whether, under the law, the park commission has a right to direct suit to be brought in the name of the city of Philadelphia. As such consent has not been shown, we must assume it to have been expressly refused.

It was urged on behalf of the defendant that the city solicitor is the only person authorized to commence suit in the name of the city; that the latter cannot be made a party plaintiff in any proceeding at law or in equity without its consent.

It is undoubtedly true that the park commission, through its solicitor, has no general power of instituting legal proceedings in the name of the city. The exercise of any such general power would be an interference with the recognized duties of the city solicitor, and lead to possible conflicts between councils and the park commission. If the power exists at all, it is only in a limited sense; in such cases where it is expressly given by law or ordinance, or is necessarily implied from the nature of the powers conferred or duties imposed upon the park commission.

The park belongs to the city of Philadelphia. The title to all this magnificent domain is in the name of the city. With the exception of such portions as were generously donated, it was paid for with the money of the city. All the expenditure for its adornment, and for its government and police regulations comes from the city treasury.

The park commission has no legal entity. It has no separate corporate existence, municipal or otherwise. It can neither sue nor be sued. It does not own a dollar of money nor a rood of land. For most legal purposes it is a myth, intangible and incorporeal. Yet the law has conferred upon it important and varied powers. It is a branch of the city government, clothed with certain authority, and performing prescribed duties, and, in its limited sphere, free from the control of the other departments of the city. In the improvements of the ground and the police regulations of the park, as well as in many other matters, its authority is exclusive, subject, however, to the important provision that it has to look to city councils for the money which it expends for such purposes. This check will at all times protect the city from reckless or unauthorized expenditure.

It is unnecessary to enumerate all the powers conferred upon the commission by act of assembly and ordinance of councils. My attention has not been called to any law or ordinance authorizing in express terms the commission to sue in the name of the city. Yet that such power is to be implied from some of the legislation in regard to the park is clear. I will cite as an illustration the act of 21st of April, 1869, P. L. 1194, the first section of which is as follows:

"That it shall be lawful for the Fairmount Park commissioners, in the name of the city of Philadelphia, to prevent and restrain the damage or the destruction of any trees and shrubbery upon any premises within the bounds described for the Fairmount Park, by the supplements to the act creating said park," etc.

Under this act it can hardly be doubted that the park commission has full power to use the name of the city in any proceeding at law or in equity that may be necessary to carry into effect the objects referred to in said act.

There are many other powers conferred upon the commission from which a like authority is to be implied, such as the leasing of all houses

and buildings within the park limits, the licensing of such passenger railways as it may permit to lay down rails in the park, licenses for cutting ice and keeping restaurants within the park, etc. In all these and other cases the commission contracts in the name of the city. Can it be that the commission is so powerless that it cannot collect rent from a tenant to whom it has leased a house, without permission from the mayor and councils?

The legislation in regard to the office of park solicitor, as it is called, throws some light upon the question. By section 28 of the act of 14th of April, 1868, it is provided that "there shall be an additional assistant appointed by the city solicitor, whose duty it shall be, under the direc tion of the city solicitor, to attend to the assessment of damages, and to such other business of a legal nature, as said commissioners may require."

Under this act the legal business of the park commission was directly under the control of the city solicitor, and a special assistant was detailed to attend to it. Had the act remained in force, it is not likely any question would ever have been raised as to his authority.

The said act was repealed by the act of January 27, 1870, the fifth section of which provides that "there shall be appointed by the commissioners of Fairmount Park a solicitor, whose duty it shall be, under their direction, to attend to the assessment of damages, and to such other business of a legal nature as the said commissioners may require; he shall receive during the present year and hereafter, until otherwise ordered by councils, the same compensation as is now provided for the assistant solicitor named in the twenty-eighth section."

ap

Under the provisions of this act it is conceded that Mr. Yerkes, the present solicitor, was duly elected by the park commission. It will be seen that he takes the place of the assistant city solicitor referred to in the act of 1868. His duties remain the same; his salary is paid by the city, and his services are rendered to and for the city, under the direction of the park commission. The only difference is that he is pointed in a different manner, and is not under the control of, or subordinate to, the city solicitor. He is called park solicitor, but this is evidently for convenience merely. He is not so designated in the act of assembly. The language of said act is: "There shall be appointed by the commissioners of Fairmount Park, a solicitor," etc. He is not solicitor for the park commission, but for the city of Philadelphia; is paid by the city, and has no duties to perform but those which pertain to the business of the city. It is true those duties are limited and confined to matters connected with Fairmount Park, but in his appropriate sphere he is as much a solicitor for the city as is Mr. Collis.

