Hopkins Amusement Co. v. Frohman

Mr. Presiding Justice Freeman delivered the opinion of the court. Appellant’s principal contention is that “the bill of complaint does not set up a case recognizable by any court, where, as here, it is sought to maintain an alleged trademark right, based on common law rights, for a literary production, wholly unconnected and disassociated from merchandise or mercantile business.” It seems to be assumed that a trade-mark right can not be maintained except where the trade-mark is applied to articles of merchandise to indicate “ ownership and origin, and carry with it a guaranty of character and quality.” The right to protection is not thus limited. The names of publications, arbitrarily selected, may be and frequently have been protected as trade-marks. In Robertson v. Berry, 50 Md. 591-596, it is said : “ A publisher or author has, either in the title of his work or in the application of his name to the work, or in the particular marks which designate it, a species of property similar to that which a trader has in his trademark, and may, like a trader, claim the protection of a court of equity against such a use or imitation of the name, marks or designation as is likely in the opinion of the court to be a cause of damages to him in respect of that property.” In the case at bar the drama entitled “ Sherlock Holmes ” has not'been copy-righted. Its authors, and appellee as their grantee, are nevertheless entitled to protection against unlawful invasion of their rights. It is said by Justice Clifford in McLean v. Fleming, 96 U. S. 245-252, “ the court proceeds on the grounds that the complainant has a valuable interest in the good will of his trade or business, and having adopted a particular label, sign or trade-mark indicating to his customers that the article bearing it is made or sold by him or by his authority, or that he carries on business at a particular place, he is entitled to protection against one who attempts to deprive him of his trade or customers by using such labels, signs or trade-mark without his knowledge or consent.” In the case before us it appears that appellee is the owner, by contract with the authors, of the exclusive right to produce the play based upon a character created in a book by A. Conan Doyle, the play having been prepared by said Doyle in connection with one Gillette, a dramatist and actor, and that they adopted the name “Sherlock Holmes” for said drama as their trade-mark to distinguish it from all other productions, plays or dramas. This play has been performed in many places and the receipts from its performance have been large. The bill asserts and the demurrer admits, the adoption of the name “ Sherlock Holmes, Detective,” is an effort on the part of appellant to obtain some advantage from the advertising done by appellee and the reputation acquired for the original play by its successful production. One seeing appellant’s advertisement of a play entitled “ Sherlock Holmes, Detective,” would naturally suppose, unless particularly advised to the contrary, that it is the same play containing the same character described in Doyle’s book and in the dramatization advertised and produced by appellee. If, as the bill asserts, the play advertised by appellant under the name “ Sherlock Holmes, Detective,” is inferior to the original, it is apparent that the latter may suffer in reputation by the production of an inferior play under a name so closely identified with that produced by appellee. It is alleged in the bill that appellant is attempting to deceive the public by the production of its play under the name of the original character. As said in Hatsell v. Flannagan, 2 Abb. FT. S. 459, “ the enforcement of the doctrine that trade-marks shall not be simulated does not depend entirely upon the alleged invasion of individual rights, but as well upon the broad principle that the public are entitled to protection from the use of previously appropriated names or symbols in such a manner as may deceive them by inducing or leading to the purchase of one thing for another.” It is apparent that whether such was the intention or not, the name used by appellant is well calculated to deceive the public and give the impression that appellants are producing the original drama known as Sherlock Holmes. Equity will restrain such unauthorized use of a trade-mark. Taylor v. Carpenter, 11 Paige, 292; Hennessy v. Wheeler, 69 N. Y. 271; Walton v. Crowley, 3 Blatch. 440. As the owner of “ the exclusive right to produce, perform and represent said drama under the title ‘ Sherlock Holmes’” in the United States, appellee is entitled to maintain the bill. Objection is made that the decree does not find any facts. It finds that the allegations of the bill are true. Appellant did not answer but stood on his general demurrer, thus admitting all facts well pleaded. Harris v. Cornell, 80 Ill. 54-62. The bill is properly verified, and its material averments justify the decree. Finding no error in the record the decree of the Circuit Court is affirmed.