54 lationship which others bore to him and that the defendant could not use the name, nor his initial, but must say Johann E. Faber, J. Eberhard Faber, or Eberhard Faber. 52 So Leopold Hoff, a nephew of Johann Hoff, the first maker of Malt Extract, must use his whole name prominently on his bottles. 5 Rudolph Standinger kept a restaurant at 116 Broadway, New York City, under his Christain name, Rudolph's, and his widow successfully prevented his brother, who had been a partner in the business, from opening a restaurant in the building adjacent, under the name of Rudolph's Brothers. Frazer invented axle grease, which he called by his name, and, having sold the business, was not allowed later to defeat the right of his grantees and sell Superior Axle Grease-S. Frazer & Co." The plaintiff was formerly named Trust and changed his name to Gourand. 56 His sons, whose names were not changed, were restrained from making a preparation with a name slightly changed from that made by their father and connecting that name with the words "Dr. T. F. Gourand's Sons." One Jung changed the spelling of his name to Young" and opened a business a block away from De Youngs, with simulating signs, calling himself The Youngs and was enjoined, not for changing the spelling of his name, but for perpetrating a fraud. Welcome A. Smith, a grocer, long sold Welcome Soap and then had a manufacturer make for him a soap of different appearance. On the label he placed his name, with the Christian name in much larger letters than the rest, and arranged so that it alone appeared at the end of the package. On complaint, he changed the label so that his whole name was in one line of the same sized type. The court said Smith was hardly sufficient to identify him and he might use his full name, but must not segregate his Christian name, place it in larger type, or so locate it as to admit the inference that he sold Welcome Soap. 58 A man named Royal sold Baking Powder, with a label similar to that of the Royal Baking Powder Co. and called it New Royal. He then changed the color of his label, and called the goods Maxim Baking Powder, but printed his name prominently on the cans (so that the 52. Von Faber v. Faber, 124 Fed. 603. See Clark v. Armitage, 67 Fed. 896, 76 Off. Gaz. 1419. 53. Tarrant v. Hoff, 78 Off. Gaz. 1607, 71 Fed. 163. 54. Standinger v. Standinger, 19 Leg. Int. 85. 55. Frazer v. Frazer, 9 West R. 763. See Nolan v. Nolan, 131 Cal. 271. 56. Gourand v. Trust, 3 Hun, 627. 57. De Youngs v. Jung, 25 N. Y. Supp. 479, 27 N. Y. Supp. 370. 58. Lever v. Smith, 112 Fed. 998. name Royal sold his goods still) and was enjoined from such display on the front of his cans. 59 A certain prescription was so recommended by Capt. Storm to his friends" that the druggists who put it up called it Storm's Liver Regulator, in compliment to him, and then prevented Capt. Storm's son, who was not a druggist, from putting up a medicine after another formula, selling it as Storm's Liver Regulator and advertising that "this medicine is based on the original prescription prepared for Captain Adam Storm." The plaintiff in New York, carried on business for many years as "Arnheim the tailor," but had latterly dropped the phrase, 61 yet he prevented the defendant from using it with imitation of his (the plaintiff's) signs, boxes &c., as the name was unfamiliar in the city save as associated with him. Abraham Biningner 62 had an injunction against a former partner, Abraham B. Clark, who, with his son, opened a store next door to plaintiff's former store as A. Biningner Clark and Son, and advertised that they succeeded the old firm, and placed on the old store a sign, stating that they had removed to next door. Two men named De Grauw and Aymar 6 were not allowed with others to form a corporation, by the name of De Grauw, Aymar & Co., when there was an established business, carried on under that name by the survivor of the firm, who had bought the firm name. Two brothers, named Chickering, who were grandnephews of the original maker of the Chickering pianos, opened a piano manufactory as Chickering Bros. and put Chickering on the fall board. They conveyed the idea, by their circulars, that their pianos were those long known, and said they were the sole living male representatives of the family, who originated the Chickering pianos, and made the only piano made by a Chickering. 