Page:The Green Bag (1889–1914), Volume 19.pdf/309

 282

THE GREEN BAG

those whose business such a contract has interfered with." 1 VIII Mere competition is, therefore, always permitted without question unless some unfair method is employed. What consti tutes unfair competition opens up too large a subject for consideration here. It is enough to point out that the border line must be overstepped unquestionably before the competition will be held unfair. One of two cases will illustrate further the extent to which competition will be allowed to go before the court will interfere. Perhaps the most interesting is White v. Mellin (1895 A. C. 154). The respondent was the pro prietor of Mellin's Food; the appellant was the proprietor of Vance's Food. Respon dent had brought the original action against the appellant for the circulation of the fol lowing advertisement: "Notice — The pub lic are recommended to try Dr. Vance's prepared food for infants and invalids, it being far more nutritious and healthful than any other preparation yet offered." The keen business insight of Lord Hershell was well displayed in his opinion in this case when he brushed aside all the distinc tions of counsel with: "Just consider what a door would be opened if this were per mitted. That this sort of puffing advertise ment is in use is notorious; and we see rival cures advertised for particular ailments. The court would then be bound to inquire, in an action brought, whether this oint ment or this pill better cured the disease which it was alleged to cure — whether a particular article of food was in this respect or that better than another. Indeed, the courts of law would be turned into a machinery for advertising rival productions by obtaining a judicial determination which of the two was the better. As I said, adver1 Two other cases similar to the two quoted in this section are well worth reading. Ajello v. Worseley (1898), 1 Ch. 274; and West Virginia Transportation Co. v. Standard Oil Co., 50 W. Va. 611.

tisements and announcements of that de scription have been common enough." In a later case the English courts again took the position that they would permit competition to go on without interference unless something was done so outrageous as to be clearly wrong. In Hubbuck v. Wilkinson (1899, 1 A. B. 86), it appeared that the plaintiffs and defendants were com petitors in the paint business, and that defendants had advertised that as the re sult of certain paint covering experiments conducted by them, their paint proved superior in every respect. The plaintiffs in their complaint alleged that the reports were untrue, but the divisional court sum marily dismissed the complaint, which the Court of Appeal held proper, guarding itself however in this wise: "It is not necessary to consider how the case would have stood, if the defendants had not been rival traders simply puffing their own goods and com paring theirs with those of the plaintiffs. If the defendants had made untrue state ments concerning the plaintiffs' goods be yond saying that they were inferior to, or, at all events, not better than, those of the defendants, or if the defendants were not rivals in trade and had no lawful excuse for what they said, it would not have been right summarily to strike out the statement of claim as showing no reasonable cause of action. But the circular complained of is such as plainly to constitute no cause of action even if all the allegations in that statement of claims are true."1 IX According to the better opinion at the present time as expressed in the writ ings of the many authorities who have turned their attention of late to the prob1 Deciding similar issues in the same way are: Evans v. Harlow, 5 Q. B. 624; Younge v. Macrae, 3 B. & S. 634; Tenner v. A'Beckett, 7 Q. B. D. 11; Tobias v. Harland, 4 Wend. 637. But see Western Manure Co. v. Hawes Manure Co., L. R. 9 Exch. 218; Harris v. Rosenberger, 145 Fed. 449