The foregoing extract very fully expresses the character of supervision over fairness in trade exercised by our courts of equity. When an article has become known by a catchword, catch-phrase or a peculiar package, any one seeking to use that form of package, or a mark or name that suggests the catch-word, must take care to keep within the bounds of fairness in trade in so doing.24

Mere colorable distinctions, so arranged as to escape notice, 25 the use of labels which may be removed by retail dealers, leaving the imitated marks free to effect deception,26 and all the other devices and schemes of fraudulent competition disclosed by the reports, are taken into consideration in determining the right to equitable relief. One of the most important tests is the existence of similarities of detail, whether of design, form, size, color or material. Relief will always be granted when "it is manifest from a comparison (of the two articles in controversy) that one was copied from the other." 27 The court does not search for dissimilarities, but for points of resemblance.28

24-Stuart v. F. G. Stewart Co., 91 Fed. Rep. 243; 33 C. C. A. 480. So the use of the word "Iwanta" has been enjoined as being a fraud upon the owner of the trademark "Uneeda," both words being applied to biscuit. National Biscuit Co. v. Baker, 95 Fed. Rep. 135. And so of the phrase "Candy Cathartic" used by the plaintiff with the word "Cascarets" and by the defendant with the word "Cascara." Sterling Remedy Co. v. Gorey, 110 Fed. Rep. 372-373; Kimball v. Hall, 87 Conn. 563, 89 Atl. Rep. 166, L. R. A. 1916E, 632.

25-Taylor v. Taylor, L. R. 2 Eq. 290; 23 L. J. Ch. 255.

26-Barlow v. Johnson, 7 R. P. C. 395.

27-Shipman, J., in Dixon Crucible Co. v. Benham, 4 Fed. Rep. 527-530.

28-Hostetter v. Adams, 10 Fed. Rep. 838-842. Thus Judge Lacombe, in considering conflicting

liquor labels, said: "Inspection of the labels must carry conviction to any unbiased and unprejudiced mind that the later label was prepared by some one who had seen the earlier one, and that it was designed, not to differentiate the goods to which it was affixed, but to simulate a resemblance to complainant's goods sufficiently strong to mislead the consumer, although containing variations sufficient to argue about should the designer be brought into court. This is the usual artifice of the unfair trader." Collinsplatt v. Finlayson, 88 Fed. Rep. 693. In another recent case the same court says: "There are as usual a number of minor differences between the form and the dress of the two packages, which are expatiated upon in the affidavits and the brief; but no one can look at both packages,

"Where there are found strong resemblances, the natural inquiry for the court is, why do they exist? If no sufficient answer appears, the inference is that they exist for the purpose of misleading." 29

No matter what minor differences may exist in the tests of infringement applied by various courts, it has been uniformly noted that the fact that purchasers have no opportunity of comparison must be considered, and the genuine and alleged infringing marks must be judged by the court, therefore, in the light of that fact.30

Where the resemblance resides in the form, color, etc., of the defendant's container, the usual defense is that the container is common to the trade. That defense is not favored when the differences present "do not destroy the general similarity of appearance to the ordinary purchaser," 31 and the fact that the containers were specially manufactured for the defendant is of weight.32

"The test of infringement

is the same as is

applied in design patents; that is, whether ordinary purchasers would be mislead by the similarity between the designs in controversy." 33

without perceiving that there are strong resemblances, which could easily have been avoided had there been an honest effort to give defendant's goods a distinctive dress." National Biscuit Co. V. Baker, 95 Fed. Rep. 135.

In referring to conflicting lables, Judge Gilbert, in a recent decision, says "these differences are such as are usually introduced where the intention is to make an unfair use of an established trademark, and at the same time so far depart therefrom as to avoid the charge of infringement." Kostering v. Seattle Brewing & Malting Co., 54 C. C. A. 76; 116 Fed. Rep. 620.

29-Lurton, J., in Paris Medicine Co. v. W. H. Hill Co., 102 Fed. Rep. 148-151; 42 C. C. A. 227.

30-Pillsbury V. PillsburyWashburn Flour Mills Co., 64 Fed. Rep. 841-847; 12 C. C. A. 432; Manhattan Med. Co. v. Wood, Fed. Case No. 9026; 4 Cliff, 461; 108 U. S. 218; 27 L. Ed. 706; Allegheny Fertilizer Co. v. Woodside, Fed. Case No. 206; 1 Hughes, 115; Sawyer v. Kellogg, 7 Fed. Rep. 721; Sawyer v. Kellogg, 9 Fed. Rep. 601; Liggett & Myers Tob. Co. v. Hynes, 20 Fed. Rep. 883; Hostetter Adams, 10 Fed. Rep. 838-842.

V.

31-Brown, J., in Moxie Co. v. Daoust, 124 C. C. A. 434; 206 Fed. Rep. 434, 436; reversing 197 Fed. Rep. 678.

32-Ibid.

33-Thomas, J., in Howard Dustless Duster Co. v. Carleton, 219 Fed. Rep. 913, 916.

