phrase "Syrup of Figs," therefore, constitutes a valid trademark, as not being in any source a general term. It is not a name of a natural product, or of a class of natural products. It is the result of a manufacturing process, and produced by the person who, in applying the name to an artificial product, is safe in the protection of the use of that name as a trade-mark.26 In the long list of words and phrases that cannot be monopolized and protected as trade-marks, under the law, because they are descriptive of the goods or business are: "Tycoon," applied to tea;" "Taffy Tolu," applied to chewing gum;""The Antiquarian Book Store," as being merely descriptive of the class of books sold;"" "Satinine," applied to starch and blue;" "Nourishing Stout," on labels attached to bottles containing that liquor, as denoting quality;" "International Banking Company," which is descriptive of the business." There are, however, a few exceptions to the rule that words denoting quality cannot be monopolized and protected as trade-marks. A notable case is that of "Asepsin," indicating the antiseptic qualities of a salt obtained from wintergreen. It was held that the word being a new invention was not invalid as a trade-mark because it suggested quality. The reasons upon which this departure from the general rule is grounded are stated by an authority to be that, though a name is thoroughly descriptive, having become so by long use and association with goods of a particular kind, still the trade-mark will be protected. because it would be the height of injustice to an honest trader who, by the expenditure of his time, labor, and money had so widely extended the knowledge of his goods that his valid trade-mark had come to describe their character, quality, and ingredients, to deprive him of the fruit of his labor just when it was most valuable to him." 26 54 Fed. Rep. 175 (1893). 27 133 U. S. 308 (1889). 28 35 Fed. Rep. 150 (1888). 292 Am. Rep. 476 (1870). 30 43 Ch. Div. (Eng.) 604 (1890). 31 22 W. R. (Eng.) 53 (1873). 32 122 N. Y. 65 (1890). 33 Am. & Eng. Encyc. Law (1st Ed.), Vol. 26, p. 305, citing 25 Ohio L. J. 319 (1891); 32 Fed. Rep. 94 (1887); 45 Am. Rep. 169 (1883); 16 Pat. Off. Gaz. 679 (1891). DOCTRINE OF TRADE-MARK PROTECTION 7. The object or purpose of the law in protecting trademarks as property is twofold: (1) To secure to him who has been instrumental in bringing into the market a superior article of merchandise, the fruit of his industry and skill; (2) to protect the community from imposition, and furnish some guarantee that an article, purchased as the manufacture of one who has appropriated to his own use a certain name, symbol, or device as a trade-mark, is genuine. Consequently, the violation of property in trade-marks works a twofold injury: (1) The appropriator suffers, in failing to receive that remuneration for his labors to which he is justly entitled; and (2) the public suffers in being deceived and induced to purchase articles manufactured by one man, under the belief that they are the production of another." Since the office of a trade-mark is to designate the true origin or ownership of the article to which it is affixed, or in other words, to give notice who was the producer, unless it give such notice, he who first adopted it cannot be injured by any appropriation or imitation of it by others, nor can the public be deceived." It results that, where the validity of a trade-mark and the right to secure protection in its exclusive use is questioned, the primary inquiries are: Is the trademark of such a nature as to fulfil the purpose of its office? Is it distinctive in its original signification, pointing to the origin of the article, or has it become such by association? An affirmative answer to these questions will secure protection from the court, provided the mark can be upheld as the exclusive property of one without interfering with the property rights of others. A trade-mark has been likened to a man's business autograph. Just as one places his signature to commercial paper, making it an assurance to others that he executed it, so his selection and adoption of a trade-mark is indicative of the excellent reputation of the manufacture upon which 34 35 Conn. 402 (1868). 35 13 Wall. (U. S.) 311-328 (1872). This is the he places his symbol or device as a trade-mark. declared theory on which the right to a trade-mark is properly based. Having acquired a reputation for excellence in the manufacture or preparation of an article, which reputation is the source of profit to him, he is entitled to protection, the same as he is in the advantages of the good-will of his established business. So that the purchasing public may know the origin of such articles when offered for sale, and that they are his manufacture or preparation, he may adopt and place on them, as the index of their origin, some device or symbol not used by others upon similar articles." Although a particular device or symbol that merely denotes the quality, character, material, or grade of an article will not secure registration as a trade-mark, it must not be overlooked. It is claimed, "that a trade-mark is indirectly the guaranty of the quality of an article to which it is attached, as well as of its