Where a collector of internal revenue seized and sold an oleomargarine plant for taxes, under an act which provides that the delinquent taxpayer "shall forfeit the factory and manufacturing apparatus used by him, and all oleomargarine and all raw material for the production of oleomargarine found in the factory and on the factory premises, and shall be fined," etc., Act Aug. 2, 1886, c. 840, § 17, 24 Stat. 212 (Comp. St. § 6229), the Court said: "As this is a penal statute, it can not be extended by construction. No attempt was made by the collector to sell any trademark, good will, or other intangible assets. The schedule of property sold by the collector to Matthews and transferred by Matthews to the new corporation contains no mention of trademark, good will, or other intangible property. The old corporation has not been dissolved. It is, so far as this record shows, still legally alive. The sale of its tangible property simply killed its business; and it abandoned thereafter all attempts to preserve its good will, including any right in its trademarks previously used." § 18. Assignability of distillery brands and the like.-Trademarks used at a particular producing establishment upon the articles produced at the establishment may be lawfully assigned and transferred with the establishment. Of such a mark it has been said that "its subsequent use by person to whom the establishment is transferred is considered as only indicating that the goods to which it is affixed are manufactured at the same place and are of the same character as those to which the mark was attached by its original designer.'"18 This rule. has been applied to brands consisting in whole or in part of proper names. Thus, in the leading case, the brand was "S. N. Pike's Mangolia Whiskey, "19 and in another case the brands were "J. G. Mattingly & Sons, Standard Bourbon" and "J. G. Mattingly & Sons, Pure Rye.' 17d-Ammon & Person v. Narragansett Dairy Co., 262 Fed. Rep. 880, 883; C. C. A. 1. 18-Mr. Justice Field, in Kidd v. Johnson, 100 U. S. 617; 25 L. Ed. 769. 1920 19-Kidd v. Johnson, 100 U. S. 617; 25 L. Ed. 769. 20-J. G. Mattingly Co. v. Mattingly, 17 Ky. L. Rep. 1; 27 S. W. Rep. 985; J. G. Mattingly Co. v. Mattingly, 96 Ky. 430; 31 S. W. Rep. 279. 21 §19. Unfair competition.-In 1877, the American writer, Mr. Charles E. Coddington, in his excellent Digest of trademark cases, remarked that "The interference of courts of equity, instead of being founded upon the theory of protection to the owner of trademarks, is now supported mainly to prevent fraud upon the public. If the use of any words, numerals or symbols is adopted for the purpose of defrauding the public, the courts will interfere to protect the public from such fraudulent intent, even though the person asking the intervention of the court may not have the exclusive right to the 7722 He added that use of these words, numerals or symbols. "'22 this rule was fully supported by four cases, two English and two American, which he cited.23 Since that time, the recognition of the doctrine so expressed has grown steadily and certainly, so that it now demands treatment as a specific branch of the law, separate, apart from, but including the narrower and strictly technical law of trademarks." "The tendency of the courts at the present time seems to be to restrict the scope of the law applicable to technical trademarks, and to extend its scope in cases of unfair competition. "25 Defined. "Unfair competition" is precisely as impossible of definition as "invention" and for the same reasons; each is an elastic term, dependent upon so many other things as to defy the lexicographer. The best attempt at measuring it with words is possibly Judge Hough's-"consists of selling goods by means that shock judical sensibilities. ''25a 21-The writer erred in ascribing this as the only reason. The prevention of fraud upon the person whose goods are pirated is equally important and cogent. Humphrey's Specific Med. Co. v. Wenz, 14 Fed. Rep. 250; Skinner v. Oakes, 10 Mo. App. 45. 22-Coddington, Digest, § 36. 23-1869. Lee v. Haley, 21 L. T. N. S. 546; 18 W. R. 181; L. R. 5 Ch. 155; 39 L. J. Ch. 284; 22 L. T. N. S. 251; 18 W. R. 242; Seb. 325. 1872. Wotherspoon v. Curie, 22 L. T. N. S. 260; 18 W. R. 562; 42 L. J. Ch. 130; 23 L. T. N. S. 443; 18 W. R. 942; L. R. 5 H L. 508; 42 L. J. Ch. 130; 27 L. T. N. S. 393; Seb. 329. 1872. Newman V. Alvord, 49 Barb. 588; 35 How. Pr. 108; Cox, 404; 51 N. Y. 189; 10 Am. Rep. 588; Seb. 282. 1877. Kinney v. Basch, Seb. 542. 24-"The law of unfair competition is well settled. It is only the application of that law to individual cases which requires discussion." Lacombe, J., in Walter Baker & Co. v. Sanders, 80 Fed. Rep. 889, 891; 26 C. C. A. 220. 25-Baker, in Church & Dwight Co. v. Russ, 99 Fed. Rep. 276-278. J.. 25a-Steiff v. Bing, 215 Fed. Rep. 204. An excellent condensation of the doctrine comes from the New York Court of Appeals: "Unfair competition may result from representations or conduct which deceive the public into believing that the business name, reputation or good will of one person is that of another." 25b High authority has pointed out that this is the rule of commercial honesty, which may or may not accord with commercial practice.25c § 20. Historical.