The plaintiff in error filed its bill in the court below to restrain the defendants from making use of the name “ Hazelton Tripod Boiler Company,” “ Hazelton Boiler” and “ Hazelton,” or any of them, in their business of manufacturing and selling steam boilers, and particularly steam boilers of the type called “ Porcupine Boilers.”
The plaintiff contends that certain persons under whom it claims, having been in partnership with Milton W. Hazelton, one of the defendants, in the manufacture, in the city of Hew York, of steam boilers of á peculiar type, the name Hazelton boiler was accepted by the partnership so engaged, as a name by which the peculiar boiler manufactured by the firm should be 'known, that name being adopted because of certain patents theretofore taken out by Hazelton for boilers of a type similar to that manufactured by said firm; that after the adoption of said name the peculiar boilers made by said firm were so marked and were advertised and became generally known by said name; so that said name became a trade mark of said boilers, and a trade name belonging to said firm, and the right to use the same and the reputation thereof, apart of the good will of said business and an asset of said firm; that said Hazel-ton thereafter sold outall hisinterest in said firm and in and to all of its assets to one John P. Kennedy, and he and the remaining members of said firm have since conveyed all the assets of said firm, including said trade mark, trade name and good will, to the plaintiff, a corporation organized in the State of Hew York, June 23, 1888, for the purpose of carrying on said business.
The plaintiff contends that the said Hazelton, some three years after he so parted, with his interest in said business, came to Chicago and in conjunction with the other defendants, engaged in the business of manufacturing steam boilers of a type similar in appearance to those formerly manufactured , by Hazelton and his partners, in Hew York City, and now made by the plaintiff, and that the defendants advertised the same as the“ Hazelton. Tripod Boiler,” and by such manufacture and by many circulars and advertisements confuse and deceive the public into the belief that the- boilers they, the defendants, make in Chicago, are the same as those manufactured by the plaintiff in Hew York, and thus appropriate to themselves the trade mark, trade name and good will acquired and owned by the plaintiff as aforesaid.
The bill of sale made by Hazelton to John P. Kennedy was sufficient to, and undoubtedly transferred all of Hazelton’s interest in whatever the firm of which he was a member then possessed; if it then owned as a trade mark the name Hazelton Boiler,” or possessed the same as a trade name, or had any good will by virtue of the adoption and use of such name, Hazelton relinquished all right to the same; but he did not agree not to engage in the manufacture of boilers under his or any other name. Hot having covenanted not to again engage in the manufacture and sale of steam boilers, he had a right so to do; but in said business he could not make use of anything the exclusive property of another.
It is manifest that no person can, merely by adoption or use, acquire an exclusive right to the use of the name of another. A person can not make a trade mark of his own name and thus obtain a monopoly of it which will debar all other persons of the same name from using their own names in their own business. Meneely et al. v. Meneely et al., 62 N. Y. 427; Holloway v. Holloway, 13 Beav. 209; Faber v. Faber, 49 Barb. 357; Carmichel v. Latimer, 11 R. I. 395; Hardy v. Cutter, 3 U. S. Pat. Gaz. 468.
Hazelton is a common name, and when Kennedy and his associates in Hew York determined to and did call the boiler manufactured by them the “ Hazelton Boiler,” such adoption and use could not give to them a right to prevent every other person by the name of Hazelton from making boilers and calling them “ Hazelton Boilers.”
The right which they thus acquired was one in which the public have an interest, viz., that no one should make use of the term “ Hazelton Boiler ” in such a way as to deceive, or to induce purchasers to buy goods made by one party, under the impression that they were made by another.
A man may not make use of his own name for the purpose of deception, and such fraudulent use will be enjoined. Holmes, Booth & Haydens v. Holmes, Booth & Atwood Mfg. Co., 37 Conn. 278; McLean v. Fleming, 96 U. S. 245.
Subject to the restriction that a name shall not be used for a fraudulent purpose, or to a fraudulent end, one who has not contracted not to do so, may use his name in any lawful business, and apply it to any goods of his manufacture.
Doubtless no other corporation bearing the name Hazelton Boiler Company would now be created by the State of Hew York; and if application were now there made for the incorporation of a company bearing the name of “ The Hazelton Tripod Boiler Company,” such application might be denied, as being too similar to a name already authorized; but in the case at bar, the defendant corporation was organized and its name sanctioned by the State of Illinois before the creation in the State of Hew York of the plaintiff. The real question. in this case, is, therefore, have the defendants been guilty of fraudulent competition in business, or have they made such use of the plaintiff’s name as to deceive, mislead or confuse the mass of purchasers? Some slight confusion has arisen; inquiries in quite a number of instances have been made as to whether the boilers made by the two corporations are the same, and as to whether one house is a branch of the other, but in only one instance does any purchaser appear to have been misled, and that is not one of which the plaintiff can complain.
There is not such a resemblance between the goods manufactured by the two corporations or their circulars or advertisements as would deceive the ordinary mass of purchasers, and it has been held that unless there is a similarity such as would be likely to deceive the ordinary mass of purchasers, an injunction will not be allowed. Partridge v. Menck, 2 Sandf. Ch. 622, 687; Merrimack Mfg. Co. v. Garner et al., 4 E. D. Smith, 387.
It is not shown that the defendants have endeavored or intended to deceive anybody; we do not find that they have sought to palm off their goods as the manufacture of the plaintiff; on the contrary, the plaintiff shows that defendants have issued a circular warning the public not to confound the “Hazelton Tripod Boilers” with the “Hazelton;” and have also issued a statement that it, the “ Hazelton Tripod Boiler Company,” has no connection with “The Hazelton Boiler Co.” of New York.
Plaintiff urges that the issuance of these circulars shows that the defendants think there is danger of confusion, which may be so; but how does such apprehension on the part of the defendants warrant an injunction to deprive them of the use of their name? Why should not an injunction as well go against the plaintiff?
Clearly, for all legitimate purposes, the defendants have the same right to the use of the word Hazelton, that the plaintiff has, unless the plaintiff has such exclusive right to the word Hazelton, either as a trade mark or trade name, that no other person can use it; that, we have already seen, can not be the case. Hazelton may have been actuated by bad motives in engaging, in the city of Chicago, in the manufacture of steam boilers; his letters to the Kennedys are of such character that he admits he is ashamed of them, but the vulgarity and bad spirit displayed in his epistles can not add to the equitable rights of the plaintiff or deprive the defendants of the right to pursue a legitimate business in a legitimate way.
There is some evidence as to what Hazelton, before his sale to Kennedy, said as to his intentions about business, but all previous conversations were merged in the written instrument of sale; what that gives, Kennedy obtained; no more, no less
We see no reason for refusing to defendants the right to use the name the State of Illinois has given the defendant corporation.
We do not find any sufficient evidence that such name has been used for any fraudulent purpose, or with any intent to deceive or mislead the public, or that there has been, or is likely to be, such confusion as would deceive the ordinary mass of purchasers, or to call for the interference of a court of equity. The decree of the court below is therefore approved and affirmed.
Decree affirmed.