1843-Croft v. Day.

whatever might be his right to manufacture and sell blacking in his own name, still he had no right or authority to assume the additional name of Martin, and use labels, &c. whose general character was so similar to that which the plaintiffs and the testator had long been in the habit of using, as to induce pur[*87] chasers to believe that the article *sold by the defendant was manufactured by and purchased from the plaintiffs.

Mr. Turner and Mr. Mylne, contra, contended that the defendant had an undoubted right to affix his own name to his own manufacture, and that he had authority to add that of Mr. Martin, with whom he was in treaty for a partnership. That there was a marked difference between the labels, and as to those points in which there was a resemblance, they had long been adopted by the trade in general.

That the plaintiffs had practised a deception on the public, by representing the manufacture to be that of Day & Martin, while no person of those names was concerned therein; that consequently the plaintiffs came before the court under circumstances to disentitle them to its assistance.

Knott v. Morgan,(a) Perry v. Truefitt,(b) were referred to.

THE MASTER OF THE ROLLS (without hearing a reply.) What is proper to be done in cases of this kind must, more or less, depend upon the circumstances which attend them.

There are cases like that of the London Conveyance Company, in which the injunction is granted at once; there are cases like that of the Mexican Balm, in which the injunction is refused until the plaintiff has established his right at law. In short, in such cases there must be a great variety of circumstances; and the court must deal with each case according to the nature of its peculiar circumstances.

[*88]

*The accusation which is made against this defendant is this—that he is selling goods, under forms and symbols of such a nature and character, as will induce the public to

(a) Keen, 213.

(c) 6 Beavan, 66.

1843. Croft v. Day.

believe, that he is selling the goods which are manufactured at the manufactory which belonged to the testator in this cause. It has been very correctly said, that the principle, in these cases, is this-that no man has a right to sell his own goods as the goods of another. You may express the same principle in a different form, and say that no man has a right to dress himself in colors, or adopt and bear symbols, to which he has no peculiar or exclusive right, and thereby personate another person for the purpose of inducing the public to suppose, either that he is that other person, or that he is connected with and selling the manufacture of such other person, while he is really selling his own. It is perfectly manifest, that to do these things is to commit a fraud, and a very gross fraud. I stated, upon a former occasion, that, in my opinion, 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.

It is perfectly manifest, that two things are required for the accomplishment of a fraud such as is here contemplated. First, there must be such a general resemblance of the forms, words, symbols, and accompaniments as to mislead the public. Aud, secondly, a sufficient distinctive individuality must be preserved, so as to procure for the person himself the benefit of that *deception which the general resemblance is calculated [*89] to produce. To have a copy of the thing would not do, for though it might mislead the public in one respect, it would lead them back to the place where they were to get the genuine article, an imitation of which is improperly sought to be sold. For the accomplishment of such a fraud it is necessary, in the first instance, to mislead the public, and in the next place, to se'cure a benefit to the party practising the deception by preserving his own individuality.

There are many distinctions, even more than have been stated, between these two labels. It is truly said, that if any one takes

1843.-Croft v. Day.

upon himself to study these two labels, he will find several marks of distinction. On the other hand, the colors are of the same nature, the labels are exactly of the same size, the letters are arranged precisely in the same mode, and the very same name appears on the face of the jars or bottles in which the blacking is put. It appears, therefore, to me that there is quite sufficient to mislead the ordinary run of persons, and that the object of the defendant is, to persuade the public that this new establishment is, in some way or other, connected with the old firm or manufacturer, and at the same time to get purchasers to go to 90 Holborn Hill, and not to 97 High Holborn. I think what has been done here is quite calculated to effect that purpose, and the defendant must be restrained.

