Stevens-Davis Co. v. Mather & Co. (230 Ill. App. 45, 1923)

Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by Mather & Company and George C. Mather, appellants, from a decree of the superior court of Cook county granting an injunction against appellants substantially in accordance with the prayer of the bill of complaint of the Stevens-Davis Company, appellee. The material allegations of the bill stated briefly are as follows: The Stevens-Davis Company, appellee, has been for many years engaged in the business of “promoting human efficiency” for the employees of “large employers through inspiration and educational work.”- Appellee has built up a successful business throughout the United States, and employs a large number of people whose time is exclusively devoted to such work. The business is conducted by selling to employers a series of fifty-two small colored cards on which are printed “talks to employees” on virtues such as loyalty, enthusiasm, harmony, cheerfulness, temperance and “other topics.” The cards are to be distributed to the employees through their weekly pay envelopes. Appellee has given to this “system or service” the name of “Success Talks,” and has bound the cards in book form. Appellee alleges that appellants “have been and now are engaged in business for the sole purpose of plagiarizing the system, services, products and forms” of appellee and of “so imitating and copying” appellee’s business. Appellants have named their pay envelope cards “Steps to Success,” taking thereby the important word “Success” used by appellee in the name of its cards. The “Success Talks” which are used by appellee “are written on fifty-two titles or topics” and were originated by appellee. “Substantially the same list of topics or titles in the same sequence as used” by appellee has been adopted by and is now used by appellants. The cards of appellee have been copied by appellants in “size, style, color scheme, ruling type and design,” but the language of the cards although “varied somewhat” is the same in “thought, spirit and substance.” Appellants “not satisfied with the purloining of the system and products” of appellee, “resorted to a most wrongful, fraudulent and dastardly practice of obtaining” testimonials or indorsements for their pay envelope cards. They “wrongfully procured a list of the customers” of appellee, wrote to these customers falsely representing that they, appellants, “had in contemplation the purchase of the said ‘Success Talks’ of” appellee, “and the use of same by distribution in the pay envelopes of their own employees.” Appellants obtained responses from many of appellee’s customers “indorsing and commenting on the genius and ability” of appellee, “and the merits of its said pay envelope lectures to employees.” Appellants made photographic copies of the “testimonials” or “indorsements” and used them as “testimonials” or “endorsements” of their own pay envelope cards. When the customers ascertained “the imposition that had been practiced upon them” they “canceled contracts” with appellants “and rescinded their said letters of recommendation.” Nevertheless appellants “have wrongfully used and are now using the said testimonials” to the “great detriment and injury” of appellee. By trading upon the “prestige” of appellee in one instance appellants obtained an “order of over a million cards” from the Worthington Pump Company of New York City, which had been a customer of appellee, and when it gave the order was buying the products of appellee. Appellants “have represented that they have succeeded to the business” of appellee “and that the continuance of the 1 Success Talks’ and similar work is now being prosecuted and conducted solely by them”; and “that through said gross misrepresentations and their fraudulent methods” they “have secured orders from customers of” appellee “when such customers thought they were purchasing a continuation of” appellee’s “service.” In the perpetration “of the frauds hereinabove set forth,” appellants “induced two of their employees to enter the employment” of appellee and “said employees in the course of their said employment obtained copies of the fifty-two 1 Success Talks’ of” appellee, “and all its forms, lists of customers, etc.”; that these employees “were again taken back into the employ of” appellants and that they “turned over to” appellants “all of the said papers, documents, information, and trade secrets” of appellee. It is charged by appellee that “the said acts constituted unfair business competition and piracy in that the said emissaries of” appellants “obtained secret information” from appellee. It is further charged by appellee that the method by which the “testimonials” were obtained constituted “unfair competition”; and further that appellants “are guilty of piracy in using” appellee’s “testimonials as testimonials of” appellants’ work. Appellee claims that it has sustained “great loss and damages to its trade and business”; that it has no adequate remedy at law; and that it is entitled to an “accounting of profits made by” appellants in the “fraudulent sale of their goods in the name” of appellee. The bill alleges that the individual appellants “are persons of no financial standing and that they are insolvent”; that the appellant “Mather & Company, a corporation, has no tangible or valuable property” or “assets except such contracts and funds as it has recently secured by piratical methods from” appellee; and that “it is imperatively necessary that an injunction be issued.” The bill prayed that “an account may be taken” and that the appellants be required to pay to appellee “whatever shall appear to be due to it upon the taking of such account.” The bill also prayed for a preliminary injunction restraining the appellants as follows: (1) From obtaining testimonial letters; (2) from using the testimonial letters already obtained; (3) from representing that the appellants are the “authors, owners, vendors, or users of the ‘Success Talks’” or “of any of the products” of appellee; (4) from representing that appellants “have taken over or have the right to use said ‘Success Talks’ ” or that ‘ ‘ they have in any manner purchased or succeeded to the business of” appellee; (5) from “using any of the lists of topics or names of the said fifty-two weekly ‘Success Talles’ of” appellee or “of any of its forms, printed matter, system or devices where the appellants obtained such information from the employees of said” appellee “secretly and without the knowledge and consent of said” appellee; (6) “from photographing any letters recommending the work or products” of appellee or “from using any photographs heretofore taken” of such work or products; (7) “from infringing upon any of the trade secrets of” appellee or “indulging in any manner in any unfair business competition with said” appellee and “from manufacturing or selling pay envelope cards of any kind or description so made or produced in form, size, color scheme, ruling, printing and general appearance as to be or appear to be like the ‘ Success Talks’ of” appellee or “to deceive or tend to deceive the public into thinking that the products of the” appellants “were in fact those of” appellee.

