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unreasonable and excessive price for merchandise27 or freight;28 a cut-price book dealer who was unable to buy books because of the agreement of the publishers' association not to sell to price-cutters ;29 one who was unable to buy window glass of the quality and grade necessary to supply his customers, and thereby lost trade and custom;30 a municipal corporation forced to pay an excessive price for iron pipe;31 a corporation not actually engaged in business at the time of defendant's combination, that combination being formed to prevent the plaintiff from re-engaging in business;32 a manufacturer injured by the boycott of a labor organization.33

Defendants who have participated in the wrongful combination will not be heard to complain that others in that combination should be joined as co-defendants.34

Although the jurisdiction of the federal courts is exclusive,35 the sufficiency of the declaration will be tested by the local practice in civil actions.36 It is not sufficient to follow the

27-United States Tobacco Co. v. American Tobacco Co., 163 Fed. Rep. 701.

28-Thomsen V. Union Castle Mail S. S. Co., 166 Fed. Rep. 251. 29-Mines v. Scribner, 147 Fed. Rep. 927.

30-Wheeler-Stenzel Co. v. National Window Glass Assn., 152 Fed. Rep. 864; 81 C. C. A. 658; 10 L. R. A. (N.S.) 972.

31-Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390; 51 L. Ed. 241.

32-Pennsylvania Sugar Ref. Co. v. American Sugar Ref. Co., 166 Fed. Rep. 254.

33-Loewe v. Lawlor, 208 U. S. 274; 52 L. Ed. 488. Congress was fairly prompt in attempting to relieve labor unions from any liability of this kind in the future. The Clayton Act provides:-"§ 6. That the labor of a human being is not a commodity or article of commerce.

Nothing contained in the anti-trust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal conbinations or conspiracies in restraint of trade, under the anti-trust laws."

34-Atlanta V. Chattanooga Foundry & Pipeworks, 127 Fed. Rep. 23; 61 C. C. A. 387; 64 L. R. A. 721.

35-Loewe v. Lawlor, 130 Fed. Rep. 633.

36-Monarch Tobacco Co. V. American Tobacco Co., 165 Fed. Rep. 774.

words of the statute; the declaration should state the substantial facts constituting the alleged combination or contract,37 and the acts done which resulted in damages to the plaintiff's business or property.38 Where both an unlawful contract and an unlawful combination or conspiracy are relied on, they should be pleaded in separate counts."

The Clayton Act (of October 15, 1914, 38 Stat. L. 730) has a similar provision:

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"§ 4. That any person who shall be injured in his business or property by reason of anything forbidden in the anti-trust laws may sue therefor in any District Court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover three-fold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."

159a. What is competitive business?-In determining whether unfair competition exists, it is necessary to determine whether the parties are competitors in business. In considering the defense that the parties were not engaged in competition in business, where the plaintiff was a miller and flour dealer and the defendant a baker, Judge Anderson disposed of the defense accurately and tersely as follows: "But both are seeking to enlarge their markets by attracting the ultimate consumer of wheat, mainly eaters of bread. Both seek to direct the favor of the bread-purchasing public toward whole wheat bread, as more wholesome and nutritious, and to accustom the bread buyers to call for such bread as made of Old Grist Mill flour. The fact that the defendant buys flour and manufactures it into bread, which is in large part distributed to the consumers through grocery stores, while the plaintiff is both manufacturer of and dealer in flour, which it sells chiefly to the bakers, does not prevent the essential relation between the two concerns from being competitive." 40

37-Gilley v. United Shoe Mach. Co., 152 Fed. Rep. 726.

38--Rice v. Standard Oil Co., 134 Fed. Rep. 464.

39-Rice v. Standard Oil Co., 134 Fed. Rep. 464.

40-Potter-Wrightington, Inc. v. Ward Baking Co., 288 Fed. Rep.

597, 601. Citing Willys-Overland Co. v. Akron Overland Tire Co., 268 Fed. Rep. 151; Aunt Jemima Mills Co. v. Regney & Co., 247 Fed. Rep. 407, 159 C. C. A. 461, L. R. A. 191SC, 1039; Edgar-Morgan Co. v. Alfocorn Co., 270 Fed. Rep. 341.

Of course there can be no unfair competition where there is no competition between the parties."1

For example, a woman running a lodging house and registry for nurses under the name "Carney Graduate Nurses' Club” is not unfairly competing with the nearby "Carney Hospital.

