panies to the retail trade throughout the city of St. Louis. The decree in the lower court was for the plaintiff. The St. Louis Court of Appeals, in reversing the decree and directing the injunction for the plaintiff, said: "The correct decision of the case at bar depends upon the finding of two propositions: was the imitation of the plaintiff's signs by defendant merely the result of an accident; or was it the result of a preconceived design to mislead the public into the belief that the plaintiff's beer was being sold at the defendant's place of business? Was the imitation of the sign close enough to bring about such a deception?" 71 The more usual cases are those of signs bearing similar tradenames exhibited on competing stores in the same vicinity, in which the sign of the later comer is enjoined if calculated to mislead the public into the false belief that they are patronizing the older establishment.72 Circulars. The usual remedy by injunction against unfair competition will be granted where a competitor issues circulars calculated to deceive customers into the false belief that the goods of the parties are identical.73 The relief has been granted where the defendant's circulars were sent to the plaintiff's customers and recited that defendant had theretofore distributed the goods, and that the defendant's manufacturing was done in part at the plaintiff's street address.74 Similarly, the use of display signs calculated to deceive the public into patronizing one competitor in the belief that they are patronizing the other, will be enjoined,75 as will the publication of circulars calculated to induce the false belief that a book published by complainant was fraudulent, or that plaintiff had gone out of business.76a 71-American Brewing Co. v. St. Louis Brewing Co., 47 Mo. App. 14, 20. 72-Miskell v. Prokop, 58 Nebr. 628; 79 N. W. Rep. 552; Nolan Bros. Shoe Co. v. Nolan, 131 Calif. 271; 63 Pac. Rep. 480; Richard v. Caton College Co. (Minn.), 92 N. W. Rep. 958. 73-Brown v. Braunstein, 83 N. Y. Supp. 1096; Van Stan's Stratena Co. v. Van Stan, 209 Pa. 564; 58 Atl. Rep. 1064. For a form of injunction 76 in such a case see Bunker v. Kenna, Price & Stewart 883. 74-American Novelty & Mfg. Co. V. Manufacturing Electrical Novelty Co., 73 N. Y. Supp. 755. 75-Cady v. Schultz, 19 R. I. 193; 32 Atl. Rep. 915; Duke v. Cleaver, 19 Tex. Civ. App. 218; 46 S. W. Rep. 1128. 76-Halstead V. Houston, 111 Fed. Rep. 376. 76a-Marshall Ventilated Mattress Co. v. D'Arcy Spring Co., 280 Fed. Rep. 945, 949, C. C. A. 6. Relief by preliminary injunction has been denied where defendant resold machines of plaintiff's manufacture, advertising them as "cheap" machines." Dress of store front.-The well-known distinctive dress of the shop fronts of the United Cigar Stores has been protected against simulation calculated to deceive the public into patronizing the defendant's store in the belief they were patronizing the United stores.77a 77b Infringement of copyrighted advertising matter.-Catalogue cuts may be sufficiently artistic to be the subject of a valid. copyright. Obviously copyright protection for such catalogue material is a desirable aid in protecting the catalogue against unfair competition. Of course the copyright does not prevent another from making his own pictures of the same material.77 § 138. Infringement by a non-identical word or mark.The general rule is that there may be infringement even in the absence of exact similarity between the marks.78 In 1866 Lord Cranworth said in a leading case: "If the goods of a manufacturer have, from the mark or device he has used, become known in the market by a particular name, I think that the adoption by a rival trader of any mark which will cause his goods to bear the same name in the market may be as much a violation of the rights of that rival as the actual copy of his device." 79 a case where the plaintiff sold 77-Oliver Typewriter Typewriter Co., v. American Writing Mach. Co., 156 Fed. Rep. 177. 77a-United Cigar Stores Co. v. United Confectioners, 92 N. J. Eq. 449, 112 Atl. Rep. 226, 17 A. L. R. 779. See 111 Atl. Rep. 603; 113 Atl. Rep. 77b-Campbell v. Wireback, 269 Fed. Rep. 372, 17 A. L. R. 743. 