-In 1742, in Blanchard v. Hill, a decision of no authority and of no particular use except to illustrate the slow growth of the law of trademarks, Lord Hardwicke observed, referring to Southern v. How,28 "It was not the single act of making use of the mark that was sufficient to maintain the action, but doing it with a fraudulent design, to put off bad cloths by this means, or to draw away business from the other clothier. ''27 The chancellor so crudely expressed (but disapprovingly) the first reported judical reference to the law of unfair competition. In 1896, Lord Chancellor Halsbury, addressing the House of Lords, said "For myself, I believe the principle of the law may be very plainly stated, and that is, that nobody has any right to represent his goods as the goods of somebody else."'28 This sentence is a terse statement of the fundamental maxim of unfair competition. The English courts have long recognized the rule, and it may be found repeated in various phraseology by all the English courts within whose jurisdiction trademark and analogous cases have come. It is more difficult to trace the growth of this doctrine in the American decisions. Chancellor Sandford in 1825, in an action concerning the right to the name of a periodical, observed, "The injury for which redress is given results from the imposture practiced upon the customers of an existing establishment, or upon the public," 2 so recognizing the rule which Mr. Coddington failed to recognize. 25b-Crane, J., in White Studio v. Dreyfoos, 221 N. Y. 46, 116 N. E. Rep. 796. 25c-Cutler, "Passing Off," p. 2; citing De Kuyper v. Baird, 20 R. P. C. 581. 26-Southern v. How, Popham, 29 144; Cro. Jac. 471; 2 Rolle, 28; Seb. 1. 27-Blanchard v. Hill, 2 Atk. 484; Seb. 2. 28-Reddaway v. Banham, L. R. (1896) Appeal Cases, 199-204. 29-Snowden v. Noah, Hopkins' Ch. R. 347; Cox, 1; Seb. 41. Twelve years later, in Massachusetts, it was said that "Imposition, falsehood and fraud, on the part of the defendant, in passing off his own medicines as those of the plaintiff, would be a ground of action." 30 In 1840 Chancellor Walworth was presented with an application for an injunction to restrain the use of the words "New Era" as the name of a newspaper, the complainant being the proprietor of a rival periodical denominated "Democratic Republican New Era." He denied the application, and in the course of his opinion said: "The allegation in the complainant's bill of complaint is that the defendant has assumed the name of the complainant's newspaper for the fraudulent purpose of imposing upon the public, and supplanting him in the goodwill of his established paper, by simulating the name and dress thereof; with the intent to cause it to be understood, and believed by the community, that the defendant's newspaper was the same as the complainant's, and thereby to injure the circulation of the latter. If this were in fact so, I should have no difficulty in making this order absolute. For although the business of publishing newspapers ought, in a free country, to be always open to the most unlimited competition, fraud and deception certainly are not essential to the most perfect freedom of the press. * As the names * of party newspapers, in these days, have no necessary connection with the principles which they advocate, and are manufactured as readily as the new names if not the new principles of political parties, there could be very little excuse for the editor of a newspaper who should adopt the precise name and dress of an old established paper, which would be likely to interfere with the goodwill of the latter by actually deceiving its patrons." 31 Not until 1888 did the United States supreme court give distinct recognition to the law of unfair competition, 32 and 30-Thomson v. Winchester, 19 Pick. 214; Seb. 59. 31-Bell v. Locke, 8 Paige, 75; Cox, 11; Seb. 65. 32-Goodyear India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598; 32 L. Ed. 535; Cox, Manual, 705. In three years later Mr. Chief Justice Fuller announced the doctrine clearly and unequivocally, in these terms: "The jurisdiction to restrain the use of a trademark rests upon the grounds of the plaintiff's property in it, and of the defendant's unlawful use thereof. If the absolute right belonged to plaintiff, then, if an infringement were clearly shown, the fraudulent intent would be inferred, and, if allowed to be rebutted in exemption of damages, the further violation of the right of property would nevertheless be restrained. It seems, however, to be contended that plaintiff was entitled at least to an injunction, upon the principles applicable to cases analogous to trademarks; that is to say, on the ground of fraud on the public and on the plaintiff, perpetrated by defendant by intentionally and fraudulently selling its goods as those of the plaintiff. Undoubtedly an unfair and fraudulent competition against the business of the plaintiff-conduct with the intent, on the part of the defendant, to avail itself of the reputation of the plaintiff to palm off its goods as plaintiff's—would, in a proper case, constitute ground for relief." 33 With this decision the doctrine of unfair competition may be regarded as being finally established in the United States; and as based not only on fraud on the public, but on the plaintiff.34 by his mark, signs, labels, or in other ways, represents to the pub lic that the goods sold by him are those manufactured or produced by the plaintiff, thus palming off his goods for those of a different manufacturer, to the injury of the plaintiff." Citing McLean v. Fleming, 96 U. S. 245; 24 L. Ed. 828; Sawyer v. Horn, 1 Fed. Rep. 24; 4 Hughes, 239; Perry v. Truefit, 6 Beavan,, 66; Croft v. Day, 7 Beavan, 84. Indeed, McLean v. Fleming may be properly regarded as the first case in which the federal supreme court made any mention of the doctrine. This sentence occurs in the opinion: "Nor is it necessary, in order to give a right to an injunction, that a specific trademark should be infringed; but it is sufficient that there was an attempt on the part of the respondent to palm off his goods as the goods of the complainant." McLean v. Fleming, 96 U. S. 245; 24 L. ed. 828. 33-Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537; 34 L. Ed. 997; Cox, Manual, 720. 34-"The law relating to this subject is well understood. No man has a right to use names, symbols, signs or marks which are intended, or calculated, to represent that his business is that of another. No man should in this way be permitted to appropriate |