TRADEMARKS 
 
 TRADE NAMES 
 
 MUNN & CO. 
 NEW YORK
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 TRADE MARKS 
 
 TRADE NAMES 
 
 FOR THE BUSINESS MAN 
 
 MUNN & CO., 
 '"NEW YORK
 
 Copyright, 1912 
 BY MUNN & COMPANY
 
 FOREWORD 
 
 The purpose of this little book is to present, in the 
 simplest manner, consistent with comprehensiveness, 
 an interpretation of the Federal statutes concerning 
 trade-mark registration and protection. 
 
 As the book is intended for business men, we have 
 avoided legal phraseology as much as possible as well 
 as long quotations from court decisions, except where the 
 inclusion of such excerpts was found necessary to a clear 
 understanding of the subject. 
 
 Our large trade-mark practice, extending over many 
 years, has developed the conviction in our minds that a 
 great deal of useless labor in devising trade-marks that 
 cannot be registered to say nothing of vexatious 
 litigation over defective marks might be obviated by 
 some such publication as this. 
 
 We call the attention of those who are interested in 
 trade-marks to the superior facilities of our trade-mark 
 department for handling business of this character. 
 
 Our service includes not only registration of trade- 
 marks, and general trade-mark practice before the 
 Patent Office, but also registration of trade-marks in 
 foreign countries and the registration of foreign-owned 
 marks in the United States. 
 
 Among our trade-mark clients are many of the largest 
 and most successful business enterprises in America. 
 
 MUNN & COMPANY 
 
 NEW YORK AND WASHINGTON
 
 CONTENTS 
 
 PAGE 
 CHAPTER I The Trade-Mark as a Business Asset 1 
 
 CHAPTER II The Federal Trade-Mark Law 7 
 
 The Act of 1905 8 
 
 Association Trade-Marks 10 
 
 The Ten Years' Clause 11 
 
 Classification of Merchandise 11 
 
 Registration Involves Obligation 13 
 
 Affixation 13 
 
 Rules of the Patent Office 13 
 
 Number of Rejected Applications 14 
 
 CHAPTER III Analysis of the Requirements for Registration. 15 
 A Trade-Mark Must Not Be Identical with 
 
 Another Already in Use 15 
 
 Red Cross Trade-Marks 17 
 
 Descriptive Marks 17 
 
 Geographical Marks 20 
 
 A Trade-Mark Must Not Be National Insignia . 22 
 Conditions Under Which a Personal Name 
 
 May Be Registered 22 
 
 Registration of Portraits 23 
 
 A Trade-Mark Must Not Misrepresent 23 
 
 Trade-Marks Not Registrable When Opposed 
 
 to Public Policy 24 
 
 Other Restrictions 24 
 
 Proposed Amendment to Law 25 
 
 Trade-Mark Status of Patented Articles 25 
 
 CHAPTER IV The Elements of a Good Trade-Mark 27 
 
 Nine Tests of a Desirable Trade-Mark 29 
 
 Special Notice 31 
 
 CHAPTER V Trade-Mark Protection 32 
 
 CHAPTER VI Munn & Company 38 
 
 Assignment of Trade-Marks 39 
 
 Information Required in Making Application 
 
 for Registration 39 
 
 Registration in Foreign Countries 40 
 
 Our Facilities 40 
 
 Trade-Mark Protective Bureau 41
 
 CHAPTER I 
 The Trade-Mark as a Business Asset 
 
 IF you should find in your Santa Claus stocking, next Christ- 
 mas, a gift for the exclusive right to use the word " Royal" 
 as a name for baking powder, you would be eight million 
 dollars richer than you were the day before. 
 
 It is said, on good authority, that the Royal Baking Powder 
 Company considers its trade-mark worth just $1,600,000 a letter. 
 This is, perhaps, the most valuable trade-mark in ^existence, 
 though it is rivaled in value by "Kodak," "Uneeda," "Ivory" 
 (as applied to soap), "Coca-Cola," the name "Gillette" used in 
 connection with safety razors, and a half dozen others. Each 
 of these trade-marks has become a national institution. To 
 displace them in the public mind would require competition of 
 unheard-of magnittide and energy. 
 
 The name "Coca-Cola" is worth at least five million dollars; 
 the Gorham silver- ware mark two millions, at a fair estimate; 
 the trade-marks of the National ^_ 
 Biscuit Company, all of which ^^>n^a 
 touch the highest standard of dis- m fjfA 
 tinctiveness, must be the largest *^52 
 asset of that concern; and the ^- - *"^i 
 name ' ' Kodak ' ' where would the A FI VE-MILLI 
 Eastman Company's business go MARK. 
 
 to if it should hand over the trade-mark " Kodak" to some other 
 concern, and go on making the same goods under the name of 
 Smith's Hand Cameras? 
 
 When the American Tobacco Company was recently dissolved 
 into separate companies, under the order of the Supreme Court, 
 the trade-marks of the combination were estimated to have a 
 value of $4^,000,000, out of total assets of $227,000,000. 
 
 The aggregate total value of well-known American trade- 
 marks must be in the hundreds of millions of dollars. But any 
 estimate of the value of a trade-mark, apart from the business 
 to which it applies, is necessarily a mere guess, for a trade-mark 
 is a species of commercial property that cannot be sold by itself. 
 It is inseparably attached to the business from which it emanates, 
 and cannot be transferred without a transfer of the business. 
 There are cases where a concern's trade-mark has become so 
 valuable, through long years of popularity and profit-making, 
 that it entirely overshadows all other assets of the business in 
 short, the business could not exist without it. 
 
 A trade-mark is a symbol of Good- Will using the words 
 "Good- Will" in the same sense that the bookkeeper uses them. 
 It stands for built-up reputation ; it is the link that connects the
 
 Trade-Marks. 
 
 ultimate consumer with the manufacturer. It preserves the 
 identity of merchandise, and, in carrying out this function, it is 
 a device of inestimable value to the commercial world. 
 
 Sometimes a complex chain of events is best explained by a 
 simple illustration. With this idea in mind, let us put ourselves 
 in the place of a woman who wants a 
 cake of Ivory Soap. She lives in a 
 desert town in Arizona. She cannot go 
 half across the continent to Cincinnati 
 to buy a five-cent cake of soap from 
 Procter & Gamble. In fact, it is a safe 
 bet that she never heard of Procter & 
 Gamble, but she knows that she wants 
 Ivory Soap. So she sends her little 
 girl down to the "general" store, and 
 this lisping messenger asks for ' ' Ivory ' ' 
 Soap not just plain "soap" and 
 brings the familiar package with the 
 name on it back to her mother. If the 
 THIS DRESSED-UP DUCK- storekeeper sends some other kind of 
 LING is THE TRADE-MARK soap the owner of the nickel knows 
 OF MERRIMACK DUCKLING i ns t a ntly that she did not get what she 
 
 wanted. 
 
 By means of the trade-mark "Ivory" the manufacturers in 
 Cincinnati deal with this buyer in Arizona as surely and as 
 expeditiously as if the lived across the street from their factory. 
 Trace this transaction backward, and you will find its trail 
 running unerringly through the retailer, the wholesaler, and the 
 jobber to the manufacturer and at every stage of its journey 
 the product kept its personality. It left Cincinnati as Ivory 
 Soap, and as Ivory Soap it was put into the consumer's hands. 
 Selling by trade-mark is one of the miracles of modern mer- 
 chandising. Its development to a state of high efficiency has 
 taken place during the last hundred years. 
 
 Competition is the basis of the modern industrial system. 
 Plainly defined, a competitive system means a system under 
 which every trader, large and small, must be prepared to justify 
 his existence at any time. 
 
 In the early centuries of English industrial life, competition 
 in the modern sense was unknown, as Townsend Warner points 
 out in his "Landmarks of Industrial History." For centuries 
 after the Norman conquest of England, all manufactured articles 
 were produced by craftsmen each master craftsman working 
 in his tiny shop with two or three apprentices. 
 
 All craftsmen belonged to gilds, whose status and authority 
 were recognized by the law of the time. These gilds fixed the 
 prices of commodities a price "fair to the seller and fair to the 
 buyer." A craftsman could not push his trade beyond his own 
 immediate locality, because in that event he would come in
 
 Trade-Names. 
 
 SAPOLIO 
 
 conflict with his brother craftsmen. He made shoes, or harness, 
 or wove rough woolen coats, and sold them to his neighbors at 
 a price that was fair to him and fair to them, and in somnolent 
 old age was gathered to his fathers, without having heard the 
 word "competition" or its equivalent in burly Saxon-French. 
 
 With the decay of centuries, the gilds slowly passed away, 
 and upon their ruins arose the modern factory system. 
 
 In the new adjustment of things, here and there a craftsman 
 with more energy and a longer financial head than his fellows, 
 began to extend his trade, and employ more journeymen and 
 apprentices. 
 
 In 1550 John Winchcombe, "Jack 
 of Newbury," a woolen weaver, had a 
 hundred looms at work in his own 
 house, and Winchcombe woolens were 
 known as far as Antwerp. At the 
 same time, London craftsmen were 
 selling their goods all over England- -PKAS 
 
 or, at least, in the larger towns, and there DR. CAMERON, A PHYSICIAN. 
 was a growing trade with Flanders. 
 
 These manufacturers, as the circle of their trade expanded, 
 began to see the desirability of marking their products in some 
 way to identify them, so that purchasers at a distance would be 
 able to distinguish them from similar articles produced by others. 
 
 Any device for identifying a commercial product is a trade- 
 mark, in the broad significance of the term. 
 
 Some of the early trade-marks were rude initials and cryptic 
 designs of interlaced crosses and circles. Others consisted of 
 dragons and winged snakes, and various real and unreal animals. 
 
 The craftsmen of the fifteenth and sixteenth centuries were 
 the first users of trade-marks in England. 
 
 The flickering torch of the antiquarian throws a dim light on 
 some sort of trade-mark usage current 
 among the Greeks and Romans, and even 
 among more ancient trading peoples, but 
 these researches hold but little of interest 
 to us. Our present purpose is to consider 
 the function of the trade-mark in modern 
 business, and with that thought in mind, it 
 may be taken as an established fact that 
 trade-marks, in the modern sense, have a continuous history of 
 perhaps five hundred years. 
 
 In the early part of the seventeenth century the gold-beaters 
 of Nuremberg were using trade-marks, and they had systematized 
 their use to such an extent that an official register of gold-beaters' 
 marks was kept and penalties for the misuse or counterfeiting of 
 trade-marks had been established a law. This register has been 
 preserved. Its yellowed pages are decorated with curious de- 
 vices of serpents and dragons, doves and crosses. Without 
 exception, the marks of the Nuremberg gold-beaters were picture 
 marks.
 
 Trade-Marks. 
 
 2) 
 
 In the early part of the eight- 
 th century the use of trade- 
 
 eenth 
 
 marks was general, in certain 
 lines of trade, throughout Europe. 
 But the lack of specific legisla- 
 tion for the registration of trade- 
 marks at that time a lack that 
 persisted until the nineteenth 
 century leads one to the con- 
 clusion that these eighteenth cen- 
 tury traders did not attach great 
 importance to the subject. They 
 evidently considered the trade- 
 OF THE EIGHTEENTH CENTURY. mark a. mere minor accessory of 
 
 business. 
 
 The early decades of the nineteenth century witnessed the 
 rise of three great forces which were destined to accomplish, in a 
 short time the most profound changes in manufacturing and 
 selling methods. These forces were: 
 
 i st. The application of steam power to manu- 
 facturing in a large and economical way. 
 2nd. The development of cheap and quick trans- 
 portation. 
 
 3rd. The invention of means for the rapid dis- 
 semination of intelligence. 
 
 Factories, employing thousands of hands great industrial 
 monuments to Cheap Power had inevitably to find distant 
 markets for their products. No longer could the manufacturer 
 sit at home and await the buyer. His product was too large, 
 and its burden was too heavy to carry on a haphazard sales 
 plan. Consequently, the selling departments of all enterprises 
 grew tremendously in importance. Customers were sought across 
 the breadth of a continent. Many a manufacturer's sales area 
 grew, in the span of a generation, from a few hundred square 
 miles to a region that included every degree of climate from the 
 Arctic to the Torrid. 
 
 To accomplish this result efficient selling methods, and 
 economical and fast transportation, were required. 
 
 As a natural consequence of these conditions trade-marks 
 grew in importance. Manufacturers without trade-marks found 
 that they had no hold on their 
 trade. The consuming public 
 did not know them or their 
 products by name, and they 
 were at the mercy of the 
 SHAPED SOMEWHAT LIKE A WISH-BONE, jobber, the wholesaler and the 
 retailer. They were sup- 
 ported by a chain of circumstances, of which every link was 
 weak. 
 
