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[5] The act of March 14, 1851, now section 19 of "An act respecting conveyances (Revision of 1898)” (2 Comp. Stat. p. 1539), does not come in aid of the complainant's case. That act provides that any person may convey by any deed (and a mortgage falls within the description) any contingent interest or other future estate in expectancy in any lands, although the contingency on which such estate is to vest may not have happened, and that every person to whom any such estate shall have been conveyed, his heirs and assigns, shall, on the happening of any such contingency, be entitled to stand in the place of the person by whom the same shall have been conveyed; provided, that no person shall be empowered to dispose of any contingent estate or expectancy, where the contingency is as to the person in whom, or in whose heirs, the same may vest. As already remarked, the contingency in this case was as to the person. There never was a vesting in fee in Mary M. Sweeney, daughter of Catherine Campbell, the life tenant, as she (Mrs. Sweeney) died in her mother's lifetime. Her contingent estate was always within the proviso of the act of 1851. See Cantine v. Brown, 46 N. J. Law (17 Vroom) 5999.

The result reached is that that part of the prayer of the bill to which objection is made must be struck out, with costs.

(83 N. J. Eq. 484)

ADRAIN et al. v. KOCH et al. (Court of Chancery of New Jersey. June 5, 1914.)

1. WILLS (8 439*)-CONSTRUCTION-GENERAL RULES INTENTION OF TESTATOR.

Where the language of a will can be read in its ordinary and natural sense, no construction is necessary, but, where it cannot be so read, it must be interpreted as a whole to make it speak, and speak intelligibly, the intention of the testator.

child by her first marriage. Held, that the adopted daughter did not take under the residuary clause as one of the children of the testator living at the death of his wife, as he evidently did not mean that she should take onefourth of his residuary estate.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1080-1086; Dec. Dig. § 497.*] 3. WILLS (8 733*)-CONSTRUCTION-RESIDU

ARY CLAUSE-INTEREST.

Under a will providing for the support, maintenance, and education of testator's grandchildren, they would be entitled to the interest and income of the money set apart for them from the date of the testator's death.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1819-1846; Dec. Dig. § 733.*] 4. TRUSTS (§ 182*)-PROVISION FOR INFANT

ADMINISTRATION OF FUNDS.

Under a will giving the widow the income death, the residue to executors in trust for from a residuary estate for life and, on her investment and to pay the income over to children and grandchildren until the youngest grandchild reached the age of 21, the income set apart for minor grandchildren was intended to be left in the hands of the trustees, though the custody of such grandchildren might be in, and the expenditures for their benefit might be actually made, by their guardians, respectively. [Ed. Note.-For other see Trusts,

cases,

Cent. Dig. § 236; Dec. Dig. § 182.*]
5. TRUSTS (§ 2712*)-MINOR DEVISEES-EX-
PENDITURE OF INCOME-INSTRUCTIONS.
Where a will did not indicate how much of
the income from a residuary fund in trust for
minor grandchildren ought to be expended an-
nually for their benefit, reference would be
made to a master to inquire what amount should
be periodically transferred by the trustees to
the general guardians for that purpose.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. 382; Dec. Dig. § 2712.*]

6. TRUSTS (8 280*)-CONSTRUCTION-PAYMENT FROM INCOME MAINTENANCE OF INFANT CHILDREN.

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The amount to be paid from the income of a trust fund for the maintenance, support, and education of minor devisees should be limited to the actual necessities of the situation, and, if there is any surplus, it should be accumulated by the trustees for their benefit until they arrive at the age when they can control their own funds.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 400; Dec. Dig. § 280.*]

