—Whether or not the term “ goodwill f under all circumstances, includes the name under wdiich the business originated or was continued, or became a thing of specific value, is not in the present instance necessary to determine.
A person not a lawyer would not imagine that when the “ good-will” and trade of a retail shop were sold, the vendor might the next day set up a shop within a few doors, and draw off all the customers. The “ good-will” of such a shop, in good *277faith and understanding, must mean all the benefit of the trade, and not merely a benefit of which the vendor might the next day deprive the vendee. This was the language used by the Vice-Chancellor, in 2 Madd. Ch. R., 188, 219, in which the decision of Lord Eldon (17 Ves., 346) was cited, and in reply to the proposition there laid down, “ that good-will was the probability that the old customers will resort to the old place.”
(This clearly will not be applicable to the present case, as the transfer of the lease, without the additional provision in the agreement for the sale of the good-will, fully and practically secured the old stand, with whatever probabilities were incident to it.)
Story defines “ good-will” to be the advantage or benefit acquired by an establishment, beyond the mere capital or value of its stock, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account of its local position, or common celebrity, or reputation for skill and affluence, or punctuality, or from the accidental circumstances or necessities, or even from ancient partialities or prejudices.
Courts of equity are frequently called upon to interpose and prevent a person from using the name of another in a business or concern, for the fraudulent purpose of imposing on the public, and supplanting the other in the good-will of his concern. (3 Kent, 5th ed., 64, note ; 2 Kern., 313; 6 Bearvan, 72; 8 Paige, 75 ; 4 Ib., 479 ; 2 Barb. Ch. R., 101 ; 2 Sandf. Ch. R., 617 ; affirming, Taylor a. Carpenter, per Spencer, Senator.)
The plaintiff adopted, appropriated, and used the words or name “ Howe’s Bakery,” and by that name his establishment became known, and was extensively patronized, and was a thing having specific value. The plaintiff so avers in his complaint.
If the plaintiff, previous to the transfer, in 1852, to Baker, the assignor of the defendant, had sought the aid of equity to restrain a person, of the same surname, engaged in the same business in the city of Hew York, from using the words “Howe’s Bakery,” the claim would have rested not upon any exclusive right of the plaintiff to appropriate and monopolize these words, the one being peculiar to neither, and truthful as to both, and the other a generic term not capable of appropriation, but that *278the words had been long used by him, and had become known as indicating articles manufactured or made at, or vended from his establishment or place of business. The ground of interposition is, that a name having been taken for the purpose of distinguishing property, the defendant is not permitted on the false representation that articles, really the defendant’s, belong to or were made or sold under the management of the plaintiff, or came from his place of business, thereby depriving the plaintiff of the fair profits of his business.
The name or words “ Howe’s Bakery” was nothing but a trade-mark, and, as such, is now sought to be protected by the plaintiff.
The name or trade-mark passed by the assignment and transfer of the “ good-will,” and if it was not the thing itself, it was an integral part of it.
The contract of the parties leaves no room for conjecture as to their intention.
The stock in trade, fixtures, &c., were specifically mentioned; the leases were distinctly set forth; the art and mystery of the business was provided for by an express covenant, to teach whomsoever the vendee might select; and lastly, not least, after agreeing for the sale of the “ good-will,” it was stipulated that the vendor (plaintiff) should not directly or indirectly engage or be concerned in the same business in the city of Hew York, without the consent of the vendee (Baker).
Again, this clear understanding of the parties, and this construction of their agreement, is definitively fixed by the long acquiescence of the vendor, and by his requesting and obtaining leave to commence the business at a particular place,'and use the name within those bounds. -
It seems to me the statute has no application to the case under consideration; the title clearly indicates the intent to prevent mischief by the use of a fraudulent, because entirely fictitious designation, the word “ Co.,” with no physical existence to represent it.
The name “ Howe” had a living physical existence to support it. It was not, therefore, fictitious.
The name “ Howe” required nothing to sustain it. As a trademark, it is immaterial whether it was the name of animate or inanimate creation, or the purest effort of fancy on the part of *279its originator; possibly the more original in its character, the better would be the protection offered to it—the nearer it approach to the right to be patented. The plaintiff cannot avail himself of the statute, even if it did apply. Having agreed to dispose, and actually conveying the thing alleged to be prohibited, it does not lie with him to complain of his own violation of law, or a fraudulent representation to his vendee.
Ho such point was taken by the plaintiff upon the argument of the appeal.
The plaintiff might dispose of his credit. That is nothing more than a reputable name or character, and its influence.
The injunction should have been refused, and the complaint dismissed.
The judgment of the special term should be reversed, &c.