use of the letter X is not an ordinary mode of indicating quality. The three cases were thereupon registered.1 § 163. The general legal proposition, that two men may adopt the same symbol, if to be used upon different classes of goods, requires no comment. The question is this: Did the letter X, under the circumstances presented, constitute a lawful trade-mark? If used merely to indicate quality, it clearly did not. That point is too well settled to be disputed. What idea is conveyed by the use of the letter X? Has it not from its long association come to be well recognized as a mere indication of quality, as much as the numerals 1, 2, 3? That is a pure question of fact. It was a bare assumption to hold the contrary in the absence of the slightest evidence. How could any tribunal take judicial note of the fact that it was otherwise? The case before the Office was one where the applicant positively alleged that he used the letter, single, doubled, or trebled, as an indication of the respective qualities of his brooms. The allegation of the specification was conclusive. The fact was there enunciated. The Commissioner travelled out of the record. His opinion, then, as to the doctrine that the letter X does not generally indicate quality, is but an obiter dictum, - a way-side opinion, not binding in other cases. § 164. There must be some word, or sign, or device, other than the generic name, and words descriptive of quality. Under this rule, the proposed trade-mark" Beeswax Oil" was refused registration.2 The name "oil" is generic. The word "beeswax" is doubtless intended to be more or less descriptive of the quality or nature of the oil. The words "Razor Steel," as applied to the blades of knives, shears, and other cutlery, were rejected. The word "razor" is purely descriptive, and the word "steel" a generic name, and being limited to neither person nor place, so as to indicate either origin or ownership, they cannot be regarded as constituting a legal trade-mark. 1 Nos. 86, 87, and 88, Dec. 6, 1870. 3 Ibid., p. 113. "Cundurango Ointment, C. O.," is not a legitimate trademark; "ointment" being a generic term, and "Cundurango " the name of a plant extensively known, and the initials "C. O." immaterial, and not likely to be noticed. The applicant in another case sought to register the word "Invisible," to be applied to packages of powder intended for beautifying the complexion. Mr. Commissioner Leggett said: "That the word 'invisible' might be used as a lawful trade-mark, I have no doubt. But when used to indicate the character of the thing to which it is attached, it becomes descriptive, and cannot be monopolized. Such, without doubt, is the application of the word 'invisible' in this case. The intention of the applicant in the use of the word evidently is to indicate that the powder, when applied to the skin, is imperceptible or invisible; hence the word is used with its ordinary signification, as in the description of shades of colors, and when so used is, by the rulings of the courts, excluded from the list of devices that may become legitimate trade-marks." 2 § 165. The courts of France have made a number of decisions upon this point. In the Court of Colmar, in 1857 (Rian v. Bernheim3), it was held, the denomination toile ménage is not a special denomination which can become the exclusive property of a manufacturer. The term had by long use become common to commerce. The Tribunal of Commerce of the Seine, in 1858 (Thibierge v. Dupont et als.4), for the same reason rejected the words benzine parfumée. The Tribunal Civ. of the Seine, in 1861 (Mauprivez v. Buchet et als.5), had this case: The plaintiff's mint-drops were marked in relief, "Peppermint, London." The defendant, who had imitated the mark upon the same class of goods, for defence argued that the words were but an indication of the nature of the preparation, and therefore could not become private property. But 1 Commissioner's Decisions, 1871, p. 284. 3 Annales de la Prop., tome iv. p. 216. 4 Ibid., p. 400. 2 Ibid., p. 289. 5 Ibid., tome vii. p. 335. the court held that the union of the two words, placed in relief, and with characteristics determined and distinct, were a particular sign to indicate to the public that they belonged to the inventor thereof. This in effect decided that, by the manner of use, these words had acquired an individuality sufficient for the destined purpose. The same parties appeared before the Court of Paris, in 1864, on appeal.1 Held: "peppermint" is but the English appellation, but by long use in France it has become common to commerce. The simple indication of this product, in one language or the other, cannot be protected. The court plainly intimated that a particular form or disposition of letters might make it valid as a personal sign. This would virtually make it a distinctive sign of origin. § 166. When a chemical product takes naturally, in certain given conditions, the form of a known object, its denomination cannot become private property. The case of Barnett v. Kübler, in the Court of Paris, in 1866,2 illustrates this doctrine. Everybody knows, at least by name, the