Bill by Jennie R. Adrain and others, executors under the will of William Rowland, deceased, against Jean Livingston Koch and others, for construction of the will. Will construed.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. § 439.*] 2. WILLS (§ 497*) — Construction — RESIDUARY CLAUSE-CHILDREN-ADOPTED CHILD. Testator, who left him surviving a widow, two daughters, their children, and the children of a deceased son, including a daughter of one of testator's daughters, who had been legally adopted by testator as a child, her son by her first husband, and an infant son by her second marriage bequeathed the income of the resid- John R. Hardin, of Newark, for complainuary estate to his widow for life, and after ant. Hugh K. Gaston, of Somerville, for Jenher death gave the residue in trust to executors to pay over the income thereof unto "my children living at the death of my said wife," and the issue of any deceased child who might have died leaving issue her surviving, per stirpes and not per capita, until his youngest grandchild living at testator's death reached 21 years or died, and then the residue over to his children, living at the death of his wife, and to the issue of any deceased child leaving issue surviving, and gave each of his children a legacy of $12,000, and the income of a trust fund of $160,000 for life, with remainders to their issue and cross-remainders, if there should be no issue, and bequeathed the income of $50,000 for life to the adopted child referred to as "granddaughter," with remainder to her

nie R. Rowland, guardian. Edward M. Colie, of Newark, Alan H. Strong, of New Brunswick, and E. J. Myers, of New York City (Myers & Goldsmith, of New York City, of counsel), for Jean Livingston Koch. Kinsey Twining and R. V. Lindabury, both of Newark, for Mrs. Grace R. Riva. Frank P. McDermott, of Jersey City, guardian ad litem of the Riva children.

HOWELL, V. C. This is a bill for the construction of the will of William Rowland, late of Somerset county, who died on July

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

30, 1911, leaving a will bearing date Decem- | I give, devise and bequeath my said residuary ber 7, 1910, which was admitted to probate, and on which letters testamentary were is sued to the complainants, as executors and trustees.

Mr. Rowland left him surviving his widow, Jane, his two children Mrs. Adrain and Mrs. Riva, and his grandchildren William, Charles and John, sons of the testator's deceased son William, the two children of his daughter Mrs. Riva, and the two children of his daughter Mrs. Adrain; the Adrain children being Robert Adrain, Jr., and Jean Livingston Koch. There were also living at the time of the testator's death William Dorman, who was the son of Jean Livingston Koch by her first husband, also her present husband, and an infant son of her second marriage. These parties were also all in esse at the time of the execution of the will in question. The widow died in 1911.

estate, or so much thereof as shall then remain, said wife, and the lawful issue of any deceased unto my children living at the death of my child of mine who may have died in her life time leaving lawful issue her surviving per stirpes and not per capita."

Under this clause two questions arise: First, whether Jean Livingston Koch, the adopted child of the testator, takes a share in the residuary fund as one of "my children living at the death of my said wife" by virtue of the decree of adoption; and, second, whether the trustees are to administer the income accruing to the minor grandchildren of the testator in pursuance of the terms of the will, or whether such administration devolves upon their general guardian, and likewise whether interest runs on the legacies to the grandchildren from the date of the testator's death.

[1] The remarks of Lord Halsbury in the House of Lords in the case of Inderwick v. Tatchell (1903) A. C. 120, 72 L. J. Ch. 393, apply with peculiar force to this case. He

said:

In the early part of 1884 proceedings were taken by the testator and his wife for the adoption by them of Jean Livingston Koch, their granddaughter. These proceedings resulted in a decree made by the orphans' will with the greatest possible hesitation as to "I confess I approach the interpretation of a court of Somerset county on June 27, 1884, adopting any supposed fixed rule for its conwhereby the adoption by Mr. and Mrs. Row-struction. If I can read the language of the land of their grandchild as their child was accomplished. I may say at this point that some question was made at the hearing as to the legality of these proceedings. There is no allegation of their invalidity in any of the pleadings; I have examined them with considerable care and find, as a matter of law, that they are regular in form and in accordance with the statute, and that they therefore cannot be attacked collaterally. The results of these proceedings was embodied in a decree which seems to satisfy all the requirements of the statute and to put the validity of the adoption beyond question.

The widow of the testator was, by the terms of the will, entitled to the income from the residuary estate for the term of her natural life. Upon the falling in of her life estate, the income of the residue became divisible. The trustees, being in doubt as to the proper construction of the residuary clause of the will, now lay the same before the court and seek its direction as to the manner in which the distribution shall be made.

