the fruits of another's industry, or impose his goods upon the public by inducing it to believe that they are the goods of some one else. If A presents his goods in such a way that a customer who is acquainted with the goods of B and intends to purchase them is induced to take the goods of A instead, believing them to be the goods of B, A is guilty of a fraud which deceives the public and injures his competitor. Where the goods of a manufacturer have become popular not only because of their intrinsic worth, but also by reason of the ingenious, attractive and persistent manner in which they have been advertised, the goodwill thus created is entitled to protection. The money invested in advertising is as much a part of the business as if invested in buildings, or machinery, and a rival in business has no more right to use the one than the other-no more right to use the machinery by which the goods are placed on the market than the machinery which originally created them. No one should be permitted to step in at the cleventh hour and appropriate advantages resulting from years of toil on the part of another." "The action is based upon deception, unfairness and fraud, and when these are established the court should not hesitate to act. Fraud should be clearly proved; it should not be inferred from remote and trivial similarities. Judicial paternalism should be avoided; there should be no officious meddling by the court with the petty details of trade; but, on the other hand, its process should be promptly used to prevent an hon est business from being destroyed or invaded by dishonest means." Coxe, J., in Hilson Co. v. Foster, 80 Fed. Rep. 896-897. "The fundamental rule is that one man has no right to put off his goods for sale as the goods of a rival trader; and he can not, therefore (in the language of Lord Langdale in the case of Perry v. Truefit, 6 Beavan, 66-73), 'be allowed to use names, marks, letters or other indicia by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person.'' Lord Kingsdown in Leather Cloth Co. (Ltd.) v. American Leather Cloth Co. (Ltd.), 11 H. L. C. 358; followed in Johnston v. Orr-Ewing, 7 App. Cas. 219-229. "The courts have evolved out of the technical law of trademarks a just doctrine, well founded, and known as the law of unfair trade, the underlying principle of which is not only sound and broad but eminently more concerned with the justice of the cause than was our ancient jurisprudence with reference to infringements of the trademark." Nortoni, J., in Grocer's Journal v. Midland Pub. Co., 127 Mo. App. 366; 105 S. W. Rep. 312; quoted with approval, McGrew Coal Co. v. Menefee, 162 Mo. App. 209; 144 S. W. Rep. 869. "The gradual but progressive judicial development of the doctrine of unfair competition in trade has shed lustre on that branch of our jurisprudence as an embodiment, to a marked degree, of the principles or high business morality, involving the nicest discrimination between those things which may, It has been held in some cases that in cases of unfair competition the private right of action is not based upon fraud or imposition upon the public, but is maintained solely for the protection of the property rights of complainant.35 and those which may not, be done in the course of honorable rivalry in business. This doctrine rests on the broad proposition that equity will not permit any one to palm off his goods on the public as those of another. The law of trademarks is only one branch of the doctrine. But while the law of trademarks is but part of the law of unfair competition in trade, yet when the two are viewed in contradistinction to each other an essential difference is to be observed. The infringement of trademarks is the violation by one person of an exclusive right of another person to the use of a word, mark or symbol. Unfair competi tion in trade, as distinguished from infringement of trademarks, does not involve the violation of any exclusive right to the use of a word, mark or symbol. The word may be purely generic or descriptive, and the mark or symbol indicative only of style, size, shape or quality, and as such open to public use 'like the adjectives of the language,' yet there may be unfair competition in trade by an improper use of such word, mark or symbol. Two rivals in business competing with each other in the same line of goods may have an equal right to use the same words, marks or symbols on similar articles produced or sold by them respectively, yet yet if such words, marks or symbols were used by one of them before the other and by association have come to indicate to the public that the goods to which they are applied are of the production of the former, the latter will not be permitted, with intent to mislead the public, to use such words, marks or symbols in such a manner, by trade dress or otherwise, as to deceive or be capable of deceiving the public as to the origin, manufacture or ownership of the articles to which they are applied; and the latter may be required, when using such words, marks or symbols, to place on articles of his own production or the packages in which they are usually sold something clearly denoting the origin, manufacture or ownership of such articles, or negativing any idea that they were produced or sold by the former." Bradford, J., in Dennison Mfg. Co. v. Thomas Mfg. Co., 94 Fed. Rep. 651-659. * "The power of courts of equity to restrain unfair competition is a very beneficent one, and is founded upon a basis of sound business morality. No arbitrary rules have ever been, nor ever can be, laid down by which courts of equity will furnish this protection. To establish such rules would, like definitions in the law, furnish the means by which fraud could successfully accomplish its ends." Gray, J., in Ludlow Valve Mfg. Co. v. Pittsburg Mfg. Co., 166 Fed. Rep. 26, 29; 92 C. C. A. 60. 