The able argument in support of the majority opinion is so well calculated to produce the impression that the finding of the Superior Court leaves no possible basis for granting any relief to the plaintiff, that it will be necessary to examine the pleadings and finding somewhat carefully, to show the grounds for my dissent. If we exclude from paragraphs eleven to sixteen of the complaint all allegations of fraudulent designs and acts, there will remain the averments that the plaintiff is a corporation duly *159organized under the laws of this state, and that since 1859 it has been and now is extensively engaged in the manufacture of silver-plated spoons, forks and knives, and has large capital invested in that business; that in 1858 Asa H. and Simeon S. Rogers formed a partnership under the name of “Rogers & Brother,” and engaged in the business of manufacturing and selling silver-plated spoons and forks and knives, which was continued till December 18th, 1859, when the plaintiff corporation was organized and purchased the property, and succeeded to the business and all the rights of the partnership, that said partnership had adopted and used in its business the trade-mark “ * Rogers & Bro.” sometimes adding the suffix “Al”—stamping it upon the goods manufactured by said firm, and that the plaintiff upon succeeding to the business of said partnership, lawfully continued to use, and has ever since lawfully used, and intends in the future to use in its business said trade-mark with said suffix, stamping the same upon the spoons, forks and knives manufactured by it; that the sale of the plaintiff’s goods so stamped has been widely extended, and that owing to the skill and integrity'of the plaintiff in their manufacture they have constantly maintained a special, peculiar, good and valuable reputation among the trade and among purchasers generally, and that the business of the plaintiff has been largely built up and extended by such reputation, and is now largely dependent for its profitable continuance upon the reputation so attached to its goods by the use of such stamp thereon; that said trade-mark is of great value to the plaintiff and will continue to be so if the wrongful acts of the defendants shall be stopped] that the defendants, well knowing the premises, and knowing that if they could send spoons, forks and knives into market bearing a stamp that would cause them to be called “ Rogers goods” or by any of the names whereof the word “Rogers” is the specially conspicuous part, they could sell them much more readily and for a higher price than if the stamp did not contain the word “ Rogers; ” and intending to cause their goods to be called by some name of which the word *160“Rogers” forms the conspicuous part and so obtain advantage of the reputation which attaches to goods bearing the plaintiff’s trade-mark “ * Rogers & Bro. A1,” did, on or about the 15th day of June, 1883, begin the business of making and selling silver-plated spoons, forks and knives, and stamping upon them marks resembling said trade-marks of the plaintiff, and in particular the following, to wit: “ C. Rogers & Bros. Al,” and to send into the market and sell spoons, forks and knives so stamped, and have ever since continued so to do; that by reason of said facts the use by the defendants of the word “ Rogers ” as a stamp upon spoons, forks and knives will cause unwary purchasers to purchase the goods of the defendants so stamped, supposing them to be manufactured by the plaintiff, to the injury of the plaintiff; and that the plaintiff, on August 1st, 1883, requested the defendants to cease using the stamp aforesaid, but they then refused and still refuse.
Of the material allegations stated above the defendants admit that in 1858 Asa H. and Simeon S. Rogers formed a partnership under the name of “ Rogers & Brother,” and under that name engaged in the manufacture of silver-plated ware; that in 1859 the plaintiff corporation was organized under the name of “ Rogers & Brother,” purchased the property of the copartnership and succeeded to its business and has ever since been engaged in the manufacture of silver-plated spoons, forks and knives, and has a large amount of capital engaged in the business; and that the partnership “Rogers & Brother” during its existence stamped the goods of its manufacture with the name of said copartnership, either in full or in the abbreviated form of “Rogers & Bro.,” and that the plaintiff corporation has, since it engaged in the business, stamped the goods of its manufacture with its corporate name, either in full or abbreviated, and that said copartnership and corporation sometimes added to their mark “ Al.” They also admit the use of the star, and that the plaintiff’s goods while so stamped have had a good and valuable reputation in the public markets.
