trade-mark

The protection of trade-marks is the law's recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trade-mark is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same—to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trade-mark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress.

A symbol, emblem, or mark used by a person to indicate that the article to which it is afl Bxed is manufactured or sold by him, or that he carries on business at a particular place. 35 L. J. Ch. 61. Its original use was by manufacturers, but its use has been extended to other than tradesmen, to indicate the nature of their business, their identity, or the place where their business is carried on. Slater, Trade-Marks, 232; 55 Barb. (N. Y.) 151; The office of a trade-mark is to indicate the origin, ownership, nature, etc., of goods manufactured or sold, or the person by whom, or the place where, they are so manufactured or sold. The essentials, therefore, of a good trade-mark, are that it be truthful in its express or implied statements, and that it be incapable of truthful application to other goods. 57 How. Pr. (N. Y.) 1; 39 Conn. 450. Descriptive words, or words indicating quality or attributes, which may be truthfully applied by others to the same class of goods, cannot constitute a valid trademark. 136 111. 215; 67 Ga. 562. Arbitrary or fanciful names, constituting the majority of trade-marks, derive their value from the fact that they have come to identify the goods of the user, and cannot, therefore, be truthfully used by others. 51 Fed. 829; 63 Hun (N. Y.) 330. TRADE-MARKS REGISTRATION ACT 1875. St. 38 & 39 Vict. c. 91, amended by the acts of 1876 and 1877. It provides for the establishment of a register of trademarks under the superintendence of the commissioners of patents, and for the registration of trade-marks as belonging to particular classes of goods, and for their assignment in connection with the goodwill of the business in which they are used. Registration is substituted for public use as the mode of acquiring the right to a trade-mark, so that now no one can enforce his right to a trade-mark until it is registered. For the purposes of the act, a trade-mark consists (1) of a name of an individual or firm printed, impressed, or woven in some particular and distinctive manner; (2) of a written signature or copy of a written signature of an individual or firm; or (3) of a distinctive device, mark, heading, label or ticket. See 3 Ch. Div. 659. There may be added to any one or more of these essential particulars any letters, words, or figures. Certain kinds of marks used as trade-marks before the passing of the act may be registered under the act, although not coming within the statutory definition. See generally, as to the act, Sebastian, Trade-Marks; 4 App. Cas. 479-; 15 Ch. Div. 181.

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

A distinctive mark, motto, device or emblem, which a manufacturer stamps, prints or otherwise affixes to the goods he produces, so that they may be Identified in the market, and their origin be vouched for. See Trade-Mark Cases, 100 U. S. 87, 25 L. Eld. 550; Moorman v. Hoge, 17 Fed. Cas. 715; Solis Cigar Ch v. Pozo, 16 Colo. 388, 26 Pac. 556, 25 Am. St Rep. 279; State v. Bishop, 128 Mo. 373, 31 S. W. 9, 29 L. B. A. 200, 49 Am. St Rep. 569; Royal Baking Powder Co. v. Raymond (C. Ct) 70 Fed. 380; Hegeman & Co. v. Hegeman, 8 Daly (N. Y.) 1.

— Trade-marks registration aet, 1875. This is the statute 38 & 39 Viet. c. 91, amended by the acts of 1876 and 1877. It provides for the establishment of a register of trade-marks under the superintendence of the commissioners of patents, and for the registration of trademarks as belonging to particular classes of goods, and for their assignment in connection with the good-will of the business in which they are used. Sweet.