﻿The 
  Blackwell 
  Litigation. 
  55 
  

  

  cause, 
  that 
  the 
  manufacture 
  of 
  Morris 
  & 
  Wright, 
  and 
  of 
  

   those 
  who 
  succeeded 
  them 
  at 
  Durham, 
  was 
  known, 
  called, 
  

   and 
  distinguished 
  in 
  the 
  market 
  as 
  " 
  Durham 
  " 
  smoking 
  

   tobacco. 
  It 
  is 
  on 
  this 
  notorious 
  fact 
  in 
  the 
  cause 
  that 
  the 
  

   able 
  and 
  ingenious 
  argument 
  has 
  been 
  raised 
  that 
  the 
  pub- 
  

   lic, 
  by 
  its 
  voice, 
  may 
  appropriate 
  and 
  consecrate 
  to 
  an 
  indi- 
  

   vidual 
  property 
  in 
  a 
  designation 
  by 
  which 
  he 
  may 
  choose 
  

   to 
  denote 
  any 
  product 
  of 
  his 
  industr}'. 
  But 
  I 
  can 
  find 
  no 
  

   warrant 
  for 
  such 
  proposition 
  in 
  law 
  on 
  this 
  subject. 
  On 
  the 
  

   contrary, 
  it 
  is 
  distinctly 
  laid 
  down 
  by 
  the 
  authorities, 
  that 
  

   it 
  is 
  only 
  the 
  actual 
  use 
  of 
  the 
  mark, 
  device, 
  or 
  symbol 
  b}^ 
  the 
  

   dealer 
  which 
  entitles 
  him 
  to 
  it, 
  and 
  gives 
  him 
  the 
  right 
  to 
  

   be 
  protected 
  in 
  the 
  enjoyment 
  of 
  it. 
  

  

  The 
  doctrine 
  on 
  this 
  Subject 
  has 
  grown 
  with 
  commerce, 
  

   and 
  has 
  assumed 
  the 
  form 
  and 
  title 
  of 
  a 
  distinct 
  body 
  of 
  law 
  

   under 
  the 
  moulding 
  hand 
  of 
  able 
  judges, 
  who 
  have 
  sought 
  

   in 
  their 
  decisions 
  to 
  establish 
  its 
  guiding 
  principles, 
  and 
  of 
  

   acute 
  commentaiors 
  and 
  essayists, 
  who 
  have 
  exerted 
  the 
  pow- 
  

   ers 
  of 
  a 
  superior 
  analysis 
  and 
  discrimination 
  to 
  extricate 
  from 
  

   doubt 
  the 
  true 
  maxims 
  of 
  this 
  beneficent 
  code 
  of 
  business 
  

   ethics. 
  

  

  So 
  much 
  of 
  it 
  as 
  is 
  necessary 
  or 
  material 
  for 
  our 
  present 
  

   inquiry 
  is 
  comprehended 
  in 
  a 
  single 
  proposition. 
  It 
  is 
  the 
  

   5e?7M«a^ 
  principle 
  of 
  the 
  wholedoctrine. 
  The 
  simple 
  statement 
  

   of 
  it 
  is, 
  that 
  the 
  dealer 
  has 
  property 
  in 
  his 
  trade-mark. 
  This 
  

   is 
  allowed 
  him 
  because 
  of 
  the 
  right 
  which 
  every 
  man 
  has 
  to 
  

   the 
  rewards 
  of 
  his 
  industry 
  and 
  the 
  fruits 
  of 
  his 
  discover}', 
  

   and 
  because 
  of 
  the 
  wrong 
  of 
  permitting 
  one 
  man 
  to 
  use 
  as 
  his 
  

   own 
  that 
  which 
  belongs 
  to 
  another. 
  In 
  regard 
  to 
  the 
  latter, 
  

   it 
  may 
  be 
  well 
  said, 
  that 
  any 
  imitation 
  of 
  a 
  trade-mark, 
  calcu- 
  

   lated 
  todeceive 
  the 
  unwary 
  customer, 
  differs 
  from 
  an 
  absolute 
  

   forgery, 
  not 
  in 
  the 
  nature, 
  but 
  rather 
  in 
  the 
  extent 
  of 
  the 
  

   injury. 
  The 
  dissimilarity 
  to 
  the 
  expert 
  wholesale 
  dealer 
  may 
  

   be 
  such 
  as 
  to 
  save 
  him 
  from 
  the 
  imposition, 
  but 
  too 
  slight, 
  and 
  

   that 
  perhaps 
  by 
  design, 
  to 
  diminish 
  sales 
  to 
  the 
  incautious 
  

   purcliaser. 
  But, 
  uponthe 
  success 
  of 
  fraud 
  depends, 
  ultimately, 
  

   the 
  extent 
  of 
  the 
  injury. 
  Let 
  the 
  spurious 
  fabrication 
  meet 
  

   with 
  the 
  same 
  sale, 
  among 
  private 
  and 
  individual 
  consumers, 
  

   as 
  the 
  genuine 
  article, 
  and 
  the 
  wholesale 
  dealer 
  loses 
  all 
  motive 
  

   for 
  the 
  exercise 
  of 
  his 
  skill 
  in 
  detection 
  when 
  he, 
  perhaps, 
  can 
  

   reap 
  better 
  profits 
  from 
  the 
  spurious, 
  and 
  therefore 
  cheaper, 
  

   than 
  from 
  the 
  genuine 
  article. 
  In 
  this 
  way 
  a 
  simulated 
  trade- 
  

   mark 
  may 
  work 
  the 
  same 
  mischief, 
  and 
  to 
  the 
  same 
  extent, 
  

   as 
  a 
  forgery, 
  defying 
  detection 
  at 
  the 
  hands 
  of 
  the 
  exvert. 
  

  

  