Page:Harvard Law Review Volume 10.djvu/314

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.
288
HARVARD LAW REVIEW.
288

288 HARVARD LAW REVIEW, written permission from one of plaintiff's name to the defendant does not justify its use, the licensor having no actual interest.^ The exclusive right to use a descriptive phrase as a business name may perhaps be acquired by long user; as, for example, the right by a maker of taper sleeve pulleys to call his establishment " Taper Sleeve Pulley Works " ; ^ or by a coal dealer selling coal at a guinea a ton to call his business *' The Guinea Coal Co." ; ^ or by a clothier to call his store '* Mechanic's Store."* The owner of a name may also lose his rights in it by allowing another to use it as a business name.^ The right to use a name may be given by assignment, and the right given may be qualified by a condition ; but a purchaser without notice will take the right to use the name free of the condition, and so of a purchaser with notice from the inno- cent vendee.^ An exception to the general rule as to the assignabil- ity of business names may exist upon grounds of public policy, in the case where the name has acquired a special significance indicative of personal skill or attention,^ and contracts whereby one parts with the right to use his own name in a certain trade will in general be jealously viewed by the courts, and not extended beyond their plain terms.^ The right to a business name need not be exclusive. It is sufficient if the plaintiff has a right in common with others, while the defendant has no right.^ Trade Names. We have seen that a business name is that name, whatever it may be, by which a going business is known, and which in a way concentrates in itself all the good will the public has for the busi- ness. It is obviously a thing of very great value. A trade name has many points of resemblance to a business name, but it is, 1 Wolfe V. Barnett, 24 La. Ann. 97 ; s. C. 13 Am. Rep. 11 1 ; Shrimpton v. Laight, 18 Beav, 164. But see Hallett v. Cumston, no Mass. 29; and conf. Mass. Pub. Stat., ch. 76, § 6. 2 Gray v. Taper Sleeve Pulley Works, 16 Fed. Rep. 436. 3 Lea V. Haley, L. R. 5 Ch. 161. 4 Weinstock v. Marks, 108 Cal. 529. See also Milner v. Reed, Bryce on T. M. 90 ; Mailer v. Davis, 3 The Times L. R. 221. s Birmingham Brewery Co. v. Liverpool Vinegar Co., W. N. 1888, p. 139; Marquis of Londonderry v. Russell, 3 The Times L. R. 360. ® Oakes v. Tonsmleire, 49 Fed. Rep. 447. "' Mayer v. Flanagan, 34 S. W. Rep. 785 (Texas). 8 Chat. Med. Co. v. Thetford, 58 Fed. Rep. 347. ^ Southorn v. Reynolds, 12 L. T. N. s. 75 ; Clark v. Armitage, (C. C. A.) 74 Fed. Rep. 936.