It was, I think, clearly shown that the name "Beatty" is that which gives the great value to the plaintiff's book and that this value is greatly the result of the exertions, and expenses borne, by the firm Adam Miller & Co. (while composed of the plaintiff and the defendant Beatty) by their putting the book (under that name) upon the market with energy and preseverance. It is also, I think, shown, beyond any doubt, that the defendant company, being aware (through its manager) of all this, and of the sale and release by the defendant Beatty to the plaintiff desired to publish a work under the name "Beatty" in order thereby to take from the plaintiff the profits he was deriving by the sale of his book, or a large part of such profits. That the defendant company did put upon the market their book under the name " Beatty's" is undisputed, and after hearing all the evidence on the subject and looking at the two books and hearing all that was, and, as I think, could be urged on behalf of the parties respectively, I have no difficulty whatever in arriving at the conclusion that the defendants' book in the form in which it is, and sold in the manner in which it has been shown to have been sold, is calculated to deceive the public and mislead them into the belief that when they purchased the defendants' book they are getting the plaintiff's book, the one they have known. as "Beatty's book;" that is to say, the ordinary purchaser desiring to purchase the plaintiff's book would purchase and take the defendants' book without recognizing the difference, and that in this way the plaintiff's trade would be materially and greatly interfered with and prejudiced.

A question to be determined is as to whether or not the plaintiff is entitled as he alleges to the name "Beatty" in connection with "Beatty's Head-line Copy Books" as a trade mark.

In Brown on Trade marks at p. 79, section 116 it is said. that books, as literary productions, cannot be protected by trade marks, but as mere merchandise they can be so protected, and at section 117 it is said that it must be borne in mind that it is as merchandise merely that books are

protected by marks of commerce and that this is because a book, as such, has its protection under the copyright laws, and I have not found any authority directly conflicting with these statements.

The firm "Adam Miller & Co." obtained a copy right of the plaintiff's book on March 16th, 1878, and it appears to have been by this copyright that they considered the book protected. Since the dissolution of that firm the plaintiff has continued to publish the book, and the copies of this book produced at the the trial are marked "Entered according to Act of Parliament," &c., the words required by the Copyright Act, though it was said that these words are not in the proper place on the books. The plaintiff does not in this action make any claim in respect of any infringement of his copyright. Evidence of it was given, against the objection of the defendants, on the ground that it was a further description and identification of the item of property about which there was so much contention.

It appears to me that there was not really any use of the name "Beatty" by the firm Adam Miller & Co. as a trade mark and that they considered their book protected by the copyright, and I cannot consider this like the cases where a mark had been put upon manufactured goods and continued so long and become so well known that it denoted the quality of the goods rather than indicated who manufactured them. I do not think that either of the members of that firm considered that they were using the name "Beatty's" as a trade mark or mark of commerce upon merchandise at all or in any other sense than as the name of the author of the book, and I am of the opinion that at the time of the dissolution it was not a trade mark, and did not, as such, pass with the business to the plaintiff. Then, assuming this to be correct, can it be said that the plaintiff could afterwards without the consent of the defendant Beatty, acquire a right to his name as a trade mark, and register, and have, and be protected by it, and this as against Beatty him

self? I think it plain that he could not, and my conclusion is, that the plaintiff is not entitled to the name Beatty" as a trade mark. I think I need not further refer to the registration of this as a trade mark, or to the statement that was made by the plaintiff on which the registration took place, or the necessity of registration before any proceedings to prevent infringement.

It is not denied that the plaintiff has the right to publish and sell his book as he is doing. It was admitt‹ d and stated at the bar by counsel for the defendants that the plaintiff has this right. There is no dispute whatever as to this.