If, where a power is conferred or a duty imposed upon the park commission, it cannot invoke the aid of the courts to execute such power or perform such duty without first obtaining the permission of the mayor and councils and city solicitor, the commissioners would be practically powerless. While they are knocking at the doors of councils a passenger railway company might lay its tracks upon the finest avenue in the park, and put its cars in motion. Waste, spoil, and destruction might be perpetrated in any portion of its grounds. If the commission possesses no right to sue in the name of the city, the various powers conferred by the

Legislature and by councils would be practically nugatory. Such a construction of the rights of the commission, and of the solicitor appointed to attend to its branch of the city business, would subject the management of the park to the control of councils. That which was so carefully avoided by the Legislature we will not do by judicial construction. The park solicitor having a power, though a limited one, to sue in the name of the city, we will not assume that in this case he has no such authority. The right to sue does not depend upon the right of the plaintiff to the relief prayed for in the bill. Such a rule would require the plaintiff to establish its right before commencing suit to test it, which involves an absurdity.

The rule referred to is discharged, and it is ordered that the motion to continue the special injunction be set down for argument upon the next equity motion day. In the meantime the injunction is continued.

[Leg. Int., Vol. 31, p. 380.]

MORSE vs. WORRELL.

Plaintiffs' trade-mark was "The Rising Sun" stove polish with vignette of the sun. Held, that defendants would not be restrained from using the words "Rising Moon," with vignette of the moon.

Sur motion for special injunction. Opinion delivered November 21, 1874, by

PAXSON, J.-The rules of law governing trade marks are now well settled. The difficulty lies in the application of those principles to the facts of a particular case. Thus it is well understood that a man may have a property in a trade-mark, and that a court of equity will interfere by injunction to prevent a piracy of such trade-mark. Yet what constitutes an infringement is a mixed question of law and fact, often difficult to determine. In such investigations we may be aided to some extent by experts. Much, however, must depend upon an actual inspection of the trade-mark, and of the alleged imitation.

The plaintiffs claim to be the manufacturers of an article known as "The Rising Sun Stove Polish." It is put up in packages of the form known as parallelopipedons, about four inches in length by an inch and a quarter in diameter, and covered with a wrapper of red paper, upon which is printed certain letters, and a device of a rising sun, which, it is claimed, constitutes the plaintiffs' trade-mark. When this wrapper is folded, so as to enclose one of the blocks of stove polish, it presents upon one side thereof a device evidently intended to resemble the sun rising over or beyond two hills, the one on the right lying in deep shadow; the one on the left lighter, but shaded, while the sun is a semi-circle, surrounded by wide divergent rays, printed in black on the plain color of the paper. Over this device are the words "The Rising Sun," printed in bold letters upon a curved line, and surrounded by scroll work. Under the device are the words "Stove Polish," also in a curved line, and a small portion of which only is visible upon this side of the block. The other three sides are covered with printed matter, in smaller type, of various sizes, descriptive of the article, laudatory of its many virtues, with cautions against imitations, a statement of the price, and directions for its use. Then follows, upon the fourth side of the block, the name of

the manufacturers, "Morse Bros., Sole Proprietors, Canton, Mass.," also the words, "Entered according to Act of Congress, in the year 1870, by Morse Bros., in the office of the Librarian of Congress, at Washington," followed by the words, "A patent granted us for the words 'sun' as applied to prepared plumbago by United States, October 20, 1872, with or without prefix or affix, and any violation or infringements of any of the copyrights or trade-marks we shall immediately prosecute to the extent of the law." It is proper to say, in this connection, that the words, "this trade-mark patented," are printed in dim letters immediately under the vignette of the rising sun.

The plaintiffs produced a certificate from the United States Patent Office, showing that their trade-mark has been registered under the act of Congress. In said certificate the following appears as the plaintiffs' description of their said trade-mark:

"This trade-mark is composed of the word 'Sun,' either preceded by or not an adjective, such as the word 'Rising,' as shown in the drawing, or 'Morning,' Evening,' 'Setting,' 'Shining, or Radiant,' or other adjective, to qualify or express the quality of, or some circumstance respecting the sun. This word 'Sun,' when thus used in connection with prepared plumbago or black lead, is to be either stamped upon each separate cake, bar or stick of the plumbago, or by printing or stamping indicated upon the box or case containing it, or upon a wrapper or label to be used with the same; it being best, as well as so intended, to add to the same a word or words sufficient to designate the purpose for which the prepared plumbago or black lead is to be used-as, for instance, 'Stove Polish, Lumber Pencil,' 'Lubricator,' etc.

