5. Rights of the Trustees.-The trustees control the trust property as legal owners and not as the agents of the certificate holders. Their powers are limited by the provisions of the instrument creating the trust.2 6. Rights of Third Persons.-Contracts between individuals in furtherance of the objects and purposes of an illegal trust are not enforcible, being affected by the illegality of the trust contract itself. But the illegality of the trust combination is no defense to an action brought by one who is a creditor of the trust.4 V. STATUTORY PROHIBITIONS OF TRUSTS.-In 1890, Congress passed an act which declares illegal every contract or combination, in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states or with foreign nations; also every attempt to monopolize any part of such trade or commerce; and every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce in the territories or in the District of Columbia.5 Laws prohibiting the joined from buying and selling these certificates on the mere ground that the trust is illegal. State v. American Cotton Oil Trust, 40 La. Ann. 8; 19 Am. & Eng. Corp. Cas. 448. It has been held that where trust certificates are expressly made transferable on the books of the trust upon condition that the holder and each transferrer shall be subject to all the provisions of the trust agreement, a court of equity will compel the trustees to transfer such a certificate on the books of the trust and issue a new one in the name of the transferee. Rice v. Rockefeller, 134 N. Y. 174, reversing 56 Hun (N. Y.) 516. 1. Smith v. Anderson, 15 Ch. Div.247. 2. Thus, where the trust agreement gives the trustees power to acquire, hold and dispose of the title to the shares of stock, which form the subject of the trust, they may sell such stock to third persons. Gould v. Head, 41 Fed. Rep. 240. But where the trust agreement merely provides that the shares of stock shall be transferred to the trustees, to be held by them and their successors for the purposes set out in the trust agreement, the trustees have no right to sell or pledge such shares of stock. People v. North River Sugar Refining Co., 54 Hun (N. Y.) 354 3. Richardson v. Buhl, 77 Mich. 632; 27 Am. & Eng. Corp. Cas. 256; Chapin v. Brown, 83 Iowa 156. But see Diamond Match Co. v. Roeber, 106 N. Y. 473; 60 Am. Rep. 464. 4. Catskill Bank v. Gray, 14 Barb. (N. Y.) 479. The receiver of a trust, since he repre sents its creditors as well as its certificate holders, may sue to recover debts due to the trust. Pittsburg Carbon Co. v. McMillin, 53 Hun (N. Y.) 67; 119 N. Y. 46. 5. 26 U. S. St. at Large, p. 209, ch. 647. The act also imposes a punishment by fine and imprisonment for any violation of its provisions, and declares that property in transit under a contract forbidden by the act shall be forfeited. It also authorizes any person injured in his property or business by any violation of the act to sue and recover treble damages therefor. In U. S. v. Jellico Mountain Coal, etc., Co., 46 Fed. Rep. 432, the court refused to declare this act unconstitutional, and held that an agreement between coal mining companies operating chiefly in Kentucky, and coal dealers doing business in Tennessee, creating a coal exchange to advance the interests of the coal trade and to fix the price of coal, and forbidding its members to buy coal from or sell coal to any coal dealers or miners who were not members of the exchange, constituted a violation of said act. In Bishop v. American Preservers' Co., 51 Fed. Rep. 272, it was held that this statute did not give a member of a trust a right to sue the trust for damages suffered by him through suits brought against him by the trust, where it was not shown whether or not the trust had a right to bring the suits, since the trust, although an illegal organization, might have a right to sue. Under this act, it must be alleged in formation of trusts have also been recently enacted by several of the states.1 TRADE FIXTURES. (See FIXTURES, vol. 8, p. 61.) the indictment that the defendant monopolized or conspired to monopolize. It is not sufficient to allege the doing of certain acts with the intent to monopolize. U. S. v. Greenhut, 50 Fed. Rep. 469. It is not sufficient to follow simply the language of the statute, as it does not fully, directly, and clearly set forth all the elements necessary to constitute the offense. In re Greene, 52 Fed. Rep. 104. 1. The Nebraska Act, approved March 29th, 1889, declares it unlawful for any person, partnership, company, association, or corporation to enter into any contract or combination whereby a common price shall be fixed for any article or product, or whereby the manufacture or sale thereof shall be limited or interfered with, or whereby the profits of the manufacture or sale of any product shall be made a common fund to be divided among the parties to the combination. Nebraska Sess. Laws (1889), p. 516. The New York Act, approved June 7th, 1890, declares that no stock corporation shall combine with any other corporation for the prevention of competition. New York Sess. Laws (1890), p. 1069. The Illinois Act, approved June 11th, 1891, declares that any corporation, partnership or individual which shall create or enter into any pool, trust, agreement, combination, confederation, or understanding to regulate or fix the price of any article of merchandise or commodity, or to fix