which the invention belongs, at the time the invention is patented.140

In this connection it has been held that one, who is a "pioneer inventor" and whose discoveries open up a new field for the application of inventive genius, is entitled to a broader range of equivalents than one who comes on as an improver.141 But this is probably due more to the broader scope of the actual invention than to the priority of discovery.

IV. GOOD-WILL.

§ 643. Good-will of Business-Right to, and Injury Thereto. One of the rights of man as a member of civil society is to engage in business. The right to so engage as interfered with by strikers, boycotts, and monopolies has been treated before.142 This right extends also to freedom from unfair competition by fellow-men. Every man is entitled to so much of the trade and business or society as he can obtain by fair means. If any of it is gained by means which are unfair to those trading with him, they have a right of action against him for fraud and deceit. If he acquires any of it by means which are unfair to others engaged in the same business, they may complain of unfair competition. Monopolies and trusts constitute one method of unfair competition, and in this chapter we will consider interference with trademarks and trade names and good-will.

140 Magic Light Co. v. Economy Gas Lamp Co., 97 Fed. 87; Woodward v. Morrison, Holmes, 124, Fed. Cas. No. 18,008.

141 Miller v. Eagle Mfg. Co., 151 U. S. 186, 14 Sup. Ct. Rep. 310; Brammer v. Schroeder, 106 Fed. 918, 46 C. C. A. 41; Dryfoos v. Wiese, 124 U. S. 32, 8 Sup. Ct. Rep. 354; Morley Sewing Machine Co. v. Lancaster, 129 U. S. 263, 9 Sup. Ct. Rep. 299; Union Switch etc. Co. v. Philadelphia etc. R. Co., 87 Fed. 906.

142 Ante, c. 32.

Good-will is the special advantage or benefit of an establishment arising from the patronage of habitual customers, and due to its position, celebrity, reputation or other individual circumstances.143 Any interference, by fraudulent or wrongful means, with this good-will is a species of unfair competition. Imitation of trademarks or trade names may be considered among such means, but the most characteristic acts are those of one who has sold his business, including the good-will, and then wrongfully begins another similar establishment within such distance and such a length of time as to materially and seriously diminish that habitual custom constituting the peculiar advantage of his old business.

When the vendor has, in the sale, promised to refrain from entering upon the same business within certain limits of time or space or both, any attempt to establish himself before the expiration of the time set or within the space named is wrongful, unless the contract be deemed to be too general a restraint of trade.144 Where, however, a sale of a business and good-will is made without any limitation as to the time or space within which the vendor may begin the same business, some courts, and by far the greater number hold that no restriction can be implied, and the vendor may open up a similar establishment in the immediate neighborhood, and so soon as the sale is made, without giving to his vendee any right of action,145 and that the vendor may even solicit trade from his former

143 See Story on Partnership, sec. 99; Morgan v. Perhamus, 36 Ohio St. 522, 38 Am. Rep. 607.

144 Ante, c. 32.

145 Hoxie v. Chaney, 143 Mass. 592, 58 Am. Rep. 149, 10 N. E. 713; Findlay v. Carson, 97 Iowa, 531, 66 N. W. 759; Moreau v. Edwards, 2 Tenn. Ch. 347; Bergamini v. Bastian, 35 La. Ann. 60. 48 Am. Rep. 216; Williams v. Farrand, 88 Mich. 473, 50 N. W. 446.

patrons.146 But in at least two states this last doctrine is repudiated, and an attempt by the vendor to regain old customers through personal solicitation is held wrongful,147 and all concede that the vendor, even when permitted to solicit his old patronage, will not be allowed to do so with representations that his new establishment is the continuation of the one sold.148 A suit for injunction constituting a negative specific performance of these contracts would seem the most efficacious remedy for such acts, but an action on the contract for breach thereof or in tort for the wrong ex delicto will also lie.

