When the rule is stated in this way, it comes back to the criginal question, the degree of care expected of the consuming purchaser. But the true test of likelihood of deception is always to view the possibility of such deception from the standpoint of the consumer, and not from that of the "trade expert. 89 The application of this rule has sometimes gone far afield from the ancient rule that if a mark contained twenty-five parts, and but, one was taken by the defendant, it constituted infringement. Thus in a Missouri case the plaintiff's mark for cigars was the name "Union Station" and the picture of a building known by that name. The defendant's label had a smaller picture of the same building, and the words "The Gilpin-Union Station." Each party displayed his own name or initials on the package. The facts recited in the opinion make out a typical case of technical trademark infringement, yet the court denied the relief sought solely on the ground of the differences in the labels, though the conceded facts show the defendant to have appropriated all of the technical trademark matter of the plaintiff's label.90 From all of which may be deduced the rule that common elements are not conclusive of the charge of infringement. It has been so held where both parties used a star and crescent on tobacco, and both brands were designed to attract Mohammedan trade." 90a But a dominant feature common to both marks is usually controlling as to infringement.b § 128. The degree of care expected of the purchaser.Mr. Justice Clifford expressed the rule in these words: "What degree of resemblance is necessary to constitute an infringement is incapable of exact definition as applicable to all cases. Mr. Justice Clifford in McLean v. Fleming, 96 U. S. 245; 24 L. Ed. 828. 89-Cuervo v. Owl Cigar Co., 68 Fed. Rep. 541. 90-Nicholson v. Wm. A. Stickney Cigar Co., 158 Mo. 158; 59 S. W. Rep. 121. 90a-Dart v. Luckett-Wake Tobacco Co., 263 Fed. Rep. 698, C. C. A. 4. 90b-Rosenblum V. Rosenblum, 253 Fed. Rep. 863; Ammon & Person v. Narragansett Dairy Co., 252 Fed. Rep. 276, 278; 262 Fed. Rep. 880 (C. C. A.); General Baking Co. v. Gorman, 295 Fed. Rep. 168, 172. All that courts of justice can do in that regard is to say that no trader can adopt a trademark so resembling that of another trader as that ordinary purchasers buying with ordinary caution are likely to be misled." 91 But further, in the same opinion, he bases the decision explicitly upon the ground that the defendant's package "is well calculated to mislead and deceive the unwary." 92 In the language of Judge Thomas, "The usual purchaser neither abstracts, or analyzes for the purpose of differentiation and judgment." 93 Judge Knappen has said "the protection accorded to a trademark is not limited to the cautious and discriminating customer, but embraces the 'ordinary' or 'unwary' purchaser as well.'' 94 It has also been extended to the careless and illiterate purchaser.94a There are many instances of similar dicta. We have heretofore referred to the assertion of Vice-Chancellor Shadwell, who said that "If a thing contains twenty-five parts, and but one is taken, an imitation of that one will be sufficient to contribute to a deception, and the law will hold those responsible who have contributed to the fraud." 95 It is at this point that we can secure probably the most striking proof of the manner in which the law of trademarks and the law of unfair competition overlap each other. True, the function of the trademark is to distinguish the goods to which it is applied, and whose origin or ownership it indicates. True that the purpose of an intentional infringement is to draw away the 91-McLean v. Fleming, 96 U. S. 245-251; 24 L. Ed. 828; following the language of Lord Cranworth in Seixo v. Provezende, L. R. 1 Ch. D. 192. See also Popham v. Wilcox, 14 Abb. Pr. N. S. 206; 38 N. Y. Super. Ct. 274; 66 N. Y. 69; 23 Am. Rep. 22; Seb. 425; Dawes v. Davies, Seb. 426. 92-McLean v. Fleming, 96 U. S. 245, at p. 256; 24 L. Ed. 832. 