Page:Federal Reporter, 1st Series, Volume 1.djvu/42

 34 FEDBBAL BBPOBTEB. �lactory which belonged to the testator in this cause, I stated on a former occasion that in my opinion the right which any person may have to the protection of this court does not depend upon any exclusive right which he may be supposed to have to a particular name or to a particular form of words. His right is to be protected against fraud. It is truly said that if any one takes upon himself to study these two labels he wiU find several marks of distinction. On the other hand the colors are of the same nature, the labels exactly the same size,the letters are arrangea precisely in the same mode, and the very same name appears on the face of the jars. It appears to me that there is quite sufficient to mislead the ordinary run of persons, and that the object of the defendant is to persuade the public that this new establish- ment is in some way or other connected with the old firm, and at the same time to get purchasers to go to 90J Holburn Hill, and not to 97 High Holburn. I think what has been done is quite calculated to effect that purpose, and the de- fendant must be restrained. �"My decision does not depend on any peculiar or exclusive right the plaintiffs have to use the names Day & Martin, but upon the fact of the defendant using those names in connec- tion with certain circumstances, and in a manner calculated to mislead the public, and to enable the defendant to obtain, at the expense of Day's estate, a benefit for himself to which he is not in fair and honest dealing entitled." �In the case of Holloway v. Holloway, (1850,) 13 Beav. 209, the plaintiff having established a reputation for preparations known as HoUoway's pills, and ointment, his brother Henry began to sell H. HoUoway's pills and ointment, put up in sim- liar boxes, and with labels and wrappers similar to plaintifif's. The maater of the rolls said that, although the defendant had a right to constitute himself a vendor of HoUoway's pills and ointment, he had no right to do so in such way as to deceive the public, and make them believe he was selling the plain- tiffs medicines, and that he could not be allowed to perpetrate gueh a fraud. �In the leading case of The Leather Cloth Co. v. American ��� �