We apprehend, however, that a distinction would be drawn, which, so far as the authorities go, would seem to be warranted representations are made, even though a loss result to one of the parties from this similarity of name, he is without a remedy. It is a case of damnum abeque injuria. Burgess v. Burgess, 17 Eng. L. ft Eq. 257; Faber v. Faber, 3 Abb. Pr. (n. s.) 115; s. c. 49 Barb. 357. But one cannot use another's name as a trademark under cover of having a workman of the same name in his employ, or by virtue of an arrangement with a third party bearing the same name, but having no interest in the business. Rodgers v. Nowill, 5 Man. Gr. & Sc. 109, 6 Hare, 325; Croft v. Day, 7 Bear. 84; Southorn v. Reynolds, 12 L. T. Rep. (n. s.) 75. In Ames v. King, 2 Gray, 379, the plaintiff was a manufacturer of shovels, and marked his goods with his own name, O. Ames; but it was averred in the bill that the letter O. was frequently effaced in the process of manufacture, and that the shovels were known in the market simply as Ames's. The defendant had stamped shovels of his own manufacture with the name Ames; but in his answer he averred on oath that be had done so not to represent them as the plaintiff's goods, but at the request of one E. B. Ames, by whom they had been ordered. Under the statutes of Massachusetts, the Supreme Court had then no general jurisdiction in cases of fraud, and their jurisdiction in the matter was derived solely from the provisions of chap. 197 of the Acts of 1852, which required proof of fraudulently representing the goods of one as actually made by another; and, as this was denied on oath, and the case came to a hearing on bill and answer alone, an injunction was refused.

(c) In equity it is not necessary that the acts of the defendant be done with fraudulent intent. Millington v. Fox, 3 My. ft Cr. 338; Ainsworth v. Walmsley, Eng. Eq. Rep. 1 Eq. Cas. 518; Burgess v. Hills, 26 Beav. 244; Edleston v. Edleston, 9 Jur. (N. S.) 479; Cartier v. Carlile, 8 Jur. (n. s.) 183; Amoskeag Man. Co. v. Spear, 2 Sandf. s. c. 608; Coates v. Holbrook, 2 Sandf. Ch. 586; Coffeen v. Brunton, 4 McLean, 516; Messerole v. Tynberg, 36 How. Pr. 14, 4 Abb. Pr. (N. S.) 410; Dale v. Smithson, 12 Abb. Pr. 237. This has been doubted in a few cases; and in Corwin v. Daley, 7 Bosw. 222, it is even said to be one of the "two principles steadily adhered to in all the cases in equity, that the intent to pass off the goods of the defendant as those of the plaintiff must exist;" and this is asserted also in the Merrimac Man. Co. v. Garner, 2 Abb. Pr. 318. But the contrary opinion is now firmly established both on principle and authority. At law the rule is different. There the remedy is by an action on the case for deceit, and an intent to deceive is of the gist of the action. Crawshay v. Thompson, 4 Man. & Gr. 357; Sykes v. Sykes, 3 B. & C. 541; Rodgers v. Nowill, 5 Man. Gr. & Sc. 108; Edleston v. Edleston, 9 Jur. (n. s.) 479; Farina v. Silverlock, 1 K. & J. 509. Where the use of another trade-mark is made a statute offence, the sale of spurious goods by one ignorant of the fact does not render him liable to the penalty. Rudderow v. Huntington, 3 Sandf. S. C 252.

by by by them. It is this. In our next section, it will * be seen that the owner and user of a trade-mark, if it be violated, may proceed against the violator in equity or at law: in equity, to restrain and prevent this violation of his right; at law, to obtain damages therefor. If he proceeds in equity, he should obtain the relief of injunction, although the violation did not intend deception. But if he resorts to law, to obtain damages, it may well become a material question whether the defendant was honest, intending neither harm to him or deception of the public, or fraudulent, and intending both. It would be a question which we should say would bear more upon the amount of damages than upon the verdict itself ; or, if the case were in equity, upon the question of costs. (d) How far an imitation must go to be regarded as a violation of a right, may depend upon the question how far the courts will go in protecting the public from deception, and where they will stop, leaving purchasers to take care of themselves. There is no positive rule, and perhaps never can be, which will always answer this question. In some cases the test is said to be, Is the imitation calculated to mislead the unwary? (e) But what is meant by unwary? If the law is, that no imitation is a violation of a trade-mark, which the customer could not detect by sufficient care, it is obvious that no mere colorable imitation would be restrained. And in some cases, in their conclusions from the facts, courts seem to go almost to this extent. We believe the true rule - not always easy of application - to be this: Is the imitation such as would probably deceive a customer who used ordinary care? and for this there can be no standard but the degree of attention which common buyers of such articles commonly give to bz them when they buy them. (f) Nor is it always * enough that a deception is caused; for it may be caused by conduct which the law permits. Thus, it is held that a man may stamp his own name, in gilt letters or otherwise, on his own goods, or their bands or covers; and if injury results to another manufacturer, he has no remedy. (ff)

(d) See note (o), infra.

(e) Crawshay v. Thompson, 4 Man. & Gr. 363; Edleston v. Vick, 23 Eng. L. & Eq. 51; Swift v. Dey, 4 Robt. 611; but the decision of Judge Robertson in this last case was overruled on appeal, and the role laid down in Partridge v. Menck adopted. See the next note. In the Brooklyn White Lead Co. v. Masury, 25 Barb. 417, it is said, "the law must protect the right to sell to all, to the incautious as well as to the cautious." See also Amoskeag Man. Co. v. Spear, 2 Sandf. S. C. 609. In a very large number of cases the expression used is simply, Is the imitation "calculated to deceive the public "?

(f) This is substantially the rule laid down in Partridge v. Menck, 2 Sandf. Ch. 622. Vice-chancellor Sandford there says: "Although the court will hold any imitation colorable which requires a careful inspection to distinguish its marks and appearance from those of the manufacture imitated, it is certainly not bound to interfere where ordinary attention will enable a purchaser to discriminate. It does not suffice to show that persons incapable of reading the labels might be deceived by the resemblance. It must appear that the ordinary mass of purchasers, paying that attention which such persons usually do in buying the article in question, would probably be deceived." This is cited and followed in The Merrimac Man. Co. v.

There is no doubt that a man's right to use his own trade-mark may be violated, not only by one who uses the same or a colorable imitation thereof, but by any person who provides the means or instrument of this fraud, as by making for the use of the violator the type or tool, or printing the label, by which it is carried into effect, and that an injunction will issue to prevent this. (g)