"The    question,    'What's    in    a
name?'  has  been  answered  by  the
courts   in   many   well   considered
cases,  wliere  the  exclusive  rigiit
to  a  name  possessed  or  owned  by  a
successful  business  enterprise  lias
been   niaintaincd   against   imita-


USING   SAME    OR   SIMILAR    TITLES


417


"A  Fool  There  Was"  secured  an  injunction  against  the
defendant  which  had  produced  a  motion  picture  under
the  same  title.
is  a  new  and  original  dramatic
arrangement.  It  is  a  fraud  upon
the  public,  as  iccU  as  upon  the  com-
plain-ant,  to  attempt  to  do  so."  In
Ball  V.  Broada-ay  Bazaar,  104
X.  Y.  435,  Werner,  J.,  writing
for  the  court,  says:  "Although  we
agree  with  the  learned  AppeUate
I)ivi.<ion  in  recognizing  the  tech-
nical di.stinction  between  trade
marks  and  trade  names,  we  think
the  same  fundamental  principles
of  law  and  equity  are  applicai)lc
to  both.  '.\11  such  cases,  whether
of  trade  mark  or  trade  name  or
other  unfair  use  of  another's
reputation,  are  concerned  with
an  injurious  attack  upon  the  good
will  of  a  rival  business;  customers
are  diverted  from  one  trader
to  another,  and  orders  intended
for  one  find  their  way  to  the  other'
(Sebastian  on  the  Law  of  Tratle
Marks,  p.  17).  Trade  marks  and
trade  names  are  in  reality  anal-
ogous to  the  good  will  of  the
business  to  which  they  apixr-
tain.  The  trade  mark  represents
it  in  the  market,  and  the  trade
name  proclaims  it  to  those  who
pass  tlie  shop.  In  either  case
such  unfair  conduct  as  is  calcu-
lated to  deceive  the  public  into


tors  and  wrongdoers  who  sought
by  an  unauthorized  use  to  de-
ceive the  public  and  profit  by
the  wrong."  Frohman  v.  Payton,
34  Misc.  275;  Hopkins  Ajiius.  Co.
V.  Frohman,  202  111.  541;  Oul-
cault  V.  Lamar,  135  App.  Div.
