,transcriber's ,notes3 ,text enclosed by underscores is in italics 7italics71 and text enclosed by equal signs is in bold 7bold74 ,many illustrations contain text1 which is marked by indenting it more than the illustration captions4 ,additional ,transcriber's ,notes are at the end4 99 99 99 99 99 ,,things ,,to ,,know ,,about ,,trade-,,marks ,a ,,manual ,,of ,trade-,mark ,information ,illustration ,,published ,,by ,j4 ,,walter ,,thompson ,,company #dd ,,east #bcrd ,,street ,,new ,,york ,branch ,offices ,,chicago ,,cleveland ,,st4 ,,louis ,,toronto ,,boston ,,cincinnati ,,detroit ,,london 99 99 99 99 99 ,,copyright1 #aiaa ,,by ,j4 ,,walter ,,thompson ,,company 99 99 99 99 99 ,illustration3 ,j4 ,,walter ,,thompson ,,company ,est4 #ahfd ,the ,purpose of ,this ,book ,our idea1 in preparing this little book1 is to set forth1 in clear and simple language1 the main features of the law relating to trade-marks and to illustrate its application by specific examples of well-known trade-marks now in use4 ,to an advertiser who has had but little experience in registering trade-marks1 the law1 with a congested mass of precedents surrounding it1 seems to be a legal maze4 ,but its intricacy is more apparent than real4 ,the law is quite clear and explicit when one has the patience and experience in such matters to get to the bottom of it4 ,we have endeavored to write this book in language so clear that any business man will understand it1 and we feel sure that it will give any one a good working knowledge of trade-mark requirements4 ,it has not been our intention to produce an exhaustive treatise on the subject4 ,such a treatment of the law of trade-marks and its allied subject of unfair trade would require a large volume1 and the long and intricate discussion of minor points necessary in a work of that kind would be wearisome and perhaps unintelligible to the lay reader4 ,nor have we discussed the origin of the custom of identifying merchandise by trade-marks4 ,this phase of the subject--trade-marks in their historical aspect--is interesting in an academic sense1 but it has little or no bearing on the trade-mark situation of to-day4 ,for further study of the trade-mark law and the allied subject of the law of unfair trade1 we advise the reading of ,hesseltine's ,law of ,trade-,marks and ,unfair ,trade 7,little1 ,brown ,co41 #aijf72 and ,nims on ,unfair ,business ,competition 7,baker1 ,voorhis ,co474 ,both of these works are legal in their treatment of the subject and in their phraseology4 ,another work containing much information on this subject is ,clowry ,chapman's ,law of ,advertising and ,sales1 in two volumes1 published by the author4 ,j4 ,,walter ,,thompson ,,company ,illustration3 ,j4 ,walter ,thompson ,,president4 ,table of ,contents ,chapter ,page ,introduction #g ,i4 ,digest of ,the ,trade-,mark ,law #ac ,property in ,trade-,mark ,rests ,upon ,common ,law #ac ,conditions of ,registration #ad ,ten-,years ,clause #af ,how to ,apply for ,registration #ag ,procedure of the ,patent ,office #bj ,registration in ,foreign ,countries #bc ,classification of ,merchandise #bc ,state ,trade-,mark ,laws #be ,,ii4 ,essentials of a ,valid ,trade-,mark #bf ,portrait of a ,living ,individual--,when it may be ,registered #bg ,trade-,mark ,must not be ,descriptive #bh ,trade-,mark ,must not ,misrepresent #ca ,trade-,mark ,must not ,resemble ,previously ,registered ,mark for ,same ,class of ,merchandise #cb ,a ,geographical ,name is not ,registrable #cd ,trade-,mark ,must not ,contain ,red ,cross ,insignia #cf ,restrictions as to ,registering ,names #cg ,trade-,mark ,must not be ,fraternal ,society ,emblem #ci ,trade-,mark ,must not ,consist of ,flag or ,coat-of-,arms #dj ,a ,form1 ,color1 a ,shape1 or a ,material ,not ,registrable #dj ,trade-,mark ,must not be ,against ,public ,policy #db ,affixation #dc ,,iii4 ,advertising ,characters #de ,,iv4 ,infringement #eb ,v4 ,assignment #fi ,,vi4 ,trade-,marks in ,canada #gc ,,vii4 ,how to ,devise a ,trade-,mark #gf ,introduction ,if you were to ask any dozen men among your acquaintances1 or any hundred men1 to name the greatest writer that has ever lived1 the odds are perhaps as great as a hundred to one that every man would say ,shakespeare4 ,this virtual unanimity of opinion would not have its origin in a conscious comparison of authors and their works1 for we might as well be frank with each other and admit that not more than one of us in a thousand has ever read enough of ,shakespeare to form any opinion that would be worth listening to4 ,we take ,shakespeare on faith4 ,we have been taught that ,shakespeare was a transcendent genius1 the greatest man that ever put pen to paper1 and we believe it4 ,shakespeare is in evidence on every hand4 ,we quote him every day4 ,he is well advertised4 ,and1 needless to say1 his reputation as a writer is far greater to-day than when he lived over a wig-maker's shop in ,london1 or even when his fortune had been made1 and he had retired with his jig-saw coat-of-arms to the lordly mansion on the hill back of ,stratford4 ,he has been advertised for three centuries with praise originating from a thousand sources1 and his reputation is now steeped head and ears in ,cumulative ,results4 ,shakespeare's name has become a sort of trade-mark of good literature4 ,if a meddling antiquarian should thoughtlessly add to the afflictions of the intellectual life by unearthing a doggerel sonnet of ,thomas the ,rhymer to which some clerkly scribe had affixed1 in error1 the name of ,william ,shakespeare1 learned men would read it1 and nodding wisely1 would doubtless say1 ,pretty good stuff--or the scholarly equivalent of that phrase4 ,the force of recognized distinction is tremendous1 not only in literature1 but in business1 in science--in short1 it is one of the most valuable assets in every field of human endeavor4 ,a commodity may attain a height of distinction1 in the public's estimation1 that places it1 among other commodities of its class1 on the level attained by ,shakespeare in literature4 ,apollinaris among table waters2 ,heinz #eg among pickles2 ,hartshorn rollers among window shade appliances2 ,coca-,cola among soda fountain drinks2 ,huyler's among candies2 ,uneeda ,biscuit among soda crackers2 ,horlick's among malted milks--each of these products has become1 by reason of advertising combined with intrinsic merit1 the standard of quality in its own class4 ,it is interesting and easy to make practical tests to ascertain what advertised commodities have made a genuine and far-reaching impression on the buying public4 ,take talcum powder1 for example4 ,ask your wife1 daughter1 sister1 stenographer--and as many other women as are necessary to strike a general average--to write down the name of what each of them considers the standard talcum powder4 ,then1 when all the returns are in1 figure up the result4 ,there are hundreds of brands of talcum powder sold in the ,united ,states2 but you will find in your canvass that only three or four are mentioned at all1 and that one of them leads all the rest by a decisive majority4 ,we could tell you what the figures produced by your experiment would show the leading brand to be1 but a modest reserve in self-assertion forbids us to say more than that its name begins with the letter ,m4 ,the enviable position of this particular talcum powder is the sum total of many years' advertising and trade-mark publicity4 ,it has become a permanent feature of our commercial life2 a sort of ,bunker ,hill in the history of advertising4 ,the natural result is that its trade-mark is enormously valuable4 ,advertising capitalizes human faith1 and faith is a mental impression4 ,it is a quality of the human mind that the most profound impressions are made by things--not by abstract ideas4 ,consequently1 successful advertising must be tied hard and fast to a name 7or trade-mark7 and this trade-mark must be distinctive1 and not easy to confuse with something else4 ,it must be easy to remember1 and it must identify the advertised product4 ,the functions of a trade-mark in advertising may be concisely stated as follows3 #ast4 ,as a certificate of genuineness of the product to which it is affixed4 ,this protects the public4 #bnd4 ,as an identifying mark1 owned by the manufacturer1 and in the ownership of which the law protects him in order that no competitor may reap the advantage of the selling effort and advertising put forth by the owner of the trade-mark4 ,this protects the manufacturer4 ,in its legal aspect1 a trade-mark is therefore a device for protecting both the manufacturer and the public from fraud4 ,in this connection1 we quote the legal definition of a trade-mark as given by the ,federal ,court in the case of ,shaw ,stocking ,company vs4 ,mack3 ,broadly defined1 a trade-mark is a mark by which the wares of the owner are known in trade4 ,its object is twofold2 first1 to protect the party using it from competition with inferior articles2 and second1 to protect the public from imposition4444 ,the trade-mark brands the goods as genuine1 just as the signature of a letter stamps it as authentic4 ,the law of trade-mark usage1 reinforced by a vast array of legal decisions1 is a growth of the last sixty years4 ,when trade was restricted within narrow geographical limits by formidable conditions2 when both goods and news traveled slowly2 when selling effort was principally made by word of mouth1 there was no genuine need in the commercial world for the legal regulation of trade-marks1 or for laws designed to repress unfair trade4 ,in the days of our forefathers manufacturers made goods2 they did not sell them4 ,goods sold themselves4 ,and1 consequently1 the expanding circle of a manufacturer's trade rippled out with exceeding slowness4 ,a national sale of any product was the result of perhaps several generations of slowly expanding effort--and when once established1 it was generally entrenched far beyond the reach of competitors or substitutes4 ,people lived simply1 and manufactured articles were few4 ,it is true that trade-marks existed then--as they have since the beginning of organized commerce--but they were few in number1 compared with their multiplicity to-day1 and their owners were adequately protected by their ordinary common law rights4 ,quickly moving transportation and highly developed methods of distribution and sale have changed these conditions4 ,to-day the swift shuttle of commerce flies to the ends of the world4 ,advertising has arisen1 and has become1 in a generation1 the most important of selling forces4 ,people read and believe the printed word1 and they buy goods manufactured a thousand miles away by some advertiser of whom they had never heard until they read of him and his wares4 ,society has become intricate and complicated4 ,thousands are striving to do what one man strove to do a hundred years ago4 ,from this criss-cross of human activities has been woven the fabric of the law of unfair trade1 which is the progenitor of the trade-mark statutes4 ,the intent of this body of law is to give the widest possible freedom to the play of individual energy in business consistent with justice to others in trade1 and to the public4 ,the trade-mark is the connecting link between the manufacturer and the ultimate consumer4 ,by the use of trade-marks1 widely advertised1 manufacturers are able to build up a trade that becomes1 to a great degree1 independent of jobber1 wholesaler1 and retailer4 ,in the public mind a trade-mark grows1 in time1 to mean a certain standard of quality1 workmanship and material4 ,advertised products are generally higher in quality than similar products that are not advertised4 ,the reason is that an investment in enough advertising space to make any commodity known nationally requires a considerable outlay of money1 besides a well-developed selling organization to coperate with the advertising1 and harvest its results4 ,and this must be done continuously1 and that means that the combined advertising and selling effort must be permeated with a sense of stability and permanency4 ,the manufacturer who is investing money in advertising1 year after year1 feels that he has too much at stake to endanger his possibilities by putting out inferior goods4 ,advertising is a systematic method of creating ,good ,reputation--but when ,reputation is only an empty form of words1 with nothing tangible behind it1 the chances of its lasting are rather slight4 ,the manufacturer of inferior goods is not looking very far into the future4 ,he is not trying to build permanently on the basis of reputation1 but to squeeze out ,right ,now every cent of possible profit4 ,the result of this attitude of mind is that he does not advertise4 ,consequently it is not surprising to find that the best merchandise on any retailer's shelves consists of advertised goods1 and that1 moreover1 concerns that advertise have the most efficient sales organizations1 as well as the most enlightened relations with retailers and the public4 ,the best trade-mark ever devised is not worth a cent until it has become known as an identifying mark of a commodity4 ,a trade-mark has no inherent1 natural value4 ,whatever it is worth is the result of advertising in some form1 plus the desirable qualities of the goods that it represents4 99 99 99 99 99 ,some trade-marks are words which have a natural affinity for the language1 and they slide into common speech as easily as a cupful of water melts into the ocean4 ,a notable instance of this is ,cracker ,jack4 ,this word has become an integral part of our common language1 and is used to mean a hustler1 a thing of excellence1 a fellow who gets there1 a machine that runs smoothly1 a well-played game1 and in other senses4 ,but it is probable that not one person in a hundred who uses this word knows that it is a registered trade-mark1 and that it is a name applied to a mixture of popcorn and peanuts1 combined with molasses1 or some other sweetening4 ,it is a delicious concoction1 as any reader of this book may ascertain for himself4 ,the owners of ,cracker ,jack have not advertised4 ,they have allowed the immense asset of their trade-mark--a by-word on the tongues of millions--to go to waste4 ,the word ,celluloid is protected by the trade-mark law4 ,the article celluloid can be manufactured by any one who cares to go into the business of making it1 but only the owners of the trade-mark can call their product celluloid4 ,this is not generally known1 probably not even by the well-informed class of readers among whom this book will circulate--a state of public ignorance due to lack of advertising4 ,kodak1 an artificial word--a registered trade-mark--widely advertised1 has grown into common use1 and is now used by many persons to mean a small hand camera of any make1 though 7as every reader of this book knows7 a real ,kodak is made only by the ,eastman ,company4 ,in this case the owners of the trade-mark have made their advertising keep pace with the diffusion of the word4 ---------------------------------------- ----- ,,kodak ,is our ,registered and common-law ,trade-,mark and cannot be rightfully applied except to goods of our manufacture4 ,if a dealer tries to sell you a camera or films1 or other goods not of our manufacture1 under the ,kodak name1 you can be sure that he has an inferior article that he is trying to market on the ,kodak reputation4 ,if it isn't an ,eastman1 it isn't a ,kodak4 ,,eastman ,,kodak ,,co41 ,,rochester1 ,n4 ,y41 ,the ,kodak ,city4 ---------------------------------------- ----- ,special advertising to counteract the indiscriminate use of the word ,kodak4 ,it is easier to say ,kodak than it is to say portable camera4 ,there is a real need in the language for such a word1 and ,kodak has come to supply it4 ,trade-marks of this character1 which seem to supply a genuine linguistic need1 are1 in a sense1 too good4 ,the indiscriminate application of ,kodak to a certain class of cameras1 irrespective of origin1 has caused the ,eastman ,kodak ,company to publish many advertisements with the special purpose of calling attention to the correct use of the word4 ,the word ,o',sullivan is another instance of a trade-name acquiring a secondary meaning through advertising4 ,it instantly brings to mind the thought of rubber heels4 ,in a popular play an actor says1 ,i got away from there on my ,o',sullivan's and every one in the audience knows that he means to say that he left as quietly as he could4 99 99 99 99 99 ,there comes a time1 in the history of every manufacturer who advertises extensively and successfully for a long period1 when his trade-mark1 and the name of his product 7in many cases they are the same71 become by-words of common speech1 known to all men1 and incorporated into our fluid and elastic language4 ,when an advertiser reaches this point1 he has generally attained the highest possible advertising success4 ,in other words1 advertising has done for him all it can do1 and he has only to keep the stream of advertising going to hold what he has4 ,,chapter ,i ,a ,digest of the ,trade-,mark ,law ,in ,february1 #aije1 ,congress passed an act entitled ,an act to authorize the registration of trade-marks used in commerce with foreign nations or among the several states or with ,indian tribes1 and to protect the same4 ,this act went into effect on ,april #a1 #aije4 ,with its amendments it is known as the ,united ,states ,trade-,mark ,law4 ,its provisions should be known by every manufacturer or advertiser who is using1 or who intends to adopt1 a trade-mark4 ,property in ,trade-,marks ,does ,not ,rest upon the ,statute1 ,but upon the ,common ,law4 ,it should be stated here that ownership in a trade-mark is a property right resting in the common law4 ,this right is1 therefore1 not a creation of the statute4 ,the purpose of the statute 7or ,act of #aije7 is to systematize the registration of trade-marks1 and to provide a definite procedure both for recording and protecting them4 ,a trade-mark may be legally valid without having been registered1 and on the other hand1 a registered mark may be proved legally invalid4 ,registration is prima facie evidence of validity1 but it is not conclusive evidence4 ,upon this subject the ,supreme ,court of the ,united ,states has said1 ,the right to adopt and use a symbol or device to distinguish the goods or property made or sold by the person whose mark it is1 to the exclusion of use by all other persons1 has been long recognized by the common law and the chancery courts of ,england and of this country4 ,it is a property right for the violation of which damages may be recovered in an action at law1 and the continued violation of it will be enjoined by a court of equity with compensation for past infringements4 ,this exclusive right was not created by the act of ,congress and does not now depend upon it for its enforcement4 ,the common law rights of the owner of a trade-mark are the same now as they were before the passage of the act4 ,in fact1 the statute itself contains this provision3 ,nothing in this act shall prevent1 lessen1 impeach or avoid any remedy at law1 or in equity1 which any party aggrieved by any wrongful use of any trade-mark might have had if the provisions of this act had not been passed4 7,section #bc of ,act of #aije47 ,the advantages of registration are readily apparent1 however4 ,in an action at law against infringement1 the owner of a registered trade-mark can produce at once the record of its adoption and legal registration4 ,without registration1 it would be necessary for him to go through an involved legal process to prove his rights in the matter4 ,registration in the ,united ,states ,patent ,office brings any litigation involving the right to use the trade-mark within the scope of the ,federal court1 with a judiciary trained in such cases4 ,when a trade-mark is not registered under the ,federal law a suit pertaining to it cannot be heard in the ,united ,states courts1 unless the amount in dispute exceeds two thousand dollars1 and the parties on the opposing sides are not citizens of the same state4 ,under the ,act of #aije about #ci1jjj trade-marks had been registered1 up to ,september #a1 #aiaa4 ,conditions of ,registration ,an individual or a corporation has a right to register a trade-mark under the ,united ,states law if the trade-mark for which registration is sought belongs to the applicant and is used by him3-- #ast4 ,in commerce among the several states2 #bnd4 ,or1 in commerce with foreign nations2 #crd4 ,or1 in commerce with the ,indian tribes2 ,provided the owner of the trade-mark resides within the territory of the ,united ,states 7which includes all territory under ,united ,states control71 or has a manufacturing establishment situated in ,united ,states territory1 or resides in any foreign country which affords1 by treaty1 similar privileges to citizens of the ,united ,states4 ,the law states1 as a condition of validity1 in explicit terms that the trade-mark must not only belong to the applicant1 but must be used by him4 ,a trade-mark cannot be registered until it has actually been used on goods1 and the use must be continued long enough1 and must be of such a nature as to indicate a genuine intention on the part of the owner to adopt the trade-mark as a permanent accessory of his business4 ,the reason for this is evident4 ,if any citizen could appropriate and sequester a trade-mark by paying the registration fee of ten dollars1 without