But has the buyer bought this right as against the world? To some extent he has. For the mark indicated that goods of a certain make had a certain peculiar value; and the mark was of no value excepting so far as this indication is true, or is believed to be true. The buyer has bought the means by which they were made, and in calling himself the successor of the former maker, he undertakes to make them in the same way or with the same excellence. The public, believing him, continue to prefer * the goods bearing the old trade-mark; and they have a br right to be protected against a fraud which would make them buy against their will goods of another make. And a protection of the public against this fraud is a protection of this new user of this old mark. Still, it might be necessary, and would be safer for him, to record the trade-mark anew as his property.

Perhaps a consideration of all the authorities would lead to the conclusion that there are two classes into which trade-marks may bo divided for the purpose of determining whether the right they give can be transferred. The first, where the trade-mark declares that the article is made by a particular person or firm; and this cannot be transferred. The second, where of itself the mark is arbitrary or meaningless, and is used only to indicate that the goods are made in a particular manner, or possess a particular excellence; this is capable of transfer. (s) One leading case

(r) Edleston v. Vick, 23 Eng. L. & Eq. 51; Walton v. Crowley, 8 Blatchf. 440; Hall p. Barrows, 9 Jnr. (n. s.) 482, 10 Jur. (n. s.) 55; The Leather Cloth Co. v. The American Leather Cloth Co. 1 Hem. & M. 271, 10 Jur. (n. s.) 81, 11 H. L. C. 523; Ainsworth v. Walmsley, Eng. Eq. Rep. 1 Eq. Cas. 518.

(s) In Hall v. Barrows, 9 Jur. (n. s.) 482, the firm of Barrows & Hall, iron manufacturers, had used as their trademark, which they stamped on all iron manufactured by them, the letters B. B. H. surmounted by a crown, these letters being the initials of the three original members of the firm. On the death of Hall, Barrows, as the surviving partner, claimed the exclusive right to use this trade-mark, and this suit was brought by Hall's representatives to compel a sale of the partnership property, including the good-will and the trade-mark. Sir J. Romilly, Master of the Rolls, held, that trade-marks are of two descriptions; denoting either the person by whom the article is made, or the place at which it is made; that the former class are not assignable, but that the latter may be. The mark in question he considered as belonging to the former class. On appeal to the Court of Chancery, this decree was reversed. 10 Jnr. (n. s.) 55. Referring to the distinction made by the Master of the Bolls, Lord Chancellor Cottenham, said: "It must be borne in mind that a name, although originally the name of the first maker, may in time become a mere trademark or sign of quality, and cease to denote or to be current as indicating that any particular person is the maker. In many cases, a name once affixed to a manufactured article continues to be used bs would lead to the conclusion, that where a trade-mark was originally used to indicate the first of these suppositions, that bs the article was the * manufacture of a particular person or firm, but by lapse of time, by use, or perhaps by the death of the person or the dissolution of the firm first indicated, has lost this significance, and is now applied only to the manner of making or the excellence of the article, the case would fall within the second of the above-mentioned classes, and the right would be transferable. (t)

There are cases illustrating the question how far the sale of a "good-will" includes and conveys an exclusive right to use a certain mark. Between this "good-will," now generally recognized as a valuable interest, and the right to use a trade-mark, there is a considerable analogy, although they certainly are not the same, and the "good-will" has no statute protection. It may be held, however, as a general principle, that the "good-will," as a larger thing, includes the right to use a trade-mark as a part of it; and that the sale of the good-will would transfer the right to use the trade-mark, so far as the seller had the power to transfer it. (u) 1 for generations after the death of the individual who first affixed it. In such cases the name is accepted in the market either as a brand of quality, or it becomes the denomination of the commodity itself, and is no longer a representation that the article is the manufacture of any particular person." In the present case his Lordship considers "that these initial letters surmounted by a crown have become and are a trade-mark properly so called; i. e., a brand which has reputation and currency in the market as a well-known sign of quality, and that as such the trade-mark is a valuable property of the partnership, and may be sold with the works." Substantially the same distinction as to the assignability of trade-marks was made in The Leather Cloth Co. v. The American Leather Cloth Co., 1 Hem. & M. 271, 10 Jur. (n. s.) 81, 11 Jur. (n. s.) 518, 11 H. L. C. 523. See the opinion of Lord Cranworth in the House of Lords, cited in note (w), supra. See also Bury v. Bradford, 9 Jur. (n s.) 956.

(t) Hall v. Barrows, 10 Jur. (n. s.) 55. See the previous note.

