siveness. The fair, honest, and ordinary use of a name cannot be enjoined. But even descriptive and generic terms may be so arranged as for the whole to constitute a trade-mark. So the words of plaintiff's brand are arranged in a circle with the plaintiff's name running through the center, like the diameter of a circle, and constitute a trade-mark in the comprehensive sense in which that term is now used.

(3) When a person is selling goods under a particular name, and another person not having that name is using it, it may be presumed that he is using it to represent the goods so sold by himself as the goods of the person whose name he And the fact that one owner of the name is paid for its use only shows the greater desire to possess it for purposes of the benefit accruing from the name.

uses.

About that time S. I. Monarch moved to Kentucky and became actively connected with the affairs of the distilling company and in 1892, after defendants had agreed to change their brand so as not to in any wise resemble that of the plaintiff, the Kentucky Court of Appeals decided:

(1) S. I. Monarch has the undoubted right to use his name in business and to place his name on goods of his own manufacture or that of the firm to which he belongs, but he has no right by a deceptive likeness of the mark of the goods of another or by the similitude of these brands to cause the public to mistake his goods for the other.

(2) The plaintiffs could not appropriate the name Monarch as a trade-mark,.and thus prevent the appellant from using his own name in like business.

TRADE-MARK-RIGHT TO USE OF PERSONAL NAME AS TRADENAME SOMETIMES DENIED.—

W. J. Waterfill and Robert H. Frazier owned and operated a distillery in Anderson County, Kentucky, from 1870 to 1882 and used the trade-name of Waterfill & Frazier on all their whisky until it became known as a valuable brand. In 1882, Waterfill sold his interest in the business to Frazier. In 1885, Waterfill entered into a partnership with John Dowling & Co. and they purchased the distillery and business of

Frazier. Afterward, in 1890, Waterfill sold his interest to Dowling & Co. In all these transfers the right to use the brand "Waterfill & Frazier" in the manufacture of whisky at said distillery was included in the deed. In 1891 Waterfill went into a new partnership with a son of R. H. Frazier under the old name of Waterfill & Frazier. They first used the brand "J. M. Waterfill & Co.," but later asserted their right to the use of the name "Waterfill & Frazier," and Dowling & Co. brought an action in the Jefferson (Ky.) Circuit Court to restrain them from using that name as a brand on whisky. The Court held:

(1) A trade-mark affixed to articles manufactured at a particular place may be lawfully sold and transferred with the establishment.

(2) In a proper sense individuals have a right to use their own names in their brand, but under the state of facts in this case Waterfill & Frazier have no right to use that combination or the combination of their names because it would be an infringement upon the rights of Dowling & Co.

TRADE-MARKS-FIRM SELLING "GOOD-WILL" CANNOT AFTERWARD USE OLD TRADE-MARKS.—

In the case of Mattingly & Co. vs. Mattingly, etc., appealed from Louisville Chancery Court, the Court of Appeals of Kentucky has decided as follows:

When a firm which owned and operated a distillery upon the product of which they had for many years used the firm name as a trade-mark, sold and transferred the distillery and also the "good-will of the firm name" and "all trademarks, brands and labels" belong to the firm, the members of the firm had no right thereafter to similate any of the brands or trade-marks thus transferred, or to resort to any other fraudulent device to cause the public to associate with the distillery, goods manufactured at a different place, or to receive letters addressed to the firm name, or to fill orders manifestly referring to whisky manufactured according to

the established and long-used formula at the distillery in question.

TRADE-MARK-PROPERTY RIGHT IN WORD "CROW" AS TRADE

MARK PROTECTED.

W. A. Gaines & Co. have used the words "Old Crow" as the mark of their brand of whisky for many years. Wm. M. Leslie did not imitate the label or package, but put up whisky for sale under the brand "White Crow." Gaines & Co. brought an action against Leslie to restrain his alleged infringement of plaintiff's trade-mark, and the New York Supreme Court decided:

(1) Where labels used by different parties are totally dissimilar in lettering and in general appearance and no actual fraudulent intent is shown, the mere use of a similar name is not such an unfair competition in business as to furnish a basis for injunction.

(2) It is not necessary to prove registration of trademark where the proof shows exclusive use of the label for a long time as a matter of fact.

