defective patents. They bear but the merest semblance of a right, hardly serving the purpose of scarecrows. Unless the statute shall have been complied with in all its essential requirements, the certificate of registration shall prove as worthless as fairy money that crumbles into withered leaves, and be as false to hopes as the apples of Sodom, golden to the eye, turning to ashes in the mouth.

§ 307. The word "may" in this section should read "shall," this being a statute which directs the doing of a thing for the sake of justice or the public good, and to impose a positive and absolute duty. The party, therefore, shall receive protection, provided he shall have fulfilled all the conditions on his part.

REQUIREMENTS, ANTECEDENT TO REGISTRY.

§ 308. First. By causing to be recorded in the Patent Office the names of the parties and their residences and place of business, who desire the protection of the trade-mark.

Names.

The same practice obtains in cases under this section, as in patent matters, as to the names of applicants. Upon some portion of the application-papers, the full names should appear, with as much particularity as in a conveyance of lands. The mere initials may do for an autograph. J. Styles may mean James, Jedediah, Joseph, or John Styles, and thus raise a question of identity. The full names of all the members of a firm should appear. In case of a corporation, the full and exact title should be given. The names of the witnesses should also appear in full in strict practice."

§ 309. Residences and Place of Business.-By the term "residence" is obviously meant the fixed, permanent place of abode. A man sometimes has more than one place of residence, as his city residence and his country residence. If a citizen, where does he vote? If domiciled in some foreign country,

1 Sedgwick on Stat. and Const. Law, p. 438.

2 Rule 17, Rules of Practice in the U. S. Patent Office.

where is his temporary residence? We have seen, under the head of "domicile," that the latter term signifies something more than mere residence. A man may come to this country with the intention of engaging in business for a certain time, but with the resolve to return to his native country when he shall have effected certain results. His domicile may be in England, his residence in New Haven, in the State of Connecticut, and his place of business in the city of New York. All these three things should appear upon the record.1

§ 310. Second. The class of merchandise and the particular description of goods comprised in such class, by which the trade-mark has been or is intended to be appropriated.

Class of Merchandise. Much carelessness is manifested in the use of generic for specific terms. A general description of one's whole stock in trade is too loose and indefinite; for example: "groceries," "hardware," "perfumeries," "medicines," "oils," &c. It is doubtful whether more, than one specific article can be included in the same registration. The statute requires the particular description of goods; and if that be not given, a valid foundation will not have been laid for an action at law or suit in equity; and a court would probably reject the letters of registration, just as it would a patent with a vague, indefinite specification of an invention or discovery. A man may affix the same symbol to many different articles; but in all cases he must be prepared to show the actual application of the mark or symbol to the article on which a rival shall have used it. It is true that applicants sometimes prefer such sweeping, comprehensive descriptions. The risk is their own. In one case in court,2 the plaintiff— a corporation-conceded that it had never manufactured

See the case of Capt. Marryatt, the novelist, who, being temporarily in this country, took the required oath of his intention to become a citizen of the United States, and then took a copyright for one of his books, which he then assigned to the plaintiff. Held, by Betts, J., in 1839, that he was not a resident," within the meaning of the Act of 1831, so as to be entitled to a copyright. Carey v. Collier, Law's Digest, title Copyright (C. 2, 3).

2 Amoskeag Manuf. Co. v. Garner, 55 Barb. 151.

prints; but because it had placed its trade-mark on every thing in the way of cotton goods, except prints, it insisted that it also had the right to place them there, and that if any other person, however honestly, placed the same mark upon prints, it would be an infringement. The idea of the corporation was that the class of cotton goods was broad enough to cover every thing that might possibly be made out of cotton, however unlike their products. The judge who had the cause before him said: "I deny emphatically that the doctrine of trade-marks is capable of indefinite expansion; that where a word of meaning, a geographical word, is used as a trademark, and first applied to one branch of manufacturing cotton goods, when there are subsequently invented several distinct branches to it, like Aaron's rod, it swallows up all the subsequent branches. The doctrine of trade-marks must not be extended beyond its just limits; or, in a country like ours, filled as it is with enterprise, capital, skill, inventive genius, and with men possessed with progressive ideas, it will, in the end, be productive of greater injury than good."

