Pardee, J.
This is a complaint for an infringement of a trade-mark, asking for an injunction and damages.
Between the years 1847 and 1850 William Rogers, Sr., acquired and preserved to his death in 1873 a valuable *562reputation in the market as a skillful and honest manufacturer of silver-plated ware. His son "William Rogers, Jr., from boyhood had connection with the manufacture of such ware by the various concerns with which his father was connected. By reason thereof since 1864 to this present he has had a valuable independent reputation in the market for skill and integrity in such manufacture.
The plaintiff is a corporation organized in 1872 and engaged in the manufacture of silver-plated ware at Hartford, using since its organization trade-marks as follows:—“Wm. Rogers Mfg. Co.”, “1865 Win. Rogers Mfg. Co.”, and “(Anchor) Wm. Rogers & Son;” claiming to own the exclusive right to them by the assent of William Rogers, Sr., and by long continued use, and denying to the defendant and William Rogers, Jr., the right to use any stamp of which the word “ Rogers ” shall be a distinctive and characteristic part.
The defendant is a corporation engaged hr the manufacture of silver-plated ware at Wallingford, Connecticut. In 1878 it made a contract with William Rogers, Jr., by which it was agreed that he should exercise his skill in supervising the process of manufacture and control the quality and style of ware, and allow his name to be stamped thereon, and defend the use thereof. The consideration for this agreement is a commission upon sales. William Rogers, Jr., has performed his contract in every particular. The ware has been sent into the market bearing the stamp “ (Eagle) Wm. Rogers (Star).” This stamp is liable to mislead those dealers and consumers who take note of the word “ Rogers ” or words “ William Rogers ” only, or who are not familiar with the stamps of the plaintiff. Of which the plaintiff complains.
The complaint and briefs of the plaintiff make it quite clear that the one valuable word in its name and trade-marks, the one word which it is the purpose of tins proceeding to preserve for its sole and exclusive use upon silver-plated ware, is the word “Rogers,” the right to the possession and use of which it derived from William Rogers, Sr., and it denies to *563William Rogers, Jr., the right either to manufacture silver-plated ware without the intervention of any agency, and stamp his name thereon; or the right to manufacture through the agency of the defendant, and stamp; or the right to manufacture under the particular arrangement which exists for that purpose with the defendant, and stamp. The prayer is that the defendant be enjoined from every form of representation that William Rogers, Sr., is in any way connected with it in the manufacture of silver-plated ware, and from offering for sale any ware upon which is impressed any mart or device of which the words “ Wm. Rogers ” are the distinctive and characteristic part.
The following are among the additional facts of the case: The defendant was well aware of the value of the name “ Rogers ” on spoons, if it represented a person who had belonged to the family of William Rogers, Sr., had been connected with him in the manufacture of silver-plated goods, and had acquired a valuable reputation in the market for skill in that art. It entered into the contract with William Rogers, Jr., for the purpose of using his name upon such goods as should be the result of his skill, and of availing itself of his taste, skill and judgment, and from the belief that consumers would regard spoons manufactured under his supervision as being the goods of a genuine Rogers, because his skill had been acquired under the instruction of William Rogers, Sr., his father. It stamped its goods “ (Eagle) Wm. Rogers (Star) ” for the purpose of informing the public that they were the product of the skill of Wm. Rogers, Jr., for the purpose of taking advantage of his reputation in the market; a reputation acquired because of the knowledge of the public that he had been associated with, and had acquired skill in the art from, his father and others. He had been known to the trade during many years and had acquired and retained a valuable independent reputation in the market; and goods known to have been the product of Ms skill alone had for that reason a better selling value. For the preceding thirteen years he had been almost constantly employed in connection with *564such manufacture with the plaintiff and the Meriden Britannia Company; and both of those companies had extensively circulated his portrait in connection with that of his father and had thus brought him prominently to the notice of the trade in connection with his father. He had always insisted that his name should be used only .on goods of a certain high standard of value. He does in fact superintend the manufacture of all articles upon which his name is placed. His stamp has a high and independent value. By the terms of the contract between the defendant and "William Rogers, Jr., the latter has the right to authenticate the goods made under his superintendence by stamping thereon his name, with such accompanying devices as he may adopt. The finding is that the stamp “ (Eagle) Wm. Rogers (Star) ” was not adopted by the defendant for the purpose of imitating the trade-mark of the plaintiff, but as a new and distinctive trade-mark indicating the personal supervision and control of William Rogers, Jr. It is also found that the arrangement is valuable to him and that it is only through the medium of this or some similar contract that he is able to make his special training in the business available to himself; also that the name of William Rogers, Jr., is not used by himself or the defendant in such association with place or marks, or symbols or signs, of forms of packages, or style or color of labels, as thereby to mislead consumers; and that the word “Rogers,” used with or without differing symbols, is the misleading word. As a fact it does mislead many consumers who are not familiar with the marks both of the plaintiff and the defendant, and many who take no note of anything in the marks beyond the word “ Rogers.” This the plaintiff seeks to prevent.
