"Sanitas."
"Sawyer's Crystal Blue
and Safety Box."
"Shawknit."
"Shrewsbury, Marshall
& Co. Patent Thread."
"Six Little Tailors."
"Sorosis."
"Southern Company, St.
Louis."
"Star."
"Stark."
Held to be infringed by
"Standard Nerve Food.''^
"Nickel Saved. "2
"White Crow. "3
"Famous Portland."*
"Pride of Syracuse."^
"Pride of the Home."«
â– "William Clark & Sons'
Parabola Gold-Bur-
nished Sharps."'
"Camm-Roy Watch-Case
Co."«
"Condisanitas."^
"Sawin's Soluble Blue and
Pepper Box. "10
"Seamless.""
"Schrewsbury- March al
Patent Thread. "^2
"Six Big- Tailors. "13
"Sartoris."!*
"Southwestern, St.
Louis. "1^
"Lone Star."i«
"Star."!'
^ Moxie Nerve Food Co. v. Baumbach, 32 Fed. Rep. 205.
2Schendle v. Silver, 70 N. Y. Sup. Ct. 330.
3W. A. Gaines & Co. v. Leslie, 54 N. Y. Supp. 421; 25 Misc.
Rep. 20.
*Van Horn v. Coogan, 52 N. J. Eq. 380; 28 Atl. Rep. 788.
*Hier v. Abrahams, 82 N. Y. 519.
*Ft. Stanwix Canning Co. v. Wm. McKinley Canning Co., 63
N. Y. S. 704.
^Roberts v. Sheldon, 8 Biss. 398; Fed. Case No. 11916.
*Roy Watch-Case Co. v. Camm-Roy Watch-Case Co., 59 N. Y.
Supp. 979.
^Sanitas Co. v. Condy, 4 P. R. 195.
10 Sawyer v. Kellogg, 7 Fed. Rep. 721; 9 Fed. Rep. 601.
"Shaw Stocking Co. v. Mack, 12 Fed. Rep. 707; 21 Blatchf. 1.
12 Marshall v. Ross, L. R. 8 Eq. 651.
13 Mossier v. Jacobs, 65 111. App. 571.
"Little v. Kellam, 100 Fed. Rep. 353.
"Southern White Lead Co. v. Cary, 25 Fed. Rep. 125.
"Hutchinson v. Covert, 51 Fed. Rep. 829; 61 Off. Gaz. 1017.
"Gardner v. Bailey, Seb. 365; Fed. Case No. 5221.
§ 90] INFRINGEMENT. 199
Tlie Trade-mark. Held to he infringed by
"Steinway." " Steinberg-. "^
"Stephens." "Steel Pens. "^
"Stuart's Dyspepsia Tab- "Dr. Stewart's Dyspepsia
lets." Tablets."'''
"Sunlight." "American Sunlight."*
• • Swan. " « ' Black Swan. " »
"Tonge's." " Tung's. "«
"Trafford." " Stafford. "^
"Uneeda." "Iwanta.''^
"Vitae-Ore." "Vitalizing Ore."»
"Wamsutta." " Wamyesta."^o
"Warren." " Warranted, "ii
' ' Willoughby Lake. " " Willoughby Ridge. " ^^
It follows that a word may infringe a symbol, or vice
versa. Thus the figure of Columbia is an infringement
of the word "Columbia," previously applied to the same
class of merchandise.^^ But the use by a plaintiff of a
conventional diamond-shaped design has been held not
to confer a trade-mark right in the word "diamond,"
Judge Adams remarking: "If the complainant's goods
had ever been known in the trade as 'diamond steel,' or
generally as 'diamond' goods, it would undoubtedly be
protected in the use of the word ' diamond ' as a trade-name,
even though such word nowhere appeared in connection
with the symbol of a conventional diamond forming its
trade-mark. Its use by a competitor, either as its cor-
^ Steinway v. Henshaw, 5 P. R. 77.
