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appropriated, there may be a secondary meaning or construction which will belong to the person who has developed it. In this secondary meaning there may be a property right." The court refers particularly to the case of Scheuer v. Muller, 74 Fed. 225, 20 C. C. A. 161, and the excellent note found in the Circuit Court of Appeals Reports, and also cites Hygeia Dist. Co. v. Hygeia Co., 70 Conn. 516, 40 Atl. 534; Walter Baker & Co. v. Sanders, 80 Fed. 889, 26 C. C. A. 220; American Waltham Co. v. U. S. Watch Co., 173 Mass. 85, 53 N. E. 141, 43 L. R. A. 826, 73 Am. St. Rep. 263. "Consequently unfair competition is distinguished from trade-mark cases in this: that it does not involve necessarily the question of the exclusive right of another to use the name, symbol, or de vice. A word may not be capable of becoming an arbitrary trade-mark, and yet there may be an unfair use of the word which will constitute xinfair trade. The whole doctrine is based upon the
theory of protection to the public whose rights are infringed or jeopardized by confusion of goods produced by unfair methods of trade, as well as upon the right of the complainant to enjoy the good will of a trade built up through his efforts, and sought to be taken from him by unfair meth ods. Whether or not such facts are shown as to bring a particular case within these rules depends upon the testimony in each particular case in which the issue arises, and if it appear that such confusion has been or is likely to be produced, that there have been actual sales of one product for the other, that there have been actual mistakes of one for the other, or if there be such similarity of the two brands as that one may readily be mistaken for the other, a case is made out." Cit ing Fairbank Co. v. Luckel, King & Cake Soap Co., 102 Fed. 327, 42 C. C. A. 376; G. W. Cole Co. v. American Cement Co. (C. C. A.) 130 Fed. 703.
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