Page:Harvard Law Review Volume 5.djvu/159

PREVENTION OF UNFAIR COMPETITION. 143 publici juris shall be used, and will prohibit their use in an in- equitable manner for the purpose of misleading the public and displacing an existing business. Beyond this none of the cases go, nor can they be made to go without endangering the doctrine which supports them. Thus, in Wotherspoon v. Currie, the wrong-doing consisted not in the use of the word " Glenfield " in the abstract, but in the use of that word in a particular way. It was printed by the defendant in conspicu- ous type, whereby his starch was offered and sold as " Glenfield Starch ; " he did not use the word " Glenfield " to indicate where his article was made, but, in the words of the Court of Appeals of New York, as " a short phrase between buyer and seller," or, in the words of the Supreme Court of the United States, " the phrase " which indicated " the wish to buy, and the power to sell from that origin." He used it in that " secondary sense " which had come to mean the starch of the complainant. In Thompson v. Montgomery the designation " Stone Ale " was used directly as the name of defendant's product. Had it been honestly applied to indicate his place of business, and not as a distinctive name associated by long use with complainant's article, it would not have been within the reasoning of the court. In the cases relating to the use of proper names the same rule has been applied. There is a concurrence of opinion, many times repeated, that courts of equity will not prohibit a man from using his own name, but will direct how he shall use it, and compel him to use it honestly. The extent to which the defendant will be enjoined must necessarily depend in each instance upon the cir- cumstances of the case. Even if the word which is protected is, in an accurate sense, a trade-mark and the undisputed property of the plaintiff, there is no rule whereby the defendant may be absolutely prohibited from applying that word to his goods, or from using it in his price-lists and announcements and otherwise in connection with his business. The defendant has under all circumstances an indisputable right, in every lawful way, to state any fact concerning his article, even if in so doing he uses plaintiff's word-symbol. The only restric- tion which the law imposes is that he shall not so use it that the manner of its use will tend to give a false name to his article and enable the sale thereof, actually or constructively, as and for the article of the plaintiff. Undoubtedly the courts will jealously