imitation of a common object in nature. When representations of plants and flowers were employed in heraldry, they were placed on shields, seals, or flags. We could not well misunderstand the purpose of the rose, the lily, the thistle, or the shamrock, when displayed on armorial bearings, or banners and flags. Such objects, so placed, speak an unmistakable language. They mark, distinguish, identify. We know the knight in armor by the mark upon his shield, although his face is concealed. Is not this the very purpose of a mark of commerce? We observe a clearly-defined object stamped, printed, painted, or impressed upon an article of merchandise. We have before this time purchased an article with that exact symbol upon it, and found it suited to our taste, at least, if not of unequalled excellence. But unless the symbol be recognized as, or mistaken for, that which we obtained before, we are in doubt. When there is reasonable ground for doubt, the mark has failed to accomplish its purpose, and is void for uncertainty. Suppose that on the day of a battle or a joust a medieval knight had met an exact counterpart of himself. Each must have had distinct insignia, so that when he closed his vizor he could have been distinguished in the fray. The marks on goods, in the strife for pre-eminence, must be as recognizable as the device upon the knightly shield. Broomcorn is not a peculiarly-striking object, and the representation of a sprig of it would not attract much attention unless found upon heraldic equipments; but then we would recognize in it the Planta-genista which gave their name to the Plantagenets. It had been adopted for a specific, well-understood purpose. So was the fleur-de-lis, and so were an infinite number of other natural objects, which by their figurative imagery concentrated a wide range of thought within the narrow compass of an escutcheon.

$255. A Picture as a trade-mark. Can such be? Some judges have said to the contrary. We are left in doubt, until a full examination shall have elucidated the matter. A pass

ing remark, or a careless syllabus, may mislead. We will be cautious. An elaborate picture, made up of many different objects in nature and art, is, to say the least, a very uncertain indication of exclusive proprietorship. Another picture may be composed of objects of quite a different nature, dissimilar in all the minutia, yet having the same general groupings, lights and shades, and general effect. There is a possibility of such a representation becoming so well-known as to be a veritable mark for merchandise; but that possibility is remote. In the case of Falkinburg v. Lucy, in the Supreme Court of California, in 1868, it was doubted whether a picture could be made such mark. The plaintiffs' label has "a highly-colored picture, representing a washing-room, with tubs, baskets, clothes-lines, &c. There are two tubs painted yellow, at each of which stands a female of remarkably-muscular development, with arms uncovered, and clad in a red dress which is tucked up at the sides, exposing to view a red petticoat with three black stripes running around it near the lower extremity. Each is apparently actively engaged in washing; and clouds of steam are gracefully rolling up from the tubs, and dispersing along the ceiling. In the background is extended across the room a clothes-line, upon which are suspended stockings and other under-garments, which have evidently just been put to use in testing the cleansing properties of the plaintiffs' washingpowder. To the left of the washerwoman stands a lady in a yellow bonnet, red dress, green congress gaiters, and hoops of ample circumference: upon her left arm is suspended a yellow basket, and in her left hand is held a red parasol; while the other hand, which is encased in a green glove, is gracefully extended toward the nearest washerwoman in an attitude of earnest entreaty. In the immediate foreground is a yellow-andgreen clothes-basket full of dirty linen, and a yellow-and-green soap packing-box, upon which are printed, in small capitals, the words Standard Co.'s Soap.' Each wash-tub is supported by

6

1 35 Cal. 52.

a four-legged stool, — some of the legs being yellow, some red, some green, and some all three. The floor of the room, as to color, is in part of a yellowish green, and in part of a greenish red, while the walls are of a grayish blue. This is but an imperfect description of the picture with which the plaintiffs' label is adorned. The design is good, for it is eminently suggestive of the character of the plaintiffs' goods."

