tice that is in direct transgression of that command of the Decalogue: "Thou shalt not covet. . . any thing that is thy neighbor's." The most detestable kind of fraud underlies the filching of another's good name in connection with trafficking.

§ 43. A perfect system of trade-marks is ascribed by Jobard to the Chinese. They excel in this institution of commercial guarauty; for nearly all the goods exported from China are enclosed in boxes hermetically fastened by paper bands, and have upon them the mark of the makers. Every thing is stamped and indorsed with the firm and title of the furnisher, who is responsible for the quality of the contents of the packages bearing his name. A cargo of tea arrived one day from Canton at London, when it was found that the boxes were filled with nothing but rice-straw. The vessel and cargo were immediately sent back to China; the Hongs were speedily assembled, and recognized each their own marks. It was ascertained on examination that the adroit thieves, who had been employed to convey the tea from the warehouses to the ship, had slipped off with the chests to an island, and had there opened them, and for their precious contents had substituted packages of ricestraw. To preserve their commercial reputation, the Chinese merchants gladly made good the loss.

§ 44. In connection with patents and some other kinds of property, resemblance may be the result of accident, or of an honest difference of opinion; but in conflicts arising out of the invasion of proprietary marks, resemblance may generally be traced to meanness and cupidity. Truly did Senator Lott say in one case:1"A disguise is not generally assumed for an honest object. It is a mark more characteristic of deception and fraud. It defeats the very end and object contemplated by legitimate competitors, the choice to the public to select between the articles for sale, and operates as a deception and imposition on the dealer." He might have

1 11 Paige, 292.

further said that nearly always it is a witness against him who uses it.

§ 45. Foundation of Title. Having satisfied our mind that the conventional sign of trade has a history, and an acknowledged right to protection, we next inquire upon what laws does the claim to property in it rest. How does the owner of a trade-mark obtain his exclusive right to its use in a particular manner, i.e., in connection with certain articles of merchandise? Is it by act of law, vesting in him the sole right of user, or is it by mere volition? Let us attempt to answer.

§ 46. The right to a trade-mark is neither tangible nor visible, though the thing produced from the right is perfectly so. The subject-matter is not the symbol, but the exclusive privilege of continually using the same to impress or otherwise mark articles of merchandise, so that purchasers may instantly know the origin of such articles. Just as a person may by his autograph indicate his workmanship, or his ownership, so may he by any other sign as a substitute therefor do the same. The right to write one's name on a piece of personal property is a natural right; so, therefore, must be the right to use its substitute, any other emblem. This right is founded upon possession and his possession rests upon the mere act of adoption and use; for, in contemplation of law, without use there is no adoption. That this is the true doctrine we may easily convince ourselves by reference to judicial decisions.

§ 47. Rhodes, J., in delivering the opinion of the Supreme Court of California in Derringer v. Plate, in 1865, said: "The right of property does not in any manner depend for its inceptive existence or support upon statutory law, although its enjoyment may be better secured and guarded, and infringements upon the rights of the proprietor may be more effectually prevented or redressed by the aid of the statute than at common law. Its exercise may be limited or con

1 29 Cal. 292.

trolled by statute, as in case of other property; but, like the title to the good-will of a trade, which it in some respects resembles, the right of property in a trade-mark accrues without the aid of the statute." The learned judge was discussing a local statute of his State, but the principle is quite as broad as he stated it. He further said that "the proprietor may assert and maintain his property-right wherever the common law affords remedies for wrongs." He might have put it more strongly, and have said that the right to the exclusive use of a man's commercial signature, or its analogue, the trade-mark, exists throughout the world. It is true that a remedy is not always promptly accorded, owing to the narrow jealousies of various nations in affording undue protection to their own manufactures and commerce; but the right is recognized. A foreigner's property in a promissory note, or any other kind of personal property, may be admitted; but the courts are shut to him as an alien, non-domiciliated. In this illiberal spirit some European nations have striven to extort reciprocity and privileges for their own citizens or subjects. Nevertheless, their conduct cannot affect the natural right.

