,%. IMAGE EVALUATION TEST TARGET (MT-3) ^c ^/ /^^^. €^. 4l^ / r/. •(^-i '5'i?! ,v. /^. 1.0 I.I ■ttlM |2.5 ^ 1^ 12.0 •^1 11:25 i 1.4 Photographic Sdences Corporation HM 1.6 23 WEST MAIN STREET WEBSTER, N.Y. 14SS0 (716)873-4503 J CIHM/ICMH Microfiche Series. CIHIVl/iCMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiquea mamtmumiaimmmutmmmim Technical and Bibliographic Notes/Notes techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. ^ B Coloured covers/ Couverture de couleiir Covers damaged/ Couverture endommagAe |~n Covers restored and/or laminated/ D D Couverture restaurAe et/ou pelliculAe ver title missing/ titre de couverture manque loured maps/ Cartes gAographiques en couleur I I Cover title missing/ I I Coloured maps/ □ Coloured init (i.e. other than blue or blacic)/ Encre de couleur (i.e. autre que bleue ou noire) I I Coloured plates and/or illustrations/ D Planches et/ou illustrations en couleur Bound with other material/ Relii avec d'autres documents Tight binding may cause shadows or distortion along interior margin/ La reliure serr6e peut causar de I'ombre ou de la distortion le long de la marge intArieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajouties lors d'une restauration apparaissent dans le texte, mais, lorsque cela Atait possible, ces pages n'ont pas AtA filmAes. Additional comments:/ Commentaires supplAmentaires: L'Institut a microfilm* le meilleur exemplaire qu'il lui a 6ti possible de se procurer. Les details de cet exemplaire qui sont peut-Atre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la methods normale de filmage sont indiqufo ci-dessous. D D D D D D D D D D Coloured pages/ Pages de couleur Pages damaged/ Pages endommagtos Pages restored and/or laminated/ Pages restaurtes et/ou pellicultes Pages discoloured, stained or foxed/ Pages d^coiortes, tachetAes ou piqu6es Pages detached/ Pages d6tach4es Showthrough/ Transparence Quality of print varies/ Quality inAgale de I'impression Includes supplementary material/ Comprend du materiel supplAmentaire Only edition available/ Seule Mition disponible Pages wholly or partially obscured by errata slips, tissues, etc., have been ref limed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont M filmtes A nouveau de fa^on it obtenir la meilleure image possible. This item is filmed at the reduction ratio checked below/ Ce document est film* au taux de reduction indiquA ci-dessous. 10X 14X 18X 22X 26X 30X 12X 16X aox ^ ] 28X 32X ^: M tails du odifier une mage The copy filmed here has been reproduced thanks to the generosity of: Library of Congress Photoduplication Service The images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. L'exemplaire film6 fut reproduit grdce d la g^n^rositd de: Library of Congress Photoduplication Service Les images suivantes ont 6t6 reproduites avec le plus grand soin, compte tenu de la condition et de la nettet6 de l'exemplaire film6, et en conformity avec les conditions du contrat de filmage. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. Les exemplaires originaux dont la couverture en papier est imprimis sont film6s en commenqant par le premier plat et en terminant soit par la dernidre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, salon le cas. Tous les autres exemplaires originaux sont film^s en commenpant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. The last recorded frame on each microfiche shall contain the symbol ^^> (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Un des symboles suivants apparaitra sur la dernidie image de cheque microfiche, selon le cas: \v symbols —^ signifie "A SUIVRE", le symbole ▼ signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre film6s d des taux de reduction diff^rents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, il est film6 d partir de i'angle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la m^thode. rata 9 lelure. J ax 1 2 3 1 2 3 4 5 6 ^■m-^m s^vM-^u. m •i <^,..-.- "T THE TRADE MARK LAWS OF THE UNVJTED STATES, France, Great Britain, German Empire, Canada, Belgium, Russia and Austria. BY FRANCIS FORBES. )^f j^ real . NewYohk: ^*&2PWA5m<*^' 6. S. PELOUBET, 80 Nabbau Strut, Law Boouillkb. Oopyrigbt 1881, hj Fntnoia Forbes. .» ^^ I m mm -™_J.- ,,'iit^'; . "' ■/■/ .; Mh'X 'i .:■ 1 '■ > .i.t"? *■-.!' ' .' - - J ! j- 1 i: i1 I i!! ■ »*''-^, ■i :\ ';•'•: >-. ; - • .< i; { ■I J/ INDEX FIRST PART. 8TATUTRH. California p. 3 Connecticut pp. 4-26 Dakota p. 4 Delaware p. 25 Geoboia p. 4 Illinois p. 4 Indiana p. 5 Iowa p. 5 Kansas p. 5 Kentucky p. 5 Louisiana Maine p. 5 Maryland pp. Massachusetts p. 6 pp. MiCHIOAN p. 6 Mississippi p. 26 Missouri p. 6 pp. Montana p. 26 Nebraska p. 7-26 Nevada p. 7 New Jersey pp. 7-26 New York pp. 7-27 pp. North Carolina Ohio pp 9-28 pp. Obeoon p, 10 Pennsylvania p. 10 pp. Rhode Island United States . p. 28 pp. •Utah p, 1 1 ViHoiNiA p. 29 Wisconsin pp. p. 13 p. 13 p. 14 p. 14 p. 14 p. 30 p. 14 p. 14 15-30 16-30 p. 16 16-31 17-31 p. 19 19-32 19-32 p. 20 21-33 21-32 : '':* .. ^; ■ ■ SECOND PART. •' THKAIIW. ^ Arqentine Confederation 1 Austria - . . i . Beloidm •> Bbazii .... 3. Canada France 3 German Empire . . . . 4 Grea""" Britain ... 4 Russia .... 5. 1- ■ - ■ , *i ! >' it ■ i- TRADR MARK LAWS. 41 31 24 6 18 11 37 !.,1..-,lA ■ ;; i. - 1 '. ■^■.^^.^„. kTIRP. TRADR MARK LAW8. 1. 1. 41 2 31 i. 24 3. 6 4. 18 4. 11 5. 37 y : i'_ ;>'■ >^iv;t,.;ift- i ADVERTISEMENT. The following pages appeared, for the most part, in the Ikon AoK, at the instance of the United States Trade Mark Association, and from that journal were copied into many others. Chapters 2 and 3 were added as an appendix to bring the cases and statutes down to date. No attempt was made to harmonize the decis'ons of the various states, but rather to bring out the differences between such decisions, It was considered that the effect of these contra- . dictory decisions in connection with the various inconsistent and often ill -digested laws of the various states would lead to national legislation on the subject of Trade Marks There have been added extracts from treaties, conventions and declarations, concerning Trade Marks between the United States and some foreign Coun- tries ; and also such parts of the French, En^xish, German, Cana- dian, Belgian, Russian and Austrian Trade Mark statutes as are of importance to citizens of the United States. The paging of the two parts is different because the parte ffere printed at different oflSces. 165 Broadway, New York, October, 1881. • ■■i >. >V ;\-.'i/l'ii- !:*_ - -'■ ClUi, !.K);«i.';- -!^.! 1 CHAPTER I. J5 I. — Property in trade inarkH is pro- tected in all the States of the Union under the common law. By common law we mean " thoHe principles, usages and rules of action applicable to the government and security of persons and property, which do not rest for tneir authority upon any ex- press and positive declaration of the will of the legislature." In the States of Alabama, Arkansas, Colorado, Delaware, Florida, Lou- isiana, Maryland, Minnesota, Mississippi, New Hampshire, Rhode Island, South Carolina, Texas, Tennessee, Virginia, Vermont, Wis- consin and West Virginia, there exist no statute? on the subject of trade-marks, and yet suits may be maintained in any of these 'States for damages and t') restrain the in- fringer. The reports, however, she v that owners of trade-marks have not had occasion to en- force their rights under the common law in Alabama, Arkansas, Colorado, Delaware, Florida, Iowa, Kansas, Maine, Minnesota, Mississippi, Nebraska, Nevada, New Hamp- shire, New Jersey, Oregon, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia and Wisconsin. If any suits have been brought in these States thay have not been reported. It is not strange, then, that many of the States have not enacted trade- mark statutes. It is necessary to distinguish statutes re- lating to trade- marks from those which refer solely to cattle brands or marks and log marks. The latter statutes have been passed in many of the States, but are of merely local interest. § 2. — In California the Political Code, ap- proved March 12, 1872, contains an article on trade marks (Art. Ill, Sec. 3196 to Sec. 3199, Hittell's). " Section 3196. — The phrase trade mark as used in this chapter includes every descrip- tion of word, letter, device, emblem, stamp, imprint, brand, printed ticket, label or wrap- per usually affixed by any mechanic, manu- facturer, druggist, merchant or tradesman to denote any g^oods to be goods imported, manufactured, produced, compounded or sold by him, other than any name, word or expression generally denoting any goods to be of some particular class or description." Any such person may secure the ex elusive use of such trade-mark, by filing with the Secretary of State a copy or de- scription of the same and claim of ownership, with his affidavit that he is the exclusive owner or agent of the owner. The Secretary of State is required to keep a record of all trade-marks so filed, and collect a fee of $3 each. " Section 3 1 99. Any person who has first adopted, recorded and used a trade mark ot name, whether within or beyond the limits of this State, is its original owner. Such ownership may be transferred in the same manner as personal property, and is entitled to the same protection by suit at law." In- junction may be granted. The Civil Code, approved March 21, 1872 (Sec. 5655, Hittell's), enacts that there may be ownership in trade-marks, and (Sec. 5991 Hittell's ed.) that any form, symbol or name to designate origin or ownership, but which does not relate to the name, quality or description of the thing or business or place, and not previously used, may be exclusively appropriated as a trade mark by any one who produces or deals in a particu- lar thing or conducts a particular business. (As amended 1874.) The Penal Code, approved July 14, 1872 (Sec. 13,350 to 13,354 of Hittell's), provides that every person who willfully forges or counterfeits a trade mark with intent to pass oS any goods to which such forged or coun- terfeit trade mark ir affixed as the genuine goods, or who sells or keeps for sale any goods upon which a counterfeit trade mark has been affixed, intending to represent such goods as the genuine goods of another, know- ing the same to be counterfeited, is guilty of a misdemeanor. The phras«s ' ' forged trade mark " and " counterfeit trade mark " in- clude every alteration or imitation of any trade mark so resembling the original as to be likely to deceive. It repeats the definition of trade mark given in the Political Code, Sec. 3196. "Section 13,354. Every person who has or uses any cask, bottle, vessel, case, cover, label or other thing bearing cr having in any way connected with it the duly filed trade-mark or name of another, for the purpose of dispos- ing, with intent to deceive or defrAud, of I ■■ ;• >fi*t';\',*'-^-'^-"''^ '- . any articlu othttr tlmn that wliirli nucIi vixnk, lM)ttle, vuMHel, caHe, covtM-, luli«'l or i>thi nionthH, or by a Wne not nxc'eo(lin>f |5 Hittrell'H I'onal ('ode). >5 3. — In Connecticut the followinK Mtatute iH in force (Oonoral HtatuteH, KuviHiomif 1875, p 523.) "Every jjernon who nhall UHe, forge, or counterfeit the individual Hthni]> or label of any mechanic or nianufactturer, with in- tent to defraud another ; or who Hhall vend, or oiTftr to vend, any goodH having any 8uch forged or counterfeited ntanip or label thereon, knowing it to be forged or coun- terfeited, without discluHing the fact to the purchaser, Hhall be inipriHoned not more than six monthH, or fined not nicire than |ioo, or both." This iH the reviuion of au act approved June 5, 1S47, which contained Hubstantially the same proviHionH. ^ 4. — The definition of trade mark con- tained in the Political Code of California is copied into the Penal Code of Dakota, ap- proved February 7, 1877, Sec. 415 (hoo Sec. 576 Civil Code) ; 80 also are the proviHions of the Penal Code of California in reference 1 1 counterfeiting trode-markH, and selling goods bearing such counterfeits (SecH. 411 and 413). The punishment, however, is im- prisonment in the county jail not exceeding one year or fine not exceeding $500, or both. Other sections of the act, 1. e., See. 412, against keeping dies, plates, brands or imita- tions of trade-marks for the purpose of mak- ing counterfeits, &c., and Sec. 414, agamst affixing any imitation of a trade-mark which is the same to the eye or the ear as the genuine, ai'e the same as the acts of Mis- souri and New York, except in phraseology. The punishment in the same as prescribed in Sees. 411 and 413, except that the person offending under Sec. 414 " is liable to the party aggrieved in the penal sum of $100 for each and every offense, to be recovered by him in a civil action." Sections 418 and 419 provide for the Eunisbment of persons reHUing or selling ottles, or keeping same without consent, the marks of which had been recorded ac- cording to law, by a penalty of 50 cents for each and every bottle filled, bought or sold for first offense, and $5 each for every 9ubBequunt offense. Section 420 provides for proceedings to obtain search warrant in cases mentioned in Sees. 418 and 419, and for the summary trial of the offender, when brought before the magistrate, and fine as prescribed. The Civil Code, Sec. 160, declares that l^ere may be ownership in trade marks. ,^ 5. — In (ieorgia, b;, Htaliiln, coiirlK nf tM|uity nuiy grant injunctionH and relief. fi (). — In lllinoin, '" An act" (was approved May 3, 1^73) " to protect nialiiil'acturi'rH, Intt- tierH and dealers in ule, jK)rter, lager beer, Hoda, mineral water and other buverageHjfrom the loHs of their cankH, barrelH, kegs, Ixittles and boxes." All perNonn engaged in the manu- facture, bottling or Helling of ale, Hic, in caNks, barreln, 1f. t, '" All lift" (wi»« ii|i|>i-od, or to soil, dispoao of, I or wantonly doHtroy any HO niarkod or stamped by the owner shall have cnni- st section of this act. Vio- ado a misdemeanor; punish • for each cask, barrel or box, aach bottle so tilled, bought, icked in or wantonly de- ■ with the costs of suit for and by double fine for eftch io. any other person than the lereof without written i)er- ich cask, &c,, for the sale c, or any other article of . , or to be f umished'-to cus- lying, selling or trafficking Jfcc, by any person othtr without such written per- act that any junk dealer or Sec, shall have in his pos- cask, &c., so marked and at such written permission, be prima facie evidence buying, selling, traffick- ou IS unlawful, and any uilty of such use, buying, II be liable tu be arrested ore provided ; and it is de- iuty of any justice of the Q oath having been made has violated the provisions lie his warrant and cause the }ught before him and tried, s accused is found guilty, to >ove stated. On oath being ler or bis agent that he has e that any manufacturer or c, or any other person, is &c. , or that any junk dealer I, &c. , or any other dealer has tc, secreted in his premises, &c., shall issue his search warrant and oauM the premiHoi to be Mpnrrliod, &o.,and in cone any such cask, ftc, shall bo found in tho pruiniseH, the oftlcof exe- cuting tho search warrant «lmll Arro)s ihe porNon namnd in the suarch warrant And bring liim before itaid justice, who Ahall hoar tho oiiHo, and if tho accused is found guilty flno him as above stated. March 27, 1S74. there was approved " An act to revise the law in relation to criminal jurisprudence," which contains the following suctions : "iSic/fon 115. Whoever knowingly »nd will- fully counterfeits, or oausos td bottlers of mineral water, ale, cider, L and ginger pop." It provides that manufacturers and ven- dors of mineral water, cider, beer, ginger pop and other beverages in bottles impressed with their names or other trade marks may file with the Clerk cf the Circuit Court in any county a written description and sample of bottle and marks, and cause such descrip- tion to be published for two weeks in a newspaper in said county ; and that it shall be unlawful for any person, without the con- 8ent< in writing of the owner, to fill such bottles with mineral water, &c., or to o£fer for sale or to traffic in any such bottles not purchased by him of the owner, and per- sons offending shall be liable to a fine of $1 for each bottle so filled, sold or used for the first offense and of $5 for every subsequent offeiiK V Clerk's fee, $1. § 8. — In Iowa it is provided in the Code of 1873, Sec. 4079^ "If any person counterfeit any mark, stamp, or brand of another, or falsely mark any cask, package, box or bale, as to quality or quantity with intent to de- fraud, he shall be punished by fine not ex- ceeding |2oo or by imprisonment in the county jail not more than six monthk, or by both Hno and impriNonment." "Srctiim 4080, If any persim with intent to defraud use any cask, package, Imix or bale, niiirkod, branded or stamped by onothor for the sale of merchandise or pro- duce of an inferior (luality, or less in quan- tity Of weight than m denoted by such mark, stamp or brand, he shall be punished by im- priHonnioiit in llie county jail not more than 0110 yeiir, or by lliiti not exceeding ;>2oo, or by both fine and imprisonment, at tho diseretioii of tlit court." (fSanie as Section 4400 and 4401 of Kovision of 18C0.) '^^). — In Kansas " An act (took effect May 31, iS6()) to prevent tho counterfeiting, changing or destroying trademarks, devices and brands:" " SirlioH I. If any person or persons shall willfully change, alter, deface, destroy, couiiterfeit, cut out or dispose of any trade- mark, brand, impression or device used by any person, company or corporation within this istate, to designate a particular descrip- tion of goods, wares, merchandise, cask, liarrel, half-barrel, keg, bottle, package, or the contents thereof, he or they shall for- feit and pay to the owner or owners thereof, for each otTenso, not exceeding the sum of I25, to bo recovered in any court praper to . try the same, or before a justice ofthe peace I having jurisdiction of same. I "Section 2. If any person shall change, , shift and plaoe any brand, mark or device used or intended to be used for the purpose ! aforesaid, to or upon any piece of goods," &c. , " or shall intermix, take out, change or shift any article liquid or commodity what- ever, into a branded cask," &c., or package, and thereby avail himself of another person's brand, mark or device, he shall forfeit for every offense the sum of $25, to be recovered as above. S 10. — The General Statutes of Kentucky, j 1873, copy the statutes of Indiana, and add j the following section : "If any person use a I false brand on anything sold, or to be sold i or offered for sale, with intent to deceive purchasei s, he shall be fined for each offense not less than $200." Clerk's fee for record- ing description, $2. g II. — The Revised Statutes of Maine (1871) provide that whosoever knowingly and will- fully counterfeits any private stamps, labels or trade-marks with intent to defraud the purchaser or manufacturer ; or sells such goods with the counterfeit stamps thereon without disclosing the fact to the purchaser, shall be punished by imprisonment less than one year, or by fine not exceeding $200 ; also, that if any person shall use another's trade-mark for the purpose of falsely rep- resenting any article io have been manufac- tured by him, or to be of the same kind and character as that manufactured by the party rightfully using the a«me, the party 6 l(: offending shall be liable to any person ag- grieved for all damages incurred ; eIho, that no person shall use the name of any person formerly connected with him in business, either alone or in connection with his own name, without the consent in writing of such prrson or his legal representative. The Supreme Judicial Court may grnr.t injunc- tions to restrain the violation of the above provisions. The revision embodies Chap, lo, Public Laws of 1866. § 12. — The General Statutes of Massachu- setts provide (Chapter 56, Act of 1859, Chap- ter 234) that when a person uses a trade mark no other shall use the same for the purpose of falsely representing any article to have been mnnufactured by or to be of same kind, char- acter, (juality, as that manufactured or sold by the person rightfully using such trade mark, under the penalty of responding in damages to the party aggrieved ; also (by Act of 1853, Chapter 156), that no person shall continue to use the name of a person formerly connected with him in business with- out the consent in writing of such person or his legal representatives. The Supreme Ju- dicial Court may restrain by injunction any use of trade marks or names iu violation of above section. In Chaptsr 161, Sec. 55 (Act of 1850, Chapter 90), it is also pro- vided that whoever knowingly and will- fully forges or counterfeits upon any goods, &c., the private label or trade mark of any mechanic or manufacturer, with intent to defraud the purchaser or manufacturer of any goods, &c , whatever, shall be pun- ished by imprisonment not exceeding six months, or by fine not exceeding $50 ; also, that whoever vends any goods, &c., hav- ing thereon forged or counterfeited stamp, label or trade mark, knowing the same to be forged, without disclosiug the fact to the purchaser, shall be punished by imprison- ment not exceeding six months, or by fine not exceeding $50. "An Act to prevent fraud in the sale of watches" (was approved June ir, 1870), " whoever shall knowingly sell or expose for sale any watch, watch case or watch * * con- movement having any name nected therewith in violation of Sec. 56 of the General Statutes, shall be punished by imprisonment not exceeding one year, or by a fiae not exceeding $200 ; and the possession of two or more such watches shall be prima facie evidence of such selling or exposing for sale." § 13. — The Compiled Laws of Michigan con- tain * ' an act to prevent and punish the counterfeiting and fraudulent use of trade marks, labels, stamps, &c." Approved Feb- ruary 6, 1863. It provides that every person who shall knowingly o- willfully forge or counterfeit or cause, Sec, any rep- resentation, likeness, &c., of the private stamp, brand, mark, wrapper or label usual- ly aflbed by any mechanic, druggist * * * ! with intent to deceive and defraud the ])nr- chaser * * * upon conviction thereof shall be punished by imprisonment in the county jnil for a term not exceeding six months or by line not exceeding |iooo, or both. It contains a similar provision in reference to persons having in thei- ]X)sse8sion dies, plates, engravings or piinted labels, brands, stamps, wrappers or any representation, &c., j with intent to use or sell the same for the I purpose of aiding or assisting in any way ! whatever in vending any goods, &c., in imitation of or intended to resemble, &c., the goods of others. The fine is $500, other- wise the punishment is the same. It also contains a similar provision in reference to persons who shall sell any goods with forged or counterfeit stamps, &c., knowing t^em to be forged, or spurious goods witii ■_■ jnuine stamps with i'.itent to defraud, &c. I In the case of spurious goods, however, the punishment is a fine of $250 or im- prisonment not more than three months or both. g 14. — In Missouri "An act" (was approved . March 6, 1866) '' to protect mechanics, man- ufacturers and others in their trade-marks." It provides that a description of the trade- I mark, duly acknowledged, shall be recorded in the office of the Recorder of Deeds of the county where articles to bear the mark are manufactured, and that such record shall I be notice to all persons. A second act with same title was approved February 22, 1870. I It provides in addition that any person who ; shall knowingly and willfully forge or coun- I terfeit any representation, &c., of the pri- I vate label, brand, stamps, wrapper, engrav- ' ing, mold or trade- mark of any manufac- turer, &c., with intent to pass off any goods ' &e. , to which said forged counterfeit repre- : sentation is affixed, or in connection with I which same may be used as the goods, &c., of such manufac*''Urer, shall be deemed guilty of a misdemeL'>.nor and punished by imprisonment in the county jail for a period ' of not less than three months nor more than twelve months, or fined not less than $500 nor more than $5000, or both. It also provides that any person who shall with intent to defraud, have in his posses- sion any die, plate, brand, engraving, I printed label, stamps, imprints, &:c., or ' trade-marks, &c., or any imitation of said marks, &c., usually affixed by any manu- I f acturer, &c. , for the purpose of making j impressions or selling the same when made, I or using the same in connection with any ' other articles made, &.C., by him for the purpose of making impressions or selling , the same when mside, or using the same in connection with any other article made, . &c. , and passing the same off upon the com- munity ac the original goods, &c., of any other person, or who shall in fact sell or use the same, &c., or who shall wrongfully or fraudulently use the genuine labpl, &c., or (ceive and defraud the i)iir- on conviction tiiereof slmli iprisonment in tiie county t exceeding six months or jeding $1000, or both. It • provision in reference to in thei~* possession dies, s or pi inted labels, brands, or any representation, &c. , I or bell the same for the J or assisting in any way iding any goods, &c., in ntended to resemble, &c., •8. The fine is $500, other- ?nt is the same. IS a similar provision in ins who shall sell any goods counterfeit stamps, &c., ) be forged, or spurious ne stamps with intent to spurious gfoods, however, is a fine of I250 or ini- lore than three months or iri "An act" (was approved o protect mechanics, man- lers in their trade-marks. " , description of the trade- wledged, shall be recorded > Recorder of Deeds of the cles to bear the mark are id that such record shall rtfons. A second act with jroved February 22, 1870. tion that any person who id willfully forge or coun- entation, iScc., of the pri- stamps, wrapper, en§;rav- ie-mark of any manufac- tent to pass off any goods forged counterfeit repre- d, or in connection with e used as the goods, &c., *''Urer, shall bo deemed TiBixnor and puni&hed by le county jail for a period ree months nor more than fined not less than $500 X), or both. bhat any person who shall aud, have in his posses- ate, brand, engraving, mps, imprints, &c., or or any imitation of said ly afiixed by any manu- the purpose of making ng the same when made, in connection with any e, (Stc, by him for the g impressions or selling tde, or using the same in my other article made, 16 same off upon the com- pnal goods, &c., of any bo shall in fact sell or use who shall wrongfully or lie genuine lab.el, &c., or