Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1905-11-17
FROM LAW COURT.
important Reseript in an Androsoog.
gin County Shoe Matter.

Clerk of Courts Charles w. Jones
| Thursday, received 4 rescript in the
| AndrDScOggih county case of W. Il
Lynn Co., in equity, VS.. the Auburn.
Lynn Shoe Co. The rescript drawn
| by Justice Whitehotise Is as follows:
This cause in equity comes to the
law court upon the appeal of the de-
PENDANT corporation from a final de-
cree enjoining it from an unlawful Use
| of the plaintiffs trade mark and trade
name. and upon the plaintiffs excep-
tions to that portion of the decree re-
speeding the extent of the liability of
the defendant corporation to account
for the profits of it's business.
The general common law proposition
upon which all the courts unite Is that
any words. letters, figures, marks or
devices, or cOmbinat iOns of any Of
these. affixed to commercial article
and used primarily to indicate the
origin or ownership Of it, either by its
own meaning Or by association with
the article, and not employed merely
as descriptive of such article to desig-
nate its quality or ingredient only, or
solely as a geographical name without
any secondary Specification. must be
recognized as a valid trade mark. All
the courts agree that one man shall
not be permitted. by initiating such
distinctive name or mark already en-
ployeu by another to designate a COM
mercial article, to impose upon the
public an article of his own manufac-
ture as the genuine article of another,
for the obvious reasons that it would in
the first place be fraud upon the
manufacturer. first appropriating such
mark. and secondly, fraud upon the
consumers who have right to be pro-
tected against such imposition. But
while it is undoubtedly the general
rule that a geographical name when
used alone and affixed to a manufac-
tured article for the purpose Of
designating the place of it's manufac-
ture, or the address of the manufac-
turer, cannot be appropriated as a
trade mark, it has been held in num-
erous well considered cases that a
geogra phical name which has long
been used to indicate a particular
manufactured article, may acquire a
secondary meaning as the designa ton
Of a particular class of such articles, or
the product of . particular manufac-
turer, and thus either become entitled
to protection against infringement as Il
valid trade mark, or serve as the basis
Of proceeding to prevent unfair COM
petition.
There is leading characteristic
which distinguishes the trade mark
under consideration in the case at bar
from the ordinary appropriation of a
personal name or geographical term
alone as trade mark. In the
plaintiffs trade mark. the geographic
cal and personal names were both COM
bined in an original device bearing the
words auburn Lynn Shoes, Auburn,
Maine
This arbitrary composite name of the
plaintiffs product. with the location of
the mandatory. expressly added. I'M
doubtedly constituted an impersonal
trade mark. 1t will be found to re-
spond to all of the recognized tests of
a valid trade mark. 1t did not dcs-
cribe the stock and different materials
which entered into the manufacture of
the shoes to which it was affixed. 1t
did not necessarily signify that the
suhes were the product of Lynn's per-
sonal skill. but by long use of the trade
mark in connection with the Shoes it
had come to indicate that they were
the product of the mandatory with
which he was connected. and thus
through the reputation which they had
acquired in the market, to operate as
an assurance that they possessed GER
tain general qualities and merits. 1t
did not describe the shoes. but it indi-
Gated their origin and ownership. 1t
was trademark which others could
not use with equal right and equal
truth for the same purpose. the
plaintiff had acquired the exclusive
tight to the use of it, and the adoption
by the defendant of the phrase "Au-
burn Lynn Shoe Co." as trade
mark and corporate name was an UNI
authorized stimulation of the plaintiffs
trademark and constituted an in
fringement of the plaintiffs property
right without other proof of a fraudu-
lent intent on the part of the de-
PENDANT.
In the light of both principle and au-
thority it appears that the defendants
aggressions upon the rights of the
plaintiff prior to the change of it's name
to "Lunn and Lynn Shoe Co." con-
stituted not only violation of the gen.
eral law covering unfair competition.
but specific and positive infringement
of the plaintiffs exclusive right to the
use of Il technical trademark and
tradename. The law of trademarks
il is true. is but special feature of
the general law of unfair competition in
trade which rests upon the elementary
principle that no person has the right
to sell his goods for those of another.
But as already indicated there are inn
portant distinctions to be observed be-
tween them. In the first place unfair
competition, unlike the infringement of
technical trademarks. does not neces-
sarily involve the violation of any ex-
elusive right in the plaintiff to the use
Of the names or symbols employed by
the defendant. There may be unfair
competition resulting from an unau-
thorized and improper use of such
names and symbols. although the
plaintiff has no property right in them
as a trademark. Any conduct de-
signed and having natural tendency
to deceive the public and enable one