§ 157. The appropriation of ideas, aside from patent, trademark or copyright, as unfair competition.-In many of the preceding sections in this chapter we have examined the bor- . derland of industrial property rights. The ever recurring questions presented to the courts are, has the plaintiff a property right in this particular thing, and is there an invasion of that particular right? The whole body of the law of unfair competition is founded on the law of property. We return inevitably to considerations of the terms "property" and "rights," and the expansion of those terms to meet new needs are a strong test of the adaptability of equity to instant emergencies. Sir Frederick Pollock has tentatively defined the law of property as "the systematic expression of the degrees, and forms of control, use, and enjoyment, that are recognized and protected by law," with the suggestion that it may turn out to cover more than this, if we give the widest acceptable sense to the word property.

The law of ideas.-The Virginia court has said that there can be no property right in a method or idea for conducting business without any physical means or devices for carrying it out. In thus dealing with the scheme known as the "Morris plan of industrial banking" that court is in accord with the earlier authorities.

6a

For example "The means of carrying out the plan of giving effect to the idea lay, therefore, beyond his control. It was an idea depending for its realization upon the concurring minds of many individuals, each of them unbound by contract and free to act as he chose. Such a project or idea can scarcely be called property. It lacks that dominion-that capability of being applied by its originator to his own use-which is the essential characteristic of property. It differs fundamentally from the secret process or patented invention which is capable of material embodiment at the will of the inventor alone. It is worthless unless others agree to give it life. It was, as far as

Rep. 675, 681 (C. C. A. 8); following Borden Ice Cream Co. v. Borden Condensed Milk Co., 201 Fed. 510; 121 C. C. A. 200; Corning Glass Works v. Corning Cut Glass Co., 197 N. Y. 173; 90 N. E. Rep. 449; Apollo Bros. v. Perkins, 207 Fed. 530; 125 C. C. A. 192; Investor Publishing Co. v. Dodinson, 82 Fed. Rep. 56; Forney v. Engineering News Publishing Co., 57 Hun. 588; 10 N. Y. Supp. 814; Hanover Star Milling Co. v. Allen, 208 Fed. Rep.

513; 125 C. C. A. 515; affirmed, 240 U. S. 403; Simplex Automobile Co. v. Kahnweiler, 162 App. Div. 480; 147 N. Y. Supp. 617; Astor v. West 82d Street Realty Company, 167 App. Div. 273; 152 N. Y. Supp. 631; Sartor v. Schaden, 125 Iowa, 697; 101 N. W. 511.

6-First Book of Jurisprudence, Ch. VII.

6a-Stein v. Morris 120 Va. 390, 91 S. E. Rep. 177.

complainant was concerned, an idea pure and simple. Now, it has never, in the absence of contract or statute, been held, so far as I am aware, that mere ideas are capable of legal ownership and protection. Says Lord Brougham, in delivering his judgment in Jeffreys v. Boosey, 4 H. L. Cas. 965: 'Volat irrevocabile verbum, whether borne on the wings of the wind or the press, the supposed owner instantly loses all control over it. * * # He has produced the thought and given it utterance, and eo instanti it escapes his grasp.' 76b

"It is difficult to conceive how a claim to a mere idea or scheme, unconnected with particular physical devices for carrying out that idea, can be made the subject-matter of property. So long as the originator of the naked idea, whether, germinating under the laws of metaphysics, it be regarded as Platonic or Cartesian in its make-up, keeps it to himself, it is his exclusive property, but it ceases to be his own when he permits it to pass from him" 6c

"Where an idea, or trade-secret or system, can not be sold or negotiated or used without a disclosure, it would seem proper that some contract should guard or regulate the disclosure, otherwise it must follow the law of ideas and become the acquisition of whoever receives it." od

In the absence of copyright, a producer of talking-machine records sought to enjoin a competitor from selling records. copied from those made by the plaintiff, his product being advertised as "duplicates from the original records." Judge Chatfield, in granting the injunction, appreciated the novelty and difficulty of the questions raised, and the lengths to which his decision might be used as in support of other claims of property right, more or less remote from the specific right challenged before him. His conclusions were reached as follows:

"Reference has been made to the rights of a photographer who should make a film for moving pictures, of some historical or unique occasion, and should sell the film to parties who should reproduce it in a moving-picture machine. Other parties might make pictures from the film, or from the exposure, and a question, in some respects, similar to the present, might be involved. A dressmaking establishment might employ highpriced designers, and their product might be copied, and the designs thus appropriated. Architects might build houses. and utilize extremely valuable methods and ideas, and others

6b-Haskins v. Ryan, 71 N. J. Eq. 575, 64 Atl. Rep. 436.

6c-Bristol v. Equitable Life Assurance Society, 52 Hun. 161, 5

N. Y. Supp. 131; and see s. c. 132
N. Y. 264, 30 N. E. Rep. 506.

6d-Hamilton Mfg. Co. v. Tubbs Mfg. Co., 216 Fed. Rep. 401.

building houses might follow these ideas. Sculptors might carve statues of great commercial value, and stone carvers might copy these sculptures. It can not now be determined how far such appropriation of ideas could be prevented; but it would seem that where a product is placed upon the market, under advertisement and statement that the substitute or imitating product is a duplicate of the original, and where the commercial value of the imitation lies in the fact that it takes advantage of and appropriates to itself the commercial qualities, reputation, and salable properties of the original, equity should grant relief."7

Reduced to its final analysis, the doctrine of this case is that if I make for sale a copy of another's unpatented, uncopyrighted physical production, I do so at my peril, having regard to the novelty, cost of production, and other distinctive features of the original. The right to multiply copies created by this decision would seem to make copyright statutes superfluous. The case would seem to present a typical damnum absque injuria, and to establish an extremely doubtful precedent.