Attached to the bill is an affidavit of Roderick Gr. Stevens, president of Stevens-Davis Company, appellee, stating, among other things, in substance that the rights of appellee “will be unduly prejudiced if an injunction is not issued immediately or without notice to” appellants because of the fact that “many of the contracts” of the present customers of appellee “are expiring on September 16, 1918 (the date that the bill was filed), and daily for some days thereafter”; that the agents of appellants “are about to and will solicit said customers and obtain from them contracts for the ensuing year” to appellee’s “great financial loss, running into thousands of dollars if said” appellants “are not restrained on September 16 and immediately thereafter”; and that appellants “have not sufficient financial standing or assets to pay the damages and injuries sustained by” appellee. On the same day that the bill was filed a preliminary injunction was issued by the court, without notice, substantially in accordance with the prayer of the bill. An answer was filed by appellants on September 30, 1918, denying the wrongful and fraudulent acts charged by the bill. On November 21, 1918, the cause was referred to a master. On June 3, 1920, a petition was filed by appellee alleging that the injunction had been violated and asking for a rule on appellants to show cause why they should not be punished for contempt. The petition specifically alleged that the George Cutter Company had given an order for cards to appellant “under the impression and in the belief” that it was ordering the cards of appellee; that Bartlett and McMahon, former employees of appellee, had entered the employ of appellants as agents for the latter in Boston, and had in their possession secret data and valuable documents of appellee which they were wrongfully using in connection with their work for appellants; that appellee had Bartlett and McMahon arrested and by a search warrant recovered the data and documents; that appellants had written letters to “various persons” containing false statements in regard to the preliminary injunction. Appellants filed an answer denying that they had violated the injunction. The petition and answers were referred to the master. On November 20, 1920, appellee filed a supplemental bill which, after repeating and enlarging on many of the allegations in the original bill and in the petition for contempt, alleged that a secret convention of its salesmen was held in Chicago and that a report of the proceedings of the convention was printed; that this report was found in the possession of appellants in Boston in February, 1919; and that it was wrongfully obtained by appellants. -

The supplemental bill also charges that since the filirig of the original bill appellants have been guilty of “unfair competition” and “other acts” injurious to the “business and good will” of appellee; and that appellants have wrongfully obtained the “business secrets” of appellee and have induced employees of appellee to divulge the “trade secrets” of appellee; and have endeavored to “hire salesmen and employees of” appellee. An answer was filed denying that appellants were guilty of any of the wrongful acts charged. A cross-bill was filed by appellant Mather & Company, alleging that after the entry of the preliminary injunction appellees “caused copies of the injunction suit to be printed and mailed to all of the customers and prospective customers” of appellant Mather & Company, and also “caused a 19-page folder to be printed and circulated accusing” appellant “Mather & Company of being ‘a porch climber’ and ‘crooked.’ ” The cross-bill prays that appellee “may be enjoined from circulating malicious and slanderous words or matters relating to said” appellant Mather & Company. The cross-bill was not formally acted upon by the court, but it seems that the court directed both appellee and appellants to stop sending out letters or circulars in reference to the preliminary injunction. The master found that the equities were with appellee; recommended that the temporary injunction be made permanent; that appellants account to appellee for the profits; and further, that appellants were guilty of contempt, and imposed a fine of $500 on them.

The decree of the court, which is drastic and comprehensive, found that all the material allegations of the bill of complaint and supplemental bill were true and proved, and confirmed the findings of fact of the master. Jurisdiction of the cause was retained by the court for the purpose of stating an account between the parties of the lost profits sustained by appellee. The master’s fees and the costs amounted in the aggregate to $2,468.72.

The court specifically decreed that the appellants “have been guilty of unfair competition, and of wrongful and fraudulent business methods injurious to the good will, business and profits of” appellee, and ordered that a permanent injunction be entered against appellants and that they be restrained as follows :

“1. From obtaining from The Stevens-Davis Co. or any of its employees or agents, or from any customers of. The Stevens-Davis Co., any testimonials or any letters regarding, or recommendations of, the ‘Success Talks’ system or any of the productions of The Stevens-Davis Co.

“2. From having in their possession or using any of said testimonials or lists of customers of The Stevens-Davis Co.

“3. From representing to the public or any person or corporation that the defendants are the authors, owners, vendor or users of the ‘ Success Talk’ pay envelope cards of The Stevens-Davis Co., or of any of the products of The Stevens-Davis Co.

“4. From stating or implying to any person or corporation that the defendants, or any of them, have purchased or taken over, or have the right to use, said ‘Success Talks’ pay envelope cards of The Stevens-Davis Co., or any of its other products, or that they have in any manner purchased or succeeded to the business of said The Stevens-Davis Co., or any part thereof, or that said The Stevens-Davis Co. has gone out of business.

“5. Fiom photographing any letters recommending any work or production of The Stevens-Davis Co., or having the same in their possession, or from using any photographs heretofore taken or in the possession of any of "the defendants, or their agents or salesmen, or which may hereafter at any time be obtained by any of the defendants.

“6. From manufacturing, using, distributing or selling, or having in their possession, the pay envelope cards now manufactured and sold, or heretofore manufactured and sold by Mather & Company, called eSteps To Success.’

“7. From manufacturing, distributing or selling any pay envelope cards of such a character that the cards in their entirety shall be so similar to the ‘Success Talks’ pay envelope cards of The Stevens-Davis Co. as to be calculated to mislead persons purchasing them to believe that they are in fact the cards of-The Stevens-Davis Co.

“8. From copying, printing, reproducing, using or distributing, in printed form,, to the salesmen or agents of Mather & Company, or of any other corporation or association which the defendants may hereafter form, the ‘Sales Talks’ pamphlets and production of The Stevens-Davis Co.

“9. From using the name ‘Steps to Success’ as the name of the pay envelope inclosures of the defendants, and from using the words ‘Success Talks’ or either of them as descriptive of the pay envelope inclosurés of the defendants.

‘ ‘ 10. From informing customers, or any other persons or corporations, that the Stevens-Davis Co. did not originate and write the printed matter issued by said Company, and from stating that any of the products of the Stevens-Davis Co. were copied or plagiarized from other persons.

“11. From endeavoring to hire any salesmen of The Stevens-Davis Co. by means of ■ any untruthful statements respecting the said The Stevens-Davis Co.”