(3) The plaintiff had a property right in the words "Old Crow" as applied to whisky because of their exclusive use for many years and in the case of a distinctive word as a trademark the use of the word itself, in any form, by a competitor is a violation of the right of the trade-mark. A word may be used by the manufacturer who has appropriated it, in any style of print or any form of label, and its use by another in any form is unlawful, and this rule applies whether the distinctive word is used alone or together with another.

TRADE-MARK WORDS OR NAMES DESCRIBING PRODUCT CAN. NOT BE APPROPRIATED.—

Words or names which describe the product or ware to which they are applied, by indicating its kind, quality or ingredients, may not be exclusively appropriated as trademarks therefor. Words belonging to the common stock of words may not be exclusively appropriated as trade-marks. Clinton Metallic Paint Co. vs. New York Metallic Paint Co., 50 N. Y. S. 437.

TRADE-MARK-NAME MAY BE SOLD.

Dr. Kennedy resides at Rondout, N. Y., and conducted a patent medicine business there until 1890, when he sold it to the Dr. Kennedy Corporation. In the bill of sale it was specifically agreed that purchasers should have the sole, absolute and only right to use the name of "Dr. David Kennedy of Rondout, N. Y.," in connection with the proprietary medicine business. All letters so addressed were received by the corporation until February, 1898, when Dr. Kennedy insisted that he had a right to first receive such letters and retain such as he deemed proper and then send the others to the corporation. The Appellate Court, however, in 1899, held that whatever inconvenience he may have experienced in the matter was paid or in the original bill of sale under which he gave the corporation the sole right to use his name, and that having disposed of his name as a trade-mark be cannot subsequently make use of it himself.

TRADE-MARK-SIZE, SHAPE AND STYLE, WITH EMBLEMS, MAY BE PROTECTED.

A dealer in merchandise may acquire the exclusive right to the use of the shape, size and style in which he exposes his goods for sale, with the emblems, devices and other distinctive features delineated or impressed on them, and the name which he has adopted to represent their contents, and a rival dealer will be enjoined from using similar packages so closely resembling those of the first dealer that they are likely to deceive, and do deceive, the ordinary buyer making his purchases under the ordinary conditions which prevail in the conduct of the particular traffic to which the controversy relates, though no one point of resemblance would be ground for equitable relief.

Fisher vs. Blank, Court of Appeals of New York, 33 N. E. Rep. 1040.

TRADE-MARK-INFRINGEMENT ON "GENUINE HOLLANDS.”— In the case of John de Kuyper vs. Wittemann it has been decided:

(1) That the complainants are entitled to the exclusive

use of a certain label for gin, consisting of the words and letters "Genuine Hollands," which are displayed at the upper part of the label, below which is the word "Geneva," followed by a representation of a scroll having displayed upon it the name "John de Kuyper & Son," the whole inclosed within a border having the shape of a heart.

(2) That the defendants have infringed the right of the complainants to the exclusive use o the said label by printing and vending to be used a label for gin consisting of the words and letters "Genuine Hollands," which are displayed at the upper part of the label, followed by the word "Geneva," and a representation of a scroll, having displayed upon it the words "J. Van Der Koop & Son," the whole inclosed within a border having the shape of a heart.

TRADE-MARK-INDIVIDUAL MUST NOT USE HIS NAME TO DE

CEIVE.

While every man has a right to conduct his business in his own name, he must not resort to any artifice for the purpose of producing the impression that his goods are identical with those of another person of the same name.

Clark & Snover Co. vs. Scott (Pa.) 4 Lack. Leg. N. 159.

TRADE-MARK-FORM OF PACKAGE AS A TRADE DISTINCTION IS NOT PROTECTED.

The Supreme Court of Pennsylvania in the case of two perfumery manufacturers, using the same style of bottle, decided that the "size, shape or mode of construction of a box, barrel, bottle or package into which goods may be put, is not a trade-mark; and if a manufacturer has a right to use a certain label, he may use it on any kind of a bottle that is not patented, and he will not be restrained from combining his own label with a particular shape or style of bottle, for the mere reason that the latter has been previously adopted by some other producer of similar goods."

TRADE-MARK-INFRINGEMENT-DAMAGES.

To show damages from infringement of plaintiff's trademark, he may show a falling off of his custom concurrently