Page:Harvard Law Review Volume 5.djvu/157

PREVENTION OF UNFAIR COMPETITION. 141 selling his own. It is perfectly manifest that to do these things is to commit a fraud, and a very gross fraud. " The right which any person may have to the protection of this court does not depend upon any exclusive right which he may be supposed to have to a particular name, or to a particular form of words. His right is to be protected against fraud, and fraud may be practised against him by means of a name, though the person practising it may have a perfect right to use that name, provided he does not accompany the use of it with such other circumstances as to effect a fraud upon others." After pointing out the similarities between the labels of the parties and the evidence of a purpose on the part of the defendant to mislead the public, his Lordship continues : " My decision does not depend on any peculiar or exclusive right the plaintiffs have to use the name of Day & Martin, but upon the fact of the defendant using those names in connection with certain circum- stances, and in a manner calculated to mislead the public, and to enable the defendant to obtain, at the expense of Day's estate, a benefit for himself, to which he is not in fair and honest dealing entitled." In the old case of Croft V. Day we have the same doctrine and rule which is expounded by the Chief Justice of the Supreme Court of the United States at the end of the nineteenth century. The intervening years have evolved little more than a classification of the cases, with the important results which a true classification ensures. In the Leather Cloth Company's case, decided in 1865, 1 the House of Lords refer with qualified disapproval to Croft v. Day. The Lord Chancellor said : " But, although the jurisdiction is now well settled, there is still current in several recent cases language which seems to me to give an inaccurate statement of the true ground on which it rests." He then says, after having referred to the case just mentioned, and others : — " The true principle, therefore, seems to be, that the jurisdiction of the court in the protection given to trade-marks rests upon property, and that the court interferes by injunction because that is the only mode by which such property can be effectually protected." If doubts had existed as to there being a right of property in a 1 11 H. L. C. 523.