The law of unfair competition and trade-marks: with chapters on good-will, trade secrets, defamation of competitors and their goods, registration of trade-marks under the federal trade-mark act, price cutting, etc (Google eBook)

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Baker, Voorhis, 1917 - Competition, Unfair - 890 pages
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Contents

Property rights in marks which are not technical trademarks
23
Exclusive right to a name or mark not necessary to action
26
Geographic extent of trade rights based on priority
28
CHAPTER III
31
Elements of goodwill
35
Goodwill protected by law of unfair competition
36
Goodwill which is not transferable artists musicians etc
37
Sale of goodwill of entire property rights of vendor
38
Presumption that no one intends to part with right to use his own name
39
Sale of business site effect of on names
42
Sale and license of trademark rights
45
Duty to prevent confusion resting on one who sells his business
46
Transfer of portraits
47
Rights of retiring stockholders and others in corporate names
50
Soliciting old customers
51
Sale of name or business by originator of an article
56
Effect of locality on transfers of a business
57
Dissolution by death of a partner
60
Transfers by descent and rights of descendants
62
Transfer of secret formulae
64
CHAPTER IV
66
Statements of the general rule
67
Geographic limits in which secondary meaning is protected
72
Secondary meaning of trade phrases
75
Names of places
76
Existence of secondary meaning is a question of fact
77
Tenyear trademark law
78
CHAPTER V
79
Difference between abstract names of objects and trade names
81
Names considered as transitory or personal and as local or fixed hotel names
82
Phrases such as Formerly with and Successor to etc
86
General or common names of an article and names descriptive of construction necessary to it
88
Unfamiliar or scientific words used as names of goods
90
Artificial or madeup words
91
Names appealing to the eye as similar
93
Names idem sonans
95
Foreign words as names of goods
99
Abbreviation of names of goods nicknames
100
Fraudulent use of coincidences in meaning of names
101
Numerals and letters as names of goods
103
Numerals indicating source or origin
105
Initials as names of goods
106
Names of goods intended for export
108
Signs
109
Street addresses etc
112
Use of suffix Co etc
114
CHAPTER VI
115
Nature of the right in ones own name
116
its charac ter and misconceptions regarding it
117
Early cases dealing with the use of personal names
121
Explanatory phrases as a means of eliminating confusion in family names
124
The inadequacy of the explanatory phrase rule
133
Acquired generic or secondary meaning of personal names
137
Family names as generic or general names of articles
143
Surnames used as abbreviations
146
Names made up of surnames qualified by other words or symbols
148
Surnames acquired otherwise than by descent
149
Voluntary change of personal name
151
Rights acquired by him who first uses a surname in business
152
Family names as corporate names
153
Prefixes suffixes and first names
159
CHAPTER VII
161
Effect of incorporation of a business on its right to its name
163
Foreign and domestic corporations rights of as to name
165
Right to name on dissolution
166
Incorporating under nickname of a rival
169
Affirmative duty to differentiate in choosing corporate names
171
Family names as names of corporations
172
What is evidence of fraud in use of a corporate name
177
Rights arising out of priority in use of corporate names
180
Use of term works company etc by an individual or part nership
181
Outgoing stockholders and employees
182
False or misleading use of corporate names
185
Names of unincorporated societies clubs etc
186
Names of fraternal societies
187
CHAPTER VIII
190
behalf of all
200
Secondary meaning or association between the name and the lo cality which transforms a geographic name into a trade name
203
Extent of public knowledge of secondary meaning
205
Duration of user necessary to acquire secondary meaning
207
Degree of resemblance necessary
208
Residence in a locality does not give unlimited right to use the name of the locality as a trade name
211
Relative location of plants of rivals effect on names
212
Names of cities
213
Effect of moving a plant or business
216
Names of natural products
217
Geographical names which indicate a process of manufacture
219
Geographic names may be arbitrarily adopted as trade names
223
Use of geographic names as trademarks must be truthful
226
Geographical names which indicate quality as well as origin or source
228
Secondary meaning of semigeographic names
231
CHAPTER IX
233
Degree of similarity calculated to deceive
235
Mere diversity of color not a controlling feature
236
Imitation of a single feature such as color form etc
238
A collocation of features which singly might be copied is unfair
239
Resemblance in several features may be fair if these features are common to the trade
242
Remarks as to classification of the following cases of simulation in dress or general getup
244
Designs devices and figures
245
Signatures and initials
246
Reading matter on labels or circulars
247
Misleading use of a label proper in itself
248
Tobacco tags and cigar bands etc
249
Wrappers cartons etc
250
Copying bottles used by competitor
251
Refilling containers that have been once used
253
Substitution by selling of inferior goods in dress of goods of a higher grade
257
Labels
259
Cases not involving names in which the genera
273
CHAPTER XI
294
secret
314
Transfer of secrete
315
List of customers is secret property no one may canvass them except the owner of the list
316
Pleadings and practice form of injunction
319
Defenses
320
Letters may be trade secrets
321
CHAPTER XII
322
business
323
Malice
329
Interference with business generally
333
Interference with contracts by third person enjoined
336
Interference with contracts with servants
338
Lumley v Gye and later cases
340
Causing breach of contracts for furnishing information
342
Causing breach of passengers contracts with transportation companies
343
What constitutes interference with contract
344
Justification of interference with contracts
350
Ignorance of the existence of the contract is no defense against an injunction
351
Position of New York courts
352
Conditional contracts inducing breach of manufacturers con tracts with retailers
355
Inducing breach of contracts for sale of goods made by secret process
357
Interference with proposed or prospective contracts
361
What interference with anothers business in general is legitimate
364
Tortious interference with anothers business generally
367
Interference with salesmen of a competitor
368
Interference by bringing a multiplicity of suits
369
Interference with employment actual or prospective
371
Damages
372
CHAPTER XIII
373
Definitions of a trademark
375
Functions of a trademark
376
Nature of a trademark
377
Essentia? elements of a technical trademark
379
Nonessentials of a trademark
380
Products to which a trademark may be applied
381
Several trademarks for the same goods
382
Must be affixed to goods
383
The use of a sign or word as a trademark must not be against public policy
384
Various classifications of trademarks
386
Difference between trademarks and trade names not one of underlying principle but of degree and method of proof
389
CHAPTER XIV
391
Descriptive words not appropriable
392
Invented or fanciful words
