Carpenter, J., in Davis v. Davis, 27 Fed. Rep. 490, 491. "What is a trademark? A 'mark' means to make a visible sign upon something, to affix a significant mark to; to draw, cut, fasten, brand; a token upon, indicating or intimating something; to affix an indication to; to attach one's name or initials to. A trademark, therefore, consists of the use in trade of such a mark, placed upon goods manufactured by a particular person and placed in the market with such marks, for sale and trade." Welker, J., in Adams v. Heisel, 31 Fed. Rep. 279, 280. "A trademark is properly defined by Upton (Upton's Trademarks, 9) as 'the name, symbol, figure, letter, form or device adopted and used by a manufacturer or merchant, in order to designate the goods that he manufactures or sells, and distinguish them from those manufactured or sold by another, to the end that they may be known in the market as his, and thus enable him to secure such profits as result from a reputation for superior skill, industry or enterprise.' The trademark must be used to indicate not the quality, but the origin or ownership of the article to which it is attached. It may be any sign, mark, symbol, word or words, which others have not an equal right to employ for the same purpose." Earl, Commissioner of Appeals, in Newman v. Alvord, 51 N. Y. 189, 193. "Every one is at liberty to affix to a product of his own manufacture any symbol or device, not previously appropriated, which will distinguish it from articles of the same general nature manufactured or sold by others, and thus secure to himself the benefits of increased sale by reason of any peculiar excellence he may have given to it. The symbol or device thus becomes a sign to the public of the origin of the goods to which it is attached, and an assurance that they are the genuine article of the original producer. In this way it often proves to be of great value to the manufacturer in preventing the substitution and sale of an inferior and different article for his products. It becomes his trademark, and the courts will protect him in its exclusive use." Mr. Justice Field in Amoskeag Mfg. Co. v Trainer, 101 U. S. 51, 53; 25 L. Ed. 993. or "Trademark.-An arbitrary symbol affixed by a manufacturer merchant to a vendible commodity. The principal purpose of a trademark is to guarantee the genuineness of a product. It is, in fact, the commercial substitute for one's autograph. In all ages it has been used to denote origin, and thus protect the purchaser as well as the vendor. All countries protect the integrity of trademarks, and nearly all civilized nations have treaties or conventions securing reciprocity of protection. The tests of a trademark are: 1. Universality; that is, commonly recognized as such. 2. Exclusiveness; in the possession of the owner. 3. Individuality; must indicate origin and ownership. 4. Must be for merchandise. 5. Must be in a lawful business. 6. Must be distinct and invariable." Dictionary, p. 2609. Knight's Mechanical title "Trademark," "Our word trademark' comprehends both the marque de fabrique and marque de commerce of France." Townsend, J., in La Republique Francaise v. Schultz, 57 Fed. Rep. 37, 41. "A distinctive mark of authenticity, through which the products of particular manufacturers or the vendible commodities of particular merchants may be distinguished from those of others." Mr. Chief Justice Fuller in Elgin Nat. Watch Co. v. Illinois Watch Case Co. (2), 179 U. S. 665, 673, 45 L. Ed. 365. "A trademark is a name or a mark or a device which is attached to the article to point out its origin." Shipman, J., in Adee v. Peck Bros. & Co., 39 Fed. Rep. 209, 210. "A trademark is a word, a symbol or device by which the wares of the owner are known in trade." Coxe, J., in Kipling v. G. P. Putnam's Sons, 120 Fed. Rep. 631, 57 C. C. A. 295. "A trademark is an arbitrary, distinctive name, symbol, or device, to indicate or authenticate the origin of the product to which it is attached." Deemer, C. J., in Sartor v. Schaden, 101 N. W. Rep. 511, 125 Iowa, 696. "A trademark is a notice, a medium of information touching origin or ownership." Showalter, J., in Beadleston & Woerz v. Cooke Brewing Co., 20 C. C. A. 405; 74 Fed. Rep. 229, 234. "A trademark is a means of authenticating or indicating the origin of an article." Billings, J., in Johnson V. Schenck, Fed. Case No. 7,412. "A trademark is a distinctive mark of authenticity through which the products of a particular manufacturer may be distinguished from others." Veeder, J., in United L. & B. Mfg. Co. v. Barthels Mfg. Co., 221 Fed. Rep. 456, 459 (obviously too limited because it does not cover natural products, selectors' marks, etc.). "A trademark is a guaranty that the goods to which it is attached are made by its owner." Coxe, J., in American