an intention of using it for its legitimate purpose1 it does not take much imagination to foresee a ,trade-,mark ,trust1 with most of the desirable trade-marks in the hands of a monopoly1 to be farmed out at a profit4 ,to be ,registrable ,a ,trade-,mark ,must ,be3 #ast4 ,an arbitrary symbol1 or word1 or words1 or a combination of a device and wording1 not obviously descriptive of the commodity to which it is to be applied4 #bnd4 ,unlike any other trade-mark1 already in use1 and applied to the same class of goods4 ,it must not resemble the trade-mark of a competitor1 or of a potential competitor1 to such an extent that the buying public is likely to be deceived or confused by the resemblance4 #crd4 ,used in lawful trade4 #dth4 ,of such a character that it may be affixed1 printed upon1 woven1 sewed1 branded or otherwise impressed upon the product with which it is used1 or upon the package or container of the product4 ,a ,trade-,mark ,must ,not ,be3 #ast4 ,a portrait of a living individual unless the application for registration is accompanied by the written consent of the individual whose portrait is used4 #bnd4 ,scandalous or immoral matter of any description4 #crd4 ,the flag or coat of arms of the ,united ,states1 or of any state1 or of any municipality1 or any of the insignia thereof4 #dth4 ,the insignia of the ,american ,national ,red ,cross ,society4 #eth4 ,the flag or coat of arms of any foreign nation4 #fth4 ,any design or picture which has been adopted by a fraternal society as its emblem4 #gth4 ,a design or wording identical with a registered or known trade-mark owned and in use by another1 and appropriated to merchandise of the same descriptive qualities1 or which so nearly resembles a registered or known trade-mark owned and used by another1 and appropriated to merchandise of the same descriptive qualities1 as to be likely to cause confusion or mistake in the mind of the public1 or to deceive purchasers4 #hth4 ,any mark which consists merely in the name of an individual1 firm1 corporation1 or association1 unless said name is written1 printed1 impressed or woven in some particular or distinctive manner1 or is used in connection with a portrait of the individual4 #ith4 ,any arrangement of words or devices descriptive of the goods with which they are used1 or of the character or quality of such goods4 ,in other words1 a trade-mark must not be an advertisement in the ordinary sense of the word4 #ajth4 ,any geographical name or term4 #aath4 ,a misrepresentation of the quality1 composition1 character1 origin1 or nature of the commodity with which it is used4 ---------------------------------------- -------------------- ,illustration ,jobber ,retailer ,manufacturer ,trade-,mark ,consumer ,advertising ,this looks like a problem in geometry1 but it isn't4 ,this diagram shows at a glance how ,trade-,mark ,advertising draws a straight line between the manufacturer and the consumer4 ,the manufacturer who doesn't advertise has to depend on the jobber and the retailer4 ,in the majority of cases his name never reaches the consumer4 ,his trade is necessarily precarious1 and he is constantly in danger of the kind of cut-throat competition that shaves the lowest margin of profit to nothing4 ,but the manufacturer who advertises has his name and the name of his goods on the lips of millions of people4 ,the retailer who attempts to keep advertised goods from selling is like the man who cuts off his nose to spite his face4 ,people will go elsewhere and get what they want4 ,we would like to talk with you about advertising4 ,among our clients are some of the largest and most successful advertisers in the ,united ,states4 ,it will cost nothing to have a talk with us--and we may be able to suggest an idea or plan that will simplify your sales problem4 ,j4 ,,walter ,,thompson ,,company ,new ,york3 #dd ,east #bcrd ,street ,boston3 #bja ,devonshire ,street ,cincinnati3 ,first ,national ,bank ,bldg4 ,st4 ,louis3 ,odd ,fellows ,bldg4 ,chicago3 ,the ,rookery ,cleveland3 ,swetland ,bldg4 ,detroit3 ,trussed ,concrete ,bldg4 ,toronto3 ,lumsden ,bldg4 ,london3 #cc ,bedford ,st41 ,strand ---------------------------------------- -------------------- ,a special provision of the ,act of #aije legalized all trade-marks that had been in exclusive use by the applicant for ten years prior to the passage of the act1 and this provision applies even to trade-marks of ten years' standing that1 because of their character1 could not be registered under the act4 ,the language of the act dealing with this subject is as follows3 ,nothing herein 7in the ,act of #aije7 shall prevent the registration of any mark used by the applicant or his predecessors1 or by those from whom title to the trade-mark is derived1 in commerce with foreign nations or among the several states1 or with ,indian tribes1 which was in actual and exclusive use as a trade-mark of the applicant or his predecessors from whom he derived title for ten years next preceding the passage of this act4 7,section #e1 ,act of #aije47 ,illustration3 ,red ,cross ,shoe ,it ,bends with your ,foot4 ,the trade-marks of the ,red ,cross ,shoe are the ,red ,cross shown below and the design shown above4 ,,krohn ,,fechheimer ,,co4 ,,cinti4 ,u4 ,s4 ,a4 ,there are many trade-marks registered under this ten years' clause4 ,manufacturers are prohibited from using the insignia of the ,red ,cross ,society as a trade-mark1 but there is a ,red ,cross ,shoe1 and the products of the well-known druggists' specialty house of ,johnson ,johnson bear a ,red ,cross symbol4 ,in both cases1 their right is based on long and continuous use antedating the act of #aije1 which especially exempts such cases4 ,how to ,apply for ,registration ,the registration of trade-marks is under the supervision of the ,commissioner of ,patents1 and regular forms for registration are prescribed4 ,copies of these forms may be obtained by applying to the ,patent ,office4 ,in applying for trade-mark registration1 the following provisions of the law must be observed3 #ast4 ,the applicant must file a ,petition in the ,patent ,office1 addressed to the ,commissioner of ,patents4 ,this petition must be in regular form1 and should be signed and dated4 ,illustration3 ,b4,v4,d4 ,a valuable and widely advertised trade-mark4 ,can you guess what the three letters mean8 ,illustration3 ,,trade ,,mark4 ,,crescent ,,gold ,,filled4 ,a trade-mark of the ,keystone ,watch ,case ,co4 #bnd4 ,with the petition a ,statement must be forwarded4 ,this document must give the name1 domicile1 location and citizenship of the applicant2 the class of merchandise and the particular description of goods comprised in such class to which the trade-mark is appropriated2 a statement of the mode in which the trade-mark is to be affixed to the goods2 and the length of time during which the trade-mark has been used4 ,it is not necessary to give a written description of the trade-mark itself except when it contains colors not shown in the drawing4 ,this statement must be signed by the applicant4 ,where a corporation is the applicant1 the secretary should sign the statement4 ,when a partnership is the applicant1 any partner can sign1 but the names of all the members of the firm must be given4 ,illustration3 ,,chiffonette ,,veilinette ,,malinette ,trade-marks applied to fabrics and registered by ,theo4 ,tiedemann ,co4 #crd4 ,there should also be forwarded to the ,patent ,office1 at the same time1 a ,declaration of the applicant1 sworn to before a notary public1 to the effect that he believes the statements made in his application are true2 that he believes himself to be the owner of the trade-mark sought to be registered2 and that said trade-mark is used by him in commerce among the several states of the ,united ,states1 with the ,indian tribes1 or with foreign nations2 and that the drawing sent with the application truly represents the trade-mark sought to be registered4 #d4 ,with this application there must be filed a ,drawing of the trade-mark1 made according to the following specifications3 ,the size of the sheet on which the drawing is made must be exactly #aj x #ae inches1 and the sheet must be of pure white paper1 corresponding in thickness to two-sheet ,bristol board4 ,the surface of the paper must be calendered and smooth4 ,india ink must be used4 ,one inch from its edges a single marginal line must be drawn1 as shown in the accompanying cut1 leaving the dimensions inside the border exactly #h x #ac inches4 ,illustration3 ,the distinctive and eye-catching trade-mark of #bj-,mule ,team ,borax4 ,within this border1 the drawing and signatures must be included4 ,one of the shorter sides of the sheet is regarded as its top1 and measuring downwardly from the marginal line1 a space of not less than #a-a_/d inches is to be left blank for the heading of title1 name1 number and date4 ,all drawing must be made with the pen only4 ,every line and letter1 including signatures1 must be absolutely black4 ,the name of the proprietor of the trade-mark1 signed by himself1 or his attorney of record1 must be placed at the lower right-hand corner of the sheet within the marginal lines4 ,illustration3 ,the size of the sheet must be exactly #aj x #ae inches4 -------------------------------------- ,t h i s s p a c e m u s ,victor t b e t h i r t e e n i n c ,proprietor4 h e ,by4 s 4 ,attorney4 -------------------------------------- --,this space must be eight inches4-- ,a ,diagram ,showing ,method of ,making ,drawing ,the drawing that accompanies an application for registration of a trade-mark must be made exactly on this pattern4 ,it is essential that these directions be followed4 ,illustration3 ,onoto ,coined word used as the name of a fountain pen4 ,illustration3 ,stork ,baby ,,trade ,,shoes ,,mark ,the stork is the appropriate and suggestive trade-mark of the ,stork ,co4 manufacturers of baby things4 #eth4 ,with the application five ,specimens1 or facsimiles1 of the trade-mark as actually used upon the goods1 must be sent to the ,commissioner of ,patents4 #fth4 ,the ,fee for registering a trade-mark is ten dollars1 and this amount should be sent with the application4 ,illustration3 ,,trade ,,mark ,tapestry ,brick ,,registered ,,in ,u4 ,s4 ,,patent ,,office ,trade-mark moulded into the reverse side of every ,tapestry ,brick4 ,the foregoing is a brief resum of the rules for registration4 ,those intending to register trade-marks should obtain exact forms from the ,commissioner of ,patents4 ,a certificate of registration remains in force for twenty years1 and it may be renewed from time to time1 upon expiration1 for like periods of twenty years1 upon payment of a renewal fee of ten dollars4 ,the owner of a trade-mark may prosecute his own application for registration1 but he is advised1 unless familiar with such matters1 to employ a competent attorney4 ,a register of attorneys is kept in the ,patent ,office1 on which is entered the names of all persons entitled to represent applicants before the ,patent ,office in the prosecution of applications for patents1 and any registered attorney will be recognized in the prosecution of applications for registration of trade-marks4 ,procedure of the ,patent ,office ,the examiner in charge of trade-marks examines all applications for registration4 ,if1 after examination1 registration is refused1 the applicant will be notified1 and the reasons for refusal stated1 in order that the applicant may judge of the propriety of prosecuting his application further4 ,if1 on examination of an application1 it appears that a trade-mark is entitled to registration1 the mark will be published at least once in the ,official ,gazette of the ,patent ,office4 ,such publication shall be at least thirty days prior to the date of registration4 ,illustration3 ,,sw ,,cover ,,the ,,earth ,a ,sherwin-,williams advertising symbol4 ,if no notice of opposition be filed within thirty days after such publication1 the applicant or his attorney will be notified of the allowance of his application1 and a certificate of registration will be granted4 ,under certain conditions amendments may be made in an application4 ,every applicant whose mark has been twice refused registration by the ,examiner of ,trade-marks for the same reasons upon grounds involving the merits of the application1 may appeal to the ,commissioner1 in person1 upon a payment of a fee of fifteen dollars4 ,from an adverse decision by the ,commissioner of ,patents an appeal may be taken to the ,court of ,appeals of the ,district of ,columbia4 ,illustration3 ,,trade ,,mark ,,reg4 ,u4 ,s4 ,,pat4 ,,off4 ,the well-known trade-mark of the ,national ,lead ,company4 ,if1 upon examination of an application to register a trade-mark1 the examiner in charge finds that the mark for which registration is sought is identical with1 or essentially similar to1 a trade-mark appropriated to goods of the same descriptive qualities1 for which a certificate of registration has been already issued1 an interference will be declared4 ,when an interference is declared1 the matter in dispute is referred to the ,commissioner of ,patents1 who1 under the rules of the ,patent ,office1 passes judgment upon the points at issue4 ,any person who believes he would be damaged by the registration of a mark may oppose the same by filing a written notice of opposition1 stating the grounds therefor1 within thirty days after the publication of the mark sought to be registered1 which notice of opposition shall be accompanied by the fee required by law 7#aj4jj7 and shall be verified by the person filing the same before one of the officers mentioned in ,section #b of the ,act of ,february #bj1 #aije4a ,an opposition may be filed by a duly authorized attorney1 but such opposition shall be null and void unless duly verified by the opposer1 within a reasonable time after such filing4 ,a duplicate copy of the notice of opposition must be filed1 either with the notice of opposition or within a reasonable time after the filing of the same4 ,illustration3 ,,trade ,e4,w4 ,,mark ,all men1 and some women1 know what this stands for4 ,any person1 deeming himself to be injured by the registration of a trade-mark in the ,patent ,office1 may1 at any time1 make application to the ,commissioner to cancel the registration thereof4 ,such application shall be filed in duplicate1 shall state the grounds for cancelation1 and shall be verified by the person filing the same1 before one of the officers mentioned in ,section #b of the ,act of ,february #bj1 #aije4 ,if it shall appear1 after a hearing before the examiner of interferences1 that the registrant was not entitled to the use of the mark at the date of his application for registration thereof1 or that the mark is not used by the registrant1 or has been abandoned1 and the examiner in charge of interferences shall so decide1 the ,commissioner shall cancel the registration of the mark1 unless appeal be taken within the limit fixed4 ,illustration3 ,f ,a ,,trade ,,mark ,a weak and unimpressive trade-mark4 ,in cases of opposition1 and of applications for cancelation1 the examiner in charge of trade-marks shall forward the files and papers to the examiner in charge of interferences1 who shall give notice thereof to the applicant or registrant4 ,the applicant or registrant must make answer at such time1 not less than thirty days from the day of the notice1 as shall be fixed by the examiner in charge of interferences4 ,the law directs that the owner of a registered trade-mark print1 or impress1 or affix1 in legible letters1 the words3 ,registered in ,u4 ,s4 ,patent ,office or ,reg4 ,u4 ,s4 ,pat4 ,off4 upon such trade-mark wherever it is used1 or sufficiently near it to be discerned whenever the trade-mark is seen4 ,the manner in which this should be done is shown in connection with the ,fine-,form ,maternity ,skirt trade-mark on this page4 ,when1 from the character or size of the trade-mark1 or from its manner of attachment to the article1 this cannot be done1 a label containing a like notice should be affixed to the package or receptacle wherein the article is enclosed4 ,illustration3 ,fine-,form ,,trade ,,mark ,,maternity ,,skirt ,registered in ,,us ,pat ,office ,shows method of exhibiting registry notice in connection with a trade-mark4 ,it is important that this be done1 otherwise1 in a suit for infringement by a party who has failed to give such notice of registration no damages shall be recovered1 except on proof that the defendant was duly notified of infringement1 and continued the same after such notice4 ,registration in ,foreign ,countries ,american owners of trade-marks who expect to do business in foreign countries should not neglect the registration of their trade-marks abroad4 ,a failure to observe this precaution has led1 in some cases1 to a situation where the ,american owner1 entering the foreign field1 found his trade-mark already appropriated4 ,the trade-mark laws of various foreign countries differ greatly1 in some instances1 from the ,united ,states law4 ,a manufacturer who desires to do business in a foreign country should consult a trade-mark attorney who specializes in foreign trade-mark registration and protection1 and be guided by his advice4 ,classification of ,merchandise ,the right to use a trade-mark is limited to the class of merchandise for which it is registered1 and to the goods1 falling within that class1 on which it has been actually used4 ,for the purpose of classification the ,patent ,office has issued a list of forty-nine general classes of merchandise4 ,an applicant for the registration of a trade-mark must specify the class of merchandise with which his mark has been used1 and must describe the particular goods in that class on which it has been used4 ,in case his application is granted1 his right to use the trade-mark is confined to the line of products named in his application4 ,the list follows3 #a4 ,raw or partly prepared materials4 #b4 ,receptacles4 #c4 ,baggage1 horse equipments1 portfolios1 and pocket-books4 #d4 ,abrasive1 detergent1 and polishing materials4 #e4 ,adhesives4 #f4 ,chemicals1 medicines1 and pharmaceutical preparations4 #g4 ,cordage4 #h4 ,smokers' articles1 not including tobacco products4 #i4 ,explosives1 firearms1 equipments1 and projectiles4 #aj4 ,fertilizers4 #aa4 ,inks and inking materials4 #ab4 ,construction materials4 #ac4 ,hardware and plumbing and steam-fitting supplies4 #ad4 ,metals and metal castings and forgings4 #ae4 ,oils and greases4 #af4 ,paints and painters' materials4 #ag4 ,tobacco products4 #ai4 ,vehicles1 not including engines4 #bj4 ,linoleum and oiled cloth4 #ba4 ,electrical apparatus1 machines1 and supplies4 #bb4 ,games1 toys1 and sporting goods4 #bc4 ,cutlery1 machinery1 and tools1 and parts thereof4 #bd4 ,laundry appliances and machines4 #be4 ,locks and safes4 #bf4 ,measuring and scientific appliances4 #bg4 ,horological instruments4 #bh4 ,jewelry and precious-metal ware4 #bi4 ,brooms1 brushes1 and dusters4 #cj4 ,crockery1 earthenware1 and porcelain4 #ca4 ,filters and refrigerators4 #cb4 ,furniture and upholstery4 #cc4 ,glassware4 #cd4 ,heating1 lighting1 and ventilating apparatus1 not including electrical apparatus4 #ce4 ,belting1 hose1 machinery packing1 and non-metallic tires4 #cf4 ,musical instruments and supplies4 #cg4 ,paper and stationery4 #ch4 ,prints and publications4 #ci4 ,clothing4 #dj4 ,fancy goods1 furnishings1 and notions4 #da4 ,canes1 parasols1 and umbrellas4 #db4 ,knitted1 netted1 and textile fabrics4 #dc4 ,thread and yarn4 #dd4 ,dental1 medical1 and surgical appliances4 #de4 ,beverages1 non-alcoholic4 #df4 ,foods and ingredients of foods4 #dg4 ,wines4 #dh4 ,malt extracts and liquors4 #di4 ,distilled alcoholic liquors4 #ej4 ,merchandise not otherwise classified4 7,note3 ,class #ah was abolished ,feb4 #bd1 #aiji47 ,as a result of this feature of the law products in various non-competitive lines sometimes bear the same names4 ,there is1 for example1 a ,yale#b lock and a ,yale motorcycle1 an ,ideal hairbrush and an ,ideal fountain pen1 a ,packard piano and a ,packard automobile1 a ,skidoo soap and a ,skidoo ,marine engine4 ,state ,trade-,mark ,laws ,most states have some kind of a trade-mark law1 many of them good ones1 and about a dozen have strong penal codes covering the subject1 under the term of counterfeiting1 while others are able to do what the ,united ,states courts cannot do--actually mete out imprisonment to those who infringe4 ,pennsylvania's law in this respect is particularly thorough4 ,the ,federal statutes concerning trade-marks apply to the entire country4 ,few large concerns doing a national business register in the states4 ,most of them go to the ,patent ,office and secure national registration4 ,there is nothing in any of the state laws which make it safer to register by states1 since ,california's obnoxious law has been repealed1 but in some cases1 where persistent infringers are at work1 owners of trade-marks secure state registration as an extra precaution4 ,,footnotes3 #a ,the verification required by this section may be made before any person within the ,united ,states authorized by law to administer oaths1 or when the applicant resides in a foreign country1 before any minister1 charg d'affaires1 consul1 or commercial agent holding commission under the government of the ,united ,states1 or before any notary public1 judge1 or magistrate having an official seal and authorized to administer oaths in the foreign country in which the