palming off and misappropriation and misrepresentation and chief justice charles evans hughes

Like the word foist or foisting, fobbing can be used with a variety of prepositions to express various ways that someone is being tricked. The use of fob as a verb predates its general noun use (except for one 1393 quotation), though not by much. It means "to cheat, deceive, delude, or trick" someone. A person can be fobbed out of something, be fobbed of something, or fob someone with something. From 1583: "I will not...fobbe you with fayre wordes, and foule deedes." From 1593: "He...would fobbe him uppe with a thousand untruthes." Or, "Kings and ministers have fobbed us of our renown." Or, one can simply use the verb without a preposition, "They think themselves fobbed by our dextrous policy." Sometimes the verb fob can become fub or fubbed, also.

Just as one can foist someone in a position (surreptitiously or in underhanded manner bring someone in), so if you fob in or fob into someone/something, you bring that one into a situation by "jobbery or trickery." You can fob something on or upon another, too, and this is synonymous with palming or passing off upon. Richardson's Pamela (1741) has the following line: "Don't fob upon us your girl with the Pagan name for Lady Jenny." Or, from the 17th century, "These things were fobb'd in by several Popes..to serve their own turns." If you make up an excuse, you can be said to fob up the excuse. From 1805: "So now it was time..To fob up an excuse for my sudden retreat."

Finally, and used most frequently in our language today, is fob off (just like all the historical usages of foist have been telescoped today into foist upon). As the OED has it, fob off means "to put off deceitfully; to attemp to satisfy with an excuse or pretense; to baffle, cajole." Shakespeare holds pride of place in the use of fob off in this way. From 2 Hen. IV: "I have...bin fub'd off, and fub'd off, from this day to that day." People may try to fob off others also by giving them something of inferior quality as if it is the real thing. From 1892: "Able-bodied paupers have been fobbed off with..broth 'no better than hot water.'" So, something of inferior quality might be fobbed off on us, with assurances that it is of good quality, or we might be fobbed off with (deceived with) that inferior good. In any case, it doesn't feel good to be fobbed or fubbed.

We finally return full circle to where we began by realizing that fobbing off is synonymous with palming off (upon) someone. "If a..novel cannot be fobbed off upon the...people of London..it is rusticated" (actually an interesting use of rusticate-to make rural- and here meaning to 'take out of circulation').

Palming Off in Law

When Chief Justice Hughes, used the words palming off in the Schechter case (1935) to describe the essence of "unfair competition" in American common and statutory law, he was not just making up the term or recalling card games from his earlier years. By that time, palming off had become a term of art in American law. Though the OED cites an 1891 case reported in the Atlantic Reporter (put out by West Publishing beginning in the 1880s, to make easily accessible reported cases): "The langauge of the court imports an intentional deceit and palming off," in fact the first usage of palming off in an appellate case I discovered was from 1868. By the early 1870s it could be used synonymously with passing off, such as when the case of Osgood v. Allen spoke of "Passing off or palming off." According to the OED the term palming off meant the "action of selling or displaying the product of property of another as one's own."

But Hughes' use of the term palming off is slightly more subtle than the dictionary definition.* "Primarily, and strictly, it ("unfair

[*In Hughes' language, the OED definition would be called "misappropriation," while Hughes pointed to the origin of the legal use of palming off in "misrepresentation."]

competition") relates to the palming off of goods as those of a rival trader." That is, palming off in law was a species of misrepresentation, where you attempted to sell products you actually produced or obtained as those of another (more highly-respected) company. The one doing this, of course, would have been the chisleler, the one who would bring down the quality of the market by his poor-quality goods. For this definition Hughes points to the 1888 case Goodyear's Rubber Mfg. Co. v. Goodyear Rubber Co (128 US 598). It isn't my purpose here to review this early case of trademark infringement law. Suffice it to say that the Court defined palming off in 1888 as follows: "where the defendant, by his marks, signs, labels, or in other ways, represents to the public that the goods sold by him are those manufactured or produced by the plaintiff; thus palming off his goods for those of a different manufacture, to the injury of the plaintiff" (128 US at 604). Originally, then, palming off was saying that the goods you have (of inferior quality) were actually produced by someone else. You sell these goods in order to turn a profit for yourself but it ends up hurting the market in general, as well as the company producing the superior quality products.

But Hughes also mentions that "in recent years, its scope has been extended." Palming off doesn't simply mean the misrepresentation that your goods are really those of another, but "it has been held to apply to misappropriation as well as misprepresntation, to the selling of another's goods as one's own--to misappropriation of what equitably belongs to a competitor" (295 US at 532, citing a case from 1918). Thus, by the time we get to the Schechter case in 1935, palming off can mean both things in law: either the misrepresentation that your goods which you sell are the work of goods of another OR that the goods you are selling are actually your own work when they are, in fact, the work of another.

Conclusion

We've come a long way from the chiseler and the known corner-cutter to the field of early trademark infringement and palming off, but it is does illustrate not only that one can take fascinating trips with words but that our legal language is often derived from and caught up in language that has its origins other places. Following those "other places" can give us hours of reverie, even if we are "supposed" to be doing other things.

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