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"And whereas, Thomas Henry Cooper, being admitted as the actual owner of the said schooner W. P. Sayward,' by order of the district court, to interpose as claimant, did, in order to prevent the execution of said decree, take an appeal to this Honorable Court on the 26th day of April, 1888, and docketed the same on the 30th day of October, 1888, under No. 1037;

"And whereas, all matters of fact herein before recited and alleged, save and except those of which this Honorable Court takes judicial notice, appear by the record and proceedings of the District Court of the United States in and for the Territory of Alaska;

the said killing of seal done on the high seas | court to be distributed according to law, costs
without the limits of Alaska Territory or the to be taxed and awarded against the claimants;
waters thereof, and that said vessel was brought
by force within the jurisdiction of said court,
and that therefore, under the laws of nations
and under the laws of the United States, he
had, and could have, no jurisdiction of the al-
leged offense or of the vessel so as aforesaid
unlawfully, wrongfully and tortiously seized
without the jurisdiction of the United States
and of the court, and so wrongfully and by
force brought within the jurisdiction of the
United States and of the court, yet neverthe
less, being so fully advised, said judge of the
District Court of Alaska aforesaid did, on the
nineteenth day of September, 1887, in con-
tempt of the authority of the United States, in
violation of the laws of the United States and "And whereas, the said appeal has been dis-
of the laws of nations, and to the great danger missed by this Honorable Court on the appli-
of the friendly relations happily subsisting be- cation of the claimant, appellant, himself, not
tween Great Britain and the United States, as-only because he is advised that there is no ap-
sert and attempt to exercise jurisdiction over
the said vessel, the same being the vessel of a
friendly nation at peace with the United States,
knowing the same to have been unlawfully
seized on the high seas without the jurisdiction
of the United States, and knowing the place
of the alleged offense against a statute of the
United States to be alleged and proved to be
the same place as the place of seizure, that is
to say, the high seas without the limits of the
Territory of Alaska or the waters thereof, and
without the jurisdiction of the United States,
-all this the said district judge well knowing,
he did find as fact the killing of fur seal on
the ninth day of July, 1887, by the captain and
crew of the aforesaid British vessel, the 'W.
P. Sayward,' at the said place of seizure as
aforesaid, and did find as conclusion of law
that such killing at such place on the high
seas, to wit, at the said place of seizure in lati-
tude 54° 43′ north and longitude 167° 51′ west,
and fifty-nine miles from any lands whatso
ever and fifty-nine miles northwest from Cape
Cheerful, Oonalaska Island, was in violation
of section 1956 of the Revised Statutes of the
United States, and by reason thereof the libel-
ant was entitled to a decree of forfeiture of the
said British vessel, her tackle, apparel, boats,
cargo and furniture;

"And whereas, after said assertion of jurisdiction to condemn and forfeit said vessel, and before decree or sentence, the claimant did move the court to arrest the decree of forfeit ure, and among other grounds did distinctly set up that the court had no jurisdiction over the subject matter of the cause, as shown by libelant's own testimony as to place of offense and seizure, yet the said court did, nevertheless, in contempt of the authority of the United States and in violation of the laws of the United States and in violation of the laws of nations, and to the manifest danger of the peaceful relations of the two countries, assert and attempt to exercise jurisdiction in the premises, and on the nineteenth day of September, 1887, did make and enter a pretended decree of forfeiture to the United States of said vessel, her tackle, apparel, boats, cargo and furniture, and direct that unless an appeal be taken the usual writ of venditioni exponas be issued to the marshal commanding him to sell all said property and bring the proceeds into

peal given to this court from the District of
Alaska by the laws of the United States, but
because he is advised that the district court
being wholly without jurisdiction its decree
was and is a nullity, and this Honorable Court
is fully authorized by section 688 of the Re-
vised Statutes of the United States to prohibit
any proceedings in the district court for the
enforcement of the same;

"And whereas, the said Thomas Henry
Cooper is advised that in consequence of the
dismissal of his appeal, according to the prac
tice of this Honorable Court, its mandate will
issue in due course without further considera-
tion by this court, which said mandate would,
in ordinary course, not only permit, but com-
mand, the District Court of Alaska to proceed
to execute its pretended decree of forfeiture,
and it is therefore the duty of the said Thomas
Henry Cooper, now, here, to give this Hon-
orable Court to understand and be informed of
all and singular the matters in this suggestion
recited and alleged to the end that this court
shall consider this application for prohibition
before issuing its mandate, so that it may either
frame a special mandate or take order that the
ordinary mandate shall not reach the district
court before the writ of prohibition hereinafter
prayed, or a rule to show cause why said writ
should not issue, shall be served upon said
court,-

