enough that the defendants had adopted means calculated to deceive, but that they must be satisfied that the defendant did the act complained of, with intention to deceive,' and Coltman, J., in delivering his judgment, said, 'I agree with the law laid down by my brother Williams, that no man has a right to sell goods of his own manufacture, upon a false and deceitful representation, that they are of the manufacture of another.""

Not one word was said by the Court, alluding to the doctrine that a trade mark is property; and the whole judgment seems to rest upon fraud, and voluntary fraud.

In this respect, the cases above referred to, tried .at the Common Law, do not appear at all to reach the doctrine acted upon in Crowley v. Millington, Taylor v. Harrison, and other cases decided in Equity, and cited in subsequent pages; in which cases the Courts of Equity unquestionably adopt the rule, that it is infringement where there is ground for imputing fraud to the defendant, in imitating intentionally another man's trade mark; or where there is even imitation calculated to deceive, but without actual intention to deceive; yet those Courts go a great deal further, and hold the imitation of another man's trade mark to be an infringement, even where the defendant was wholly unaware of the existence of the plaintiff's trade mark.

We must now pass on to the gradual growth in Equity, of the doctrines affecting the law of trade marks, and it may now be said, settled by a series of decisions.

In early cases, and even in some comparatively recent cases, trade marks have been treated in Equity, not as actual property, but merely as a right of some kind entitled to protection.

Thus in the case of Blanchard v. Hill (i) Lord Hardwicke, C., said, "In the first place, the motion (a motion for an injunction) is to restrain the defendant from making cards with the same mark which the plaintiff has appropriated to himself; and in this respect, there is no foundation for this Court to grant such an injunction.

And in Canham v. Jones (j), where the plaintiff claimed under the will of one Swainson, a secret or recipe for preparing a medicine, called "Velno's Vegetable Syrup," and the defendant made a spurious (i) 2 Atkyns, 484. (j) 2 Ves. & B. 218.

composition and sold it under the same mark or title; the Vice-Chancellor allowed a demurrer, distinguishing the case from Hogg v. Kirby (k). That case was in fact a copyright case, obviously distinguishable from a trade mark case.

Even, however, in much later cases, the character of property has not been accorded to trade marks.

Thus in Knott v. Morgan (1), heard in 1836, the plaintiffs (proprietors of the London Conveyance Company) alleged that the defendants, with the design of fraudulently procuring the custom of persons in the habit of using the plaintiffs' omnibuses, had started an omnibus to run from Paddington to the Bank; and on the omnibuses of the defendants, were painted the words "Conveyance Company," and "London Conveyance Company," in such a position and in such a manner, as exactly to imitate the same words previously adopted by the plaintiffs on their omnibuses; also a star and garter were in like manner painted on the defendants' omnibuses, so as exactly to imitate the same symbol on the plaintiffs' omnibuses; and the liveries of the defendants drivers and conductors also exactly imitated the plaintiffs' liveries.

The defendants, upon notice that an injunction would be applied for, obliterated from the back of their omnibuses the single word "Company," and painted on the sides, "over the word Conveyance," the word original; and between the words conveyance and company, was inserted the word for, in very small and almost invisible characters. On the back of the omnibuses were painted the words "London Conveyance," and on each of the sides, the words "original conveyance for company," and the defendants retained the same liveries as before, for their servants.

Lord Langdale, M.R., in delivering judgment, admitted that the plaintiffs had no exclusive right to the words "Conveyance Company" or "London Con(k) 8 Ves. 215. (1) 2 Keen, 213.

veyance Company," but his Lordship said they had a right to call upon the Court to restrain the defendants from fraudulently using the same words and devices, which they (the plaintiffs) had taken for the purpose of distinguishing their property, and thereby depriving them (the plaintiffs) of the fair profits of their business, by attracting custom, on the false representation, that carriages, really the defendants, belonged to and were under the management of the plaintiffs.'

His Lordship plainly therefore treated the case, as simply a case of fraud, and not of actual invasion of property; and granted an injunction, restraining the use of the words adopted by the plaintiffs; and a motion on appeal to the Lord Chancellor, was dismissed with costs.

So in the case of Perry v. Truefitt (m), (heard in 1842), where the plaintiff had bought a new recipe for a greasy mixture for the hair, and sold it under the name or title of "Perry's Medicated Mexican Balm;" and he had acquired an extensive sale and reputation for the mixture so described. And a rival in trade named Truefitt (the defendant), had commenced selling a greasy mixture, somewhat similar to the plaintiff's, in bottles and with labels closely resembling those used by the plaintiff, and sold it under the title of "Truefitt's Medicated Mexican Balm." In that case, on a motion for an injunction by Perry, to restrain Truefitt from selling under the name of "Truefitt's Medicated Mexican Balm," Lord Langdale, M.R., said (n), "It does not seem to me that a man can acquire a property merely in a name or mark; but whether he has or not a property in the name or mark, I have no doubt that another person has not a right to use that name or mark for the purpose of deception, and in order to attract to himself that course of trade, or that custom, which, without that improper act, would have flowed to the person who first used, or was alone in the habit of using, the particular name or mark.” It is obvious that in the two cases referred to, the (m) 6 Beav. 66, (n) See p. 73.

Court recognised a right of some kind to be protected as against fraud; but there the doctrine as to the specific nature of the right stopped.

Millington v. Fox (o), heard in 1838, went somewhat further in regard to the protection of trade marks than the above mentioned cases. In Millington v. Fox there was no fraud; the plaintiffs had acquired, under the title of "Crowley, Millington & Co.," a reputation as manufacturers of steel, which was marked at first with the name "Crowley," and afterwards with the name "Crowley Millington;" the defendants James & Samuel Fox had for a considerable time sold steel with the same mark, "Crowley" or "Crowley Millington." There was evidence to shew that the defendants had not fraudulently used the plaintiffs' mark, but that they had done so in ignorance of the mark being the plaintiffs' trade mark. And Lord Cottenham, C., granted a perpetual injunction, restraining the defendants from using the plaintiffs' trade mark. In giving judgment his Lordship said: "It does not appear to me that there was any fraudulent intention in the use of the marks; that circumstance, however, does not deprive the plaintiffs of their right to the exclusive use of those names" (p).

was

So in a more recent case (q), the trade mark of the plaintiff (a mustard manufacturer) was the figure of an Ox, on the flank of which was printed the word "Durham;" the plaintiff's name "Harrison" printed above the Ox; and the word "mustard" was printed below it. The defendants Taylor & Co. (also mustard manufacturers) used on their mustard tins, the figure of an ox, but without the word "Durham; and they added their own name 'Taylor." defendants stated in their evidence, that when they took their trade mark, they knew nothing of the plaintiffs' trade mark. And Lord Hatherley (then V.C. Wood) said (p) See p. 352. (q) Harrison v. Taylor, 11 Jur. N.S. 408 (heard in 1865).

(0) 3 Myl. & Cr. 338.

66

The