UNFAIR COMPETITION, • 283 alone, nor in any other particular alone. It consisted in a combi- nation of several particulars,^ the accumulation of which was evi- dence in itself of a desire upon the part of the defendant to cause his goods to look like the goods of the plaintiff, — a desire which could not obviousiy have any honest basis, nor could such accumu- lation be of necessity .2 Cases arose, however, in which the plaintiff rested his right upon one particular alone, or, at any rate, in which that view was taken by the court. For example, the plaintiff claimed the exclusive right to a barrel of peculiar shape and capacity,^ to the color of a label,* to the color of a capsule,^ and to the color of the paper in which his goods were wrapped,^ and in these cases the limitation of the "■ dressing up" doctrine has been laid down; namely, that to gain protection the plaintiff's package must be sufficiently dis- tinct from that which is of common right.^ And this is obviously a just limitation. For while a package of many particulars is equally effective for the purposes of the plaintiff, it is practically no limitation upon the right of the public; but if a certain colored paper or the like may be appropriated by one manufacturer in packing his goods, a very small number of manufacturers may render it difficult or impossible for a new comer in the trade to pack his goods without infringing the wide rights of those already in the business. In Harrington v. Libby,^ the plaintiff, a manufacturer of paper collars, was the first to put them up in a tin pail. An injunction to restrain the defendant from selling his paper collars in tin pails was refused, on the ground that the plaintiff could not appropriate to himself for a particular use a package already in common use for other purposes. The recent development of the law has, however, modified these limiting cases, and has created a conflict which it will require further decision to set at rest. In Von Mumm v, Frash,^ an injunction was granted against the use of a rose colored capsule; 1 Lever v. Goodwin, 36 Ch. D. i. 2 Taylor v. Taylor, 2 Eq. Rep. 290; S. C. 23 L. J. Ch. 25$. 8 Moorman v. Hoge, Fed. Cas. 9783.
- Fleischman v. Starky, 25 Fed. Rep. 127.
^ Mumm V. Kirk, 40 Fed. Rep. 589. « N. K. Fairbank Co. v. R. W. Bell Mfg. Co., 71 Fed. Rep. 295. 7 See Stachelberg v. Ponce, 128 U. S. 686; 9 Sup. Ct. Rep. 200; Cady z/. Schultz, 32 Atl. Rep. 915 (R. I.) ; Evans v. Von Laer, 32 Fed. Rep. 153. 8 12 Pat. Off. Gaz. 188. '56 Fed. Rep. 830.
