many cases in which their imitation has been restrained turned upon this point; 90 they will also be protected when used in an arbitrary and distinctive manner which conveys no idea of number, although they would probably not be so used except in collocation with designs or words.91 In one case it was held that a complainant was entitled to the exclusive use of a trademark consisting of the figures 1/2, only in the form, size, color and style in which it had been registered and used."2

The strongest case holding that numerals alone may form a valid technical trademark is Shaw Stocking Co. v. Mack,93 in which Judge Coxe ably reviews the decisions and argues that the rejection of numerals as trademark was invariably because of their use indicating quality rather than origin or ownership; but he finally bases the reason of his decree of injunction flatly upon the defendant's fraudulent competition.

The practical difficulty in the way of constructing a trademark from numerals alone is that the defendant could always find a multiplicity of excuses for selecting the same numerals, and the cases indicate that the courts grant ample protection. to their use as against their fraudulent imitation.9+

Even where numerals were originally indicative of origin and ownership, if they have come to be used to indicate quality, any one having the right to make or sell the article in connection wherewith such numerals are so used may designate the article by the numerals.9:

90-Boardman v. Meriden Britannia Co., 35 Conn. 402; Lawrence Mfg. Co. v. Lowell, 129 Mass. 325; Humphreys' Specific Med. Co. v. Wenz, 14 Fed. Rep. 250; Carver v. Pinto Leite, L. R. 7 Ch. App. 90; Robinson v. Finlay, L. R. 9 Ch. D. 487; Broadhurst v. Barlow, W. N. 1872, p. 212; Carver v. Bowker, Seb. 581; Ralli v. Fleming, Ind. L. R. 3 Calc. 417.

91-Kinney v. Basch, 16 Am. Law Reg. N. S. 596; Seb. 542properly a case of unfair competition.

92-Kinney v. Allen, 1 Hughes, 106; Seb. 557; Fed. Case No. 7826. 93-12 Fed. Rep. 707. See also

95

to the came effect Smith & Davis Mfg. Co. v. Smith, 89 Fed. Rep. 486.

94-Gilliott v. Kettle, 3 Duer 624; American Solid Leather Button Co. v. Anthony, 15 R. I. 338; Collins v. Reynolds Card Mfg. Co., 7 Abb. N. C. 17; India Rubber Comb Co. v. Jewelry Co., 45 N. Y. Sup. Ct. 258; Sohl v. Geisendorf, 1 Wills. (Ind.) 60; Hazard v. Caswell, 57 How. Pr. 1; Glen & Hall Mfg. Co. v. Hall, 61 N. Y. 226; 19 Am. Rep. 278; Seb. 443; Humphreys' Homeopathic Medicine Co. v. Hilton, 60 Fed. Rep. 756.

95-Smith & Davis Mfg. Co. v. Smith, 89 Fed. Rep. 486.

The number 888 used as a call for a telephone company's so-called "trouble department" was the basis of an application for injunction against a rival company which adopted the same number for the same purpose. The theory of the application was that the calls being the same, the later user would or might learn of defects in the rival's customer's service and use this information to induce its rival's patrons to use the respondent's telephones. The application is, upon the face of the opinion, one of the most grotesque attempts to pervert the law of unfair competition. The relief sought for was denied.96

Initials. In regard to letters, standing alone or in initial combinations, the English courts have from an early period treated them as trademarks, 97 although it appears that under the English Act of 1875, 38 and 39 Vict., c. 91, Vice-Chancellor Hall has held a single letter can not be registered as a trademark.98 The use of a single letter would appear to be at least unsafe, although it might in the United States be regarded as a trademark; and Judge Bradford in a recent opinion suggests that a single letter or figure may be "so peculiar and unusual in form or ornamentation" as to be a valid trademark.99

Combinations of letters, used as initials, have been frequently approved as trademarks in the American decisions,1 and in the case of Amoskeag Mfg. Co. v. Trainer,2 in the federal supreme court, the decision, which held the letters "A CA" were not a valid trademark, was based upon the

96-Rocky Mountain Bell Telephone Co. v. Utah Telephone Co., 31 Utah 377; 88 Pac. Rep. 26.

