The maker of goods, in choosing a name, is not bound to insure the negligent buyer. Neither he nor his competitor has a legal right to the enjoyment of the trade of the careless or heedless or of those who have no preference as to which brand of goods they purchase. The law of unfair trade is intended to protect the average buyer of the particular article involved, buying under ordinary conditions. The buyer must be considered as he exists. If, in buying certain kinds of goods, the average purchaser is heedless and careless that fact should be fully recognized.

The method of selling the goods, and the ordinary circumstances attending their sale must be kept in mind. While the court is not bound to interfere, where ordinary attention will enable the purchasers to discriminate between the trade marks used on the goods manufactured by different parties, nevertheless, the character of the article as well as the use to which it is put, the kind of people who are likely to ask for it, and the manner in which it is probable it will be bought, must not be lost sight of.16

§ 325. Character of the Article, and the Habits and Intelligence of the Consumer. The court will consider the intelligence which the ordinary purchasers, buying with ordinary caution, will use in buying the article involved.17 The perceptions of the extremely stupid or extremely brilliant mind are not to be considered. The law presumes that the purchaser whom it must protect en masse, is a man of ordinary intelligence and sense, and it is further presumed that in the buying he will use the degree of care ordinarily and customarily used in buying the particular article in question-no more, no less. In considering whether or not one device is similar to another, it is extremely important to know the intellectual capacity of the purchasers who will be called on to distinguish them. Two marks each composed of a device made of two elephants, for instance, with printed matter, might appear entirely different to one who could read, while, to 10 Popham v. Cole, 66 N. Y. 691876; 23 Am. Rep. 22, and cases there cited; Morgan's Sons Co. v. Troxell, 23 Hun, 632-1881; reversed in 89 N. Y. 292-1882; 42 Am. Rep. 294; Read Bros. v. Richardson Co., 45 L. T. N. S. 54-1881; Beard v. Turner, 13 L. T. N. S. 747-1866; Leidersdorf v. Flint, 50

Wis. 401-1880; 7 N. W. 252; Eggers v. Hink, 63 Cal. 445-1883; 49 Am. Rep. 96; Orr Ewing & Co. v. Johnston & Co., L. R. 13 Ch. Div. 434-1880; Apollinaris Co. v. Scherer, 27 Fed. 181886 (C. C. S. D. N. Y.).

17 McLean v. Fleming, 96 U. S. 245-1877, at p. 251; 24 L. ed. 828.

one who could not read, they might seem exactly alike. Differences in wrappers for a college man's scarf which, to college students, would be entirely adequate to distinguish the goods, might be utterly inadequate to distinguish two different brands of calico sold to the natives of the South Sea Islands or among any ignorant class of consumers.

In Johnston & Co. v. Orr Ewing & Co., 18 plaintiffs had been using a label, the main feature of which was a device of two elephants. Defendant colorably reproduced this label. The plaintiffs' mark was the only mark using the figure of elephants known in the Oriental market, where plaintiffs sold their goods; and it became known as the "two elephants." The main resemblance between the two labels was the fact that on each was the figure of two elephants. Held, the label of the defendant might easily mislead the natives. Said the court: "To such persons, or at least to many of them even if they took notice of the differences between the two labels, it might probably appear that these were only differences of ornamentation, posture, and other accessories, leaving the distinctive and characteristic symbol substantially unchanged." No actual deceit was proved. "But in this case, the plaintiffs judged it necessary to proceed without waiting till actual deceit was proved, and I think they judged rightly, for as James, L. J., said (13 Ch. Div. 464) 'the very life of a trade-mark depends upon the promptitude with which it is vindicated"" (id. pp. 229-30).

"A consumer who has been accustomed to purchase an article in a dress or package which has become familiar to him does not stop to read and examine. Many of the consumers of beer are unable to read, and many are foreigners and unacquainted with the English language. All consumers, whether able to read or not, are in fact guided by the general appearance of the packages or label which is before them."19

Plaintiffs manufactured French polish in London, and developed a large trade in Bombay, where the goods, from the two red medals on the label, came to be known as "Lal Mohur" or "Lal Chap" (meaning "red medal or stamp"). Defendants then began to sell their polish in Bombay, with labels differing

18 L. R. 7 App. Cas. 219-25-1882. 19 Kostering v. Seattle Brewing & Malling Co., 116 Fed. 620 at page 621

1902 (C. C. A. 9th Cir.). So also Wilkinson v. Griffith Bros. & Co., 8 Rep. Pat. Cas. 370.

from plaintiffs'; except that they bore two red medals, in much the same position as plaintiffs'. Held, on the evidence, that though defendants' label might not deceive the British public, it tended to deceive the Bombay public. Injunction was granted.

The inexpensiveness of the article, and the fact that it is often called for by careless and illiterate persons, or foreigners, unfamiliar with English, will be taken into account. The bearing of such facts is aptly expressed by Barrett, J., in Morgan's Sons Co. v. Troxell,20 as follows: "While there is an almost ostentatious display of variation in matters not likely to attract the attention of the casual purchaser, there is a substantial similarity in the picture to which the eye has become accustomed. In this connection, we must not lose sight of the character of the article, the use to which it is put, the kind of people who ask for it, and the manner in which it is ordered. Very broad scene painting will deceive an ignorant, thoughtless or credulous domestic, looking for an article in common and daily use, and of no particular interest to her personally. The same kind of deception would be instantly detected by an intelligent woman of the world, looking for her favorite perfume, soap or dentrifice, or by a man of luxurious tastes, inquiring for some special brand of champagne."

