stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just.29 § 190. Scandal and impertinence. The provisions of the new equity rules are as follows: be counter-claimed, see Motion Picture Patents Co. v. Eclair Film Co., 208 Fed. Rep. 416. 28-This is a new rule, based upon the English rule (Order XIX, Rule 7), which reads: "A further and better statement of the nature of the claim or defense, or further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars, may in all cases be ordered, upon such terms as to costs and otherwise, as may be just." The words "upon such terms" have been held to authorize an order that if proper particulars be not delivered within a time fixed in the order, the action shall stand dismissed: Davey v. Bentinck (1893), 1 Q. B. 185. "The object of particulars is to enable the party asking for them to know what case he has to meet at the trial, and so to save unnecessary expense, and avoid allowing parties to be taken by surprise." Cotton, L. J., in Spedding v. Fitzpatrick, 38 C. D. p. 413. "Sometimes particulars have been allowed in order that there might not be a surprise at the trial. Sometimes they have been allowed as limitations of the claim, to limit the extent of the evidence to be given at the trial. Under the Judicature Act particulars are really supplemental to the pleadings. They are in fact amendments of the pleadings." Vaughn Williams, L. J., in Milbank v. Milbank (1900), 1 Ch. 385. On account of this rule, it is sound policy to plead fully the facts relied upon (but not the evidence proving those facts), in order to avoid the motion for particulars. Maxwell Steel Vault Co. v. National Casket Co., 205 Fed. Rep. 515; Williams v. Pope, 215 Fed. Rep. 1000. In applying the rule the court will deny a motion for the disclosure of the names of witnesses to the facts of unfair competition pleaded in the bill, for the reasons stated by Judge Chatfield as follows: "In so far as the motion is merely an attempt to secure the names of witnesses or the details of the plaintiff's evidence, it should be denied. But, apart from this, the knowledge of where, to whom, and under what conditions, sales have been made by the defendant at wholesale prices, are matters known to the defendant much better than to the plaintiff. In the trial of a suit in equity, even under the present rules, no hardship would seem to be involved in refusing to give to the defendant information of just when, where and how it has dealt with its own customers. The opportunity for fair hearing and crossexamination can be amply protected. Curtis v. Phelps (D.C.), 209 Fed. 261." United Lace & Braid Mfg. Co. v. Barthels Mfg. Co., 213 Fed. Rep. 535, 21. SCANDAL AND IMPERTINENCE. The right to except to bills, answers, and other proceedings for scandal or impertinence shall not obtain, but the court may, upon motion of its own initiative, order any redundant, impertinent or scandalous matter striken out, upon such terms as the court shall think fit.29 §191. The defenses in equity.-All defenses good in the action at law are good in the action in equity except that of the innocence of the defendant of wrongful intent. In a case where both parties have the right to use the trademark, the defendant will be enjoined from using the words "the only genuine" in connection with the trademark.30 The plaintiff must, of course. be actually entitled to use the trademark having applied it commercially. Thus Sir James Clark's application to restrain one Freeman from advertising or selling pills under the name of "Sir J. Clark's Consumption Pills" was denied because the plaintiff was not engaged in the sale of pills.31 The plaintiff 29-This is a new rule, abolishing the old practice as to exceptions for scandal and impertinence. See former Rules 26 and 27. The English Rule.-"The court or a judge may at any stage of the proceedings order to be struck out or amended, any matter in any indorsement or pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass or delay the fair trial of the action; and may in any such if they or he shall think fit, order the costs of the application to be paid as between solicitor and client." (Order XIX, Rule 27.) case, The application must be made promptly or the court may decline to exercise its jurisdiction. Cross v. Howe, 62 L. J. Ch. 342. It will be noted that the English rule uses the word "unnecessary" where Rule 12 refers to "redundant" matter. It is, therefore, important to note that in the English prac tice, if the matter is otherwise harmless, it will not be struck out merely because it is unnecessary. Rock v. Purssell, 84 L. T. Jo. 45. Scandalous matter, in England, may be expunged by the court from any part of the record, and even from a bill of costs. In re Miller, 54 L. J. Ch. 205. "Nothing can be scandalous which is relevant." Cutton, L. J., in Fisher v. Owen, 8 C. p. 653. D., For an application of this rule, see Williams v. Pope, 215 Fed. Rep. 1000. 30-James v. James, L. R. 13 Eq. Cas. 421; Cocks v. Chandler, L. R. 11 Eq. Cas. 446. 31-Clark v. Freeman, 11 Beav. 112. This decision is criticised in Maxwell v. Hogg, L. R. 2 Ch. App. 307; but it is manifestly correct may not be entitled to recover because of his not having an exclusive right to the mark; or because he has, without authority, used the words "patent" or "patented" in connection with or as a part of what he claims as his trademark. Or he may have made fraudulent representations in connection with his trademark which will prevent his recovering the relief sought for. A single act done at the suggestion of the plaintiff's agent will not be treated as an infringement.32 It is a good defense that the defendant is merely reselling goods made in conformity with a decree of injunction entered in a former suit against the manufacturer. 