§ 256. So said Sanderson, J., in delivering the opinion of the court. Yet it was only for the sake of argument that he conceded that it could be a trade-mark at common law. In support of his doubt, the judge cited Partridge v. Menck,1 in which case both labels were embellished with wood-cuts of a bee-hive, yet the preliminary injunction was dissolved. When we examine for ourselves, we find that the plaintiff in that instance failed because his label contained upon its face a misrepresentation of fact. He claimed the exclusive right to impose upon the public friction-matches made by himself, as if made by A. Golsh. He had not come into court with clean hands. The judge also cited the Merrimack Manufacturing Co. v. Garner.2 Attached to the complaint in this case were specimens of the tickets of both parties. They were of nearly the same size, each being about six inches long by four wide, and in the shape of a parallelogram scolloped at the corners. Both were printed on straw-colored paper, of almost precisely the same shade. Each had a border line with corner ornaments, an oval wreath of flowers within the border, and an inscription within the oval wreath. The border lines were almost precisely the same. The corner ornaments differed considerably. In the plaintiff's label there were light lines whose tendrils extended beyond each side of the parallelogram toward the opposite corner, with considerable space between. The defendant's corner ornaments were different, being much heavier, and the arms of each extended and met those of its neighbor in the opposite corner, so

1 2 Sand. Ch. R. 622.; 2 Barb. Ch. R. 101; and 1 How. App. Cases, 558. 2 2 Abb. Pr. R. 318, and 4 E. D. Smith, 387.

that the four together formed a continuous border around the label. The design of the oval wreath of flowers which was the most conspicuous ornament in the plaintiff's label — was almost precisely the same in both tickets, but it was much more nicely executed in the plaintiff's label than in the defendant's. At the foot of each wreath was a blank space, left for the insertion of the number of yards in the piece. This number, in the plaintiff's label, was printed: in the defendant's it was written with a pen. The inscription in the plaintiff's label consisted of two lines curving with the sides of the wreath, and a sort of ornamental scroll between them. The upper lines contained the words "MERRIMACK PRINTS," the lower line the words "FAST COLORS,* LOWELL, MASS." The inscription in the defendant's label consisted of three lines, the upper and lower of which were curved like the lines in the plaintiff's inscription, and the middle one occupied the place of the scroll used by the plaintiff. The words were: "ENGLISH FREE TRADE. MERRIMACK STYLE. WARRANTED FAST COLORS." All the judges regarded the pictorial part of the label as of little consequence, basing their decisions upon the use of the words.

§ 257. In Spottiswoode v. Clarke,1 an English case, the Lord Chancellor dissolved an injunction which the Vice-Chancellor had granted, with liberty to the plaintiff to bring an action at law, where the plaintiff was the owner of a publication called "The Pictorial Almanac," and the defendant of one called "Old Moore Family Pictorial Almanac," although the corners of each book were somewhat similar; both being decorated with a pictorial representation of the Observatory at Greenwich, and in the title, as printed on the cover, making use of nearly the same expressions. But that case does not throw much light upon this point.

§ 258. Here comes a French case that may help us. In the Court of Riom, in 1852 (Bru v. Larband 2), it appeared that the plaintiff, a pharmacist of Vichy, had adopted as his mark

1 10 Jur. 1043.

2 Journal du Palais, 1855, p. 244.

for his pharmaceutical product (a mineral salt of Vichy) a printed representation of the thermal establishment there situated. The defendant having imitated the said mark, the plaintiff sued. The court said that it mattered not that the vignette used by the plaintiff represented a public establishment belonging to the State, and one that before then had been used on scientific publications; and that it is allowable for any person to take and use such picture as his designation of commerce, provided he is the first to appropriate it to a particular class of goods. This decision, it must be confessed, goes to an extreme length. But it is sufficient to show that a mere picture may be a trade-mark.

§ 259. A picture made up of many objects in various colors, may be a trade-mark. The Patent Office has, almost daily, passed upon the question. It is not, of course, every picture that will be registered; for many that have been presented have been refused, because either merely descriptive of the class of goods to which they were intended to be affixed, or not adapted to the purpose. The first trade-mark registered under the Act of 1870 was that of the Averill Chemical Paint Company. This consists of an elaborate pictorial representation. In the foreground is a rock with the word "CHEMISTRY" upon it; on the rock is an eagle, holding in his beak a paintpot or canister and brush, and a ribbon or streamer on which are the words, "Economical, Beautiful, Durable." There is water, and upon it are a steamer and other vessels. In the background is a bridge, and a train of railway cars, besides houses of various kinds. Who could mistake such a picture for a mere specimen of artistical taste? It speaks plainly. It says, "I am a trade-mark." This very picture was soon afterwards imitated in its general effect, and the imitation presented for registration by one in the same line of business. Accident could not possibly have made the two marks so much alike. Both, at the distance of a few feet, would make the same impression upon the eye; and any but the most cautious purchaser