bination quite unknown to the public, except as the mark or symbol of a particular firm, the kind or class being twist, and the word cable being purely fanciful. The objection that the word cable is descriptive seemed to the counsel to be untenable. The case was instanced of the famous smokingtobacco put up in green drums, and sealed with green wax, and having applied to it as a trade-mark the words "Green Seal Tobacco." § 170. The Examiner replied that the color of the drum and wax were mere marks or symbols of the merchandise; and as green paint or green wax cannot enter into the composition of tobacco, the color in such case cannot be deemed to be descriptive, any more than the color of wax on bottles, as illustrated in the French case of Badoit v. André, in the Court of Appeal of Lyons, in 1851.1 (In that case, the parties both sold the water of Saint Galmier, though each drew from a different spring. They had adopted very dissimilar exterior signs to distinguish their bottles. Badoit used a green seal, bearing the inscription "Mineral Water of Saint Galmier, Badoit Spring," &c. André, who had quite another kind of designation, in 1850, without abandoning his peculiar mode of indication, all at once adopted the green wax. The court held that the color of the wax, as thus employed to seal bottles of mineral-water, constituted a trade-mark, and a sign of goodwill worthy of protection as the exclusive property of the plaintiff; and the defendant was accordingly enjoined from using for that purpose wax of the same color as that used by the plaintiff.) § 171. The counsel further said, inter alia, that one might make candy, and color it to resemble a cable, and mould it into an exact representation of the applicants' tobacco, and use the words "Cable-Twist Candy," and enjoy the exclusive right of the employment thereof for that purpose. The words would necessarily be descriptive. The public would come to 1 Le Technologiste, tome xiii. p. 213. know the candy as "Cable-Twist Candy." The words might in time become the appropriate name of the article; and still the sole right to use the designation would remain in him who first applied it to candy. That is, that any person might apply the term cable-twist to any goods, as a fancy name, and hold the same as a valid trade-mark, although the words might possibly be to some extent descriptive. § 172. The case of "Brown's Jamaica Ginger" was cited as an illustration of the idea; and the remarks of Paxson, J., in the suit of The Dixon Crucible Co. v. Guggenheim,1 were relied on as confirming the same. We turn to that case, and ascertain that what the judge said was this: "Our late fellowtownsman, Frederick Brown, for many years before his death, prepared and sold a valuable article of Jamaica ginger. It was known as his article, and protected by his trade-mark. His son continues its manufacture. No one doubts his right to do so, or that equity would restrain an unlawful interference with his rights." The article would be "protected by his trademark," says the judge. He did not say what that trade-mark Was it the mere appellation of "Brown's Jamaica Ginger," as the counsel contended? It assuredly was not. The Patent Office has answered that question. Upon the application of the very gentleman mentioned, as successor in business, the point was passed upon. Mr. Brown applied for the registration of a fac-simile of the signature of his father and predecessor, as his lawful trade-mark for Jamaica ginger; and his claim was allowed.2 The name of the commodity does not constitute any essential part of that mark. was. § 173. The counsel then said, that a fine-cut chewingtobacco of a bright-yellow color, might be properly marked "Yellow Moss Chewing-Tobacco." (Conceded, and for this reason: the first term is purely fanciful. Yellow moss does not enter into the composition of chewing-tobacco.) 13 Am. Law Times R. (St.) 288, and 2 Brewster, 321. 2 Frederick Brown, No. 715. § 174. The counsel then suggested that the words "SnowFlake Starch" would be a valid trade-mark, although applied to starch manufactured to resemble snow-flakes. (Denied, unless the claimant of a right to the exclusive use of the words have also the exclusive right, by virtue of a patent, to make starch of the appearance of snow-flakes; which is hardly a supposable case. If a person has a patent to make an article of any peculiar conformation, he may undoubtedly give it its proper descriptive name, and he would be protected therein, unless that name be generic, or broad enough to describe articles which others have an equal right to make and vend.) "Cable-Twist Tobacco," the counsel contended, "although used as a brand, is not yet properly a name, and cannot become a name until the diligence of the applicants make it such. It may doubtless pass into common use, and in time come to be a quasi generic term; but at present has nothing more than a fanciful significance. Perhaps every valuable (word) trademark in existence is more or less generic; and each may in the