value of the preparation known as “Lieut. James' Horse Blister."

The case argued for the plaintiff was in substance that, assuming the defendants' preparation to be as good as that of that of the plaintiffs', or even compounded in the same way as the plaintiffs', the defendants had no right to advertise it as "Lieut. James' Horse Blister." That, it was contended, was in effect, representing it as manufactured by the plaintiffs.

The Master of the Rolls, Lord Romilly, in giving his judgment, said (after referring to the circumstances of the case): "It appears to me that the signature (viz., Robert James) would lead the public to suppose that the article was prepared by the inventor himself, and I do not think the defendants are entitled to do that. If the name of the inventor had not been Robert James, I think the case would have been very different; but the name of the inventor being Robert James, and signed as such, I think the defendants' ointment ought to be sold in pots bearing the full signature of Robert Joseph James, and not the signature of Robert James alone." And his Lordship granted an injunction restraining the defendants from using the name of Robert James alone, but with liberty to use the name of Robert Joseph James. The injunction also restrained the defendants from using the name of Robert James alone on the tops of the pots, and from suggesting or asserting that the ointment sold by the plaintiffs, was spurious, and also from using on their advertisements certain other assertions that were shewn to be false (t).

Where manufacturers had obtained a patent for the manufacture of case-hardened ploughshares, which they marked with their name, as "Ransome's Patent," and with the letters H. H., to denote that the ploughshares were case-hardened, and also with certain numbers,

(t) See also Lazenby v. White, a case of a somewhat similar character, 41 L. J. N.S. 354,

such as No. 6, to denote their size; and the defendant took and used the very same marks and numbers, and admitted such use; and his defence was, that he had believed that the patent had expired, and contended that he had a right to use the letters and figure H. H. 6, the Court treated this as fraud, and granted an injunction to restrain the user both of the name, and of the letters and figure H. H. 6 (u).

In Schweitzer v. Atkins (v), the plaintiff, a chemist, had invented a preparation of cocoa, to which he applied the fancy name of Cocoatina, and he sold it in packets labelled "Schweitzer's Cocoatina, or Anti-dyspeptic Cocoa, registered;" it had been long known, and had attained an extensive sale. The defendant Atkins had been in the employ of the plaintiff, and had received money from the plaintiff to enable him, the defendant, to set up business for himself; and he, the defendant, entered into partnership with a man named Otto Schweitzer. They traded under the name of "Schweitzer, Atkins, & Co.," and they sold another preparation of cocoa, which they called Cacaotine, and they sold it under the title of "Otto Schweitzer, Atkins, & Co." Their packets and labels had a general resemblance in colour and form to the plaintiff's, but the packets were larger than the plaintiff's packets.

6

Malins, V.C., granted an injunction, pointing out the several crafty attempts to a pretended difference, and observing: "If nothing but that which was fair was intended by the defendants, I think the new firm might well have been called Atkins & Schweitzer,' instead of Otto Schweitzer, Atkins, & Co.' It is clear, beyond doubt to my mind, that the object of putting the names in that order, was to enable the defendants, with apparent truth, to imitate the plaintiff's trade mark; and with what other possible object did they adopt the word cacaotine? The appended tine is wholly unnecessary, and could only have been adopted (u) Ransome v. Bentall, 3 L. J. N.S. 161. (v) 37 L. J. N.S. 847.

because of its similarity to the word used by the plaintiff. The public do not observe these minute differences, and I am clearly of opinion that this is a fraudulent imitation of the trade mark of the plaintiff."

Though, in general, it is fatal to a trade mark, if the owner of it treats the goods to which it is attached, as the subject of a patent, when there is, in fact, no patent; yet there will be an exception to the rule, if it is plain that the word patent is not used for the purpose of misleading the public, but is simply as a name attached to the goods, by which they are known to manufacturers in the particular trade (w).

In Hookham v. Pottage (x) the plaintiff and defendant had been partners in the business of tailors, drapers, &c., under the name of "Hookham and E. & S. Pottage," for a long period. Differences between them arose, and they separated. The plaintiff remained at their former place of business, and he took down the name of "Hookham and E. & S. Pottage, and put up, in substitution, "Hookham & Co." The defendant afterwards took premises seven doors below the plaintiff's, and on the same side of the street; and at first painted over his door the words, " S. Pottage, from Hookham and Pottage," the words from and and were in small letters, and placed diagonally on either side of the word Hookham, so that at a short distance they had the appearance of being a flourish or ornament, instead of separate words. On the plaintiff remonstrating with this, through his solicitor, the defendant removed the words "From Hookham & Pottage" from over his shop door; but he afterwards replaced them in letters somewhat different from those used by him before, the words from and and being somewhat larger, and placed horizontally. With this exception, the appearance was identical with what it was at first. Ultimately the plaintiff filed a bill against the defendant, praying for (w) Marshall v. Ross, L. R. 8 Eq. 651.

(2) 26 L. T. N.S. 755.

an injunction; and the case was, by consent, treated as the hearing of the cause. The V.C., Sir R. Malins, after stating the facts of the case, said: "The question I have to decide is, whether the manner in which the defendant uses the name of the plaintiff, is or is not calculated to deceive. It is not necessary that I should come to the conclusion that there is any intention on the part of the defendant to mislead; that is immaterial. If it is calculated to mislead, that is, if it is calculated. to mislead the public into the shop of the defendant, while it is their intention to go into the shop of the plaintiff, that is an injury done to the plaintiff." His Lordship then referred to some cases, and said: “All these cases proceed upon this principle, viz., that the thing done is calculated to deceive.' His Lordship, after comments upon the facts, came to the conclusion that what the defendant had done, was calculated to mislead the unconscious, unwary, and heedless portion of the public, into the impression that the shop of the defendant was the shop of the plaintiff; and his Lordship granted a perpetual injunction.

Though a name may (as appears by the cases referred to in previous pages) become and constitute a trade mark, yet a name descriptive of a machine, the subject of a patent, cannot, in general, be a trade mark after the expiration of the patent; but if a person adopts and uses that name, so as to represent himself as the agent of the parties who sell the things that are the subject of the expired patent, that is fraud, and will be restrained (y).

It is submitted that the following general rules may be deduced from the authorities cited in this chapter:1. That the use by B. of a name previously adopted by A. is fraud; even though the name may not be actually a trade mark.

2. That even approximate imitation of names, or

(y) Wheeler & Wilson Manufacturing Company v. Shakespear,

39 L. J. N.S. 36.

labels, is fraud; and so is an imitation of a material part of the terms used to designate a material sold.

3. That though a man may undoubtedly, in general, use his own name for various purposes, yet he may not, by using a part of it only, imitate another man's name, and so mislead the public, and induce them to believe that the goods he sells under his so garbled name, are the goods sold by another man (z).

4. That an addition to, or an alteration made by A. in, the trade mark of another, so far trifling as not fairly to strike or meet the observation of the general public, is fraud.

(2) See the peculiar case of James v. James, cited ante, p. 81.