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[410

Wherefore, the said Thomas Henry Cooper, [411 the aid of this Honorable Court most respectfully requesting, prays remedy by writ of prohibition to be issued out of this Honorable Court to the judge of the District Court of the United States in and for the Territory of Alaska to be directed, to prohibit him from holding the plea aforesaid, the premises aforesaid, any wise concerning further before him, and to prohibit him from in any manner enforcing the said decree or sentence, or from treating the said decree as a valid sentence, for any purpose, or from taking any steps whatsoever in the cause aforesaid as to said decree or any matter or thing remaining to be done in consequence of said decree, and prohibiting him, the said judge, from making or entering any order, judgment or decree in and about the certain stipulation exacted and required in the course of said proceedings, and generally from the further exercise of jurisdiction in said cause, or the enforc

[412]

ing any order, judgment or decree made under | Carlisle and Charles Strauss, in support
color thereof.
of the motion:

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"The supreme court shall have power to issue writs of prohibition to the district courts when proceeding as courts of admiralty and maritime jurisdiction."

Act of September 24, 1789, § 13 (1 U. S. Stat. at L. 80); U. S. Rev. Stat. § 688.

If the lowest of the courts of the United States could usurp jurisdiction over the vessels of a friendly foreign nation, by our Constitution the executive would be powerless in almost every such case to meet the just complaint of the foreign government. For such a case it was eminently proper that the highest tribunal of the United States should be express

At the same time that the above petition was presented Mr. Calderon Carlisle, on behalf of Sir John Thompson, K. C. M. G., Her Brittanic Majesty's Attorney-General of Canada, presented to the court a suggestion for a writ of prohibition which was in all respects identically clothed with authority, by a process well with the above petition except as to the party presenting it and as to its suggestion, which was as follows:

"Wherefore, the said Sir John Thompson, K. C. M. G., Her Brittanic Majesty's AttorneyGeneral of Canada, the aid of this Honorable Court most respectfully requesting, for said Thomas Henry Cooper, submits to this Honorable Court that a writ of prohibition ought to be issued out of this Honorable Court to the judge of the District Court of the United States in and for the Territory of Alaska to be directed, to prohibit him from holding the plea aforesaid, the premises aforesaid, anywise concerning further before him, and to prohibit him from in any manner enforcing the decree or sentence, or from treating the said decree as a valid sentence, for any purpose, or from taking any steps whatsoever in the cause aforesaid as to said decree or any matter or thing remaining to be done in consequence of said decree, and prohibiting him, the said judge, from making or entering any order, judgment or decree in and about the certain stipulation exacted and required in the course of said proceedings, and generally from the further exercise of jurisdiction in said cause, or the enforcing any order, judgment or decree made under color thereof. And the said Sir John Thompson, K. C. M. G., Her Brittanic Majesty's Attorney-General of Canada, most respectfully informs this Honorable Court that the fact that this his suggestion is presented with the knowledge and approval of the imperial government of Great Britain will be brought to the attention of the court by counsel duly thereunto authorized by Her Brittanic Majesty's representative in the United States.

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"Calderon Carlisle, "Counsel for Sir John Thompson, K. C. M. G., Her Brittanic Majesty's Attorney-General of Canada.

"I have read the foregoing suggestion by me subscribed, and the facts therein stated are true to the best of my knowledge and belief.

"Calderon Carlisle. "Subscribed and sworn to before me this 12th day of January, 1891.

"(Seal) Oscar Luckett, Notary Public." Time was allowed the Attorney-General to prepare an argument in opposition to the motion, at the expiration of which the parties appeared and counsel were heard.

Messrs. Joseph H. Choate, Calderon

known to the common law, to restrain the district courts from proceeding as courts of admiralty and maritime jurisdiction in cases where they had no jurisdiction or were exceeding their jurisdiction.

United States v. Peters, 3 U. S. 3 Dall. 121, (1:535); Ex parte Pennsylvania, 109 U. S. 174 (27:894).

The power of Congress to vest judicial power in courts created in territories is unlimited both as to the extent and the mode of its exercise.