77c-Bleistein v. Donaldson Litho. Co., 188 U. S. 239, 47 L. Ed. 460. 78-Liggett & Myer Tobacco Co. v. Hynes, 20 Fed. Rep. 883. "What degree of resemblance is necessary is, from the nature of things, a matter incapable of definition priori. All that courts of justice a This dictum was elicited in wines in casks stamped with can do is to say that no trader can adopt a trademark so resembling that of a rival as that ordinary purchasers, purchasing with ordinary caution, are likely to be misled." Lord Cranworth in Seixo v. Provezende, L. R. 1 Ch. D. 192. 79-Seixo v. Provezende, supra; 12 Jur. N. S. 215; 14 L. T. N. S. 314; 14 W. R. 357; Seb. 256. The doctrine of the leading case applies to all cases where the goods of a particular dealer or manufacturer have become known by a name derived from his trademark. Anglo-Swiss Condensed Milk Co. v. Metcalf, L. R. 31 Ch. D. 454; 55 L. J. Ch. 463; 34 W. R. the device of a crown and an eagle, and the initials "B. S." on the head of the cask, and a crown, the word "Seixo" and a date at the bung hole, from which the wine had acquired the name "Crown Seixo;" while the defendants sold wine in casks stamped on the head and at the bung hole with the device of a crown, the initials "C. B.," the words "Seixo de Cima," and figures "1861." The defendants were enjoined notwithstanding the fact that the marks were not similar. Nicknames. "The unnecessary adoption of a part of a plaintiff's trademark-a part so substantial as to have become a tradename or nickname for the goods-is generally regarded as an infringement. The use by a defendant of a trademark identical with the name which has been derived from a plaintiff's trademark proper, and has become sufficiently descriptive of plaintiff's goods, is the adoption of a mark which will cause its goods to bear the same name in the market. Neither subtractions from nor additions to a trademark proper will avoid infringement, when such imitation as is likely to lead to confusion still remain despite the changes. 17 79a A nickname (such as "Burg" for "Burgmeister" beer) used by customers in calling for a manufacturer's goods, is not registrable as a trademark for those goods; not being applied to the goods, and the adoption being that of the customers.79b But this same conduct of the customers has led to the formulation of the following rule. "The actual physical resemblance of the two marks is not the sole question for the court; for if the plaintiff's goods have, from his trademark, become known in the market by a particular name, the adoption by the defendant of a mark or name which will cause his goods to bear the same name in the market is as much a violation of the plaintiff's rights as an actual copy of his mark." 79c 345; 3 R. P. C. 28; Cartmell, 48; In re Speer's Trademark. 4 R. P. C. 521, 55 L. T. N. S. 880; Cartmell, 317; In re Baschiera's Trademark, 33 S. J. 469; In re La Societe Anonyme des Verreries de l'Estoile, 10 R. P. C. 436; L. R. (1894) 1 Ch. D. 61; 11 R. P. C. 142; Wilkinson v. Griffith, 8 R. P. C. 370; Cartmell, 344; Morgan Envelope Co. v. Walton, 82 Fed. Rep. 469; 81 Off. Gaz. 1615; Johnson & Johnson v. Bauer & Black, 27 C. C. A. 374; & 82 Fed. Rep. 662; Kann v. Diamond 79b-Berghoff Brewing Assn. v. Popel-Giller Co., Inc., 273 Fed. Rep. 328, C. A. D. C. 79c-Brown, J., in Gordon's Dry Gin Co. v. Eddy & Fisher Co., 246 Fed. Rep. 954; following De Voe Snuff Co. v. Wolff, 206 Fed. Rep. 720, 124 C. C. A. 302. Where a commercial article has, fortuitously or otherwise, acquired a nickname by which it is known and called for, that nickname will be protected in equity. Notwithstanding its proper designation, "still if for some reason the general public has given to the product another and different name, by which it alone is known to the trade, the appellant (plaintiff) becomes entitled to protection by injunetion against one who thereafter endeavors through the adoption of such term as the public employs as synonymous for or as a secondary designation of such product." so The thing suggesting the nickname need not be identical with plaintiff's mark. Under this rule, plaintiffs who made a certain beer to which they applied