to this restriction a man will never be restrained from the full enjoyment of his name, whether that name be that of his parents or adopted by himself. As stated by Turner, L. J.: "Where the defendant sells goods under his own name, and it happens that the plaintiff has the same name, it does not follow that the defendant is selling his goods as the goods of the plaintiff. It is a question of evidence in each case whether there is false representation or not.” 7 Hence we see. that the subject of this section is more properly treated under the head of unfair competition, and it is therefore considered in that connection in the next section.

§ 76. The use of proper names in trade. We have in the preceding sections given some consideration to the subject of proper names, considered with reference to their exclusive appropriation for mercantile purposes. The conclusion reached was that in a scientific sense there can be no trademark in a proper name, because all proper names are generic. The author believes that this rule is well sustained by the reasons he: etofore given at length. In their anxiety to effect perfect justice the courts have frequently said that such words were valid trademarks, but the reasoning of the opinions indicates that the use of the language adopted was careless and erroneous. The proper method of reading the class of

Conn. 121; 55 Am. Rep. 78; 33 Alb. L. J. 70; Gilman v. Hunnewell, 122 Mass. 139; Cox, 541; Meneely v. Meneely, 62 N. Y. 427; 1 Hun, 673; 2 Thomp. & C. 540; 62 N. Y. (17 Sickels), 427; 20 Am. Rep. 489; 2 Am. L. T. N. S. 482; Dig. 472; Pillsbury v. Pillsbury, 24 U. S. App. 395-404; Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537; 34 L. Ed. 997; 31 Fed. Rep. 776; Brown Chem. Co. v. Meyer, 139 U. S. 540; 35 L. Ed. 247; 31 Fed. Rep. 453; Coats v. Merrick Thread Co., 149 U. S. 562; 37 L. Ed. 847; 45 Off. Gaz. 347; Singer Mfg. Co. v. Larsen, Fed. Case No. 12902; 3 Bissell, 151-153; Price & Steuart, 72;

Singer Mfg. Co. v. Bent, 163 U. S. 205; 41 L. Ed. 131.

7-Burgess v. Burgess, 3 DeG. M. & G. 896; 22 L. J. Ch. 675; 17 Jur. 292; 21 L. T. O. S. 53; Cox, 117. A man can not sell his own name to another for the purpose of carrying on a rival trade against another bearing the name so attempted to be used. Melachrino v. Melachrino Cigarette Co., 4 R. P. C. 215; Cartmell, 223. Compare Goodwin v. Camp, 295 Fed. Rep. 785, 793 (C. C. A. 6).

8-Standinger v. Standinger, 19 Leg. Int. 85; Fulton v. Sellers, 4 Brews. 42; Candee v. Deere, 54 Ill. 439; Howe v. Howe Sewing Machine Co., 50 Barb. 236; Gillis v. Hall, 3 Brews. 509.

cases just referred to is to bear in mind that, while the courts recognized the law of unfair competition, they did not know or recognize it by that name. The tendency was to restrain fraudulent competition, but to restrain it by invoking trademark law. In the inaccurate reasoning of the courts, the fact that a man whose name was "R. P. Hall" came into equity seeking an injunction against a defendant bearing a different name, but printing "R. P. Hall" upon his merchandise, suggested that the easiest manner of disposing of the issues was to say that Hall had a trademark right in his own name, which right the defendant was infringing. So the defendant was very properly enjoined, justice was done, and the technical error of the decision was overlooked. For error it was, because the proper name Hall, even prefixed by the initials R. P., is a generic name which any one may use, provided that he does not use it as to pass off his goods upon the purchasing public as the goods of another.

If any further proof were needed to show the rule to be accurate, we could examine the cases in which the use of a proper name could not possibly give a right of trademark, because the name was not used in application to merchandise. One of the most striking instances of this kind is afforded by the case in which a theatrical combination was protected in the use of the name "Christy's Minstrels." 10

The doctrine under consideration has been condensed in these words: "No person can acquire a right to use his surname as a trademark or tradename, to the exclusion of others bear

ing the same surname.' While the mere right to use a name is not assignable,12 there are 12 there are no decisions asserting "that it may not be assigned to an outgoing partner or to a successor in business as an incident to its good will.'

