There seems to have been confusion of ideas in the minds of Beresford & Co. as to the real nature of their device, the representation of a bouquet. By the testimony of James, their clerk, it appears that in September or October, 1871, they, through him, applied to the Librarian of Congress for a copyright of the picture, although the thing had not the slightest claim to be a literary or artistic production, and was not intended to be sold as such, and that a copyright was issued, bearing date the 26th or the 29th of October. Whatever may have been their intention as to securing to themselves any possible property in the picture, it is manifest that the thing could no more be copyrighted than it could be patented; for the designer of the picture was neither an author nor an inventor, within the meaning of subsection 8 of section. 8 of article 1 of the Constitution. Says Lord Cranworth, in the "Leather Co." case before cited: "The word 'property,' when used with respect to an author's right to the production of his brain, is used in a sense very different from what is meant by it when applied to a house or a watch. It means no more than that the author has the sole right of printing or otherwise multiplying copies of his work. The right which a manufacturer has in his trade-mark is the exclusive right to use it for the purpose of indicating where, or by whom, or at what manufactory, the article to which it is affixed was manufactured." So, in the Supreme Court of the United States, in the case of The President, &c., of the Del. & Hud. Canal Co. v. Clark (Official Gazette, March 26, 1872), the court said that "Property in a trade-mark, or rather in the use of a trade-mark or name, has very little analogy to that which exists in copyrights, or in patents for inventions." This is the received doctrine of all the courts. Inventive or literary genius has nothing to do with the index of proprietorship termed a trade-mark. Even if the respondents, Beresford & Co., had "originated the trade-mark for which they . . . seek protection," as stated in their sworn application, they did not perfect it by actual use - Ignorantia legis neminem excusat. But it seems that on the naked question of moral right, they were not the designers of it; but either James, or the engraver, or Schrauder's lithographer, was the first designer of it. But this is outside of the law of the case, and is touched upon only for the reason that counsel of experience and acknowledged ability in patent law have misconceived the theory of trade-mark law, and made it necessary that some notice be taken of it. Schrauder's counsel made a point that their client was the first to take steps to protect the mark by registration. The fact is, as appears by the records, both parties filed their applications on the same day, February 26, 1872; but Schrauder's papers were incomplete, and had not been prepared with as much care as had those of Beresford & Co., and therefore the case of the latter was first examined. But the fact of priority of filing cannot affect the title, its advantage consisting but in the circumstance of throwing the onus probandi on the junior applicant, ie., he who had been the latest to complete his papers. The evidence being clear that George Schrauder, the applicant, was the first adoptor of the trade-mark in controversy, judgment of priority is accordingly awarded to him. § 662. A multiplicity of legal questions arise upon the trial of an interference before the Patent Office. The following case of Walch, Brooks, & Kellogg v. M. J. Cole & Co., involves a number of nice points worthy of notice. Any matter affecting the title to the thing in controversy may be shown, subject, of course, to the established rules of evidence. After reciting certain facts not necessary now to be considered, the decision of BROWNE, Special Examiner, proceeds : § 663. Motion to allow a New Party to come in. After the declaration of interference, a motion was made for the substitution of one John H. Farwell as a party in place of M. J. Cole & Co. It is in evidence that the latter had upon their own petition been declared bankrupt, and one Henry D. Hyde had been appointed assignee. Farwell filed an instrument purporting to be an assignment and transfer of the trade-mark in controversy. There is no evidence of the authenticity of said instrument; and, indeed, it is not perceived what legal right the assignee in bankruptcy of the individual and partnership estates of M. J. Cole & Co. had to make the transfer; for the trade-mark had not been included in the schedule of assets. (See case of Bradley v. Norton, 33 Conn. 157.) If there had been the formality of including it among the assets, the evidence warrants the conclusion that, in