Unwary Purchaser

Authors

Edward S. Rogers

Abstract

Anyone who has occasion to examine the cases involving trade mark infringement and other forms of unfair trading by the imitation of names, labels, packages and the like, must at once be struck by their irreconcilable conflict. While, of course, the facts in no two cases are alike, this diversity cannot account for the variance in result. The rule of law to be applied is not seriously disputed. The Lord Ordinary's definition of infringement, in Smith v. Carron, 13 R. P. C. 109, III, can hardly be improved upon: "A trade mark is infringed when goods are sent into the market so marked, that in passing from hand to hand, they are liable to be mistaken by ordinary purchasers, not applying their minds very closely to the matter, for the goods of the trader who is the proprietor of the mark." There are endless modifications of this statement of the law, some more strict, others even more liberal, but there is substantial agreement that infringement occurs, when the marks, names, labels or packages of one trader resemble those of another sufficiently to make it probable that ordinary purchasers exercising no more care than such persons usually do in purchasing the article in question will be deceived.

Recommended Citation

Edward S. Rogers, Unwary Purchaser, 8 Mich. L. Rev. 613 (1910).
Available at: https://repository.law.umich.edu/mlr/vol8/iss8/1