The American Cyclopædia (1879)/Trade Mark

TRADE MARK, the name, symbol, form, or device used by a manufacturer or merchant to distinguish the merchandise which he produces or sells from that of others, in order that such merchandise may be known as his, and that he may secure the profits arising from its reputation for superiority. Trade marks have long been protected by law, on the general principles of equity, in nearly all civilized countries; but statutes for this purpose are of recent origin. The object of such laws is not only to secure to the individual the fruits of his skill, industry, and enterprise, but also to protect the public against frauds. In the United States trade marks are protected by the statute of 1870, which is the first one passed by congress for this purpose. It does not interfere with the common law protection, which is open to every person independently of the statute. It provides that any person or firm domiciled in the United States, or any corporation created by the law of the United States or of any state, may, by complying with the requirements of the act, obtain protection for any lawful trade mark to which he or it is entitled, for the term of 30 years, with the privilege of a renewed term for the same period. Every applicant must record in the patent office his name, residence, and place of business; the class of merchandise, and the particular description of goods comprised in such class, to which the trade mark has been or is intended to be applied; a description of the mark, with facsimiles thereof and its mode of use; and the length of time, if any, during which it has been used. He must also pay a fee of $25, and file a sworn declaration that he is entitled to the exclusive use of the mark, and that the description and facsimiles presented are true representations. If, on examination in the patent office, such symbol is found to have the requisites of a valid trade mark, it is registered, and the owner becomes entitled to legal and equitable remedies against its violation.—Property in a trade mark is acquired by the original application to some species of merchandise of a device or symbol not in actual use to designate articles of the same kind or class. If such symbol have the essential qualities of a lawful trade mark, the owner becomes entitled to its exclusive use within the limits prescribed by law. But whoever first adopts a mark acquires a right to its exclusive use only in connection with the particular class of merchandise to which he has applied it. His right to use it as a mark on iron does not prevent its lawful use by another on cloth. The mark must also be put into actual use before it may be claimed exclusively by any person; protection begins from the time of such use, without regard to whether the mark has gained a reputation. No person will be protected in the use of a trade mark which is not truthful, and is used with the design of deceiving the public, or which is employed in any unlawful business, or upon any injurious article.—One of the most important requisites of a valid trade mark is that it shall, either by itself or by association, point distinctively to the origin or ownership of the article to which it is applied. By its individuality, it must associate the merchandise with the producer or the place of production, so that the purchaser may know that all articles bearing the same mark are genuine and of the same quality and from the same source. The mark thus becomes equivalent to the owner's commercial signature.—No person has a right to the exclusive use of a mark which is of such a character that others may employ it with equal truth. A generic name of an article, or one merely descriptive, or representing the kind, quality, ingredients, or characteristics of the article, may not be used as a valid trade mark. “Parchment deed,” “beeswax oil,” “superior white wheat,” “desiccated codfish,” are not valid as trade marks, because they are the proper descriptive appellations of the articles. Geographical names used in their proper sense cannot become lawful trade marks. All coal mined in the Lackawanna valley, or all wheat grown in California, may be sold as “Lackawanna coal” or “California wheat,” by whomsoever produced. But if the phrase is used as an arbitrary symbol, and is not intended to represent that the merchandise is produced in the region bearing the name, and is so understood by the public, it may be monopolized as a mark for any class of goods. “Damascus blade,” applied to scythes made in the United States, is a valid trade mark.—It is not clearly settled how far a person's own name will constitute a valid trade mark independently of the statute. In general all persons of the same name have an equal right to any honest use of such name. But if one person has acquired a valuable reputation for his own name in connection with a particular kind of merchandise, a court of equity might restrain another person of the same name from using it as a trade mark for the same class of goods, if his intent were clearly to deceive the public and to injure the person who had first so employed it. The statute of 1870 prohibits the registration of any proposed trade mark “which is merely the name of a person, firm, or corporation only, unless accompanied by a mark sufficient to distinguish it from the same name when used by other persons;” except that any lawful trade mark in use when the act was passed may be registered. Names of persons, living or dead, other than the owner of the trade mark, may be monopolized as arbitrary. Symbols for any class of goods, as “Bismarck collar,” pseudonymes or imaginary names, &c., will also be protected. Mere initials or numerals do not generally constitute valid trade marks, but may become so in special cases. The title of a book, newspaper, magazine, or other publication may have the essential characteristics of a trade mark; but in such cases protection has usually been granted on the ground of fraud committed by the person who has unlawfully appropriated such title, or one closely resembling it.—Property in a trade mark is invaded when a person falsely uses such mark or a colorable imitation of it, with the intention or effect of falsely representing his own goods as those of another. The usual remedy of the injured person is by an injunction restraining the wrong doer from a further use of the name, or by an action at law for damages. Generally an injunction will be granted by a court of equity only when the petitioner's legal title is clear. If the lawful owner have suffered damages, he may proceed in equity for the profits made by the wrong doer, or he may sue at law for the loss he has sustained. The good will of a trade is a species of property analogous to that in trade marks.—The statute of 1870 provides for extending protection to the trade marks of aliens resident in any foreign country which by treaty or convention affords similar privileges to citizens of the United States. Treaties and conventions for this purpose have been concluded with France, Belgium, Germany, the Austro-Hungarian empire, and Russia. The principal countries of Europe have passed laws for the protection of trade marks, and in some it is obligatory upon manufacturers to affix marks to their products.