a special treatise of this character; but we will refer to some of the most notable. In sustaining the Massachusetts Oleomargarine act, Mr. Justice Harlan found that "the real object of coloring oleomargarine so as to make it look like genuine butter is that it may appear to be what it is not, and thus induce unwary purchasers, who do not closely scrutinize the label upon the package in which it is contained, to buy it as and for butter produced from unadulterated milk or cream from such milk. The constitution of the United States does not secure to any one the privilege of defrauding the public." 3

* *

In a suit for breach of contract, where the defense had offered proof tending to show that menhaden delivered under the contract by the plaintiff were packed by the plaintiff under the false brands "Alaska Mackeral, Russia Mackeral," and "Family White Fish," the court said:

99 66

"Humanity is entitled to know what it buys and consumes. Government is instituted and maintained, and law is administered, for the protection of the people; and justice influenced by enlightened public policy, and controlled by legal principles, requires that contracts shall not be upheld and enforced for the benefit of a wrong doer, where the subject-matter thereof is designed to be used in furtherance of a business enterprise which contemplates imposition upon the general public through false, misleading, and deceptive brands and labels, placed upon sealed packages of food products in a manner calculated to deceive, and forward the sale of such articles for what they are not.

4

§ 38. A dishonest label will invalidate.-We find that where a distiller mixed nearly thirty-six per cent. of other whiskies with his own brand, and sold the blend under a label formerly used upon whisky of his own distillation, with cautions to avoid imitations and asserting that the mixture was "bottled at the distillery warehouse and is warranted perfectly pure and unadulterated," an injunction was refused because of this misrepresentation. This decision, whose tendency is more far-reaching than that of Manhattan Medicine Co. v. Wood,

3-Plumley v. Massachusetts, 155 U. S. 461, 467, 479, 39 L. Ed. 223.

4-Church v. Proctor, 66 Fed. Rep. 240-245; 13 C. C. A. 426.

5-108 U. S. 218; 27 L. Ed. 706.

seems on the reading of the facts to impose a hardship on the owners of the mark, Jas. E. Pepper & Co. The interest of the complainant was derived under a contract with that firm giving him the entire control of their trade in bottled whisky. The proof showed that up to and including the year 1891 the Pepper Company bottled nothing under the gold trade label partially described above used by them but "Old Pepper" whisky distilled by them, but that after November, 1891, the demand for the distillery bottling became so great that they could not supply it with the output of their own distillery and therefore bought other whiskies shown to be more expensive, older and made by the same formula as their own, and blended these whiskies with their own, and bottled the resulting blend under the same label and trademark. Here, if ever, one would think equity would relax its rule, and, as the public had not suffered by the complainant's acts, would continue to protect the trademark. But the learned court thus tersely applies the principles: "Pepper offers as an excuse for bottling a mixture that the demand for his goods had so increased that he could not supply it with Pepper whisky. What was this demand for? Plainly for pure and unadulterated Pepper whisky, bottled at the distillery. If this could not be honestly supplied, then it could not be supplied at all in such a way as to keep the business within the protection of a court of equity. Relief is refused to Pepper and his privies because of his misrepresentations to the public." Thus is emphasized the statement of Mr. Justice Field that the protection of equity is extended to the owner of a trademark "not only as a matter of justice to him, but to prevent imposition upon the public." There are a number of cases in which the misrepresentation has been held to be so slight and immaterial as not to disentitle the complainant 6-Krauss V. Jos. R. Peebles' to be. Prince Mfg. Co. v. Prince's Sons Co., 58 Fed. Rep. 584-596. An Metallic Paint Co. (2), 135 N. Y. English case resembling this as to 21, 31 N. E. Rep. 990. the facts is Starey v. Chilworth Gunpowder Co., L. R. 24 Q. B. D.

90

Relief will be denied in such cases although the article is actually as good as it is represented

7

7-Manhattan Medicine Co. V. Wood, 108 U. S. 218-223; 27 L. Ed. 706: citing Amoskeag Manufacturing Co. v. Trainor, 101 U. S. 51; 25 L. Ed. 993.

to relief. Thus, a claim by the manufacturer of a patent medicine that it permanently overcomes habitual constipation, will not, even if untrue, disentitle the plaintiff from relief in equity, the court taking judicial notice of the fact that the effect of any medicine for constipation is largely dependent upon the constitution and habits of the person treated.

