deemed to possess even a label. As an instance of persons seeking their own discomfiture, while swelling the revenue of the Patent Office by one hundred dollars, read this: Four applications. Claims,-the words "Bristol Watch Co., Bristol, Mass.;" "G. M. Wilson, Chicago, Ill.;" "New England Watch Co., Providence, R. I.;" and "Chicago Watch Co., Chicago, Ill." These names, said the applicants, are used upon watches and watch-movements; and this same petition states that no other person, firm, or corporation has a right to the use of said trade-marks, or of marks substantially the same. Not even substantially the same! Rejected. § 139. What is Merchandise? This seems at the first glance to be a puerile question; and yet it is one that has sometimes puzzled experienced men of business. We all know that it means the objects of commerce: whatever is usually bought or sold in trade, or market, or by merchants; wares, goods, commodities. Yet a case may easily be supposed where the question cannot be answered without hesitation, when considered in its relation to a trade-mark. § 140. This question came up in the Patent Office, in 1872, in an application for a design-patent for a label with a coupon attached.2 The whole value of the label depended upon the peculiar configuration, and was intended to be sold to manufacturers of a certain kind of paper collars, &c. He who bought that label thereby obtained a license to sell that particular kind of goods, and at the same time he had furnished to him a certificate of good workmanship. Now, what was intended to be sold? It was the label. But the label would have been incomplete without a peculiar mark. Then that peculiar mark could not be considered to be a trade-mark, strictly speaking; for a trade-mark is merely the index to something that is offered for sale. In this case, it was actually incorporated into, and became an essential component part of the com 1 Louis Strasburger & Co., ex parte. 2 C. C. Morgan, assignor to Union Paper Collar Co. of New York. modity. That answers the requirement of the law in relation to designs. The label was a design, - a matter of configuration of a new and useful article of manufacture; and without the peculiar mark it would have no more served its destined purpose than would a college diploma without signature. After deliberation, the matter was decided to be a design. § 141. In the Court of Paris, in 1859, Lalande et al. v. Appel et als., it was decided that tickets or labels, composed and sold by a lithographic printer, could not be considered as trade-marks. The plaintiffs, lithographers, complained that the defendants had counterfeited the designs upon tickets or labels destined to be sold to vendors of liquors and cosmetics, to be placed by them upon flasks or bottles. The defendants, as a point of law, contended that the plaintiffs had no right to recover, for the reason that the designs upon the tickets were neither designs of manufactures, nor marks for the same in the sense of the law of 1793. The reasoning of the court is perfectly convincing. Among other matters, it was held, “That the plaintiffs' claim was ill-founded, because the tickets in question were the special objects of their commerce, and therefore could not be regarded as trade-marks; that the trademark, regulated by the law of the 25th of June, 1857, is the characteristic sign by means of which commerce distinguishes the products of fabric or objects of commerce; that the mark itself cannot be an object of commerce; that, by the use which a merchant makes of a ticket, in applying it to a vase containing the product of his manufacture, it is possible that the ticket may become for him a trade-mark,- subject to the fulfilment of all legal formalities, for it may be then, as to him, a sign or distinctive seal of his products, without being the very object of his commerce: but, as to the plaintiffs, the tickets can be nothing but the special object of their industry. Judgment for defendants. On appeal, the decision was affirmed. 1 Annales de la Prop., etc., tome 5, p. 248. § 142. The same question was considered in a case in the Patent Office, where a lithographer1 applied for a trade-mark to be affixed to labels manufactured and sold by him to merchants and others. It appeared, however, that he intended the mark to be stamped or printed upon the label, not as a constituent element, but as a sign of authenticity. Under that view of the matter, a certificate of registry was allowed. § 143. Essential Characteristics. There are certain infallible indicia of the nature of the symbol known to commerce and jurisprudence as a trade-mark. These are: 1. Invariability, i.e., fixed, positive, unmistakable; 2. Individuality, such a difference from other symbols as to indicate origin and ownership; 3. Universality of a right to its use, i.e., good as a representative of, or substitute for, the owner's signature all the world over; 4. Exclusiveness of the right to use; 5. Application to merchandise; 6. Use in lawful business; 7. Truth and good faith; 8. Duration unlimited but by the trade itself. (Protection, however, may sooner cease.) 2 Samuel Crump, Cert. No. 637. 2 Sec. 78, Act of July 8, 1870. CHAPTER IV. INDICATION OF ORIGIN OR OWNERSHIP. Meaning of Phrase. - Disagreement of Judges. Name or Address of Manufacturer or Trader not necessary Ingredient of Mark. - Use of word "Quality." - Designation of Occupation or Trade cannot be exclusively appropriated. — Chemical Products, Names of. - A Man's Name may lose Idea of Personality. — Instances: Names of Medicines, Boots, Carriages, Guns. ical Names as Trade-marks. Geograph § 144. Indication of Origin or Ownership. This is a phrase that of late years has been the source of much perplexity, simply because not understood in its legal acceptation. The Supreme Court of the United States, in The President, &c., of the Del. & Hudson Canal Co. v. Clark, repeated a proposition that as a rule has been frequently enunciated, and settled beyond question, viz.: 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. § 145. The difficulty is this: What does distinctively indicate such origin or ownership? That question can be intelligently answered only after the examination and collation of many adjudications. Each case necessarily depends to a great extent upon its own peculiar surroundings. What might indicate origin in one matter might not in another. Sometimes the name of a proprietor or of a place is required to clearly convey the indication; again, any simple device may 1 Patent-Office Official Gazette, March 26, 1872. by association with a particular person or place convey all the information required. What impression does the mark of commerce leave upon the vision of the beholder? What associations are called up by the sound of a word? A purchaser usually instantly recognizes a symbol, and buys on its faith, just as one might purchase bonds of the United States upon the most superficial glance. He asks for a 10-40, a 5-20, or a 7-30, and does not think of keenly scrutinizing its various indicia of genuineness. Its origin is clearly indicated. He has not the slightest suspicion that the thing a broker sells to him has been simulated. One buys a barrel of flour or a fancy toilet article with the same apparent carelessness. The true test is confidence. The brand, or the mere name of the article, satisfies him. Good faith is the bond of commerce; and without it doubt and hesitation will fetter enterprise and restrain trade. § 146. The words "Congress Water" were held by the New York Court of Appeals, in Congress and Empire Spring Co. v. High Rock Congress Spring Co.,1 to appropriately indicate both the origin and the ownership of the water flowing from Congress Spring, to which place the plaintiffs had the sole title. The defendants' counsel argued that the words, as applied to a natural element, were an inexplicit name, expressing no idea of property or origin, and that the said mark lacked the essential elements, being used to designate the article itself by its proper appellation, therefore not the subject of exclusive appropriation; that, in fact, it expressed no more than the name of the spring, like " Avon Springs," "Lebanon Springs," "Sharon Springs," and "Cheltenham Springs," being names of particular fountains, indicative only of the place whence they issue. It was also insisted that the doctrine of trademarks has never been applied, and is not applicable, in letter or in spirit, to the sale of spontaneous natural products of substantially the same nature, being appropriate only to arti 66 1 57 Barb. 526; 4 Am. Law Times R. (St.) 168. |