The first question to be determined in this case is, what is the nature of appellee’s suit? What is the substantive ground for the equitable relief that is sought by appellee? There is some confusion in the bill and supplemental bill concerning this question. The suit does not seem to be based solely on unfair competition. The bill and supplemental bill charge appellants with “unfair competition,” it is true, but many of the acts so termed are not, as a matter of law, acts of unfair competition. Both of the bills allege that appellants have been guilty of other fraudulent and wrongful acts. • Both the bills allege, among other such acts, that appellants have been guilty of “piracy”; of inducing the employees of appellee to divulge appellee’s “trade secrets”; of wrongfully obtaining knowledge of appellee’s business secrets; of acts “of a serious character” injurious to the “business and good will” of appellee; of “piracy in evading or attempting to evade the copyrights” of appellee; of falsely stating that appellee had gone out of business and that appellants had taken over the “pay envelope card” business of appellee; of inducing two of their employees to enter the employment of appellee and obtain secret information of the business of appellee; and of endeavoring to “hire salesmen and employees of” appellee.

The decree of the court adjudges that appellants have been “guilty of unfair competition and of wrongful and fraudulent business methods injurious to the good will, business and profits of” appellee. There are twenty specific findings in the decree, but the terms “unfair competition,” “unfair dealing,” “unfair competition and methods,” “unfair advantage,” “unfair and false methods” are used in only five of the findings. It is obvious that the decree is not based exclusively on unfair competition. However, both counsel for appellee and counsel for appellants have argued the case as if it was one of unfair competition alone. Counsel for appellee expressly state in their brief that it is a case of “unfair competition.” They have expressed their theory of the case as follows : “Appellants seem to have entirely misconceived this case. It is not a question of exclusive right in the word 'success’ or in the fifty-two weekly subjects, or in pay envelope cards themselves, nor do we proceed under copyright. This is a case of UNFAIR COMPETITION and the acts of M. Co. taken as a whole from first to last present one of the most flagrant cases to be found in the books anywhere. * * * The question is, Is one trader trying to purloin another’s business and reputation with a likelihood of success?” In order that there may be no mistake as to their position, counsel for appellee have printed the words “unfair competition” in large black type. In answering the contention of counsel for appellants that appellee “must clearly establish ‘the palming off’ of one man’s goods as those of another,” counsel for appellee say: “We admit the law, and most assuredly have made the proof.” They also say: “Our evidence fulfills the rule” that “proof of unfair competition must be clear and convincing.” In discussing their authorities they state that “The question to be decided in each case is: Is the defendant selling his goods as complainant’s, or,'in other words, is a false representation being made?” Counsel for appellee have made their position clear beyond the possibility of a doubt. If, in accordance with their theory of the case, they had indicated what acts of appellants in their opinion constitute unfair competition, the other alleged wrongful acts could be eliminated from consideration as substantive, independent instances of unfair competition, and could be considered, if relevant, merely as matters in aggravation of unfair competition. As counsel have not done this, but have argued all of the alleged wrongful acts of appellants as if they were acts of unfair competition, we must examine the alleged wrongful acts to determine whether, as a matter of law, they are wrongful, and, if so, whether they constitute unfair competition.

What is the legal meaning of unfair competition? It is necessary for. us to find and to state precisely the rule of unfair competition, which we shall apply as a test in determining what acts, if any, of appel-. lants, constitute unfair competition. It is evident from the quotations we have cited from the brief of counsel for appellee that counsel conceive the rule to be the one familiarly known as the “palming off” of one man’s goods as those of another. From our examination of the authorities, that is substantially the rule of almost universal acceptance. In this view of the rule, counsel for appellants concur. There may be some variations of the rule in a few exceptional cases where the courts have attempted to substitute their own ideas of business ethics for the objective rule of law; but such cases are so few in number that they may be treated as negligible. Furthermore, they proceed on an erroneous conception of the judicial process. Law is not the personal opinion of the judge, but it is a system of objective rules or standards. In Stevens Linen Works v. William & John Don & Co., 121 Fed. (C. C. A.) 173, in speaking of unfair competition the court said: “There is a growing tendency in the courts to push this doctrine beyond what this court believes to be reasonable limits, and to introduce a spirit of paternalism into the administration of equity jurisprudence beyond the scope of its legitimate authority.” Illustrative of the class of cases which constitute an exception to the general rule is the case of Margarete Steiff, Inc. v. Bing, 215 Fed. 204, where a district judge said (p. 206) that: “ ‘Unfair competition’ consists in selling goods by means which shock judicial sensibilities.” The courts which have attempted to “widen” or “broaden” the rule have proceeded on this theory, although they may not have stated their method so plainly and frankly.

Ordinarily, in a case of unfair competition, it would only be necessary to state the “palming off” rule without any citation of authorities. But the comparatively recent case of International News Service v. Associated Press, 248 U. S. 215, which holds that equitable relief on the ground of unfair competition is not confined to the “palming off” cases, compels us to attempt to find the rule of unfair competition which we shall apply in the present case in determining whether the alleged wrongful acts of appellants constitute unfair competition. We are not attempting to distinguish that case from the case at bar, as the facts in the cases are dissimilar. In referring to the case of International News Service v. Associated Press, supra, the court said, in Benjamin T. Crump Co., Inc. v. J. L. Lindsay, Inc., 130 Va. 144 (p. 146): “It is admitted by the appellant that until the recent decision of International News Service v. Associated Press, 248 U. S. 215, the established doctrine was that in order to justify a court of equity in granting an injunction to restrain unfair competition, the acts complained of must be of such a nature as to be likely to deceive the public, or to amount to an attempt to pass off one man’s business or merchandise as that of another, and that this was essential in order to constitute unfair competition. It is, however, claimed, and argued with vigor and ability, that since that decision this doctrine, relied upon by the defendant, is no longer binding.”