97-Ransome v. Bentall, 3 L. J. Ch. 161; Motley v. Downman, 3 My. & Cr. 1; Millington v. Fox, 3 My. & Cr. 338; Crawshay v. Thompson, 4 M. & G. 357; Kinahan v. Bolton, 15 Ir. Ch. 75; Hopkins v. Hitchcock, 14 C. B. N. S. 65; Hall v. Barrows, 4 DeG. J. & S. 150; Barrows v. Pelsall, Seb. 530; In re Barrows, L. R. 5 Ch. D. 353; Cartier v. Carlile, 31 Beav. 292; Cartier v. Westhead, Seb. 199; Cartier v. May, Seb. 200; Moet v.

Clybonn, Seb. 533; Moet v. Pickering, L. R. 8 Ch. D. 372; Ex parte Young, Seb. 537; Ransome V. Graham, 51 L. J. Ch. 897; Bondier v. Depatie, 3 Dorion, 233; In re Brook, 26 W. R. 791.

98-In re Mitchell, L. R. 7 Ch. D. 36; 46 L. J. Ch. 876; 26 W. R. 326; Cartmell, 226.

99-Dennison Mfg. Co. v. Thomas Mfg. Co., 94 Fed. Rep. 651-658. 1-Geron V. Gartner, 47 Fed. Rep. 467; Frank v. Sleeper, 150 Mass. 583.

2-101 U. S. 51; 25 L. Ed. 993.

theory that those letters as used by the complainant were indicative of quality, and not of origin or ownership, as Judge Coxe has pointed out. There can scarcely be a doubt that both numerals and letters of the alphabet may sometimes be technical trademarks, and the objection to their use in that capacity has been well stated by Judge Colt in the Supreme Court of Massachusetts to be "the difficulty of giving to bare numbers the effect of indicating origin or ownership, and of showing that the numbers used were originally designed for that purpose." 4 And the same practical suggestion was offered by the Supreme Court of Connecticut in these words: "It may be difficult to give to bare numbers the effect of indicating origin or ownership, and it may be still more difficult to show that they were originally designed for that purpose; but if it be once shown that that was the original design, and that they have had that effect, it may not be easy to assign a reason why they should not receive the same protection, as trademarks, as any other symbol or device." 5

A review of the cases indicates that the use of numerals or letters has been restrained sometimes on the theory that they were technical trademarks, but never where they were merely used to indicate quality; and where injunction has issued, the facts show that the infringing figures or letters. were used in fraudulent competition."

In this connection it is well to note that "there can be no doubt, and indeed it is not disputed, that two letters may constitute a trademark." 8 So the American courts have

3-Shaw Stocking Co. v. Mack, 12 Fed. Rep. 707.

4-Lawrence Mfg. Co. v. Lowell, 129 Mass. 325; Price & Steuart, 418.

5-Boardman V. Meriden Britannia Co., 35 Conn. 402; Cox, 490. 6-In re Eagle Pencil Co., 10 Off. Gaz. 981; Amoskeag Co. v. Trainer, 101 U. S. 51; 25 L. Ed. 993; Stevens Linen Works v. William & John Don & Co., 121 Fed. Rep. 171; affirmed 62 C. C. A. 582; 127 Fed. Rep. 950

7-Ransome v. Bentall, 3 L. J. Ch. N. S. 161; Gillot v. Kettle, 3 Duer, 624; Ainsworth v. Walmsley, L. R. 1 Eq. 518; Gillott v. Esterbrook, 47 Barb. 455; Cox, 340; 48 N. Y. 374; 8 Am. Rep. 553; Broadhurst v. Barlow, W. N. 1872, p. 212; Seb. 411; Kinney v. Basch, Seb. 542; Avery v. Meikle, 81 Ky.

13

uniformly held that monograms or groups of two or more letters not indicative of quality constitute valid trademarks; thus we find that the following marks have been held valid: "A. G." applied to cigars and coffee; "B. B. B." applied to a medicine; 10 "B. B. H." applied to iron; "1 "S. B." applied to cough-drops; 12 "G. E." applied to electric lamps; "G. F." applied to velvet ribbon; 14 "O. F. C." applied to whiskey; 15 "A. C. A." applied to ticking; 16 "J. H. W." applied to boots; 17 "T. O. C." applied to oil-cloth.18 And we find that similar groups of letters and monograms have been treated as valid by the English decisions.19

The Massachusetts court has recently pointed out, where defendant claimed a legal right to use the initials "R. B." on the ground that they were an abbreviation of "Rubenstein Bros.""Initials alone do not constitute the name. Description or abbreviation is not the equivalent of a name.

