Dissenting Opinion.
Comstock, P. J.The allegations of the complaint characterize the acts of appellees as fraudulent, but there are no direct allegations of facts sufficient to constitute fraud. It must be presumed, in the absence of any averment of fact to the contrary, that the appellees have the right to manufacture the cheese cutter in question, and at Anderson.
A trade-mark must have some physical connection with the goods, so that the mark goes with the goods into the market. The same rule applies to trade-names. Jay v. Ladler (1888), 40 Ch. Div. 649; Singer Mfg. Co. v. Wilson (1876), 2 Ch. Div. 434; Hazelton Boiler Co. v. Hazelton Tripod Boiler Co. (1892), 142 Ill. 494; Moxley Co. v. Braun & Filis Co. (1900), 93 Ill. App. 183; SI. Louis Piano Mfg. Co. *28v. Merkel (1876), 1 Mo. App. 305; Oakes v. St. Louis Candy Co. (1898), 146 Mo. 391, 48 S. W. 467; 28 Am. and Eng. Ency. Law (2d ed.), 351, 352.
‘ ‘ It is a fundamental rule that terms merely descriptive of the goods or business to which they are applied cannot be exclusively appropriated as trade-marks or .trade-names.” 28 Am. and Eng. Ency. Law (2d ed.), 369.
The same reasons which forbid the exclusive appropriation of generic names, or of those merely descriptive of the article manufactured, which can be employed with truth by other manufacturers, apply with equal force to the appropriation of geographical names designating districts of country. Descriptive terms by long use may acquire in the minds of the public a secondary significance, and come to mean the goods of that particular person. In such cases others cannot use them in such manner as to state a falsehood in their secondary sense.
The word “computing” is the descriptive term used by appellant. 'It is not used by appellees. If it were, it, being only descriptive, could not be appropriated by one to his exclusive use.
An arbitrary name used by a party to designate the name of an article may be protected. The term “computing” is not arbitrary. Both appellant’s and appellees’ machines are so designated that any one can easily learn by whom they are made. The term ‘ ‘ cheese cutter, ’ ’ used by a particular person or corporation, cannot be so used to the exclusion of other manufacturers.
It appears that appellant and appellees are engaged in the manufacture of cheese cutters in Anderson, Indiana. Appellees use the name “Anderson” in their trade-name, the other does not. Appellees, in the use of the geographical name “Anderson,” not used in a fanciful sense, invade no right of appellant. United States v. Roche (.1879), 1 McCrary (U. S.) 385; Globe-Wernicke Co. v. Brown (1903), 121 Fed 185; Computing Scale Co. v. Standard, etc.., Scale Co. *29(1902), 118 Fed. 965, 55 C. C. A. 459; Sterling Remedy Co. v. Gorey (1901), 110 Fed. 372; Hostetter Co. v. Martinoni (1901), 110 Fed. 524; Shaver v. Heller & Merz Co. (1901), 108 Fed. 821, 48 C. C. A. 48, 65 L. R. A. 878; Wells & Richardson Co. v. Siegel, Cooper & Co. (1900), 106 Fed. 77; Hansen v. Siegel, Cooper & Co. (1900), 106 Fed. 691; Williams v. Mitchell (1901), 106 Fed. 168, 45 C. C. A. 265; Fuller v. Huff (1900), 104 Fed. 141, 43 C. C. A. 453, 51 L. R. A. 332 ; Searle & Hereth Co. v. Warner (1902), 112 Fed. 674, 50 C. C. A. 321; Dadirrian v. Yacubian (1900), 98 Fed. 872, 39 C. C. A. 321; 28 Am. and Eng. Eney. Law (2d ed.), 371.
The trade-mark or trade-name must, either by itself or by association, point distinctively to the origin or ownership of the article to which it is applied. No one can claim protection for the exclusive use of a trade-mark or trade-name which would practically give him a monopoly in the sale of any goods other than those produced or made by himself. If he could, the public would be injured rather than protected, for competition would be destroyed. Delaware, etc., Canal Co. v. Clark (1871), 13 Wall. 311, 323, 20 L. Ed. 581.
That persons, not knowing the true name of appellant corporation, address it by an entirely different name — the name selected by appellees — cannot deprive appellees of the right to use the name it has assumed. It is only where the adoption or imitation of what is claimed to be a trade-mark or trade-name amounts to a false representation, express or implied, that there is any room for relief against such use.
It was said in Delaware, etc., Canal Co. v. Clark, supra, at page 327: ‘‘True it may be that the use by a second producer, in describing truthfully his product, of a name or a combination of words already in use by another, may have the effect of causing the public to mistake as to the origin or ownership of the product, but if it is just as true in its application to his goods as it is to those of another who first applied it, and who therefore claims an exclusive right to use it, there is no legal or moral wrong done. Purchasers *30may be mistaken, but they are not deceived by false representation, and equity will not enjoin against telling the truth. ’ ’
Eliminating the conclusions of the pleader, recitals and characterizations, fraud,, misrepresentation and deceit of the public are not directly charged. It appears only that appellee corporation, under the name of “The Anderson Cheese Cutter Company, ’ ’ is engaged in the manufacture, at Anderson, Indiana, of a cheese cutter. Fraud cannot be predicated upon acts which the party charged has the right by law to do, whatever may be his motive, design or purpose. Franklin Ins. Co. v. Humphrey (1879), 65 Ind. 549, 560, 32 Am. Rep. 78; Coppage v. Gregg (1891), 127 Ind. 359, 362.
. The words “cheese cutter” are a generic term. The word “Anderson” is a geographical term. No one is entitled, in the absence of fraud, to the exclusive use of either. The right to make, and, without fraud, to sell the machine cannot be questioned. If appellees have the right to carry on the business, they have the same right as appellant, under like circumstances, to receive through the United States mails letters or orders which they have reason to believe are intended for them. The court could not determine in advance for whom a letter or order is intended, when it is not correctly addressed to the person by whom it may be claimed.
The judgment should be affirmed.
Rabb, J., concurs in dissenting opinion!