Argument for Respondent. 198 U.S. Glue cases, 51 Fed. Rep. 943; and 147 Massachusetts, 206; Hoxie v. Chaney, 143 Massachusetts, 592; Brown Chemical Co. v. Meyer, 139 U. S. 548; Ainsworth v. Walmsley, L. R. 1 Eq. 518; Derringer v. Plate, 29 California, 292; Clark Thread Co. v. Armitage, 74 Fed. Rep. 940; Rahtjen Co. v. Holzappel Co., 101 Fed. Rep. 260; Kerly on Trade Marks, 2d ed., 463; Rogers Co. v. Rogers Co., 11 Fed. Rep. 330, 495; Shipwright v. Clements, 19 W. Rep. 599; Wilmer v. Thomas, 74 Maryland, 485; Born v. Moss, 70 N. Y. 473; Morgan v. Rogers, 19 Fed. Rep. 596; Sebastian on Trade Marks, 4th ed., 299; Hillson Co. v. Foster, 80 Fed. Rep. 896. For definition of good will to effect that it is the probability that customers will resort to the old place, see Menendez v. Holt, 128 U. S. 514, 522; Cruttwell v. Lye, 17 Ves. 335, 346; Churton v. Douglas, Johnson V. C. 174, 178; Knædler v. Boussod 47 Fed. Rep. 465; Washburn v. Wall Paper Co., 81 Fed. Rep. 17. The name "Remington," which has for many years been generally and widely known to the trade as symbolizing complainant-appellee's product and business, is a very important and valuable part of the good will of its business. Sebastian, 4th ed., 17. A corporation may acquire a property right to the use of a name other than its corporate name as incidental to the good will of its business. Goodyear R. Co. v. Goodyear Rubber M. Co., 21 Fed. Rep. 277; Thomas v. Dakin, 22 Wend. 9; 1 Cook on Corp. § 15, p. 58; 1 Thompson on Corp. § 286; 7 Ency. Law, 2d ed., 685; 10 Cyc. Law, 151; Higgins Soap case, 144 N. Y. 462; Tuerk Co. v. Tuerk, 36 N. Y. Supp. 384; S. Howes Co. v. Howes Co., 52 N. Y. Supp. 468. The fact that petitioner had discontinued the sale of the machines after suit was commenced and before the entry of the decree, did not disentitle the appellee to the relief granted. Oxford University v. Wilmore-Andrews Pub. Co., 101 Fed. Rep. 443; Clark Thread Co. v. William Clark Co., 37 Atl. Rep. 599; Burnett v. Hahn, 88 Fed. Rep. 694. As petitioner had full knowledge of respondents' use in its 198 U. S. Argument for Respondent. business of the name, it is no defense that the name "Remington" or "Remington Company" or "Remington Typewriter Company" was assumed in good faith and without design to mislead the public and acquire appellee's trade. Higgins Soap case, 144 N. Y. 462, 471; Roy Watch Case Co. V. Camm-Roy Watch Case Co., 58 N. Y. Supp. 979; Fuller v. Huff, 104 Fed. Rep. 141; Johnston v. Orr-Ewing, 7 App. Cas. 219. This is not a case where the Illinois corporation is obliged to use complainant's name and is not, therefore, one of damnum absque injuria. It is the case of an unnecessary use of a name long previously employed by another in the same business, and in which the use thereof by the "second comer" constitutes an untrue and deceptive representation. Fuller v. Huff, 104 Fed. Rep. 141; R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 70 Fed. Rep. 1017; Clark Thread Co. v. Armitage, 74 Fed. Rep. 936, 944; Meyer v. Bull Medicine Co., 58 Fed. Rep. 884; Investor Pub. Co. v. Dovinson, 72 Fed. Rep. 603; Rogers v. Rogers & Spurr, 11 Fed. Rep. 495; Lamb Knit Goods Co. v. Lamb Glove & Mitten Co., 120 Michigan, 159; Higgins Co. v. Higgins Soap Co., 144 N. Y. 462; De Long v. De Long Hook & Eye Co., 32 N. Y. Supp. 203; Penberthy Injector Co. v. Lee, 120 Michigan, 174; Holmes