2/6 . HARVARD LAW REVIEW. marks as an independent title in the law. The scope of the ge- neric name must therefore be correspondingly restricted. There is another consequence of the earlier development of trade mark law to which it is important as a practical matter to direct attention, namely, the firm hold which the strict rules of technical trade mark and the trade mark terminology have ac- quired in the legal mind, with the consequent and very confusing result that a great number of Unfair Competition cases are argued and decided in terms of trade mark, while other cases of Unfair Competition are tried and decided upon theories applicable only to technical trade mark cases.^ For the purposes of this article it will be convenient to state a few typical cases of Unfair Competition. Knott V. Morgan,^ decided in 1836, is the first, or almost the first, case of Unfair Competition. There, omnibuses of the Lon- don Conveyance Company being painted, and their servants clothed, in a special and distinctive manner, the defendant began to run omnibuses similarly painted, with servants similarly clothed. An injunction was granted. 1 In Enoch Morgan's Sons Co. v. Wendover, 43 Fed. Rep. 420, the complainant had a trade mark in the word " Sapolio," used to designate a particular kind of soap. When persons called at defendant's shop and asked for " Sapolio," the defendant's salesman would, without explanation, pass out a soap called " Pride of the Kitchen," on which these words were plainly marked, and receive the customary price. The wrappers of the two soaps differed entirely, and also the size and shape of the cakes. Held, although no use of the word " Sapolio " on the soap and no resemblance in the packages, the transaction amounted to an infringement of plaintiffs' trade mark. In- junction. Enoch Morgan's Sons Co. v. Wendover is an illustration of a case of Unfair Competition decided in terms of trade mark. In Davis v. Davis, 27 Fed. Rep. 490, the plaintiff had a trade mark consisting of a representation of a box of soap in which the soap was packed in alternate red and yel- low wrappers. The defendant packed his soap in alternate red and yellow wrappers so that the box, when open, presented the appearance of plaintiff's trade mark. Held, that this was not an infringement of plaintiff's trade mark, and an injunction refused. It cannot be doubted that had the plaintiff's case been presented upon the theory that the defendant's goods were "dressed" to imitate the "dress " of the plaintiff's goods, as was undoubtedly the fact, and that the result was confusion in the trade, and dam- age to the plaintiff, the result would have been different. See Adams v. Heisel, 31 Fed. Rep. 279. 2 2 Keen, 213. See also Weinstock v. Marks, 109 Cal. 529, in which case the de fendant had put up a building next to the plaintiff's building which was identical in appearance with the plaintiff's building, in consequence of which the plaintiff's cus- tomers went into defendant's shop supposing it to be the plaintiff's shop. Held, that the defendant must distinguish his building from that of the plaintiff "in some mode or form that shall be a sufficient indication to the public that it is a different place of business from that of the plaintiff."
