Page:Harvard Law Review Volume 4.djvu/337

321 CASES ANALOGOUS TO TRADE-MARKS. 321 ON CERTAIN CASES ANALOGOUS TO TRADE-MARKS. THE law of a class of cases analogous to trade-marks is still in the process of evolution, and it may be useful to con- sider the principles which should govern the decision of cases of this sort. The symbolism of commerce, conventionally called "trade-mark," is, according to Mr. Browne, in his excellent work on trade-marks, as old as commerce itself. The Egyptians, the Chinese, the Babylonians, the Greeks, the Romans, all used various marks or signs to distinguish their goods and handiwork. The right to protection in such marks has come to be recognized throughout the civilized world. It is, however, during the last seventy or eighty years that the present system of jurisprudence has been built up. In 1742 Lord Hardwicke refused an injunction^ to restrain the use of the Great Mogul stamp on cards. In 1783 Lord Mansfield^ laid the foundation of the law of trade-marks as at present devel- oped, and in 181 6, in the case of Day v. Day, the defendant was enjoined from infringing the plaintiff's blacking label. From that time to the present day there have arisen a multitude of cases, and the theory of the law of trade-marks proper may be con- sidered as pretty clearly expounded. In 1875 the Trade-marks Registration Act provided for the registration of trade-marks, and defined what could in future properly be a trade-mark. In this country the Act of 1870, corrected by the Act of 1881, provided for the registration of trade-marks. The underlying principle of the law of trade-marks is that of preventing one man from acquiring the reputation of another by fraudulent means, and of preventing fraud upon the public; in other words, the appHcation of the broad principles of equity. "I think that the principle on which both the courts of law and of equity proceed, in granting relief and protection in cases of this sort," says Lord Langdale in Perry v. Truefitt, "is very well under- stood. A man is not to sell his own goods under the pretence that they are the goods of another man. He cannot be permitted ^ Blanchard v. Hill, 2 Atk. 484. * Singleton v. Bolton, 3 Doug. 293.