munmtru v.·hANnnm·ru. 48
nical trade-mark or trade-name. The authorities in abundance de- s
clare this to be the law. · - » i
In McLean v. Fleming, 96 U. S. 254, the supreme court say:
"Nor is lt necessary, in order to give a right to an injunction, that a spe-
cific trade-mark should be infringed; but it is sufficient that the court is satis-
fied that there was an intent on the part of the respondent to palm on? his -
goods as the goods of the complainant, and that he persists iu so doing after
being requested to desist."
Of course, a party cannot be debarred from the right to honestly
use his own name in advertising his goods and putting them on the
market, but where other persons bearing the same surname have pre-
viously used the name in connection with their goods, in such man-
ner and for such length of time as to make it a guaranty that the
goods bearing the name emanate from them, they will be protected
against the use of that name, even by a person bearing the same `
name, in such form as to constitute a false representation of the or-
igin of the goods. To illustrate: The complainants and the defend-
ant bear the same surname. Each is a dealer in "Landreths’ Extra
Early Peas." While the defendant has the right to use his own name
in advertising his peas and putting them on the market, he has not
the right to use it in such manner as to lead dealers and purchasers
to suppose that, when in fact purchasing his peas, they are purchas-
ing the peas grown and sold by the complainants. , Adjudged cases
thus enunciate the law. As is stated in one of them, "no man has
» the right to dress himself in colors, or adopt and bear symbols, to
which he has no peculiar or exclusive right, and thereby personate
another person, for the purpose of inducing the public to suppose,
either that he is that other person, or that he is connected with and
selling the manufacture of such other person, while he is really sell-
ing his own." See, also, Holloway v. Holloway, 13 Beav. 209. Many
other cases of similar and uniform purport might be cited.
Now, as I have said, the defendants label, is, as it seems to me,
a palpable imitationeof the complainants’. In the color of ink used,
. in the arrangement of the words, and in the general style of the label, ·
he has, so to speak, dressed his goods in the garb previously adopted
by the complainants. Whether intended or not, this necessarily op-
erates as a fraud upon them, and upon the public. If the defendant
has the right to use the same words as those which constitute the 4
complainants' label, he ought to accompany them with some clear
indicia of the source of the goods. He seems to have done so in his
late issue of circulars and advertising cards. In the absence of any-
thing in-the inscription he places on his bags, distinctly denoting
that he is the producer and seller of the peas in which he deals, called
"Landreths’ Extra Early Peas," he evidently leads or may lead pur-
chasers to believe that in, purchasing his peas they are purchasingthe
peas grown and sold by the complainants. This appears from ain- {
davits presented on this motion. Such abandonment ‘of their label