word subsequently becomes the common appellative of such substance cannot impair the rights acquired in the word, and while others can use it to designate the product, they cannot apply it in any way as a trade-mark. Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 Fed. Rep. 94.

Arbitrary terms, such as "Tin Tag," or " Wood Tag,"branded upon or given to goods by the manufacturer or seller, to distinguish them, may constitute valid trade-marks, but the person so using them would have no right to the exclusive use of tin or wood as a material to designate the goods. Lorillard v. Pride, 28 Fed. Rep. 434.

In Selchow v. Baker, 93 N. Y. 59; 45 Am. Rep. 169, Rapallo, J., after reviewing many cases on the subject, concludes as follows: " Our conclusion is, that where a manufacturer has invented a new name (as Sliced Animals, Sliced Birds,' 'Sliced Objects'), consisting either of a new word, or a word or words in common use, which he has applied for the first time to his own manufacture, or to an article manufactured for him, to distinguish it from those manufactured and sold by others, and the name thus adopted is not generic or descriptive of the article, its qualities, ingredients, or characteristics, but is arbitrary or fanciful, and is not used merely to denote grade or quality, he is entitled to be protected in the use of that name, notwithstanding that it has become so generally known that it has been adopted by the public as the ordinary appellation of the article." This leading case has been approved in Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 Fed. Rep. 94, in the opinion by Mr. Justice Bradley, and also in Celluloid Mfg. Co. v. Read, 47 Fed. Rep. 712, in the opinion by Mr. Justice Shipman.

In Electro-Silicon Co. v. Hazard, 29 Hun (N. Y.) 369, the court held that the word "Electro-Silicon " was a valid trade-mark. Brady, J., said: "It conclusively appears that neither the words in combination nor singly employed, describe the article which they are intended to designate. It is a substance for polishing, composed of infusorial earth, the proper description of which is not silicon, which exists in small quantities and is not an article of commerce. The words, therefore, are arbitrary and coined for the purpose of distinguishing an article which the plaintiff's predecessor first introduced

into the commerce of the nation of which it has become a part." To the same effect are Electro-Silicon Co. v. Levy, 59 How. Pr. (N. Y. Supreme Ct.) 469; Electro-Silicon Co. v. Trask, 59 How. Pr. (N. Y. Supreme Ct.) 189; Lauferty v. Wheeler, 63 How. Pr. (N. Y. C. Pl.) 488 ("Alderney Mfg. Co.," sustained for oleomargarine).

66

Magnetic Balm," being a medicine which does not contain any magnetism or electricity, but an arbitrarily selected word, not expressive of the quality or character of the article, is a valid trademark. Smith v. Sixbury, 25 Hun (N. Y.) 232.

The word "Snow-Flake," as applied to bread or crackers, is not an arbitrary word, but is a mere description of whiteness, lightness, and purity, and cannot be a valid trade-mark. Larrabee v. Lewis, 67 Ga. 561; 44 Am. Rep. 735.

The use of the word "Hoosier," as applied to grain drills, to designate manufactured goods and to distinguish them from other drills, is a valid trademark. Julian v. Hoosier Drill Co., 78 Ind. 408.

In Hier v. Abrahams, 82 N. Y. 519; 37 Am. Rep. 589, the court held that the word “Pride," as applied to cigars, was an arbitrary word, and not descriptive of the article, and could lawfully be appropriated as a trade-mark.

In Sheppard v. Stuart, 13 Phila. (Pa.) 117, "Excelsior," as applied to stoves, was held to be a valid trade-mark, as being an arbitrary word, and indicating the true origin and ownership of the article.

In Roberts v. Sheldon, 8 Biss. (U.S.) 398, Blodge, W. J., said: "The word Parabola,' it seems to me is, as stated by the complainant, an arbitrary term adopted by him to distinguish his needles from those of other manufacturers, and he had a right to so select and apply it."

In Williams v. Adams, 8 Biss. (U. S.), it was held that the word "Yankee," as applied to shaving soap, was a valid trade-mark.

