cotton sheeting, as indicative of grade, class, and quality, was generally understood in the trade when defendant commenced the use of said letters in 1885; that the Atlantic Mills of Lawrence, Mass., stamped the letters "LL" upon brown sheetings of its manufacture in the years 1860, 1862, 1864, and 1865, and from 1872 down to the present time; that there were cessations in the manufacture, of said goods by the Atlantic Mills from time to time between 1860 and 1865, and between 1865 and 1872 none were thus stamped; that the weight of the Atlantic goods made in 1860 and stamped with the letters "LL" was 4.19 yards to the pound; that in 1862 the goods so stamped weighed 4.36 yards to the pound, and in 1863, 1864, and 1865 their weight was 4.56 yards to the pound; that in 1872, when the Atlantic Mills had again commenced placing the "LL" on its sheetings, they weighed, and ever since have weighed, five yards to the pound; that the Atlantic Mills, in 1860, made a grade of brown sheetings that weighed 3.89 yards to the pound, and which it stamped with the single "L;" that the Atlantic Mills employed said letters to distinguish between different grades of goods, and has continued to use letters for that purpose; that it is fairly deducible from the evidence that the Atlantic "LL" cotton sheetings were in the market in 1867; that the Atlantic goods were and are of the same general character and class as those upon which plaintiff stamps "LL," and they are so nearly alike to the "Lawrence LL" that ordinary buyers and even experts cannot by looking at them distinguish them from each other; that they are both used for the same general purpose and compete with each other; that looking only at the letters "LL” purchasers would as readily mistake "Shawmut LL" for "Lawrence LL" sheetings as they would "Cumberland LL" sheetings; that John V. Farwell & Co. have for several years been using a private brand for sheetings known in the trade as "Albany LL," and in 1884, and with full knowledge of this fact, plaintiffs stamped for Farwell & Co. fouryard sheetings with the label "Albany LL," the stamp being furnished by Farwell & Co. and returned to them with the goods, which were sold in the market as John V. Farwell & Co.'s "Albany LL sheetings;" that plaintiff had all the while known of the Atlantic Mills using the "LL" on its goods, and for more than six years before the commencement of this suit had been aware of the fact that numerous other manufacturers had been stamping said letters on their four-yard cotton sheetings, and that it never objected until about the time of the bring ing of this suit and one of a like character against the Aurora Cotton Mills at Chicago; that it did not appear that the brand of defendant had ever been mistaken for that of the plaintiff; that it was not shown that plaintiff, when it commenced using the letters "LL" on its thirdclass goods, adopted them for the purpose of making them its TradeMark or any substantial or material part thereof, nor that the single L, used prior to 1867, constituted in whole or in part its Trade-Mark; that the Atlantic Mills were using the single L on one grade or class of

goods merely to indicate quality, from 1862 up to 1868; that under the proof it was clear that the purpose and design of the change from L to LL was not to indicate origin or ownership or to distinguish the sheetings on which said letters were stamped from similar goods manufactured by others, but that its primary object was to denote its class, quality, or grade, and to represent it to the public as being different goods in class and quality from those primarily sold by plaintiff under the single L stamp.

The circuit court quoted from the evidence of plaintiff's agent that the "LL" was adopted "because it was a time when cotton goods were depreciating. We had made considerable sales of the single L, but a party who had bought a large lot was underselling us at a price lower than we could afford to meet, and I suggested that in order to keep them out of this competition the mills should change the fold of the single L from a narrow to a wide fold, and put on a double L."

The court held that the letters were not only originally used by the plaintiff to indicate the grade of the sheetings on which they were stamped, but to convey the impression that they were different goods from those it had previously sold, and that they could not constitute a valid Trade-Mark, such as would give plaintiff the exclusive right to use them on third-class sheetings, weighing one-quarter of a pound to the yard; that it might well be doubted whether letters by themselves. or in combination could be employed to represent both the grade and quality of goods and their origin, thus performing at the same time the double office of a Trade-Mark and a description or classification of the articles to which they were affixed, and be sustained as affording an exclusive right to the use of the device as a Trade-Mark, which come into collision with the right of the public to use the letters in their other meaning, but that question was left undetermined, since the court concluded that the letters only indicated grade, class, or quality, and not origin, ownership, or manufacture. The court also held that the Atlantic Company so used the letters before their adoption by plaintiff, as to preclude the latter from acquiring a valid trademark therein, and that the putting upon the market of an inferior quality of cotton sheeting weighing four yards to the pound and branded "Shawmut LL," equally warranted the use of the letters by the defendant, and prevented plaintiff from claiming injury to its trade by such use. The court found further that the plaintiff was not entitled to relief on the ground that its label, or a distinctive part thereof, was being simulated by defendant so as to impose its goods upon the public as those of the plaintiff, since defendant had been guilty of no fraudulent intent, and had in no way either deceived the public or defrauded the plaintiff.