Passing over the defendant’s denial of the plaintiff’s right to the exclusive use of the trade-mark which it has adopted, and assuming for the purposes of the case that the plaintiff is a person who, bearing the name William Rogers, has adopted and used his name as a trade-mark, yet the prayer for injunction ’must be denied.
By the rule prevailing in this jurisdiction the facts of this *565case have been conclusively settled by the court below, acting through the instrumentality of its committee. By the finding fraud in intent or deed has been eliminated from the case. The misleading has resulted simply from the fact that the plaintiff and William Rogers, Jr., bear the same name, and that such consumers only have been confused as would not take note of the distinguishing symbols accompanying the use of the name of William Rogers, Jr., by the defendant. When the second bearer of a name uses it with due distinguishing precautions and without actual fraudulent intent or representation that his wares are those of the first, he is not responsible for such confusion as results solely from the fact of similarity.
The law permits a manufacturer to use his name as a trade-mark. If he has the confidence of the public in his integrity and skill his name will doubtless be for some reasons the most advantageous trade-mark which he can adopt. It will be the most forcible and permanent presentation of the fact that his skill and integrity have gone into the article upon which his name is stamped. But such selection exposes him to this danger:—some other person bearing the same name may be the manufacturer of similar articles and may impress it upon them, thereby creating a possibility of mistake on the part of consumers as to the origin and ownership of the article they are about to buy. The law also gives to a manufacturer the right to use his own name as a mark upon his goods although it be the same as that of another manufacturer of similar goods who has previously made his name a part of his own trade-mark, if in such use by the former there is no false representation.
Because of confusion resulting from the use of identical names with distinguishing symbols there is not necessarily as a matter of law a fraudulent misrepresentation; actual fraudulent intent remains to be proven as a fact. If the first appropriator of his name as a mark adopts the name simply, without any accompanying word or symbol by way of prefix or suffix, another manufacturer of similar goods having the same name may lawfully impress it upon his goods, if, as *566in the ease at bar, he accompanies it by such distinguishing devices by way of prefix and suffix as that a consumer who will take note of the whole will not be misled. And if consumers who will take note of nothing but the name are misled, and there is consequent loss to either, it must be borne as the result of the act of taking a name as a trade-mark. If the first appropriator affixes such distinguishing marks, figures, symbols or words as he may lawfully subject to his exclusive use, the second may not use his name in connection with like marks, figures, symbols or words; nor with such as so closely resemble those of the first as that the association will probably mislead; nor make such use with intent to mislead. Rogers & Brother v. Rogers, 53 Conn., 121" court="Conn." date_filed="1885-08-21" href="https://app.midpage.ai/document/rogers--brother-v-rogers-6581877?utm_source=webapp" opinion_id="6581877">53 Conn., 121; Brown on Trade-Marks, (2d ed.) sec. 420.
In Burgesss v. Burgess, 3 D., M. & G., 896, Lord Justice Turner said as follows: “ I concur in the opinion that this motion should be refused with costs. No man can have any right to represent his goods as the goods of another person, but in applications of this kind it must be made out that the defendant is selling his goods as the goods of another. "When a person is selling goods under a particular name, and another person, not having that name, is using it, it may be presumed that he so uses it to represent the goods sold by himself as the goods of the person whose name he uses; but when the defendant sells goods under his own name, and it happens that the plaintiff has the same name, it does not follow that the defendant is selling his goods as the goods of the plaintiff. It is a question of evidence in each case whether there is a false representation or not.” Of this, in Massam v. Thorley’s Cattle Food Co., L. R., 14 Ch. Div., 748, James, L. J., said as follows: “ That I take to be an accurate statement of the law, and to have been adopted by the House of Lords in Wotherspoon v. Currie, L. R., 5 H. L., 508, in which the House of Lords differed from the view that I had taken in that case.”
