20191227

TRADE, TRADE MARKS... TRADER

    27.12.19  

TRADE
Trader

 In its most extensive signification this word includes all sorts of dealings by way of Bale or exchange. In a more limited sense it signifies the dealings in a particular business, as the India trade; by trade is also understood the business of a particular mechanic, hence boys are said to be put apprentices to learn a trade, as the trade of a carpenter, shoemaker, and the like. Bac. Ab. Master and Servant, D 1. Trade differs from art. (q. v.)

2. It is the policy of the law to encourage trade, and therefore all contracts which restrain the exercise of a man's talents in trade are detrimental to the commonwealth, and therefore void; though he may bind himself not to exercise a trade in a particular place, for, in this last case, as he may pursue it in another place, the commonwealth has the benefit of it. 8 Mass. 223; 9 Mass. 522. Vide Ware R. 257, 260 Com. Dig. h. t.; Vin. Ab. h. t.

TRADE MARKS. Signs, writings or tickets put upon manufactured goods, to distinguish them from others.

2. It seems at one time to have been thought that no man acquired a right in a particular mark or stamp. 2 Atk. 484. But it was afterwards considered that for one man to use as his own another's name or mark, would be a fraud for which an action would lie. 3 Dougl. 293; 3 B. & C. 541; 4 B. & Ad. 410. 1 court of equity will restrain a party from, using the marks of another. Eden, Inj. 314l; 2 Keene, 213; 3 Mylne & C. 339.

3. The Monthly Law Magazine for December 1840, in an article copied into the American Jurist, vol. 25, p. 279, says, "The principle to be extracted, after an examination of these cases, appear to be the following: First, that the first producer or vendor of any article gains no right of property in that article so as to prevent others from manufacturing, producing or vending it.

4. Secondly, that although any other person may manufacture, produce, and sell any such article, yet he must not, in manner, either by using the same or similar marks, wrappers, labels, or devices, or colorable imitations thereof, or otherwise, hold out to the public that he is manufacturing, producing, or selling the identical article, prepared, manufactured, produced, or sold by the other; that is to say, he may not make use of the name or reputation of the other in order to sell his own preparation.

5. Thirdly, the right to use or restrain others from using any mark or name of a firm, is in the nature of goodwill, and therefore goes to the surviving or continuing partner in such firm, and the personal representative of a deceased partner has an interest in it.

6. Fourthly, that courts of equity in these cases only act as auxiliary to the legal right, and to prevent injury, and give a relief by account, when damages at law would be inadequate to the injury received; and they will not interfere by injunction in the first instance, unless a good legal title is shown, and even then they never preclude the parties from trying the right at law, if desired.

7. Fifthly, if the legal title be so doubtful as not to induce the court to grant the injunction, yet it will put the parties in a position to try the legal right at law, notwithstanding the suit.

8. Sixthly, that before the party is entitled to relief in equity, he must truly represent his title, and the mode in which he became possessed of the article for the vending of which he claims protection; it being a clear rule of courts of equity not to extend their protection to persons whose case is not founded on truth."

9. In France the law regulates the rights of merchants and manu facturers as to their trade marks with great minuteness. Dall. Dict. mot Propriete Industrielle. See, generally, 4 Mann. & Gr. 357; B. & C. 541; 5 D. & R. 292; 2 Keen, 213; and Deceit.

TRADER. One who makes it his business to buy merchandise or goods and chattels, and to sell the same for the purpose of making a profit. The quantum of dealing is immaterial, when an intention to deal generally exists. 3 Stark. 56; 2 C. & P. 135; 1 T. R.Fina 572.

2. Questions as to who is a trader most frequently arise under the bankrupt laws, and the most difficult among them are those cases where the party follows a business which is not that of buying and selling principally, but in which he is occasionally engaged in purchases and sales.

3. To show who is a trader will be best illustrated by a few examples: A farmer who in addition to his usual business, occasionally buys a horse not calculated for his usual occupation, and sells him again to make a profit, and who in the course of two years had so bought and sold five or six horses, two of which had been sold after be bad bought them for the sake of a guinea profit, was held to be a trader. 1 T. R. 537, n.; 1 Price, 20. Another firmer who bought a large quantity of potatoes, not to be used on his farm, but merely to sell again for a profit, was also declared to be a trader. 1 Str. 513. See 7 Taunt. 409; 2 N. R. 78; 11 East, 274. A butcher who kills only such cattle as be has reared himself is not a trader, but if he buy them and kill and sell them with a view to profit, he is a trader. 4 Burr. 21, 47. See 2 Rose, 38; 3 Camp. 233 Cooke, B. L. 48, 73; 2 Wils. 169; 1 Atk. 128; Cowp.745. A brickmaker who follows the business, for the purpose of enjoying the profits of his real estate merely, is not a trader; but when he buys the earth by the load or otherwise, and manufactures it into bricks, and sells them with a view to profit, he is a trader. Cook, B. L. 52, 63; 7 East, 442; 3 C. & P. 500; Mood. & M. 263 2 Rose, 422; 2 Glyn & J. 183; 1 Bro. C. C. 173. For further examples, the reader is referred to 4 M. & R. 486; 9 B. & C. 577; 1 T. R. 34; 1 Rose, 316; 2 Taunt. 178; 2 Marsh. 236; 3 M. & Scott. 761; 10 Bing. 292 Peake, 76; 1 Vent. 270; 3 Brod. & B. 2 6 Moore, 56.
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