trade-mark as to deceive, to make a die, and the like, for the purpose of forging, or for being used for forging a trademark, to apply any false trade description to goods, to dispose of or have in possession any die, or the like, for the purpose of forging a trade-mark, or to cause any of the above-mentioned things to be done." 18. Jurisdiction of Equity Courts. -The right of property in trade-marks was recognized in the common-law courts at an early date, but a long period elapsed before. such right was protected by injunction in a court of equity. For nearly half a century, however, the jurisdiction of equity courts in such cases has become thoroughly established, and is frequently exercised, both in the United States and England." In the United States, the legislative authority enacted the trade-mark law of 1881, which, as to remedies, provided: "That registration of a trade-mark shall be prima facie evidence of ownership. Any person who shall reproduce, counterfeit, copy, or colorably imitate any trade-mark registered under this act, and affix the same to merchandise of substantially the same descriptive properties as those described in the registration, shall be liable in an action on the case for damages for the wrongful use of said trade-mark at the suit of the owner thereof; and the party aggrieved shall also have his remedy according to the cause in equity to enjoin the wrongful use of such trade-mark used in foreign. commerce or commerce with Indian tribes . . . and to recover compensation therefor in any court having jurisdiction over the person guilty of such wrongful act; and the courts of the United States shall have original and appellate jurisdiction in such cases without regard to the amount in controversy.' The state courts also have jurisdiction to enjoin a party from infringing the trade-mark of a competitor. This was declared by the supreme court of Indiana, which. in referring 63 Encyc. Brit. 65 21 U. S. Stats. at L., p. 502, Sec. 7. 64 Bisph. Eq. (4th Ed.), Sec. 556, citing 33 Conn. 157 (1865); 11 H. L. Cas. (Eng.) 523 (1865): 34 Beav. (Eng.) 157 (1865); 3 De G. F. & J. (Eng.) 217 (1861); 45 N. Y. 291 (1871); 21 Cal. 448 (1863). to federal legislation previous to the national trade-mark law of 1881, declared that the act of congress, assuming to confer exclusive jurisdiction upon the federal courts in trade-mark cases, had been pronounced unconstitutional, by the cases cited therein. As to the federal decisions declaring the federal trade-mark statutes of 1870 and 1876 unconstitutional, the Indiana court said: "These decisions settle the question, and, beyond all doubt, settle it correctly, since congress has no more power to deprive the state courts of jurisdiction in trade-mark cases than it would have to deprive them of power to decide controversies concerning any other species of property. A trade-mark is not within the provisions of the federal constitution respecting copyrights and patents."'** 19. Parties to an Action.—In an action at law or in equity, where the infringement of a trade-mark is in controversy, the plaintiff or complainant may be the owner of the trade-mark, or his assignee, if the latter take at the same time of the assignment to him the right to manufacture or sell the particular merchandise to which said mark has been attached; but there is no property in it as an abstract right." An alien who has sold his goods and used his trade-mark in the United States enjoys all the rights of a citizen, both as to common-law rights and under the statutes; but, by rule established by certain cases, a foreigner, who has never introduced his goods or conducted trade in the United States, nor used his trade-mark in connection therewith, no matter how extensive his trade-mark rights or the extent of his trade abroad, cannot be considered as having any common-law trade-mark rights in the United States, except so far as they are given him under Sec. 8 of the international convention, which provides that "the commercial name shall be protected in all the countries of the (international) union, without obligation of deposit, whether it forms part or not. of a trade or commercial mark.' 66 118 Ind. 105 (1888), by Elliott, C. J., citing 100 U. S. 82 (1879); 39 Fed. Rep. 775 (1889); 40 Fed. Rep. 250 (1889). 672 Brewst. (Pa.) 321 (1869). 68 Am. & Eng. Encyc. Law (1st Ed.). Vol. 26, p. 485, citing 15 Fed. Rep. 236 (1883); 52 Fed. Rep. 455 (1892). In England, under the statutes to which reference has been made with respect to registration, and which make registration compulsory and necessary to support an action, except so far as a commercial name is concerned, an alien may maintain an action." In most foreign countries, provisions have long existed for the registration of trade-marks; and they also form one of the classes of industrial property for the protection of which an international convention was formed in 1883." The defendants in an action for infringement are, in general, any persons who violate the rights of another secured by the trade-mark laws. One who manufactures goods and puts the trade-mark of another upon them, though he does it innocently and conscientiously, becomes liable to the owner of the registered trade-mark.” The infringer must at least know that he has no right to the mark, and that knowledge will make him liable to account for the profits he has realized." 