Page:Harvard Law Review Volume 4.djvu/342

326 HARVARD LAW REVIEW, sold as "Glenfield" starch, and from doing any act or thing to induce the belief that starch manufactured by him is "Glenfield" starch, or starch manufactured by the plaintiffs. Here is granted equitable relief of a kind impossible under the technical law of trade-marks. The late case of Thompson v, Montgomery, 41 Ch. D. 35, is an important one as expressing clearly the difference of right in trade-marks and in cases analogous to them. There the plain- tiffs had for years carried on a brewery at Stone, and their ale had come to be known as "Stone Ale." They had registered these words as a trade-mark. The defendant built a brewery at Stone, and attempted to call his ale "Stone Ale." The court held that the words "Stone Ale" were not such as might be used as a trade- mark, and ordered them to be struck out of the register. But as to the right, apart from the technical trade-mark. Lord Justice Lindley says: "The plaintiffs' rights are to prevent anybody from passing off his goods as the goods of the plaintiffs. Sir Horace Davey says that the plaintiffs have no exclusive right to the use of the words 'Stone Ale' alone. Perhaps not as against the world. He says that the plaintiffs have not any right to prevent the de- fendant selling his goods as having been made at Stone; I am not prepared to say that they have. But as against a particular de- fendant, who is fraudulently using, or going to fraudulently use, the words with the express purpose of passing off his goods as the goods of the plaintiffs, it appears to me that the plaintiffs may have rights which they may not have against other traders." And an injunction issued. In no one of these cases is there a breach of what might be a technical trade-mark. "Guinea Coal Co.," "Glenfield Starch," "Stone Ale," according to the law of trade-marks proper, were unfit names to be used as trade-marks. Yet the court in each case went far beyond the analogy of trade-marks, and, applying the underlying equitable principle as laid down by Lord Langdale in Perry v, Truefitt, that it is a fraud for a man to sell his goods under the pretence that they are the goods of another man, gave such relief against that particular fraud as the circumstances of the case demanded. The principle on which the courts went is unmistakable. They admit no exclusive right in the plaintiffs, but "it is a fraud on a person who had established a trade, and carried it on under a given name, that some other person should