45-Moebius v. Louis De Jonge Supp. 164. & Co., 215 Fed. Rep. 443.

Thus it has been held that the mark "Filofloss," applied to silk, is a valid trademark notwithstanding the prior use of the mark "Filoselle" applied to silk of a different character;55 that the mark "Star" and an uncolored tin star is not infringed by "Starlight" and a red paper star; 56 that "B. T. Babbitt's Trademark Best Soap" is not infringed by "P. T. Butler's Trademark Best Soap";57 that the name "Social Register" applied to a directory is not infringed by the words "Newport Social Index";58 that the name "Vichy" was not infringed by "Lithia-Vichy", there being numerous artificial waters upon the market;59 that the mark "Rough-on-Rats" was not infringed by "Rough on Skeeters," the goods not being in competition,60 that the book title "Farthest North, Nansen," was not infringed by "The Fram 'Expedition.'"'61 While the word "Muffler" is closely similar to "Mufflet," and the latter is a valid trademark for neck-scarfs, the use of the former can not be enjoined because it is aptly descriptive of the article to which it is applied.62

For the same reason, "Poresknit" as a trademark for underwear, is not infringed by the words "Porous Underwear." 63

It is important to note in this connection the expression of Lord Cranworth, that "It would be a mistake to suppose that the resemblance must be such as would deceive persons who should see the two marks placed side by side. The rule so restricted would be of no practical use.

64

And another rule is that a defendant can not evade the charge of infringement by "showing that the device or inscription upon the imitated mark is ambiguous, and capable of being understood by different persons in different ways.

55-Rawlinson V. Brainard & Armstrong Co., 59 N. Y. Supp. 880; 28 Misc. Rep. 287.

56-Liggett & Myers Tobacco Co. v. Finzer, 128 U. S. 182; 32 L. Ed. 395.

57-Babbitt v. Brown, 68 Hun,

515.

58-Social Reg. Assn. v. Murphy, 128 Fed. Rep. 116.

59-La Republique Francaise v. Schultz (4), 115 Fed. Rep. 196. 60-Wells v. Ceylon Perfume Co., 105 Fed. Rep. 621.

1965

61-Harper v. Lare, 93 Fed. Rep. 989; Harper & Bros. v. Lare, 43 C. C. A. 182; 103 Fed. Rep. 203. 62-Hygienic Fleeced Underwear Co. v. Way, 70 C. C. A. 553; 137 Fed. Rep. 592, 595.

63-Chalmers Knitting Co. V. Columbia Mesh Knitting Co., 160 Fed. Rep. 1013.

64-Seixo v. Provezende, L. R. 1 Ch. D. 192.

65-Lord Watson in Singer Mfg. Co. v. Loog (3), 8 App. Cas. 39.

§ 139. Patent office rulings on similarity of alleged conflicting marks. The decisions of the several commissioners of patents as to similarity and dissimilarity of marks alleged to be conflicting or identical are frequently instructive and valuable as illustrations. In the language of Allen, Commissioner, "The question of anticipation by a prior registered mark may be tested by the question of infringement. The doctrine of the patent law that that which would infringe if later in date will anticipate if earlier is applicable to questions of trademark, for it involves only the question of substantial identity."66

In the following cases registration was refused upon a priorregistered mark because of the similarity adjudged by the Commissioner to exist between them:

§ 140. Miscellaneous matters relating to infringement.—In the cases of infringement it is manifest that the policy of the

66-Ex parte Keystone Chamois Co., 101 Off. Gaz. 3109.

67-Allen B. Wrisley Co. V. Buck, 95 Off. Gaz. 2483.

68-Ex parte Foley & Co., 87 Off. Gaz. 1957.

69-Ex parte Dr. Harter Med. Co., 106 Off. Gaz. 1779.

70-Ex parte Vogel & Son, 99 Off. Gaz. 2321.

71-Ex parte W. B. Belknap & Co., 105 Off. Gaz. 745.

72-Ex parte Sutton, 108 Off. Gaz. 291.

73-Wood v. Hinchman, 110 Off. Gaz. 600.

74-Ex parte Sodafoam Baking Powder Co., 96 Off. Gaz. 1239. 75-Ex parte Hutchins, 100 Off. Gaz. 1330.

76-Ex parte Willard Chem. Co., 107 Off. Gaz. 1972.

law is clear, and that difficulty in determining questions of infringement arises only out of the facts.