396
Common words used in an arbitrary sense
397
Rights of foreigners
410
Adoption of a trademark
411
Priority of use against priority of invention
412
Priority and exclusiveness of use
413
18 Length extent and manner of use
414
Change in goods to which trademark is applied
416
Territorial extent of technical trademark rights
417
Trademark protection limited to goods of the same class
420
CHAPTER XVI
423
Advantages of registration
424
History of U S trademark legislation constitutionality
426
Declaration
429
Designation of agent by nonresidents
431
Unregistrable trademarks
432
Who may oppose
448
Interference
451
Appeals to the commissioner
453
Appeals to the courts
454
Certificates of registration
455
Period of protection
456
Fees
457
Repayment of fees
458
Jurisdiction of the courts
460
Appeals to the United States supreme court
461
Scope of courts powers
462
Trademarks fraudulently used
463
Cancellation of the registration of a trademark by a court in an equity suit
464
Pending applications
465
Importation of articles bearing infringing marks
466
Notice of registration
467
Definitions
468
CHAPTER XVII
470
equity have jurisdiction to enjoin libels prior to the act of 1873?
472
Summary of English cases
475
Importance of this question in United States
477
American cases
479
The case of Kidd v Horry
483
The general American rule
485
Qualification of rule
486
Right to restrain issuing of circulars to customers case of Emaek v Kane
488
Theory that threats of prosecution must be shown to warrant is suance of injunction
491
Intent to intimidate customers not to fairly warn them is a neces sary element of this kind of proceeding to enjoin
493
Circulars giving notice of pendency of suit for unfair competition are legal
496
Preliminary injunction should issue when the plaintiffs right is so clear as to be practically or is actually as by demurrer conceded
500
False representations regarding a competitor which are not libelous
501
Statutes as to libels do not oust equity of jurisdiction
504
CHAPTER XVIII
507
Publication
510
Trademark rights arising in connection with literary property
512
Analogy between actions for unfair competition and infringement of copyright
513
The doctrine of unfair competition as applied to literary property
514
Unfair competition in connection with books and book titles
517
Unfair competition in connection with plays and play titles
528
Names of newspapers and magazines
535
Comic strips
541
Use of an authors name
543
Jurisdiction
545
CHAPTER XIX
546
Acts contributory to unfair acts
548
Disparagement of a competitor or his goods
550
Misuse of term Sole Proprietor
551
Unfair appropriation and use of a competitors ideas and methods
552
Use of false advertising
556
Solicitation of customers
558
Signs misuse of those of a competitor
560
Passing off the goods of a third party
561
Sale of inferior goods or seconds as usual quality
563
Use of prices to inflict definite injury on a competitor
564
The use of prices for advertising purposes or as a decoy
565
Unfair use of price as a means of competition
567
Competition by unfair comparison of prices
568
CHAPTER XX
570
Allegations on information and belief
571
Certainty and particularity
572
Jurisdictional facts
573
Answer
574
Essential allegations
575
What allegations held insufficient
576
As to pleading the defense of unclean hands
577
CHAPTER XXI
579
mark and one involving secondary meaning
581
Test of similarity is general impression made not detailed ex amination
582
Similarity does not mean exact likeness
584
Care used by average buyer of the class of article in question must be considered
585
Character of the article and the habits and intelligence of the consumer
586
Side by side comparison in the court room is not a proper final test of similarity
588
Evidence that the proportion of buyers of any article likely to be deceived by defendants acts is small is not a defense
590
Necessary physical requirements of the article must be considered
591
Distance between competitors a factor in deciding as to similarity
592
Deceit of ultimate purchaser not of middleman is the important consideration
593
Similarity of color shape size etc
594
Similarity of names
595
Evidence to prove secondary meaning
596
Proof of instances of actual bona fide deceit of purchasers
601
Burden of proof
602
Evidence of investigators employed by plaintiff
603
Loss of business by complainant as evidence
604
Judicial notice
605
Evidence of registration effect of
606
Inferences and presumptions
607
CHAPTER XXII
608
Division of cases as regards intent
610
Cases holding that intent is immaterial
611
Summary of English rule as to proof of intent
615
First user of a mark rights of arising out of priority
620
Denial of intent will not avail defendant
622
The action for unfair competition is based on injury to the plain tiff not on the intent of the defendant to injure the plaintiff
623
Proof of specific orders to his agents and servants to act fairly will not excuse defendant
624
Unimportant facts not a basis of presumption of intent to defraud
625
Presumption of fraud may arise from similarity of name or getup
626
Presumption of fraud arises from so selling goods that vendees may pass them off fraudulently
629
Presumption may be based on manner in which the truth is told
631
CHAPTER XXIII
633
Manufacturers responsibility to consumers for defective goods
635
Jurisdiction of courts in unfair competition cases
636
Parties
637
Injunctions before any act committed bills in the nature of quia timet
639
Preliminary injunctions
641
CHAPTER XXIV
657
Misrepresentations must be as to ingredients that are material
680
Misrepresentations as to manufacture place of manufacture origin of goods etc
681
Misrepresentation as to maker of goods
684
Continuing use of name of predecessor
685
Misrepresentation as to unessential details
686
Misrepresentations implying claim of monopoly use of term Patented
687
Misrepresentation by use of the term Copyrighted or Regis tered
690
Misrepresentation by laudatory expressions and exaggerated trade phrases
691
Miscellaneous cases of misrepresentation deemed harmless
694
Use of term established in
695
Kinds of laches
699
Laches in the sense of mere delay
700
First user of mark may revoke license implied from laches
701
No presumption of acquiescence arises from an exclusive right
703
Laches may bar right to order for destruction of offending goods
704
Laches which bars right to preliminary injunction
705
Acquiescence in the sense of inaction upon which others have the right to rely
706
Test by which to determine acquiescence
708
Defense that plaintiff violated some federal statute regarding re straint of trade or monopoly
710
CHAPTER XXV
711
Confusion as to right to profits as distinguished from damages
712
Adequate compensation to the plaintiff is the purpose of the court in granting profits and damages
713
Damage to reputation of product to be reckoned as well as loss of profits
717
Deduction of defendants expenses from profits
718
When an account will not be ordered
720
Profits given to plaintiff may be limited to those resulting from defendants fraud
723
What profits may be recovered
724
Rules for determining what are and are not profits
729
When laches will bar an accounting
732
Notice of infringement
733
Damages in suits at law for unfair competition
734
Good faith as an excuse for relieving defendant from paying damages
735
Appendix United States TradeMark Laws
737
Copyright