The residuary clause of the will provides that, upon the death of the widow, the residue shall go to the executors upon the trust "to invest the same and keep the same invested and pay over the semiannual income thereof unto my children living at the death of my said wife, and the lawful issue of any deceased child of mine who may have died in her lifetime leaving lawful issue her surviving per stirpes and not per capita, until such time as my youngest grand child living at the time of my death shall attain the age of twenty-one years, or until the death of my said youngest grand child, upon my said youngest grand child living at the time of my death attaining the age of twenty-one years, or in the event of the death of my said youngest grand child before he or she attains the

instrument in its ordinary and natural sense, I
do not want any rule of construction, and, if I
cannot, then I think one must read the whole
instrument as well as one can, and conclude
what really its effect is intended to be by look-
ing at the instrument as a whole. By the hy-
pothesis it does not speak for itself, but you
must arrive at some interpretation which will
make it speak and make it speak intelligibly,
and go so far with the contention of the appel-
lant here * * *
templated the particular event that has hap-
that, if the testator had con-
pened in this case, he would have provided for
it; but with that single observation I am not
at liberty, because an event has happened which
I think has not been provided for to conjecture
what the testator would have provided if he had
thought of it beforehand. I am not at liberty
to disregard the application of the ordinary rule
you must look at the whole document, and, if
of construction of every document, namely, that
you can, you must read the words according to
their natural and reasonable meaning."

A comparison of particular clauses of this will leads only to confusion. Its construction requires a broad general view and a careful reading of the whole instrument in order to determine the meaning of the particular clauses. The general scheme of the whole instrument must be examined and its meaning determined therefrom and thereby.

[2] The general plan of the will, so far as relates to descendants of the testator, appears to consider them in two classes determined by their nearness in blood to himself. Manifestly these classes are "children" and "grandchildren," using the words in their natural sense and not in the artificial sense that comes from the decree of adoption above referred to. In the first of these classes he puts his two natural daughters, Mrs. Adrain and Mrs. Riva. To those who belong in this class he gives: First, a money legacy of $12,000; second, he provides for each of them a

the fund to them for life, with remainders to will which Mr. Rowland had in mind, betheir issue, and cross-remainders if there should be no issue. It is significant that, if the testator, at the time of the execution of his will, had in mind the artificial relation which had been created between him and his granddaughter Jean Livingston Koch, he did not make the same provision for her that he had made for his two natural children, and at once the question arises whether the testator intended that his adopted daughter should belong to the class known as his "children," or whether he intended that she should take her natural place in the next class. The will seems to answer that question. The second class of beneficiaries includes the seven grandchildren, Mrs. Adrain's two children, Robert Adrain, Jr., and Jean L. Koch; William R. Rowland's three children, William, Charles, and John; and the two Riva children-for each of whom he made substantially the same provision. The variations relate only to the Adrain family. Robert Adrain's devise is absolute. Jean Livingston Koch's bequest is for life, with remainder to the child of her first marriage. To his other grandchildren, viz., the children of William R. Rowland and of Mrs. Riva, he makes bequests payable when they shall arrive at the age of 30 years, respectively, but with the receipt of the income meantime. This is approximately equal treatment of the class of "grandchildren," and it seems to me to exclude the idea that he had in mind the advancement of Mrs. Koch from the degree of granddaughter to that of child. This appears to be the scheme of the will, and to allow it to be broken in upon would, in my opinion, be violative of the intention of the testator.

cause it would give Mrs. Koch a much larger share in his estate than would be received by any of the others, and there is nothing in the will to indicate that he meant her to enjoy a larger share of his bounty than the others. The only thing in the will which militates against this view is found in the provision for disposing of the principal of the trust funds of $160,000 each for the benefit of Mrs. Adrain and Mrs. Riva. After the death of Mrs. Adrain and Mrs. Riva, respectively, the trustees are directed to invest and keep invested the said trust funds of $160,000 and pay over the net semiannual income thereof to her children living at the time of her said death, respectively. It is quite apparent that upon the death of Mrs. Adrain, Mrs. Riva surviving her, the testator's use of the word "children" would be inapt, because, as it has turned out, there could be only one child left. But I look upon this rather as a lapse of thought and not as an indication that the testator meant to include Mrs. Koch as a child. It will be observed that the same phrase is used in the residuary clause. It seems to have been a form of words used by the scrivener rather than evidence of a settled determination on the part of the testator to have Mrs. Koch included as one of his children.