scientific toy called the "Serpent of Pharaoh." It is sold under the form of a little cone covered with tin-foil. When set on fire, it acquires an extraordinary development, and, with the movements, takes the form, length, and color of a real serpent. The demandant described its mode of manufacture. He employed the sulphocyanide of mercury, obtained by the action of nitrate of mercury on the sulphocyanide of potassium. The containing box had upon it a notice of " Poison." The demandant had patented the toy, but the patent had been invalidated, as being for a worthless invention. As inventor, he had given to it the name of "Serpent of Pharaoh." It was sometimes called the "Artificial Serpent" and the "Eggs of Pharaoh." The defendant sold a similar article under the name of "Magic Serpent." An action was brought for infringement of the alleged trade-mark. Among other things, the defence set up that the toy was 2 Ibid., tome xii. p. 144. 1 Annales de la Prop., tome x. p. 320. 66 poisonous, and consequently contrary to law, and to the public security; but on that point the court ruled, that as the attention of the Council of Health had several times been called to the article, and nothing had been done to prohibit the sale of it, the conclusion was warranted that it presented no serious danger, and therefore was not unlawful. The next question was this: Do the words "Serpent of Pharoah," as used, constitute a trade-mark? If yea, is the use by the defendant of the term "Magic Serpent" for a similar article an infringement upon that mark, as a colorable imitation? In support of the claim, the counsel, M. Pataille, eminent for learning in the law of the subject, argued thus: The words "eggs" and 'serpent," employed to designate the thing which was neither eggs nor a serpent, but which, upon combustion, gave a resemblance more or less removed, are clearly fancy names, belonging to him who first makes use of them. In support of that theory, he cited the decisions of the Court of Paris and the Court of Cassation in the instance of " Pearls of Ether," a title given to ether-pills, which, as pharmaceutical products, belong to the public in general, and by their form and silvery envelope resemble pearls, and which words notwithstanding were held to be a trade-mark. Held, the term "serpent" does not constitute a trade-mark, it being natural and necessary to describe the article. The use of the word "serpent" by the defendant is not piracy. So the words "Night Blooming Cereus" were held to be invalid as a mark, being the proper descriptive appellation of an article. The same rule defeated the adoptor of the words "Desiccated Cod-fish." 3 § 167. Since the foregoing got into type, the following case arose. A claim was made to the exclusive use of the words, "CABLE-TWIST TOBACCO," as a trade-mark for plug chewingtobacco. The applicants set forth that they had used said words for that purpose for about two years last past, i.e., from 1 Annales de la Prop., tome x. p. 340. 2 Phalon v. Wright, 5 Philadelphia, 464. 85 Abb. Pr. R. (N.s.) 218. 4 Harris, Beebe, & Co. about the year 1870. The Examiner rejected the application, on the ground that the words "Cable Twist" are purely descriptive of the goods to which they are attached. An interlocutory appeal was thereupon taken to the Commissioner, in person, the main question being this: Are those words the proper denomination of the article of manufacture? § 168. Upon the argument, the counsel for the applicants produced a piece of the manufactured tobacco, and a drawing filed in the Office in an application for a patent for their mechanical process of coiling the tobacco into the exact representation of an ocean-telegraph cable, which thing, said the counsel, had first suggested the name. The new article of manufacture consists of a strand or rope of tobacco coiled spirally about a "filler" or core, and then pressed flat, or into any other desired form. The object of the invention is alleged by the specification to be to provide a plug-tobacco in such shape, and of such arrangement, that the portion of it desired for use may be severed from it without uncoiling the remainder of the plug. After the coil is wound round the core, the bunch is placed in a mould, and reduced by hydraulic, or other, pressure to the shape of a flat plug. After this operation, a number of the plugs are placed in a tobacco-caddy and pressed; the process of filling and pressing being repeated until the caddy is full. § 169. It was conceded by the counsel that any article's appropriate name, which has become a part of our common language, cannot be registered or recognised as a valid trademark; but it was strenuously denied that the words "CableTwist," as here used, could be brought within the rule. It was admitted that the words "Cable," "Twist," and "Tobacco," are the common property of the public, and the words "CableTwist," when combined, are also in general use, designating as they do a kind or class of tobacco; but the counsel denied that such is the case in respect to the combination of the three words. "Cable-Twist Tobacco," it was contended, is a com |