sidered further on in this article in connection with the subject Unfair Trade.

§ 13. Principle and Object of Law. The fundamental principle of the law is simple and easy of comprehension. It is the touchstone by which every supposed infringement may be tested. It is this: that no man shall sell his own goods as those of another. He shall not steal the reputation of another. He shall sell his own manufacture as things made by himself and not by another. In other words, he shall not dress himself in another man's clothes and pass himself off as another man. It is the principle of simple honesty. This is the foundation upon which is builded the whole law of trade-marks, trade-names, and unfair trade. The object of the law is that one who through his skill and energy has placed upon the markets of the world goods made by himself which have become known for their excellence and as made by him, shall be protected in his right to the just gains and profits to which his energy and skill have entitled him.

The law has also a further object, which is to protect the community from imposition.

§14. Definition of Trade-Mark. The definition of a trade-mark is this: It is a name, a symbol, a figure, a letter, a numeral, a form, a word or a combination of words, or any kind of a definite arbitrary device adopted and used by one to distinguish the goods he makes and offers upon the market, so adopted to distinguish them from those made and sold by some other person. The object is that such goods, through the energy and skill of the maker, may become known in the markets of the world as those of the maker, and that through their approved excellence a trade may accrue to the maker and he may receive the advantages, gains, and profits resulting therefrom.

It is needful to observe the different characteristics of a trade-mark. It may be a name; it may be a picture; it may be a form, a shape. As, for example, a triangle, a picture of an eagle, a horse, or an Indian. It may be any arbitrary symbol which, used in connection with the name of the

maker, shall indicate to the world where the article comes from and by whom it was made.

The device must not only be adopted by the maker of the goods, but it must be attached to the manufactured product and used thereon. There is nothing original in the figure of an Indian, the picture of an eagle, or the shape of a triangle. One cannot adopt symbols and, without use of them upon articles of commerce, have an abstract right in them. The property right in a trade-mark is acquired by adopting and using the symbol by physical attachment to that which is made and sold.

§ 15. Originality. There need be no originality in the name, form, or device. Any name, form, or device may be appropriated and used, however ancient it may be. But it must be original in this-that the particular name, form, or device, has not before been used in connection with, or to designate the particular kind of goods manufactured and offered for sale. For example: A certain miller had acquired a wide reputation in Europe and America for his particular manufacture of flour. He stamped upon the heads of the barrels of flour the picture of an eagle, with his name underneath as the manufacturer. This flour became known all over the two continents as the "Eagle” brand of flour. In the course of trade the name of the manufacturer is lost sight of. The consumer who buys the flour and is pleased with its quality, knows nothing of and cares nothing for the manufacturer; but he knows that particular flour as the "Eagle" brand of flour. Therefore, while the manufacturer could not have an abstract right of property in the picture of an eagle, yet when he appropriates that symbol and attaches it to a particular make of flour placed by him upon the market, he being the first to do So, he becomes possessed of the right to that designation, to that symbol, to that trade-mark, with respect to flour. None other has a right to so appropriate that symbol. A manufacturer of another kind of goods, as, for example, a threshing machine, can with equal right adopt the eagle as his symbol as applied to threshing machines. The origi

nality inheres, not in the device, but in the appropriation of the device to the particular article of manufacture.

§ 16. Restrictions on Right. Generic and Geographic Names. While, however, one may choose for a brand a known word or symbol, there are limits to one's right of selection. The wrong of invasion upon the right to a trademark inheres in the sale of the goods of one manufacturer or producer as those of another, a false representation which inures to the injury of the rightful proprietor of the trade-mark. But as a valid trade-mark must either of itself or by association point distinctly to the origin or ownership of the article to which it is attached, unless it so does the proprietor cannot legally be injured, nor can the public be in law deceived. One may not have the exclusive use of a trade-mark or trade-name which would give to him a practical monopoly in the sale of goods not produced by him. That would destroy competition. Therefore, a generic or geographical name, or one merely descriptive of the article or of its quality, for instance, "Desiccated Codfish", "Cough Remedy", and "Rock and Rye", "Microbe Killer", "Acid Phosphate", cannot be exclusively appropriated, only those marks, forms, and symbols which designate of themselves or by association, origin, or ownership, not those which others may employ with equal truth, and geographical names indicate the place of production, not the producer. This is the doctrine of the Supreme Court of the United States in the noted Lackawanna Coal case,10 where it was held that one could not rightfully have a monopoly of the use of the term "Lackawanna Coal” as applied to the product of mines in the Lackawanna Valley, as all coal from that region was Lackawanna coal, and other producers of coal from that valley had equal right to the use of the name of the region.

