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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.
$ 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. Dec. 20, 1868. 3 April 16, 1869. 4 Technologisches Wörterbuch, in three languages. Paris, 1855.
6 “ 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. i Leather Cloth Co. v. Am. Leather Cloth Co., 11 Jur. (x.s.) 513.
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.?
§ 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, 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.
? 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."
§ 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, 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,
i London, 1865.
and property in a name or distinguishing style, as connected with a literary publication or a work of art. So do also the continental writers and jurists ; for although in their tribunals a single action may, it seems, embrace a claim for damages for infringement of a patent, a demand based on a trespass on the good-will property by false representations, the piracy of a label and violation of a mark, and may unite a demand for both civil and criminal penalties, — i.e., when all the alleged wrongs shall have arisen from one transaction, — yet we find that the different classes of injuries are separately considered in arriving at a conclusion, although constituting the warp and woof of the same web; and in adjusting remedies each species has its own peculiar redress. This mode of procedure, so different from that of countries under the domination of the common law of England, springs from the flexibility of the Code Napoléon. Yet this complexity need cause no confusion of ideas, except in the minds of superficial readers and unreflecting dabblers in law.
Ş 92. In the case of Woodward v. Lazar," in the Supreme Court of California, in 1863, before all the justices, the name of a hotel was treated as a trade-mark. It was an appeal from an order refusing to dissolve an injunction by which the defendants were restrained from using the name of “WhatCheer House," as the title or name of a hotel in the city of San Francisco. Norton, J., in delivering the opinion of the court, said: “It has been decided, and with good reason, that the name established for a hotel is a trade-mark, in which the proprietor has a valuable interest, which a court of chancery will protect against infringement. Howard v. Henriques, 3 Sand. S. C. 725. The point of dispute in the case is as to whom the name “What-Cheer House,' as a business-sign, belongs. The plaintiff claims that it belongs to him, as the keeper of the hotel, which he continued to conduct under that name after he surrendered the leased premises; while the
121 Cal. 448.
defendants claim that it is the designation of the building in which the business under that name was first conducted, and became theirs when they became owners of the building.” Now let us examine the case cited by the judge, and decide for ourselves whether or not there was not a mistake made in the name of the thing, - a mistake quite as wide of the truth as would be the confusion of the terms freehold, mortgage, lease, all relating to landed property, yet distinct in their natures. Names are sometimes things.
§ 93. In Amoskeag Manufacturing Co. v. Spear, in 1849, a distinguished jurist, Mr. Justice Duer, inadvertently misused terms. The defendant had pirated plaintiffs' label, making it correspond in size, color, fancy border, position, general arrangement and size of the letters, including the alleged trademark, the capital letters - A C A.” These letters were decided not to be a trade-mark, being merely indicative of quality. What, then, was the trade-mark ? Nothing Compare the language of the two labels. That of the plaintiffs read thus : " AMOSKEAG MANUFACTURING COMPANY. POWER Loom. Yds.
- ACA. AMOSKEAG Falls, N. H.” That of the defendant read thus : “ LOWELL PREMIUM TICKING. POWER LOOM. Yds. — AC A. WARRANTED Indigo Blue.” The judge had a clear conception of all the principles involved, and his decision was unquestionably correct. The extraordinary powers of a court of equity had been invoked to prevent the continuance of fraud. In what did that fraud consist? In a “ designed, studied, elaborate imitation” of the label of the plaintiffs, said his Honor. The defendant endeavored by a false representation to effect an unlawful purpose. To quote the judge's own words: “In this case there is a fraud coupled with a damage ; and a court of equity, in refusing to restrain the wrong-doer by an injunction, would violate the principles upon which a large portion of its jurisdiction is founded, and abjure the exercise of its most important functions, — the suppression of
1 2 Sand. S. C. 699.