§ 77. The proper name cases classified.-From this preliminary discussion of the principles of unfair competition we can now undertake to classify what we may term, for want of a better phraseology, the proper name cases.

(a) Where the defendant is using his own name in good faith. In these cases there is no unfairness in the competition between the parties, and the defendant will not be restrained, even if he has by expanding his business from retail to wholesale come into direct competition with the plaintiff.*

As stated by Judge Seaman, of the use of a proper name by persons bearing that name, it is "within their right, unless barred by contract or estoppel, or the use is deceptive or fraudulent.” 15 The Supreme Court of the United States has extended this rule to corporate names embodying proper names, thus: "We hold that, in the absence of contract, fraud, or estoppel, any man may use his own name in all legitimate ways, and as the whole or a part of a corporate name. Of course the rule does not avail a corporation whose "name is selected with an intention to mislead.” 17

16

An Indiana court has thus stated the rule under consideration:

"It may be stated as a general proposition that a man's name in his own property, and he has the right to its use and enjoyment the same as any other property right, and so long as such use be a fair and reasonable exercise of such right he can not be held liable for incidental damages to a rival in business using the same name, but he must make an honest use of his name, and not injure the goodwill and reputation of a rival by palming off his goods or business as that of such rival. Nor will he be permitted to use his name fraudulently so as to appropriate the goodwill of an established business of his competitor.

affirming s. c., 72 Fed. Rep. 903; Duryea v. National Starch Mfg. Co., 25 C. C. A. 139; 45 U. S. App. 649; 79 Fed. Rep. 651; affirmed, National Starch Mfg. Co. v. Duryea, 41 C. C. A. 244; 101 Fed. Rep. 117; Wm. Rogers Mfg. Co. v. Simpson, 54 Conn. 527; Foster v. Webster Piano Co., 13 N. Y. Supp. 338; 59 Hun, 624; Tussaud v. Tussaud, 38 W. R. 440; Iowa Seed Co. v. Dorr, 70 Ia. 481; Turton & Sons (Ltd.) v. Turton, 12 Ch. D. 128; Bingham School v. Gray, 122 N. Car. 699; 30 S. E. Rep. 304; 41 L. R. A. 243; Harson v. Halkyard, 22 R. I. 102; 46 Atl. Rep. 271; Von Faber v. Faber, 124 Fed. Rep. 603, 611; reversed in Von Faber-Castell v. Faber, 71 C. C. A. 383; 139 Fed. Rep. 257; Silver Laundry & Towel Co. v. Silver (K. C. Ct. App.), 195 S. W. Rep. 529 (not officially reported); Kelly-Springfield Tire Co. v. Kelley Tire & Rubber Co., 276 Fed. Rep. 826; Libby, McNeill & Libby v. Libby, Mass.

; 135 N. E. Rep. 120; Burns v. Burns Detective Agency, 235 Mass.

553; 127 N. E. Rep. 334; TharpBultman-Southeimer Co. v. TharpSoutheimer-Tharp, Inc., 147 La. 765; 85 So. Rep. 906; Furniture Hospital v. Dorfman, 179 Mo. App. 302, 306; 166 S. W. Rep. 861; Romeike v. Romeike, 251 Fed. Rep. 273; C. C. A. 2 (compare Henry Romeike v. Albert Romeike & Co., 179 App. Div. 712).

15-Hall Safe & Lock Co. v. Herring-Hall-Marvin Safe Co., 74 C. C. A. 361; 143 Fed. Rep. 231, 237.

16-Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118, 140; 49 L. Ed. 972. To the same effect, see Schinasi v. Schinasi, 155 N. Y. S. 867.

17-Lacombe, J., in Wm. Rogers Mfg. Co. v. R. W. Rogers Co., 66 Fed. Rep. 56, 57.