 On the other hand, manufacturers whose trade-marks were 
 firmly fixed in the public mind by reputation began to see that 
 
 "WISHBONE" 
 
 Registered Trad* Mark
 
 Trade-Names. 
 
 they were, to a large degree, independent of the merchandising 
 chain. The ultimate consumer knew their trade-marked prod- 
 ucts, and asked for them by name. 
 
 Thus, by a process of natural evolution, the trade-mark 
 developed in importance from a workman's tool mark to a 
 symbol of Good- Will a business asset in a tangible form. 
 
 It is an axiom of legal philosophy 
 that when a thing becomes valuable 
 or desirable, legislation concerning 
 its regulation and protection springs 
 into being. Consequently one looks 
 for, and finds, the beginning of (Trademark Reg. u. s. Pat. Off.) 
 specific legislation on the subject of THIS TRADE-MARK OF A 
 trade-marks around the end of the DUSTLESS MOP is AN EX- 
 first quarter of the nineteenth ^0^^ F LE 
 century. 
 
 Before the first trade-mark legislation, cases of infringement 
 fell under the common law, and were decided in courts of equity. 
 
 H. D. Nims, a well-informed writer on trade-marks, says in 
 his "Law of Trade-Marks and Unfair Trade": 
 
 "It is rarely that one life sees the genesis and maturity of law, 
 yet it has almost seen them of trade-mark law. In the eighteenth 
 century there were a few scattered decisions which turned almost 
 wholly on the question of fraud. With the rise and growth of 
 machine-made merchandise in the earlier part of the last century, 
 the matter of private marks of merchants to distinguish wares 
 going out into the public markets of the world assumed importance 
 and cases multiplied. Trade-mark law is one of the results of 
 machinery. It is safe to say that the great mass of trade-mark 
 and unfair-trade law is the development of the last forty years." 
 
 A structure, of which the foundation has been so recently 
 laid, must necessarily be still unsettled. The rulings of both the 
 Patent Office and the courts are, in many cases, contrary to 
 precedent. In some instances, courts in different parts of the 
 country have handed down contradictory decisions bearing on 
 the same question. But, despite these drawbacks, a body of 
 trade-mark law is being slowly formed, and it is only a question 
 of time before our feet will be on firm ground. 
 
 Trade-mark cases should be entrusted to lawyers who have 
 specialized in this branch of the law. The legal status of this 
 subject is changing so swiftly that an ordinary lawyer, absorbed 
 in general practice, cannot keep track of it. 
 
 A trade-mark has been defined as follows: 
 
 "A trade-mark may be tersely denned to be any sign, mark, 
 symbol, word or words which indicate the origin or ownership of 
 an article as distinguished from its quality, and which others have 
 not the equal right to employ for the same purpose. In its strictest 
 sense, it is applicable only to a vendible article of merchandise to 
 which it is affixed." 
 
 (Ball v. Broadway Bazaar, Court of Appeals, N. Y., 87 N. E. 
 674.) 
 
 We give this definition because it expresses in the fewest 
 possible number of words the function and limitations of trade-
 
 6 
 
 Trade-Marks. 
 
 marks. Also, because there is in the minds of many business 
 men, a confused notion of the difference between a trade-mark 
 and a trade-name. By referring to the definition it will be noted 
 that a trade-mark is "applicable only to a vendible article of 
 merchandise to which it is affixed." 
 
 On the other hand, a trade-name applies to a business as a 
 whole, although this business may be engaged in the sale of not 
 one vendible article only, but a thousand. For instance, 
 " Wanamaker's" is a trade-name and " Kodak" is a trade-mark. 
 A trade-mark has no value except that created by the quality, 
 sale, popularity and profit in the article to which it is affixed. 
 No matter how distinctive, or attractive a mark may be, it is 
 worth but little if it is used in connection with an inferior article 
 or with an article sold without profit. 
 
 But a distinctive and suggestive trade- 
 mark is of immense help in advertising and 
 selling. Consider, for example, the trade- 
 mark of Old Dutch Cleanser. It is full 
 of human interest, motion, life, and sug- 
 gestion. It brings up in the mind the 
 mental picture of dirt fleeing from an 
 energetic Dutch scouring woman. That 
 this mark has been a powerful aid to sales 
 is obvious. Suppose Old Dutch Cleanser 
 had been called Climax Cleaning Powder. 
 Can you imagine anybody acquiring more 
 than the most languid interest in anything 
 reminds one of 
 
 TRADE-MARK. 
 
 with a name so dull? 
 hard and sordid toil.
 
 CHAPTER II 
 The Federal Trade-Mark Law 
 
 THE function of a trade-mark is to denote origin. As we 
 pointed out in the preceding chapter, the necessity for using 
 trade-marks arose as soon as the expanding wave of trade 
 carried a craftsman's goods to customers outside of his own 
 community. The ancient trade-mark was a simple device in- 
 vented for the purpose of enabling a maker of any commodity 
 to hold his out-of-town customers, so to speak, by enabling them 
 quickly and surely to identify his goods. 
 
 Throughout its history the trade-mark has remained true to 
 its ancient antecedents, and its purpose to-day, as it was in the 
 fifteenth century, is specifically to indicate the origin of an 
 article of merchandise. 
 
 In this aspect of unchanging purpose, the trade-mark is 
 somewhat an anomaly in commercial history. During the last 
 four hundred years, methods of manufacture, distribution and 
 sale have been revolutionized from top to bottom : banks, which 
 began as mere money-changing offices, have become establish- 
 ments for keeping and loaning funds; the retailer, who used to 
 sit in a hole in the wall with a handful of goods, all of the same 
 kind, has developed into a merchant selling ten thousand 
 different articles; the craftsman, who once served a long ap- 
 prenticeship, during which he learned to make every part of a 
 shoe or a carriage, has become a specialized laborer, employed 
 by the day to produce the extreme subdivision of a finished 
 article. 
 
 It is strange that, in all this evolution of commercial methods, 
 the trade-mark did not undergo a change in function. It might 
 have become, by a gradual transformation, a merchant's mark, 
 applied indiscriminately to all goods of every description sold by 
 him. Or, it might have evolved into a stamp of merit or high 
 quality, regulated by statute and licensed only to manufacturers 
 who could prove their right to use it. 
 
 But none of these changes has taken place, and the trade- 
 mark of the twentieth century has for the beginning and end of 
 its function the purpose of indicating to buyers the association 
 of merchandise with a particular manufacturer or dealer. 
 
 The present Federal Trade-Mark law went into effect on 
 April i, 1905. 
 
 The reader should understand clearly that the right to own 
 a trade-mark is not a creation of the statute, for the use of 
 trade-marks, and the recognized right of manufacturers to be 
 protected in their use, far antedate any specific trade-mark 
 legislation. 
 
 7
 
 8 
 
 Trade-Marks. 
 
 The intent of the statute is to systematize and codify trade- 
 mark practice. It provides a definite procedure for 
 The Act of the registration of trade-marks; lays down rules for 
 validity in marks; puts trade-mark litigation, when 
 registered trade-marks are the subject matter of the litigation, 
 within the jurisdiction of the Federal Courts; and makes every 
 trade-mark registered under the law a part of the public records 
 of the nation. But a trade-mark may be legally sound even if 
 not registered, just as a person may own real estate without 
 recording the title. 
 
 The ownership of trade-marks, like any other property right, 
 is recognized by the common law. The Supreme 
 Court of the United States has said: "The right 
 to adopt and use a symbol or device to distinguish 
 the goods or property made or sold by the 
 person whose mark it is, to the exclusion of use 
 by all other persons, has been long recognized 
 by the common law and the chancery courts 
 of England and of this country. It is a property 
 right for the violation of which damages may 
 be recovered in an action at law, and the 
 continued violation of it will be enjoined by 
 a court of equity with compensation for past 
 infringements." 
 
 Trade-marks, under the Act of 1905, are 
 registered in the United States Patent Office. 
 
 In case of litigation resulting over the right 
 to use any trade-mark, evidence of the registration of the mark 
 by one of the litigants puts the burden of proof upon the other. 
 In other words, the user of the unregistered trade-mark must 
 prove priority of use and ownership. This is often a very difficult 
 thing to do, especially in the case of trade-marks that have been 
 used a long time, for such proof must necessarily rest upon the 
 production of old labels, packages of the goods with the trade- 
 mark affixed, and the testimony of witnesses. 
 
 The owner of a registered trade-mark does not need any 
 evidence other than the public records of the Patent Office to 
 establish the date of his first use of the mark. 
 
 When a trade-mark is not registered in the Patent Office, 
 litigation concerning it does not come under the jurisdiction of 
 the Federal courts, unless the opposing parties are citizens of 
 different states. 
 
 On the other hand, all cases pertaining to registered trade- 
 marks fall within the field of Federal jurisdiction, irrespective of 
 the amount in dispute or the place of residence of the parties. 
 There is an obvious advantage in this, owing to the fact that an 
 injunction secured in one Federal Court will be enforced in all 
 such courts in any state. 
 
 The fee charged by the Patent Office, under the law, for 
 registering a trade-mark is ten dollars. This does not include 
 the attorney's fee, which must be paid by the applicant. 
 
 THE POM- 
 PEIAN WINDOW 
 SCREEN TRADE- 
 MARK.
 
 Trade-Names. 
 
 A certificate of registration remains in force for twenty 
 years, and it may be renewed, upon expiration, for like periods 
 of twenty years, upon payment of a renewal fee of ten dollars. 
 
 An individual or corporation 
 has a right to register a trade- 
 mark under the United States law 
 if the trade-mark for which regis- 
 tration is sought belongs to the 
 applicant and is used by him : 
 
 i st. In commerce among 
 
 REG U.S. PAT. OFF. 
 
 the several states: 
 and. Or, in commerce with ^ CELEBRATED UNDERWEAR 
 foreign nations; "0^3 M " POROUS "Tra "KNIT." 
 
 ^rd. Or, in commerce with TH is MARK SEEMS ALMOST DE- 
 the Indian tribes: SCRIPTIVE, BUT IT DOES NOT 
 "DESCRIBE THE GOODS. IT DE- 
 
 provided the owner of the trade- SCRIBES THE KNITTIN 
 mark resides within the territory c 
 
 of the United States (which includes all territory under United 
 States control), or has a business establishment situated in 
 United States territory, or resides in any foreign country 
 which affords, by treaty, similar privileges to citizens of the 
 United States. 
 
 Divested of legal verbiage, the main provisions of the Act, 
 so far as the features governing registration are concerned, may 
 be stated as follows: 
 
 A trade-mark A design or wording identical with a registered or known 
 
 is not regi- trade-mark owned and in use by another, and appropriated 
 
 treble if it is: to merchandise of the same descriptive qualities, or which 
 
 so nearly resembles a registered or known trade-mark 
 
 owned and used by another, and appropriated to merchandise of 
 
 the same descriptive qualities, as to deceive purchasers, or to be 
 
 likely to cause confusion in the mind of the public. 
 
 The insignia of the American National Red Cross Society. 
 , The flag or coat of arms of any foreign nation. 
 
 Any design or picture which has been adopted by a fraternal 
 society as its emblem. 
 
 A portrait of a living individual unless the application for registra- 
 tion is accompanied by the written consent of the individual whose 
 portrait is used. 
 
 Scandalous or immoral matter of any description. 
 
 The flag, or coat of arms, of the United States, or of any state, or of 
 any municipality, or any of the insignia thereof. 
 
 Any geographical name or term. 
 
 A misrepresentation of the quality, composition, character, origin, 
 or nature of the commodity with which it is used. 
 
 Any mark which consists merely in the name of an individual, 
 firm, corporation, or association, unless said name is written, 
 printed, impressed or woven in some particular or distinctive 
 manner, or is used in connection with a portrait of the individual.
 
 10 Trade-Marks. 
 
 Any arrangement of words or devices descriptive of the goods with 
 which they are used, or of the character or quality of such goods. 
 In other words, a trade-mark must not be an advertisement in the 
 ordinary sense of the word. 
 
 ,-j_ .....it Unlike any other trade-mark, already in use, and applied 
 
 is reeistrable to the same class of goods. It must not resemble the 
 
 if it is trade-mark of a competitor, or of a potential competitor, 
 
 to such an extent that the buying public is likely to be 
 
 deceived or confused by the resemblance. 
 
 The business name of a person or firm vhen written, printed, im- 
 pressed or woven in some distinctive manner, or in association with 
 a portrait, or in an autographic form. 
 
