Wm. Rogers Mfg. Co. v. Simpson. 110; 11 Jur., N. S., 964; Leggett v. Hines, 2 Cent. L. J., Avery v. Meikle, 27 U. S. Patent Office Gazette, 1027; Manufacturing Co. v. Trainer, 101 U. S. R., 65; Landreth v. Landreth, 22 Fed. Rep., 41. In Williams v. Brooks, 50 Conn., 280, the finding was of resemblance "to such a degree that they are liable to deceive careless and unwary purchasers who buy such goods hastily and with little examination; but purchasers who read the entire trademark and label on the defendants' goods cannot be deceived. nor mistake the defendants' goods for the plaintiff's." It was not found that the defendants' goods were sold for the plaintiff's, and the defendants were found to have acted in good faith; but the defendants were enjoined. The findings in this case, in respect to similarity of marks, are as follows: "The stamp of the defendant is put upon the goods in the manner customary with other manufacturers;" that is, in the same place and manner as the plaintiff's. "Those who examine the whole stamp and are familiar with the stamps used by the plaintiff, have no difficulty in distinguishing;" which only means that there are differences which close examination and comparison reveal; but "those who regard the word Rogers or William Rogers only or who are not familiar with the stamp of the plaintiff, might readily confound them. A dealer or ultimate purchaser who desired goods made by the plaintiff, and was not familiar with its stamp, would readily take goods with the defendant's stamp, from the word 'William Rogers' being on the goods. The plaintiff's goods had been, for ten years or more, distinguished by the general appellation of William Rogers goods. Since the defendant's goods, stamped as aforesaid, have been put upon the market, they have become generally known as William Rogers goods." "A purchaser ordering from a dealer simply 'William Rogers goods' would be as likely to get goods made by the defendant as those made by the plaintiff, unless he should designate the make, as Hartford or Wallingford goods, by which they are usually distinguished in the trade; and if the order were thus specific it might be filled by the goods of either, if he Wm. Rogers Mfg. Co. v. Simpson. was not familiar with the respective stamps, or, being familiar, neglected to observe them." We submit that the finding, upon the point of similarity of marks, is quite beyond that to be found in any of the cases in which the court has granted an injunction. 2. It is not necessary to show that the defendants have acted fraudulently. The law is the same both as to trademarks and trade-names. Singer Mfg. Co. v. Loog, L. R., 8 App. Cas., 15; Sebastian on Trade-marks, 226. This being a suit in equity the law which applies is that stated by Lord COTTENHAM, in Millington v. Fox, 3 Mylne & Craig, 338, where he says, "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. 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." Sebastian in his last edition (1884) says, referring to this case, (p. 9,) "In equity the protection to the manufacturer was carried a stage farther in 1833 by the decision of Lord COTTENHAM in Millington v. Fox, since which time it has not been necessary to prove an actual fraudulent intention, the remedy being obtainable if the defendants' conduct has been such as to produce the effects of fraud, though he may, in fact, have acted in perfect innocence." Again, at page 11, he says: "It is not necessary that there should be fraud in the sense that the infringer knowingly and willfully makes a fraudulent attempt to appropriate to himself the fruits of another's reputation; if he acts so that custom intended for another is diverted to himself, and that the public buy and pay for one thing while intending to buy and pay for another, so that both vendor and purchaser are injured, there is fraud and the animus of the infringer is unimportant." And again, on page 156, he says:-"But the fraud does not consist in an intention to deceive on the part Wm. Rogers Mfg. Co. v. Simpson. of the defendant, but in an actual deception, or in the creation of a probability of deception, independently of any fraudulent intention." In reply to a similar objection raised by the defendant in the case of this plaintiff against Rogers & Spurr Mfg. Co., 11 Fed. R., 495, Judge LOWELL says: "I believe it to be true that the Greenfield Rogers did not inquire, nor did the defendants care, whose reputation they were making available; but I am of opinion that any one of those who rightfully use the name may enjoin its interfering use by others." See also Singer Manf. Co. v. Wilson, L. R., 3 App. Cas., 391; Filley v. Fassett, 44 Misso., 173. But we need not rest upon this claim. It is found that "the defendants knew that the goods which had been made and sold by the plaintiff had become known as Wm. Rogers goods,' and when said advertisement was published, that their goods were in the market and that they were continuing business," and also that "the defendant knew that the use of said trade-mark and said advertisement would cause their goods to become known in the market as the Wm. Rogers goods.'" "All that courts of justice can do is to say that no trader can adopt a trademark so resembling that of a rival as that ordinary purchasers, purchasing with ordinary