Tobacco Co. V. Polacsek, 170 Fed. Rep. 117, 120. "A trademark is a distinctive name, word, mark, emblem, design, symbol, or device used in lawful commerce to indicate or authenticate the source from which has come, or through which has passed, the chattel on or to which it is affixed." Fly, J., in Western Grocer Co. V. Cafferelli Bros. (Tex.), 108 S. W. Rep. 413, 414, (not officially reported) adopting the definition of the author. "A trademark is something used on salable articles to designate them as the articles made by A., and to distinguish them from similar articles made or sold by B." Torrance, J., in Hygeia Distilled Water Co. v. Hygeia Ice Co., 40 Atl. 534, 540; 70 Conn. 516. "The only recognized indication of a trademark is the source, origin or ownership of an article of merchandise on which it is placed. Caswell v. Davis, 58 N. Y. 223; 17 Am. Rep. 233. This means that the mark is calculated to distinguish the articles which bear it from those of other makers or vendors. It need not indicate any particular person as maker, manufacturer, or vendor, or give the name or address of either. When the mark has become recognized by purchasers as a distinctive designation of a particular manufacturer, maker, or seller of a certain quality of goods, it will be a suf tive name, word, mark, emblem, design, symbol or device, used in lawful commerce to indicate or authenticate the source from which has come, or through which has passed,5 the chattel upon or to which it is applied or affixed." ficient indication of the origin or ownership, within the rule requisite to its protection as such, though purchasers may not, from the words or otherwise, be able to tell who is the particular maker or seller of the articles. Its value is in its employment, marking the goods on which it is placed. This gives it the character of property. It is, then, a symbol of reputation or good will." People v. Fisher, 50 Hun, 552; 3 N. Y. Supp. 786; adopted in State v. Bishop, 31 S. W. Rep. 9, 11; 128 Mo. 373; 29 L. R. A. 200; 49 Am. St. Rep. 569. 4-By the word "distinctive," as used in our definition, is meant that the mark must be something which "shall be capable of distinguishing the particular goods in relation to which it is to be used from other goods of a like character belonging to other people." Lord Chief Justice Russell, in Rowland v. Mitchell, L. R. (1897) 1 Ch. D. 71, 74; Wood v. Lambert, L. R. 32 Ch. D. 247; 54 L. T. N. S. 314; 3 P. R. 81; (Court of Appeals) L. R. 32 Ch. D. 257; 55 L. J. Ch. 277; 54 L. T. N. S. 317; 3 P. R. 88; Re Perry Davis & Son, 58 L. T. N. S. 695; 5 P. R. 333, and many similar English cases treat of the word "distinctive" as used in the English Patents, Designs and Trademarks Act of 1883, section 64, subsection 1, c. But the word is used with the same significance by our own leading jurists, as for example, by Mr. Chief Justice Fuller, in Elgin National Watch Co. v. Illinois Watch Case Co. (2), 179 U. S. 665, 673; 45 L. Ed. 379; by Justice Holmes, in Northeastern Awl Co. v. Marlborough Awl Co., 168 Mass. 147; 60 Am. St. Rep. 373; and by Judge Lacombe in National Biscuit Co. v. Baker, 95 Fed. Rep. 136. For this reason the word is incorporated in the definition given in the text. 5-"The use of a trademark does not necessarily and as a matter of law import that the articles upon which it is used are manufactured by its user. It may be enough that they are manufactured for him; that he controls their production, or even that they pass through his hands in the course of trade, and that he gives to them the benefit of his reputation, or of his name and business style." Sheldon, J., in Nelson v. J. H. Winchell & Co., 203 Mass. 75; 89 N. E. Rep. 180; citing Weener V. Brayton, 152 Mass. 101, 102; 25 N. E. Rep. 46; 8 L. R. A. 640; McLean v. Fleming, 96 U. S. 245, 253; 24 L. Ed. 828; Menendez v. Holt, 128 U. S. 514, 520; 32 L. Ed. 526; Godillot v. Harris, 81 N. Y. 263, 266; In re Australian Wine Importers, L. R. 41 Ch. D. 278, 280, 281; Major Brothers v. Franklin (1908), 1 K. B. 712; Ullman v. Leviba (1908), A. C. 443. 6-The mode in which the mark is applied or affixed is immaterial. It may be water-marked in translucent fabrics. Price v. Goodall, L. R. (1891) 1 Ch. D. 35. It has been held to be a sufficient method § 4. Tradenames and Trade Slogans.