 Any trade-mark which has been in continuous and exclusive use 
 by the applicant since February 21, 1895. 
 
 An arbitrary symbol, or word, or words, or a combination of a 
 device and wording, not obviously descriptive of the commodity 
 to which it is to be applied. 
 
 Used in lawful trade. 
 
 Of such a character that it may be affixed, printed upon, woven, 
 sewed, branded or otherwise impressed upon the product with 
 which it is used, or upon the package or container of the product. 
 
 The right to register trade-marks is limited to individuals 
 and corporations. 
 
 Under the United States law an association cannot possess 
 Association a trade-mark, as exclusive ownership and specific 
 trade-mark* origin are essential attributes of validity. 
 
 The letters "A-A. L," meaning Anti- Adulteration League, 
 were refused registration as a trade-mark for flour on the ground 
 that the mark did not represent origin, but membership in an 
 association. The applicant was a voluntary association of flour 
 manufacturers. It was held that an association cannot be the 
 "owner" of a trade-mark within the meaning of the statute. 
 
 Some states have enacted laws prohibiting the unauthorized 
 use of the labels of trade-unions and similar associations. These 
 laws are not trade-mark statutes. They are based on the 
 broader principle of unfair business competition. 
 
 It is the general opinion, we believe, of trade-mark authorities 
 that the lack of provision in our law for 
 association trade-marks is a defect that 
 should be remedied as soon as possible. It 
 is a noteworthy fact that most of the other 
 great nations recognize association marks. 
 
 An interesting example of an associa- 
 tion trade-mark is that of the Irish In- 
 dustrial Development Association (re- 
 produced on this page). This association 
 has a membership of about five hundred 
 Irish manufacturers. Its use indicates 
 THE IRISH NATIONAL that the merchandise to which it is affixed 
 is of Irish manufacture; in other words, 
 it is indicative of geographical origin. The Irish trade-mark
 
 Trade-Names. 11 
 
 has been registered in Great Britain under the British Trade- 
 Mark Act of 1905. 
 
 An American by the name of D. B. 
 Barrett attempted to register this mark in 
 the United States Patent Office under his 
 own name. This fact came to the atten- 
 tion of the Irish Industrial Development 
 Association, and some correspondence re- 
 lating to the matter passed between Mr. 
 John Redmond, the leader of the Irish 
 National party in Parliament, and President THE OMAHA TRADE- 
 Taft. As the law now stands this Irish CHOSEN FROI^ 764 V DE- 
 trade-mark cannot obtain in the United SKINS SUBMITTED. THE 
 States the protection that registration DESIGNER RECEIVED A 
 might give. M R AR E K WILL 'BE E* 
 
 Within the last few years several PRODUCED ON ALL 
 American communities have adopted trade- STATIONERY OP OMAHA 
 marks, or labels. The Omaha trade-mark WU^^'B'E AFFIXED"* 'TO 
 is reproduced here as an example of this ALL OMAHA-MADE 
 class of marks. 
 
 There is a genuine need for an amendment to the law that 
 would give this class of marks the right of registration. 
 
 A provision of the Act of 1905 legalized all trade-marks that 
 had been in exclusive use by the applicant for ten 
 years prior to the passage of the act, and this pro- 
 vision applies even to trade-marks of ten years' 
 standing that, because of their character, could not be registered 
 under the act. The wording of the act dealing with this subject 
 is as follows: 
 
 "Nothing herein shall prevent the registration of any mark 
 used by the applicant or his predecessors, 
 or by those from whom title to the trade- 
 mark is derived, in commerce with foreign 
 nations or among the several states, or 
 with the Indian tribes, which was in actual 
 and exclusive use as a trade-mark of the 
 applicant or his predecessors from whom 
 he derived title for ten years next pre- TBREDUNDERTOE^N- 
 ceding the passage of this act." YEARS' CLAUSE. 
 
 A manufacturer cannot register a trade-mark and file it away 
 with the intention of using it at some future time. A condition 
 of validity is that the mark must not only belong to the applicant, 
 but must be "used by him in lawful trade." An intention to use 
 a mark is not sufficient. The use in trade must antedate the 
 application for registration. The letter of the law is complied 
 with if a single package of the goods with the trade-mark affixed 
 is sold in interstate or foreign commerce. 
 
 Those who intend to adopt trade-marks should 
 Clarification keep in mind that the use of a trade-mark is limited 
 ' strictly to one class of merchandise, which must be 
 the class for which it has been registered. 
 
 Coward 
 Stoe
 
 1.2 
 
 Trade-Marks. 
 
 all 
 
 For purposes of classification the Patent Office has separated 
 merchandise into forty -nine general classes, as follows: 
 
 I. 
 
 Raw or partly prepared ma- 
 
 24. 
 
 
 terials. 
 
 25. 
 
 2. 
 
 Receptacles. 
 
 
 3- 
 
 Baggage, horse equipments, port- 
 folios, and pocketbooks. 
 
 26. 
 27. 
 
 4- 
 
 Abrasive, detergent, and polish- 
 
 *l. 
 
 
 ing materials. 
 
 29. 
 
 5- 
 
 Adhesives. 
 
 
 6. 
 
 Chemicals, medicines 
 
 30 
 
 
 and pharmaceutical prepara- 
 
 3i- 
 
 
 tions. 
 
 32. 
 
 7. 
 8. 
 
 Cordage. 
 Smokers' articles, not including 
 
 33- 
 
 
 tobacco products. 
 
 
 9- 
 
 Explosives, firearms, equipments, 
 
 34- 
 
 
 and projectiles. 
 
 
 0. 
 
 Fertilizers. 
 
 3^ 
 
 
 Inks and inking materials. 
 
 36- 
 
 2. 
 
 Construction materials. 
 
 37- 
 
 3. 
 
 Hardware and plumbing and 
 
 38. 
 
 4- 
 
 steam-fitting supplies. 
 Metals and metal castings and 
 
 39- 
 
 
 forgings. 
 
 40. 
 
 r 
 
 Oils and greases. 
 
 41. 
 
 f, 
 
 Paints and painters' materials. 
 
 
 7. 
 
 Tobacco products. 
 
 42. 
 
 8. 
 
 Vehicles, not including engines. 
 
 43- 
 
 9. 
 
 Linoleum and oiled cloth. 
 
 
 0. 
 
 Electrical apparatus, machines, 
 
 44- 
 
 
 and supplies 
 
 45- 
 
 I. 
 
 2. 
 
 Games, toys, and sporting goods. 
 Cutlery, machinery, and tools, 
 
 46. 
 47- 
 
 and parts thereof. 
 Laundry appliances and ma- 
 chines. 
 
 Locks and safes. 
 
 Measuring and scientific ap- 
 
 pliances. 
 
 Horological instruments. 
 Jewelry and precious-metal ware. 
 Brooms, brushes, and dusters. 
 Crockery, earthenware, and 
 
 porcelain. 
 
 Filters and refrigerators. 
 Furniture and upholstery. 
 Glassware. 
 Heating, lighting, and ventilating 
 
 apparatus, not including 
 
 electrical apparatus. 
 Belting, hose, machinery pack- 
 
 ing, and non-metallic tires. 
 Musical instruments and supplies. 
 Paper and stationery. 
 Prints and publications. 
 Clothing. 
 Fancy goods, furnishings, and 
 
 notions. 
 
 Canes, parasols, and umbrellas. 
 Knitted, netted, and textile 
 
 fabrics. 
 
 Thread and yarn. 
 Dental, medical, and surgical 
 
 appliances. 
 
 Beverages, non-alcoholic. 
 Foods and ingredients of foods. 
 Wines. 
 
 Malt extracts and liquors. 
 Distilled alcoholic liquors. 
 Merchandise not otherwise 
 
 classified. 
 
 (Note: Class 18 was abolished Feb. 24, 1909.) 
 
 An applicant for registration must specify not only the general 
 class of merchandise in connection with which he intends to use 
 his trade-mark, but must state also specifically the articles in 
 that class upon which he has used the trade-mark he seeks to 
 register. 
 
 For instance, a manufacturer who might apply for the registra- 
 tion of "Pendennis," as a trade-mark for smok- 
 ing tobacco to select a word at random would 
 find that it would not be satisfactory to the 
 Patent Office to state in his application that the 
 mark was being used in connection with Class 1 7 
 "Tobacco products." He would be required 
 J to state that his mark was being used on "smok- 
 * ing tobacco." After registration had been 
 granted the Patent Office would not register 
 another "Pendennis" trade-mark in that class 
 of merchandise, to be used on cigars, for instance, 
 for another applicant. Nor would the first 
 registrant be obliged to apply for a new registra- 
 tion if he should desire to extend the use of his 
 trade-mark to cigars, or chewing tobacco, or any 
 
 ELECTRIC COM- 
 PANY. AN EX- 
 CELLENT USE OF 
 INITIALS AS A 
 TRADE-MARK.
 
 Trade-Names. 13 
 
 other tobacco product. The law would protect him in the use 
 of the mark for all articles of that class, but the rules of the Patent 
 Office require applicants to give full particulars not only as to 
 class of merchandise, but the specific articles on which the mark 
 has been used. 
 
 A result of the principle of trade-mark practice which limits 
 the use of a mark to one class of merchandise is to be seen in the 
 same name being used as a registered mark for unrelated articles. 
 
 The name "Pompeian, " for instance, is used as a trade-mark 
 for a face cream and also for wire netting for window screens; 
 ' ' Republic ' ' is used for automobile tires as well as several other 
 articles in different classes; "Packard" for pianos and auto- 
 mobiles ; and there is an " Ideal ' ' hair-brush and an ' ' Ideal ' ' 
 fountain pen. 
 
 The law directs that the owner of a registered trade-mark 
 
 affix, print or impress upon such trade- 
 Registration mark wherever it is used, or in close 
 involves obli- enough proximity to it to be easily seen, 
 partoTthl the words, " Registered in U. S. Patent 
 registrant Office," or the shorter abbreviated form, 
 
 viz., " Reg. U. S. Pat. Off. " The trade- 
 mark of Baker's Cocoa the Baker chocolate girl 
 reproduced on this page, shows how this should be 
 done. 
 
 If this notification is not used in connection with 
 the trade-mark, the owner of the mark, in infringe- 
 ment proceedings against an unauthorized user, 
 cannot collect damages unless he can prove that he 
 gave the other party formal notice, and that the 
 unauthorized use of the mark was continued after 
 notice. 
 
 A trade-mark is not merely an advertising symbol. It is an 
 .. essential of trade-mark validity that the mark be 
 
 affixed to the goods. A device, or word, or phrase, 
 or picture that is used only in circulars, advertisements, or on 
 signs or letter-heads is not a trade-mark and cannot be pro- 
 tected under the trade-mark laws. (It should be stated here 
 that the unauthorized use of one other than the owner of such a 
 device or wording may sometimes be prosecuted under the com- 
 mon law the law of unfair business competition.) 
 
 A trade-mark may be printed, pasted, written, stamped, 
 stenciled, branded, sewed, or woven upon the article with which 
 it is used. In cases where it is not practicable to affix the mark 
 upon the merchandise itself it must be affixed to the container. 
 
 Rules of the Patent Office 
 
 We have not the space here to go into a detailed description 
 of the procedure of the Patent Office in considering trade-mark 
 applications. This procedure, especially in cases where there is 
 some doubt as to the validity of the mark, is highly complicated,
 
 14 
 
 Trade-Marks. 
 
 and can be followed successfully only by an attorney experienced 
 in trade-mark practice. 
 
 The rules of the Patent Office require applications for registra- 
 tion of trade-marks to be made in a certain conventional form. 
 A drawing of the mark, of a certain specified size, must be sub- 
 mitted with the application. Proofs of the mark, as actually 
 used, must also be forwarded as exhibits in the case. 
 
 If, on preliminary examination, the mark appears to be 
 entitled to registration, a reproduction of it is printed at least 
 once in the Official Gazette of the Patent Office. This publica- 
 tion must be at least thirty days prior to the date of registration. 
 The purpose of the publication of the mark in the Official 
 Gazette is to allow opposition 
 from any one who thinks its 
 registration would conflict with 
 his rights. Opposing an applica- 
 tion is technically called an "op- 
 position." An opposition serves 
 to delay registration until the 
 examiner in charge of inter- 
 ferences considers the evidence 
 submitted. 
 
 Under certain conditions, re- 
 jected applications may, on appeal, 
 be taken up to the Commissioner 
 of Patents. 
 
 The number of rejected ap- 
 plications is very large. Under 
 the law of 1905, the total number 
 of applications up to May, 1912, 
 was 62,500. 
 