applicant may be1 whose authority shall be proved by a certificate of a diplomatic or consular officer of the ,united ,states4--7,extract from ,section #b1 ,act of #aije47 #b ,the name ,yale1 or any similar name1 can be registered as a trade-mark only when the applicant can take advantage of the ten years' clause4 ,the word ,yale as applied to hosiery has been refused registration on the ground that it is a geographical term4 ,,chapter ,,ii ,essentials of a ,valid ,trade-,mark ,to a layman the trade-mark law seems1 at first consideration1 to be a crystallized system of arbitrary rules without a fundamental underlying principle4 ,a study of its application will show that this is a mistaken view of the case4 ,as a matter of fact1 the law is excellently framed1 and is based on a broad principle which draws a just line of cleavage between the rights of an individual and his encroachment upon the rights of others4 ,illustration3 ,,trade ,,mark ,thomas ,a ,edison ,an illustrious and valuable trade-mark4 ,in the practical workings of a law which deals with commercial activities in their most highly developed phase1 in a sphere where the ingenuity of men is on fertile ground1 in cases where the weight of a hair would make the difference between yea and nay1 it is inevitable that many fine distinctions must be drawn4 ,the courts1 by contradictory decisions1 have here and there brought confusion into the practice of the ,patent ,office1 as applied to trade-mark procedure1 but1 on the whole1 the judicial interpretation of the law has been fairly uniform and consistent4 ,it should be mentioned here1 for the reader's information1 that the attitude of the ,patent ,office toward applications for the registration of trade-marks has been criticized1 on various occasions1 by some of those who have had dealings with it4 ,its rulings have been characterized as narrow and illiberal1 especially in the matter of trade-marks alleged to be descriptive in their nature4 ,in the preceding chapter we laid down briefly the requisites of a valid trade-mark4 ,we shall now discuss these requirements more fully1 using specific and generally well-known examples of trade-marks to illustrate our meaning4 ,a ,portrait of a ,living ,individual ,cannot be ,registered as a ,trade-,mark ,unless by ,consent of the ,individual ,whose ,portrait is ,used1 or1 if a ,minor1 by ,consent of his ,legal ,guardian ,this section of the law is based on the recognized right of any person to prohibit the unauthorized reproduction of his portrait for any advertising purpose4 ,in some of the states--,new ,york1 for example--there are state laws specifically forbidding such unauthorized reproduction4 ,illustration3 ,registered as a trade-mark by the ,saturday ,evening ,post4 ,while the law prohibits the registration of a living individual's portrait as a trade-mark1 without that person's consent1 it is allowable to use the portrait of a historical character4 ,the trade-mark of the ,robert ,burns ,cigar is a picture of the poet ,burns1 with his facsimile signature4 ,pictures of ,franklin1 ,napoleon1 ,henry ,clay1 ,bismarck1 and many other famous men are used as trade-marks4 ,a cereal recently placed on the market under the name of ,washington ,crisps carries ,george ,washington's portrait on the package4 ,benjamin ,franklin's face is registered as a trade-mark by the ,curtis ,publishing ,company1 and is printed in this connection on the editorial page of the ,saturday ,evening ,post4 ,illustration3 ,,mennen',s ,,borated ,,talcum ,,trade ,,mark ,this face has been printed more times than any other portrait ever used in advertising4 ,a celebrated instance of a face used as a trade-mark is shown in the picture of ,gerhard ,mennen on this page4 ,mennen's ,talcum ,powder was produced by ,gerhard ,mennen1 who had his own picture put on each package as an identification to the purchaser4 ,after years of use1 his portrait was formally registered in the ,patent ,office4 ,another famous face is that of ,w4 ,l4 ,douglas1 shoe manufacturer and ,ex-,governor of ,massachusetts4 ,a very effective trade-mark is a combination of ,thomas ,a4 ,edison's portrait and signature1 used with the ,edison ,phonograph4 ,edison is known by reputation to every ,american1 and his picture and signature used in connection with a mechanical device1 give it the stamp of high excellence4 ,imagine how much more difficult the selling effort of the ,edison ,phonograph ,company would have been if they had called their instrument ,the ,voltex ,phonograph1 for example1 or some similar name4 ,everybody has seen the ,woodbury face1 which is identified with ,woodbury's ,facial ,soap1 and other preparations of the ,andrew ,jergens ,company of ,cincinnati4 ,this is a very valuable trade-mark1 on account of the extensive advertising1 running through many years1 that has been given it4 ,one of the striking features of this trade-mark is that the head seems to be neatly decapitated just under the chin4 ,this odd appearance makes the memory of this picture stick in the reader's mind longer than any ordinary portrayal of a human face4 ,a ,valid ,trade-,mark ,cannot ,be any ,arrangement of ,words or ,devices ,descriptive of the ,goods with which ,they are ,used1 or of the ,character or ,quality of the ,goods ,the intent of the law here is to prevent the individual appropriation of general terms descriptive of a class of goods4 ,if it were allowable to register and protect such phrases as ,the ,best ,soap in the ,world1 applied to a certain brand of soap1 for instance1 it is easy to see that all desirable superlatives and descriptive words would soon be appropriated1 to the detriment of other concerns in the same line of trade4 ,therefore1 the law makes strict provision that a trade-mark shall not be descriptive in any sense4 ,though this is the intent of the law1 in its working out the line seems to be finely drawn in some cases4 ,royal has been held to be a valid trade-mark for a baking powder on the ground that it has been long used as the name of the total output of a factory1 and that it has become to the public mind a designation of origin4 ,it seems difficult for a layman to reconcile this decision with that of another court1 which held that ,royal is not a valid trade-mark for flour1 as it indicates quality and is incapable of exclusive appropriation4 ,the word ,ideal is held to be a valid trade-mark for a fountain pen1 its use in this connection being fanciful and not descriptive4 ,the word ,naphtha1 used as a name for a soap with naphtha as an ingredient1 was held to be descriptive1 and therefore not registrable as a trade-mark1 to the exclusion of the goods of other manufacturers1 although the owners1 ,fels ,company1 of ,philadelphia1 had advertised it extensively throughout a considerable period of time4 ,fitmeeasy1 as applied to corsets1 was considered descriptive4 ,maltha was refused registration for a brand of paving asphalt4 ,it appears that ,maltha means liquid asphalt and is in general use in the trade with that meaning4 ,elastic ,seam1 a name used to designate drawers having an elastic seam at the side1 is purely descriptive1 and was so considered by the court in the case of ,scriven v ,north4 ,on the other hand1 the word ,elastic1 when applied to bookcases1 is held to be a fanciful word1 not descriptive1 and is a valid trade-mark4 ,application was made by a brewer for the registration of the word ,star1 accompanied by a picture of a six-pointed star1 as a trade-mark for beer4 ,opposition by another brewer was filed1 and it was shown that both the word ,star and the symbol had been used for ages in ,germany1 the home of beer1 as a general sign of the brewing business1 in the same sense that a striped pole denotes a barber4 ,it was claimed1 and the claim was judicially sustained1 that both the word ,star and its symbol are indicative of the brewing business in general and1 as such1 are common to the trade1 and cannot therefore be considered valid trade-marks for beer4 ,illustration3 ,,the ,,atlas ,,portland ,,cement ,,co ,,portland ,,atlas ,,cement #cj ,,broad ,,st4 ,,new ,,york ,,lehigh ,,portland ,,cement ,,company ,,lehigh ,,portland -,,works- ,,ormrod ,,lehigh ,,co ,,penna4 ,,cement ,,allentown1 ,,pa4 ,,alpha ,,portland ,,cement ,,company ,,alpha ,,portland ,,general ,,office ,,easton4 ,,penna ,,cement ,,manufacturers ,some ,portland ,cement ,trade-,marks4 ,a flour manufacturer conceived the idea of selling his product in barrels made by staves of alternately light and dark wood--striped barrels1 in fact4 ,he then desired registration for a trade-mark which consisted of a pictorial representation of this form of barrel4 ,it was held that this mark was not registrable1 as it was descriptive of the barrel4 ,better than ,mother's ,mince ,meat was held to be invalid as a trade-mark1 as it is obviously indicative of quality4 ,illustration3 ,,columbus ,,sandur ,,sanitary--,,durable ,,patented ,a complicated and involved trade-mark4 ,a descriptive word in a foreign language cannot be exclusively1 appropriated as a trade-mark4 ,the word ,matzoon in ,armenian means fermented milk4 ,it was held1 in the case of ,dadirrian v ,yacubian that this word1 applied to a preparation of fermented milk1 was not a valid trade-mark4 ,arbitrary symbols1 numbers or words in common use in any line of trade to designate grades1 or varieties1 of products1 are held to have become descriptive by usage4 ,lake1 ,cylinder1 and ,new ,york are trade names used to indicate qualities of glass4 ,they were refused registration on the ground that they were descriptive appellatives4 ,note that one of the names1 ,new ,york1 would have been considered invalid on the ground of being a geographical term4 ,a ,no4 #a1 ,a ,x ,no4 #a and ,no4 #a1 used by a plow manufacturer to indicate size and shape of plows1 were considered descriptive terms1 and1 therefore1 not valid trade-marks4 ,while descriptive numbers cannot be registered as trade-marks1 it is permitted to register numbers that are used as arbitrary symbols4 ,a celebrated instance of a number used as a trade-mark is #dgaa used to designate a line of toilet articles4 ,when the manufacture of the famous #dgaa ,perfume began1 the owner's place of business was at #dgaa ,glockengasse1 in ,cologne4 ,the street number #dgaa was placed on the label1 and it is to-day one of the oldest trade-marks in existence1 having been used for about one hundred and twenty-five years4 ,the house at #dgaa ,glockengasse has long since disappeared1 and #dgaa is now only an arbitrary symbol4 ,a manufacturer of hooks and eyes applied for registration of the phrase ,rust8 ,never6 as a trade-mark4 ,registration was refused1 as the mark was held to be descriptive1 indicating that the hooks and eyes would never rust4 ---------------------------------------- ------------------------- ,the ,j4 ,w4 ,t4 ,advertising ,service ,an advertising agency's claim to an advertiser's consideration must be based on the service that it gives4 ,service consists of3-- #ast4 ,information as to advertising mediums1 their circulations1 rates and qualities4 #bnd4 ,advice resting on actual experience4 #crd4 ,knowledge of commodities1 their composition1 prices and methods of sale4 #dth4 ,knowledge of merchandising conditions4 #eth4 ,knowledge of the buying public1 its needs1 its habits and its income4 #fth4 ,the ability to plan advertising campaigns--that is1 to grasp the whole subject and work out its details in conformity with a general principle4 #gth4 ,knowledge of trade-marks1 their use in advertising1 and methods of protecting them from infringement4 #hth4 ,the ability to write advertising that will create a desire for the advertised product4 #ith4 ,the artistic ability to make advertising attractive4 ,the service of the ,j4 ,walter ,thompson ,company covers all these functions of an advertising agency4 ,we have had a continuous experience of forty-six years in planning and carrying out advertising campaigns4 ,we have reached the stage of development where we know advertising as a swimmer knows the water4 ,doesn't it seem good business to entrust your advertising to an agency that really knows8 ,j4 ,,walter ,,thompson ,,company ,new ,york3 #dd ,east #bcrd ,street ,boston3 #bja ,devonshire ,street ,cincinnati3 ,first ,national ,bank ,bldg4 ,st4 ,louis3 ,odd ,fellows ,bldg4 ,chicago3 ,the ,rookery ,cleveland3 ,swetland ,bldg4 ,detroit3 ,trussed ,concrete ,bldg4 ,toronto3 ,lumsden ,bldg4 ,london3 #cc ,bedford ,st41 ,strand ---------------------------------------- ------------------------- ,it should be noted that there are valid trade-marks that seem to be descriptive1 and which no doubt convey to the purchaser the suggestion of quality1 but which are not really descriptive1 but merely suggestive4 ,an example of this is ,hydegrade as applied to fabrics4 ,this word is a combination of ,hyde 7the name of the proprietor7 and ,grade4 ,the word1 by virtue of its sound1 brings to the mind the idea of high-grade--a very fortuitous circumstance1 doubtless1 in the opinion of the owners4 ,illustration3 ,brenlin ,affixed by using perforated letters4 ,trade-mark appears on every yard of ,brenlin window shades4 ,names1 descriptive in their nature1 and therefore not registrable under the ,act of #aije1 may1 nevertheless1 be protected by the law of unfair competition1 if the circumstances are such as clearly to indicate that a new user of the name has adopted it for the purpose of trading upon the reputation of an older or more widely known concern4 ,a ,trade-,mark ,must ,not ,misrepresent the ,quality1 ,composition1 ,character1 or ,origin of the ,product ,a fraud cannot be legalized1 and a misrepresentation of any kind1 made by a trade-mark1 renders it invalid4 ,syrup of ,figs was held to be invalid as a trade-mark1 and not protectable1 in a case where the product was shown to have only a trace of fig syrup4 ,the title ,american ,sardines1 applied to fish which were not sardines1 was considered a misrepresentation1 and was refused registration4 7,note3 ,even if not a misrepresentation1 it would be considered invalid1 as it is descriptive47 ,in the case of ,wrisley v ,iowa ,soap ,company1 it was held that the name ,old ,country ,soap used on soap and advertised in such a way as to lead people to believe that it was made in ,europe1 was deceptive and protection to the name could not be given4 ,illustration3 ,b ,a trade-mark that may be considered good or bad1 depending on the way you look at it4 ,an interesting case is that of ,memphis ,keeley ,institute v ,leslie ,e4 ,keeley ,co4 7#add ,fed4 ,r4 #fbh2 #aee id4 #ifd74 ,the ,memphis ,keeley ,institute made a contract with the ,leslie ,e4 ,keeley ,company to represent the ,keeley ,company in ,tennessee in treating inebriates4 ,the ,keeley ,company agreed to sell the ,keeley ,cure to no one in ,tennessee except through the ,memphis ,institute4 ,after a while the ,keeley ,company claimed that the ,memphis ,institute had violated its contract1 and refused to furnish any more of the treatment to the ,memphis concern4 ,the ,memphis ,institute continued to advertise itself as the representative of the ,keeley ,company1 and to assert that its treatment was that of the ,keeley ,company4 ,illustration3 ,,steero ,a coined word used as a trade-mark4 ,suit being brought1 the ,memphis ,institute alleged that the complainant's representations of the ingredients of its remedies were untrue and misleading4 ,the ,keeley ,company had extensively advertised its treatment as the ,gold ,cure4 ,it was shown in court that it contained no gold in any form2 that in the beginning chloride of gold had been used in one instance1 and that it had almost killed the patient2 and that special bottles of the cure had been prepared with gold in them in order that a chemist might be deceived2 and that this chemist's analysis of the spurious bottles had been extensively advertised as showing that gold was in the remedy4 ,illustration3 ,,arlington ,,mills ,,skill ,,wins ,,favor ,a simple and effective trade-mark4 ,on the evidence of these misrepresentations1 the ,court of ,appeals reversed the decision of the lower court1 and dismissed the complaint4 ,the doctrine of law that misrepresentation is a bar to protection of a trade-mark or a trade-name has been clearly established by many decisions similar to the above4 ,a ,trade-,mark ,must ,not ,be ,similar to a ,trade-,mark previously ,registered for the same ,class of ,merchandise ,when a pictorial or symbolic device has been registered1 registration is refused to any other mark1 for the same class of merchandise1 composed of words describing the pictorial or symbolic device already registered4 ,or1 vice versa1 if the wording has been registered first1 a symbol with the same meaning will be denied registration4 ,for example3-- ,a trade-mark consisting of the conventional representation of a fox1 unaccompanied by lettering1 would not be a valid trade-mark if the word ,fox had already been registered for the same class of merchandise4 ,in either case the goods would be called the ,fox brand4 ,the practice is to refuse registration of a mark in cases where1 although there may be no literal similarity1 there is a similarity in ideas4 ,edelweiss-,maltine was refused registration on the ground that it conflicted with ,maltine1 a trade-mark already registered for goods of the same description4 ,certosa was refused registration as a trade-mark for flour on account of its similarity to the word ,ceresota already registered4 ,the ,patent ,office has held that in an interference between two trade-marks1 one consisting of the pictorial representation of a bouquet of flowers1 and the other consisting of the word ,bouquet1 applied to the same class of goods1 that the marks were identical in meaning4 ,nassac having been registered as a trade-mark1 the word ,nayassett was refused registration on the ground of similarity4 ,thereupon1 the owner of the ,nayassett mark obtained the consent of the owners of ,nassac to the registration of ,nayassett4 ,this did not alter the case1 in the opinion of the ,commissioner of ,patents1 who held that the law was mandatory1 and was not affected by agreement among the owners of conflicting marks4 ,in the case of ,mc,lean ,co4 v ,adams ,co4 7#acf ,official ,gazette1 #ddj7 it was held that there was no conflict between ,victoria and ,victor1 a mark already registered for the same class of merchandise4 ,a picture of ,queen ,victoria's head was shown on a medallion1 associated with the word ,victoria4 ,the ,victor trade-mark consisted of the words ,the ,victor with a device showing a knight on horseback4 ,as the similarity between the marks was obviously slight and superficial1 and was outweighed by the dissimilar features1 it was held that the ,victoria trade-mark was entitled to registration4 ,it was held that there was no conflict between two trade-marks for stove polish1 one consisting of the word ,raven with the representation of a raven sitting on a limb of a tree1 and the other consisting of the word ,crow associated with a picture of a crow1 also perched on a limb1 but in a different position4 ,in case of conflicting marks the test of similarity is whether the marks are sufficiently alike in sound or in appearance1 or in intention1 to mislead the purchaser4 ,a ,trade-,mark ,may ,not ,be a ,geographical ,name or ,term ,the object of this provision of the law is to prohibit the appropriation of the name of a place by an individual to the detriment of other manufacturers in the same locality1 as well as to prevent a misrepresentation of the place of origin of a trade-marked article4 ,this restriction does not apply to geographical names used in an arbitrary or fanciful sense4 ,illustration3 ,,name ,,dupont ,,on ,,every ,,brush ,this shows how the reader's attention is called to the ,dupont brush trade-mark in advertisements4 ,the ,fleischman ,company1 well-known bakers of ,new ,york1 bake and sell a ,vienna ,bread4 ,the term ,vienna used in this connection was held1 in a test case1 to be a valid trade-mark1 although it is a geographical name4 ,in the decision bearing on the ,vienna trade-mark for bread1 the ,court said3 ,as a mark for bread it is purely arbitrary1 and is in no manner descriptive of the ingredients or the quality of the article4 ,no deception is practised1 because the place of its manufacture is given1 and it is known that bread cannot be imported from abroad for use here4 ,durham1 a name applied to tobacco1 has been judicially held not to be a valid trade-mark against another manufacturer located in the town of ,durham4 ,while any tobacco manufacturer in ,durham has a right to call his tobacco ,durham ,tobacco1 he cannot imitate the label of the original ,durham tobacco1 or use the advertising symbol of a bull1 without being liable to injunction and a suit under the law of unfair competition4 ,french1 applied to paints1 was considered a geographical name1 and not valid as a trade-mark4 ,french ,tissue--the name of a court-plaster--was considered invalid1 the first word being a geographical term and the second a descriptive word4 ,the word ,celtic1 however1 has been considered valid as a trade-mark for tea4 ,the ,commissioner of ,patents1 before whom the case went on an appeal1 decided that while ,grecian1 ,roman and ,oriental had been held to be geographical1 as each of these terms refers to a certain section of the globe1 the word ,celtic is not4 ,there