Henry Billings Brown

“ These cases obviously apply only where the defendant adds to his own name imitations of the plaintiff's labels, boxes, or packages, and thereby in duces the public to believe that his goods are those of the plaintiff. A man's name is his own propery, and he has the same right to its use and enjoyment as he has to that of any other species of property. ”

“ If such use be a reasonable, honest, and fair exercise of such right, he is no more liable for the incidental damage he may do a rival in trade than he would be for injury to his neighbor's property by the smoke issuing from his chimney, or for the fall of his neighbor's house by reason of necessary excavations upon his own land. ”

“ I t is hardly necessary to say that an ordinary surname cannot be appropriated as a trade-mark by any one person as against others of the same name, who are using it for a legitimate purpose; although cases are not wanting of injunctions issued to restrain the use even of one's own name where a fraud upon another is manifestly intended, or where he has assigned or parted with his right to use it. ”

“ If the bare act of posting these advertising cards were fraudulent, the remedy is against the party who committed the wrong. The act does not affect the labels on the bottles, with which alone the defendants are concerned, and it has relation only to a mode of advertising, distinct from the medicine as offered to the public by the defendants. ”

“ C. J. Lincoln & Co., the manufacturers of defendants' preparation, they advertised both of these articles, one under the head of 'bitters' and the other under the head of 'tonics.' Defendants' testimony shows that, while they have sold but a few gross of Brown's iron tonic, they have been selling the iron bitters since October, 1881, in large quantities. The testimony of a number of druggists doing business at Little Rock indicates that the two preparations are known to the trade and purchasers as distinct and separate, and that one is never mistaken for the other. ”

“ Holloway, 13 Beav. 209, Thomas Holloway had for many years made and sold pills and ointments under the label 'Holloway's Pills and Ointments.' His brother Henry Holloway subsequently manufactured pills and ointment with the same designation. ”