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been better to use those words only on the tanned cloth; but it appeared to me on a former occasion quite impossible for any one to be misled into buying the untanned for the tanned article, Ibid. 293. That is, the Vice Chancellor means to say that any buyer of ordinary discernment would perceive that the cloth was not tanned, and, therefore, would not be deceived by the statement that it was. This, however, is not the fact, for the tanning might have been applied on the side which is covered by the composition; but I cannot receive it as a rule, either of morality or equity, that a plaintiff is not answerable for a falsehood, because it may be so gross and palpable as that no one is likely to be deceived by it. If there be a wilful false statement I will not stop to inquire whether it be too gross to mislead.

I am told that the Vice Chancellor put the case of Morrison's pills, and concluded that the present maker of that medicine, though not bearing the name of Morrison, would be protected in the exclusive use of the appellation; and rightly, because the words "Morrison's pills" have become the name of the thing sold, in the same manner as James' powder is the name of a celebrated medicine, and as the words "Macintosh," "Brougham" and "Wellingtons are the designations of different articles. So in the present case, the cloth made and sold by the plaintiffs might be properly called and sold by them as "Crockett's Leather Cloth," for that has become the proper designation of the manufacture.

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The Vice Chancellor is apprehensive that if he refuses the plaintiff relief he must hold, that where the name of a deceased partner is continued in the firm by his surviving partners they would be guilty of a fraud upon the public. To continue the old style of a firm is a very different thing from making false representations with respect to a vendible commodity in order to give it greater value, and create for it a greater demand in the market. The Plaintiffs impose upon the public by selling goods, which are in reality made by themselves at their manufactory at West Ham, as being the goods of the Crockett International Leather Cloth Company, and as having been manufactured by J. R. and C. P. Crockett, who were the original inventors and manufacturers; and further, they describe and sell untanned goods as being tanned and included in a patent which has not yet expired. Their request is to be protected, and therefore justified, in continuing to make these untrue statements to the public in order to secure a monopoly for their commodity.

There is a homely phrase, long current in this court, that a plaintiff must come into equity with clean hands.1 That is not the case with the present plaintiffs, whose case is condemned by

1 Instances of the early use of the phrase are Francis, Maxims of Equity, 5; Dering v. Winchilsea, 1 Cox Ch. 318 (1787); Cadman v. Horner, 18 Ves. Jr. 10 (1810).

the principles to which they appeal, and I must therefore reverse the decree of the Vice Chancellor and dismiss their bill; but, as I do not approve of the conduct of the defendants, I dismiss it without costs.1

1 This decision was affirmed by the House of Lords, 11 H. L. C. 523, chiefly on the ground of lack of infringement. The defense of misrepresentation by the plaintiff to the public is discussed at 532 and 542.

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The owner of a trade-mark or trade-name which contained misrepresentations was denied equitable protection in Pidding v. How, 8 Sim. 477 (1837), Howqua Tea" not made in China; Perry v. Truefitt, 6 Beav. 66 (1842); Flavel v. Harrison, 10 Hare 467 (1853), "patent" where none, but cf. Edelstein v. Vick, 11 Hare 78 (1853) and Cochrane v. MacWish, [1896] A. C. 225 (J. C.); Manhattan Medicine Co. v. Wood, 108 U. S. 218 (1883), place of manufacture misstated; Holzepfel's Co. v. Rahtjen's Co., 183 U. S. 1 (1901), "patent"; Worden v. California Fig Syrup Co., 187 U. S. 516 (1903), no figs used; Krauss v. Peebles, 58 Fed. 585 (Oh., 1893), pure" whiskey; Hilson v. Foster, 80 Fed. 896 (S. D. N. Y., 1897), "Havana" cigars; Preservaline v. Heller, 118 Fed. 103 (Ill., 1902), "patented" after patent expired, but cf. Edelstein v. Vick, supra; Hazlett v. Pollack Stogie Co., 188 Fed. 494 (Pa., 1911), identity of maker misstated; Connell v. Reed, 128 Mass. 477 (1880), "East Indian remedy"; Grocers' Journal v. Midland Pub. Co., 127 Mo. App. 356 (1907), misappropriation of good-will of defunct journal; Prince Mfg. Co. v. Prince's Metallic Paint Co., 135 N. Y. 24 (1892); Fetridge v. Wells, 13 How. Pr. 385 (1857), "Balm of Thousand Flowers and no flowers used, amusing; Hobbs v. Francais, 19 How. Pr. 567 (1860), "patronized by the Queen"; Phalon v. Wright, 5 Phila. 464 (1864), “Extract of Nightblooming Cereus."