trade-mark with intent to pass off any goods, &c., not th« manufacture of the per- son to whom such label, Ac, properly be- longs, shall be deemed guilty of a misde- meanor and punished as before stated. It also provides that any person who shall vend or keep for sale any goods, &c., upon which any forged imitation or counterfeit label, &c., shall be placed, knowing the same to be imitation or counterfeit, shall be deemed guilty of a misdemeanor and pun- ished as before stated, except that the low- est term of imprisonment is one month. He shall also be liable to a civil action to the person whose goods, or whose labjls, &c., are imitated or counterfeited for all dam- ages which such person shall sustain, both by virtue of the loss of profits and the dam- age done to the reputation of the genuine artici , &c., and lie may be enjoined from doing any of the acts mentioned. It also >i'ovide8 that any person who, with intent to defraud, shall affix any label, &c., which shaH designate any aHicle by any word or words, or by general design, ivhieh shall be the same to the eye, or in sound to the ear, as the word or design used to desig- nate goods, &.C., of another, shall be deemed guilty of a misdemeanor and liable to the latter in the penal sum of I500, and for a further sum equal to the amount which the aggrieved party might have received for the same amount of genuine goods, &c. , and may be punished by imprisonment in the county jail for a period not less than one month, or more than twelve months. The seizure and destruction of counterfeit trade- marks, and seizure and sale of goods bearing such marks, is provided for. § 15. — The General Statutes ef Nebraska (1873, p. 758) contain a provision that "if any person shall falsely make, alter, forge, counterfeit, print or photograph, any private stamp, brand, wrapper, label or trade-mark, usually afiixed by any mechanic, manufac- turer, druggist, merchant or tradesman, to or upon the goods, wares and merchandise, pre- paration or mixture of such mechanic, man- ufacturer, druggist, itn-i-chant or trades- man" * ♦ * with intent to damage or defraud any person, &c., or who shall utter or publish, as true and genuine, any such, knowing tbe same to be false, &c., shall be imprisoned in the penitentiary for any space of time not exceeding twenty years, nor less than one year, and pay a fine not exceeding $500. It also provides for the punishment of pe: 3on9 keeping false dies, &.C. , for the pur- pose of counterfeiting as above, by imprison- ment for not less than six months nor more than 10 years, and a fine not exceeding $1000. Also that " any person who ohall vend, or keep for sale, any goods, » » * upon which any forged or counterfeit stamps, * * * or trade marks shall be affixed and intended to represent the said j^oods, * * * as the true and genuine goods, ♦ * * of any person or persons, knowing the same to bo counterfeit, bhall be punished by a fine not exceeding fioo." g 16. — In Nevada "An act" (was approved March 8, 1865) " concerning trade-marks and names." The registration of the trade- mark or name with the Secretary of State is necessary to obtain advantage of act. For such registration there is a fee of |20. It is made unlawful for any person, without the consent of the owner of trade- mark,*to use such mark tor the purpose of represent- ing any article to have been manufactured or sold by such owner, or to be of the same Kind, character, or quality as his. Any person violating act shall be guilty of mis- demeanor and punished by a fine of not less than I25, nor more than $500, or by im- prisonment in the county jail for not less than five days nor more than thirty days, or both, and he shall be further liable to the party aggrieved for all damages actually in- curred, to be recovered as a debt. Counterfeiting of trade-mark, oi- using a counterfeit trade-mark, or selling any article bearing a counterfeit trade-mark, filed, &c., knowing it to be such, or having good reason to know it to be such, is un- lawful and punishable as above. Filling old bottles and casks having trade- marks attached, with intent to defraud, is a misdemeanor and punishable as above. ' ' Every person who shall knowingly aid or abet, or counsel in or procure the commis- sion of any offense which is by this act made a misdemeanor, shall be deemed and held to be guilty of a misdemeanor," and punished as above. Trade-marks may be transferred like per- sonal property, and shall be entitled to same protection as personal property. Courts may restrain by injunction any use of trade- marks in violation of act. § 17. — The Revised Statutes ef the State of New Jersey (1877) contain the following sec- tion under the title " Crimes," viz. : " Every person who shall knowingly and willfully forge or counterfeit, or cause or procure to be forged'or counterfeited, upon any goods, wares or merchandise, the private stamps or labels of any mechanic or manufacturer, with intent to defraud the purchasers or manufacturers of any goods, we res or mer- chandise whatsoever, or who shall vend any goods, wares or merchandise, having thereon any forged or counterfeited stamps or labels, purporting to be the stamp or label of any mechanic or manufacturer, knowing the same to be forged or counterfeited, without disclosing the fact to the purchaser, shaD, upon conviction, be deemed guilty of a mis- demeanor, and shall be punished by im- prisonment in the county jail not exceeding six months, or by fine not exceeding $100." § 18.— InNewYork "Anact" (was passed 8 April 17, i8b2) " to prevent and punish fraud in the use cf false stamps, brands, labels or trade marks." (Repealing a similar act of 1845, Chapter 279; amended 1850, Chapter 123.) It provides that any person who shall knowingly and willfully forge or counterfeit any representation, &c., of the private stamp, brand, wrapper, label or trade-mark usually affixed by any manufac- turer, &c., or cause same to be done with in- tent to pass oS any work, goods, &c. , as the work, goods, &c., of such manufacturer, shall be deemed guilty of a misdemeanor, and punished by imprisonment in the coun- ty jail for a period of not less than six nor more than twelve months, or flned not more than I5000. It also provides the same punishment for any person who shall with like intent have in his possesiiion any die, plate, brand, en- graving or prmied label, &c., or imita- tion of same, usually affixed by any manufac- turer, &c., to articles made by him, for the purpose of making impressions or selling the same ^vhen mode, or using same upon any ar- ticle, ard passing same off upon the com- munity as the original goods, Sec, of any other person ; or who shall fraudulently use a genuine st/..np, &c., or trade mark with intent to pass off any spurious goods, &c., OS genuine. It also provides that any person who shall vend or keep for sale any goods, &c., upon which any forged or coimterfeit stamps, &c., shall be placed, knowing the same to be counterfeit, shall be deemed guilty of a misdemeanor and punished by a fine not ex- ceeding $500, and (amended act of 1863, chapter 2og) shall also be liable in a civil action to a person whose gxxjds, Sec, are counterfeit or whose trade-marks are forged, for all damages such person may sustain by means of any of the acts men- tioned, and may be restrained by injunc- tion. Act of 1862 also provides the punishment first above given for any person who shall, with intent to defraud, knowingly affix or cause to be affixed to any bottle, can, box or package containing any goods, &c., any ■tamps, &c. , which shall designate the goods by a word or words which shall be the same, wholly or in part, to the eye or in sound to the ear, as the words used by any other per- son to designate his goods, or shall knowingly sell or offer for sale any such bottle, &c., with such stamp. By amendment of 1863, (Chapter 209,) he is liable to the party ag- grieved in the penal sum of |ioo /or each offense. A suoplemental act was passed June 8, 1878 (Cliapter 401), which is as fol- lows: "An act supplemental to chapter three hundred afad six of the laws of eighteen hundred and sixty-two, entitled An cct to prevent and punish fraud in the use of ■tampa, brands, labels or trade marks." . "Section i. — Any person or persons who, with iutent to defraud or to enable another to defraud any person, shall manufacture or knowingly sell, or cause to be manufactured or sold, any article or articles marked, stamped or branded, or encased or enclosed in any box, bottle or wrapper having thereon any engraving or enicravings, or prmted labels, stamps, imprintK, marks or trade- marks, which article or articles are not the manufacture, workmanship or production of the person named, indicated or denoted by such marking, stamping or branding, or by or upon such engraving or engravings, printed labels, stamps, imprints, mark or irade-niark, shall, upon conviction thereof be deemed guilty of a misdemeanor, and for such offense shall forfeit and pay a fine of $100, to be recovered with costs in any of the courts of this State having cognizance thereof in an action to be prosecuted by the District Attorney in the name of the people and the one-half of such recovery shall be paid to the informer and the residue shall be applied to the support of the poor in the county where such recovery is had." "Section 2. — Ajy person or persons who, with intent to defraud or to enable anothei to defraud any person, shall manufacture or knowingly sell or expose for sale 01 offer to sell or have in his or her pos- session, with intent to sell, any article 01 articles marked, stamped or branded, 01 encased or enclosed in any box, bottle 01 wrapper, having thereon printed, marked, stamped or engraved any word or words sign or signs ihdicating or denoting 01 purporting to indicate or denote the qual- ity, grade or character of such article 01 articles, which do not truly indicate, denote or represent the quality, grade or character of such article or articles, shall, uppn con- viction thereof, be deemed guilty of 'a mis- demeanor, and for each such offense shall forfeit and pay a fine of |ioo, to be recov- ered, with costs, in any of the courts of this State having cognizance thereof, in an action to be prosecuted by the District Attorney, in the name of the people, and the one-half of such recovery shall be paid to the informer and the residue shall be applied to the sup- port of the poor in the county where such recovery is had." "Section 3. — This act shall take effect im- mediately." In 1847 an act was passed (Chapter 207) in relation to sale of bottles used by manufac- turers of mineral waters and others. Regis- try of names or other marks was allowed This act was amended by Chapter 117 of Laws of i860. A new and more extended act was passed May 14, 1875 (Chapter 303) which is as follows : " An act to protect the owners of bottles, boxes, baskets, casks and syphons used in the sale uf soda waters, mineral waters, porter «de, cider, ginger ale, small beer, lager beer, white beer, or other similar beverages." ' Section i. — All persons and corporations engaged in the manufacture, bottling, pock- ing in boxes, baskets or caaks,.or in the sole "W14 "^ person, shall manufacture (ir or cause to be manufactured rticle or articles marked, ided, or encased or enclosed le or wrapper having thereon or enfirraving!!, or prmted impnntK, marks or trade- rticle or articles are not the workmanship or production lamod, indicated or denoted stamping or branding, or h engraving or engravings, stamps, imprints, mark or ill, upon conviction thereof iV of a misdemeanor, and for 11 forfeit and pay a fine of ivered with costs in any of lis State having cognizance ztion to be prosecuted by the )y in the name of the people f of such recovery shall be rmer and the residue shall be support of the poor in the iich recovery is had." Ally person or persons who, lef raud or to enable another r person, shall manufacture sell or expose for sale or r have in his or her pos- tent to sell, any article or d, stamped or branded, or :Iosed in any box, bottle or ig thereon printed, marked, fraved any word or words, ifadicating or denoting or Indicate or denote the qual- ;haracter of such article or do not truly indicate, denote 3 quality, grade or character or articles, shall, uppn con- be deemed guilty of 'a mis- for each such offense shall a fine of $ioo, to ba recov- I, in any of thv courts of thi» B^izance thereof, in an action 1 by the District Attorney, in i people, and the one-half of haU be paid to the informer shall be applied to the sup- r in the county where such rhis act shall take effect im- t was passed (Chapter 207) in of bottles used by manufac- il waters and others. Regis- r other marks was allowed mended by Chapter 117 of A new and more extended May 14, 1875 (Chapter 303) 3WS : rotect the owners of bcttles, sasks and syphons used in the bers, mineral waters, porter r ale, small beer, lager beer, ther similar beverages." All persons and corporations nanufacture, bottling, pack- ■keta or o«aks,.or in tlie sale (if Boila waters, mineral waters, porter, ule, cidor, ;jinger al", small beer, lagur bi«er, whitu boor, or other similar tKweragos in syphons or bottles packed in boxes, baskets or casks, or unpacked with their name ur names or other marks or devious branded, stamped, engraved, etched, blown, im- presKPil c>r otherwise produced upon such bottles, syphons, boxes, baskets, casks, or upon the faucets, stoppers, corks or other thing connected therewith and appertain- ing thereto, may file in the office of the clerk of the county in which the princi- pal place of business of such person or per- sons or corporation is situated, and in the office of Secretary of State, a description of the names and marks so used by theui re- spectively, and cause such description to be published once in each week for three weoks successively in such county, except the city and county of New York and the city of Brooklyn, in the county of Kings, where each ]>ubUcation shall be made for the same time (Sundays excepted) in two daily news- papers published in the cities of New York and Brooklyn respectively." "Section 2. — It is hereby declared to be un- lawful for any employee, corporation, per- son or persons hereafter, without the writ- ten consent of the person, firm or corpora- tion, as owner thereof, to fill with soda water, mineral water, porter, ale, cider, ginger ale, small beer, la^'er beer, white beer or other beverages any such syphon or bottle so marked, or to deface, file off, turn off or by other means obliterate or efface the names, marks or devices thereon, with intent to sell, dispose of, buy or traffic in any such syphons, bottles, boxes, baskets, casks, faucets, stoppers, corks or other thing connected therewith or apper- taining thereto, so marked, branded, stamp- ed, engraved, etched, blown, impressed, or otherwise produced thereon, and not bought by him, her, them or it of such owner thereof. Any person or corporation offend- ing against the provisions thereof shall be deemed guilty of a misdemeanor, and shall forfeit to the party aggrieved a sum not ex- ceeding $25 for each and every offense." "Section 3. — The fact of any person other than the rightful owner, without such writ- ten permission as aforesaid, using' such syphons, bottles, boxes, baskets, casks, fau- cets, stoppers, corks or other thing connect- ed therewith or appertaining thereto, or having the same in his, her, their or its premises or in his, her, their or its pos- session with intent to sell or for the sale therein or thereby of any soda water, min- eral water, porter, ale, cider, ginger ale, small beer, lager beer, white beer or other similar beverage, and any such owner or the agent of such owner who shall make oath or affirmation before any magistrate that he has reason to believe and does believe that any of such syphons, boxes, baskets, casks, faucets, stoppers, corks or other thing con- nected therewith and appertaining thereto. belonuing to him, them or it, marked, brinded, stamped, engraved, etchei I, blown, impressed or otherwise produced thert-on and registered as aforesaid, are being inilawfully used by any corporation, person or persons, selling or manufacturing soda water, niiii- ei'al water, porter, ale, cider, ginger ale, snioll beer, lager beer, white beer or other similar beverages, or that any junk dealer, manufacturer or vender of bottles, boxes, baskets, casks, faucets, stoppers or corks shall have any of such syphons, bottles, boxes, baskets, casks, faucets, stoppers or corks Ki-creted upon his premises, or in any other place, or is or has become unlawfully possessed thereof, or has defaced, filed oft', turned off, or by other means obliterated or effaced the names, marks or devices thereon or on any of the same with unlawful intent, then the said magistrate shall thereupon proceed to obtain the same under the exist- ing provisions of law in relation to search warrants, which are hereby declared to fully relate to the purposes of this act." "Section 4. — All acts and pai*t8 of acts in- consistent herewith are for the pui-pose of this act hereby repealed. "Section 5 — This act shall take effect imme- diately." tj 19. — In Ohio "An act (was passed March 2g, 1859) to prevent and punish fraud in the use of false stamps, brands, labels or trade- marks." This act was repealed by an act to amend, revise and consolidate the statutes relating to crimes and offenses, &c., passed May 5, 1877, which while adopting the former act in the main, omitted the provision in regard to punishment by fine (one-half to complain- ant) of any vendor of spurious goods with false stamps, &c., knowing them to be false. Chapter II, Section 23 (act of May, 1877), provides that whoever willfully forges or counterfeits any representation, &c., of the private brand, wrapper, label or trade mark usually affixed by any person to his goods, "or by any maker .of wines from grapes grown within this State to the bottles or casks used by him to contain the same, with intent to pass off the goods," &c., to which such forged or counterfeit representation, &c., is iUBxed as the genuine goods, &c., shall be fined not exceeding $500, or im- prisoned not more than 12 months or both. Section 24 provides that whosoever has in his possession any die, plate, brand, engrav- ing, printed label, stamp, imprint, wrapper or trade mark, or any representation, &c., thereof for the purpose of making impres- I sions or selling the same when made, or using I the same upon spurious goods and passing '. same off as genuine ; or wrongfully and ' fraudulently uses the genuine stamp, brand, ' imprint, wrapper, label or trade mark Mrith intent to pass on spurious goods, &c., as genuine, shall be fined not more than $500 or imprisoned not more than 12 months, or both. 10 m mi i m " An act (was passed May 6, 1869) to establish a cfKle of criminal procedure for the State of Ohio," which contained at Title I, Section 13, n provision as to aearcli war- rants. This and following sections were incorporated into the act passed May 5, 1877, given above as Section 15, of Chapter I, Title II. It is enacted that " it shall be law- ful for any magistrate named in Section i to issue warrants to search any house or place. * * * 2. For forged or counterfeit coins, stamps, labels, trade marks, bank bills or other instruments of writing." Provision is made for the ei(ecution of the warrant ; for the preservation of the property as evidence ; and upon conviction of the offender the destruction of the trade marks, &c. , dnder direction of the court. g 20. — Oregon "An act (Oct. 21, 1864) to provide for the regulation and protection of trade marks." Provides for the registration of trade marks, names of hotels and places of business in the office of the Secretary of State, by the person who first presents same for record. Fee, $2.50. It also provides that any person who shall use any name, mark, &.C., the same or similar to one so recorded for the purpose of deception or profit, shall forfeit to the use of the owner of the mark, &c., one-half of the property, goods or arti- cles of trade upon whicu the same may be used or placed, or the value thereof, for first offense, and the whole for second of- fense. It provides for same remedy in case af articles imported into State. Also, that any person who shall use any second-hand sack, l>ox, barrel, can, package, or other article on which has been placed any name, mark, &c., the property of another, for the pur- pose of description, shall be liable to the same forfeiture of property inclosed therein. This act does not affect the power of courts of equity to grant injunctions against im- proper use of any mark. &c., " which may have been secured by the provisions of this chapter." In addition to the above act the Criminal Code of 1864, which took effect May i, 1865 Section 583) provides that if any person shall willfully and knowingly use or cause to be used any private brand, label, stamp or trade mark of another, or any colorable imitation thereof, with int«nt to deceive any one, such person shall be punished by im- prisonment in the county jail not less than one month nor more than six months, or by fine not less than $20 nor more than $300. g 21. — In Pennsylvania, as early as March 3, 1847 (Laws No. 149), an act was passed '' to punish and prevent frauds in the use of false stamps and labels." This was amended in 1855 (May 8, Law No. 534), and finally incorporated, with slight changes, into an act to consolidate the penal law, March 31, i86e, sections 173, 174 and 175 (Brightley's Digest, 10 ed., p. 365). By the act of i8i6o ' it is provided that if any one shall knowiuKl and willfully forge or counterfeit any ropn sentation, &c., of the private stamps, wra| pors or labels of any mechanic or manufai turer, with intent to deceive or def rauil th purchaser or manufacturer of any goodt wares or merchandise, s^ich person shall guilty of a misdemeanor, and punishable a fine not exceedinfr i^ioo and an imprison ment not exceeding two years. Also, tha if any person shall have in his possessioi any die, plate, engraving or printed label stamp or wrapper, or any representation &c., of such of any mechanic or manufac turer, with intent to use or sell the said die &c , for the purpose of aidmg or a».sisting : vending any goods, wares or ir.erchandisi intended to imitate or to be sold for the gen nine, he shall be guilty of a misdemeanor j with the same punishment. Also, that i I any person shall vend any goods, wares o) I merchandise having thereon any forged oi counterfeited stamps or labels of any me chanic or manufacturer, knowing them to b< forged or counterfeited, and resembling 01 purporting to be imitations of the genuini stamps, without disclosing the fact to th( purchaser, shall be guilty of a misdemeanoi and be fined not exceeding $500. Manufacturers and makers of mineral waters and other beverages in bottles " im- pressed " with mark, were protected by laws passed in 1849 providing for registry, &c. (Laws of 1849, pp_. 524-680). A supplement to these acts was approved April 20, 1853, (Laws p. 643, Brightley's Digest 10 ed., p. 1405.) It is provided that they may file in th« office of the secretary of the commonwealth a description of such bottles, and of the name or marks thereon, and publish the sttme for six weeks successively in a daily, weekly or I other newspaper published in the county wherein the same shall be manufactured or sold, except in Philadelphia, where publi- cation should be made for some time in two daily newspapers. It is declared to be un- lawful for any person or persons, without the permission of the owner, to fill with mineral waters or other beverages any bottles so marked, or to sell, disix>se of, or to buy or to traffic in any such bottles so marked and not bought by him of such owner thereof ; and every offender shall be liable to a penalty of 50 cents for each bottle so filled or sold or used or disposed of, or bought or trafficked in, for the first offense and of I5 for every sub- sequent offense. *' The fact of any person, other than the rightful owner thereof, using any such bot- tles for the sale therein of any beverage, shall be prima facie proof of the unlawful use or purchase of such bottles as aforesaid." Any owner or agent of the owner of bottles duly stamped and registered, may make oath be- fore any alderman or justice of the peace that he has reason to believe, and believes, that said bottles are being unlawfully used or concealed by any person selling or manu- facturing mineral water or other beverage, 11 hat, if nnyoneHliall knowingly jrgc or counterfeit any rnpre- of the private stanipH, wrap- f any mechanic or inanufac- ent to deceive or defraud the manufacturer of any )f"ods. mndiHo, s'lch person shall be ienieanor, and punishable by ?din/r |ioo and an iniprison- idin^f iwo years. Also, that shall have in his possession engraving or printed label, )per, or any representation, any mechanic or manufac- mt to use or sell the said die, rpose of aiding or a>,sisting in oods, wares or merchandise bate or to be sold for the gen- )e guilty of a misdemeanor, punishment. Also, that if II vend any goods, wares or iving thereon any forged or tamps or labels of any me- 'acturer, knowing them to be terfeited, and resembling or e imitations of the genuine b disclosing the fact to the I be guilty of a misdemeanor ; exceeding $500. 8 and makers of mineral r beverages in bottles " im- iark, were protected by laws providing for registry, &c. jp,. 