§ 326. Side by Side Comparison in the Court Room is Not a Proper Final Test of Similarity. The average purchaser buying by mail or in a shop has no chance to compare the plaintiff's goods with the defendant's. If he has one article before him, the best he can do is to compare it with his memory of the other. For this reason it is not a fair test of the resemblance of two articles or labels or names to compare them in the court room solely by putting them side by side.

"It is not necessary that the resemblance should be such as would mislead an expert, nor such as would not be easily detected if the original and spurious were seen together (headnote)." 20°

"Now to one scanning the detailed description of these two Dutch scenes, or laying the pictures side by side, there could be no trouble in distinguishing the one from the other. But this is not the test." 206

The test of similarity is not visual comparison but memory 20 23 Hun (N. Y.), 632-36-1881. 200 Heileman Co. v. Independent Co., 204 Shaw Co. v. Mack, 12 Fed. 707. 191 Fed. 489-97-1911.

comparison. This fact is often overlooked by courts in unfair competition cases. It has actually happened in more than one trial of these cases that having the two articles before him the presiding judge has actually mistaken the one for the other and yet has felt it his duty to go on taking evidence as to whether they were sufficiently similar as to cause confusion, forgetting that if they were sufficiently similar to be confused when side by side, on his bench in the quiet of a court room, it was practically impossible for both of them to remain on the market without being constantly confused in the hurry and bustle of everyday trading.

It is the tendency to carelessness on the part of buyers that makes unfair competition profitable and possible commercially. In Stuart v. F. G. Stewart Co.,21 appellant began in 1891 to make and sell "Stuart's Dyspepsia Tablets" and advertised them widely. Appellee knew of complainant and his business when, in 1895, he put on the market "Dr. Stewart's Dyspepsia Tablets" in boxes similar to appellants'. Held, "Comparison

is not the test of infringement. The purchaser has not the advantage of comparison. A specific article of approved excellence comes to be known by certain catchwords easily retained in memory, or by a certain or by a certain picture which the eye readily recognizes. The purchaser is not bound to study or reflect. He acts upon the moment. He is without the opportunity of comparison. It is only when the difference is so gross that no sensible man acting on the instant would be deceived that it can be said that the purchaser ought not to be protected from imposition. Indeed, some cases have gone to the length of declaring that the purchaser has a right to be careless.

However that may be, the imitation need only be slight, if it attaches to what is most salient.219 Here the purchaser, desiring the remedy of the appellant, to which his attention had been attracted by the advertisement, or which possibly he had before purchased, knew the remedy as 'Stuart's Dypepsia Tablets,' and that it was in a blue wrapper. The name caught the ear; the color caught the eye. We think it would to expect

require more than the care ordinarily used

21 91 Fed. 243-45-1899 (C. C. A. 7th Cir.).

21 Pillsbury v. Flour Mills Co., 24 U. S. App. 395, 407; 64 Fed. 841,

that

a purchaser would deliberate over, or be warned

by, the addition of the prefix 'Dr.'" (id., pp. 245–46).2

22

§ 327. Evidence that the Proportion of Buyers of any Article Likely to be Deceived by Defendant's Acts is Small, is Not a Defense. The court will enjoin a defendant even though it appears that his acts in all likelihood will not deceive more than a small percentage of his customers. Such evidence may be competent on the question of damages. It is not important if competent on question of the right of plaintiff to an injunction.224

§ 328. Imitation of Salient Features. Imitations may be slight and still constituțe "similarity," if they attach to salient features. Many articles come to be known by a peculiarity they possess, which is usually described by a catchword. The important question is, What part of the label or name will the buyer look at? What will he actually take in, actually see, when he buys under ordinary conditions? It is a physical fact that the average person will not, can not, take in at a casual glance all, or even a large part, of the detail of what he looks at.23 The question is what part of the names or marks, which are alleged to be similar, does the average ordinary buyer see when he looks at them; what feature of a label or container becomes familiar to the average buyer of the article. We do not hear all that is spoken in our hearing, only a part is noticed by us, with sufficient detail for us to retain an impression of it which we will recall when we hear it again. Few people would be struck with the difference between the names "Stuart's Dyspepsia Tablets" and "Dr. Stewart's Dyspepsia Tablets," and yet one word in four is different.

22 Meyer v. Dr. Bull Vegetable Medicine Co., 58 Fed. 884-1893 (C. C. A. 7th Cir.). Plaintiffs sold "Bull's Cough Syrup," and "Dr. Bull's Cough Syrup." Defendant sold in similar wrappers, "Dr. B. L. Bull's Celebrated Cough Syrup." This was enjoined. "Bull's Cough Syrup" is, in one sense, quite different from "Dr. B. L. Bull's Celebrated Cough Syrup," but the use of the latter was enjoined not because of the likeness between them, but to protect the purchaser, who has no chance for accurate comparison. No rule of measure of

fraud, of deceit, or likelihood of confusion between plaintiff and defendant has been discovered in the books which will fit all cases, and it is well that this is so, for were there such rules to be found, equity would sometimes be found to have so bound herself by this same rule as to be unable to render aid in some future case of real injustice.

224 Rushmore v. Badger Brass Co., 198 Fed. 379.

23 Blackwell v. Crabb, 36 L. J. Ch. N. S. 504-1867.