in the nature of a monopoly. He who uses a symbol upon his manufactures has alone the right so to use it. The right is exclusive in him. Yet, it is quite different from the monopoly of patents and copyrights. The trade-mark is not a product of invention. It is merely the adaptation of a particular symbol to particular goods. It does not involve a high operation of the mind as is the case in patents and copyrights. And these latter are granted by statute and only for a specified term. On the other hand, the trademark is the child of commerce and of the common law, and the monopoly exists so long as the manufactured article to which the symbol is attached is placed upon the markets of the world.

§7. Power of Congress Over. The supreme court in this respect further held that under the eighth clause of the eighth section of the first article of the Constitution, the Congress was without power to legislate upon the subject, and that if the act could be upheld as a regulation of commerce under the interstate commerce clause of the Constitution, it must be limited to the use of trade-marks in "commerce with foreign nations, among the several States, and with the Indian Tribes." It was void because its provisions are applicable to all commerce and not to that which is subject to the control of the Congress.

Subsequently, on March 3, 1881,7 another act was passed by the Congress, which was in effect a re-enactment of the former acts, except that its scope was limited to trade-marks used in the commerce with the Indian Tribes and foreign nations. Such legislation is manifestly constitutional, but is of little moment except as to international commerce. The act would clearly be constitutional if it embraced interstate commerce and it would have covered a much broader field. Why the act was so restricted in operation can only be surmised. It was probably due to some supposed political reason.

While any legislation upon the subject by the Congress is useful in respect of the registration of trade-marks as

7 21 Stat. 502.

affording certainty of proof with respect to the date of appropriation of the trade-mark, it must always be remembered that in the United States of America a trade-mark does not derive its value as property from statute, but from the common law; not from registration, but from public use; from the offering for sale of an article to which the device is physically attached. The commercial features of the statute, however, would be of great importance, if they were applied to interstate commerce, affording much more certain protection to the owner of the trade-mark than is given by any law of the State.

§ 8. Trade-Marks as Property. This trade-mark is property. It is as much and as rightfully property as a piece of real estate, as a stock of goods, as the good will of a business. The manufacturer, say of flour, commencing business, desiring to secure trade, makes an article of flour of peculiar quality. He uses the eagle for his brand. He expends money in making that brand known, in advertising; and after a time, through energy and diligence in business, the flour becomes widely known as the "Eagle” brand of flour. The right to that brand, attached as indicative of his manufacture, is just as much property in the manufacturer, and he has just the same right to protection under the law, as the real estate, or the goods, or the reputation that one has. It is valuable property, and the law protects the right of property upon two grounds; and the first, which may be termed the legal ground, is the protection of individual right. Men have invested money largely in establishing particular brands, particular trade-marks. Therein the worth of them consists. Of themselves they are worthless. There is no originality to them. It is not the conception of genius or of any particular ability. It sometimes largely consists in the oddity of the brand, something that will attract attention, and it is developed and made known largely by adver tisement, by personal solicitation, and large sums of money are expended before any returns can be had, in making that brand known to the public. When it becomes known, then like a snowball rolling down the hill, accumulating as it

rolls, the trade becomes a valuable and profitable trade. It is that right of a man to his diligence, to his skill, which the law protects in seeking by way of damages at law and by way of injunction in equity, to prevent infringement of this right.

§ 9. Protection of, by Injunction. The equitable ground upon which the right is protected by injunction, is to prevent the deception of the public. This ground is probably made prominent because it is only in comparatively recent years that equity has assumed jurisdiction of this class of cases and has rested jurisdiction upon that ground as a proper ground for equitable interference. This equitable ground rests upon the idea that the public ought to be protected from fraud in their right to obtain just what they desire. It is no answer to say that the article which infringes is a better article than that the mark of which was infringed, and that the purchaser and the public are not injured, because they get a better article than they supposed they were getting. And this, because one has the right to buy that which one intends to buy; and no man has the right to impose upon one even to one's own good, and give a better article for and as the particular article which one desires. And if one wishes a particular article, he has the right, without hindrance, without deception, and without fraud practiced upon him, to get that particular article, although another manufacturer may make what is intrinsically a better article, and seek to impose it upon one as the particular article which he desires.

