332 HARVARD LAW REVIEW, the defendant under the belief that they are the goods of the plain- tiff is of a certain kind, may go to any length it deems just to suppress the fraud. Once let it be recognized that cases of trade- mark and cases analogous to trade-mark differ radically, in that the one gives an exclusive right and the other abates a par- ticular fraud, and there is no longer any difficulty in working out what must seem clearly to every honest man to be substantial justice. And the only logical consequence of the decisions in this class of cases is the application of the principles of equity in each individual case. To recapitulate in a few words what I believe to be of the law of trade-mark as distinguished from the principle which already is, or is to become, the law of cases analogous to trade-marks: A trade-mark is a definite and technical sign which is capable of registration as the exclusive right of an individual, and there will be no relief, whether there is fraud or not, unless there is a tech- nical breach of that mark. In cases analogous to trade-marks fraud is the gist of the action, and where fraud is found the court is able to give equitable relief, whether there is a breach of a tech- nical right or not ; and the relief may extend to whatever acts cause the damage complained of, whether or not the acts would be a breach of the plaintiff's right in the case of a trade- mark proper. The decision of the courts, in cases of this sort, have a far- reaching effect on commercial morality. It is not simply a ques- tion of expediency which they are called upon to try, but how best to mould the opinion of the community that right may pre- vail rather than wrong. Whether trade rivalry shall be open and fair, so that each may be stimulated to his best endeavor in the knowledge that his exertions will bring him in to the full the honor and profit which are his due, or whether fraud, which knows how to evade definite rules, shall reap the fruits of honest labor and hardly-won reputation, is within the discretion of the court. In France commercial morality is high, and the rules as to unfair rivalry in trade are strict. In this country our commercial honesty is proverbially low, and it remains to be seen whether our courts will check the tendency of our business relations towards a lower standard. Grafton Dulany Gushing, . Boston, December, 1890.
