Odger's English Common Law

" PASSING-OFF." 619
the plaintiffs' just as much as the use of a trade mark ; and I think that
both trade marks and trade names are in a certain sense property, 1 and
that the right to use them passes with the goodwill of the business to
the successors of the firm that originally established them, even though
the name of that firm be changed so that they are no longer strictly
correct." 2
Thus, where the defendant discovered that the famous " Glenfield
starch " was not made at Glenfield (a tiny place in Scotland), and there-
fore started to manufacture starch at Glenfield, it was held that he was not
at liberty to sell his starch under the name " Glenfield starch," although
it was the only starch made at Glenfield. The Court thought that his
sudden migration to this small and distant place to start his manufacture
was a sign of fraud: 3
(iv.) We now pass from names and particular words to
consider the effect of a general resemblance which a man
may create either deliberately or unconsciously between the
appearance of his own goods and those of others in the same
trade. It is sometimes difficult to avoid a certain resemblance
between articles of the same kind and intended for the same
purpose. But no man has a " right to put off his goods for
sale as the goods of a rival trader, and he cannot therefore be
allowed to use names, marks, letters or other indicia, by
which he may induce purchasers to believe that the goods
which he is selling are the manufacture of another person." 4
If the label, wrapper, picture, &c, is calculated to lead pur-
chasers to believe that the goods of the defendant are
the goods of the plaintiff, an action of tort will lie ; and the
plaintiff can obtain an injunction and also recover damages,
without proof of any actual fraud in the mind of the
defendant.
" It is not necessary, as a rule, to prove that there was any intention to
deceive on the part of the defendant. Nor is it necessary to prove that
i See Hall v. Barrows (1863), 4 De G. J. & S. 150.
a Per Lord Blackburn in Singer Manufacturing Co. v. Loog (1882), 8 App. Cas.
at pp. 32, 33 ; and see Millington v. Fox (1838), 3 My. & Cr. 338.
* Wotherspoon v. Currie (1872), L. E. 5 H. L. 508 ; and see Barnard v.
Bustard (1863), 1 Hem. & Miller, 447 (" The Excelsior White Soft Soap ") ;
Kinahan v. Bolton (1863), 15 Irish Chancery Reports, 75 (" L.L. Whiskey ") ;
Ford v Foster (1872), L. R. 7 Ch. 611 (" Eureka Shirt ") ; Thompson V. Momt-