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MARKS AND DEVICES
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symbol or mark,120 while in the other class of cases, fraud or a fraudulent intent must be actually proven or indicated by the facts.121
The tendency at the present time, however, is to eliminate all these fine distinctions, and to view the offender in the broad light of unfair competition generally.122 As in the law of trade-names, prior user gives the exclusive right.123 Also the same rules with respect to acquiescence and abandonment apply.
The registration of a trade-mark gives no greater rights to the owner; its practical effect is to create a presumption
to cause such deception see: Hubinger v. Eddy (1896), 74 Fed. (C. C.) 551, where a manufacturer of starch used as a trade-mark a flat-iron and the defendant used a trade-mark consisting of a picture of a colored woman holdup in her extended arms a freshly ironed shirt bosom, underneath which was a table upon which a small sized flat-iron appeared.
Liggett and Myers Tobacco Co. v. Finzer (1888), 128 U. S. 182; 9 Sup. Ct. 60, where complainant’s trade-mark consisted of a star of tin and defendant’s of a red star on a round piece of gilded paper with the word “light” underneath and other words referring to the defendant as the manufacturer.
120 Simmons v. Mansfield (1893), 93 Tenn. 84; 23 S. W. 165; Law
rence Mfg. v. Tennessee Mfg. (1891), 138 U. S. 537; 11 Sup. Ct. 396; Tobacco Co. v. Hynes (1884), 20 Fed. (D. C.) 883; Coffeen v. Brunton (1849), Fed. Cas. (C. C.) 2946; Millington v. Fox (Eng.) (1838), 3 Mylne & C. 338; Johnston v. Orr-Ewing (Eng.) (1882) , 7 App. Cas. 219; Edelstein v. Edelstein (Eng.) (1863), 1 De Gex J. & S. 185; Manufacturing Co. v. Wilson, 3 App. Cas. 376.
121 Hostetter v. Brueggeman (1891), 46 Fed. (C. C.) 188.
122 Denison Mfg. Co. v. Thomas Mfg. Co. (1899), 94 Fed. (C. C.) 651; Church & Dwight v. Russ (1900), 99 Fed. (C. C.) 276; Reymer & Bros v. Huyler’s (1911), 190 Fed. (C. C.) 83.
123 Hainque v. Cyclops Iron Works (1902), 136 Cal. 351; 68 Pac. 1014.