Shiras, J., Worden v. California Fig Syrup Co., supra, 528: "Where any symbol or label claimed as a trade-mark is so constructed or worded as to make or contain a distinct assertion which is false, no property can be claimed on it, or, in other words, the right to the exclusive use of it cannot be maintained." And Duer, J., in Fetridge v. Wells, supra, was quoted: "An exclusive privilege for deceiving the public is assuredly not one that a court of equity can be required to aid or sanction. To do so would be to forfeit its name and character."

Coxe, J., Hilson v. Foster, supra, 901, "It would seem that this rule might be modified so as to permit the court, for the protection of the general public, to enjoin both parties." Cf. Comstock v. Johnson, 46 N. Y. 615 (1871).

The defense of unclean hands need not be pleaded. Memphis Keeley Institute v. Keeley Co., 155 Fed. 964. 974 (C. C. A., 6th, 1907); Simmons v. Mansfield, 93 Tenn. 84, 99 (1893).

What is misrepresentation? In Coca-Cola Co. v. Koke Co., 254 U. S. 143 (1920), the defense was that the name of the plaintiff's product falsely suggested that it contained cocaine; but Holmes, J., said, 146: "It hardly would be too much to say that the drink characterizes the name as much as the name the drink. In other words Coca-Cola probably means to most persons the plaintiff's familiar product to be had everywhere rather than a compound of particular substances. . . . It would be going too far to deny the plaintiff relief against a palpable fraud because possibly here and there an ignorant person might call for the drink with the hope for incipient cocaine intoxication." For a similar question as to "Angostura Bitters" not made in Angostura, see Siegert v. Findlater. 7 Ch. D. 801, 811 (1878); Siegert v. Abbott, 61 Md. 276 (1883); Browne. Trade-marks, 83.

In Newbro v. Undeland, 69 Neb. 821 (1903), the defense that the plaintiff's medicine would not cure baldness was rejected; but see Fetridge v.

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NOTE ON COLLATERAL MISREPRESENTATIONS TO THE PUBLIC IN THE PLAINTIFF'S BUSINESS

FORD V. FOSTER, L. R. 7 Ch. App. 611 (1872). Suit to enjoin imitation of a trade-mark, "Eureka," on shirts. The plaintiff had described himself in numerous advertisements and on invoices and bill-heads sent to every purchaser, as a "patentee" of Eureka shirts, although he had no patent, but the word had now been dropped. Bacon, V. C., dismissed the bill, but, was reversed by the Court of Appeal in Chancery. MELLISH, L. J., 630-632: "If the false representation was in the trade-mark itself, [it] would be an answer at law to an action brought for a deceptive use of the trade-mark by the defendant. It would come within the rule Ex turpi causa non oritur actio; that if the trade-mark contains a false representation calculated to deceive the public, a man cannot by using that, which is in itself a fraud, obtain — I do not say an exclusive right but any right at all. . . . But where the trade is, as in this case, a perfectly honest trade, and where the trade-mark is, as in this case, a perfectly honest trade-mark, I am clearly of opinion that there is no common law principle upon which it is possible to hold that the fact of the plaintiff having been guilty of some collateral fraud would be an answer to an action. It would be impossible to plead at law as a justification for the defendant's committing the fraud that the plaintiff had committed a similar fraud on some one else. . . . There would be this further difficulty to be solved: How much misrepresentation must be made to be an answer to an action? Is it to be said that if the plaintiff had on one single day issued an advertisement containing a false representation, therefore all his rights were gone? I can see no way of determining how far the misrepresentation must extend before it would be considered an answer to an action or a suit. . . . It cannot be right, if the plaintiff is allowed to maintain his action, that he should be obliged to bring perpetual actions at law instead of having his injunction in this court." 1