American Ins. Co. v. 356 Bales of Cotton, 26 U. S. 1 Pet. 542 (7:255). See Clinton v. Englebrecht, 80 U. S. 13 Wall. 441 (20:660).

The district and court created for Alaska in their organization and character are indistinguishable from the judicial districts and the district courts created by the original Judiciary Act of 1789.

Act of May 17, 1884, § 1 (23 Stat. at L. 24). Messrs. W. H. H. Miller, Atty-Gen., and William H. Taft, Solicitor-Gen., for the United States, in opposition to the motion:

This court has no power to issue a writ of prohibition to the District Court of Alaska.

Section 688, Rev. Stat., when its origin and history are considered, cannot refer in the expression "district courts" to any courts of that name except such as are established by Congress under the third article of the Constitution as courts of the United States charged with the exercise of the judicial power therein conferred. The District Court of Alaska is not such a

court.

Act of May 17, 1884, § 3 (23 Stat. at L. 24). See American Ins. Co. v. 356 Bales of Cotton, 26 U. S. 1 Pet. 511 (7:242); Clinton v. Englebrecht. 80 U. S. 13 Wall. 434-447 (20:659-662); The City of Panama, 101 U. S. 453-460 (25: Cl. 318. 1061-1064); McAllister v. United States, 22 Ct.

The jurisdiction of this court in prohibition is an appellate jurisdiction.

Marbury v. Madison, 5 U. S. 1 Cranch, 137 (2:60).

This court can exercise no appellate jurisdiction unless conferred upon it by Act of Congress.

United States v. Boisdoré, 49 U. S. 8 How. 121 (12:1012); United States v. Cox, 36 U. S. U. S. 6 Pet. 470 (8:467); Ex parte Dorr, 44 U. S. 11 Pet. 162 (9:671); United States v. Nourse, 31 3 How. 104 (11:514).

The jurisdiction of this court in prohibition is specific and limited.

Ex parte Graham, 77 U. S. 10 Wall. 541,

542 (19:981, 982). See also Phillips, Manual of
Practice, chap. XXXII. Prohibition; Ex parte
Gordon, 66 Ü. S. 1 Black, 503, 506 (17:134,
135); Ex parte Christy, 44 U. S. 3 How. 292
(11:603); Ex parte Warmouth, 84 U. S. 17 Wall.
64 (21:543.)

Appellate jurisdiction of this character over
the courts of Alaska is not expressly granted
and there is no room for implication as to the
appellate jurisdiction in this case, for the Act
establishing the court of Alaska makes pro-
vision expressly for the revision of its judg-|
ments and decrees.

Act of May 17, 1884, § 7 (23 Stat. at L. 26).
See Farnsworth v. Montana, 129 U. S. 104, 113
(32:616, 618); Durousseau v. United States, 10
U. S. 6 Cranch, 307 (2:232).

The question of jurisdiction cannot be raised
on the record here.

First. The face of the proceedings shows
jurisdiction, and in such a case, after sentence,
prohibition will not issue.

Camden v. Home, 4 T. R. 397; Full v.
Hutchins, Cowp. 422; Paxton v. Knight, 1
Burr. 315; Buggin v. Bennet, 4 Burr. 2035;
High, Extr. Leg. Rem. § 774; Ladbrooke v.
Crickett, 2 T. R. 649-653; Ex parte Easton, 95
U. S. 77 (24:376); Ex parte Gordon, 104 U. S.
515 (26:814); Ex parte Christy, 44 U. S. 3 How.
308, 317 (11:610); Ex parte Watkins, 28 U. S.
3 Pet. 193 (7:650); Bobyshall v. Oppenheimer, 4
Wash. C. C. 482.

Second. Evidence shows seal killing within
3-mile limit. Jurisdiction was therefore in
the court wherever seizure was made.

(a). Objection to jurisdiction was waived by

appearance.

See Bobyshall v. Oppenheimer, 4 Wash. C.
C. 482; Livingston v. Story, 36 U. S. 11 Pet.
351 (9:746); Sheppard v. Graves, 55 U. S. 14
How. 505 (14:518); The Sloop Abby, 1 Mason,
360-363; The Idaho, 29 Fed. Rep. 187-192;
Marye v. Strouse, 5 Fed. Rep. 483; Hale v.
Continental L. Ins. Co. 12 Fed. Rep. 359, 360;
National Furnace Co. v. Moline Malleable Iron
Works, 18 Fed. Rep. 863, 864; Mina v. The 1.
& V. Florio S. S. Co. 23 Fed. Rep. 915.