§ 10. Valid Trade-Mark. It is not essential to a valid trade-mark that its use should have been long continued, or that the article upon which it is used should be widely known, or should have attained great reputation. It is sufficient if the article with the mark upon it has become actually a vendible article in the market, with intent by the proprietor to continue its production and sale.8

8 McAndrew v. Bassett, 10 Law Times, New Series, 442; Hall v. Barrows, 32 L. J., ch. 548; Manufacturing Co. v. Beeshore, 59 Fed. 572; Kathreiner's Malz Kaffee Fabrika, v. Pastor Kneipp's Medicine Co., 82 Fed. 321.

§ 11. Right of Purchaser. As the law protects the skill and industry which has produced the article to which the trade-mark has been attached and by which it has become known and found favor with the public, so the merchant who buys of the manufacturer the article to which the trademark is attached, acquires also by virtue of his relation to the manufacturer, the right to sell that article with the trade-mark attached. He does so, however, only by virtue of his contract relation with the manufacturer. By virtue of having purchased of the manufacturer he has thereby vested in him the right to sell that particular article so sold to him with the trade-mark attached.

§ 12. Transfer of Ownership. This right of ownership in a trade-mark may be transferred as other property rights are transferred. It is something that may be sold, but can be sold only in connection with the article to which the trade-mark is attached, with the right to manufacture the particular article. The trade-mark, without the thing manufactured and the right to manufacture it, cannot be transferred. This may be illustrated by a case which goes to establish that one may, under peculiar circumstances, cease to have the right to use his own name as a trade-mark or trade-name. In the case of Compere v. Bajou, in the French courts, B, a manufacturer of gloves in Paris, transferred to one M his business and its good will, authorizing him to adopt his trade-mark on gloves manufactured by him, which trade-mark was a simple facsimile of the signature of B. B agreed not to make gloves in France except at G, and then to call them "G" manufacture only. B gave to M the exclusive right to that name on gloves, but commenced to manufacture gloves at G, and stamped his signature upon them. It was held by the highest court in France that he had transferred his right to that name in connection with gloves; the court observing that the true value of the business existed in the manufacturer's mark on which his custom depended, the stamp being the only means of establishing the source of custom and of retaining the custom dependent upon it.

This transfer may be by operation of law as well as by the direct act of the party. If the manufacturer of an article should fail and be put in bankruptcy, and the court, acting through the assignee in bankruptcy, should sell out the business to a purchaser with the good will of the business, the right to the trade-mark would pass to the purchaser as against the bankrupt, who ceases to have any ownership in the trade-mark. So also in the case of a survivor of a partnership. And this is illustrated by a curious case that is valuable on more grounds than one. Day & Martin was a firm in London engaged in the manufacture of blacking which had a high reputation. Day died. The survivor continued the business under the old name, manufacturing the blacking and attaching to the boxes the words "Day & Martin's Blacking", which was the trade-name by which the article was known. After a time the surviving partner died, and the executors continuing the business sold out to one C who thereafter conducted the manufacture with the trade-name of "Day & Martin's Blacking." Then Day's son associated with himself a man by the name of Martin and started, and carried on, the business of the manufacture of blacking, selling their product as "Day & Martin's Blacking", and the court enjoined their doing so. While that was their right name, yet upon the principle that the right of that trade-mark had vested in the survivor of the partnership and in the purchaser under the executors of the original Day & Martin, the son of the original proprietor and the man Martin whom he associated with him, probably on account of his name, had no right, although their partnership name was Day & Martin, to dress themselves in other men's clothes, to put their names upon that blacking and palm it off upon the public as that manufactured by the old firm of Day & Martin, to whose business C had succeeded.9

Thus a man may sometimes, and under peculiar circumstances, and as to particular property, have no right to use his own name. This rather peculiar condition will be conCroft v. Day, 7 Beav. 84.