a mark long used, and to which up to the time of the treaty they had the sole right of protection. But for our present purpose, it is necessary only to cite it as authority for saying that a trade-mark is not the creature of arbitrary law. That point has been affirmed in other French cases, and may be said to be definitively settled. And this is the recognized law of all civilized nations. The Tribunal of Commerce of Geneva, in 1859 (Christofle & Co. v. Deleiderrier 1), held that a manufacturer's mark is property under the law of nations; and other nations by their judicial decisions have repeatedly affirmed the same doctrine, one founded upon sound reason. Thus, in 1855,2 the tribunal of Brussels held that a Frenchman, domiciled in Paris, might in a Belgian court pursue an infringer of his mark, although the plaintiff had no treaty to stand upon, and based his claim to his mark upon the law of natural justice. § 52. What Time is required for the Perfection of Title. That is, how long does it take to adopt it? The answer is obviously this: The moment one who has selected a symbol to indicate his merchandise applies the mark to his goods, the act is complete. The avowal of his intention to adopt, his registration of the mark, and notice to the whole world, do not constitute adoption; but apply the mark to the articles for sale, and, eo instanti, the act is complete. In McAndrew v. Bassett, the right of the plaintiff was disputed because of his recent appropriation of the symbol to stamp his liquorice, just as a claim based upon mere prescription might be challenged. The Lord Chancellor said that he had been much pressed by the defendants' counsel to declare that there was not sufficient time between the termination of the month of July and the 13th of September following for the plaintiffs to acquire a right of property in the particular trade-mark. The substance of the argument of defendants is this: that, supposing the court interfere upon the ground of property in a trade-mark, that 2 Ibid., tome i. p. 45. 1 Annales de la Prop., etc., tome vi. p. 29. property must be regarded as the offspring of such an antecedent user as will be sufficient to have acquired for the article stamped general notoriety and reputation in the market, and that the property cannot be held to exist until the fact of the general user, that notoriety and that public reputation have been proved to exist. The plaintiffs won. As a § 53. Who may acquire Property in a Trade-mark. general proposition, any person who, in law, is capable of acquiring and holding any species of property, may hold a title to a trade-mark. § 54. Yet this sweeping assertion must be subjected to some qualification; for unless the person be a trader, that is, unless he or she be engaged in mercantile business of some kind, such a title could not be acquired, as we shall hereafter more clearly see. The reason of such a condition is this: the object selected as a trade-mark does not become such by the mere act of selection. Something more is requisite to perfect an act of adoption. What is that something? It is the union of the abstract representation of the object with a vendible commodity. Instantly the inchoate right becomes perfect, and title rests in the appropriator. § 55. But we shall see that certain persons cannot become traders, and consequently cannot place themselves in a position to obtain such a title. Take as an extreme hypothesis the case of the person holding the office of Archbishop of Canterbury. He could not become possessed of a title to a trade-mark, for the law inhibits him from engaging in secular pursuits of a mercantile nature. A corporation is an artificial person, and under an act of Congress of July 8, 1870, the right of a corporation to a trade-mark is distinctly recognized. But, when we come to consider the provisions of that act, we shall be easily convinced that it is not every corporation that can avail itself of the protection promised thereby. Why? Because the corporation may not be a trading corporation. For instance, a rector of a parish in Massachusetts, New York, Maryland, and other States where the Church of England once held legal sway, is a corporation sole. Yet no sane person would dream of such a corporation, or any other of a purely ecclesiastical nature, manufacturing or selling goods. § 56. Nor can every natural person hold title in a trademark; for some persons are under interdict, are felons under sentence of death, or are not of sound mind. This phase we shall also more fully investigate hereafter. § 57. The conditions upon which a right can be enjoyed and guaranteed are few and simple. Be he citizen or alien, the owner has protection provided he is engaged in lawful business, conducted with sincerity. § 58. Who is an Infringer. He who imitates in whole or in part the peculiar emblem or mark to which another has the right of exclusive use, provided he use it to indicate the same class of goods. The imitator may be the pirate himself, or he may be an innocent vendor of the article bearing the mark. Both are in intendment of law infringers, although