The defendants aver that they have been extensively *161engaged in business as manufacturers and sellers under their partnership name of “C. Rogers & Bros.” since 1866 ; their manufacture being principally that of silver-plated coffin trimmings; and that in that business their partnership name has acquired a high reputation and been of great value to them. And in reply to paragraphs eleven to sixteen of the complaint, they aver that they have been engaged in and are intending to carry on, in connection with their other silver-plated manufacture, the manufacture and sale of electro-silver-plated spoons, forks and knives, and have made a large investment therein, and that they have stamped upon the articles so manufactured their partnership name for the sole purpose of indicating that such articles are manufactured by them, and of availing themselves of the reputation which they (the defendants) have acquired in the public markets as before-mentioned.
This the defendants insist that they have a lawful right to do, and that the doing thereof can afford no lawful ground of complaint to the plaintiff.
The court finds (among other things) that when the plaintiff corporation was formed in 1859, both members of the partnership formed in 1858 (Asa H. and Simeon S. Rogers) were associates in such formation, and became stockholders and officers in such corporation, and that the corporation so formed “ acquired by purchase all the property and business of said firm, including its said stamp and good will, and has ever since used said stamp in its business, always stamping the same upon the back of the shank of the forks and spoons, and that the use of said stamp was never .objected to by any of said brothers; that the goods made by the plain tiff,, and stamped as aforesaid, have always been equal to or better than the goods made by said three' Rogers brothers, and have always had a high reputation in the market; that the standard of quality has not only been maintained, but the amount of silver put upon the goods has been increased from time to time, and the quantity of silver now used by the plaintiff is twenty-five per cent, in excess of that used by Rogers Brothers; that the plaintiff has also from time *162to time made improvements in the style and workmanship of the goods and has greatly improved the quality of its spoons by thickening the shanks; that the reputation of the plaintiffs goods is very much higher than was that of the goods made by said partnership; and that the plaintiffs knives, forks and spoons are of a quality much superior to those made by said partnership or by any other party prior to the organization of the plaintiff; that said stamp of the plaintiff has never been used except upon first quality goods, and the use of the same has been and is of great value to the plaintiff; that prior to the acts' complained of the spoons knives and forks dealt in by the defendants were wholly of the manufacture of other parties than themselves, except as they were at one time connected with Chas. Parker, under an arrangement which appears in the case of Meriden Britannia Company v. Parker, 39 Conn. Reps., 450; that the defendants have never stamped any of their goods with any mark, name or trade-mark except as the spoons, forks and knives made by them recently have been stamped as herein stated; and that their stamp “C. Rogers & Bros. Al” is stamped upon the backs of the spoons and forks in the same manner and place as the plaintiffs goods are and have been stamped.
The majority of the court, in their opinion, after referring to various uses of the name “Rogers ” by one or other of the brothers, most of which have been abandoned for many years and which do not seem to have any material bearing upon any question in tins case, say:—“ Thus with reiteration the court below emphasizes the fact that the word ‘ Rogers ’ is the controlling word, the one thing that is the basis of all possible confusion or mistake in the use of the two stamps. * * * There is no finding or suggestion of fact that any other part of the defendants’ stamp is answerable in any degree for that liability to mistake. * * * If any other part of the stamp, in configuration, collocation, or combination of words, figures or symbols, or in any other respect, contributed in • any manner to deceive possible purchasers and enable the defendants to sell their *163goods as those of the plaintiff, it should so have been found by the trial court.”
To this construction of the finding, that confines the resemblance between the stamps entirely to the word “ Rogers,” excluding every other possible misleading similarity, I do not assent, because it entirely ignores the distinct finding that “ the general resemblance between the stamps is such that a person knowing that of the plaintiff and not knowing that of the defendants might, upon referring to it, but not reading it attentively, mistake it for that of the plaintiff.” This finding, and the construction I give it, are both emphasized by the fact that the trial court made the exhibits a part of the finding to be submitted for inspection and comparison by the judges of this court, surely not for the futile and foolish purpose of enabling us to see that the word “ Rogers ” in one stamp was like the word “ Rogers ” in the other, but that we might see how striking was the resemblance between the two stamps in their entirety, “'^Rogers & Bro. Al,” and “0. Rogers & Bros. A1,” as actually impressed upon the metal in characters identical in style, size and space occupied,—making the closeness of the resemblance and the probable effect in misleading purchasers more apparent than would appear from any mere verbal description.