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Wells, supra. In Kohler v. Beeshore, 59 Fed. 572, 574 (C. C. A., 3d, 1893), Shiras, J., doubted whether the words, One Night Cough Cure," were entitled to protection, since they asserted a physiological impossibility." In Pratt's Appeal, 117 Pa. St. 401 (1888), it was held no bar to relief that several branches of the family of the originator of a brand of butter used his name and device; but see the adverse criticism by Taft, J., in Krauss v. Peebles, 58 Fed. at 595.

On the effect of misrepresentation in the plaintiff's business, see the general references below; 5 Pom. § 2015; 19 L. R. A. 53; 4 A. L. R. 92; 114 C. C. A. 560; Nims, Unfair Competition (2d ed.) § 389 ff.

Cases on the effect in equity of various kinds of unethical conduct by the plaintiff are collected in 1 Pom. § 397 ff.; 1 J. B. Scott, Cas. Eq. Jur. 278 ff.; 2 L. R. A. 368; L. R. A. 1915A, 820; 4 A. L. R. 44; 70 C. C. A. 543n.; 114 ib. 555n.; 8 Colum. L. Rev. 40; 9 ib. 269; 10 ib. 671; 16 Harv. L. Rev. 444; 31 ib. 889; 35 ib. 754; 36 ib. 221.

1 Accord, Lee v. Haley, L. R. 5 Ch. App. 155 (1869); Siegert v. Findlater, 7 Ch. D. 801, 811 (1878), misrepresentations on a wrapper used after the action was begun.

SHAVER V. HELLER, 108 Fed. 821, 834 (C. C. A., Sth, 1901). The plaintiff's bluing had long been known to the public under the names of "American Ball Blue" and American Wash Blue." The defendants adopted the same names for their bluing, and an injunction was granted. One defense was, that in recent years the plaintiff had been manufacturing and selling other brands, "Germania" and Bavarian" Ball Blue in boxes simulating foreign products. SANBORN, J.: "The principle that 'he who comes into equity must do so with clean hands' . . . does not repel all sinners from courts of equity, nor does it disqualify any complainant from obtaining relief there who has not dealt unjustly in the very transaction concerning which he complains. The iniquity which will repel him must have an immediate and necessary relation to the equity for which he sues. Dering v. Winchelsea, 1 Cox Ch. 318; Lewis & Nelson's Appeal, 67 Pa. 153, 166; Bateman v. Fargason, 4 Fed. 32; Bisp. Eq. 61. There is no evidence that the appellee has been guilty of any injustice, fraud, or wrong in acquiring the good will of its business in the American ball blue and the American wash blue, which is the subject of this suit, or in its relations with the appellants, and relief cannot be denied to it because it may have been wicked in other transactions which affect neither the appellants nor the equity here under consideration." 1

MEMPHIS KEELEY INSTITUTE V. KEELEY Co., 155 Fed. 964 (C. C. A., 6th, 1907), injunction denied against imitation of a trade-name, because the plaintiff had falsely asserted in circulars that his remedy for drunkenness contained gold and had conducted fraudulent experiments to show this. COCHRAN, J., 973: "Counsel for appellee cites and relies on a number of cases which hold that a court of equity will not turn out of court an unclean man, or a man who has done an unclean thing which has no relation to the thing which it is sought to have protected by its decree. . . . The uncleanness here has to do with the very thing which the court is asked to protect and prevent from injury and invasion by appellants. . . . That business - the very thing which the court is asked to protect is, as we have held, unclean."

