TRADE. Any sort of dealings by way of sale or exchange. The dealings in a par ticular business : as, the Indian trade ; the business of a particular mechanic : hence boys are said to be pat apprentices to learn a trade: as the trade of a carpenter, shoe maker, and' the like. Bacon, Abr. 31-aster and Servant (D 1). Trade differs from art.
It is the policy of the law to encourage trade ; and therefore all contracts which re strain the exercise of a man's talents in trade are detrimental to the commonwealth and therefore void ; though he may bind himself not to exercise a trade in a particular place ; for in this last case, as he may pursue it in anottlikr place, the commonwealth has the benefit of it. 8 Mass. 223 ; 9 id. 522. See Ware, Dist. Ct. 257, 260 ; Comyns, Dig. Trade; Viner, Abr. Trade.
A symbol, emblem, or mark, which a tradesman puts upon or wraps or attaches in some way to the goods he manufactures or has caused to be manu factured.
2. It may be in any form of letters, words, vignettes, or ornamental design. Newly-re cognized words may form a trade-mark. Bur nett v. Phalon, New York Superior Court, April, 1859. A common name of an article and of a place may, by combination, become a trade-mark. 2 Bosw. N. Y. 1.
In some of the adjudged cases it has been said that there is no property in a trade mark; while in others it is stated positively that there is; and although perhaps the right is best termed " an exclusive right arising from first use," yet it is submitted that the right of property may be a correct one.
Courts of equity have not interfered by in junction in cases of alleged infringement of trade-marks, except in aid of a legal right; and if the fact of a plaintiff's property in the trade-mark or of the defendant's interference with it has appeared even at all doubtful, the plaintiff has been left to establish his case first by an action at law. 4 E. D. Smith, N. Y. 387.
3. Alien merchants and traders have the same right of protection, in regard to their trade-marks as citizens. 2 Woodb. & M. C.
U. 1 ; 3 Kay & J. Ch. 423, 428; 4 Jur. N. s. 865.
Although there may be a similarity of marks, a court will not interfere where a plaintiff's article is put forth to the world under false hood. This falsehood may consist in untruth as to its ingredients. 6 Beav. Rolls, 67; 8 Sim. Ch. 477; 4 Abb. Pract. N. Y. 144.
No property can be acquired in words, rnarks, or devices which denote the mere nature, kind, and quality of articles. 17 Barb. N. Y. 608.
4. In the examination of conflicting trade marks, tbe courts will judge as would the public. 18 Beav. Rolls, 164.
Mere variations of arrangement of a trade mark, with secondary additions and omis sions, will justify an injunction. Coats v. Platt, N. Y. Superior Court, May, 1860.
While there may be striking differences in trade-marks, yet if in the last made there is an ingenuity which would deceive, the court will interfere. 10 Beav. Rolls, 297.
Where injury is not probable, an injunc tion will not be granted; nor will damages be given where no sales of goods covered by a forged trade-mark have taken place. Monlan v. West, N. Y. Superior Court.
Althoigh a defendant may deny all wrong ful intent, yet if it appears from circum stances the court will act. 10 Jur. 106.
A simulated article may be equal in value to that covered by the true mark, but still it will be eujoined while it is covered ,by. an imitation mark. 2 Woodb. & M. C. C. 1.
5. Although intermediate buyers may know the difference between true and false, yet if retailers will be deceived an injunc tion and damages may be had. 2 Sandf. Ch. N. Y. &86. Where conflicting partners claim ownership in a trade-mark, there will be no injunetion, 5 McLean, C. C. 256; but the writ has been granted where there has been a dissolution and the old style of part nership is used by either partner in a new business. 4 Abb. Pract. W. Y. 394.
Where goods, with a false mark, are made for a foreign market, an injunction will stop them. 6 Beav. Rolls, 69, n.; 4 Mann. & G. 359; 4 Jur. N. s. 865.
The cunning of fraud has been used in re gard to committing wrong on trade-marks: thus, there has been a removal of labels of a lower grade of number from an inferior genuine article, and those of a higher class put thereon. 3 Du. N. Y. 624. Genuine wrappers have been obtained and used about other goods. 4 Barnew. & Ad. 410. True labels have been wrongfully printed and sold as true labels. 1 Kay & J. Ch. 509 ; 6 ThGex, M. & G. 214.
6. Injunctions have been granted where there have been parties of the same name and the similarity of trade-marks carried the conclusion of simulation. 7 Beav. Rolls, 84; 23 Law Jour. N. s. 255; 25 Barb. N. Y. 76; 3 DeGex, M. & G. 896.
A party runs a chance of affecting his right to a trade-mark by non-use, by a for bearance in suing protectively, and by adopt ing a new one.
See Edwards, Trade-Marks ; 2 Kent, Comm. 484, n.•, 1 Western Law Jour. New Series, no. 8; 25 Am.Jur. 279; 4 Mann. & G. 357; 3 Barnew. & C. 541; 5 Dowl. & R. 292; 2 Keen. Rolls, 213; DECEIT.