In Sebastian upon the Law of Trade-Marks, p. 25 et seq., it is said as follows: “ The impossibility of a single manufacturer being allowed to arrogate to himself the exclusive use *567of a name which, he shares in common with many other persons is apparent; and from this circumstance the rule was deduced that while, as against persons bearing a different name, a manufacturer’s right in his name trade-mark is absolute and exclusive, as against persons bearing the same name no such exclusive right can be set up. Thus in Dence v. Mason, Sebastian’s Digest, 584, Maliks, Y. C., held that during the continuance of the partnership between two persons named Mason and Brand, they could not be prevented from using the latter’s name in their business, notwithstanding that it was well known in connection with a similar old established business; and the Court of Appeal held that the same would be the case if a new bond fide partnership should be formed. This rule must, however, be qualified by the statement that where a person uses his own name for the purpose of fraud, and satisfactory evidence of fraudulent intention can be produced, such unfair conduct will be restrained, even though the free use of the man’s own name may be thereby hindered, and the criminal law also admits of the punishment of such fraudulent uses of a man’s own name. A valuable statement of the law was made by Lord Craighill in the Scottish Court of Session, in Dunnachil v. Young & Sons, in which he said: ‘ The name of a person may be a trade-mark; there may be other manufacturers of goods of the same description, and the latter are not precluded from placing their own names on their goods by reason of the fact that this name has already become the trademark of another ma2iufacturer. The only condition they must fulfil is, that the name as used by tliem shall be accompanied with something which shall be a distinction, if the bare name would lead to the deception of the public and the injury of the trader on whose goods the name first appeared as a trade mark.’ And in the Uew York case of England v. The New York Publishing Co., 8 Daly, 375" court="None" date_filed="1878-04-16" href="https://app.midpage.ai/document/england-v-new-york-publishing-co-6140721?utm_source=webapp" opinion_id="6140721">8 Daly, 375, Daly, C. J., said:— The fact that a man has used his own name to designate the article he produces, and that the name has become valuable to him through the article becoming extensively known, gives hirh no right to exclude *568any other man of the same name from affixing his name upon the same kind of article, if he manufactures it. The test is, whether he uses the name honestly and fairly in the ordinary prosecution of his business, or dishonestly, to palm off his own commodity as the production of another.’ ” And on pp. 226 et seq. as follows:—“ It was formerly sometimes supposed, and was held by the late Master of the Rolls and the Court of Appeal in Singer Manufacturing Co. v. Wilson, L. R., 2 Ch. Div., 234, that for an action to restrain the use of a trade-name to be successful fraud must be proved; on the ground that when a trade-mark was once affixed to the goods it passed with the goods from hand to hand, thus silently repeating to each successive purchaser the original misrepresentation of the original infringer, while the improper use of a name not affixed to the goods was not the necessary consequence of being in possession of marked goods, but was the individual act of each person who used it in respect of the goods ; so that there might be held to be an infringement of a trade-mark when, in analogous circumstances, there would be no infringement of a trade-name. And when the case of Singer Manufacturing Co. v. Wilson, L. R., 3 App. Cas., 376, was remitted by the House of Lords to the Court of First Instance, on the ground of insufficiency of evidence, some of the law peers seem to have thought that different principles of law might possibly be applicable to trade-marks and trade-names. But Lord Cairns, Chancellor, said, “ It may well be that if an imitated trade-mark is attached to the article manufactured, there will from that circumstance be the certainty that- it will pass into every hand into which the article passes, and be thus a continuing and ever present representation with regard to it; but a representation made by advertisements that the articles sold at a particular shop are articles manufactured by A. B., (if that is the legitimate effect of the advertisements, which is a separate question,) must, in my opinion, be as injurious in principle, and may possibly be quite as injurious in operation, as the same representation made upon the articles themselves; and in Singer Manufac*569taring Co. v. Loog, L. R., 8 App. Cases, 15, Lord Blackburn took the view that the law of trade-marks and trade-names, when not affected by legislation, was the same. Whether there is or is not property in a trade-name, as Lord Blackburn suggested, it is a fraud on the part of one person to attract to himself the custom intended for another, by a false representation, direct or indirect, that the business carried on by himself is identical with that of the other person by whose ability and exertions the name has acquired the reputation it possesses. The question is not whether the defendant’s business is represented as being similar to the plaintiff’s, but whether it is represented as being that very identical business. If such a false representation has been made, whatever may have been the motive of the persons making it, when proceedings are taken in consequence of it, all the court requires is to be satisfied that the names are so similar as to be calculated to produce confusion between the two—so calculated to do it that, when it is drawn to the attention of those adopting the name complained of that that would be the result, it is not honest for them to persevere in their intention, though originally the intention might not have been otherwise than honest.”
