ers, and that every one of the latter would carefully inform every person that bought a spool, that the thread was an imitation of Coats's, made in New Jersey, and only three cord, instead of six? The idea is preposterous. Trade-marks, names, labels, etc., are not forged, counterfeited or imitated with any such honest design or expectation. McGregor's thread was labelled and stamped with Coats's name and mark, so that it might be palmed off upon the consumer as being made by Coats; and every man who sold it, whether he made five per cent or fifty per cent, by the operation, lent himself to the perpetration of the fraud."

IX. ALTHOUGH A MANUFACTURER ADOPTS AN OLD MARK OR NAME IN

THE HONEST BELIEF THAT IT DESIGNATES ONLY THE PARTICULAR MA-
TERIAL OR SPECIES OF THING ON WHICH IT IS PLACED, AND USES IT IN
IGNORANCE OF ITS BEING ANY THING MORE THAN A TECHNICAL TERM,
YET THE COURT WILL ENJOIN HIM, PROVIDED IT BE THE TRADE-MARK
OF ANOTHER.

This principle came out in a suit in the English chancery, connected with what is known in the market by the name of Crowley Steel and Crowley, Millington, Steel.* It appeared that the business carried on by Messrs. Millington was originally founded at the end of the seventeenth century, or in the early part of the eighteenth century, by a person of the name of Crowley, who invented or introduced a particular mode of manufacturing steel, which had ever since been followed by the Messrs. Millington, and those whom they succeeded in business. The words forming the mark were "Crowley," and "Crowley, Millington," with "I. H.," being the initials of the name of John Heppel, the principal workman in the plaintiff's employ. The defendants were Messrs. Fox, Brothers. They very clearly showed to the court that they had used the marks in ignorance of their being trade-marks, and pointed out how they supposed them to be technical terms:-that, by the term "Crowley" Steel, the defendants always understood tilted, rolled, or single shear or sheared steel, made up in a bundle of one hundred weight, and manufactured from a bar of steel, and by the term "Crowley Millington" steel, shear or sheared steel, made up in bundles of one hundred weight, and manufactured from several bars. And also they did not know that the letters "I. H." had any other signification than as being one of the ordinary marks used among steel manufacturers throughout the kingdom for a long course of years.

When the case first came before the court, the Lord Chancellor expressed an opinion that the plaintiffs had made out a case which entitled them to an injunction; and afterwards his honor observed: "I see no reason to believe that there has, in this case, been a fraudulent use of the plaintiffs' marks. It is positively denied by the answer; and there is no evidence to show that the defendants were even aware of the existence of the plaintiffs as a company manufacturing steel; for, although there is no evidence to show that the terms Crowley' and 'Crowley Millington' were merely technical terms, yet there is sufficient to show that they were very generally used, in conversation at least, as descriptive of particular qualities of steel. In short, it does not appear to me that there was any fraudulent intention in the use of the marks. That circumstance, however, does not deprive the plaintiffs of their right to the exclusive use of those names," &c.

Millington v. Fox, 3 Mylne and Craig, 338.

X. WHERE A MANUFACTURER EXECUTES ORDERS RECEIVED FROM A FOREIGN CORRESPONDENT, IN THE ORDINARY COURSE OF HIS BUSINESS, AND WITHOUT A KNOWLEDGE THAT THE MARKS WHICH HE IS INDUCED TO USE ARE THE TRADE-MARKS OF ANOTHER, NO LIABILITY, BY WAY OF DAMAGES, WILL ATTACH TO HIM.

William Crawshay was an iron manufacturer in South Wales; and William Thompson and others were also manufacturers in the neighborhood. It is the custom in the iron trade for the different iron masters to mark the iron made by them with a peculiar mark of their own. Since the peace in Europe of 1815, a large trade for iron had grown up between this country and Turkey and Greece, (which had previously been supplied by Russia,) and Crawshay's iron, marked (W. C.,) was in great estimation in the Turkish market, where the mark in question was generally known as "the comb mark." It appeared to be the custom for several merchants to order iron from different English manufacturers, stamped with particular marks, differing from their own private marks. In the year 1837, the defendants received from a Mr. Kerr, a Turkish merchant in London, an order for a quantity of iron to be shipped by a certain vessel, and such iron was directed to be stamped W., with a little o in an oval (Wo). This order was executed; but the stamp was made W. with a dot in an oval (W⚫). Mr. Crawshay happening to be there at the time, saw some of the iron so marked, and remonstrated with the defendants' manager on the alleged similarity of the mark to his own. No further notice was taken at that time; and the defendants, in execution of other orders, continued to supply iron stamped with the foregoing letters, which were afterwards varied according to orders, to W. with a large O.

