This rule has been applied, e. g., to "Iron Bitters": Brown Chemical Co. v. Meyer, 139 United States, 540; Gessler v. Grieb, 80 Wisconsin, 21; to "Castoria": Centaur Co. v. Heinsfurter, 84 Federal Rep. 955; Same v. Marshall, 97 id. 785; to " Tycoon Tea": Corbin v. Gould, 133 United States, 308; "Goodyear Rubber," which is merely descriptive of well-known classes of goods produced by the process known as Goodyear's invention: Goodyear Co.. v. Goodyear Rubber Co., 128 United States, 598; to "Celluloid": Celluloid Manuf. Co. v. Read, 47 Federal Rep. 712; and to "Aluminum." American Washboard Co. v. Saginaw Manuf. Co., 103 Federal Rep. 281. Many other illustrations of this rule will be found collected in 2 Kent's Commentaries (14th ed.), 366, notes; 26 American and English Encyclopædia of Law, p. 289; and Cady v. Schultz 19 Rhode Island, 193, 61 American State Reports, 763, and note. Even when the alleged trade-mark is not in itself a good trade-mark, yet if the use of the word has come to denote the particular manufacturer or vendor, relief against unfair competition or perfidious dealing will be given by requiring another's use of the word to be confined to its primary sense by such limitations as will prevent misapprehension on the question of origin. Lawrence Manuf. Co. v. Tennessee Manuf. Co., 138 United States, 537, 549; Coats v. Merrick Thread Co., 149 id. 562; Singer Manuf. Co. v. June Manuf. Co., 163 id. 169. Fraud, and not the plaintiff's right to protection in the use of his trade-mark, is the ground of such relief. Gorham Manuf. Co. v. Emery-Bird-Thayer Dry-Goods Co., 92 Federal Rep. 774; Illinois Watch Case Co. v. Elgin Nat. Watch Co., 94 id. 667, and 179 United States, 665.

A trade-mark must be designed, as its primary object and purpose, to indicate the owner or producer of the commodity, as well as to distinguish it from like articles manufactured by others. Columbia Mill Co. v. Alcorn, 150 United States, 460, 463. Thus, the word "international," or "continental," or "universal," cannot be exclusively appropriated as part of a trade name, as it is a generic term in common use, and in its nature descriptive of a business to which it pertains, rather than to the origin or proprietorship of the article to which it is attached. Ibid.; Koehler v. Sanders, 122 New York, 65; Gally v. Colt's Patent Fire-arms Manuf. Co., 30 Federal Rep. 118; Continental Ins. Co. v. Continental Fire Asso. 96 id. 846; Solis Cigar Co. v. Pozo, 16 Colorado, 388; Radam v. Capital Microbe Destroyer Co., 81 Texas, 122. But if the general purpose is to denote origin or ownership, and the symbol used also denotes quality as an incident to goods of such ownership, the trade-mark is good. Thomas G. Plant Co. v. May Co., 105 Federal Rep. 375, 377. And long user may entitle one to protection as to a trade-mark which was originally descriptive of quality. Fuller v. Huff, 104 Federal Rep. 141.

The color of a label is now usually held not to be a material part of a trademark, apart from its name or symbol. See Fleischmann v. Starkey, 25 Federal Rep. 127; Philadelphia Novelty Maunf. Co. v. Rouss, 40 id. 585; Garrett v. Garrett, 78 id. 472; New England Awl & Needle Co. v. Marlborough Awl & Needle Co., 168 Massachusetts, 154. So there can be no property of this kind in the shape, size, color, or arrangement of signs, without regard to the letters which they bear. Cady v. Schultz, 19 Rhode Island, 193. But a trade-mark may exist in devices or symbols accompanied by words that are not merely descriptive, or in numerals, or letters, and in the names of pub

lications. See Browne on Trade-marks (2d ed. 1898), ss. 231, 234, 269, 706; 26 American and English Encyclopædia of Law, pp. 249-259, 269.

