The action to restrain such an unfair competition may be brought either by oness or all 89 of the merchants who are entitled to the use of the name of the locality and are using it upon the same class of merchandise. § 71. When relief will be granted against fraudulent use of geographical names. It would be a vain task to enumerate the various forms of misuse of geographical names which have been enjoined. An examination of the cases will show the versatility of the fraudulent dealer in devising schemes to deceive the public and deprive the legitimate dealer of his trade. The printing of an American label in the French language has been treated as evidence of unfairness in competition against French exporters to the United States; 90 and so of the manufacture of "Canadian Type" whiskey in the United States, to be sold as a substitute for "Canadian Club; 91 and the statement upon a package that its contents were Chicorien Kaffee aus der fabrik von E. B. Muller & Co., in Roulers (Belgien)," was held to be misleading and unfair where the facts showed that the only part of the manufacture done in Belgium was to "harvest" the chicory root, the other processes being done in the United States.92 In brief, it is particularly true of the subject under discussion that "a court of equity keeps pace with the rapid strides of the sharp competitors for the prize of public favor and insists that it shall be won only by fair trade.” 93 Some of the cases are cited in the footnote.94 66 90-Klotz v. Hecht, 73 Fed. Rep. 822. 91-Hiram Walker & Sons V. Grubman, 224 Fed. Rep. 725; Hiram Walker & Son v. Grubman, 222 Fed. Rep. 478 92-Scheuer v. Muller 74 Fed. Rep. 225-228; 20 C. C. A. 161. 93-R. Heinisch's Sons Co. v. Boker, 86 Fed. Rep. 765-768. 94-Anheuser-Busch Brewing Ass'n v. Piza, 24 Fed. Rep. 149; A. F. Pike Mfg. Co. v. Cleveland Stone Co., 35 Fed. Rep. 896; Southern White Lead Co. v. Cary, 25 § 72. Proper names as trademark. It is a self-evident proposition that every one has the right to use his own name for purposes of trade. It was held by Vice-Chancellor Wood that a man's own name might be his trademark even when united with other words, themselves generic and hence incapable of exclusive appropriation. In sustaining the words "Ainsworth's Thread" as a trademark he said: "Is not a man's name as strong an instance of trademark as can be suggested?-subject only to this inconvenience, that if a Mr. Jones or a Mr. Brown relies on his name, he may find it a very inadequate security, because there may be several other manufacturers of the same name." 95 But any name may be used by any one who cares to designate himself by it, and in this sense a proper name can never be an essential part of a trademark, 96 because, as we have seen, a valid trademark must be exclusive, as against all the world. The decisions as to this are conflicting, very confusing, and in many instances the result of careless use of language. Thus Chancellor Westbury said: "It is true that a name or the style of a firm may by long usage become a mere trademark." 97 In another case the same learned chancellor said: "A name, though originally the name of the first maker, may in time become a mere trademark or sign of quality, and cease to denote or to be current as indicating that any particular person is the maker. In many cases a name once affixed to a manufactured article continues Fed. Rep. 125; Same v. Coit, 39 Fed. Rep. 492; City of Carlsbad v. Thackeray, 57 Fed. Rep. 18; Cahn v. Gottschalk, 2 N. Y. Supp. 13; Hiram Walker & Sons v. Mikolas, 79 Fed. Rep. 955; Von Mumm v. Frash, 56 Fed. Rep. 830; Lea v. Wolff, 15 Abb. Pr. N. S. 1; 46 How. Pr. 147; Seb. 407; Anheuser-Busch Brewing Co. v. Fred Miller Brewing Co., 87 Fed. Rep. 864; Manitowoc Pea-Packing Co. v. William Numsen & Sons, 93 Fed. Rep. 196; 35 C. C. A. 267. 95-Ainsworth v. Walmsley, L. R. 1 Eq. 518; 35 L. J. Ch. 352; 12 Jur. N. S. 205; 14 L. T. N. S. 220; 14 W. R. 363; Seb. 257. 96-"In a technical sense, there can be no trademark in the name of a person, because all such names are generic, and because speaking in a general sense, every person has the right to use his Own name for the purposes of trade." Davis, J., in Drake Medicine Co. v. Glessner, 68 Ohio St. 337; 67 N. E. Rep. 722. 97-Leather Cloth Co. v. American Leather Cloth Co., 4 DeG. J. & S. 137-142; Seb. 223. to be used for generations after the death of the individual who first affixed it.''98 In the first named case, any one named "Ainsworth" might lawfully use the word as a trademark. He would be restrained only where he resorted to unfair competition by so preparing or advertising his thread as to deceive customers into the belief that they were buying the thread made by another Ainsworth. As to the dicta of Lord Westbury, they are meaningless, for the same reason. If a man's name is not a valid trademark for his goods in his lifetime, because any one of the same name may use it for the same purpose, how can it possibly become a trademark in the use of his successors after his death? Portrait as trademark.-This section of our text has been cited in sustaining as an arbitrary and valid trademark a mark in which the distinctive feature was the manufacturer's portrait.9 98a § 73. "Secondary Meaning" doctrine applied to proper names.