doing this no real deceit was practiced upon the public, because the purchaser obtained the same goods which he would have purchased if the name of the jobber had not been upon them.'' 56 In one case it was argued by the defendants that when the plaintiffs furnished their "Excelsior" stoves to the trade and marked the dealers' names upon the stoves, they thereby permitted the dealer to hold himself out to the public as the manufacturer of the stoves. This was not a successful defense, but the court stood upon the fact that there was "nothing in connection with the names of these dealers to indicate that they are the manufacturers, and there is no evidence that any one ever supposed they were the manufacturers." 57

Advertisements published in the United States by a corporation having the exclusive sale of certain Hungarian mineral waters, to the effect that the name under which the waters were sold had become a general name for all similar waters, and that the corporation would thenceforth distinguish the particular water sold by it by a special trademark, were held not to evidence an abandonment of the original mark which was binding on the owner of the wells; Mr. Justice Brown announcing the following rule: "To establish the defense of abandonment it is necessary to show not only acts indicating a practical abandonment, but an actual intent to abandon. Acts which unexplained would be sufficient to establish an abandonment may be answered by showing that there never was an intention to give up and relinquish the right claimed.'' 58

56-Pike Mfg. Co. v. Cleveland Stone Co., 35 Fed. Rep. 896-898. "One does not lose the goodwill of his trade in an article of his manufacture by placing upon it the names of his customers who are engaged in selling it, nor by the fact that the consumers know only the name and excellence of the article, and neither know nor care who makes it," Sanborn, J., in Shaver v. Heller & Merz Co., 108 Fed. Rep. 821-824; 48 C. C. A. 48; affirming Heller & Merz Co. v. Shaver, 102 Fed. Rep. 882. To the same effect, City Brewery Co.

v. Powell, L. R. (1897), App. Cas. 710, 716; Lichtenstein V. Goldsmith, 37 Fed. Rep. 359.

57-Sheppard v. Stuart, 13 Phila. 117; Price & Steuart, 193.

58-Saxlehner v. Eisner & Mendelson Co., 179 U. S. 19-31; 45 L. Ed. 60; citing Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 186; 41 L. Ed. 118, 125; 16 Sup. Ct. Rep. 1002; Moore v. Stevenson, 27 Conn. 14; Livermore v. White, 74 Me. 452; 43 Am. Rep. 600; Judson v. Malloy, 40 Cal. 299; Hickman v. Link, 116 Mo. 123; 22 S. W. Rep. 472.

In the same case, the discontinuance of two suits for infringement, brought by the selling corporation, after preliminary injunctions had been obtained, are held by the supreme court not to be binding upon the complainant in the absence of proof that the discontinuance was made with the complainant's knowledge and acquiescence.59

The English Rule. That mere cessation of use does not establish abandonment of the trademark has been thus stated, "to constitute abandonment an intention to abandon must be shown. Mere non-user of a trademark can no more be said to constitute abandonment than the mere non-user of a right to foul a stream belonging to a mill as an easement can be said to constitute an abandonment of the easement."60

There may be a constructive abandonment of specific features of a trademark, arising from a failure to enumerate such features in securing registration. If the registration shows a claim to a trademark "more limited in its description than the owner's common-law rights would otherwise be, the owner is bound by such limitation as showing what he really claimed." Thus, in an application for registration of a trademark, the failure to claim the letter "s" as a part or feature thereof was held to be an abandonment of that feature of the mark.62

A person who acquires a patent covering a manufactured article known by a trademark, may, during the life of the patent, enjoin an infringer even though he has ceased manufacturing the patented article.63

A trademark, once abandoned, may be adopted by another.64

Beeshore, 8 C. C. A. 215; 59 Fed.
Rep. 572; Richter v. Reynolds, 8
C. C. A. 220; 59 Fed. Rep. 577.

62-Pittsburgh Crushed Steel Co. v. Diamond Steel Co., 85 Fed. Rep. 637.

63-Janney v. Pan-Coast Ventilator Mfg. Co., 128 Fed. Rep. 121.

64-Deitsch v. Geo. G. Gibson Co., 155 Fed. Rep. 383; W. A. Gaines & Co. v. Kahn, 155 Fed. Rep. 639, 645; Cohen v. Nagle, 190 Mass. 4; 76 N. E. Rep. 276; Daniel v. Whitehouse, 15 R. P. C. 134.

