parts  of  Australia.     Defendants  Alcorn    (1893),    ir)0   U.    S.   460;

threatened  to  produce  an  entirely  14  Sup.  Ct.  UA ;  Caswell  v.  Hazard

dissimiliar   play   under   the  title  (1S90),  121  N.  Y.  4S4;  24  N.  E.
"The  Wrong  Mrs.  Wright"  in  a  707.
placein  Australia  where  the  plain-  ^^  George  v.   Smith   (1892),   52

tilT's  play  had  not  yet  been  per-  Fed.  (C.  C.)  S^iO.    "  It  is  the  party

formed       and       as       defendants  who  uses  it  first  as  a  brand  for

claimed,    where    jjlaintifT's    play  his  goods,  and  l)uilds  up  a  l)usi-

was    entirely     unknown.       Held  ness  under  it,  who  is  entitled  to


IISINCi    SAMK    Olt    SIMlLAlt    'J'lTLKS  111

Tho  monopoly  of  the  title  is  arquirod  by  him  who  lirst
appr(»|)riat('s  and  not  by  tho  man  who  was  the  first  to
suggest,  design,  invent  or  conceive  the  title:  So  that  a
mere  deposit  of  the  work  and  title  in  the  office  of  the
Register  of  Copyrights  is  not  actual  user.'-  And  if  one
releases  a  motion  j)icture  jirior  to  another  motion  picture
having  the  same  title,  which  has  been  previously  copy-
riglited,  ))ut  not  released,  e(iuity  will  protect  tho  former,
for  that  one  is  entitled  to  the  benefits  accruing  from  prior
user.  The  l)urden,  however,  is  upon  the  plaintiff  to  show
that  he  was  the  first  to  use  the  title.'''

But  it  is  interesting  to  note  that  the  cases  are  not  very
clear  as  to  what  constitutes  prior  user.
