ARE UNFAIR METHODS OF COMPETITION ACTIONABLE AT THE SUIT OF A COMPETITOR?

The steps which have recently been taken, both through federal and state legislation, to regulate trade practices by outlawing what have been denominated unfair methods of competition have brought to the fore a problem that has vexed lawyers and legal writers for a long time. The question is whether a competitor who has been injured as a result of a rival\u27s use of one of the condemned methods of competition can maintain any action either at law or in equity against the wrongdoer. Contrary to what has always been the practice in drafting so-called anti-trust laws, the legislation dealing with unfair competition does not embody any provisions relating to suits by private persons injured by conduct which violates those statutes

EFFECT OF A RESTRICTION ON ASSIGNMENT IN A CONTRACT

The early common law took a strictly logical view in regard to the assignability of contract rights and duties. Since a contract is essentially a personal relationship voluntarily entered into by the parties to it, it follows as a logical deduction that one of the parties should not be allowed to destroy that relationship by introducing a third person into it in his place without the consent of the other party. This was the view of the early common law. However, in the course of time, as we know, the commercial spirit gradually made inroads into this doctrine until we have reached the stage today in which the contract that is not assignable is regarded as the exception rather than the rule

Is the Assignee of a Contract Liable for the Non-Performance of Delegated Duties?

IT is an oft recurring statement that rights arising out of a contract cannot be transferred if they are coupled with liabilities. It is such obscure statements as this which give rise to and perpetuate error, and an examination of the cases will show that this one has been responsible for no little confusion in regard to the matter of assignment in the law of Contract. Our courts, under the pressure of a well filled docket, are prone to seize upon a broad generalization of this kind without examining its true meaning or defining its proper limitations. It is high time for us to do away with such archaic conceptions and to recognize what the modem business man assumes, viz: that contract rights may be as freely transferred as any other species of property. That much has already been accomplished is evident from a perusal of the recent literature on the subject. But there is more work to be done, for there are still supposed rules of law which tend to defeat the reasonable expectations of the parties and consequently to hamper the transfer of rights. Such rules do not deserve to be perpetuated if there is any rational basis for a contrary holding

CHANGING THE BENEFICIARY OF A LIFE INSURANCE CONTRACT

A cursory examination of the court reports will reveal that there is a constant stream of cases coming before our courts in which the principal questions at issue involve the disposition of the proceeds of matured life insurance policies. The question arises most often when the insured, having reserved the right to change the beneficiary, had manifested an intention that someone other than the beneficiary named in the policy should receive the proceeds, but had not complied with the formalities prescribed in his contract for effecting a change. Unfortunately, the answer to the question in the particular case has often been made unnecessarily difficult because our courts have not evolved any consistent theory on the basis of which the problem can be resolved. This is unfortunate, since it has a tendency to induce litigation which might have been avoided were there a consistent underlying theory readily determinable as a basis for predicting the probable outcome in the particular case

Contracts for the Benefit of a Third Person in Michigan

In the recent case of Preston v. Preston the supreme court of Michigan had occasion to consider the question as to whether or not one for whose benefit a contract is made has any enforcible rights. The suit was one \u27in Chancery, the donee plaintiff was an invalid, and every consideration of justice and equity demanded that she be given relief. The court had, however, to face the fact that in recent cases it had indicated its opinion to be that the third party beneficiary has no rights. In Modern Maccabees v. Sharp, (1910) 163 Mich. 449, 456 the court speaking through the late Justice Ostrander had said, The general rule in this state is regarded as settled. I see no reason for saying that it is not the same in proceedings at law and in equity. Again in In re Bush\u27s Estate. (1917) 109 Mich. 102, 196. Justice Kuhn, the writer of the opinion in the principal case, had said, No serious claim is made that a promise made by one person to another for the benefit of a third-a stranger to the consideration-will support an action by the latter according to the law of this state. And at page 199, But the situation before us is not merely a question of applying the remedy to the rights of the parties, but under the law as it existed at the time this claim was filed, the claimant had no rights arising out of the transaction against the defending estate

THE CONTRACTS RESTATEMENT

A book review of OF THE LAW OF CONTRACTS. By the American Law Institute

THE ASSIGNMENT OF A LIFE INSURANCE POLICY

There is a great deal of uncertainty and confusion in the decided cases in regard to the effect to be given to the assignment of a life insurance policy. This is unfortunate, since to a large extent life insurance has come to be regarded as an investment medium, and as an asset which can be hypothecated by the insured in times of financial emergency

Effect of an Agreement by One Person to Supply Another\u27s \u27Requirements\u27 of a Given Commodity

The cases show that the kind of agreement indicated by the heading of this note has become an established part of business usage. In normal times such an agreement is likely to be carried out to the entire satisfaction of both parties, without question, but, in a period of changing business conditions and abnormal price flctuations such as we have witnessed during the last few years, nice questions of interpretation are likely to arise, as is well illustrated by the recent case of Oscar Schlegel Mfg. Co. v. Peter Coopers Glue Factory, (1920) 179 N. Y. S. 271

FRAUDULENT INTENT IN TRADE MARK CASES

One of the troublesome questions which confront the trade mark lawyer is that as to the extent to which a fraudulent intention is an essential element in trade mark litigation. Must a plaintiff who is seeking injunctive relief, or damages, or an accounting against a defendant who , it is alleged, has simulated his trade mark, trade name or other identifying device, show that the latter has consciously sought to mislead the purchasing public? Judges and legal writers leave the matter in doubt. It is the purpose of this paper to discover, if possible, how this doubt has arisen and to point the way to a correct determination of the problems involved. To accomplish this objective it will be necessary to trace, in brief outline the history of the remedies which have been evolved for trade mark protection. That history is at the same time a rather remarkable illustration of the nature of the judicial\u27 process and shows how uncertain and accidental may be the foundations of important legal structures

THE ASSIGNMENT OF TRADE MARKS AND TRADE NAMES

Unfortunately there is much confusion in the books in regard to the transferability of trade marks and trade names. The law on the matter is neither clearly stated nor always uniformly applied. The generalization that one finds most frequently, both in cases and in text books, is the categorical assertion that trade marks and trade names are not assignable in gross - that they can be transferred only as incidental to a transfer of the business or property in connection with which they have been used. Rightly interpreted, this statement is doubtless a truism. However, the implications frequently drawn from it are palpably erroneous. For example, it is sometimes assumed that a trade mark can never be assigned apart from the physical location or the going business in connection with which it has been used. Also that the transfer is not effective if the transferor continues to manufacture or sell, though under a different mark, an article identical with that on which the assigned trade mark was used. These propositions, if true, are clearly inconsistent with the expectations of many a business man, for attempted transfers under such circumstances are not unusual. In view of the uncertainty which exists it seems worth while to examine the question in some detail to determine, insofar as we can, the proper limits on the transferability of trade marks and trade names