Common terms and phrases

Popular passages

Page 740 - Such oath may be made before any person within the United States authorized by law to administer oaths, or, when the applicant resides in a foreign country, before any minister, charge d'affaires, consul, or commercial agent holding commission under the Government of the United States...
Page 747 - All acts and parts of acts inconsistent with this act are hereby repealed except so far as the same may apply to certificates of registration issued under the act of Congress approved March third, eighteen hundred and eighty-one, entitled "An act to authorize the registration of trade-marks and protect the same...
Page 388 - * * * in all cases where rights to the exclusive use of a trade-mark are invaded, it is invariably held that the essence of the wrong consists in the sale of the goods of one manufacturer or vendor as those of another, and that it is only when this false representation is directly or indirectly made that the party who appeals to a court of equity can have relief.
Page 770 - ... that no other person, firm, association, union or corporation has the right to such use, either in the identical form or in any such near resemblance thereto as may be calculated to deceive, and that the fac-simile or counterparts filed therewith are true and correct.
Page 775 - Horological instruments 28 Jewelry and precious-metal ware 29 Brooms, brushes and dusters 30 Crockery, earthenware and porcelain 31 Filters and refrigerators 32 Furniture and upholstery 33 Glassware 34 Heating, lighting, and ventilating apparatus 35 Belting, hose, machinery packing and non-metallic tires 36 Musical instruments and supplies 37 Paper and stationery 38 Prints and publications 39 Clothing 40 Fancy goods, furnishings and notions 41 Canes, parasols and umbrellas 42 Knitted, netted and...
Page 514 - The office of a trademark is to point out distinctively the origin or ownership of the article to which it is affixed or, in other words, to give notice who was the producer.
Page 472 - A mandamus or an injunction may be granted or a receiver appointed by an interlocutory Order of the Court in all cases in which it shall appear to the Court to be just or convenient that such Order should be made...
Page 466 - States, shall be admitted to entry at any custom-house of the United States. And in order to aid the officers of the customs in enforcing this prohibition, any domestic manufacturer...
Page 751 - That no mark which consists merely in the name of an individual, firm, corporation, or association, not written, printed, impressed, or woven in some particular or distinctive manner...
Page 771 - ... that the same is true of his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true.

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