2 Stephens v. Peel, 16 L. T. N. S. 145.
^Stuart V. F. G. Stewart Co., 91 Fed. Rep. 243.
^ Lever Bros. v. Pasfield, 88 Fed. Rep. 484.
â– â– 'Ex parte Caire, 15 OflF. Gaz. 248.
fiTongev. Ward, 21 L. T. N. S. 480.
7 Smith V. Carron Co., 13 P. R. 108.
^National Biscuit Co. v. Baker, 95 Fed. Rep. 135.
9Noel V. Ellis, 89 Fed. Rep. 978.
'"Wamsutta Mills v. Allen, 12 Phila. 535.
"Frost V. Rindskopf, 42 Fed. Rep. 408.
'2 Pike Mfg. Co. V. Cleveland Stone Co., 35 Fed. Rep. 896.
i:' Morgan Envelope Co. v. Walton, 82 Fed. Rep. 469; 81 Off. Gaz.
1615. In this connection see Kann v. Diamond Steel Co., supra, and
Re Thewlis & Blakey's Trade-mark, supra.
200 LAW OF UNFAIR TRADE. [§90
porate name or trade-name for its product, under such
circumstances would undoubtedly tend to deceive, and
fall within the condemnation of the cases of complain-
ant's counsel. See, especially, Johnson v. Bauer, 82 Fed.
Rep. 662. "^
The addition of other symbols, words or initials to the
trade-mark of another will not operate to avoid a charge
of infringement. "No one who has counterfeited a legit-
imate trade-mark and applied the spurious symbol in
competition with the genuine can avoid the charge of
infringement by showing that the false mark has in prac-
tice been so accompanied, on labels, capsules or other-
wise, by trade-names, designations, descriptions or other
accessories, not forming part of it, as to render it un-
likely that the public has been deceived. Such a show-
ing, while it may affect the nature or measure of the
relief to be granted, cannot defeat a suit for infringe -
ment."2
In the absence of proof of any deception of the public,
the courts have not been inclined to declare a dissimilar
mark an infringement unless the similarity was close.
Thus it has been held that the word "Pudding" does
not infringe the word "Puddine;'"' that the word "Baco-
curo" does not infringe the word "No-to-bac;"* that the
mark "B. & S." does not infringe the mark "S. B.;"Hhat
the mark "Filolloss," applied to silk, is a valid trade-
mark notwithstanding the prior use of the mark "Filo-
selle " applied to silk of a different character;^ that the
mark "Beeshore One-Night Cough Cure" does not in-
fringe the mark "One Night Cure;"'' that the mark
"Elastic Tolu" does not infringe the mark "Sappota
1 Pittsburg Crushed Steel Co. v. Diamond Steel Co., 85 Fed. Rep.
637-642.
^Bradford, J., in Bass, Ratcliff & Gretton (Ltd.) v. Feig-enspan,
96 Fed. Rep. 206-212.
sciotworthy v. Schepp, 42 Fed. Rep. 62.
< Sterling Remedy Co. V. Eureka Chem. & Mfg. Co., 80 Fed. Rep. 105.
•■iBurtv. Smith, 71 Fed. Rep. 161-163.
«Rawlinson v. Brainard & Armstrong Co., 59 N. Y. Supp. 880;
28 Misc. Rep. 287.
"Kohler Mfg. Co. v. Beeshore, 59 Fed. Rep. 572-576.
§91] INFRINGEMENT. 201
Tolu;"i that the mark "Star" and an uncolored tin star
is not infring-ed by "Starlight " and a red paper star;'* that
"Everyday Soap" was not so clearly infringed by "Every-
body's Soap" as to warrant a preliminary injunction. ^
It is important to note in this connection the expres-
sion of Lord Cranworth, that "It would be a mistake to
suppose that the resemblance must be such as would de-
ceive persons who should see the two marks placed side by
side. The rule so restricted would be of no practical use. " *
And another rule is that a defendant cannot evade the
charge of infringement by "showing that the device or
inscription upon the imitated mark is ambiguous, and
capable of being understood by different persons in differ-
ent ways."^
?j91. Miscellaneous matters relating to infringe-
ment. — In the cases of infringement it is manifest that the
policy of the law is clear, and that difficulty in determin-
ing questions of infringement arises only out of the facts.