93-Cantrell & Cochrane v. Butler, 124 Fed. Rep. 290. 94 DeVoe Snuff Co. v. Wolff, 124 C. C. A. 302; 206 Fed. Rep. 420, 424. 94a-Glenton & Mitchell v. Keshavjee, So. African L. R. (Transvaal Div.) 1918, 263. 95 Guinness v. Ullmer, 10 L. T. 127. See also Leather Cloth Case 11 H. L. C. 523; 35 L. J. Ch. 53; 11 Jur. N. S. 513; 12 L. T. N. S. 742; 13 W. R. 873; Popham v. Wilcox, 66 N. Y. 69. trade secured by the infringed mark for the benefit of the owner of the infringing mark. That infringement is to be determined, not by the question whether any substantial part of the trademark is copied or duplicated by the infringing mark, but by the tendency of the pirated mark to deceive (whether the careful, ordinary or unwary purchaser is immaterial), is an anomaly in our jurisprudence. But the courts have persisted in disregarding the technical composition and detail of trademarks, and have invariably applied the test of tendency of the suspected mark to deceive. The test ignores the absolute right of property which exists in a lawful trademark, and gives the owner of such a mark no other or further rights than are given the plaintiff who uses only generic terms to designate his wares and perforce relies upon the doctrines of unfair competition.96 The broad rule as stated above by Mr. Justice Clifford has been elaborated by other courts. In some cases no reference is made to the care and caution expected to be exercised by the purchasing public, while in others it is held that it must. be shown that the mark employed bears such resemblance to the complainant's trademark "as to be calculated to mislead the public generally who are purchasers of the article;"98 sometimes it has been expressed as the deception of "the ordinary mass of purchasers;" 99 or, as by the Massachusetts court, that injunction will not lie "unless the form of the printed words, the words themselves, and the figures, lines 96-Lord Westbury evidently was impressed with this thought when he said, "Imposition on the public is necessary for the plaintiff's title, but in this way only, that it is a test of the invasion by the defendant of the plaintiff's right of property; for there is no injury if the mark used by the defendant is not such as is mistaken, or is likely to be mistaken, by the public for the mark of the plaintiff; but the true ground of this court's jurisdiction is property." Hall v. Barrows, 4 DeG. J. & S. 150. 97-Ransome v. Bentall, 3 L. J. Ch. N. S. 161; Seb. 53; Taylor v. Carpenter (3), 2 Sandf. 603; 11 Paige, 292; Cox, 45; Seb. 84; Coffeen v. Brunton, 5 McLean, 256; Cox, 132; Seb. 109; Shrimpton v. Laight, 18 Beav. 164; Hardy v. Cutter, 3 Off. Gaz. 468; Heinz v. Lutz, 146 Pa. 592; 23 Atl. Rep. 314. 98-Walton v. Crowley, Fed. Case No. 17,133; 3 Blatchf. 440-447; Compania de Tobacos v. Rehder, 5 R. P. C. 61; Cartmell, 103. 99-Blackwell v. Wright, 73 N. C. 310-313; Crawshay v. Thompson, 4 Man. & G. 357; 5 Scott N. R. 562; 11 L. J. C. P. 301; Seb. 72. and devices, are so similar that any person, with such reasonable care and observation as the public generally are capable of using and may be expected to exercise, would mistake the one for the other."1 The irreverent layman could not fail to note the remarkable elasticity of the rule as thus laid down. And we find a court of repute holding that "it is the unwary, and not the wary, who are to be protected, as most likely to be taken in by the counterfeit;"3 and another saying that equity "should presume that the public makes use of the senses of sight and hearing, and that it is possessed of a sufficient amount of intelligence to note the difference these senses convey;"4 and Sir George Jessel saying: "I am not, as I consider, to decide cases in favor of fools and idiots, but in favor of ordinary English people, who understand English when they see it." 5 The best considered opinions seem to be those that insist upon fairness in trade even though the only persons likely to be deceived are those who can not read or write. 