Page:Harvard Law Review Volume 12.djvu/263

THE DECEPTIVE USE OF ONE'S OWN NAME. 243 UNFAIR COMPETITION BY THE DECEPTIVE USE OF ONE'S OWN NAME. THE protection of manufacturers of established reputation against unfair competition is a branch of the law which has developed rapidly during recent years. Various causes have com- bined to multiply the number of valuable trademarks and trade- names, and to widen the area in which they are known. " Hood's Sarsaparilla " is blazoned on rocks and fences from New York to San Francisco, in every continent there is a demand for " Bass's Ale," and it would be easy to add almost indefinitely to a list of the names which have been rendered of great worth by the care and skill of their owners in making a good article and advertising it well. Around these makers of reputation there have sprung up, like parasites, a crowd of imitators, seeking, by various fraudulent devices, to divert to themselves a little of the trade destined for the manufacturer whom they copy. Courts of equity have been constantly called upon to suppress new and original methods of accompHshing the same old purpose of deception. On the whole, they have moved steadily forward in the direction of preventing any fraud whatever, but the progress has been sometimes slow and hesitating through fear of unduly hampering and embarrassing fair and reasonable competition. A class of cases which presents peculiar difficulties is that which forms the subject of this article. If a man whose name is " Bass " sets out to make and sell ale in competition with the genuine, and adopts bottles of the usual shape, the identity of name will alone deceive numbers of purchasers who want " Bass's Ale," but do not observe the details of the labels. How far can the courts go in protecting the original maker against this decep- tive and damaging competition without unduly trenching on the right of the second Bass to use his own name and to carry on any lawful business? The answer towards which the judges are steadily moving is that the new maker must so differentiate his u goods from the original that they will not deceive, or, at least, must make reasonable efforts to diminish the deception which will naturally follow from the similarity of name. 32