(b). But even if the seizure was illegal and a
violation of international law and this were
properly pleaded, that cannot affect the juris-
diction of the court to punish or forfeit for a
municipal offense of a vessel in the custody of
of its marshal and within its jurisdiction.

Gelston v. Hoyt, 16 U. S. 3 Wheat. 311
(4:397); Ker v. Illinois, 119 U. S. 436 (30:421):
Ex parte Scott, 9 Barn. & C. 446; The Rich-
mond, 13 U. S. 9 Cranch, 102 (3:670); The
Merino, 22 U. S. 9 Wheat. 402 (6:121).

(c). But even if it be admitted that this was
a seizure of a British ship upon the high seas
without the jurisdiction of the United States,
the seizure, being for an offense committed
within the jurisdiction of the United States and
against her laws, was not illegal and could not
oust the jurisdiction.

Rose v. Himely, 8 U. S. 4 Cranch, 241 (2:608);
Hudson v. Guestier, 10 U. S. 6 Cranch, 281
(3:224); The Marianna Flora, 24 U. S. 11
Wheat. 42 (6:415).

The question of jurisdiction here raised is
political, and this court is concluded by the ac-
tion of the executive and Congress from decid-
ing it otherwise than against petitioners.

Foster v. Neilson, 27 U. S. 2 Pet.309 (7:434);
Garcia v. Lee, 37 U. S. 12 Pet. 511 (9:1176);
| Re Baiz, 135 U. S. 403 (34:222); Cherokee Nation
v. Georgia, 30 U. S. 5 Pet. 1, 29 (8:25,35); Wil-
liams v. Suffolk Ins. Co. 3 Sumn. 275; Jones v.
United States, 137 U. S. 2812, 216 (34:696,697);
Williams v. Suffolk Ins. Co. 38 U. S. 13 Pet.415-
420 (10:226-228); State v. Wagner, 61 Me. 178-
184; State v. Dunwell, 3 R. I. 127; The Johan-
nes, 1 Lush. 188, 3 L. T. N. S. 757-759; The
Marianna Flora, 24 U. S. 11 Wheat. 1 (6:405);
The Scotland, 105 U. S. 31 (26:1004).

Fuller, Ch. J.:

This is an application for leave to file a peti-
tion for a writ of prohibition to the District
Court of the United States for the District of
Alaska. The Attorney-General being present
and expressing a desire to that effect, oppor-
tunity was afforded him to be beard in opposi
tion to granting the leave to file, and this re-
sulted in argument having a much wider range
than was necessary to the disposition of the
motion.

We are of opinion upon the preliminary
question that this court has jurisdiction to pro-
ceed in respect to the District Court of the
United States for the District of Alaska, by
way of prohibition, under section 688 of the
Revised Statutes, and leave will therefore be
given to file the petition for such writ and the
accompanying suggestion. A rule will be en-
tered as in like cases, returnable on such day
as will allow reasonable time for service and
return, in relation to which we invite the views
of counsel.

(Counsel having conferred, the second Mon-
day of April was made the return day.)

LAWRENCE

TENNESSEE

MANUFACTURING COM-
PANY, Appt.,

v.

MANUFACTURING COM-
PANY.

(See S. C. Reporter's ed. 537-552.)
Trade-mark-quality of goods-origin or owner-
ship-grade or style-letters "LL" not a
trade-mark-fraudulent use of label.

1. The office of a trade-mark is to point out dis-
tinctively the origin or ownership of the article
NOTE.-Trade-mark, right to; what may be; infringe-
ment; assignment; when protected; misrepresenta-
tion in; use of name; remedy in equity; injunction.
Registration does not create a trade-mark, and is

only prima facie evidence that the person procur-
ing it has a valid trade-mark. United States v.
Braun, 39 Fed. Rep. 775.

The exclusive use of words designed to deceive
the public, when claimed as a trade-mark, will not
be protected by a court of equity. Alden v. Gross,
25 Mo. App. 123; Koehler v. Sanders, 48 Hun, 48, 21
Abb. N. C. 95.