This subject has been discussed in a number of cases, the Fonotipia case being one of rather extreme views. These cases can not readily be classified, but fall roughly into two divisions;

First, cases where the injunction has been granted upon the finding of fact that the copying of the plaintiff's merchandise resulted in the sale of defendant's merchandise as and for that of the plaintiff.8

7-Fonotipia Limited v. Bradley, 171 Fed. Rep. 951, 964.

8-Fonotipia Limited v. Bradley, 171 Fed. Rep. 951; Fox & Co. v. Glynn, 191 Mass. 344; 78 N. E. Rep. 89; 9 L. R. A. (N.S.) 1096; Steiff v. Bing, 215 Fed. Rep. 204; Strause v. Weil, 191 Fed. Rep. 527; Enterprise Mfg. Co. v. Landers, Frary & Clarke, 131 Fed. Rep. 240; 65 C. C. A. 587; Yale & Towne Mfg. Co. v. Alder, 154 Fed. Rep. 37; 83 C. C. A. 149; E. B. Estes & Sons

v. George Frost Co., 176 Fed. Rep. 338; 100 C. C. A. 258; Stewart v. Hudson, 222 Fed. Rep. 584; U .S. Expansion Bolt Co. v. Kroncke Hdw. Co., 225 Fed. Rep. 383; Rushmore v. Manhattan S. & S. Works, 163 Fed. Rep. 939; 90 C. C. A. 299; 19 L. R. A. (N.S.) 269; Rushmore v. Saxon (C. C.) 158 Fed Rep. 499; Baldwin v. Grier Bros. Co., 215 Fed. Rep. 735; Grier Bros Co. v. Baldwin, 219 Fed. Rep. 735; 135 C. C. A. 433; Moxie Co. v. Daoust,

Second, cases where the injunctive relief has been denied upon the ground that the defendant has the absolute right to copy the plaintiff's merchandise so long as he "does not pretend that the copy is an original product of the complainant. "9 The ultimate distinction between this group of cases10 and the former is that unfair competition is found to exist in the one group, and found absent in the other.

The cases under consideration are strongly analogous to those involving geographical or otherwise descriptive names which have acquired, through user, a secondary meaning.11

Hence, the principles applied are those which we have heretofore considered.

Effect of design or mechanical patent upon charge of unfair competition. As the monopoly of a design patent relates solely to the non-functional and ornamental, and as the whole theory of the patent act is to give to the public the right to make, use and sell the subject-matter of the patent upon its expiration (that being the sole consideration for the grant) it follows clearly that the expiration of the patent gives those rights to the public as fully in the case of a design as in mechanical or other classes of patents.

But when the plaintiff has sought a patent monopoly in a design, and secured a patent therefor, what effect has an adjudication that the patent is invalid upon his right to charge unfair competition against one who has copied the patented design and has successfully attacked its validity? It has been suggested in such a case that the plaintiff might have succeeded in the charge of unfair competition if he had proven that the design had acquired a secondary meaning as indicating the origin of the product,11a but it would seem that when the design patent was adjudged void the public should enjoy the same rights in its subject matter as in the case of an expired design patent. This is a branch of our subject which needs clarification.

C.) 222 Fed. Rep. 478. The limitation in application must be the feasibility of a mark which shall not be too burdensome.

"In cases like Enterprise Mfg. Co. v. Landers, Frary & Clark, 131 Fed. Rep. 240; 65 C. C. A. 587; Yale & Towne Mfg. Co. v. Alder, 154 Fed. Rep. 37; 83 C. C. A. 149; and Grier Bros. Co. v. Baldwin, 219 Fed. Rep. 735; 135 C. C. A. 433, there were features added by the defendant which could have no purpose, and, what is more to the point, no effect, except to mislead the buyer into supposing the goods were of the plaintiff's make. They could be subtracted from the article without affecting those features which controlled the buyer's choice. Such cases as Rushmore v. Manhattan Screw & Stamping Works, 163 Fed. Rep. 939; 90 C. C. A. 299; 19 L. R. A. (N.S.) 269; Lovell-McConnell Mfg. Co. v. American Ever-Ready Co., 195 Fed. Rep. 931; 115 C. C. A. 619; and Rushmore v. Badger

Brass Mfg. Co., 198 Fed. Rep. 379; 117 C. C. A. 255, avowedly rest upon the same basis, yet the doctrine was in those cases pressed very far, since the design of a motor lamp or horn may well be a part of the reason why the buyer chooses them. To deny the second comer the right to use that design seems rather to step beyond the principle which protects only such symbols as are representative of the plaintiff's manufacture, nor does it seem an entirely adequate answer to say that the features enjoined are nonfunctional. It is only when the mechanical operativeness of the thing is certainly all that determines the buyer's choice that such a criterion is safe. Margarete Steiff, Inc. v. Bing (D.C.) 215 Fed. Rep. 204." Learned Hand, J., in Champion Spark Plug Co. v. A. R. Mosler & Co., 233 Fed. Rep. 112, 115.

11a-Aluminum Goods Mfg. Co. v. Buckeye Aluminum Co., 291 Fed. Rep. 806, 808.