65 At the suit of the successors of the original company, they were restrained from calling their pianos Chickering, or using that word, alone or with another word, as the name of a corporation, making pianos, or using the word on pianos, or circulars, unless they said "not original Chicker 59. Royal B. P. Co. v. Royal, 122 Fed. 337- If his name was different, the display would prove his honesty. He offered to sell out to plaintiff which is evidence of fraudulent intent and he formerly made bicycles. 60. Robinson v. Storm, 52 S. W. 880. 61. Arnheim v. Arnheim, 59 N. Y. Supp. 948. 62. Bininger v. Clark, 60 Barb. 113. 63. De Grauw v. Schmidt, 56 N. Y. Supp. 593, 59 N. Y. Supp. 569. 64. Chickering v. Chickering, 120 Fed. 69. See Wyckoff v. Howe, 110 Fed. 520, 122 Fed. 348; Rogers v. Rogers, 11 Fed. 495; Rogers v. Rogers, 70 Fed. 1017, 73 Off. Gaz. 971. 65. Hopkinson piano could not be used, without distinctive word, by anyone but the original maker thereof. Hopkinson Re. 9 R. P. C. 102. See Montreal Co. v. Sabastion, (1899) A. C. 610. ings," or "not connected with Chickering & Sons." They were also restrained from distributing a booklet, called "A Sketch of the Chickering family and their famous pianos." The fact that the defendant organized the plaintiff company and was the first to make the articles does not permit him so to use his name as to confound his articles with theirs. 66 67 When a man has assigned his business to another, it was held in Maryland 7 that the assignment to use the name of the assignor was personal and could not be transferred to a third party, in the absence of express stipulation. Bagby and Rivers had been partners under that style and, when they dissolved the firm, it was agreed that Bagby might use the old name. Afterwards he formed the Bagby & Rivers Co. and sued Rivers, who had begun business under his own name. The court, however, not only upheld Rivers' right so to do, but enjoined the company from using Rivers' name. A distinction was made in New York between using the name of a corporation containing a man's name and using his name, and the Cutter Silk Manufacturing Co. was not restrained at the suit of Cutter, from using its name, but was restrained from placing the word Cutter on the ends of spools of cotton thread.68 69 One has exclusive right to the use of his name, save as to those having the same name and may prevent his assignee from the unauthorized use of it on wagons, bill-heads, &c., in connection with the business. However, the courts of New York refused to enforce the right to the use of a man's name when he had made a general assignment and abandoned the use of it in trade for twenty-five years and the defendants had purchased the right to use the name from his assignees twenty years after the assignment. 70 A man in many cases, especially when his name is peculiar, has lost the right to form a company bearing his name, if the name has been previously connected with a company with which the new organization competes. Thus the Van Aukens who had formed the 66. Penberthy Co. v. Lee, 78 N. W. 1074. 67. Bagby v. Rivers, 87 Md. 400. 68. Cutter v. Gudebrod, 61 N. Y. Supp. 225. 69. Scherer v. Am. Ice Co., 66 N. Y. Supp. 3. Otherwise he would be liable to cost and vexation of suits brought against him and would suffer detriment should he later engage in the business. 70. Bellows v. Bellows, 53 N. Y. Supp. 853. .71 Van Auken Co., sold out and, with others, formed the Van Auken Specialty Co. They were enjoined from the use of the name;"1 and Lamb, 72 who invented a knitting machine and sold the rights of manufacturing it to the Lamb Manufacturing Co., whose rights were assigned to Lamb Knit Goods Co., had no right later to organize the Lamb Glove & Mitten Co. and engage in the same business in another small town in the same state. The business of both corporations was conducted chiefly through agents and the public had been deceived. The name of the former maker may have become a mere adjective of description and the successor to the business who purchased the right to use it may successfully