course of time take its appropriate place as a common noun, and be entered as such in the lexicons of future generations." § 175. The Commissioner of Patents affirmed the decision of the Examiner; and held that the words "Cable-Twist Tobacco" are descriptive, notwithstanding the transformation of the ropes or cables into rectangular blocks. He said that the words clearly indicate an article of chewing-tobacco manufactured in a peculiar manner, by twisting and coiling the plant into the form of a cable, just as hemp and other vegetables are manipulated. A cable continues to be a cable even if pressed out of shape. The idea is conveyed that the article offered for sale is tobacco, manufactured by the twisting or coiling process. No one would attach any other meaning to the term cable-twist, as used in connection with tobacco. It describes an article of merchandise that all manufacturers of tobacco have a right to make and sell. The applicants cannot have the monopoly of all tobacco manufactured in the form of a cable, although they have made an application for a patent for a peculiar kind of cable-shaped tobacco pressed flat. They may have the sole right to make it in one way, and somebody else may have quite as good a right to make it in another way. If others have, or may acquire, a right to manufacture any other kind of cable-twist tobacco, they have the legal right to call the thing by its right name. But if the claim of these applicants were allowed that would not be so. They would to that extent control the use of words in common use. § 176. The applicants by their counsel made a motion before the Examiner for a re-hearing. Since the judgment of affirmance by the Commissioner, they had obtained the grant of a patent for seventeen years for their peculiar mode of manufacturing tobacco, as herein before described; and it was argued that that fact put a new phase upon the matter, inasmuch as thereby they now had the sole right to make and vend chewing-tobacco made first in the form of a cable, and then pressed into flat plugs. The counsel urged the necessity of the recognition of the name as a trade-mark, as the applicants (stated to be the most extensive tobacco-manufacturers in the world) made a profit of twenty thousand dollars a year by the sale of cable-twist tobacco, and required the sole use of the name as a protection to their legal rights. Admitting that there is propriety in drawing a line of demarcation with nice discrimination in a case of mere description, it was said by the counsel that such an objection was obviated by the grant of a patent. § 177. The Examiner, in reply, referred to a patent 1 more than three years old, for another kind of improvement in the manufacture of chewing-tobacco. In that case, as is seen by the specification, the tobacco is spun or twisted together into one continuous "brake" or rope, and then coiled or pressed down into the keg, box, or other package, in which it is to be 1 No. 85,613, to William & David Rineheart. packed for market. The benefits claimed by the earlier patentees are the same as now set forth, the convenience afforded to the consumer in breaking off only so much of the weed as he may need at the moment. The article manufactured under that patent is one kind of cable-twist tobacco. The public have a right to apply to it that descriptive name. The counsel insisted that the term was not understood by the trade to be descriptive; and asked leave to present evidence to that effect. The reply of the Examiner was, that the obvious and legitimate meaning of words in common use cannot be explained away by any possible amount of testimony. The Office must judge for itself. No cause for a re-hearing has been shown. dismissed. Case § 178. The name of a man may lose the idea of personality, and become a mere indication of quality. This point was decided by the Court of Cassation, the supreme judicial tribunal of France, in the case of Stubs v. Astier et als., in 1865. The plaintiff, a manufacturer in England, brought suit to restrain the use of his name upon articles of merchandise made and sold in France. Under the treaty made in 1860 between the two countries, he had a standing in court. His claim having been refused in the court below, on the ground that the name had attained a generic significance before the treaty of reciprocity had taken effect, the case was appealed to this, the court of last resort. It was contended on one side that the name of Stubs had lost its primary use, which was to indicate certain articles of hardware and cutlery as being his manufacture, and that by long user it had acquired a new attribute, and that to hold otherwise would be to take away rights that had become vested in the French people. On the other side, it was strenuously contended that a man's name is his distinct property, and remains a property sanctioned by the law of nations; and although the mark attached to it had fallen into the public domain from any cause, the name did 1 Annales de la Prop., tome xi. p. 81. |