The question which now confronts us is, whether the “palming off” doctrine has been erroneously considered to be a rule of decision, when in fact it was merely a term descriptive of a typical class of cases; and if it has been correctly regarded as a rule of decision, is it the rule that has been adopted by the Supreme Court of this Statef The “palming off” doctrine has been accepted by the courts in England and America, including the Supreme Court of the United States, with few exceptions, as the rule of law itself, and not as a descriptive term or classification of the most typical cases illustrative of the rule. It may be that it would have been better if the rule originally had been framed in more general terms, but the fact is that it was not. ‘ ‘ The legal doctrine of unfair competition is a development of the fundamental idea that it is against public policy that the goods of one person should be offered for sale or sold as those of another. Very few cases dealing with the question were decided in England or America prior to 1850.” Nims on Unfair Competition and Trade-Marks (2nd ed.), p. 4. With the decision of the Supreme Court of the United States in the case of Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537, which announced the “palming off” rule, “The doctrine of unfair competition may be regarded as being finally established in the United States; and as based not only on fraud on the public, but on the plaintiff.” Hopkins on Trade-Marks and Unfair Competition (3rd ed.), p. 42.

In the comparatively recent case of Hanover Star Milling Co. v. Metcalf, 240 U. S. 403, the case of Lawrence Mfg. Co. v. Tennessee Mfg. Co., supra, was cited by the Supreme Court of the United States as an authority in support of the following holding of the court in regard to unfair competition (pp. 412, 413) : “The essence of the wrong consists in the sale of the goods of one manufacturer or vendor for those of another. ’ ’

In Everett Piano Co. v. Maus, 200 Fed. 718, the United States Circuit Court of Appeals, Sixth District, in considering a bill for an alleged interference with a business, said (p. 719): “The bill, in its averments, fails in a number of particulars respecting well-known grounds for equitable interference. It does not state a case of unfair competition, because it is not averred that defendant attempted to palm off any other kind of piano as that of complainant.”

“The fundamental rule,” says Nims, “is that one man has no right to palm off his own goods as the goods of a rival trader.” Nims on Unfair Competition and Trade-Marks (2nd ed.), p. 12. Unfair competition may be defined as passing off, or attempting to pass off, upon the public the goods or business of one man as being the goods or business of another. Id., p. 15; 38 Cyc. 756; 26 E. C. L. p. 875. “ ‘Unfair competition’ is the equivalent term for the ‘passing off’ of the English and the ‘ Concurrence deloyale’ of the French decisions.” Hopkins on Trade-Marks and Unfair Competition (3rd ed.) p. 50.

In Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 119, a leading case, the Supreme Court of the United States said (p. 140) that: “The essence of the wrong in unfair competition consists in the sale of goods of one manufacturer or vendor for those of another and if defendant so conducts its business as not to palm off its goods as those of complainant, the action fails.” It is unnecessary to cite the numerous decisions that have announced this rule. It may be confidently and positively stated that the rule has been adopted by nearly all of the courts of the United States, both federal and state. In harmony with the other jurisdictions, the Supreme Court of this state has adopted the “palming off” rule as the rule of decision in cases of unfair competition, and that rule has been repeatedly announced by this court and other appellate courts of the state.

In Ball v. Siegel, 116 Ill. 137, the court said (p. 146): The test is, whether the words used “would be likely to mislead persons in the ordinary course of purchasing the goods, and induce them to suppose they were purchasing the genuine article.”

In Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 142 Ill. 494, the court said (p. 509): “It is not shown that the defendant has ever attempted in any way to palm off its own boilers as being of the complainant’s manufacture.”

In DeLong Hook & Eye Co. v. Hump Hairpin Mfg. Co., 297 Ill. 359, the court said (p. 369): “The burden of proof of the secondary meaning of the hump as referring to the appellee is upon the appellee # * * to show that the use of the word by appellant will result in passing off its goods as the manufacture of the appellee”; and on page 371 the court quoted with approval from the case of Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 119, which holds that unfair competition “consists in the sale of the goods of one manufacturer or vendor for those of another, and if defendant so conducts its business as not to palm off its goods as those of complainant, the action fails.”

In Chicago Directory Co. v. Herringshaw, 187 Ill. App. 489, the court said (p. 499): “Unfair competition consists in passing off or attempting to pass off upon the public the goods or business of one person as and for the goods or business of another.” To the same effect are the cases of Merchants’ Detective Ass’n v. Detective Mercantile Agency, 25 Ill. App. 250, 259; Bender v. Bender Store & Office Fixture Co., 178 Ill. App. 203, 207; Yellow Cab Co. v. Ensler, 214 Ill. App. 607, 610; Hughes v. West Pub. Co., 225 Ill. App. 58, 66; Nestor Johnson Mfg. Co. v. Alfred Johnson Skate Co., 229 Ill. App. 549.

The courts in this State do not treat the “palming off” doctrine as merely the designation of a typical class of cases of unfair competition, but they announce it as the rule of law itself — the test by which it is determined whether a given state of facts constitutes unfair competition as a matter of law. As the Supreme Court of this State said in the case of DeLong Hook & Eye Co. v. Hump Hairpin Mfg. Co., supra, quoting from the Supreme Court of the United States in the case of Howe Scale Co. v. Wyckoff, Seamans & Benedict, supra: “If defendant so conducts its business as not to palm off its goods as those of complainant, the action fails.” We are of the opinion from our examination of the authorities, that the “palming off” doctrine has been followed by both the state and federal courts in an almost unbroken line of decisions, as a rule of law, and that the courts of this state also deem it to be a rule of law. If it is not the rule of decision by which the facts may be tested, what is the general rule that has supplanted it? We are unable to discover any other general rule; and it is not within the jurisdiction of this court to formulate a rule of decision. Each case is not to be left to the discretion of the court to be decided according to the court’s idea of justice and right. The “palming off” rule is expressed in a positive, concrete form which will not admit of “broadening” or “widening” by any proper judicial process. It is rigid and inelastic. It may be expressly overruled or amended and a new rule announced by a court of final authority, but it is not framed in such general terms that it may be extended under the guise of judicial construction. The better method would probably be to broaden it by legislation. According to the view we have taken, the Supreme Court of the United States holds that the “palming off” rule is not the only ground of equitable relief in unfair competition, and the Supreme Court of this State holds that it is the only rule of decision. The law announced by the Supreme Court of this State is a positive rule of law, and is as binding on this court as a statutory enactment. The decision of the Supreme Court of the United States, although entitled to the deference which is due to so distinguished a tribunal, is not a rule of decision that must be followed by a State court in the class of cases in question. In cases not involving the construction of the constitution or laws of the Union, the decisions of the Supreme Court of the United States are not binding as authority on the State courts. Fuller v. Shedd, 161 Ill. 462, 494; Lebanon Bank v. Mangan, 28 Pa. St. 452; Doe ex dem. Shelton v. Hamilton, 23 Miss. 496, 498.

