Jour. Ch. (n. s.) 255; Stephens v. Peel, 16 Law Times Rep. (n. s.) 145; Purser v. Brain, 17 Law Jour. Ch. 141. In the Brooklyn White Lead Co. v. Masury, 25 Barb. 416, the plaintiffs distinguished the lead of their manufacture by a label bearing their corporate name. The defendant had been in the habit of marking his lead, "Brooklyn White Lead," to which no objection was made. Afterwards he placed on his labels the words "Brooklyn White Lead and Zinc Co.," and this use of the word "Co.," the defendant not being a corporation, was held a fraudulent imitation of the plaintiff's mark. In most of the cases the imitations of the trade-mark complained of have been accompanied also by the use of similar wrappers, and by close imitations of the style of printing labels, putting up goods, etc. In Coffeen v. Brunton, 4 McLean, 516, the names of the medicines sold by the plaintiff and the defendant, respectively, were entirely dissimilar, and the injunction granted was based entirely upon the general similarity of the labels and wrappers, and on the representations contained in them. In Woollam v. Ratcliff, 1 Hem. & M. 259, the injury complained of was a fraudulent imitation of the plaintiff's peculiar manner of putting up silk in bundles. The court said : "It is not necessary that any specific trade-mark should be infringed; it is sufficient if a fraudulent intention of palming off the defendant's goods as the plaintiff's exist, but the imitation should be calculated to deceive." See also Boardman 9. Meriden Britannia Co. 35 Conn. 402.

(z) Burnett v. Phalon, 9 Bosw. 192, affirmed in 5 Abb. Pr. (n. s.) 212. The plaintiff made a preparation for the hair, which he called Cocoaine, and publicly advertised this as his trade-mark. The defendant commenced the manufacture of

Two questions, however, may arise and have arisen tinder this.

A man, believing that his goods have all the excellence of certain other goods of high esteem in the market, may wish to bw say that his goods are as excellent as those of the * other maker. He may lawfully say this; and if this is all he says, even if he says what is not true, his conduct is no such violation of another's right as to be protected by the law of trade-marks. He may desire to say this impressively, and to draw attention to the comparison, and for that purpose use enough of the other's mark, or of an imitation, to show what it is he claims to equal or surpass. And if he so says this, and with such addition of his own name or other designation as shall indicate that he himself and not the other makes the goods he offers, he violates no right. (a) The essential question always is, Does he honestly exhibit himself as the maker of the goods? or does he only pretend to do this, and do it in such a way as to mislead the public into the mistake of supposing the man makes them who owns and uses the trade-mark lawfully, but does not in fact make these goods? It is precisely the attempt to shelter the violator in this way, and under this pretence, which gives rise to most of the colorable imitations of trade-marks. And there is no doubt that a man may, in this way, make a fraudubx lent use of his own name. (b) *No certain line can a similar article under the name of Cocoine, and prefixed his own name as manufacturer. The remaining portions of the respective labels were entirely dissimilar. See ante, p. bc, note (cc). 80 in Gillott v. Esterbrook, 47 Barb. 455, affirmed in 48 N. Y 374; the number 303 was the only part of the plaintiff's trademark, which the defendant placed upon the pens made by him, and the use of this was restrained by an injunction.

(a) Canham v. Jones, 2 Ves. & B. 218; The Merrimac Man. Co. v. Garner, 2 Abb. Pr. 318; Havel v. Harrison, 19 Eng. L. & Eq. 15. See also Burgess v. Burgess,

17 Eng. L. & Eq. 257; Wolfe v. Goulard,

18 How. Pr. 64; Perry v. Truefitt, 6 Beav. 66. But where the defendant's label represented his goods as equal to those of the plaintiff, but the words "equal to" were printed in very small letters, an injunction was granted. Day v. Binning, 1 Cooper's Ch. Rep. 489. So Glenny v. Smith, 11 Jur. (n. s.) 964. So where the terms of the comparison were such as to lead to the inference that the defendant's goods were prepared by the plaintiff.

Franks v. Wearer, 10 Bear. 297. Where there is a fraudulent imitation of the plaintiff's trade-mark, it is no defence that the defendant's foods are equal in quality to those made by the plaintiff. Blofield v. Payne, 4 B. & Ad. 410; Taylor v. Carpenter, 2 Sandf. Ch. 603; 2 Wood. & M. 1; Partridge v. Menck, 2 Sandf. Ch. 622.

(6) In Croft v. Day, 7 Beav. 84, Lord Langdale says: "The defendant has a right to carry on the business of a blacking manufacturer honestly and fairly; he has a right to the use of his own name. I will not do anything to debar him from the use of that, or any other name, calculated to benefit himself in an honest way; but I must prevent him from using it in such a way as to deceive and defraud the public, and obtain for himself, at the expense of the plaintiffs, an undue and improper advantage." So Sykes v. Sykes, 3 B. & C. 541; Holloway v. Holloway, 13 Beav. 213; Clark v. Clark, 25 Barb. 76 ; Howe v. Howe Man. Co. 50 Barb. 236. On the other hand, where both parties bear the same name, but no fraudulent

• 257 bx be drawn here. It is a question of fact rather than of law. But this question always is, Is the mark or designation complained of, such as would naturally mislead a customer by the false and simulated appearance of the article he buys?

If it would cause this deception, another question arises: Must this deception be intentional, and therefore fraudulent? It is not difficult to suppose that one who makes certain goods may affix to them a mark which is already understood as indicating that they have peculiar merit, without intending to deceive any one as to their manufacture. The authority, and we think the better reason, would lead to the conclusion, that if this be a deception in fact, though not in intent, the law should protect the public against it. (c)