Page:Harvard Law Review Volume 10.djvu/301

UNFAIR COMPETITION, 2/$ UNFAIR COIMPETITION. UNFAIR competition, as the designation of a legal wrong which the law will undertake to redress or prevent, has only of late years begun to make its appearance in the books. To most lawyers, it is safe to say, the title carries no very definite meaning, for as yet its use is almost entirely confined to the reports, and in these it is used only in the most general way, and always with the facts of the particular case in view, while it is quite unrecognized in digest, text-book, or dictionary. This is not to say there is no Unfair Competition literature, for the fact is otherwise. Mr. Sebastian in his book upon Trade Marks has a chapter entitled ** Cases Analogous to those of Trade Mark," which cites the cases. Mr. Browne^ also has a chapter on ** Rights Analogous to those of Trade Marks," while Mr. Kerly^ discusses the cases under the title of "The Action for * Passing Off.' " This method of treatment regards as unimportant whatever vari- ation may exist among the so called " analogous " cases inter se^ and is content to regard this law as a mere parasite upon the trade mark branch. The growing importance and the increasing amount of this new law, not only absolutely but also relatively to trade mark law, makes it certain that a treatment of these cases more in keeping with the present and prospective relative importance of the two branches must soon be accorded by the text writers. In the mean time it seems worth while to attempt some examina- tion of these cases, and it will be the object of this paper to indi- cate very briefly indeed the relations and the differences among these so called ** analogous " cases, and between these cases and trade mark cases, and to notice some of the principal rules and distinctions which have been settled, or which are now in process of settlement. Logically speaking, the fact is that Unfair Competition is prop- erly a generic title, of which trade mark is a specific division. Practically, however, the earlier development of the law of trade marks has fixed a different arrangement and has established trade 1 Browne on Trade Marks. ^ Kerly on Trade Marks.