We feel bound, therefore, to follow the rule of law of this State, and to hold that unfair competition ‘ ‘ consists in the sale of the goods of one manufacturer or vendor for those of another, and if defendant so conducts its business as not to palm off its goods as those of complainant, the action fails.” DeLong Hook & Eye Co. v. Hump Hairpin Mfg. Co., supra.

The next question to be determined is, what is the degree of proof imposed on one seeking relief on the ground of unfair competition? Counsel for appellants maintain that appellee must prove its case beyond a reasonable doubt and in support of their contention cite the case of Candee, Swan && Co. v. Deere & Co., 54 Ill. 439. Counsel for appellee assert that they have established the right of appellee to relief by a “preponderance of the evidence.” They refer to no authority. In our opinion neither contention is correct. It is true that in the case of Candee, Swan & Co. v. Deere & Co., supra, the court said (p. 467): “We believe the rule to be, in such cases, the proof must be clear, leaving the question beyond a reasonable doubt”; but although that case has not been expressly overruled it has not been followed in subsequent’cases. The question involved in that case related to a violation of a trade-mark, but the “essential element is the same in trade-mark cases as in cases of unfair competition * * *. In fact, the common law of trademarks is but a part of the broader law of unfair competition.” Hanover Star Milling Co. v. Metcalf, 240 U. S. 403, 413.

In the case of Ball v. Siegel, 116 Ill. 137, the court said (p. 147): “To entitle a complainant, in cases of this character, to the relief here sought, the right must be clearly established by the evidence.”

The case of DeLong Hook & Eye Co. v. Hump Hairpin Mfg. Co., 297 Ill. 359, followed the case of Ball v. Siegel, supra, citing, on page 372, the language quoted above from that case.

In our opinion appellee is required to prove its case clearly by the evidence, and a slight preponderance of the evidence is not sufficient; there must be a clear preponderance.

The issues in this case are largely ones of fact, and as the facts in no two cases are precisely the same, little assistance can be derived from a review of the many different cases on this subject. Each case must depend upon its own particular facts and circumstances.

The record in the present case is voluminous. The taking of the testimony before the master extended over nearly a year, namely, from November 16, 1920, to November 2, 1921. There are numerous exhibits, among which are several books on salesmanship, and one of an'“inspirational” character. The briefs on both sides are lengthy. The record shows a bitter, hostile feeling to exist between the parties; and this feeling has been carried by both counsel into their briefs which exhibit instances of the most acrimonious argument, particularly the brief of counsel for appellee. Both counsel for appellants and counsel for appellee have several times referred us to the record, and have asked for a most careful consideration of the case. Counsel for appellants feel that because of the “crowded” condition of the trial courts “it is almost if not quite impossible for the trial court to do anything but confirm a master’s report.” Counsel for appellee state their attitude as follows: “Our only anxiety in this case is as to whether we can so present our brief as to inform this court as fully as to the facts as we did in the trial court.” In view of the state of mind of both counsel, we have read nearly the entire transcript of the testimony contained in the record. From this reading we have discovered that the abstract of the evidence filed, by appellants and the additional abstract filed by appellee are wholly inadequate in many material matters. A clear and intelligent understanding of the facts can only be obtained by reading the transcript of the testimony, or at least the transcript of the testimony of the important witnesses.

Counsel for appellee enumerate at the beginning of their brief twenty-two “specific wrongful acts of the defendants.” We shall .not state and discuss separately all of these acts at this time. Some of them are obviously not wrongs in themselves alone, and others are not “specific” wrongs. For example, the allegation that appellants “M. Co. built up a business from nothing in October, 1917, when incorporated, to 25 salesmen on the road in .1919,” is clearly not a wrong in itself; and the averment that “many other improper practices were also indulged in by defendants below,” is not specific. Counsel for appellants -have set out in their brief, after the statement of their case, seven acts of appellee which they contend bar appellee from recovery in this cause on the doctrine of “unclean hands.” We shall consider these acts later. It is clear that all of them do not come within the rule. As, for instance, the averments that appellee has violated the federal statutes on “Copyright” in regard to its cards; and that Stevens, its president, testified falsely on the hearing that he never attended the Sheldon School of Salesmanship."

We shall consider the various issues of fact which have been argued in the briefs of counsel. In reviewing the facts, if the rule of law, namely, the “palming off” rule, and the rule as to the degree of proof, which rule requires appellee’s right to be clearly established by the evidence, are not kept constantly in mind, one is apt to get into inextricable difficulties. It must also be remembered that in this inquiry we are not concerned with unethical or wrongful acts generally, but our attention must be directed solely to such wrongful acts as come within the rule of unfair competition. We are not condoning unethical conduct merely because we may be of the opinion that such conduct does not, as a matter of law, constitute unfair competition. The different classes of wrongs must be distinguished in order that it may be determined "whether the remedy should be by law or equity. The remedy by equity is more drastic and of broader scope.

