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In Routledge v. Low, it was holden that an alien friend who, during the time of his temporary residence in a British colony, publishes, in the United Kingdom, a book of which he is the author, is, under 5 & 6 Vic. c. 45, entitled to the benefit of English copyright (z).

DLXXX.c. (a) 3. The cases decided in the English Courts on the subject of the piracy of Foreign Trade-marks, show a greater regard for Comity than the [earlier] decisions of the French tribunals (b).

In a recent case an alien ami manufactured, in his own country, goods, which he distinguished by a peculiar trademark. The goods obtained considerable reputation both in his own country and in various other foreign countries, and also in some British colonies; but it was not shown that any of such goods had ever been even introduced or imported into England. The defendant was in the habit of manufacturing in and selling in this country, goods similar in appearance, and with an exact copy of the plaintiff's peculiar trade-mark. Some of these imitative articles were sold and used abroad in countries where the alien ami's goods had obtained a reputation. It was holden by the Court, that he was entitled to an injunction restraining the defendant from copying or imitating the trade-mark (c). The doctrine seems to have been laid down in this case, that a man has no property in a trade-mark, but he has a right to prevent anybody else from using it,

(z) Routledge v. Low (1868), L. R. 3 H. L. p. 100; 37 L. J. (Chane.) p. 454.

(a) This and the next section were §§ dxciii. dxciv. of the first edition.

(b) See a remarkable case, The Emperor of Austria v. Day and Kossuth, 2 Giff. Rep. p. 628, referred to in vol. ii. of this work, § cxiii.A. [But now the French Courts recognize the principles of Comity, at least as regards English trade-marks. Affaire Rowland & Sons, Trib. de la Seine, 8th May, 1878; Cour d'Appel, 23rd July, 1880, from Mons. Clunet's manuscript notes.]

(c) The Collins Company v. Brown; and same v. Cowen, 3 Kay & Johnson's Rep. p. 423; p. 428 (a.d. 1857).

so as to attract custom which otherwise would flow to himself. Also that a person on whom an injury is fraudulently committed may have a remedy in the Court of any country where the fraud occurs, and even although he be at the time an alien enemy.

DLXXX.D. In an important case on this subject a bill was filed by an American trading company, incorporated by the Law of the State of Connecticut, in the United States of America, for an injunction to restrain a manufacturer of Birmingham from continuing the fraudulent use of the trade-marks of the company, and for an account of the profits made by him from such use. He, by his answer, admitted the use of the trade-marks complained of; but, by way of rebuttal of the charge of fraud, stated that, in so using the trade-marks, he had only followed a custom, prevalent at Birmingham, for manufacturers of goods of the kind sold by the company to affix on the goods ordered by merchants a particular trade-mark, relying on the respectability of the merchant, when known to them, for the fact that those merchants had authority to act as agents of, or by way of license from, the person entitled to the exclusive use of the trade-marks; and that he had been informed that the company themselves had ordered goods to be manufactured at Birmingham, with their own trade-mark upon them, for the purpose of sale in foreign countries. These statements were left uncontradicted by the company. The Court, upon motion for decree, ordered that an interim injunction which the defendant had previously submitted to, should be continued for a year, with liberty to the company to bring an action within that time to try their right at law; and in case of their not proceeding at law and to trial within that time, that their bill should thereupon stand dismissed with costs (d).

DLXXX.E. Mr. Wharton (e) observes, that "In Eng

(d) Collins v. Reeves (V.-C. Stuart, 1859), 28 Law Journal (Chanc.),

p. 56.

(e) §§ 326, 327, [where it is mentioned that the United States en

"land and the United States, it is needless to say, the "counterfeiting of any trade-mark, with intent to defraud

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a vendee, is indictable as a cheat at common law. The "distinction between the intent to defraud the vendee, "and that to defraud the manufacturer, seems overlooked by both Bar and Foelix. When a vendee is defrauded "by imposing on him an inferior article on a forged brand or stamp, he can prosecute criminally the offender, though no civil action may lie in favour of the foreign "manufacturer whose trade-mark is counterfeited” (ƒ).