1-Gilman V. Hunnewell, 122 Mass. 139-148. It is only fair to note that this case was improperly brought as a trademark case, and is treated as such by the court, whereas the facts show that in junctive relief could only have been granted, if at all, to restrain the unfair competition of the defendant. It has been held elsewhere, however, that the relief will not be granted where the defendants' acts are such as could deceive only a careless purchaser. N. K. Fairbank Co. v. Luckel, King & Cake Soap Co., 88 Fed. Rep. 694. But this decision was reversed on appeal; s. c., 42 C. C. A. 276; 102 Fed. Rep. 327-332. 2-Substantially the same dictum is to be found in Ball v. Siegel, 116 Ill. 137-146; citing Popham v. Cole, 66 N. Y. 69 3-Swift v. Dey, 4 Robertson, 611; Cox, 319; Seb. 245. And un Judge Benedict has said: "It is 4-Munro v. Tousey, 129 N. Y. 38. 5-Singer Mfg. Co. v. Wilson, L. R. 2 Ch. D. 434; quoted with approval, Munro v. Smith, 13 N. Y. Sup. 708. 6-Walter Baker & Co. v. Puritan Pure Food Co., 139 Fed. Rep. 680, 683; Fischer v. Blank, 138 N. Y. 244; 33 N. E. Rep. 1040; Cox, Manual, Case No. 731. The English courts have devoted much time to speculating whether most Englishmen" would mistake the defendant's mark for the plaintiff's, or whether if the mark failed to deceive "most Englishmen" it still might mislead "the ordinary native purchaser in Bombay where the goods go," as has actually been done in the opinion of one court. Under the doctrine so stated, I will not be protected by injunction in a case where the defendant has not copied my trademark sufficiently in detail to deceive "most Englishmen," but if my goods are sold to natives of Africa I may have an injunction against him if he engages in that trade. If we were to undertake to deduce a general rule from the cases it would be that the test is the likelihood of deception of the consuming purchaser; and in applying this test all doubts are to be resolved in favor of the complainant." 8 Where goods are sold to skilled purchasers.-Where the consumers of the goods are experts, the danger of deception is lessened or eliminated. "We are not dealing here in merchandise or articles in common use, which are advertised and sold to the general and indiscriminating public, like shoes, breakfast food, chocolate, soap, candy, etc., articles which may easily be the subject of mistakes, but we are dealing with a valuable machine, involving a substantial expenditure of money, designed for a particular work, and purchased only by men who are mechanical experts, and know precisely what they want and what they are buying. It is a limited and specialized trade. The customers are men with trained mechanical eye and brain, who do not purchase a machine of this character and value without careful examination and consideration. These machines are not sold to middlemen, like ordinary articles of trade, but by the manufacturer to the user, either directly by the company or indirectly by its sales agents. The likelihood of palming off the 7-Wilkinson v. Griffith, 8 R. P. C. 370-374. 8-Allegretti Chocolate Cream Co. v. Keller, 85 Fed. Rep. 643; Collinsplatt v. Finlayson, 88 Fed. Rep. 693; N. K. Fairbank Co. v. R. W. Bell Mfg. Co., 23 C. C. A. 554; 77 Fed. Rep. 869-877; Hansen v. Siegel-Cooper Co. (1), 106 Fed. Rep. 690-691; Kostering v. Seattle Brewing & Malting Co., 116 Fed. Rep. 620; 54 C. C. A. 76. 9-Anheuser-Busch Brewing Assn. v. Piza, 24 Fed. Rep. 149-151. That injunction will be granted if the resemblance is "calculated to de ceive the unwary, the incautious, or the ignorant purchaser," see Cauffman v. Schuler, 123 Fed. Rep. 205. "Regard must be had to the nature and physical requirements of the article itself, its cost, the class of persons who purchase it, and the circumstances under which it is purchased.” Cornish, J., in Lapointe Mach. Tool Co. v. J. N. Lapointe Co., Me.—, 99 Atl. Rep. 348, 354. See also Barnes Co. v. Vandyck-Churchill Co., 207 Fed. Rep. 855, affirmed, 213 Fed. Rep. 637, 130, C. C. A. 301. |