The Chief Justice who tried the cause left it to the jury to say: first, whether they were satisfied that the defendants' mark bore such a close resemblance to Crawshay's as, in its own nature, was calculated to deceive the unwary or persons who were moderately skilled in the article, and to injure the sale of Crawshay's goods; and, secondly, what was the intention of the defendants in using the mark complained of whether it was for the purpose of supplanting Crawshay, or done in the usual course of trade, and in execution of foreign orders sent to their house; because, the judge said, it seemed to him, that, unless there were such a fraudulent intention existing, (at least before notice,) and it were proved to the satisfaction of the jury, the defendants would not be liable. In this particular case the jury found for the defendants.*

It may, however, be observed, that although in a similar case no damages might be had, or even a verdict at law be obtained in favor of a plaintiff, yet an injunction in chancery to restrain the use of an established mark would hold.

XI. A MANUFACTURER CAN, NEVERTHELESS, BE RESTRAINED BY INJUNCTION IN THE USE OF ANOTHER'S TRADE-MARK, EVEN THOUGH THE AR

TICLE IS NOT TO BE SOLD IN THE HOME MARKET.

This was decided in the case of the Crowley Steel before mentioned: for, there, the defendants showed that they had not sold any such steel in the English market, as their business lay entirely with North America, whither they exported steel. The same point, as it will have been seen, * Crawshay v. Thompson and others, 4. Manning v. Granger, 357. VOL. XIV.-NO. IV.

22

occurred in the case of the Turkish word upon the watches. There they were made for a foreign market.

XII, A TRADESMAN, WHOSE MARK IS WRONGFULLY USED, CAN RECOVER SOME DAMAGES, EVEN THOUGH HE DOES NOT PROVE THE INFERIORITY OF THE ARTICLE OF THE WRONG-DOER.

Such damages at law are given for the invasion of the right by the fraud of another.*

In one case, at law, the judge, on the trial, put it as a question to the jury, whether the defendants' article was of inferior quality? This was no doubt done with reference to their calculation of the amount of damages; for his honor at the same time stated to the jury, that even if the defendants' goods were not inferior, the plaintiff was entitled to some damages, inasmuch as his right had been invaded by the fraudulent act of the defendants.

And the court of chancery has decided, that it is immaterial whether the simulated article is or is not of equal goodness and value to the genuine.† XIII. THE DECEIT NEED NOT BE STAMPED OR LETTERED UPON THE BODY OF THE ARTICLE ITSELF. IT MAY BE UPON SOMETHING THAT HOLDS IT. Thus, in a case relating to metallic hones, the inventor and manufactu. rer used certain envelopes for the same, denoting them to be his, while other persons, as was alleged, wrongfully made other hones, wrapped them in similar envelopes, and sold them as his own. In this suit, on a motion for a new trial, one of the judges (Patteson) observed: "It is clear the verdict ought to stand. The defendants used the plaintiff's envelope, and pretended it was their own: they had no right to do that, and the plaintiff was entitled to recover some damages in consequence." XIV. A FOREIGN MERCHANT HAS A RIGHT TO THE PROTECTION OF HIS MARK AND NAME UPON GOODS EQUAL WITH A RESIDENT AND CITIZEN.

This point was expressly raised in a case before Judge Story, but, as it has been said in another suit, he scouted the idea. It was also attempted to be pressed in the case relating to J. & P. Coats's thread, to which we have before adverted, as well as in another chancery proceeding, before Chancellor Walworth, which also related to spool-thread.

The fraud upon the buyers, in such a case, is just as apparent as in any other, while it would be hard that the original maker should have no right and no remedy, merely because he lives at a distance. The very circumstance of that distance should rather tell in his favor. The greatest minds have thrown their usefulness to the greatest distance.

In the case before Judge Story, his honor said: "First, it is suggested that the plaintiffs are aliens. Be it so; but in the Courts of the United States, under the constitution and laws, they are entitled, being alien friends, to the same protection of their rights as citizens. There is no pretence to say, that if a similar false imitation and use of the labels of a citizen put upon his own manufactured articles, had been designedly and fraudulently perpetrated and acted upon, it would not have been an invasion of his rights, for which our laws would have granted ample redress. There is no difference between the case of a citizen and that of an alien friend, where his rights are openly violated."

*Blofield v. Payne, 4. Barnwell and Adolphus, 410.

+ Taylor v. Carpenter, M. S. before Chancellor Walworth, 3. December, 1844. ↑ Blofield v. Payne, 4. Barnwell and Adolphus, 410.

Our Chancellor Walworth, in the proceedings before him, observed: "The fact that the complainants are subjects of another government, and the defendant is a citizen of the United States, as stated in the answer, cannot alter the rights of the parties, or deprive the complainants of the favorable interposition of this court, if those rights have been violated by the defendant. So far as the subject matter of the suit is concerned, there is no difference between citizens and aliens. And the only question proper to be considered is, whether the defendant has the right, as he insists he has, to pirate the trade-marks of the complainants with impunity, and to palm off upon the community a simulated article as the genuine," &c. The courts have carried the rules we have laid down beyond mere trade-marks upon goods, (as, indeed, we have already shown in the case of quack medicines.) They have decided in relation to magazines and newspapers, that a rival shall not assume a similar title for the fraudulent purpose of imposing upon the public, and of supplanting the original publisher and owner.*

But, our article must end here; for we believe we have referred to every important case bearing upon trade-marks.

