Page:Harvard Law Review Volume 12.djvu/271

251 THE DECEPTIVE USE OF ONE'S OWN NAME. 25 1 charge of falsehood, because in another sense which will not be conveyed and is not intended to be conveyed, it is true."^ This exposition of the law by the House of Lords is especially interesting because the facts had been found by the jury, and the court had only to determine whether the evidence justified the verdict, and if so, whether the verdict warranted an injunc- tion. Usually such cases come before a tribunal which passes on both law and fact, and perhaps the lords might have hesitated at finding, as the jury in substance did, that the use of two simple EngUsh words accurately describing the defendant's product was deceptive and that the words were used with the intention of pass- ing off the goods as those of the plaintiff. But they did not feel any doubt that the evidence supported such a verdict nor that on such a verdict an injunction must issue. The House of Lords has not yet had occasion to apply the prin- ciples enunciated in Reddaway v, Banham to cases of rival traders of the same name ; but there can be little doubt that they will so apply them unhesitatingly when the occasion arises ; and in that very case Lord Herschell classes a man's own name with other examples of descriptive words which must not be used deceptively, saying: " The name of a person, or words forming part of the com- mon stock of language, may become so far associated with the goods of a particular maker that it is capable of proof that the use of them by themselves without explanation or qualification by another manufacturer would deceive a purchaser into the belief that he was getting the goods of A when he was really getting the goods of B. In a case of this description the mere proof by the plaintiff that the defendant was using a name, word or device which he had adopted to distinguish his goods would not entitle him to any relief. He could only obtain it by proving further that the Asquith, Q. C. " When once you have established this proposition that the second- ary meaning of this term had become the dominant meaning, that is to say, that ' Camel Hair Belting ' was understood in the market as belting made by the plain- tiffs, and not merely as belting made of camel hair, then any person using that name in that market, even though he might do it innocently — (Lord Herschell. — Inno- cently, at any rate, until he found that he was interfering with somebody else.) Yes; the moment his attention is called to the fact that he is interfering with some other person, from that moment his user becomes illegal. (Lord Herschell. Then comes the question whether from that time he does it honestly. He may accidentally do it of course, but when he finds that he is deceiving people he is not entitled to go on doing it.) " 13 Rep. Pat. Eng. 223. ^^ CIEORGE R. WALK COUNSELOR AT LAV 59 WALL STPECT New YORK
 * During the argument this interesting colloquy occurred :