18-Deister Concentrator Co. v. Deister Mach. Co., 63 Ind. App. 403; 112 N. E. Rep. 909; citing Penberthy Injector Co. v. Lee, 120 Mich. 174; 78 N. W. Rep. 1074; Rogers v. Rogers, 53 Conn. 121; 1 Atl. Rep. 807; 5 Atl. Rep. 675; 55 Am. Rep.

Actual fraudulent intent to invade the good will of another by the use of the proper name in question is never material in this class of cases.19

But in this connection it should be observed that one who enters into competition with another person of the same name, who has an old and established business, is under an obligation to more widely differentiate his goods from those of the latter than is required of third persons having different names.20 A court of equity may direct a defendant, in such a case, how to use his name so as not to injure the complainant who bears the same name.2 21 This direction has at times taken the form of an injunction restraining the party at fault from using his name in connection with his product, except in conjunction with the words "No connection with the original (giving the name and location of the other party) or words of like import.22

Delay in bringing suit has been particularly emphasized as a ground for denying preliminary injunctions in cases of this class. 22a

78; 38 Cyc. 809; Brown Chemical Co. v. Meyer, 139 U. S. 540; 11 Sup. Ct. 625; 35 L. Ed. 247; Howe Scale Co. v. Wycoff, Seamans & Benedict, 198 U. S. 118; 25 Sup. Ct. 609; 49 L. Ed. 972; International Silver Co. v. Rogers, 72 N. J. Eq. 933; 67 Atl. Rep. 105; 129 Am. St. Rep. 722; L. E. Waterman Co. v. Modern Pen Co., 235 U. S. 88; 35 Sup. Ct. 91; 59 L. Ed. 142.

19-Dodge Stationery Co. V. Dodge, 145 Cal. 380; LePage Co. v. Russia Cement Co., 51 Fed. Rep. 941; 2 C. C. A. 555; Jameson v. Dublin Distillers' Co. (1900), Ir. Ch. 43.

20-Baker & Co. v. Baker, 77 Fed. Rep. 181; 78 Off. Gaz. 1427; Walter Baker & Co. v. Sanders, 26 C. C. A. 220; 80 Fed. Rep. 889-895.

21-Baker & Co. v. Baker, 77 Fed. Rep. 181; 78 Off. Gaz. 1427; Tarrant & Co. v. Hoff, 22 C. C. A. 644; 76 Fed. Rep. 959; affirming s. c., 71 Fed. Rep. 163; Walter Baker & Co. v. Sanders, 80 Fed. Rep. 889-894; City of Carlsbad v. Schultz, 78 Fed. Rep. 469. In the last named case Judge Coxe designed a label for the defendant's use, a copy of which is embodied in his opinion.

In another case Judge McPherson granted an injunctive order directing the defendant's initials and location to be printed or written in type of specified relative size. Baker v. Sanders, 97 Fed. Rep. 948. A similar direction is contained in International Silver Co. v. Wm. H. Rogers Corporation, 66 N. J. Eq. 119; 57 Atl. Rep. 1037; reversed in International Silver Co. v. Wm. H. Rogers Corp., 67 N. J. Eq. 646; 60 Atl. Rep. 187.

22-Allegretti Chocolate Cream Co. v. Keller, 85 Fed. Rep. 643. This paragraph quoted and approved by Ray, J., in Rushmore v. Saxon, 158 Fed. Rep. 499, 509. See also International Silver Co. v. Rogers, 72 N. J. Eq. 933; 67 Atl. Rep. 105; reversing International Silver Co. v. Rogers, 71 N. J. Eq. 560; 63 Atl. Rep. 977; Knabe Bros. Co. v. American Piano Co., 229 Fed. Rep. 23; and 232 Fed. Rep. 140 (C. C. A. 6); Coty v. Parfums De Grand Luxe, 292 Fed. Rep. 319.

'22a-C. O. Burns Co. v. W. F. Burns Co., 118 Fed. Rep. 944; KellySpringfield Tire Co. v. Kelley Rubber & Tire Co., 276 Fed. Rep. $26.