It has been held that where an injunction against the use of a trade-mark had been issued, it was a breach to use the same name, with the addition of "improved," although the defendant said on the label that it was not the original article. (r) Usually, a court of equity will not exert its high powers unless a case is made out which calls distinctly and perhaps strongly for their interposition. But it is now perfectly well settled, even in the absence of the statute, that a person may be entitled to the exclusive use of his own * trade-mark, and that a court of equity has co full jurisdiction over any wrongful interference with this use, and may prevent the same, or give indemnity for injury sustained thereby.

It may be that the original proprietor of a trade-mark has lost his right, or at least his equitable remedy, by his own laches; or, by acquiescing in the use of it by another, without objection or interference. Nor need it be, according to the view taken of this question in some cases, a long period of silence to have this effect. (s) If such laches or permission be shown, a court of equity will at least withhold its peculiar remedy and remit the plaintiff to a court of law. (t)

(o) Burgees v. Hills, 26 Bear. 244; Burgess v. Hately, 26 Beav. 249; The Collins Co. v. Walker, 6 W. R. 717.

(p) Hudson v. Bennett, 12 Jur. (n. s.) 519. In Millington v. Fox, 3 My. & Cr. 338, the defendant having offered to give up the mark before the suit had been commenced, no costs were granted to the plaintiff.

(r) Ayer v. Hall, 3 Brewster, 509. (s) In Flavel v. Harrison, 19 Eng. L. ft Eq. 15, a delay of four months after the infringement became known to the plaintiff, was held, under the circumstances, a bar to his application for an injunction.

(t) The Amoekeag Man. Co. v. Garner, 6 Abb. Pr. (n. s.) 265 ; Taylor v. Carpenter, 2 Wood, & M. 19; Milliard on Injunctions, § 43; Beard v. Turner, 13 Law Times Rep. (n. S.) 746. In this last case, a delay of two years was shown. On the other hand, in The Amoekeag Man. Co. v. Spear, 2 Sandf. S. C. 615, Judge Duer says: "I am satisfied that the doctrine of acquiescence, operating as an absolute surrender of an exclusive right, is applicable to the case. The consent of a manufacturer to the use or imitation of his trade-mark by another, may, perhaps, be justly inferred from his knowledge and silence; but such a consent, whether express or implied, when purely gratuitous, may certainly be withdrawn; and, when implied, lasts no longer than the silence from which it springs; it is in reality no more than a revocable license. The existence of the fact may be a very proper subject of inquiry in taking an account of profits, if such an account shall hereafter be decreed; but even the admission of the

•267 cd fact would furnish no reason for refusing an injunction." So Gillott v. Esterbrook, 47 Barb. 470, affirmed in 48 N. Y. 374. When one gratuitously permits another to use his name as a trade-mark, this permission is a mere license, revocable at the will of the person whose name is thus used. McCardel v. Peck, 28 How. Pr. 120; Howe v. Searing, 10 Abb. Pr. 264; Christy v. Murphy, 12 How. Pr. 77. See also Bowman v. Floyd, 3 Allen, 76, decided upon a statute (Mass. Gen. Stat. c. 56, §§ 1-4), forbidding the carrying on of business in the name of a third person without the written consent of the latter.

It seems to be well established that equity exercises its jurisdiction in those cases only where the legal right is established or is certain. (u) cd * In some of the States, the violation of a right to a trade-mark is prohibited by statute. We cite them in our notes. (u) How far these statutes will be superseded by the statute of the United States, or held to be concurrent with that, we do not propose to consider.

(u) "I have before this had an occasion to express an opinion," says Lord Cottenham, "that unless the case be very clear it is the duty of the court to see that the legal right is ascertained before it exercises its equitable jurisdiction. For this there are good reasons. The title to the relief depends upon a legal right, and the court only exercises its jurisdiction on the ground that the legal right is established." Spottiswoode v. Clarke, 2 Sandf. Ch. 628, 2 Phil. 154. So in Snowden v. Noah, Hopkins, 347, it is said : "The writ of injunction is a most important remedy; but it is used to protect rights which are clear, or at least free from reasonable doubt." So Motley v. Downman, 3 My.

& Cr. I; Bramwell v. Holcomb.S My. & Cr. 747; Pidding v. How, 8 Sim. 477; Rodgen v. Nowill, 6 Hare, 325 ; Wolfe v. Goulard, 18 How. Pr. 64; The Merrimac Man. Co. v. Garner, 2 Abb. Pr. 318; Cof-feen v. Brunton, 5 McLean, 256; Howe v. Howe Machine Co. 50 Barb. 236.

(v) The infringement of trade-marks is a statute misdemeanor in the following States: New York, Laws of 1862, ch. 306 ; Massachusetts, Gen. Stat. ch. 161, §§ 55, 56; Pennsylvania, Brightly's Purdon's Digest, pp. 246, 966, Pub. Laws, 1860, p. 423, Pub. Laws, 1853, p. 643; Ohio, Swan & Critchfield's Statutes, p. 454, Act Mar. 29,1859; Missouri, Gen. Stat. p. 912, Act Mar. 6, 1866; Michigan, Laws, 1863, No. 22; California, Stat. 1863, ch. 129, Stat. 1867-8, ch. 349; Oregon, Gen. Laws Criminal Code, ch. 44, §583; Kansas, Gen. Stat. ch. 111. See also the Merchandise Marks Act, 25 & 26 Vict. ch. 88. In Maine and Massachusetts there are statutes in affirmance of the common law, giving the owner of a trade-mark a civil remedy in damages for its infringement, and authorizing an injunction. Me. Acts, 1866, ch. 10 ; Mass. Gen. Stat. ch. 56. In Missouri, California, and Oregon, provision is made for the public registration of trade-marks.