Page:Harvard Law Review Volume 10.djvu/308

282 282 HARVARD LAW REVIEW, a business name, or a trade name, derives its value from the esteem in which it is held by the public, and to create this esteem, labor, money, and time, not to mention other nobler elements, must all be combined. ** I take property, when used in this connection and sense, to be a means by which money or money's worth, in the shape of profit or otherwise, is created or obtained." Per Van Koughnet, Chancellor of Upper Canada, in Walker v. Alley .^ If the cases, stated above, be examined, it will be found that the wrongful act of the defendant in any particular case was an attempt, upon the part of the defendant, to appropriate to himself the benefit of some one or another of the constituent parts that go to make up the good will of a business. The omnibus case, though the parent case of all the " dressing up " cases, is distinct from them, and peculiar in this, that the gen- eral appearance of the omnibuses and their crews really represented the business of the plaintiff. The attack was upon the entire good will of the plaintiff's business. The " dressing up " cases on the other hand are, as will be hereafter explained, in reality trade mark cases. The attack upon the good will in the " dressing up " cases, then, is an attack upon a trade mark. The same is true in the " substitution " cases,^ the inferior quality of the goods lessening confidence in the trade mark; a secondary effect being that the defendant is enabled to appropriate in part the plaintiff's market by the confidence which the use of the trade mark inspires. In Carlsbad v. Tibbets,^ Merriam v. Texas Siftings Co.,* and Orr, Ewing & Co. V. Johnson,^ the attempt was made to appropriate the benefit of the trade name, and in Howard v. Henriques^ the appro- priation attempted was of a local trade name. The other cases illustrate attempts more or less direct to appro- priate the benefit of an established business name. "Dressing Up." In all the " dressing up " cases cited above, the defendant " ac- cumulated resemblances." The plaintiff's right was not rested upon any one thing. It did not consist in shape alone, nor in color 1 13 Grant Up. Can. Ch. 366. 2 Hennessy v. Hogan, 6 W. W. & A'B. Eq. 216 ; Hostetter v. Brueggemann Co., 46 Fed. Rep. 188. 8 51 Fed. Rep. 852. * 40 L- T. n. s. 307.
 * 41 Fed. Rep. 944. • 3 Sandf. 725.