524-680). A supplement 'as approved April 20, 1853, Jrightley's Digest 10 ed., p. ided that they may file in th« •etary of the commonwealth such bottles, and of the name on, and publish the s^me for jsively in a daily, weekly or >r published in the county ne shall be manufactured or Philadelphia, where publi- made for some time in two 8. It is declared to be un- erson or persons, without the 3 owner, to fill with mineral ■ beverages any bottles so ill, dis{)ose of, or to buy or to :h bottles so marked and not of such owner thereof ; and ball be liable to a penalty of 1 bottle so filled or sold or of, or bought or trafficked in, ase and of $5 for every sub- any person, other than the hereof, using any such bot- herein of any beverage, shall roof of the unlawful use or bottles as aforesaid." Any »f the owner of bottles duly istered, may make oath be- m or justice of the peace on to believe, and believes, are being unlawfully used wy person selling or manu- al water or other bevera^je, and said alderman, &c., shall thureu)Hin issue a process in the nature of a search warrant, &c., and if, ujMm snarcli. any hot- ties so marked shall be found, to bring the same, together with the body of the person in whose possession they may be found, be- fore said alderman, &c., there to be dealt with according to law. In 1865 another act was passed for the benefit of manufacturers of malt liquors (approved April 4 ; Laws, p. 58). It pro- vides that any person engaged in the manu- facture of malt liquors for sale in butts, hogsheads, barrels, half barrels, casks, half casks, quarter casks or kegs, with hit name or other privatie mark branded or stamped thereon, may file in the office of the protho- notary of the county in which such articles shall be manufactured, a description of the names or makes, and cause the same to ne published once a week for six weeks in a newspaper of the county, but in the city of Philadelphia in two daily newspapers for same time. It is declared to be unlawful for any one, other than the lawful owner, to fill with luult liquor, or to use, traffic in, purchase, sell, dispose of, detain, convert, mutilate or de- stroy, or «'illfully or unreasonably refuse to return or deliver to such owner, on demand, any such butt, &c., or tu remove, cut off, deface or obliterate, or to brand or stamp other brands or stamps on the same, with- out the written permission of such original or lawful owner thereof, or unless there shall have been a sale in express terms of such article, exclusive of the malt liquors therein, to such person by the lawful owner ; any person so offending shall he deemed guilty of a misdemeanor, to lie pun- ished for the first, offense by a fine of $10 for each butt, &c., so filled and trafficked in, purchased, sold, &c., and by a fine of $20, and imprisonment in a county jail for not less than one and not more than thr'>e months, for each subsequent offense (one- half to officer making arrest). There is also a provision for issue of search warrant and arrest similar to that iu the oase of bottles inven above. In 1870 (April 9) it was enacted (for the city of Philadelphia only) that any person who shall, without the permission of the owner, fill with mineral water, or any other article!, any bottle marked and registered as aforesaid, or shall sell or buy or traffic in or use or dispose of, any such bottles for gain, convenience or profit, shall be deemed guilty of a misde- meanor, and liable to a fine not exceeding I500, or imprisonment not exceeding six months. " The using by any other person than the rightful owners of such bottles as aforesaid shall be prima facie proof of the unlawful dealing in or using said bottles. " In 1871 (May 25) the act of April 9, 1870, was extended to the counties of Northamp- ton, Lehigh, Bucks, Carbon and Monroe. In 1876 (May 5) it was enacted that the certificate of the Secretary of the Common- wealth under seal should b<> conclusive evidence of the publication marking and registering of mineral water and other bottles. 5? 22. — Sections 186 and 187 of the Penal Code of Utah (Compili'd I^aws of 1876, p 608) provide that every person who willfully forges or counterfeits a trade mark with in- tent to pass off any goods to A'hich such forged mark is afflxoil as the genuine goods, and " every person who sells or keeps for sale any g(x>ds upon which such counterfeited trade-mark has been affixed, intending to represent such goods as the genuine goods of another, knowing the same to be counter- feited, is guilty of a misdemeanor." Section 190 provides that every person who has or uses any bottle or other thing bearing the duly filed trade mark or name of another, for the purpose of disposing, with intent to deceive or defraud, of any article other than that which such bottle, &c., originally contained, is guilty of a mis- demeanor. By Section 17 of the Penal Code a misdemeanor it punishable by im prisonment in a county jail not exceeding jix months, or by a fine not exceeding $300, or by both. The definition of trade-mark contained in tiie Political Code of California is copied iu section i8q of the Penal Code of Utah. J5 23. — The foregoing abstract of the laws of the States is the best argument in favor of a uniformity of action among all trade-mark owner)!. Particular classes of trade-mark owners have obtained special prot«ction, e. {/.. manufacturers and venders of mineral water and other beverages, flour, watches, wines, &c. But these laws only exist in a few States. Marks on watches are pro- tected by an act in Massachusetts ; marks on receptacles of wine made from grapes grown in Ohio are similarly protected there. The sa>ue may be said of flour marks in Missouri. In certain (States it is made obligatory to mark certain articles, >•. g., in New York, by act i860, every person who shall put uji and press hay for market shall mark the initials of his name on some piece of wood attached to the bale of hay, and by act of 1865, every manufacturer of butter firkins is required to brand the same with his name and the true weight of the firkin. In Ohio it was provided that the weight of soap and candles and the name of the manufacturer must be marked on the b6z : marks were also obligatory on packages of sugar, rice, tobacco, &c. In New Jersey (1877) trade-marks on packages of commer- cial manures are obligatory. In South Carolina many articles are enu- merated in the Revised Statutes of 1873, subject to inspection, and to which marks and names must be afiSzed. m ftu CHAPTER II. " ^v.. § r. California. — It was held in Woodward vs. Lazar (2 1 C'al. , 448, 1 863), that the name of a hotel is a trade-mark in which the proprie- tor has a valuable interest, which a court of chancery will protect. A tenant giving a particular name to a building, as a sign of the hotel business, for which he uses it, does not thereby make the name a fixture of the building and the property of the landlord upon the expiration of the lease. In Derringer vs. Plate (29 Cal., 292, 1865), that the right of property in a trade-mark is recognized by the common law, and is not limited by territorial bounds. The Cali- fornia .statute of 1863, concerning trade- marks, does not take away from those who do not register their trade-mark according to its provisions their common law remedy. In Falkinburg vs. Lucy (35 Cal., 52, 1868), that by the terms " peculiar name, letters, marks, devices, figures, or other trade- mark or name," as used in the statute concerning trade-marks (Hittel's Laws, Art. 7134), is not meant the established and pro- per names by which the " articles" to which they are attached and by which they are known in the market, nor something indi- cating their actual kind or quality, but some- thing new — not before in use — intrinsi- cally foreign to the " articles " themselves, and which only serves to designate them be- oaue it has been fancifully put to that use, in disregard of all natural relations. In this case, plaintiff's alleged trade-mark consisted of a highly colored picture of a wash room, &c. , with the following legend interblended with it : " Standard Soap Company, Erasive Washing Powder," followed by directions for the use of the " washing powder," and the place of manufacture. The alleged imi- tation consisted of a label (with picture) which was the same as the plaintiffs only in the use of the words "washing powder," the directions for the use of the powder and the color of the paper. Injunction, in court below, restraining defendant from the use of his label, was dissolved. In Choynski vs. Cohen (39Cal., joi, 1870), it was decided that "Antiquarian Book Store " is descriptive, and therefore not a trade-mark. In Qraham vs. Plate (40 Cal., 593, 1871), that the profits realized by defendant from sales of the spurious article under the ttimu- lated trade-mark, is a proper measure of damages, but the recovery of the plaintiff is not limited to the amount of such profits. Burke vs. Cassen (45 Cal., 467, 1873), was an action brought to restrain defendants whose label read as follows : " Van Wolf's Aromatic Schiedam Schnapps. A superior tonic, anti-dyspeptic and mvigorating cor- dial. This wholesome beverage," &o. Plaintiff's label read : " Wolfe's Aromatic Schiedam Schnapps. A superlative tonic, diuretic, anti-dyspeptio and invigorating cordial. This medicinal beVerage," &c. The description in either case was slightly different. Because the words " Aromatic Schiedam Schnapps " were merely descrip- tive of the article, (Schnapps meaning gin and Schiedam being the name of the place where manufactured,) an injunction was only granted against the use of the name " Wolfe "or " Van Wolf," or any colorable imitation of the name Wolfe, or plaintiff's la- bel. The Court said that a label at common law is not a trade-mark, but when a manofao- turer or seller of goodsadopts alabel to distin- guish his goods from those of another, he is en- titled to be protected in its use, and others will be enjoined from using tiie aame or a colorable imitation thereof. § 2. Connecticut. — In Bradley vs. Norton (33 Conn., 157, 1865), it was decided that the exclusive right to a trade-mark is a species of properly recognized by law. The imitation of a trade-mark, which will constitute an in- fringement of this right, need not be a pre- cise copy of the- original ; if there is a sub- stantiail similarity, so th'\t the community would be likely to be deceived, it is sufBoient. In Boardman vs. Ueriden Britannia Co. (35 Conn., 402, 1868), the defendants used labels similar in arrangement to those. of plaintiff, but substituted their own names for that of plaintiff. Thus : " 1-2 Qross L. Board- man's No. 2340 Wire Strengthened, French Tipped Tea Spoons." " i-a Oross Heriden Britannia Co. 's No. 2340 Wire Strengthened, French Tipped Tea Spoons." The principu feature of the label (not in nie of type) waa the numerals designating the kind of ■poon contained in the package. Defend- ants were enjoined. The decree in this case ft 14 was' the Rubject of review. 36 Conn., 307, 1869. In HofmeB, Booth & Haydens vs. The Holmes, Bmith & Atwood Mfg. Co. (37 Conn., 278, 1870), it was held that when the name of a manufacturing corporation designates the origin and ownership of goods manufac- tured by it, it will be protected in the use of its name to the same extent and upon the same principle that individuals will be pro- tected in the use of trade-marks. Defend- ant corporation was enjoined against the use of its name. Meriden Britannia Co. vs. Parker (39 Conn., 4S0, 1872). The plaintiffs had in their em- "'oy three brothers by the name of Rogers, • ho had formerly, from 1847, manufactured spoons on their own acctihnt and stamp«d them " Rogers." They entered the plain- tiffs' employment and stamped spoons " 1847, Rogers Bros., A i." Defendant acquired the right from other brothers named Rogers, not in his employ, to stamp their name on spoons. He stamped hia spoons " C. Rogers Bros., A I," and '• C. Rogers & Bros., A i," and was enjoined. The court declined to enjoin the name " Rogers " when used alone. g 3. Georgia, — In Ellis vs. Zeilin (42 Qa., 91. 1871), the plaintiff claiming proprietor- ship of a medicinal preparation, " Dr. Simmon's Liver Regulator or Medicine," filed a bill against defendants, alleging tiiat they sold a preparation called ' ' Sim- mon's Qenuine Liver Medicine." put up in packages similar in form and size to his, to take advantage of the reputa- tion of his medicine. Defendants demurred, thus admitting the allegations of the bill to be true. Their demurrer was overruled and an injunction directed to issue. On ap- peal, judgment affirmed. The court say : '' In matters of trade-mark we lay down the rale to be, that, in order to authorize the in- terposition of a court of equity, the title to the use and enjoyment must be clear and unquestionable, and will be adjudicated only upon the rights of parties before the court and as between their conflicting c'^aims, and not with a view to the guardianship of the public upon the merits or demerits of nos- trums, except in cases where injury to the public health or morals enters into the ingre- dients of the allegations." § 4. niinois.— Candee vs. Deere. (54, ID. 439, 1870.) The plaintiffs were manufacturers of plows at Moline, III., and claimed as their trade-mark the words " Moline Plow," which they used in their circulars, price lists and advertisements, but did not place upon the articles manufactured. Defendants made the same use of these words. It was held that " Moline Plow " did not become plaintiff's trade-mark, because not affixed to tihe articles manufactured, and because the words were a generic term indicating the place at which the plows were made. The [daintiA stenciled on their plow bwuns the words "John Deere" in large heavy capitals in the segment of a circle, and the words " Moline, 111.." in a straight, hori- zontal line undemeatn, in smaller capitals. Defendants stenciled the words "Candee, Swan & Co." in smaller capital letters on a segment of a circle, at loast a inches longer than that of " John Deere," and the address " Moline, 111,," in atill smaller capital let- ters, on a straight, horizontal line under- neath. Held that while there was some re- semblance between these brands, there was no such similarity as would show that " Candee, Swan & Co." intended thereby to sell their plows as plows manufactured by " John Deero." Plaintiff claimed the use of the word "Holbrook"as a trade-mark, invented or arranged by one Josiah Holbrook, who al- lowed different persons in different places to manufacture school apparatus under the same name for 20 years before the plaintiff began to use the name ; it was held that " Holbrook " had become a genuine name. Sherwood vs. Andrews, $ Ajm. Law Roir., N. S., 588 ; Superior Court of Chicago, 1866. 8 5. Indiana. — Sohl vs. Geisendorf (i Wil- son's Sup. Ct., 60. 1871.) Plaintiffs pur- chased a trade-mark, mark or label for flour in this fqrm : " White Rose Mills," "Snowflake," "Sohl, Wild & Co." They substituted their own firm name of " Sohl, Gibson & Co." , Held that their title to whole mark or litbel was good. It is an in- fringement of a trade- mark, even though the imitation and original, when placed side by side, would not mislead, if the similarity is such that a difference would not be no- ticed when seen at different times or'.places. § 6. Kentucky. — Laird vs. Wilder (9 Bush, 131, 1872). Defendant unwarrantably ad- opted, to mislead the public, the design of the bottle and the label of plaintiff's prepara- tion. The imitation was so nearly exact as to be well calculated to produce the desired effect. The plaintiff put his compound upon the market with the express, as well as im- plied, assurance that it was " free from all mineral and poisonous substances " The evidence showed that it containedpoisonous substances. Injunction refused. Harden, J. said : " To a party thus presenting himself, a court of equity, adhering to the maxim that ' he who asKS equity must come with pure hands,' will not lend its aid when the object to be effected is to secure him the exclusive privilege of deceiving the public in a partic- ular way, although, in doing so, it might prevent another equally guilty from commit- ting the same wrong." § 7. Louisiana. — Wolfe vs. Bamett &. Lyon (24 A., 97, 1872). Plaintiff claimed as a trade-mark — " Wolfe's Aromatic Schiedam Schnapps." Defendants' labels were color- able imitations of those of plaintiff. The lin Deere " in lar^e hoav y segment of a circle, and th o , 111.." in a straight, hori- moatn, in inialler capitals, iciled the words "Candee, smaller capital letters on a 'cle, at l^ast 2 inches longer ohn Deere," and the address in otill smaller capital let- ^ht, horizontal Hue under- at while there was some re- aen these brands, there was rity as would show that & Co." intended thereby to as plows manufactured by ned the use of the word a trade-mark, invented or e Josiah Holbrook, who al- persons in different places to ihool apparatus under the !0 years before the plaintiff ;he name ; it was helil that d become a genuine name. (Andrews, 5 Ajm. I^aw Beg., erior Court of Chicago, 1866. — Sohl vs. Geisendorf (i Wil- 60. 1871.) Plaintiffs pur- -raark, mark or label for rm: "White Rose Mills," 'Sohl, Wild & Co." They p own firm name of " Sohl, . Held that their title to itbel was good. It is an in- i trade- mark, even though d original, when placed side tot mislead, if the similarity ifference would not be no- at different times onplaces. '. — Laird vs. Wilder (0 Bush, fendant unwarrantably ad- 1 the public, the design of the label of plaintiff's prepara- ition was so nearly exact as iated to produce the desired intiff put his compound upon 1 the ezj>res8, as well as im- that it was " free from all oisouous substances " The 1 that it containedpoisonous unction refused. Harden, J. .rty thus pi-esenting himself, , aidhering to the maxim that quity must come with pure lend its aid when the object to secure him the exclusive living the public in a partic- ugh, in doing so, it might equally guilty from commit- •ong." . — ^Wolfe vs. Bamett & Lyon 2). Plaintiff claimed as a Volfe's Aromatic Schiedam Feridants' labels were color- of those of plaintiff. The 15 court said : " It is in vain to urge that the several words of plaintiff's trade-nmrk are not now. His combination of the words was new, and indicates the origin and owner- s' :p of the liquor, and the defendants have no right to filch this combination, or any important part of it, in such a way as to mislead the purchaser as to the ruul origin and ownership." Defendants had used their labels for ten years. Held, no defense. In- junction. Damages. § 8. Maryland. — Stonebraker vs. Stone- bruker (33 Md., 252, 1870). Brent, J., said in this case : " While a party has the right to manufacture and sell any article he may please, not protected by letters patent granted to another, he has no right to use the trade-marks or names previously adopted and used by another trader, and induce thereby the public to believe the articles sold are another manufacture. Trade- marks are property, and as such the title to them will receive the protection of the courts. If used by another without the au- thority or sanction of the owner, he will be restrained by injunction, and that even when it does not happen that there was any fraudulent intent in their use. He will also be held to account for the profits derived from the unauthorized use of such trade- marks." Plaintiff's marks were : "Stone- braker's Nerve and Bone Liniment," &c. T^ ' defense was interposed that plaintiff had as- sumed, without warrant, the title of Doctor of Medicine, and thereby deceived the pub- lic, who had bought his medicines supposing him to be a doctor. This was overruled, as also the defense that defendant Stonebraker had the right to use his own name. The bill alleged that defendants had employed defendant Stonebraker for no other reason than that his name was Stonebraker. The Court said that "Dr. Stonebraker had a right to enter into an agreement with Messrs. Passano & Clothworthy (codefendants), or anybody else, to manufacture and sell his own medicines, but he had no right to lend or sell his name to perpetrate an injury upon his brother and a fraud upon the pub- lic. The evidence shows that the whole agreement between the parties was but a combination to deceive the public." In WitthauB vs. Mattfeldt (44 Md., 303, 1875), th3 Court said: "The mere sale of a trade-mark, apart from the article to which it is affixed, confers no right of owner- ship, because no one can claim the right to sell his goods as goods manufactured bv an-,| other. To permit this to be done would be a fraud upon the public. But when the trade-mark is assigned to the person who manufactured the tobacco to which the trade- mark was affixed, there is no false repre- sentation to the public, because the tobacco is still manufactured at the same place, and by the same person." To justify the issue of an injunction the title of plaintiff sliould be clear. g g. Massachusi'tls. — Thomson vs. Win- chester (iq Pick,, 214, 1837). If the defend- ant mode and sold medicines, calling them " Thomsonian medicines, "and sold them, or. placed them in the hands of others to sell, as and for the medicines made and prepared by the plaintiff, the plaintiff will be entitled to recover damages. Ifthe word "Thomsonian" had acquired a ge nerlc meaning, descriptive of a general kind, quality and '^lass of medi- cines, although the plaintiff was the inven- tor, he had no exclusive right to compound them, not having a patent, and no exclusive right to the use of the name. It made no difference that the defendant put up an in- ferior medicine under the name "Thomso- nian " if he did not sell it as and for the medicine of the plaintiff. Marsh vs. Billmgs (7 Cush., 323, 1851) In this case it was held that plaintiff, a com- mon carrier, with an exclusive license from the "Revere House " to use its name on his coaches, could maintam an action against a rival carrier who also used the words " Revere House," but without authority. Defendant had a right to carry passengers to the Revere House, but not to hold himself out to the public as in the employment or having the patronage or confidence of the Revere House. Damages need not be proved to warrant a verdict for nominal damages. Jury not confined in their verdict to loss catised by actual diversion of traffic, but may infer such injury as warranted by the evi- dence. Ames vs. King (2 Gray, 379, 1854). A bill in equity to restrain the fraudulent use of trade-marks cannot be maintained under St. oi 1852, c. 197, without alleging and proving that such use was for the purpose of falsely representing the articles so marked to be manufactured by the plaintiff. Bowman vs. Floyd (3 Allen, 76, 1861). This was the case of the continued use of a firm name after the decease of one of the partners whose name appeared in the firm niune. Under ch. 56 § 4, General Statutes, the court has power to restrain such use of the name of the deceased partner, un- less he had given his written consent to such use during his lifetime, or it had been given by his executors. 'Rogers vs. Taintor (97 Mass., 391, 1867). F. J. R. & T., copartners, began business of manufacturing machinery at Worcester, in 1852, under the firm name of F. & Co. ; j and F. J. R. and C, copartners, began like business at Cincinnati in 1853, under the same name, using it as the style of the firm and as a trade-mark. F. died in 1854. Ever since his death J. R. & 0. continued the business at Cincinnati with all the rights as to the use of the name of F. & Co. which the Cincinnati firm had originally ; and J. R. & T., copartners, continued the business 4 mttm le m •t WoroMt«r, undor the natno of F. & Cn. , with tho aaseiit of F.'a ropniHuntativeii until 1861, when their firm was diMolved and it* orders, correspondence and g()olf be the subject of' a trade-mark. A person may have a right in his own name a8 a trade- mark, as against a i>or8on of a different name ; but he cannot have such a ri^ht as against another purson rf the same name, unless the defendant uses a form of stamp or label so like that used by the plaintiff as to represent the deiendant's goods as of the plaintiff's manufacture. • » * The court will not restrain a defendant from the uho of a label on the ground that it infringes the plaintiff's trade mark, unlesv the form of the printed words, the words tliomselvus, and the figures, lines an applied to the case, which given iu this article. 17 W.— Qroy v». Koch (2 Mioh. I. No property con be accioir- inarks which do not denote iperty or particular jjlace of >erBon. Held, accordingly, by prior use, can acquire an to the use of the words rdrobe," as a sign or dosig- e where a large amount of f.— Filley vs. Fassett (44 Mo. , intiff's stoves were marked ind the words "charter oak." 'e held to infringe, though 3 oak leaves. The imitation >ct, nor of the whole trade- be enjoined if likely to de- ; necessary to* prove actual ers. It is no defense that fringed, unless it be shown isented to or acquiesced in Dt. r. Garnhart (45 Mo., 593, sold whiskey in barrels, on vhich were stenciled two le upper parts leatiing away r. Defendant sold whiskey B heads of which were sten- with the handles leaning Bf. The names of plaintiff were used on their own bar- ■. The only similarity was •hora and picks. No fraud that any one had been mis- b the resemblance between s too slight to be likely to uri r». Qibbs (56 Mo., 133, t Perrin's Worcestershire t to protect merchants, &e. , :eit trade-marks, approred i not abridge the common law property in a trode-mnrk, and applivH to citizens of other Htates and nr.tioni, as well tts those of Missouri. 8t. I^iuis Piano Mfg. Co. ex. M<>rkel (1 Mo., App. 305, 1876). Plaintiffs used the words "bi'll treble " in circulars and other ndver- tisenients of its pianos, but did nut atlix the words to piuiioN. Defendants afKxed the words to their pianos, Injunction agiiiiiMt defendant in court below was diNsolved, be- cause "the failure of the ulaintiif to ulHx the term or nuine ' bell treble ' to pinnoH of its manufacture disables it from cluiniiiiK that defendants have injured it by alflxiug it to theirs." , S 12. Sew York. — There are about as muny eases reported in the New York re- ports as in those of all the other States onm- bined — a fact probably due to two chiiser, vis., the custom in New York to publish de- cisions of the lower courts and of single judges, and also because the city of Now York is the greatest distributing point of the United States. A digest is made of the leading cases for convenience of examina' tion. Who May Acquire a Traile-Murknnil How. — The venders of an article of trade or manu- facture, who use a particular trade- mark to distinguish such arriolu are entitled to pro- tection,- though they ilo not manufacture the goods. Taylor vs. Carpenter, 2 Sandf., oh. 603, 1846. Aliens have the same right to relief against a piracy of their trade-marks as citizens of the Unite I States. Coates rm. Holbrook, 2 Sandf., $86, 1845. The sale of the good will of a business does not transfer a right to the use of the vendors sign, or trade name, e.g., " Howe's Bakery." Howe «». Searing, \q How. Pr., 14, i860. The purchased of a spring (whose waters are designated by a trade-mark) and all the interest of the original proprietors, acquire a valid title to the trade mark. C. & E. Spring Co. vs. H. R. C. Spring Co., 4s N. Y., ^9>. 