Page:Harvard Law Review Volume 12.djvu/274

254 254 HARVARD LAW REVIEW. use of the firm name John Turton Sc Sons. The plaintiffs had for many years carried on the business of steel manufacturers under the name of Thomas Turton & Sons. The defendant John Turton had for nearly as many years carried on a similar business in the same town, first as John Turton and then as John Turton & Co. In 1888 he took his two sons into partnership with him and carried on business under the firm name of John Turton & Sons. There was no evidence of any imitation of trademarks and labels nor of any other attempts to deceive the public ; no objection was made to the use of the name Turton which had been used by the defend- ant for years and was accompanied by his full Christian name ; the only thing asked was an injunction against the use of the words " & Sons." There was some evidence of confusion, but whether any part of this was due to the addition " & Sons " was not made clear. The Court of Appeals refused an injunction without hesitation and in the course of his opinion in Reddaway v. Banham, Lord McNaghten expresses surprise that so simple a case was ever reported. It is in the recent American cases that we find the best in- stances of the application of the general principles so clearly stated by the House of Lords to imitations of which the keystone is simi- larity of name. It is true that the distinction between such cases and those involving trademarks strictly so called was at first often overlooked, so that in some early decisions, injunctions were re- fused for the simple but inadequate reason there could be no trade- mark in a man's own name. On the whole, however, the results reached have generally been satisfactory. In McLean v. Fleming,^ an important and leading authority, we have a good illustration of a deception worked even more through the ear than through the eye. The complainant as successor to one Dr. McLane, made and sold "McLane's Liver Pills" and "Dr. C. McLane's Celebrated Liver Pills." They were put up in wooden boxes with wrappers on which the names given above were plainly printed in white on a black and white background. The defendant James McLean, put up pills in a somewhat similar box, on which were the words " James H. McLean's Universal Pills, or Vegetable Liver Pills," in white letters, but the arrangement of the letters and the character of the background was different. An injunction was issued and in the course of his opinion Mr. Justice Clifford thus states the 1 96 U. S. 245.