Trade-Mark

A symbol, emblem, or mark, which a tradesman puts upon or attaches in some way to the goods he manufactures or has caused to be manufactured, so that they may be identified and known in the market. Brown, Trade-Marks, 2d ed. $ 87. “A particular mark or symbol used by a person for the purpose of indicating that the article to which it is affixed is sold or manufactured by him or his authority, or that he carries on business at a particular place.”

35 L. J. Ch. 61.

A sign or symbol primarily confined exclusively to the indication of the origin or ownership of the goods to which it may be attached, and it may be composed of any name, device, line, figure, mark, word, letter, number, or combination or arrangement of any or all of these which would serve the sole purpose of a trade-mark, and which no other person can adopt or use with equal truth.”

Avery v. Meikle, 81 Ky. 73.

Broadly defined, a trade-mark is a mark by which the wares of the owner are known in trade.

Shaw Stocking Co. v. Mack, 12 Fed. 707.

The office of a trade-mark Is to point out distinctly the origin or ownership of the N article to which it is affixed; or, in other words, to give notice who was the producer; Lawrence Mfg. Co. v. Mfg. Co., 138 U. S. 537, 11 Sup. Ct 396, 34 L. Ed. 997; Brown Chemical Co. v. Meyer, 139 U. S. 540, 11 Sup. Ct. 625, 35 L. Ed. 247. It may consist of a name, a device, or a theretofore in use, adopted and used by a manufacturer, or a merchant for whom goods may be manufactured, to designate them as those which he has manufactured or sells. It may be put either upon the article itself or its case, covering, or wrapper, and is assignable with the business; Metcalfe v. Brand, 86 Ky. 331, 5 S. W. 773, 9 Am. St. Rep. 282. It may be in any form of letters, words, vignettes, or ornamental design. Newly-coined words may form a trade-mark; Brown, Trade-Marks 151. The exclusive right to a trade mark or device rests not on invention, but on such use as makes it point out the origin of the claimant’s goods and must be early enough for that, but absolute priority of invention is not required; Tetlow v. Tappan, 85 Fed. 774. Property in a trade-mark is acquired by the original application to some species of merchandise manufactured of a symbol or device not in actual use, designating articles of the same kind or class; Delaware '& H. G. Co. v. Clark, 13 Wall. (U. S.) 322, 20 L. Ed. 581. The use by different persons of a particular manufactured article for a short time and in a distant section of the country, of a label containing a particular word printed for the use of any purchaser, will not prevent the acquisition of the word as a trade name by one who works up under it a trade in such article in a particular section of the country; Cohen v. Nagle, 190 Mass. 4, 76 N. E. 276, 2 L. R. A. (N. S.) 964, 5 Ann. Cas. 553. A number of workmen, engaged in a branch of industry, may acquire a trade-mark; Schmalz v. Wooley, 57 N. J. Eq. 303, 41 Atl. 939, 43 L. R. A. 86, 73 Am. St. Rep. 637. “A trade-mark or trade-name is of no virtue in and of itself. It becomes of value only through use, and because by use it is an assurance to purchasers of the excellence of the article to which it is affixed as manufactured by the one whose name appears as the producer.... Disassociated from such manufacture, it is not an assurance of genuineness. When used by another, its use works a fraud upon the purchaser. A trademark is analogous to the good will of the business.... The good will is inseparable from the business itself. So, likewise, is a trade-mark;” Bulte v. Igleheart Bros., 137 Fed. 498, 70 C. C. A. 76. It cannot be assigned, or licensed, except as incidental to the transfer of a business or property in connection with which it has been used; Macmahan Pharmacal Co. v. Mfg. Co., 113 Fed. 468, 51 C. C. A. 302. It can be acquired only in connection with an established business, and retained only in connection therewith; Filkins v. Blackman, 13 Blatch.

440, Fed. Cas. No. 4,786.

There used; Weener v. Brayton, 152 Mass. 101, 25 N. E. 46, 8 L. R. A. 640; Witthaus v. Mattfeldt & Co., 44 Md. 303, 22 Am. Rep. 44; Morgan v. Rogers, 19 Fed. 596, per Colt, J. A trade-mark will pass with the transfer of the business in which it was used; Richmond Nervine Co. v. Richmond, 159 U. S. 293, 16 Sup. Ct. 30, 40 L. Ed. 155; Noera v. Mfg. Co., 158 Mass. 110, 32 N. E. 1037; whether specifically mentioned or not; Le Page Co. v. Cement Co., 51 Fed. 941, 2 C. C. A. 555, 17