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CHAPTER III.

DEFINITION AND NATURE OF A TRADE-MARK.

Necessity for Definition. – Difficulty of Defining. - All Nations use substan

tially the same Definition. — The Technical Mark not to be confounded with its Analogues.— Statutory Definitions. — Trade-marks as applied to Newspapers, Books, &c.— Mere Names of Hotels, Shops, &c., not Trade-marks. So, also, of mere Labels, Advertisements, Notices. – No Abstract Right to Symbol of Manufactures or Commerce. — Merchandise : what? - Résumé — Essential Characteristics of a Trade-mark.

$ 80. A DEFINITION of the term trade-mark is requisite, in order that we may know exactly what we are discussing. This definition is not without difficulty. To arrive at certainty therein, we must examine the laws and the judicial decisions of various countries, whose jurisprudence on this subject is harmonious with that of our own tribunals. Indeed, this species of property cannot advantageously be considered simply in its relationship to a locality ; but it must be viewed in connection with affinitive subjects embraced by the all-pervading spirit of commerce. Names sometimes deceive. The difficulty of defining this thing called a trade-mark has been recognized by the ablest minds.

$ 81. We must seek the differential quality by which a trade-mark is discriminated from its analogues, or we shall find our ideas tripped up by the improper use of names. Nomenclature does not consist in the mere naming of tools, but is the expression of distinctions which convey in a single word the nature of the thing meant. When we use the terms trade-mark, label, sign, envelope, design, etc., we mention

things which are analogues of each other, and are not similar in their natures.

$ 82. The exposition of the comprehension of a notion is called its definition, says Sir William Hamilton. For example, the concepts man, horse, dog, &c., are contained under the general concept animal ; and the concepts triangle, square, circle, rhombus, rhomboid, &c., are contained under the general concept figure (concept and notion being convertible terms). The same clear thinker says that conception, the act of which concept is the result, expresses the act of comprehending or grasping up into unity the various qualities by which an object is characterized. It has been for lack of a clear conception of the natures of the things which they had occasion to discuss or comment upon, that at times judges, essayists, and reporters have misused terms, and named one thing when they meant another. The uninitiated are misled by the wrongful use of terms; and find to their sorrow, in court, that what they supposed were veritable trade-marks, are mere labels or advertisements, not within the pale of the law's protection. The opinions abounding with fallacious obiter dicta remind one of the illustration used by Sir William Hamilton : 2 “ In countries where bank-notes have not superseded the use of the precious metals, large payments are made in bags of money, purporting to contain a certain number of a certain denomination of coin, or at least a certain amount in value. Now these bags are often sealed up, and passed from one person to another, without the tedious process, at each transference, of counting out their contents, and this upon the faith that, if examined, they will be found actually to contain the number of pieces for which they are marked, and for which they pass current." Still the door is open to error and fraud. In the same way, we too frequently accept the loose sayings of a judge for law, because they bear the judicial impress; but when, from abundant caution, we open and examine the bag purporting to 1 Logic, lect. viii.

2 Logic, lect. x.

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contain pure gold, we find but withered leaves. In no unkind spirit, we scan the words that should be the fortresses of thought, and find a heap of chaff. No one has the right to complain of our attempt to separate the chaff from the wheat. Locke tells us, in speaking “Of the Abuse of Words,” that some take so little care to lay by words which in their primary notation have scarce any clear and distinct ideas which they are annexed to, that by an unpardonable negligence they familiarly use words which the propriety of language has fixed to very important ideas, without any distinct meaning at all. ... Men having been accustomed from their cradles to learn words which are easily got and retained, before they knew or had framed the complex ideas to which they were annexed, or which were to be found in the things they were thought to stand for, they usually continue to do so all their lives; and, without taking the pains necessary to settle in their minds determined ideas, they use their words for such unsteady and confused notions as they have, contenting themselves with the same words other people use, as if their very sound necessarily carried with it constantly the same meaning.

