Page:Harvard Law Review Volume 10.djvu/311

285 ' UNFAIR COMPETITION. 28$ To the " dressing up " cases, whether they be regarded as in reality identical with cases in which an unregistered trade mark is the base of the plaintiff's right, or merely as closely related cases, obviously the general rules applicable to trade marks may be applied, including the fundamental one that actual user by the plaintiff is necessary to establish a right, and the rules governing the length of user necessary to establish a right. These rules arise out of the nature of the right, which is established only by knowledge on the part of the public, and obviously such knowledge cannot be created without user, and cannot exist apart from user; and this rule is applicable and applied in other good will cases, as, for instance, cases of business name ^ and trade name.^ Another fundamental rule of the trade mark law is, that merely descriptive words cannot be exclusively appropriated. This is obviously a rule of policy, its reason being that the use of descrip- tive words for descriptive purposes is a matter of common right to all men, and the strictness with which the rule is applied may be accounted for by considering the fact that an arbitrary word, while hardly trenching at all upon common right, affords equal protection to the user. The application by analogy of this rule may be traced in those "dressing up" cases which deny a plaintiff's right to appropriate form or color, without other particulars, as distinctive of the origin of his goods. " Substitution." The " substitution " cases obviously bear a very close relationship to the "■ dressing up " cases, being but the converse of those cases. The re-use of genuine packages to contain spurious goods is very commonly attempted, and whether fraudulently practised or not it will be enjoined,^ and if the re-use is with fraudulent intent an account will also be given.* An injunction will also be awarded against the sale of goods genuine, but of inferior quality, in a pack- age, or with labels designed to imitate the package, in which the plaintiff markets his better goods; ^ and the vigor of the courts in the suppression of substitution has been pushed to the extent of 1 Beazley v. Scares, 22 Ch, D. 660. 2 Maxwell v. Hogg, L. R. 2 Ch. 307. Mark Cases, 549; Evans v. Von Laer, 32 Fed. Rep. 153. 6 Hennessy v. White, 6 W. W. & A'B. Eq. 216; Hennessy v. Hogan, 6 W. W. & A'B. Eq. 225 ; Gillott v. Kettle, 3 Duer, 624.
 * Barnett v. Leuchars, 13 L. T. N. s. 495; Hennessy v. Cooper, Sebast. Trade
 * Stonebreaker v. Stonebreaker, 33 Md. 252; Cartier v. Carlile, 31 Beav. 292.