In passing on the law of Illinois in unfair competition cases, the court said (128 F.2d at pages 862, 863): "Some of the more important Illinois cases which announce the determinative rule as to unfair competition are: DeLong Hook Eye Co. v. Hump Hairpin Mfg. Co., 297 Ill. 359, 130 N.E. 765; [Nestor] Johnson Mfg. Co. v. Alfred Johnson Skate Co., 313 Ill. 106, 144 N.E. 787; The Stevens-Davis Co. v. Mather Co., 230 Ill. App. 45, and Soft-Lite Lens Co., Inc., v. Ritholz, 301 Ill. App. 100, 21 N.E.2d 835. In the Stevens-Davis case is found a lengthy discussion and analysis of Illinois cases, as well as those of other jurisdictions, and a determination that the so-called `palming off' doctrine is the rule in Illinois.
Four earlier Illinois cases did establish the requirement of palming off in unfair competition cases. They are Stevens-Davis Co. v. Mather and Co., supra; DeLong Hook and Eye Co. v. Hump Hairpin Mfg. Co., 297 Ill. 359, 130 N.E. 765; Nestor Johnson Mfg. Co. v. Alfred Johnson Skate Co., 313 Ill. 106, 144 N.E. 787; and Ambassador Hotel Corp. v. Hotel Sherman Co., 226 Ill. App. 247. However, we think the rule announced in these cases is no longer the law of Illinois.
" The Illinois Supreme Court in Johnson Mfg. Co. v. Johnson Skate Co., 313 Ill. 106, 125, 144 N.E. 787, likewise distinguished the Howe Scale Company case. The same court, in Koebel v. Chicago Landlords' Protective Bureau, 210 Ill. 176, 183, 71 N.E. 362, 364, 102 Am.St.Rep. 154, also distinguished the Elgin Butter Company case, and stated:
DeLong Hook and Eye Company v. Hump Hairpin Manufacturing Company, supra, 297 Ill. at pages 365, 366, 130 N.E. at page 768. It is identity of words with source which gives secondary meaning. National Mineral Co. v. Bourjois, Inc., 7 Cir., 62 F.2d 1, 3; Nestor Johnson Manufacturing Company v. Alfred Johnson Skate Company, 313 Ill. 106, 144 N.E. 787; O'Cedar Corporation v. S.S. Kresge Company, 259 Ill. App. 396. The court failed to find, as the defendant urged it to do, that "Auto Shampoo" or "Car Shampoo" had acquired a secondary meaning.
Where there is no competition, there can be no "palming off." Since defendant was not in competition with the plaintiff, in any manner whatsoever, plaintiff was not entitled to the injunction prayed for in its complaint.' And in support of this four Illinois cases are cited: Stevens-Davis Co. v. Mather Co., 230 Ill. App. 45; DeLong Co. v. Hump Hairpin Co., 297 Ill. 359, 130 N.E. 765; Johnson Mfg. Co. v. Johnson Skate Co., 313 Ill. 106, 144 N.E. 787; and Ambassador Hotel Co. v. Hotel Sherman Co., 226 Ill. App. 247. Without stopping to analyze the four cases, we think it sufficient to say that an examination of them discloses the fact that in each there was direct competition between the parties in the business each was conducting — plaintiff and defendant being engaged in the same line of business — and therefore the palming off rule was applicable.
While we adhere to the view that trademark infringement is not to be determined by local law, it is of significance that the Supreme Court allowed certiorari on this precise point. Some of the more important Illinois cases which announce the determinative rule as to unfair competition are: DeLong Hook Eye Co. v. Hump Hairpin Mfg. Co., 297 Ill. 359, 130 N.E. 765; Johnson Mfg. Co. v. Alfred Johnson Skate Co., 313 Ill. 106, 144 N.E. 787; The Stevens-Davis Co. v. Mather Co., 230 Ill. App. 45, and Soft-Lite Lens Co., Inc., v. Ritholz, 301 Ill. App. 100, 21 N.E.2d 835. In the Stevens-Davis case is found a lengthy discussion and analysis of Illinois cases, as well as those of other jurisdictions, and a determination that the so-called "palming off" doctrine is the rule in Illinois.
'" Referring to four Illinois cases, Stevens-Davis Company v. Mather Co., 230 Ill. App. 45; DeLong Hook Eye Co. v. Hump Hairpin Mfg. Co., 297 Ill. 359, 130 N.E. 765; Johnson Manufacturing Company v. Alfred Johnson Skate Company, 313 Ill. 106, 144 N.E. 787; and Ambassador Hotel Corporation v. Hotel Sherman Company, 226 Ill. App. 247, cited by the defendant in that case, the court continues: "Without stopping to analyze the four cases, we think it sufficient to say that an examination of them discloses the fact that in each there was direct competition between the parties in the business each was conducting — plaintiff and defendant being engaged in the same line of business — and therefore the `palming off' rule was applicable.
The provisions of the final judgment and decree, whereby respondent is restrained from using the terms "Eamesway" and "Eames Institute of Poultry Technology," are reasonable and justifiable. Horlicks Malted Milk Corp. v. Horlick, 143 F.2d 32; Nestor-Johnson Mfg. Co. v. Alfred Johnson Skate Co., 313 Ill. 106, 144 N.E. 787; Allegretti v. Allegretti Chocolate Cream Co., 177 Ill. 129, 52 N.E. 487; Horlicks Malted Milk Corp. v. Horlucks, 59 F.2d 13; Lady Ester Ltd. v. Lady Ester Corset Shoppe, Inc., 317 Ill. App. 451, 46 N.E.2d 165; Vogue Co. v. Thompson-Hudson Co., 300 F. 509. BOYER, C.
Where there is no competition, there can be no 'palming off.' Since defendant was not in competition with the plaintiff, in any manner whatsoever, plaintiff was not entitled to the injunction prayed for in its complaint." And in support of this four Illinois cases are cited: Stevens-Davis Co. v. Mather Co., 230 Ill. App. 45; DeLong Co. v. Hump Hairpin Co., 297 Ill. 359; Johnson Mfg. Co. v. Johnson Skate Co., 313 Ill. 106, and Ambassador Hotel Co. v. Hotel Sherman Co., 226 Ill. App. 247. Without stopping to analyze the four cases, we think it sufficient to say that an examination of them discloses the fact that in each there was direct competition between the parties in the business each was conducting — plaintiff and defendant being engaged in the same line of business — and therefore the "palming off " rule was applicable.
These cases naturally arise out of actual competition, usually, but the cases do not indicate that relief is limited exclusively to cases where there is competition, nor that the surnames of individuals are excluded from the protection of the courts. As illustrative may be cited Ranft v. Reimers, 200 Ill. 386; Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 142 Ill. 494; Allegretti v. Allegretti Chocolate Cream Co., 177 Ill. 129; Johnson Mfg. Co. v. Johnson Skate Co., 313 Ill. 106. That the courts of other States — those of the United States and of England — apply similar rules will appear from the citations in our opinion in the recent case in this court of Lomax Co. v. Lomax Bros Beverages, Inc., 274 Ill. App. 661 (Abst.). In Ohlbaum v. Correa, 166 N.Y. S. 89, it appeared two brothers were in business under the name Ohlbaum Bros.; the partnership was dissolved and the business continued by one of them who, by agreement, took the right to use the firm name; this continuing partner died and no other person had acquired the right to use the name; the defendants (none of whom bore this name) began to use it in their business.