33 It is obviously a good defense that the plaintiff's mark is an infringement of another's mark.34 It often happens that the defendant may plead by way of mitigation of damages or so as to avoid his liability for an accounting or for costs.35 Thus, in an English case, the defendants purchased five hundred cigarettes, worth only 17s. 6d., and which bore a mark which was an infringement of the plaintiff's. The court granted the application for injunction, but refused to order the defendants to pay costs, saying by Sterling, J.: "I confess I think this is not a sort of action that ought to be encouraged. If persons find a trademark is being pirated, surely it is not the small retailers who ought to be punished. * I can not think that it is the duty of the court in every case in in principle, considered as a tradename case. Lord Justice Cairns says (L. R. 2 Ch. App. 310): "It has always appeared to me that Clark v. Freeman might have been decided in favor of the plaintiff on the ground that he had a property in his own name," i. e., a right of privacy, which involves a discussion which it would be aside from our purpose to enter upon here. Lord Chancellor Selborne has criticised Clark v. Freeman, from another standpoint, saying: "That case has been seldom cited but to be disapproved. Could not a professional man be injured in his profession by having his name associated with a quack medicine?" In re Riviere's Trademark, L. R. 26 Ch. D. 53. 32-Hennessy V. Kennett, Seb. 556; Gorham Mfg. Co. v. EmeryBird-Thayer Co., 92 Fed. Rep. 774; Hostetter Co. v. Brunn, 107 Fed. Rep. 707. 33-Societe Anonyme Benedictine v. Hygrade Wine Co., 173 Fed. Rep. 796. 34-Ubeda v. Zialcita, 226 U. S. 452; 57 L. Ed. 296. 35-Guilhon v. Lindo, 9 Bos. 605; Cox' American Trademark Cases, 295. which a small dealer who has innocently happened to purchase a small quantity of the spurious goods, to fix him with the costs of an action." 36 A defendant who was printing labels for a third party did not know that the labels bore counterfeits of plaintiff's trademarks. On being notified of the fact of infringement, defendant offered to surrender the lithograph stone and promised to desist from further printing the counterfeit labels. The court adopted the same course as that taken by the English court in the last named case-granted an injunction but at complainant's costs.37 This case shows that it is not wise to notify a defendant before suing. It has been expressly and repeatedly held that the defendant is not entitled to notice,38 and it is related by Chitty, J., that when that very learned jurist, the late Sir G. Jessel, master of the rolls, was at the bar, it was his custom to advise his clients in trademark actions not to give any notice but to move at once."9 These suggestions are given here to call the attention of the practitioner whose duty is to defend the alleged infringer to the very serious question of avoiding costs. It may be possible to defend successfully on the ground that, although the plaintiff has applied his trademark in commerce he has not applied it to the same character or class of merchandise as that to which the defendant is applying it. We have touched upon this question before, but a more extended consideration of it may be advisable. To answer the question of whether the defendant's use of the complainant's trademark is such an unlawful use that it should be restrained, "the extent of the owner's property in a trademark, and the character of the act which is held to injuriously affect his property rights, and to call for the interposition of a court of equity, must be ascertained. * The deceit of the public and the subsequent * 36-American Tobacco Co. V. Guest, 9 R. P. C. 218; L. R. (1892) I Ch. D. 630; 61 L. J. Ch. 242; 66 L. T. 257; 40 W. R. 364; Cartmell, 45. 37-Bass V. Guggenheimer, 69 Fed. Rep. 271. 38-Upmann v. Forester, L. R. 24 Ch. D. 231; 52 L. J. Ch. 946; 49 L. T. 122; 32 W. R. 28. 39-Upmann v. Forester, L. R. 24 Ch. D. 231-235. The following cases illustrate the danger of giving notice before suit. G. W. Cole v. Cole's Oil Co., 147 Fed. Rep. 930; Dwinell-Wright Co. v. Co-operative Supply Co., 148 Fed. Rep. 242. injury to it are as much to be regarded by a court of equity as an injury to a plaintiff's business. It therefore follows that the right of an owner of a trademark is not a right to its exclusive use everywhere and under all circumstances. 40 Thus, an iron manufacturer using a lion's head as his trademark can not enjoin a linen manufacturer from using a lion's head as his mark.41 It was held that "Fruit Salt" as a trademark for an effervescing drink, a registered mark, might be interfered with by the words "Fruit Salt" designating a baking powder. In this case it was shown that the "Fruit Salt" used in producing the effervescing drink had been used as a baking powder, in exceptional cases; but the court remarked that if it were proposed to so employ the words "Fruit Salt" that "no reasonable person could suppose that they had reference to the appellant's preparation, such a use would be perfectly unobjectionable. For example, I can not conceive any one imagining that a "Fruit Salt Umbrella" was in any way connected with the article manufactured by Mr. Eno (the effervescing drink)." 2 So it has been held in this country that the word "Celluloid" is a valid trademark as applied to articles actually composed of celluloid, 43 but that the use of the word "Celluloid" to designate a starch is not an infringement, because celluloid had never been used in making starch and there was no testimony to show that the plaintiff had intended ever to use it in making starch. There was expert testimony to the effect that it was highly probable that a method might be devised by which celluloid could be converted into a starch-like body fit for use as a substitute for starch, but the court held this statement of probabilities "too indefinite to be the foundation of an injunction."44 The whole question depends upon how closely related are the classes of goods to which the complainant and respondent apply the mark.45 40-Shipman, J., in Celluloid Mfg. Co. v. Read, 47 Fed. Rep. 712714. 41-Ainsworth v. Walmsley, 35 L. J. Ch. 352. 42-Lord Herschell in Eno V. Dunn, L. R. 15 App. Cas. 252, 260. 43-Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 Fed. Rep. 94. 44-Celluloid Mfg. Co. v. Read, 47 Fed. Rep. 712, 716. 45-Collins Co. V. Ames, 20 Blatchf. 542; 18 Fed. Rep. 561; Amoskeag Mfg. Co. v. Garner, 54 How. Pr. 297; Carroll v. Ertheiler, |