9. Infringements.—Were trade-marks invariably simple devices, such as some geometrical shape or peculiar figure, the determination of infridgement would be a comparatively simple matter. Were all trade-marks, too, as simple and distinctive' as the figure used to distinguish Dutch Cleanser, any mate rial imitation would be easily noted and determined. But design alone does not always constitute their distinguishing characteristic. Often there are sev eral elements in the design itself, while the wording may also be made a part of the mark.
As a consequence, infringements may be present under a wide range of conditions. Among the many cases included under unfair competition are: (a) Imitation of a device used as a trade-mark.
(b) Deception in the use of geographical, personal or descriptive names.
(c) Imitation of the label, container or article itself.
(d) The use of devices of any kind which causes a product to be considered interchangeable in market ing.
(e) Refilling a genuine container with a product other than genuine.
(f) Active or passive substitution.
(g) False representation, as of locality or condi tions under which the product was grown, manufac tured or produced.
(h) Deceptive advertising.
It will be noted that some of these cases have to do with imitation of the trade-mark, since the trade-mark of a product distinguishes it from others. As the dis tinguishing mark may be a device, name, label, design or container, the term -"trade-mark infringement" is an element in unfair competition in many cases, or may even constitute unfair competition.
Laws prohibiting the counterfeiting or imitation of labels have been passed in twenty-one states and in the District of Columbia. In Canada the Dominion Parliament has exclusive legislative jurisdiction with respect to trade-marks.
10. Remedy for infringement.—The remedy for infringement lies in a court of equity, and in Canada in a superior court. The usual steps are as follows: A, who is entitled to the use of a trade-mark or other distinctive mark, learns that B is infringing upon the exclusive right held by A. If B's infringe ment consists of an imitation of the trade-mark, presentation in court of the original and infringing labels is sufficient cause for an injunction. If dam age has resulted, the amount must be proved and a money judgment will be entered.
In case B has employed any of the methods of unfair trade, other than the actual copying of the trade-mark, the legal procedure is substantially the same. In order to make his case, however, A must have witnesses to prove his contention, as the trade theft may consist of a large number of acts which can be told only by witnesses.
The name of an individual, firm, corporation or association, not written, printed, impressed or woven in some particular or distinctive manner, or in asso ciation with a portrait of the individual, or merely in words or devices which are descriptive of the goods with which they are used, or of the character or quality of such goods, or merely a geographical • name or term, cannot be registered as a Such are the restrictions which prevent registration in the United States. Non-observance of these re strictions is a bar to either defense or recovery in court. Property value exists, not because of regis tration, but because of lawful use. The Canadian Statute provides a penalty of not less than $20 nor more than $200 for any person who knowingly mis uses the trade-mark of another or knowingly sells goods marked with a false trade-mark.
11. Deceptive advertising.—In a decision handed down by the Supreme Court of the United States, on April 24, 1916, undue exaggeration in advertising is specifically opposed. According to this decision an advertiser has no right to raise false expectations on the part of a customer,. or knowingly to invent advantages and virtues that the goods do not pos sess.
The following paragraph in the decision is signifi cant : I An article alone is not necessarily the inducement and compensation for its purchase. It is in the use to which it may be put, the purpose it may serve ; and there is deception maul fraud when the article is not of the character or kind presented and hence does not serve the purpose.
12. Personal right of privacy.—There is in law a doctrine which is coming to be widely held, that a per son is protected from an unauthorized use of his photograph or likeness.
A well-known New York case centered about the widespread publication of a young woman's face on an advertisement of a brand of flour. The court re fused to enjoin such publication. In another case, in New Jersey, the publication of the plaintiff's name and picture on the labels of bottles of a patent medi cine supplied the cause for complaint. Here the plaintiff was granted an injunction. In still another case, in Georgia, an unauthqrized indorsement of an insurance company was published, ,accompanied by a likeness of the supposed writer. The court's decision favored the plaintiff.