contemplation of law, the bankrupts had really no trade-mark property to convey. As Farwell took nothing by his so-called assignment, his motion to be permitted to come in as a party litigant was necessarily denied. - § 664. The Essential Part of the Mark. - It was assumed, for the purposes of this interference, that the name " Paul Jones," the conspicuous element in the mark, was that by which the whiskey would be bought and sold, and known in the market. The evidence shows that it was the prominent, essential, and vital feature of their mark, as it is also of that of their opponents. (See Filley v. Fassett, 44 Mo. 173.) The inquiry was therefore directed to those words, without which, as a component part of the mark, neither party would have desired to make a contest. The first question to be $665. As to Title to Trade-mark. settled is this: Did M. J. Cole & Co. have any property in those words, as a portion of a trade-mark to be affixed to whiskey? The testimony of Cole, of Gilmore the clerk, and of Hunt, the partner, established as a fact beyond any reasonable doubt that Cole & Co. devised the symbol for their own benefit, although one of their present opponents assisted therein. The mark was to be used in connection with whiskey, which M. Murphy & Co., the predecessors of Walch, Brooks, & Kellogg, were to manufacture in Cincinnati, Ohio, and of which M. J. Cole & Co. were to have the exclusive sale in Boston, Mass. The title was clearly understood to be in M. J. Cole & Co., notwithstanding the fact that, for the sake of convenience, the branding-tool was made in Cincinnati, at the expense of M. Murphy & Co. § 666. Good Faith. The bona fides of the latter firm and their successors may well be doubted, in connection with the possession of the branding-tool. It was used upon whiskey sold to other persons in the West and South; and, contrary to the contract, expressed or implied, made with M. J. Cole & Co. To the latter-named firm, if to anybody, belonged the mark. But there is one material fact disclosed by the evidence which determines all their title. The words " Paul Jones" were used as a portion of a brand, the other part of which was "Paris, Kentucky, Bourbon." Cole says (155, 158 X ans.), "If anybody bought the whiskey supposing that it was made in Paris, Kentucky, he would have been deceived." He says that it was thought that that brand would take better with the trade. (173 X ans.) § 667. Imposition upon the Public. But one conclusion can be deduced from the evidence in regard to the bona fides of M. J. Cole & Co. in adopting that which they allege to be their trade-mark. Their intent was manifestly to impose upon the credulity of the whiskey-drinking public, by inducing them to purchase as genuine " Kentucky Bourbon Co. Whiskey" an article manufactured at Cincinnati, Ohio. The device had its inception in fraud, and therefore was worthless for the legitimate purposes of a trade-mark, even if the Cincinnati whiskey were proven to be as valuable as that made in Kentucky. Numerous judicial decisions support this view of the law. The public have a right to the genuine thing. M. J. Cole & Co., therefore, never had any legal property in the words composing the alleged trade-mark. - § 668. No Title in Assignee. As they had no trade-mark to assign when going into bankruptcy, it follows that their assignee took no such property with the assets. It is not § 669. Could an Abstract Symbol be assigned? necessary to discuss the question of the possibility of such an incorporeal interest being conveyed, unless as an incident to the transfer of the good-will of the business; for there is no evidence to act upon, in relation to the transfer of the goodwill. How does the case § 670. Good Faith of Respondents. stand, as regards Walch, Brooks, & Kellogg? They claim as a trade-mark the words "Paul Jones, Paris, Kentucky, Bourbon," &c. The said mark is intended to be applied to whiskey manufactured by them at Cincinnati, Ohio. Their own testimony is conclusive upon that point. Indeed, they do not make the slightest pretence that the whiskey manufactured by them is distilled in the State of Kentucky. § 671. Want of Equity. There is no more equity on their side than on the other. The argument of their counsel at the hearing, That the words constitute a mere arbitrary symbol, and that no deception was intended by them, does not require long consideration. The only meaning that general purchasers would be likely to attach to the words would be that the whiskey was distilled at Paris, Bourbon County, Kentucky. § 672. Conclusion. - Walch, Brooks, & Kellogg have not presented a lawful trade-mark for registration. § 673. Judgment. The interference is therefore dissolved, and both applications rejected. |
