Page:Harvard Law Review Volume 12.djvu/370

350 HARVARD LAW REVIEW. trademarks. To grant an injunction on this ground, it says, would be to do the great injustice of allowing one, who has asserted the excellence of his product,^ to exclude all his business rivals from using the same terms with equal truth ; in short, it would be a prohibition of the use of the English language. This view is certainly commendable. To acquire a right in a term as a trademark, it must be significant of the origin of the goods to which it is attached, and designed with the purpose of distinguishing them from articles of a hke manufacture. These qualities coupled with pri- ority of appropriation give a right to its exclusive use. Columbia Mill Go. V. Alcorn, 150 U. S. 460. The adjective in the principal case, which at best is only indicative of class or grade, is the property of all mankind, not subject to individual monopoly. A close analogy may be drawn from the use of geographical names which have never been regarded as subjects of private pre-emption. Eastman Photographic Materials Co. v. Compt. Gen. of Pateftts, etc., 79 L. T. Rep. 195. In some cases of trademarks suggestive of locality we find equity taking jurisdiction. It is not, however, on the ground of protecting any right in the label, though that may be the practical result. There is a sharp distinction between cases where a geographical name has been claimed as a trademark, and where it has, through long continued appli- cation to a certain class of goods, become a standard of superior excel- lence. In the latter case equity will restrain one living at a different place from fraudulently using such brand to the detriment of him whose business has gained peculiarly the public confidence. Fillsbury -Wash- bourne Flour Mills Co. v. Eagle, 86 Fed. Rep. 608. Here the juris- diction of equity is based on a tort in the nature of fraud, closely analogous to the common law action of deceit, with this distinction, — the complainant is protected, not because he has been deprived of something which was his, but because what would otherwise have fallen into his pocket has been diverted by the defendant. The damage, too, is continuous and difficult of computation. The object being to suppress unfair competition without unduly restraining trade, wide discretionary control is necessarily vested in the courts. This power, however, could not be strained to the extent of prohibiting, where no fraud appears, the use of a familiar adjective, indicative of quality, which could be used truthfully by innumerable business competitors. Federal Jurisdiction over Corporations. — Shareholders in a com- pany, on being incorporated in two different States, become members of two distinct corporations. Failure to follow this principle led to a doubt- ful decision in the recent case of Taylor v. ///. Cent. B. R. Co., 89 Fed. Rep. 1x9 (Cir. Ct. Ky.). A Kentucky statute provided that foreign cor- porations could not do business within the State without first going through certain formalities of incorporation and thereby becoming domestic cor- porations, " citizens of Kentucky." The defendant, then an Illinois cor- poration, complied with this statute. For negligence in the course of its business in Kentucky it was sued in a Kentucky court by a citizen of that State, and obtained a removal to the federal court. This removal has now been upheld on the ground that, for the purposes of this action, the corporation was still, roughly speaking, a citizen of the State of Illinois.