Page:Harvard Law Review Volume 12.djvu/267

247 THE DECEPTIVE USE OF ONE'S OWN NAME. 247 decision. In Burgess v. Burgess,^ on the other hand, we have an instance in which the acts of the defendant were deceptive and probably fraudulent, but where nevertheless relief was refused be- cause he was not doing anything with which the court felt justified in interfering. The plaintiff had for many years been selling at No. 107 Strand a sauce for fish which he called " Essence of Anchovies." The defendant, the plaintiff's son, established him- self as a rival, and placed over his door a plate with the words " Burgess Fish Sauce Warehouse, late of 107 Strand," and sold his sauce under the name " Burgess's Essence of Anchovies." On an application for an injunction, Kindersley, V. C. restrained the defendant from continuing the use of the door-plate, and the words gess's Essence of Anchovies." The Lord Justices affirmed this decision, Lord Justice Knight Bruce, saying, " All the Queen's subjects have a right, if they will, to manufacture and sell pickles and sauce, and not the less that their fathers have done so before them. All the Queen's subjects have a right to sell these articles in their own names, and not the less so that they bear the same name as their fathers ; nor is there anything else that this defend- ant has done in question before us." The court referred to the circumstance that the motion was a preliminary one as an additional reason for refusing the injunction, and this is not the only instance in which plaintiffs in these cases have failed on a preliminary motion who might perhaps have succeeded had they waited until all the details were brought out on a final hearing. Still there can be no doubt that this decision is not what we should expect to see rendered now on similar facts ; perhaps the principles of law would be stated in the same language, but their application would be likely to lead to a different result, because less close imitations are now regarded as deceptive and enjoined. It is noticeable that as a rule the more cases of this kind a court has before it, the less hesitation there is in prohibiting any un- necessary similarity. Experience satisfies the judges that such resemblances are not accidental, and they are not inclined to give the wrongdoer the benefit of any doubt there may be as to the success of his design. In a case like the Burgess case, the new maker would probably now be required to use his christian name and to refrain from any such combination of the name Bur- 1 3DeG. M.& 0.896(1853).
 * ' Late of 107 Strand," but refused to prohibit the name " Bur-