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The doctrine of general effect.-In an Australian case we find one of the best and clearest of the early statements of the rule, that "We are to consider whether the infringement of the plaintiff's rights has been proved, not by taking particular isolated points, but by looking at the general resemblance of the packages." 34 The rule has been recognized universally, the United States Supreme Court disposing of one case by saying "it is manifest that the general appearance of the package is well calculated to mislead and deceive the unwary and all others." 35 The reason for the rule has possibly nowhere been better stated than by the late Mr. Justice Brewer, who said "elaborate descriptions of the points of resemblance or those of difference are, taken by themselves alone, always unsatisfactory. The eye, at a glance, takes in the whole of one exhibit and the whole of another; and the comparison thus made of the two is the surest, and the only satisfactory way of satisfying the judgment as to the existence of the alleged deceptive imitation." 36 Of course evidence of instances of actual deception is always admissible.37

In conclusion it is important to bear in mind that courts of equity have always avoided laying down any hard and fast rules by which to determine what constitutes fraud. The reason for this absence of set rules has been well stated as follows: "Were courts of equity to once declare rules prescribing the limitations of their power in dealing with it, the jurisdiction would be perpetually cramped and eluded by new schemes which the fertility of man's invention would contrive." 38

When one who has been lawfully advertising himself as agent for a particular article has his agency revoked, he may be enjoined from the use of the word "agency" even

34-Stawell, C. J., in Wolfe v. Hart, 4 Vict. L. R. Eq. 134 (1878). 35—McLean v. Fleming, 96 U. S. 245; 24 L. Ed. 828.

36-P. Lorillard Co. v. Peper, 86 Fed. Rep. 956, 958; 30 C. C. A.

37-Liggett & Myers Tob. Co. v. Finzer, 128 U. S. 182; 32 L. Ed. 395.

38-Weinstock, Lubin & Co. v. Marks, 109 Cal. 529-539.

though he continues to deal in the same articles as before; 39 and the agent may enjoin the use of a label naming him as the agent for the product. 1o

§ 143. Restraint of use of misleading advertisements and the like. The requirement of fairness in trade has led to the injunction of the use of circulars containing garbled extracts from a letter, published for the purpose of diminishing plaintiff's sales, the part of the letter published having a meaning contrary to that of the letter as a whole.41 The use of the autographic signature of the defendant's former distiller has been enjoined, when the distiller had withdrawn from defendant's employment and established a competing distillery.42 In testing the misleading character of the advertisement complained of, it will be considered as an entirety, rather than analyzed as to its parts. "The question whether any particular statement was true or otherwise is not a pertinent question; the really pertinent question is whether the advertisements as a whole were calculated to deceive." 43

In a notable English case, the form of injunction granted against misleading advertisements was: "To restrain the defendant, his agents, servants, and work people, from further advertising, or issuing to the public, the posters, the cards, the catalogue, the advertisements, and the green card, and then generally from using the name 'Singer' in connection with sewing machines not of the plaintiff's manufacture, in any way calculated to induce the belief that such machines are the manufacture of the plaintiffs." 44

In a case often referred to, the publishers of the "Times" were granted an injunction to restrain a dealer from advertising bicycles for sale in such a way as to induce the public to suppose that the proprietors of the "Times" were connected

39-Edison V. Hawthorne, 106 Fed. Rep. 172-174; affirmed under same title, 48 C. C. A. 67; 108 Fed. Rep. 839.

40-Coleman v. Flavel, 40 Fed. Rep. 854.

41-Halstead V. Houston, 111 Fed. Rep. 376.

42-George T. Stagg Co. v. Taylor, 95 Ky. 651; 27 S. W. Rep. 247.

43-Lord Parker, in A. G. Spalding Bros. v. A. W. Gamage, Ltd., 32 R. P. C. 273, 286.

44-Romer, J., in Singer Mfg. Co. v. James Spence & Co., 10 R. P. C. 297, 309.

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with the sale. 45 This decision, as was said by Mr. Justice Romer, in a later case, was based on the fact that the plaintiffs "did not wish to be treated as vendors of cycles it was an injury to them to be so treated, and on that ground the learned judge thought that the defendant ought to be restrained from doing what he did."`46

It has been held that the use of the plaintiff's trademark in advertising matter, although not applied to his merchandise. by the defendant, constitutes infringement of the trademark.+7

In determining whether the advertisement is misleading in character, the rule adopted by Mr. Justice Kekewich seems eminently proper. The court should not hear opinion evidence as to whether the advertisement "is likely to deceive or not," but on that issue is to apply his own eye and his own intelligence, and try to put himself "into the position of a person of average intelligence wishing to buy" the advertised article. But fact witnesses who have seen the advertisement and gone to the advertiser in the false belief that he had the plaintiff's goods for sale are material witnesses and their testimony may be conclusive "that not only can persons be deceived, but that persons have been deceived." 48

Of course there is "no property in the advertisement,' and a defendant who copies plaintiff's advertising matter (specifically, the phrases "Why pay cash for seeds? We trust you") is not "in any way tampering with business or property" and will not be enjoined.49

But a false representation such as "Ford auto agency" by one who is not an agent of plaintiff will be enjoined when, under the system of Ford agencies, the practice is unfair and deceptive. 19a

§ 144. Infringement in another jurisdiction.-Where goods bearing an infringing mark are in posession of the defendant, within the jurisdiction, though intended for exportation, the jurisdiction of the court is complete and relief will be granted.50

45-Walter v. Ashton, L. R. (1902) 2 Ch. 282.

46-Wertheimer V. Stewart, Cooper & Co., 23 R. P. C. 481, 483. 47-Addley Bourne v. Swan & Edgar, Ltd., 20 R. P. C. 105, 120. 48-Singer Mfg. Co. v. British Empire Mfg. Co., 20 R. P. C. 313, 318, 319.

49-Wertheimer V. Stewart, Cooper & Co., 23 R. P. C. 481.

49a-Ford Motor Co. v. B. E. Boone, Inc., 244 Fed. Rep. 335, 338, 339, C. C. A. 9.

50-Orr-Ewing v. Johnson, 13 C. D. 434; 7 A. C. 219.