§ 48. In the Court of Paris, in 1863 (Aubertin v. Vix et al1), the court held the same doctrine, and said: The deposit of a mark of commerce is not necessary to acquire, and even conserve, the property of the mark; although the deposit is indispensable to enable one under the law of the 27th of June, 1857, to obtain the special guaranties which it institutes, and of the actions which it organizes. The same court, the next year, recognized the same doctrine, in Stubs v. Astier et als. ;2 and the Court of Cassation, by its final judgment on appeal, effectually shut the door in the face of confessedly just claims, for the reason of alienage alone.

§ 49. The Court of Cassation, in 1864 (Leroy v. Calmel3), held that the deposit does not constitute the exclusive right to the property of the mark; that deposit is necessary only for 1 Annales de la Prop., etc., tome xi. p. 344. 2 Ibid., tome x. p. 212.

3 Ibid., tome x. p. 193.

the purpose of enabling the proprietor to sue for damages for infringement; and that it was necessary to search whether the mark in controversy did not exist at a period anterior to that of deposit. Nothing can be plainer than this enunciation of the supreme court of France. The right to a thing may be perfect; but the right to claim reparation for an encroachment upon that right may not have any foundation!

§ 50. The Court of Paris, in 1867, in Sargent v. Romeu,1 said that in ancient legislation as well as in the new, the legal deposit of marks was simply declarative, and not attributive; consequently, a deposit merely creates a presumption of proprietorship. In the same court, in 1868 (Holtzer & Co. v. Lendenberg & Co.2), it appeared that the plaintiffs, proprietors of certain steel-works in France, had ever since the year 1834 been using as a trade-mark the figure of a bell, and their products became known under the name aciers à la cloche (bellsteel), and acquired a reputation for superiority. After the treaty of 1862, between France and the Zollverein, the Prussian manufacturers, Lendenberg & Co., established a warehouse in Paris, near that of Holtzer & Co., and their wares were also marked with a bell. Holtzer & Co. sued them for infringement of their trade-mark. The Prussian house thereupon established the fact that ever since 1817 they had marked their products with the same device, and invoked on their behalf the benefit of the treaty aforementioned. They did not rest their claim to the exclusive right of user upon aught but possession. It was held that by virtue of the said treaty they had a right to prove their priority; and the court awarded them 300 francs as damages, and condemned the defendants to pay all the costs. The case was thereupon appealed. The appellants' counsel argued, inter alia, that the respondents' firm had not enjoyed any reputation in France until very recently; that it was not shown that their firm was established in France until after the date of the treaty; that therefore their title should not be per1 Annales de la Prop., etc., tome xiii. p. 21. 1 Ibid., tome xiv. p. 167.

mitted to conflict with one that had a recognized popularity ever since 1834; and that, in fact, their manufactures were inferior in quality to those of the appellants, as was shown at the Great Exposition, where they got nothing, while Holtzer & Co. received a gold medal. The respondents' counsel argued that they were the seniors in their line of business; that the possession of their mark had constantly been maintained in Germany, and was proven by all the documents that could possibly be procured in a country where property in emblematic marks was not regulated by law; that their possession was established as far back as 1817; and that their long user was conclusive, the act of deposit not being declarative of property, and not attributive of a new right. He further claimed judgment, irrespective of the said treaty, by the French law of 1857 (the sixth article of which provides that a foreigner whose establishment is outside of France, is admitted to enjoy the benefit of the law of deposit, if in the country where his establishment is situate diplomatic conventions had arranged reciprocity for Frenchmen). Concerning trade-marks the treaty says that "the subjects of each of the contracting states shall respectively enjoy in the other the same protection as the natives thereof." Therefore, Lendenberg & Co. had a right to invoke the protection of the French laws, the same as if they were French themselves; that by the law of 1857 the deposit of a trade-mark is not attributive, but simply declarative of property in that mark; that, in other words, the ownership of a trade-mark did not depend upon deposit, but that property existed independent of any species of deposit, although by not depositing one ran the risk of a use by others. Finally, Lendenberg & Co. had a pre-existing right: the treaty gave a remedy. The court concurred in these views as matters of law.

§ 51. The question thus raised was assuredly one of a most delicate and difficult nature, involving the effect of a treaty, affecting the rights of citizens of another country to