seems to be no authority to sustain the popular opinion that ,celtic refers only to ,ireland4 ,the dictionary defines ,celtic as pertaining to the ,celts1 of whom the ,irish are only a branch4 ,it has never been applied to any specific locality4 ,yucatan applied to leather2 ,manhattan as the name of sewing-machines2 and ,pittsburgh as a trade-mark on pumps1 have all been held to be geographical1 and therefore invalid4 ,in a recent decision of the ,supreme ,court1 the exclusive right of the ,carthusian monks to use their well-known trade-mark for their ,liqueur ,chartreuse1 was upheld4 ,this right was attacked on the ground that ,chartreuse is a geographical name1 the liqueur having been made at a monastery called for many centuries ,la ,grande ,chartreuse4 ,in his opinion ,mr4 ,justice ,hughes said3 ,if it be assumed that the monks took their name from the region in ,france in which they settled in the eleventh century1 it still remains true that it became peculiarly their designation4 ,and the word ',chartreuse'1 as applied to the liqueur1 which for generations they made and sold1 cannot be regarded in a proper sense as a geographical name4 ,it had exclusive reference to the fact that it was the liqueur made by the ,carthusian monks at their monastery4 ,so far as it embraced the notion of place1 the description was not of district1 but of the monastery of the order--the abode of the monks--and the term1 in its entirety1 pointed to production by the monks4 ,while a geographical name may be upheld as a valid trade-mark1 under exceptional conditions--as shown in the ,fleischman case--the safe plan to follow is to avoid names of this character when selecting a trade-mark4 ,under the collection of legal precedents constituting the law of unfair trade1 the owner of a geographical trade-mark may successfully defend his right to its exclusive use if he has acquired such a reputation under it that it has grown to be1 in the public mind1 an arbitrary designation of his goods4 ,the ,american ,waltham ,watch ,company1 manufacturing watches at ,waltham1 ,massachusetts1 has legally prevented other manufacturers in ,waltham from calling their product ,waltham watches unless the name is used with some accompanying statement which clearly distinguishes these watches from the original ,waltham watch4 ,there is an ,elgin ,watch1 a ,kalamazoo ,stove and a ,bristol ,fishing-,rod1 to single out a few examples of geographical terms used as trade-marks4 ,the exclusive use of these trade-marks by the makers of the well-known articles which they represent can no doubt be legally sustained on the ground that these names have become arbitrarily identified1 through years of use and extensive distribution1 with the articles to which they are applied1 and that their indiscriminate use would cause confusion in the public mind and loss to the original owners4 ,their security as trade-marks rests1 not upon the letter of the trade-mark act1 but upon the law of unfair trade4 ,a ,trade-,mark ,must ,not ,consist of the ,insignia of the ,american ,national ,red ,cross ,the ,act of #aije 7the trade-mark statute7 is silent on the subject of the ,red ,cross as a trade-mark4 ,its use as a trade-mark1 or as an advertisement1 or in trade in any form1 is prohibited by the act incorporating the ,american ,national ,red ,cross1 approved ,january #e1 #aije4 ,an extract from this act1 bearing on this subject1 is quoted here3 ,nor shall it be lawful for any person or corporation1 other than the ,red ,cross of ,america1 not now lawfully entitled to use the sign of the ,red ,cross1 hereafter to use such sign or any insignia colored in imitation thereof for the purposes of trade1 or as an advertisement to induce the sale of any article whatsoever4 ,if any person violates the provisions of this section1 he shall be guilty of a misdemeanor and shall be liable to a fine of not less than one nor more than five hundred dollars1 or imprisonment for a term not exceeding one year1 or both1 for each and every offense4 ,the fine so collected shall be paid to the ,american ,national ,red ,cross4 ,in the ,official ,gazette there is reported the case of an applicant who applied for registration of a label for cough syrup1 containing the emblem of the ,red ,cross and the words ,red ,cross4 ,this label having been refused registration1 the applicant submitted it in an amended form with the ,red ,cross emblem left out1 but with the wording left intact4 ,it was contended by him that the ,act of ,january #e1 #aije1 prohibited only the use of the sign of the ,red ,cross1 and that by implication the words ,red ,cross should be considered registrable4 ,this contention of the applicant was held by the ,commissioner to be an attempt to evade the spirit of the law1 and registration was refused4 ,a trade-mark containing the ,red ,cross emblem does not fall within the prohibition expressed in the statute if it has been in exclusive use by the applicant for ten years prior to #aije4 ,a ,trade-,mark ,must ,not ,be ,merely the ,name of an ,individual1 ,firm1 ,corporation1 or ,association unless said ,name is ,written1 ,printed1 ,impressed or ,woven1 in some ,particular or ,distinctive ,manner1 or is ,used in ,connection with the ,portrait of the ,individual ,a surname cannot be the exclusive property of an individual1 because there may be other persons who have an equal right to use the same name4 ,a man by the name of ,jones may go into the business of manufacturing cigars1 for example1 and he may call his product ,jones ,cigars and1 by his industry and ability1 create a valuable business4 ,but any other ,jones has a right to manufacture and sell cigars1 if he feels so inclined1 and the first ,jones cannot prevent it4 ,it is true that1 under the law of unfair trade1 he may compel all other ,joneses to mark their cigars in some distinctive manner1 in order that purchasers may not be misled into the belief that they are buying the product of the original ,jones1 when such is not the case4 ,this principle is specifically illustrated in the famous ,walter ,baker cases1 of which a brief resum is given in another chapter4 ,an obvious intent of the framers of the ,act of #aije was to discourage the use of the names of individuals1 firms1 corporations and associations as trade-marks4 ,consequently1 it was provided in the act that names of this character should not be registered unless they were written1 printed1 impressed or woven in some particular or distinctive manner1 or used in connection with the portrait of the individual4 ,the ruling of the ,patent ,office1 which has been sustained by the courts1 is that the particular or distinctive manner of presenting the name must exhibit a peculiarity so pronounced that it dominates the name1 and throws it into relatively secondary importance4 ,in other words1 a trade-mark of this character1 to be registrable1 must possess more of the quality of a device than of a name4 ,it is conceded that an autograph signature1 like ,wilcox's1 shown on this page1 is entitled to registration4 ,soon after the law went into effect a curious tangle developed in the application of this feature of the act4 ,it was found that the ,patent ,office--and its stand was upheld by the ,court of ,appeals of the ,district of ,columbia--would not sanction the registration of a name possessing all the technical requisites of a valid trade-mark if it happened to be the name of the applicant1 unless it was written or printed in some particular and distinctive form4 ,illustration3 ,wilcox's ,,trade ,,mark ,,registered ,written in a particular and distinctive manner within the meaning of the law4 ,to a legal mind there may have been some good reason for this attitude of the court1 but a layman of ordinary common sense can find nothing in the statute that would justify a refusal to register a trade-mark1 valid in other respects1 merely because it happened to be the name of the person1 corporation1 or firm making the application4 ,the name ,success1 a valid mark in every essential respect1 was refused registration as a trade-mark for ,success ,magazine1 because it formed part of the name of the applicant1 ,the ,success ,magazine ,company4 ,the ruling of the court left the implication that if ,success ,magazine had been published by ,john ,brown ,co41 or by any other concern other than the ,success ,magazine ,company1 registration would have been granted4 ,it was held that a registration of the name ,success would be a violation of that provision of the law providing that a mark consisting merely of the name of the applicant could not be registered4 ,the word ,champion1 as a trade-mark for locks1 was rejected by the ,patent ,office on the ground that it formed part of the name of the ,champion ,safety ,lock ,company4 ,the word ,champion is arbitrary and fanciful1 and could no doubt have been registered by any other firm than the ,champion ,safety ,lock ,company4 ,many other similar cases developed during the first six years of the law's application4 ,this situation led to the passage on ,february #h1 #aiaa1 of the following amendment of this section of the ,act of #aije3 ,provided1 further that nothing herein shall prevent the registration of a trade-mark otherwise registrable because of its being the name of the applicant or a portion thereof4 ,it is now practicable to register the name of any individual1 firm1 corporation or association--even if it is the name of the applicant--provided it is written1 printed1 impressed or woven1 in some particular or distinctive manner4 ,illustration3 ,stewart ,hartshorn ,this name turns up when the time comes to hang the window shades4 ,a familiar example of the name of an individual used as a trade-mark is to be found on every ,hartshorn shade roller1 where the name ,stewart ,hartshorn1 written as an autograph signature1 has been used for many years4 ,the name ,huyler's1 applied to confectionery1 is another case of the same kind4 ,the name ,john ,wanamaker has1 by long usage in connection with a highly successful mercantile business1 become the most valuable trade-mark in the department store world4 ,stewart ,hartshorn1 ,huyler's1 and ,john ,wanamaker are all common law marks1 fully protected by the law of unfair trade4 ,a ,trade-,mark ,must ,not ,be any ,design or ,picture ,adopted by a ,fraternal ,society as its ,emblem ,the intent of the law is to prohibit any individual from trading on the reputation of a fraternal order4 ,registration was refused for the phrase ,knights of ,labor as a trade-mark on whiskey4 ,a ,trade-,mark ,must ,not ,consist of1 or ,comprise1 the ,flag or ,coat of ,arms or other ,insignia of the ,united ,states1 or any ,simulation thereof1 or of any ,state1 or ,municipality1 or of any ,foreign ,nation ,it has been decided in one case where an application was made to register the coat of arms of ,maryland1 that it could not be registered even under the ten years' clause4 ,simulations of the coat of arms of the ,united ,states1 or of the ,united ,states flag1 have been denied registration4 ,the ,u4 ,s4 ,sanitary ,manufacturing ,co4 was refused registration for a trade-mark consisting of the letters ,u4 ,s4 with a background of a shield similar to that of the conventional ,united ,states shield4 ,in the case of ,popoff ,frres1 importers1 registration of a mark including the ,russian coat of arms was refused1 although proof was shown that the ,russian government had authorized the applicants to use this coat of arms as their trade-mark4 ,the ,commissioner held that the law could not be set aside by agreement4 ,the reader is doubtless familiar with the trade-mark of the ,united ,cigar ,stores--a shield consisting of a background at the top with the word ,cigars on it1 with the word ,united forming the lower part of the design4 ,the vertical lines form seven heavy strokes1 corresponding to the seven red stripes in the ,american flag4 ,this design is suggestive of the ,united ,states coat of arms1 but it is so cleverly worked out that it does not come within the prohibition expressed in the law4 ,suggestive as this design is of the ,american shield1 this feature is secondary1 after all1 for the design is dominated by the lettering ,united and ,cigars4 ,a ,trade-,mark ,must ,not ,be a ,form1 a ,color1 a ,shape1 or a ,material ,it is clear that a trade-mark must be a mark--not a box1 or an envelope1 or container of any kind4 ,in a case where it was sought to register a drum-shaped box used to contain ,drum ,collars1 it was held that1 if such claims were allowed1 the forms and materials of packages to contain articles and merchandise would be rapidly taken up1 and appropriated by dealers1 until some one bolder than the others1 might go to the very root of things1 and claim the primitive brown paper and tow strings4 ,a product itself cannot be registered as a trade-mark1 for the mark must be different and separate from the thing marked4 ,illustration3 ,no4 #dgaa ,one of the oldest trade-marks in existence4 ,used for generations as a trade-mark of ,johann ,maria ,farina toilet preparations4 ,it would be unfair to give an exclusive right to use any particular color to an individual1 consequently a color is not a valid trade-mark4 ,a seed-grower1 selling his product in bags1 applied for registration of a red bag as a trade-mark1 but registration was refused4 ,a fountain pen manufacturer was refused registration for a trade-mark for fountain pens1 consisting of a red feed bar contrasted with a black reservoir of hard rubber4 ,the applicant stated that the feed bar was colored red in the manufacturing process1 and that it was composed of rubber made by a special formula4 ,the ,court of ,appeals held that registration of this device would give the applicant a virtual monopoly of this feature4 ,the ,underwood ,typewriter ,co4 applied for registration of the face-plate of their machine as a trade-mark4 ,it is a principle of the trade-mark law that a part of a machine1 or the form of an article1 cannot be a valid trade-mark4 ,reporting this case1 the ,bulletin of the ,united ,states ,trade-mark ,association for ,january1 #aijh1 says3 ,the applicant1 in the instance under adjudication1 sought to avoid this principle of law1 by contending that the case did not fall within that doctrine1 for the reason that the plate which he sought to register was not really a part of the machine1 since it could be removed without changing the shape of the machine1 or interfering with its operation1 or altering its structure4 ,it was held1 however1 that while the plate performed none of the mechanical functions of the machine it was nevertheless a part of the machine as actually constructed1 and was as essential as the frame itself to the production of a commercial article4 ,it was necessary to give a finished appearance to the machine1 which would not be salable without it4 ,to recognize the applicant's right to a trade-mark in that feature of the machine1 would enable the applicant to prevent the manufacture of its machines as constructed to-day1 after all the patents covering it had expired1 since no salable machine could be produced without infringing the trade-mark4 ,trade-,marks ,are ,not ,registrable if against ,public ,policy ,the common good takes precedence of the rights of individuals4 ,this is a principle of equity which has run through the fabric of ,anglo-,saxon law for a thousand years4 ,we find it developed into diverse and widely separated forms4 ,on one hand1 it appears as the right of eminent domain2 in another form we find it appearing in a law prohibiting the use of the national flag for advertising purposes4 ,this principle is observed by the ,patent ,office and the courts in dealing with questions relating to trade-marks4 ,a trade-mark1 otherwise registrable1 and consisting of a device or wording not prohibited by the statute1 may be refused registration if opposed to public policy4 ,the application of the ,banner ,cigar ,mfg4 ,co4 7#ach ,official ,gazette1 #ebh7 for registration of the portrait and facsimile signature of the late ,ex-,president ,grover ,cleveland as a trade-mark was refused1 the ,commissioner of ,patents holding that the use of a trade-mark of this character would detract from the dignity of the high office of ,president4 ,the portrait and facsimile signature of ,thomas ,jefferson was refused registration on the same grounds4 ,it should be noted that there is no law to prevent any manufacturer desirous of using the name and portrait of an ,ex-,president 7not living7 as a trade-mark if he cares to do so1 but he cannot register such a trade-mark1 and his ability to protect it in the courts in case of infringement is conjectural4 ,the word ,copyright1 the name of a brand of flour1 was refused registration on the ground that its registration would be opposed to public policy1 since its use in connection with the phrase ,registered in the ,united ,states ,patent ,office would be likely to impress buyers with the idea that the flour had been approved officially4 ,it was also stated by the ,commissioner1 before whom the application went on appeal1 that its registration might be used to annoy other flour manufacturers1 who are obliged by law to give notice of copyright on their labels1 by using the word ,copyright with the date and name of the owner4 ,the ,r4 ,m4 ,rose ,company was refused registration for the words ,ask the ,revenue ,officer as a trade-mark for whiskey4 ,the objection is that this trade-mark might lead purchasers to believe that the quality of the whiskey thus branded has the approval of the government4 ,for the same reason the word ,government was refused registration as a trade-mark for loose-leaf binders4 ,affixation ,a trade-mark that is not affixed to the goods for which it is registered cannot be protected in the courts4 ,a mark1 or design1 or name1 that is used only in advertising is not a trade-mark but an advertising symbol4 ,affixation is an essential requisite of validity in trade-marks4 ,illustration3 ,,simmons ,,trade ,,mark ,,chains ,,and ,,fobs ,the trade-mark word ,simmons is affixed on chains by stamping it in minute letters on the swivel of the chain4 ,the trade-mark may be written1 or printed1 or pasted1 or stenciled1 or branded1 or woven1 or sewed1 upon the article with which it is used4 ,when it is not feasible to affix it to the article itself1 as in case of liquids and many other commodities1 the trade-mark must be affixed to the container4 ,many ingenious devices are used by manufacturers in affixing trade-marks4 ,the trade-mark ,brenlin1 on ,brenlin window shades1 is placed upon every yard of the fabric in small perforated letters4 ,the name appears near the selvage on each side of the goods4 ,the name ,aurora1 applied to portieres and similar hangings1 is to be found woven in the pattern of the fabric near the ends of each piece4 ,the trade-mark blends into the pattern in such a way that it is inconspicuous1 but may be readily found upon looking for it4 ,the ,london ,feather ,company's ,london ,plumes trade-mark is cleverly affixed1 being in the shape of a diminutive celluloid label1 to the inside of the stem of each ostrich plume4 ,the label is sewed on in such a manner that if it is cut out the plume falls apart4 ,illustration3 ,,lowell ,,duck ,this trade-mark is stenciled on duck sail cloth4 ,makers of clothing generally affix their trade-marks to each garment in the shape of a sewed label4 ,manufacturers of rubber goods1 such as rubber tires1 water bags1 etc41 mold the trade-mark into the article itself4 ,the ,lowell ,duck trade-mark1 used on sail cloth1 is stenciled at regular intervals on the selvage4 ,the ,corticelli kitten1 which is the registered trade-mark of ,corticelli ,spool ,silk1 appears on the label at the end of each spool4 ,moet ,chandon1 and other champagne producers1 have adopted the unique method of affixing their trade-marks to the bottom of the corks of their bottles4 ,the trade-mark is not seen1 of course1 until the bottle has been opened4 ,this method of affixation has been sustained by the courts4 ,the logic of it is that it prevents an unscrupulous retailer from washing the label off a bottle of wine and pasting a spurious label in its place1 provided the purchaser knows where to look for the trade-mark4 ,,chapter ,,iii ,advertising ,characters ,the main difference between a trade-mark and an advertising character is in the matter of affixation4 ,a trade-mark1 to be valid1 must be affixed to the goods1 while an advertising character is often used only in the advertisements of the product1 though most advertisers use their trade-marks also in advertising4 ,but there is another difference4 ,a trade-mark is inflexible4 ,after having been once adopted and registered1 it cannot be changed in design or wording4 ,if changes are made in it1 the validity of the trade-mark is vitiated proportionately4 ,on the other hand1 all kinds of changes are being constantly made in advertising characters1 though advertisers are careful to preserve the main features of a character1 after having adopted it1 in order that it may be the touchstone of remembrance in the reader's mind4 ,it has occurred to various advertisers1 who have been impressed by the infinite variety of pictures in advertising1 that it would be a good idea for them to put some permanent pictorial feature in their advertisements4 ,this feature--a human figure1 or a decoration1 or a group of figures--serves as an