If the intent to deceive is established, it will be inferred that the mark is calculated to deceive; Drummond Tobacco Co. v. Tobac co Co., 52 Mo. App. 10; L. R. 18 Eq. 138.
In trade-mark cases, strictly, the wrongful intent is presumed from the fact of infringe ment, while, in cases of unfair competition, it must be proved ; Samson Cordage Works v. Cordage Mills, 211 Fed. 603 ; in the latter class of cases, such circumstances must be made out as will show wrongful intent in fact, or justify that inference from the in evitable consequences of the act complained of; Elgin Nat. Watch Co. v. Watch Case Co., 179 U. S. 665, 21 Sup. Ct. 270, 45 L. Ed. 365. That proof of a fraudulent Intent is neces sary, see Lynn Shoe Co. v. Shoe Co., 100 Me. 461, 62 Atl. 409, 4 L. R. A. (N. S.) 960 ; that it is immaterial, see 3 App. Cas. 376; Colman v. Crump, 70 N. Y. 573. See the cases in note, 4 L R. A. (N. S.) 961. It is immaterial that there was no Intent to imitate plaintiff's labels ; Wirtz v. Bottling Co., 50 N. J. Eq. 164, 24 Atl. 658.
Imitation which would be likely to deceive is infringement ; Samson Cordage Works v. Cordage Mills, 211 Fed. 603 ; a manufacturer is guilty of unfair competition if he dresses his goods so as to represent those of another and assists the retailer in passing them off as such ; Winterton Gum Co. v. Chocolate Co., 211 Fed. 612. The real question is held to be whether the one name so nearly re sembles the name of another as to be calcu lated to deceive. It is perfectly immaterial whether they were fraudulent or not, or whether they intended it or not ; Halsbury, C., in [1S9J) App. Cas. 83.
Relief is granted on the ground that plain tiff's business is injured ; if the parties were in a different line of business, there is no competition; Borden Ice Cream Co. v. Milk Co., 201 Fed. 510, 121 C. C. A. 200.
The imitation by one manufacturer of the goods of another in name, appearance and marking and color of packages, even if such similarity singly would not be unlawful if accompanied by good faith, may constitute unfair competition, which will be enjoined, where there is an actual, purpose to deceive and defraud purchasers; Coca Cola Co. v. Gay, Ola Co., 200 Fed. 720, 119 C. C. A. 164.
Unfair competition does not necessarily in volve the violation of any exclusive right to the use of a word, mark or symbol, as it may arise from the use of words, etc., which
everybody may use ; the test being whether what has been done tends to pass off the goods of one for those of another, or to de prive such other of his rights ; Bates Mfg. C. v. Mach. Co., 172 Fed. 892.
The basis of an action for unfair competi tion is fraud or deceit, inducing the public to believe that defendant's goods are those of complainants and where'the likeness is in the goods themselves, because of copying the de sign of complainant's article, which is un patented, and there is no attempt to deceive purchasers with respect to the manufacturer, there is no ground on which a court can grant an injunction ; Keystone Type Foun dry v. Pub. Co., 186 Fed. 690, 108 C. C. A. 508 ; Rathbone Sard & Co. v. Range Co., 189 Fed. 26, 110 C. C. A. 596, 37 L. R. A. (N. S.) 258.
Unfair competition is distinguishable from infringement of a trade-mark in that it does not necessarily involve the question of the exclusive right of another to the use of the name, symbol or device copied or imitated. A word may be purely generic or and so not capable of becoming an arbitrary trade-mark, and yet there may be an 'unfair use of it which will constitute unfair compe tition ; G. W. Cole Co. v. Oil Co., 130 Fed. 703, 65 C. C. A. 105.
When the question is simply one of unfair competition, it is not essential that there should be any exclusive or proprietary right in the words or labels used, as, irrespective of any trade-marks, rival manufacturers have no right by imitative devices to beguile the public into buying their wares under the im pression that they are buying those of their rivals ; Pillsbury-Washburn Flour Mills v. Eagle, 86 Fed. 608, 30 C. C. A. 386, 41 L. R. A. 162.
The name of a person or a town may have become so associated with a particular pro duct that the mere attaching of that name to a similar product, without more, would have all the effect of a falsehood ; Walter Baker & Co. v. Slack, 130 Fed. 514, 65 C. C. A. 138. An absolute prohibition against us ing the name would carry trade-marks too far. Therefore the rights of the two parties have been reconciled by allowing its use if an explanation is attached. Of course, the explanation must accompany the use, so as to give the antidote with the bane ; Herring Hall-Marvin Safe Co. v. Safe Co., 208 U. S. 554, 28 Sup. Ct. 350, 52 L. Ed. 616, Holmes, J., delivering the opinion.