$ 83. Thus, a careless speaker applies the term trademark to a mere label, although such mere label is not protected by law, unless by some local statute ; 1 or to a mere advertisement ;2 or to the good-will of a shop;: or to the sign of an inn or hotel. It is true that we may read and analyze for ourselves; and it is quite as true that we accept the phraseology of a judge on trust. The universality of a term, says Watt, in his book on logic, is many times restrained by the particular time, place, circumstance, &c., or the design of the speaker; as when it is said in the Gospel that “all men did marvel," it reaches to only those men who heard of the miracles of our Saviour. By a careful perusal of a case, we may

1 Falkinburg v. Lucy, 35 Cal. 52. ? Leather Co. case, 11 Jur. (N.s.) 513. 3 Howe ». Searing, 10 Abb. Pr. R. 264; 6 Bos. 354; and 19 How. Pr. R. 19. * Howard v. Henriques, 3 Sand. S. C. 725.

generally ascertain the import of the language of a judge while he is attempting to expound the law; but, unfortunately, we find that he is sometimes completely in the mist. “ The one exclusive sign," says Aristotle, “that a man is thoroughly cognizant of any thing, is that he is able to teach it.” We may, therefore, conclude that if a judge cannot convey to the mind of another person an intelligent idea of his meaning, he must himself be deficient in the understanding of his subject. We require a definition, and that definition the analysis of a complex concept into its component parts or attributes. ,

$ 84. A definition is a brief enunciation of the law governing a particular subject, or branch of a subject, known by a particular name. Thus, the law of contracts is, in outline, stated in the definition of the word contract. Out of an accurate definition can be drawn a vast amount of law. But, in the nature of legal things, a definition can never be established by adjudication. The absolute truth of this proposition appears when we consider that the object of every law-suit is, so far as the law of the case is concerned, to determine the rights of the parties as growing out of certain facts admitted or proved. But facts, as shown in courts of justice, are just as variant in nature from a definition as is a triangle from an emanation of the mind. There is no concord or harmony between the one and the other. Yet, although a court cannot adjudge a definition to be so and so, it may, in assigning reasons for its judgment, take into the account the idea of the true principle of a definition. In other words, the judge, in giving the opinion of himself and his associates upon the law as applied to the facts, may state what he and they deem the true definition to be. But this statement is a mere dictum : it creates no law; it is of no higher authority than are similar statements made by text-writers; and indeed it is not so likely to be found correct as is theirs. In his treatise on trade-marks, Lloyd 2 states his opinion that there would be much convenience in having a

1 Bishop's First Book of the Law, $S 261, 262. ? Second ed., p. 38.

statutory definition of a trade-mark, which should distinguish, as was done by the old French law, between the marques de fabriques, or trade-marks properly so called, consisting of a stamp affixed to or incorporated with a manufactured article, and the use of a name, or label, or a sign-board, or placard, and all those less permanent marks of distinction which are used in trade; and again separating from them all cases which involve literary or industrial property.

$ 85. The French have probably given this subject as keen and thoughtful a scrutiny as any jurists in the world ; and yet, in the report of the commission to examine the project which crystallized into their legislative act of the 23d of June, 1857, it is said : “ In what do marks consist? The plan of the law, avoiding the peril of a definition, and leaving to doctrine and to jurisprudence the task of defining, has remained mute in this respect.” The Council of State concurred in this idea of the impolicy of attempting an exact enunciation of the elements which constitute this thing, and said : “ The mark is any sign serving to distinguish the products of a manufacturer, or the objects of commerce, and the law cannot enumerate the signs.” The Court of Paris, in 1859, calls it the characteristic sign by means of which commerce distinguishes the products of one's manufacture, or the objects of his commerce. By resorting to what was until lately the universal language of diplomacy, — the French, — and which is a safe guide to the meaning of all leading nations when speaking upon this subject, we find that the trade-mark of English-speaking countries is the same thing as the marque de fabrique et de commerce of continental Europe. This is placed beyond all question by the “ Code International de la Propriété Industrielle," &c., by MM. Pataille and Huguet (Paris, 1855), and the Appendix thereto (1865), by the former eminent jurist. Our term is so translated, and so its synonym in the English “ Merchandise Marks Act,” of 1862. All treaties and conventions of com

1 Lalande et Liot v. Appel et als., Ann. de la Prop., etc., tome v. p. 248.

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