Page:Federal Reporter, 1st Series, Volume 1.djvu/45

 SAWYER V. HOBN. oi �The supreme court, by Mr. Justice Clifford, delivering its unanimous decision, said : "Positive proof of fraudulent in- tent is not required when proof of infringement is clear, as the liability of the infringer arises from the fact that he is onabled, through unwarranted use of the trade-mark, to sell a simulated article as and for the one which is genuine. Nor is it necessary, in order to give a right to an injunction, that a specifie trade-mark should be infringed, but it ia sufficient that the court is satisfied that there was an intent on the part of the respondent to palm off his goods as the goods of the complainant, and that he persists in so doing after being requested to desist. DifEculty frequently arises in determining the question of infringement, but it is clear that exact similarity is not required, as that requirement would always enable the wrong-doer to evade responsibility for his wrongful acts. Colorable imitation, which requires eareful inspection to distinguish the spurions trade-mark from the genuine, is sufficient to maintain the issue ; but courts of equity will not interfere when ordinary attention by the jDur- chaser would enable him at once to diserimiinate the one from the other. Where the similarity is sufficient to convey a false impression to the public mind, and is of a character to mis- lead and deceive the ordinary purchaser, in the exercise of ordinary care and caution in suoh matters, it is sufficient to give the injured party a right of redress if he has been guilty of no laches. Argument to show that the name of the pills, as givenin the trade-mark of the respondent, was of a char- acter to mislead and deceive, is scarcely necessary, as they are idem sonans in the usual pronunciation ; nor can it be doubted that the form of the box containing the pills, and the general appearance of the wrapper which surrounded it, were calculated to have the same effect. Mention may also be made of the fact that the color of the label and the wax impression on the top of the box are well suited to divert the attention of the unsuspecting buyer from any critical exami- nation of the prepared article. Chancery protects trade- marks upon the ground that a party shall not be permitted ��� �