In order to illustrate the use and benefit of exhibits in questions of this kind, it may be allowable to compare the impression actually made by the star prefix of the plaintiff’s stamp with the “ C.” of the defendants’ stamp. As they appear on the printed page, nothing could well be more dissimilar, and yet such is not the fact as seen in the exhibits, for both consist of very small circular indentations in the metal, and owing to the small size the distinguishing points are obscure, so that as addressed to the eye upon casual or ordinary examination there is great similarity, even where we would not expect to find it.
But it is not my purpose to supplement the finding by adding my own inferences of fact. The exhibits, however, *164being legitimately before us as a part of tbe case, it was our duty to examine them.
For the purposes of this discussion, however, I have no occasion to use the exhibits for any other purpose than to aid the interpretation and to make more clear the purpose and meaning of that part of the finding, which in'a measure seems to have escaped the attention of the majority of the court, notwithstanding the great thoroughness and ability of their argument. That the plaintiff has a good and very valuable trade-mark is beyond all question. As a property right it is as sacred as any other. The stamp adopted by the defendants to some extent operates to personate the plaintiff’s and to mislead at least incautious and unwary purchasers. So that-profits of right belonging to the plaintiff may fall into the hands of the defendants to whom they do not belong. For such a state of things there ought to be a remedy, and I think there is one founded upon the authority of numerous decisions, some of which were referred to by this court, with approval, in the late cases of Williams v. Brooks, 50 Conn., 278, and Meriden Britannia Co. v. Parker, 39 Conn., 450.
In Williams v. Brooks this court, remarking upon the finding that those liable to be deceived “ were only careless and unwary purchasers,” says (p. 283:)—The purpose to be effected by this proceeding is not primarily to protect the consumer but to secure to the plaintiffs the profit to be derived from the sale of hair-pins of their manufacture to all-who desire and intend to purchase them. It is a matter of common knowledge that many persons are in a greater or less degree careless and unwary in the matter of purchasing articles for their own use; but their patronage is not for that reason less profitable to the manufacturer; and when such persons have knowledge of the good qualities of the plaintiffs’ hair-pins, and desire to purchase them, the law will not permit the defendants to mislead them.” The court then quotes the following from the opinion of the court in Singer v. Wilson, L. R., 3 App. Cases, 376:— “ There are multitudes who are ignorant and unwary, and *165fcliey should be regarded in considering the interests of traders who may be injured by their mistakes. If one man will use a name the use of which has been validly appropriated by another, he ought to use it under such circumstances and with such sufficient precaution that the reasonable probability of error should be avoided, notwithstanding the want of care and caution which is so commonly exhibited in the course of human affairs.”
In Meriden Britannia Co. v. Parker it was found “ that the stamp of the defendant, ‘ C. Rogers & Bros. A1,’ resembled the petitioners’ trade-mark ‘1847 Rogers Bros. A1,’ to that degree that it was calculated to deceive unwary purchasers and those who buy such goods hastily and with but little examination of the trade-mark; but purchasers who read the entire trade-mark on the respondent’s goods and who know the petitioners’ trade-mark cannot be deceived, nor can they mistake the respondent’s goods for those of the petitioners.” 39 Conn. 455.
Upon the finding in that ease the court remarked that “ the fact that careful buyers, who scrutinize trade-marks closely, are not deceived, does not materially affect the question. It only shows that the injury is less, not that there is no injury.” Id. 460.
But if the resemblance be found sufficient to mislead, as in the Parker case, it is still contended that as the defendants here only use their own partnership name, they may, upon the pleadings and finding in this case, lawfully appropriate to themselves the entire advantage which, in that case, was to be divided between themselves and Parker, and that this plaintiff must continue to suffer, without relief, all the damage from which the plaintiffs in that case were protected by injunction.
But in deciding this question of infringement the only difference between the case of one who uses a name, not his own, as a stamp, and one who uses his own name, is that, in favor of the owner of the stamp claimed to have been imitated and infringed, the former is presumed to *166use it for a fraudulent purpose, while, as to the latter, such purpose must be proved.
Here it is found that “ the defendants, in commencing the manufacture of such articles, had in view the popularity in the market of such goods bearing a stamp containing the word Rogers, and one inducement to commencing such manufacture was the advantage they might derive from having their goods so stamped.”
This is clearly sufficient for the plaintiff, unless the fact that such “ popularity ” was not the sole property of the plaintiff prevents the maintenance of this suit without joinder as co-plaintiffs of the other parties interested in the reputation and popularity which the defendants intended to appropriate.
