manufactured and sold by them the blue label of the Cigar Makers' International Union of America. .

Thereupon appellees, Powers, Kieffer and Wopprice, suing for themselves and all their associates and fellow members in the Cigar Makers' International Union and the Cigar Makers' Protective Union No. 32, and joining these two organizations also as plaintiffs, brought this action to prevent this alleged wrongful use of the label.

The International Union, embracing, according to the petition, some . . . members and the local union some . . . . members are voluntary, unincorporated labor organizations, composed solely of practical cigar makers. They are working men who do not own the product of their labor, being exclusively wage workers. The purpose of these unions, as said in the petition, is generally to maintain a high standard of workmanship and secure fair wages to cigar makers, to elevate the material, moral and intellectual welfare of the membership and by legitimate, organized effort to secure laws prohibiting labor by children under fourteen years of age, the abolition of the "truck" system, the tenement house cigar manufacture and the manufacture of cigars by prison convict labor. Other praiseworthy objects are set out which need not be detailed. It is further averred that, for the purpose of designating the cigars made by members of the union the label in controversy was adopted and extensively used as a trade-mark or certificate of identification. And, when pasted on the outside of cigar boxes containing cigars made by members of the union, it is a guarantee that the cigars are made by first-class workmen, members of the Cigar Makers' Union, etc., etc.; that because the members receive fair wages and were thus able to furnish good workmanship, the cigars so labeled commanded a higher price than did similarly looking cigars not so labeled; that the label was, therefore, a source of great profit and benefit to the appellees and other members of the union.

The appellants, for defense, do not deny the use of the label as charged in the petition, but it is insisted by them that this label does not possess any of the elements of a trade-mark; that the appellees are engaged in no trade, having nothing to sell, and, therefore, nothing to protect by a trade-mark; that none of them are engaged in the business of selling cigars; they are "simply workmen employed by other people making cigars, first by one person and then another, and those persons sell the cigars;" that the plaintiffs, therefore, "have not shown any property right in the label as a trade-mark or otherwise." Moreover, that the membership is an ever changing one, constantly

varying in numbers, composed of a few thousand to-day and many thousand to-morrow-"a shifting crowd." That the plaintiffs, therefore, are not qualified to sue and have in fact no legal rights that can be made the subject of a suit.

Moreover, it is urged that the plaintiffs do not come into court with clean hands; that they are members of an organization lately engaged in boycotting the defendants and attempting to ruin their business; that the label itself can not be approved, either in law or morals, as it denounces other cigars than union-made ones as inferior and unwholesome, and the product of filthy tenement houses or made by coolies and convicts.

And, first, we may admit that the label is not used as a trade-mark in the ordinary sense of that word. It is not a brand put on the goods of the owner to separate or distinguish them from the goods of others, but we can not agree on that account that it does not represent a valuable right which may be the subject of legal protection. Why may not those engaged in skillful employment so designate the result of their labor as to entitle them to the fruits of their skill when it is admittedly a source of pecuniary profit to them? And this, though they may not own the property itself?

They are not, it is true, "in business" for themselves in the ordinary sense, but they have property rights nevertheless. They may not select a label and be protected in its use apart from its connection with some commodity; but they not only select it in this instance, they apply it to property, and it does not at all matter that the tangible property is that of another.

In order to get the benefit of the superior reputation of cigars made by them the appellees select and apply this label as a distinguishing brand or mark. And it would be strange if this thing of value, this certificate of good workmanship and which makes the goods made by them sell and thus increases demand for their work be entitled to no protection, because those making the selection and application are not business men, engaged in selling cigars of their own. The man who is employed for wages is as much a business man as his employer in that larger sense in which the word "business" has come to be used by statesmen and legislators.

In a number of the States laws have been enacted giving protection to the men engaged in the business of working for wages, and their right of organizing and selecting appropriate symbols to designate the results of their handiwork is recognized and ordained to be the

subject of lawful protection by the courts. Thus in this State, in April, 1890, a law was enacted by the General Assembly providing that "every union or association of working men or women adopting a label, mark, name, brand or device, intended to designate the product of the labor of the members of such union, shall file duplicate copies of such label in the office of the secretary of State, who shall then give them a certificate of the filing thereof, and that every such union may, by suit in any of the courts of the State, proceed to enjoin the manufacture, use, display, etc., of counterfeits or imitations of such labels, etc., on goods bearing the same, and that the court having jurisdiction of the parties shall grant an injunction restraining such wrongful manufacture, use, etc., of such label," etc.

This suit was filed before the adoption of this statute, but it indicates the policy of the law, the growth or expansion and perhaps the creation of legal remedies hardly known to ancient trademark law.