 The total number of registrations under the law is around 
 42,000. This means that more than 20,000 applica- 
 Number of tions have been rejected in seven years. In other 
 Applications words, about two out of every three applications 
 pass the gauntlet of Patent Office scrutiny, inter- 
 ference and opposition, and are registered. 
 
 Many of the defective applications fail because of a lack of 
 competent advice in devising the proposed trade-marks, as well 
 as because of inexperience in prosecuting the applications.
 
 CHAPTER III 
 Analysis of the Requirements for Registration 
 
 IN the preceding chapter we traced an outline of the main 
 provisions of the Act of 1905 the Trade-Mark Law. We 
 intend to take up in this chapter each clause of the law ap- 
 plying to registration, and show how it works in actual practice. 
 Great care should be taken by an applicant for registration 
 A trade-mark f a trade-mark, or his attorney, to avoid conflict 
 will not be with a trade-mark that is already registered or 
 registered if already in use (even if not registered) , provided that 
 In designer lt is applied to the same class of merchandise as that 
 wording with of the applicant. Lack of caution in this respect 
 a known has caused interminable annoyance and litigation, 
 ady'Tn with consequent financial loss. 
 byan- In considering the question of conflicting marks, 
 
 other and the Patent Office and the Federal courts hold that 
 good*' of the the test of similarity is whether the marks are 
 
 m e d e - sufficiently alike in appearance or wording, or sound, 
 c r i p t i r e to mislead the average individual. 
 itreiembiesa The wor d "Autola" as a trade-mark for cigars 
 
 known trade- was held not registrable owing to a prior registra- 
 marksoclose- ^ion of the word "Auto-do" for the same class of 
 merchandise. In this instance, registration was 
 refused on the basis of resemblance in sound as well 
 as in appearance. 
 
 "Lady Lee" having been registered as a trade-mark for shoes, 
 "Lady Like" was refused registration in 
 
 the same class. c^ NJ I I r~ "T* IT V 
 
 "Certosa" as a mark for a brand of ^ IN U O I L A 
 
 flour sufficiently resembled "Ceresota" ONE OF THE IN _ 
 
 already registered to cause its rejection. NUMERABLE WORDS 
 
 "Powellton" failed registration as a * N ' N M P AR T K N "* 
 trade-mark for coal, on the ground that BEL?S 
 another company's coal already bore the 
 registered mark "Powell's Run." 
 
 "Sodafoam" was considered close enough in resemblance to 
 "Sea Foam" (already registered in the same class) to cause its 
 rejection. 
 
 " Uno " having been registered as a trade-mark for a medicine, 
 an application for the registration of "Ino" in the same class 
 was refused. 
 
 Registration is refused a trade-mark when it consists of 
 words describing a symbolic or pictorial device which has already 
 been registered; or vice versa, when the wording has been 
 registered first, registration for the symbol is refused. For 
 
 15
 
 16 Trade-Marks. 
 
 instance, the Patent Office has held that a trade-mark consisting 
 of a conventional representation of a bouquet of flowers is 
 identical in meaning with another mark consisting of the word 
 "Bouquet," applied to the same class of merchandise. In either 
 case, the goods would be called "Bouquet Brand." 
 
 Agreement among owners of conflicting marks is not recog- 
 nized by the Patent Office. An interest- 
 ing example of this occurred in the 
 attemp t to register the word " N ay asse tt . " 
 The word "Nassac" had already been 
 registered for the same class of goods 
 and the registration of "Nayassett" was 
 refused on the ground of similarity. 
 Soon afterward, the owner of the 
 *' Nayassett" mark made a new applica- 
 CRYSTAL DOMINO SUGAR, tion, accompanied by the formal con- 
 NOTE THAT THE REGisTRA- sent o f ^ e owners of the "Nassac" 
 R I EsEN?rTioN PI o C F TO A RI Do.NnKo" mark - The Commissioner of Patents 
 OR MASK, INCLUDES THE held that the law did not provide for 
 EXCLUSIVE USE OF THE agreement between owners of con- 
 flicting marks, and the registration of 
 "Nayassett" was refused accordingly. 
 
 About two years ago a manufacturer in a Middle Western 
 city became interested in a new metal polish and decided to put 
 it on the market. After long consultation with advertising men 
 and salesmen, a name was selected. This name was suggestive 
 and short, with a snap to it, that made it stand out in the 
 memory. Many thousands of labels were ordered and packages 
 of the article were given to the traveling salesmen of the concern 
 to be used in getting orders from retailers. Booklets and 
 literature had been written and mailed, and the business was 
 beginning to take shape, when, to the surprise of the manu- 
 facturer and his associates, his application for trade-mark 
 registration was rejected by the Patent Office for the reason that 
 the mark had already been registered. Then followed a hasty 
 trip to a trade-mark attorney and a search of the Patent Office 
 records was made. Investigation of the register showed that 
 the same name had been registered by an Eastern concern for 
 a metal polish some years ago. About this time a letter arrived 
 from the attorney of the Eastern firm, with a statement to the 
 effect that the owner of the trade-mark considered this un- 
 authorized use of the mark an infringement and intended to take 
 legal action in the matter. A month or two was spent in trying 
 to make some arrangement with the Eastern concern, with the 
 final result that the trade-mark had to be dropped, and some- 
 thing new devised. 
 
 In this case a full year was lost, and a considerable amount of 
 money was wasted, by reason of the failure of this manufacturer 
 to have a search made of the Patent Office records. He made 
 the mistake of considering the matter of trade-mark registration a 
 small detail, and trying to attend to it himself. A competent at- 
 torney would have saved his fee a thousand times over in this case.
 
 Trade-Names. 17 
 
 This prohibition is not covered by the trade-mark law, but 
 is one of the provisions of the Act of Congress in- 
 A trade-mark corporating the American National Red Cross 
 consisting of (approved Jan. 5, 1905). The act of incorporation 
 of the'Tmer* states that it shall not be lawful for any person or 
 ican National corporation to use in trade, or for purpose of ad- 
 Red Cross is yertisement, "the sign of the Red Cross" or "any 
 fa-able' 68 '*" insignia colored in imitation thereof," unless such 
 person or corporation was entitled to the use of such 
 insignia at the time of the passage of the act. 
 
 This exception, which was intended 
 to safeguard the interests of those who 
 had long used the Red Cross sign as a 
 trade-mark, covers the Red Cross mark 
 of the well known druggists' specialty 
 house of Johnson & Johnson, the Red ANOTHER EXAMPLE OP A 
 Cross labels used on a brand of shoes ? E ;" A * K COINED' ' WORD 
 made by Krohn, Fechheimer& Company MADE FROM "TEXAS" AND 
 of Cincinnati, the Red Cross mattress "COMPANY." 
 manufactured by a Boston concern, and a few other users of 
 this device. 
 
 The law, as it stands, is rigidly enforced in regard to all new 
 trade-marks containing Red Cross devices. 
 
 An unusual argument was made the basis of an application 
 for registration of a label for a cough syrup, on which the emblem 
 of the Red Cross was printed, accompanied by the words " Red 
 Cross." When registration was refused, the applicant sought 
 to amend the label by striking out the Red Cross emblem, while 
 leaving the words intact. He argued that the Red Cross in- 
 corporation act prohibited only the use of the "sign of the Red 
 Cross" and not the words. The application was rejected on 
 the ground that it was an attempt to evade the spirit of the law. 
 A trade-mark is essentially an exclusive possession. When 
 it ceases to be exclusive, it ceases to be a trade- 
 Trade- marks mark, in the true sense. It is apparent, therefore, 
 serf tfve d of that an ordinary word, descriptive of the goods with 
 the goods which it is used, cannot be set aside as the exclusive 
 with which property of any manufacturer, to the detriment of 
 se*/ o* "of t ners producing merchandise of the same character. 
 thVqualtty or The wording of the law on this point is clear, and 
 character of the Patent Office is strict in its interpretation. But 
 are'notVe^iV despite this condition, many applications, destined 
 trabTe* * "~ to be rejected, are made every year for the registra- 
 tion of descriptive marks. We give here a few 
 examples of trade-marks, refused registration on the ground of 
 being descriptive. 
 
 The word "Kantleek" was refused registration as a trade- 
 mark for a hot-water bag. The Patent Office examiner held 
 that the word was composed of "Can't" (misspelled "Kant") 
 and "Leak" (misspelled "Leek"), and that it was intended to 
 convey the idea that this particular bottle could not leak. The
 
 18 Trade-Marks, 
 
 HUJEROID 
 
 attorney for the applicant presented an argument to the effect 
 that the word was composed of two German words, "Kant" 
 and "Leek," that had meanings 
 quite different from the English 
 words with the same sound. This 
 contention was too subtle for the 
 Patent Office to grasp, and regis- 
 
 ALTHOUGH THIS MARK HAS BEEN ****? WaS refused 
 
 REGISTERED IT HAS BEEN OB- i he word Naphtha, used as 
 GLARED A DESCRIPTIVE WORD BY A a name for a soap with naphtha 
 * s an ingredient, was held to be 
 descnptive, and therefore not 
 registrable as a trade-mark, to the exclusion of the goods of 
 other manufacturers, although the owner had advertised it 
 extensively. 
 
 "Mello" as a mark for chewing-gum was considered descrip- 
 tive, being simply a misspelling of the word "mellow." 
 
 Many applicants for trade-mark registration seem to think 
 that the mere misspelling of a descriptive word, or some fanciful 
 device in lettering, will remove the word from the descriptive 
 class. This is a belief that has no basis in fact, for no matter 
 how a word is spelled or lettered, it is descriptive if it conveys 
 information of a descriptive character. 
 
 For instance, the word " Bestok" was rejected as a mis- 
 
 spelling of "Best Stock"; "Unxld" as a misspelling of "Un- 
 excelled " ; " Kid Nee Kure " as a misspelling of " Kidney Cure " ; 
 and "Pittsburgh Pump," printed with hyphens between the 
 letters P-I-T-T-S-B-U-R-G-H P-U-M-P was refused registra- 
 tion as being both descriptive and geographical. 
 
 The courts have held that the word " Elastic," used to desig- 
 nate drawers having an elastic seam, 
 is descriptive, but the same word is 
 used in a fanciful sense and is valid as 
 a trade-mark when applied to sectional 
 bookcases. 
 
 A manufacturer of hooks and eyes 
 applied for registration of the phrase 
 THE C mJs H pEL'LiNG AD oF MA r R H K E " Rust ? Never!" as a trade-mark. 
 PHRASE "YOUNG FELLOW" Registration was refused, as the mark 
 T . s was held to be descriptive, indicating 
 iTs LT EliGiBiLiTY TR Fo^t E 'REGIS- that the hooks and eyes would never 
 
 TRATION WOULD BE THE TUSt. 
 
 Arbitrary numbers are obviously 
 
 ORDINARY TYPE registrable as trade-marks, but the 
 
 applicant must be prepared to establish 
 
 his contention that the numbers are really arbitrary and meaning- 
 less. In certain trades numbers are used to designate grades of 
 a product common to the trade, and, in that case, the grade 
 numbers are descriptive by common usage. A plow manufacturer 
 applied for registration of the symbols "A No. i," "No. i " and 
 "AX No. i, as trade-marks for plows. It was shown, upon
 
 Trade-Names. 19 
 
 examination, that these symbols are used by many plow makers 
 to designate grades, and they were, therefore, ordinary descrip- 
 tive trade terms. Registration was refused. 
 
 The prohibition against trade-marks descriptive of the 
 character or quality of the product applies with equal force to 
 trade-marks descriptive of the container or package. A flour 
 manufacturer put up his product in barrels of a distinctive 
 character white and dark staves alternating. He applied for 
 registration of a mark consisting of a pictorial representation of 
 the striped barrel. This mark was considered descriptive, and 
 registration was refused. 
 
 A Philadelphia candy manufacturer applied for registration of 
 the word "Fussy," as used in the phrase "A fussy package for 
 fastidious folk." The Patent Office held that the word "fussy," 
 as used in the phrase, was merely a descriptive term an 
 adjective qualifying "package" and registration was accord- 
 ingly refused. 
 
 The word "Spearmint," being a descriptive word, was re- 
 fused registration as a trade-mark for Wrigley's Spearmint 
 chewing gum, but the representation of a spear was considered 
 registrable. 
 
 Various applicants have sought registration for trade-marks 
 that, while they are meaningless to English-speaking people, are 
 
 'ly descriptive terms take 
 
 really descriptive terms taken from foreign languages. Such 
 words are not registrable, for the Patent Office makes no dis- 
 tinction between languages. 
 