as

Words which are not merely descriptive of a peculiar quality of the article may be appropriated as a trade-mark. This rule has been applied to "Yankee Soap": Williams v. Adams, 8 Bissell (U. S.), 452; to "Queen Shoes": Thomas G. Plant Co. v. May Co., 105 Federal Rep. 375; and to “Parabola a name for needles. Roberts v. Sheldon, 8 Bissell (U. S.), 398. "Gold Dust " has been held to be infringed by "Gold Drop." N. K. Fairbanks Co. v. Luckel King & Cake Soap Co., 102 Federal Rep. 327, and 106 id. 498. "Six Little Tailors," used as a trade-name for fifteen years, has been held to be infringed by "Six Big Tailors." Mossler v. Jacobs, 66 Illinois Appeals, 571. But "Cuticura Soap" is not infringed by "Cuticle Soap," but is infringed by "Curative Soap," if there is bad faith and close resemblance in the packing. Potter Drug & Chemical Corp. v. Miller, 75 Federal Rep. 656; Same v. Pasfield Soap Co., 102 id. 490, and 106 id. 914. "Instantine" has been held an infringement of “Insertine," where the public was shown to have been deceived by the similarity of the bottles and labels used. Arthur v. Howard, 19 Pennsylvania County Court, 81. And in general identity, or even similarity, of sound may be sufficient ground for treating a name as infringement, though the spelling is quite different. Barrett Chemical Co. v. Stern, 67 New York Supplement, 595; Little v. Kellam, 100 Federal Rep. 353; Welsbach Light Co. v. Adam, 107 id. 463. One of several words of a trade-mark may be infringed, and the fact that the defendant acted innocently will not exonerate him from the charge of infringement. Saxlehner v. Eisner & Mendelson Co., 179 United States, 19, 33; Saxlehner v. Siegel-Cooper Co., id. 42.

THE offence under the Merchandise Marks Act, 1887 (50 & 51 Vict. c. 28), of selling goods under a false trade description is committed, although the document containing the description is not physically attached to the package in which the goods are contained.

Budd v. Lucas.

1891, 1 Q. B. 408-413 (s. c. 60 L. J. M. C. 95; 64 L. T. 292; 39 W. R. 350). [408] Trade-mark. Merchandise Marks Act, 1887 (50 & 51 Vict. c. 28), sect. 2, sub-sect. 1 (d), sect. 5, sub-sect. 1 (d). — Trade Description. Description in Invoice delivered along with Goods.

of.

Application

In

The appellant ordered six barrels of beer of the respondent, a brewer. pursuance of the order, the respondent's drayman delivered six casks of

No. 3. - Budd v. Lucas, 1891, 1 Q. B. 408, 409.

beer into the appellant's cellar, and at the same time left at the appellant's house an invoice in which the casks were described as "barrels." The term "barrel" in the beer trade means a cask containing thirty-six gallons. The invoice was not physically attached to any of the casks. Of the casks so delivered, one was of a considerably less capacity than thirty-six gallons. The appellant summoned the respondent under sect. 2, sub-sect. 1 (d), of the Merchandise Marks Act, 1887, for having applied a false trade description, namely, barrel, to a cask of beer false as to the measure and gauge thereof :

Held, that the description of the cask in the invoice was not the less *applied to the cask within the meaning of the Act because the invoice [* 409] was not physically attached to the cask.

Case stated by justices.

The appellant, a licensed victualler, gave an order to the respondent, a brewer, for six barrels of beer. In pursuance of such order six casks of beer were delivered by the respondent's drayman into the appellant's cellar, and the drayman at the same time left at the appellant's house an invoice in the following terms: "The Brewery, Leamington, Jan. 16th, 1890. Mr. Budd, Coventry. Bought of Lucas, Blackwell, & Arkwright, brewers, 6 brls. XXX K. £14:8:0."

The term barrel, according to the usage of the beer-trade, means a cask of a capacity of thirty-six gallons. One of the six casks so delivered was of a capacity of not more than thirty-four gallons. The appellant summoned the respondent for that he did" unlawfully apply a certain false trade description, namely, barrel, to certain goods, to wit, a certain cask of beer false as to the measure or gauge thereof, contrary to the provisions of the Merchandise Marks Act, 1887." 1 At the hearing before the justices it was contended, on behalf of the respondent, that the mere delivery of the invoice was not an application to the casks of the description of them which it contained within the meaning of the Act. Evidence was tendered by the appellant that on previous occasions 1 The Merchandise Marks Act, 1887 quantity, measure, gauge, or weight of (50 & 51 Vict. c. 28), sect. 2, sub-sect (1), any goods." enacts that "every person who (d) applies any false trade description to goods shall .. unless he proves that he acted without intent to defraud, be guilty of an offence against this Act."