One has no right to appropriate as a trade-mark
a sign, or a symbol, or a name, which, from the nat-
ure of the fact it is used to signify, others may

employ with equal truth, and therefore have an
equal right to employ, for the same purpose. Cor-
bin v. Gould, 133 U. S. 308 (33: 611); Stokes v. Allen,
56 Hun, 526.

No property can be acquired in any word, mark

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to which it is affixed; or, in other words, to give an injunction and an account of profits. Af notice who was the producer.

2. An exclusive right to the use of words, letters or symbols, to indicate merely the quality of the goods to which they are affixed, cannot be acquired.

8. If the primary object of the mark be to indicate origin or ownership, the mere fact that the also become indicative of quality, is not of itself sufficient to debar the owner from protection and

article has obtained such a wide sale that it has

make it the common property of the trade. 4. If the device or symbol was not adopted for the purpose of indicating origin, manufacture or ownership, but was placed upon the articles to denote class, grade, style or quality, it cannot be upheld as technically a trade-mark. 5. The letters "LL" placed upon sheetings, which only indicate grade, class or quality, and not origiu, ownership or manufacture, cannot be upheld as a trade-mark.

6. Where defendant has been guilty of fraud on the public and on the plaintiff by using an important part of plaintiff's label in such a way and under such circumstances as to amount to a false representation and thereby intentionally and fraudulently selling its goods as those of the plaintiff, without plaintiff's consent or acquiescence, such conduct will in a proper case constitute ground for relief.

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or device which denotes merely the nature, kind or, quality of an article. Laughman v. Piper, 5 L. R. A. 599, 128 Pa. 1; Smith v. Walker, 57 Mich. 456; Alden v. Gross, 25 Mo. App. 123; Trask Fish Co. v. Wooster, 28 Mo. App. 408.

Words descriptive of, and having relation to, a trade or business, cannot be seized and appropriated as a trade-mark. Koehler v. Sanders, 48 Hun, 48, 21 Abb. N. C. 95.

Everyone is at liberty to affix to the product of his own manufacture any symbol or device not previously appropriated, which will distinguish it from articles of the same general nature manufactured or sold by others. Laughman v. Piper, 5 L. R. A. 599, 128 Pa. 1.

When a man manufactures his goods at a particular place, he may use the name of that place in combination with other words as a trade-mark to distinguish the origin or ownership of his goods; and no other person will be permitted to use the name of the same place upon goods manufactured by him at another and different place. Gato v. El Modelo Cigar Mfg. Co. 6 L. R. A. 823, 25 Fla. 886.

A manufacturer or trader can acquire an exclusive right to the use of a peculiar location of words and the general form of a label, although the words themselves could not make a valid trade-mark. Kinney Tobacco Co. v. Maller, 53 Hun, 340.

Although the words "Warren Hose Supporter" would not alone constitute a valid trade-mark, they may do so in connection with a cut representing a supporter engaged with a stocking. Frost v. Rindskopf, 42 Fed. Rep. 408.

Every manufacturer has the unquestionable right to distinguish the goods that he manufactures and sells by a peculiar label, symbol or trade-mark; and no other person has a right to adopt his label or trade-mark, or one so like his as to lead the public to suppose that the article to which it is affixed

firmed.

Statement by Mr. Chief Justice Fuller:
This was a bill of complaint filed by the Law.
rence Manufacturing Company, a corporation
of Massachusetts, against the Tennessee Man-
ufacturing Company, a corporation of Tennes-
see, in the Circuit Court of the United States
for the Middle District of Tennessee, alleging
that plaintiff had been, and was, engaged in the
manufacture and sale of sheetings; that in said
trade several standards or classes of goods were
generally recognized, the first of which includ-
ed sheetings of such weight that two and eigh-
ty-five one-hundredths yards thereof would
weigh a pound; the second, sheetings of such
weight that three yards would weigh a pound;
and the third, sheetings of such weight that
four yards would weigh a pound; that prior to
the year 1870 the plaintiff "adopted and there-
upon became duly vested with the exclusive [538)
right to use a label or trade-mark for all goods
of its manufacture coming within said third
class, to distinguish sheetings of its manufac
ture from sheetings of the same general class
manufactured by others, the substantive, dis-
tinctive and chief feature of which label was,
and is, an arbitrary sign or symbol, consisting
of the capital letters LL' prominently and
separately appearing upon such label or stamp;
that said trade-mark, with certain environments,

which have been changed from time to time,
has been so used by complainant since said date
of adoption, and, to wit, for more than fifteen
years, and has been imprinted upon each and

is the manufacturer's. Gato v. El Modelo Cigar
Mfg. Co. 6 L. R. A. 823, 25 Fla. 886.