It was asked in the English House of Lords, "How can observations of judges upon other and quite different facts bear upon the present case, in which the only question is what is the result of the evidence?"" Analogies will, however, frequently be found in the adjudicated cases which may assist in classifying the character of infringement under consideration. Infringements which display the name or initials of the defendant are none the less infringements if any substantial portion of the mark is taken from the plaintiff's mark. This principle has been applied to a case where the defendant had washed plaintiff's labels off his bottles, leaving only the marks blown or moulded in the glass, and had pasted his own labels upon the bottles," although in similar cases, where the name of the defendant was conspicuously displayed on the new label, injunction was refused.so The fact that the defendant does display his name upon his goods is always to be considered as a circumstance in his favor.81

But where the addition of his name does not sufficiently dif ferentiate his product he may be enjoined.81a

Infringement applied to goods of equal quality.—It is settled that the fact that the defendant's goods are equal in quality to the plaintiff's is no defense to the action of infringement. As said by Judge McLean: "To entitle a complainant to protection against a false representation it is not essential that the article should be inferior in quality. And in an English case involving the manufacture of metallic hones, Lord Den

77-Lord Watson in Johnson v. Orr-Ewing, H. L. 7 App. Cas. 219.

78-Sawyer Crystal Blue Co. v. Hubbard, 32 Fed. Rep. 388; Anheuser-Busch Brewing Association v. Clarke, 26 Fed. Rep. 410; Garrett v. T. H. Garrett & Co., 24 C. C. A. 173; 78 Fed. Rep. 472; AnheuserBusch Brewing Association v. Piza, 24 Fed. Rep. 149; Hostetter V. Adams, 10 Fed. Rep. 838; Pepper v. Labrot, 8 Fed. Rep. 29; Shaw Stocking Co. v. Mack, 12 Fed. Rep. 707; McCann v. Anthony, 21 Mo. App. 83; Bass, Ratcliff & Gretton (Ltd.) v. Feigenspan, 96 Fed. Rep. 206.

79-Hostetter v. Anderson, 1 W. W. & A'B. Eq. 7; Seb. 652; Rose v. Loftus, 47 L. J. Ch. 576; 38 L. T. N. S. 409; Seb. 608; Rose v. Henly, Seb. 551.

1982

80-Welch v. Knott, 4 K. & J. 747; Barret v. Gomm, 74 L T. (Journal) 388.

81-"This is one of the important means of identification." Severens, J., in Proctor & Gamble Co. v. Globe Refining Co., 34 C. C. A. 405; 92 Fed. Rep. 357-362. And see Kann v. Diamond Steel Co., 89 Fed. Rep. 706; P. Lorillard Co. v. Pepper, 30 C. C. A. 496; 86 Fed. Rep. 956959; affirming P. Lorillard Co. v. Pepper, 65 Fed. Rep. 597; Blackwell v. Crabb, 36 L. J. Ch. 504; Beard v. Turner, 13 L. T. N. S. 746.

81a-Buckeye Incubator Co. v. Model Incubator Co., 237 Fed. Rep. SS3, 887.

82-Coffeen v. Brunton (2), 5 McLean, 256; Fed. Case No. 2,947.

man instructed the jury that "even if the defendant's hones were not inferior, the plaintiff was entitled to some damages, inasmuch as his right had been invaded by the fraudulent act of the defendant.'' 83 It may be regarded as settled that it is immaterial, in the language of Judge Morris, whether the defendant's goods "be better or worse in quality." 8+

Infringement by importation.-A manufacturer having established business in France and the United States sold his latter business and trademarks, the latter being applied by his vendee to face powder made by the vendor in France but packed by the vendee in the United States. The vendee enjoined one who imported the genuine powder, put up in France under trademarks sold to vendee.8 848

§ 141. The use of letters and numerals.-The principle that there can be trademark rights in letters or numerals can not be considered as finally settled.84b Gillott v. Esterbrook,85 in which the defendant was enjoined from using the numerals "303," was for a time regarded as upholding their use as a trademark, but the case is known and recognized as a case of unfair competition. The leading English case, Ainsworth v. Walmsley, is very similar to Gillott v. Esterbrook, supra, in that while the imitation of a series of numbers was considered as one of the elements justifying injunction, Vice-Chancellor Wood carefully distinguished them as not being a technical trademark.87 There is no case, however, in England in which the courts have recognized "a mere numeral or combination of numerals, standing alone, as sufficiently arbitrary and distinctive to constitute a trademark," 88 and the United States Circuit Court of Appeals for the Sixth Circuit has flatly held that a "bare numeral" can not be a trademark.89

Of course numerals may form a part of a trademark, in combination or collocation with words, figures or designs, and

83-Blofield v. Payne, 4 B. & Ad. 410; Seb. 50. See also Taylor v. Carpenter (2), 2 W. & M. 1; Cox, 32; Taylor v. Carpenter (3), 2 Sandf. Ch. 603; Edelsten v. Edelsten, 1 DeG. J. & S. 185; Seb. 213.

84-Sawyer v. Horn, 1 Fed. Rep. 24-38. To the same effect see Cutter v. Gudebrod Bros. Co., 55 N. Y. Supp. 298; Grocers' Supply Co. v. Dupuis (Mass.), 107 N. E. Rep. 389.

84a-Bourjois & Co. v. Katzel, 260 U. S. 689, 67 L. Ed. 464.

84b "Whether naked numerals