It was asked in the English House of Lords, "How can
observations of judges upon other and quite different
facts bear upon the present case, in which the only ques-
tion is what is the result of the evidence?"^ Analogies
will, however, frequently be found in the adjudicated
cases which may assist in classifying the character of
infringement under consideration.
Infringements which display the name or initials of the
defendant are none the less infringements if any sub-
stantial portion of the mark is taken from the plaintiff's
mark.^ This principle has been applied to a case where
the defendant had washed plaintiff's labels off his bot-
tles, leaving only the marks blown or moulded in the
1 Adams v. Heisel, 31 Fed. Rep. 279.
2 Liggett & Myers Tobacco Co. v. Finzer, 128 U. S. 182.
3 Proctor & Gamble Co. v. Globe Refining Co., 92 Fed. Rep. 357; 34
C. C. A. 405.
<Seixo V. Provezende, L. R. 1 Ch. D. 192.
*Lord Watson in Singer Mfg. Co. v. Loog (3). 8 App. Cas. 39.
^Lord Watson in Johnson v. Orr-Ewing, H. L. 7 App. Cas. 219.
'Sawj'cr Crystal Blue Co. v. Hubbard, 32 Fed. Rep. 388; Anheuser-
Busch Brewing Association v. Clarke, 26 Fed. Rep. 410; Garrett v.
T. H. Garrett »& Co., 78 Fed. Rep. 472; Anheuser-Busch Brewing
Association v. Piza, 24 Fed. Rep. 149; Hostetter v, Adams, 10 Fed.
202 LAW OF UNFAIR TRADE. [§92
glass, and had pasted his own labels upon the bot-
tles,^ although in similar cases, where the name of the
defendant was conspicuously displayed on the new label,
injunction was refused. ^ But the fact that the defend-
ant does display his name upon his goods is always to be
considered as a circumstance in his favor.^
Infringement applied to goods of equal quality. — It is set-
tled that the fact that the defendant's goods are equal in
quality to the plaintiff's is no defense to the action of in-
fringement. As said by Judge McLean: "To entitle a
complainant to protection against a false representation
it is not essential that the article should be inferior in
quality."* And in a English case involving the manu-
facture of metallic hones, Lord Denman instructed the
jury that "even if the defendant's hones were not in-
ferior, the plaintiff was entitled to some damages, inas-
much as his right had been invaded by the fraudulent
act of the defendant."^ It may be regarded as settled
that it is immaterial, in the language of Judge Morris,
whether the defendant's goods "be better or worse in
quality.""
§ 92. The use of letters and numerals. — The princi-
ple that there can be trade-mark in letters or numerals
cannot be considered as finally settled. Gillott v. Ester-
Rep. 838; Pepper v. Labrot, 8 Fed. Rep. 29; Shaw Stocking Co. v.
Mack, 12 Fed. Rep. 707; McCann v. Anthony, 21 Mo. App. 83; Bass,
Ratcliff & Gretton (Ltd.) v. Feigenspan, 96 Fed. Rep. 206.
iHostetter v. Anderson, 1 W. W. & A'B. Eq. 7; Seb. 652; Rose v.
Loftus, 47 L. J. Ch. 576; 38 L. T. N. S. 409; Seb. 608; Rose v.
Henly, Seb. 551.
2 Welch V. Knott, 4 K. & J. 747; Barret v. Gomm, 74 L. T. (Journal)
388.
3 "This is one of the important means of identification." Severens,
J., in Proctor & Gamble Co. v. Globe Refining Co., 92 Fed. Rep. 357-
362. And see Kann v. Diamond Steel Co., 89 Fed. Rep. 706; P Lor-
illard Co. v. Peper, 86 Fed. Rep. 956-959; Blackwell v. Crabb, 36
L. J. Ch. 504; Beard v. Turner, 13 L. T. N. S. 746.
^CofFeen v. Brunton (2), 5 McLean, 256.