1871. Though one discover or invent an article and give it a peculiar and distinctive name, if he permits another, with his acquiescence, to appro(>riate it with that name and put it forth to the public as his own, that other will become the proprietor of the name if ho me^s the other conditions prescribed by the law in such cases. Caswell m. Davis, 78 N. Y.. 223, 1874. It was decided that one might acquire the right to use a trade-mark, registered under the United States statute, by lieente, paying royalty for its use. We do not think this good law. Hilsen es. Libby, 44 N. Y. Superior Ot., K. 12, 1878. What May Become a Trade-Mark. — "Yan- kee soap." Williams es. Johnson, 2B0BW., i, 1857 ; id. vs. Spence, 2$ How., Pr. 366, 1863. "Cocoaine," as applied to a hair wash. Burnett t». Phalon, 3 Keys, N. Y. 594, 1867. " tiisniarck," as applied to paper ccillurs. Mesurole r«. Tynberg, 4 Abb. Pr., N. M. 410, 1868. " Bovalino" as applied to a hair |)oniade. Lockwood I'd. Bodtwiek, a Daly, ;3i, i80(). " CongroHS Water,"' or " Congn ss Spring Water," appropriately indicates the origin and ownei-Nliip of the water flowing from Congress Spring, and the word " Congress," used in connection with the bottling and sale of such water, is u proper and legitimate biikiness trnde-niark. C. iNc E. H. Co. v». H. K. C. S. Co., 45 N. Y., 2(}i, 1871. " 3"3i" as applied to steel pens, not to ex- press any size or quality, but the character or pattern. Gillott va. Esterbrook, 48 N. Y,, 374, 1873; id. " yi" on cigarettes. Kinney i-N. Raseh, 16 Am. Xaw Heg., N. S. S96, 1877; id. "35" on cards for photographic mounts, Williams va. ReyiioldB, 7 Abb., New Cases 17, 1874. " Akron," tbe name of the place of origin of a cement, is a good trade-mark of such cement as against persons not living in Akron. Newman rs. Alvcrd, j' N. Y., 189, 1873. "Worcestershire " as applied to sauce iu same manner, 15 At>b. Pr. (N. S.) 1873. Whut Cannot Hecomf n Tijde-Mark. — Marks, symbols or letters which merely in- dicate the appropriate name, mode or pro- cess of manufacture, or the peculiar ur rela- tive quality of the fabric manufactured, as distinguished from those marks which indi- cate the time, origin or ownership of the fabric — e. g., the letters "A. C. A.," used by a manufacturer of tickings to designate ' the first quality of his fabrio-are not trade- marks to use which an exebisive right may ' be claimed. Amoskeag Mfg. Co. vs. Spear, 3 Sandf., 599, 1849. ' Arbitrary names — e. g., "Galen," "Lake," "Cylinder," " Wayne" and "New York " — when applied to glass to denote quality only, are not entitled to protection as trade- i marlcs. Sbikes vs. Landgraff, 17 Barb , 608, 1S53. " Schnapps," used in Holland to mean a dram, or gin, as applied to gin. Wolfe vs. Goulard, 18 How Fr., 64, 1859. "Schiedam," because the name of a town. Same case. " Club House," as applied to gin ; beoaus« it had been previously used to indicate a superior quality of articles, including gin. Corwin es. Daly, 7 Bosw., 222, i860. " Old London Dock Gin " ia descriptive. Binninger es. Wattles, 28 How. Pr., 206, 1865. "Dessicated Codfish," is descriptive. Town es. Stetson, 5 Abb. Pr. (N. S.) 2x8, 1868. A person cannot acquire a trade-mark in his own name, and thus debar others having the same name from using it in their busi- ness. Meneely vs. Meneely, 62 N. Y., 427, 1875. Devlin vs. Devlin, 69 N. Y., 212, 1877. Decker vs. Decker, 52 How. Pr., 218, 1876. Faber es. Faber, 49 Barb., 357, 1867. t8 ( 1 Clark Id. (Mnik, 35 B/irb., 76, 1857. Contra, diatum in Mo«vu vn. Howe Mnohino Co., 50 Diirb., 33f), 1H67. VV'ordN anil phraNeH in common mo and whicli indicate, tho charat't«r, kind. (|iiality and '!onipo*ition of nn article of lyannfan- ture nnnnot hoconio a trade- niarlc, nvvn thoui:b the form of tlin wordx or phraiutM adopted alio indicatn thn origin aixl mak««r of the nrtiuht. Tlin word* nnmt uxpreHH oidy the lattor to l)«come a trado-innrk — «. (/., a mndicine, the principal inKTedifntM of which are iron, phoRphorni) and tdixir of caliRaya bark cannot be called (nn a tradx-mark) " Kerro-PhoHphorated Klixir of CaliiiaVa Bark." Caswell m, Davi« 5» N. Y , 223, 1874. " Qohl Medal," ax appliod to HaleratUN Tnylor f». Gillies, 5() N. Y., 331, 1874. When an Injunctinn will bn (Irantml.^ The name of a newspaper may be protected by injunction if tho title in clear. Snow- den m. Noah Hopkins, Ch. Rkp., 347. Bell vs. I^rftcke, 8 I'aigo, Ch. 7<;, 1840. Matsell w. KlannaKan, 2 Abb. Pr., N. 8., 459, 1867. Where the Court sees that the complainant's trade-marks are simulated in such a manner as probably to deceive his customers or patrons, the piracy will be checkeil at once t>y injunction. The Court proceeds upon the f^round that the complainant has a valu- able interest in the gooV Hall Miy, Co. rs.Hall, 61 N. Y,, 236, 1874. To provoMt tho use of the name of the de- ffudant in such a wiiy as to mislead or in- iliico tho publi(! t'> bvlievfl that ho is thi> plaintiffs— c. (/,, ilofondan^, who had no part- ner, usoil thu narao of the cimii)liiinin)( flrni " Devlin & Co." Dovlin «s. Devlin, 69 N. Y., 212, 1877. Agiinst a manufacturo of lahelri which have 'such a rosomhianco to tho genuine as to deceive purchasers of otdinary caution, or tho careless and unwary. Coleman vs. Crump. 70 N. Y., 573. 1877. To sustuin such an action it is not neces- sary to oMtablish a guilty knowl(>t be maintained. le Court Reports, ed lard, stamped was put up for fat hog. The lieir packages of taunt wild boar ces used with al limilar. Injunc- T I. I .1 1!» ' lion ri'fiisod. I'opham Va. Cole, 66 N. Y., 6(j, 1876. WIml oiinnot hf sff up an n IWfrnne. — \<> dofoiiMx that the Hiiiiiilnted nrticlo In ei|Uiiltii the gi'Muine. Conts v». Ilollirook, 2 Sniidf,, (•h. 586, 1845 ; Taylor vn. C'ariieiiter, id. 61)3, 1846. FartriilK'o i'». Menck, id. 633. 1847. No ilofenfie that tho maker of I ho NpiiriouN goods, or tho joober who <{ii country, ^o not nffoct bin right to their exclusive use when he has iiitroihiced them here. Coat* o». Holbrook, 3 Sondf., I'h. 586, 1845 ; Taylor ».<•. Carpenter, a Haiidf.; ch. 603, 1846. That iilaintifl' had ct'iiMod to use the mark infringed for 3 Jrears. r.eiiioine M. Ganton, a £. D. Smith, 343, 1854. Ill nn action to restrain the infringement of plaintiff's trHde-uiark, the complaint al- leged that thoy manufactured brandv which they put up ond sold in "quart ond pint bottles," on which thoy put the trade-mark in question. The Court found that defend- ant pirated plaintiff's trade mark, but falsely and deceitfully used bottles repre- sented to be "quart and pint" which did not hold that quantity, anu that the trade- mark was designed and used to protect a fraud, and upon this ground disniissod the complaint. This ground was not set up in lihe answer, and does not appear to have been litigated on the trial. Nothing ap- peared upon the bottles to indicate the quan- tity contained, nor did it ai^pear that such bottles were used in the triule as a measure of quantity, or that purchasers did not understand their capacity ; or that plaintiff ever deceived any one. The findings of fact and conclusions were held, on appeal, to be erroneous. Hennessy vs. Ward Wheeler, 69, N. Y., 271, 1877. The fact that the same device is used upon other .rticles of merchandise does not take from tae plaintiff the exclusive right to Its use upon the articles manufactured by bim. Coleman vs. Crump, 70 N. Y., 573, 1877. Statutes. — To render a person liable under the pi-ovisiofls of § 4, ch. 306, Laws of 1862, entitled " an act to prevent and pun- ish the use of false stamps, labels, or trade- marks," as amended by g 3, ch. 2oq, Laws of 1863, the act complained of must have been done with intent to defraud some person or persons or some body corporate. Low vs. Hall. 47 N. Y., 104, 1871. g 13. iVoH&Caroh'na.—BlackweUrs. Wright (73 N. C, 310, 1875). It was held in this case that every manufacturer has the un- questionable right to distinguish the goods lie manufactures and sells, by a piAticular label, symbol or trade-mark, and no other ' person hnN a right to adopt his triide iiiiirk , or one ho like hiN sn to lead the |iiil)lic to Hiipixme the article to which it is atiixed in the inaiiiifactiire of the inventor. Hut be- fore the owner of the trademark can invoke the power of the coiirtx to prevent an in- fi'iiigeinent thereof, hii must show a clear legal title to the trude-inurk and a plain vio- lation of it. If it appear that the trade- mark ullewed to l»t an imitation, though in some reitpects resenibliiig that of the iilain- tilT, would not probably ditreive tho ordinary mass of purchasers, an iiijiinctioii will not bo grunted. The name of the town where both parties are doing business cannot be used as a trade-mark. In this cane plaintiff's label was as follows 1 "Genuine Durham .Smoking Tobacco, manu- factured by W. T. B'ackwell tHiiccensor to J. U. Green & Co.), Durham, N. C," with the picture of a bull in tho center of the label, over which au tho words "Trade Mark." He alleged that this was imitated by the label of defendant, which was on glazed paper of tho same color and general appearance of plaintitf's, with the picture of the head of a bull in the center, and read : "The Original Durham Hnioking Tobacco, manufactured by W. A. Wright." Injunc- tion in the court below dissolved. § 14. OAio.^McOowan, &c. vs. McQowan, (1 Cincinnati Superior C, Rep. 313, 1873). T. & J. McG., pump manufacturers, were part- ners as McGowau Bras, J. sold out to T. all his interest in the firm, including the old patterns, with the name of McGowan Bros, on them. T. and others procured a certifi- cate of incorporation as ' ' McOowan Bros. Pump and Machine Co." Held that J., who had set up a similar business, could enjoin the use by the corporation of the name " McGowan Bros." The old name is not a trade-mark, and while there is a right to use the old patterns with the name of McGowan Bros, on them, it cannot hold out by the corporation term that all the articles made by it were in fact produced by the skill and labor of J. , or that the corporation is in fact the old flrra composed of both brothers. §15. Penniylvania.—Tiie decisions in this State are more numerous than in any other State except New York. They are, there- fore, given under the form of a digest for convenience and perspicuity. What vfiay become a trade-mark.— A. word which is the name of an article or indicates its quality cannot be appropriated as a trade- mark, e. (/., "Extract of Night Blooming CereauB. ' Phelan vs. Wright (s Phil., 464, 1864). A trade-mark may consist of distinctive words, not in common use, descriptive of similar articles. The name of the inventor may form part of the trade-mark. a. gr., "Dr. J. N. Lindsey's Improved Blood ■MB '■'''Vi JiP^', '^'•-■' f 20 Searcher." Fulton vs. Sellers (4 Brewster, 42, 1867) ; Aver va. Hall (3 Brewster, 509, 1871). No right can be absolute in a name, as a name merely. It is only when that name is printed or stamped upon a particular labol or jar, and thus becomes identified with a particular style and quality of goods, that it becomes a trade-mark, l^wley m. Hough- ton (2 Brewster, 303, 1868) ; Ferguson vs. Davol Mills (id. 314, 1868). It is requisite that the device should pe.'* form the office of a finger-board, and indi- date the name and addresp of the manufac- turer, to invest it with the attributes of a trade-mark entitled to protection. The let- ter K inclosed in a double ring with the let- ters "No." and "yds" between the rings, UDt a trade-mark. Ferguson vs. Davol Mills (2 Brewster, 314, 1868). A trade-mark to be capable of exclusive use must be such as will identify the article to which it is affixed as that of the owner and distinguish it from those of others. Palmer vs. Harris (60 Penn. S. R., 156, 869). Title to the property in the name "Key- stone Lime," acquired by many years cer- tain, exclusive appropriation and use of it by shippers of merchandise who did not own the vessels employed by them will be pro- tected in equity. Winson vs. Clyde (9 Phil., 51?, 1872). When an injunction uHU be granted. — To entitle the owner of a trade-mark to pre- ven'ii its use by another person, there must brj in the copy such a general resemblance of the form, words and symbols in the orig- inal as to mislead the public. Rowley vs. Koughton (2 Brewster, 303, 1868); Dixon CrucibleCo. vs. Gugenheim, (id. 321, 1869). A sufficiently distinctive individuality must be presented, so as to procure for the person him- self the benefit of that deception which gen- eral resemblance is calculated to produce. Rowley vs. Houghton, supra. The jurisdiction of a Court of Chancery in trade-mark cases attachei| because of the injury to the one whose goods are simulated by interfering with his profits, not because of the deception upon the public. Dixon Crucible Co. vs. Qug^nheim (2 Brewster, 321, 1S69). Defendant put up a sign — "Dr. F. R. Thomas, formerly operator at the Colton Dental Rooms." The words "formerly operator " were very small — the others very larg^. Jleld, that the use of the hlga was fraudulent, as against ov. ner of the Colton Dental Rooms. Enjoined. Colton vs. Thomas ^ BrewBt«r, 308, 1868). Defendant will be enjoined against the use of his own name when the same has been employed by hi 1 as a trade-mark and sold to another, with covenant not to use the trade-mark. Ayer vs. Hall (3 Brewster, 50q, 1871). When an Injunction will be Refused. — The label of the plaintiff was printed upon pink- ish paper — " Aremingo Mills; warranted indigo blue." The label of defendant was printed on paper with a fanciful deep pink border — "Superior domestic pure hnen goods, manufactured by William Baird, at Aremingo Mills, Frankford, Pa. ; warranted fast colors." The words " Aremi'igo Mills " were printed in small capitals. The size of the labels was different ; the color different ; the size of the letters, &c. , except the words ' ' Aremingo Mills, " were distinct. Injunction refused. Calladay vs. Baird (4 Phil., 139, i860). A trade-marh in the Spanish language, on cigars made in New York, indicated that they were made in Havana. Injunction refused, because the mark gave a false indication. Gillis vs. Hall (2 Brewster, 324, 1870). The plaintiff had ado))ted a trade-mark so recently as not to have become known to the trade. Defendant, in entire ignorance of the fact and without any apparent design or intention, used the same words as a part of his trade-mark. Injunction refused. Seltzer vs. Powell (8 Phil., 296, 1871). Plaintiffs claimed the use of the name " Galaxy Publishing Company" as a trade- mark. There was no L'uch corpora- tion. Held that if plaintiff's firm name falsely implies that they are a corporation a court of equity will not assist them. Mc- Nair vs. Cleare (31 Legal In., 212, 1874). The name of an incorporated borough cannot be held as a trade-mark to the ex- clusion of other residents ot the borough. This is so, though the trade-mark was adopted before the incorporation of the borough and be'fore thera was any town in that place. A corporation adopted the trade-mark "Glendon" on their iron. The place where their furnaces were was afterward made a borough by the name of Glendon. Another company afterwanl used the mark "Glendon "on their iron. Held that the second company could lawfully use this mark. Glendon Iron Co. vs. CJhler (75 Penn. S. R., 467, 1874). Title. — The purchaser of a trade-mark and the right of manufacture of the article designated by it may be protected by injunc- tion. He need not designate himself as as- signee. Fulton vs. Sellers (4 Brewster, 42, 1867) ; Dixon Crucible Co. vs. Gugenheim (2 Brewster, 321, 1869). A person may sell a trade-mark which contains his own name, and covenant not to use the same. Ayer vs. Hall (3 Brewster, 509, 1871). The use of the name " Keystone line " by a steamship company while the shippers were its agents is a mere license, and gives no right to its use after the agency is ter- minated. Wilson vs. Clyde (9 Phil., 513, 187a). § 16. Rhode /stand.— Davis vs. Kendall (2 R. I., 566, 1850). Plaintiff was the inventor of ametficine which he called "Pain Killer." Defendant put up a medicine in similar m H 21 inted upon pink- ills ; warranted [ defendant was nciful deep pink tic pure linen '^illiam Baird, at Pa. ; warranted Aremi. go Mills" als. The size of 9 fiolor different ; except the words :inct. Injunctiou rd (4 Phil., I3Q, lish language, on dicated that they junction refused, false indication. 324, 1870). a trade-mark so me known to the ire ignorance of parent design or ords as a part of refused. Seltzer se of the name my " as a trade- L-uch corpora- iS's firm name i a corporation a ssist them. Mc- i., 212, 1874). wrated borough nark to the ex- ol the borough. rade-mark was )oration of the was any town •ration adopted ' on their iron. aaces were was >y the name of any afterward on their iron. ly could lawfully >n Co. vs. [Jhler a trade-mark of the article »cted by injunc- himself as as- Brewster, 42, Ougenheim (2 rson may sell a his own name, le same. Ayer 70. ystone line " by the shippers ease, and gives agency is ter- Phil., 513, i87!«)- vs. Kendall (2 iras the inventor Pain Killer." line in similar 4 i 'J) packages, calling it "J. A. Perry's Vegeta- ' bio Pain Killer." The court said : "Trade- marks may be, first, the name of the maker ; second, symbolical ; third, the name of a compound. Of this last kind is the trade- mark of the plaintiff—" Pain Killer." All are entitled to make and vend this com- pound, and to vend it as a similar article to that made and sold by the plaintiff ; but no one but the plaintiff has a right to sell it as a medicine manufactured by the plaintiff. * * If the defendant states in his label that the article which he Hells was made by himself, although he calls it by the same name as the plaintiff's, he will not be liable, because he has a right to Jiake and vend the compound, if he vends it as his own and net as made by the plaintiff. If the defend- ant, without fraud, use the trade-mark of the plaintiff, he is stiU liable. The whole question in this case is whether the defend- ant's label is liable to deceive the public, and to lead them to suppose they are pur- chasing an article manufactured by the plaintiff instead of the defendant." Judg- ment for the plaintiff. Barrows vs. Knight (6 R. I., 434, i860). In this case it was decided that " Boger Williams' Long Cloth " was a good trade- mark. A. Carmichel & Co. vs. Latimer, Still- man & Co. (11 R. L, 3^5, 1876). A. C. & Co. bein£^ the successois, hy purchase, of Stillman & Co., woolen laanufacturers, con- tinued to use " Stillman & Co." as a trade- mark. Latimer, Stillmitn &Co., the lessees of a mill formerly used by Stillman & Co., known both as " Stilhaan MiU " and " Sev- enth Day Mill," used " Stillman Mills" as a trade-mark. On a petition for an injimc- tion against defendants to present their using the word "Stillman" — it appearing that no deception could be charged on the defendants, and that no person of the old firm of Stillman & Co. was a member of A. C. & Co. — an injunction was refused be- cause a manufacturer has a right to label his goods with his own name or that of his mill, if no fraudulent purpose is intended. The question was raised (but not riecided) whether a trade-mark whose reputation de- pends upon the excellence of the manufac- ture or the skill and uonesty of the manu- facturer, can be assigned. § 17. Wisconsin. — Dunbar vs. Glenn (42 Wis., 118, 1877). The owner of a natural product (as the water of a mineral spring) is entitled, like the manufacturers of artificial products, to have his trade-mark protected. When a particular word or combination of words, used as a trade-mark, distinctly point to the origin and ownership of the article to which it is applied (and which is not a generic word or geographical name of place of origin), it will be protected. The word " Bethesda " is a good trade-mark of nhtural mineral waters. § 18. United Slates. — Federal Courts. — What may become a Trade-mark. — The cor- porate name of a corporation is a trade- mark and will be protected by a court of equity. Newby vs. The Oregon Central Railroad Co., i Deady, 610 ; Oregon, 1869. " Eureka," first used by complainant in a compound fertilizer which they call " Eu- reka Ammoniated Bone Superphosphate of Lime," is a trade-mark. Fertilizer Com- pany vs. Woodside, I Hughes, 115 ; Mary- land, i86q. " Our Young Folks," as the title of a pub- lication. Osgood vs. Allen, i Holmes, 185 ; Maine, 1872. " The Star Shirt," or " The • Shirt," as applied to shirts. Morrison vs. Case, 9 Blatch., 548 ; Conn., 1872. A representation of a crown as applied to paints. Smith vs. Reynolds, 10 Blatch. , 100 ; New York. S. Dist., 1872. But only as to the particular class of paints on which it had been used, and not as to paints generally. Same case on final hear- ing, 13 Blatch., 458, 1876. La Soci6t6, &c. vs. Baxter, 14 Blatch., 261 ; New York, S. D., 1877. " Dr. J. Black man's Genuine Healing Bal- sam," as applied to a medicine. Filkins va. Blackman, 13 Blatch., 440 ; Conn., 1876. }4 printed in large bold red charar:ters in a certain form and style on packages of cigarettes. (No exclusive right to the use of the numeral character yi used in the ordi- nary manner). Kinney vs. Allen, i Hughes, 106; Virginia, E. D., 1877. What cannot become a Trade-mark. — "Lackawanna," as applied to coal mined \a the Lackawanna Valley. Canal Co. vs. Clark, 13 Wall, 311 ; U. S. Supreme Court, 1871. To entitle a name to equitable protection as a trade-mark the right to its use must be exclusive, and not one which others may employ with as much truth as those who use it. Same case. A barrel of peculiar form, dimensions and capacity, irrespective of any marks or brands impressed upon or connected with it, cannot become a lawful trade-mark, or a substantial part of a lawful trade-mark. Moorman vs. Hoge, 2 Sawyer, 78 ; California, 1 87 1. Citerl and approved in Harring- ton vs. Libbey, 'n which case a tin pail of peculiar design for holding paper collars for sale was held not to be a trade-mark. 14 Blatch., 128 ; New York, S. Dist., 1877. A mark calculated to convey the im- pression that the article to which it is affixed is patented, when there is no valid patent upon it, is deceptive in its name, and therefore invalid. Trade-mark claimed " Mason's Patent, November 25, 1858." The patent had been held invalid. The Consoli- dated Fruit Jar Co. vs. Dorflinger, 2 Central L. J., 721 ; Penn., E. Dist., 1875. When an Injunction will be Granted. — The plaintiff called his medicine the " Chinese iM^^ m 22 ! 1 I l . Liniment," the defendant called his " Ohio Liniment," but from the body of the label, and the directions for the use of the n- 3di- cine, it was clear that the language of the defendant was so assimilated to that of the plaintiff as to appear to be the same medi- cine, the alterations being only colorablo. Injunction granted. CoHin va. firunton, 4 McLean, 516; Indiana, 1849. See same case on appeal. When on ordinary observation tho two marks would be confounded and defendant's mark is calculated to mislead the publ'c. Walton vs. Crowley, 3 Blatch., 440: l>ew York, S. D., 1856. "Bills of t-'his description are not main- tainable UDon the ground that the plaintiff has a right of property in the trade-mark. The relief is given because the mark is a sign or repreHentation, importing, and so understood and acted upon by the public, that the article to which it is attached is the manufacture or production which is gener- ally known in the market under that de- nomination ;" id. But a later case says : " The law is well settled that a party who has appropriated a particular trade- mark to distinguish his goods from other similar g^ds, has a right nr property in it which entitles him to its exclusive use." An imitation of a label in every respect like the original, except that " Hostetter " was altered to "Holsteter," and the words "Hostetter & Smith" to "Holsteter & Smyth" was enjoined. Hostetter vs. Vo- winkle, I DiUon, 329 ; Nebraska, 1871. Plaintiff claimed as a trade-mark the words "Genuine Durham Smoking To- bacco," and the side view of a Durham bull, and alleged that defendant infringed by using the words " The Durham Smoking Tobacco," and the device of a bull's head, with the note ol ihe sale to the defendant of Wright's patent for the manufacture of " Genuine Durham Smoking Tobacco." Both labels were printed on paper of the ' same color. Injunction granted. Black- well vs. Armistead, 5 Am. Law T., 85 ; Vir- ginia, W. D., 1872. An injunction will be granted when the imitation is so close that by the form, marks, contents, words or their special arrangement, or by the general appearance of the infring- ing device, purchasers exercising ordinary caution a" likely to be misled into buying the article bearing it for the genuine one. McLean vs. Fleming, 6 Otto, 245 ; U. S. Supreme Court, 1877. Plaintiff's bottles were branded with the word "Apolinaris "and the repreiientation of an anchor. Defendants were enjoined against the use of the word "Apclliniu" and the repre- sentation of a bow and arrow or anchor, plaintiff giving bond to pay damages. Ac- tion, &c. vs. Somborn, 14 Blatch., 380 ; New York, S. D., 1878. When an Injunction will be Refused. — A court of. equity will not, in a contest be- tween persons who profess to be manufac- turers of quack medicines, interfere to pro- tect the use of trade-marks by injunction. A complainant whose business is imposition cannot invoke the aid of equity against a piracy of a trade-murk. Fowle vs. Spear, I Law Reps. (N. S.). 