
    Gillott, Respondent, v. Kettle, Appellant.
    The plaintiff was a manufacturer of steel pens, which were put up for sale in boxes. Those containing pens of the first quality were labelled Bo. 303, and those containing pens of an inferior quality were labelled Bo. *753. The complaint charged that the defendant was in the practice of removing the labels from the boxes last mentioned, and putting thereon labels numbered 303, closely imitating the plaintiff’s labels bearing that number. .
    
      Held, that this practice of the defendant was a fraud upon the public and the plaintiff, and being a fraud productive of damage, could be restrained by injunction.
    (Before Oakley, O. J., and Bosworth, Hoffman, and Slosson, J.J.)
    March 11, 1854.
    Ttttr is an appeal by the defendant from an order enjoining him, as hereinafter stated. The papers on which .the injunction was granted, show that the plaintiff is, and for a long time has been, extensively engaged in the manufacture of steel pens at Birmingham in England. That the pens made by him are well known, as such, in the market, and are extensively sold, as well in the United States, as in the country in which they are made. That large quantities of them are sold in boxes containing one gross each. That each box is labelled in a manner, and with a label having devices on it, which indicate that the plaintiff' is the manufacturer of the pens, and in consequence of which they are bought and sold in the market as pens made by him. That the labels have numbers, or marks, impressed on them, which indicate, and which are recognised by dealers as indicating, an actual difference in the quality of the pens. The pens in boxes numbered 303, are bought and sold as being an extra fine pointed, and are in fact such. The pens in boxes numbered 753, are of an inferior quality, are bought and sold as such, and that number is understood by dealers to denote that they are an inferior pen. The former are sold by the plaintiff at about 75, and the latter at about 18, cents a gross.
    From the boxes containing the plaintiff’s label or trade marks, and bearing the number 753, the defendant was in the practice of removing the plaintiff’s label, and putting on, in place thereof, labels which he made or caused to be made, closely imitating the genuine labels of the plaintiff, which bear the number 303.
    That this act was productive of great injury to the plaintiff, by destroying public confidence in his honesty, and bringing the pens made by him into discredit, by reason of his inferior pens being disposed of as being his best pens. The defendant was enjoined, by an order made by Hr. Justice Hoffman, from continuing this practice, and from that order the defendant appeals.
    
      A. H. Wallis, for appellant.
    
      G. C. Goddard, for respondent.
   By the Court. Bosworth, J.

The fraud complained of consists in selling an inferior article of the plaintiff’s manufacture, gs being one of a superior quality. The fraud, to the extent that it may be successful, is twofold. The public is ■ defrauded by being induced to buy the inferior for the superior article. The plaintiff is defrauded by an unjust destruction of confidence, that his pens are put up for sale, and assorted with reference (¡O' the quality,, indicated to dealers by the labels on the boxes which contain them. From an order, restraining the continuance of this fraudulent practice, the defendant has appealed.

This case differs- from those in which a manufacturer seeks to restrain third persons from using and placing upon articles made by themselves, the device or trade-mark of the former, by which articles of his own manufacture are known to be his, and are recognised, as such, in the market.

The ground on which a court of equity exercises jurisdiction in those cases, is the prevention of fraud and of damages, consequent upon it, that might be irreparable.

In this case, the defendant has not attempted to sell an article made by himself, by "fraudulently creating the impression that it was made by the plaintiff. But he has attempted to sell an article made by the plaintiff to he sold as an inferior one of his own manufacture, and so labelled by him as to- denote to dealers that fact, by removing the label and putting in its place a spurious one, so nearly imitating another genuine label used by the plaintiff on his best quality of pens, as to be calculated to induce- a belief that it was put on the boxes by the plaintiff himself, and which, label denotes to traders that the boxes on which it is placed, contain- pens of á better quality than was indicated by the label, for which the- spurious one was substituted.

By such a practice, the defendant “ endeavors, by a false representation, to effect a dishonest purpose; he commits a fraud upon the public and upon the manufacturer. The purchaser has imposed upon him an article that he never meant to buy, and the manufacturer is robbed of the fruits of the reputation that he had successfully labored to earn. In such a case there is a fraud coupled with damage, and a court of equity, in refusing to restrain the wrongdoer by injunction, would violate the principles upon which a large portion of its jurisdiction is founded, and abjure the exercise of its most important functions—the suppression of fraud, and the prevention of a mischief that otherwise may prove to be irreparable.”

These were stated, and as we think correctly, by Hr. Justice Duer, in the Amoskeag Manufacturing Co. v. Spear (2 Sandf. S. C. R. 606), to be the principles on which rests the jurisdiction exercised, to restrain the violation of a right acquired to use particular trade-marks.

Fraud and damage resulting from it, always entitle the injured party to relief. The remedy by inj unction is-invariably granted, when the nature of the injury is such that a preventive remedy is indispensable and should be permanent. It is obvious, that in cases like this,- if the injured party is obliged to seek redress by actions to recover damages, there will be no end to litigation,, and certain and adequate relief must be unattainable.

We all concur in the conclusion, that the order appealed from is not erroneous, and that it should be affirmed with costs.  