identifying landmark to the voyager in these weltering seas of change4 ,with this principle established and followed year after year in all advertisements of any product1 it is feasible to change the entire artistic treatment of the subject from time to time1 yet still hold to the symbolic figures which connect1 in the reader's mind1 all the past advertising with the new series4 ,this line of reasoning underlies the adoption and use of advertising characters4 ,an advertising character--this is a rather crude term1 but it seems to express the idea better than anything else--differs from an advertising illustration in that the character is carried on continuously in the advertising1 in some form1 while an illustration is dropped for something new4 ,illustration3 ,peter ,henderson's famous gardener4 ,for example1 ,peter ,henderson's gardener appears1 and has appeared1 in every advertisement of ,peter ,henderson's seeds for many years4 ,in most of the ,peter ,henderson advertisements1 the gardener is the only illustration4 ,the ,lackawanna ,railroad has used ,phoebe ,snow for many years in its advertisements as its star passenger on the dirtless and dustless road to ,buffalo4 ,the scheme of picturing this dainty white-clad girl in connection with the advertising of a railroad is based on a very clever idea4 ,railroad journeys are generally supposed to be dusty and uncomfortable2 but here is an attractive young lady who does not even go to the trouble of changing her white dress when she makes a trip on the ,lackawanna4 ,the use of ,phoebe ,snow as an advertising symbol is suggestive of the cleanliness and comfort and safety of the road4 ,illustration3 ,the ,dutch boy is taken out of the trade-mark and made to do stunts4 ,it sometimes happens that an advertising character is a figure or a device that has been formally adopted as a trade-mark of the advertiser's product4 ,the ,national ,lead ,company's ,dutch painter boy is a device of this kind4 ,while a trade-mark must not be changed1 a human figure1 used as the trade-mark1 may be put into another illustration1 and used separately4 ,this has been done in the ,national ,lead ,company's advertising4 ,their ,dutch ,boy has been depicted in the act of painting a house1 and in giving a lecture on paint4 ,the ,gold ,dust ,twins have been engaged in laborious but joyous tasks of various kinds since about #ahhj4 ,gold ,dust was first made in #ahhc1 but the twins1 not called at that time ,the ,gold ,dust ,twins had been a house trade-mark of the ,n4 ,k4 ,fairbank ,company for two or three years before that4 ,illustration3 ,,the ,,prudential ,,has ,,the ,,strength ,,of ,,gibraltar ,the trade-mark of the ,prudential ,insurance ,company4 ,one of the most widely known symbols ever used in advertising is the representation of the ,rock of ,gibraltar1 which is a feature of the ,prudential ,insurance ,company's advertising4 ,there is hardly any doubt that pictures of the ,rock have been printed more times in connection with the ,prudential advertising than in all other forms of representation that have been issued since the art of printed illustration began4 ,the conception of the ,victor dog1 with his head inclined in a curiously suggestive listening attitude1 before the mouthpiece of a phonograph1 with the caption1 ,his ,master's ,voice1 under the picture1 is an idea that ought to rank among the productions of genius4 ,it would be interesting to know what the ,victor ,talking ,machine ,company thinks its dog is worth4 ,illustration3 ,a lady with a smile as inscrutable as that of ,mono ,lisa4 ,the advertising symbol of ,hubert's ,malvina ,cream4 ,hubert's ,malvina ,cream advertising carries a peculiar but strikingly effective diamond-shaped device showing a woman's smiling face4 ,the ,american ,bankers' ,association1 which issues travelers' cheques1 good in every part of the world1 has adopted a couple of travelers--evidently a young man and his wife on their honeymoon trip--as advertising characters4 ,this well-groomed couple is shown1 in the various advertisements1 on the deck of a steamship1 before the ,pyramids1 in a ,venetian gondola1 buying curios in the ,orient1 and in other places4 ,before they settle down they will have covered as many leagues as the ,wandering ,jew4 ,the ,dutch ,cleanser woman1 in her eternal chase of dirt1 is one of the best-known advertising characters in current use4 ,this character is also the trade-mark of the product1 and appears on cans of ,dutch ,cleanser4 ,it would be hard to beat this ,dutch ,cleanser woman as an eye-catcher4 ,she shows motion1 energy in action1 and the device has an attractive simplicity4 ,illustration3 ,this striking figure of a mountain climber is ,peter's ,chocolate ,mountaineer4 ,he has reached the summit of the ,jungfrau and is waving his hand to his friends in the valley to let them know he is there1 and that he is about to eat his chocolate4 ,an ,alpine mountaineer1 used as an advertising character of ,peter's ,chocolate1 has become well-known to every magazine reader in the country4 ,the use of this figure harmonizes with the phrase high as the ,alps in quality1 which is used in the ,peter's ,chocolate advertising4 ,the advantage to be gained1 in the long run1 by adopting a catchy and attractive advertising character1 is shown by the nation-wide popularity of the ,campbell ,kids4 ,everybody knows them and their rippling jingles1 and they have no doubt become immensely valuable to the concern that owns them4 ,the law of unfair competition protects an advertiser in the use of an advertising character when the character is the advertiser's own creation4 ,in cases where living models are used for this purpose1 the advertiser should remember that a model has a right to sell his services--that is1 to pose--for anybody he pleases4 ,some advertisers make a contract of long duration with the models they intend to use1 binding them to an agreement not to pose for any other commercial purpose4 ,catch-phrases used in advertising1 like ,ivory ,soap's famous ,it ,floats1 and ,bon ,ami's ,hasn't ,scratched ,yet are protectable against infringement and unauthorized use by another than the owner1 through the same principle of law which gives protection to a manufacturer against a competitor who has imitated his packages1 labels and circulars4 ,an advertiser's exclusive right to a catch-phrase is conditional on its constant and persistent use by him4 ,an intermittent use does not establish a right to use it to the exclusion of others1 nor does a use of the phrase in varying forms of wording1 even if the sense of it is preserved1 establish such a right4 ,it is hardly necessary to say that an exclusive right cannot be created for a phrase that is not distinctive1 such as ,your ,opportunity1 ,clip the ,coupon1 etc4 ,the common language is free to all1 and an advertiser cannot prevent others from using a phrase in their advertisements merely because he used it in his advertisements first1 unless he can prove that they are using his language with the intention of misleading the public4 ---------------------------------------- ------------------- ,illustration ,the ,owl ,and ,the ,lamp ,the owl is the symbol of wisdom--and wisdom means experience1 judgment1 and knowledge1 combined with common-sense4 ,the lamp is the symbol of light and clearness of vision4 ,used in its figurative sense it is as old as civilization1 for the ancients held the sign of a lamp to mean the power of imagination1 illuminating the future4 ,the symbol of the owl and the lamp combined means ,light leading ,wisdom4 ,this is the advertising symbol of the ,j4 ,walter ,thompson ,company4 ,for many years it has been the trade-mark of good advertising4 ,j4 ,,walter ,,thompson ,,company ,new ,york3 #dd ,east #bcrd ,street ,boston3 #bja ,devonshire ,street ,cincinnati3 ,first ,national ,bank ,bldg4 ,st4 ,louis3 ,odd ,fellows ,bldg4 ,chicago3 ,the ,rookery ,cleveland3 ,swetland ,bldg4 ,detroit3 ,trussed ,concrete ,bldg4 ,toronto3 ,lumsden ,bldg4 ,london3 #cc ,bedford ,st41 ,strand ---------------------------------------- ------------------- ,illustration3 ,a clean and bright little fellow who adorns ,swift ,company's advertising4 ,in the case of the unauthorized use of a well-known1 extensively advertised catch-phrase1 this intention is virtually obvious4 ,for example1 if any soap manufacturer should begin to print the ,n4 ,k4 ,fairbank ,company's celebrated question1 ,have ,you a little ,fairy in your ,home8 in his advertisements and signs1 the courts would doubtless enjoin him summarily1 without inquiry into his intentions4 ,this phrase has been used so long by the ,n4 ,k4 ,fairbank ,co41 and so much money has been expended in giving it publicity1 that its owners have acquired a valuable property right in it4 ,money invested in advertising is as much a part of a business as if invested in buildings or machinery1 and when the goods of a manufacturer have become popular1 not only because of their intrinsic worth1 but also by reason of the ingenious1 attractive and persistent manner in which they have become advertised1 the good-will thus created is entitled to protection against unfair competition4 7,hilson v ,foster1 #hj ,fed4 ,r4 #hif--ahig47 ,illustration3 ,this is the advertising symbol used in ,swift's ,wool ,soap advertising4 ,the little boy in the receding undershirt used something ,just as good4 ,an interesting case of one concern attempting to profit by the advertising of another1 was in the courts in #aijg4 ,kellogg's ,toasted ,corn ,flakes were extensively advertised in a series of blind advertisements in newspapers on successive days4 ,these advertisements1 which were of large size and striking in appearance1 showed the picture of a woman winking1 with the admonition ,wink at ,your ,grocer and ,see ,what ,you ,will ,get1 followed by the letters ,k4 ,t4 ,c4 in large type4 ,the idea of the advertiser was to arouse curiosity by this form of advertising1 and particularly by the letters ,k4 ,t4 ,c4 ,after considerable advertising of this kind he had planned to announce that ,k4 ,t4 ,c4 meant ,kellogg's ,toasted ,corn ,flakes1 and that any woman might get a package of this preparation free if she would wink at her grocer4 ,illustration3 ,this young couple can get cash anywhere on ,a4 ,b4 ,a4 ,travelers' ,cheques4 ,but before the final explanatory advertisements appeared1 another concern selling ,cook's ,flaked ,rice1 a similar product1 caused advertisements to be printed in the same newspapers1 in which they announced that ,k4 ,t4 ,c4 meant ,keep to ,cook's4 ,illustration3 ,la ,belle ,chocolatire1 the trade-mark of ,walter ,baker's ,chocolate4 ,the ,kellogg firm obtained an injunction against this advertising on the ground of unfair competition1 in that the defendant was misappropriating the good-will created by the ,kellogg ,company's advertising4 ,the widely advertised phrase used in the ,pompeian ,massage ,cream advertisements1 ,don't envy a good complexion2 use ,pompeian and have one1 is the result of a prize contest1 in which many thousands of people tried their skill at making phrases4 ,illustration3 ,the ,corticelli kitten1 the advertising symbol of the ,nonotuck ,silk ,co4 ,the ,central ,railroad of ,new ,jersey1 in advertising its ,new ,york to ,philadelphia service1 uses a phrase that is a complete advertisement of its train service in six words4 ,trains leave ,new ,york for ,philadelphia every hour1 leaving at ten o'clock1 eleven o'clock1 at noon1 and so on4 ,every train leaves exactly on the hour4 ,the road formerly used the phrase3 ,trains every hour on the hour1 and this seemed to be pretty good1 but it was thought that something better might be devised4 ,a great deal of thought was given to the subject1 and as a result the phrase ,your ,watch ,is ,your ,time ,table was devised4 ,this phrase tells the whole story4 ,it is no longer necessary to bother with time-tables when one goes from ,new ,york to ,philadelphia4 ,just look at your watch4 ,to visualize this idea1 the phrase is used in the advertising in connection with the pictures of a fast train and a watch4 ,a celebrated advertising phrase was ,you press the button2 we do the rest1 formerly used by the ,eastman ,kodak ,company4 ,this sentence achieved a tremendous popularity1 but it had the fundamental defect of not containing any word which would connect it closely with the ,eastman ,company's product4 ,there is hardly a doubt that it was heard and used by a vast number of people who did not receive any ,kodak-buying suggestion from it4 ,a short1 incisive phrase which does not possess this defect is ,o',sullivanize ,your ,walk1 used in the advertising of ,o',sullivan's ,rubber ,heels4 ,when you have a pair of ,o',sullivan's ,heels put on your shoes you do not merely invest in a comfort-giving device4 ,it is a bigger transaction than that4 ,you begin to walk like a man who means business--you have the erect and confident bearing of success--in short1 you ,o',sullivanize ,your ,walk4 ,,chapter ,,iv ,infringement ,there is no intrinsic value in a trade-mark4 ,its worth in dollars is a creation1 and it depends upon the successful sale1 or popularity1 of the commodity to which the trade-mark is applied1 the distribution of this commodity1 the extent to which it has been advertised1 and the profit that there is in it4 ,some widely-known trade-marks are worth millions of dollars1 and many are valued at a hundred thousand dollars or more4 ,the ownership of an advertised and favorably known trade-mark is1 therefore1 a valuable property right4 ,in estimating the assets of a business1 its trade-mark is included under the head of ,good-,will1 and ,good-,will is ,reputation4 ,the value of a trade-mark is the value of the reputation of the goods it represents and identifies4 ,a valuable trade-mark--like other valuable things--becomes1 sooner or later1 an object of envy on the part of those who want money without troubling themselves about the manner of getting it4 ,sometimes this leads to a more or less ingenious simulation of a trade-mark4 ,the remedy for the infringement of a registered trade-mark is covered by sections #af to #ai1 inclusive1 of the ,act of #aije4 ,we quote these sections of the law3 ,sec4 #af4 ,that the registration of a trade-mark under the provisions of this act shall be prima facie evidence of ownership4 ,any person who shall1 without the consent of the owner thereof1 reproduce1 counterfeit1 copy1 or colorably imitate any such trade-mark and affix the same to merchandise of substantially the same descriptive properties as those set forth in the registration1 or to labels1 signs1 prints1 packages1 wrappers1 or receptacles intended to be used upon or in connection with the sale of merchandise of substantially the same descriptive properties as those set forth in such registration1 and shall use1 or shall have used1 such reproduction1 counterfeit1 copy or colorable imitation in commerce among the several states1 or with a foreign nation1 or with the ,indian tribes1 shall be liable to an action for damages therefor at the suit of the owner thereof2 and whenever in any such action a verdict is rendered for the plaintiff1 the court may enter judgment therein for any sum above the amount found by the verdict as the actual damages1 according to the circumstances of the case1 not exceeding three times the amount of such verdict1 together with the costs4 ,sec4 #ag4 ,that the ,circuit and ,territorial ,courts of the ,united ,states and the ,supreme ,court of the ,district of ,columbia shall have original jurisdiction1 and the ,circuit ,courts of ,appeal of the ,united ,states and the ,court of ,appeals of the ,district of ,columbia shall have appellate jurisdiction of all suits at law or in equity respecting trade-marks registered in accordance with the provisions of this act1 arising under the present act1 without regard to the amount in controversy4 ,sec4 #ah4 ,that writs of certiorari may be granted by the ,supreme ,court of the ,united ,states for the review of cases arising under this act in the same manner as provided for patent cases by the act creating the ,circuit ,court of ,appeals4 ,sec4 #ai4 ,that the several courts vested with jurisdiction of cases arising under the present act shall have power to grant injunctions1 according to the course and principles of equity1 to prevent the violation of any right of the owner of a trade-mark registered under this act1 on such terms as the court may deem reasonable2 and upon a decree being rendered in any such case for wrongful use of a trade-mark the complainant shall be entitled to recover1 in addition to the profits to be accounted for by the defendant1 the damages the complainant has sustained thereby1 and the court shall assess the same or cause the same to be assessed under its direction4 ,the court shall have the same power to increase such damages1 in its discretion1 as is given by section sixteen of this act for increasing damages found by verdict in actions of law2 and in assessing profits the plaintiff shall be required to prove defendant's sales only2 defendant must prove all elements of cost which are claimed4 ,the legal remedies set forth in these sections of the ,act of #aije apply only in case of infringements of registered trade-marks4 ,in the case of infringements of common law trade-marks1 and in cases where packages1 labels and advertisements are imitated or counterfeited1 actions to restrain must be brought under the law of unfair trade4 ,a coined word is the property1 in a commercial sense1 of the person1 or firm1 or corporation1 that makes it up and uses it4 ,this is indisputable4 ,it is a principle of justice that is supported consistently by the courts1 but it needs no legal mind to acquiesce in its fairness1 for it appeals to everybody's common-sense4 ,how far the use of a coined word may be allowed1 when applied by other persons than its owners to goods of a different and non-competitive class1 is a question that has not been definitely settled4 ,in ,england1 the court enjoined the use of the word ,kodak as a name for bicycles4 ,there is little doubt that the unauthorized use of any widely-known coined word1 that has been nationally advertised1 would be enjoined by the courts1 even if applied to a wholly different line of merchandise4 ---------------------------------------- ---------------------------- ,advertising ,symbols of ,railroads ,illustration ,,canadian ,,pacific ,,railway ,burlington ,route ,,new ,,york ,,central ,,lines ,,northern ,,pacific ,a railroad cannot have a trade-mark in the true sense1 inasmuch as the business of transportation produces no product to which a trade-mark can be affixed4 ,the advertising symbols of railroads stand in the relation of trade-marks1 and are protected by the common law against infringement4 ---------------------------------------- ---------------------------- ,a poorly-made and inferior article1 even if it should belong to a class of goods quite dissimilar to that of another article of the same name1 might indirectly bring discredit upon the latter4 ,the word ,educator was refused registration as a trade-mark for fish1 on the ground that as it had already been registered as a trade-mark for a brand of biscuits1 its use by another might lead to confusion1 although fish and biscuits are quite dissimilar products4 ,there have been cases where a label1 or a sign1 or a trade-name1 or trade-mark1 has been appropriated bodily by a concern not entitled to use it4 ,some cases of infringement of this character are given in ,h4 ,d4 ,nims' instructive book on ,unfair ,business ,competition1 from which the following example is quoted3 ,the defendants accumulated in the ,st4 ,louis market stoves 7not made by plaintiff7 with the name ',charter ,oak' upon them1 which they held for sale as ',charter ,oak ,stoves4' ,they were aware of the plaintiff's proprietorship of the ',charter ,oak' trade-mark1 and were proceeding to sell in defiance of the plaintiff's rights4 ,plaintiff had been the first to use ',charter ,oak' as a name of a stove and had used it for a long time when this suit was begun4 ,the mark was not registered4 ,injunction granted4 ,filley v ,fassett1 7#dd ,mo4 #afh--ahfi74 ,infringements are generally more subtle and clever than a mere bodily adoption of a trade-mark4 ,for instance1 a piratical trade-mark may be devised so nearly like a well-known mark that it will readily deceive an unwary or careless or ignorant purchaser1 and yet be so different that a show of defending it may be made4 ,or1 an entirely different trade-mark may be used1 while the size1 shape and color of the package may be imitated4 ,the ,national ,biscuit ,company uses distinctive packages for its products1 and its trade-marks are1 in most cases1 original1 arbitrary1 coined words1 yet it has so far prosecuted approximately five hundred suits for infringement of its marks and packages4 ,uneeda ,biscuit has been infringed by ,iwanta ,biscuit1 ,uwanta ,biscuit and ,ulika ,biscuit1 all of which were enjoined4 ,in the ,iwanta case1 the opinion of the court was1 in part1 as follows3 ,defendants present the usual voluminous bundle of affidavits by persons in the trade to the effect that in their opinion no one is likely to mistake defendant's biscuit for complainant's4 ,as has been pointed out before1 it makes no difference that dealers in the article are not deceived4 ,no one expects that they will be4 ,it is the