The cited remark of Lord Blackburn was made by him in determining a case in which the defendant neither bore nor had acquired any right to use the name of “ Singer,” the distinctive and conspicuous portion of the plaintiff’s trade-mark. Singer Mfg. Co. v. Loog, L. R., 8 App. Cases, 15; and such is the fact in Singer Mfg. Co. v. Wilson, L. R., 2 Ch. Div., 434; and we think we are correct when we say that the same fact pertains to all of the cases cited by Mr. Sebastian, and that neither the citations nor his comments concern cases where the question is between parties bearing the same name.
By the law applicable to the facts established by the finding, William Rogers, Jr., as a manufacturer of silver-plated ware, had the right to impress thereon the stamp complained of; had the right to contract with the defendant that it *570should make the ware for him under his supervision, he to receive, stamp and sell it for himself; the defendant to receive a percentage of the profits for its labor and its capital; he a percentage for his skill, supervising labor and valuable reputation in the market—his capital. By the present contract the defendant furnishes machinery and materials; William Rogers, Jr., the supervising labor and skill, the valuable reputation and stamp, and defends the use of the latter; the defendant sells the ware, and receives payment therefor; the profits are divided. Under one mode he would sell, and take the risk of payment; under the other the defendant would sell and take that risk; the same rule for division of profits presumably would obtain under either mode. The law regarding substance more than form will not withhold from him in one of these modes what it would concede to him in the other. The law does not find in the mode in which he makes his skill, integrity and valuable reputation available as his capital, any sufficient reason for barring him from access to the public and from the resulting profits. Hiss kill and supervising labor have gone into the ware bearing the stamp complained of; it is equal in quality to that of the plaintiff; as between him and the plaintiff, the question being as to his right to go into the market with his own name, the putting of his supervising skill and labor into the work, with the reception of a share of resulting profits, constitutes him a manufacturer thereof in the eye of the law. It is not a legal prerequisite that all of the capital and all of the profits shall belong to him; consumers have the result of his skill and integrity; and to them that is all there is in the word “manufacturer”; he determines the kind, form, quality and value of the ware; it is his creation; the defendant simply executes his commands. Indee°d, it must be a matter of indifference to the plaintiff as to which of these modes of reaching the market he shall adopt. Therefore, passing by the form, and going directly to the substance, we take the case as if of record William Rogers, Jr., were defendant. *571In no other way can the real question be reached and disposed of.
If any person or corporation shall hereafter place upon the market silver-plated ware bearing a stamp the conspicuous and valuable part of which shall be the word “ Rogers,” and therefore hable to mislead consumers as to the origin and ownership of the same, the right to do so can be subjected to the test of judicial investigation and determination. If the judgment is that a person having the same name as that which this plaintiff has rightfully adopted and used, and a valuable name and reputation in the market for skill ■ and integrity in the manufacture of silver-plated ware, has made an arrangement with a person or corporation having capital, by means of which, upon a division of profits, he can gain access to the market and make his skill and name available to himself and beneficial to the public; that there is no intent upon the part of either to mislead consumers; that there has been no use of the name in association with misleading signs, words, figures or symbols; and that in fact consumers are not misled by anything except the presence of the word “ Rogers,” and the omission to note distinguishing symbols, the law does not condemn the arrangement. The injurious result is one of the disadvantages assumed by the person on whom it falls when he selected a personal name as his mark. The objection on the part of the plaintiff at this point rests not upon any legal principle, but upon its distrust as to the ability of the court to detect and prevent fraud. But it is to be remembered that contests between persons bearing the same name as to their right respectively to stamp it upon goods, turn largely upon the intent; that it is a question of fact; and that courts have been and presumably will continue to be equal to the determination of it.