caution, are likely to be misled. It would be a mistake, however, to suppose that the resemblance must be such as would deceive persons who should see the two marks placed side by side. The rule so restricted would be of no practical use. If a purchaser, looking at the article offered him, would naturally be led, from the mark impressed on it, to suppose it to be the production of the rival manufacturer, and would purchase it in that belief, the court considers the use of such a mark to be fraudulent. But I go further. I do not consider the actual physical resemblance of the two marks to be the sole question. for consideration. If the goods of a manufacturer have, from the mark or device he has used, become known in the market by a particular name, I think that the adoption by a rival trader of any mark which will cause his goods to bear the same name in the market, may be as much a viola Wm. Rogers Mfg. Co. v. Simpson. tion of the rights of that rival as the actual copy of his device." Seixo v. Provezende, L. R., 1 Ch., 192. See also Lee v. Haley, L. R., 5 Ch., 155; Singer Manf. Co. v. Loog, L. R., 8 App. Cas., 15; S. C., L. R., 18 Ch. Div., 417; Hendriks v. Montagu, L. R., 17 Ch. Div., 638; Canal Co. v. Clark, 13 Wall., 323; Holmes, Booth & Haydens v. Holmes, Booth & Atwood Mfg. Co., 37 Conn., 278; Meriden Britannia Co. v. Parker, 39 id., 450. The defendants will claim that at the time of making the contract with William Rogers their conduct was not actuated by any motive towards the plaintiff; and that they had no knowledge that the plaintiff's goods were in the market, and will ask this court to believe that they were actuated by no improper motive, but solely by the desire to secure, in the manufacture of their goods, the superintendence and alleged skill of this "Rogers." If the defendants could establish ignorance on their part, we submit that such ignorance would not excuse them. But the finding shows both knowledge and fraudulent action as to the material parts of the case. "Prior to 1878 the defendant, through its officers and agents, had made several attempts to connect with itself. in some way some man by the name of 'Rogers,' with a view to stamping such name upon its goods." This language is peculiar and suggestive, and clearly defines the animus of the defendants. The defendants had tried their own name; and while so stamped "their flat-ware, though of good quality and finish, did not find a ready market and its sales were quite limited." They were well aware of the large sale of flat-ware of similar quality bearing a so-called Rogers stamp. They wanted some Rogers, they cared not who, provided the name could be used upon their goods. Having negotiated, without success, in three other directions, they secured the present association. Their motive in making this contract is found to have been "to enable them to compete more successfully in the market with the makers of such goods, that is, 'genuine Rogers goods."" Their first purpose was to secure the name "William Rogers," as a stamp, and it was the use of his name that is found to have Wm. Rogers Mfg. Co. v. Simpson. effected the increased and increasing sale of their goods so manufactured and stamped. If in the making of the contract the defendant was not actuated by any motive toward the plaintiff as distinguished from other manufacturers of Rogers goods, yet as one of such manufacturers, of whom there were but three, its injury, though less perhaps in amount, was none the less real. And the motive found to have actuated the defendant as against such manufacturers in general may be relied upon by the plaintiff in this action. But further, the wrong complained of is not the making of the contract with Rogers, but the advertising, stamping and selling of goods which followed. At the time of these acts it is distinctly found that "they knew the plaintiff's goods were in the market, and that they were continuing business." These later acts at least were done with full knowledge of the plaintiff's rights. We quote the finding on this point: "The defendant knew that the goods which had been made and sold by the plaintiff had become known as 'Wm. Rogers goods,' and when the advertisement was published that. their goods were in the market and that they were continuing business." "The defendant knew that the use of said trademark and said advertisement would cause their goods to bebecome known in the market as Wm. Rogers goods."" Nevertheless they continued the use of the stamp and published and circulated the advertisement in its aid, until they had created such confusion that careless and unwary buyers, and those not familiar with the plaintiff's stamps, or who did not examine the whole stamp, would confound them and buy their goods for those made by the plaintiff. The result followed as they knew it would and as they must be held to have intended that it should. Third. The defendant's stamp has given to their goods the exact name by which the plaintiff's goods had previously been known, and this fact alone is sufficient reason for the injunction sought. The finding upon this point is full and explicit. "The plaintiff's goods, from the time of the partnership, had been familiarly known as 'Wm. Rogers goods,' and no other goods by that name had ever been in the market |