Oliver Wendell Holmes, Jr.

“ If the defendants' conduct was a wrong, as we have assumed, it was a wrong knowingly committed, but no further inference against the defendants can be drawn from the fact.
It seems a strong thing to give relief on the ground of unfair competition when the supposed unfairness consists mainly in the imitation of a device that sought, obtained, and lost protection as a trademark. If a would-be trademark loses its protection as such, that means that the public has a right to use it, and it would be strange to bring the protection back simply by giving it another name. ”

“ The liability of the defendant must be derived from unfair competition if it exists.
That it was unfair to continue the use of a label so similar in general character to the plaintiff's we are not disposed to deny. But it does not follow that the defendants are chargeable with profits as a matter of course. Very possibly the statutory rule for wrongful use of a trademark may be extended by analogy to unfair competition in a proper case. ”

“ There is some indication that the plaintiff's business was mainly in hosiery for men, while Macy & Company's was more than three quarters for women and children. That the name, which the defendants do not imitate, but, on the contrary, exclude by using another wholly unlike it, was thought more important by the plaintiff than it now is willing to admit, is shown not only by the use of it upon the trademark proper, but by the adoption of a new name for the plaintiff company to conform to it. ”