An inventor of a system of manufacturing gar-
ments, unless he has been engaged in trade, ac-
quires no proprietary right in a trade-mark and
can transfer none. Jaeger's Sanitary W. S. Co. v.
Le Boutillier, 47 Hun, 521.

A label cannot be treated as a trade-mark where it does not indicate by what person the articles upon which it is used were made. Weener v. Brayton (Mass.) 8 L. R. A. 640.

The use of a rose-colored capsule upon bottles of wine cannot be claimed as a trademark; nor can another be prevented from using them, where there is no attempt to deceive by labels or otherwise. Mumm v. Kirk, 40 Fed. Rep. 589.

Rose and vanilla having been for many years well-known flavoring extracts, a person registering these words as a trade-mark for a food product cannot prevent other persons from flavoring food products with rose or vanilla or both, and describing them as so flavored. Clotworthy v. Schepp, Fed. Rep. 62.

The words "Microbe Killer," being English words in common use, cannot be appropriated in their original meaning as a trade-mark. Alff v. Radam, 9 L. R. A. 145, 77 Tex. 530.

There can be no exclusive right to the use of the word "Singer" as a trade-mark for sewing-machines manufactured upon the principles covered by the Singer patents, which have expired, or to the mode of construction, external shape, appearance and ornamentation of such machines manufactured while the patents were in force. Singer Mfg. Co. v. June Mfg. Co. 41 Fed. Rep. 208. A trade-mark cannot arise out of illustrations in a published book or story, but such illustrations must be protected by copyright. Munro v. Smith, 55 Hun, 419.

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every piece or bolt of such sheetings of said third general class made and sold by complainant during said period; " that said trade-mark was so adopted by plaintiff for the purpose of distinguishing sheetings of its manufacture of the third general class from similar goods manufactured by others; that in connection with the trade-mark, or substantive element of said label, under and in connection with which the trade reputation of plaintiff had been estab lished, plaintiff had used the words "Lawrence Mills," and the word "Sheetings," in different juxtapositions, 'and also at times a picture or representation of a bull's head, and at other times a picture or representation of a "bull rampant,' and in connection therewith and underneath the same, and in a separate position, has always used said capital letters "LL" as and for the purpose aforesaid; that plaintiff had earned and acquired a trade reputation of great value as manufacturers of sheetings under its trademark, with the result that sheetings of the third general class of plaintiff's manufacture had come to be universally known as "LL sheetings," "and sheetings so known, named and called for, import the excellent raw material, the method and care of manufacture, and the general guaranty of excellence and lasting quality for which your orator has a long, valuable and thoroughly established reputation as to all goods of its manufacture;' that since plaintiff became vested with the exclusive right to the use of the trade-mark, namely, from the first of January, 1884, to the present time, the defendant had been manufacturing and selling 539] large quantities of sheetings of said third gen

A man cannot acquire the right of a trade-mark | in the use of his own name to the exclusion of the right of another person by the same name, and whose place of business is in the same place. Gato ▼. El Modelo Cigar Mfg. Co. 6 L. R. A. 823, 25 Fla. 886.

The right which every person has to use his own name in the prosecution of his business can be limited or controlled only when such name has become the trade-mark or business sign of another, and is being used to deceive the public or defraud the person who made it valuable. Caswell v. Hazard, 121 N. Y. 484, affirming 50 Hun, 230.

The right to a trade-mark is a property right, for the violation of which damages may be recovered in an action at law, and the continued violation be enjoined in equity. United States v. Steffens, 100 U. S. 82 (25: 550).

The object of the trade-mark is to indicate, either by its own meaning or by association, the origin or ownership of the article to which it is applied. Amoskeag Mfg. Co. v. Trainer, 101 U. S. 51 (25: 993). Directions, advertisements, notices, etc., constitute no part of a trade-mark. Candee v. Deere, 54 Ill. 462.

At common law the exclusive right to the ordinary trade-mark grows out of its use, and not from its mere adoption. United States v. Steffens, 100 U. S. 82 (25: 550).

