genuine, and gaining the difference. And yet it is possible that the public may be deceived and at the same time not injured. This may be illustrated by a case which occurred in Tunis in 1828. A coinage of new piastres was effected under the direction of the Bey, and on account of his government, the sovereign reaping the enormous profit of more than forty per cent. Piastres of a similar impression, weight, and value, were fabricated in Europe, and found their way to Tunis, where they entered into the circulation, and procured for their makers a division of the spoils. Still the piracy was no less in law, even had the counterfeiters furnished a superior coin; the rule being that the public may not be deceived, even for its own benefit. Not many years ago, the base silver money of Hayti was imitated by artisans in this country, upon similar speculative ideas.1 It may also be remembered that, during our late civil war of the rebellion, the worthless notes of the Confederate States were imitated by lithographers and printers in the North, and, being more artistically executed than were the genuine, were all the more greedily sought for. Yet the man who sold a cow for a pretty-looking counterfeit note, was declared in law to be cheated, even although the genuine note was doomed never to be redeemed; for his contract was for a genuine promise to pay. The cases fairly illustrate the principle of trade-marks, so far as the obligation to deliver to the purchaser the thing bargained for, whatever its intrinsic value. § 77. None of the actors in the following case would have had any standing in court, as applicants for protection. Years ago, the wine-growers of Mont Rachet and of Chablis heard that monks in Bourdeaux were exporting white wine to Turkey, under the name of mineral water. So thrifty an example was not to be despised; so white wine from Burgundy was sent to the Turks under the same disguise, and was declared by the consignees as well as by the exporters to be as good mineral water as that of Bourdeaux. Here was a case of competition 1 Eckfeldt and Du Bois, Manual of Coins and Bullion. in business by unfair means. Suppose that the pious fathers of Bourdeaux had prosecuted their rivals in trade for the imitation of their mark, to wit, the meaningless, arbitrary symbol, "Mineral Water," could a suit have been maintained? No! But nobody was deceived? True; but the business was immoral. Immoral to sell wine? No! but immoral to sell to Turks, because their religion forbids them to drink it. § 78. Manufactures and commerce are, it is plain to perceive, twin sisters. As they began life together, so in the race do they keep side by side. The plastic hand of the cunning workman moulds and fashions and shapes; while the merchant, scattering his products afar in all directions, by barter receives from afar the products of other countries. All the world should be enabled to test the genuineness of goods by the mark placed upon them. When the distinguishing symbol is once published, it should be susceptible of being read as easily as the child or the dog, by intuition or by instinct, reads the marks that nature has legibly written on the countenance of man. The first glance of the eye decides. This is a rule in connection with trade-marks. § 79. How shall we judge a Mark? We must learn something of its peculiar nature; for it is not every heterogeneous assemblage of objects that comes within the category of trademarks; nor every Protean representation, that may be one thing to-day, another thing to-morrow. We must apply a touchstone to any thing claiming to be the symbol of trade. We must learn to discern the true from the false, i.e., the one having the true essence from that which has but a faint semblance of reality. We need not err. There are certain tests. But this leads us to another chapter, which treats of the nature of the thing. CHAPTER III. DEFINITION AND NATURE OF A TRADE-MARK. Necessity for Definition. - Difficulty of Defining. -All Nations use substantially 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.1 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 2 Logic, lect. x. 1 Logic, lect. viii. ... 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. Howev. Searing, 10 Abb. Pr. R. 264; 6 Bos. 354; and 19 How. Pr. R. 19. |
