Tracy v. Banker
49 N.E. 308
Mass.
1898
Check Treatment
Holmes, J.

This is a bill in equity, brought under St. 1895, e. 462, § 3, by the officer of a voluntary association, as authorized by that section, to prevent the defendant from fraudulently using the association’s trades union label, and counterfeits of such label. The defences requiring notice are that the statute protects only-merchants or manufacturers, that the association is not of a kind that will be protected by the court, and laches.

The label is part of the well known machinery of trades unions, and the use of it is found, if a finding be necessary, to be of value to the union and its members. It would not be travelling too far from the record, perhaps, if we should assume that the use of the label is in fact, as certainly it might be, of far more economic importance to the union than are many or most of the trade-marks, strictly so called, which are protected by the courts. Nevertheless, technical difficulties, which would have been hard to escape from without some subtlety or a statute, prevented the plaintiff from recovering in a case like this. Weener v. Brayton, 152 Mass. 101. See State v. Bishop, 128 Mo. 373, 381. That was in 1890. Just before the argument of that case there was an attempt at legislation on the subject. St. 1890, c. 104. Three years later a statute was passed, which certainly looks as if it had been intended in part to meet that decision. St. 1893, c. 443. But this act was still somewhat under the influence of the notion that protection of the label was a protection of manufacture, and after an amendment by St. 1894, c. 285, it was repealed by the act of 1895, which still is in force. It is true that the present statute is entitled “ An Act to protect manufacturers from the use of counterfeit labels and stamps.” But we can see no sufficient room for doubt that it protects the plaintiff. The first section extends to “ any person, association, or union.” That unincorporated associations or unions were contemplated is shown by § 3, already referred to, which allows suits to be prosecuted by the officers of such associations or unions. It is impossible to believe that when the statute mentions unincorporated unions it does not refer to trade unions. It authorizes such unions to adopt, as well as to record a label. Therefore it creates a right, if the court is un*271able to recognize one without its aid. If it applies to trade unions, it must be taken to apply to them as they ordinarily are, that is, as associations of workmen, not as manufacturers or vendors of goods. It contemplates that the labels will be applied to merchandise, as of course they must be, and as these labels are. But it carefully abstains from using a word which implies that the protection or wrongful use of labels is confined to manufacturers or vendors. The policy of the statute is shown by the above cited amendment of 1894 to the earlier act, which had for its object to extend the liability to others beside manufacturers.

If, as we think, the statute expressly creates or recognizes the right of trade unions to be protected in the use of labels for trade union purposes, the suggestion that the association represented by the plaintiff is an unlawful association falls of itself. It is too late to make such a contention as to trade unions generally, even apart from the statute under which this suit is brought. But the general purposes of this union are similar, so far as we know, to the general purposes of other unions. The constitution as a whole is not illegal, and the association is not deprived of the protection of the law for what otherwise would be its rights, if in some incident or particular the purposes which it expresses are unlawful, which we do not imply. See Cohn v. People, 149 Ill. 486; Carson v. Ury, 39 Fed. Rep. 777; State v. Hagen, 6 Ind. App. 167, 173; State v. Bishop, 128 Mo. 373.

The plaintiff’s association had a label registered under the earlier statute- of 1893. The defendant has the boldness to urge that, because he began his attempt to defraud the union in 1894, before the act of 1895 was passed, after having been permitted on his application to use the label for a time, therefore the plaintiff’s union has no rights under the statute. We do not think the suggestion needs more than a statement.

The plaintiff has lost no rights through laches. Nudd v. Powers, 136 Mass. 273, 277, 278. Menendez v. Holt, 128 U. S. 514, 523, 524.

Finally, as the plaintiff makes out his right, it is to be protected against one form of swindling as well as another, —against the use of real labels in a fraudulent way, as well as against the use of counterfeits, if indeed the real labels as used by the defendant after mutilation are not counterfeits within the statute.

Decree for the plaintiff.