This decision, however, must be considered as limited to producers of coal from that valley, for all such could truthfully declare their coal to be Lackawanna coal. Whether others could use the term with respect to coal produced from 10 Canal Co. v. Clark, 13 Wall. 311.

other sections, will be considered further on under the caption Unfair Trade.

Color and Form. So also one cannot appropriate a particular color and claim monopoly of its use as a trade-mark; nor can one adopt a mere form or shape of package and assert an exclusive right to its use as a trade-mark.11 These are common property, yet, as will hereafter be seen, the fact that one, seeking to represent his goods as those of another, has among other things designedly adopted the same shape of package or the same color of package, is given weight in consideration of the question whether he has unfairly and inequitably sought to palm off his goods as those of another. This matter is considered in what is hereafter said upon the subject of unfair trade; but as a technical trade-mark, shape or color of package cannot be monopolized.

Words Denoting Quality. Again words that are used to indicate the purpose and character of an article used for medicine can not be claimed as a trade-mark. Nor may one use as a trade-mark words, numbers, or symbols indicative of the quality of the article,12 or descriptive of the material from which the article is made. Thus one may not acquire a trade-mark in the words "Superfine", "Superior", or in any name which specifies the quality of the goods; nor in the words "Linen", "Cotton", "Wool", "Iron", "Steel", or in words of like character; for these are words which are of common right and which any one may truthfully make use of. Possibly, however, this statement should be confined to words of the English language, commonly understood by English speaking people as referring to quality or descriptive of the article, at least where the market affected is among English speaking people. In Gout v. Aleplogu,13 a man in London manufactured watches with the word "Passendede" marked upon them, which is a Turkish word mean

11 Coates v. Merrick Thread Co., 149 U. S. 562.

12 Manufacturing Co. v. Trainer, 101 U. S. 51, 55; Mill Co. v. Alcorn, 150 U. S. 460; Beadleston v. Cooke Brewing Co., 74 Fed. 229.

13 6 Beav. 69.

ing warranty. There could be no trade-mark on the English word "Warranty", and the right to the use of the Turkish word was upheld because, as it would seem, it was a Turkish word and did not imply on its face to Englishspeaking people that it referred to quality, and had become known and associated in the minds of the public with the particular name of the manufacturer as designating the origin of the watch; although the report would seem to show that the name of the plaintiff was also simulated and the goods were marketed at Constantinople, and the restraint granted was to forbid the defendant from sending to Turkey or to any other place and from selling and disposing of, any watches with the name of the plaintiff thereon, or the word "Passendede" in Turkish characters, and from manufacturing or vending such watches. The decision was bottomed upon the ground of fraud; but that would seem to sustain the right of the plaintiff to use the Turkish word in Turkish characters as a trade-mark. If this be correct, one may use a foreign word implying quality in connection with the name of the manufacturer, and it will be protected as a trade-mark, at least with respect to English-speaking people, because it does not carry to the minds of the people the idea of quality.

§ 17. Limits of Legal Protection. While the law seeks to protect the manufacturer in his right, it extends that protection to the honest manufacturer only. Equity will not favor the montebank or one who undertakes to deceive the public. The representation by the manufacturer or the owner of an article with a trade-mark attached, must be a true representation, and equity will withhold protection from one who is seeking to humbug the public, in trying to defraud the public.14 One or two illustrations may make this clear. One placed upon the market an article which he called "Mexican Balm" and announced by circular and upon the package that it was manufactured from a recipe of a distinguished savant from Mexico. It was nothing but a nostrum and the court of chancery of England properly 14 Manhattan Medicine Co. v. Wood, 108 U. S. 218.