20. Evidence. As previously stated, in technical trademark cases, intent will be presumed. The injury to the owner need not be proved. The United States trade-mark law declares that registration shall be prima facie evidence of ownership; being prima facie evidence only, the fact of ownership may be disproved. If not disproved, the registration stands as uncontradicted proof of the ownership in the person in whose right and name it is registered. But, as stated before, there is no property in a trade-mark as an abstract title. It is assignable by the act of the owner or by operation of law to any one who at the same time takes the business, that is, the right to manufacture and sell the merchandise." Where a trade-mark is a personal one, designating a particular person and his reputation and skill, it cannot be used by another, and, therefore, is not assignable. If such a trade-mark were to be used by others, it would be a fraud on the public." Consequently, though the use of a trade-mark can generally be seen by the court at a glance, 6928 L. J. Ch. (Eng) 56 (1959). 70 See subtitle Copyright supra. 713 Myl. & C. (Eng.) 338 (1838). 7 2 10 L. T. N. S. (Eng.) 395 (1964). 732 Brewst. (Pa.) 321 (1869). 74 143 Mass. 592 (1887). and if found on another's goods might be enjoined without further inquiry, courts will frequently require evidence to prove lawful ownership. On the question of deception, although it may be presumed that the use of a registered trade-mark by an alleged infringer is calculated to deceive the mass of customers and thereby cause injury to the owner, the courts may, and often do, require proof either of actual deception of the rightful owner's customers, or the probability of deception." It is, however, held that the mere probabilities of deception justify the remedy by injunction, and piracy will be checked if a trade-mark be simulated in such a way as probably to deceive customers." As has been seen, whether a trademark be infringed or not may be determined by the court by basing its conclusions on a comparison of it with the alleged infringing one." Intentional fraud is not necessary to entitle the plaintiff to protection; where the same mark or label is used which recommends the article to the public by the established reputation of another, who sells a similar article, and the spurious article cannot be distinguished from the general one, an injunction will be granted, although there was no intentional fraud." These rulings and the unsatisfactory results of expert testimony, which are frequently offered and as often rejected, warrant the assertion, made by an authority, that "much the safer rule is to eliminate all question of the deception of the public and to rest entirely upon the ground of property."" 75 Am. & Eng. Encyc. Law (1st Ed.), Vol. 26, p. 494. 764 McLean (U. S.) 516 (1849); 8 Am. Law Reg. N. S. 402 (1869). 7756 Fed. Rep. 830 (1893). 79 Am. & Eng. Encyc. Law (1st Ed.) THE LAW OF INSURANCE (PART 1) INTRODUCTION DEFINITION AND HISTORY 1. Insurance is a contract whereby, for an agreed premium, one party undertakes to compensate the other for loss on a specified subject by specified perils.' All that is requisite to constitute such a contract is the payment of consideration by the one, and the promise of the other to pay the amount of the insurance upon the happening of the contingency contemplated in the contract.' The risk or peril is the thing or event insured against; the beneficiary is the person named in the policy to whom the amount named therein is to be paid upon the happening; the policy is the written or printed form to which the contract has been reduced, and which evidences the agreement between the parties. The contract of insurance had its origin in the necessities of commerce. It sprang from the law maritime, and derives all its material rules and incidents therefrom. It was unknown to the common law, whose remedies were so inadequate that disputes arising out of the contract were generally left to arbitration, until the year 1601 when an English statute, the preamble of which recognized the great benefit arising to commerce by the use of policies of insurance, was passed, creating a special court, or commission, to hear and determine insurance causes. The commission thus created was to be directed to the judge of the admiralty for 1 Bouv. Law Dict. 2 105 Mass. 149 (1870). For notice of copyright, see page immediately following the title page |