1 A person cannot have a right in his own name as a trade-mark, as against a person of the same name, unless the latter's form of stamp or label is so similar as to represent that his goods are of the former's manufacture. Gilman v. Hunnewell, 122 Mass. 139.

•257 bn is said, "It may be that one would have a right to use it (a name constituting a trade-mark) merely by translating it." (n)

There is one important principle which has been fully investigated and firmly established by cases in England and in this country. It is, that no man will be protected in the use of his trade-mark - certainly he should not be - if it be * not an honest mark; nor will he be, if he does not bn make an honest use of it. (o) Sections 82 and 84 of the statute are in full accordance with this rule.

(n) Fetridge v. Merchant, 4 Abb. Pr. 157. It seems to be now well settled that a familiar name may be appropriated as a trade-mark provided it has never before been used to designate the article to which it is now applied. In Messerole v. Tynberg, 4 Abb. Pr. (n. s.) 410, Judge Brady says: "Due consideration of the whole case results in this proposition. If the plaintiffs can be pronounced the first to use the word "Bismark," although a popular term, and one in general use as a designation of a particular style of paper collars made by them, and to have acquired, by its manufacture and sale under that name, a valuable interest in such designation, the defendant must be estopped from using it for the same purpose. The plaintiffs had the right to appropriate such name in common with others for a new purpose; and having done so, are entitled to avail themselves of all the advantages of their superior skill and industry. There is no reason for making any distinction between a common word or term used for an original or new purpose which has accomplished its object, and a new design adopted by a manufacturer." The same doctrine had been previously held in the important case of Newman v. Alvord, 49 Barb. 588, where the name Akron applied to cement made by the plaintiff was protected as a trademark; and in Barrows v. Knight, 6 R. I. 434, in which the name "Roger Williams," used to designate the plaintiff's cloth, was decided to be a valid trademark. The court in this case say: "We are not aware of any legal restriction upon a manufacturer's choice of a name for his trade-mark, any more than of his choice of a symbol; so that the name be so far peculiar, as applied to manufactured goods, as to be capable of distinguishing, when known in the market, one manufacturer's goods of a certain description from those of another. Roger Williams, though the name of a famous person long since dead, is, as applied to cloth, a fancy name." See Howard v.

Henriques, 3 Sandf. S. C. 725; Knott v. Morgan, 2 Keene, 213; McAndrew v. Bassett, 10 Jur. (n. 8.) 492, 550; Braham v. Bustard, I Hem. & M. 447; Maxwell v. Hogg, Eng. Eq. Rep. 2 Ch. Ap. 305.

(o) Pidding v. Blow, 8 Sim. 477; Perry v. Truefitt, 6 Beav. 66; Flavel v. Harrison, 19 Eng. L. & Eq. 15; The Leather Cloth Co. v. The American Leather Cloth Co. 10 Jur. (n. s.) 81; Partridge v. Menck, 1 How. App. Cases, 547; Fetridge v. Wells, 4 Abb. Pr. 144; Samuel v. Berger, 4 Abb. Pr. 88; Hobbs v. Francais, 19 How. Pr. 571; Smith v. Woodruff, 48 Barb. 438; Curtis v. Bryan, 36 How. Pr. 33; Fowls v. Spear, 1 Law Rep. (n. s.) 130. In all these cases it is emphatically denied that any relief will be given where the plaintiff has been guilty of fraud, in describing the nature, origin, or composition of his goods, and this may be considered as the settled law upon the subject, though a few cases hold a different doctrine." In Partridge v. Menck, 1 How. App. Cas. 547, the court say: "The privilege of deceiving the public, even for their own benefit, is not a legitimate subject of commerce; and, at all events, if the maxim that he who asks equity must come with pure hands, is not altogether obsolete, the complainant has no right to invoke the extraordinary jurisdiction of a court of chancery in favor of such a monopoly." And in Fetridge v. Wells, 4 Abb. Pr. 144, it is said: "Those who come into a court of equity, seeking equity, must come with pure hands and a pure conscience. If they claim relief against the fraud of others, they must be free themselves from the imputation. If the sales made by the plaintiff are effected, or sought to be, by misrepresentation or falsehood, they cannot be listened to when they complain that by the fraudulent rivalry of others their own fraudulent profits are diminished. An exclusive privilege for deceiving the public is assuredly not one that a court of equity can be required to aid or sanction; to do so, would be to forfeit its name and character." On the other hand, in Fetridge v. Merchant, 4 bo * Sometimes a man has falsely inserted in his trademark the word "patent." Both in England and in this country, this is an offence to which penalties are annexed. But without any reference to this penalty, all protection has been withheld from one guilty of this fraud, and this even where the defendant, by using the same identical mark, was guilty of the same fraud. (p)