CHAPTER VI.

GOODWILL.

§ 94. Defined.-Goodwill, because of the various forms in which it exists, is difficult of definition. It may be personal, in which event it is the result of the labor and efforts of the person to whom it belongs and survives a change of locality. It may be local, in which event the personal efforts of those who have created or assisted in creating it have so identified it with the location that it adheres thereto and does not attach to a business subsequently established elsewhere by the same persons. Or, in the case of local goodwill, the goodwill may have largely had its origin in the natural advantages of the locality before any personal exertions have been expended upon it; as, for example, a location upon a water front peculiarly accessible and desirable as a location for the erection of a grain elevator, ship yard, pier or warehouse, where there exists a natural advantage of site before human enterprise erects the elevator or other structure. The goodwill which then arises consists of three things, the natural advantages of the site, the erection of a suitable building or structure with its proper mechanical equipment, and, finally, the good reputation that results from skillful, enterprising, and honest management of the business. The definitions of goodwill, therefore, must be read in the light of these distinctions.

"Goodwill is a modern but important growth of the law, not mentioned by some of the early writers, but given great prominence at the present time." Mr. Justice Story has defined goodwill as "the advantage or benefit which is acquired by an establishment beyond the mere value of the capital, stock, funds, or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account

1-Vann, J., in People v. Roberts, 159 N. Y. 70-80; 53 N. E. Rep. 685; 45 L. R. A. 126.

of its local position or common celebrity, or reputation for skill or affluence, or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices." 2

It would be very difficult, if indeed possible, to frame a more accurate and comprehensive definition of local goodwill. This one, as given, has been expressly and in haec verba adopted by the Supreme Court of the United States, Mr. Chief Justice Fuller prefacing his use of it by saying "there is difficulty in deciding accurately what is included under the term." 3

Judge Aldrich has recently said of the above definition of goodwill "that it is based upon the fundamental idea of constant or habitual customers, thus meaning that the goodwill must be something of substance, and something which in point

2-Story on Partnership, $99. 3-Metropolitan Bank V. St. Louis Dispatch Co., 149 U. S. 436446; 37 L. Ed. 799. "It is the probability that the business will continue in the future as in the past, adding to the profits of the concern and contributing to the means of meeting its engagements as they come in." Sanderson, J., in Bell v. Ellis, 33 Cal. 620-625.

"Goodwill was defined by Lord Eldon in Cruttwell v. Lye, 17 Ves. 335-346, to be 'nothing more than the probability that the old customers will resort to the old place'; but Vice-Chancellor Wood, in Churton v. Douglas, Johnson, 174-188, says it would be taking too narrow a view of what is there laid down by Lord Eldon to confine it to that, but that it must mean every positive advantage that has been acquired by the old firm in the progress of its business, whether connected with the premises in which the business was previously carried on, or with the name of the late firm or with any other matter carrying with it the benefit of the business." Mr. Chief Justice Fuller in Menendez v. Holt, 128 U. S. 514-522; 32 L. Ed. 526.

"The goodwill of an established business, which is a common sub

ject of contract, is nothing but the chance of being able to keep the business which has been established." Wallace, J., in Barber v. Connecticut Mutual Life Ins. Co., 15 Fed. Rep. 312, 313.

"It is property of a very peculiar and exceptional character. It is intangible property which, in the nature of things, can have no existence apart from a business of some sort that has been established and carried on at a particular place." Thayer, J., in Metropolitan Bank v. St. Louis Dispatch Co., 36 Fed. Rep. 722-724.

"The goodwill of a business comprises those advantages which may inure to the purchaser from holding himself out to the public as succeeding to an enterprise which has been identified in the past with the name and repute of his predecessor." Wallace, J., in Knoedler v. Boussod, 47 Fed. Rep. 465, 466. This definition was ap proved on appeal. Knoedler Glaenzer, 55 Fed. Rep. 895-899.

V.

"Goodwill has been defined as 'all that good disposition which customers entertain toward the house or business identified by the particular name or firm, and which may induce them to continue giving their custom to it.'

of time has had a substantial existence in the markets. It can not be possible that equitable remedy was intended or should be