One of the first questions argued by counsel for .Appellee is that appellant Mather, the president of appellant Mather & Company, conceived the idea of “appropriating” the business of appellee, Stevens-Davis Company, and “induced” certain salesmen to leave appellee and to “go with him.” These salesmen had formerly been in the employ of Mather in connection with a company of which he was the president, known as the Commercial Color Type Company. The business of this company consisted of general commercial and photo engraving, publishing “local view post cards,” advertising post cards, other advertising, and pictorial posters to “be hung up in workshops to educate employees along the lines of the fundamental principles of life and business.” In the spring of 1917, according to the testimony of Mather, which is not contradicted, the business of the local view cards “got very dull” and after he notified three of his salesmen, Fox, Rhodes and Bartlett, who had been selling “local view post cards,” “that he did not see how he could profitably keep them on the road longer,” they “started out to get other jobs.” Through an advertisement in a newspaper they entered the employ of appellee, Stevens-Davis Company, as salesmen to sell pay envelope-cards of an “inspirational and educational” character to employers, principally manufacturing companies, to be distributed to their employees through the weekly pay envelopes of the employees. The evidence shows that Fox, Rhodes and Bartlett explained the nature of the pay envelope card business to Mather and that he organized the company of Mather & Company, appellant, for the purpose of engaging in a similar business. Fox, Rhodes, and Bartlett left the employ of appellee, Stevens-Davis Company, and returned to the employ of appellant Mather & Company as salesmen. It is contended by counsel for appellants that Fox, Rhodes and Bartlett induced Mather to organize the company of Mather & Company and engage in-the pay envelope card business; but counsel for appellee maintain that Mather originated the idea of forming the company and induced Fox, Rhodes and Bartlett to leave appellee, Stevens-Davis Company, and join in business with appellant Mather & Company. In our opinion this question is immaterial. The acts complained of certainly do not amount to unfair competition. If any wrong was committed it was a tort for wrongfully enticing away the employees of an employer. But we do not find from the evidence that appellant is guilty of any actionable wrong. The evidence shows that a number of salesmen worked first for appellants and then for appellee, and that also some worked first for appellee and afterwards for appellants. In doing this they were exercising a perfectly legal right. They also had the unquestionable right to leave either company and engage in a competitive business. Handel Co. v. Jefferson Glass Co., 265 Fed. 286; Proctor & Collier Co. v. Mahin, 93 Fed. 875; Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229. It is not contended that the services of these salesmen were contractual and of such a special, unique or extraordinary nature as to justify relief by injunction. Cort v. Lassard & Lucifer, 18 Ore. 221; Burney v. Ryle & Co., 91 Ga. 701. And even if there were allegations and proof to this effect, relief could not be granted on the ground of unfair competition. Counsel for appellee assert that when the salesmen entered the employ of appellee they brought with them information, copies of papers, documents, and also “trade secrets” of the business of appellee. The alleged “trade secrets” of appellee, as far, as we can gather from the evidence, consisted of samples of pay envelope cards called “Success Talks,” copies of instructions to salesmen, called “Sales Talks,” lists of customers, routes for salesmen, and generally the details of the nature of the pay envelope card business. Such information in our opinion does not come within the definition of “trade secrets.” It is not “a plan or process, tool, mechanism or compound, known only to its owner and those of his employees to whom it is necessary to confide it.” (22 Cyc. 842.) The information in question merely related to the general principles of conducting a business. There was nothing secret about the cards called “Success Talks” as they were to be sold on the market to anybody who would purchase them. The other information could not possibly be said to constitute “trade secrets” as understood in a legal sense. Furthermore, even if the information was, in law, of a secret nature, the divulging of it to appellants did not constitute unfair competition. If appellee was entitled to equitable relief in this respect it would be based on another ground than unfair competition. The acts of appellants obviously do not come within the “palming off” rule and that is the test that we have adopted as the rule of law in the case at bar. Counsel for appellee admit the right of an employee to use the experience and knowledge he acquires in one business in any other business in which he may engage but maintain that such knowledge, particularly the “Sales Talks,” should not be used for “educating new salesmen.” 'This distinction in our opinion is wholly immaterial.

It is further contended by counsel for appellee that after the filing of the bill in the present case employees of appellants obtained secret information of appellee which was contained in a report of a convention of salesmen of appellee held in Chicago in December,. 1920. The report was called “Howls from the First Convention of Order Hounds” and consists principally of an exchange of experiences and views of appellee’s salesmen. It is also contended that employees of appellants attempted to entice away salesmen of appellee who were attending the convention. In our opinion none of these acts constitutes unfair competition. The views we have expressed in regard to similar contentions cover the objections in question.

Counsel for appellee further maintain that appellants “deliberately stole the principles, system and details” of appellee; that they plagiarized the fifty-two topics of the cards “Success Talks” varying the language somewhat; copied the same sequence of subjects; imitated the tints of colors of the cards, their size, their marginal ruling, their thickness, the quality of paper — all to such an extent that the cards of appellants and appellee are “nearly identical.” It is further contended that appellants copied the “Sales Talks” of appellee, the color and size of a portfolio used for the cards “Success Talks,” and the forms of order blanks of appellee.