'iBIofield V. Payne, 4 B. & Ad. 410; Seb. 50. See also Taylor v.
Carpenter (2), 2 W. & M. 1; Cox, 32; Taylor v. Carpenter (3), 2
Sandf. Ch. 603; Edelsten v. Edelsten, 1 DeG. J. & S. 185; Seb. 213.
''Sawyer v. Horn, 1 Fed. Rep. 24-38. To the same effect see Cut-
ter V. Gudebrod Bros. Co., 55 N. Y. Supp. 298.
§92] INFRINGEMENT. 203
brook,^ in which the defendant was enjoined from using^
the numerals "303," was for a time regarded as uphold-
ing their use as a trade-mark, but the case is known and
recognized as a case of unfair competition. ^ The leading
English case, Ainsworth v. Walmsley, is very similar to
Oillott V. Esterbrook, supra, in that while the imitation of
a series of numbers was considered as one of the elements
justifying injunction, Vice-Chancellor Wood carefully dis-
tinguished them as not being a technical trade-mark.^
There is no case, however, in England in which the
courts have recognized "a mere numeral or combination
of numerals, standing alone, as sufficiently arbitrary and
distinctive to constitute a trade-mark.'"*
Of course numerals may form a part of a trade-mark,
in combination or collocation with words, figures or de-
signs, and many cases in which their imitation has been
restrained turned upon this point; ^ they will also be pro-
tected when used in an arbitrary and distinctive manner
which conveys no idea of number, although they would
probably not be so used except in collocation with de-
signs or words.'' In one case it was held that a com-
plainant was entitled to the exclusive use of a trade-
mark consisting of the figures i, only in the form, size,
color and style in which it had been registered and used,^
The strongest case holding that numerals alone may
form a valid technical trade-mark is Shaiv Stocking Go. v.
Mack,^ in which Judge Coxe ably reviews the decisions
H7 Barb. 455; Cox, 340.
^Browne on Trade-marks (2ded.), sec. 228.
sAinsworth v. Walmsley, L. R. 1 Eq, 518-527.
^Sebastian on Trade-marks (4th ed.), p. 79.
^Boardman v. Meriden Britannia Co., 35 Conn. 402; Lawrence
Mfg. Co. V. Lowell, 129 Mass. 325; Humphreys' Specific Med. Co. v.
Wenz, 14 Fed. Rep. 250; Carver v. Pinto Leite, L. R. 7 Ch. App. 90;
Robinson v. Finlay, L. R. 9 Ch. D. 487; Broadhurst v. Barlow,
W. N. 1872, p. 212; Carver v. Bowker, Seb. 581; Ralli v. Fleming,
Ind. L. R. 3 Calc. 417.
''Kinney v. Basch, 16 Am. Law Reg. N. S. 596; Seb. 542 — properly
a case of unfair competition.
'Kenney v. Allen, 1 Hughes, 106; Seb. 557; Fed. Case No. 7826.
si2 Fed. Rep. 707. See also Smith & Davis Mfg. Co. v. Smith, 89
Fed. Rep. 486.
204 LAW OF UNFAIR TRADE. [ § 92
and argues that the rejection of numerals as trade-mark
was invariably because of their use indicating quality
rather than origin or ownership; but he finally bases the
reason of his decree of injunction flatly upon the defend-
ant's fraudulent competition.