the one may be guilty of gross roguery and the other be free from the imputation of turpitude. The law will correct the illegal act of either, but will deal more leniently with the unintentional trespasser. § 59. So similar in external appearance are different articles of merchandise, that, without peculiar indication of some kind, one would be in uncertainty. Some pledge of integrity is demanded. We see a curious mark: it is enough- it conveys to the mind full assurance of excellence, or what we are happy in believing to be such. Some such guaranty is required in these days when traffic moves swiftly, in harmony with agencies of steam and electricity. A glance! It is enough. Down goes the cash, and the change is effected. But what if the signal with its blazon of truth be false! Confidence is outraged, - and that is a thousand-fold worse than the immediate loss of money, for a scar of suspicion is left. Severe measures must be enforced to restrain the commission of crime which has no small resemblance to that of wretches who display false signal-lights. Avarice and treachery! Piracy must be restrained by the iron grasp of justice, that laudable industry may flourish, and competition, the life of trade, be stimulated to ever-fresh efforts for excellence. An adequate security and protection may be found in the extension of the powers of courts of justice in the endeavor to uphold a high mercantile morality. In this there is no restraint of the freedom of trade, no fostering of monopolies. Each man stands upon his own merits, just as a knight at a tourney has his own color to identify him with valor and high emprise. Infamy would await the base dastard who took the pennon not belonging to him. So should it be in the mammoth contest for the well-earned meed of honorable and laborious enterprise. § 60. Protection. What avails a mere naked title to any thing, unless the law protect it! Any man may copy an emblem or a mere representation of an object, no matter whether it be of the rudest character or whether it be delineated with all the grace and beauty of accomplished art,unless the exclusive property in it be secured by local law in another person. We say local, for a right to exclusively make and sell a representation of an object, or a fanciful picture, or other mark of taste, rests upon nothing more extensive than the laws of the country which has invested it with the ægis of defence. One nation does not respect the defensive law of another in respect to such work of art, unless bound to do so by a treaty or compact. The people of one country, then, may with impunity prey upon the people of any other in respect to works of genius, unless, upon the condition of reciprocity, mutual forbearance shall have been stipulated. This reflection begets an idea! § 61. It is not the act of imitating that is unlawful in regard to a trade-sign or mark. Then what is the wrongful act? It is this: the placing of that mark upon vendible goods, for the purpose of fraud. For fraud, actual or constructive. Of this species of cheating, furtive and mean, the honest, the confiding, are the victims. But then the law protects the innocent against fraud? Yes! Now we perceive that fraud is the basis of the law's intervention: that kind of fraud which a person practises when he writes or paints or stamps or brands a certain sign upon articles for sale, with the design that the public shall take them to be the manufacture of some person else, or to have emanated from some place which is not the true one. This is a matter of property. A trader's business fails because another trader has illicitly copied his mark of honest dealing. He loses what should come to him as just profits, and the purchaser is deceived into paying for a false article. A double wrong is done. Unless the law intervene to preserve the credit of the mark, all faith in its integrity shall soon be destroyed. Commerce is wounded. Real tangible rights are struck at: money is lost. That in the eye of the law, as administered, is a greater wrong than to kidnap and sell the children of another's brain. Property has been despoiled, and that by the simple act of causing a certain symbol to utter a falsehood. Property must be protected. § 62. Whose Rights are protected ? - Those of the manufacturer or merchant who has lost his just profits, or of him who has been cajoled out of his money? or both? We must examine into the theory of protection; for upon a right understanding of it frequently depends the possibility of redress. § 63. When we look at the case in Cro. Jac., we find that, for an imitation of a mark placed upon cloth, an action upon the case was brought by him who bought the cloth, for deceit, which action was adjudged to be maintainable. In Southern v. How, which is believed to be the same case, a different version is given. In Comyn's Digest," Action on the case for deceit," A. g., the case is thus cited: "So" (i.e., an action will lie) "if a clothier sell bad cloths upon which he put the mark of another who made good cloths." Comyn does not say 2 2 Popham, 144. 1 Cited by Upton, p. 10. |