The record-union., 1895-12-24

curing plaintiffs business, and that
such results had followed. These things
] being true, the decree must go against
/ him.
The remaining branch of the case
| presents a novel and original PROPOSE
| tion of law. In its facts we apprehend
/ no case like it can be found either in
| this country or England. The decree
orders the defendant to place, both
| upon the outside and inside of his
store, sign plainly legible to custom
| ers and passersby, indicating his pro-
| prietorship. -
| Let us for moment turn our atten-
| ton to the facts of this case: The
! store of plaintiffs was known as the
Mechanics Store" By various kinds
| of advertising and attention, honesty
| and skill in the conduct of the business,
! II increased the volume thereof and en-
| hanced its good will, and throughout
| the Pacific Coast established for it
wide and honorable reputation as
| fair and reliable house with which to
| deal. Plaintiffs erected store build
| ing of peculiar architecture, there be-
| ing none like. it in the city of Sacra-
mento, and defendant thereupon
} erected a store building Immediately
| adjoining that of plaintiffs in every
respect of similar architecture.
1t further appears that defendant
erected this particular kind of building
| for the purpose of deceiving the public
and securing the patronage of plain
] tiffs customers, and for the same pur-
pose he refrained from placing any
| sign in or upon the building indicating
| the proprietorship of the business, or
| designating it in any way SO that it
might be distinguished from the store
| of plaintiffs. And by reason Of these
acts of defendant many of plaintiffs
customers were deceived into purchas-
| ing goods in defendants store, believ-
ing that they were trading in plain
| tiffs' store
Upon this bald statement of facts it
cannot be gainsaid that defendant has
| done the plaintiffs wrong, and it is
said that for every wrong there is a
| remedy. These facts certainly indicate
| a case of unlawful business competi-
ton, and courts Of equity have ever
been ready to declare such things
odious. 'Tis strange if plaintiffs may be
! deprived of the fruits of long course
of honest and fair dealing in business
by such wicked contrivances, and upon
appeal to the courts for relief should be
| told there was no relief.
This cannot be so, for the whole law of
| trademarks, trade names, etc, is recog-
niZed, approved and enforced for the
J very purpose of protecting the honest
! tradesman from a like loss and damage
! to that which threatens these plain
| tiffs and the fact that the question
comes to us in an entirely new guise,
and that the schemer has cOncocted a
| kind of deception heretofore unheard Of
| in legal Jurisprudence is no reason why
equity is either unable or unwilling to
deal with him.
! By device defendant is defrauding
plaintiffs of their business. He is
stealing its good will, most valuable
| property only secured after years of
honest dealing and large expenditures
| of money, and equity would be impo-
| tent, indeed, if it could contrive no
remedy for such wrong.
( The fundamental principle underlying
| this entire branch of the law is that no
| man has the right to sell goods as the
| goods of rival trader. Mr.. Browne
| in his work upon trademarks, declares
| the wrong to be- mot in initiating a
| symbol, device or fancy name, for any
such act may not involve the slightest
| turpitude. The wrong consists in un-
| fair means to obtain from a person the
| fruits of his own ingenuity or industry,
| an injustice that is indirect trangreS-
sion of the decalogue, Thou shall not
| covet anything that is thy neigh
| bors' The most detestable kind Of
fraud underlies the filching of anothers s
| good name in Connection with traffick-
| ing" We think the principle may be
| broadly stated that when one trades
| man resorts to the use of any artiflce or
| contrivarfce for the purpose Of repre-
| senting his goods or his business as the
| goods or business of rival tradesman
thereby deceiving the people by caus-
| ing them to trade with him, when they
| intended to, and would have otherwise
traded with his rival, a fraud is COM
mitted-a fraud which court Of equity
| will not allow to thrive.
In Howard VS.. Genriques, Sanford
Rep, 725. the court in speaking of the
competitor in business, said: He must
not by any deceitful or other practice
impose on the public and he must not
| by dressing himself in another mans
garments, and by assuming another
mans name, endeavor to deprive that
man of his own individuality, and of
the gains to which by his industry and
skill he is fairly entitled"
1t may well be said that the defend
ant, by duplicating plaintiffs building,
with its peculiar architecture, and inn
mediately adjoining, entering into the
same line of business, with no mark of
identification upon his store, has
dressed himself in plaintiffs garments,
and having so dressed himself with a
| fraudulent intent, equity will exert it
self to reach the fraud in some
way.
Upon what principle of law can a
| court of equity say, if you cheat and
| deffaud your competitor in business by
taking his name the court will give re-
lief against you but if you cheat and
defraud him by assuming disguise of
| a different character, your acts are be-
| yond the law? Equity will not concern
itself about the means by which fraud
is done. 1t is the results arising from
the means; it is the fraud itself with
| which it deals
The foregoing principles of law do
| not apply alone to the protection of
! parties having trademarks and trade
names. They reach away beyond that
and apply TO all cases where fraud is
practiced by one in securing the trade
| OF a rival dealer, and these ways are
as many and as various as the inge-
nuity of the dishonest schemer can in
| vent.
1T has been very correctly said that
the principle of these cases is this,
| that no man has a right to sell his own