Page:Harvard Law Review Volume 10.djvu/319

293 UNFAIR COMPETITION. 293 That an exclusive right in plaintiff is not essential was held in an analogous case in a Circuit Court in Carson v. Ury,^ where an in- junction was granted at the suit of a member of a Labor Union against a printer who sold imitation Union labels, the bill alleging that the public and the plaintiff were defrauded and the plaintiff injured in his business. ^ The owner of a business name, too, is protected against others not of that name,^ and may even acquire a right by user against those of the same name, compelling the second user to distinguish himself.* It will be observed that the line of cases of which Association v. Piza is one^ give protection without regard to exclusive right in the plaintiff, as against one who cannot use the geographical name truthfully. That a right may be acquired by user, in a geographical trade name, as against those who can use it with as much truth as the plaintiff, appears to be the doctrine of a line of English cases. In Wotherspoon v. Currie,^ the plaintiffs were makers of starch, at first at Glenfield, and afterwards at aiiot her place ^ and their starch was known as the " Glenfield " starch. The defendant began to make starch at Glenfield, and sold it in packages upon which that word was printed in large letters, together with defendant's name. Injunction granted to restrain the defendant from using the word In Thompson v. Montgomery ^ plaintiffs and their predecessors for one hundred years had made ale at Stone, and their ale was widely known as ** Stone " ale, which name had been refused registration as a trade mark. They were the only brewers at Stone until the defendant commenced to brew ale there, and sell it as "Stone" ale, and also to imitate the plaintiff's labels. Injunction restraining the defendant from using the words " Stone Ale."^ In these cases the decision is rested upon the ground of fraud, and it is freely admitted that the plaintiff can have no property in the descriptive word. It is difficult to see, if the plaintiff is denied a right in the descriptive word upon the ground that others have 1 39 Fed. Rep. 777. 2 People V. Fisher, 50 Hun, 552; Perkins v. Heart, 39 N. Y. Supp. 223; 5 App. Div. 335, accord. Schneider v. Williams, 44 N. J. Eq. 391 ; Cigar Makers' Union v, Companni, 40 Minn. 243; Weener v. Brayton, 152 Mass. loi, contra, 3 Hohner v. Gratz, 52 Fed. Rep. 871. 4 Johann Hoff v. Tarrant & Co., 71 Fed. Rep. 163. « L. R. 5 H. L. 508. ■^ Thompson v. Montgomery, 41 Ch. D. 35. 8 Powell V. Birmingham Brewery Co., [1894] 3 Ch. 449, accord.
 * ' Glenfield " in connection with his starch.
 * Note 2, page 292.