The learned chancellor below, in an exhaustive opinion reviewing all the authorities, among other things, said, and we can say it no more clearly, that "the known reputation of a particular kind of skilled labor employed in the development of a particular product or class of products determines, to a large degree, the value or price of such products when put on the markets. To stamp or label a commodity as the product of a particular kind or class of skilled labor determines the demand for and the price of such product or commodity. The marketable price of a commodity influences the scale of wages paid for its manufacture. The higher the price, the higher the wages paid; hence it is indisputable that the employe whose skilled labor, in the production of a particular commodity, creates a demand for the same, that secures for him higher remunerative wages, has as definite a property right to the exclusive use of a particular label, sign, symbol, brand or device, adopted by him to distinguish and characterize said commodity as the product of his skilled labor, as the merchant or owner has to the exclusive use of his adopted trade-mark on his goods."

Further, we agree with the learned chancellor that there is no competent evidence that the appellees, or any of them, have been engaged in boycotting the appellants, and thus deprived themselves of the right to enforce their legal remedies in a court of equity. Whatever may be said of the letters and circulars looking to this end, and exhibited in the proof, it is not shown by any competent proof that the appellees instigated or had aught to do with the attempted boycott. And, more

over, this boycott, which seems to have occurred in 1886, did not in any way grow out of the wrongful use of the label in controversy. On the whole case, therefore, we are of opinion that the law may be justly invoked by organized labor to protect from piracy and intrusion the fruits of its skill and handiwork, and that brain and muscle may be the subjects of trade law rules as well as tangible property. The judgment is affirmed.

QUESTIONS

1. It is argued that such a statute as is cited in the principal case is contrary to the state constitution: (a) as a deprivation of property without due process of law, (b) as a denial of the equal protection of the laws. Decide. 2. Of what value to workingmen in connection with labor disputes is a statute of this nature?

3. Is there in your state any statute which protects the labels, marks, and so forth, of unions or associations of working men?

(e) Closed Shop Agreements

HOBAN v. DEMPSEY

Supreme Judicial Court of Massachusetts. 1914. 217 Mass. 166. RUGG, C. J. The plaintiffs are members of a labor union of longshoremen. There are two groups of defendants, the one members of a different labor union of longshoremen, and the other representatives of certain transatlantic steamship companies. The plaintiffs seek to enjoin the defendants from proceeding with an agreement which consists of thirty articles covering most, if not all, of the conditions of labor likely to arise in the course of such employment. One paragraph provides in substance that all longshoremen employed by the contracting transatlantic steamship lines shall be members of the defendant union whenever such men are available, and whenever such men are not available, then other men may be employed until the defendant union can supply men, but in any event men not members of the defendant union may be employed until the end of the day. It is contended that this clause is so illegal that performance of the contract ought to be enjoined at the instance of third parties. A trial was had before a single justice who, at its conclusion, found that the "contract was freely and fairly entered into between the contracting parties without any purpose or motive on the part of the representatives of the International Longshoremen's Association (the defendant union) to injure the plaintiffs or to coerce them into joining its union or unions,

although I am satisfied that the legal effect of the contract may deprive the plaintiffs of employment by the transatlantic steamship lines," and ruled as matter of law that the bill could not be maintained and entered a decree dismissing it. The plaintiffs' appeal brings the case here...

The question remains whether upon the facts found the plaintiffs are entitled to relief. There is no allegation or proof of coercion or violence direct or indirect toward the plaintiffs, or that the plaintiffs or any of them have been discharged from employment as a result of the contract. It is uncontroverted that the employment of longshoremen is occasional, work being offered only upon the arrival and departure of vessels. The plaintiffs' complaint is that, having no present contract, there is likelihood that in the future they will not be able to secure employment to the same extent as formerly from the transatlantic steamship lines by reason of this contract. This is a simple case where employers and a union of employees have made an agreement freely and without any kind of constraint, the terms of which do not require the breaking of contractual relations with any one, to the end that all the work of a specified kind be given to the members of a union so far as they are able to do it, for a limited period of time. If a sufficient number of union men are not supplied, the employer may hire whom he chooses. For aught that appears, the contract may have followed competition between rival groups of workmen to secure the work.

The inducements which moved both parties to the making of the contract were those ordinarily accompanying the kind of competition which is within the bounds of law. There was no fraud, intimidation, molestation, threat or coercion, covert or open, acting either upon the body or mind or property interests of the contracting parties. The incitements to the contract were those of business advantage alone. The terms of the contract do not preclude the employers from procuring workmen from any source if the defendant union does not supply them constantly with a sufficient number of competent longshoremen. But on the contrary, they are given this right expressly. The explicit finding of the single justice was to the effect that a desire or intention to harm the plaintiffs by depriving them of the chance of work, or to compel them to join the defendant union, or to do them any other injury, was not a part of the design of the contract nor one of the influences operating upon the minds of the parties in executing it. Whatever loss may come to them is an incidental result and not