35-American Washboard Co. v. Saginaw Mfg. Co., 103 Fed. Rep. 281; 43 C. C. A. 233; 50 L. R. A. § 21. Property right as the basis of the action for unfair competition. In view of the nebulous condition of the American cases as to the nature of the right which is at the basis of the action for unfair competition in trade, it may be well to set out here the English doctrine. That doctrine has been rather slowly evolved, but it is now to be considered as established by the opinion from which the following is an extract: "The proposition that no one has a right to represent his goods as the goods of somebody else must, I think, as has been assumed in this case, involve as a corollary the further proposition, that no one, who has in his hands the goods of another of a particular class or quality, has a right to represent these goods to be the goods of that other of a different quality or belonging to a different class. Possibly, therefore, the principle ought to be restated as follows:-A can not, without infringing the rights of B, represent goods which are not B's goods or B's goods of a particular class or quality to be B's goods or B's goods of that particular class or quality. The wrong for which relief is sought in a passing-off action consists in every case of a representation of this nature. "The basis of a passing-off action being a false representation by the defendant, it must be proved in each case as a fact that the false representation was made. It may, of course, have been made in express words, but cases of express misrepresentation of this sort are rare. The more common case is, where the representation is implied in the use or imitation of a mark, tradename, or get-up with which the goods of another are associated in the minds of the public, or of a particular class of the public. In such cases the point to be decided is whether, having regard to all the circumstances of the case, the use by the defendant in connection with the goods of the mark, name, or get-up in question impliedly represents such goods to be the goods of the plaintiff, or the goods of the plaintiff of a particular class or quality, or, as it is sometimes put, whether the defendant's use of such mark, 155 Mo. App. 412; 135 S. W. Rep. 609; Shelley v. Sperry, 121 Mo. App. 429; 99 S. W. Rep. 488; A. J. Reach Co. v. Simmons Hdw. Co., 503. name or get-up is calculated to deceive. It would, however, be impossible to enumerate or classify all the possible ways in which a man may make the false representation relied on. "There appears to be considerable diversity of opinion as to the nature of the right, the invasion of which is the subject of what are known as passing-off actions. The more general opinion appears to be that the right is a right of property. This view naturally demands an answer to the question-property in what? Some authorities say property in the mark, name, or get-up improperly used by the defendant. Others say, property in the business or goodwill likely to be injured by the misrepresentation. Lord Herschell in Reddaway v. Banham (L. R. [1906] A. C. 139) expressly dissents from the former view; and if the right invaded is a right of property at all, there are, I think, strong reasons for preferring the latter view. In the first place, cases of misrepresentation by the use of a mark, name, or get-up do not exhaust all possible cases of misrepresentation. If A says falsely, 'These goods I am selling are B's goods,' there is no mark, name, or get-up infringed unless it be B's name, and if he falsely says, "These are B's goods of a particular quality', where the goods are in fact B's goods, there is no name that is infringed at all. Further, it is extremely difficult to see how a man can be said to have property in descriptive words, such as 'Camel Hair' in the case of Reddaway v. Banham (L. R. [1906] A. C. 199) where every trader is entitled to use the words, provided only he uses them in such a way as not to be calculated to deceive. Even in the case of what are sometimes referred to as Common Law Trade Marks the property, if any, of the so-called owner is in its nature transitory, and only exists so long as the mark is distinctive of his goods in the eyes of the public or a class of the public. Indeed, the necessity of proving this distinctiveness in each case as a step in the proof of the false representation relied on was one of the evils sought to be remedied by the Trade Marks Act 1875, which conferred a real right of property on the owner of a registered mark. I had to consider the matter in the case of Burberrys v. Cording (26 R. P. C. 693) and I came to the same conclusion." 35a 35a-Lord Parker, in Spalding & Bros. v. Gamage (Ltd.), 32 R. P. C. 284, House of Lords, 1915. § 22. Unfair competition distinguished from trademark iniringement. It can hardly be doubted that at its inception. the doctrine of unfair competition was devised to protect the public, rather than to recognize any vested right in the complainant. He had adopted a geographical name, a generic term, or words otherwise publici juris, to designate his wares. Perhaps he had no device, symbol or mark whatsoever, but relied upon the shape, form or color of his packages. He had, at all events, none of those methods of distinguishing his goods from those of other merchants which the law recognizes as a right of property and denominates "trademark." Yet his goods had a fixed quality and were sought for by the public. When his competitor endeavored to palm off other goods as his upon the public, the chancellor would say as Lord Langdale said: "My decision does not depend on any peculiar or exclusive right the plaintiffs have to use the name of Day & Martin, but upon the fact of the defendant using those names in connection with certain circumstances, and in a manner calculated to mislead the public, and to enable the defendant to obtain, at the expense of Day's estate, a benefit for himself, to which he is not in fair and honest dealing entitled." 36 The true theory of unfair competition has not always been as clearly stated by the courts as it should be. One line of decisions bases this doctrine and the right to injunctive relief upon the protection of the public from fraud. On the other hand, Judge Thayer has stated that relief is granted "To restrain the defendants from perpetrating a fraud which injures the complainant's business, and occasions him a pecuniary loss." 37 It is very clear that equity intervenes in the protection from fraud of both the complainant whose business is or may be injured by the unfair and fraudulent competition, and the public who are the consumers of his merchandise.38 36-Croft v. Day, 7 Beav. 84; Seb. 76. 37-Carson v. Ury, 39 Fed. Rep. 777; Cox, Manual, 709; following Goodyear India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598; 32 L. Ed. 535; Cox, Manual, 705. And to the same effect, see Pierce v. Guittard, 68 Cal. 68, 71. "The true theory is the protection of the public, whose rights are in |