ART. IV. THE WINE DISTRICTS OF PORTUGAL AND MADEIRA.

THE Portuguese wine is principally the well known Port. It is shipped from Oporto, and may hence derive its name either from the country, or from the city. We will first notice, from Dr. Henderson's work, the chief points in the cultivation of the district, and then glance at the regulations which have given such an artificial tone to the port-wine trade.

The wine country, or district of the Cima de Douro, or Upper Douro, commences about fifty miles from the harbor of Oporto, and presents a succession of hills on both sides of the river, which afford the choicest exposures, and such loose and crumbling soils as have been shown to be most propitious to the culture of the vine. The whole of this district is under the superintendence of a chartered company, called the "General Company for the Cultivation of the Vineyards of the Alto Douro." The vintages are usually divided into two principal classess, viz: factory wines, (vinhos da feitoria,) and secondary wines, (vinhos de ramo.) The factory wines are again divided into vinhos de embarque, or assorted wines, for exportation to England; vinhos separados, or assorted wines for exportation to the Portuguese colonies, or other foreign countries, or for home consumption. The vinhos de ramo are used partly for distillation, and partly for the supply of the taverns in Oporto, etc.

In the territory of the Cima de Douro, the vines are in general kept low, and trained on poles. Many different species are cultivated, some of which are for producing a wine of strong and full body, while others are destined for a milder and sweeter wine. As soon as the grapes begin to shrivel, they are gathered and introduced into broad and shallow vats, where they are trodden along with stalks; and this operation is repeated several times during the fermentation, which, in the case of the superior wines, continues about seventy-two hours. When the liquor has ceased to ferment, it is removed into large tuns, containing from eight to

Hogg v. Kirby, 8 Vesey, 213; Snowden v. Noah, 1 Hopkins, 347; Bell v. Locke, 8 Paige's C. R. 75.

twenty pipes each. After the fair of the Douro, which commonly takes place in the beginning of February, the wine is racked into pipes, for the purpose of being conveyed down the river into the stores of the factory or of the wine-merchants at Oporto. To that which is reserved for exportation, a quantity of brandy is added when deposited in armazens or stores; and a second portion is thrown in before it is shipped, which is generally about twelve months after the vintage.

The establishment of the wine company at Oporto, arose out of the adulteration which some of the merchants effected on the wine, by adding to it a larger quantity of brandy than is ever put in any other sort of wine. But this establishment, good in its origin, soon produced very pernicious effects. In the beginning of the last century, a commercial treaty was made between England and Portugal, by which England offered to the wine of Portugal a decided advantage in her markets, on condition that Portugal took her woollens; and this led to a great export of Portugal wines to England. Down to about the year 1720, no brandy was added to the Oporto wines; but after that time the practice of so adulterating them, under the plea of making them bear the voyage better, came into vogue, and increased to a great degree. The English factors of Oporto addressed in 1754 a letter to their agents in the Alto Douro, complaining that "the grower, at the time of the vintage, is in the habit of checking the fermentation of the wines too soon, by putting brandy into them whilst fermenting." This complaint, and others about the same time, probably led to the formation of the company; for the quality of the wine became by adulteration so bad, that the demand for it lessened, the market price lowered, and the cultivators began to experience distress. Upon this, certain individuals at Oporto, in conjunction with the proprietors of the vineyards, succeeded in persuading the Portuguese government to sanction the formation of a joint-stock company, for the protection of the wine-trade of the district. The professed objects of these persons were, "to encourage the culture of the vineyards; to secure the reputation of the wines, and the support of both the one and the other by fixed prices; to promote in consequence inland and foreign commerce; and finally, to insure the preservation of the health of his majesty's subjects."

By royal letters patent, granted by the government of Portugal, these persons were authorized to form a company, with a capital of one million eight hundred thousand crowns. Among the better points of their charter were the following: First-that the district calculated for the growth of the export wines should be marked out, and the mixture of those wines with others from without the boundary prohibited. Second-That no one should be permitted to cover the vines with litter; as that operation, though it considerably augmented the produce, tended to deteriorate the quality of the wine. Third-That in the manufacture of the wine, no one should use elder-berries; which not only gave it a false and evanescent color, but also changed its natural flavor; (the planting of the elder being at the same time forbidden within the line of demarcation, and orders given to extirpate the plants that already existed.) Fourth-That after each vintage, a list should be made out of the number of pipes in every cellar within the district; and that the wine-tasters of the company, and others to be nominated by the farmers, should prove them, and arrange them in classes, distinguishing such as were fit for exportation, and delivering to the proprietors a corresponding ticket."