It has happened in many instances in which descriptive words have been involved, that, by reason of the character of the pleadings, or because there was no attempt to apply the doctrine of unfair competition, the plaintiff has failed. But the effect of these cases is to establish only that descriptive words are publici juris; they do not decide that the manner in which such words are used will not be regulated according to the maxims of equity. There are decisions, perhaps, which justify deliberate fraud; but they are based, in almost every instance, upon an illogical view of the common-law rights of the defendant, and the assumption that the plaintiff was assailing those rights.
Lord Hardwicke, who was, in his day and generation, a useful judge, refused to grant an injunction, saying that he knew of no instance of restraining one trader from making use of the same mark with another.[1] But at a later date Judge Wallace said:—
"All practices which tend to engender unfair competition are odious and will be suppressed by injunction."[2] The law of the period of Lord Hardwicke is not the law of to-day.
But there is no real conflict between the authorities; there has been merely an evolution of thought whereby we reason with better results and are enabled to understand the old doctrine and more intelligently to apply it.
Perhaps the larger expression is due to looking at the old doctrine under a stronger light and with the aid of the influences of an increasing civilization.
Considered apart from its technical character, the decision of the Supreme Court is of pronounced significance and value, because it is a deliverance in the direction of that which tends to elevate the State as against that which tends to degrade it. It is an announcement, at the opening of the twentieth century, that in the matter of the justification of commercial piracy the United States are breaking away from the narrow application of imperfect reasoning for the sake of the reasoning and its imperfections only.
Rowland Cox.
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