 The phrase "Lait de Violettes," meaning in French "Milk of 
 Violets," was rejected as a mark for per- 
 fumery. iii 
 
 " Elegancia, " the Spanish equivalent 
 of the English word "Elegant," was re- 
 fused registration as a trade-mark for IT IS NOT GENERALLY 
 
 KNOWN THAT THIS IS AN 
 Cigars. ARBITRARY WORD REGIS- 
 
 A descriptive word in a language as TERED AS A TRADE-MARK. 
 little known as Esperanto is neverthe- 
 less unregistrable. "Saniga" means "Sanitary" in Esperanto, 
 and, it has been accordingly refused registration on the ground of 
 being a descriptive term. 
 
 In considering the question of descriptive marks, the differ- 
 
 Suggestiveness is a highly desirable quality in a trade-mark, and 
 
 "STIIBO 
 
 ence between description and suggestion should not be overlooked. 
 
 lighly desirabl 
 
 many excellent and legally valid marks 
 are suggestive. 
 
 The name "Hydegrade," a regis- 
 tered trade-mark, applied to a well- 
 known fabric, is suggestive of high 
 quality, but it is not descriptive. It MA'RK." "ANOTHER" EXAMPLE 
 is a coined word, composed of the P THE LARGE NUMBERS OF 
 elements "Hyde" (name of owner) and 'KS CONSISTING OF WORDS 
 "Grade." 
 
 Another example of an excellent suggestive mark is 
 "Rubdry" applied to towels.
 
 20 Trade-Marks. 
 
 Pictorial marks are often highly suggestive without being 
 descriptive. The Baker Chocolate girl, depicted in the act 
 of serving a cup of cocoa, suggests daintiness, taste, beverage, 
 quickness in serving, and refreshment. 
 
 The word "Ideal," used in connection with a fountain 
 pen, is considered fanciful, and not descriptive. It would 
 seem that a very fine distinction is made here, as this word 
 is an ordinary descriptive word, commonly used to express 
 a state of perfection, as in the expression "An ideal day." 
 It may be said, on the other hand, that nothing ever reaches 
 an ideal condition, and, in that sense, the mark may be con- 
 sidered fanciful. 
 
 Geographical names, like descriptive terms, are the common 
 property of all who use the language. No one 
 jcal g narn* P or manu f ac turer can appropriate such a term for his 
 term"*!* 1 *! own exclusive use as a trade-mark unless he uses it 
 registrable as in an arbitrary or fanciful sense. The only excep- 
 a trade-mark ^j ons ^ o this principle are to be found in the case of 
 manufacturers who have adopted geographical terms as their 
 trade-marks and have used them so long, without opposition or 
 protest, that they have acquired a common law right to their 
 exclusive use. 
 
 Among the geographical marks rejected by the Patent Office 
 are the following: 
 
 "Yale," applied to hosiery; " Cloverdale," for canned fruits 
 and vegetables; " Red River Special" as a mark 
 for agricultural implements; and "Aurora," on 
 shoes the name "Aurora" being applied to 
 localities in at least twenty states of the 
 Union. 
 
 It would seem in the light of common-sense, 
 that in the last-named case (that of "Aurora") 
 the ruling of the Patent Office is on a very narrow 
 basis indeed. The word "Aurora" has no 
 eographical significance to the average person, 
 t calls up a mental image of the dawn. If this 
 THE case . an d some others like it, are considered valid 
 USE OP A sue- precedents, every applicant for trade-mark 
 GESTIVE SYMBOL registration must be prepared to submit his ap- 
 MARK T USED D IN plication to the stern criticism of the Post Office 
 CONNECTION Directory, with its catalogue of fifty thousand or 
 WITH BAY STATE mO re names. (It is interesting to observe that, 
 SENT COATING"" in a later case - the Pa tent Office allowed the 
 registration of "Aurora" as a trade-mark for oils, 
 lard, syrup and honey. Aspegren & Co., ex parte, 100 Official 
 Gazette, 684.) 
 
 "Tabasco" was refused registration as a mark for a sauce on 
 the ground that it is a geographical term, Tabasco being the 
 name of a state in Mexico. 
 
 "French" was rejected as a trade-mark for paint. On the 
 other hand, "Celtic" has been registered as a trade-mark for tea
 
 Trade-Names. 21 
 
 The word "Celtic" has reference to a race, of which the Irish are 
 only one branch. It is not applied to any particular country or 
 section of the globe. 
 
 The map of the United States has been refused registration 
 as a trade-mark for sugar. 
 
 "American Lady" was refused registration on the ground 
 that the word "American" is geographical. 
 
 When a geographical term, applied to merchandise, is used in 
 a fanciful or arbitrary sense-^that is, 
 when it conveys no deception in regard 
 to the origin of the merchandise it may 
 be registered as a valid trade-mark. 
 
 "Dublin" is a valid trade-mark for 
 soap, although the soap is made in 
 America. In the case concerning this 
 
 mark it was shown that it is the practice ^..\ JGLAXD^NFECT 
 of soap manufacturers to call their BRy COMPANY. THIS i 
 products "Limerick," "Scotch," COINED WORD, MADE 
 ; Irish," etc and that the buying public -OM . .T 
 is aware of the fanciful use of these CERN - S NAME . 
 names and is not deceived thereby. 
 
 "Vienna," applied to bread, is considered valid. No one 
 expects bread made in Vienna to be sold in America, consequently 
 no one is deceived by this fanciful use of the word. 
 
 "Gibraltar" is registered as a trade-mark for belting. It is 
 true that Gibraltar is a geographical name, but its suggestive- 
 ness in regard to belting conveys the mental picture of strength, 
 rather than the idea of origin. 
 
 The student of trade-mark conditions, having learned how 
 rigorously the Patent Office interprets the section of the law 
 applying to the registration of geographical terms, will perhaps 
 be puzzled by the number of trade-marks of this class which seem 
 to be valid and well-established. 
 
 The explanation of that is that many geographical names, 
 which could not have been protected 
 ab origine as trade-marks, have ac- 
 quired a secondary meaning by long 
 
 and exclusive use by a particular manu-' 
 
 facturer. Such marks fall within the Bait Rods 
 
 protection of the common law. 
 
 Some of these common law marks are A GEOGRAPHICAL 
 registered under the ten years' clause. ^E DER THE """ 
 
 Among well - known geographical 
 
 trade-marks may be mentioned "Bristol" applied to fishing- 
 rods; "Kalamazoo" applied to stoves; "Manhattan," the name 
 of a brand of shirts; and "Elgin," " Waltham, " and " Illinois," 
 the names of watches. 
 
 The U. S. Sanitary Manufacturing Co. was refused registra- 
 tion for a trade-mark consisting of the letters " U.S. " with a back- 
 ground of a shield similar to that of the conventional United 
 States shield.
 
 22 
 
 Trade-Marks. 
 
 A trade-mark 
 which con- 
 sists merely 
 of the name 
 of an individ- 
 ual, firm or 
 corporation 
 can be regis- 
 tered only on 
 certain con- 
 ditions 
 
 The coat of arms of the United States is not registrable as 
 A trade-mark a trade-mark even tinder the ten years' clause. It 
 must not con- has been held that its use in that connection is 
 or* o at of opposed to public policy. (American Glue Corn- 
 arm* or other pany, ex parte, 120 Official Gazette, 324.) 
 insignia of The registration of the coat of arms of the state 
 
 States "or "of ^ Maryland was refused registration, application 
 any state, or having been made under the ten years ' clause. 
 municipality, In another case, registration of a simulation of 
 
 fa'tionthe'r'e'of the snield of the United States, with alternate red 
 
 and white stripes, was refused registration. 
 It would seem at first consideration that if the object of using 
 a trade-mark is to indicate the origin of a com- 
 modity, the most effective mark would be simply the 
 maker's name "James Brown" for goods made by 
 James Brown, and "William Jones" for goods made 
 by William Jones. 
 
 This logic would be indisputable if there were a 
 different family name for every individual. But 
 names are limited in number there are eleven 
 pages of Smiths in the New York City Directory 
 and every man has a natural and inalienable right 
 to use his own name. It is obvious that a family name lacks 
 the exclusiveness that is an essential quality of a legitimate 
 trade-mark. 
 
 But a personal name may be written, or printed, or stamped 
 in such a way that the peculiarities 
 of writing, or printing, or design, 
 may dominate the name and be 
 the most conspicuous feature of 
 the combination. 
 
 The trade-mark Act provides 
 that "no mark (shall be regis- 
 tered) which consists merely in 
 the name of an individual, firm, corporation, or association, not 
 written, impressed or woven in some particular or distinctive 
 manner, or in association with a portrait of the individual." 
 In this clause the framers of the Act have endeavored to put a 
 logical restriction on the injudicious use of personal names as 
 trade-marks and the endless 
 litigation that has always re- 
 sulted from this practice. 
 
 The names of historical 
 personages (not living) may be 
 registered as trade-marks, but 
 the name of a living person 
 cannot be used without his 
 consent. 
 
 The phrase "Gibson Girl" 
 as a mark for shoes was re- 
 fused registration, as the word " Gibson " obviously referred to 
 
 THIS TRADE-MARK OF A JELLT 
 
 POWDER IS A COINED WORD, MADE 
 BY SPELLING THE PROPRIETOR'S 
 NAME "HANSEN" BACKWARDS 
 
 STATUTE THIS WAV OF PRESENTING 
 THE NAME "GILLETTE" IS CONSIDERED 
 DISTINCTIVE. NOTE THAT THE DEVICE 
 DOMINATES THE NAME, AND Pl'TS IT 
 INTO A POSITION OF RELATIVELY 
 SECONDARY IMPORTANCE. 
 
 Charles Dana Gibson, a living artist.
 
 Trade-Names. 
 
 In case of the registration of names of individuals, firms or 
 corporations the restriction of the law that the name must be 
 shown in some "particular or distinctive manner" has been 
 interpreted to mean a presentation of the name in such a 
 form that the peculiarities of lettering, or writing, or of an 
 accompanying device are so pronounced that they dominate 
 the name and throw it into a position of secondary importance. 
 The meaning of this clause is best shown by means of examples 
 of proper names, registered and used as trade-marks. A 
 number of trade-marks of this character may be found in this 
 book. 
 
 Many portraits of living persons are used as trade- 
 marks notable among them being the face of W. L. Douglas, 
 
 . , shoe manufacturer; and the 
 a lfvk a indi. portrait of Thomas A. Edison, 
 vidual is not used in connection with his 
 ^* facsimile signature, as a trade- 
 th'e mark for Edison phonographs. 
 Among historical char- 
 
 combined in a trade-mark for 
 cigars; the face of Benjamin 
 
 . PT. OFF. 
 
 THIS PORTRAIT OF 
 BENJAMIN FRANKLIN 
 IS THE TRADE-MARK. 
 OF THE SATURDAY 
 EVENING POST. 
 
 application is 
 accompanied 
 
 fafn th c e on^ent of Robert" Burns, the poet, are 
 
 of the person 
 whose por- 
 trait is used p fankHn ^ uged as a lfade _ 
 
 mark for the Saturday Evening Post, and 
 will be found printed on the editorial page 
 of each issue; Bismarck is a name for 
 collars; Napoleon is used in connection 
 with a brand of flour; and "Bob " Ingersoll 
 is the trade-mark of a cigar. 
 
 It is a definite principle of the common 
 law that fraud vitiates any transaction 
 that it touches. A trade-mark that is deceptive and misleading 
 cannot be protected, no matter if its registration should be 
 accomplished. 
 
 " Knights of Labor" was refused registration as a trade-mark 
 
 for whiskey, as the evident intent of the mark was 
 
 A trade-mark to mislead purchasers into a belief that the whiskey 
 
 tra'tffeT/'i't was produced by the Knights of Labor, a labor 
 
 conveys in organization. 
 
 any way a A similar case is exhibited in the attempt to 
 tatfon P of 8 the re gister the name "Masonic" as a mark for cigars. 
 article Registration was refused. 
 
 The name "Malt Myrrh" was refused registra- 
 tion as a trade-mark for malt liquors when it was shown that the 
 liquors did not contain myrrh. 
 
 The name "Old Country Soap, " used in connection with soap 
 in such a way as to lead purchasers to believe that the soap was 
 manufactured in Europe, was held by the court in the case of 
 Wrisley v. Iowa Soap Company to be deceptive, and protection 
 against infringement was refused.
 
 24 Trade-Marks. 
 
 A false representation on a trade-mark to the effect that the 
 article is patented when it is not, is sufficient to vitiate the trade- 
 mark. 
 