By sect. 3, sub-sect. (1), "the expression trade description' means any description, statement, or other indication, direct or indirect, (a) as to the number,

VOL. XXV. — 15

By sect. 5, sub-sect. (1), "a person shall be deemed to apply . . . a trade description to goods who (b) applies it to any covering, label, reel, or other thing with which the goods are sold; or (d) uses a . . . trade description in any manner calculated to lead to the belief that the goods in connection with which it is used are designated or described by that . . . trade description."

No. 3. Budd v. Lucas, 1891, 1 Q. B. 409, 410.

the respondent's servants had delivered casks of beer of less than thirty-six gallons' capacity along with invoices in which they were similarly described as barrels. The justices refused to admit

such evidence. The respondent gave evidence that he had [* 410] no personal knowledge that the cask was deficient

in

measure; and it was contended on his behalf that, assuming there was any guilty knowledge on the part of his servants, he was not criminally responsible for their misconduct. The justices being of opinion that the facts did not disclose an application of a false trade description within the meaning of the Act, dismissed the summons, subject to a case in which the following questions were submitted for the opinion of the Court:

1. Whether the delivery of the invoice with the casks was an application of a false trade description within the meaning of the Merchandise Marks Act, 1887 ?

2. Whether they were right in excluding the evidence as to previous transactions between the parties?

3. Whether, assuming that the first question was answered in the affirmative, the respondent was criminally responsible for the acts of his servants?

Poland, Q. C. (W. Graham, with him), for the appellant. First, the delivery of the invoice was a sufficient application of the trade description which it contained to satisfy the statute. The application at which the statute aims is not confined to a physical application. The present case comes within sect. 5, subsect. 1 (d), the term barrel having been used in connection with the cask sold. The words" in connection with," in that subsection, mean nothing more than "in relation to." Further, the case also comes within (b) of the same sub-section, for the invoice was a " thing with which the goods were sold."

Secondly, the evidence as to the previous transactions was wrongly rejected - such evidence is always admissible where a guilty knowledge is an ingredient in the offence; see the cases collected in Reg. v. Francis, L. R. 2 C. C. 128.

With regard to the last question, it may be conceded that the respondent would not be criminally liable for any independent wrong-doing of his servants; as, for instance, if, the casks, being of a proper capacity, they neglected to fill them full: Chisholm v. Doulton, 22 Q. B. D. 736; but here the master has supplied his servants with casks of deficient capacity.

* Channell, Q. C. (A. Lyttleton, with him), for the res- [* 411] pondent. The Act aims only at the false marking of goods. A misrepresentation otherwise than by false marking is the subject only of an indictment for obtaining money by false pretences. The word "apply" was intended to refer only to a physical application. The title of the Act, which is "An Act to Consolidate and Amend the Law relating to Fraudulent Marks on Merchandise," points clearly to that conclusion. If the delivery of the invoice was a "use of a trade description" within sect. 5, subsect. 1 (d), then a mere verbal statement would equally come within that clause; but that could never be contended. Nor does this case come within clause (b) of that sub-section. The " thing with which the goods are sold" there was intended to refer to advertisements placed along with the goods inside an outer covering. Assuming the case to be within the Act, still the respondent is not liable in the absence of a personal intent to defraud. The offence consists not in selling beer in undersized casks, but in representing that the casks are full-sized. And if the respondent's servants so represented without his authority, he is not criminally liable for their misrepresentations.

Poland, Q. C., in reply.

POLLOCK, B. This case raises a question of very great importance as to the true construction of the Merchandise Marks Act, 1887. The facts are shortly these. A brewer sends to a customer by his carman a cask of beer, and the carman delivers along with the cask an invoice, in which the cask is described as a barrel. The cask was of a capacity of less than thirty-six gallons. And it was charged against the brewer that, as the term " barrel" in the beer trade means a cask holding thirty-six gallons, the delivof the invoice was an application of a false trade description to the cask within the meaning of sect. 2, sub-sect. 1 (d).

ery

The earlier Merchandise Marks Act, that of 1862 (25 & 26 Vict. c. 88), no doubt, dealt with trade-marks, and with nothing else. But the present Act is much wider in its scope; it deals with many things that are not trade-marks, or anything like them. For instance, sect. 20 renders a person liable to a penalty who falsely represents that goods are made by a person holding a Royal Warrant. A representation may be within that [* 412] section, although made by word of mouth. Again, in

*