Page:Harvard Law Review Volume 8.djvu/398

382 382 HARVARD LAW REVIEW. slander, we are of course here concerned only with that part which deals with the nature of the unlawful utterances and the fact of publication ; other portions belong under the heads of Responsi- bility and Excuse. (4) The diversion of patronage by substitu- tion of merchandise, etc., fraudulently represented as the plaintiff's (one of the unjustified forms of interference already mentioned) is also given special "prophylactic" protection, though this has come by statute, not by common law; by the registration of trademarks under statutory regulations an additional and stronger right is given. It is distinctly " prophylactic " in that the registered owner of the trademark-right does not base his claim upon a specific diversion of patronage; as in libel and in words slanderous /^-r .y^, his right is against certain conduct, apart from actual harm done, — in this case, the right not to have the trademark used, whether or not a specific customer has been lost.^ 8. The other sort of right just mentioned (under Sundry Voluntary relations) is the right against diversion of patronage by the repro- duction of one's private inventions, literary and industrial, — the so-called common-law copyright and the right to trade-secrets. General convenience, however, demands that after publication to the community they shall cease. Yet here again, a " prophylac- tic " right has by statute been established on condition of regis- tration according to certain regulations which make it possible to identify and authenticate one's creations, as it would not be without some such facilities; this absence of registrationary authentication probably justifies the common-law refusal to recognize the right of copy and of trade-secrets (they are analogous to patents) after publication.^ The statutory right of patent and of copy is dis- 1 Browne on Trademarks, §§ 468, 501 (the damage is said to be " presumed "). 2 Space does not suffice for detailed exposition of this analysis ; but this much must be said : — (a) The right to trade-secrets is sometimes placed on the ground of breach of confi- dence, i. e. a contractual duty. But the right would exist against one who had stolen a trade-secret as well as against the stealer of a manuscript lecture; and the former light seems to be genuinely a common-law patent-right, on the same footing as common-law copyright, (b) The right of privacy and the common-law copyright must be strictly distinguished. In such cases as Mr. Gilbert's suit against the "London Star" for giving out in advance the libretto of his new opera, and Miss Harriet Monroe's suit against the " New York World " for premature publication of the World's Fair Ode, the right of privacy is in no way involved. The purpose in such cases is to prevent the diversion of profits or injuring of the market available for the author's work ; the author intends to publish in good time, and has a right to all the profits then to be secured. But in the genuine right of privacy the complainant is seeking not to con- serve profits, but to prevent publication of that which he wishes to keep permanently private; the injury anticipated is not to his pocket but to his feelings.