declined to protect the manufacturer in imposing upon the public. 15

One, Golsh, made and sold friction matches which in an early day were well-known and approved by the public. The complainant acquired by purchase knowledge of the recipe by which those matches were made, but no exclusive right thereto, and then made and sold them as "Golsh's Friction Matches.' Years afterward, when the original Golsh had died, this manufacturer sought to enjoin another who was selling the Golsh Friction matches, but the court refused the injunction because he himself was deceiving the public by leading them to believe that these matches were made by Golsh; and though made from a recipe which Golsh himself had given, it was still an imposition upon the public which a court of equity would not sanction.16 This case is strong to show that courts of equity are careful to see that in no way is protection afforded to him who undertakes to deceive the public, even for its own good.

So also a firm in New York manufactured and introduced to the public a cosmetic called the "Balm of a Thousand Flowers" which it was said was largely used by ladies for the benefit of their complexions. The plaintiff sought to enjoin one who had placed upon the market an article called the "Balm of Ten Thousand Flowers." It appeared in evidence in that case that the "Balm of a Thousand Flowers" was nothing but a liquid soap, and thereupon the court washed its hands of the plaintiff by refusing to assist him. in defrauding the public.17

One who seeks the protection of a court of equity for his trade-mark must be dealing honestly with the public, and the court will not protect one who seeks to defraud, deceive, or impose upon the people.

Another illustration may be given which perhaps is more practical. A court of equity will not protect one who is deceiving the public by fraudulent representations of quan

15 Perry v. Truefitt, 6 Beav. 66.

16 Partridge v. Menck, 2 Sandf. Ch. R. 622.

17 Fetridge v. Wells, 13 How. Pr. R. 385.

tity. It would be desirable that this principle of law were better known and better enforced. In the intense struggle and rivalry between merchants to make profits, short measurements and short weights are often given. Pieces of cotton bearing a particular trade-mark and certified to contain twenty-eight yards, contain frequently but twenty-four yards. A spool of cotton, represented to be three hundred yards, often, in fact, contains but two hundred and fifty yards. In such cases where the manufacturer seeks to prevent a man from infringing his trade-mark and it is proven that he is defrauding and deceiving the public by representing a greater quantity than actually exists, he cannot obtain relief. A court of equity says to him: "We will not help you to defraud the public in any particular. This is no place for the pretender or the deceiver." And so, although the defendant may be infringing the trade-mark, may be pirating that to which he has no title and no right, still the court will say to the complainant: "You must come here with clean hands, we will not assist you in any attempt to defraud."

§ 18. Infringements. In respect to what will constitute an infringement of a trade-mark, the principle seems to be this: There must be such similarity as will induce the public to believe that the goods offered are those of the manufacturer or trader whose trade-mark is infringed. It must amount to a false representation. If it be such a resemblance as is designed and apt to mislead, or which actually has misled the public or is likely to do so, then there is infringement. The name need not be counterfeited. The symbol may be counterfeited and the name not. The public are more likely, after the goods have become known, to be deceived by the simulated symbol than by the name. The public is indifferent as to the manufacturer. The object is to get the particular thing known, as in the case of flour by the symbol of an eagle.

Counterfeits. Then again, the misleading need only be such as will impose upon unwary buyers. The question, however, is one of resemblances, not of differences. A test

which applies only after the deviations have been pointed out, favors the counterfeit. It must be borne in mind that the purchaser of goods with respect to brands by which the goods are designated, is not bound to exercise a high degree of care. A specific article of approved excellence comes to be known by certain catch words easily retained in memory, or by a certain picture or form which the eye readily recognizes. The purchaser is required only to use that care which persons ordinarily exercise under like circumstances. He is not bound to study or reflect, but may act upon the moment. He is without the opportunity of comparison. It is only when the difference is so gross that no sensible man, acting on the instant, would be deceived, that it can be said that the purchaser ought not to be protected from imposition. Indeed, some cases have gone to the length of declaring that the purchaser has a right to be careless, and that his want of caution in inspecting brands of goods with which he supposes himself to be familiar, ought not to be allowed to uphold a simulation of a brand that is designed to work a fraud upon the public. That may possibly be carrying the doctrine to the extreme; but however that may be, the imitation need be only slight if it attaches to what is most salient, for the usual inattention of a purchaser renders a good will precarious if exposed to imposition.