The defendants' book is advertised as "Beatty's New and Improved Head-line Copy Book." The same words are on the covers of the books, and the name "Beatty" is repeated on the covers in a conspicuous position, and upon the evidence I am of the opinion, indeed I have no doubt that it is the fact, that the defendants knowing as they did know, that what the public wanted and demanded was "Beatty's book" made use of the name "Beatty" for the purpose of having their book sold as and for the plaintiff's book in the way that I have before mentioned, and I think the evidence shows that this effort on their part was successful so far as their scheme was carried into effect, and that the strong probability (almost certainty) is, that it would be successful in future if it were permitted to be carried out. I do not think this at all a case of a different book, alleged to be a better one, being published with the view of its eclipsing a rival book by fair competition in the business. I do not think it an answer to say that the defendant company told those to whom they made sales of invoices of their book that it was a book different from the plaintiff's book and required their travellers to do the same thing (if they really did so): Wotherspoon v. Currie, L. R. 5 H. L. 516, 517; Joyce on Injunctions, 314 315. The book was put upon the market and furnished to others to be sold by them and exhibited to the public for sale in such a form and manner as to deceive people 11-VOL. VI O.R.

into the belief that the one book was the other book. The defendants must have known this would be so, and I have no doubt that they intended that it should be so, and the evidence shows that some of the public were in fact so deceived. Some of the evidence for the plaintiff goes to show that as many as nineteen out of twenty persons would be so deceived, and the evidence for the defence (some of it) goes to show a majority of persons would be deceived in this way.

The preparation of the book was, I think, a part of the scheme, and I incline to the opinion that, on the merits, the so called novelties and improvements are mere colorable changes. The argument that owing to the organization of and the manner of conducting schools at the present time, the difference between the books would in many cases be liable to be, and probably would be, detected in the classes in the schools does not I think meet the case, and, after an attentive consideration of the subject, I am of the opinion that the plaintiff has succeeded in establishing the collusion and fraud that he has charged against the defendants in this respect, and I think it my plain duty to express this finding in unmistakable language, however strong the desire to avoid the necessity of so doing. I think it proved that the plaintiff paid for this book a large part of the consideration that he gave the defendant Beatty, and my opinion is, that the evidence given by Mr. Bain and Mr. Campbell in regard to the value of the copyrights at the time of the dissolution. could not be acted upon with safety if a necessity arose for so doing. In this case an injunction is asked to restrain the defendant Beatty (with his co-defendants) from using his own name, and it has been objected that cannot be done. In the case Rogers v. Rogers, 11 Fed. Rep., p. 495, it is said the books are full of cases in which defendants have been restrained from using their own names in a way to appropriate the goodwill of a business already established by another of that name, referring to Croft v. Day, 7 Beav. 84; Metzler v. Wood,

L. R. 8 Ch. D. 606, and a large number of English and American cases, many of which were referred to in the argument, and also referring to the language of Lord Justice James in Levy v. Walker, L. R. 10 Ch. D. 447 and 448: "It should never be forgotten in these cases, that the sole right to restrain anybody from using any name that he likes in the course of any business he chooses to carry on, is a right in the nature of a trade mark, that is to say, a man has a right to say: 'You must not use a name whether fictitious or real-you must not use a description whether true or not, which is intended to represent or calculated to represent, to the world that your business is my business and so by a fraudulent misstatement deprive me of the profits of the business which would otherwise come to me.' That is the principle and the sole principle on which this Court interferes."

In Singer Manufacturing Co. v. Loog, L. R. 18 Ch. D. 412, 413, the same learned Judge says: "I am of the opinion that there is no such thing as a monopoly or property in the nature of a patent, in the use of any name. Whatever name is used to designate goods, anybody may use that name to designate goods; always subject to this, that he must not make directly, or through the medium of another person, a false representation that the goods are the goods of another." It comes entirely within those cases in which it is calculated, and it calculated, must be assumed to have been intended to make a false representation." There are, however, many authorities to show that the fraudulent intent the animus furandi must be shown. In this case it has, as I have said, in my opinion been shown.

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In Sebastian on Trade Marks, p. 154, it is said: "In some cases the use of a man's own name may be such as to deceive, and where this is so the person aggrieved is entitled to an injunction against such use of the name, but he must prove clearly the fraudulent intent, and it is a question of evidence in each case whether there is a false representation or not."