HOWARD V. LOVETT, 198 Mich. 710 (1917). The plaintiff sought protection for the name "Mercedes" as the trade-name of a "telepathic" act, based on a secret code. An injunction was denied, partly because the plaintiff had advertised his act by a marvellous and wholly fictitious lifehistory of himself. FELLOWS, J., 717: "To put our approval upon such methods, by protecting with a writ of injunction a business built upon such a foundation, would, to my mind, disregard that maxim of equity that is hoary with age- that he who comes into a court of equity must

1 In this country, the authorities are divided. Collateral fraud was held no bar in Mossler v. Jacob, 66 Ill. App. 571 (1896), trade-name, misleading advertising; Wormser . Shayne, 111 Ill. App. 556 (1904), trade-mark, mis- ↑ leading signs in windows and use of "copy-right" on labels; Curtis v. Bryan, 36 How. Pr. 33 (1867); Simmons v. Mansfield, 93 Tenn. 84, 94 (1893).

Relief was denied in several cases stated in the Note, supra; also in Stirling v. Sterling, 59 N. J. Eq. 394, 400 (1900), trade-mark and name, preliminary injunction denied as advertisements with patented" had not been withdrawn. Cf. Johnson v. Seabury, 69 N. J. Eq. 696 (1905), advertisement withdrawn before suit, conditions when the party applies for aid said to govern; Nims, § 393.

come with clean hands. The writ of injunction is not a writ of right, but its issuance rests in sound judicial discretion; that discretion should not be moved where the party applying does not bring his case within equitable principles, does not show superior equities that are entitled to protection at the hands of a court of equity, does not make such a case as moves the conscience of the court to grant the relief." 1

AMERICAN UNIVERSITY V. WOOD, 294 Ill. 186 (1920). The plaintiff, a fraudulent institution for instruction in chiropractic, falsely stated in its advertising that it had a professional staff of teachers with a consulting staff of practitioners, and gave the income of some of its graduates, of whom none actually existed. The defendant, a discharged employee who had assisted in these frauds, was using the plaintiff's lists of actual and prospective students to organize an equally fraudulent school of his own, and to conduct a campaign to destroy the plaintiff's business. An injunction was denied. FARMER, J., 195: "As a general rule it is required that the wrongdoing or fraud of the complainant . . . must be connected with the subject of the litigation and have some relation to the rights of the parties arising out of the transaction. That rule is not applicable to the facts in this record. . . . A court of equity is a court of conscience and will exercise its extraordinary powers only to enforce the requirements of conscience. It is no part of its function to aid a litigant in the promotion of a fraud upon the public." 2

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KINNER v. LAKE SHORE & MICHIGAN hot here do motrack the
SOUTHERN RAILWAY CO onction any illegal contract. The

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SUPREME COURT, OHIO, 1903. any laws and that which D-claims ir

ifquitable in Bosio not related to [69 Ohio State Reports, 339.] it, but is of R's combination mokę price of tickets. The railway company filed its petition in the court of common pleas against Kinner and numerous others for an injunction, alleging that it operated a railroad between Chicago and Buffalo, passing through Cleveland, where the Grand Army of the Republic was to hold its national encampment in 1901. The plaintiff made special low rates on non-transferable tickets to and from Cleveland. The defendants (scalpers) were engaged in obtaining the return portions of such tickets and selling them to other persons for less than the one-way fare, so that the purchasers might use them by impersonating the original passengers. The defendants were insolvent, and had full notice of the terms of the tickets and the intended fraud.

The answer denied certain allegations of the bill, and alleged

1 See "Doctrine of Unclean Hands as applied to the Protection of Tradenames," 31 Harv. L. Rev. 889. In Fay v. Lambourne, 124 App. Div. 245 (1908), the pretence of occult powers in a similar theatrical act was held to be in itself a bar to protection of a trade-name, because of " fraud upon the public."

2 See 19 Mich. L. Rev. 441.

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