It is the argument of the plaintiff that its goods became known in the market as “ Rogers goods j ” that the defendant’s goods are also known by the same designation; and, therefore, that the latter should be enjoined. But the disadvantages attending the choice of the name of a person as a mark affect every result flowing from such choice. The *572speech, of the market, calling the plaintiff’s goods “ Rogers goods,” is only the spoken trade-mark of consumers in repetition of the one stamped upon the ware, induced by that. If William Rogers, Jr., has a right to put the name “ Rogers ” on similar ware, that right cannot be affected by the fact that consumers apply the same spoken trade-mark to it; he is not to be injuriously affected by any use the public may make of a mark which the law allows him to use. The plaintiff has no greater right to prevent the misleading of consumers in the matter of calling the goods of both “ Rogers goods ” than it has to prevent the same result in the matter of using identical names accompanied by differing symbols as stamps. The mischief is the same in origin, kind and degree. If the plaintiff had impressed the form of two elephants upon its ware as its trade-mark, neither the defendant nor William Rogers, Jr., would have the right to so impress two elephants upon ware as to mislead consumers as to the origin and ownership of the goods. If byreasonof the plaintiff’s mark its goods had come to be known in the market as “ two elephant goods,” neither the defendant nor William Rogers, Jr., would have the right to so mark goods as that they should come to be similarly known. William Rogers, Jr., has a right to the use of his own name; but he has no right whatever to the use of the form of two elephants in such manner as to interfere with the right of the first appropriator of that device. He would be a trespasser from the beginning in a forbidden field; and without necessity or excuse, for every other form in nature is at his service; and this regardless of his intent; and even if he had done it in ignorance that the device had been appropriated by another.
The first count in the complaint charges the defendant with the publication of an advertisement to the effect that it is a manufacturer of the celebrated William Rogers, Sr., spoons, forks and knives. The finding is that the defendant knew that the use of the mark and the publication of the advertisement would cause its goods to be known in the market as “ Wm. Rogers goods; ” but the advertisement was not intended or calculated to induce the public to *573believe that the goods so designated were manufactured by the plaintiff. The purpose of the publication was to direct public attention to the fact that the manufacture of its goods was controlled by William Rogers, Jr., whose name they bear, and to the celebrity of its goods because of his supervising still and reputation. Upon the facte, the defendant by permission from William Rogers, Jr., for its own advantage and for his as well, has availed itself of whatever right he had to use his own name, with cautionary accompanying devices, for the honest purpose and intent of informing consumers that his labor and supervising still have gone into the manufacture of spoons at the manufactory of the defendant at Wallingford. The word “Rogers,” regardless of the devices, is the sole source of confusion.
The portion of the defendant’s circular complained of in the second count is as follows: “ Sectional Plated Spoons and Forks—(Eagle) Wm. Rogers X 12. Triple plated upon all points exposed to wear. Plated by the method invented by Wm. Rogers in 1855, who was the original inventor of Sectional Plate. Wm. Rogers, (since 1878,) Wallingford, Conn., formerly of Hartford and West Meriden.”
The finding is that it “is not misleading to a person familiar with the facts stated therein and with the fact that William Rogers, Sr., died in 1873 5 but persons not so familiar might be led by it to suppose that the William Rogers who was the inventor of sectional plate in 1856, was in the employ of the defendant at the time the circular was printed ” in 1880.
Upon the finding these statements are true 1 and there is no finding that they were made with the fraudulent intent to mislead the public into the belief that the goods so advertised were those of the plaintiff, and, as in all of the other parts of the ease, upon the last analysis the confusion is found to reside in the fact that two manufacturers bearing the same name, having equal skill and reputation in the same art, have each stamped his name upon his goods with distinctive symbols. As has been said, having equal rights, *574under such circumstances they must share both the advantages and disadvantages of the situation.
The Superior Court is advised to dismiss the complaint.
In this opinion Carpenter and Granger, Js., concurred. Park, C. J., and Loomis, J., concurred fully in the legal principles laid down in the opinion, but thought that, under the arrangement made by William Rogers, Jr., with the defendant company for the manufacture and sale of the ware stamped in the manner in question, he could not be regarded as standing in the position of a manufacturer of the ware.