43

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Wholesalers and retailers, competition between.-It has been held that there is no competition between wholesale and retail dealers which will warrant injunction. Also that the failure of a retail shoe dealer to protest against the use by a wholesaler of a conflicting tradename is no bar to injunction against the use of that tradename in a rival retail business, established by a person previously connected with that wholesale dealer.**

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Competition between dentist and manufacturer of dental goods.-Persons practicing dentistry under a tradename have been denied relief as against the use of that tradename by a manufacturer of dental goods. Accordingly the manufacturer of dental goods who has for twelve years used the tradename of the plaintiff, practicing dentists may be enjoined when he engages in dentistry under that tradename.4

41-Kaufman v. Kaufman, 223 Mass. 104, 106, 107, 111 N. E. Rep. 691, 692; Briggs v. National Wafer Co., 215 Mass. 100, 102 N. E. Rep. 87, Ann. Cas. 1914C, 926; Hub Dress Mfg. Co. v. Rottenberg, 237 Mass. 281, 284, 129 N. E. Rep. 442.

42-Carney Hospital v. McDonald, 227 Mass. 231, 116 N. E. Rep. 414. 43-Regent Shoe Mfg. Co. v. Haak

er, 75 Nebr. 426, 106 N. W. Rep. 595, 4 L. R. A. (N.S.) 447.

44-Nolan Bros. Shoe Co. V. Nolan, 131 Cal. 271, 63 Pac. Rep. 480, 53 L. R. A. 384, 82 Am. St. Rep. 346.

45-Longenecker v. Longenecker Bros., 140 N. Y. Supp. 403.

46 Aultz v. Zucht (Tex. Civ. App.), 209 S. W. Rep. 475.

CHAPTER IX.

REGISTRATION.

§ 160. Introductory.-The English Patents, Designs and Trademarks Act, 1883-1888, provides that there can be no institution of proceedings to prevent or to recover damages for the infringement of a trademark capable of registration unless it has been registered. This provision does not occur in the Acts of Congress of 1881 or 1905, and could have no force or effect if it did, as there can be no valid trademark legislation by congress except under and by virtue of the commerce clause of the federal constitution (clause 3 of sec. VIII). As stated by Mr. Justice Miller: "When, therefore, congress undertakes to enact a law which can only be valid as a regulation of commerce, it is reasonable to expect to find on the face of the law, or from its essential nature, that it is a regulation of commerce with foreign nations, or among the several states, or with Indian tribes. If not so limited, it is in excess of the power of congress.

2

§ 161. The invalid registration acts.-In order to obtain a substantial idea of the difficulties which have attended our national legislation upon trademarks, it is only necessary to read the text of the several enactments of congress, which are collated in the appendix to this book. The Act of July 8, 1870, was based upon an entire misconception or disregard of the power resident in congress. Both it and the subsequent penal Act of August 14, 1876, were framed with the evident intention of providing a uniform trademark law for the several states. As will be seen by reference to the annotations to those acts, in the appendix, their validity was questioned and negatived upon circuit, and it was finally settled by

1-46 and 47 Vict., c. 57, § 77; Hazzopulo v. Kaufmann, 23 Sol. J. 819; Goodfellow v. Prince, L. R. 35 Ch. D. 9.

2-Trademark Cases, 100 U. S. 82; 25 L. Ed. 550. 3-Leidersdorf v. Flint, 8 Biss. 327, Fed. Case No. 8,219.

the supreme court that they were unconstitutional and therefore void.4

§ 162. The power of congress to protect trademarks. "The commerce clause of the federal constitution presents the remarkable instance of a national power which was comparatively unimportant for eighty years, and which in the last thirty years has been so developed that it is now, in its nationalizing tendency, perhaps the most important and conspicuous power possessed by the federal government."5

With the judicial determination that the Act of July 8, 1870, was void, came the realization by congress that within the scope of authority contained in the words "The congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes," must rest the foundation for its future trademark legislation. With this fact before it, congress proceeded to the enactment of the Act of March 3, 1881, embodied in the supplement to the Revised Statutes as sec. 322. No reason appears for the fact that under that act protection and the benefits of registration were extended only to "owners of trademarks used in commerce with foreign nations or with the Indian tribes," and not to owners of trademarks used in interstate commerce. But such is the fact, which it was left to future legislation to remedy. 6

§ 163. The constitutionality of the present registration act. It is a remarkable fact that during the period from March 3, 1881, to February 20, 1905, the question of the constitutionality of the Act of 1881 was never passed upon by any court.

4-Trademark Cases, 100 U. S. 82, 25 L. Ed. 550.

5-Prentice & Egan, Commerce Clause of the Federal Constitution, p. 1.

6-"The laws of the United States now in force

re

late only to trademarks specially used in commerce with foreign nations, or with the Indian tribes. Act of March 3, 1881 (21 St. at Large, Ch. 137, § 1). They are

particularly restricted so as not to give cognizance to any court of the United States in an action or suit between citizens of the same state, unless the trademark in controversy is used on goods intended to be transported to a foreign country, or in lawful commercial intercourse with an Indian tribe." Wheeler, J., in Luyties v. Hollender, 21 Fed. Rep. 281.

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