130 ; Penn., E. D., 18^/. Hoath vs. Wright, 3 Wallace, Jr., ^41 Pern., 1855. On final hearing injunction was refused and also an application for a rehearing, be- cause there was a controversy whether both plaintiff and defendant were not engaged iu establishing the business. If the rights of the plaintiff are not clear, the court will re- fuse an injunction and leave him to his action at law. CofiSn vs. Brunton, 5 Mo> Lean, ;:j6 ; Ind., 1851. A statement filed by O., in United States Patent Office, set forth that his trade-mark consisted of the words "Heliotype," "in connection with the production and publica tion of prints," and that " the particular ar- ticle of trade " upon which he had used it was " the prints which he designated as ' Heliotype.' " Subh prints were made by a process to which the name ' ' Heliotype " was applied, and which was a process secured by letters patent of the United States, un- der which O. was the sole licensee. The defendant used the word "Heliotype" on prints published by him, but not made by such patented process. Held that the right of O. to the recorded trade-mark was lim- ited to its use on prints made by such pat- ented process. Osgood vs. Rockwood, 11 Blatch., 310; New York, S. D., 1873. When the registered trade-mark consists of a combination of designs, each of which alone is public property, one who used only part will not be enjoinca ; e. g., plaintiffs claimed as a mark a perspective of a bed bottom, with the letters "T. M. Co." in monogram in the center of the picture, and over it the words "Tucker Spring Bed." Defendant used the picture and the words " Tucker Spring Bed " and the same colored label. Held he had a right so to do. The Tucker Mfg. Co. vs. Boyington, 9 O. G., 455 ; Illinois, N. D., 1875. Defendant put up Hamburg tea in packages of the same size and general shape and similarly-colored envelope as the plaintiff. Similar printed notices and directions for use were tied up with the package ; but on the labels, which nrere similar in place on the package and in color, the name of the defendant was printed instead of that of the plaintiff. Injunction refused, because the ownership of the packages was sufficiently indicated. Frese vs. Bachof, 13 Blatch., 234 ; New York, S. D., 1876. When a person who claimed property in n trade-mark had acquired it, if at all, by uae in circulars of fraudulent and deceptive and untrue language as to the origin and quali- ties of the article in respect of which the trade-mark was claimed. Injunction re- rift _#• ittteiiiH fm 23 to be manufac- interfere to fto- ks by injunction, ess is imposition equity against a Fowle vs. Spear, ■enn.,E.D.,i8^/. e, Jr., i4lPern., iioa was refused a rehearing, be- irsy whether both re not engaged in If the rights of the court will re- leave him to his . Brunton, 5 Mo- in United States it his trade-mark "Heliotype," "in iction and publica ' the particular ar- •h he had used it he designated as ts were made by a J " Heliotype " was a process secured United Stat«8, un- lole licensee. The 1 "Heliotype" on t, but not made by Held that the right ide-mark was lim- nade by such i»t- va. Rockwood, 11 S. D., 1873- . ^ rade-mark consists Igns, each of which [one who used only ua ; e. (/., plaintiffs '• irspective of a bed " T. M. Co." in jf the picture, and jker Spring Bed." bure and the words id the same colored ight so to do. The lyington, 9 O. G., [burg tea in packages ] general shape and )e as the plaintiff. and directions for le packi^e ; but on Isimilar in place on |r, the name of the kstead of that of the [fused, because the ges was sufficiently iof,i3Blatoh.,234; aimed property in a 1 it, if at all, by use It and deceptive and le origin and quali- pspect of which the Injunction re- fused. Seabury rs. Qrosvenor, 14 Blatch., 2(J2 ; New York, S. D., 1877. The right of A. to a trade-mark in con- nection with the dry white oxide of zinc is not infringed by the sale of a paint com- posed of a white oxide of zinc ground in oil, and untruly represented as containing white oxide of zinc made by A. , such trade-mark never having been applied by A. to that ar- ticle ground in oil. La Soci^t6, &c., 0% Baxter, 14 Blatch., 261 ; New York, S. D., 1877. The word " Worcestershire," as applied to sauce, has become generic in meaning by constant use for a particular species of sauce without suit to prevent it, and the fact that persons reside in Worcestershire, in ..England, and manufacture there a sauce ' which they call "Worcestershire Sauce," does not give them the sole right to such application of the term. A suit having been brought — the same plaintiffs against the principal in England — and the case dis- missed, the same plaintiffs cannot sustain a sr '.t here against the agents. A trade-mark bad in England cannot become the ground for an injunction here against articles of English manufactui%. Lea V8. Deakon, 18 Am. Law Beg., 322 ; Illinois, N. D., 1879. What Cawiot be set upas a Defence. — That plaintiff- is an alien. Taylor vs. Carpenter, 3 Story, 459; Mass., 1844. Usage abroad to use trade-marks of others when aliens with impunity is not a compe- tent defense to the jury, and such a usage being a bad one, and not in existence here, cannot offset the law here. Taylor vs. Car- penter, 2 Wood & M. i; Mass., 1846. No defense that plaintiffs placed on their business envelopes and business cards, "es- tablished in i860," when the fact was that the business was established in 1865, the mistake having been corrected as soon as discovered. 'Blackwell & Armistead, 5 Am. Law T., 85 ; Va., W. D., 1872. Title. — fi use by defendant was for such a length of time and under such circuiustances as to indicate an abandonment of the marks to the public, or a license to use t^>'m, the plaintiff could not recover. Taylor vs. Car- penter, 2 Wood. & M., I ; Mass., 1846. Ijea t». Deaken, 18 Am. Law Reg., 322; Illinois, N. D., 1879. Trade-marks pass by assignn- ent, with the good-will of th'd business. Wa ton vs. Crow- ley, 3 BlatcL; 440, New York, S. D., 1856. The person for whom g^ds are manufac- tured !<> nnually entitled to his trade-mark as the manufacturer, id. A partnership was formed by the retire- >ment of a partner from a previous firm who sold to the firm his interes*: and recipe. It was held that as the now partnership showed exclusive use of trade-mark sincu 1858 iliey were not obliged to show, as against wrong- doers, that thoy have a written assignment from one of tlieir former partners. Hos- tetter t». Vowinkle, I Dillon, 329 ; Nebraska, 1871. The name of a patented article, e. g., "Tucker Spring-Bed " became common prop- erty after the expiration of the patent. Tucker Mfg. Co. rs. Boyington, 9 Off. Gaz., 455; Illinois ; N. D., 1875. The exclusive right ''o use a trade-mark of a medicine will pass ^y assignment to the person who has obtained the right to make and sell, and who does make and sell the medicine according to the original formula. Filkins vs. Blackman, 13 Blatch, 440 ; Conn, 1876. Equity. When two persons, associated in business for the manufacture and sale of a commod- ity invented by one of them, jointly adopt a trade-mark for it, they are equally entitled to its use after the dissolution of their con- nection. Tavlor vs. Bothin, 5 Sawyer , 584; Cal. D., 1879'. Damages for Infringement. — Is entitled to recover to the extent of bis damages by the loss of sales and defendant's profits, even though the articles sold as and for his were not inferior in quality to his. Taylor ts. Carpenter, 2 Wood; & M i ; Mass.', 1846. When no specific damages are proved, nominal damages will be given. Coffin ts. Brunton, 4 McLean, $16 ; Ind., 1849. When the plaintiff has long acquiesced in the infringement and has unreasonably de- layed seeking relief, he is not entitled to an account of profits. McLean t». Flemming, 6 Otto., 245, 1877. Statutes. — The certificate of registry is not conclusive evidence that the device claimed is a lawful trade-mark, and plaintiff is entitled to its exclusive use. Moorman vs. Hoge, 2 Saywer, 78 ; Cal., 1871. Ihe act of C. of June 18, 1874, is to be re- garded as an amendment of the copyright law. To acquire a copyright in any print or label deposited in the Patent Office, it is es- sential that the title of the print or label be first deposited (before use), m pursuance of the provisions of the R. S. concerning copy- rights. Marsh Vs. Warren, 14 Blatch., 263 ; New York, S. D., 1877. Lables to be used on bottles containing medicine are not the subjects of copyright. Scoville vs. Toland, 6 West. Law J., 84 ; Ohio, 1848. Trade-mark statutes of 1870 and 1876 are unconstitutional. U. S. vs Steffens 16 O. G. 999 ; U. S. Supreme Court, October Term, i879- . , ,. fir"* '>! I i «!•■ M^uliMHI CHAPTER III. Connecticut. — " An act ooncerninK trade- marks" was approved March 25, 1880. It provides that any person entitled to the exclusive n^d of any lawful trade-mark, or who intends to adopt and use a lawful trade- mark, may file for record such trade-mark in the oflBce of the Secretary of that State in form prescribed by the act. That false dWearins: in the proceedings shall be perjury, and that the Secretary of State may refuse ta record the mark filed if he believes the statement accompuiying it to be untrue. A mandamus is allowed to compel the record- ing. " Every party having the lawful ri^ht to make and file such certificate and affi- davit, upon the recording of the same in said office, shall become entitled to the ex- clusive use of the trade-mark therein de- scribed, for so long as he or his assigns shall continue to be engaged in the manufacture or sale of the merchandise or description of goods to which it is appaopriated." Right assi^able in writing. Copies of reconl, with certificate of Secretary of State under the seal of the State, prima facie evidence of title. Infringer of recorded trade-mark with knowledge of record shall pay to owner double damages, and such sum in addition thereto (not exceeding $500) as the Court may order to be added. Rights to any existing trade-mark not abridged by this act. " § 8. Every person who fraudulently and witi intent to deceive, affixes any trade-mark recorded under this act, or any such imitation thereof as is calculated to deceive, to any goods, receptacle or package simil{ff in descriptive properties to those to which such trade-mark is appropriated : or who fraudulently and with intent to deceive places in any receptacle or packago to which IS lawfully affixed a recorded trade-mark, goods other than those which said trade- mark is designed and appropriated to pro- tect ; or who fraudulently and with intent to deceive, deals in or keeps for sale any goods with a trade-mark fraudulently af- fixed, as above described in this section; or any goods contained in any package or receptacle having a lawful trade-msfk, but not being such goods as said trade-mark was designed and appropriated to protect, ^liall be fined not more than I500 or imprisoned not more than 30 days, or both." Delaware. — In 1859 an act was passed en- tittled " An action the protection of manu- facturers and venders of mineral waters, porter, aid and other beverages in bottles." This was amended in 1861, and re-enacted in 1879 (Chap. 92). It provides for the filing by venders of such beverages of their marks in the office of the Secretary of State, and publication for six weeks in a newspaper of the county where the same are manufac- I tured and sold. The person refilling or traf- I ficking in, without the consent of the owner, bottles, &c. , bearing marks so filed and ; published, is liable to a penalty of 50 cents I for every bottle for first offense, and $5 for ; every subsequent offense. (§3.) "That the fact of any person, other than the rightful i owner thereof, using any such bottles for the j sale therein of any beverages shall be prima \ facie proof of the unlawful use or purchase of such bottles as aforesaid." The issue of a search warrimt, ^ to discover alleged wrong- fully used bottles', is provided for in language similar to that of the New York statute. (See New York, § 371 post.) Montana. — The Legislative Assembly, at its first session in 1865, provided for the registration of marks for animals, and punish- ment for wrongful use or destruction of marks (ordered published, laws of 1879, p 58), and also for the counterfeiting of trade-marks by § 79 & 80, Chap. 7, of " iji act concerning crimes and punishments," as follows s " That every person who thall I knowmgly and willfully forge or coun- terfeit, or cause or procure to be forged or \ counterfeited, upon any goods, wares or merchandise, the private stamps or labek of any mechanic or manufacturer, with intent to defraud the purchasers or manufacturers of any goods, wares or merchandise whatso- ever, shall, on conviction thereof , be deemed guilty of a misdemeanor, and shall be pun- ished by imprisonment in the county jail iov a term not exceeding six months, or by a fine not less than $300 nor more than |6oo. " § 80. That any person who shall sell any goods, wares or merchandise, having thenion any forged or counterfeited stamps or labels, purporting to be stanps or labels of any me- ehanio or maaufaoturer, knowing the same -J. „ 86 to be forged or counterfoited, without d.ia- i ologing the fact to the purchaser, shall, on j conviction thereof, be deemed ffu'lty of a i misdemeanor, and nhall be punished by im- ' prisonment in the county jail for a term not | exceeding six months, or by a fine not less \ than I3U0 nor more than |6oo." In the j revision of this act, approved Jan. 12, 1872, | the same sections appear as J:; 91 & 92. This was followed in 1874 by " An act in relation to trade-marks and brands," which provided that any person who desired the exclusive use within the territory of any name, mark, brand, print, designation or description for any article of manufacture or trade, or for any mill, hotel, factory, ma- chine shop or other business, shall register such mark, &c. (if it has not been previously registered), and thereafter the registrants shall have the exclusive right to use said mark. Figures, letters or Roman numerals not protected as marks. Any person who shall use a tegistered mark for the purpose of deception and profit is guilty of a misde- meanor. Penalty, fine from $100 to |iooo. Any who shall use a second-hand sack, box, &c., on which has been placed the name, mark, &c., the property of another, for the purpose of deception, is guilty of a misde- meanor. Penalty as above. Fee of Recorder, $1. Powers of courts of equity to enjoin improper use of trade- mark, &c., excepted from provisions of act. All fines »r>der act to go to school fund. All acts in conflict repealed. Act to take effect July 1, 1874. Missiasippi.—lu 1880 " The Revised Code" of the statute laws was adopted. § 2841 reads : " Every person who shall knowingly and willfully forge or counterfeit, or cause or procure to be forged or counterfeited, any representation, likeness, similitude, copy or imitation of the private stamps, wrappers or labels u8U{illy affixed by any mechanic or manufacturer to, and used by such mechanic or manufacturer on, in or about the sale of any goods, wares or merchandise whatso- ever, upon conviction thereof shall be deemed guilty of a misdemeanor, and shall be punished by imprisonment in the county jail for a term not less than three months, nor more than two years." § 2842 : " Every person who shall have in his possession any die, plate, engraving or printed label, stamp or wrapper, or any representation, likeness, similitude, copy or imitation of the private stamp, wrapper or label UHually fixed by any mechanic or manu- facturer to, and used by such mechanic or manufacturer on, in or about the sale of any goods, wares or merchandise, with intent to use or sell the said die, plate or engraving, or printed stamp, label or wrapper, for the purpose of aiding or assisting in any way whatever in vending any goods, wares or merchandise, in imitation of, or intended to resemble and be sold for, the goods, wares or merchandise of such mechanic or manufac- turer, shall, upon oonviction thereof, be deemed guilty of a misdemeanor, and shall be punished by imprisonment in the "r* nty jail for a term not less than thre<> .aths, nor more tha'.i one year." ^2843: "Every person who shall vend any goods, wares or merchindi&e having thereon any forged or counterff '.t stamp or label, imitating, resembling or purporting to be the stamp or label of any mechanic or manufacturer, knowing the same to be forged or counterfeited, and resembling or purporting to be imitations of the stamps or labels of such mechanic or manufacturer, without disclosing the fact to the purchaser thereof, shall, upon conviction, be deemed guilty of a misdemeanor, and shall be pun- ished by imprisonment in the county jail for a term not exceeding one year, and by a fine, not less than fifty nor more than five hundred dollars, or by both such fine and imprisonment." Nebrcuka. — The law of Nebraska, digested at p. 7, is contained in the criminal code under the head of forgery, and is included with records, deeds, wills, &e. Sections 137. 138 and 139 of the criminal code also provide (§ 137) that sug^r, rice, tobacco, soap, starch, candles, cheese, or any goods or articles sold by weight packed m kegs, barrels, tierces, casks', boxes, hogsheads, or any case whatever, such kegs, &c., shall be marked with the weights both of the package and the contents. It also provides (^ 138) that "any brand, mark or stamp put upon any keg, barrel, box, cqjtk, hogshead or case by the manufacturer indicating the article, its quality, quantity, or the manufacturer's name, or either of them, shall be considered the manufacturer'* certified brand, stamp or mark," &c., " which shall be subject to no, erasure or obliteration." Nor shall it be' transferred for the purpose of refilling for the purpose of selling an inferior article. Penalty (§ 139) — The pa ^y violating pro- visions of above sections " shall in all cases pay to the party • aggrieved dou- ble in value of the difference between the actual quantity contained in such keg," &c., ''and the net quantity or weight for which the same may have been sold ;" and for the first offense be subject to a fine of $20 to $60, or imprisonment in county jail 30 to 60 days. Second and sub- sequent offenses — fine, I50 to $100, or impris- onment 30 to qo days. (As amended, 1875.) New Jersey. — March 11, 1881, " An act for the better protection of manufacturers and bottlers of, and dealers in mineral waters, beer, ale, porter and other bev- erages," was approved. It recites that manu- facturers and bottlers may file in County Clerk's Oflice description of boxes or bottles and marks thereon, and may publish same for four weeks in newspapers of county. It is made unlawful to use, sell, buy, &c., any boxes or bottles marked or stamped and re- gistered and published. Penalty for oo doing not leas than $35 or more than I50. It. says: lemeaiior, and aball inient in the "''' nty than threp .uths, » son who shall vend merchqndi&e having ounterff't stamp or lin^ or purporting to of any mechanic or g ihe same to be and resembling or ons uf the stamps or ic or manufacturer, act to the purchaser nviotion, be deemed r, and shall be pun- in the county jail for one year, and by a nor more than five ' both such fine and >f Nebraska, digested n the criminal code 'gery, and is included wills. &c. Sections he criminal code also sugar, rice, tobacco, iheese, or Anj goods ight packed in kegs, boxes, hogsheads, or ;h keKs, &c., shall be ts both of the package also provides (^ 138) k or stamp put upon [qjsk, hogsbeaid or case ndicating the article, the manufacturer's n, shall be considered bified brand, stamp or ihall be subject to no. Nor shall it be' purpose of refilling selling an inferior pa iers of county. It is sell, buy, &c., any . or stamped and re- Penolty for so doing ethanlso. It. says: mm 27 in ' That the fact of any person or persons other than the rightful owner or owners thereof using such box or boxes, bottle or bottles, for the sale therein of any mineral water, beer, ale, porter or beverge, or any junk vender, or dealer in bottles having secreted in or upon his, her or their premises, or any other place or places, or having in his, her or their possession unlawfully any of such boxes or bottles, shall be prima facie proof of the unlawful use and purchase of such box or boxes, bottle or bottles, as afore- said." Owners, 'ipon belief, may make complaint of the unlawful use, &o., of their boxes or bottles before any justice. Magistrate to issue process or search warrant to bring the property or person before him. Offender to enter into recognizance in |ioo to appear at such time as the justice shall appoint for a hearing, and in default of recognizance to be committed to jail to abide the hearing. If found guilty, the justice shall render judgment against the person arrested for an amount not less than $25, or more than $50, and .soatB of proceeding, and in default of payment shall issue execution against the offender and deliver bottles and boxes into the possession of the owner. If no person is found by constable, the boxes and bottles may be seized and deliv- ered to the owner after summary trial. Parties may demand trial by jury. Ap- peals may be had to general quarter sessions. New York. — The new penal code, passed July 26th, 1881, which by its terras will be- come a law on the first day of May 1882, contains the following sections in relation to trade-marks. Title XI. . " Section 364. — A person who, in a case where provision for the punishment of the offense is not otherwise specially made by statute, with intent to defraud ; 1. Falsely makes or counterfeits a trade- mark ; or, 2. Affixes to any article of merchandise, a false or counterfeit trade- mark, knowing the same to be false or counterfeit, or the genuine trade-mark of another, without the latter's consent ; or, 3. Sells, or keeps or offers for sale, goods to which is affixed a false or counterfeit trade-mark, or an imitation of a trade-mark, or the genuine trade-mark of another, with- out the latter's consent ; or, 4. Has in his possession a counterfeit tnule-mark, knowing it to be counterfeit, or a die, plate, brand, or other thing for the purpose of falsely making or counterfeiting, or causing to be counterfeited, a trade- mark ; Is guilty of a misdemeanor." "Sec. 365. — The term "article of mer- chandise," as used in this title, signifies any g^oods, wares, work of art, commodity, com- pound, mixture, or other preparation or thing which may be lawfully kept or offered for sale." "Sec. 366. The word 'trade-mark,' as nsed in tlus title, includes any latter, word. device, emblem, figure, seal, stamp, diagram, brand, wrapper, ticket, label, or other mark, lawfully adopted by any person, being a mechanic, manufacturer, merchant, druggist or tradesman, and usually affixed by him to an article of merchandise, to de- note that the same is or has been imported, manufactured, produced, sold, compounded, tiottled, packed or otherwise prepared for sale by himi ; and also a signature or mark, used or commonly placed by a painter, sculptor or other artist upon a painting, drawing, engraving, statue or other work of art, to indicate that the same was designed or executed by him." " Sec. 367. A trade-mark is deemed to be affixed to an article of merchandise within the meaning of this title, when it is ^>laced in any manner in or upon, either I. The article itself ; or 3. A box, bale, barrel, bottle, case, cask, or other package or vessel, or a cover, wrap- per, stopper, brand, label or any other thing in, by or with which the goods are packed, inclosed or otherwise prepared for sale." " Sec. 368. An imitation of a trade-mark within the meaning of this title is deemed to bo a counterfeit trade mark, when it so far resembles a genuine trade-mark as to be likely to induce the belief that it is genuine." *' Sec. 369. Whenever a person engaged in manufacturing, bottling or selling in bottles, soda, mineral waters, porter, ale, cider or small beer, has filed and piftlished in the manner authorized by law, a description of a name, mark or label, usually stamped by him on the bottles containing such bev- erage, every other person who, . with- out the written consent of such manu- facturer or dealer, refills with any bev- erage, whether genuine or otherwise, with intent to sell the same, any bottles stamped with such name, mark or label, and every person who sells, disposes of, purchases or traffics in such bottles, is liable to a penalty of 50 cents for every bottle so filled, sold, bought, disposed of or trafficked in, for the first offense, and $5 for every bottle so filled, sold, bought, disposed of or trafficked in, for every subsequent offense." " Sec. 370. A person who keeps any bottles such as are designated in the last section, without the written consent of the manufac- turer (unless it appears that thej were not kept with intent to refill), or use or sei' them in violation of the last section, is li ,ble to the penalty therein prescribed." "Sec. 371. Whenever a manufacturer or dealer mentioned in Sec. 369, or his agent, makes oath before a magistrate that he has reason to believe, and does believe, that any of his bottles, stamped and 'registered as mentioned in that seotion, ore unlawfully used by any person selling or manufacturing mineral water or other beverage, or that any junk dealer or vender of bottles has any of such bottles secreted in any place, the magistrate must thereupon isa^ie a search i ** mam rl M I warrant to discover and obtain the same, and may cause to be brought before him the person in whose possession the buttles are found, and inquire into the circumstances of his possession, and if the ■magistrate, on summary examination, finds that such per- son has been guilty of a violation of sec. 369, he may impose the fine therein pre- * scribed, and, if the same be not paid, may commit such person to prison for a term not exceeding i; days." Ohio. — A revision of the Statutes of Ohio was made and published in 1879. The ■ynopsii at t;^ iq is substantially correct. April 9, 1880, an act was passed " To pro- tect manufacturers, bottlers and dealers in ginger ale, seltzer water, soda water, mineral water and other beverages from the lo^s of their bottles and boxes. " It provides that man- ufacturers of ginger ale, &c,, may file with Secretary of State and County Clerk de- scription of bottles used by them, and cause the same to be printed in a newspaper of the oouaty six times a week for six weeks. It is made unlawful to use such bottles without consent of ownnrs. A violation of this pro- vision is made a misdemeanor, and the cul- prit shall be fined $5 for each box and 50 cents for each bottle trafficked in, destroyed, &c., and double that sum for second offense. It is provided that owner may apply to a Sstice, on aflSdavit that he has reason to lieve and does believe that this act is being violated, for a search warrant, and upon search bein;; made if any such bottles are found the officer shall arrest the persons named in the warrant and bring them before the justice for trial. United Stales. — A new federal trade- mark statute was approved March 3, 1881, as fo'lows : An Act to authorize the registration of trade-marks and protect the same. Ap- proved March 3, 1881. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That owners of trade-marks used in commerce with for- eign nations, or with the Indian tribes, pro- vided such owners shall be domiciled in the United States, or located in any foreign country or tribes which by treaty, conven- tion, or law, affords similar privileges to citizens of the United States, may obtain registration of such trade-marks by comply- ing with the following requirements : I. By causing to be recorded in the Patent Office a statement specifying name, domi- cile, 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-maric itself, with fac-similes 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-ntark has been used, a. By paying into the Treasury of the United States the sum of $35, and comply- ing with such regulations as may be pre- scribed by the Commissioner of Patents. Sec. 2. That the application prescribed in the foregoing section must, in order to create any right whatever in favor of the party filing it. be accompanied by a written declaration verified by the person, or by a member of a firm, or by an officer of a cor- poration 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 identi- cal 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 fac similes presented for registry truly represent the trade-mark sought to be regis- tered. Sec. 3. That the time of the receipt of anv such application shall be noted and recorded. But no alleged trade-mark shall be regis- tered unless the same appear to be lawfully used as such by the applicant in foreign com- merce or commerce with the Indian tribes, as above mentioned, or is within the provision of a treaty, convention, or declaration with a foreign power ; nor which is merely the name of the applicant ; nor which is identical with a registered or known trade -mark owned by anouier and appropriate to the same class of merchandise, or which so nearly resembles some other person's lawful frade-mark as to be likely to cause confusion or mistake in the mind of the public, or to deceive purchasers. In an application for registration the Commis- sioner of Patents shall decide the presump- I tive lawfulness of claim to the alleged trade- ! mark ; and in any dispute between an appli- I cant and a previous registrant, or between ! applicants, he shall follow, so far us the same may be applicable, the practice of courts of equity of the United States in ': analogous cases. I iS^. 4. That certificates of registry of ' trade-marks shaU be issued in the name of the United States of America, under the seal of the Department of the Interior, and shall ; be signed by the Commissioner of Patents, and a record thereof, together with printed copies of the specifications, shall be kept in books for that purpose. Copies of trade- marks and of statementi and declarations filed therewith, and certificates of registry so signed and sealed, shall be evidence in any suit in which such trade-marks shall be brought in controversy. Sec. 5. That a certificate of registry shall remain in force for thirty years from its date ; except in cases where the trade-mark is claimed for and applied to articles not manufactured in this country, and in which it receives protection under the laws of a foreign country for a shorter period, in which case it shall cease to have any fonw in this country, by virtue of this aet, at the -.!_ 135, and comply- as may be pre- r of Patents, on preHoribed in ist, in order to * in favor of the lied by a written ) person, or by a oSScer of a cor- effect that such ight to the use of le registered, and fi, or corporation ither in the identi- near resemblance ated to deceive ; wed in commerce [ndian tribes, as t the description for registry truly ought to be regis- bhe receipt of anv ited and recorded, c shall be regis- aar to be lawfully nt in forei^ com- e Indian tribes, as iun the provision leclaration with a 8 merely the name 1 is identical with e-mark owned by the same class of nearly resembles frade-mark as to t or mistake in the iceive purchasers, ation the Oommis- ide the presump- th^ alleged trade- between an appli- trant, or between V, so far OS the the practice of CJnitea States in 18 of registry of 1 in the name of ca, under the seal nterior, and shall Bioner of Patents, bher with printed I, shall be kept in Copies of tntde- and declarations sates of registry so B evidence in any i-marks shall be e of registry shall r years from its *e the trade-mark 1 to articles not ;ry, and in which ler the laws of s orter period, in to have any force of this act, at the 2d time that such trade mark ceases to be ex- clusive property elsewhere. At any time during the six months prior to the expira- tion of the term of thirty years, 8uch regis- tration may be renewed on the same terms, and for a like period. 1SS0O. 6 That applicants for registration under this act shall be credited for any fee, or part of a fee, heretofore paid into the Treasury of the United States with intent to procure protection for the same trade- mark. See. 7. That registration of a trade-mark shall he prima facie evidence of ownership. An^ person who shall reproduce, counter- feit, 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 de- scribed in the registration, shall be liable to 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 ag- grieved shall also have his remedy according to the course of equity, to enjoin the wrong ful use of such trade-mark used in foreign commerce or commerce with Indian tribes, as aforesaid, and to recover compensation therefor in any court having jurisdiction over the person guilty of such wrongful act, and courts of the United States shall have original and appellate jurisdiction in such cases, without regard to the amount in con- troversy. Sec. 8. That no action or suit shall be maintained under the provisions of this act in any case when the trade-mark is used in any unlawful bv-dness, or upon any article injurious in itse'.f , or which mark htm been used with the design of deceiving the public in the pnrchaie of merchandise, or under any certificate of registry fraudulently obtained. Sec. 9. Thai any person who shall procure the registry of a trade-mark, or of himself as the owner o'. a trade-mark, or an entry respecting a tnide-mark, in the office of the Commissioner of Patents, by a false or fraudulen'u representation or declaration, orally or in writing, or by any fraudulent means, shall be liable to pay any damages sustained in consequence thereof to the in- jured party, to be recovered in an action on the case. Sec. 10. That nothing in this act shall pre- vent, lessen, impeach, or avoid any remedy at law or in equitv which any party aggrieved bjr any wrongful 'ise of any trade-mark might have had if the provisions of this act had not been passed. Sec II. That nothing in this act shall be I construed as unfavorably affecting a claim to a trade-mark after the term of registra- tion shall have expired ; nor to give cog- nisance to any court of the United States in an action or suit between citizens of the same State, unless the trade mark in contro- versy is used on goods intended to be trans- ported to a foreign country, or in lawful commercial intercourse with an Indian tribe. Sec. 13. That the Commissioner of Patents is authorised to make rules and regulations and prescribe forms for the transfer of the right to use trade-marks and for recording such transfers in hia office. . mm I fM-mr^'r • -J.„. if OHXPTER IV. /otoa.— Shaver vs. Shaver ($4 Iowa, 308, .1880). Plaintiffs and defendant! were for a period partner* in the manufacture of wa^ni at Eldora. On diHoIution, plaintiff acquired all the property of the Arm. He continued in buainess, and in 1B74 adopted M a trade-mark the words, " Shaver Wagon, Eldora," which he painted on all wagons made and sold by him. The defendants, more than two years after, commenced the manufacture of wagons, and painted thereon the identical words used as the trade-mark of the plaintiff. They changed .somewhat the form of inscribing the words, and painted their own initials near the trade-mark. Defendants were enjoined. It was held that courts o( common law and equity will, in the absence of any statute upon the subject, protect the proprietor of a trade- mark in its exclusive use ; that the exclu- sive right to a trade-mark is acquired by its use, which thn law does not require shall be continued for any prescribed length of time ; that the use by another of a trade-mark used to indicate the quality of an article sold, though placed on articles of equally good quality, and without any intention to defraud either the proprietor or the public, will be restrained by a Court of Chancery, and this although it is not copied with th» fullest accuracy, if the copy is calcu- lated to deceive and may be taken for the original. Meusttoktuetta. — Uagee Furnace Co. vs. Xje Barron (137 Mass., 115, 1879). The plaintiff — a manufacturer of stoves and ranges (not patented) — put upon each of them a name and number as a trade-mark, and also placed upon such of their separate parts respectively as were liable to be worn oat rapidly, the initial letter, and the num- ber of the stove to which it belonged. Each of these parts was well known, hiul acquired a high reputation, and was sold under the mtme of the letter and number placed upon it. The defendant procured some of these parts, made patterns from them and east from the patterns parts of stoves and ranges, inferior in quality to the plaintiff's, but uv- ing all their peouliarities of ornamentation, lettering and numbering, and advertised these parts for sale as manufactured by him- self, describing the parts in his circulars by the names used to designate thorn by the plaintiff. The complaint was dismissed. The court say: " As he publisbei. to the world the fact that he is the manufacturer of what he sells, and does not attach to his goods any label or mark apt to deceive sub- sequent purchasers from his vendees as to the origin of the goods, he cannot be re< garded as infringing on the rights of the plaintiff." (The initial letter and number by themselves do not appear to have been treated as a trade-mark). Connell vs. Reed (laS Mass.. 477, 1880). If a person can have a trade-mark in the words " £ast Indian" in connection with the word " remedy " upon bottles of medicine (which is at least doubtful), yet, if he has falsely adopted and used these wor4a to denote ana to indicate to the public that the medicines were used in the East Indies, and that the formula for them was obtained there, ho cannot maintain a bill in equity to restrain an infringement of such trade- mark. Lawrence Manufacturing Company vs. Lowell Hosiery Mills (129 Mass., 325, 1880). It was decided that numerals used on goods to denote their origin and not their quality, are a valid trade-mark, and a person who uses them for the purpose of imitating the trade mark, and whose use is calculated to deceive, and does deceive, persons buying his goods, will be enjoined, even though he use the numerals in combination with other devices which he has a right to use, and* which are similar to devices in connection with which the plaintiff uses them. Maryland. — Robertson, appellant, vs. Berry & Co., respondents (50 Md., 591, 1878). This case was treated as belonging to the domain of trade marks. The plaintiffs (respondents here) published an almanac en- titled "J. Qruber's Hagerstown Town and Country Almanac." The defendant (appel- lant) also published an almanac in similar style and general appearance, which he en- titled " T. G. Robertson's Hagerstown Almanac." Defendant had been enjoined in the court below. The order was affirmed, "the Court said : " It is immaterial to ''• decision of this case, in the view we have taken of it, whether the devices, marks. ^4 1..- :il his oiroulan by ate thorn b^ the was dismissed, publisher to the lie manufacturer aot attach to bis it t(> deceive sub- >is vendees as to le cannot be re- he rights of the irand number by r to have been M.. 477, 1880). If aark in the words L)n with the word medicine (which if he has falsely vis to denote and it the medicines and that the Ained there, ho [uity to restrain ide-mark. Company vs. [ass., 32s, 1880). Is used on Koods ot their quality, a person who of imitating the is calculated to arsons buying his Q though he use ion with other _ ight to UM, and' » in connection them. appellant, v$. (50 Md., 591, as belonging to The plaintiffs an almanac en- itown Town and efendant (appel- uanac in similar Be, which he en- I's Hagerstown been enjoined er was aflSrmed. material to ' ' • le view we have devices, marks, pictures and word«, in the manner in which thtfy arH cntlocated and combineil upon the two outride |NiKes of tho complainants' al- marsc, he reRardeil as a trade-mark proi>er, or as wroppem or iabeli, or as the title, or particular external marks which an author or publisher affixes to hif* work to distinguish it, because the grounds of relief in equity are substantially the same in either case. A publishttr or author has either in the title of his work, or in the application of his name to the work, or in the particular marks which detignate it, a speoieit of prop- erty similar to that which a trader has in his trade-mark, and may, like a trader, claim the protection of a court of equity against sucn use ov imitation of the name, marks or desi;; nations, as is likely, in the opinion of the court, to be a cause of dam- age to him in respect of his property. This doctrine, in cases where the facts are suffi- cient to sustain it, has been held applicable to such periodiosi publications as newspapers, magazines and almanacs." Miir juri. — When one named Oakes sold the exclusive right to manufacture and sell " Oakes' candies," he was restrained from manufacturing and selling candies made by him as " Oakes* candies." Probasco v». Bonyon, I Mo., App. llep. 241, 1876. Clark vs. Qerman Mutual Fire Insurance C>. (7 Mo., App. 77, 1879). This is not a trade-mark case, properly speaking. It is given, however, as opposed to the case of the Qalazy Publishing Co. , where an injunc- tion was refused, because the name was misleading' in Pennsylvania. One trading under the name " National Slipper Com- pany " assumes that designation as his trade name, and that he insures in that name is not, in the absence of deceit, a breach of warranty that the interest of the assured in the policy shall be truly stated. The name " National Slipper Company " does not nec- essarily imply a corporation, nor an associ- ation of persons ; it may be the trade name of one man. Jfew York. — Who May Acquire a Trade- Mark. — The right to protection is not exclu- sively in the manufacturer. The person for whom the goods are manufactured (Amos- keag Mfg. Co. vs. Spear, a Sandf., 599), and the vender who sells and who may have no direct relation to the manufacturer, has such right. (Partridge va. Menck, 2 Barb., ch. 103; Taylor vs. Carpenter, a Sandf., ch. 603) ; Qodillot vs. Haxard (Spec. Term) 49 How. Pr., 5 ; (affirmed Oeneral Term) 44 N. Y. Sup. Court, 427 ; (affirmed Court of Ap- peals) 81 N. T , 263, 1880. What may Become a Trade-Mark. — " Qre- nade Symp." It was held, on a motion to dissolve injunction during suit, that this was a good trade-mark on syrup manufactured from the juice of the pomegranate, although "Qrenade" was a French word meaning pomegranate, and that Orenade syrup was sold in France under that name. Rillet IS. Cariier, 11 Abb. Pr. (N. S.) 18A. 1870. This case was afterward tried an-l the complaint dismisseil. "Established 1780," which haa been con- ■picuouvly dis|ilaye. >>at>n oallml and known «■ tli« " National Myit«m uf Penmanithip." The defnnilantt pubnuhed i\ book in iiibitantially the Minn form bvarinK on the cover ; " Independent National Hy«tem of PeninanBhip." They were enjoin-Hl from \he iiie of the words, " National Hyitem of Penmanthip." Patter v». MoPhenon, ai Hun., 559. A person hat a rif^ht to use his own name aa a trade-mark to designate an article which he produces and sells, although another person of the same name has previ- ously prommon Pleas i, 1880. The parties to suit were formerly partners in the business of manufacturing glass chimney* for lamps, and they aduntod the word " Hilex " as a trade-mark. The Arm waa dissolved in June, 1877 ; the dnfendants sold to the plaintiff their interest in the real eetate use*! fur the business and in certain s|>ecifled (xtrsonal pro|)erty oonneoteecifle be, in fact, decep- Fac 8imile» of the annexed to the com- t on demurrer it will B one is not auQpienfc- 88 ^ ^ ly similar to the oth*r to minlwiid and to con- •tiliHw an inrt'ini»s the dis- siinliritx ix so nmik' t-vdl>'i. Rolort* r* Bhtldun, 18 O. U., 1377, N. D. o( III., i87(). WItnt Cannot W'roinc a Traile- Mark. — A BVHtfiii of lini'i marked or stanipud upon plii:H (if tobacco. DniNtnttn & Druitimond T<)baccngb>>en anoustonied to oaek a compound called *' Hamliuri; Tea " in long cylindrical packages with pirk wrappers, and to have a crimson paper of directions, and yellow ones of warning, tied in with each package, and thuir Hrm name printed ncruHS a tvhite l.tbfl within a circle pasted across the enils of the strinir, and the s<thin(r on it; and their wares had come to be well known as theirs bv the appearance of the packages. B openly used such style of packaifu and firm name to put up Hamburg tea. He then discontinued thn use of the Arm name, and of the words " Hopfenjack6," but continued to use the exact form and style of packaKC, substituting his own name merely fir ihnt of the firm on the labels : Held, that, witb the proper parties before the court, B ought to be restrained by injunction from such use of the symbols (see same case, motion for in- junetion, 13 Blatch , 334. 1876). Frere vs. Bachof, 14 Blatch., 433; S. D. of New York, 1878.- A person has no right to mark his go :ds with any words or terms indicating that tiiey are manufactured under a patent which he does not own and has no right. Wash- burn & Moen Mfg. Co. vs. Haish, 18 0. O., 465 ; N. D. of Illinois, 1879. The general rule is to enjoin when the imitation is so close that by the form, marks, contents, words, or their special ar- rangement, or by the general appearance of the infringing device, purcbasei-s exercising ordinary caution are likely to be mirled into imying the article bearing it for the genuine one. It is not necessary, to entitle a par^y to an iniiinction, that a particular triidi'-inirk iias been Infringed To satisfy the court thnt the respondent intended to rppreitenl to the (lubliu thiit his good4 were t.hiisxot the ooiii|i|iiiiiaiir, issiiWoient Mo- L nil M. Klein ning. <)'• U. S SioremiC »urt, 3)5. Hnwyer vs. Horn, I Fuderal Rtip.; M>.. 1880. When an Ininnrtionwill be liefuwd.—'E A T. FiilrliankNi*fcC(>. , inaiiufactiirtrs «f Kcules, iilleced that J. made si-ales, by using, to m>iko the iron castinits thereof, the cirros- |Mmdiii|{ parts of a scale made by thrm. to for'U the iMolds for those caxtiiigs, and tliat tliu ufiieral iih'ipe anil arraniiemeiit, and O'llor and external appoamnceof Huch scnles were imitated from the Fuirbanki scale 110 ne.'irly that only nn expert in scales could ilisiln^iiish thn difference between them. The words "Fairbanks patent" were cast on the scale* ninde by both parties. All the patents which Fairbanks iHi Co. have had had expired. Fairbanks & Co. applied for an injunction to restrain J. fiom U!iing the words "Fairbanks patent" on his scales, and from makinir or sellijig an imitation of Fairbanks & Co.'s scale* 1 Held that iha application must be denied ; that the words "Fairbanks patent" were not a trade- mirk ; and that J. did not represent his scale's to be of the makii of Fa'rbanks & Co, Fairbanks vs. .Tacobus, 14 Blatch., 337; S. D. of N. Y., ifi77. Proof that the trade-mark is deceptively used by the complainant, and the public is defrauded by his sales, defuats his claim to an injunction. Manhat " • ''ledicine Co. vs. Wooii, 14 O. O., siq ; Bf I , ih-8. Seabiiry vs. GroMveuor, 14 Blatoh. . . ? ; S. D. of Netr York. Q. having a patent for an improvement in ntoves, acquiesced during the entire dura- tion of the patent in the manufacture and sale by M. of stovns containing said im- provement, with the name "Charter Oak " upon them. After the patent expired M. continued to make and sell stoves contain- ing said improvement, and to put the name "Charter Oak" upon them, but did not represent them as made by Q. G. claimed the name " Charter Uak " as a trade-mark applied to stoves containing said improve- ment, aiid brouKht a suit to restrain the u«e of it by M. on such stovf s. Held that M ovight not to be so restrained. Fillev vs. Child, 16 Blatch., 376; S. D of New York, i8';9. An injunction will not be granted to re- strain a manufacturer from using a label bearinff no resemblance to the complain- antV, except that certain letters, which alone convey no meaning, are inserted in the center of each, the dissimilarity of the labels being such that no one will be misled as to the true orii{ia or ownership of the merchandise. Manufacturing Co. vt. Trainer, loi ; U. S., 51, 1879. ntfe.— There cannot be an ownership of the same trade-mark at different placet by I ';«j.tTf#a1Wp|iit ii frijMt i f|i i iir i p!yi^^ m ' di-r !'; 84 diff<>rent peraons. Liceng^es nnder a pro- prietor of a trade-mark may lose their rights by disregnrding the territorial liniits pre- scribed by the liemHe for their sales ; or by reliiiqiiishini^ the use of the mark \u their basint-ss and adopting another of tb( ir own designing. Manhattan Medicine fJo. vs. \*ood, ". O Q. 519; Me., 1878. A rignt to a trade-mark may be lost by non-iiser for eight yenrs. Black w^!! vs. Dibrell, 3 Hughes, 151 ; Va., 1878. If owners of tradn-marks have been rea- sonably dilifietit in pr<'.s>^cuting infringers, abandonment is not to he inferred from the infringements. Williams vs. Adams, 7 Re porter, 613; III., 1879. A trade-mark luay be owned by one mem- ber of a firm by whom goods, on which it is used, are manufactured. A trade-mark may be sold with ihe est'blishment when the gcods known by it are manufactured. Eidd vs. Johnson, 100 U. S. Suoreme Court, 617, 1879- The right of the proprietor of a trade-mark to the excluKive UHe of the same, e jo to pro- tect and enforce his exclusive rieht by pro- ceedings in chancery, exists by virtue of the common law, and independently of the statute. The dedson of the Supreme Court, therefore, declaring the trade-mark statute of 1870 unronstitutinnal, does not affect suits in the federal courts under the common law. U. S. vs. Roche, i McCrary, 385 ; Col., 1879. S-J i: 1 if ms^ [>dei, on which it it A trade-mark b ■ blishmeiit when .re mtnufactured. I. Supreme Court, or of a trade-mark same, ejo to pro- igive risbt by pro- IR by virtue of the •endently of the le Supreme Court, 'ade-mark statute , does not affect under the common sCrary, 385 ; Col., .:,';.t, i, !:j 1' M s itsv; 'r-, '■j;e' ■}i/ EXTRACTS From Treaties, Conventions and Declarations, concerning ..vt i, , Trade Marlis and Property. ■..,'f^ Mlii- The treaty with the Argentine Confederation, concluded July 27th, 1863, containB the following: "Abtiole XIII. The citizens of the United States and the citizens of the Argentine Confederation, respectively, residing in any of the territories of the other party, shall enjoy in their houses, persons and properties, the full protec- tion of the Government." The convention with Austria, concluded November 25*h, 1871, contains the following : , " Article I. Every reproduction of trade marks which, in the countries or territories of the one of the contracting parties, are affixed to certain merchandise to prove its origin and quality, is forbidden in the countries or territories of the o&er of the contracting parties, and shall give to the injured party ground for such action or proceedings to prevent such reproduction, and to recover damages for the same, as may be authorized by the laws of the country in which the coun- terfeit is proven, just as if the plaintiff were a citizen of that country. jn.j.ij'iw4iiwiiBm.a miii i i 1 i i I ! ^|i 2 '' The exclusive right to nse a trademark for the benefit of citizetiB of the United States in the Austro-Hungarian Em- pire, or of the citizens of the Austro-Hnngarian Monarchy in the territory of the United States, cannot exist for a longer period than that fixed by the law of the country or its own citizens. If the trademark has become public property in the country of its origin, it shall be equally free to all in the countries or territories of the other of the two contracting parties." 4 -rJl ii??v " AfmcLE II. If the owners of trademarks, residing in the cpuntries or territories of the one of the contracting par- ties, wish to secure their rights in the countries or territories of the other of the contracting parties, they must deposit duplicate copies of those marks in the Patent Office at Wash- ington, and in the Chambers of Commerce and Trade, in Vienna and Pesth." The treaty of commerce with Belgium, concluded Decem- ber 20th, 1868, contains this article : " The higher contracting parties, desiring to secure complete and etecient protection to the manufacturing industry of their respective citizenfi; agree that any counterfeiting in one of the two countries ii the trademarks affixed in the other on merchandise to shew its origin and quality, shall be strictly prohibited, and shall give ground for an action of damages in favor of the injured party, to be prosecuted in the Courts of the Country in which the counterfeit shall be proven." ^'HS. 'um»ML ^ i jtunJK ttk M aMum t: the benefit of ungarian Em- Lan Monarchy ist for a longer itry or its own property in the I to all in the vo contracting lea, residing in )ntracting par- » or territories r mast deposit Office at Wash- and Trade, in ;lnded Decem- lecnre complete Qg industry of irfeiting in one id in the other lality, shall be )r an action of -osecoted in the lerfeit shall be a "The trademarks in which the citizens of one of the two countries may wish to secure the right of property in the ether, must be lodged, to wit: the marks of citizens of the United States at Brussels, in the office of the Clerk of the Tribunal of Commerce ; and the marks of Belgian citizens in the Patent Office at Washington. It is understood that if a trademark has become public property in the country of its origin it shall be eg_ualJy free to all in the other country." i" ^Tju*' ^. -hh,. v>s-^^m=-> . ^ -' iiiU^ iii 6 Trade Mark Laws of Countries with which Treaties, &c. have been made. ^tr> ^i* i!;,i I'iC' 0'' ^;^*'i' 1-, FRANCE. • ';;•''.. '.." i^i.'ji-t LAW OF JUKE 23, 1857, ON TRADE MARKS, ^i Title I. Right of Property ir Marks. .^ Article I. The mark of manufacture or of commerce is optional. However, decrees rendered in the form of roles of public administration may always make it, in particalar cases, obligatory for tbe products which they specify. Are considered as marks of manufacture and of commerce ; names under a distinctive form, '' titles," emblems, imprints, stamps, seals, yignettefi, reliefs, letters, numerals, wrappers and every other sign serving to distinguish the products of a manufactory or the objects of trade. Abtiolb it. No one can claim exclusive ownership in a trade mark unless he has deposited two copies of the trade mark at the Registry of the Tribunal of Commerce of his domicile. AsTioLB III. The deposit has effect for only fifteen years. The ownership of the mark can always be preserved for a new term of fifteen years by means of a new deposit. AimoLE IV. (Fees.) ith which ide. /' "'>. ' . ' ' MARKS. ^ commerce is form of rnles in particalar ipecify. Are lerce; names rints, stamps, in and every mannfaotory ^nership in a of the trade imerce of his fifteen years, eserved for a )po8it. I'it/e II. Foreigners. Article V. Foreigners wlio possess in France establish- ments of industry or or commerce enjoy, for the products of their establishments, tlie benefit of the present law, on ful- filling the fonnalities that it prescribes. '*" ■ ■" ' Abtiolb VI. Foreigners and French citizens whose estab- lishments are situated outside of France have also the benefit of this law for the product of their establishments, if, in the conntries ^here they are situated, treaties have established reciprocity for French marks. In this case the deposit of foreign marks is made at the Registry of the Tribunal of Oonmierce of the department of the Seine. l"^ .