We shall consider first the question whether the topics or subjects of the cards of appellants and appellee are written in the same or substantially the same language? As counsel for appellee disclaim that, appellee is proceeding on any theory of infringement of copyright, the inquiry will relate only to the question of the alleged similarity of language of the two sets of cards. The cards of appellants were written by Edward J. Shay, a writer who had been employed by Elbert Hubbard and had been associated with the Roycrofters for eight or -nine years. He was paid $500. He is now in the employ of appellants at an annual salary of $10,000 “with a possible bonus of $2,500.” The original exhibits of the cards have been filed in this court. They are contained in a portfolio, the cards pasted in being appellee’s and the ones attached appellants’. The subjects of the cards consist of what are called the fundamental virtues and kindred topics such as Loyalty, Honesty, Temperance. It is only necessary to state, without any argument, or reference to essays or standard works, that appellee has no exclusive right to such familiar subjects. Stevens testified, however, that his “thought is original.” It may be true that it appears to him to be “original” as he further testified that he had read only three books in his life and that the cards were written from his “experience and observation.” Yet the first card of appellee, which is one on ‘ ‘ Opportunity,” begins thus: “That intangible and mysterious thing called opportunity about which so many essays have been written so ma/ny sermons preached and so many poems inspired.”' As a matter of fact the thought of appellee is not original. Furthermore, the language or phraseology of the two sets of cards is not similar. We have read and compared the cards of appellants and appellee contained in the portfolio with the exception of two that are missing, and we are of the opinion that there is a material difference in the phraseology, the ideas and the illustrations. Furthermore, fourteen of the titles of appellants’ cards are different from those of appellee. We shall quote from several of the cards on corresponding subjects in order that the difference may be seen. The card of appellee entitled “Procrastination” is in part, as follows: “Those infernal thought waves of procrastination are mental ‘bugs’ that have a brilliant headlight in front and a long sharp ‘stinger’ behind. They breed by the millions with a little encouragement. * * *” The card of appellants which is supposed to correspond to “Procrastination” is entitled “Never Say ‘Wait A Minute’ ” and is, in part, as follows: “Of all Habits that will destroy your ability to help others or to help yourself the ‘Wait A Minute Habit’ is the worst.” The card of appellee entitled “Hope” is, in part, as follows: “That eternal sunshine which brightens the path ahead— that guide of all ages which bids us look upward above the din of today — * * * that bright ray which illumines the darkest passages of life’s journey * * The card of appellants corresponding to this is entitled “Hope Is The Sugar That Sweetens Life” and is, in part, as follows: “Was today a Bad day? Well — Hope for abetter Tomorrow! Are things going Wrong? Are events Topsy-Turvy? * * *” Counsel for appellee admit that appellants have “changed the subject-matter of” their cards “just enough to avoid prosecution” for violation of the Copyright Act. We are of the opinion that they have changed the “subject-matter” so materially that the cards cannot be mistaken for each other in respect of phraseology, at least, by even the most casual observer.

On the hearing an issue was made as to whether Stevens, the president of appellee, Stevens-Davis Company, wrote the cards, and a number of witnesses testified on this subject. Both counsel for appellants and counsel for appellee have argued the question at some length in their briefs, but in our opinion it is wholly irrelevant and immaterial. Appellee is apparently the owner of the copyright of its cards, and it makes no difference whether Stevens wrote the cards or whether they were written by someone else. In the opinion of Professor Linn of the Chicago university, who testified for appellants, the cards of appellee possess no literary excellence whatever. He stated that there are three types of errors which appear steadily throughout the cards, — errors of grammar, confusion of thought and mixed figures of speech, and that “there is a mixture of figures to such an extent” that to him “they constitute an absurdity.” In regard to Stevens’ claim of original authorship of the cards without any books as guides to assist him, there is an incident that affects his credibility as a witness. Counsel . for appellants showed by two enrollment cards of the Sheldon School of Salesmanship that one Boderick Gr. Stevens was enrolled at the Sheldon school. The name is the same as Stevens,’ and he did not deny that the name was his. Furthermore, the rule is that, until the contrary is shown, the identity of the name raises the presumption of the identity of the person. Abbott’s Proof of Facts, p. 556,3rd Ed.; Reynolds’ Trial Evidence, p. 172. In explanation of the enrollment cards, Stevens testified that he himself did not attend the school but that he “bought the book” for an employee of his named Granahan. It is not easy to understand why an enrollment in the name of Stevens was necessary in order to “buy the book” for Granahan, and it is difficult to perceive why an enrollment of Stevens as-a student was necessary at all to “buy a book.” Another improbability in Stevens’ testimony that he wrote the cards without assistance from any books of reference is that anyone who would not avail himself of such books would be culpably negligent. In this connection there is also significance in the fact that the bill of complaint alleges that appellee, Stevens-Davis Company, is engaged in “inspirational and educational work” and that Orison Swett Harden’s book entitled “Architects of Fate or Steps to Success and Power,” published in 1897, says in the preface that the “keynote” of the book is “Inspiration to character building”; and the title states that the book is designed to “inspire youth to character building.” Some of the subjects discussed in Harden’s book are the following: “Success under Difficulties,” “Dare,” “Clear Grit, ” “ Self-Help, ” “ Opportunities Where You Are, ’ ’ and “The Curse of Idleness.” Counsel for appellee say in their brief that Harden’s book has not the master’s mark upon it. That is true, but the book has been sent to this court as an original exhibit, has been discussed by both counsel, and when it was referred to on the hearing before the master, the master in effect said that the book need not be actually produced. In this situation of the record we think the book may be treated as in evidence.

Considered as to their physical appearance, there is a general resemblance between the cards of appellants and those of appellee. Bnt there are differences that are so apparent that they could be noticed by an ordinary purchaser. This is true as to the cards of appellants wjiich were first produced and sold, and particularly true as to the cards sold by appellants after the preliminary injunction. The subjects on the cards of appellants are printed in large gilt type and are inset on the left top corner of the cards. Each sentence is paragraphed. At the bottom of each card on the front side there are the following words and numeráis: “Copr. G-. C. Mather 1917.” The cards of appellants are tinted in different colors from those of appellee and the colors of the cards of appellants on the same subjects as those of appellee are different. The styles of the borders are similar. The cards of appellee have fewer paragraphs, some of them being printed almost solid. The subject is not indented on the cards but is in the body of the cards. At the bottom of the cards there is a “C” and the numeral “1916.” The size of the two sets of cards is substantially the same. This must necessarily be so as they are to be put in standard pay envelopes. It is probably a fair inference from the evidence, although it is denied by some of the witnesses, that appellants used the cards of appellee as guides in writing their cards, but that is not, in itself, unfair competition. In the “system,” “plan,” “scheme” or “service” by which the cards are sold appellee has no proprietary right. Hughes v. West Pub. Co., 225 Ill. App. 58; Haskins v. Ryan, 71 N. J. Eq. 575; Helfi Co. v. Silvex Co., 274 Fed. 653; Bristol v. Equitable Life Assur. Society, 52 Hun (N. Y.) 161, 5 N. Y. Supp. 131. The name “Success Talks” was never printed on or attached to the cards of appellee and, therefore, appellee acquired no right in those words as a trade-mark. DeLong Hook & Eye Co. v. Hump Hairpin Mfg. Co., 297 Ill. 359, 364, and the cases cited therein. In fact counsel for appellee do not claim any violation of a trade-mark. - The mere adoption and use of words in advertisements, circulars and price lists and on signs and stationery give no exclusive right to their use. DeLong Hook & Eye Co. v. Hump Hairpin Mfg. Co., supra. The declaration alone of a person, however long and however extensively published, that he claims property in a word as his trade-mark, cannot make it his property. Candee, Swan & Co. v. Deere & Co., 54 Ill. 439. In this case, the purchasers of the cards are not of the ordinary kind or of only average intelligence and observation. The cards are bought for employers principally by purchasing agents and executives of large manufacturing enterprises. The cards are not sold by appellants by displaying them in stores for the public to buy, but are sold by salesmen to individual purchasers. The general rule is that where ordinary attention will enable purchasers to discriminate between the goods or articles sold by different parties, a court of equity will not interfere. DeLong Hook & Eye Co. v. Hump Hairpin Mfg. Co., 297 Ill. 359, 371, 372; Ball v. Siegel, 116 Ill. 137; Elgin Butter Co. v. Elgin Creamery Co., 155 Ill. 127.