(u) In Churton v. Douglas, 1 H. R. V. Johnson, 176, the question arose in this form: whether on the sale of the goodwill of a business the exclusive right to use the name of the original firm passed to the assignee. The defendant had been engaged in business as a stuff merchant with others, under the firm name of John Douglas & Co. Subsequently the firm was dissolved, and the business, including the good-will, sold to the plaintiffs, who carried on the business under the name of Churton, Bankart, & Hurst, late John Douglas & Co. Douglas afterwards recommenced business in the same town, forming a new firm under the same name as before. On a bill to restrain the defendant from the use of this firm name, it was held, to be conclusively settled that the sale of the good-will of the business, without more, does not imply any contract on the part of the vendor not to set up again in a similar business himself; and that he might even do this at the very next door to his former place of business, but that he has no right to represent himself as carrying on the same business as before, or a continuation of the same business; that the name of the firm was an important part of the good-will, and that by the sale of the good-will he was estopped from the further use of it. The court say: "The name of a firm is an ira1 A trade-mark applied to an article manufactured by a partnership is, in the absence of agreement, partnership property. Filkins v. Blackman, 13 Blatchford, 440. So of a patent. Kenny's Patent Button-Holeing Co. v. Somervell, 38 L. T. (n. s.) 878.

•257 bt portant part of the good-will of the business carried on by the firm. A person says: I have always bought good articles at such a house of business; I know it by that name, and I send to the house of business identified by that name for that purpose. There are cases every day in this court with regard to the use of the name of a particular firm, connected generally, no doubt, with the question of trade-mark. But the question of trademark is in fact the same question. The firm stamps its name on its articles. It stamps the name of the firm which is carrying on the business, on each article, as a proof that they emanate from that firm, and it becomes the known firm to which applications are made, just as much as when a man enters a shop in a particular locality. That the name is an important part of the good-will of a business is obvious when we consider, that there are at this moment large banking firms and brewing firms and others in this metropolis which do not contain a single member of the individual name exposed in the firm." So Dayton v. Wilkes, 17 How. Pr. 510. Similar views were expressed in Sogers v. Taintor, 97 Mass. 291, though the final decision rested on other grounds. The case of Howe v. Searing, 10 Abb. Pr. 264, seems to maintain a different doctrine. The plaintiff had sold his business establishment known as Howe's Bakery, together with the good-will of the business, to the defendant, who continued for some time to carry on the business under the same name. Afterwards by an arrangement with the defendant he resumed business in the same neighborhood, but with the express agreement that he should "not in any manner interfere with the business carried on at No. 432 Broadway, known as Howe's Bakery." After the lapse of some time, however, he brought this suit to restrain the defendant from continuing to designate his establishment as Howe's Bakery. After an examination of the authorities, the court say that, "were it not for the case of Churton v. Douglas above cited, the defendant's case would be left without any direct authority, or even dictum, in its favor;" but they finally rest their decision for the plaintiff upon a State statute. A decided dissenting opinion was given by Justice Moncrief. It is to be observed, however, that in Churton v. Douglas the assignees advertised themselves only as the successors of the original firm, while in Howe v. Searing the assignor's name was used without any such limitation.

* Other questions have arisen as to the assignment or bt transfer, by the parties or by force of law, of the right to use a trade-mark, where there has been a dissolution of partnership, and in cases where the owner of a trade-mark had become bankrupt. The authorities we cite and quote from in our notes, will show how the courts have dealt with these questions. (v) But here, as before, we must wait for the rules which will regulate this subject.

(v) On the dissolution of a firm by bankruptcy, or by the death of a partner, the question has arisen, whether the goodwill of the late firm survives to the partners continuing the business, or whether it forms a part of the partnership assets in which the assignees or the estate of the deceased partner has an interest. As the possessor of the good-will is entitled to represent himself as the successsor of the late firm, and to that extent at least to use its name as a trade-mark, the question is noticed in this connection. The weight of authority both in England and America seems to be in favor of considering the good-will a part of the partnership assets. This is so held in Crawshay v. Collins, 15 Ves. 227; Cruttwell v. Lye, 17 Ves. 335; McDonald v. Richardson, 1 Giff. 81; Hitchcock v. Coker, 1 Ad. & El. 438, 446; Cook v. Collingridge, cited at length in Collyer on Partnership, § 322, n., Dougherty v. Van Nostrand, 1 Hoff. Ch. 68; Williams v. Wilson, 4 Sandf. Ch. 379; Howe v. Searing, 10 Abb. Pr. 264. The contrary was held in Hammond v. Douglas, 5 Ves. 539; Lewis v. Langdon, 7 Sim, 424. If the partnership assets are divided between the partners, each is at liberty to use the mark as before. Banks v. Gibson, 11 Jur. (n. s.) 680. In Edles-ton v. Vick, 23 Eng. L. & Eq. 51, the plaintiff had purchased from the assignees of a bankrupt firm a certain patent for the manufacture of pins, and also the right of carrying on their trade, and of using a variety of plates, engravings, and drawings, relating to the trade and trademarks, and the exclusive title of the plaintiff to the use of these trade-marks was sustained. In Croft v. Day, 7 Beav. 84, the business was carried on by the executors of the last surviving partner, for the benefit of his estate, and their right to

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