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[DLXXX.F. By a Convention, signed at Paris March 20, 1883, Belgium, Brazil, France, Guatemala, Italy, Holland, Portugal, Salvador, Servia, Spain, and Switzerland constituted themselves into a Union for the protection of Industrial Property. It is thereby agreed that the citizens of each of these States shall, in all the other States belonging to the Union, as regards Patents, Industrial designs or models, Trade-marks, and Trade-names, enjoy the advantages which such other States grant or shall hereafter grant respectively to their own citizens. Citizens of countries not belonging to the Union, who are domiciled or have commercial establishments in Union States, are put upon the footing of citizens of Union States. This Convention was acceded to by Great Britain March 17, 1884, and by the United States of America May 30, 1887 (g)].

tered into a treaty on the subject of counterfeiting trade-marks with Belgium, and with France.]

[(f) In Missouri the infringement of a British trade-mark has been considered a criminal offence, State of Missouri v. Gibbs, 56 Missouri Rep. p. 133.

For recent English legislation on trade-marks, see 46 & 47 Vic. c. 57, part iv. ; and "The Merchandise Marks Act, 1887" (50 & 51. Vic. c. 28), which repeals the Merchandise Marks Act, 1862, and prescribes stringent rules against deceptive marks on goods, whether produced in this country or imported.]

[(g) Parliamentary Papers, Commercial, No. 28 (1884) and No. 11 (1887). See Appendix III. infrà.]

CHAPTER XXVIII.

ACQUISITION AND ALIENATION OF MOVEABLE AND
IMMOVEABLE PROPERTY.

CAPACITY TO ACQUIRE OR TO ALIENATE.

DLXXXI. HAVING considered in what the nature of moveable and immoveable property consists, and by what laws it is determined, we now approach the consideration of the rules of Private International Law with respect to the acquisition and the alienation of property by Foreigners.

DLXXXII. As it is an incident to the Sovereign Power of every independent State to have authority over all persons residing or being within its borders, so it is an incident to the same power to have authority over all things or property of every description within its borders.

The Laws of each State, therefore, govern the whole property of individuals, whether they be natives or foreigners.

But the same Comity which, in the application of the Law, distinguishes for some purposes between the persons of natives and foreigners, makes a distinction both as to their capacity to acquire property, and also as to the form and manner of its acquisition or alienation.

DLXXXIII. The following summary of the opinions of jurists upon this important point is, it is believed, correct :

1. There are those, beginning with Huber (a) and ending with Savigny (b), who hold that this capacity to acquire or alienate is governed by the Law of the domicil of the acquirer or alienator.

2. There are those who hold that this capacity does not belong to the qualities of the person, as such, but to the legal working or effect of these qualities, and, therefore, that the lex fori, before which the matter is adjudicated upon, and not the Law of the domicil, should be applied.

3. Those who hold, with Story for their principal exponent, that, generally speaking, the Law of the domicil should be applied, but not in the case of immoveables. In this case, the lex rei sitæ, or the Statutum reale, must govern―a position emphatically condemned by Savigny. But those who maintain the first opinion admit the following exceptions (c):

a. Where the capacity to acquire or alienate is forbidden by the Law of the territory in which the property is situated (cc).

B. Where it is doubtful whether the property be or be not among the res quorum commercium non est, the lex rei site is to prevail.

7. Where a question arises as to property without an owner (bona vacantia), or as to whether particular property can be acquired by occupatio.

For instance, jura regalia—rights of the Crown and Government with regard to mines, minerals, or treasure trove; or amber in the kingdom of Prussia. In such cases it is admitted that not only ought the lex rei sita to prevail, but that the property acquired under such a title ought to be recognized by all other States.

(a) Prælect. vol. ii. lib. i. tit. iii. App. § 12.

(b) R. R. viii. s. 367. See also Wharton, s. 329 [and cf. Bar, § 64]. (c) Savigny, ibid.

[(cc) For examples of this kind of prohibition, in the United States, see suprà, § ccclxxxv. B. note (99).]

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