Page:Harvard Law Review Volume 10.djvu/315

289 UNFAIR COMPETITION. 289 generally speaking, a narrower thing than a business name, stand- ing usually for some one article dealt in by the business. Every one is familiar with that variety of trade name, hardly distinguish- able in its business importance and value from a business name, which is exemplified in the name of a house, either of entertain- ment, of manufacture, or of trade. The weight of authority in this country is to the effect that such a trade name does not become attached to the building. Whether in a particular case it does become attached or not is probably a question of fact. In Woodward v. Lazar,^ Wood v. Sands, '-^ and Mossup V, Mason,^ it was held in regard to hotel names that the name had not become attached to the house.* In Booth v. Jarrett^ it was held that the plaintiff's name had become attached to a theatre, and in Pepper v. Labrot ^ that the plaintiff could not re- strain the use of his name by the purchaser of his distillery from his assignee in bankruptcy, while in De Witt v. Mathey " it was held that the name '* The Saratoga," used and advertised by the plaintiff and his predecessors for thirty-five years as the name of a saloon, was not local, and that the plaintiff was entitled to protec- tion in its use on his removal to a new location. Apart from this question of locality, such names will always upon a proper showing receive protection.^ Actual use in business is essential to the creation of a right in such a trade name, for, as in the similar case of a personal name, there is no right to pro- tection to the name of a house apart from business,^ nor can any exclusive right be acquired in a descriptive name, as, for example, *' The Mammoth Wardrobe " for a clothier's shop.^^ This latter proposition, however, in view of some recent cases, must be considered as still an open question. These cases will be noticed later. There is still another class of trade names upon which questions arise more frequently than upon those just considered ; namely, those names applied to goods, although not affixed to them, by which they acquire reputation in the market and by which they are known. Such names, for example, as " Two Elephant " yarn,^^ 1 21 Cal. 448. « 8 Fed. Rep. 29. 2 Fed. Cas. 17963. "^ 35 S. W. Rep. 11 13 (Ky.). 8 18 Grant Up. Can. 453. 8 Howard v. Henriques, 3 Sandf. 725. 5 52 How. Pr. 169. 1*^ Gray v. Koch, 2 Mich. N. P. 119. 11 Orr, Ewing & Co. v. Johnson & Co., 40 L. T. N. s. 307. But see Lorillard v. Pride, 28 Fed. Rep. 434. 39
 * Mason v. Queen, 23 Scot. L. R. 646, contra. ® Day v. Brownrigg, 10 Ch. D. 294.