From these, and other cases, it may be seen that a question of whether a trade-mark has been infringed is sometimes a question of psychology.
It is not necessary for the complainant to produce evidence that buyers have been actually deceived. His case is established when he can show that the marks, or symbols, or packages, or general "get-up" of the goods are sufficiently similar to establish a strong probability of deception.
The case of Shaw Stocking Company v Mack (21 Blatch 1—1882. C. C. N. Y.), cited by Mr. Nims, is an example of infringement that seems to fall within the range of psychological analysis.
"Complainant manufactured at Lowell hosiery of high reputation and designated one style by the figures '830'. The label bore the trade-mark 'Shawknit' in script with a flourish and the words 'Seamless Half Hose,' with the name of the manufacturer and the figures '830.'
"Defendants at Albany bought large quantities of complainant's goods and with complainant's consent, in effect, held themselves out to the public as selling agents of complainant's. They then began to buy of a Connecticut manufacturer goods similar to complainant's '830' style, but inferior, and sold them under a label generally resembling complainant's in appearance and bearing the word 'Seamless' in script of a similar style, including the flourish, followed by the words 'Half Hose, Double Heels,' with defendant's name and address, and the figures '830.'
"The court enjoined them from using the figures '830' to designate the Connecticut goods, and from using on the label the word 'Seamless,' printed in imitation of Shawknit."
In the case given above there was no infringement of the actual trade-mark. But the intent to deceive purchasers was shown by the use of the style number 830 and by the careful imitation of the general appearance. Well-informed customers, looking for the trade-mark Shawknit, would not have been deceived, but the probability of deceiving the uninformed and careless was sufficient to justify the injunction.
It should be kept in mind that the term "infringement" covers not only the imitation of a technical trade-mark, in whole or in part, but embraces all violations of the rights of others, in trade, no matter whether such violations fall under the trade-mark law, or the law of unfair competition.
The noted case of McLean v Fleming (96 U. S. 245—1877) decided in 1877, is one of the cases that underlie the law of unfair competition. In this case the Court said:
"Nor is it necessary, in order to give a right to an injunction, that a specific trade-mark should be infringed; but it is sufficient that the court is satisfied that there was an intent on the part of the respondent to palm off his goods as the goods of the complainant, and that he persists in doing so after being requested to desist."
This is the gist of the whole matter of infringement. If an effort to trade on the reputation of another can be proved, irrespective of the form this effort may take, it is held to be an infringement.
"Chatter-Box" is an old-established publication for children, issued in the form of an illustrated book, once a year. It was held that "Chatter-Book", a publication issued for the same purpose, and of the same general appearance, was an infringement.