tures, peculiar appearance, ornamentation of the article itself, elements of its dress or get-up, such as the special features of wrappers or containers, labels, etc., and reproduction thereof, cannot ordinarily become technical trade-marks. Often, however, these features of an article are used by many to identify it, and for this reason it pays a rival to copy these features of a well-known article and thus confuse his goods with those well-known. Acts of this sort are violations of the law of unfair competition and are discussed clsewhere. (See index under such headings as "Similarity" "Dress" "Substitution," etc.)

§ 192. Products to which a Trade-Mark may be Applied. Trade-marks may be applied not only to manufactured articles, but to any thing that is sold to the public. Natural products, such as mineral or spring water, 22 fruit, vegetables and the like may be identified by trade-marks. It has been held, however, that a trade-mark may not be applied to a natural product that is organic and reproductive, such as a grape-vine.23 In England a trade-mark applied to vegetables has been upheld.24 The final protocol of the International Convention of 1883 for the protection of industrial property contains the following provision: "The words Industrial Property are to be considered in their widest acceptation in the sense that they apply not only to the productions of industry so-called, but equally to the productions of agriculture (wines, grains, fruits, cattle, etc.), and to mineral productions used in commerce (mineral waters, etc.)"

§ 193. Marks Indicating the Selector not Maker of Goods. Selectors as well as makers of goods may use a trade-mark. A person may use a trade-mark to indicate his ability to pick out goods, although all his goods are made by others. Certain automobiles are sold under trade-marks by concerns that manufacture practically nothing connected with them. A shoe dealer may sell under his own brand shoes that are made entirely by another. These are known in trade as "private brands." He who uses such

22 Congress & Empire Spring Co. v. High Rock Congress Spring Co., 45 N. Y. 291 (1871); Parkland Hills B. L. W. Co. v. Hawkins & Co., 95 Ky. 502 (1894); Virginia Hot Springs Co. v. Hegeman & Co., 138 Fed. 855 (1905). In John T. Dyer Quarry Co. v. Schuylkill Stone Co., 185 Fed. 557,

the name claimed as a trade-mark was applied to stone from a quarry.

23 Hoyt v. J. T. Lovett Co., 71 Fed. 173. This case should be followed with caution.

24 Major Bros. v. Franklin & Son, 25 Rep. Pat. Cases, 406-1908.

a brand becomes sponser for the goods marked with the brand. Such a person may enjoin another from the use of his brand quite as fully as if he actually manufactured the goods he sells.

§194. Several Trade-Marks for the Same Goods. - Whether several different marks for the same goods may be used for the primary purpose of pointing to the origin of the goods, and whether they are so used as to accomplish that purpose with the public is primarily a question of fact. If they are so used they are good trade-marks. There is apparent confusion in the earlier cases, 25 but the broad dictum, that one may have only one mark for the same goods," has been disapproved, and can no longer be considered as law." Learned Hand, J., says,—"In principle there is no possible ground for refusing to recognize any number of trade-marks which are really such." 28 It is almost entirely a

25 In Albany Perforated WrappingPaper Co. v. John Hoberg Co., 102 Fed. 157 (1900), it was held that several trade-marks could not be used for the same article. In view of the more recent cases, which settle the law to the effect that it is possible to have more than one trade-mark for the same goods, it may be enough to note that, although the rule is too broadly stated, the decision in this case may be supported on the facts, as there seems to have been a very large number of names or brands used for different grades and sizes of toilet paper, so that the court was satisfied that the purpose of a trade-mark was not and could not be attained, Jenkins, C. J., saying: "A court of equity cannot be impressed by an appeal to protect that which produces infinite confusion"-159. This case was affirmed on appeal (109 Fed. 589), the Circuit Court of Appeals, 7th Circuit, considering it to have been decided on the ground that the names employed were intended to distinguish sizes, shapes and qualities, and not origin. But in Welsbach Light Co. v. Adam, 107 Fed. 463, this was questioned, except as

limited to a case of confusion, in which the plurality of marks and the circumstances of their use prevents the accomplishment of the proper purpose of atrade-mark, namely, to indicate origin. 26 Candee v. Deere, 54 Ill. 439.

27 Capewell Horse Nail Co. V. Mooney, 167 Fed. 575; Independent Baking Powder Co. v. Boorman, 175 Fed. 448; Gorham Mfg. Co. v. Weintraub, 196 Fed. 957.

28 In Loonen v. Deitsch, 189 Fed. 487, 492, Hand, D. J., says: "Now, in principle, there is no possible ground for refusing to recognize any number of trade-marks which are really such. * * * If a man uses four or five marks together, it may be, therefore, doubtful whether as matter of fact, any single one had ever got to mean his goods, but the trouble is merely one of fact, and there is no reason that I can see, why if that fact exists, the court should take from him the means he has created of identifying his wares. In Candee v. Deere, 54 Ill. 439, 5 Am. Rep. 125, there is talk of confusion, but that begs the question, for if it be a true trade-mark alone, there can be no confusion.

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question of the extent and character of the use to which the name is put.

There may be different trade-marks for different grades of the same product, provided they are so used as distinctly to indicate origin as well as grade. It does not vitiate a trademark, to show that it indicates grade or quality in addition to origin. 29

§ 195. Must be Affixed to Goods. It has always been held to be an essential element of a technical trade-mark that it should be in some manner physically affixed or attached to a marketable product or its container, 30 and the rule is that a trade-mark is only valid when attached to the article or wrapper, or in some manner physically connected with the article itself.31 This is inherent in the very idea of a trade-mark. To hold otherwise would be a contradiction of terms. The use of a trade-mark, apart from the goods it identifies, is not using the mark in a purely trade-mark sense but rather as a trade-name.