The practical difficulty in the way of constructing- a
trade-mark from numerals alone is that the defendant
could always find a multiplicity of excuses for selecting
the same numerals, and the cases indicate that the courts
grant ample protection to their use as against their
fraudulent imitation.^
Even where numerals were originally indicative of ori-
gin and ownership, if they have come to be used to indi-
cate quality, any one having the right to make or sell
the article in connection wherewith such numerals are
so used may designate the article by the numerals.^
In regard to letters, standing alone or in initial combina-
tions, the English courts have from an early period treated
them as trade-marks,^ although it appears that under the
English act of 1875, 38 and 39 Vict., c. 91, Vice-Chancel-
lor Hall has held a single letter cannot be registered as
a trade-mark.*
The use of a single letter would appear to be at least
unsafe, although it might in the United States be re-
^Gillottv. Kettle, 3 Duer, 624; American Solid Leather Button Co.
V. Anthony, 15 R. I. 338; Collins v. Reynolds Card Mfg. Co., 7 Abb.
N. C. 17; India Rubber Comb Co. v. Jewelry Co., 45 N. Y. Sup.
Ct. 258; Sohl v. Geisendorf, 1 Wills. (Ind.) 60; Hazard v. Caswell,
57 How. Pr. 1; Glen & Hall Mfg. Co. v. Hall, 61 N. Y. 226; 19 Am.
Rep. 278; Seb. 443.
2 Smith & Davis Mfg. Co. v. Smith, 89 Fed. Rep. 486.
3Ransome v. Bentall, 3 L. J. Ch. 161; Motley v. Downman, 3 My.
& Cr. 1; Millington v. Fox, 3 My. & Cr. 338; Crawshay v. Thompson,
4 M. & G. 357; Kinahan v. Bolton, 15 Ir. Ch. 75; Hopkins v. Hitch-
cock, 14 C. B. N. S. 65; Hall v. Barrows, 4 DeG. J. & S. 150; Bar-
rows V, Pelsall, Seb. 530; Re Barrows, L. R. 5 Ch. D. 353; Cartier
V. Carlile, 31 Beav. 292; Cartier v. Westhead, Seb. 199; Cartier v.
May, Seb. 200; Moet v. Clybonn, Seb. 533; Moet v. Pickering, L. R.
8 Ch D. 372; Ex parte Young, Seb. 537; Ransome v. Graham, 51
L.J. Ch. 897; Bondier v. Depatie, 3 Dorion, 233; Re Brook, 26 W. R. 791.
^Re Mitchell, L. R. 7 Ch. D. 36; 46 L. J. Ch. 876; 26 W. R. 326;
Cartmell, 226.
§92] INFRINGEMENT. 205
garded as a trade-mark; and Judge Bradford in a recent
opinion sug^gests that a sinj^^le letter or figure may be "so
peculiar and unusual in form or ornamentation" as to be
a valid trade-mark.^
Combinations of letters, used as initials, have been fre-
quently approved as trade-marks in the American decis-
ions, ^ and in the case of Amoskeag Mfg. Co. v. Trainer,^
in the federal supreme court, the decision, which held
the letters "A C A" were not a valid trade-mark, was
based upon the theory that those letters as used by the
complainant were indicative of quality, and not of origin
or ownership, as Judge Coxe has pointed out.^ There
can scarcely be a doubt that both numerals and letters
of the alphabet may sometimes be technical trade-marks,
and the objection to their use in that capacity has been
well stated by Judge Colt in the supreme court of Massa-
chusetts to be "the difficulty of giving to bare numbers
the effect of indicating origin or ownership, and of show-
ing that the numbers used were originally designed for
that purpose."^ And the same practical suggestion was
offered by the supreme court of Connecticut in these
words: "It may be difficult to give to bare numbers the
effect of indicating origin or ownership, and it may be
still more difficult to show that they were originally
designed for that purpose; but if it be once shown that
that was the original design, and that they have had that
effect, it may not be easy to assign a reason why they
should not receive the same protection, as trade-marks,
as any other symbol or device."''
A review of the cases indicates that the use of nu-
merals or letters has been restrained sometimes on the
theory that they were technical trade-mark, but never
where they were merely used to indicate quality;^ and
iDennison Mfg. Co. v. Thomas Mfg. Co., 94 P"ed. Rep. 651-658.