 A trade-mark registration does not protect when it is used on 
 an article different in character, or com- 
 position, or origin, from that for which 
 it was registered. This principle is very 
 important. A manufacturer cannot do as 
 he pleases with his trade-mark without 
 regard to the rights of the public. If the 
 article for which it was registered is changed 
 essentially in composition, or in purpose, 
 the trade mark ceases to be of value. 
 Trade-marks under the United States law 
 are always specific and associated with a 
 
 certain definite article, and not with the proprietor's general 
 business. 
 
 In Great Britain and Canada there are general trade-marks, 
 which a manufacturer may use on any article he makes, no matter 
 to what diverse classes these articles belong. 
 
 A trade-mark which is technically a valid mark, will be 
 
 refused registration if, in the opinion of the Patent 
 
 U *not "*! Office, its registration would be opposed to public 
 
 trable if its policy. A few examples will show what we mean. 
 
 registration The phrase "Ask the Revenue Officer" was re- 
 
 Tgainst public jected as a mark for whiskey. The Patent Office 
 
 policy held that this mark, appearing on bottles or 
 
 barrels, would lead the public to believe that the 
 
 contents had the indorsement of officers of the government. 
 
 For a similar reason the word "Government" was refused 
 registration as a mark for loose-leaf binders. 
 
 The name of a living Ex- President cannot be registered with- 
 out his written consent (as in the case of any other living person), 
 and the name of an Ex-President, not living, cannot be registered 
 at all. The use of the name of an Ex- President as a trade-mark 
 is not considered consonant with the high dignity of the Presi- 
 dential office. 
 
 Several applications have been made within the last few 
 years for registration of the names or portraits of Ex-Presidents. 
 The signature and portrait of Thomas Jefferson, combined in a 
 trade-mark for cigars, was refused registration. 
 
 The words "Roosevelt Rose" were rejected on application 
 for registration, the rejection being partly because " Rose" had 
 been registered on a previous application, and partly because 
 Roosevelt is a living person. 
 
 A trade-mark cannot be a color, because the number of colors 
 Other is limited, and it would be manifestly unfair to give 
 
 Restriction* the exclusive use of a color to any individual. 
 
 The use pf the flag or coat of arms of any foreign power is 
 prohibited as a trade-mark. This restriction holds even when 
 the foreign power agrees to the use of its insignia. The
 
 Trade-Names. 25 
 
 JELL-O 
 
 Russian government consented to the use of its coat of arms 
 as a trade-mark in the case of an applicant before the United 
 States Patent Office, but registration 
 was refused. The law is mandatory, 
 and is not affected by agreement. 
 
 Any design or picture which has 
 been adopted by a fraternal society as 
 its emblem is not registrable as a TR E R M AR ^ E ENDING*' AN ".\ 
 trade-mark. " - SUCH AS CRISCO, OMO, 
 
 For obvious reasons, scandalous or ONOTO, QUIXO, PEBECO 
 immoral matter is refused registration. THAT MARKS OF THIS TYPE 
 
 A trade-mark cannot be a shape, or SJNCTIVENESS P 
 a package, or a container. 
 
 A trade-mark cannot be the article of merchandise itself, 
 for the "mark" must necessarily be different from the thing 
 marked. 
 
 Proposed Amendment to the Law 
 
 As this book goes to press, an amendment to the Act of 1905 
 is before Congress. This amendment, which will, in all proba- 
 bility, become a law, denies the right of anyone to register as a 
 trade-mark any mark which consists of "any name, distinguish- 
 ing mark, character, emblem, colors, flag or banner, adopted by 
 any institution, organization, club or society which was in- 
 corporated in any state in the United States prior to the date of 
 the adoption and use by the applicant." 
 
 This proposed addition to the law is the result of an attempt 
 of certain manufacturers to capitalize the prestige of various 
 well-known clubs and other organizations. A case in point was 
 a recent attempt to register the initials "Y.M.C.A. " as a trade- 
 mark. Another flagrant case was the adoption of the emblem of 
 the New York Athletic Club a winged foot as a trade-mark 
 by a manufacturer of men's clothing. On formal protest by the 
 * T ew York Athletic Club the registration of this mark was held up. 
 
 by 
 Ne 
 
 The Trade-Mark Status of Patented Articles 
 
 A patent may be denned as an exclusive monoply in the 
 manufacture and sale of a new and useful invention, granted by 
 law for a term of years to the inventor. 
 
 As an offset to this monoply, which is granted to the inventor 
 as his reward from the public, the inventor's exclusive right 
 ceases at the expiration of the patent, and any one may manu- 
 facture and sell the invention. 
 
 It would be manifestly unfair to the public if the owner of 
 the patent could, at its expiration still retain the exclusive right 
 to use the name and trade-mark under which the invention had 
 been sold. If this were permitted, the effect would be a partial 
 continuance of the monopoly. The name and the trade-mark 
 belong to the article not to the individual and the right to use 
 them goes with the right to manufacture the article.
 
 26 Trade-Marks. 
 
 The Singer Manufacturing Company, when the patents on its 
 sewing machine were about to expire, 
 adopted as a trade-mark the word ' ' Singer' ' 
 blended with a device. The effect of this 
 action, if the validity of the trade-mark 
 A COINED WORD, had been sustained, would have been to 
 MADE FROM THE WORDS perpetuate the right to the exclusive use of 
 QUER." the word "Singer" as applied to sewing 
 
 machines. In this event, at the expiration 
 
 of the patents, any person would have the right to manufacture 
 Singer machines, but only the Singer Manufacturing Company 
 would have had the use of the name ' ' Singer. ' ' 
 
 It was held by the courts that the right to use the name 
 "Singer," as applied to machines of this particular design, be- 
 came public property when the patents expired. The court said, 
 in the case of Brill v. Singer Mfg. Co. (41 Ohio St.) : 
 
 "A patentee or his assignee, by incorporating into his trade- 
 mark the distinctive name by which a patented machine has 
 become known to the public during the existence of the patent, 
 cannot, after the expiration of the patent, take away from the 
 public the right of using such name. The trade-mark cannot 
 be made a guise for extending the monopoly, or preventing the 
 name from becoming, with the patent, the property of the 
 public." 
 
 The Singer case is typical of cases of this character. In the 
 case of .- ever Stamping Co. v. Fellows (163 Mass. 191, 194, 196) 
 the cou \ said : 
 
 "When one who has a patented article gives to it and puts 
 upon it a name, and calls it by that name and no other, and it 
 becomes known to the trade and to the public exclusively by the 
 name so given to it by the patentee or person controlling the 
 patent, then certainly it may be said that, as a general rule, the 
 right to the exclusive use of the name ceases with the termina- 
 tion of the exclusive right to make and sell the thing."
 
 CHAPTER IV 
 The Elements of a Good Trade-Mark 
 
 THE reader who has perused the preceding pages devoted to 
 a discussion of what a trade-mark cannot be, begins to 
 wonder, perhaps, what part of the language is left unre- 
 stricted. 
 
 It is true that the number of restrictions imposed by the law 
 and the courts is considerable, but the language is virtually 
 inexhaustible, with its infinite possible combinations of letters 
 and words. And to these possibilities of construction must be 
 added the limitless varieties of designs and symbols which are 
 registrable and valid under the law. 
 
 A trade-mark may be: 
 
 A coined word, like Calox, Coca-Cola, Omo, Jap-a-lac, 
 Crisco, Pebeco, Celluloid, Plexo (a trade- 
 mark for suspenders; also for a toilet 
 preparation), Sapolio, Cravenette, Jell-O, 
 Kodak, Uneeda, Pro-phy-lac-tic, Crex 
 and Quixo. 
 
 A symbol, like the Baker chocolate 
 girl; the Prudential Insurance Com- 
 pany's trade-mark, which consists of a 
 picture of the Rock of Gibraltar; the 
 Merrimack duckling; the spear of 
 Spearmint chewing gum; the Puritan 
 
 painter, used on Bay State brick and THE ROCR op GIBRALTAR 
 cement coating; the Ford automobile HAS LONG BEEN THE TRADE- 
 mark, consisting of a winged pyramid; MARK OF THE PRUDENTIAL 
 or the representation of a mask or IJ ^, UR 
 domino, used on packages of Crystal POLICIES, AND^IS ^JSED'IN 
 Domino sugar; or the painter boy of CONVENTIONAL TRADE-MARK 
 the National Lead Company. 
 
 A combination of a word, or words, and a symbol, like Thomas 
 A. Edison's portrait and signature, used 
 in connection with phonographs; a picture 
 of a black cat and the words "Black Cat," 
 used as a hosiery trade-mark; the trade- 
 mark of the Vacuum Oil Company, con- 
 sisting of a picture of a gargoyle in con- 
 nection with the word "Gargoyle"; or a 
 representation of a swan accompanied by 
 the word "Swan," used on fountain pens. 
 
 A portrait, like Mennen's Talcum Powder mark, which is a 
 picture of Gerhard Mennen; or the portrait of Robert Burns, 
 used on cigars. 
 
 27
 
 2'8 
 
 Trade -Marks. 
 
 THE TRADE- 
 MARK USED ON 
 HEISEY GLASS. 
 
 A word, or words, used in a fanciful (non-descriptive) sense, 
 like "Cat's Paw," a trade-mark for rubber heels; "Bachelor's 
 Friend," a suggestive trade-mark for hosiery; the word "Ribbon," 
 a mark for a tooth-paste; " Republic, " used on automobile tires; 
 "Velvet," a trade-mark for smoking tobacco; "Onyx," the 
 trade-mark of a well-known brand of hosiery; "Ivory," which 
 stands for a famous brand of soap; "Diamond," a name for 
 tires; "Arrow." used on collars; "Blue-Jay, " a trade-mark for a 
 corn-plaster; "Big Ben," used on alarm clocks; "Lifebuoy," 
 the name of a soap; or "Occident," the name of a flour. 
 
 A historical or mythological character, like Juno, King William, 
 Stonewall Jackson, Cupid, Venus (there is a 
 lead pencil carrying this trade-mark), Samson 
 (applied suggestively to a brand of rope), or 
 Apollo (the name of a piano-player). 
 
 Initials or arbitrary numbers, like the "G.E." 
 trade-mark of the General Electric Company; 
 the number "4711," applied to perfumery and 
 toilet articles; "61," a floor varnish; "E-Z," 
 the suggestive trade-mark of jar used in preserv- 
 ing fruits; "O.K.," the name of a clip to hold 
 papers together; "B.V.D.," the trade-mark of 
 a well-known line of underwear; or the big " H " 
 enclosed in a diamond-shaped design, used as a trade-mark on 
 Heisey's glassware. 
 
 The business name of person, firm or corporation when written, 
 printed, impressed or woven in a distinctive manner, 
 
 Sor in association with a portrait, or in an auto- 
 
 C graphic form. An example of this type of trade- 
 
 mark is the word "Cross," reproduced here. 
 The name "Gillette," used on safety razors, is 
 enclosed in a diamond and crossed by an arrow. 
 A well-known trade-mark of this character is 
 the name "Stewart Hartshorn," found on most 
 shade-rollers. 
 
 Marks that may be technically defective are registrable under 
 the ten years' clause if they have been in exclusive use by the ap- 
 plicant for ten years preceding 1905. The word "Faultless," 
 registered by E.Rosenf eld & Com- 
 pany, of Baltimore, as a trade- 
 mark for garments, belongs to this 
 class. "Faultless" is, of course, 
 jdescriptive, but it is nevertheless 
 registrable under the ten years' 
 
 A VERY EFFECTIVE TRADE-MARK, clause. Another mark of the same 
 USED WITH BISCUITS SOLD IN kind consists of the word Cow- 
 ard" a trade-mark for shoes. 
 Coward is the proprietor, and un- 
 der the Act of 1905 his name has no eligibility as a trade-mark 
 unless it is written or printed in a distinctive manner. But his 
 name has been used as a trade-mark since 1868, and, conse- 
 quently, falls within the provisions of the ten years' clause.
 
 Trade-Names. 29 
 
 It is easy enough to devise a trade-mark that will comply with 
 the letter and the spirit of the law. But a trade-mark should 
 be something more than merely registrable and protectable. 
 Think of the immense advertising and selling effort that must 
 be brought to bear to overcome the inertia of a meaningless or 
 unsuitable trade-mark. 
 