§ 644. Unfair Competition.-Among the most effective means of competition which can be devised is the imitation of striking peculiarities in modes of carrying on business. Probably all business enterprises are conducted under some name, called a firm name; a great number adopt some peculiar mode of sending out their wares to the public, such as may be found in the color or style of wrapper, the shape of the packages, or the size and appearance of the names printed upon the packages, and many firms adopt a distinctive symbol to be placed upon all matter sent out by them and intended to designate as coming from their hands all goods or other matter bearing such mark. These peculiarities are easily imitated, and,

146 Williams v. Farrand, 88 Mich. 473, 50 N. W. 446; Bergamini v. Bastian, 35 La. Ann. 60, 48 Am. Rep. 216; Cottrell v. Babcock Printing Press Mfg. Co., 54 Conn. 122, 6 Atl. 791.

147 Richardson v. Westjohn, 6 Ohio Dec. (reprint) 1043; Newark Coal Co. v. Spangler, 54 N. J. Eq. 354, 34 Atl. 932; Althen v. Vreeland (N. J. Eq.), 36 Atl. 479. See, also, Dwight v. Hamilton, 113 Mass. 175.

148 Knoedler v. Boussod, 47 Fed. 465. See Williams v. Farrand, 88 Mich. 473, 50 N. W. 446; Cottrell v. Babcock Printing Press Mfg. Co., 54 Conn. 122, 6 Atl. 791; Bergamini v. Bastian, 35 La. Ann. 60, 48 Am. Rep. 216.

through the deception of the purchasing public accomplished by such imitation, the customary patronage of the concern originally adopting them is drawn away and the good-will injured.

"No man has a right to use names, symbols, signs or marks which are intended or calculated to represent that his business is that of another." "Where the goods of a manufacturer have become popular not only because of their intrinsic worth, but also by reason of the ingenious, attractive and persistent manner in which they have been advertised, the good-will thus created is entitled to protection. The money invested in advertising is as much a part of the business as if invested in buildings or machinery, and a rival in business has no more right to use the one than the other— no more right to use the machinery by which the goods are placed on the market than the machinery which originally created them." 149 Any deceptive means employed by a competitor is considered unfair competition, and where fraud and damage can be shown, an action ex delicto will lie.

V. TRADEMARKS.

§ 645. Trademarks Right to.-Probably the most distinguishing class of peculiarities consists of trademarks, which are symbols adopted by business firms to be employed to designate the producer of the merchandise or goods to which they are attached. These trademarks are aids in the creation of good-will, and any infringement upon them is a species of unfair competition. It is said that there is a practical distinction between infringement of trademarks, and other means of unfair competition, in that fraud is presumed in the former, but must be proven in the others. 149 Hilson Co. v. Foster, 80 Fed. 896.

They are all the same in essence, however, and the particular act of infringement upon customary trademarks is no more unfair than other acts. Trademark law does show an interesting development, however, and is an excellent illustration of the change from the class of wrongs, where intention is the essential feature to be proven, over to that class where the act itself is all that need be shown, and fraud and damage are presumed. This process of change and advancement has been discussed in our attempt to discover the common origin of all torts which binds the subject into one harmonious whole. 150 For a long time the courts wavered backward and forward over the rights in trademarks and trade names, until, by dint of persistent effort on the part of parties injured by infringement and repeated adjudications, it has been perceived that infringements of certain classes of marks under certain conditions are almost invariably accompanied by fraud and injurious effects upon the one having established the association of the mark with his business. So that at the present time any imitation of any mark which may be strictly known as a trademark may be punished by an action in damages, without proof of any actual intention to injure or any actual injury.151

The law having recognized the right to the exclusive use of technical trademarks, by punishing any use thereof by others than the one creating them, there

150 Ante, c. 1, sec. 10.

151 Carroll v. Ertheiler, 1 Fed. 688; Filley v. Fassett, 44 Mo. 168, 100 Am. Dec. 275; Blackwell v. Wright, 73 N. C. 310; Holmes, Booth & Hayden v. Holmes, Booth & Atwood Mfg. Co., 37 Conn. 278, 9 Am. Rep. 324; Shaw v. Pilling, 175 Pa. St. 78, 34 Atl. 446; McLean v. Fleming, 96 U. S. 245; C. F. Simmons Medical Co. v. Mansfield Drug Co., 93 Tenn. 84, 23 S. W. 165; Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69, 19 Am. Rep. 310; Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537, 11 Sup. Ct. Rep. 396; Church & Dwight v. Russ, 99 Fed. 276.