198

§ 142. The judicial test of infringement.—It may be said, generally, that the courts will apply to the facts, in the class of cases that we are considering, any and all tests which are necessary to determine whether or not the competition established by the defendant is fraudulent. In delivering the opinion of the Federal Supreme Courts in Coats v. Merrick Thread Co., Mr. Justice Brown observed: "The differences are less conspicuous than general resemblance between the two. the same time, they are such as could not fail to impress themselves upon a person who examined them with a view to ascertain who was the real manufacturer of the thread." 20

13 General Electric Co. v. Renew Lamp Co., 128 Fed. Rep. 154.

14-Giron v. Gartner, 47 Fed. Rep. 467.

15-Geo. T. Stagg Co. v. Taylor, 95 Ky. 651; 27 S. W. Rep. 247.

16-Amoskeag Mfg. Co. v. Trainer, 101 U. S. 51; 25 L. Ed. 993; (dissent of Mr. Justice Clifford). To the same effect see Burton v. Stratton, 12 Fed. Rep. 696; Smith v. Imus 32 Alb. L. J. 455; Frank

v. Sleeper, 150 Mass. 583; 23 N. E. Rep. 213.

17-Walker v. Reid, Fed. Case No. 17,084.

18-Standard Table Oil Cloth Co. v. Trenton Oil Cloth & Linoleum Co., 71 N. J. Eq. 555; 63 Atl. Rep. 846.

19-Hopkins v. Hitchcock, 14 C. B. N. S. 65; Paul v. Barrows, 4 DeG. J. & S. 150; In re Barrows, L. R. 5 Ch. D. 353; Cartier v. Carlile, 31 Beavan, 292; Moet v. Pickering, L. R. 8 Ch. D. 372; Frankau v. Pope, 11 Cape of Good Hope, 209.

19a-Rugg, C. J., in W. B. Mfg. Co. v. Rubenstein, Mass. 128 N. E. Rep. 21.

20-Coats V. Merrick Thread Co., 149 U. S. 562; 37 L. Ed. 847.

And in all cases the court will inspect not only the differences but the resemblances, as both must be considered in ascertaining whether the competition between the parties is fair or fraudulent. As said by Judge Severens: "It has been said that it is the resemblances that should be looked at, rather than the differences. But the existence of the latter negatives the former, and it is necessary to take both into view, in order to get a correct picture of the whole." 21

Of course the defendant can not avail himself of dissimilarities which become apparent only upon comparison of the plaintiff's and defendant's packages or marks. This is because purchasers do not have the opportunity of making comparisons. "A specific article of approved excellence comes to be known by certain catchwords easily retained in memory, or by a certain picture which the eye readily recognizes. The purchaser is required only to use that care which persons ordinarily exercise under like circumstances. He is not bound to study or reflect. He acts upon the moment. He is without the opportunity of comparison. It is only when the difference is so gross that no sensible man acting on the instant would be deceived, that it can be said that the purchaser ought not to be protected from imposition. Indeed, some cases have gone to the length of declaring that the purchaser has a right to be careless, 22 and that his want of caution in inspecting brands of goods with which he supposes himself to be familiar ought not to be allowed to uphold a simulation of a brand that is designed to work fraud upon the public. However that may be, the imitation need only be slight if it attaches to what is most salient; for the usual inattention of a purchaser renders a goodwill precarious, if exposed to imposition." 23

21-Proctor & Gamble Co. V. Globe Refining Co., 92 Fed. Rep. 357-362; 34 C. C. A. 405.

22-It has been held on circuit that the careless purchaser will not be protected. N. K. Fairbank Co. v. Luckel, King & Cake Soap Co., 88 Fed. Rep. 694; but the case was reversed on appeal: s. c., 102

Fed. Rep. 327-332; 42 C. C. A. 376. The test generally applied is, whether one "in the use of ordinary care" can be deceived. Sartor v. Smith, 125 Ia. 665; 101 N. W. Rep. 515.

23-Jenkins, J., in Pillsbury v. Flour-Mills Co., 64 Fed. Rep. 841847; 12 C. C. A. 432.