Mr. Chief Justice FULLER delivered the opinion of the Court.

After a careful examination of the evidence in this record, we are

satisfied that the conclusions of the circuit court upon the facts are substantially correct. While there may be a conflict in some particulars, we regard the defendant's contention upon all points material to the disposition of the case as clearly sustained by the weight of the evidence, which we do not feel called upon to recapitulate.

In Canal Company v. Clark (13 Wall., 311, 322) it was said by Mr. Justice Strong, speaking for the Court, that

the office of a Trade-Mark is to point out distinctively the origin or ownership of the article to which it is affixed; or, in other words, to give notice who was the producer. This may, in many cases, be done by a name, a mark, or a device well known, but not previously applied to the same article. But though it is not necessary that the word adopted as a trade-name should be a new creation, never before known or used, there are some limits to the right of selection. This will be manifest when it is considered that in all cases where rights to the exclusive use of a Trade-Mark are invaded, it is invariably held that the essence of the wrong consists in the sale of the goods of one manufacturer or vendor as those of another, and that it is only when this false representation is directly or indirectly made that the party who appeals to the court of equity can have relief. This is the doctrine of all the authorities. Hence the Trade-Mark must either by itself, or by association, point distinctively to the origin or ownership of the article to which it is applied. The reason of this is that unless it does, neither can he who first adopted it be injured by any appropriation or imitation of it by others, nor can the public be deceived. The first appropriator of a name or device pointing to his ownership, or which, by being associated with articles of trade, has acquired an understood reference to the originator or manufacturer of the articles, is injured whenever another adopts the same name or device for similar articles, because such adoption is in effect representing falsely that the productions of the latter are those of the former. Thus the custom and advantages to which the enterprise and skill of the first appropriator had given him a just right are abstracted for another's use, and this is done by deceiving the public, by inducing the public to purchase the goods and manufactures of one person supposing them to be those of another. The Trade-Mark must therefore be distinctive in its original signification, pointing to the origin of the article, or it must have become such by association. And there are two rules which are not to be overlooked. No one can claim protection for the exclusive use of a Trade-Mark or trade-name which would practically give him a monopoly in the sale of any goods other than those produced or made by himself. If he could, the public would be injured rather than protected, for competition would be destroyed. Nor can a generic name, or a name merely descriptive of an article or trade, of its qualities, ingredients, characteristics, be employed as a Trade-Mark and the exclusive use of it be entitled to legal protection. As was said in the well-considered case of The Amoskeag Manufacturing Company v. Spear, (2 Sandf. Sup. Ct., 599,) "the owner of an original Trade-Mark 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 the exclusive use of any words, letters, figures, or symbols, which have no relation to the origin or ownership of the goods, but are only meant to indicate their names or quality. He has no right to appropriate a sign or symbol, which, from the nature of the fact it is used to signify, others may employ with equal truth, and therefore have an equal right to employ for the same purpose.

We quote thus at length, because the decision is a leading one, which has been repeatedly referred to and approved as presenting the philosophy of the law applicable to Trade-Marks in a clear and satisfactory

manner, as should also, indeed, be said of Judge Duer's noted opinion in the case therein cited. (Amoskeag Manufacturing Co. v. Trainer, C. D., 1880, 464; 101 U. S., 51; Manhattan Medicine Co. v. Wood, C. D., 1883, 268; 108 U. S., 218; Goodyear Company v. Goodyear Company, C. D., 1889, 257; 128 U. S., 598; Corbin et al. v. Gould et al., C. D., 1890, 295; 133 U. S., 308.)

Nothing is better settled than that an exclusive right to the use of words, letters, or symbols, to indicate merely the quality of the goods to which they are affixed, cannot be acquired. And while if the primary object of the mark be to indicate origin or ownership, the mere fact that the article has obtained such a wide sale that it has also become indicative of quality, is not of itself sufficient to debar the owner from protection, and make it the common property of the trade, (Burton v. Stratton, 12 Fed. Rep., 696,) yet if the device or symbol was not adopted for the purpose of indicating origin, manufacture, or ownership, but was placed upon the article to denote class, grade, style, or, quality, it cannot be upheld as technically a Trade-Mark.

