Page:Harvard Law Review Volume 10.djvu/307

281 UNFAIR COMPETITION. 28 1 and covenants^ and testimonials given to the business.^ And as the good will itself is property, the parts of which it is made up are, separately considered, property.^ The notion of property in good will, and the constituent parts of good will, is of the highest importance, as upon it from the first the jurisdiction of equity has been solely based, and from this idea has flowed the fundamental rule that to recover the plaintiff must show a right at the very least as against the defendant. The courts have proceeded upon the theory of protecting property where the legal remedy w^as inadequate or illusory, or irreparable damage possible. Protection of the public from deception has been more than once put forward as a ground for interference, but it is well settled that equity has no jurisdiction upon this ground.* Deception of the public is material only as the test of infringement, and as bearing upon the question of damages. In the Emperor of Austria v. Day & Kossuth,^ the defendants, without the authority of the plaintiff, who was the King of Hungary, issued notes purporting to be Hungarian notes. Injunction granted to restrain the defendants from issuing such notes on the ground of property in the plaintiff. Per Turner, L. J. : "I agree that the jurisdiction of this court in a case of this nature rests upon injury to property, actual or prospective, and that this court has no juris- diction to prevent the commission of acts which are merely crimi- nal, or merely illegal, and do not affect any rights of property." In the Leather Cloth Co. v. The American Leather Cloth Co.,^ Lord Westbury, C, says: **The true principle therefore would seem to be, that the jurisdiction of the court in the protection given to trade marks rests upon property, and that the court interferes by injunction because that is the only mode by which property of this description can be effectually protected." But it should be held in mind that property in matters such as we are considering differs of necessity, in many important particu- lars, from property in other subjects of ownership. A trade mark, 1 Showell V. Winkup, 60 L. T. N. s. 389. 8 McLean v. Fleming, 96 U. S. 45 ; Schneider v. Williams, 44 N. J. Eq. 391 ; Hov- enden v. Lloyd, 18 W. R. 1132; Le Page Co. v. Russia Cement Co., (C. C. A.) 51 Fed. Rep. 941 ; Oakes v. Tonsmiere, 49 Fed. Rep. 447 ; James v. James, L. R. 13 Eq. 421. Ch. D. 436; Weston v. Ketchum, 51 How. Pr. 455. See Chadwick v. Covell, 151 Mass. 190. 6 3 DeG. F. & J. 217. « 4 DeG. J. & S. 137. 38
 * Franks v. Weaver, 10 Beav. 297.
 * N. Y. Cement Co. v. Coplay Cement Co., 44 Fed. Rep. 247 ; Levy v. Walker, 10