Page:The Green Bag (1889–1914), Volume 16.pdf/701

 044

of the public. To carry the metaphor fur ther, the public may not use the road so as to damage the land on the side. The publication must be complete, so that there is not only adoption, but also an actual use of the name by the plaintiff. Even an intention to publish, registered at the copyright office, is held in sufficient to protect against the use of the same name by another.1 Exclusive right to use a name, as a title of a publica tion, can not be acquired by public advertise ment of an intention to use the name, or by the expenditure of money in preparation for publication. Only actual publication can give title. Expenditure by a man on a work not given to the world can not create a right against the world and the person advertising his intention to use a name may. change his mind and never do so. If pro tection were given without publication, a man might take a valuable tradename and, like a dog in the manger, obstruct others, while not using the name himself. A per son, however, who published a magazine called Belgravia before another, whom he knew to have advertised his intention to use the name for that purpose, may not restrain the other from such use. The resemblance of the defendant's article to the plaintiff's must be such as to justify the belief that there was an intent to pass off his goods for the plaintiff's. If such resemblance is established, equity will pro tect the wronged trader.2 This principle comes frequently into use in connection with the names of newspapers and periodicals. Where they are different in times of publica tion, size, shape and arrangement, it is diffi cult to convince the court that one wrongs the other and practically impossible to ob tain a preliminary injunction. Thus Inquire Within for Everything,3 a copyright work 'Maxwell v. Hogg, 12 Jur. N. S. 17, s. c. 15 W. R. 467. 'Am. Grocer Pub. Asso. v. Grocer Pub. Vo., 5 How. Pr. 402. 'Houlston v. Morley, 90 L. T. Jour. 40.

formerly issued as a book, then as a monthly, and finally in weekly parts, was not infringed by a weekly magazine, entitled Inquire With in; the Birmingham Daily Mau was not in fringed by the Morning Mail*; the Contem porary Review by the Nineteenth Century? the New Northwest by the Northwest News* the Morning Post by the Evening Post7; the Triweekly Mail by the Morning Mails; Our Young Folks' Magazine by Our Young Folks' Illustrated Paper»; the Monthly Railroad and Engineering Journal by the Weekly Engineer ing Xews and American Railway Journal10; the Newcastle Chronicle by the Sporting Chronicle, published at Newcastle11; the Plumber and Decorator and Journal of Gas and Sanitary Engineering by the Decorator, Plumber and Gasfitters' Journal12, or by the Plumbing and Decorating, Sanitary, Water, Gas, Engineering Chronicle; the DemocraticRepublican New Era by the Nerv Era13; Lon don Society by English Society1*; the Prin cess Noï'clettcs by the Princess"; the Na tional Advocate by the New York National Advocate™; The Era, in which appear articles signed "Touchstone," by Touchstone, or the New Era"; Punch by Judy, or by Punch and Jitdy1*. In the last case, all three were hu morous papers of the same size and appear ance, but the covers and price of the third 'Jaffray v. Emmett, Sebastian 4th ed. 296. 5Strahan v. King, ю Cent. L. J. 124. "Duniway v. N. Y. Pub. Co., n Or. 322. 'Borthwick v. Evening Post, 37 Ch. D. 449. "Walter v. Emmott, 53 L. T. N. S. 437. "Osgood v. Allen, Fed. Cas. 10603. "Forney v. Engineering News, ю N. Y. Supp. 814. Semble the Baltimore Herald, a weekly, is not damaged by the daily Baltimore Morning Herald; Smith v. Herald Co., 2 Md L. Rev. 81. "Cowen v. Hutton, 46 L. T. N. S. 197. "Dale v. Smith. 1882. W. N. 185; Dale с Gen'I Co., 17 T. L. R. 177. 13BeIl v. Locke, 8 Paige Ch. 75. "Clowes v. Hogg, 1870, W. N. 268. "Brett v. Bowles, Sebastian 296. 10Snowden v. Noah, i Hopk. 347. "Ledger tj. Ray, Cox Dig. 550. "Bradbury v. Beeton, 39 L. J. Ch. 57.