66 Opinion of the Court. me." The following American cases also cited: "Akron Cement," 51 N. Y. 192; "Extra Dry," 56 Fed. Rep. 830; "St. Louis Lager Beer," 24 Fed. Rep. 149; "St. Louis White Lead," 25 Fed. Rep. 125, and 39 Fed. Rep. 492; "Nerve Food," 32 Fed. Rep. 205; "Singer Machine," 163 U. S. 169; “Minneapolis Flour," 86 Fed. Rep. 608; "German Sweet Chocolate," 68 California, 68; "Sliced Animals," 93 N. Y. 53; "Bromo-Caffeine," 142 N. Y. 467; "Congress Springs," 45 N. Y. 291; "Bethesda Mineral Water," 42 Wisconsin, 118; "Blue Licks Mineral Water," 41 S. W. Rep. 21; " Chicago Waists," 83 Fed. Rep. 213; "Red Cross Plasters," 82 Fed. Rep. 662; "Baker's Chocolate," 80 Fed. Rep. 889; "Canadian Club Whiskey," 85 Fed. Rep. 776; "Plymouth Gin," 88 Fed. Rep. 693; " Dyspepsia Tablets," 91 Fed. Rep. 243; "Carrom," 106 Fed. Rep. 168; "Celery Compound," 106 Fed. Rep. 77; Queen Quality," 105 Fed. Rep. 375; "Health Food,” 104 Fed. Rep. 141; "Gold Dust," 102 Fed. Rep. 327; "Oxford Bible,” 101 Fed. Rep. 442, also citing and distinguishing Stuart v. F. G. Stewart Co., 91 Fed. Rep. 243; Garrett v. Garrett, 78 Fed. Rep. 472; Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537. As to false representations citing Koehler v. Sanders, 127 N. Y. 74; Thompson v. Montgomery, 41 Ch. Div. 35; Coats v. Thread Co., 149 U. S. 562; Johnston v. Ewing, L. R. 7 App. Cas. 219; Manufacturing Co. v. Loog, 18 Ch. Div. 412, Wotherspoon v. Currie, L. R. 5 H. L. 517; Lever v. Goodwin, 36 Ch. Div. 1, and other cases cited in " Extra Dry" case, 56 Fed. Rep. 830; Collins Co. v. Brown, 3 Kay & Johnson, 423; and citing California Fig Syrup Co. v. Improved Fig Syrup Co., 51 Fed. Rep. 296; Rawlinson v. Brainerd, 59 N. Y. Supplement, 830; Bass v. Feigenspan, 96 Fed. Rep. 206, that a manufacturer may adopt as a trade mark a new combination of words which up to that time had no significance attached to them in the trade in which they are used . . . although they may be suggestive of the general nature of the article to which they are applied. MR. JUSTICE SHIRAS, after making the foregoing statement, delivered the opinion of the court. Opinion of the Court. The courts below concluded, upon the evidence, that the defendants sold a medical preparation named, marked and packed, in imitation of the complainant's medicine, for the purpose and with the design and intent of deceiving purchasers and inducing them to buy defendants' preparation instead of the complainant's. We see no reason to dissent from that conclusion, and if there were no other questions in the case, we should be ready to affirm the decree, awarding a perpetual injunction and an account of the profits and gains derived from such unfair and dishonest practices. Another ground, however, is urged against the complainant's right to invoke the aid of a court of equity, in that the California Fig Syrup Company, the complainant, has so fraudulently represented to the public the nature of its medical preparation that it is not entitled to equitable relief. Some courts have gone so far as to hold that courts of equity will not interfere by injunction in controversies between rival manufacturers and dealers in so-called quack medicines. Fowle v. Spear, Circuit Court of the United States for the Eastern District of Pennsylvania, Pennsylvania Law Journal, vol. 7, p. 176; Heath v. Wright, 3 Wall. Jr. 141; Fetridge v. Wells, 4 Abb. Pr. 144. It may be said, in support of such a view, that most, if not all, the States of this Union have enactments forbidding and making penal the practice of medicine by persons who have not gone through a course of appropriate study, and obtained a license from a board of examiners; and there is similar legislation in respect to pharmacists. And it would seem to be inconsistent, and to tend to defeat such salutary laws, if medical preparations, often and usually containing powerful and poisonous drugs, are permitted to be widely advertised and sold to all who are willing to purchase. Laws might properly be passed limiting and controlling such traffic by restraining retail dealers from selling such medical preparations, except when prescribed by regular medical practitioners. But we think that, in the absence of such legislation, courts cannot declare dealing in such preparations to be illegal, nor the articles themselves to be not entitled, as property, to the protection of the law. Opinion of the Court. We find, however, more solidity in the contention, on behalf of the appellants, that when the owner of a trade mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not in his trade mark, or in his advertisements and business, be himself guilty of any false or misleading representation; that if the plaintiff makes any material false statement in connection with the property which he seeks to protect, he loses his right to claim the assistance of a court of equity; that where any symbol or label claimed as a trade mark is so constructed or worded as to make or contain a distinct assertion which is false, no property can be claimed on it, or, in other words, the right to the exclusive use of it cannot be maintained. Among the cases cited to sustain this contention are the following: In Connell v. Reed, 128 Massachusetts, 477, the plaintiff sought to establish the exclusive right to the words "East Indian," as applied to his remedy and the court, through Gray, C. J., said: that the plain "The conclusive answer