"And the general rule is thoroughly established that words that do not in and of themselves indicate anything in the nature of origin, manufacture, or ownership, but are merely descriptive of the place where an article is manufactured or produced, cannot be monopolized as a trade-mark."

Two words, each denoting a simple product within itself, are here employed in conjunction, and it is sought to appropriate the designation as a trade-mark to the exclusive use of the complainant in the advertisement and sale of its preparation in the markets. The preparation in question is very naturally called "Turpentine Shellac," as it consists principally of a mixing or combination of the two more simple ingredients, turpentine and shellac, and, of course, in its ordinary signification the name is merely descriptive of the compound. It can scarcely indicate origin or proprietorship, so that it is not a term or designation suitable for appropriation as a trade-mark in the technical sense. As a trade-name, it may be properly so employed, but within itself it is inapt for exclusive appropriation as a trademark. Beyond this, however, words or symbols naturally descriptive of the product, while not adapted for exclusive use as a trade-mark may yet acquire, by long and general usage in connection with the preparation and by association with the name of the manufacturer, a secondary meaning or signification, such as will express or betoken the goods of that manufacturer only, and in this sense he will be entitled to protection from an unfair use of the designation or tradename by others that may result in his injury and in fraud of the T public.

The principle that one person or firm should not sell his goods as the goods of another person or firm lies at the bottom of the legal objection, and it is the making use of the trade-name, which by a peculiar and particular signification betokens the goods of a particular manufacturer, for the purpose of foisting the goods of another, especially if they be of inferior stamp or quality, upon the market as the goods of that manufacturer, that the law will not tolerate. Such a. practice is unfair and injurious both to the proprietor or manufacturer and to the public. The doctrine is nowhere better stated than in two cases to which I will now allude. In Noel v. Ellis (C. C.) 89 Fed. 978, the court says:

"Can descriptive words be the subject of a valid trade-mark? According to the doctrine of trade-mark law, they cannot be. At the same time the courts have decided that the originator is entitled to certain proprietary rights in a name which he has used to designate a certain article, and for which he has built up a reputation and a business, and which he has given the public to understand is an article prepared by him, so that certain words which certainly contain elements of description have been declared by the courts to be valid | trade-marks. Such is the case on 'Cottolene.'"

And in Scriven v. North, 134 Fed. 366, 376, 67 C. C. A. 348, 358: "Courts cannot forbid the use of words, which, standing alone and in their ordinary signification, are common property, or of numerals, which all the world is free to use, or of labels and stamps of common form, in which no one can claim an exclusive use, even though it may be shown that careless persons may in some instances be misled; but if they are so collocated and stamped upon an article in manifest imitation of a form previously adopted by another as a means of distinguishing his goods, with the deceptive purpose to mislead, disguising one's own goods thereby, and inducing the public to be

lieve that they are the goods of another, such conduct falls under the ban. The general principle that no man has a right to pass off his goods as and for the goods of another is broader than the rules applicable to strict trademark. In this country this principle is generally designated as 'unfair competition in business.'"

So it is that words which carry with them the truth of the assertion and correctly describe the article are not susceptible of beng appropriated as trade-marks; but if these words, by long association with a particular person in the manufacture or sale of a particular article, have acquired a secondary meaning, that denotes in the mind of the public the association as well as the article of commerce, their original proprietorship will be protected against any unfair methods to appropriate the use of them by others in palming off their goods for those of the rightful manufacturer.

Without discussing the subject in particular, I am of the opinion. that the bill of complaint states sufficient to require an answer of the defendant. It is very much like the case of Putnam Nail Co. v. Bennett et al. (C. C.) 43 Fed. 800, decided by Mr. Justice Bradley, on the circuit bench. There the bill averred that:

“The defendants, well knowing the premises, and that your orator alone possessed the right to bronze horseshoe nails as a trade-mark, and to sell the same under the trade-name, as above set forth, have willfully disregarded the same, and, intending to deceive purchasers and defraud the public and to Cajure your orator, have for some time past been engaged, and are still engaged, in the sale of horseshoe nails, not manufactured by your orator, but similar in appearance to those manufactured by your orator, which they have had bronzed and sold as bronzed horseshoe nails, under the name of 'Imperial Bronze, or other names, all containing the word 'bronze'; and the said nails, so bronzed and sold by the defendants under the said name, have been and are of inferior quality to the nails bronzed and sold by your orator under their lawful trade-mark; and purchasers and consumers have been and are deceived and misled into buying the articles so bronzed and sold by the defendants in the belief that they were and are of the manufacture of your orator."

