#### Anatole Klintz, Appellant, v. Walter Z. Marx et al., Appellees.

Gen. No. 21,831.

(Not to foe reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1915.

Reversed and remanded.

Opinion filed April 18, 1917.

Statement of the Case.

Bill by Anatole Klintz, complainant, against Walter Z. Marx, Zero Marx, Reuben II. Donnelley and Chicago Telephone Company, defendants, charging defendants Marx with the wrongful use of the trade name “Zero Marx Sign Works” and with unfair competition in trade, and asking an injunction against all defendants as to using such trade name or one similar thereto. From a decree dismissing the bill, on demurrer, complainant appeals.

Loesch, Scofield & Loesch, for appellant.

Charles E. Selleck, for appellees.

*377Abstract of the Decision.

1. Trade-marks and trade names, § 26 * —when right to use purr chased trade name of bankt upt must be determined in court of bankruptcy. Where a bankruptcy court through its receiver sold the tangible assets of a bankrupt corporation, together with its good will and right to use its trade name, the determination of the question whether the value of the right to use such name depended on continuous usage, held to be a matter to be determined by that court, and not collaterally in a suit brought by the purchaser of such right at such sale against parties charged with infringement and unfair use of the name.

2. Bankruptcy, § 30*—when sale made without authority may be validated by confirmation. A bankruptcy court having power to order a sale of intangible property may, by confirmation of a sale made by a receiver without a prior order, ratify and validate the sale, the confirmation being equivalent to a prior order.

3. Trade-marks and trade names, § 24*—what constitutes unfair competition in trade. The use by defendants of the words “Zero Marx Signs” and "Marx Zero Signs” in a telephone directory, and solicitation by them of business by representing they were successors in business of a corporation bearing the name “Zero Marx Sign Works,” held to be unfair competition in trade against complainant as purchaser at a receiver’s sale in a bankruptcy court of the right to use the name of said corporation, in a suit for infringement and unfair use of such name.

4. Trade-marks and trade names, § 14*—right of purchaser to use trade name. A trade name is an asset which may lawfully be sold and the purchaser has the right to use it.

5. Trade-marks and trade names, § 10*—what is effect of use of trade name by purchaser. The use of a trade name by the purchaser of the right to use same is not a representation that the purchaser is the identical person who formerly used it, but merely that, he has the right to do business under that name.

6. Trade-marks and trade names, § 26*—when bill for injunction against use of trade name is sufficient. A bill for an injunction setting up complainant’s purchase of the right to use a certain trade name and the use by defendants in their business of a similar name with representations that they were successors to the original user of the name, held to state grounds for relief in a court of chancery.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Goodwin

delivered the opinion of the court.