business under their own name, adding the words "late John Douglas & Co."

John Douglas, the defendant, afterwards established and carried on with others, some of whom had been connected with the original firm, the same kind of business close to the premises of the original firm, and under the title of "John Douglas & Co.'

Wood, V.C., observed, that "When the defendant parted with the goodwill of the business to the plaintiffs, he handed over to them all the benefit that might be derived by holding themselves out as the persons interested in that particular business; which business had been identified as being carried on by. the particular firm " (f), and his Lordship, treating the conduct of the defendant as in fact fraud, or in the nature of fraud, granted an injunction restraining the defendant from carrying on the business at or in the immediate neighbourhood, either alone or in partnership with others, under the style or firm of Douglas & Co.; or in any other manner holding out, that he was carrying on the business in continuation of, or in succession to, the business carried on by the former firm of Douglas & Co.

In the case of Radde v. Norman (g), the plaintiffs had adopted for their salt called "Kainit," the term of Leopoldshall Kainit" (h), and they claimed an exclusive right to the use of the word "Leopoldshall."

The defendants advertised and sold the salt under the same title "Leopoldshall Kainit," and it was alleged by the plaintiffs, that the defendants' material was inferior to the plaintiffs', and that by such sale under the same title as the plaintiffs, they the plaintiffs were much damaged.

It was contended for the plaintiffs, that the word "Leopoldshall" was in fact a trade mark; and it was

(f) See Johnson's Reports, pp. 189, 190. (g) L. R. 14 Eq. 348. (h) For the history of the application of the above term see pp. 348 and 349 of the Report.

urged for the defence that that view of the case could not be sustained. In giving judgment, Wickens, V.C., after referring to all the facts, said: "I must treat this case therefore, as one in which the plaintiffs have established primâ facie, what I admit to be a very difficult title to establish, viz., a title to the exclusive use of a particular word as a trade mark; and that the defendants have used the same word without any justification or excuse." And his Lordship granted an injunction. It should be observed that in this case, there was a good deal to shew mala fides, on the part of the defendants (i). Clark v. Freeman (j), appears not to have been considered as properly a case of trade mark. In that case, the application by Sir James Clarke, an eminent physician, was for an injunction to restrain the defendant from "selling or exposing to sale, or from causing to be sold, any pills or other medicine, described as or purporting to be those of the plaintiff; and from publishing or circulating, or causing to be published or circulated, advertisements or handbills, so contrived or expressed, as to represent that any medicine sold or prepared to be sold by the defendant, was so sold by him as the agent or on behalf of, or under the sanction or approbation, or with the authority of the plaintiff."

The facts were as follows: the plaintiff was an eminent physician practising in London, and he had devoted especial attention to the treatment of consumptive diseases, and had written and published works treating of such diseases. The defendant, a chemist and druggist, had been offering for sale, and advertising extensively, certain pills which he called (without any authority from the plaintiff, Sir Jas. Clarke) "Sir J. Clarke's Consumptive Pills," and he had published an advertisement to the following effect: "By Her Majesty the

(i) See the judgment at length. The doubt of the learned judge as to whether the use of the word "Leopoldshall" could per se constitute a trade mark, seems to the writer to be now set at rest by the 10th sect. of the Trade Marks Act, 1875.

(j) 11 Beav. 112.

Queen's permission, Sir Jas. Clarke's Consumptive Pills." Then followed a long tirade (in pure advertising style) upon the horrors of consumption; and the advertisement ended by using the following terms: "Agent: W. R. Freeman, Kennington Road, and to be had of any vendor; price 2s. 9d." And the defendant also published handbills and advertisements to a similar effect.

It was contended for the plaintiff that this was a fraud and misrepresentation, which ought to be restrained by the Court, and Sykes v. Sykes, Perry v. Truefitt, Croft v. Day, and Knott v. Morgan (referred to in previous pages) were cited.

Lord Langdale, M.R., refused to grant an injunction, on the ground, firstly, that the offence seemed to be an injury in the nature of slander, and might be an injury to the public; that in that view, the conduct of the defendant would be in the nature of a public offence, and that a Judge sitting in Equity could not decide such a case, till the offence was established at Law: and finally, his Lordship, admitting that the act of the defendant was an injury to the plaintiff in the way of slander, and might be a serious injury to the public, said: "I think that granting an injunction in this case, would imply that the Court has jurisdiction to stay the publication of a libel, and I cannot think it has."