^Geron v. Gartner, 47 Fed. Rep. 467; Frank v. Sleeper, 150 Mass. 583.
3101 U. S. 51.
^Shaw Stocking Co. v. Mack, 12 Fed. Rep. 707.
5 Lawrence Mfg. Co. v. Lowell, 129 Mass. 325; Price & Steuart, 418.
''Boardman v. Meriden Britannia Co., 35 Conn. 402; Cox, 490.
^Re Eagle Pencil Co., 10 Off. Ga2. 981; Amoskeag Co. v. Trainer,
101 U. S. 51.
206 LAW OF UNFAIR TRADE. [§93
where injunction has issued, the facts show that the
infringing figures or letters were used in fraudulent
competition,^
In this connection it is well to note that "there can be
no doubt, and indeed it is not disputed, that two letters
may constitute a trade-mark. "^ So the American courts
have uniformly held that monograms or groups of two
or more letters not indicative of quality constitute valid
trade-marks; thus we find that the following marks have
been held valid: "A. G." applied to cigars and coffee;^
"B. B. B." applied to a medicine;* "B. B. H." applied to
iron;^ "S. B." applied to cough-drops;*' "G. F." applied to
velvet ribbon;" "A. C. A." applied to ticking.^ And
we find that similar groups of letters and monograms
have been treated as valid by the later English decisions.^
§ 93. The judicial test of infringement. — It may be
said, generally, that the courts will apply to the facts,
in the class of cases that we are considering, any and all
tests which are necessary to determine whether or not
the competition established by the defendant is fraudu-
lent. In delivering the opinion of the federal supreme
court in Goats v. Merrick Thread Co., Mr. Justice Brown
observed: "The differences are less conspicuous than the
general resemblance between the two. At the same time,
iRansome v. Bentall, 3 L. J. Ch. N. S. 161; Gillott v. Kettle, 3
Duer, 624; Ainsworth v. Walmsley, L. R. 1 Eq. 518; Gillott v. Ester-
brook, 47 Barb. 455; Cox, 340; 48 N. Y. 374; 8 Am. Rep. 553; Broad-
hurst V. Barlow, W. N. 1872, p. 212; Seb. 411; Kinney v. Basch, Seb.
542; Avery v. Meikle, 81 Ky. 75.
-Kinahan v. Bolton, 15 Ir. Ch. 75.
^Godillot V. American Grocery Co., 71 Fed. Rep. 873.
♦Foster v. Blood Balm Co., 77 Ga. 216; 3 S. E, Rep. 284.
SHall V. Barrows, 4 DeG. J. & S. 150.
«Burt V. Smith, 71 Fed. Rep. 161.
7 Giron v. Gartner, 47 Fed. Rep. 467.
^Amoskeag- Mfg. Co. v. Trainer, 101 U. S. 51 (dissent of Mr.
Justice Clifford). To the same effect see Burton v. Stratton, 12 Fed.
Rep. 696; Smith v. Imus, 32 Alb. L. J. 455; Frank v. Sleeper, 150
Mass. 583.
»Hopkins v. Hitchcock, 14 C. B. N. S. 65; Paul v. Barrows, 4 DeG.
J. & S. 150; Re Barrows, L. R. 5 Ch. D. 353; Cartier v. Carlile, 31
Beavan, 292; Moet v. Pickering, L. R. 8 Ch. D. 372; Frankau v. Pope,
11 Cape of Good Hope, 209.
§93] INFRINGEMENT. 207
they are such as could not fail to impress themselves
upon a person who examined them with a view to ascer-
tain who was the real manufacturer of the thread."^
And in all cases the court will inspect not only the dif-
ferences but the resemblances, as both must be consid-
ered in ascertaining whether the competition between
the parties is fair or fraudulent. As said by Judge Sev-
erens: "It has been said that it is the resemblances that
should be looked at, rather than the differences. But
the existence of the latter negatives the former, and it is
necessary to take both into view, in order to get a cor-
rect picture of the whole. "^
Of course the defendant cannot avail himself of dis-
similarities which become apparent only upon compari-
son of the plaintiff's and defendant's packages or marks.