 The Nine A proposed trade-mark should not be adopted 
 Tests of a un til every one of the following questions can be 
 Trade-Mark answered affirmatively in regard to it: 
 
 1. Is it easy to speak? 
 
 2. Is it easy to remember? 
 
 3. Is it easy to spell ? 
 
 4. Is it simple in design? 
 
 5. Is it attractive in sound and appearance? 
 
 6. Is it suggestive of the good qualities of the merchan- 
 dise? 
 
 7. Is it different from other trade-marks of the same 
 class? 
 
 8. Can it be affixed to the goods with which it is to be 
 used? 
 
 9. Is it registrable and protectable? 
 
 Competent trade-mark experts, such as those on the staff of 
 Munn & Company, never submit a proposed trade-mark until 
 it passes this rigorous examination successfully. 
 
 Few trade-marks in commercial use can stand these tests, 
 because most marks have been designed without any clear per- 
 spective of the part they were to play in business. 
 
 As a matter of interest and instruction, let us take several 
 well-known trade-marks, at random', and put them through the 
 list of test questions. 
 
 Opening a current magazine, the first trade-mark we see is 
 "Postum," the name of a substitute for coffee. Postum is easy 
 to say and remember and spell. It 
 is simple, but not particularly attrac- 
 tive in sound. It has no suggestive- , 'as&SHfc. 
 ness, except the artificial suggestive- WOLFS^liHEAD 
 ness, of familiarity. It is distinctive, 
 registrable, and is virtually infringe- 
 ment-proof. If the figure 100 should 
 be set down as denoting a perfect 
 
 trade-mark, then Postum should be graded at about 80. It 
 wholly lacks suggestiveness, and it is not attractive though not 
 displeasing. 
 
 The next mark that attracts our attention in this magazine 
 is "Siwelclp," a coined word, applied to a flushing device used 
 in connection with bathroom toilets. Siwelco is not easy to 
 pronounce, it is not euphonious, it is not easy to remember or 
 to spell. It is the reverse of attractive in sound, and it carries 
 no suggestiveness. It is registrable and protectable. 
 
 The next trade-mark is "O.K.," applied to paper fasteners. 
 This mark possesses every good feature. It is suggestive in the
 
 30 
 
 Trade-Marks. 
 
 sense that "O.K." means, in ordinary speech, "all right, satis- 
 factory, good." These fasteners are used in offices. The symbol 
 "O.K." has a distinct meaning in commercial language. We 
 are of the opinion that "O.K." used as a trade-mark for office 
 supplies should be graded 100. 
 
 "Cat's Paw," a trade-mark for rubber heels, is the next. 
 It is an example of a word that is suggestive in the wrong way. 
 "Cat's Paw" suggests the soft, quiet tread of a cat and of 
 rubber heels. At first glance it would seem that "Cat's Paw" 
 is an ideal name. But those who sell rubber heels say that the 
 noiseless tread (or "sneaky walk," as one shoemaker stated it) 
 is the greatest of all drawbacks to the sale of rubber heels. In 
 short, the name is suggestive, but suggests a defect. 
 
 The next trade-mark that comes to hand is the Ford auto- 
 mobile mark, reproduced on this page. 
 It should be noted at the start that the 
 mark as it stands, with the phrase 
 "The Universal Car" as a part of it, is 
 not registrable, as it contains a De- 
 scriptive phrase. The rest of the de- 
 sign is registrable, and, after registra- 
 tion, the descriptive phrase might be 
 imposed upon it without destroying its validity. 
 
 In considering this mark the reader should bear in mind that 
 an automobile trade-mark must be of such character that it 
 can be worked out in metal and attached to the front of the 
 radiator. The Ford device is suited to this form of affixation. 
 
 This trade-mark shows a pyramid with wings. Its symbolism 
 is the pyramid for strength and solidity, and the wings for speed. 
 Speed and solidity two desirable qualities in an automobile. 
 The symbolism is not apparent until explained, and the mark 
 is rather meaningless to the ordinary observer, but, considering 
 the restrictions that surrounded its creation, we are of the 
 opinion that it is a very good trade-mark. 
 
 Next we come to "Ralloc," which is the trade-mark of a 
 collar-retainer. The word is obviously the word "Collar" 
 spelled backward. It is not euphonious, or attractive, or dis- 
 tinctive in any way. This mark is 
 an example of a large class of trade- 
 marks which bears upon them the evi- 
 dences of only one purpose and that 
 is, to produce something which will 
 not be rejected by the Patent Office. 
 "Crex" is an excellent trade-mark. 
 It is an adaptation of the word "Carex," 
 which is the botanical name of a sedge- 
 like grass which may be woven into a 
 fabric. Dropping the "a," we have "Crex." This name sticks 
 in the memory; it is easy to spell, easy to say, and is quite dis- 
 tinctive. It lacks inherent suggestiyeness, but it is the kind 
 of word that may be readily popularized by advertising. 
 
 ABSORBINEJ5: 
 
 MARK WHICH IS SO SUG- 
 GESTIVE THAT IT APPROACHES 
 WITHIN A HAIR'S BREADTH
 
 Trade-Names. 31 
 
 There is a toilet preparation widely advertised and sold under 
 the name "Sempre Giovine," meaning "always young." This 
 trade-mark must be a tremendous drawback to the success of 
 the article with which it is associated. It cannot be pronounced 
 properly except by those who have taken lessons; and it is 
 difficult to remember. To an English-speaking person it con- 
 veys no suggestion. Foreign words should be avoided in de- 
 vising trade-marks. People do not like to ask for things by 
 names which they cannot pronounce. 
 
 The trade-mark affixed to the linens sold by McCutcheon, 
 of New York, a store famous for the quality of its fabrics, con- 
 sists of the picture of an old-fashioned spinning-wheei, -without 
 wording. This is a very good trade-mark. It brings up a 
 mental picture of the slowly-wrought hand-woven linens of our 
 grandmothers' time, fabrics that looked good and wore well. 
 
 There are trade-marks so admirably adapted to their pur- 
 pose that they seem to be the work of genius. "Uneeda, " 
 applied to crackers in a sealed package, is such a trade-mark. 
 " Rainbow," a trade-mark for dyes, is another happy inspiration. 
 This name makes one think of the fine colors and delicate tones 
 of a rainbow. It stimulates the idea that these dyes emulate 
 a rainbow in beauty. " Skidoo" a trade-mark used in connec- 
 tion with a small gasoline engine for launches is another trade- 
 mark that touches the top notch of merit. It suggests agility 
 and lightness, and the ability to get in motion and scurry away. 
 
 Special Notice 
 
 An enormous waste of mental effort expended by manufac- 
 turers and their representatives in devising unsatisfactory trade- 
 marks might be avoided by consultation with us either per- 
 sonally or by mail before any work is done in the way of 
 devising a mark. 
 
 There are more than 40,000 registered marks in existence, 
 and approximately 100,000 unregis- 
 tered trade-marks that have been 
 used long enough to be capable of 
 protection under the common law. 
 One can see that the chances are large TRADE- 
 of a new trade-mark user deciding THE KAL 
 upon a mark that is already in use. OMPAN ' 
 Many marks are sent to us to be reg- 
 istered on which it is evident that 
 much thought has been expended, 
 
 but which are so nearly like other marks already in existence 
 that their registration and protection are impossible. 
 
 A search of the files, for which we charge only $5.00, generally 
 saves many times its cost in mental work and vexation. 
 
 Our staff includes some expert designers of trade-marks, who, 
 living in the trade-mark atmosphere, and knowing the best that 
 is being done in trade-mark construction, are fully prepared to 
 design marks that have every element of distinctiveness, sug- 
 gestiveness and validity. 
 
 For designing a trade-mark our charge is proportioned to the 
 time and labor involved. 
 
 lAZoo
 
 CHAPTER V 
 
 Trade-Mark Protection 
 
 AN owner of a valid trade-mark is protected by law in its 
 exclusive use, as he is in the use of any other property 
 that he may own. 
 
 But to obtain this protection his trade-mark must possess 
 . all the essentials of validity, and 
 he must be able to prove infringe- 
 ment in short, the burden of 
 proof is upon the owner of the 
 trade-mark alleged to have been 
 
 infringed. 
 
 Infringement of a trade-mark 
 is defined in Hesseltine's "Law 
 of Trade-Marks and Unfair Trade" 
 
 as: "An imitation such as would be likely to deceive the ordinary 
 customer in the usual course of trade in the purchase of goods 
 of one person as those of another." 
 
 The question of the infringement of a registered trade-mark 
 is covered by sections 16, 17, 18 and 19 of the Act of 1905. 
 Section 16 is quoted here: 
 
 SECTION 16 That the registration of a trade-mark under the 
 provisions of this act shall be prima facie evidence of ownership. 
 Any person who shall, without the consent of the owner thereof, 
 reproduce, counterfeit, copy, or colorably imitate any such trade- 
 mark and affix the same to merchandise of substantially the same 
 descriptive properties as those set forth in the registration or to 
 labels, signs, prints, packages, wrappers, or receptacles intended 
 to be used upon or in connection with the sale of merchandise of 
 substantially the same descriptive properties as those set forth in 
 such registration, and shall use, or shall have used, such reproduc- 
 tion, counterfeit, copy or colorable imitation in commerce among 
 the several tribes, or with foreign nations, or with the Indian tribes, 
 shall be liable to an action for damages therefor at the suit of the 
 owner thereof; and whenever in any such action a verdict is 
 rendered for the plaintiff, the court may enter judgment therein for 
 any sum above the amount found by the verdict as the actual 
 damages, according to the circumstances of the case, not exceeding 
 three times the amount of such verdict, together with the costs. 
 
 Note that in case of infringement of a registered trade-mark, 
 suit may be brought in a Federal Court, that triple damages 
 may be collected in case the proof of infringement is established, 
 and the defendant will be forbidden to use the offending mark. 
 
 Infringement is a specific violation of the trade-mark statutes. 
 It falls under the broader and more general law of unfair busi- 
 ness competition, which takes cognizance not only of trade-mark 
 infringement, but also of all other devices of deception by means 
 of which one person trades upon the reputation of another. 
 
 32
 
 Trade-Names. 
 
 33 
 
 Nims, in his excellent book on "Unfair Business Competi- 
 tion," says: 
 
 "The use of a special mark in connection with particular 
 goods or a particular business is a representation that those 
 goods or that business are the goods or business of the person 
 to whom the mark belongs; that they belong to the person to 
 whom the mark has become identified. If such representation 
 is false, a case of unfair competition exists. The law of trade- 
 marks, therefore, is merely a specialized branch of the broader 
 doctrine of unfair competition. Relief in trade-mark cases is 
 afforded upon the express ground that every person is entitled 
 to secure such profits as result from a 
 reputation for superior skill, industry, 
 or enterprise, or, in other words, from 
 his good-will. But, as has just been 
 seen, this is the precise principle upon 
 which relief is afforded in cases of un- 
 fair competition. The right of action 
 in technical trade-mark cases is based 
 that an exclusive 
 
 COLGATE'S 
 
 RIBBON DENTAL CREAf 
 
 ONLY THE WORD "RIBBON" 
 S REGISTERED. "COL- 
 
 ;ATE'S" is A PERSONAL 
 
 iiiai*. ^ctacs 13 uo.*^ NAME AND " DENTAL CREAM " 
 
 upon the ground that an exclusive is DESCRIPTIVE. 
 property right in the mark is claimed , 
 
 and that the mere use of a close imitation of it, by another, 
 tpso facto creates a cause of action, regardless of the effect of 
 such use or imitation. But the courts in the past have fre- 
 quently lost sight of the broad general principles of unfair com- 
 petition, and have sought to decide cases of unfair competition 
 pure and simple, 'upon principles analogous to trade-marks.' 
 The owner of a technical trade-mark claims it as his, regardless 
 of the effect on others. If someone else uses it or imitates it, 
 the owner claims a right of action because the mark is his and 
 his alone." 
 
 And further on, in the same volume: 
 
 ' ' Unfair competition does not necessarily involve the viola- 
 tion of any exclusive right to use a 
 word, mark or symbol. It may arise from 
 the use of words, marks or symbols which 
 are free for everybody to use and are not 
 subject to exclusive appropriation by any- 
 one. The existence of this right of action 
 depends upon the question of fact, whether 
 what was done in any special case tends 
 to pass off the goods of one man as being 
 those of another, or tends to deprive 
 any one of his rights. This is the only 
 substantial distinction between cases of 
 unfair competition, or passing off actions 
 as they are called in E 
 trade- marks." 
 
 This subject is so large and far-reaching that we can touch 
 upon it here only in the most general way, and as incidental 
 only to the question of trade-marks. 
 
 YALE 
 
 LOCK 
 
 THIS 
 
 GEO- 
 
 THE YAL 
 
 TRADE-MARK. 
 MARK IS 
 GRAPHICAL TERM 
 WHICH HAS ACQUIRED 
 A SECONDARY MEANING 
 AS A TRADE-MARK FOR 
 
 COMMON LA 
 
 England, and cases of infringement of
 
 Trade-Marks. 
 