defend it against the bearer of the name. Thus Oakes was not allowed even to place Peter Oakes on candy, for the reputation of the candy came not from his skill in making it, but from the ingredients. " 78 There are many cases in which a man has been restrained from an improper use of his name, when he has not taken steps which every honest man should take to prevent confusion of goods." In England, a carpenter, named Warner, who bought the manufacture of Ashford's Gout and Rheumatic cure, and used his name with the goods, was restrained at the suit of the makers of Warner's Safe Cure.75 So H. B. Kimpton and his wife H. L. Kimpton were restrained from carrying on business in medical books, under the name of H. Kimpton, and representing themselves as the successors of the man of that name who was H. B. Kimpton's father, and had carried on such business for many years a few doors from defendant's shop. The suit was brought by the trustee of H. Kimpton's widow. 76 J. Brinsmead & Sons made pianos" and T. E. Brinsmead and his two sons worked for them as mere mechanics. They later formed a corporation, under the name of T. E. Brinsmead & Sons and manufactured pianos but were 71. Van Auken Co. v. Van Auken Specialty Co., 57 Ill. App. 240. 72. Lamb v. Lamb, 120 Mich. 159. 73. Oakes v. Tonsmierre, 49 Fed. 447. Skinner v. Oakes, 10 Mo. App. 45; Probasco v. Bonyon, 1 Mo. App. 241. 74. See Norman v. Norman, cited in 9 Ch. D. 560. A man named Cash might not advertise Cash's woven names, Cash's initials, nor Cash's frillings, for this use would mislead. Cash v. Cash, 19 R. P. C. 181, reversing 18 R. P. C. 213. 75. Warner Re., 5 T. L. R. 327. 76. Nicholls v. Kimpton, 5 T. L. R. 674; James v. James, L. R. 13 Eq. 421. Robert Joseph James was compelled to use his full middle name in connection with the sale of horse blisters. There was dressing up here. 77. Brinsmead Re., (1897) 1 Ch. 45, 406. name. enjoined from using the word Brinsmead in such business, without adding the express statement that they were distinct from the old firm. E. J. Jarman was allowed to trade under his own name, but not as Jarman & Co., or Jarman & Jarman, the plaintiff's business 78 Valentine's Extract of Meat was made by one process by the plaintiff and by another by the defendant. The latter was restrained from so doing," or from forming the Valentine Extract Co., which would be thought a company to deal in Valentine's extract rather than one merely formed by a Valentine. A firm was in business as Brand & Co. 80 A brother of one of the plaintiffs, who had been his clerk, went into the same business with Mason as Brand & Mason; suit followed but was compromised by the defendants' changing their name to Mason & Brand. Later Brand retired from the firm and Mason was enjoined from using the firm style, though he might transact business under his own name and state that he had been employed by Brand & Co. and had learned their methods. In New South Wales, 1 two brothers named Taylor were enjoined from trading as Taylor & Co., at the suit of the successors of Taylor Brothers, by whom the defendants had been previously employed, or from using the name, Taylor, without an express statement that they were not connected with the plaintiff. Dunlop has been held in England to have become so associated with bicycle goods that a defendant was enjoined from such use, although he claimed to have formerly been in business with another Dunlop and to have bought out the right to use his name. The use would lead customers to believe that the goods were plaintiff's, or at least that they had their sanction, or were connected in some way with them. 82 Other cases involving license to use another name are: those in which a man who claimed to have bought from one Brindle 9 the right right to mark watches with his name failed to enjoin another who sold watches bought from Brindle himself and marked with the name; and in which a man, who had in his employ a person named Southorn, was enjoined from advertising Reynold's Purified Clay Pipes made by Southorn from Broseley, at the suit of the maker of Southorn's Broseley 78. Townsend v. Jarmen, 17 R. P. C. 649. 42. 79. Valentine v. Valentine, 17 R. P. C. 673 reversing 17 R. P. C. 1. |