Page:Harvard Law Review Volume 10.djvu/310

284 284 • HARVARD LAW REVIEW, and in Hildreth v. McDonald/ against printing in red ink upon a package, every feature of which was common to the trade except the color of the ink used in the printing. In Cook v. Ross,^ the plaintiff was held to have an exclusive right in a bottle of peculiar shape. Upon the strength of these cases it may be said that an exclusive right may be acquired in matters which have heretofore been held to be of common right, and not capable of exclusive appropriation; — a conclusion which is against the reasoning and decision of the limiting cases just cited, and also against the anal- ogy of those trade mark cases which deny a right to appropriate a descriptive word. Before leaving these " dressing up " cases, for the time being, it should be noted that they are in reality trade mark cases of a rather refined sort, too late upon the scene to obtain admittance where they belong,^ for it is impossible to draw any distinction of principle between an unregistered trade mark, which indicates the origin of the article to which it is applied, and the ''dress" of an article, which equally and in the same way serves to indicate origin. Whatever distinction there may be, it cannot be said to be of much practical importance, when it is considered that the test of infringement of a trade mark is the probability of deception, while in the " dressing up " cases, if there is probabiHty of decep- tion, relief will be granted. The connection between trade mark cases a'nd the " dressing up " and " substitution " cases is obviously closer than that between those cases and the other unfair competition cases relating to busi- ness names, trade names, and trade secrets, the common link bind- ing all these branches being the good will of which each branch is a part. In every unfair competition case the defendant's attempt is to appropriate to himself some part of the good will, or the entire good will, of the plaintiff's business. It will be obvious, therefore, that any given rule of law applicable in trade mark cases, so far as it arises out of the nature of trade marks as a part of good will, is equally applicable to the other parts of good will, not by analogy, but because the cases are for the purpose of that particular rule identical. In cases, however, where the rule does not arise out of the nature of good will property, but is applied upon general reasons of policy, any branch of the law may with propriety be resorted to in the search for analogies. 1 164 Mass. 16. 8 Morgan v. Troxell, 23 Hun, 632; s. c. 11 Reporter, 241. 2 73 Fed. Rep. 203.