the device of a bull-dog's head were granted an injunction against the use by competing dealers of a label similar in shape to the plaintiff's and bearing a terrier's head. There was no resemblance between the labels beyond the similarity in shape, but the plaintiffs' beer had come to be known as "Dog's Head Beer," and the use of a dog's head upon similar merchandise by the defendants was manifestly for the purpose of passing off their beer as being the plaintiffs'.81 It is self-evident that a trademark may be infringed by a mark entirely different, but suggesting to customers and the public the same word or idea. Thus when an English house had used in India a trademark for yarn which had led the natives to call for it as "Bhe Hathi" (meaning "Two Elephant") yarn, a competing firm was enjoined from exporting yarn to India under a trademark of which the principal feature was the representation of two elephants.82 On the same reasoning the word "Sportsman's" accompanied by a picture of two mounted huntsmen, used as a trademark for cherry brandy, was held to be infringed by the picture of a huntsman standing beside his horse, and the words "Hunts 80-Carland, J., in Denver Chem. Co. v. Lilley, 133 C. C. A. 73; 216 Fed. Rep. 869. 81-Read v. Richardson, 45 L. T. N. S. 54; Cox, Manual, No. 698. 82-Orr-Ewing & Co. v. Johnston & Co., 40 L. T. N. S. 307; Seb. 646. man's Cherry Brandy," where the proof aliunde showed that the plaintiffs' liquor had become known to the public as "The Hunter's Cherry Brandy." 83 Judge Sanborn has well said that "every suit of this character is founded on the fact that the action, or the proposed action, of the defendant has deceived, or is calculated to deceive, ordinary purchasers buying with usual care, so that they have purchased, or will probably purchase, the goods of the defendant under the mistaken belief that they are those of the complainant." 84 So that each case must turn upon the peculiar facts involved. Thus where a plaintiff had for some time manufactured tennis racquets uniformly stamped at a particular place upon the handle with the words "The Demon," and the defendant began to manufacture and sell racquets of a similar design, stamped, in the corresponding place upon the handle, with the word "Demotic," the use of the word "Demotic" was restrained.8 85 So the word "Curative," applied to soap, has been held to infringe the word "Cuticura," similarly applied; 86 and a red Greek cross has been held to be infringed by a maltese cross with a red center, each being used as a mark upon medicinal plasters.87 It is possible for an article of merchandise to become known by a number of names or nicknames, every one of which will be protected against appropriation by a competitor.87a 83-In re Barker's Trademark, 53 L. T. N. S. 23; Cartmell, 72. Similar cases are Barlow v. Johnson, 7 R. P. C. 395; Cartmell, 73; Upper Assam Tea Co. v. Herbert, 7 R. P. C. 183; Cartmell, 333; In re Worthington's Trademark, L. R. 14 Ch. D. 8; 49 L. J. Ch. 646; 42 L. T. N. S. 563; 28 W. R. 747; Cartmell, 351; Jerome v. Johnson, 59 N. Y. Supp. 859. 84-Kahn v. Diamond Steel Co., 89 Fed. Rep. 706. 85-Slazenger v. Feltham, 6 R. P. C. 531; Cartmell, 310. Thus where an anchor had been registered in England as an umbrella trademark, the word "Ancross" for umbrellas was refused registration. In re Thewlis & Blakey's Trademark, 10 R. P. C. 369. 86-Potter Drug & Chemical Corp. v. Miller, 75 Fed. Rep. 656. 87-Johnson & Johnson v. Bauer & Black, 27 C. C. A. 374; 82 Fed. Rep. 662; reversing same case, 79 Fed. Rep. 954. In the opinion Judge Jenkins said: "It sufficiently appeared by the testimony that the goods of the appellant have come to be known, and are offered, ordered and sold, as 'Red Cross Plasters;' and we can not but think that the maltese cross adopted by the appellee, in so far as it contains a red circle, has a tendency to promote confusion, and will interfere with the legitimate trade of the appellant. The red cross speaks to the eye, and the article being known by that designation speaks also to the ear by that name." * * 87a-Orr Ewing & Co. v. Johnston & Co., 40 L. T. N. S. 307; L. R. 13 C D. at p. 446. |