Page:Harvard Law Review Volume 4.djvu/339

323 V CASES ANALOGOUS TO TRADE-MARKS. 323 justice, or, as it is called, the principles of equity; that a trade- mark proper, being an exclusive right in an individual, the acqui- sition of this right had to be limited by certain rules ; that this right, once acquired, becomes absolute, and that to constitute a breach of this right there must be a technical breach, independently of the question of the equity of the case, or rather independently of fraud, for there is no equity unless the technical trade-mark has been infringed. Side by side with trade-marks has grown up another class of cases known as "cases analogous to trade-marks," — trade-names, trade-signs, the good- will of a business, etc., — as distinctive in their way as trade-marks, and as ancient. The Egyptians, the Greeks, the Romans, used striking sign-boards to distinguish their various trades. Addison devotes one number of the "Spectator"^ to the various trade-symbols and trade-signs of the city of London. Tavern signs, such as the "White Horse," the "Blue Boar," the "Hand and the Bell," have long been in use. Cases analogous to trade-marks, however, differ from trade-marks in that they are not a mark stamped on goods which pass from hand to hand, and therefore are not technically trade-marks and do not fall within the rules of trade-marks. They differ from trade-marks in form, not in kind. Each owes its existence to the desire of the indi- vidual to stand out from the surrounding masses, and fairly, in the face of men, to get the full advantage to which his ability and industry entitle him. In the class of cases known as "analogous to trade-marks," the right of a plaintiff is very different from what it is in cases of trade- marks proper. Here there is no question of a technical, well-defined right, an exclusive right; there is no certain mark or sign to which an individual is establishing a permanent claim; by the nature of the claim there is no possibility of registration. What each plaintiff asks is this: that he shall be 'protected against the fraud of a particular defendant. Fraud being an essential element in this view, the court must find a fraudulent intention from the peculiar circumstances of each case. As there is no question of granting an exclusive right, the court may apply to the facts of each case, without regard to the limitations by which it is bound in cases of technical trade-marks, the equitable principles which underlie the law of trade-marks. And the court may give
 * No. 28, April 2, 1711.