Page:Harvard Law Review Volume 12.djvu/280

260 260 HARVARD LAW REVIEW. Referring to Sanders v. Baker, Morrow, J., says in a recent case: " It was held by the Circuit Court of Appeals that one entering into competition with another person of the same name, who has an old and established business, is bound to distinguish his goods from those of the latter, so as to prevent confusion." ^ And this is a cor- rect statement of the effect of that and of other recent decisions, with only the qualification that the defendant is not required absolutely to prevent deception of the public, but only to make real and appropriate efforts to do so. Nothing is said about fraud; the right, as above defined, exists equally, whether the deception is accidental or of set purpose. " Courts, in such cases, do not require proof of any peculiarly iniquitous ' perfidious dealing.' If the representation as to what or whose the goods are is calculated to deceive the purchaser into buying them as goods of the com- plainant, equity will enjoin its continuance, although the ' deceitful representation ' was placed upon them carelessly, or from lack of appreciation of the meaning it would convey to the purchaser, or from an honest mistake as to the defendant's right to use it." ^ The rule is the same in England. In Mitchell v. Henry ,^ Lord Justice James says : " The defendants must bear in mind that the original honesty of intention does not protect the continued user, if the user is found practically to have the result of deceiving, or is calculated to deceive purchasers, because it is very easy for manufacturers to avoid any possibility of misleading the purchasers if they are minded to avoid it" ^ In Reddaway v. Banham, Lord McNaghten refers to the finding of the jury that the defendant endeavored to mislead as not neces- sary for the relief asked.^ One is presumed to intend the consequences which a reasonable man would naturally foresee, and if he begins or continues a de- ceptive package after the fact that it is injurious has been pointed out, his actions are dishonest, and the only remaining question is whether the deception can be prevented without imposing undue restrictions on business. If it can there is fraud in the sense of a court of equity; otherwise, the plaintiff's loss is due to a decep- 1 California Fig-Syrup Co. v. Worden, 86 Fed. Rep. 212, 216. 2 Tarrant v. Hoff, 76 F. R. 959, 961. See also 51 Fed. Rep. 947. 8 L. R. 15 Ch. D. 181, 191. 429. Cf. Allen V. Flood, [1898] App. Cas. i. 6 [1896] App. Cas. 219, and vide ante, page 249.
 * See also Army & Navy Soc. v. Co-operative Society, 8 Patent Reports, Eng. 426^,