in common use cannot be appropriated. The rule upon the subject of generic words, or words denoting quality, is so universally settled and acquiesced in, that authorities need not be cited in support thereof. Nor can the words "Manufactured by W. T. Blackwell," for such language is in the nature of a mere advertisement, and cannot, by any possibility, be deemed to constitute any part of the symbol known to commerce as a trade-mark. (See Falkenburg v. Lucy, in the Supreme Court of California, 35 Cal. 521; and also the Leather Cloth Co. v. The American Leather Cloth Co., in the House of Lords, 11 Jur. (N.S.) 513.) Therefore the proposition that the applicant has simulated the trade-mark of the respondent by a part-imitation cannot be entertained. The whole, if any part, of the lawful mark has been pirated. If any word in Blackwell's registered mark possesses the essential attributes of the symbol known to commerce as a trade-mark, that word is “Durham.”

But the respondent's counsel, in their first point, deny that by any possibility this word can be a trade-mark, and say it is liable to almost every objection that can be suggested. In support of this idea, they cite the recent case of The Delaware and Hudson Canal Co. v. Clark, in the Supreme Court of the United States. (Official Gazette, 1872, p. 279.)

Let us pause and consider the position of the respondent. "Durham" being the only word that can possibly be deemed essential in this case, how stands Blackwell if it cannot be supported as such? Ilis objection is a two-edged sword. If one fails upon that point, so must the other.

What did the case cited by respondent's counsel decide? It simply reaffirmed the doctrine of the Brooklyn White Lead Co. v. Masury (25 Barb. 416). When two or more persons manufactured white lead in the city of Brooklyn, each had the right to describe his product as Brooklyn white lead. The exact point which turned that case against the defendant was this: he had fraudulently assumed the word "Company" or "Co." for the purpose of diverting the plaintiff's trade. It was purely

an instance of unfair competition in business. Careful analysis will demonstrate that it was not a trade-mark case, notwithstanding the fact that it is ofttimes referred to as such. In the case against Clark, above cited, known as the Lackawanna coal case, the court held that the name of a region of country cannot be appropriated to the exclusion of others who produce or who sell a similar article coming from the same region; therefore, as the complainants are not the sole owners of the coal-mining district of the Lackawanna, they have no exclusive right to the use of the words "Lackawanna Coal."

The same counsel also cited Newman v. Alvord (49 Barb. 588). In that case the court substantially concedes that the plaintiffs, by their prior appropriation of the name of the town of Akron, in connection with the words cement and lime, acquired no exclusive right to its use as against any one who could use it with equal truth. A careful examination of that case will disclose the fact that it was not strictly a case which involved a technical trade-mark; for to be a trade-mark, the right to its use must be exclusive. A laborious perusal of published authorities has failed to produce an instance of any court of any country admitting the possibility of the existence of a "neighborhood trade-mark." For our present purpose it is sufficient to refer to sec. 77 of the Act of Congress of July 8, 1870, in regard to trade-marks, which promises protection only to the person entitled to the exclusive use of any lawful trademark.

Therefore it is perfectly clear that if the word "Durham" is used for the purpose of indicating to the public that the merchandise to which it is affixed is manufactured or sold at a place called Durham, it is not what the law recognizes as a trade-mark; but it comes within the principle of Falkenburg v. Lucy, and the Leather Company case, above cited, and is a mere advertisement. Now comes an important question:

Did the applicant use the said word "Durham" as the name of a locality?

In an ordinary case of litigation, it would be sufficient to reply that the party making an objection is estopped by his admissions upon the record. If the objection were tenable, then this interference should be dissolved, for neither party would have any standing before this tribunal. But it is necessary to proceed further, for this reason: By section 79 of the Trade-mark Act of 1870, the Commissioner of Patents is prohibited from recording any proposed trade-mark which is not and cannot become a lawful trade-mark. This section confers judicial functions, at least to the extent of inquiring into the legality of every proposed trade-mark offered for registration, ex parte or otherwise.