"Sapolio, " on a scouring soap, is a valid trade-mark. Enoch Morgan's Son's Co. v. Schwachhofer, 55 How. Pr. (N. Y. Supreme Ct.) 37.

In Ford v. Foster, L. R., 7 Ch. App. 611, the word "Eureka" as applied to shirts, was held to be a valid trademark.

In Hirst v. Denham, L. R., 14 Eq. Cas. 542, the plaintiff applied for an injunction to restrain the defendants from

or

selling, etc., cloth under the names of "Turin," "Sefton," "Leopold," "Liverpool," and from using the said names for the purpose of describing any cloths sold by them. In granting the injunction, Sir James Bacon, V. C., said: "When a manufacturer has produced an article of merchandise, calling it by a particular name and vending it with a particular mark, he has acquired an exclusive right to the use of such name and mark, which becomes what is usually called his trade-mark, and is entitled to prevent all other persons from using such name and mark to denote articles of a similar kind and appearance."

The word "Eureka," first used by complainants in a compounded fertilizer which they called the "Eureka Ammoniated Bone Superphosphate of Lime," and have used for several years, is a trade-mark, in the exclusive use of which they have the right to be protected by the courts. Giles, J., said: "The natural or proper designation of an article can never become a trademark, because anybody making the article has a right to call it by its proper name. But a purely arbitrary or fanciful appellation, for the first time used to distinguish an article to which it has no natural or necessary relation, does, by virtue of that very appropriation, and subsequent use, become a trade-mark." Alleghany Fertilizer Co. v. Woodside, 1 Hughes (U. S.) 115.

In Filley v. Fassett, 44 Mo. 168; 100 Am. Dec. 275, Currier, J., said: "The name 'Charter Oak' with the combined device, in no possible view or application of them, are either descriptive or suggestive of the style, character, or qualities of a cast-iron cooking stove. In their natural significancy, import, or symbolism, or in the use made of them prior to the plaintiff's appropriation of them as a trade-mark, they were as far removed as can well be imagined from conveying any such application or meaning. And that constitutes one of their virtues as a trade-mark. The name and device selected by the plaintiff were adapted to point out the true source and origin of the stoves to which he applied them, and were therefore possessed of the requisite characteristics of a trade-mark."

A person who forms a new composition, and invents a new word to charac

terize it, is entitled to be protected in the exclusive use of such word as his trade-mark, and an injunction will issue to restrain others from appropriating it to designate a similar article. It was accordingly held that the word Ferro-Phosphorated " Elixir of Calisaya Bark, was a valid trade-mark. Caswell v. Davis, 35 How. Pr. (N. Y. C. Pl.) 76.

In Burnett v. Phalon, 3 Keyes (N. Y.) 594, the word "Cocoaine," as applied to a hair-oil, made from a preparation of cocoa-nut oil, was held to be a valid trade-mark. Davies, C. J., quotes with approval the language of Mr. Justice Duer in Amoskeag Mfg. Co. v. Spear, 2 Sandf. (N. Y.) 599: "Every manufacturer, and every merchant for whom goods are manufactured, has an unquestionable right to distinguish the goods that he manufactures or sells, by a peculiar mark or device, in order that they may be known as his in the market for which he intends them, and that he may thus secure the profits that their superior repute as his, may be the means of gaining. His trade-mark is an assurance to the public of the quality of his goods, and a pledge of his own integrity in their manufacture and sale. To protect him, therefore, in the exclusive use of the mark that he appropriates, is not only the evident duty of a court, as an act of justice, but the interests of the public, as well as of individuals, require that the necessary protection shall be given."

In Braham v. Bustard, 1 H. & M. 447, it was held that the word " Excelsior," as applied to white soft soap, was a valid trade-mark.

In Fetridge v. Merchant, 4 Abb. Pr. (N. Y. Super. Ct.) 156, the court decided that the phrase "Balm of Thousand Flowers," was a valid trade-mark, on the ground that the phrase was extrinsic and not indicative, and also that the defendants had avowedly and designedly adopted and used this name and these symbols of the plaintiff, to interfere with his trade and participate in his gains. The opinion of the court was given by Mr. Justice Hoffman.