or limit the amount or quantity of any article, shall be adjudged guilty of conspiracy to defraud. It also forbids corporations issuing or owning trust certificates or entering into any trust agreement. Illinois Sess. Laws (1891), p. 206. Under this act, it has been held by the circuit court of Cook county, Illinois, that a corporation whose stockholders were all either producers or shippers of milk, whose by-laws provided that shares of its stock could not be transferred to any one who was not, or did not expect soon to become, a producer or shipper of milk, and whose business was to receive milk from its stockholders, sell the same for them and fix the price at which it should be sold, was an illegal combination. Chicago Milk Shippers' Assoc. v. Ford, 4 Nat. Corp. Rep. 300. The Kansas Act, approved March 2d, 1891, prohibits combinations to prevent competition among persons engaged in buying or selling live stock. Kansas Sess. Laws (1891), p. 294, ch. 158. The Louisiana Act, approved July 5th, 1890, declares illegal all contracts, trust combinations or conspiracies in restraint of trade or commerce, and makes it a misdemeanor to monopolize, or attempt to monopolize, or combine or conspire to monopolize, any part of the trade or commerce within the state. Louisiana Acts (1890), p. 90, No. 86. It has been held that this statute requires, for the complete commission of the offense thereby created, no ulterior motive, such as an intent to defraud, and that to compass any of the acts mentioned in the statute by any means and with no other motive than to compass them, constitutes a violation of the statute. American Biscuit, etc., Co. v. Klotz, 44 Fed Rep. 721; 32 Am. & Eng. Corp. Cas. 510. It was also held in the same case that the creation of a corporation which had secured the control and pooled the business of thirty-five of the leading bakeries in twelve different states of the west and south, and which was evidently seeking to control still other bakeries, constituted an attempt to monopolize trade. The South Dakota Act, approved March 7th, 1890, makes criminal all trusts and combinations tending to prevent a free, fair and full competition in the production, manufacture or sale of any article of domestic growth, use or manufacture, or to advance the price thereof beyond the reasonable cost of production. South Dakota Laws (1890), p. 323, ch. 154. The Iowa Act, approved May 6th, 1890, makes it a misdemeanor for any corporation, partnership, individual or association to become a party to any trust or agreement to regulate the price of any article or merchandise, or to issue or own trust certificates, or to become a member of any combination to limit or fix the price or lessen the production of a. In General, 260. b. Persons of the Same Name, 262. c. Fraudulent Use of a Competitor's Name, 265. d. Agreement by One Person to Permit Another to Use His Name, 267. e. Corporation Names, 268. 7. Names of Publications, 269. 8. Trade Name as Applied to Business Stand; Signs, 276. 9. Suggestive Names, 282. 10. Collocation of Words, 282. 11. Statements True by Claimant and Untrue by All Others, 288. IV. What May not Be a Valid TradeMark, 289. 1. Descriptive Words and a. Quality and Character, 289. d. Words Indicating a Pro cess of Manufacture, 295. e. Purpose or Üse, 300. f. Ingredients of Medicines, 301. g. Generic Names, 302. h. Exceptions, 305. 2. Color, 306. 3. Form of Article or Package, 311. 4. Articles Attached to Manufactured Products, 315. 5. Name of Patented Article After Expiration of Patent, 316. 6. Words and Marks in Prior Use, 324. 7. Geographical Terms, 327. a. General Rule in the United b. The English Rule, 331. e. Names of Mineral Springs, any article of commerce. Iowa Acts tions to inform the secretary of state, (1890), p. 41, ch. 28. Statutes prohibiting pools, trusts or combinations to regulate or control prices, have also been enacted in other states. See Alabama Acts (1890-91), p. 438, ch. 202; Missouri Laws (1889), p. 97, and Missouri Laws (1891), p. 186; New Mexico Laws (1891), p. 27, ch. 10, and Tennessee Acts (1891), p. 428, ch. 218; California Stat. (1893), ch. 19, §4; Kentucky Acts (1890), ch. 1621; Maine Laws (1889), ch. 266, § 1; Michigan Acts (1889), ch. 225; Minnesota Laws (1891), ch. 10; Mississippi Laws (1890), ch. 36, § 1; North Carolina Laws (1889), ch. 374. The Missouri "anti-trust act" of 1889 required the officers of corpora under oath, whether their corporations had violated the provisions of said act. In the case of State v. Simmons Hardware Co., 109 Mo. 118, it was held that this provision of the act was unconstitutional, as being in conflict with the declaration of the Missouri constitution that "No person shall be compelled to testify against himself in a criminal case," since the act pronounced a penalty against the officers of any corporation that violated the act. Authorities. Cook on Trusts; Spelling on Trusts and Monopolies. The Railway and Corporation Law Journal, vol. 7, p. 236, gives a list of magazines and newspaper articles on the subject of trust combinations. 4. Rights of Partners Buying Others Out; Rights of Purchaser in Name of Retiring Partner, 401. 5. Rights of Partners on Dissolution Dependent Upon Nature of Trade-Mark; Rule as to Technical Trade- Marks; Rule as to Name of Partner or Partners, 402. 6. Rights of Creditors in Trade Marks of Firm, 404. 