And the eminent jurist said of it:

"There is here a substantial fact stated-that the public and customers have been, by the alleged conduct of the defendants, deceived and misled into buying the defendants' nails for the complainant's. That averment is amplified in paragraph 4 of the bill."

He goes further to speak of the nature of the trade-mark, but finally holds that the bill is sufficient to require of the defendants an

answer thereto.

So, in the present case, I am of the opinion that the allegations of the bill are amply sufficient to require of the defendants an answer, that the whole matter may be spread upon the record and determined upon the merits of the cause.

The demurrer will therefore be overruled, and it is so ordered.

In re GEORGE O. HASSAM & SON.

FLINT WAGON WORKS v. BUTTLES.

(District Court, D. Vermont. May 27, 1907.)

BANKRUPTCY-CONDITIONAL SALES-VALIDITY.

Where conditions reserving title in the seller, printed on the back of contracts for the sale of wagons to a bankrupt, which the seller knew were to be resold in the course of the bankrupt's business, were not called to his attention at the time the contracts were made, and the bankrupt testified that he had no knowledge of such printed conditions until his attention was called thereto by his trustee in bankruptcy, the contracts never having been recorded, the title to the wagons passed to the trustee in bankruptcy as against the seller; such conditional provisions being fraudulent and invalid as against the bankrupt's creditors.

[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 199.]

C. G. Austin & Sons, for petitioner.

Charles L. Howe, for petitionee.

MARTIN, District Judge. This case came on for hearing before me at Rutland, May 6th. I find that on September 27, 1905, the petitioner sold the bankrupts several wagons. This sale was by written contract upon the face of which was printed, in plain but small type, these words: "Read this order carefully before signing and see that it corresponds with the duplicate copy." And in another place, in like plain but small type, these words: "Subject to conditions printed on the other side of this order which are hereby agreed to"-being a printed blank contract, the place of sale, date, name of parties, and articles sold being written in, and signed George O. Hassam & Son, in the handwriting of George O. Hassam, Upon the back thereof is printed in fine, but plain, type, the following:

"The title to the goods shipped on this order, or any subsequent orders, is to remain in your name until paid for in cash, and should we through any cause suspend doing business, or become, or apparently become, embarrassed financially, any account or note you have against us shall become immediately due and payable, and we will deliver to whom you may direct, or place on cars if you so direct, any or all of your goods remaining on hand, free of charge of any kind.

"You agree to replace, free of charge, any axle, wheel or spring that may be come unfit for use within one year from date of shipment, by reason of defective material or workmanship, and will repair or replace same upon return to you (by freight) and pay freight charges one way. We understand that you do not authorize any repairs to be made on your account, and will not recognize or pay such bills.

"We will look to the transportation company for any overcharge in freight or loss or damage to goods while in transit, and will not countermand this or future orders without your consent in writing.

"This and subsequent orders are subject to the approval of your office at Flint, Mich.

"Goods hereafter ordered will be on same terms unless others are agreed on in writing, but prices on future orders are subject to change without no tice.

"Claims that goods are not in accordance with order will be made within five days after arrival of goods, or they will be considered waived.

"This contract embodies all agreements, conditions, stipulations and rep resentations, and none other, be they verbal or otherwise, are to be recognized."

One wagon out of this sale, being No. 247, is now in the hands of said trustee. On the 19th of October of the same year, the petitioners made a like sale of sundry wagons to said bankrupts, using the same kind of a printed blank, with the same printing above quoted upon the face thereof, and the same conditions upon the back. Both of said contracts are referred to and made a part of these findings.

All the wagons embraced in the sale of October 19th are now in the hands of the petitionee except one No. 445 and one No. 421. For the wagons embraced in the order of September 27th, the bankrupts gave their promissory note, upon which payments were made, and of which there were two renewals. There is now due upon the last note given for said wagons $170 and some interest. The bankrupt, George O. Hassam, appeared and testified that his attention was not called to the fine printing on the back of either of said contracts; that the first knowledge he had was when his trustee in bankruptcy called his attention thereto; that the first time that he knew that the petitioner claimed these wagons was in March last, when Mr. Bedard, their sales agent, stated to him that they claimed the wagons by virtue of the printing upon the back of the contract. He further testified that the said Mr. Bedard, agent for the petitioner, made these contracts with him and left with him a carbon copy, and it was this carbon copy that the trustee was examining at the time he called his attention to the printing upon the back thereof. He further testified, under objection by the petitionee, that:

"Mr. Bedard, the selling agent of the company [meaning the petitioner], came to our place of business in Rutland and wanted to sell us wagons. We made several purchases of him and signed an order each time. Cannot state the number, but there were more than these two purchases. Presume the orders were all alike. I did the signing. Our attention was never called to the fine print on the back, and we never agreed to that, for it was never mentioned, and we never knew anything about it. We didn't know it was there. I looked over the writing to see that the right kind and the right number was inserted and the prices carried out as was agreed upon. I had a carbon copy. He read the different wagons and the prices, which I compared with my copy. The printing was not read."

On cross-examination the witness was inquired of as follows:

"Q. Didn't Mr. Bedard always deal with you honorably and uprightly? A. So far as I know, he did. Q. Do you claim that he deceived you? A. I don't say that. Q. Wasn't it your own fault that you didn't read the conditions on the back of the paper you signed? A. It may be, but I should think he ought to have called my attention to it."

Mr. Bedard was in court and heard this testimony, but did not take the stand as a witness. No claim was made that the facts stated by the witness Hassam were not true.

I find that the said Hassams' (the bankrupts') attention was not called to the conditions in fine print upon the back of the papers signed by them, that they knew nothing of it until their attention was called to it by the trustee, and that they did not assent or agree to the conditions stated thereon. These contracts were never lodged for record in the town clerk's office at Rutland, or elsewhere. At the time of the making of these contracts the bankrupts were dealers in

wagons, buying and selling. Sales were made to the public generally. Both parties understood that they were for sale by the said Hassams. All of the wagons embraced in the order of September 27th, except two, and one wagon embraced in the order of October 19th, as before stated, were sold by the said Hassams. This pretended lien was a secret one placed upon property intended for sale, and comes squarely under the decision of the Circuit Court of Appeals for this circuit in Re Garcewich, 115 Fed. 87, 53 C. C. A. 510.

The petitioner claims that the case of York Manufacturing Co. v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782, is controlling of the case at bar. I do not concur in that view. That case arose on the statute of Ohio. The lien reserved was for machinery obtained by the Mt. Vernon Ice, Coal & Milling Company for the manufacture of ice, and designed for the use of, and not for sale by, said company. The opinion of the court was delivered by Justice Peckham. He therein states:

"The trustee, under such circumstances, stands simply in the shoes of the bankrupt and as between them he has no greater right than the bankrupt."

And he cites the case of Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986, and Thompson v. Fairbanks, 196 U. S. 516, 25 Sup. Ct. 306, 49 L. Ed. 577, and quotes from the latter case these words:

"Under the present bankrupt act, the trustee takes the property of the bankrupt in cases unaffected by fraud in the same plight and condition that the bankrupt himself held it and subject to all the equities impressed upon it in the hands of the bankrupt."

It will be observed that the court in its opinion guards it by the words "unaffected by fraud." The whole trend of authorities is that a lien or mortgage placed upon goods obtained for sale by the vendee, and unrecorded, is a secret arrangement, is in law a fraud upon creditors, and cannot be enforced against a trustee of such a vendee who subsequently becomes a bankrupt.

In the case of Thompson v. Fairbanks, 196 U. S. 516, 25 Sup. Ct. 306, 49 L. Ed. 577, relied upon by the petitioner, the mortgage was upon livery property, consisting of "horses, wagons, sleighs, vehicles. harnesses, robes, blankets," etc.; but it will be observed that the mortgage was duly recorded in the town clerk's office in St. Johnsbury, and the mortgagee took possession of the property before the mortgagor went into bankruptcy. While this mortgage was upon a shifting livery stock, it provided that it should rest upon after-acquired property in its stead. The record in the town clerk's office gave that notice. In the opinion of the court in that case, this language is used:

"There is no pretense of any actual fraud being committed or contemplated by either party to the mortgage. Instead of taking possession at the time of the execution of the mortgage, the defendant had it recorded in the proper clerk's office, and the record stood as notice to all the world of the existence of a lien as it stood when the mortgage was executed, and that the defendant would have the right to take possession of property subsequently acquired, as provided for in the mortgage. The bankrupt, therefore, was not holding himself out as unconditional owner of the property, and there was no