In Fetridge v. Wells, 4 Abb. Pr. (N. Y. Super. Ct.) 144, the court held that the words, "Balm of Thousand Flowers," were not a good trade-mark, on the ground that the phrase had become the distinctive and fanciful name of the

article, and also that the words were deceptive. The opinion was given by Mr. Justice Duer.

1. Plaintiff, a manufacturer of cotton cloth, stamped it with the words "Roger Williams Long Cloth." It was held, that the name was a valid trade-mark, being that of a dead celebrity. Ames, C. J., said: "We are not aware of any legal restriction upon a manufacturer's choice of a name for his trade-mark, any more than of his choice of a symbol, so that the name be so far peculiar, as applied to manufactured goods, as to be capable of distinguishing, when known in the market, one manufacturer's goods of a certain description from those of another. 'Roger Williams,' though the name of a famous person, long since dead, is, as applied to cotton cloth, a fancy name, as would be so applied, the names of Washington, Green, Perry, or of any other heroes, living or dead." Barrows v. Knight, 6 R. I. 434; 78 Am. Dec. 452.

Plaintiffs, manufacturers of paper collars, sold them with the word "Bismarck" stamped on them. The court, by Brady, J., said: “There is no reason for making any distinction between a common word or term used for an original or new purpose which has accomplished its object, and a new design adopted by a manufacturer." Messerole v. Tynberg, 4 Abb. Pr. N. S. (N. Y. C. Pl.) 410; 36 How. Pr. (N. Y. C. Pl.) 14. In the United States Patent Office, Ex p. Pace, 15 Pat. Off. Gaz. 909, an application for a trade-mark consisting of the word "Bayard" and the portrait of the United States senator of that name, was granted. But a geographical name, although also the name of an historical personage, is not a proper subject for trade-mark registration.

In the United States Patent Office, Ex p. Oliver, 18 Pat. Off. Gaz. 923, applicants were refused registration of the word "Raleigh as a trade-mark of manufactured tobacco.

In McAndrew v. Bassett, 10 Jur. N. S. 492 and 550; 10 L. T. N. S. 65 and 442, plaintiffs, manufacturers of liquorice, stamped it with the word, "Anatolia." It was held a valid trade-mark, because, by use and occupation, the word had come to indicate ownership

and origin of the manufactured goods in complainant, in addition to the geographical location of the place where the liquorice was grown. Westbury, L. C., said: "I am told that this word 'Anatolia' being, in point of fact, the geographical designation of a whole country, is a word common to all, and that in it, therefore, there can be no property. That is nothing in the world more than a repetition of the fallacy which I have frequently had occasion to expose. Property in the word, for all purposes, cannot exist; but property in that word, as applied by way of stamp upon a stick of liquorice, does exist the moment the liquorice goes into the market so stamped, and attains acceptance and reputation in the market, whereby the stamp gets currency as an indication of superior quality, or of some other circumstances that render the article so stamped acceptable to the public." See the comments on this case in the opinion of Strong, J., in Delaware, etc., Canal Co. v. Clark, 13 Wall. (U.S.) 326.

"The plaintiff, who first applied the word Vienna,' to baked bread and other articles, having been engaged in manufacture, in the city of New York, of an article known as Vienna Bread,' and which he has for many years past sold with a label thereon containing the words 'Vienna Model Bakery,' can maintain an action restraining the use by other parties of a label in imitation of his own, and in particular, from applying the word Vienna' to baked articles." As a mark for bread, it is purely arbitrary, and is in no manner descriptive either of the ingredients or quality of the article. Fleischman v. Schuckmann, 62 How. Pr. (N. Y. Supreme Ct.) 92.

In Edmonds v. Benhow, Seton (3d ed.) 905; (4th ed.) 238, plaintiff, being the proprietor and publisher of a newspaper, called "The Real John Bull," defendants were enjoined from publishing a newspaper called "The Real John Bull," or "The Old Real John Bull." Examples of this kind are numerous. In Chappell v. Davidson (8 De G. M. & G. 1), the words Minnie Dale," and "Minnie, dear Minnie," as applied to songs, were held to conflict with "Minnie."

