The court are of opinion that this bill cannot be maintained.
It is not brought under Gen. Sts. c. 56, §§ 3, 4, for using in the defendant’s business the name of a person formerly connected with him in business, or of any other person, without the consent in writing of such person or his legal representatives; and, if it were, there is no fact upon which it could be supported. The name which the defendant has used is not the name of either of the complainants; and the representative of the person whose name is used is not a party to the bill.
Nor is it shown that the defendant has fraudulently, or otherwise, represented to the public that he is authorized to represent or act for the firm of the complainants. They are carrying on business at Cincinnati, under the name of J. A Fay & Co. He is carrying on business at Worcester, under the same name; which is the name of a Worcester firm established in 1852, a year before the existence of the Cincinnati firm; of which Worcester firm the defendant was an original member, and continued to be a member until the death of Fay in 1854; and the *296business was continued by him with two of the complainants until its dissolution in July 1861. All his acts and representations are only to the effect that he is still carrying on the business of the Worcester firm, of which he was a partner so long as it lasted, whose good will he purchased from the other surviving partners, and whose name he continues to use.
We do not find anything more substantial in the claim of the complainants that the defendant is guilty of a fraud, because, instead of manufacturing and selling machines under the name and with the trade-mark of J. A. Fay & Co. he puts that mark upon machines which he purchases of other manufacturers. If he has a right to use the name in his business, and to affix it as a trade-mark to his goods, so far as these complainants are concerned, they have no legal interest in the manner in which his business is conducted. No doubt they may be indirectly affected by it, as the reputation of a man may be affected by the behavior of another man of the same name. If the defendant made his own machines, and made them of a poorer quality than formerly, it might affect the reputation of all machines sold under that name in the market. If he made better machines than the complainants did, it might induce a preference for the machines which came from Worcester. But with either of these results the complainants would be'entitled to no relief As a test of the matter, suppose the firm of J. A. Fay & Co. in Worcester had never been dissolved: could there be a pretence that they might not procure the machines which they sold to be made by others instead of making them themselves ? or make or procure them of such quality as they thought fit ? In the absence of any contract, the Cincinnati firm would have had no right to question the proceeding. If the defendant has a right to use the name, he would unquestionably have the right to carry on business under it in any lawful manner that he chose He would have no legal or moral right to pass off his machines upon the public as the manufacture of the complainants; but we do not think it is proved that he has attempted to do so. He has advertised and sold machines as those of J. A. Fay & Co. of Worcester; and if he has a right to use that name at all *297the firm of the same name at Cincinnati have no concern with the quality of his wares, or the manner in which he supplies himself with them. That is a matter between him and his customers.
But the case for the complainants has been pressed most strongly upon the ground that the name of J. A. Fay & Co. is their trade-mark, which gives their manufacture a value and reputation in the market; that as each of the three firms in various parts of the country adopted it, in succession, they acquired an exclusive right to its use against all the world except those who had used it before; and that on the extinguishment of either firm, the right would remain to the continuing firm. We cannot accede to this proposition. We know of no case in which the doctrine on the subject of trade-marks has ever been carried to such an extent. A trade-mark is a peculiar name or device by which a person dealing in an article designates it as an article of a peculiar kind, character, or quality, or as manufactured by or for him. But how can a name be considered as peculiar, which is lawfully used by three different firms, in three states, acting independently of each other, and under no contract in relation to its use 1 If the right to use it in Massachusetts existed before and independently of the right to use it in Ohio, we know no principle of legal succession by which it is transferred, on the dissolution of the Massachusetts firm, to the firm in Cincinnati; nor what should make the claim of the latter preferable to that of either of the surviving partners in this Commonwealth. It might well be that three different manufacturers might use the same trade-mark as their joint property, by compact among themselves; but that is not this ease; and the law implies no such community of property in the absence of express agreement. Besides, if such a right of succession as has been suggested could be maintained, it would seem to have been of equal effect upon the dissolution of the several firms of J. A. Fay & Co by the death of Fay in 1854. Yet the Worcester firm continued the use of the name for several years afterwards without objection.
We were inclined to the opinion that the sale of the good will *298of the business of the Worcester firm of J. A. Fay & Co. to the defendant, upon its dissolution in 1861, in which two of the complainants who had been his partners joined, would have the effect, as against them, to give him the right to continue to use the name, upon the facts which appear in the case. But finding the considerations decisive which have been already stated, we do not think it necessary to enter upon that discussion.
Bill dismissed with costs