We are not aware of any modern case in which a customer deceived by a simulated trade-mark has brought an action for the fraud. (h) But actions by the party possessing or claiming to possess the exclusive right to use a certain trade-mark, for a fraudulent use of the same or a similar mark, are common both

Garner, 2 Abb. Pr. 318; Swift v. Dey, 4 Robt. 611. A similar role is laid down by Lord Chancellor Cranworth, in Seizo v. Provezende, Eng. Eq. Rep. 1 Ch. App. 191. "What degree of resemblance is necessary, from the nature of things, is a matter incapable of definition a priori. All that courts of justice can do is to say that no trader can adopt a trade-mark so resembling that of a rival as that ordinary purchasers, purchasing with ordinary caution, are likely to be misled." Welch v. Knott, 4 Kay & J. 747. See Lond. & Prov. Law Assurance Co. v. Lond. & Prov. Joint-Stock Life Ins. Co. 11 Jur. 938. It is well settled that it is no defence to a suit for the infringement of trade-marks, that wholesale dealers would not be deceived if the resemblance be such as to impose upon ordinary purchasers buying from them. Sykes v. Sykes, 3 B. & C 541; Shrimpton v. Laight, 18 Beav. 164; Coatee v. Holbrook, 2 Sandf. Ch. 586; Taylor v. Carpenter, 2 Wood. & M. 1; Clark v. Clark, 25 Barb. 77. But otherwise, where the mistake arises from the employment of words to which both parties have an equal right. Amoskeag Co. v. Spear, 2 Sandf. 8. C. 608; Stokes v. Landgraff, 17 Barb. 608.

(ff) Faber v. Faber, 49 Barb. 357.

(g) Farina v. Silverlock, 1 Kay & J. 509, 4 Kay & J. 650. The defendant in this case printed and offered for sale labels exactly imitating those used by the plaintiff upon his Cologne water. So, too, a party has been enjoined from marking an inferior quality of the plaintiff's goods as the superior quality. Gillott v. Kettle, 3 Duer, 624. The owner of a trade-mark has his remedy against a seller of the goods fraudulently marked, as well as against the maker of them. Coates v. Holbrook, 2 Sandf. Ch. 586; Ainsworth v. Walmsley, Eng. Eq. Rep. 1 Eq. Cas. 518; Jurgenson v. Alexander, 24 How. Pr. 269; Burgess v. Hills, 26 Beav. 244; Matsell v. Flanagan, 2 Abb. Pr. (n. s.) 459; Oldham v. James, 13 Irish Ch. 393; 14 id. 81.

(h) See Southern v. How, ante, note (6), p.6a.

•257 cb at law and in equity; and we do not know that the statute will greatly affect the law or practice of courts in this respect.

If the action be at law, the remedy sought is damages. And it has been held that the plaintiff has a right to recover some damage, although no actual damage is proved. (i)

If the action be in equity, an injunction is sought to restrain and prevent the continued use of the fraudulent trade-mark. It would seem that, in the year 1742, equity not only refused such an injunction, but the Lord Chancellor said he had never known an instance where such an injunction had been granted. (j) But recently a court of equity has always granted this remedy, if a case were made out; and then, having equitable jurisdiction of the case, the court would not send the plaintiff into a court of law to recover damages, but would proceed to inquire whether damages have been sustained, and, if they have been, would decb cree * compensation. Upon this inquiry as to damages the court would use the means common in equity practice. It will require an exhibition of books, of accounts and sales, and, if necessary, refer the case to a master, to take evidence and report thereon whatever may enable the court to do justice between the parties. (k) As the equity for the account is strictly incident to the injunction, if this be refused no account will be given. (l) Nor in equity will anything be recovered beyond the actual damages. (m) Where no fraudulent intent appears, no account will be granted. (n)

(i) Blofield v. Paine, 4 Barn. & Ad. 410. This was an action at law, in which the jury had found for the plaintiff, with one farthing damages. On a motion for a nonsuit, Littledale, J., said: "I think enough was proved to entitle the plaintiff to recover. The act of the defendant was a fraud against the plaintiff; and if it occasioned him no specific damage, it was still, to a certain extent, an injury to his right. There must be no rule. So Rodgers v. Nowill, 5 Man. Gr. & Si. 108. In Taylor v. Carpenter, 2 Wood. & M. 1, the court say: "In a case like this, if in any, no reason exists for giving damages greater than hare been actually sustained, or what have been called compensatory." "If by exemplary damages was meant a full indemnity for the individual wrong in every equitable view, and thus, by such an example, operating in a preventive manner the more effectually against the repetition of such injuries, then no error happened on the part of the court below."

(j ) Blanchard v. Hill, 2 Atk. 4S4.

(k) Taylor v. Carpenter, 2 Sandf. Ch. 611; Burnett v. Phalon, 9 Bosw. 192; Gillott v. Esterbrook, 47 Barb. 455, affirmed in 48 N. Y. 374; Bayly v. Taylor, 1 Russ. & M. 78; Adams's Equity, 219.

(l) Bayly v. Taylor, 1 Ross. & M. 73.

(m) The Leather Cloth Co. v. Hirschfield, Eng. Eq. Rep. 1 Eq. Cas. 299.

(n) Says Lord Chancellor Westbury in Edelston v. Edelston, 1 De G. J. & S. 185: "Although it is well founded in reason, and also settled by decision, that if A has acquired property in a trade-mark, which is afterwards adopted and used by B, in ignorance of A's right, A is entitled to an injunction, yet he is not entitled to any account of profits or compensation, except in respect of any use by B after he has become aware of the prior ownership." So Moet v. Couston, 33 Beav. 578; but in the case of Cartier v. Carlile, 31 Beav. 292, decided two years before Moet v. Couston, the same judge, Sir J. Romilly, held otherwise.

co

As to costs, if the plaintiff's right to the trade-mark be established, the English courts give the plaintiff the costs of his application for injunction, even if the defendant be innocent of fraudulent intent, and had no notice of the plaintiff's claims. (o) But if the defendant on receiving such notice offers to pay the plaintiff's costs already incurred, and give up all further use of the mark, he will not be required to pay any farther costs in the suit. (p)