10.

Schrauder has gone to great outlay, and has fully identified his goods with the mark, and would be a serious sufferer to be now deprived of its use, after being the one to give it force and value in the only way in which it could be given, namely, by attaching it to goods. There is no evidence that Beresford & Co. would suffer any serious loss from any cause. 1

For BERESFORD & Co.:

1.

Theodore H. James, agent of your applicants, conceived2 of this trade-mark, and studied out its details, before George Schrauder, or his lithographer, or any other person had thought of it. James not only conceived of the trade-mark first, but in May, full a month before Schrauder, he very fully and completely described his bouquet-brand to William Porter: said that the flowers should be in the form of a bouquet in a holder; stipulated that the bouquet should be of various colors; specified that the word "bouquet" should be placed on the trade-mark; inquired about the probable cost of getting up a lithograph of the trade-mark; stated clearly that this trade-mark of a bouquet of flowers was to be applied to hams; and finally ordered Porter to get up such a lithograph. This transaction took place in the month of May, 1871, and from four to six weeks earlier than the first conception of the application of flowers to a brand for hams, &c., for Schrauder. . . . While it may be true that Schrauder's lithographer, so far as appears from the testimony, first reduced the design of a bunch of flowers for a ham-brand to a sketch, and pasted it as his trade-mark on hams, yet the present case is one of those cases in which the question who first reduced the trade-mark to a sketch does not enter.

1 This point is rather inartificial in construction. The question is purely one of right, independent of all consequences to the interest of the parties.

2 The idea of conception or invention cannot enter into a trade-mark case.

2.

Because first James, in May, described his trade-mark 1 fully. He had thoroughly conceived it, and he so described it to Porter that any man of common sense could understand and use his design. 1. He mentioned then to Porter a bunch of flowers; 2. He described their shape: they were to form a bouquet; 3. He mentioned their support; 4. They were to be put in a holder, and the flowers were to be of a variety of colors; 5. The word " BOUQUET" was to be added to the trade-mark; 6. The article to which the trade-mark was to be applied was mentioned that article was hams; 7. The name of the parties for whom the trade-mark was intended-i.e., Richard Beresford & Co. was added. Thus it will be seen that all the main features of the trade-mark, with the details, were stated by James to Porter, when he ordered the latter, in May, 1871, to get up the lithograph for the trade-mark he, James, had described.

3.

Here was the trade-mark invented 2 and described by James in May, 1871, in such clear and accurate language, and in such full details, that any man of ordinary intelligence and sense could understand and use his trade-mark.

4.

3

The rule is, that where the substance of an invention consists in the application of a device, &c., for a specific purpose, the person suggesting the device and its application is the inventor, though some one else puts the invention into practice. (See Thomas v. Weeks, 2 Paine, C. C. 92.) No negligence can be imputed to your applicants. They are "winter-curers," and proved this by their own and their opponents' witnesses,

1 It never was James' trade-mark, as he had never reduced it to possession by adoption. The proper word is design.

2 See above note on this point, and title "Invention."

This is a natural mistake of patent solicitors. They fall into the error of confounding an attribute of commerce with the subject of invention.

that, having invented, through James, their trade-mark in May, 1871, they, being "winter-curers," and not curing their hams until the succeeding fall and winter, would not need their trade-mark labels until that time. Your applicants, then, submit that said James was the first and original inventor of the trade-mark now in controversy; and that, as the assignees of said James, they are entitled to the exclusive use of said trade-mark for ham and breakfast-bacon, &c.

It is obvious at a glance that the respondents, Beresford & Co., have not only mistaken the real issue, but have also based their case upon an inapplicable theory.

By reference to the specifications, which serve the same purpose in this interference as do pleadings in courts, — it must be seen that Schrauder claims nothing but the word "BouQUET," although for pictorial effect he chooses to associate that word with a nosegay, bouquet, or bunch of flowers, call it by what name one may. The essential part of the respondents' mark is the bouquet itself. Inquiry and comment should therefore have been directed by them, not only to the date of adoption of the bunch of flowers, but also to the adoption of the word which is its proper designation. It is because either the eye or the ear might mislead a would-be purchaser that the claims of the parties have come into collision. But the evidence, as to facts, is so clear that the error of counsel, in points and argument, cannot prejudice the rights of a party.

