might take one for the other; but, upon close inspection, it appeared quite a different thing. The simulation was too evident. The second case was accordingly rejected. § 260. Trade-marks not unfrequently are borrowed from the medieval heraldry of Europe, rich in a symbolical language, in which figures, devices, and colors were employed instead of letters. Caution must be observed in appropriating time-honored heraldic compositions, for each of such has its own definite and complete signification, conveyed through its direct connection with some particular individual, family, dignity, or office, and held by express right and title. As a mark of commerce should be good for the purpose all over the world, it would be well for him who purposes to adopt the crest of some ancient family to designate his wares to inquire whether a foreign court might not set it aside. § 261. In the Tribunal Civ. of the Seine, in 1870, in the case of Christy v. Dande,1 the following was held: Although the national arms are not susceptible of private appropriation, they can concur with other distinctive signs (for example, the name of the merchant) to constitute an industrial mark. The trade-mark claimed by the plaintiff consisted of the arms of England, with a circular inscription on the ribbon of the garter, and the words "CHRISTY'S LONDON." The defendant, for the same class of merchandise as that sold by the plaintiff, took the same design of the arms, but on the ribbon substituted for "Christy's London " the words "QUALITY SUPERFINE LONDON." This was held to be an infringement. § 262. Monograms and ciphers have been used as proprietary marks for many centuries, especially by painters and engravers. Many great masters seldom or never signed their works in any other way. Michael Angelo and Raffaelle were examples. Although in a painting such a designation is no certain sign of authenticity, — for every master has his imitators, in an engraving of old times it is generally trustworthy. 1 Le Technologiste, No. 365, p. 286. 1870. Some of them employed singular or fanciful marks, as birds, animals, houses, usually having some reference or allusion to the name of the artist. Thus Jerome Cock marked his plates with two cocks fighting; H. C. Bles, with an owl on a branch, or in a cage; Hans Adam, with a naked figure under a tree, with his initials; Hans Schaufflin, with a small shovel, or two shovels crossed, with his initials,—his name signifying in German, small shovel; Martin, with a little bird of that name; Leech, with a bottle containing a leech.1 § 263. Is Color ever an Essential Element of a trade-mark? Yes. It may serve as the groundwork of a mark, or the mark may at the pleasure of its owner be made in any color, or in all colors. Nearly always in practice the mark is in black, which is not a color, except in heraldry. One trader may adopt a red cross as his symbol, and another may choose a black cross to designate the same class of goods. A large proportion of the marks of manufactures and commerce are borrowed from heraldry. Among the earliest shields and banners, all of them remarkable for simplicity, many are found to be without any device whatever, their distinction consisting in some peculiarity of coloring. The renowned banner of the Knights Templars, by them called Beauseant, is black above and white below, to denote that while fierce to their foes, they were gracious to their friends. In English heraldry five colors were used, — blue, red, black, green, purple. When so used, one could not well be mistaken for the other; but that cannot always be said of small labels bearing the symbols of trade. The emblem of the Blue Bear might easily be confounded with that of the Black Bear. The impression left upon the retina of the eye is of an animal of a certain kind and physical conformation. If, by simply changing the hue, one man could take the same sign as a rival in trade, there would not be much safety. The sign which was originally 1 Spooner's Dictionary of the Fine Arts. black, might, by exposure to the atmosphere, become blue or gray; and a blue might darken into a black. § 264. The disadvantages of a reliance upon color alone. are so apparent, that preference is usually given to the device that is its vehicle. Black and white, which are accidental to each other, are not confounded. Red and blue in juxtaposition borrow from each other, and assume a purple hue when seen at some distance. Colors may be arranged so as to neutralize each other. The death of a color takes place when the primary colors come together in equal proportions. Two persons may not see the same colors alike. To give an eye for color is no more possible than to give an ear for sound. The defective vision called "color-blindness" confounds a color with its accidental one. It is said that, in England, one man in every seven hundred and fifty is unable to distinguish a certain color from another, as red from green. To some the soldier's red coat and the grass of a field are alike.1 This is probably as true of our own