Odger's English Common Law

616 INFRINGEMENT OF PATENTS, COPYRIGHTS, &C.
affixes to them labels which convey the impression that they
are manufactured by another person already well known in
the trade.
(i.) A man is always prima facie entitled to trade under
his own name. It is the natural and obvious thing for him to
do. And he may do so, although some relative of his (who
bears the same surname) happens to be engaged in the same
trade, and the public may mistake his goods for those of his
relative. But there may be circumstances in which a man
will be prohibited from using even his own name in a particular
trade, e.g., where a man who bears the same name as A. has
made a great success in a particular trade and A. suddenly
abandons his former occupation and starts in that trade with
the deliberate intent of acquiring some of the business of his
namesake. But without proof of some such dishonest motive
the plaintiff cannot obtain an injunction to restrain the
defendant from using his own name ;
damages. 1
still less can he obtain
For fifty years prior to 1851 William Eoberfc Burgess carried on business
as an Italian warehouseman at 107, Strand, and there sold a sauce known
as "Burgess's Essence of Anchovies," which became famous. His son,
William Harding Burgess, was emplqyed there for many years at a salary.
Then a difference arose between them, and the son started an Italian ware-
house of his own at 36, King William Street, City, painting up over the
door his own name, W. H. Burgess. He there manufactured and sold a
sauce which he called " Burgess's Essence of Anchovies." His father
sought to restrain him from so doing, but the Court refused to do so, as
there was no circumstance showing fraud on the part of the son. Knight
Bruce, L. J., remarked that " all the Queen's subjects have a right, if they
will, to manufacture and sell pickles and sauces, and not the less because
their fathers have done so before them. All the Queen's subjects have a
right to sell in their own name, and not the less because they bear the same
name as their father." 2
On the other hand, a man " may be restrained if he associates another
man with him so that under their joint names he may pass off goods as the
goods of another." 3 Thus in 1801 Charles Day and Benjamin Martin
1 Sykes v. Syltes (1824), 3 B. & C. 541 ; James v. James (1872), L. E. 13 Eq. 421 ;
Mitchell v. Condy (1877), 37 L. T. 268, 766 ; Massam v. Tim-ley's Cattle Food Co.
(1877), 6 Ch. D. 574, and (1880), 14 Ch. D. 763.
8 Burgess v. Burgess (1853), 3 De G. M. & G. 896 ; 22 L. J. Ch. at p. 678 ; and see
Turton, v. Turtun (1889), 42 Ch. I). 128, and Britumead v. Brimmead (No. 1) (1913),
30 R. P. C. 137.
3 Per Kay r L.J,, in Powell v. Birmingham Vinegar Co., [1896] 2 Ch. at p. 80.