“It is presumed that the public uses its senses and takes note of differences which are thus disclosed.” 38 Cyc. 790. But, as we have stated, the prospective purchasers of the cards of appellants are not ordinary purchasers but are purchasers above the average, and this is a fact to be considered.

In Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 142 Ill. 494, the court said (p. 508) : “Neither puts its steam boilers on the market to be sold by retailers or middle-men to the final purchaser, but both deal directly with customers who purchase boilers for their own use, and who give their orders directly to the complainant or defendant as the case may be. In this way the liability of intending purchasers to- be deceived into mistaking boilers of the defendant’s manufacture for those of the complainant, if not wholly obviated, is reduced to the minimum.”

In Harvey Hubbell, Inc. v. General Electric Co., 262 Fed. 155, the court laid stress on the fact that the articles were sold largely to jobbers and men who are familiar with the trade.

In the case of Borthwick v. Evening Post, L. R. 37 Ch. Div. 449, 461, in considering the similarity of the names “Morning Post” and “Evening Post,” the difference between articles which are bought by the public generally and those which are bought by more discriminative purchasers was referred to as follows: 1 ‘ This is very unlike the sale of articles such as tea, or anything else where the articles are bought by the public, who take one particular word of a distinctive name, and are caught by the similarity in the type and by a similarity in the size or colour of the packages; because the representations assumed to be made will only be to those who are going to buy, who will read the paper and will not only take one hasty look at it. * * * They are persons of rather more intelligence, and are not likely to be misled by the colour or imitation of name as purchasers might be of packets, such as of tea, soap, or anything else.”

Counsel for appellee say in their brief that: “The case at bar must be approached from the point of view of the average overworked business man always in a hurry, or, as the courts have designated such a person, 'the unwary purchaser.’ ” We know of no courts that have designated the “overworked business man” as “the unwary purchaser”' and we are unable to find any mentioned by counsel. They cite the case of Cauffman v. Schuler, 123 Fed. 205, 206, as using the phrase “the unwary, the uncautious, or the ignorant purchaser” but it is not applied to “the overworked business man.”

Counsel for appellee further contend that although the appellee may have no exclusive right in the word “Success,” the word has acquired a secondary meaning among the trade in connection with the established reputation of the service of appellee’s “Success Talks ’ ’; and that the name ‘ ‘ Steps to Success ’ ’ used by appellants to designate their cards is so similar that it will deceive and mislead purchasers into believing that the cards of appellants are those of appellee. Stevens testified that appellee has an established reputation; and that it began the pay envelope card business in 1914, although Seiders, his one-time sales manager, says it was begun in the first part of 1916. The burden of proving the secondary meaning of the word “Success” is upon appellee and “must be sustained by substantial evidence sufficient to show that the use of the word by appellant will result in passing-off its goods as the manufacture” of appellee. DeLong Hook & Eye Co. v. Hump Hairpin Mfg. Co., 297 Ill. 359, 369. We are unable to find any substantial evidence that among the trade or the public generally the word “Success” has acquired the secondary meaning-contended for by counsel for appellee. On the contrary, several of the purchasers of appellee’s card service testified that they did not know the name of appellee, Stevens-Davis Company, the firm they were dealing with, and that they did not know that the service of appellee was designated by the name “Success Talks.” Feustman, vice president of the Worthington Pump Company, whose branch company, the Snow Holly Works Company, was using appellee Stevens-Davis Company’s card service, did not know that the “Success Talks” were manufactured and sold by appellee Stevens-Davis Company. Furthermore, he did not associate the name “Success Talks”' with the card service of any particular company. Amundson, purchasing agent for the “Fred C. Arner” company, testified that their company was using the cards of appellee but that he did not remember the name of appellee; that he had 11 absolutely forgotten” it; that the salesmen of appellant Mather & Company may have introduced themselves as being with Mather & Company but that the name “Mather & Company” “did not mean any more” to him than “Stevens-Davis Company” did. If the name of appellee, Stevens-Davis Company, was well established in the trade, as is maintained by appellee, and if the name “Success” in connection with its cards called “Success Talks” had acquired a secondary meaning which associated the name “Success” with its cards, it seems strange that appellee’s customers did not know its name or the name of its cards.

There was also testimony by Shay, who had been employed by Elbert Hubbard and associated with the Roycrofters for eight or nine years in a somewhat similar line of work as appellee, that he had never heard of Stevens prior to the time that he (Shay) wrote the cards for appellants. McDowell, secretary of the Sheldon School of Salesmanship, testified that he had never heard of Stevens. - Furthermore, appellee is not entitled to the exclusive right of the word “Success” in connection with the name “Success Talks ’ ’ since the evidence shows a prior use of the word as part of the name of Marden’s book published in 1897 under the title “Architects of Fate or Steps to Success and Power.” It would appear that appellants took the name “Steps to Success” from Marden rather than from the name “Success Talks” of appellee.

In the case of Yellow Cab Co. v. Ensler, 214 Ill. App. 607, it