Page:Harvard Law Review Volume 12.djvu/273

253 THE DECEPTIVE USE OF ONE'S OWN NAME. 253 fraudulent intention which undoubt Pf^^y ^^t^ '^'^ ^ffgri ^- on the mind s of the judges, but also that the decision of the Court of Appeals relates to the assumption by the defendant of a corporate name ; on the other hand however, the defendant succeeded to the busi- ness of a firm and thereby acquired as good a right to use the name as its predecessors had,^ and, moreover, the order of Romer, J., related to a firm name, and the Court of Appeals not only approved this order, but intimated that they would have granted the same relief against the firm which they did against the corpora- tion ; Lord Justice Lindley saying: " it appears to me that when the three Brinsmeads tried to get rid of this order, by getting rid of Wilcox and carrying on business under their own name and selling pianos under their own name of Thomas Edward Brinsmead & Sons, although it might not have been possible to commit them for contempt of this order, I cannot doubt for a moment that Mr. Justice Romer would have made a fresh order restraining them, if it had been supplemented by evidence that the course of business did mislead the public and did induce them to buy the defendant's pianos for the plaintiff's." The case in all its stages certainly indicates a willingness to go a long way in restraining a man in the use of his own name if the use is deceptive. There have been two decisions on the subject by the same court in favor of the defendant. The report of Jamieson v. Jamieson ^ is so brief that it is impossible to draw from it any reliable conclusions.^ Turton v. Turton* was a bill to enjoin the 1 Fish V. Fish, 87 Fed. Rep. 203. 2 14 L. T, R. 160. 8 Since the above text was in type a full report has been published in 15 Rep. Pat. Cas. (Eng.) 169, from which it appears that there were three manufacturers of harness dressing in Aberdeen all named Jamieson, viz., Peter Jamieson, James Jamieson, and the plaintiffs Jamieson & Co. Peter Jamieson was much the oldest, and when the plaintiffs first started he compelled them by legal proceedings to adopt certain distin- guishing features; although their packages and labels remained generally similar to his. The defendant, whose labels the plaintiffs sought to have enjoined had not imi- tated any of the distinctive points in the plaintiff's labels, but only those common to the trade, and the Court of Appeals thought that if the peculiarities adopted by the plaintiffs were sufficient to prevent their goods from being mistaken for Peter Jamie- son's, they must also be enough to distinguish them from the defendant's. The plain- tiff's case also presented 'other difficulties ; nevertheless the opinion of Byrne, J., granting an injunction in the lower court, seems more in accord with the progressive spirit shown by the recent decisions of the House of Lords.
 * 42 Ch. D. 128.