probable experience of the consumer that the court considers4 ,here1 too1 we have the manufacturer of the articles complained of1 who explains1 as usual1 that in adopting a trade-name by which to identify his own product he has been most careful not to trespass upon any rights of complainant1 and that1 after considerable thought1 he selected a name which should make the difference between his goods and complainant's distinct and plain1 so that there could be no possibility of mistake4 ,it is a curious fact that so many manufacturers of proprietary articles1 when confronted with some well-advertised trade-name or mark of a rival manufacturer1 seem to find their inventive faculties so singularly unresponsive to their efforts to differentiate4 ,thus1 in one case1 with the word ',cottolene' before him1 defendant's best effort at differentiation resulted in ',cottoleo'2 and ',mongolia' seemed to another defendant entirely unlike ',magnolia'4 ,the manufacturer of the articles which defendants in the case at bar are selling seems to have had no better luck1 for1 with the word ',uneeda' before him1 his device to avoid confusion was the adoption of the word ',iwanta'4 ,the incessant use of the personal pronouns in daily speech has associated in every one's mind the sounds represented by the letter ',i' and ',u'1 the two words are of precisely the same length2 both end with the letter ',a'1 and both express the same idea1 namely1 that the prospective purchaser's personal comfort would be promoted by the acquisition of a biscuit4444 ,both name and dress are clearly calculated to mislead1 and the statements that both were adopted with an eye single to differentiation strain the credulity of the court beyond the breaking point4 ,in the case of ,lever ,bros4 v ,smith 7#aab ,fed4 ,r4 #iih71 the complainant had built up a large and profitable sale for ,welcome soap4 ,the defendant1 ,welcome ,a4 ,smith1 put on the market a soap similar in size and shape to ,welcome soap1 and labeled it with his own name ,welcome ,a4 ,smith1 making the word ,welcome on his labels large and prominent1 with ,a and ,smith below it1 and in much smaller type4 ,on the ends of the package the word ,welcome alone appeared4 ,it was held that while ,smith had a right to use his own name1 he could not use it in such a way that it would suggest an identity between these two products4 ,illustration3 ,dioxogen ,the trade-mark of a widely advertised household necessity4 ,in the case of ,swift v ,brenner 7#abe ,fed4 ,r4 #hbf7 it was held that ,swift ,company's ,old ,mill ,soap which had a picture of an old mill on the label1 was infringed by ,old ,stone ,mill ,soap1 the label of which also had a picture of an old mill4 ,in the interesting case of the ,welsbach ,light ,company v ,adam 7#ajg ,fed4 ,r4 #dfc7 it was shown that the infringing trade-mark had been devised before the complainant's mark1 but had not been used until after the complainant's mark had been registered4 ,on ,feb4 #bj1 #aijj1 the complainant 7,the ,welsbach ,light ,company7 registered the coined word ,yusea1 as a trade-mark applied to gas mantles4 ,some months before this1 the defendant had conceived the name ,u--,c--,a with the idea of using it in connection with gas mantles of his own manufacture4 ,its actual use as a trade-mark was not begun1 however1 until after the complainant's mark had been registered4 ,on ,oct4 #bc1 #aijj1 the defendant registered ,u--,c--,a as a trade-mark4 ,illustration3 ,huyler's ,this mark stands for quality in confectionery4 ,the complainant based his action for an injunction against the use by the defendant of the mark1 ,u--,c--,a on the ground that its resemblance in sound to ,yusea was sufficient to confuse buyers and divert trade from the complainant4 ,it was shown that ,yusea is commonly pronounced ,you see a2 that purchasers1 in asking dealers for these mantles1 called them ,you ,see ,a ,mantles2 and that the pronunciation of the name of defendant's mantles was the same as the name of complainant's products4 ,the defendant contended that there was no similarity in appearance in the two names2 that the similarity in sound was only incidental2 that there was no infringement1 because the name ,u--,c--,a had been devised prior to the conception of ,yusea2 and that the registration of ,u--,c--,a1 allowed by the ,patent ,office1 was proof of dissimilarity4 ,the ,court sustained the contention of the ,welsbach ,light ,company1 and the use of ,u--,c--,a as a trade-mark for gas mantles was enjoined on the ground that it was an infringement of ,yusea4 ,where there is a casual resemblance1 not sufficiently marked to deceive a person of ordinary judgment1 there is held to be no infringement4 ,a case in point was shown in the contention between the manufacturers of the well-known #c in #a ,oil and the owners of a similar product called ,big ,four4 ,the #c in #a label bears a large figure #a in red1 enclosing the figure #c and the word in4 ,the defendant's label was of different size1 was printed partly in red and partly in black1 and was headed ,big ,four4 ,the figure #d in black was displayed prominently on a red background4 ,no infringement4 ,a trade-mark may be held to infringe another trade-mark already established1 even if it has no similarity in sound or to the eye1 but if there is a close similarity in ideas4 ,this is exemplified by a case recently1 before the ,federal court for the ,southern district of ,new ,york4 ,the words ,beats-,all have been used for a number of years as a trade-mark for pencils4 ,the owners of the ,beats-,all trade-mark applied for an injunction against the use of ,knox-,all as a trade-mark for pencils sold by a rival concern4 ,the defendant contended that ,beats-,all was a descriptive term1 indicating superiority1 and1 as such1 it could not be protected as a trade-mark4 ,the complainant proved that he had used the mark ,beats-,all for many years1 and that1 while it was originally descriptive1 long usage had given it a secondary meaning4 ,he also showed that he had registered this trade-mark under the ten years' clause4 ,the court held that the registration of the mark under the ten years' clause removed it from the class of descriptive phrases--in other words1 that registration under the ten years' clause was a prima facie evidence of validity4 ,the defendant claimed1 that in any case1 ,knox-,all was so dissimilar to the ear and eye1 there was no infringement of ,beats-,all4 ,this view was not sustained by the court1 which held that a close similarity of ideas was sufficient to constitute infringement4 ,from these1 and other cases1 it may be seen that a question of whether a trade-mark has been infringed is sometimes a question of psychology4 ,it is not necessary for the complainant to produce evidence that buyers have been actually deceived4 ,his case is established when he can show that the marks1 or symbols1 or packages1 or general get-up of the goods are sufficiently similar to establish a strong probability of deception4 ,the case of ,shaw ,stocking ,company v ,mack 7#ba ,blatch #a--ahhb4 ,c4 ,c4 ,n4 ,y471 cited by ,mr4 ,nims1 is an example of infringement that seems to fall within the range of psychological analysis4 ,complainant manufactured at ,lowell hosiery of high reputation and designated one style by the figures '#hcj'4 ,the label bore the trade-mark ',shawknit' in script with a flourish and the words ',seamless ,half ,hose1' with the name of the manufacturer and the figures '#hcj4' ,defendants at ,albany bought large quantities of complainant's goods and with complainant's consent1 in effect1 held themselves out to the public as selling agents of complainant's4 ,they then began to buy of a ,connecticut manufacturer goods similar to complainant's '#hcj' style1 but inferior1 and sold them under a label generally resembling complainant's in appearance and bearing the word ',seamless' in script of a similar style1 including the flourish1 followed by the words ',half ,hose1 ,double ,heels1' with defendant's name and address1 and the figures '#hcj4' ,the court enjoined them from using the figures '#hcj' to designate the ,connecticut goods1 and from using on the label the word ',seamless1' printed in imitation of ,shawknit4 ,in the case given above there was no infringement of the actual trade-mark4 ,but the intent to deceive purchasers was shown by the use of the style number #hcj and by the careful imitation of the general appearance4 ,well-informed customers1 looking for the trade-mark ,shawknit1 would not have been deceived1 but the probability of deceiving the uninformed and careless was sufficient to justify the injunction4 ,it should be kept in mind that the term infringement covers not only the imitation of a technical trade-mark1 in whole or in part1 but embraces all violations of the rights of others1 in trade1 no matter whether such violations fall under the trade-mark law1 or the law of unfair competition4 ,the noted case of ,mc,lean v ,fleming 7#if ,u4 ,s4 #bde--ahgg7 decided in #ahgg1 is one of the cases that underlie the law of unfair competition4 ,in this case the ,court said3 ,nor is it necessary1 in order to give a right to an injunction1 that a specific trade-mark should be infringed2 but it is sufficient that the court is satisfied that there was an intent on the part of the respondent to palm off his goods as the goods of the complainant1 and that he persists in doing so after being requested to desist4 ,this is the gist of the whole matter of infringement4 ,if an effort to trade on the reputation of another can be proved1 irrespective of the form this effort may take1 it is held to be an infringement4 ,chatter-,box is an old-established publication for children1 issued in the form of an illustrated book1 once a year4 ,it was held that ,chatter-,book1 a publication issued for the same purpose1 and of the same general appearance1 was an infringement4 ,a piano manufacturer by the name of ,henshaw placed upon the market a piano called the ,steinberg4 ,it was held by the ,court that the name ,steinberg was an infringement of the name ,steinway1 which had been long used as the name of famous pianos4 ,illustration3 ,a trade-mark that has achieved great renown4 ,in the case of ,johnson ,johnson v ,bauer ,black 7#hb ,fed4 ,r4 #ffb1 reversing #gi ,fed4 ,r4 #ied7 it was held that the complainant's mark of a red ,greek cross1 used on plasters1 was infringed by the defendant's mark of a ,greek cross with a red circle in the center1 containing the letters ,b ,b1 and used on the same class of goods4 ,a trade-mark adopted for a patented article during the life of the patent1 is held to be descriptive of the article1 and the right to its exclusive use expires at the expiration of the patent4 ,the import of this far-reaching trade-mark doctrine is illustrated in the celebrated ,singer case4 ,the ,singer ,manufacturing ,company1 when the patents on its sewing machine were about to expire1 adopted as a trade-mark the word ,singer blended with a device4 ,the effect of this action1 if the validity of the trade-mark had been sustained1 would have been to perpetuate the right to the exclusive use of the word ,singer as applied to sewing machines4 ,in this event1 at the expiration of the patents1 any person would have had the right to manufacture ,singer machines1 but only the ,singer ,manufacturing ,company would have had the use of the name ,singer4 ,it was held by the courts that the right to use the name ,singer1 as applied to machines of this particular design1 became public property when the patents expired4 ,the court said1 in the case of ,brill v ,singer ,mfg4 ,co4 7#da ,ohio ,st473-- ,a patentee or his assignee1 by incorporating into his trade-mark the distinctive name by which a patented machine has become known to the public during the existence of the patent1 cannot1 after the expiration of the patent1 take away from the public the right of using such name4 ,the trade-mark cannot be made a guise for extending the monopoly1 or preventing the name from becoming1 with the patent1 the property of the public4 ,but if the trade-mark is adopted and used before the article is patented1 the exclusive right to the trade-mark continues after the patent expires4 ,in this case the patent is secondary to the trade-mark1 and the trade-mark is held not to be descriptive4 ,the word ,gants was used as a trade-mark on corsets for several years before the article was patented4 ,at the expiration of the patent1 another manufacturer began to make corsets of this description1 calling them ,gants4 ,on the showing of the plaintiff that the patent was subsequent to the adoption of the trade-mark1 the defendant was enjoined from using the name1 although there was nothing to prevent him from continuing to make corsets of this description4 ,an individual has a right to use his own name in business transactions1 but he cannot use it in a way that will deceive1 directly or by inference1 those who buy his goods4 ,he cannot use the likeness of his name to that of another party of the same name for the purpose of trading on the latter's established reputation4 ,this principle of equity is well illustrated by the legal contentions over the name ,baker1 used as a trade-mark for chocolate4 ,for a hundred and thirty-one years the firm of ,walter ,baker ,co41 and its predecessors1 have manufactured chocolate at ,dorchester1 ,mass4 ,for more than a generation past1 the firm has done business under its present name4 ,baker's ,cocoa1 as the principal product of the firm is popularly called1 has achieved great success4 ,this national popularity of the name ,baker as applied to cocoa and chocolates1 began1 some years ago1 to attract other persons by the name of ,baker4 ,one of the ,bakers--a ,william ,h4--began to manufacture chocolate in ,winchester1 ,va41 in #ahid1 and put it on the market1 labeled ,w4 ,h4 ,baker ,co4 ,at that time the products of ,walter ,baker ,co4 were labeled ,w4 ,baker ,co4 ,it can be seen that the substitution of ,w4 ,h4 ,baker ,co4's goods for those of ,walter ,baker ,co41 was an easy matter for any retailer who wanted to do it4 ,the packages were much alike4 ,the retailer made a larger profit on the product of ,w4 ,h4 ,baker ,co4 ,illustration3 ,,la ,,belle ,,chocolati,,re ,the ,walter ,baker ,package 7,front7 ,walter ,baker ,co4 sued ,w4 ,h4 ,baker in the ,federal ,court in ,virginia1 and at the same time began a suit against ,w4 ,h4 ,baker's ,new ,york agent1 ,sanders1 to prevent their use of the name ,baker or the firm name1 ,baker ,co4 ,in the ,virginia suit1 the opinion of the court was that while ,w4 ,h4 ,baker had a right to use the name ,baker1 it being his own name1 he could not use it in connection with the sale of cocoa or chocolate unless he made a distinction between it and the name of ,walter ,baker ,co4 which would be easily observed by customers4 ,the nature of the required distinction was not specified by this court4 ,in the suit in the ,federal ,court for the ,southern ,district of ,new ,york against ,sanders1 the ,new ,york agent of ,w4 ,h4 ,baker1 the court's decision was essentially the same as that of the ,federal ,court in ,virginia4 ,the ,new ,york court specified1 however1 that the defendant should put in conspicuous lettering on his packages these words3 ,w4 ,h4 ,baker is distinct from and has no connection with the old chocolate manufactory of ,walter ,baker ,company4 ,illustration3 ,established #aghj ,,walter ,,baker ,,co4 ,,ltd4 ,,breakfast ,,cocoa4 ,,dorchester1 ,,mass ,the ,walter ,baker ,package 7,back7 ,this suit had been settled a year or two1 when in ,new ,york1 another ,baker--,william ,p4--began to sell a ,baker's ,chocolate4 ,suit being brought to enjoin him by ,walter ,baker ,co41 it was decided by the court that he must not use the name ,baker alone1 or ,w4 ,baker4 ,he was allowed to use his own name if spelled in full1 ,william ,phillips ,baker1 or he might use a middle initial--,william ,p4 ,baker--and he was directed to state on his labels that his goods were made and sold by ,william ,p4 ,baker1 of ,new ,york4 ,the contentions of the various ,bakers were stilled and the mantle of peace lay upon them for a short space4 ,then1 as the record shows1 a ,william ,h4 ,baker1 of ,syracuse1 felt the calling of chocolate manufacturer stir within him4 ,the ,william ,h4 ,baker of ,syracuse imitated the packages and labels of the ,william ,h4 ,baker of ,winchester1 ,va4 ,his evident intention was to make it appear that he was the ,william ,h4 ,baker who had been enjoined by ,walter ,baker ,co41 for he stated conspicuously on his label ,w4 ,h4 ,baker is distinct from and has no connection with the old chocolate manufactory of ,walter ,baker ,co4 ,william ,h4 ,baker1 of ,winchester1 ,va41 brought suit against the ,syracuse ,baker to prevent him from using the former's label4 ,injunction was granted1 but the defendant was permitted to use the name ,william ,h4 ,baker if he printed the name ,syracuse conspicuously in connection with it4 ,the suit of ,royal ,baking ,powder ,co4 v ,royal 7#abb ,fed4 #ccg--aijc2 #eh ,c4 ,c4 ,a4 #dii-ejf71 deals with the controversy of this well-known baking powder concern over the use of the name ,royal on baking powder by an individual by the name of ,royal4 ,the court held that ,royal could make and sell baking powder under his own name1 but to prevent confusion he should not place his name on the front label1 and that he should make it inconspicuous4 ,illustration3 ,,justice ,,brand ,,cocoa ,,william ,h4 ,,baker ,,syracuse1 ,,inc4 ,,new ,,york ,,city ,the package now used by ,william ,h4 ,baker1 of ,syracuse1 ,inc4 ,from a consideration of these cases1 and many others where the same issue was involved1 the principle may be definitely established that1 while courts will not prevent an individual from using his name altogether1 they will restrict the manner of its use when there is shown an intention to trade on another's reputation4 ,it is a settled principle of law that a complainant must appear in a court of equity with clean hands4 ,in other words1 an essential misrepresentation of a complainant's goods1 by means of his trade-mark1 or on his labels1 or through advertisements1 is a bar against his action for relief from infringement4 ,one ,flavel made and sold a stove under the name ,flavel's ,patent ,kitchener4 ,the defendant1 ,harrison1 began to make and sell another stove under the same name4 ,flavel sued to enjoin ,harrison1 but an injunction was denied when it was shown that ,flavel's stove was not patented1 although its name would lead one to believe that it was made under a patent4 ,in another case1 the makers of a toilet preparation known as ,the ,balm of a ,thousand ,flowers brought suit to enjoin another party from selling a similar preparation under the name of ,the ,balm of ,ten ,thousand ,flowers4 ,the complainant's motion to enjoin was denied1 when it was shown in court that his ,balm of a ,thousand ,flowers did not contain the balm of any flower whatsoever--in fact1 was not a balm at all1 but a soap--and that its chief ingredients were oil and alcohol4 ,it was held that the trade-mark was deceitful and complainant's motion was denied4 ,fetridge v ,wells 7#d ,a #ff ,pr4 #add2 ,b4 ,how4 ,pr4 #che74 ,the infringement of trade-names and trade-marks in most classes of merchandise is relatively infrequent compared with the extensive substitution1 infringement and counterfeiting that are continually going on in the liquor1 wine1 cigar and allied trades4 ,this had become an evil of such formidable proportions that in #aijd an organization under the title of the ,trade-,mark ,protective ,company was formed to run down and prosecute offenders4 ,the clients of this company are mostly importers and producers of whiskies1 wines1 olive oils1 cordials1 cigarettes and cigars4 ,the company has a staff of skilled detectives1 who are always at work looking for imitators and counterfeiters of the goods of the company's clients4 ,after securing evidence of an infringement the company undertakes the prosecution of the offenders4 ,the methods of the ,trade-,mark ,protective ,company in prosecuting infringers and counterfeiters are of the kind that inspire evil-doers with terror as well as respect4 ,in many cases the bottles1 or packages1 and labels--including trade-marks--have been counterfeited so perfectly1 and in such detail1 that expert bottle-makers and lithographers were required as witnesses to show the difference between the spurious and the genuine4 ,an account of a few of the cases prosecuted by the ,trade-,mark ,protective ,company are given here for the purpose of showing the methods of this class of dealers in spurious goods4 ,one ,young1 doing business as the ,cincinnati ,distilling ,company was found using counterfeits of the labels of the ,wilson ,distilling ,company4 ,he was tried1 convicted1 and sentenced to six months in the workhouse and to pay a fine of #cjj4 ,a cigar dealer1 when asked by customers for the well-known ,romeo and ,juliet cigar1 which bears a label reading ,romeo y ,julieta1 sold an imitation bearing a label on which the words ,romeo1 el ,amante de ,julietta appeared--the words ,romeo and ,julietta being in large type4 ,the cigars bearing this label were seized1 and the dealer was restrained from selling any ,romeo and ,juliet cigar which did not bear the genuine label4 ---------------------------------------- -------------------- ,illustration ,,awarded ,,for ,,booth',s ,,old ,,tom ,,booth ,,co4 ,,superior ,,old ,,tom ,,gin ,,london ,genuine ,old ,tom ,gin ,illustration ,,bartlett ,,co4 ,,superior ,,old ,,tom ,,gin ,,london ,,beware ,,of ,,imitations ,,none ,,genuine ,,except ,,when ,,in ,,glass ,,stopper ,,bottles1 ,,and ,,with ,,our ,,signature ,,on ,,label4 ,spurious ,old ,tom ,gin ,reproduced by courtesy of ,trade-,mark ,protective ,company4 ---------------------------------------- -------------------- ,on this page are shown pictures of two bottles1 each labeled ,old ,tom ,gin4 ,the bottle with the spurious label1 shown on the right1 is identical in size and shape with the genuine bottle4 ,the labels are so much alike1 in design and coloring1 that one would easily pass for the other on casual1 careless inspection4 ,upon obtaining the requisite evidence the spurious stock was seized1 and the use of the imitation label was enjoined4 ,in the case of the owners of ,edouard ,pernod's ,absinthe against ,john ,b4 ,van ,opstal and others it was shown that the defendants were selling an imitation of ,pernod's ,absinthe under the fictitious name of ,aernod's ,absinthe1 relying upon the similarity in sound to deceive purchasers4 ,in this case the label of the genuine ,pernod was closely imitated in design and color1 and second-hand ,pernod bottles were used4 ,the defendants being brought into court1 a judgment and injunction was entered against them4 ,on the next page are two ,chartreuse labels4 ,the one on the right1 bearing the name ,garnier is genuine4 ,the labels were exactly the same size and color4 ,the infringing label was so clearly an imitation that the offending party did not contest the case1 but surrendered the imitation labels to the ,trade-,mark ,protective ,company1 and agreed never to use them again4 ,since the expulsion of the ,chartreuse monks from ,france1 and their settlement in ,spain1 they have adopted a new label1 but the original label as shown here is also still used by them4 ,they have established their right to the exclusive use of the name ,chartreuse in the ,united ,states by a suit recently decided by the ,supreme ,court4 ,reference to this case has been made on page #ce of this book4 ,in another case1 where an infringement of ,fernet ,branca ,bitters was prosecuted1 the defendant claimed that he had a right to use the name1 as his partner was named ,branca1 and that this partner was a skilled worker in the preparation of bitters4 ,he was1 nevertheless1 restrained from using the ,fernet ,branca name on his labels4 ,most of these prosecutions are based on the law of unfair trade1 but in one case1 that of ,petrotta1 accused of selling counterfeit ,martell ,brandy and other liquors1 the complainant founded his case on the charge of larceny4 ,he held that in selling spurious goods for genuine the defendant obtained money under false pretences1 and in that respect he is like a person who obtains money on a worthless check4 ,this argument was upheld by the court1 and ,petrotta was sent to prison for two years4 ---------------------------------------- ------- ,labels reproduced by courtesy of ,trade-,mark ,protective ,company4 ,illustration ,,liqueur ,,fabriquee ,a ,,la ,,gde ,,chartreuse ,pre ,agostines ,pre ,agostines ,agent pour le ,etats ,,unis et ,,canada ,new ,york ,infringement of ,chartreuse ,label ,illustration ,,liqueur ,,fabriquee ,a ,,la ,,gde ,,chartreuse ,l4 ,garnier ,l4 ,garnier ,,france ,agents for ,united ,states ,h,a,,batjer ,co4 #gg1 ,water ,street1 ,,new ,,york ,trade ,mark ,no4 #cihi ,registered ,sep4 #abth4 #ahgf in the ,u4,s4 ,patent ,office at ,washington1 ,d4,c4 ,genuine ,chartreuse ,label ---------------------------------------- ------- ,this case is notable1 in that it is the first case on record of a conviction for larceny of money obtained on a sale of counterfeit goods4 ,the refilling of bottles is a specific offence1 covered by statutes in some of the states4 ,it is needless to say that it is extremely difficult to obtain evidence of refilling that will convict4 ,in the case of the ,people v ,luhrs 7#aie ,n4 ,y41 #cgg71 in which the defendant ,luhrs was charged with having refilled a ,wilson ,whiskey bottle1 he put in the unusual defence that although he refilled a ,wilson ,whiskey bottle1 he refilled it with ,wilson ,whiskey4 ,but the ,new ,york penal code states that it is unlawful to sell any goods which are represented to be the manufacture of any other party than the seller1 unless such goods are contained1 in the original packages1 and under the labels1 marks or names pasted thereon by the manufacturer4 ,the defendant contended that this law was unconstitutional1 because it prevented him from selling his legitimate property in any way he chose to sell it1 and thus deprived him of his property without due process of law4 ,the court did not accept this contention1 as the defendant obviously had the right to sell ,wilson ,whiskey any way he might desire1 and at any price1 on the condition that he did not sell it in a trade-marked package that had contained other goods4 ,the trade-mark certifies both to the manufacture and the packing of contents4 ,by refilling bottles1 even with the same kind of goods1 the dealer makes a false representation1 as the bottle would not contain1 after refilling1 what was originally put in it4 ,infringement by ,foreigners ,through ,importation ,manufacturers are protected against infringement by foreigners sending goods bearing infringing trade-marks and labels to the ,united ,states by ,section #bg of the ,act of #aije1 which is as follows3 ,that no article of imported merchandise which shall copy or simulate the name of any domestic manufacture1 or manufacturer or trader1 or of any manufacturer or trader located in any foreign country which1 by treaty1 convention1 or law affords similar privileges to citizens of the ,united ,states1 or which shall copy or simulate a trade-mark registered in accordance with the provisions of this act1 or shall bear a name or mark calculated to induce the public to believe that the article is manufactured in the ,united ,states1 or that it is manufactured in any foreign country or locality other than the country or locality in which it is in fact manufactured1 shall be admitted to entry at any custom-house of the ,united ,states2 and1 in order to aid the officers of the customs in enforcing this prohibition1 any domestic manufacturer or trader1 and any foreign manufacturer or trader1 who is entitled under the provisions of a treaty1 convention1 declaration1 or agreement1 between the ,united ,states and any foreign country to the advantages afforded by law to citizens of the ,united ,states in respect to trade-marks and commercial names1 may require his name and residence1 and the name of the locality in which his goods are manufactured1 and a copy of the certificate of registration of his trade-mark1 issued in accordance with the provisions of this act1 to be recorded in books which shall be kept for this purpose in the ,department of the ,treasury1 under such regulations as the ,secretary of the ,treasury shall prescribe1 and may furnish to the ,department facsimiles of his name1 the name of the locality in which his goods are manufactured1 or of his registered trade-mark2 and thereupon the ,secretary of the ,treasury shall cause one or more copies of the same to be transmitted to each collector or other proper officer of customs4 ---------------------------------------- ----------------------- ,illustration ,within ,this ,circle ,eighty-five millions of people live within this circle4 ,it is the great battle-ground on which advertising campaigns are won or lost4 ,in this area are #db cities of #ajj1jjj or more inhabitants1 and #afg other cities with populations between #be1jjj and #ajj1jjj4 ,the ,j4 ,walter ,thompson ,company knows this territory from actual contact with the buying public that lives in it4 ,our branch offices in the great mercantile centers1 as shown on the map1 have been established for the purpose of studying at first hand the conditions of distribution and merchandising that must necessarily figure with great weight in any national advertising campaign4 ,we have better facilities for acquiring practical selling information than any other agency in ,america4 ,most of the national advertisers in the ,united ,states and ,canada are within thirty minutes of one of our eight offices4 ,ninety per cent of national advertisers are within two hundred miles of a ,j4 ,w4 ,t4 office4 ,j4 ,,walter ,,thompson ,,company ,new ,york3 #dd ,east #bcrd ,street ,boston3 #bja ,devonshire ,street ,cincinnati3 ,first ,national ,bank ,bldg4 ,st4 ,louis3 ,odd ,fellows ,bldg4 ,chicago3 ,the ,rookery ,cleveland3 ,swetland ,bldg4 ,detroit3 ,trussed ,concrete ,bldg4 ,toronto3 ,lumsden ,bldg4 ,london3 #cc ,bedford ,st41 ,strand ---------------------------------------- ----------------------- ,,chapter ,v ,assignment ,it is a fixed principle of the law that a trade-mark cannot be assigned1 or transferred1 without a transfer of the business with which it is associated4 ,trade-marks indicate origin4 ,they are intimately associated with the merchandise for which they are registered4 ,this being a fundamental principle of trade-mark law1 it can be understood that a trade-mark cannot pass from hand to hand1 and transferred as a separate thing1 without losing its real function as a trade-mark4 ,the ,act of #aije 7,section #aj7 provides that any registered trade-mark may be assigned in connection with the good-will of the business in which the mark is used4 ,in the case of ,mac,mahan ,pharmacal ,co4 v ,denver ,chemical ,mfg4 ,co4 7#aac ,fed4 ,r4 #dfh71 the court said3 ,a trade-mark cannot be assigned1 or its use licensed1 except as incidental to a transfer of the business or property in connection with which it has been used4 ,an assignment or license without such a transfer is totally inconsistent with the theory upon which the value of a trade-mark depends and its appropriation by an individual is permitted4 ,the essential value of a trade-mark is that it identifies to the trade the merchandise upon which it appears as of a certain origin1 or as the property of a certain person4444 ,disassociated from merchandise to which it properly appertains1 it lacks the essential characteristics which alone gives it value1 and becomes a false and deceitful designation4 ,there is a silk fabric bearing a ,radium trade-mark1 and known in the trade1 and among consumers as ,radium ,silk4 ,the manufacturers of this fabric1 ,the ,gilbert ,manufacturing ,company1 assigned this trade-mark in #aije to another concern 7,eiseman ,company74 ,with the trade-mark they turned over to ,eiseman ,company all the manufactured and labeled goods then in their possession4 ,thereupon the ,gilbert ,company ceased to use the trade-mark1 but did not stop manufacturing the goods1 which they put upon the market under the name ,electra4 ,it seems to have been understood by ,eiseman ,company1 according to the evidence1 that the ,gilbert ,company was to continue making the goods1 provided they gave their product some other name than ,radium4 ,as soon as ,eiseman ,company obtained the assignment of the trade-mark they1 too1 began to manufacture the fabric1 and sell it under the ,radium trade-mark4 ,illustration3 ,,genuine ,,bull ,,durham ,,smoking ,,tobacco ,,standard ,,of ,,the ,,world ,a trade-mark1 or an advertising character1 or a catch phrase1 may be so thoroughly advertised that it becomes better known than the commodity to which it applies4 ,a little ,new ,york girl1 age six1 who had hardly passed a day of her young life without seeing a ferocious ,durham bull glaring from billboards and the fences of vacant lots1 gravely said to her mother one day3 ,mamma1 is all tobacco made from bulls8 ,now the matter comes into court through the suit of ,eiseman ,company to prevent a third manufacturer from using the ,radium trade-mark4 ,they contended that the assignment of the mark to them by its original owner1 ,the ,gilbert ,mfg4 ,co41 gave them the exclusive right to its use4 ,the court held that1 in the first place1 the assignment of the trade-mark to ,eiseman ,company was invalid1 because it was not accompanied by a transfer of the good-will2 in the second place1 the fact that the ,gilbert ,company discontinued the use of the trade-mark1 constituted an abandonment4 ,injunction was denied4 ,in this case1 the court said3 ,when a trader has sold some particular article under a selected name to such an extent as to secure registration1 he has established a special business in which that trade-mark is used1 and if the trade-mark becomes so valuable as to induce him to sell it1 he must1 as a condition of transfer under the statute1 assign that special business with the trade-mark of which it was the parent4 ,eiseman ,company1 therefore1 acquired no rights under the alleged assignment1 which did not carry the special business4 ,illustration3 ,,davol ,while this trade-mark is simple1 it lacks attractiveness and euphony4 ,it is without distinction1 and is easily overlooked and forgotten4 ,there are exceptions1 however1 to this rule4 ,the nature of these exceptions may be best shown by citing a case--that of ,witthaus v ,braun 7#dd ,maryland--#ahge74 ,in this case a tobacco dealer1 who did not manufacture goods himself1 had special brands made for him by a manufacturer4 ,the tobacco dealer owned the brands1 and merely hired the manufacturer to make his goods4 ,the dealer assigned to the manufacturer all his smoking tobacco brands1 without transferring any other part of his business4 ,it was held that in this case the assignment was valid1 because the origin of the goods had not been changed by the transaction4 ,the same manufacturer continued to make the tobacco1 the only difference being that he now owned the business1 instead of making the goods on contract4 ,the right to use a trade-mark identified with a business location may pass1 under certain circumstances1 to a purchaser of the building4 ,the purchaser of a hotel building1 for example1 buys with it the right to use its name1 unless a specific stipulation to the contrary is made4 ,a theatre building known as ,booth's ,theatre was owned and managed by one ,booth4 ,after several years of occupancy1 he leased the building to another person1 who proceeded to give theatrical performances there4 ,in his advertisements he referred to the place as ,booth's ,theatre1 giving his own name as lessee4 ,thereupon1 ,booth attempted to enjoin this use of the name4 ,the court held that the name passed with the lease of the building4 ,in cases where the business is of such a personal nature that the trade-mark or trade-name is identified in the public mind with the work of some particular individual1 it is obvious that deception would be practised if the same identifying mark were used after that individual had ceased his connection with the enterprise4 ,in such cases1 there can be no valid transfer of the trade-mark even though the entire business1 including good-will1 is sold4 ,such a trade-mark is personal4 ,its use on goods indicates the special knack or skill of some one person4 ,the courts will protect the purchaser of a business in the use of its trade-mark or trade-name against infringement by the former owner1 even though the trade-name is that of the former owner4 ,this principle is illustrated in the case of ,jergens ,co4 v ,woodbury1 given in the ,new ,york ,law ,journal 7,nov4 #aijg74 ,the ,jergens ,company was the sales agent of ,john ,h4 ,woodbury1 the celebrated dermatologist1 in the sale of ,woodbury's ,facial ,soap4 ,in #aija ,woodbury assigned the business to the complainant4 ,under the complainant's management a large and profitable sale for the soap was established4 ,illustration3 ,the famous ,woodbury trade-mark4 ,in #aijf1 ,woodbury started to manufacture soap again1 calling his product ,woodbury's ,new ,skin ,soap4 ,this product1 so far as the package or wrappers were concerned1 had no resemblance to the complainant's soap1 the only point of similarity being in the name4 ,in a suit brought in the ,new ,york ,supreme ,court it was held by the court that there was ground for belief that the public would be misled by defendant's use of the name ,woodbury1 and he was accordingly enjoined4 ,this case went up to the ,court of ,appeals1 and that court upheld the decision of the lower court1 in so far as the defendant was restrained from using the name ,woodbury in connection with the sale of soap in such a way that the public would be led to believe that his product was ,woodbury's ,facial ,soap or a new brand thereof4 ,for the assignment of a trade-mark no particular form of assignment is required except it must be in writing4 ,the law provides that assignments may be recorded in the ,patent ,office4 ,if any assignment is not recorded within three months after its date1 it will be held void as against a subsequent purchaser for valuable consideration4 ,,chapter ,,vi ,trade-,marks in ,canada ,trade-marks are registered in ,canada in the ,department of ,agriculture4 ,the ,canadian law recognizes two kinds of trade-marks1 viz43 ,general ,trade-marks and ,specific ,trade-marks4 ,these two kinds of marks require separate registrations4 ,a general trade-mark means a trade-mark used in connection with the sale of various articles in which a proprietor deals in his trade1 business1 occupation or calling generally4 ,a specific trade-mark means a trade-mark used in connection with the sale of a class of merchandise of a particular description4 ,illustration3 ,corticelli ,,spool ,,silk ,the ,corticelli kitten is both a trade-mark and an advertising character4 ,in this respect the ,canadian and ,american trade-mark laws differ materially4 ,the ,american law does not recognize a general trade-mark--that is1 a trade-mark applicable to any merchandise a manufacturer may produce1 irrespective of its class4 ,an ,american trade-mark is registered for use in connection with a specific product1 or for use in connection with a class of merchandise1 all the units of which have the same general descriptive qualities4 ,the specific trade-mark of ,canada corresponds closely to the ,american trade-mark4 ,the ,canadian definition of a trade-mark is as follows3 ,all marks1 names1 labels1 brands1 packages or other business devices1 which are adopted for use by any person in his trade1 business1 occupation or calling1 for the purpose of distinguishing any manufacture1 product or article of any description manufactured1 produced1 compounded1 packed or offered for sale by him1 applied in any manner whatever either to such manufacture1 product or article1 or to any package1 parcel1 case1 box or other vessel1 or receptacle of any description whatsoever containing the same1 shall1 for the purposes of this ,act1 be considered and known as trade-marks4 ,the ,trade-mark ,act of ,canada is more broad and liberal than the ,american ,act1 as is shown by this definition of trade-marks4 ,not only are marks1 names1 labels and brands considered trade-marks1 but packages and other business devices are also included4 ,an applicant who seeks to register a trade-mark must state in his application whether the trade-mark is intended to be general or specific4 ,if specific1 a description of the merchandise on which it is to be used must be made a part of the application4 ,a general trade-mark1 once registered1 shall endure without limitation4 ,the registration of a specific trade-mark expires in twenty-five years1 but it may be renewed at the end of that period1 and so on from time to time4 ,the registration fee for a general trade-mark is #cj4jj2 for a specific trade-mark1 #be4jj4 ,the ,minister of ,agriculture may refuse to register a trade-mark for any one of the following reasons3 #ast4 ,if he is not satisfied that the applicant is undoubtedly entitled to the exclusive use of such trade-mark4 #bnd4 ,if the trade-mark proposed for registration is identical with or resembles a trade-mark already registered4 #crd4 ,if it appears that a trade-mark is calculated to deceive or mislead the public4 #dth4 ,if the trade-mark contains any immorality or scandalous figure4 #eth4 ,if the so-called trade-mark does not contain the essentials necessary to constitute a trade-mark1 properly speaking4 ,the essentials necessary to constitute a trade-mark are not defined by the law1 an omission which means that the ,english common law definition of a valid trade-mark1 as shown by the decisions of the courts1 must be the basis on which eligibility to registration is based4 ,no mark or symbol which has a designating or descriptive quality may be registered4 ,when a descriptive word has been registered1 through error of the registrar1 it does not give the owner of the mark exclusive right to its use4 ,as in the ,united ,states1 registration is only prima facie evidence of validity4 ,illustration3 ,,american ,,sheet ,,tin ,,plate ,,co4 ,,apollo ,,best ,,bloom ,,trade ,,mark ,,registered ,,pittsburgh ,a trade-mark used on sheet tin4 ,it is affixed by stenciling4 ,the right to a trade-mark belongs to the first user of the mark4 ,if it is registered by any other person than its first user1 the registration may be set aside as invalid upon the production of proof of its prior use by any other person than the registrant4 ,the law states that no person shall institute any proceeding to prevent the infringement of