daries, embracing the works of both parties; for they both use the same quarry. The name, "La Valentine Cement," corresponds to the designation of Vassy, Roquefort, la Nerthe, &c., cement; therefore the plaintiffs cannot pretend that the name is restricted to themselves. The designation of a locality cannot serve as the foundation of an exclusive right. § 191. The Congress Spring case1 is not an exception to the general rule; for in that it was shown that the plaintiff had the sole title to the place which was the source of the medicinal waters to which the name or mark was affixed. The same name could not be used with truth by other dealers in mineral waters. The Brooklyn White Lead case 2 is in point. There it was decided that all manufacturers in Brooklyn could properly use the name. The defendant was enjoined against the use of the word "Company" or " Co.," which was a fraudulent part-imitation of the plaintiff's label; but was permitted to use the name of his place of manufacture. § 192. When is a Name merely Geographical? glance at the case of Armistead v. Blackwell (in the chapter on Interferences), and see how judicial officers disagreed as to the meaning of the word "Durham," we hesitate before making answer. A word may be considered to be geographical or not, according to the circumstances of the case. If merely geographical, we know that it cannot be a lawful trade-mark. It behooves us, therefore, to scan closely. When we § 193. This question frequently comes up in the Patent Office; and the rule for answering it is well-settled. If the word is not intended to be geographical, and is not taken to be such by the public, it is not such. It will have become, as an arbitrary symbol, as good an index as could be any other symbol. Thus the word "MARIELAND," although intended for a mark for merchandise manufactured in Maryland, is free from objection. The change in the spelling, and slight differ 1 57 Barb. 526, and 4 Am. Law Times R. (St.) 168. 8 Malcolm Crichton, No. 925. 99 ence of sound, are sufficient to distinguish it from the usual and proper designation of the original Terra Mariæ, named . for Henriette Marie, the queen of Charles I. of England. And no reasonable person would think that the use of the name "MONTICELLO," for whiskey, was intended to intimate that the article was distilled or sold at the home of the venerated" Sage of Monticello; " 1 or that the term "KENTUCKY PIONEER " 2 necessarily meant that it was made in Kentucky by the pioneer Daniel Boone; or that " BAY STATE " meant to imply Massachusetts. At first it was thought that the words "VIEILLE MONTAGNE were open to the objection of being a mere geographical designation, just as "Old Mountain" might be if the French were translated; but, upon reflection, it was concluded that the words could not, without straining their meaning, be taken to import that the green paint to which it was intended they should be affixed was manufactured at a place of that name.* So "WISCONSIN WOOD CHOPPER" could not mislead any reflecting mind into supposing that the axe bearing that mark was peculiar to, or made in any particular State. The word "SCIOTO" is the name of the county, as Sciotoville is the name of the town, where the applicants make fire-brick, tiles, &c.; wherefore the Examiner rejected the application, as a geographical term, which any one in the county had a right to use. The Commissioner took another view of the matter, regarding it as an arbitrary symbol which no one else would be likely to impress on brick. Passed. It is not understood upon what principle this decision in the Scioto case could possibly be sustained. It may be that it never shall be brought in controversy in a judicial proceeding. If others have an equal right to use the name upon the same kind of wares, then it cannot be a trade-mark, for the essential element of exclusive right is lacking. We can understand how, if one 1 Malcolm Crichton, No. 877. 3 Bay State Iron Co., No. 875. 5 Biddle Hardware Co., No. 923. 2 Adams & Taylor, No. 692. 