v. Holmes, B. & A. Mfg. Co., 37 Connecticut, 278; Meriden B. Co. v. Parker, 39 Connecticut, 450; Williams v. Brook, 50 Connecticut, 278; Bissell v. Plow Co., 121 Fed. Rep. 357; Peck Bros. & Co. v. Peck Bros. Co., 113 Fed. Rep. 291, 302; Le Page Co. v. Russia Cement Co., 51 Fed. Rep. 941; Chickering v. Chickering, 120 Fed. Rep. 69; International Silver Co. v. Rogers Co., 110 Fed. Rep. 955; S. C., 113 Fed. Rep. 291; S. C., 118 Fed. Rep. 133; Garrett v. Garrett, 78 Fed. Rep. 472; Valentine Meat Juice Co. v. Valentine Extract Co., Ltd., 17 Pat. & Tr. Mk. Cas. 673, 684; S. C., 83 L. T. N. S. 271. Corporations which do not inherit their names, but assume them voluntarily, may not use their assumed names if such use shall result in the confusion and deception of the public and the displacement of the good will of another's business. Argument for Respondent. 198 U. S. Lee v. Haley, L. R. 5 Ch. App. 160; Massam v. Cattle Co., L. R. 14 Ch. Div. 748; Celluloid Co. v. Cellonite Co., 32 Fed. Rep. 94; Newby v. Ore. Cent. Ry. Co., 1 Deady, 609; Stuart v. Stewart Co., 91 Fed. Rep. 243. The selection of this particular name shows fraud. Cases supra and Taylor v. Taylor, 25 L. J. Eq. N. S. 255; Landreth v. Landreth, 22 Fed. Rep. 41; Butterick v. Standard Co., N. Y. Law J., March 21, 1896; Gray v. Pulley Works, 16 Fed. Rep. 436. That another may have the right to use a particular name, as well as complainant-appellee is unimportant, if appellee's right be exclusive as against appellants. Cases supra and Newman v. Alvord, 51 N. Y. 189; Croft v. Day, 9 Beav. 88. Shaver v. Heller & M. Co., 108 Fed. Rep. 821. It is not material in this case whether the name "Remington" is or is not a lawful technical trade-mark, for the right of the appellee to the use of this name is so far exclusive as against the appellants that the court will treat the name as a descriptive term to the benefit of which appellee is entitled. Cases supra and Koehler v. Sanders, 122 N. Y. 65, 74; Montgomery v. Thomson (1891), App. Cas. 217; Wotherspoon v. Currie, 5 L. R. H. L. 508; Reddaway v. Banham (1896), App. Cas. 199. The use by the Howe Scale Co. and the Remington-Sholes Company of the names "Remington," "Remington Company," etc., was calculated to produce and cause confusion in the mind of the public and in the business of appellee, and the public and purchasers and users of writing machines were mislead, and caused to believe that the typewriters manufactured by the Remington-Sholes Company, and sold by defendant-appellant were of appellee's manufacture, and were "Remington machines," or a species thereof, or a new and improved "Remington," and that the RemingtonSholes Company's business and its machines had some connection with the complainant-appellee. Kerly on Trade Marks, 2d ed., 476; Randall v. Shoe Co., 19 Rep. Pat. Law Br. 393; Eastman Co. v. Cycle Corp., 15 R. P. Cas. 105, 112; 198 U. S. Argument for Respondent. Brewery Co. v. Brewery Co., 1 Ch. 536; S. C., (1899) App. Cas. 83. As to the right of a person who has popularized a name to be protected against its use, in connection with other words. or names, see Anheuser-Busch v. Piza, 24 Fed. Rep. 149; Congress Spring Co. v. High Rock Co., 45 N. Y. 291; Carlsbad v. Kutnow, 71 Fed. Rep. 168; Apollinaris Co. v. Norrish, 33 L. T. N. S. 242; Cochrane v. MacNish, L. R. A. C. 231; Fuller v. Huff, 104 Fed. Rep. 141; Saxlehner