Page:The Green Bag (1889–1914), Volume 17.pdf/140

 NOTES OF RECENT CASES of undertaking the treatment of the sick. The doctor advertised himself as a cancer specialist and magnetic healer, and enumerated a list of ailments which was certainly intended to cover every disorder to which the human race is subject, all of which could be cured by mental science. The doctor was accompanied by Mrs. Heath, who conducted a teachers' class in "Individual and absent treatment in mental science, the art of attracting Opulence and scientific Autosuggestion, self-healing, health, magnetism, latent genius for business or any profession developed by treat ment, present or absent; development along psychic and occult lines a specialty." Although the doctor did not prescribe or use medicines, the court concluded that he must comply with the statute. It is stated that the power to prescribe such regulations for the practice of medicine as in the judgment of the legislature shall be necessary to protect the people from the consequences of ignorance or incapacity are so well settled as not to require citation of authority. Attention is called to the fact that the statute under consid eration does not discriminate between different schools of medicine. No method of attempting to heal the sick, however occult, is prohibited. All that the law exacts is that whatever the system, the practitioner shall be possessed of a certificate from the board of medical examiners. This ex cludes no one from the profession, but requires all to attain reasonable proficiency in certain subjects essential to the appreciation of physical con ditions. The object is not to make any particular mode of effecting a cure unlawful. It is pointed out that the individual alone often suffers from want of proper attention, but, on the other hand, in many cases of contagious or infectious diseases, the entire community may be in danger. The court refers to many authorities sustaining legis lative acts regulating the practice of medicine, and as to the application of these laws to those professing to be magnetic healers, cites People v. Phippin, 70 Mich. 6. 37 N. W. 888, and Parks v. State (Ind.), 64 N. E. 862. As applied to treat ment through Christian Science, it is stated that there seems to be some diversity of opinion, de pending somewhat as to whether the supposed agency relied on is divine or human. On this point the court cites Kansas City v. Baird, 92 Mo. App. 204, but states that they express no opinion upon the matter. TRADE-NAMES. (DISTINGUISHED FROM TRADE MARKS — UNFAIR COMPETITION.) IOWA SUPREME COURT. An interesting sximmary of the legal documents

127

applicable to that branch of the law known as "unfair trade" is to be found in the opinion of Chief Justice Deemer in the case of Sarter v. Schaden, 101 Northwestern Reporter 511. It would appear that the plaintiff used a certain label containing the word "She" for designating a brand of cigars manufactured by him, and had built up quite a trade in this particular brand of cigars. The label was a stock one purchased from a printing concern in New York, but this wasmodified after several years' use upon it coming to the attention of the plaintiff that it was used upon other brands of cigars in different localities. It was also registered as a trade-mark under the State law, but the printers of the label did not con sent to this registration. It was the custom of these printers not to sell labels to competing cigar manufacturers in the same locality. The labels were never copyrighted by the printers, but no one else had ever printed or sold the stock label printed by them. In discussing the unfair trade proposition the court says: "These rules, while new, are nevertheless well settled, and easily stated abstractly. Difficulty only arises in mak ing application thereof to concrete cases. There is a well-marked distinction between what is known as the ' infringement of a trade-mark' and 'unfair competition.' A trade-mark is an arbi trary, distinctive name, symbol, or device, to in dicate or authenticate the origin of the product to which it is attached. And an infringement thereof consists in the use of the genuine upon substituted goods, or an exact copy or reproduc tion of the genuine, or in the use of an imitation in which the difference is colorable only, and the resemblance avails to mislead, so that the goods to which the spurious trade-mark is affixed are likely to be mistaken for the genuine product; and this is vipon the ground that the trade-mark adopted by one is the exclusive property of itsproprietor, and such use of the genuine or of such imitation of it is an invasion of his right of prop erty. Consequently in infringement cases we have all sorts of questions regarding what names and devices may be exclusively appropriated, whether or not they have been dedicated to the public or abandoned by the holder, and many other intricate and puzzling problems which are not as yet fully settled. But aside from the law of trade-marks, courts will protect trade-names or reputations, although not registered or properly selected as trade-marks, on the broad ground of enforcing justice and protecting one in the fruits of his toil. This is all bottomed on the principle of common business integrity, and proceeds on the theory that, while the primary and common use of a word or phrase may not be exclusively