Amoskeag Manufacturing Co. v. Trainer, supra, which involved the use of the letters "A. C. A." in connection with a general device constituting a Trade-Mark, is very much in point, and the discussion by Mr. Justice Field, who delivered the opinion of the Court, leaves little, if anything, to be added here. In that case as in this, there was some evidence tending to show that it was understood that the letters were used to indicate origin as well as quality, but it was considered to be entirely overborne by the disclosure of the name of the manufacturer in full and the history of the adoption of the letters to designate quality only, as narrated by complainant.

We held in Menendez et al. v. Holt et al., (C. D., 1889, 344; 128 U. S., 514, 520,) that the words "La Favorita" were so used as to indicate the origin of a special selection and classification of certain flour, requiring skill, judgment, and expert knowledge, and which gave value and reputation to the flour. The name was purely arbitrary—a fancy name and in a foreign language and did not in itself indicate quality. The legality of the Trade-Mark as such, (and it had been duly registered under the act of Congress,) was conceded by the answer, though it was contended in the argument that it was not valid because indicative only of quality, but we were of opinion that the primary object of its adoption was to symbolize the exercise of the judgment, skill, and particular knowledge of the firm which adopted and used it, and that the phrase covered the wish to buy and the power to sell from that origin.

Since we are satisfied from the evidence that plaintiff failed to establish the existence of a Trade Mark in the letters "LL," or that they constituted a material element in its Trade-Mark, relief cannot be accorded upon the ground of an infringement by defendant of an exclusive right in the plaintiff to use the letters as against all the world. The jurisdiction to restrain the use of a Trade-Mark rests upon the

ground of the plaintiff's property in it, and of the defendant's unlawful use thereof. (Boston Diatite Co. v. Florence Co., 114 Mass., 69.) If the absolute right belonged to plaintiff, then if an infringement were clearly shown, the fraudulent intent would be inferred, and if allowed to be rebutted in exemption of damages, the further violation of the right of property would nevertheless be restrained. (McLean v. Fleming, C. D., 1878, 262; 96 U. S., 245; Menendez v. Holt, C. D., 1889, 344; 128 U. S., 514.)

It seems, however, to be contended that plaintiff was entitled at least to an injunction, upon the principles applicable to cases analogous to Trade-Marks; that is to say, on the ground of fraud on the public and on the plaintiff, perpetrated by defendant by intentionally and fraudulently selling its goods as those of the plaintiff. Undoubtedly an unfair and fraudulent competition against the business of the plaintiff— conduct with the intent, on the part of the defendant, to avail itself of the reputation of the plaintiff to palm off its goods as plaintiff's-would, in a proper case, constitute grounds for relief.

In Putnam Nail Co. v. Bennett, (43 Fed. Rep., 800,) where the bill alleged that the defendants had imitated plaintiff's method of bronzing horseshoe-nails, which plaintiff used as a Trade-Mark, with the intention of deceiving the public into buying their goods instead of plaintiff's, and the question came up on demurrer, Mr. Justice Bradley, after stating certain averments of the bill, said orally:

There is here a substantial fact stated, that the public and customers have been, by the alleged conduct of the defendants, deceived and misled into buying the defendant's nails for the complainant's. That averment is amplified in paragraph four of the bill. Now a Trade-Mark, clearly such, is in itself evidence, when wrongfully used by a third party, of an illegal act. It is of itself evidence that the party intended to defraud, and to palm off his goods as another's. Whether this is in itself a good Trade-Mark or not, it is a style of goods adopted by the complainant which the defendants have imitated for the purpose of deceiving, and have deceived the public thereby, and induced them to buy their goods as the goods of the complainant. This is fraud. We think the case should not be decided on this demurrer, but that the demurrer should be overruled, and the defendants have the usual time to answer. The allegation that the complainant's peculiar style of goods is a TradeMark may be regarded as a matter of inducement to the charge of fraud. The latter is the substantial charge which we think the defendants should be required to

answer.

And see New York and Rosendale Cement Co. v. Coplay Cement Co., (C. D., 1890, 550; 44 Fed. Rep., 277.)

In Wotherspoon v. Currie (L. R. 5, H. L., 508) the plaintiffs had manufactured starch at Glenfield, which had become known as "Glenfield starch." They removed from Glenfield, but continued to call their starch by the same name. The defendant, though his place of business was at Paisley, commenced manufacturing starch at Glenfield, and selling the same in Scotland with the words "Glenfield starch” printed on the sale labels. This was interdicted by the Court of Session, but he continued to sell in England under a label of which "Glenfield" in

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