§ 311. It seems scarcely necessary to remark that this statute is applicable to merchandise alone, -something to be sold, and not to be given away. The plaintiff claiming protection must prove that he has an exclusive right to use a particular mark or symbol in connection with some manufacture or vendible commodity; and, secondly, that this mark or symbol has been adopted or is used by the defendant, so as to prejudice the plaintiff's custom, and injure him in his trade or business. There is not any exclusive ownership of the symbols which constitute a trade-mark apart from the use or application of them to a vendible commodity. This is the settled doctrine of all the courts. Any other view of the matter would be wildly absurd. A symbol does not become a trade-mark until actually stamped upon or otherwise affixed

1 See Amoskeag Co. v. Garner, supra.

2 The Lord Chancellor in the Leather Co. case, 11 Jur. (N.s.) 513.

to goods to be sold. It would not therefore be correct for one to say that his trade-mark is stamped upon his business-cards, or other mere advertisements; for the impression of the symbol would be nothing more than a fac-simile or copy of his trade-mark. The public do not purchase signs, or circulars, or cards of business; but they buy the article of merchandise bearing upon it a certain known mark of genuineness. Yet, for all this, the dictates of common sense are set at defiance by muddle-headed solicitors, who will not think,- How can a thing be a trade-mark if not used in trade? How can one's property be protected if he have no property?

§ 312. Lest the proposition enunciated above should not be considered authoritatively given, let us consult the Bench. Ludlow, J., in 1860,1 said as follows: "It may be remarked in general, that while an imitation or fac-simile, or a mere colorable artifice, will bring the offending party clearly within the rule, no decision has ever yet declared the right of a manufacturer to be absolute in a name as a name merely; it is only when that name is printed in a particular manner upon a particular label, and thus becomes identified with a particular style of goods, or when a name is used by a defendant in connection with his place of business (and not his manufactured goods), under such circumstances as to deceive the public and rob another of his individuality, and thus destroy his fame and injure his profits, . . . that it becomes a trademark, or in the nature of a trade-mark, and as such entitles its possessor or proprietor to the protection of courts of justice." These remarks are so consonant with the rules of common sense, that it would be unpardonable in a writer to produce additional authorities, were it not for the fact that the Office has been pestered with the declamatory nonsense of persons who contended to the contrary. To continue: Vice-Chancellor Wood, of England, in 1865,2 said: "The law on this point, as

Colladay v. Baird, 4 Phil. 139.

2 Ainsworth v. Walmesley, 44 L. J. R. 252.

laid down in the cases before Lord Westbury,1 I understand to be as follows, and I do not think that any one would be disposed to dissent from it. This court has taken on itself to protect a man in the use of a trade-mark as applied to a particular description of article. He has no property in that mark per se, any more than a person has in any fanciful denomination which he may assume for his own particular use without reference to his trade. If he does not carry on a trade in iron, but carries on a trade in linen, and stamps a lion on his linen, another person may stamp a lion on iron; but when he has appropriated a mark to a particular species of goods, and when he has caused his goods to circulate with that mark, when that mark has become the known indicium of their being his, the court has said that nobody shall defraud him by using that mark, and passing off the goods of another's manufacture as being the goods of the owner of the mark." And the Lord Chancellor in the same year said: "It is correct to say that there is no exclusive ownership of the symbols which constitute a trade-mark apart from the use or application of them; but the word "trade-mark" is the designation of marks or symbols when applied to a vendible commodity, and the exclusive right to make such use or application is rightly called property.'" 2 This rule is as rigid and unalterable as the laws of the Medes and the Persians.

§ 313. Third. A description of the trade-mark itself, with fac-similes thereof, and the mode in which it has been or is intended to be applied and used.

The Description should be so lucid and comprehensive that the language of the specification shall require no extraneous aid in its interpretation, to identify the appropriate device or symbol. The words, " as shown in the drawing and fac-similes hereto annexed," or equivalent forms of expression, will not suffice; as in point of fact the fac-simile is annexed only to the

1 Millington v. Fox, 3 Myl. & Cr. 338; Hall v. Barrows, 10 Jur. (N.s.) 55. 2 Leather Cloth Co. case, 11 Jur. (N.s.) 513.