In Ingram v. Stiff, 5 Jur. N. S. 947, "The Daily London Journal" was held to invade "The London Journal."

"The Iron Trade Čircular (Rylands)" and "The Iron Trade Circular (edited by Samuel Griffiths)," were held to conflict, in Corns v. Griffiths, W. N. 1873, p. 93; Pemberton (2d ed.) 309.

But Punch" and "Punch and Judy" were held not to conflict, in Bradbury v. Beeton, 21 L. T. N. S. 323.

In Gout v. Aleploglu, 6 Beav. 69, note, plaintiff, long a manufacturer of watches for the Turkish and Levantine market, marked them with his name, a spring, etc., and the Turkish word "Pessendede" (meaning "warranted"). It was held to be a valid trade-mark, and an injunction was granted.

In Barnett v. Leuchars, 13 L. T. N. S. 495; 14 W. R. 166, a manufacturer of fireworks called them "Pharaoh's Serpents." This was sustained as a valid trade-mark and an injunction was granted.

Other examples are, "Dave Jones" and "Magnolia," as applied to whisky, Kidd v. Mills, 5 Pat. Off. Gaz. 337; "Charter Oak," as applied to stoves, Filley v. Child, 16 Blatchf. (U.S.) 376; "Lone Jack," as applied to tobacco, Carroll v. Ertheiler, Cox's Man. of Trade-Mark Cases 669; 21 Abb. L. Jour. 503. See also Martha Washington Creamery, etc., Co. v. Martien, 37 Fed. Rep. 797; 44 Fed. Rep. 473.

1. A label containing a marine picture with a small six-pointed star and the words "Star of Hope," is a valid trademark for a brand of tobacco. Dexter, 2 Ch. Div. 262.

In re

In Hutchinson v. Blumberg, 51 Fed. Rep. 829, plaintiffs' device for a trademark for underwear consisted of a sixpointed star and the word “Star." Defendant began the use on underwear of a five-pointed star and crescent, the former being the prominent symbol, and the word "Star." It was held that plaintiffs had a valid trade-mark and an injunction was granted against infringement.

The device of a bottle with a panel or depression in the back, is not a

trade-mark. Hoyt v. Hoyt, 143 Pa. St. 623.

In Merriam v. Famous Shoe, etc., Co., 47 Fed. Rep. 411, Thayer, J., said: "The next matter to be considered is the charge that defendant uses the device of a book, with the words 'Webster's Dictionary' printed thereon, on its circulars, bill-heads, etc., in imitation of a like practice pursued by the complainants. In my judgment, no person engaged in publishing and selling a book or books can acquire an exclusive right to use the device of a book on letter-heads and bill-heads, or on wrappers or boxes containing books. The device in question, when used in that connection or relation, is not sufficiently arbitrary to constitute a valid trade-mark. When so used by a publisher or bookseller, such a device serves to indicate the kind of business in which a party is engaged, or it is descriptive of the contents of particular packages. Other persons engaged in the same business have the right to advertise their calling, or to describe the contents of packages, by the use of the same device. If a publisher or bookseller can acquire the exclusive right to use the device of a book on letter-heads, bill-heads, wrappers, etc., then a watchmaker might acquire the exclusive right to use the picture of a watch, a shoemaker to use the picture of a shoe, and so on throughout the entire list of occupations in which men are engaged."

In Harris Drug Co. v. Stucky, 46 Fed. Rep. 624, where there was a picture of a boy suffering from cramps, with words "Cramp Cure," it was held that the picture constituted a valid trade-mark, but the words were descriptive.

In Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537, Fuller, C. J., said: "In Delaware, etc., Canal Co. v. Clark, 13 Wall. (U. S.) 322, it was said by Mr. Justice Strong, speaking for the court: That the office of a trade-mark is to point out distinctively the origin or ownership of the article to which it is affixed; or, in other words, to give notice who was the producer. This may, in many cases, be done by a name, a mark,

or a device well known, but not previously applied to the same article."

