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THE
MUSIC TRADE
REVIEW
False Statements and Trade-Mark Protection.
POINT of exceeding interest in connection with trade-marks
A
and their use in commerce is emphasized by Edward S.
Rogers, lecturer at the University at Michigan, and General Trade
Mark Counsel, which appeared in a recent article in Printers' Ink.
Jt makes pertinent reading for piano manufacturers and all others
where name values are a consideration when he points out that
"A trade-mark or label which contains any material false state-
ment will not be protected against imitation. This rule has in re-
cent years been extended to include false statements in advertise-
ments, so that a product which is advertised untruthfully is beyond
the pale of trade-mark protection.
"This is an application of a maxim which is as old as equity
itself; that he who comes into equity must come with clean hands.
Its' application to trade-marks is, of course, consonant with good
morals and is entirely logical. When one whose trade-mark is
infringed comes into court to enjoin the pirate from further depre-
dations, his complaint is briefly this—I have built up a reputation
for my goods; I have placed upon my goods a means of identifica-
tion by which that reputation is perpetuated; a pirate has imitated
my mark and is endeavoring to steal that reputation and by means
of his imitation is deceiving the public into the belief that his
goods are mine. In short, the complaint in such cases always is
that the defendant is deceiving the public. If, therefore, the com-
plainant himself is deceiving the public with respect to the very
thing for which he seeks protection, he is hardly in a position to
ask the interposition of a court to enjoin a fellow rogue.
"The difficulty in practise is that while this doctrine when
brought to the attention of the average man is at once accepted as
sound, not knowing what the courts have held to be a material
false representation, he fails to apply it to his own business.
"Generalizing broadly, there are four essential things about a
product which are important—who makes it, where it is made,
what it is made of and what it is good for. Each of these things
influences the public in making purchases and in choosing be-
tween competitive articles. It may safely be said, therefore, that
any statement as to these four things is material and if false for-
feits protection against trade piracy.
"Taking these four things in their order, let us consider for a
moment false statements as to maker. The common practise
among makers of soaps, perfumes and cosmetics to attach some
fancy French-sounding name as manufacturers comes within this
principle, as well as the equally common and quite as reprehensible
custom of cigar makers to use names of imaginary Spaniards, of
glove and leather goods and sauce dealers of some mythical Eng-
lishman. These usually are commonplace, vulgar frauds, not call-
ing for any particular comment, but it is easy for a business man,
even with the best intentions in the world to run afoul of the un-
clean hands rule in this particular and make himself an outlaw with
no trade rights that any competitor, however conscienceless, is
bound to respect.
"Consider for a moment," said Mr. Rogers, "the case of Pol-
lack, of Wheeling. Augustus Pollack was the pioneer stogie manu-
facturer of Wheeling, West Virginia. He was the man who made
famous what Kipling called 'that terrible article, a Wheeling
Stogie.' He took pride in his product and names it 'Augustus
Pollack's Stogie' and covered the boxes with personal guarantees,
signed in facsimile 'Augustus Pollack.' The stogies became widely
known as 'Augustus Pollack Stogies' and 'Pollack Stogies.'
"In the course of years Pollack died and his business was con-
tinued by his administrator, Howard Hazlett, who was a Wheeling
lawyer. The labels, however, were not changed, the personal guar-
antees over the facsimile signature of Augustus Pollack still were
used, and this letter purporting" to be signed by Augustus was
still enclosed in each box.
"After Augustus Pollack's death and while the labels were in
the condition just described, two brothers named Pollack, who
lived in Pittsburgh, decided to embark in the stogie business. They
called their product Pollack's Stogies and at the outset used labels
and packages much like the Wheeling Pollack's. Hazlett, the ad-
ministrator, sued to restrain the use of the name Pollack and' the
alleged imitative label, contending that the defendants were guilty
of unfair competition because their conduct was calculated to rep-
resent that their stogies were the genuine Pollack stogies.
"It was asserted by the defendants that Hazlett did not come
into equity with clean hands. Tie claims,' they argued, 'that we
should be enjoined because he says we are deceiving the public
into the belief that our goods are the genuine Pollack stogies 1 . What
are genuine Pollack stogies? Those made and personally guar-
anteed by Augustus Pollack, of course—the box that contains what
the complainant claims as the genuine article says so. The com-
plainant is not Augustus Pollack—Augustus Pollack is dead.
Therefore, he is seeking to enjoin us from making exactly the.same
representation that he, himself, is making. If it is false in our
case it is equally so in his. What is sauce for the goose is sauce
for the gander.' It was held by the United States Circuit Court and
affirmed afterward by the Circuit Court of Appeals that Hazlett
did not come into equity with clean hands, that he had been guilty
of a false representation of a material fact, the personal origin of
the goods he sold, and was in no position to ask the aid of a court
in enjoining an infringer, however unfair the infringer's conduct
might have been. If Hazlett, on taking over the business had made
an adequate announcement on the labels of the change in the origin
of the goods, a different outcome might have been expected.
"This is one of many cases laying down the rule that a false
assertion of the origin of the article is fatal to relief against in-
fringement. The only way to prevent this disastrous consequence
is to see to it that when any change in origin is made the label states
the fact in appropriate language; for example, 'Nero Coffee, now
packed by Royal Valley Coffee Co., successor to Peter Smith Sons,'
or 'La Matilde Cigars, established by Jose Morales & Co. at Havana
and now made at Tampa, Florida; J. Fred Wilcox & Co., suc-
cessors.' There is no necessity of giving a complete family tree
or tracing a genealogy on a label, even if such a thing were pos-
sible, but a sufficient announcement should be made so that the
public may be fully informed of the change in the origin of the
goods."
Production of Player-Pianos in 1913.
HAT the production of player-pianos will equal almost one-
third of the entire output of the piano factories for the present
year of.1913 is the prediction made by one of the most prominent
and best posted members of the trade in a recent conversation, and
he proceeded to back up his statement with some interesting, if not
convincing, figures.
According to the gentleman in question one single manufac-
turer, in the production of completed player-pianos and player-
actions will account for from between twenty-five to thirty thousand.
The advance orders in the hands of other manufacturers of player-
actions for the trade indicate that they will account for as many
more completed player-pianos. The foregoing figures will not in-
clude the output of those companies who make and install their own
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player-actions in their own factories and several of whom have a
player-piano output that runs into four figures in the' course of the
year. The bald statement that one-hundred thousand player-pianos
will be manufactured during 1913 at first glance would appear to
be the vision of a dreamer, but on figuring out average production,
natural ratio of increase in demand and the announced plans of the
manufacturers, the big number does not appear to be beyond the
pale of reason. At least the production of player-pianos during
the year bids fair to reach proportions that wilt prove astounding
to those who up to comparatively recent times have scoffed at the
player. The lamentable feature is that with the increase in "player-
production conies the increase in the number of used straight pianos
that come into the dealers' hands through "trade-ins."