In a recent case, however (k), Lord Cairns, then L.J., said, referring to Clarke v. Freeman, "it always appeared to me, that Clarke v. Freeman might have been decided in favour of the plaintiff; on the ground that he had a property in his own name; " and in the case of the Springhead Spinning Co., v. Riley (1), Malins, V.C., said, referring to Clarke v. Freeman, "I confess myself wholly unable to coincide in the reasoning of Lord Langdale in that case, and the decision may now, I think, be considered as erroneous, for the reasons stated by Lord Cairns, in Maxwell v. Hogg (m), and his Lordship (k) Maxwell v. Hogg, L. R. 2 Ch. Ap. 307. (1) L. R. 6 Eq. 551. (m) See p. 561 of the judgment.

added: "I must say, that it is perfectly clear to my mind, at all events, that a man bas a sufficient property in his own name, to prevent another from falsely passing off injuriously to his reputation, medicines as personally prescribed by him, which might cause a total destruction of his character."

It must be remembered that at the date of Clarke v. Freeman (1848) it was not, in the first place, quite settled that a name could even as a trade mark be strictly, property; but the use of another man's name, in such a manner as that pursued by the defendant in Clarke v. Freeman, was at least a fraud upon the public, and equally a fraud as against the plaintiff ; and the writer ventures to draw from the dicta above referred to of Lord Cairns and V.C. Malins, that if a case substantially similar to Clarke v. Freeman were to arise at this day, a Court of the Chancery Division would grant an injunction.

In the case of Liebig's Extract of Meat Co. v. Hanbury (n), it appears that in the year 1847 Baron Liebig had discovered and published a process for making an extract of meat; and the extract was made extensively at the Royal Pharmacy, Munich, and sold with the sanction of Baron Liebig. The name or term " Liebig's Extract of Meat" became also used as a term of art in scientific treatises. In 1864, a company called the "Fray Bentos Co.," obtained from Baron Liebig, the right of using his name in respect of their manufacture of the meat according to his process. In 1864, the plaintiffs bought the business and property of that company, and by a deed poll, the "Fray Bentos Co. granted to the plaintiffs their right to use the name of "Liebig."

The defendants had previously sold extract of meat manufactured by the Fray Bentos Co, and in 1866 they began to sell as "Liebig's Extract of Meat," an extract manufactured in Australia, after Liebig's process.

The plaintiffs filed a bill for an injunction against (n) 17 L. T. N.S. 298.

the defendants, to restrain them from using the name of "Liebig's Extract of Meat," and the Court held that there was no fraud on the part of the defendants, and dismissed the bill; the Court treating the term "Liebig's Extract of Meat" as merely a term used to designate a well-known process, long before the plaintiffs bought the business.

In the case of Stephens v. Peel (o), the plaintiffs were the executors of Henry Stephens, who had discovered a process for making an ink of a blue colour, which possessed the peculiar quality of first writing in blue, and after a few hours of turning into a jet black; and he had manufactured and sold such ink for many years down to the time of his death; and he called this ink, "Stephens' Blue Black Writing Fluid." The words on the labels which he put on his bottles of ink, consisted in part of white letters on a red ground, and in part of blue letters on a white ground. The labels were surmounted by a white crown, on a blue ground, and bore in a prominent position, the words: "Stephens' Blue Black," in white capital letters of large type.

The defendant carried on a similar business in another part of London, and had been offering for sale, ink not made by the plaintiffs, in bottles not materially differing in size and appearance from the plaintiff's bottles.

The defendant's labels consisted in part of white letters on a blue ground, and in part of blue letters on a white ground; and were surmounted by a white crown upon a blue ground, and bore in a prominent position, the words "Steelpens Blue Black."

The defendants contended that the word "Steelpens" was so different from "Stephens," as to deceive no one. But the Court, as might well be expected, took a different view, and held, that, looking at the circumstances of the case, and the labels, and the surrounding circumstances, there was a fraudulent and colourable imitation of the plaintiff's trade mark.

(0) 16 L. T. N.S. 145.

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