-The theory upon which proper names are protected in equity has been thus admirably stated: "A surname is not the subject-matter of a technical trademark. This is due to the fact that it can not be a clearly distinguishing mark on goods, inasmuch as any one bearing the name has a right to use it in connection with property of his manufacture. It may, however, by appropriation and actual exclusive use, in course of time come to denote in the minds of the public, the product of some particular person or factory or business, and thus acquire a secondary signification. Such a secondary signification, when established, is the subject-matter of exclusive right."99 To this may be added the very apt dictum of Judge Baker: "If his trade creates a new meaning for the name, then he is entitled to just as full protection in the use of that meaning as if that were the only one. Others may use the common word in its common meaning, but they can not use it in the particular meaning created by the complainant. As to this doctrine, as recognized in the English cases, we find this admirable summing up by Lord Parker: "Independent of any trademark legislation, whenever a person uses upon or in connection with his goods some mark which has become 98-Hall v. Barrows, 4 DeG. J. & S. 150 33 L. J. Ch. 204; 10 Jur. N. §. 55; 9 L. T. N. S. 561; 12 W. R. 322; 3 N. R. 259; Seb. 215. 98a-M. B. Fahey Tobacco Co. v. Senior, 252 Fed. Rep. 579 (C. C. A. 3). 99-Mack, J., in Chickering v. Chickering & Sons, 131 C. C. A. 538, 542: 215 Fed. Rep. 490, 494; Andrew Jergens Co. v. Woodbury, Inc., 273 Fed. Rep. 952, 967. 1-Hanover Star Milling Co. v. Allen & Wheeler Co., 125 C. C. A. 515; 208 Fed. Rep. 513. generally known to the trade or to the public as his mark, and thus operates to distinguish his goods from the goods of other persons, he is entitled in equity to an injunction against the user of the same or any colorable imitation of the same which is in any manner calculated to deceive the trade or the public. Equity has never imposed any limitation on the kind of word entitled to this protection, but in every case it has to be proved that the mark has by user become in fact distinctive of the plaintiff's goods." 2 § 74. Names of celebrities.-Far different is the rule as to names which are those of celebrities, their use as trademarks being universally recognized.3 Yet here the scientific objection remains that any one bearing the name of the ill-fated Corsican would have the undoubted right to manufacture "Napoleon" cigarettes, notwithstanding the prior appropriation of that word as a trademark by another manufacturer. If the words "Emperor Napoleon" were so appropriated, they would undoubtedly be good as against the world.1 2-Registrar v. Du Cros, Ltd., 83 L. J. Ch. 1. 3-" "Roger Williams,' though the name of a famous person, long since dead, is, as applied to cotton cloth, a fancy name, as would be so applied the names of Washington, Greene, Perry, or of any other heroes, living or dead." Ames, C. J., in Barrows v. Knight, 6 R. I. 434; Cox, 238; Seb. 184. It has been so held of the word "Bismarck" (used as a trademark for paper collars) during the life-time of Bismarck. Messerole v. Tynberg, 36 How. Pr. 14; 4 Abb. Pr. N. S. 410. 4-The learned English barrister Sebastian, in his work on trademarks, thus states the rule: "There is between a name of an individual or firm used as a trademark, and a fancy name or arbi trary symbol used for the same purpose, a broad distinction which was early perceived and which caused some difficulty in the universal acceptance of a name as an efficacious trademark. The difference is, that a name is in its very nature generic, and is properly applied to designate, not one individual in the world, but, it may be, many thousands, to all of whom it is equally appropriate. The addition of the christian to the surname does, indeed, diminish the number of persons to whom the appellation belongs; but the christian name is commonly abbreviated to an initial letter, and in any case, the surname is the important part of the name, beyond which many persons do not care to investigate." Sebastian, Trademarks (4th ed.), 24. § 75. In general, of one's own name.-Although the custom is universal for male persons to bear the name of their parents, there is nothing in the common law prohibiting a man from taking any other name he may choose. This doctrine has long been settled beyond peradventure. It is, of course, equally certain that one must not use his name so as to work a fraud upon others of the same name. Subject Lin 5-England v. New York Pub. The right to assume a name.— which our Du Boulay 244. 6-The doctrine is well settled that "every one has the absolute right to use his own name honestly in his own business, even though he may thereby incidentally interfere with and injure the business of another having the same name; in such case the inconvenience or loss to which those having a common right are subjected is damnum absque inju ria. But although he may thus use his name, he can not resort to any artifice or do any act calculated to mislead the public as to the identity of the business firm or establishment, or of the article produced by them, and thus produce injury to the other beyond that which results from the similarity of name." Devens, J., in Russia Cement Co. v. Le Page, 147 Mass. 206-208; 17 N. E. Rep. 304; quoted and followed in Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169187; 41 L. Ed. 118. This is the rule announced in Burgess v. Burgess, 3 DeG. M. & G. 896; 22 L. J. Ch. 675; 17 Jur. 292; 21 L. T. 53. And see Linoleum Mfg. Co. v. Nairn, 7 Ch. Div. 834-837; 47 L. J. Ch. 430; 38 L. T. N. S. 448; 26 W. R. 463; Dig. 536; Croft v. Day, 7 Beavan, 84; Dig. 76; Holloway v. Holloway, 13 Beavan, 209; Dig. 106; Wotherspoon v. Currie, L. R. 5 H. L. 508; Montgomery v. Thompson, (1891) App. Cas. 217; Rogers v. Rogers, 53 |