There is in the will one other reference favoring this view. It is contained in the fourteenth clause, wherein he provides for Mrs. Koch. He there gives her the income of $50,000, with remainder to her son William Dorman, and in that connection refers to her twice as his "granddaughter." In my opinion that fact so clearly and aptly expressed almost of itself puts the question at rest. I think it is quite apparent that, when the testator gave instructions for the drafting of his will, he not only forgot to inform the draftsman of the fact that he had adopted his grandchild, but had likewise dropped it entirely but temporarily from his memory.

My conclusion, therefore, is that Mrs. Koch does not take under the residuary clause as one of the children of the testator living at the death of his wife, and that the testator did not mean that she should be a recipient of his bounty to the extent of one-fourth of his residuary estate.

[3] It is quite apparent, from reading the will, that the testator meant that the provisions made for his grandchildren were made for their support, maintenance, and education, in which event they are entitled to the interest and income of the money set apart for them from the date of the death of the testator.

[4] There remains only the question: Who shall administer the income from the funds set apart for the minor grandchildren? There is no direction in the will about it; and, inasmuch as the will is silent on the subject, it would seem as if the management of the fund had been intended to be left in the hands of the trustees, while the management of the minor children and the expenditures for their benefit should be actually made by their general guardians, respective

There is another consideration which must operate against the claim of Mrs. Koch. If she is to share in the residuary estate as aly, who have also charge and custody of their "child," she will at once become invested with the title to one-fourth of the residuum in her own right, and, upon the death of her mother, to one-half of the trust fund, the interest on which is payable to the mother for her life, and in another contingency, very remote perhaps, she might get a share in the trust fund set apart for Mrs. Riva. This, I think, would be a complete variation from the scheme of the

persons. This would make it necessary for the trustees to transfer to the general guardians, respectively, from time to time, such funds as may be needed for the support, maintenance, and education of these children. The income upon their invested funds ought to be from 4 to 5 per cent., producing an income of from $2,000 to $2,500 for each one of them.

[5] Inasmuch as there is little or nothing in the case to indicate how much of this fund ought to be expended annually at the present time or in the near future for the benefit of the minors, it will be necessary to refer the matter to a master to inquire what amount should be periodically transferred for the purpose by the trustees to the general guardians. Such an inquiry was made in the case of McKnight v. Walsh, 24 N. J. Eq. 498.

[6] The principle is in cases of this class that the amount to be paid for the maintenance, support, and education of the minors should be limited to the actual necessities of the situation, and, if there is any surplus, it should be accumulated by the trustees for the benefit of the cestui que trusts until they arrive at the age when they may control their own funds.

There are some discrepant cross-references from one paragraph to another in several places in the will; but, inasmuch as counsel have agreed in relation thereto, it is unnecessary that any mention should be made thereof at the present time.

(83 N. J. Eq. 369)

NATIONAL BISCUIT CO. v. PACIFIC COAST BISCUIT CO. et al. (Court of Chancery of New Jersey. June 4, 1914.)

1. TRADE-MARKS AND TRADE-NAMES (§ 67*)UNFAIR COMPETITION-ELEMENTS.

One may not palm off his goods as the goods of a rival and thereby cheat the purchasing public and injure the business of the rival. [Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 78; Dec. Dig. § 67.*]

2. TRADE-MARKS AND TRADE-NAMES (§ 70*)UNFAIR COMPETITION-ELEMENTS.

A manufacturer of bakery products, which adopted as its trade-mark a seal known in the trade as "In-er-Seal," which seal was placed on each end of paper cartons containing its products, and had become an identifying mark of its products, thereby acquired the right to the exclusive use of the seal, and a rival manufacturer would be restrained from subsequently adopting a seal of similar general appearance, and similarly placed on its cartons, so as to mislead the purchasing public.

[Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. § 70.*]

3. TRADE-MARKS AND TRADE-NAMES (8 70*) UNFAIR COMPETITION-ELEMENTS.

A manufacturer of bakery products, which adopted the word "Uneeda" displayed on paper cartons containing its product and so advertised its business as to make the name identify its product, thereby acquired the exclusive use of the word as applied to its product, and a rival could not use on its product the word "Abetta" displayed on its cartons, and thereby confuse the purchasing public.

[Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. 8 70.*]

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that any one has been actually deceived, but need only show that the marks, words, or other such as will likely mislead persons in the ordispecial arrangement of a rival manufacturer are nary course of purchasing goods and inducing them to suppose that they are purchasing the article of the manufacturer.

[Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 86;. Dec. Dig. § 75.*] 5. TRADE-MARKS AND TRADE-NAMES (§ 16*)— UNFAIR COMPETITION-ELEMENTS.

A paper carton constructed by superimposing on the cardboard carton blank a sheet of waxed paper of the size and shape of the blank, so that, when folded, it will form a unit box and possess the capacity of preserving the contents equally with hermetically sealed tin boxes, and bundle packages, may not be exclusively appropriated by a manufacturer as devised to mark and indicate its product, but a rival manufac turer may use similar cartons and bundle pack-· ages without being guilty of unfair competition. [Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 19; Dec. Dig. § 16.*] 6. TRADE-MARKS AND TRADE-Names (§ 97*)— UNFAIR COMPETITION-ELEMENTS.

Where a manufacturer of bakery products has adopted for its products paper cartons of various sizes and trade-marks placed on each end thereof and trade-names, such as "Uneeda Biscuit," "Uneeda Milk Biscuit," "Oysterettes," "Marshmallow Dainties," "Cocoanut Dainties," "Oatmeal Crackers," etc., a rival manufacturer will be restrained from adopting any seal on its cartons or trade-names which are calculated to deceive the purchasing public, but it will not be restrained from selling such cartons with their asserted trade-mark thereon so differentiated in general appearance and application from the manufacturer's trade-mark that it could not deceive the ordinary purchaser, nor will the rival manufacturer be restrained from selling cartons of the size, weight, and shape of the manufacturer's packages, nor from using the representative colors as wrappers for such packages, provided the packages are so differentiated in general appearance from the manufacturer's packages that they will not deceive the ultimate purchaser.

[Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 110, 111; Dec. Dig. § 97.*]

Suit by the National Biscuit Company against the Pacific Coast Biscuit Company and others, to restrain unfair competition. On final hearing on pleadings and proofs. Decree for complainant.

Vredenburgh, Wall & Carey, of Jersey City, Charles K. Offield, of Chicago, Ill., and Earl D. Babst, of New York City, for complainant. Collins & Corbin, of Jersey City, and William D. Fenton, of Portland, Or., for defendants.

WALKER, Ch. The object of this bill is to restrain unfair competition in trade.

The complainant and defendant companies are corporations organized under the laws of this state. Both are engaged in the same line of trade-the manufacture and sale of bakery products. The business of the defend

4. TRADE-MARKS AND TRADE-NAMES (8 75*)-ant company is confined to the Pacific Coast UNFAIR COMPETITION-ELEMENTS.

A manufacturer suing to restrain unfair competition need not show intentional fraud, or

states and adjacent territory, while the field of activity of the complainant company is

nation-wide. The complainant's career com- | authorities will be profitless. The underlymenced in 1898, when it acquired some of ing principle that no man has a right to the leading bakery plants in the country, palm off his wares as those of another, therewith which it began operations. It already by cheating the purchasing public and filchhad a market for its goods, brought to it ing the business of a rival, is so essentially by these plants, and, by the exercise of a an element of natural justice and so solidly superior order of scientific and mechanical imbedded in our jurisprudence that all that intelligence and of commercial acumen and is necessary to quicken a court of equity is industry, acquired a wide and enviable repu- to show that in the particular instance the tation for the high quality of its products. offense has been committed. The cases cited A market for these wares was established by counsel in their briefs exemplify the ilin the defendant's territory shortly after the limitable conditions and circumstances under complainant started business in 1898. which this simple doctrine, requiring men to be honest towards each other, may be invoked.