The bronzing of horse-shoe nails cannot constitute a trade-mark. Paxon, C. J., said: "We have never yet carried the doctrine of trade-marks to the extent claimed for it by the plaintiff. We have never hesitated to restrain the imitation of a trade-mark when the facts justified it. We are now asked to go one step further and protect the manufacture of the article itself. This we do not see our way clear to do. The manufacture of a particular article can only be protected by a patent. The law in regard to trade-marks should not be pushed to the extent of interfering with manufacturers." Putnam Nail Co. v.

Dulaney, 140 Pa. St. 205.

In Frost v. Rindskopf, 42 Fed. Rep. 408, it was held that the words "Warren Hose Supporter," with a cut of the garter, constituted a sufficiently arbitrary device to entitle plaintiffs to relief against simulation.

Bronzed horse-shoe nails are probably not a trade-mark. Putnam Nail Co. v. Bennett, 43 Fed. Rep. 800.

In Re Australian Wine Importers, 41 Ch. Div. 278, the device of a golden fleece, with words "Pure Old Scotch Whisky," was held a valid trade-mark. In Lichtenstein v. Goldsmith, 37 Fed. Rep. 359, an elk's head, with the word "Elk" and the initials of the manufacturer, was held to constitute a valid trade-mark.

In Johnson v. Hitchcock (Supreme Ct.), 3 N. Y. Supp. 680, a representation of a flag, with stars studding the upper and lower borders in a very effective and striking way, in newspaper advertisements, was held to be sufficiently arbitrary to entitle plaintiff to relief against simulation.

In Adams v. Heisel, 31 Fed. Rep. 279, plaintiff was held entitled to a trade-mark in "Sappota Tolu" (a chewing gum), with various bands of color, arbitrarily arranged, but not in the form and size of the box, the sticks, or the arrangement of the latter in the box.

In Foster v. Blood Balm Co., 77 Ga. 216, the following was held a sufficient trade-mark to entitle one to protection. Bleckley, C. J., said: "A device consisting chiefly of a letter of the alphabet nine times repeated, the repetitions being arranged in three vertical columns, separated by lines or bars, so as to form three groups of three B's (B B B), and when applied to the goods, each of three sides of the package presents

to the eye one of these triple combinations of B in conspicuous type. It is not quite certain that, even as a technical trade-mark, nine B's, distributed into groups of three each, arranged in a given order, and placed in colored frames or settings, would not be sufficiently fanciful and arbitrary to be legitimate. There is no possible device or design which does not consist in its elements of something which is common to the whole world when it comes to be represented to the eye."

In Re James' Trade-Marks, 33 Ch. Div. 392, a black dome as a trademark for black lead was sustained. (Note distinction taken between American and English cases.) Lindley, L. J., said: "As regards the American decisions, I quite concur in the observations made by Lord Justice Cotton. I cannot see why, according to English law, a fish should not be a distinctive mark of a fishing-line, though I can understand that a picture of a fish may not be a distinctive mark of that particular kind of fish. Why a pig should not be, according to English law, a distinctive mark for lard, or something made out of a pig, I do not know. Supposing you tanned pigskin into leather, I do not know why a pig should not be a good trade-mark for tanned pig's hide. I am not inclined to apply to English acts of parliament the American cases which have been cited." The court in this case overruled the decision below by Pearson, J., in which he said: "Curiously enough, though it has not arisen here, the question has been several times before the American courts, whether a man can have as a trademark a drawing of the article sold, and they have decided that he cannot, because it is the common property of all the world." See In re James' Trademarks, 31 Ch. Div. 340.

In Edelston v. Edelston,9 Jur. N. S. 479; 7 L. T. N. S. 768, the word "Anchor," used by a wire manufacturer as a trade-mark, was sustained.

In Re Hudson, 32 Ch. Div. 311, the following device was held a valid trademark: A label with a pattern around it, and then a certain amount of light, and then there is a dark patch in the center on which the name of Hudson and the words "Carbolic Acid Soap Powder" are printed, and there are

other words around the label.

In Anheuser-Busch Brewing Assoc. v. Clarke, 165 P. & S.; 26 Fed. Rep. 410, the design of plaintiffs' label for