Ii.—: Slander of Title.

Slander of title. The wrong called Slander of Title is in truth a special variety of deceit, which differs from the ordinary type in that third persons, not the plaintiff himself, are induced by the defendant’s falsehood to act in a manner causing damage to the plaintiff. Notwithstanding the current name, an action for this cause is not like an action for ordinary defamation; it is “an action on the case for special damage sustained by reason of the speaking or publication of the slander of the plaintiff’s title”. Also the wrong is a malicious one in the only proper sense of the word, that is, absence of good faith is an essential condition of liability; or actual malice, no less than special damage, is of the gist of the action. The special damage required to support this kind of action is actual damage, not necessarily damage proved with certainty in every particular. Such damage as is the natural consequence of the false statement may be special enough though the connexion may be not specifically proved.

Recent extensions of the principle. This kind of action is not frequent. Formerly it appears to have been applied only to statements in disparagement of the plaintiff’s title to real property. It is now understood that the same reason applies to the protection of title to chattels, and of exclusive interests analogous to property, though not property in the strict sense, like patent rights and copyright. But an assertion of title made by way of self-defence or warning in any of these matters is not actionable, though the claim be mistaken, if it is made in good faith. In America the law has been extended to the protection of inchoate interests under an agreement. If A. has agreed to sell certain chattels to B., and C. by sending to A. a false telegram in the name of B., or by other wilfully false representation, induces A. to believe that B. does not want the goods, and to sell to C. instead, B. has an action against C. for the resulting loss to him, and it is held to make no difference that the original agreement was not enforceable for want of satisfying the Statute of Frauds.

A disparaging statement concerning a man’s title to use an invention, design, or trade name, or his conduct in the matter of a contract, may amount to a libel or slander on him in the way of his business: in other words the special wrong of slander of title may be included in defamation, but it is evidently better for the plaintiff to rely on the general law of defamation if he can, as thus he escapes the troublesome burden of proving malice. Again an action in the nature of slander of title lies for damage caused by wilfully false statements tending to damage the plaintiff’s business, such as that he has ceased to carry it on; and it is immaterial whether the statements are or are not injurious to the plaintiff’s personal character. In short, “that an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law”.

It has been held in Massachusetts that if A. has exclusive privileges under a contract with B., and X. by purposely misleading statements or signs induces the public to believe that X. has the same rights, and thereby diverts custom from A., X. is liable to an action at the suit of A.. In that case the defendants, who were coach owners, used the name of a hotel on their coaches and the drivers’ caps, so as to suggest that they were authorized and employed by the hotel-keeper to ply between the hotel and the railway station; and there was some evidence of express statements by the defendants’ servants that their coach was “the regular coach.” The plaintiffs were the coach owners in fact authorized and employed by the hotel. The Court said that the defendants were free to compete with the plaintiffs for the carriage of passengers and goods to that hotel, and to advertise their intention of so doing in any honest way; but they must not falsely hold themselves out as having the patronage of the hotel, and there was evidence on which a jury might well find such holding out as a fact. The case forms, by the nature of its facts, a somewhat curious link between the general law of false representation and the special rules as to the infringement of rights to a trade mark or trade name. No English case much like it has been met with: its peculiarity is that no title to any property or to a defined legal right was in question. The hotel-keeper could not give a monopoly, but only a sort of preferential comity. But this is practically a valuable privilege in the nature of goodwill, and equally capable of being legally recognized and protected against fraudulent infringement. Goodwill in the accustomed sense does not need the same kind of protection, since it exists by virtue of some express contract which affords a more convenient remedy. Some years ago an attempt was made, by way of analogy to slander of title, to set up an exclusive right to the name of a house on behalf of the owner as against an adjacent owner. Such a right is not known to the law.

Trade marks and trade names. The protection of trade marks and trade names was originally undertaken by the courts on the ground of preventing fraud. But the right to a trade mark, after being more and more assimilated to proprietary rights, has become a statutory franchise analogous to patent rights and copyright; and in the case of a trade name, although the use of a similar name cannot be complained of unless it is shown to have a tendency to deceive customers, yet the tendency is enough; the plaintiff is not bound to prove any fraudulent intention or even negligence against the defendant. The wrong to be redressed is conceived no longer as a species of fraud, but as being to an incorporeal franchise what trespass is to the possession, or right to possession, of the corporeal subjects of property. We therefore do not pursue the topic here.