"In the said illustration of my trade-mark there is also a design showing a sun as rising from and beyond hills: the words The Rising Sun,' and the words 'Stove Polish,' being placed respectively above and below the said design, and relieved by scroll lines.

"It is not intended to limit this trade-mark to the design hereinbefore described and shown, as said design is, in many instances, not employed, and when employed, is for effect, taste and appearance, the trade-mark consisting in the adaptation of the word 'sunto prepared plumbago or black lead."

The defendant's preparation of plumbago is put up in packages of the same size and shape as those of the plaintiffs, and covered with wrappers of a similar color. On one side of the parallelopipedou there is a vignette of a moon rising out of the ocean, or a large sheet of water. Immediately over the moon are the words "Rising Moon," printed on a curved line; to the left, and on a line with the moon, is the word "Stove," and on the right the word "Polish." On the second and third sides are directions for use, etc., and on the fourth side the words "Manufactured of Pure Carburet of Iron, at the Eagle Black Lead Works, Nos. 244, 246 and 248 North Front street, Philadelphia," and in smaller type at the bottom the additional words, "Entered according to act of Congress, in the year 1871, by Howard Worrell, in the office of the Librarian of Congress, at Washington."

Over seventy-four affidavits were submitted on behalf of the plaintiffs by persons claiming to be experts and dealers in almost every State of the Union, alleging that the plaintiffs' article was widely known to the

trade and has a large sale. Most of the affidavits say that, in their judgment, the label of the defendant was an imitation of the plaintiffs' trademark, and calculated to deceive purchasers; that in some instances parties had actually been misled.

On the other hand, the affidavits submitted on behalf of the defendant, though far less numerous, are equally strong, and allege that there is no imitation, and that the difference between the two labels is so radical that no person of ordinary intelligence could be deceived, or mistake the "Rising Sun" for the "Rising Moon Stove Polish."

In determining a question of this kind some regard must be had to the character of the article, its price, and the average intelligence of the persons who are likely to be its chief purchasers and consumers. When an article is costly, is used principally by persons above the ordinary standard of intelligence, and is likely to be inspected closely, the danger of deception would necessarily be less than in the case of an article of stove polish, sold at retail for ten cents, and used chiefly by the humbler and more ignorant classes.

The large number of affidavits submitted in this case has led me to consider the weight that ought to be attached to the opinions of persons professing to be experts. The conclusion to which I have arrived is, that while we will regard such affidavits so far as they aid us, and throw light upon the case, the court must at last exercise its independent judgment upon actual inspection of the trade-mark and its alleged imitation. As before observed, this is a mixed question of law and fact. Many of the professed experts may have but crude notions of what in law constitutes a trade-mark, or its violation. It does not follow as a matter of law that because one label resembles another in many respects it is necessarily such an imitation as a court of equity would declare an infringement of a trade-mark.

A careful examination of the two articles in question certainly discloses a strong general resemblance. Placed side by side upon the shelf of a country store, and viewed at some little distance, the similarity is striking. But when we come to analyze this general resemblance, it will be found to consist mainly of the color of the wrapper and the shape and size of the article. It is almost needless to say that the plaintiffs cannot have a trade-mark in red paper or parallelopipedons. I do not mean to say that even the color of the paper and the shape and size of the package are not to be considered in any case in settling the question of the imitation of a trade-mark. When there is an imitation with only colorable differences, the fact of the use of a similar wrapper, and the same size and shape for the article itself, may add great strength to the charge of an intent to deceive. But of themselves they are not enough to constitute an infringement.

Leaving out these two points of resemblance, what else is there? It is not pretended that upon the second, third and fourth sides of the parallelopipedon there is any imitation. They are distinctly and radically different. Both the style and the matter of the printing are dissimilar. If there is any infringement at all, it must be upon the first side, containing the vignette.

We will consider first the lettering. The words "Stove Polish" are clearly no part of the trade-mark. They constitute the name by which