The use of a name, not on the goods, but merely as a sign placed on a building or in a shop will not make the name a trade-mark.32 It is not enough to place loosely upon the goods exhibited for sale, a card bearing the name or words claimed as a trade-mark. 33

tainly if the public has solved that difficulty of more than one mark, the court becomes officious in forbidding the maker from continuing to use what the public already understands."

29 Dixie Cotton Felt Mattress Co. v. Stearns & Foster Co., 185 Fed. 431 ("Lenox," "Windsor," "Anchor," for different grades of mattress); Capewell Horse Nail Co. v. Mooney, 167 Fed. 575 (different grades of horse. shoe nails), the court saying: "It is immaterial that the mark indicates grade as well as origin, and is also ornamental, if the primary purpose of adoption and use was to indicate origin"-586. American Leather Button Co. v. Anthony, 15 R. I. 338: "Within limits which are well defined, a combination of letters or figures, arranged for convenience or to attract atten

tion, may serve the purpose of a trade-mark, as well as a device invented or arbitrarily selected. So a person may have different symbols for different grades of goods, which, in the same way, will indicate both quality and origin with respect to the goods so marked."

30 Diederich v. W. Schneider Wholesale W. & L. Co., 195 Fed. 35 (C. C. A. 8th Cir. 1912).

31 Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 142 Ill. 494; Oakes v. St. Louis Candy Co., 146 Mo. 391.

32 Oakes v. St. Louis Coudy Co., 146 Mo. 391; Covert v. Bernat, 156 Mo. App. 687 (sign placed over or in front of place of business not a trade-mark; protected, if at all, as a trade-name. 33 Oakes v. St. Louis Candy Co., 146 Mo. 391 (1898).

The mark may be impressed upon the product. A check or figure of a particular pattern impressed on the under side of a nail head which was intended to indicate the manufacturer, and to be a trade-mark has been held to be a pure or technical trade-mark.34 It was so held in spite of the fact that a check pattern of some kind, producing a gripping surface, might be a necessary or useful incident in the process of manufacture. This case has been followed and approved.35

Neither the product itself, nor an integral part of it, can serve as a technical trade-mark,36 although a watermark, or a design blown into a bottle, or woven into cloth may be protected as a trade-mark if it possesses the other necessary characteristics. It has been held that an uncopyrighted picture postcard could not be a trade-mark, and the exact reproduction of such cards by a competitor was not restrained.37 "Merrie Christmas" woven into ribbon tape at intervals, and adding to the value of the product (intended for tying Christmas packages), was held not to be a good trade-mark.38 It has been repeatedly held that colored checks in cord, formed by using one strand of a particular color, cannot be a trade-mark.39

§ 196. The Use of a Sign or Word as a Trade-Mark Must Not be Against Public Policy. The provision of the United States statute excluding from registration marks that are scandalous or immoral in their purport, corresponds to the common-law rule. A trade-mark must not convey a false or deceptive meaning. Marks that in their meaning or implication are false or deceptive are not good trade-marks, and will not be protected. For example, "Syrup of Figs" (for a laxative medicine which contained practically no ingredient of figs) was refused protection

because deceptive.40 "Old Country Soap" (where the soap was manufactured in the United States)." "Half Spanish" for cigars (where the tobacco was not half Spanish); 42 “Gold Medal" (where no medal had been obtained); 43 "East Indian "applied to a medicine (where the remedy was made in the United States); 44 "Fruit Vinegar" (where the vinegar was not made from fruit); 45 "Pepper Whiskey" used in connection with a liquor (which was in fact a mixture of Pepper whiskey and other whiskeys); 46 "Bromo Quinine" for medicine (containing no bromides); 47 are illustrations of this rule.

"Red Cross" has been held not to be deceptive, as it is not regarded as necessarily implying any relation to the society of that

That the name of the manufacturer included in the trade-mark is inaccurately given, is not necessarily an objection to the validity of the trade-mark.49

The general subject of the effect of misrepresentations, in connection with trade-marks, labels, advertising matter and the like, is considered under the heading of "Defenses," the well-established rule being that, even if the trade-mark itself is not deceptive, a court of equity will refuse relief to a suitor who has deceived the

40 Worden v. Cal. Fig Syrup Co., 187 U. S. 516. It is true, however, that this is not clearly a technical trademark case. It is one illustration of the dilemma of a mark (or name) being either descriptive or deceptive.

41 Allan B. Wrisley Co. v. Iowa Soap Co., 104 Fed. 548 (C. C. Iowa, 1900).

42 T. M. Kildow Cigar Co. v. George B. Sprague Cigar Co., 35 App. Cas. D. C. 345 (1910), (denying registration under Federal statute).

43 Taylor v. Gillies, 5 Daly, 285 (affd. 59 N. Y. 331).

44 Connell v. Reed, 128 Mass. 477. 45 Alden v. Gross, 25 Mo. App. 123.

48 Krauss v. Peebles' Sons Co., 58 Fed. 585.

47 Paris Medicine Co. v. Hill Co., 102 Fed. 148.

48 Loonen v. Deitsch, 189 Fed. 487.

But under the U. S. Act of 1905 the red cross cannot be used for a registered mark (unless by prescriptive right under the ten-year clause).

49 Dale v. Smithson, 12 Abb. Pr. 237 (N. Y. Com. Pleas, 1861). In this case the name of the manufacturer was only in part correct, but there was not deemed to be any attempt to deceive, nor actual deception of, the public. In a still earlier case, Stewart v. Smithson, 1 Hilt. 119 (N. Y. Com. Pleas, 1856), it was held that it was no defense to a suit to restrain infringement of a trade-mark, that it contained an entirely incorrect representation as to the manufacturer and the place of manufacture, and that it described the goods as "patent thread," although not patented in fact. This case, however, can hardly be considered authoritative at the present time.