with the bricks of Babylon and Rome, and lead pipe whereever produced... Other markings by way of lettering have a wide range of significance, frequently indicating ownership of the particular article and nothing more.

We walk in almost absolute darkness along these dim historic trails. On every hand are signs that show the coming importance of trademarks. But Rome is to reach her zenith and her debacle, the Middle Ages are to intervene, the new world beyond the Atlantic is to be discovered, modern Europe is to be reorganized by states and peoples, before we next reach traces of the use of identifying marks in trade. Even then the law of trademarks will not come into existence until generations of traders have come and gone.

The history of the law of trademarks is pretty accurately at our service. The history of the early use of trademarks has never been written, and most of its evidences have crumbled into dust. For those illuminating examples of ancient marks preserved to us, the labor of the archæologist alone is responsible, and to him our appreciation is due.

§ 2. The need of legal restraint of unfair trade. It is not the spirit of our laws to interfere with fair competition. It is for the best interests of society that prices should be adjusted by the economical laws of supply and demand. With limitations that have been imposed by varying local conditions, tempered by the caprices of legislation and the idiosyncrasies of judges, our common and statutory law alike condemn contracts in restraint of trade, and monopolies, complete or partial. But, on the other hand, there are recognized property rights which are of necessity monopolistic in their character. The most notable are those created by the patent and copyright laws, which grant, for a limited time, a monopoly in the production of the brain of the author or inventor. The value of these laws in the advancement of science, manufacture and art is universally recognized. Closely allied to these rights is the right of those engaged in commerce to be subjected to none but fair competition.

Unfair competition consists in passing off one's goods as the goods of another, or in otherwise securing patronage that should go to another, by false representations that lead the

patron to believe that he is patronizing the other person. It is of vital importance to healthy business conditions that such competition should be suppressed. It is equally important, however, that fair competition shall not be interfered with. Whether the competitive acts complained of are fair or unfair is the controlling issue in each litigated case.*

It is apparent that the simplest means of depriving another of the trade he has built up is to copy the marks he places on his merchandise. This is the easiest method of stealing his trade, and most universal because of the general use of marks or brands upon personal property. The use of such marks runs far back into the shadows of history, and to the period when a knowledge of written language was unusual among tradesmen. It is only natural that these marks used in trade, or trademarks, should have first become the subjects of judicial consideration, and that the law concerning them should have reached a state of comparatively complete development before infringers began to employ other and more obscure. means to divert trade.

It is true, as well, that the development of the law of the technical trademark tended to encourage the buccaneers of commerce to invent new and subtler means of stealing another's trade without trespassing upon his trademark rights. But the law, steadily though slowly, extended its bulwark of protection about the legitimate trader, until at length he was afforded legal redress in some form, not always adequate or complete, against the fraudulent diversion of his trade, in whatever form it might appear.

In the light of these facts it is self evident that the law of the technical trademark must first be mastered before the student can with understanding study the gradual evolution, from this protoplasm, of the larger law regulating all unfair competition in trade.

From the early days of commerce, probably from its beginning, the keen rivalry of competing merchants has led to the use of unfair and dishonest methods of diverting custom. With the growth of commerce has come a corresponding increase of fraudulent competition and its attendant evils. The English speaking people were slow to realize that some legal

*-This paragraph has been adopted as "a fair statement" by the Supreme Court of Appeals of

Virginia, in Eenj. T. Crump Co. v. J. L. Lindsay, Inc., 130 Va. 144; 107 S. E. Rep. 679.

restraint should be imposed upon the dealer who seeks to secure patronage by dressing his goods in a manner calculated to deceive the public into a belief that they are the goods of another. There are a few unimportant unfair trade cases in the English reports of the eighteenth century; the first reported American decision was rendered in 1825.1 The law as it is administered by the courts of the United States today is almost wholly the product of the last half century.

The purpose of this treatise is to discuss the law of unfair trade in its broadest sense, including not only the law of trademarks, but also the principles applicable to the restraint of fraudulent competition in cases where no trademark is involved. "The law of trademarks is but part of the law of unfair competition in trade." 2

§ 3. Trademark defined.3-A 1-Snowden v. Noah, Hopkins Ch.

347.

2-Bradford, J., in Dennison Mfg. Co. v. Thomas Mfg. Co., 94 Fed. Rep. 651, 659.

"The entire substantive law of trademarks (excepting statutory provisions and construction) is a branch of the broader law of unfair competition. The ultimate offense always is that defendant has passed off his goods as and for those of the complainant." Denison, J., in Merriam Co. v. Saalfield, 198 Fed. Rep. 369; 117 C. C. A. 245; C. C. A. 6. See also Peters Mill Co. v. International Feed Co., 262 Fed. Rep. 336, 339.

"A

3-Judicial definitions. trademark may consist of a name, symbol, letter, form or device, if adopted and used by a manufacturer or merchant in order to designate the goods he manufactures or sells, to distinguish the same from those manufactured or sold by another, to the end that the goods may be known in the market as his, and to enable him to secure such profits as result from his reputation for skill, industry, and fidelity." Mr. Justice Clifford in McLean v. Fleming, 96 U. S. 245, 254; 24 L. Ed. 832; and in Amos

trademark is a distinckeag Mfg. Co. v. Trainer, 101 U. S. 51, 60; 25 L. Ed. 993.

"A trademark, properly so called, may be described as a particular mark or symbol, used by a person for the purpose of denoting that the article to which it is affixed is sold or manufactured by him or by his authority, or that he carries on business at a particular place." Lord Cranworth in Leather Cloth Co. v. American Leather Cloth Co., 35 L. J. Ch. 61.

"A trademark is a mere notice, an arbitrary mark or sign put on an artificial product, whereby any person interested in the information may be assured as to the origin of said product." Showalter, J., in Royal Baking Powder Co. v. Raymond, 70 Fed. Rep. 376, 380.

"A trademark is a peculiar name or device, by which a person dealing in an article designates it as of a peculiar kind, character or quality, or as manufactured by or for him, or dealt in by him, and of which he is entitled to the exclusive use." Devens, J., in Weener v. Brayton, 152 Mass. 101, 102.

"A trademark is a form, symbol or name appropriated by one who produces or deals in a particular thing, or conducts a particular business, to designate the origin or