The use of the words "Sole Manufacturer" by a dealer who does not manufacture, but has the article produced for him by another, has been held not to debar the user of the trademark from equitable relief,10 as has the addition of the word "distillers" to the firm name of former proprietors of a distillery owned by a complainant.11

Falsely representing goods of foreign origin as of domestic manufacture.-A federal statute provides: "All articles of foreign manufacture or production, which are capable of being marked, stamped, branded, or labeled without injury, shall be marked, stamped, branded, or labeled in legible English words, in a conspicuous place that shall not be covered or obscured by any subsequent attachments or arrangements, so as to indicate the country of origin. Said marking, stamping, branding, or labeling shall be as nearly indelible and permanent as the nature of the article will permit.

"All packages containing imported articles shall be marked, stamped, branded, or labeled so as to indicate legibly and plainly, in English words, the country of origin and the quantity of their contents, and until marked in accordance with the directions prescribed in this section no article or packages shall be delivered to the importer.

"Should any article or package of imported merchandise be marked, stamped, branded, or labeled so as not accurately to indicate the quantity, number or measurement actually contained in such article or package, no delivery of the same shall be made to the importer until the mark, stamp, brand, or label, as the case may be, shall be changed so as to conform to the facts of the case.

"The Secretary of the Treasury shall prescribe the necessary rules and regulations to carry out the foregoing provision.

8-Tarrant & Co. v. Hoff, 71 Fed. Rep. 163; affirmed. 76 Fed. Rep. 959; 22 C. C. A. 644; Centaur Co. v. Robinson, 91 Fed. Rep. 889; Ransom v. Ball, 7 N. Y. Supp. 238.

9-California Fig Syrup Co. v. Worden, 95 Fed. Rep. 132-134.

10-Gluckman v. Strauch, 91 N. Y. Supp. 223; affirmed, 186 N. Y. 560; 79 N. E. Rep. 1106.

11-Frazier v. Dowling, 18 Ky. L. Rep. 1109; 39 S. W. Rep. 45.

"If any person shall fraudulently violate any of the provisions of this act relating to the marking, stamping, branding, or labeling of any imported articles or packages; or shall fraudulently deface, destroy, remove, alter, or obliterate any such marks, stamps, brands, or labels, with intent to conceal the information given by or contained in such marks, stamps, brands, or labels, he shall upon conviction be fined in any sum not exceeding $5,000, or be imprisoned for any time not exceeding one year, or both." (Act Oct. 3, 1913, c. 16, § 14, F, 38 Stat. at L. 194, 3 Fed. Stat. 709, Com. Stat. § 5297, F, subsections 1, 2.)

Non-compliance with this statute, and selling the imported goods as American-made goods, will disentitle a plaintiff from relief in equity, precisely as it would to make the false representation of origin in the absence of statute. "In such case the defendant prevails, not on its own merits, but because of the demerits of the plaintiff and because of paramount public interest.'"118

§ 39. The cases of false representation in connection with trademarks. In 1837 the English High Court of Chancery in Pidding v. How, announced that it could not interfere in behalf of a plaintiff who had "thought fit to mix up that which may be true with that which is false" in his labels and advertisements.12 The Court of Appeals of New York in a similar case in 1848, by Gardiner, J., observed laconically, "The privilege of deceiving the public, even for their own benefit, is not a legitimate subject of commerce; and at all events, if the maxim that he who asks equity must come with pure hands is not altogether obsolete, the complainant has no right to invoke the extraordinary jurisdiction of a court of chancery in favor of such a monopoly." Prior to this, an injunction was refused where the mark in question was applied by the complainant to a "quack" medicine. 14 "Balm of Thousand Flowers" the name of a cosmetic, being deceptive, its infringement defendant assuming the name "Balm of Ten Thousand

by a

11a-Anderson, J., in American Thermos Bottle Co. v. W. T. Grant Co., 279 Fed. Rep. 151, 157, 159; applying Guernsey v. Cook, 120 Mass. 501, 503; American Thermos Bottle Co. v. W. T. Grant Co., 282 Fed. Rep. 426, 429; C. C. A. 1.

12 Pidding v. How, 8 Sim. 477;

Cox, 640; followed in Perry v. Truefit, 6 Beav. 66; Cox, 644.

13-Partridge v. Menck, 2 Sandf. Ch. R. 622; 2 Barb. Ch. R. 101; 1 How. App. Cas. 558; Cox, 72.

14-Fowle v. Spear, 7 Penn. L. J. 176; Cox, 67; followed in Heath v. Wright, 3 Wall. Jr., 1; Cox, 154.

Flowers" was not enjoined,15 although the same mark was held valid and the rule announced that "the public should be left to its own guardianship" in Fetridge v. Merchant.16 But the doctrine generally is that of Pidding v. How.17

The general rule concerning the effect of false representations by the plaintiff in the use of the mark upon his right to relief in equity, has been comprehensively stated by Mr. Justice Shiras, as follows: "When the owner of a trademark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not in his trademark, or in his advertisements and business, be himself guilty