6 McConnell, Porter, & Co., No. 510; Vide Newman v. Alvord, ubi supra. not in a place of that name should fraudulently usurp the word as a mark, a court of equity would be called on to enjoin the wrong-doer, as in the Akron case, as an ordinary case of fraud, not for violation of a trade-mark. § 194. As an illustrative case we will take the application for the word "ANGOSTURA" to be used in combination with bitters. The Examiner answered the claim, thus: The article called "Angostura Bitters" is well known as such, to the commercial public at least. A tincture of Angostura Bitters is officinal in the Pharmacopoeia of some European countries. Ure's Dictionary of Arts, &c., mentions the article among other bitter substances used in art and medicine, as quassia, wormwood, orange, gentian, tansy, coffee, &c. He also stated that he was credibly informed by experts, that a favorite drink called a "cock-tail" is composed in part of said bitters. The principal point was whether the word "Angostura" was not a geographical name; and it was held not to be, for the reason that the word "Angostura" had been first used by Dr. Siegert, under whom the applicant claimed. It had become a fancy name; and as the claimant proved his claim to the exclusive use of it, as the denomination of an article of which he was sole vendor, it was admitted to registration.1 1 W. H. Knoepfel, No. 580. CHAPTER V. EXAMPLES OF TRADE-MARKS. One's Own Name. - Autograph. - Fac-simile of Autograph.- Initials. - Pseudonym. Derivative from Surname. - Fancy Names of Men. Name of Man may become Generic. - Natural Product. - Pictures. Heraldry.— Monograms and Ciphers. Color as an Element. - Form Essential. - Exemplars of Registered Trade-marks. Cases rejected as merely indicating Quality. - § 195. One's Own Name. - To what extent will a person's name be protected as a trade-mark? This question has its difficulty. The Act of Congress of July 8, 1870, sec. 79, prohibits the registration of a proposed trade-mark "which is merely the name of a person, firm, or corporation;" but the same section provides that that "shall not prevent the registry of any lawful trade-mark rightfully used at the time of the passage of this act." The proviso opens the door to evidence that such name had previously become a "lawful trade-mark rightfully used." As an abstract proposition, such a name would not be protected, if another might truthfully use it. We must take the judicial decisions on this point, with all their circumstances. One case might be sustained; another not. § 196. What is a name? This question, which will also arise under section 79 of the law, is not an idle one, nor ought an investigation into its legal meaning to be thought pedantic or far-fetching. It has been well settled that a middle name or initial is not part of a person's name. The law knows of but one Christian name.1 The addition of "senior" or "junior" is 1 Co. Littleton, 3 a; 1 Lord Raymond, 562; 5 Johns. 84; 2 Cow. 463. a mere matter of description, descriptio persona, and forms no part of one's name, it being a casual and temporary designation. If J. Smith is no name, then a deed or other instrument conveys no title or right to protection. One baptismal or given name out of half a score would satisfy the demand of the law in this respect; but that one name must be given in full, not in an initial letter, which means nothing or many things, and therefore, on account of its uncertainty, is worthless for the purpose of identification. Probably the surname might legally be dispensed with, or changed at pleasure. A man's name is an emblem or symbol of himself, a mark by which he may be known and identified. Here is a curious case: About the year 1825, at the Hereford assizes, in England, a Welsh witness, John Jones, was examined. He said that he had always gone by that name, while admitting, on cross-examination, that in Wales he had gone by the name of Evan Evans. The discrepancy was explained by showing that Evan is the Welsh synonyme of John, and Evans that of Jones. So he was John Jones in England, but at home he was Evan Evans, just by the rule which turns François Blanc, the Gaul, into Francis White, the American citizen; or Wilhelm Schwarz, the Teuton, into William Black, American: the name of a grandee of the Flowery Kingdom into a sonorous English cognomen. The surname, as distinguished from the Christian name, is the name over and above, - not the sirename, or name received from the father, but sur'name (super-nomen). There never was a time when every baptized man had not a Christian name, inasmuch as his personality before God was recognized. Upon good authority, it is stated that but few of the miners of Staffordshire, in England, choose to retain the names of their fathers; and we look in vain for a law to restrain them from the confusion that must frequently arise from severing this clew to 17 Johns. 549; 11 Wend. 522; 1 Hill, 102. 2 See matter of Snook, 2 Hilton, 566. 9 Trench, Study of Words. |