A manufacturer of goods may obtain a mo nopoly in the right to use a distinctive dress for boxes and cartons which have come to be known as designating his product ; Win terton Gum Co. v. Chocolate Co., 211 Fed. 612; and color may be one of the elements; id. Even if the trade-mark be not registered, if it be well known, it is an imposition on the public to use an imitation of it ; Ubeda v. Zialcita, 226 U. S. 452, 33 Sup. Ct. 165, 57 L. Ed. 296.
Where a firm has for many years used the name of its predecessors in connection with its goods, and has built up an extensive trade thereunder, such name, even if it could not be used as a trade-mark, is to be treated as a descriptive term, to the benefit of which they are entitled; Garrett v. Garrett & Co., 78 Fed. 472, 24 C. C. A. 173.
The Wamsutta Mills obtained an injunction against the defendant, who advertised "Men's Laundered Shirts, Wamsutta Cotton." They were made of cloth inferior to that from plaintiff's mills ; Wamsutta Mills v. Fox, 49 Fed. 141.
In Enoch Morgan's Sons Co. v. Wend over, 43 Fed. 420, 10 L. R. A. 283, where customers came to defendant's store and asked for Sapolio, and the salesmen would wrap up and sell anoth& soap, de fendant was enjoined. So also, where defend ant sold threads with labels like plaintiff's ; Coates v. Holbrook & Co., 2 Sand. Ch. (N. Y.) 586 ; and defendants sold whiskey in bottles of the same general shape as plain tiff's bottle; Cook & B. Co. v. Ross, 73 Fed. 203. See, also, Coats v. Thread Co., 149 U. S. 562, 13 Sup. Ct. 966, 37 L. Ed. 847 ; Charles E. Hires Co. v. Consumers' Co., 100 Fed. 809, 41 C. C. A. 71.
"National," as applied to a mail order cloak business, had become well known and had acquired a distinctive meaning, and de fendant was enjoined from its use in adver tisements which were likely to deceive the public ; National Clbak & Suit Co. v. Londy & Friend, 211 Fed. 760.
"Hooton's Cocoa and Chocolate" Company was enjoined as infringing upon "Van Houten's Cocoa," although there was no imi tation of packages, or any evidence that "Hooton's" was adopted for any dishonest purpose, but it did appear that it had a ten dency to deceive and that dealers had been deceived ; Van Houten v. Chocolate Co., 130
Fed. 600.
The doctrine of unfair competition in trade rests on the proposition that equity will not permit any one to palm off his goods on the public as those of another. Unfair competi tion in trade, as distinguished from infringe ment of trade-marks; does not involve the violation of any exclusive right to the use of a word, mark or symbol. The Word may be purely generic or descriptive, and the mark or symbol indicative only of style, size, shape or quality, and as such open to' the public, yet there may be unfair competition in trade by an improper use of such word, mark or symbol ; Dennison Mfg. Co. v. Mfg. Co., 94 Fed. 651.
A manufacturer is guilty of unlawful com petition if he dresses his goods to represent those of another and assists the retailer in palming them off as such ; Winterton Gum Co. v. Chocolate Co., 211 Fed. 612.
The placing of spurious goods upon the market is prima facie evidence of damage to the plaintiff ; 5 D. G. & S. 126; 6 Hare 325.
It is not necessary to prove that any cus tomer or plaintiff had been deceived ; it is sufficient to show that defendant knowingly put it in the power of retail dealers to de ceive their customers; Williamson C. & B. Co. v. Corset Co., 70 Mo. App. 424. The fact that the defendants, who formerly used a label not imitative of complainant's, adopted a new one much resembling his, shortly aft er a former infringer of complainant's trade mark came into their employ, is most gestive of an intentional imitation ; Scheuer v. Muller, 74 Fed. 225, 20 C. C. A. 161. The similarity must, be such as to mislead the ordinary purchaser ; Columbia Mill Co. v. Alcdrn, 150 U. S. 460, 14 Sup. Ct. 151, 37 L. Ed. 1144; the ordinary or usual buyer; Samson Cordage Works v. Mills, 211 Fed. 603. The test of infringement is whether the alleged infringing article is so dressed up as to be likely to deceive persons of ordi nary intelligence, exercising the slight care ordinarily used, into purchasing one man's goods for the goods of another ; Sterling Rem edy Co. v. Mfg. Co., 80 Fed. 105, 25 C. C. A. 314.
Cases of passing off frequently involve the use of a person's own name on his goods.