My decision does not depend on any peculiar or exclusive right the plaintiffs have to use the names Day and Martin, but upon the fact of the defendant using those names in connection with certain circumstances, and in a manner calculated to mislead the public, and to enable the defendant to obtain, at the ex

pense of Day's estate, a benefit for himself, to which he is [*90] not, *in fair and honest dealing, entitled. Such being my

opinion, I must grant the injunction restraining the defendant from carrying on that deception. He has a right to carry on the business of a blacking manufacturer honestly and fairly; he has a right to the use of his own name; I will not do any thing to debar him from the use of that, or any other name ⚫ calculated to benefit himself in an honest way; but I must prevent him from using it in such a way as to deceive and defraud the public, and obtain for himself, at the expense of the plaintiffs, an undue and improper advantage.[1]

[1] Motley v. Downman, 3 Myl. & Cr. 1. As to simulation by a subsequently established newspaper of the title and devices of a pre-existing one; see Snowden v. Noah, Hopk, 347; Bell v. Locke, 8 Paige, 75. As to restraining an advertisement calculated to mislead the public relative to a work of which there were two rival editions, see Seeley v. Fisher, 11 Sim. 581. The court will grant a perpetual injunction against the use, by one tradesman, of the trade marks of another, although such marks have been so used in ignorance of their being any person's property, and under the belief that they were merely technical terms. Millington v. Fox, 3 Myl. & Cr. 338,

1844.-Story v. Tonge.

The form of the injunction was discussed, when

THE MASTER OF THE ROLLS, after stating that he was inclined to rely on the terms of the injunction in Knott v. Morgan,[2] as that case had been the subject of appeal, said, he would him elf settle the terms of the injunction.

By the terms of the injunction, the defendant, his servants, &., were restrained from selling, or exposing for sale, or procuring to be sold, any composition or blacking described as, or purporting to be, blacking manufactured by Day & Martin, in bottles, having affixed thereto such labels as in the complainants' bill mentioned, or any other labels, so contrived or expressed, as, by colorable imitation or otherwise, to represent the composition or blacking sold by the defendant, to be the same as the composition or blacking manufactured and sold by John Weston, (the manager,) for the benefit of the estate of Charles Day the testator; and from using trade cards, so contrived or expressed, as to represent that any composition or blacking sold or proposed to be sold by the defendant, is the same as the composition or blacking manufactured or sold by John Weston.

*STORY V. TONGE.

[91]

1844 January 23, 25; February 20.

Whether a feme covert, who is entitled to a reversionary interest in a chose in action, can, by obtaining a release of the prior interest, effectually dispose of the property, quære.

THE testator gave his residuary personal estate to his widow durante viduitate, and on her decease, upon certain trusts, under which Elizabeth, the wife of G. L. Moore, was entitled to a vested

[2] 2 Keen, 213. In that case an injunction was granted to restrain the defendant from running an omnibus having upon it such names, words and devices, as to form a colorable imitation of the words, names and devices on the omnibusses of the plaintiffs.

1844-Story v. Tonge.

interest in one-ninth part, immediately expectant on the decease or marriage of the widow.

The property amounted in the whole to about 18007., and consisted of a mortgage, and of a sum of 3121. consols in court. The parties being desirous of compromising the suit, the widow released unto G. L. Moore and wife her interest in one-ninth of the residuary estate, the object being, to reduce the reversionary interest of Mrs. Moore into one in possession, for the purpose of effecting the compromise.

A petition was now presented, praying a division of the consols in the manner agreed upon, and the question was whether, under these circumstances, the share of Mrs. Moore, a married woman, could be effectually dealt with.(a)

Mr. Rogers, in support of the petition, argued that the interest was no longer reversionary, and could therefore be effectually disposed of so as to bind the wife, if she survived. He cited the following authorities;-Doswell v. Earle, 12 Ves. 473; Lewin

on Trusts, 296, (2d edit.); Wilson v. Oldham, ibid. 297; [*92] Bean v. *Sykes, 2 Hayes on Convey. 640, (5th edit.); Lachton v. Adams, 5 Law J. Rep. (N. S.) Chanc. 382; 6 Jarman's Convey. 236, (1st ed.); Preston v. Smelt, 2 Leg. Ex. 501; re Silcock's estate, 3 Russ. 369.

THE MASTER OF THE ROLLS, after consideration, thought that the principle involved in this case was of too much importance to be decided on petition, and intimated that a bill must be filed to accomplish the wishes of the parties.

(a) See Purdew v. Jackson, 1 Russ. 1; Honner v. Morton, 3 Russ. 65; Stiffe v. Everitt, 1 Myl. & Cr. 37.