country as any other. We have doubtless all known of such cases. § 265. Yet color may be of the essence of a mark of manufacture or commerce, known as a trade-mark. National flags are sometimes blended with other objects to catch the eye. They are admirably adapted to all purposes of heraldic display; and their rich glowing colors appeal to feelings of patriotism, and win purchasers of the merchandise to which they are affixed, albeit the while the wily vendor may laugh in his sleeve. One flag printed in green may catch the eye of the son of the Emerald Isle, who would turn with indifference from a flag of the same size and shape printed in red; another flag, with stars on a blue field and stripes of alternate red and white, may secure a preference for the commodity upon which it is stamped. § 266. A particular color may be made an essential feature of a mark, at the option of its adoptor; but it is taken subject 1 Wilkinson on Color and Taste. London, 1858. to some risks. If one select a red cross as his symbol, he is concluded by his choice, and cannot complain if another in the same line of business adopt the blue cross. It must be definite and certain. Caution should be observed in selecting an arbitrary color, which would conclude by its own limitation. For this reason, the delineation of the emblem is relied upon rather than the chromatic effect. A rose is a rose; for on a label stamped with fugitive colors the red rose of Lancaster might soon turn into the white rose of York. - § 267. Color is frequently an important circumstance in determining the question of infringement. The fact that one trader has exactly imitated the tints of another's label may be conclusive, when there would otherwise be doubt. In practice, we find that such is ofttimes the case. The technical mark may be but partly simulated, and seem to be but an accidental coincidence. Then the use of the same colors in the same manner will advance and tell a tale of guilt. Look at a United States bank-note, printed mainly in one color, that which has given it the name of "greenback." We may regard the red seal printed on the face of the note as one of the trademarks of our Government. Suppose that an action were brought for an infringement. The general features of the print may be identical, so far as mere design is concerned. But the seal is printed in green, the back in red, and that which is black in the genuine in blue. Who could pronounce the copy of the figured lines a counterfeit? If not calculated to deceive, it would not be such. § 268. In the Court of Paris, in 1861 (Ricque et als. v. Forges et al.1), the question of color came up. To distinguish their manufacture from that of others, the plaintiffs had adopted, for the drillings made by them, a bordering composed of four rose-colored threads at the end of each piece. The defendants adopted as their mark for the same class of goods a bordering composed of two red threads. For this supposed infringement 1 Annales de la Prop., tome viii. p. 25. suit was brought. The court said that the red mark had an almost complete similarity with the rose-colored mark,—a similarity which was augmented or diminished according to the color of the texture; but the similarity was sufficient, when the textures of the two parties were not brought close. together, to deceive consumers, and lead them into error as to the origin of the products: that the choice of a mark which, according to the disposition of the threads and the color of the tissue, can approach or remove in aspect from that of the plaintiffs', constitutes on the part of the defendants a precaution which reveals a fraudulent intention, especially as they did not make choice of a red thread until the success of the plaintiffs' drillings had become well established. § 269. Form. The very term mark implies form rather than color. That form may be a geometrical figure, or the representation of an object having a fixed, definite shape, and susceptible of description. Thus, a circle, a square, a triangle; or an arrow, or anchor, or monogram; or an infinite variety of objects in nature or art, may easily be described and readily apprehended. But who could either impart or receive a precise idea of a tree, a cloud, or even a human being? A trade-mark must be something that impresses its peculiarity of configuration upon the memory, just as it is impressed, or otherwise affixed, to goods. We can describe and recognize a Maltese cross, a diamond within a circle, or a five-pointed star, or a flag with a certain number of stripes and stars, or other delineated things; but it is hardly within the range of possibility to convey an adequate idea of any thing that has no fixed, invariable limits. $270. This seems like the veriest enunciation of truisms. Why waste ink and paper in such incontrovertible statements! Reserve your censure, kind reader, until you shall have read the matter following. All sorts of visionary notions are uttered in this world of ours. Even men of sense sometimes let their wits go wool-gathering. |