That question arose in the case of The William Rogers Manufacturing Co. v. The Rogers & Spurr Manufacturing Co., and was then disposed of by Judge Lowell as follows: “ It is further argued that the Rogerses are so many that the court cannot find any intent to appropriate the reputation of one of them more than another, and that if any suit will lie it must be by all those who use any trade-mark whose distinctive feature is the name ‘ Rogers.’ I believe it to be true that the Greenfield Rogerses did not inquire, nor did the defendants care, whose reputation they were making available; but I am of opinion that any' one of those who rightly use the name may enjoin the interfering use by others.” 11 Fed. Reporter, 500.
'That the plaintiff has built up the reputation and established the popularity in the markets of goods stamped with a stamp the conspicuous word of which is “ Rogers,” and is a principal, if not the sole owner of such reputation, is alleged and clearly found; also, that the defendants intended to appropriate the advantage to be derived from securing such reputation for their goods to their profit, and that this was an inducement- to their commencing the business.
As was said by Baggallay, L. J., in the Thorley Cattle Food Case, “I am satisfied on the whole transaction (as *167set forth in the' finding) that the object was to obtain a large slice of the business previously ca.ried on by the plaintiffs.” L. R., 14 Ch. Div.,748.
But in our reasoning we are confronted with the proposition that, notwithstanding the positive findings of the court to which we have referred, the case of the plaintiffs, as set forth in the complaint, is so met and controlled by the negations in the finding as to prevent the plaintiff from obtaining any relief. The pleadings are reviewed somewhat briefly in the majority opinion, and the claim is made that the trial court has wholly negatived the allegations that the defendants were actually and intentionally fraudulent in the use of their stamp, and that in saying that the allegations of fraudulent design contained in article sixteen of the complaint are found not true, goes further, and negatives also the constructive fraudulent design implied in that article. But upon careful examination, the finding, when applied to the pleadings (the substance of which we have given) brings me to a different result.
The principal contention between the parties in their pleadings grows out of the allegations of positive fraudulent acts, or of constructive fraud, necessarily resulting from the acts set forth in paragraphs eleven to sixteen inclusive of the complaint. The defendants (without in terms denying the fraudulent intent and acts charged) aver that, as to those paragraphs, they have been engaged in, and are intending to carry on, the manufacture and sale, as set forth, “for the sole purpose of indicating that such articles are manufactured by them, and of availing themselves of the reputation which they (the defendants) have acquired in the markets, as before mentioned.”
The affirmative allegations of the plaintiff are met by the affirmative counter and inconsistent averment of the defendants, thus creating an issue to be passed upon by the trier, who distinctly negatives the claim of the defendants by finding, in effect, that the “ popularity which the defendants had in view,” and from which they wished “ to derive advantage,” was not the “reputation which they *168(the defendants) had acquired in the markets in their business.” The defendants’ previous business is expressly found not to have included the manufacture of silver-plated spoons, forks and knives, stamped with the name “Rogers.” On the contrary, this was the business found to have been established by the plaintiff and others, under whom the defendants do not claim.
In dissenting from the views of the majority of the court I do not find it necessary to hold that the fair and honest use of a name can be enjoined when it is used in the ordinary course of business in the way and manner in which other manufacturers of similar goods are accustomed to usp their own names in the preparation and sale of goods, for I do not regard this as such a case. It belongs rather to the class of cases referred to by Judge Lowell in the ease before cited (11 Fed. Reporter, 495), where he says: “ The books are full of cases in which defendants have been restrained from using their own names in a way to appropriate the good-will of a business already established by others of that name.”
I think there was error in the judgment complained of.
If any decree of injunction was to be passed I would prefer to give it more careful consideration before fixing its precise terms. I will merely add that my impression is that the defendants should have been enjoined from such use of the combination of words, “ C. Rogers & Bros.,” on silver-plated knives, spoons and forks, and from such, use of the word “Rogers” as part of any stamp or mark on the shank of silver-plated spoons and forks in connection with or without the suffix “ A 1,” as that purchasers will be liable to believe that spoons, forks and knives, so marked and made by the defendants, were made by the plaintiff.
In this opinion Park, C. J., concurred.