origin and ownership, for, in all cases, the trade-mark in indicating the origin by necessary implication represents the quality of the article which is the true source of its reputation in the market. There is no abstract right in a trade-mark. It is property only when appropriated and used to indicate the origin and ownership of an article. or goods, and its real value consists in the confidence and patronage of the public, secured through its instrumentality in acquainting them with the origin and ownership. of an article which thus gains reputation for its superior qualities."" Title to a trade-mark is acquired by legal adoption and use. In the United States, the consensus of the cases is that as soon as the mark is applied it becomes the property of him who first formally makes the application. In England, the decided cases seem to indicate that there must be something more than mere adoption and application of a trade-mark to create an exclusive right at common law." Legal adoption means the selection and appropriation of some device or symbol that is legally capable of exclusive 36 40 Minn. 243 (1889). 37 81 Ky. 73 (1883).; 38 Browne Trade-Marks, Sec. 52. appropriation, one which has not been previously used by others for the same class of merchandise or business, and which has been applied to goods and a use in trade in such manner as to show an intention to adopt it as a trade-mark for a specific article. Therefore, it seems that the more logical and useful rule as to the acquisition of title is the one suggested by an authority, "that the instant a vendor adopts a valid trade-mark to indicate his goods, and applies it to his goods with his name and address, and sells his goods in the open market in the regular course of trade, his title becomes complete and established." 9939 REGISTRATION 8. In the United States. - Trade-marks are protected by registration in the United States patent office. The acts of congress of 1876 and 1881 constitute what is known as the national trade-mark law. The commissioner of patents is empowered by the latter act to "decide the presumptive lawfulness of claim to the alleged trade-mark; and in any dispute between an applicant and a previous registrant, or between applicants, he shall follow, so far as the same may· be applicable, the practice of the courts of equity in the United States in analogous cases."'* An appeal from the decision of the commissioner of patents lies to the circuit court of appeals of the District of Columbia, and from that court to the supreme court of the United States, as in copyright cases. Registration of trade-marks is limited by statute to the owners of trade-marks used in commerce with foreign nations or with the Indian tribes, "provided such owners shall be domiciled in the United States or located in any foreign country or tribes, which, by treaty, convention, or law, affords similar privileges to citizens of the United States.' The provision that trade-marks to secure registration must be such as have been "used in commerce with foreign 39 Am. & Eng. Encyc. Law (1st Ed.), Vol. 26, pp. 346-349. 3941 40 U. S. R. S., Sec.4, 949. nations or Indian tribes" is complied with by sending a few samples of the goods, with the trade-mark affixed, to a merchant or dealer in Canada or Mexico. The trade-mark must have been adopted and used before application for registration is made, and herein, it differs from the application for a patent, which cannot be successfully made for an article that has been in public use, or described in a publication, for more than two years prior to the application. To secure registration, a full compliance with the statutory requirements is necessary. These requirements are the filing of and causing to be recorded in the patent office a statement specifying the name, domicil, location, and citizenship of the party applying, the class of merchandise, and the particular description of goods comprised in such class to which the particular trade-mark has been appropriated, a description of the trade-mark itself, with facsimiles thereof, and a statement of the mode in which the same is applied and affixed to goods, and the length of time during which the trade-mark has been used. Those statements comprise the application, which, in order to create any right in the party filing it, must be accompanied by a written declaration verified by the person, or by a member of the firm, or by an officer of the corporation applying, to the effect that such party has at the time a right to the use of the trade-mark sought to be registered, and that no other person, firm, or corporation has the right to such use, either in the identical form or in any such near resemblance thereto as might be calculated to deceive; that such trade-mark is used in commerce with foreign nations or Indian tribes, as above indicated; and that the description and facsimiles presented for registry truly represent the trade-mark sought to be registered. The application must be accompanied by the government fee."2 42 On the receipt of the application it is noted and recorded, and, if it appear that the alleged trade-mark has been lawfully used as such by the applicant in foreign commerce or 42 Act Mar. 3, 1881, Secs. 1, 2. |