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that, having invented, through James, their trade-mark in May, 1871, they, being “ winter-curers,” and not curing their hams until the succeeding fall and winter, would not need their trade-mark labels until that time. Your applicants, then, submit that said James was the first and original inventor of the trade-mark now in controversy; and that, as the assignees ? of said James, they are entitled to the exclusive use of said trade-mark for ham and breakfast-bacon, &c.
It is obvious at a glance that the respondents, Beresford & Co., have not only mistaken the real issue, but have also based their case upon an inapplicable theory.
By reference to the specifications, - which serve the same purpose in this interference as do pleadings in courts, - it must be seen that Schrauder claims nothing but the word “ BouQUET," although for pictorial effect he chooses to associate that word with a nosegay, bouquet, or bunch of flowers, call it by what name one may. The essential part of the respondents'. mark is the bouquet itself. Inquiry and comment should therefore have been directed by them, not only to the date of adoption of the bunch of flowers, but also to the adoption of the word which is its proper designation. It is because either the eye or the ear might mislead a would-be purchaser that the claims of the parties have come into collision. But the evidence, as to facts, is so clear that the error of counsel, in points and argument, cannot prejudice the rights of a party.
The law of the case has been mistaken. They have treated the mark, the emblem, the symbol of commerce, as an invention, and have attempted to apply principles which are utterly inconsistent with the idea of a trade-mark. If the bouquet in controversy be regarded as a design, the subject of a patent, then it would be proper to treat of the conception of the thing, and of the perfecting of the invention ; but it is only the wildest
i This admits their adversary's case. See, also, point 1, conceding that Schrauder first pasted the mark on hams.
2 The application was not filed by Beresford & Co., as assignees. If assignees, they would have had to deduce their title from James.
flight of fancy that could possibly conceive of a trade-mark as a patentable design. It is true, that the copy of something patented as a design may possibly be adopted as a trade-mark, as may the representation of an infinite number of objects in nature and art; but the ideas of asthetics and trafficking have not ever been associated in the manner supposed by the counsel.
It is hardly necessary for the present purpose to assert the truth that a design, as contemplated by the patent laws, means an artistic or useful conformation or delineation, which is intended to be incorporated with an article of manufacture, and is inseparable from it. In no legal sense could the emblematic picture of the respondents be deemed a design. And if it were a design, as understood by the law in relation to patents for inventions, it could not possibly have any bearing upon a case of trade-mark law.
We must utterly repudiate the idea of a right of property in the symbols constituting a trade-mark, apart from the use or application of them to a vendible commodity. (Leather Cloth Co. v. American Leather Cloth Co., House of Lords, 1865, 11 Jur. (N.S.) 513; Perry v. Truefitt, 6 Beav. 66; Congress of Empire Spring Co. v. High Rock Congress Spring Co., 57 Barb. 526; and all the authorities.)
For the purposes of this discussion, it is not of the slightest avail to inquire who first sketched, drew, or invented the design now claimed as a trade-mark. Other irrelevant matters must also be ruled out; the only important question is this: Who first applied the symbol to the vendible commodities dealt in by the parties hereto? Upon the determination of that single question of fact rests the whole of the case. Let us resort to the testimony.
The witness Moers is positive that he saw Schrauder's labels affixed to packages of cured meats three or four weeks prior to September 8, 1871, and the witness Milholland says that shipments of meats bearing said labels were made by Schrauder a few days after the 10th day of August, 1871. The labels are clearly identified, and all bear the trade-mark described by Schrauder in his specification. All the evidence corroborates the statements of these witnesses. It is undoubtedly true that Schrauder had appropriated the mark in August, 1871, and that he from that time continued to affix it to his merchandise. It is proven that he was doing a large business in the sale of cured meats. The lithographer Strobridge, who furnished the lithographed labels, testifies that he supplied Schrauder with 500 labels for tierces of his meats; with 10,000 labels of another size; and with 500 labels for boxes. The said labels all bore the trade-mark described and claimed by Schrauder; and all were used in his place of business until the supply was exhausted, and more were required. He, then, had the ownership of the mark claimed by him, unless some other person or persons had adopted it before he had.
When did Beresford & Co. adopt the bouquet ? Their printer testifies that he delivered their labels to them either in September or October, 1871, the charge for them having been made on the 7th day of November following. Their clerk, James, testifies that the first time he saw the bouquet-brand used was in January, 1872, when he saw it affixed to a ham bought from Schrauder. There is no pretence on the part of Beresford & Co. that they affixed the mark to their merchandise before that time; and indeed they account for their delay in its use by the fact that they were “ winter-packers,” while their adversary Schrauder was a “summer-packer:" i.e., the latter worked in the warm season, while they could only work during the cool season. They relied upon the adoption of the abstract symbol, and did not make it a trade-mark. Schrauder's earlier business compelled him to use it in August; and by his act, in affixing it to the goods sold by bim, — to wit, cured meats, consisting of hams, &c., - he did all that the law requires to reduce the emblem to possession, and thus he made it a trade-mark.
There seems to have been a 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, fc., of the Del. f. 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, i.e., 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, f. 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