7. Rights of Surviving Partners in Firm Trade-Marks and Name of Deceased, 405. IX. Laches and Abandonment, 407. 1. Laches, 407. 2. Abandonment, 412. X. Infringement, 414. 1. In General, 414. 2. Imitation of Name, 414. 6. Unlawful Competition-De- 7. Sale of Goods Under Another Person's Wrappers and Labels, or in Stamped Bottles, 442. 8. Sale of Inferior for Superior Goods of the Same Manufacturer, 443. 9. Intention to Defraud, 444. 10. Marks Used on Other Kinds of Goods than Those of Complainant, 446. II. Similitude; Duty of Competitor, 447. 12. Damnum Absque Injuria, 449. 13. Deception Impossible, 451. XI. Effect of Plaintiff's Misrepresentations to the Public, 456. 1. In General, 456. 2. Misrepresentation as to Ingredients, 458. 3. As to Cures, 460. 4. As to Origin or Place of Manufacture, 462. 5. As to the Maker (Assignee), 464. 6. Wrongful Use of the Word Patent," 468. 66 7. Cases in Which Complainant's Rights Were Sustained Notwithstanding Apparent Deception; Purging Falsehood, 472. XII. Procedure, 477. 1. Jurisdiction, 477. a. Of Law and Equity, 477. b. Of United States Courts, 479. c. Of State Courts, 481. d. Criminal Remedy, 482. 2. Parties, 484. a. Aliens (as Plaintiffs), 484. b. Vendors (as Defendants), 487. c. Printers of Labels and Marks (as Defendants), 488. d. Members of Unincorpo- e. Public Officers, 492. 3. Evidence, 494. a. Expert Testimony, 494 b. Discovery, 497. 4. Demurrer, 498. 5. Preliminary Injunction, 500. 6. Decree and Permanent Injunction, 505. 7. Damages and Profits, 512. 8. Costs, 520. 9. Appeal, 523. I. DEFINITION.—A trade-mark is a name, sign, symbol, or device employed by a person, firm, or corporation for the purpose of indicating to their customers, that the goods upon which the name or mark appears are made or sold by him, them, or it, or to indicate the business he, they, or it conducts, or the place where said business is carried on. A manufacturer or publisher may adopt a trade-mark to indicate the origin, ownership, character, and quality of the goods or publications which he makes or issues. A merchant also may adopt a trade-mark to denote his skill in the selection of the goods that he sells, and to give to them his guarantee of their character and quality. And a business house, hotel, or theater may adopt a trade-mark name, to indicate its location and identity. A public carrier, whether person, firm, or corporation, may adopt a trade-mark to indicate its identity, and to guide its patrons in dealing with it.1 1. Slater on Trade-Marks 232. “A trade-mark, properly so called, may be described as a particular mark or symbol, used by a person for the purpose of denoting that the article to which it is affixed is sold or manufactured by him or by his authority, or that he carries on business at a particular place." Lord Cranworth in Leather Cloth Co. v. American Leather Cloth Co., 35 L. J. Ch. 61. See also Kerr on Injunctions, p. 356. In Shaw Stocking Co. v. Mack, 101 P. & S.; 12 Fed. Rep. 707, Coxe, J., said: "Broadly defined, a trade-mark is a mark by which the wares of the owner are known in trade. Its object is twofold: First, to protect the party using it from competition with inferior articles; and second, to protect the public from imposition. There is hardly a limit to the devices that may be thus employed; the whole material universe is open to the enterprising merchant or manufacturer. Anything which can serve to distinguish one man's productions from those of another may be used. The trade-mark brands the goods as genuine, just as the signature to a letter stamps it as authentic. The trademark may consist of a token, letter, sign, or seal. Names, ciphers, monograms, pictures, and figures may be used. Why not numerals united? What consistency is there in allowing it in a combination of letters, but denying it in a combination of figures?" In Thornton v. Crowley, 76 P. & S.; 47 N. Y. Super. Ct. 527, Freeman, J., 26 C. of L.-16 said: "The court, upon proof of infringement, will liberally protect him, not because he has any property in the word or words, or the combination, but upon the principle that defendant's imitation constitutes a fraud upon one who has established a trade and a reputation. Plaintiff's prior and exclusive right to the use having been established, the test is whether the imitation is calculated to deceive purchasers. Upon the question of tendency to deceive, it may not be necessary to show that a person giving ordinary attention, or any attention, is likely to be misled. Perhaps it is sufficient that the careless and unwary may be misled. Upon this point the authorities are not uniform. But before the court can be called upon to apply any test at all, plaintiff's prior and exclusive right must be clearly established." In Skinner v. Oakes, 77 P. & S.; 10 Mo. App. 45, Thompson, J., used the following language: courts have proceeded upon the twofold principle, that the public have a right to know that goods which bear the signature or mark of a particular manufacturer or vendor are in fact the goods of such manufacturer or vendor, and that the manufacturer or vendor of such goods has a right to any advantage which may accrue to him from the public knowing that fact." Congress, etc., Spring Co. v. Rock Spring Co., 45 N. Y. 291; 6 Am. Rep. 82; Glen, etc., Mfg. Co. v. Hall, 61 N. Y. 229; 19 Am. Rep. 278. See Ex p. Frieberg, 87 P. & S.; 20 Pat. Off. Gaz. 1164, in 241 "The |