The principal innovation made in the bakery line by the complainant is that of housing and transmitting to the ultimate consumer bakery products with a minimum of deterioration, and practically as they leave the ovens. This is accomplished by the use of paper cartons. Up to the complainant's advent, shipments were mainly in "bulk"; that is, in barrels and wooden boxes. Paper cartons, of the shoe-box style, with loose paper lining, and hermetically sealed tin boxes, were also used, but only to a very limited extent. The tin boxes were commercially too costly, and the shipment in bulk was objectionable because of the tendency of the contents to absorb moisture and deleterious and offensive odors, and to breakage. Uncleanliness in the handling by the retailer was also to be reckoned with.

The paper cartons adopted by the complainant were much smaller than those theretofore used and were of a size to permit of sales at popular prices-five and ten cents per package. These cartons are constructed by superimposing upon the carton blank, made of cardboard, a sheet of wax paper of the size and shape of the blank, which, when folded, form a unit box, and, it is said, possess the quality and capacity of preserving the contents equal to the hermetically sealed tin box. The cartons are of various sizes and shapes, adapted to the forms of the proposed contents; and to identify the contents as its products, and to distinguish the same from those of other dealers, the complainant adopted a trade-mark and a variety of tradenames for its various products and peculiar and distinctive labels and wrappers to envelope the cartons, all of which, it is claimed, the defendant fraudulently simulated, to the injury and damage of the complainant's trade.

The alleged infringement of 15 widely different styles of cartons and carton wrappers and applied trade-names, for as many kinds of crackers or biscuits, the methods of construction of the carton and of the form of bundle package of assembled cartons, as well as the trade-mark, is involved in this litiga

tion.

[1] The law relating to fraudulent or unfair competition between traders is so firmly established and has been so lucidly illustrated and defined by the courts of England and of this country that extended citation of

The case of Wirtz v. Eagle Bottling Co., 50 N. J. Eq. 164, 24 Atl. 658, is a striking example of the adaptation of the principle to unfair competition in the use of imitative labels and wrappers. The opinion in that case so fully covers the whole scope of the law applicable to the facts presently to be considered, and furnishes so clear a guide, that I am persuaded to quote from it in extenso. The complainant in that case, by his industry and fair dealing, had built up a large and valuable trade as a bottler of beer and identified his goods by a peculiar and distinctive label, which label the defendant substantially copied. Vice Chancellor Van Fleet, in granting a preliminary injunction, subsequently made perpetual, at page 166 of 50 N. J. Eq., and at page 659 of 24 Atl., said:

"If we speak with accuracy, these labels cannot be called trade-marks, but they serve submarks by which the complainant's goods are stantially the same purpose. They are the distinguished in the market from all like goods put upon the market by other persons, and are, for that reason, according to many decisions, just as much under the protection of the law as trade-marks are. The law protects them for the same reasons and in precisely the same way that it does trade-marks. The leading principle of the law on this subject is that no the reputation which another dealer has esman should be permitted to sell his goods on tablished in the market for his goods, and this principle applies with equal force to the case where the goods of such other dealer are known in the market by a label as it does to the case where they are known by a mark which is strictly a trade-mark. No dealer can lawfully adopt the label of another dealer, or one so near like ticle to which it is affixed was put upon the it as to lead the public to suppose that the armarket by such other dealer. Miller Tobacco Manufactory v. Commerce, 45 N. J. Law, 18, 24 [46 Am. Rep. 750]. The reasons upon which this rule rests were stated by Mr. Justice Knapp, in the case just cited, substantially as follows: While the markets are open and free to all, and fair competition should be encouraged, still every dealer must be required, for the dealing, to depend for his success upon his own protection of the public and to promote fair reputation and the quality of his own productions. If he were allowed to deal under false colors and sell his productions for those of others, the result would be that he would not only cheat the public, but also defraud him whose right place in the market he filled with spurious goods. Such competition would not be fair competition; it would be closer akin to piracy.

"The defendant's labels were prepared under the direction of its general manager.

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