The 79th section provides, that any person or corporation who "shall reproduce, counterfeit, copy, or imitate" a recorded trademark shall be liable to an action for damages, and the party aggrieved shall also have his remedy in equity. The same section prohibits the commissioner from receiving and recording a mark "which so nearly resembles" a recorded trade-mark, "as to be likely to deceive the public."

Any forgery of this mark, or any imitation of it, which would naturally deceive the community into the belief that they were buying what they were not buying, would be a violation of the trade-mark thus forged or imitated. (x) 1 use the name of the original firm as a trade-mark was fully recognized. In Hine v. Lart, 10 Jur. 106, the plaintiffs claimed as their trade-mark, to distinguish black stockings of their manufacture, the word "Ethiopian," printed in a peculiar manner. It appeared that the mark had formerly been used by a firm of which they were the surviving partners, and whose business they were continuing. Vice-Chancellor Shadwell said that it was possible that the representatives of some of the deceased partners might have an interest in the trade-mark, as he considered that the right to use a trade-mark was in the nature of a personal chattel, but that, at all events, the plaintiffs had sufficient right to bring forward this case.

(x) Amoskeag Co. v. Spear, 2 Sandf. Ch. 607; Rogers v. Nowill, 5 Man. Gr. & Sc. 109; Coffeen v. Brunton, 4 McLean,

516; Holloway v. Holloway, 13 Bear. 213 ; Matsell v. Flanagan, 2 Abb. Pr. (n. s.) 407; Williams v. Spence, 25 How. Pr. 366; Franks v. Weaver, 10 Beav. 297; Seizo v. Provezende, Eng. Eq. Rep. 1 Ch. Ap. 192; McCartney v. Gamhart, 45 Mo. 593; Palmer v. Harris, 60 Pa. St. 156; Filley v. Fassett, 44 Mo. 168; Lockwood v. Bostwick, 2 Daly, 521; Boardman v. Meriden Britannia Co. 35 Conn. 402; Rowley v. Houghton, 2 Brews. 303 ; Cotton v. Thomas, 2 Brews. 308. But it is not sufficient that the public may mistake the goods of one manufacturer for those of another, if the mistake arises solely from the resemblance of names or marks which both have an equal right to use. "A trade-mark," says Judge Duer, "is frequently designed to convey information as to several distinct and independent facts, and therefore contains separate

1 A court of equity will not restrain a defendant from the use of a label, on the ground that it infringes the plaintiff's trade-mark, unless the form of the printed words, the words themselves, and the figures, lines, and devices, are so similar that any person, with such reasonable care and observation as the public generally are capable of using and may be expected to exercise, would mistake the one for the other. Gilman v. Hunnewell, 122 Mass. 139. And where the similarity is so great as to deceive incautious purchasers, it is not necessary to show that any one has actually been misled. Johnston v. Orr Ewing, 7 App. Cas. 219. Evidence of one sale of an imitation will justify an injunction, though the defendant at the date of the application has none of the article in his store. Low v. Hart, 90 N. Y. 457. Where, however, the defendant had agreed not to use in a particular place a former trade-mark, under which he had carried on business, it was held, in an action to restrain him from so using, that it was no defence that its use by the plaintiff would mislead the public. Grow v. Seligman, 47 Mich. 607.

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It is seldom that this violation is effected by a complete forgery, or by a perfect imitation. But if the imitation be such in degree and character, - perhaps by a close imitation of the true trademark in its most salient and obvious features, and with a difference in its subordinate and less noticeable characteristics, - it is not the less a violation; and its character would indicate the fraudulent design of the user. Hence it is certain that the imitation may be imperfect * and colorable only, and bv yet be a violation of a right. (y) And in one case it was so held, where the imitation consisted in the use of one word only, the remainder of the original trade-mark being quite different from that of the imitation which was restrained by injunction. (z) words, marks, or signs, applicable to each; thus indicating not only the origin or ownership of the article or fabric to which it is attached, but its appropriate name, the mode or process of its manufacture, and its peculiar or relative quality. It is certain, however, that the use, by another manufacturer, of the words or signs indicative only of these circumstances, may yet have the effect of misleading the public as to the true origin of the goods; but it would be unreasonable to suppose that he is, therefore, precluded from using them as an expression of the facts which they really signify, and which may be just as true in relation to his goods as to those of another. Purchasers may be deceived; they may buy the goods of one person as those of another, but they are not deceived by a false representation; they are deceived because certain words or signs suggest a meaning to their minds which they do not in reality bear, and were not designed to convey." Amoskeag Co. v. Spear, 2 Sandf. S. C. 599; Stokes v. Landgraff, 17 Barb. 608; Gillott v. Esterbrook, 47 Barb. 464; 17 Eng. L. & Eq. 257. It has been held, that one who has received a prize-medal for the excellence of his wares, cannot prevent another from placing the words "prize-medal" upon his goods, though the latter has obtained no such medal. Batty v. Hill, 1 Hem. & M. 264.

(y) Clark v. Clark, 25 Barb. 76; Williams v. Johnson, 2 Bosw. 1; Amoskeag Co. v. Spear, 2 Sandf. Ch. 599; Davis v. Kendall, 2 R. I. 569; Barrows v. Knight, 6 R. I. 434; Fetridge v. Wells, 4 Abb. Pr. 144; Gillott v. Esterbrook, 47 Barb. 455; Newman v. Alvord, 35 How. Pr. 108, 49 Barb. 588; Seizo v. Provezende, Eng. Eq. Rep. 1 Ch. Ap. 192; Franks v. Weaver, 10 Bear. 297; Walton v. Crowley, 3 Blatchf. 440; Taylor v. Taylor, 23 Law