v. Eisner &c. Co., 179 U. S. 19, 33; Hier v. Abrahams, 82 N. Y. 519. Especially where it is unnecessary. Taendsticksfabriks &c. v. Myers, 139 N. Y. 364; Manufacturing Co. v. Trainer, 101 U. S. 61; Biscuit Co. v. Baker, 95 Fed. Rep. 135; Orr v. Johnston, 13 Ch. Div. 434; Collensplatt v. Finlayson, 88 Fed. Rep. 693. The decision in the German courts will not avail appellants here. Wharton's Conflict of Law, $$ 793, 827; Hohner v. Gratz, 50 Fed. Rep. 369; Carlsbad v. Kutnow, 68 Fed. Rep. 794; S. C., 71 Fed. Rep. 167. The cases cited by appellants can be distinguished. Among other cases which emphasize the fact that where the symbol which embodies a good will consists of a name the appearance or "get-up" of the article is of practically no value in preventing the evil which the law aims to correct, see those involving trade-names as follows: "Queen" and "Queen Quality," 105 Fed. Rep. 377; "Congress" and "High Rock Congress," 54 N. Y. 291; "Carlsbad" and "Kutnow's Improved Effervescing Carlsbad," 71 Fed. Rep. 168; "Home" and "Home Delight," 59 Fed. Rep. 284; "Apollinaris" and "London Apollinaris," 33 L. T. R. 242; "Glenfield" and Royal Palace Glenfield," 5 H. L. 508; "Budweiser" and "Milwaukee Budweiser," 87 Fed. Rep. 864; "Sunlight" and "American Sunlight," 88 Fed. Rep. 485; "Royal" and "Royal London," 76 Fed. Rep. 465; "Health Food" and "Sanitarium Health Food," 104 Fed. Rep. 141; "Comfort" and "Home Comfort," 127 Fed. Rep. 962; "Sanitas" and "Condi-Sanitas," 56 L. T. N. S. 621; "Portland" and "Famous Portland," 52 N. J. Eq. 380; "Roy Watch Case Co." and "Camm-Roy Watch Case Co.," 59 N. Y. Supp. 979; "Star" and "Lone Star," 51 Fed. Rep. 832; "Cashmere" and "Violets of Cashmere," 88 Fed. Rep. 899; "Hohner" and "Improved Hohner," 52 Fed. Rep. 871; "Pride" and "Pride of Syracuse," 82 N. Y. 519; "German Household Dyes" and "Excellent German Household Dyes," 94 Wisconsin, 583; "Guinea Coal Co." and "Pall Mall Guinea Coal Co." 5 Ch. 155; "Le Page's Liquid Glue" and "Le Page's Improved Liquid Glue." 147 Massachusetts, 206; "The American Grocer" and "The Grocer," 25 Hun (N. Y.), 398. The reasoning which takes account of facts as they exist and which corrects instead of encourages fraud is endorsed and applied in the majority of cases. Cases supra and Von Munn v. Frash, 56 Fed. Rep. 830; Hostetter v. Sommers, 84 Fed. Rep. 303; Little v. Kellam, 100 Fed. Rep. 353; Hostetter v. Becker, 73 Fed. Rep. 297. And see Aul Co. v. Marlborough Co., 168 Massachusetts, 154; Powell v. Vinegar Co., L. R. 1896, Ch. D 88. MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court. Referring to the Remington-Sholes Company, it was unanimously held by the Circuit Court of Appeals: "We do not find in this voluminous record sufficient evidence that defendant has itself done anything to promote confusion in the minds of the public, except to use the name 'Remington' on its machines and in its literature." Accepting that conclusion, it follows that complainant's case must stand or fall on the possession of the exclusive right to the use of the name "Remington." But it is well settled that a personal name cannot be exclusively appropriated by any one as against others having a right to use it; and as the name "Remington" is an ordinary family surname, it was manifestly incapable of exclusive appropriation as a valid trade-mark, and its registration as such |