The law of the case has been mistaken. They have treated the mark, the emblem, the symbol of commerce, as an invention, and have attempted to apply principles which are utterly inconsistent with the idea of a trade-mark. If the bouquet in controversy be regarded as a design, the subject of a patent, then it would be proper to treat of the conception of the thing, and of the perfecting of the invention; but it is only the wildest

1 This admits their adversary's case. See, also, point 1, conceding that Schrauder first pasted the mark on hams.

2 The application was not filed by Beresford & Co., as assignees. If assignees, they would have had to deduce their title from James.

.

flight of fancy that could possibly conceive of a trade-mark as a patentable design. It is true, that the copy of something patented as a design may possibly be adopted as a trade-mark, as may the representation of an infinite number of objects in nature and art; but the ideas of aesthetics and trafficking have not ever been associated in the manner supposed by the counsel.

It is hardly necessary for the present purpose to assert the truth that a design, as contemplated by the patent laws, means an artistic or useful conformation or delineation, which is intended to be incorporated with an article of manufacture, and is inseparable from it. In no legal sense could the emblematic picture of the respondents be deemed a design. And if it were a design, as understood by the law in relation to patents for inventions, it could not possibly have any bearing upon a case of trade-mark law.

We must utterly repudiate the idea of a right of property in the symbols constituting a trade-mark, apart from the use or application of them to a vendible commodity. (Leather Cloth Co. v. American Leather Cloth Co., House of Lords, 1865, 11 Jur. (N.S.) 513; Perry v. Truefitt, 6 Beav. 66; Congress & Empire Spring Co. v. High Rock Congress Spring Co., 57 Barb. 526; and all the authorities.)

For the purposes of this discussion, it is not of the slightest avail to inquire who first sketched, drew, or invented the design now claimed as a trade-mark. Other irrelevant matters must also be ruled out; the only important question is this: Who first applied the symbol to the vendible commodities dealt in by the parties hereto? Upon the determination of that single question of fact rests the whole of the case. Let us resort to the testimony.

The witness Moers is positive that he saw Schrauder's labels affixed to packages of cured meats three or four weeks prior to September 8, 1871, and the witness Milholland says that shipments of meats bearing said labels were made by Schrauder

a few days after the 10th day of August, 1871. The labels are clearly identified, and all bear the trade-mark described by Schrauder in his specification. All the evidence corroborates the statements of these witnesses. It is undoubtedly true that Schrauder had appropriated the mark in August, 1871, and that he from that time continued to affix it to his merchandise. It is proven that he was doing a large business in the sale of cured meats. The lithographer Strobridge, who furnished the lithographed labels, testifies that he supplied Schrauder with 500 labels for tierces of his meats; with 10,000 labels of another size; and with 500 labels for boxes. The said labels all bore the trade-mark described and claimed by Schrauder; and all were used in his place of business until the supply was exhausted, and more were required. He, then, had the ownership of the mark claimed by him, unless some other person or persons had adopted it before he had.

When did Beresford & Co. adopt the bouquet? Their printer testifies that he delivered their labels to them either in September or October, 1871, the charge for them having been made on the 7th day of November following. Their clerk, James, testifies that the first time he saw the bouquet-brand used was in January, 1872, when he saw it affixed to a ham bought from Schrauder. There is no pretence on the part of Beresford & Co. that they affixed the mark to their merchandise before that time; and indeed they account for their delay in its use by the fact that they were "winter-packers," while their adversary Schrauder was a "summer-packer: ".e., the latter worked in the warm season, while they could only work during the cool season. They relied upon the adoption of the abstract symbol, and did not make it a trade-mark. Schrauder's earlier business compelled him to use it in August; and by his act, in affixing it to the goods sold by him,— to wit, cured meats, consisting of hams, &c., he did all that the law requires to reduce the emblem to possession, and thus he made it a trade-mark.