This matter cannot be decided upon any thing in the nature of pleadings, or upon concessions. Consent cannot give jurisdiction. The applicant must not only have as good a right as any one else, but his right must be perfect. He must succeed, if at all, by his own strength, and not by the weakness of his adversary. If the Office erred in granting registration to Blackwell, that is no reason why it should repeat the error for the purpose of placing the parties upon the same footing before the courts, as one of the counsel suggested. Even if the Office should refuse registration, the rejected party might still fall back upon the common law, as a party litigant. This brings us back to the consideration of the question as to the meaning of the word "Durham," as used.

If the word is used in its geographical sense, it means but one place: a village in North Carolina. That is expressly conceded by both parties, and is warranted by the evidence. It was at a place bearing that name, or one nearly like it, that the applicant or his assignor commenced business as a manufacturer of smoking-tobacco, so long ago as 1859 or 1860. It is there that the respondent alleges that he now carries on the same kind of business. It is there that a number of witnesses reside and manufacture tobacco. We have not the slightest suggestion that any other place named "Durham" is meant.

It is true that several towns in the United States have that name; but they are excluded from consideration in this case, as the name means a place in North Carolina, if any thing.

Is there such a place as Durham in North Carolina? We would be left in some doubt upon this point if we depended entirely upon the language of the witnesses. Some of them speak of Durham ; some of "Durham's; some of "Dur

hams," and some of " Durham's Station." Which is correct? We turn to the official list of post-offices, and find that it is spelled Durham's; the apostrophe probably signifying, elliptically, Durham's Station. We finally hesitate to take judicial notice of the fact, and ask for the official certificate of the Acting First Assistant Postmaster-General, on file as an exhibit in this case. This is dated March 25, 1872. It says: "On examining the records of the Department it is ascertained that there is a post-office in Orange county, North Carolina, by the name of Durham's, and that Presly J. Mangum is the present postmaster," &c. That settles the question. The name is "Durham's."

The word "Durham," as used by both parties, is not so used to indicate any locality. We may reasonably so infer. The Office has virtually so ruled in granting registration to Blackwell. The evidence on file abundantly proves it. On the part of Blackwell and his predecessors, a representation of a Durham-bull was, and still is, used in connection with the word "Durham." What is it used for? The evidence overwhelmingly shows, that it is used to indicate to the public that the tobacco having that name had a peculiar excellence. That indication may be true, or it may not. The purchaser asks for the " Durham " brand, because it is his choice. Witnesses swear that it has a peculiar flavor, and say that ever since 1860 it has been known and used as a superior kind of manufacture. It would be idle to doubt that the article has agreeable properties, from the manner in which the tobacco is flavored with certain aromatic herbs, or other ingredients.

It is not pretended by auy one that the tobacco is raised at Durham's Station; or that, if it were, that the soil of that locality possesses any peculiar properties to make tobacco grown thereon better than any other. The witnesses swear that it is the peculiar flavoring imparted by the tonqua-bean and other ingredients. What ground is there for rational doubt? The article manufactured in a particular manner is the thing

meant.

If that were not so, then all the tobacco-manufacturers at Durham's had a right to use the same name. But Blackwell could not have so meant when he commenced to use the word "Durham;" for in his sworn statement, filed April 14, 1871, in applying for registration, he positively sets forth "that no other person, firm, or corporation has a right to use said trademark, or any one substantially the same, or one wherein or whereon the word Durham' is used in connection with the words 'smoking-tobacco,' upon any tobacco or package containing the same." This is irrefragable evidence to show that he did not then consider the word "Durham" as the mere name of a place; for at Durham's Station, at that very time, there were a number of other independent manufacturers, all equally entitled to use the name of their village as a geographical designation.

This does not concede, as law, that a geographical name cannot be the subject-matter of a trade-mark. It generally cannot be, for the reason given in the Lackawanna case. Mr. Justice Strong, in delivering the opinion of the court in that case, said: "Could such phrases as 'Pennsylvania wheat,' 'Kentucky hemp,' 'Virginia tobacco,' or 'Sea-Island cotton,' be protected as trade-marks?" All have an equal right to use those names when they truthfully indicate the goods to which they are applied. But this rule has some exceptions. A word which in one sense may be coincident with the proper designation of a region of country or a town, may be put to another office. The leading authority on this point is the celebrated