includes recovery for negligent omissions. Case is sort of a residuary action in the realm of torts, as indebitatus assumpsit is in contracts. Another action of case for the recovery of damages for injury to the rights in rem which are personal property is an action on the case for nuisance. Waste is an action on the case for the violation of a real property right, and slander and libel, for violation of personal rights, but the action on the case for waste is itself a personal property right and the actions on the case for slander and libel, become personal property after judgment. The proper action of co-owners of either joint or common property in non-severable chattels is a bill in equity for an accounting, but if one co-owner should destroy the property trover or conversion would lie, and if he should sell the same and receive money therefor either trover or general assumpsit, in the form of an action for money had and received would lie, as the tort action may be waived. Trover and replevin, as well as general assumpsit, are actions available for co-owners of property in severable chattels.

LAW OF

TRADE-MARKS, TRADE-NAMES, AND UNFAIR TRADE

CHAPTER I

TRADE-MARKS

§ 1. History and Origin. Centuries before the art of printing was discovered, long before writing or reading was common among men, in the very dawn of commerce, symbols of ownership or of origin were employed as matter of necessity. It was essential that things should be identified by some mark which caught the eye and which would abide in the memory. And so, in trade, the symbol became associated with the article and became a guaranty to the purchaser of its origin and quality. This protected both the seller in his business and the buyer in his purchase. As a brand upon cattle was a mark of ownership, as the ancient seal to a deed was a badge of authenticity, so the symbol upon goods became a mark of origin and of proprietorship, assuring the purchaser that the property bought was made by the proprietor of the symbol and was of that degree of excellence with which the purchaser had become familiar and of which he had approved. The custom is very ancient, and was applied in every department of commerce. symbol is found upon the great blocks of stone which entered into the construction of the Pyramids of Egypt and of the Temple of Solomon. It was prevalent in India and in China over three thousand years B. C.

Copyright, 1912, by American School of Correspondence.

The

1

§ 2. Law Based on Custom. The law of the subject has grown out of the custom which has survived the original necessity of its being. Since the invention of type and printing and since reading and writing have become general, the custom remains because of its usefulness. It avoids the need of careful scrutiny of printed matter, and the striking symbol catches the eye and abides in the recollection. The custom has become crystallized into law for the protection of both seller and buyer. But this law—as may be observed with reference to all law, to all things, to all institutions has been of slow growth. It had its infancy, it now has its maturity. This law is the outcome of the necessity of honest dealing in commercial matters. It arose from the need of the protection of man from the fraud of his fellowman. It has received a wonderful impetus within the last fifty years, owing to the swelling importance and demands of commerce, and is of special interest at this day by reason of the enormous trade-international and domestic-carried on in articles on which trade-marks are a prominent feature.

The date of the origin of this law in the common law of England is obscure. It is claimed by some to date as far back as the Year Books in the fourteenth century; but the earliest recorded case dates no further back than the time of Elizabeth. This case is referred to in Southern v. How,1 where doubt is expressed whether the suit for deceit was brought by the defrauded purchaser or by the proprietor of the trade-mark. It was probably by the former. And so, by slow degrees, the law has grown until now it has become of general application.

§3. Ancient Remedy. In the early history of the law, the remedy for the sale of goods under a counterfeited trade-mark was exclusively by action at law. As late as 1742, Lord Hardwicke, in Blanchard v. Hill, declined to interpose the writ of injunction to restrain the illegal use of a trade-mark, and observed that he did not know of an instance of granting an injunction to restrain one trader

from using the same mark with another, and he thought it would be of mischievous consequence to do it. It was not until 1803, in Hogg v. Kirby, that a court of equity assumed jurisdiction and allowed an injunction in case of fraudulent trading. Since then the resort to courts of equity by injunction to restrain the threatened wrong has become universal.

No action at law for deceit is now brought by the defrauded purchaser, for manifest reasons. The damages would be too inconsiderable to warrant the cost and trouble of the action. Nor would such a suit avail to stay the invasion of the right. Nor would the action at law be adequate to give a remedy to the manufacturer, or to the owner of the trade-mark, since he could recover only his lost profit if the genuine instead of the spurious article had been sold; and so slight would be his injury in the case of the sale of a single or a few articles, that the recovery would not deter the counterfeiter of the trade-mark from pursuing his illegal trade.

§ 4. Modern Remedy. Equity alone can give full and adequate remedy; awarding damages for the wrong inflicted, and by its restraining power preventing future invasion of one's protected right.

§ 5. Statutory Remedy. This right to a trade-mark is not only protected at common law, but it has also been guarded by statute. On July 8, 1870, and August 14, 1876,5 the Congress of the United States, by an act entitled "An Act to Revise, Consolidate and Amend the Statutes Relating to Patents and Copyrights", provided for the registration of trade-marks and punishment for the piracy of any registered trade-mark. This act was passed manifestly under the belief that trade-marks came within the domain of patents and copyrights. The Supreme Court of the United States, however, in 1879, held that "the ordinary trademark has no necessary relation to invention or discovery." § 6. Right of Monopoly. The trade-mark is in a sense

38 Ves. 215.

4 16 Stat. 198, R. S. 4937-4947

5 19 Stat. 141.

6 Trade-Mark Cases, 100 U. S. 82.