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, §§ 261, 262. 2 Second ed., p. 33. 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.1 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. merce agree in this respect. The uniformity of expression proves that the same thing is understood by all alike; and that in the minds of statesmen and jurists there is no doubt as to what is meant by the general comprehensive term trade-mark. As corroborating instances of this prevalent understanding, see our treaty with Russia, where the phrase "trade-marks affixed to merchandise" is rendered in the counterpart des marques de fabriques apposées dans l'autre sur certaines marchandises; and see, also, our conventions with Belgium 2 and France. The German term Fabrikzeichen is translated into the same words in French. We find a more comprehensive definition of the term mark of trade, in German.5 § 86. This perfect agreement leads to the inevitable conclusion that a trade-mark is not a new kind of creature; and that its meaning, purpose, and value are well known to all manufacturing and commercial peoples, and requires no definition in a treaty, every word of which is subjected before ratification to the most rigid scrutiny. The manifest object of the many national compacts was reciprocity of protection, and not to give vitality to the thing. When we come to fully consider the subject, it will be amply demonstrated that, as much as any other species of property, a right to a distinctive mark of authenticity has its foundation in immutable law; and we will perceive that any arbitrary law - as a treaty, a convention, or a statute cannot be the parent of this ideographic sign. The right pre-existed: a compact only recognizes that right, and opens the door to a remedy for encroachment thereon. § 87. The mark may consist in the name of the manufacturer or the merchant (provided it be written, printed, branded, or stamped in a mode peculiar to itself); in a seal, a letter, a 1 Jan. 27, 1868. 5"Unter den Waarenbezeichnungen (Fabrikzeichen, Marken) werden diejenigen Zeichen verstanden, welche dazu bestimmt sind, die in den Handel gebrachten Erzeugnisse als von einem bestimmten Urheber oder Zwischenhändler herrührend zu bezeichnen." Klostermann on Trade-marks, &c. Berlin, 1869. cipher, a monogram, or any other sign or symbol that can serve to distinguish the products of one man from those of another. It may be any symbol or emblem, however unmeaning in itself, as a cross, a bird, a quadruped, a castle, a star, a comet, a sun; or it may, and frequently does, consist of a combination of various objects, copied from nature, art, or fancy; and if such symbol or emblem comes by use to be recognized in trade as the mark of the goods of a particular person, no other trader has a right to affix it to goods of a similar description. It may be adhesive or non-adhesive. It may be put inside of the article, or on the outside. It may be written, printed, stamped, painted, stencilled, branded, or otherwise, and either on the article itself, or on its case, covering, envelope, or wrapper.2 § 88. We must not be misled by a sweeping definition. We must judiciously compare, reason, generalize. Mere words may deceive. The physiology of the thing called a trade-mark must be examined and carefully analyzed. It has an individuality of nature. Meaningless in itself, when placed in a certain juxtaposition, it involves an idea, as the digit 9 does not represent the word nine, but the idea itself of the number. It is the legitimate hieroglyph. It is the emblem of a man; and it virtually says that the vendible object to which it is attached is the workmanship, or the selected article, of the owner of the mark. It is intended to strike the eye by its clearly defined character, and sometimes the ear by its sound when spoken of, and thus excite inquiry; and for this reason it must be peculiar in form, although possibly not susceptible of utterance in sound. § 89. We may readily understand why a nondescript vignette, 1 Leather Cloth Co. v. Am. Leather Cloth Co., 11 Jur. (N.s.) 513. 2 The French law of June 23, 1857, says: "Sont considérés commes marques de fabrique et de commerce les noms sous une forme distinctive, les dénominations, emblèmes, empreintes, timbres, cachets, vignettes, reliefs, lettres, chiffres, enveloppes, et tous autres signes servant à distinguer les produits d'une fabrique ou les objets d'un commerce." a grouping of flowers and fruits, an elaborate landscape having no striking features, or a mere advertisement, or common print of a man's name, should not be regarded as the distinctive mark that the law of commerce requires. It should possess such salient features as might at once arrest attention and put the intended purchaser on the alert. If such an undefined object could possibly be regarded as a valid trade-mark, what would be the consequences? There would be neither protection for the owner nor guaranty for the buyer; for any other combination of flowers and fruits, of houses and trees, having the same pictorial effect, might be mistaken for it. § 90. It is not very remarkable that casual readers should fall into the error of confounding the technical trade-mark of commerce with rights protected upon principles analogous to those upon which trade-mark decisions rest,—such as the good-will of an establishment of trade and literary rights,— especially when we find at times a judge, a commentator, or a reporter, falling into the same error. The importance of observing the distinction will be more manifest as we proceed in this investigation. It should be borne in mind that a trademark carries the idea of a man's personality, like his ordinary autograph, and therefore preserves its essential characteristics wherever it may go. This is not so with a quasi trade-mark, as the name of a hotel or shop of trade, or the title of a stagecoach, or mere literary property, or a patent for an invention or a discovery; for such things have no inherent extra-territorial force, and for recognition depend upon compact, or the tacit acknowledgment of nations other than those where such rights originated. § 91. With rare exceptions, this important distinction is observed. Mr. Lloyd, in his treatise on trade-marks,1 preserves the line between the good-will of a trade so far as it is contained in the title and style of a partnership, or the name of a trader, or the description of his place of business, 1 London, 1865. |