We cannot but hope that adjudication on the two sections above cited, will give the widest extent to the requirement of honesty. We would have no trade-mark protected, if the goods to which it was attached were less in quantity than they were declared to be, or different in material, or otherwise falsely and fraudulently described. Such a rule could not but have a salutary effect in checking one method of deception which is extensively practised.

Abb. Pr. 156, Judge Hoffman says: "It is constantly insisted, and the position is maintained by some judges, that when the article in question is innocuous, or in some degree useful, no absurd panegyric or extravagant price is a reason tor denying the interference. On the other side, it is well settled that when the deception consists in palming off upon the public articles of the party's own manufacture or composition for those of another who has obtained celebrity or notoriety, the court will remain inactive. I have always considered that upon this branch of the subject the conduct of the defendant has a material influence. Has he deliberately, without any previous connection with the particular business, but simply to break m upon the trade and profit by the notoriety obtained by another, adopted his emblems and appellations? If he has, then, in my view, the question should be judged of solely as between the intermediate parties, and the public should be left to its own guardianship." The case was, however, decided upon other grounds. A distinction between a fraudulent trade-mark and a fraudulent advertisement of the article to which the trade-mark is affixed, is made in Curtis v. Bryan, 36 How. Pr. 33: "There is no doubt of the principle that if a person in and by his trade-mark makes representations which deceive the public, he cannot appeal to the equitable interposition of courts of equity in his behalf; but I cannot understand how the right of a plaintiff to be protected in a trade-mark adopted by him, if it contains in itself no false or fraudulent representation is to be affected by advertisements of his article in the newspapers. The trade-mark is one thing, the notices or commendations of his medicines, when the inventor offers them for sale, is quite another. If the trade-mark contained a false statement, and the advertisements of the plaintiff tended to establish it, they might be used for that purpose; but except as it bore on that question it would not answer to determine the right of a plaintiff to protection in his trade-mark by the standard of credit allowed to an advertisement of the qualities of the article." The same distinction is noticed in Comstock v. Moore, 18 How. Pr. 421, though in this case the court favor the doctrine that an innocent humbug is not beyond the protection of the court, and that the public must look out for themselves. See Holloway v. Hol-loway, 13 Beav. 209. In Stewart v. Smith-son, 1 Hilton, 119, it was held no defence that the trade-mark claimed consisted of the name of a fictitious firm, and this was afterwards expressly held in Dale v. Smith-son, 12 Abb. Pr. 237, the court being of opinion that the name was used only for the purpose of identification, like an arbitrary sign, and that it worked no fraud upon the public.

(p) Flavel v. Harrison, 19 Eng. L. & Eq. 15; The Leather Cloth Co. v. The American Leather Cloth Co. 10 Jur. (n. s.) 81. But in Sykes v. Sykes, where the plaintiff had obtained a patent for the manufacture of shot-belts which afterwards proved to be invalid from a defect in the specification, it was held, that the continued use of the word "patent" in connection with the trade-mark, did not preclude the plaintiff from relief. So in Edleston v. Vick, 23 Eng. L. & Eq. 51, where the patent had expired by limitation. In Stewart v. Smithson, 1 Hilton, 119, it was set up among other grounds of defence that the fraudulent use of the word "patent" invalidated the plaintiff's trade-mark, but the objections were all overruled, though on this precise point nothing is said in the opinion of the court.