to this suit is tiffs have adopted and used these words to denote, and to indicate to the public, that the medicines were used in the East Indies, and that the formula for them was obtained there, neither of which is the fact. Under these circumstances, to maintain this bill would be to lend the aid of the court to a scheme to defraud the public." In Siegert v. Abbott, 61 Maryland, 276, where the subject matter of the trade mark was "Angostura Bitters," which purported to have been prepared by Dr. Siegert, at Angostura, Trinidad, and where it appeared that Dr. Siegert was dead, and had never lived at Angostura, the bill was dismissed, the court saying: "It is a general rule of law, in cases of this kind, that courts of equity will not interfere by injunction where there is any lack of truth in the plaintiff's case; that is, where there is any misrepresentation in his trade mark or labels." In Alden v. Gross, 25 Mo. App. 123, a trade mark was claimed in the words "Fruit Vinegar," and the court said: Opinion of the Court. "The vinegar thus branded was not manufactured out of fruit, in the plain, ordinary, usual sense of that term, but out of low wines distilled from cereals, and fruit enters into its composition only to a very insignificant extent. . . It would be a novel application of the rule governing the subject of trade marks, if one who manufactures vinegar out of cereals could appropriate for the article thus manufactured the word Fruit," and thereby exclude another from using the word as descriptive of an article, which is, in point of fact, manufactured out of fruit. But whether the word 'Fruit,' in this connection, is purely indicative of the character or quality of the article or not, the plaintiffs' exclusive claim to it must fail on the further ground, that the use of the word, in that connection, is clearly deceptive." In Prince Manufacturing Company v. Prince's Metallic Paint, 135 N. Y. 24, an injunction to protect a trade mark was refused, by reason of a false representation as to the place from which the ore was obtained, and the Court of Appeals used the following language: Any material misrepresentation in a label or trade mark as to the person by whom the article is manufactured, or as to the place where manufactured, or as to the materials composing it, or any other material false representation, deprives a party of the right to relief in equity. The courts do not, in such cases, take into consideration the attitude of the defendant. And, although the false article is as good as the true one, ‘the privilege of deceiving the public even for their own benefit is not a legitimate subject of commerce."" English cases are to the same effect. Thus in Pidding v. How, 8 Simons, 477, where it appeared that the plaintiff had made a new sort of mixed tea, and sold it under the name of "Howqua's Mixture," but, as he had made false statements to the public, as to the teas, of which his mixture was composed, and as to the mode in which they were procured, the court refused to restrain the defendant from selling tea under the same name, and said: "As between the plaintiff and the defendant, the course pursued by the defendant has not been a proper one; but it is a VOL. CLXXXVII-34 Opinion of the Court. clear rule, laid down by courts of equity, not to extend their protection to persons whose case is not founded in truth. And, as the plaintiff, in this case, has thought fit to mix up that which may be true with that which is false, in introducing his tea to the public, my opinion is, that, unless he establish his title at law, the court cannot interfere on his behalf." The English case of Leather Cloth Co. v. American Leather Cloth Co. is a leading one on this subject and in which the nature of false representations that will defeat the right of the owner of a trade mark to protection in equity was much considered. A bill, asking for an injunction against defendants who were charged with using stamps and trade marks, so similar to those of the complainant as to deceive purchasers, was sustained by Vice Chancellor Wood, who granted the injunction prayed for. 1 Hem. & Miller's Reports, 271. On appeal the decree of the Vice Chancellor was reversed by the Lord Chancellor, and the complainant's bill was dismissed. 4 De Gex, J. & S. 137. The conclusions reached by Lord Chancellor Westbury were that there is a right of property in a trade mark, name or symbol in connection with a particular manufacture or vendible commodity, but that where the owner of such a trade mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not in his trade mark or in the business connected with it be himself guilty of any false or misleading representation. In considering what constitutes a material false representation, the Chancellor observed that he could not receive it as a rule, either of morality or equity, that a plaintiff is not answerable for a falsehood, because it may be so gross and palpable as that no one is likely to be deceived by it; that if there be a wilful false statement, he would not stop to inquire whether it be too gross to mislead. This decision was affirmed by the House of Lords. 11 H. L. Cas. 523. In that tribunal, in the several opinions of the law lords, the views of the Lord Chancellor as to the effect of false representations were approved, but it was thought that, independently of that question, the plaintiff was not entitled to an |