Page:Harvard Law Review Volume 4.djvu/343

327 CASES ANALOGOUS TO TRADE-MARKS. 327 assume the same name ... in such a way as to induce per- sons to deal with him in the belief that they are dealing with the person who has given a reputation to the name." The key-note is fraud; fraud on the public and fraud on the individual injured in his business. In this country the great distinctive principle has not been enunciated with as great clearness as in England, but I think the decisions show a recognition of it. In Colton V. Thomas, 2 Brews. 308, the plaintiff practised as a dentist under the name of the Colton Dental Association. The defendant, who had been in his employ, left him and put up a sign reading, "Dr. F. R. Thomas, late operator at the Colton Dental Rooms," the words "late operator at the" being in very small letters. Injunction granted to restrain the defendant from using such signs and cards, and from representing his place of business to be the plaintiff's. The case of Saunders v. Jacobs, 20 Mo. App. 96, is similar; the name "Newark Dental Rooms" was enjoined as being too much like "New York Dental Rooms." The "What Cheer House" was held to be a name which a rival hotel-keeper could not use (Woodward v. Lazar, 21 Cal. 448). In Howard v. Henriques, 3 Sandf. 725, the proprietor of the "Irving House" was allowed to restrain the defendant from opening a hotel under the same name. The court, by Mr. Justice Campbell, said: "We are not disposed to interfere with the lawful pursuits of any one. Every man may and ought to be permitted to pursue a lawful calling in his own way, provided he does not encroach upon the rights of his neighbor or upon the public good. But he must not by any deceitful or other practice impose upon the public; and he must not, by dressing himself in another man's garments, and by assuming another man's name, endeavor to de- prive that man of his own individuahty, and thus despoil him of the gains to which by his industry and skill he is fairly entitled." Mr. Browne, in commenting on this case, § 96, says that the name of a hotel cannot be twisted into a trade-mark. "Then, if not a case of trade-mark, what was it? It was exactly what the Supe- rior Court called it: the * good-will' of the estabHshment. The case did not call for a definition. All that was required was sub- stantial justice, upon the allegation of the invasion of an equi- table right." In Walker v. Alley, a Canadian case reported in 13 Grant Up. Can. Ch. 366, the plaintiff had established a dry-