■. *";i i ,c i^ ,, Title III. Penaltiea. Abtiole VII. Are pnnished by a fine, of from fifty francs to three thousand francs, and by an imprisonment of from three months to three years, or by one of these punishments : Ist. Those who have counterfeited a mark, or used a counterfeit mark. 2nd. Those who have fraudulently placed on their pro- doots, or the objects of their commerce, a mark belonging to another. 3rd. Those who have knowingly sold, or placed on sale, one or more products invested with a counterfeit mark or one fraudulently affixed. Abtiolb VIII. Are punished by a fine, of from fifty francs to two thousand francs, and by an imprisonment, of from one month to one year, or by one of these penalties : ! J! ' Ist. ThoBe who, without counterfeiting a mark, liave :nade a fraudulent imitation of it proper to deceive the hujer, or have made use of a mark fraudulently imitated. < , 2nd. Those who have made use of a mark, bearing indi- cations of the kind to deceive the purchasd^ as to the nature of the product. drd. Those who have knowingly sold, or placed on sale, one or more products invested with a mark fraudulently imi- tated, or bearing indications of a kind to deceive the buyer as to ihe nature of the product. Abtiolk IX. Are punished by a fine, of from fifty francs to one thousand francs, and by an imprisonment of from fif- teen days to six months, or by one of these penalties : Ist. Those who have not fixed U;)on their products a mark declared obligatory. 2nd. Those who have sold, or placed on sale, one or more products, not bearing the mark declared obligatory for that kind of products. 3rd. Those who have contravened the provisions of the decrees rendered in execution of article first of the present law. Abtiole X. The penalties established by the present law cannot be cumulated. The greatest penalty is alone pronounced for all the acts anterior to the first process. Abtiolb XI. (Penalties may be doubled in case of repe- tition of offense.) iJMU aianarta k,have:nade he bujer, or iKiaring indi- the nature Aced on sale, iulently imi- jQ the bayer 1 fifty franca of from fif- Ities : luots a mark one or more tory for that isions of the ' the present present law all the acts tase of repe- Abtiole XII. Article -163 of the Penal Code may be applied to niiademeanorH under the present law. ..^ ..., . Aktiole XIII. (OifenderB may he deprived of their rights to participate in certain elections, for a term of less than ten years.) ♦ The court may order tlie pouting uf the judgment in places that it determines, and its insertion in full or by extracts in the newspapers that it designates ; the whole at the expense of the condemned. / r^ , > i>i^ «|^v AimoLE XIV. The confiscation of the products, the mark of which shall be found to be contrary to the provisions of articles 7 and 8, even in case of acquittal, can be ordered by the court, as well as the instruments and utensils which spe- cially served for the commission of the wrong. The court may order that the confiscated products be delivered to the proprietor of the mark counterfeited or fraudulently aflSxed, or imitated, independently of ampler damages, if there be occasion therefor. It prescribes, in every case, the destruc- tion of the mark found to be contrary to the provisions of articles 7* and 8. Abtiole XV. (Imposition of obligatory marks must always be decreed. The court may decree the confiscation of the products in case of condemnation for same ofiense within five years.) TiMe IV. Jnritidiction. Abtiolr XYI. Civil actions relative to marks are brought before the civil tribunals and J v Iged as summary matters. M run f » i _..i ^! i' H, I, j Ij, I 1 1 III 10 lu case of an actiuii brought urimiiially, if tho defendant raises for his defense questions relative to the ownersLip of the mark, the tribunal of PoUae CorreotiondU paf.ses judg- ment on the question. V rtf? ,,..,»/ Abtiolbs XV II and XV III. (Regulate proceedings before the courts.) m-f'>'y'*'i >.»■! '*■ vii' '■'^l ' ' A-- : \-: • ,■'»■ Title V. General Proviaione. tmf»^'-,l.t.tili;1? AsnoLB XIX. (Provides that all foreign prodnds bearing the mark or name of a manufacturer resident in France, or the name, or the place of a French factory, shall be excluded from France, or seized.) ^ ^ , . Abtiolb XX. All the regulations of this law are appli- cable to wines, eau-de-vie, and other drinks, to animals, grains, flour, and generally to all agricultural products. '^ 'S-^^ Abtioles XXI, XXII, and XXIII. (Provide for deposit of trademarks ; that law shall take effect in six months ; for rules of deposit and publication ; and that this law shall not affect previous deposits.) ill It u defendant iwnenliip of paF.aes jndg- OREAT BRITAIN. i.:,-n, / dingB before .cfcb«rinK I France, or be excluded w are appli- to animals, )dact8. t«'»i i for deposit nonths; for iw shall not Z >^ THE ENGLISH TRADE MARKS REGISTRATION ^ . ' ..... „ ACT, 1875. . „...> ,;-. ' '' 88&89 Vict. 0.91. An Act to eatcMish a Reginter of Trade Markt. it , !.n ! )i mJ V y, . [13 4. Every proprietor registered in respect to a trade mark subsequently to the first registered proprietor shall, as re- spects his title to that trade mark, stand in the same position as if his title were a continuation of the title of the first re- gistered proprietor. ^,,, ^^ ^,^^ ^^^ ^^^ ^^,.^^^ 5. K the name of any person who is not for the time being .entitled to the exclusive use of a trade mark in aoco**danoe with this Act, or otherwise in accordance with laW, is entered on the register of trade marks as a proprietor of snch trade mark, or if the registrar refiiseB to enter on the register as proprietor of a trade mark the name of any person who is for the time being entitled to the exclusive use of such trade mark in accordance with this Act, or otherwise in accordance with law, or if any mark is registered as a trade mark which is not authorized to be so registered under this Act, any per- son aggrieved may apply in the prescribed manner for an order of the Court that the register may be rectified ; and the Court may either reAise such application, or it may, if satisfied of the justice of the case, make an order for the rec. tification of the register, and may award damages to the party aggrieved. ' ' ' ' "" '" '' '"''"" lor of a trade to the exolu- expiration of be conclusive I trade mark, tnection with a trade mark Bhall, as re- lamo position ' the first re- le time being a acuo<'danoe iW, is entered )f snch trade he register as on who is for >f such trade n accordance I mark which A.ct, any per- mner for an 9cti6ed; and or it may, if r for the rec. nages to the - I' " >' 13 Where each of several persons claims to be registered as proprietor of the same trade mark, the registrar may refuse to comply with the claims of any of such persons until their rights have been dv>termined by the Court, and the registrar may himself submit or ref|uire the claimants to submit in the prescribed manner their rights to the Court. The Court may, in any proceeding under this section, de- cide any question as to whether a mark is or is not such a trade mark as is authorized to be registered under this Act, also any question relating to the right of any person who is party to such proceeding to have his name entered on the register of trade marks, or to have the name of some other person removed from such register, also any other question that it may be necessary or expedient to decide for the recti- fication of the register. , v .,«k , •• ** » s ^ :/ ■ , The Court may direct an issue to be tried for the decision of any question of fact which may require to be decided for the purposes of this section. Whenever any order has been made rectifying the raster, the Court shall by its order direct that due notice of such rectification be given to the registrar. 6. The r^istrar shall not, without the special leave of the Court, to be given in the prescribed manner, register in re- spect of the same goods or classes of goods a trade mark identical with one which is already registered with respect to BtToh goods or classes of goods, and the registrar shall not r^^ter with respect to the same goods or classes of goods a trade mark so nearly rf^sembling a trade mark already on the I ^« ■ ^i»aa i aiWfS!^>M j tS i iia .i r f ii i t&f^'i iiitM4iiS^M lit )i' I Mf iili i ii 'il i Tr " 'l il u'n - ; .i |t ^ li i m n\i- t I M 'i M roister with respect to such goods or classes of goods as to be calculated to deceive. It shall not be lawftil to register as part of or in combina- tion with a trade mark any words the exclusive use of which would not, by reason of their being calculated to deceive or otherwise, be deemed entitled to protection in a Court of Equity, or any scandalous designs. .*^ t^iM i -^ff * 7. Su>>ioct as aforesaid, a register office shall be established from and after such time (not being later than the first day of January, one thousand eight hundred and seventy-six), in such manner and with such officers, and at such salari "s, to be paid out of moneys provided by Parliament, as the Lord Chancellor may, with the consent of the Treasury, direct ; and the Lord Chancellor may from time to time, with the assent of the Treasury as to fees, make, and, when made, alter, annul, or vary, such general rules as to the registry of trade marks, and as to notices to be given by advertisement before the r^stration of trade marks, and as to the classifi- cation of goods for the purposes' of this Act, and as to the registration of first and subsequent proprietors of trade marks, and as to the fees to be charged for registration, and also for the continuance of a trade mark on the roister or otherwise, Bnd as to the removal from the register of any trade mark, as to notices, and as to the persons entitled to inspect the rois- ter, and as to any proceedings to be taken to obtain the judg- ment or leave of the Court in any manner in which the judg- ment or leave of the Court is required to be obtained under this Act, and generally for the purpose of carrying into effect this Act, as he may deem expedient. i9i i of goods as to or in combina- ve use of which )d to deceive or in a Court of *^ f^ gfiUi I .av 11 be established Etn the first day seventy-six), in mch salari "s, to )nt, as the Lord reasury, direct; time, with the id, when made, ► the registry of f advertisement IS to the classifi- t, and as to the of trade marks, on, and also for ;er or otherwise, Y trade mark, as ispect the r^is- Dbtain the judg- which the judg- obtained under rying into effect 15 Any rules made in pursuance of this section shall be laid before both Houses of Parliament if Parliament be then sit- ting, or if not then sitting, then within ten days from the then next assembling of Parliament, and shall be of the same validity as if they had been enacted by Parliament ; provided that if either House of Parliament resolve, within one month after such rules have been laid before such House, that any of such rules ought not to continue in force, any rule in re- spect of which such resolution has been passed shall, after the date of such resolution, cease to be of any force, without prejudice, nevertheless, to the making of any other rule in its place, or to anything done in pursuance of any such rules before the date of such resolution. 8. The certificate of the registrar as to any entry, matter- or thing which he is authorized by this Act, or any general rules made thereunder, to make or do, shall be evidence of such entry having been made, and of the contents thereof, and of such matters and things having been done or left undone. 9. (Provisions as to Cutlers' Company and Sheffield corpo- rate marks.) ha^l 10. For the purposes of this Act : • ■ ' A trade mark consists of one or more of the following essential particulars ; that is to say, A name of an individual or firm printed, impressed, or woven in some particular and distinctive manner ; or A written signature or copy of a written signature of an individual or firm ; or 'A M«i iii^.^ 16 Ml! :, ,1 A diBtinctive device, mark, heading, label, or ticket ; and there may be added to any one or more of the sr.id par- ticulars any letters, words, or figures, or combination of let- ters, words, or figures ; also Any special and distinctive word or words, or combination of figures or letters used as a trade mark before the passing of this Act, may be registered as such under this Act. " Prescribed " means prescribed by general rules made in pursuance of this Act ; Kud *" Court " means any of her Majesty's superior courts of law or equity at Westminster, or any court to which the .jurisdiction of such court» may be transferred, or any one or more of such courts which may be declared to be the court for the purposes of this Act by such general rules as aforesaid ; but the provisions of this Act confer- ing a special jurisdiction on the court as (^.bove defined ihall not, excepting so far as such jurisdiction extends, affect the jurisdiction of any court in Scotland or Ireland in causes, tuitions, suits, or proceedings relating to trade marks ; and if the register requires to be rectified in con- sequence of any proceedings in any such court in Scot- land or Ireland, due notice of such requirements shall be given to the registrar, and he shall rectify the regis- ter accordingly. An Aot f(xr the Amendment of the Trade JUarks Begie- traUon Aot, 1875. [24inntion of let- >r combination •e the passing lis Act. ..,.• rules made in irior courts of t to which the ferred, or any ieclared to be ' such general lis Act confer- E^bove defined :tion extends, ind or Ireland iting to trade ictified in con- iourt in Scot- irements shall tify the regis- farks Regis- vly, 1876.] ■ *.' 1. There shall be repealed so much of section one of the principal Act as provides that from and after the first day of July, one thousand eight hundred and seventy-six, a person shall not be entitled fo institute any proceeding to prevent the infringement of any trade mark as defined by that Act until and unless such trade mark is registered in pursuance of that Act, and in place thereof be it enacted that — From and after the first day of July, one thousand eight hundred and seventy-seven, a person shall not be entitled to institute any proceeding to prevent or to recover damages for the infringement of any trade mark as defined by the principal Act until and unless such trade mark is registered in pursuance of that Act, or until and unless, with respect to any device, mark, name, combination of words, or other matter or thing in use as a trade mark before the passing of the principal Act, registration thereof as a trade mark under the principal Act shall have been refused as hereinafter is mentioned. 2. When an application by any person fo register as a trade mark a device, mark, name, word, combination of words, or other matter or thing proposed for registration as a trade mark, which has been in use as a trade mark before the passing of the recited Act, has been refused, it shall be the duty of the r^^trar, on request, and on payment of the prescribed fee, to give to the applicant a- certificate of such refusal, and a certificate so granted shall be conclusive evidence of such refusal. r fiJIi^ 18 • aERMAN EMPIRE. r,(f ,'. f -s Trade Mark Law of the SOth November, 1874. ^■:n * We, William, by the Grace of God, German Emperor, King of Prussia, &e., decree, in the name of the German Empire, and pursuant to resolutions passed bj the Bundes- rath and the Reichstag, as follows : Sec. 1. Tradesmen whose firms have been entered in the Handelsregister, may announce to the competent authorities, for registration in the Handelsregister of the place in which ' such firms have their principal depot, any marks intended to be placed either on goods, or on the packages in which they are contained, for the purpose of distinguishing such goods from those of other traders. • Sec. 2. The announcement must be accompanied by an accurate fac-simile of the trade mark, (Sec. 1) together with a specification of the description of goods to which it is^ in- tended to be applied, and it must also bear the.signature of the firm. Sbo. 3. The registration of those marks which are pro- tected by law, and of those which have been in general and current use as marks of the goods of a certain trader up to the beginning of the year 1875, cannot be refused. Registra- tion, however, is to be refused to such marks as consist exclu- 874. Emperor, le German le Bundes- >red in the authorities, ee in which intended to which they such goods nied by an igether with ich it is in- signature of eh are pro- general and trader up to I. Registra- ionsist exclu- 19 sively of figures, letters, or words, or which contain a public escutcheon or any device tending to cause scandal or offence. Sec. 4. The registration takes place under the name of the firm making the announcement. The date of the announce- ment must also be noted. In the event of a trade mark being sent more than once for registration, owing to a change in the domicile of the firm, the date of the first announce- ment must be given. Seo. 5. On application of the head of the firm, a trade mark already registered may be cancelled. The registration may be officially cancelled under the following circumstances: (1) If the name of the firm has been struck out of the Han- delsregister ; (2) If the name has been changed and no an- nouncement of the retention of the mark been made at the same time ; (3) If ten years are allowed to elapse from the date of registration without an announcement that the mark is intended to be retained ; or should the same space of time elapse without a renewal of such annomicement being made ; (4) If the trade mark according to Sec. 3. was not legally entitled to registration. Seo. 6. The first registration and the cancelling of a trade mark will be published in the columns of the '' Deutscher Reiches-Anzeiger." The costs of such publication to be borne by the firm. . Seo. 7. For the first registration of a trade mark which has lift already received the protection of the law a fee of fifty marks shall be paid. The payment for the registration of a trade mark which has been in general and current use as the iHa Il- .1 20 trade mark of a certain firm up to the beginning of the year 1875, may be remitted by the local authorities. Other regis- trations and cancelliugs arc done gratuitously. Seo. 8. The right to make use of a particular trade mark on goods, or Articles in which goods are packed, belongs exclusively and solely to the Krm tor which the registration was in the first instance effected. Seo. 9. To trade marks which are protected by law, or which haye been in general and current use as the marks of certain firms up to the beginning of the year 1875, no one can acquire a right so long as the firms whose said trade marks are legally protected, or which have been in general and current use, make their announcement before the first of October, 1875. Sec. 10. By adopting a trade mark which contains letters or words, no one will be prevented from making use of his name or the name of his firm — either abbreviated or in full — as a means of distinguishing his goods. No one can obtain a right by annoimcement to any trade mark which up to the present time has been in free use among all or certain classes of business people, or whose registration is not permissible. Sec. 11. The head of a firm for which a trade mark has already been registered must cause the same to be cancelled upon the demand of a person who is justified in precluding him from the use of itj or in the cases provided for in Sec. 10. Sbo. 12. The right of using a trade mark of which due no- tification has been made expires ; (1) by the withdrawal of the notification, or on. an application to cancel the trpde 21 of the year Other regis- • trade mark ked, belongs B registration d by law, or as the marks • 1875, no one se said trade sen in general are the first of iontains letters ing use of his ,ed or in full — • one can obtain ?hich up to the certain classes t permissible, trade mark has to be cancelled I in precluding i for in Sec. 10. f which due no- B withdrawal of ancel the trfwie mark on the part of the authorized firm : or (2) by the coming into operation of either of the firet three cases mentioned in Sec. 5. Skc. 13. Every native producer or trader who has received protection or authorization for his trade mark may, in the event of another unlawfully making use of the same or the name of his firm, in virtue of this law enter an action against any person so doing, in order to obtain a legal decision that he is not entitled to make use of such trade mark. The pro- ducer or trader may likewise prosecute any person who unlawfolly exposes or keeps for sale any goods unlawfully marked with the complainant's trade mark, that the person so doiug may be judicially declared unauthorized to expose or keep for sale any goods so marked. Sko. 14. Whosoever knowingly and unlawfully exposes or keeps for sale any goods, or the packages thereof, bearing the trade mark or name of the firm of a native producer or trader who has received the protection of this law, shall be liable to a fine of not less than one hundred and fifty marks, and not more than three thousand marks, or to imprisonment for any period not exceeding six months, and he shall also be • bound to pay an indemnity to the said producer or trader. The punishment is only to be enforced upon the demand of the aggrieved party. Sbo. 15. The party so aggrieved may, at his own option, in addition to the punishment, demand for himself compen- sation not exceeding five thousand marks, instead of claiming any indemnification obtainable under this law. Should there t J;X 22 be more than one infringer in any caae, they are conjointly licble. A compensation thus adjudged precludes the de- manding of any further indemnity. Sbo. 16. The Court, however, will reserve to itself, after duly weighing all the circumstances, the power of freely de- ciding as to whether any damage has been sustained, and to what amount. Sbo. 17. In the event of judgment being given on the ground of Sec. 14, at the desire of the aggrieved party all trade marks on goods or packages for the same in the posses- sion of the defendant may be destroyed, and if, owing to the nature of the goods this is not practicable without the de- struction of the goods, or the packages containing them, the destruction of the said goods or packages may be ordered. Should the judgment be delivered in criminal prcMcess, the aggrieved party has a i'jght to demand that it be made pub- lie at the expense of the person convicted. The manner in which the judgment is to be made public, as also at what time, is to be determined when judgment is delivered. Sec. 18. The protection accorded by the provisions of the present law to the owner of a trade mark, a name, or a signa- ture, will not be invalidated in case such trade mark, name or signature should be reproduced with such alteration as only a close and accurate examination could detect. Sbo. 19. Civil law suits in which claims are advanced in virtue of this law will be considered in the spirit of both imperial and local legislation as commercial cases. Sbo. 20. The provisions of this law are likewise applicable* ■NH 23 I V I to the trade marks of traders who have no bnsinet* house in this country, as well as to the names or firms of foreign manufacturers or merchants, if in the State in which they have their domicile, according to a notification in the Reichs- Gesetzhlatt, German trade marks, names, and signatures enjoy protection ; this, however, subject to the following con- ditions: (1) The announcement of a trade mark is to be made to the Ilandelsgericht, Leipsic, together with a decla- ration that the person making the announcement will, in cases of dispute, submit to the jurisdiction of the above- named Court; (2) With the announcement proofs must be given that all conditions have been fulfilled in his native country under which the person making the announcement can claim protection there for his trade mark ; (3) The an- nouncement substantiates a right to the trade mark only for BO long a time as the person making the announcement is protected in his own country. Seo. 21. This law shall come into operation on the 1st of May, 1875. To trade marks which, up to the present time, have been protected by local legislation, the same legislative enactments shall continue to apply, until announcement in accordance with the provisions of the present law has been made, and which must take place prior to the Ist of Ocj:ober, 1875. Given under our Imperial hand and seal at Berlin, the 8'Oth day of November, 1874. William. Ij. S. Pbinok v. Bismarck. t -< r 24 CANADA ..A,i» ■,••- '-vv«-;*- AN ACT RESPECTING TRADE MARKS AND INDUSTRIAL DESIGNS. V :^ n- . [Aaemted to 16th May, 1879.] Whereas it is expedient to make alterations in the law providing for the registration of Trade Marks and Industrial designs : Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enact as follows : — 1. A register of Tr%de Marks shall be kept in the oflBce of the Minister of Agriculture in which any proprietor of a Trade Mark may have the same registered by complying with the provisions of this Act. 2. The Minister of Agriculture may, from time to time, subject to the approval of the Governor in Council, make rules and regulations and adopt forms for the purposes of this Act, as respects Trade Marks, and such rules, regulations and forms circulated in print for the use of the public, shall be deemed to be correct for the purposes of this Act ; and all documents executed according to the same and accepted by the Minister of Agriculture, shall be lield valid so far as relates to oflScial proceedings under this Act. smm AND ,1879.] 