This is because purchasers do not have the opportunity
of making comparisons. "A specific article of approved
excellence comes to be known by certain catchwords
easily retained in memory, or by a certain picture which
the eye readily recognizes. The purchaser is required
only to use that care which persons ordinarily exercise
under like circumstances. He is not bound to study or
reflect. He acts upon the moment. He is without the
opportunity of comparison. It is only when the differ-
ence is so gross that no sensible man acting on the in-
stant would be deceived, that it can be said that the
purchaser ought not to be protected from imposition.
Indeed, some cases have gone to the length of declaring
that the purchaser has a right to be careless,^ and that
his want of caution in inspecting brands of goods with
which he supposes himself to be familiar ought not to be
allowed to uphold a simulation of a brand that is de-
signed to work fraud upon the public. However that may
be, the imitation need only be slight if it attaches to what
1 Coats V. Merrick Thread Co., 149 U. S. 562.
2Proctor & Gamble Co. v. Globe Refining Co., 92 Fed. Rep. 357-362.
''It has been held on circuit that the careless purchaser will not be
protected. N. K. Fairbank Co. v. Luckel, King & Cake Soap Co.,
88. Fed. Rep. 694; but the case was reversed on appeal: s. c, 102
Fed. Rep. 327-332.
208 LAW OF UNFAIR TRADE. [§93
is most salient; for the usual inattention of a purchaser
renders a good will precarious, if exposed to imposition. " ^
The foregoing extract very fully expresses the charac-
ter of supervision over fairness in trade exercised by our
courts of equity. When an article has become known by
a catchword or a peculiar package, any one seeking to
use that form of package, or a mark or name that sug-
gests the catchword, must take care to keep within the
bounds of fairness in trade in so doing. '^
Mere colorable distinctions, so arranged as to escape
notice,^ the use of labels which may be removed by
retail dealers, leaving the imitated marks free to effect
deception,^ and all the other devices and schemes of fraud-
ulent competition disclosed by the reports, are taken into
consideration in determining the right to equitable relief.
One of the most important tests is the existence of simi-
larities of detail, whether of design, form, size, color or
material. Relief will always be granted when "it is
manifest from a comparison (of the two articles in con-
troversy) that one was copied from the other. "^ The
court does not search for dissimilarities, but for points
of resemblance.**
1 Jenkins, J., in Pillsbury v. Flour-Mills Co., 64 Fed. Rep. 841-847.
2 Stuart V. F. G. Stewart Co., 91 Fed. Rep. 243. So the use of the
word "Iwanta" has been enjoined as being a fraud upon the owner
of the trade-mark "Uneeda," both words being applied to biscuit.
National Biscuit Co. v. Baker, 95 Fed. Rep. 135.
^Taylor v. Taylor, L. R. 2 Eq. 290; 23 L. J. Ch. 255.
4 Barlow v. Johnson, 7 R. P. C. 395.
^Shipman, J., in Dixon Crucible Co. v. Benham, 4 Fed. Rep.
527-530.
''Hostetter v. Adams, 10 Fed. Rep. 838-842. Thus Judge Lacombe,
in considering conflicting liquor labels, said: "Inspection of the labels
must carry conviction to any unbiased and unprejudiced mind that
the later label was prepared by some one who had seen the earlier
one, and that it was designed, not to differentiate the goods to which
it was affixed, but to simulate a resemblance to complainant's goods
sufficiently strong to mislead the consumer, although containing
variations sufficient to argue about should the designer be brought
into court. This is the usual artifice of the unfair trader. " Collins-
platt V. Finlayson, 88 Fed. Rep. 693. In another recent case the
same court says: "There are as usual a number of minor differences
between the form and the dress of the two packages, which are
§93] INFRINGEMENT. 209
No matter what minor differences may exist in the tests
of infringement applied by various courts, it has been
uniformly noted that the fact that purchasers have no