any trade-mark1 unless such trade-mark is registered in pursuance of this act4 ,illustration3 ,,trade ,,elastica ,,mark ,,floor ,,finish ,a well-advertised trade-mark4 ,this provision of the law would seem to exclude actions based on the common law1 but in practice the ,canadian courts take cognizance of the doctrine of unfair trade4 ,the prime requisite of registration before infringement proceedings can be instituted merely makes the mode of procedure different from that in the ,united ,states4 ,the complainant must get his trade-mark registered before he begins his suit against the infringement4 ,if the mark alleged to infringe has already been registered1 the plaintiff moves to set the registration aside as invalid1 and have his own mark registered instead of it4 ,a circular containing the full provisions of the ,canadian law1 with directions and forms for making an application for registration1 may be obtained by any person who will write for it to the ,minister of ,agriculture1 ,ottawa1 ,canada4 ,,chapter ,,vii ,how to ,devise a ,trade-,mark ,a ,trade-mark may be a word1 or words2 or a device2 or a device combined with a word or words4 ,it is often considered desirable to register the name of a product as a trade-mark4 ,consequently1 in the case of new products1 the selection of a trade-mark often means the selection of a name for the merchandise with which the trade-mark is to be used4 ,illustration3 ,,crex ,grass ,furniture ,,trade ,,mark ,a familiar and excellent example of a coined word used as a trade-mark4 ,a trade-mark1 to be valid1 should not have any meaning obviously descriptive of the goods for which it is registered4 ,the word ,crex1 to illustrate our meaning1 is an arbitrary coined word4 ,as such it is registrable1 and besides its undoubted validity1 it has some of the best qualities that a trade-mark can possess1 in that it is short--of one syllable--easy to pronounce and remember1 and its sound is not displeasing to the ear4 ,note that in the name ,crex ,grass ,furniture1 the word ,crex is alone registrable4 ,grass ,furniture is a descriptive term4 ,coined words1 like ,karo1 ,onoto1 ,chiclets1 ,crisco1 ,uneeda1 ,jap-a-lac1 ,sapolio1 are virtually infringement proof4 ,the ownership of a coined word1 as applied to the commodity with which it is associated1 rests absolutely in the individual or concern that first uses it4 ,many of these coined words are only fortuitous combinations of letters1 arrived at after divers experiments4 ,such a word is ,onoto1 applied to a fountain pen4 ,it was selected from a list of hundreds of similar names1 in which all sorts of curious arrangements of letters were set down4 ,in the creation of an artificial or coined word1 a mere misspelling of a word or phrase does not make it registrable1 if it would not be so otherwise4 ,bestok1 a misspelling of ,best ,stock1 was refused registration1 as it is plainly descriptive4 ,omo is the trade-mark of a dress shield2 ,persil--a coined word--is a washing compound2 and ,steero is the trade-mark and the name of bouillon cubes4 ,sealpackerchief is a name made up of ,sealed1 ,package and ,handkerchief4 ,it is the trade-name of a brand of handkerchiefs that are sold in clean sealed packages4 ,nabisco is a name made by joining together the first syllables of the three words ,national ,biscuit ,co4--,na-,bis-,co--,nabisco4 ---------------------------------------- ----------------------- ,the ,porto ,rico ,seal of ,quality ,illustration ,,porto ,,rico ,,association ,,disinterested ,,inspection ,,honesty ,,purity ,,efficiency ,,energy ,,excellence ,,progress ,,on ,,the ,,square ,,guaranty ,the ,government of the ,island of ,porto ,rico has given its encouragement and material support to the formation of an association among the large planters1 shippers and manufacturers of the ,island4 ,this organization1 known as the ,porto ,rico ,association1 is active in promoting the sale of ,porto ,rican products in the ,united ,states4 ,as a guaranty of the quality of the goods1 each member of the ,association--after his shipment has been inspected and approved--has the right to use the ,porto ,rico seal of quality1 shown here4 ,this seal is not a trade-mark in the technical sense1 but it is affixed to ,porto ,rican merchandise of high quality1 sold at the ,new ,york store of the ,porto ,rico ,association at #eaj ,fifth ,avenue1 ,new ,york1 and elsewhere1 and in that relation it is a common law trade-mark1 with ownership vested in the ,porto ,rico ,association4 ---------------------------------------- ----------------------- ,the name ,roxonia1 a registered trade-mark1 applied to hosiery and underwear1 is an evolution of the name ,roxburghe4 ,when the goods were first put on the market the ,duke of ,roxburghe was on a visit to the ,united ,states1 taking notice of an heiress1 and was1 in virtue of this situation1 much in the public prints4 ,a manufacturer of underwear thought ,roxburghe sounded pretty good1 and he applied for registration of the name as a trade-mark4 ,his application was refused on the ground that ,roxburghe was the name of a person4 ,abandoning ,roxburghe1 another cogitation of the subject brought to light the word ,saxonia1 this name having been suggested by the fact that ,saxony is one of the great centers of hosiery production4 ,saxonia was refused registration because it is a geographical term4 ,the addition of two letters to the word ,saxon does not make sufficient change to remove it from the prohibited class of geographical terms4 ,with these two rejections before him1 it occurred to the manufacturer that he could unite the two words1 and get rid of the objectionable feature of each4 ,this was done1 and the result is ,roxonia1 which is not only a valid trade-mark1 but a very good one4 ,illustration3 ,,reg4 ,,us ,,arco ,,pat ,,off ,,spotzoff ,the clever trade-mark of a cleaning fluid4 ,a trade-mark may consist of a coined word which is suggestive1 but not descriptive4 ,an example of this is shown in the ,arco ,spotzoff trade-mark4 ,this is the name1 as well as the trade-mark1 of a cleaning fluid4 ,spots ,off1 spelled in any way whatsoever1 suggests cleaning and cleanliness1 but it does not describe the cleaning fluid4 ,this is a very ingenious trade-mark4 ,with a slight variation it would be unregistrable4 ,for instance1 ,spot ,remover would not be valid1 because it is an ordinary descriptive term--an advertisement1 in short4 ,illustration3 ,,ruberoid 7,trade ,mark4 ,reg4 ,u4 ,s4 ,pat4 ,office7 ,susceptible of mispronunciation4 ,two other examples of coined words1 suggestive but not descriptive1 are ,sealpackerchief--mentioned above--and ,hydegrade4 ,in some instances1 there is a sort of tangential1 or left-handed suggestiveness1 about a trade-mark which gives it a significance quite different from the idea that was in its owner's mind when he adopted it4 ,this is a defect in any trade-mark4 ,an example of this is the ,ruberoid trade-mark1 applied to a high-quality1 ready-to-lay roofing1 sold in rolls4 ,it is pronounced ,rue-ber-oid4 ,the owners of this product state1 in their advertising1 that ,ruberoid does not contain any rubber4 ,it is not a rubber roofing4 ,but a large percentage of the public pronounces the word ,rubber-oid1 and many people have the impression that ,ruberoid is a rubber roofing4 ,the name is suggestive of rubber4 ,this effect is not an intentional one1 as is plainly shown by the widely advertised statement of the owners that ,ruberoid contains no rubber1 as well as by their taking the trouble to indicate the correct pronounciation in their advertisements4 ,illustration3 ,,wilbur ,,trade ,,mark ,reg4 in ,u4 ,s4 ,pat4 ,off4 ,the trade-mark of ,h4 ,o4 ,wilbur ,sons4 ,a trade-mark name should not be easily susceptible of mispronunciation4 ,an arbitrary symbol may be a valid trade-mark4 ,the ,wilbur ,chocolate trade-mark1 showing a ,cupid stirring a cup with a large spoon1 is an example of an arbitrary symbol used for this purpose4 ,illustration3 ,the ,mc,cutcheon trade-mark4 ,suggestive of fine linen4 ,the ,mc,cutcheon trade-mark1 consisting of the representation of an old-fashioned spinning wheel1 is arbitrary in the sense of not being descriptive1 but it is suggestive of flax and fine linen1 which is a specialty of the ,mc,cutcheon store4 ,the trade-mark of ,domino sugar is the picture of a red domino or mask4 ,initials1 like ,e4 ,w4--used on ,earl ,wilson collars2 ,g4,e4--the trade-mark of the ,general ,electric ,company2 and ,r ,g--used on corsets1 are valid as trade-marks4 ,illustration3 ,,sonor ,a trade-mark in which the defects predominate4 ,a trade-mark may be the name of a fictitious person1 like ,buster ,brown1 used in connection with hosiery1 and ,dorothy ,dodd used as a trade-mark for shoes4 ,a famous example of initials used for this purpose is the ,b4,v4,d4 trade-mark4 ,illustration3 ,,rubdry ,,bath ,,towel ,an excellent1 distinctive trade-mark4 ,good trade-marks are simple and distinctive4 ,the mark should be of such a character that it can be easily retained in the purchaser's memory1 and it is apparent that this is not readily done when it is complicated and commonplace4 ,look at the ,sonor trade-mark1 reproduced on this page1 as an illustration of this point4 ,the lettering is so involved that it is difficult to read1 and it looks like a pattern of some intricate fancy work4 ,compare it with the simple1 clear-cut ,rub-dry trade-mark4 ,illustration3 ,,bird ,,neponset ,,products ,,trade ,,mark ,reg4 ,u4 ,s4 ,pat4 ,off4 ,a trade-mark cluttered up with too much detail4 ,the ,neponset trade-mark has so much in it1 including the picture of a child in a rainstorm1 that it loses its character when it is reduced to any practical1 small size for advertising purposes4 ,the single word ,neponset1 enclosed in a simple design1 would be much more effective--or the child holding the piece of roofing over her head would be equally effective1 if shown alone1 without a background4 ,an example of a commonplace trade-mark is the big ,p surrounded by a circle4 ,this mark lacks distinction and originality4 ,it makes but little impression upon a reader's mind1 and is soon forgotten4 ,illustration3 p ,,trade ,,mark ,a trade-mark that bears a startling resemblance to a soda-water check4 ,compare the big ,p with the admirable ,pacific ,mills trade-mark4 ,the ,pacific ,mills emblem is graceful1 simple1 distinctive1 and has a swing and a whirl to it that suggest motion4 ,when a symbol is used as a trade-mark it is always advisable to put the suggestion of motion into it1 if this can be done without the sacrifice of some other essential quality4 ,a thing in motion arrests the eye1 and holds the attention1 much better than a still figure4 ,evidence of this is seen in the well-known ,dutch ,cleanser trade-mark1 where the motion of the lady in wooden shoes dominates every other quality of the symbol4 ,an arbitrary number may be a valid trade-mark4 ,the number #hcj has been judicially held to be a good trade-mark for a brand of hosiery4 ,the number #dgaa--;an arbitrary arrangement of figures--has been in use since #agib as a trade-mark for toilet preparations4 ,the numerals #a to #ce are valid trade-marks1 as applied to ,humphrey's ,homeopathic ,remedies4 ,a numeral indicating quality or composition cannot be protected against infringement4 ,illustration3 ,,trade ,,pacific ,,mark ,this design is very attractive4 ,a fine example of a symbol with wording4 ,a trade-mark may be the name of a mythological character1 like ,juno1 ,venus--there is a ,venus lead pencil--,hercules1 or ,apollo1 this last name being used in connection with a player-piano4 ,it may be the name of an historical character1 like ,voltaire1 ,buckingham1 ,mazarin1 ,napoleon--used with a brand of flour--or ,champlain2 or ,samson1 used as a name of a clothes-line sold in a package4 ,it may be the name of a character in fiction1 like ,hamlet1 ,david ,copperfield1 ,hypatia or ,portia4 ,pequot1 the name of an extinct ,indian tribe1 is the trade-marked name of a brand of sheets and pillow cases4 ,the name of an existing ,indian tribe is not valid as a trade-mark1 as it has a geographical significance4 ,a phrase in common use may be registered as a trade-mark1 provided it has none of the qualities prohibited by the ,act of #aije4 ,for example1 ,yours ,truly is the registered trade-mark of an article of food4 ,a word in common use may be valid as a trade-mark if it has no defects under the act4 ,there is1 for instance1 an ,arrow collar1 a ,lion collar1 and a ,velvet smoking tobacco4 ,if careful consideration is given to the selection1 it is sometimes possible to find an ordinary word that may be very effective as a trade-mark4 ,there is1 for example1 the word ,rainbow1 used as a name for dyes4 ,this word is not descriptive of the dyes1 but it is tremendously suggestive of their quality and their wide range of colors4 ,gold ,cross is the trade-mark of a brand of condensed milk4 ,skidoo is the particularly happy name of a rough-and-ready soap1 and this is also used as the trade-mark of a marine engine4 ,flash is the name of a soap4 ,bread ,winner is the trade-name of a line of children's suits4 ,there are many trade-marks made up of two or more words1 such as ,bachelor's ,friend1 for hosiery2 ,iron-,clad1 also a hosiery trade-mark1 and ,porosknit--a coined word made up of ,porous and ,knit4 ,the portrait and name of a living person may be registered as a trade-mark1 provided the application is accompanied by the written permission of the person whose name and portrait are shown4 ,there is a ,maxine ,elliott ,soap1 and a ,mrs4 ,rorer's ,coffee4 ,the name of a natural object used in a fanciful sense1 may be registered4 ,there are many examples of this usage1 such as ,beech-,nut bacon1 ,ivy corset1 ,hawkeye camera1 and ,eagle condensed milk4 ,a trade-mark may consist of a fanciful combination of words1 like ,blue ,jay1 applied to corn plasters2 ,red ,devil1 ,silver ,moon1 and ,flying ,cat4 ,illustration3 ,,ipswich ,,hosiery ,a well-balanced and handsome design4 ,when a design and wording are used in combination1 care should be taken to make them fit together without discord4 ,attractiveness is a quality that is desirable in a trade-mark if it can be attained without a sacrifice of more virile features4 ,the ,ipswich ,hosiery trade-mark is eye-catching and attractive4 ,it contains as much in lettering and in illustration as the ,neponset trade-mark shown on page #hj1 and it is much more attractive4 ,this trade-mark--as shown in the accompanying engraving--is descriptive1 as it contains the word hosiery1 and it contains a geographical term--,ipswich4 ,these features would probably prevent its registration under the general ,act of #aije1 but not under the ten years' clause of that act1 provided it could fulfil the requirements of that clause4 ,illustration3 ,,copyright #aijc ,swift ,co4's trade-mark4 ,the trade-mark of ,swift ,company1 of ,chicago1 is unusually distinctive4 ,its symbolism is interpreted in a circular issued by ,swift ,company1 of which the following is an excerpt3 ,four factors intimately combined enter into the symbol4 ,they are3 7#a7 the ',s'1 7#b7 the dart1 7#c7 the circle1 7#d7 the pivot4 ,the ',s'1 combined with the dart in one piece1 is a personality symbol1 serving to set forth the name ',swift'1 both accurately and generally1 since the dart is an ancient and world-wide symbol of swiftness4 ,the dart by itself is a humanity symbol1 carrying the thought of speed and directness4 ,in its position in the symbol it indicates high aim and rectitude4 ,the circle is a humanity symbol1 carrying the thought of universality1 and everywhere recognized as the perfect form4 ,the pivot symbol is beautifully developed by the ',s' which centers in the circle1 and is itself a form of the pivot symbol4 ,the black and red color scheme accentuates the pivot and gives the thought of day and night1 of life and death1 of heaven and hell--in short1 the thought of dualism in life4 ,this design is simple1 graceful1 distinctive1 and appropriate4 ,in a business as far-reaching and as complex as that of ,swift ,company1 the quality of adaptability in a trade-mark is highly desirable4 ,this trade-mark is of such a character that it may be used with appropriateness upon merchandise1 stationery1 packages1 boxes1 sides of cars1 and in advertisements4 ,illustration3 ,no4 #a4 ,the engravings ,nos4 #a1 #b1 #c1 and #d1 illustrate the various steps taken in devising the trade-mark of the ,w4 ,h4 ,mc,elwain ,company1 of ,boston4 ,the fundamental idea was to incorporate the initials of the firm1 ,w4 ,h4 ,m41 into the design in some effective way4 ,from a large number of suggestions the design marked ,no4 #a was selected4 ,it can be seen that the three bars shown in ,no4 #a make the initials ,w4 ,h4 ,m4--but somebody has to tell you before you see it4 ,illustration3 ,,the ,mc,e,l,w,a,i,n ,,mark ,no4 #b4 ,the next step1 shown in ,no4 #b1 was to put in the sole of a shoe1 as the trade-mark is intended for shoes1 and to letter ,the ,mc,elwain ,mark across the face of the bars4 ,the design shown in ,no4 #b lacks cohesion and finish4 ,to hold it together1 a border was put around it and a ,ben ,day background thrown in4 ,this produced the figure shown in ,no4 #c4 ,illustration3 ,,the ,mc,e,l,w,a,i,n ,,mark ,no4 #c4 ,the design marked ,no4 #c is quite striking1 but if you look at it awhile you begin to see defects in it4 ,the black initial bars are too strong and glaring4 ,they push the rest of the design out of the picture4 ,this defect was cured by putting the initial bars in white with the sole of the shoe in black1 and making the background darker4 ,by doing this1 the proper balance between white and black was obtained4 ,illustration3 ,,the ,mc,e,l,w,a,i,n ,,mark ,no4 #d4 ,the design shown in ,no4 #d is the finished trade-mark4 ,in devising a trade-mark1 any one who does not clearly keep the requirements of the law in mind is likely to fall into one or another of three classes of errors4 ,first1 there is a natural tendency to make a trade-mark descriptive1 to insert in the wording some phrase like ,best ,quality1 ,sold the ,world ,over1 or ,fits the ,figure or ,good for ,children--all of which are descriptive phrases4 ,you cannot register or protect an advertisement used as a trade-mark1 and such phrases are advertisements4 ,a trade-mark is a thing to be advertised4 ,it must not be an advertisement itself4 ,second1 there is a tendency on the part of many advertisers to incorporate their own names into their trade-marks4 ,this often leads to interminable and costly litigation4 ,third1 there is a tendency among manufacturers to select geographical terms as their trade-marks1 to use the name of the towns or cities where their plants are located1 or the names of states1 or of rivers or oceans4 ,the trade-name1 ,baltimore hosiery1 has a good sound1 and the word ,baltimore is easily remembered1 simple and euphonious4 ,but if you are a hosiery manufacturer1 and adopt it1 you do so at your peril1 even if you do business in ,baltimore4 ,you cannot protect it against any other manufacturer of hosiery who has a plant in ,baltimore1 even on the grounds of unfair competition1 unless you have used the name exclusively1 and for such a long period of time1 that it has lost most of its geographical sense in the hosiery trade1 and has developed into a word of restricted meaning in that line of business4 99 99 99 99 99 ,p4,s4 ,a manufacturer who intends to apply for the registration of a new trade-mark should take the precaution to have the files of the ,patent ,office searched to ascertain if a trade-mark like his1 or similar to it1 has been already registered for the same class of merchandise4 ,this should be done before application for registration is made4 ,when application to register a trade-mark is filed1 the trade-mark must be already in use4 ,this use may be limited to affixation upon a small consignment of goods1 but it must be a genuine and actual use of the trade-mark4 ,this being so1 it is worth while to ascertain if the proposed trade-mark has already been registered4 ,there are #ci1jjj registered trade-marks in existence1 divided among forty-nine classes of merchandise4 ,thousands of trade-marks have been registered for some classes4 ,it is not unusual for an applicant to find that the trade-mark he has intended to use has been adopted by someone else4 99 99 99 99 99 ,transcriber's ,notes3 ,footnotes have been moved to the end of each chapter and relabeled consecutively through the document4 ,illustrations and sidebars have been moved to paragraph breaks near where they are mentioned4 ,punctuation has been made consistent4 ,variations in spelling and hyphenation were retained as they appear in the original publication4 ,the wording of the chapter section titles in the ,table of ,contents differs from the actual section titles in many cases4 ,there is no ,chapter ,i section title corresponding to the ,table of ,contents entry ,ten-,years ,clause4 p4 #bi3 ,the ,,ormrod is not completely legible in the original publication and may not be exactly correct4 7,,ormrod ,,lehigh ,,co7 p4 #fh3 ,the ,chapter ,,iv section title ,infringement by ,foreigners ,through ,importation is not included in the ,table of ,contents4 p4 #hb3 ,the #c in #aijc in the ,swift ,co4's trade-mark figure on this page is not completely legible in the original publication and may not be correct4 7,,copyright #aijc7