Page:Harvard Law Review Volume 10.djvu/312

286 286 HARVARD LAW REVIEW, enjoining the unexplained sale of other goods to a customer calling for plaintiff's article, there being no infringement of any trade mark, "dress," or label.^ Business Names. A business name is that name under which a business is car- ried on, whatever it may be, whether a personal name, as is com- monly the case, or not. There is no exclusive right in a name, merely as a name,^ pro- tection being given, as in trade mark and ** dressing up" cases, only after a right has been established by actual user in business;^ but when so used, the owner will be protected in the exclusive use of his business name.* It has been heretofore held that a medical man,^ or an artist,^ had not such a business interest in his name as to entitle him to protection ; but in the case of a medical man, at any rate, the strong dissent since expressed by eminent judges from the decision in Clark v. Freeman,^ and the peculiar facts of Olin V. Bate,^ make it seem probable that when the point again arises the rule now apparently established may not be applied. While a business name is property, passing to the personal rep- resentative,^ a distinction, growing out of the nature of the prop- erty, is made against an assignee in bankruptcy, who does not take an exclusive right as against the bankrupt.^ The right to a business name is very greatly qualified however, by the right of others of the same name to use it; ^^ but others of the same name must exercise their right in such a way as not to lead to confu- 1 Enoch Morgan's Sons v. Wendover, 43 Fed. Rep. 420; American Fibre Chamois Co. V. De Lee, 67 Fed. Rep. 329. 2 Du Bulay v. Du Bulay, L. R. 2 P. C. 430; Phelan v. Collender, 6 Hun, 244; Hallett V. Cumston, no Mass. 29. ^ Beazley v. Soares, 22 Ch. D. 660 ; Lawson v. Bank of London, 18 C. B. 84. 5 Clark V. Freeman, 11 Beav. 112; Olin v. Bate, 98 III. 53. ^ Martin v. Wright, 6 Sim. 297. ' Per Cairns, L. J., in Maxwell v. Hogg, L. R. 2 Ch, 307 ; Malins, V. C, in Spring- head Spring Co. v. Riley, L. R. 6 Eq. 561 ; Lord Selborne, C, in In re Riviera, 26 Ch. D. 48; Kay, J., in Williams v. Hodge & Co. 84 L. T. (Journal), 134. 8 Burke v. Cassin, 45 Cal. 467. 9 Helmboldt v. H. T. Helmboldt Mfg. Co., 53 How. Pr. 453. 10 Dence v. Mason, W. N. 1877, p. 23, 1878, p 42; Hallett v. Cumston, no Mass. 29; McLean v. Fleming, 96 U. S. 245 ; Massam v. Thorley Food Co., 6 Ch. D. 574; Prince Met. Paint Co. v. Carbon Met. Paint Co., Codd. Dig. 209 ; Meneely v. Meneely, 62 N. Y. 427 ; De Long v. De Long, 39 N. Y. Supp. 903 ; 7 App. Div. 33 ; American Cereal Co. v. Eli Petti John Cereal Co., 72 Fed. Rep. 903.
 * Hohner v. Gratz, 52 Fed. Rep. 871 ; Burke v. Cassin, 45 CaL 467.