The proper test of infringement would seem to be whether the alleged infringing article is so dressed that it is likely to deceive persons of ordinary intelligence in the exercise of the slight care ordinarily bestowed in purchasing an article, to mistake one man's goods for the goods of another.

The text-books and reports abound with examples of imitation which it would be profitless here to enumerate. The student will find a table of such cases assembled in the Calisaya case,18 Dunbar v. Glenn, 19 and in the various text-books.

The counterfeit may be such as to deceive the eye or the ear. Thus the word "Cocaine" was held infringed by a

18 58 N. Y. 222.

19 42 Wis. 118.

simulated trade-mark "Cocoine." In that case both the letters and the sound were apt to mislead. So also true representations in aid of false ones but aggravate the fraud. This is well illustrated by a French case.20 A certain paper had for a trade-mark the word "JOB." Another manufacturer put on the market a paper enclosed in wrappers of the same color but differing in ornamentation. This he thus described:

"GUERRE A JOB PAPIER TRES SUPERIEUR, Paris 80 Rue de Rivoli 80. TAKE NOTICE AND LET NO PERSON BE SURPRISED. I AM NOT THE SAME MARK of the cover which bears the title JOB. But I guaranty that I enclose a paper superior to JOB by the addition of Hygienic substances.

He further issued an advertisement in which he recognized the distinction between his paper and that of the proprietors of the Job paper, challenging them to deny the superiority of his. An injunction was granted against the use of the word "Job" because, as printed in capitals it caught the eye and tended to deceive the purchaser into supposing he was buying the paper of the manufacturer that was legally entitled to the use of the word "Job."

§ 19. Infringement a Question of Fact. Whether a particular mark has been infringed is a question of fact, and in case of doubt courts will not ordinarily determine as a matter of law that a particular simulated trade-mark will or will not deceive the public. In Liedersdorf v. Flint,21 it was held that the court would not determine upon demurrer that the alleged infringing device could not deceive, but that as the bill charged deception in fact, it must be determined upon evidence to be taken; but the Federal Courts in the absence of evidence of actual misleading, will determine the question upon the face of the genuine and infringing devices.22

20 Bardou v. Savatou, 14 Annales 140.

21 50 Wis. 401.

22 G. W. Cole Co. v. American Cement & Oil Co., 130 Fed. 703.

§ 20. Abandonment of Right. The right of one to the exclusive right to a trade-mark or trade-name may be lost by abandonment, and another may then legally adopt it for the same kind of goods or the like business. Abandonment, of course, rests in intention, and circumstances determine the fact. Non-user for a long term of years would doubtless be held to warrant a finding that the owner had abandoned his right; but no fixed period can be safely stated, as each case must be resolved in the light of its own circumstances. If the abandonment be intentional, the surrender is complete upon the instant. If, however, the intent is to be inferred from circumstances, no inflexible rule as to time can be stated. Thus, it has been held that one who, after using a particular trade-mark for a short time, ceases to use it for nearly a quarter of a century, has no right to resume its use after it has been long employed by another who has built up under it a large and successful business.23 And under special circumstances abandonment will be presumed from a non-user for nine years.24

§ 21. Laches. In like manner laches may debar the owner of a trade-mark or trade-name from relief in a court of equity. A long continued acquiescence in the use of a trade-mark by another, an unreasonable delay in applying for relief, may deprive the owner of the trade-mark of the right to a decree for gains and profits, although he might be entitled to an injunction to prevent further infringement.25 Equity favors the vigilant, not the slothful.

23 Raymond v. Royal Baking Powder Co., 85 Fed. 231.

24 Lazenby v. White, 41 L. J. (N. S.) 354.

25 McLean v. Fleming, 96 U. S. 245.