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TRADE-MARK IN TITLE OF CARTOON
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is based upon the common-law theory of fraud and deceit.138
Since the basis of the action is fraud, it is necessary that a fraudulent intent be actually proved, and that some actual damage be established.
It is hence readily apparent why an injured plaintiff prefers to go into equity for redress rather than into law.
Section 131. — Trade-mark in title of cartoon.
In a recent case the New York Supreme Court held that cartoons were to be treated as commodities of barter and sale and in like manner as tangible goods. It held that the title affixed to such cartoons and with which they had become identified to the public, would be protected against unfair use by third parties, and that such titles were in the eyes of the law trade-marks.
In view of the importance of this case because of the re
138 Hagan & Dodd Co. v. Rigbers (1907), 1 Ga. App. 100; 57 S. E. 970. “We have been unable, however, to find any case holding that jurisdiction of such subject-matters is exclusively with a court of equity; on the contrary, we think the principle clearly deducible from all the authorities is that a party who has been injured and damaged by a fraudulent use of his trade-mark, or by any unfair competition in trade, has an election of remedies. He may waive this purely equitable relief, such as accounting, dis
covery, injunction, etc., and sue at law for the damages that he has suffered as the result of such unlawful and unfair conduct.” Edelstein v. Edelstein (Eng.) (1863), 1 De G. J. & S. 185; Rodgers v. Nowill (Eng.) (1853), 6 Hare, 325; Day v. Woodworth (1851), 13 How. 363; Warner v. Roehr (1884), Fed. Cas. (C. C.) No. 17189A; Le Page Co. v. Russia Cement (1892), 51 Fed. (C. C. A.) 941; Southern v. How (Eng.) (1618), 2 Popham, 144; Thedford Medicine Co. v. Curry (1895), 96 Ga. 89.