-The word "tradename" as used in the decisions has two different meanings. Standing alone, and separate from the word "trademark” it includes all business names; while in the expression "trademarks and tradenames" it means all business names which are not technical trademarks." The Massachusetts court holds that "a trademark relates chiefly to the article sold. A tradename embraces also the individuality of the maker;" 7a a distinction which would prevent anyone but a manufacturer from acquiring a tradename. Mr. Browne, in his valuable treatise on trademarks (sec. 91) uses the following language: "the distinction will be readily comprehended, when it is remembered that a trademark owes its existence to the fact that it is actually affixed to a vendible commodity. A tradename is more properly allied to the good will of a business." This distinction is of itself decidedly misleading. Many tradenames are "actually affixed to a vendible commodity," and as both trademarks and other tradenames are a constituent part of the good will of the business in which they are used, it is not possible for one class of names to be more properly allied to the good will than the other, nor is it proper to say of either that it is "allied" to something of which it is a component part. Like a trademark, a tradename is not assignable except in connection with the business in which it is used.sa of affixing the mark, to use it in advertising, and to place a lithographed facsimile of it on a card, in a box containing a quantity of the goods. Hay & Todd Mfg. Co. v. Querns Brothers, 86 Off. Gaz. 1323. It has been held that to display the mark on a show card placed on lots of candy in a show window, is not sufficient to establish a trademark right therein. Oakes v. St. Louis Candy Co., 146 Mo. 391; 48 S. W. Rep. 467. 7-N. K. Fairbank Co. v. Luckel, King & Cake Soap Co., 102 Fed. Rep. 327, 331; 42 C. C. A. 376; 92 Off. Gaz. 1437. 8a-"It is well settled that a tradename, separated from the business to which it belongs and in which it is used, is not a species of property, and can not be sold and transferred as such, but can only pass with some property or business with which the same has become identified. Rodseth v. Northwestern, etc., Wks., 129 Minn. 472; 152 N. W. 885; Ann. Cas. 1917A, 257; Weener v. Brayton, 152 Mass. 101: 25 N. E. 46; 8 L. R. A. 640; Witthaus v. Braun & Mattfeldt, 44 Md. 303; 22 Am. Rep. 44; The Fair v. Jose Morales Co., 82 Ill. App. 499; Seabrook v. Grimes, 107 Md. 410; 68 Atl. 833; Skinner v. Oakes, 10 Mo. App. 45; Jacoway v. Young, 228 Fed. 630; 143 C. C. A. 87; Falk v. American, etc., Co., 180 N. Y. 445; 73 N. E. 239; 1 L. R. A. (N.S.) 704: 105 Am. St. Rep. 778; 2 Ann. Cas. 216. In the instant case it is not alleged that appellee sold or transferred anything to appellant, 9 A name is frequently referred to as a "trademark" and as a "tradename" in the same opinion. Some of our ablest judges treat the words "tradename" and "trademark" as synonymous.10 Some of the cases dealing with tradenames are fairly bewildering to one who endeavors to reconcile them or deduce a general definition of "tradename" from them. In a Massachusetts case, for example, the court found that the defendant had acquired the right to the use of the name "John G. Loring & Co." as a "trademark" on goods, but had no right to use it as a tradename.11 This confusion is not lessened by those opinions in which the courts seek to point out functions common to trademarks and tradenames. For example, "a 'trademark' or 'tradename' is some symbol by which one man's manufacture is differentiated from another's. ''12 As a proper name can not be a trademark, under principles discussed elsewhere in this book, while the meaning of the word as used by the court is clear, the opinion lends no assistance to the distinction between "trademark" and "tradename.' Historically, this confusion probably arose in the English decisions. In one of the leading cases we find that Lord Chancellor Westbury said "a name or the style of a firm may by long usage become a mere trademark, '13 and in the same case, in the House of Lords, Lord Cranworth referred to the difficulties which "may arise where the trademark consists merely of the name of the manufacturer. ''14 Lord Romilly said in another case "the name or style of the firm of 'Banks & Co.' was an asset of the partnership, and if the whole concern and the good will of a business have been sold, the name, as a trademark, would have been sold with it.''15 With this loose use of the word trademark by such eminent except the naked tradename 'Bankable.' In view of this fact we are compelled to hold, under the rule stated, that the court did not err in sustaining appellee's demurrer to said first paragraph." Batman, J., in Smith v. Yost, Ind. ; 125 N. E. Rep. 72, 76. 9-Opinion of Seaman, J., in Postum Cereal Co. v. American Health Food Co., 109 Fed. Rep. 898. 10 Thomas G. Plant Co. v. May Co., 44 C. C. A. 534; 105 Fed. Rep. 375. 76. 11-Bowman v. Floyd, 85 Mass. 12-Hand, J., in R. Guastavino Co. v. Comerma, 180 Fed. Rep. 920. 13-Leather Cloth Co. v. American Leather Co., 4 DeG. J. & S. 141, 144. 14-Leather Cloth Co. v. American Leather Cloth Co., 11 H. L. C. 523, 533. 15-Banks v. Gibson, 34 Beav. 566. |