1 the \8ir Industrial bdyice and r Canada, le office of ietor of a lying with le to time, Dcil, make urpoees of ■egnlations iblic, shall Act; and d accepted id so far as 'iii^M' 25 8. The Minister of Agriculture may canee a seal to be made for the purposes of this Act and may cause to be sealed therewith trade marks and other instruments and copies proceeding from his office in regard of trade marks. 4. From and after the first day of July, one thousand eight hnndred and seventy-nine, no person shall be entitled to in- stitute any proceeding to prevent the infringement of any trade mark until and unless such trade mark is registered in pursuance of this Act. Provided always, that actions may be instituted as heretofore against persons fraudulently mark- ing merchandise in accordance with the Act thirty-five Victoria, chapter thirty-two, intituled " An Act to amend the law relating to the fraudulent marking of merohandiee^'' even in the absence of r^istration. 5. The Minister of Agriculture may object to roister any trade mark in the following cases : — First. If the said trade mark proposed for registration is identical with or resembles a trade mark already registered : Second. If it appears that the said trade mark is calculated to deceive or mislead the public: Third. If the said trade mark contains any im- morality or scandalous figure : Fowth. If the so called trade mark does not contain the essentials necessary to constitute a trade mark, properly speaking. 6. The proprietor of a trade mark may have it registered by forwarding to the Minister of Agriculture a drawing and description in duplicatie of such trade mark, together with a declaration that the same was not in use to his knowledge by any other person than himself at the time of his adoption m ^m^' 19 thereof; the whole being aceompanied with the fee herein- after provided. 7. On compliance with the requiroiiientH of this Act and of the niles liereinhefore provided for, the Minister shall re- giater the trade mark of the proprietor so applying, and shall return to the sarid proprietor one copy of the drawing and description with a certificate signed by the Minister or his Deputy to the effect that the said trade mark has been duly registered in accordance with the provisions of this Act, and there shall be further stated in such certificate the date, month and year of the entry thereof, in the register ; and every such certificate purporting to be so signed shall be received in all courts of law or of equity in Canada, as prima facie evidence of the facts ^herein alleged without proof of the signature. 8. For the purposes of this Act, all marks, names, brands, labels, packages or other business devices, which may be adopted for use by any person in his trade, business, occupa- tion or calling, for the purpose of distinguishing any manu- ■ facture, product or article of any description by him manu- factured, produced, compounded, packed or offered for sale, no matter how applied, whether to such manufacture, pro- duct or article, or to any package, parcel, case, box or other vessel or receptacle of any description whatever containing the same, shall be considered and known as trade marks, and may be registered for the exclusive use of the party register- ing the same in the manner herein provided ; and thereafter he shall have the exclusive right to use the same to designate articles manufactured or sold by hint : and for the purposes ieo herein - is Act and er shall re- ^, and shall awing and iater or his i been duly Is Act, and late, month every such eived in all le evidence lignature. les, brands, 3h may be . 388, occupa- any manu- him mann- ed for sale, icture, pro- lox or other containing marks, and rty register- 1 thereafter to designate he purposes mrn^- 9ft of this Act, timber or Inmbor of any kind upon which labor has been ex{>euded by any person in his trade, business, occupation or calling, shall be dueniod a manufacture, pro- duct or article. 9. A trade mark may bu genoral or Hpecilic, according to the use made or intended to bo made by the proprietor there- of, for the sale of various articles in which he deals in his trade, business, occupation or calling generally, or specific if applied or intended to apply to the sale of a class of mer- chandise of a particular description, r, 10. A general trade mark once registered and destined to be the sign in trade of tlie proprietor thereof shall endure without limitation. A specific trademark for the sale of a opecial class of goods or merchandise when registered shall endure for the period of twenty-five years, subject before the expiration of the said period to the renewal thereof by the proprietor thereof, or his legal representative, such renewal being subject to re-registration at or before the expiration of such periods of twenty-five years, for any number of times. 11. The proprietor of a trade mark applying for its regis- tration must state in his application whether the said trade mark is intended to be used as a general trade mark or as a specific trade mark. 12. Before any action is taken in relation to an applica- tion for registering a trade mark the following fees shall be payable into the hands of the Minister of Agriculture, to wit: — ■ ' • rnl 28 On every applioation to register a general trade mark, including oer- tifloate ISO 00 On everr applioation to register a speoifio trade mark, including cer- tificate 28 00 On every applioation for the renewal of the registration of a specific trade mark, including certificate . .' 20 00 For copy of each certificate of- registration, separate from the return of the duplicate hereinbefore mentioned 1 00 For the recording of an assignment, as hereinafter provided 2 00 For office copies of documents, not above mentioned, per every hun- dred words or less 60 For each copy of any drawing or emblematio trade mark, the reason- '' ' >'•'-' able expenses of preparing the same. All of which fees shall be paid over by the Minister of Agriculture to the Receiver-General of Canada; provided always, that in case of refusal to register the trade mark for which application is made, the fee shall be returned to the applicant or his agent, with the exception of the sum of five dollars, to be retained in compensation of office expenses. 13. Any person having registered a trade mark may petition for the cancellation of the same, and the Minister of Agriculture may on receiving such petition^ cause the said trade mark to be so cancelled ; and the same shall, after such cancellation, be considered as if it had never -been registered under the name of the said party. 14. Every trade mark registered in the office of the Minis- ter of Agriculture shall be assignable in law, and on the assignment being produced and the fee hereinbefore provided being paid, the Minister of Agriculture shall cause the name of the assignee, with the date of the assignment and such other details as he may see fit, to be entered on the margin 1 ^.J^' Iff oer- ...♦TOOO r .... 26 00 ^ .... 20 00 retam .... 100 .... 2 00 ■y hun- .... 60 reaaon- Miniater of provided le mark for ■ned to the sum of five cpenses. mark may Minister of ise the said il, after such m registered f the Minis- and on the )re provided Lse the name nt and such the margin 29 of the register of trade murks on tlie tolio wliere such trade mark is registered. 15. If any person makes application to register, as his own, any trade mark which has been already registered, the Minister of Agriculture, if not satisLed that such person is undoubtedly entitled to the exclusive use of such trade mark, shall cause all parties interested therein to be notified to appear, in person or by attorney, before him, with their witnesses, for the purpose of establishing which is the right- ful owner of such trade mark, and after having heard the parties and their witnesses, the said Minister sliall order such entry or cancellation, or both, to bo made as he shall deem just; in the absence of the said Minister, his Deputy may hear and determine the case and make such entry or can- cellation or both, as to right and justice may appertain ; and any error in registering trade marks or any oversight about conflicting registrations of trade marks may be settled in the same manner. 16. If any person, other than the party who has registered the same, marlrs any goods or any article of any description whatever with any trade mark registered under the provisions of this Act, or with any part of such trade mark, whether by applying such trade mark or any part thereof to the article itself or to any package or thing containing such article, or by using any package or thing ao marked which has been used by the proprietor of such trade mark, or knowingly sells or offers for sale any article marked with such trade mark, or with any part thereof, with intent to deceive and 80 if Hi! !' ■>'.! l\ to induce pereons to believe that such article was manu- factured, produced, compounded, packed or sold by the proprietor of such trade mark, he shall bo guilty of a misde- meanor, and, on conviction thereof, shall forfeit, for each offence, a sum not less than twenty dollars and not exceeding one hundred dollars, which amount shall be paid to the pro- prietor of such trade mark, together with the costs incii.iod in enforcing and recovering the same ; Provided always, that every complaint under this section shall be made by the proprietor of euch trade mark, or by some one acting on his behalf and duly authorized thereto. • 17. A suit may be maintained by any proprietor of a trade mark against any person nsi.ng his registered trade mark, or any fraudulent imitation thereof, or selling articles bearing such trade mark or any such imitation thereof, or contained in packages being or purporting to be his, contrary to the provisions of this Act. 18. Any person may be allowef the tax in the le time of taking »e employed for 'ell aa the ner'^a- 37 RUSSIA. Eatraot from the Laws rdating to Mcmufacturing Industry. Code of Civil Laws, Vol. XI. Paet 2. Edition of 1861 Relativb to the Imposition of Masks on Pbodhots of Russian Mills and Manufactories. Secthon 74. The right of stamping or marking Russian manufactured produce of various descriptions shall be enjoy- ed by every manufacturer. It shall not be lawful to make searches in factories and domestic industrial establishments, to ascertain whether their products have been stamped or not. Seo. 75. Russian products, the exportation of which is not prohibited by the present dispositions of the tariff, shall be admitted at the Custom Houses for exportation, without let or hindrance, whether such products be stamped or not. Seo. 76. Stamped products of Russian origin enjoy the following privileges, : — (1st). If among foreign goods which have not paid duty Russian goods are found bearing an un- doubted Russian trade mark, they shall be held to be home- made goods, not subject to confiscation ; and may, in case of need, be considered as guarantees for fines, like all other goods, in conformity with the Customs Laws. But if, among 38 'ii the contraband goods, tlit-re shonld be found articles alleged to be Kussiau without having a mark coniirmiiig ruch origin, the}' ahull be subjected to coutiscation, without any kind of inquiry being made respecting their origin. (2d). If Russian goods provided with the proper stamp be sent abroad, and thence retunied to the Empire owing to their having remained unsold, they shall be passed without hindrance free of duty ; unstamped goods, however, shall be treated like foreign pro- duce, in conformity with the Customs Laws. • - Se«. 77. The following general rules shall be obsei-ved respecting the introduction of a uniform regulation in the stamping of products. (1st). The stamp must contain, even if only in initials, the Christian name and surname of the producer, and the place of his residence. The stamp must be durable and clear ; the letters thereon must be unmis- takeably Russian ; other letters may be used on condition that a Russian mark shall in addition be employed. (2nd). On establishing a new manufactory, the founder of the same shall, if he intends to place a stamp on his manufactures, give notice thereof to the Department of Commerce and In- dustry, stating where and for what purpose the manufactory is to be established. To this must be added a sample and description of the stamp intended to be placed on the goods« (3rd). On selling or abandoning the manufactory, the man- ufacturer shall also give notice tliereof to the Department of Commerce and Industry. (4th). If a manufacturer deems it necessary to effect an alteration m his stamps, he shall give previous notice to the Department of Commerce and Industry, n mmt 'M) 7 rticles alleged g t-jch origin, any kind of If Russian abroad, and ring remained free of duty ; Q foreign pro- be obseiTed ilation in the contain, even imame of the stamp must ist be unmis- on condition loyed. (2nd). )r of the same manufactures, merce and In- ) manufactory a sample and on the goods^ ;ory, the man- )epartment of icturer deems , he shall give and Industry, stating the period at which ho intends to make use of the new stamps. (6th). If the Dcpiirtniont of Commerce and Industry Hnds that the projected stamp is impracticable, or not in conformity with the regulations, or too much resembles another stamp, the altcnitiun of hucIi mark will be required. Seo. 78. Whosoever falsifies ft)reign marks or signs, which have been adopted with the sanction of the Government, on manufactures or products of manufact^' ' 'es, factories, or other establishments, shall be subject to the penalties imposed by Art. 1354 of the Penal Code, besides the payment of damages caused by such falsifications.* 8ec. 79. (1868). In case Russian goods, not provided ^ith a proper stamp, are returntnl to the Russian Empire from abroad, they shall only enjoy the right of a free entry without paying duty if the proprietors shall produce the original customs' certificate proving them to have been, in fact, exported from Russia. Seo. 80. It is not necessary to stamp the products of trades and guilds not specially designated. Seo. 81. It is not, however, prohibited to stamp products of this kind (Sec. 80), or of the kinds mentioned in the sup- plement to Sec. 79, provided samples of the marks have been submitted to the Department of Commerce and Industry, in conformity with the general regulations. • Deprivfttion of all olvU rights and exile to distant ptovinoes of the Empire, other than those of Siberia, or to imprisonment In a house of correotlon for a term ranging from four months to eight months. ^■iffuyg'-i^,;^ 40 • Seo. 82. Although the prodactn of peasants, properly so called, which are not subject to staraping, are enumerated in this law, yet (just as it is ordained in the tariff regulations that articles not enumerated in the tariff may be treated as •imilar objects which are enumerated) the Department of Commerce and Industry shall be at liberty, with the sanction of the Minister of Finance, to assign new products to their necessary places, and may, according to its judgment, either assimilate them to such goods as require stamping in order to be recognized as Russian goods, or assimilate them to such goods as are by themselves recognized as the products of peasants. For it cannot be assumed that it will be necessary, for the future, to enumerate all such products without omit- ting a single one of them, seeing that products are subject to alterations, from time to time, both in respect to quality and appearance, and with regard to their mateVial relation and nomenclature. ■I !l ' 7 41 properly 8o i oDumerated ff regulations be treated as apartment of the sanction iucts to their jment, either ping in order them to such products of be necessary, without omit- a are subject <5t to quality sVial relation AUSTRIA. LAW FOR THE PROTECTION OF TRADE MARKS AND OTHER DENOTATIONS. Impbrial Patent of December 7, 1868. To take KnrBor Janvabt 1, 1869. ' ' , ■*'■,, . .■ - J . -' ' " .' ' ■, ■ " • t ' I. Oetieral Provisions. i * '* Sec. 1. In this law marks are understood to be those special signs which serve to distinguish the productions and goods of one tradesman intended for the commercial market, from those of any other tradesman (devices, ciphers, vignettes and the like). Sec. 2. A tradesman who wishes to secure to himself the sole right to the use of a mark, must have it registered accord- ing to the provisions of the next division. Seo. 3. No exclusive right can be acquired in marks which consist of such signs as are commonly used in the trade in particular kinds of goods, nor in such as consist merely of letters, words or numbers, or of the arms of States and Oonntries. i 43 ' -■'''"■'"■■:::v;-'t:::-.';--'. Sec. 4, The exclusive right to a mark preclndea the use thereof hy other tradesmen only in regard to that kind of goodij to which the productions or commercial articles of the trade to which the protected mark is intended, belong. Sec. 5. The right in marks continues with the trade under- taking for which the marks are intended ; it expires therewith and changes owners therewith. In the latter case, however, unless the business be carried on by the widow or an heir under age, or on account of inheritors or creditors, the new owuer must have the mark transferred to his name within three months ; otherwise the right in them expires. Seo. 6. No one must arbitrarily appropriate to himself the name, style, arms, or designation of the establishment of another inland trader or producer, for the denotation of goods. Smo. 7. All that is said in this law about the denotation of goods also applies to the denotation affixed to the packing, the receptacles, wrappers, &c. Sec. 8. The present law makes no alteration in the exist- ing regulations respecting the special distinguishing marks prescribed for certain goods, particularly the stamping regu- lations. II. Registration of the Marks, Sbc. 9. The mark for which a trader wishes to secure to himself the exclusive right of use (§ 2) must be delivered in two copies to the Chamber of Commerce and Industry in the district whereof the industrial undertaking is situated, where- snu precludes the use rd to that kind of rcial articles of the nded, belong. ith the trade nnder- it expires therewith business be carried or on account of ust have the mark iths ; otherwise the >riate to himself the te establishment of denotation of goods. ut the denotation of Eed to the packing, sration in the exist- stingnishing marks the stamping regu- wishes to secure to just be delivered in and Industry in the >g is situated, where- r—*^- in use is to be made of it; one copy is to be inserted in the Register of Marks, which is to be kept by the Chamber of Commerce and Industry ; the other is to be returned to the party with the certification directed in the following section. Sbo. 10. The appointed functionary of the Chamber of Commerce and Industry is to set down on each copy— (a,) tlie running number of the register, (h.) The day and hour of delivery, {c.) The name in which the mark has been registered, (d.) The designation of the industrial enterprise for which it is intended. And ho is to sign this notification and to affix the official seal thereto. Seo. 11. The registration is subject to a duty of 5 fl., which goes into the chest of the Chamber of Commerce. Sec. 12. With the day and the hour of the delivery of the mark at the Chamber of Commerce and Industry, the sole right to the use of the mark begins for the depositor, and the priority of the claim will be adjudged according thereto, if the same mark should be deposited by several tradesmen at the same or different Chambers of Commerce and Industry. Seo. 13. To transfer the right to a mark, as mentioned in section 5, the applicant must produce proof of the acquisition of the industrial undertaking concerned. The transfer is subject to the same duty as the first registration. Sec. 14. Tlie Registers of Marks are to be open to every one's inspection at the Chambers of Commerce and Industry. 44 in. Microaohments, Infringements and Penalti'is. Sbo. 15. Every encroachment on the right to a mark, whether by the illegal appropriation or imitation of a mark, or by the consumption of goods thus illegally marked, gives the injured party the right to insist on the stoppage of the further use of the illegal mark and on the removal thereof from the goods marked therewith, so far as they are intended for sale. He may also demand that the tools and apparatus exclusively or especially used for this purpose be made unserviceable. Claims by the injured party for compensation for the inju- ry suffered through the encroachment on his right in a mark, are to be decided according to the civil law. Sbo. 16. It is to be considered an imitation if the marks in question cannot be distinguished without moire than the ordinary attention. Sbo. 17. The provisions contained in section 15 are also applicable to any one who (a) illegally appropriates the name, style, arms, or the special designation of another inland trader or producer, for the denotation of goods intended for sale ; (b) introduces into commerce productions or articles for sale which are furnished with an unauthorized denotation of this kind. Sec. 18. If the encroachment (sections 16 and 17) has been knowingly committed, a fine of from 25 to 500 fl. is to be imposed on the offender, besides any punishment incurred according to the general penal law. ' 45 °enaltUa. to a mark, n of a mark, larked, gives tppage of the loval thereof are intended Qd apparatus >8e be made for the inja- \it in a mark, the marks in ire than the 1 15 are also ropriates the Qother inland intended for or articles for denotation of and 17) has ) 500 fl. is to lent incurred Seo. 19. The punishment may be doubled on a repetition. On a further repetition the offender is to be imprisoned for from a week to three months, besides the fine. Seo. 20. If the fine should seriously affect the circumstan- ces or the means of subsistence of the delinquent or his family, or prevent him from making the compensation due for the criminal act, it is to be converted into one day's imprisonment for every 6 fl. Sbo. 21. The punishing authority can also direct that the sentence be published. Sso. 22. The amounts of the fines go to the poor fund of the place where the transgression has been committed. VI. Atith(mtie9 and Proceedingt. Sbo. 28. The procedure and decision respecting encroach- ments (sections 15 and 17), as well as the investigation and punishments of the transgressions described in sections 18 and 19, belong to the political administrative authorities of first instance, according to the existing regulations for the proceedings and the course from court to court in industrial disturbances and industrial transgressions. The political authority also decides disputes respecting the right in marks, the priority and transfer thereof, and respecting the question of identity of marks. But the decision of the claims for ■compensation, mentioned in section 16, belongs to the civil judge." Sbo. 24. Criminal proceedings on account of the transgres- ^4. 46 sioQS of law described in this law can only be commenced on the application of the injured party, unless there be a crimi- nal act involved, which, according to the genernl criminal law must be officially prosecuted by the criminal court. If, however, the injured party withdraws his application for punishment before the official decision is made known to the defendant, then he has, without prejudice to his private claims to compensation, also to relinquish the demand for any punishment, as well as any further investigation for the purpose of punishment. Sbo. 25. Whenever the question of an encroachment rests on a comparison of two marks, the authority is to obtain a report from unprejudiced professional persons. At the recep- tior. of the report the parties are also to be present and to be heard with their explanations and objections of any kind. A report can only be opposed on account jof objections against the professional persons, or on account of want of form. If it is deficient or indistinct its completion may be insisted upon. An inspection is not allowed. Seo. 26. The injured party is entitled, even before the decision of his complaint, to require the seizure or other custody of the goods marked contrary to the provisions of this law, and the tools used for the purpose. The political authority is immediately to order the same on production of the copy of the mark issued and attested according to section 10. It is left, however, to the judgment of the said authority to require a preliminary security for the aflfiont and dam- ages of the defendant. 47 ommenced on jre be c crimi- lernl criminal lal conrt. is application lade known to to his private e demand for igation for the tachment rests is to obtain a At the recep- sent and to be of any kind, jof objections nt of want of letion may be en before the zure or other jvisions of this The political production of ling to section said authority ■ont and dam- V. Transitory Provisions. Sbo. 27. Even the traders who at present use a mark can only acquire the exclusive right to it on the conditions of this law. Seo. 28. For this purpose the interval to the end of the month of June, 1859 is granted to them, to the effect that by the registration of the miirk during this interval the rigLt is secured to every one of maintaining the priority of his mark used before ' e appearance of this law, even against any one who may have anticipated him in the registration of the said mark, but has not actually made use of it up to the in- troduction of this law. • Sec. 29. If, however, before the operation of this law, several have used the same mark, then of those who have this mark registered within the interval fixed in section 28 he acquires the exclusive right in the mark who proves that he has used it earlier than the rest. Any dispute is to be decided by the police authorities, after hearing the contend- ing parties, on the evidence of the proofs brought forward by them as to the earlier commencement of the previous use of the mark. In those provinces where mark registers (sign rolls, &c.) were kept with public attestation before the appearance of this law, the contents thereof, when no objection prevails to •the contrary, are to settle the question. If, however, none oi' the contending parties can produce proof of the longer use of such mark than the rest, then the question must be decided by lot. ii %^ i:;:!: ! I 48 Sbo> 80. With regard to marks that are flrat bronght for registration after the 80th June, 1869, no claim of priority can be derived from any application of them before the appearance of this law. d pm «t bronght for im of priority am before the m:' i-' ita mmm^M