The plaintiff corporation, as found by the master, began the manufacture and sale of toothpicks five years and more before the bill was filed, and during this period has established a valuable business. It adopted in the marketing of the product a box or package of distinctive size and shape bearing in colors a characteristic design so collocated as to make the combination dissimilar from any label, form of package, or dress of goods then in use by other manufacturers or dealers. During the development of its trade a certain proportion of the packages had the imprint of the name of various jobbers to whom the exclusive sale of the goods had been given, or of some fanciful word or phrase suggested by them, and the entire production became classified as either the factory brand sold generally to the jobbing trade under brand names used only by the plaintiff, or the jobber’s brand. But while the color of the printing and of the background on the factory brand differed from the jobber’s brand, the quality of the goods was uniform, and every package as it left the factory bore the monogram of the plaintiff, with the further distinguishing design of a wreath overlapped by a curved band with an escalloped gold edge. The plaintiff upon these findings, while claiming no rights of property in the brand name used by the jobber, had acquired a reputation and good will in connection with, and as a part of its business, which generally is recognized as a property right, and will be protected against the unfair competition of rival manufacturers or dealers in similar products. George G. Fox Co. v. Glynn, 191 Mass. 344, 349. Reading Stove Works v. S. M. Howes Co. 201 Mass. 437, 438. Draper v. Skerrett, 116 Fed. Rep. 206.
It is wholly immaterial, where this right has been invaded, that the retail or wholesale dealer who may be the immediate purchaser of goods put out in imitation is not misled as to their identity. The wrong of unfair competition is present where goods' are so dressed in form, or- marked by decorative symbols, that the ultimate consumer when the goods are distributed for use in the ordinary course of trade, either is, or possibly may be, de- > ceived. The liability to deception being the test, it also is not necessary to show that specific buyers have been actually de- ‘ ceived or that the infringer intended to deceive the public. He ■ is bound to know the probable consequences, where the means *223of such deception have been supplied by him. New England Awl & Needle Co. v. Marlborough Awl & Needle Co. 168 Mass. 154. Reading Stove Works v. S. M. Howes Co. 201 Mass. 437, 440, 441, and cases there cited.
The defendant, for the pin-pose of acquiring the extensive trade of a jobber with whom the plaintiff did business, deliberately duplicated the plaintiff’s box or package in every particular with the exception of the monogram, and thereafter these receptacles filled with toothpicks in which the defendant although not a manufacturer very largely dealt, were widely distributed to consumers through dealers in the trade to whom it sold them. This misappropriation having been an invasion of the plaintiff’s exclusive right to the form, style and dress of the box or package in which its goods had been marketed, it is entitled to injunctive relief even if the defendant had acted innocently. But as the defendant must be presumed to have contemplated the probable effect of its purpose to acquire so far as possible the plaintiff’s customers and trade, it is liable for both actual damages, and profits, if any, realized from the sale of toothpicks in the imitation packages. Regis v. Jaynes, 191 Mass. 245. Reading Stove Works v. S. M. Howes Co. 201 Mass. 437, 441-443. By the terms of the reservation of the single justice, the case is to stand for further hearing upon these questions.
Decree accordingly.