The following have been held invalid; "In stantaneous," tapioca; Bennett v. McKinley, 65 Fed. 505, 13 C. C. A. 25; "Black Package Tea;" Fischer v. Blank, 138 N. Y. 244, 33 N. E. 1040; "International Banking Company ;" Koehler v. Sanders, 122 N. Y. 65, 25 N. E. 235, 9 L. R. A. 576; "Sarsaparilla and Iron;" Schmidt v. Brieg, 100 Cal. 672, 35 Pac. 623, 22 L. R. A. 790; "Taffy Tolu," chewing gum; Colgan v. Danheiser, 35 Fed. 150; "Impe rial," beer; Beadleston & Woerz v. Brewing Co., 74 Fed. 229, 20 C. C. A. 405 ; "Acid Phos phate ;" Rumford Chemical Works v. Muth, 35 Fed. 524, 1 L. R. A. 44; "Goodyear Rub ber Company;" Goodyear's India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598, 9 Sup. Ct. 166, 32 L. Ed. 535; "Snowflake," as applied to bread ; Larrabee v. Lewis, 67 Ga. 561, 44 Am. Rep. 735.
A few instances may be given of the use of words which have been held to infringe ex isting trade-marks: Shrimpton & Hoover is infringed by Shrimpton Turvey; 18 Beay. 164; Beats-All, on lead pencils, by Knowall; American Lead Pencil Co. v. Gottleib, 181 Fed. 178; Ceresota, on flour, by Cressota; Northwestern Consol. Mill. Co. v. Mauser, 162 Fed. 1004; Rameses, on cigarettes, by Radantes; Stephan v. Satmatopoulos, 199 Fed. 451 ; Uneeda on biscuits, by Abetta (there being close imitation of cartons); Nat.
Bisc. Co. v. Pac. Bisc. Co. (not yet reported); Julicks by Josephs; L. J., Notes of Cases (1867), 134; Stephens' by Steelpen's for ink ; 16 L. T. N. S. 145; Cocoaine by Cocoine; Bur nett v. Phalon, *42 N. Y. 594; The Hero by The Heroine; Rowley v. Houghton, 7 Phila. (Pa.) 39; Bovilene by Bovina; Lockwood v. Bostwick, 2 Daly (N. Y.) 521; Hostetter & Smith by Holsteter & Smyte; Hostetter v. Vowinkle, 1 Dill. 329, Fed. Cas. No. 6714; Cuticura soap by Cu/ratline (the package be ing also imitated); Potter D. & C. Corp. v. Miller, 75 Fed. 656 ; Old Homestead bread by New Homestead Bread (the stamping of the name in the bread being similar); Banz haf v. Chase, 150 Cal. 180, 88 Pac. 704; but No-to-bac is not infringed by Baco-Curo; Sterling Remedy Co. v. Mfg. Co., 80 Fed. 105, 25 C. C. A. 314; nor is Cuticura soap in fringed by Cuticle soap (the packages not be ing imitated) ; Potter D. & C. Corp. v. Soap Co., 106 Fed. 914, 46 C. C. A. 40; nor Mu resco, as a wall finish, by Murafresco; Ben jamin & Co. v. Auwell,, 178 Fed. 543, 102 C. C. A. 53; nor Don Carlos, in connection with olives, by Don Caesar; Chance v. Gulden,
165 Fed. 624, 92 C. C. A. 58; nor Grape Nuts, a cereal, by Grain Hearts; Postum Cereal Co. v. Food Co., 119 Fed. 848, 56 C. C. A. 360; nor Union Leader by Union World; American Tobacco Co. v. Tobacco Co., 193 Fed. 1015; nor Valvoline, for oils in general, by Halvoline, for gas engine oils ; Valvoline Oil Co. v. Oil Co., 211 Fed. 189.
In technical trade-mark cases, if the plain tiff proves that the defendant has used his trade-mark or a colorable imitation of it, he has established his right to relief.
Numerous cases have arisen where a par ty, by imitating the labels and packages used in connection with an article already on the market, has attempted to "pass off" his spurious goods on the public as the real arti cle. In this country this is usually called unfair competition; in England, passing off, and in France, concurrence deloyale. The doctrine has been thus stated: The grounds on which unfair competition in trade will be enjoined are either that the means used are dishonest, or that, by false representation or imitation of a name or device, there is a tendency to create confusion in the trade, and work a fraud upon the public, by induc ing it to accept a spurious article ; Vitascope Co. v. U. S. Phonograph Co., 83 Fed. 30. Under this doctrine will come most of the cases referred to above where geographical names were used. In this class of cases it is held that it is not necessary to show actual deception. That the defendant's method of doing business tends to deceive the public, or that there is a probability of deception, is sufficient ; Drummond Tobacco Co. v. Tobac co Co., 52 Mo. App. 10; Von Mumm v. Frash, 56 Fed. 830 ; Tarrant & Co. v. Hoff, 76 Fed. 959, 22 C. C. A. 644; McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828. A valid trade-mark is not essential to a right of action for unfair competition ; Samson Cordage Works v, Cord age Mills, 211 Fed. 603 ; Elgin Nat. Watch Co. v. Watch Case Co., 179 U. S. 665, 21 Sup. Ct. 270, 45 L. Ed. 365.
A fraudulent intent is presumed whenever a false statement is used in order to ap proximate the mark of the competitor ; Scheuer v. Muller, 74 Fed. 225, 20 C. C. A. 161; and also when a word identical with or resembling An important word is placed in the same position on a label or wrapper of the same shape ; Anheuser-Busch' Brewing Ass'n v. Clarke, 26 Fed. 410 ; or catch words are printed in conspicuous type ; L. R. 5 H. L. 508.