Page:Harvard Law Review Volume 32.djvu/218

182 iS2 HARVARD LAW REVIEW The cases on the doctrine of secondary meaning seem to divide themselves into two classes, depending on whether or not the imitated features are func- tional, i. e., essential to the commercial success of the article. When the dis- tinctive characteristics are non-functional, the defendant's conduct is palpably unfair, and marked changes are ordered. Yale and Towne Mfg. Co. v. Alder, 154 Fed. 37, 83 C. C. A. 149; Hiram Walker v. Grubman, 222 Fed. 478. Even the appearance of the defendant's name is insufiScient, unless it is clear no confusion will result. Fox v. Glynn, 191 Mass. 344, 78 N. E. 89; Enterprise Mfg. Co. V. Landers, 131 Fed. 240, 65 C. C. A. 587. But when all the elements are functional, usually no relief is given. Globe-Wernicke Co. v. Fred Macey Co., 119 Fed. 696, 56 C. C. A. 304; Marvel Co. v. Pearl, 133 Fed. 160, 66 C. C. A. 226; Daniel v. Electric Hose and Rubber Co., 231 Fed. 827; Edward Felker Mop Co. V. U. S. Mop Co., 191 Fed. 613, 112 C. C. A. 176; Diamond Match Co. v. Saginaw Match Co., 142 Fed. 727, 74 C. C. A. 59. However, a clearly in- expensive noticeable alteration is ordered. Flagg Mfg. Co. v. Holway, 178 Mass. 85, 59 N. E. 667; Edison Mfg. Co. v. Gladstone, 58 Atl. 391 (N. J.). In the principal case, all the characteristics are apparently functional, and it would seem that in alleging unfair competition the plaintiff should have had the burden of showing a commercially practicable means of distinguishing the products. The better analysis, however, sanctioned by the result in the principal case, is that the defendant is interfering with the plaintiff's interest in a valuable good will, and the justification that the injury is due to fair compe- tition is an affirmative defense to be proven by the defendant who sets it up. Vendor and Purchaser — Implied Warranty in Sale of Cattle — Negligence — Duty to Disclose Contagious Disease. — Defendant sold a calf to the plaintiff, who, although not a veterinary, was known to be skilled in diagnosing and treating diseases of cattle. Defendant knew the calf had ring-worm, a contagious disease common in the locality, but did not disclose the fact. Plaintiff did not buy the calf until he had had it on trial, and he knew the calf was not sound, although he was imaware of the nature of its ailment. The disease was communicated to other cattle belonging to plaintiff and to himself and his son. By statute it was forbidden to sell animals afflicted with contagious diseases. (Animal Contagious Diseases Act, Rev. St. Can., 1906, c. 75, §§ 35-38.) Held, that there was no implied warranty, and that the statute gave plaintiff no right of action. O'Mealey v. Swartz, [1918] 3 West. Wkly. Rep. 98 (Saskatchewan). The holding that there was no implied warranty seems justified, since the vendee apparently relied on his own judgment. Hight v. Bacon, 126 Mass. 10; Waeber y. Talbot, 167 N. Y. 48, 60 N. E. 288. See Kellogg Bridge Co. v. Hamil- ton, no U. S. 108, 1x6, and 25 Harv. L. Rev. 75. On the question of negli- gence, however, the court's conclusions cannot be accepted. A vendor, by the reasonable view, should use due care not to sell without warning articles which are likely to cause harm. Blood Balm Co. v. Cooper, 83 Ga. 856, 10 S. E. 118; MacPherson v. Buick Motor Co., 217 N. Y. 382, iii N. E. 1050. See Brett, M. R., in Heaven v. Pender, 11 Q. B. D. 503, 509. The English courts seem unwilling to hold a vendor liable for negligence in the sale of animals. Ward V. Hobbs, 4 App. Cas. 13. However, see contra. Skim v. Reutter, 135 Mich. 57, 97 N. W. 152; Grimes v. Eddy, 126 Mo. 168, 28 S. W. 756. In the principal case the court seems horrified at the thought that the general prin- ciple of negligence would hold one Uable for spreading a disease through his person. Such liabiUty has been imposed in at least one case. Missouri, Kansas &• Texas Ry. v. Wood, 68 S. W. 802 (Tex.). It shovdd be for the trier of fact to determine under the circumstances of the particular case whether non-disclosure amounted to negligence. But no judge or jury should be permitted to find it due care to violate a statute designed to prevent the very injuries for which