The right to its use may be lawfully transferred with the business to which it is affixed. Kidd v. Johnson, 100 U. S. 617 (25: 769): Manhattan Medicine Co. v. Wood, 108 U. S. 218 (27: 706).

A trade-mark which contains a misrepresentation to the public will not be protected. Hoxie v. Chaney, 3 New Eng. Rep. 714, 143 Mass. 592; Palmer v. Harris, 60 Pa. 156: Hobbs v. Francais, 19 How. Pr. 567; Wolfe v. Burke, 7 Lans. 151; Connell v. Reed, 128 Mass. 477; Manhattan Medicine Co. v. Wood, 108

eral class, upon which, and for the purpose of taking advantage of plaintiff's trade label, trademark and trade reputation, defendant had placed a stamp or label in imitation of the stamp or label of plaintiff, and so in imitation thereof as to tend to deceive the public, and had upon its said stamp or label on its sheetings printed or stamped the capital letters "LL, prominently and separately from the other parts of its label; that the acts and doings of the defendant tended to deceive the public and to constitute a fraud upon them as well as upon the plaintiff; and that the appropriation and wrongful use of the letters "LL" was for the purpose and with the tendency and effect of appropriating a part, at least, of the good-will and trade reputation of the plaintiff; wherefore plaintiff prays for an injunction and for an account of all gains and profits realized by defendant, and for damages.

The answer admitted that in the trade of sheetings there were several recognized classes based upon the difference in weight of the goods per yard, and among them four classes. running two and, three, four and five yards to the pound; and that the products of different manufacturers, though coinciding in the standard of weight, differed in texture and durability. Defendant denied that either prior to 1870, or at any other time, plaintiff adopted and thereupon became duly vested with the exclusive right to use a label or trade-mark upon all goods of its manufacture coming within the third class, having as its substantive, distinctive and chief feature a symbol consisting of the capital letters "LL" prominently and

U. 8. 218 (27: 706); Parlett v. Guggenheimer, 8 Cent.. Rep. 796, 67 Md. 542.

Where parties claim rights acquired by advertising their wares under representations that are false, equity will not protect. Laird v. Wilder, 9Bush, 131; Helmbold v. Helmbold Mfg. Co. 53 How. Pr. 453; Seabury v. Grosvenor, 53 How. Pr. 192; Palmer v. Harris, 60 Pa. 156; Ellis v. Zeilin, 42 Ga. 91; Tallcot v. Moore, 6 Hun, 106; Blackwell v. Wright, 73 N. C. 310; Green v. Shepherd, 38 Scot. Jur. 523; Foot v. Lea, 13 Ir. Eq. 484.

A trade-mark cannot be had in the form or color of a package or box (Ball v. Seigel, 3 West. Rep. 42, 116 Ill. 137; Enoch Morgan's Sons Co. v. Troxell, 89N. Y. 292; Moorman v. Hoge, 2 Sawy. 78; Harrington v. Libby, 14 Blatchf. 128); nor in the form, finish or appearance of goods. Browne, Tradem. § 605.

A figure or a letter cannot, but a combination of either may be, appropriated as a trade-mark,—as 3214. American S. L. B. Co. v. Anthony, 2 New Eng. Rep. 630, 15 R. I. 338; Lawrence Mfg. Co. v. Lowell Hosiery Mills, 129 Mass. 325; Gillott v. Esterbrook, 48 N. Y. 374.

The words "A. N. Hoxie's Mineral Soap," and "A. N. Hoxie's Pumice Soap," taken together, constitute a trade-mark, and may be assigned. Hoxie v. Chaney, 4 New Eng. Rep. 709, 143 Mass. 592; Kidd v. Johnson, 100 U. S. 617 (25: 769).

Words merely designating the kind of business. as "patent roofing," cannot be appropriated (Fay v. Fay (N. J.) 4 Cent. Rep. 241); nor words which merely describe a quality, as "health preserving" (Ball v. Seigel, 3 West. Rep. 41, 116 Ill. 137; Gilman v. Hunnewell, 122 Mass. 139; Royal Baking Powder Co. v. Sherrell, 93 N. Y. 331; Larrabee v. Lewis, 67 Ga. 561: Upton, Tradem. 114; Browne, Tradem. 8$ 164, 657, 658); nor words merely describing and designating the place where a business is carried on, as "Tower Palace" (Armstrong v. Kleinhans,

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