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RELIEF
453
Where the defendant had originally manufactured and sold “Royal” baking powder and had become bankrupt, he could not after a lapse of twenty-three years, resume the use of that trade name, the plaintiff having in the meantime built up a large business under the same trade name.105
Some writers have sought to draw a distinction between “laches” and “acquiescence” although the terms have been used interchangeably by the courts. We cannot see any real distinction between the two. Both involve knowledge on the part of the plaintiff of the defendant’s invasion of his rights. Both contemplate a standing by and a tacit permission to the defendant to continue his infringement.
Section 126. — Relief.
In actions of this kind the plaintiff is entitled to an injunction, an accounting of defendant’s profits, and damages sustained by him. It does not necessarily follow that in every case the plaintiff is entitled to all these modes of relief. He is ordinarily entitled to an injunction where he has not abandoned the title.106
Whether he is entitled to an accounting or damages is a question to be determined from the facts of each particular case. The cases thus far have not laid down uniform rules. For instance, in several cases the use of the identical title was held sufficient to entitle the plaintiff
105 Royal Baking Co. v. Raymond (1895), 70 Fed. (C. C.) 376.
106 Le Page Co. v. Russian Cement Co. (1892), 51 Fed. (C.C. A.)
941; Noebius v. De Jonge & Co. (1914), 215 Fed. (D. C.) 443; United Drug Co. v. Rectanus Co. (1913), 206 Fed. (D. C.) 570.