646
The Green Bag. ..
tele price five pence1, might have an injunc tion against Penny Bell's Life and Spurting A'ftc'j, as the use of such descriptive word as "penny" did not take away the infringe ment. "The name or title of a work may be con sidered as a kind of trademark, which no person, other than the proprietor of the work, can use so as to damage him. If a name practically the same as that used by plaintiff is used by defendant, they may steal not only his purchasers, but also his adver tisers. So the Canada Bookseller was held an infringement of the Canadian Bookseller and Literary Journal2. The Federal Circuit C'ourt of Appeals3 held that Home Comfort, a magazine published in New York, chiefly concerned with the care and hygiene of in fants, infringed Comfort, a magazine of some what more general character, published in Maine. The name was considered as one arbitrarily selected, and suggested the pur pose and errand of the paper, while not de scriptive. Judge Coxe, in the court's opin ion, said: "A person publishing a newspaper, or a magazine, may give it a name by which it is known and by which its authenticity is attested. This name is entitled to the same protection, as if it were affixed to other arti cles of merchandise. The purchasing public knows it by that name and no other. The name is a badge of origin and genuine ness. . . . A rival publisher has no more right to appropriate the name of the periodi cal than the individual name of the owner." Other cases have referred to the analogy between a trademark and a newspaper's 'Clement v. Maddicks, 33 L. J. 117. 'Rose v. McLean, 24 Ont. A. R. 240; revers ing 27 Ont. R. .425. The court held that these names were so alike that the difference in the appearance of the two journals was immaterial. Defendant's name was formerly Books and Notions. 'Gannett v. Ruppert, 65 Pub. Wkly. 68 (CCA.) reversing 119 Fed. 221.
- £. g. Correspondent Co. v. Saunders, 11 Jur.
540.
Though the name of the editor is not a part of the title5, yet a former editor of one magazine may not use his name deceptively with another magazine, and a former editor of the Edinburgh Philosophical Journal was prohibited from publishing No. I New Series Edinburgh Philosophical Journal, conducted by Dr. Brewster". Xo one may falsely rep resent his journal as the successor of an other, so that the purchaser of the Britannia and the John Bull, who carried them on un der their joint names, had an injunction given against the assignor of the former newspaper, who began the issue of the True Britannia, alleged that it continued the Britannia, and endeavored to obtain the plaintiff's subscribers and advertisers. In another early case4, the plaintiff was pro prietor of the Wonderful Magasine, of which defendant's name was used as the publisher. Falling out with the plaintiff, the defendant began publishing Wonderful Magazine Neva Series Improved, copied ornaments on the cover, took up same continued article, print ed picture promised in last number jointly published, and gave an index to the earlier numbers. The resemblance was such that both magazines must be procured to see which was the true continuation, and the de fendant was properly enjoined. Another interesting case" was that in which the plaintiff had published for eight years a weekly newspaper, The Iron Trad? Circular (Ryland's), and the defendant had published, for a longer period, a weekly re "Crookes v. Fetter, 6 Jur. N. S. mi. But a man may by contract restrict himself from asso ciating his name with that of a magazine. Ainsworth v. Bentley, 14 W. R. 630; Ward v. Beeton, 23 W. R. 533. 'Constable v. Brewster, i Ct. Sess. Cas. III. 215. 'Prowett v. Mortimer, 4 W. R. 519. See Primrose Agency v. Knowles, 30 Sol. J. 338. 'Hogg r. Kirby, 8 Vis. 215: where defendant used plaintiff's periodical's name, volume and number falsely, injunction follows. Investor Co. T'. Simons, 82 Fed. 56. •Corns v. Griffith. 1873 W. N. q.v
