Page:Harvard Law Review Volume 12.djvu/268

248 248 HARVARD LAW REVIEW. gess with the words " essence of anchovies " as would cause his product to be known as " Burgess's Essence of Anchovies." ^ The character of the plaintiff's trade may have been a factor in the decision. Different articles are sold to different classes of per- sons and according to the education and carefulness of the pur- chasers is the degree of distinction necessary to protect the old maker. A striking application of this rule is found in the case of Johnston v. Orr Ewing,^ relating to the imitation of a ticket on cotton goods, the ratio decidendi of which is thus stated by Lord Selborne. " But although the mere appearance of these two tickets could not lead any one to mistake one of them for the other, it might easily happen that they might both be taken by natives of Aden or of India unable to read and understand the English lan- guage, as equally symbolical of the plaintiffs' goods." Most things are probably now sold to a larger, more hetero- geneous and less careful class than they were when Burgess v. Burgess was decided. A man's trade is no longer confined to his own neighborhood, but is often world-wide, and in this fact lies one of the grounds for the increased strictness of the courts in preventing imitations.^ We can see the progress in England from two recent decisions of the House of Lords on the closely related subject of the unfair use of descriptive names. In Montgomery v. Thompson,* it appeared that the plaintiffs and their predecessors had for a hundred years carried on a brewery at Stone, and their ale had become known as " Stone Ale." The defendant built a brewery at Stone over which he placed the words " Montgomery's Stone Brewery," with a device containing the words " Stone Ale " and a monogram somewhat resembling the plaintiff's trademark. An injunction was granted against carrying on the business of a brewer at Stone under the title of *' Stone Brewery " or " Montgomery's Stone Brewery " or 1 Reddaway v. Banham, [1896] App. Cas. 199; R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 70 Fed. Rep. 1017 ; Baker v. Baker, 77 Fed. 181 ; Baker v. Sanders, 80 Fed. Rep. 889. 945 ff. " Tlie difference is between dealing with a local community understanding all the circumstances, and dealing with the great public, scattered throughout the United States, with no opportunities of information, except what is communicated to them by the word, ' LePage ' in combination with the word ' glue.' "
 * L. R. 7 App. Cas. 219, 225.
 * As is said by Putnam, J., in LePage Co. v. Russia Cement Co., 51 Fed. Rep. 941,
 * [1891] App. Cas. 217.