 Unfair competition, so far as trade-marks are concerned, may 
 take various forms, the most common of which are discussed in 
 the following pages. 
 
 ist. There may be a plain, bare-faced adoption by 
 one individual of a trade-mark belonging to 
 another. 
 
 In certain lines of business notably the liquor, wine and 
 cigar trades, this sort of infringement is quite common, and 
 organizations of houses dealing in these products have been 
 formed to check it. 
 
 Many states have enacted laws making the counterfeiting of 
 a label or a trade-mark a penal offense. Under the Federal Law, 
 infringement is not a penal offense, and only civil actions may 
 be brought under this statute. 
 
 One of the most interesting cases of the adoption of a trade- 
 name belonging to another that has ever appeared in the Federal 
 courts is that of Wolf Bros. v. Hamilton Brown Shoe Co. (165 
 Federal Rep. 413). 
 
 Wolf Bros., shoe manufacturers of Cincinnati, had established 
 a common law right to the use of the 
 name "American Girl" as applied to 
 shoes. This mark is not registrable, as 
 it is both geographical and descriptive. 
 The plaintiff has used the mark con- 
 tinuously since 1896. In connection 
 with the wording, there is a lady's 
 head, and the phrase: "A shoe as good 
 as its name." Certain styles are desig- 
 nated by numerals, such as 404, 408 
 and 397. 
 
 The defendant, a St. Louis concern, began to use, in 1900, 
 as a trade-mark for shoes, the words "American Lady," with a 
 lady's picture. Later on, they advertised "American Lady" 
 shoes with the phrases "With the character of the woman" 
 and "The shoe deserves its name." The numbers used by the 
 complainant in designating styles were also taken by the de- 
 fendant. 
 
 The defendant, one of the largest shoe manufacturers in 
 the country, advertised the "American 
 Lady" shoe extensively, spending more 
 than one hundred thousand dollars in pub- 
 licity after suit had been brought by the 
 complainant. 
 
 On trial of the complainant's suit for 
 damages, brought before the U. S. Circuit 
 Court, the defendant's treasurer testified 
 that objection to use the name had been 
 DIXON'S MOTOR GRA- formally made by the complainant in 1901, 
 but that he had considered a protest from 
 
 a source so insignificant as something of a joke, and had paid 
 no attention to it. 
 
 AN ADMIRABLE TRADE- 
 MARK FOR A SMOKING TO- 
 BACCO. 
 
 LETTERS, USED
 
 Trade-Names. 
 
 35 
 
 It will be noted, upon comparison of the two marks, that 
 the only difference is the use of "Lady " in the defendant's mark 
 instead of "Girl, " the two being in all other respects essentially 
 the same. 
 
 Judgment was awarded the complainant. The defendant 
 was forbidden to use the "American Lady" mark, and was 
 ordered to turn over to the complainant all the profits realized 
 since the inception of the suit. 
 
 The case was prosecuted further, however, and it was sub- 
 sequently held (192 Federal Rep. 930) that, inasmuch as the 
 shoes sold by the defendant bore in conjunction with the name 
 "American Lady" the name of the defendant, clearly indicating 
 that such shoes were of its manufacture and not of complain- 
 ant's, there was no unfair competition. There was no 
 evidence to show that plaintiff had been substantially damaged 
 by reason of curtailment of sales, loss of customers or decep- 
 tion, and no attempt by the defendant to palm off its product 
 as the manufacture of complainant. A judgment for nominal 
 damages ($1.00) was awarded to plaintiff. The question in- 
 volved in this case was one of unfair trade as distinguished from 
 the infringement of a valid trade-mark. 
 
 2d. Another method of infringement is to devise an 
 ingenious similarity of a trade-mark. 
 
 An infringing mark may be so nearly like a well-known and 
 valuable trade-mark that the unwary or careless may be de- 
 ceived, yet, at the same time, it may be so dissimilar that a 
 show of defense may be made. 
 
 The National Biscuit Company has prosecuted more than 
 five hundred infringements of its trade-marks. 
 
 " Uneeda" Biscuit has been imitated by " Ulika, " " Uwanta," 
 "Iwanta" and dozens of other specious wordings. 
 
 The mark "Yusea" used on incandescent gas mantles, was 
 infringed by "U-C-A." In this 
 case there was no similarity what- 
 ever in the appearance of the 
 marks, but evidence was produced 
 to show that "Yusea" was pro- 
 nounced "You see a," and that in 
 sound the marks were precisely 
 the same. Priority of registration 
 of the "Yusea" mark was proved 
 and the use of "U-C-A" was ac- 
 cordingly enjoined. 
 
 The word "Chasseuse" was "LA VOGUE, "A TRADE-MARK FOR 
 
 held by the court to be an in- WOMEN'S GARMENTS, is AFFIXED 
 frincrprnpnt nf "Chartrpn^p " bntVi To EACH GARMENT BY MEANS OF A 
 inngement ol Chartreuse, botn SE WED-ON LABEL. 
 marks being applied to cordials. 
 
 "Grape-Nuts," a cereal food, was not infringed by "Grain- 
 Hearts."
 
 36 Trade-Marks. 
 
 "Old Crow," the name of a whiskey, was not infringed by 
 "Old Jay." 
 
 On the other hand, "Colonial Dame," used in connection 
 with perfumery, was infringed by "Colonial." 
 
 "Chatter-Box," an annual publication for children, was in- 
 fringed by "Chatter-Book", used as the name of a publication 
 of the same general appearance and purpose. 
 
 3<f. Any person has a right to use his own name in 
 business, but not in such a way as to trade on 
 the reputation of someone else bearing the same 
 name. 
 
 A typical case of this kind is that of Royal Baking Powder 
 Co. v. Royal (122 Fed. 337-1903; 58 C. C. A. 
 499-500). An individual by the name of 
 Royal went into the business of manufac- 
 turing baking powder. His product was 
 sold in packages of the same general ap- 
 pearance as those containing the product 
 of the Royal Baking Powder Company. 
 The court held that the respondent could 
 use his own name, but "in the least con- 
 spicuous manner possible consistent with 
 the r ight to place his name and address 
 upon the goods made by him." 
 
 A similar case is that of Von Faber v. 
 Faber (124 Fed. R. 603). In this case the 
 plaintiff, a manufacturer of lead pencils, was the owner of a 
 business that began in 1761. The pencils made by this firm 
 had always been marked "A. W. Faber." The defendant, also 
 named Faber, began to manufacture pencils in the United States, 
 affixing to his product the mark "Faber." The court held 
 that this was an unfair use of his name, and while he had a 
 right to use his own name.xyet he must prefix to it "JohnE.," 
 "Eberhard" or "John Eberhard." 
 
 This decision was subsequently reversed (139 Fed. Rep. 257), 
 and it was held that the use of the name "Faber" with the 
 initial "E" prefixed thereto did not constitute unfair competi- 
 tion where no fraudulent intent or deception of the public could 
 be shown. 
 
 The well-known chocolate manufacturers of Dorchester, 
 Mass., Walter Baker & Co., have had to 
 contend with many individuals bearing the 
 name of Baker. ,In each case the decisions 
 of the court have been to the effect that any 
 Baker has a right to manufacture and sell 
 chocolate, and to use his own name on pack- 
 ages of his product, but his name must be 
 accompanied by some statement or distin-
 
 Trade-Names. 37 
 
 guishing mark which will clearly differentiate his product from 
 that of Walter Baker & Co. 
 
 In the case of Williams v. Mitchell (106 Fed. R. 168-171), 
 the court said: "One may not use his own name for such pur- 
 pose when it works a fraud. If he uses a descriptive word, or 
 a geographical name, or his own name, it must be so used as 
 not to deprive others of their rights, or to deceive the public, 
 and the name must be accompanied with such indications that 
 the thing manufactured is the work of the one making it as 
 would unmistakably inform the public of the fact." 
 
 4th. Where the resemblance between two trade-marks 
 is only casual and not sufficiently pronounced 
 to deceive a person of ordinary intelligence, 
 there is no infringement. 
 
 A manufacturer of a lantern known as a "Hurricane " lantern 
 claimed that the name of another lantern, called "Tempest," 
 was an infringement. The court held that while there was a 
 resemblance in the names in the 
 
 underlying idea, they were so \^ fmmm i mm ^ mmmm f, mmMm f mm \ 
 different in appearance and sound 
 that any person of average 
 common-sense would not mistake 
 one for the other. 
 
 "S. B.," a trade-mark for 
 cough drops, was not infringed by 
 "B. and S." 
 
 "Weber," a mark for pianos, 
 was not infringed by "Webster." 
 
 In this case there is a casual re- HA "4 K f RS J, FA T R WARD E TRADE 
 semblance in appearance in the "AMEs A E L NDiN 1 (T G iN T0 ^T A E R x D>;rR Tms 
 two words, but no resemblance, is ONE OF THE BEST-KNOWN 
 or very little, in sound. 
 
 $th. It is a principle of the law of unfair business 
 competition that the plaintiff must come into 
 court with clean hands 
 
 The courts will not use their power to perpetuate a fraud. 
 A trade-mark conveying a misrepresentation of the composition, 
 character or quality of the goods with which it is used, cannot 
 be protected against infringement. *"*
 
 CHAPTER VI 
 The Trade-Mark Work of Munn & Company 
 
 WE began to practice as trade-mark and patent attorneys 
 before the Civil War, and for sixty-five years we have 
 been engaged continuously in this work. 
 
 During our two generations of service the law of trade-marks 
 and unfair trade has grown from a thin trickle of judicial de- 
 cision to a wide stream of statutes and precedents. We have 
 kept track of the formation of this large body of law, and have 
 assisted, in some measure, in shaping it. 
 
 Sixty-five years ago there were probably not more than 
 a thousand trade-marks in existence in the 
 United States. To-day, the registered 
 trade-marks alone number above forty 
 thousand. 
 
 Knowledge is only accumulated by ex- 
 perience, and we believe that we are 
 justified by the facts in saying that we have 
 had a larger and longer experience in 
 Patent Office work than any other firm of 
 patent attorneys. 
 
 We are entitled to practice before the 
 THE CORTICEI. LI patent Office in cases concerning trade- 
 CA^HBAD'I^'PRINTBD marks as well as those relating to patents. 
 ON A LABEL PASTED ON Our work in this connection includes the 
 THE END OF EVERY designing of trade - marks ; preliminary 
 searches of the Patent Office files; regis- 
 tration of marks; and the conducting of 
 opposition, interference and cancellation cases. 
 Our fees for trade-mark service are : 
 
 For registration of a trade-mark (if there is no opposition), 
 $15.00. To this fee should be added the government fee of 
 $10.00 for registration, making the total cost of registering a 
 trade-mark, $25.00. 
 
 If the mark includes a special design, an additional fee of 
 
 $5.00, to cover the expense of preparing the drawing, is charged. 
 
 For preparation of a design, or devising a trade-mark, where 
 
 the idea is our own, we charge a fee based on the time and labor 
 
 involved. 
 
 For search of the Patent Office files our charge is $5.00. "This 
 search should always be made before an application for registra- 
 tion is filed. 
 
 After an application has been filed for registration, an exam- 
 ination is made by the Patent Office, for the purpose of ascertain- 
 ing whether or not the application is anticipated. If the Trade-
 
 Trade-Names. 39 
 
 Mark Examiner in the Patent Office refuses to register a trade- 
 mark, an appeal may be taken to the Commissioner of Patents. 
 If he reaffirms the Examiner's decision, another appeal may be 
 taken to the Court of Appeals of the District of Columbia. 
 
 For conducting appeals our fee is based on the circumstances 
 of the case. 
 
 It may happen that you have applied for registration of a 
 trade-mark essentially similar to that of 
 
 another registrant or applicant. In such SOENITFICAMERKAN 
 a case the Commissioner of Patents is 
 
 authorized to institute what are called AMERTCAN~HOMES 
 "Interference Proceedings," for the pur- AND GARDENS 
 
 pose of ascertaining who is the rightful THE TITLES OF PERIOD- 
 owner. If you are dissatisfied with the ^^T^^K 
 decision of the Examiner of Interferences, REGISTRATION. 
 by whom the inquiry is conducted, you 
 
 may appeal to the Commissioner in person; and from his 
 decision you may appeal further to the Court of Appeals of the 
 District of Columbia. We attend to all such proceedings, and 
 will state terms on application. 
 
 A registered trade-mark can be assigned in connection with 
 ... , the good- will of a business in which the mark is used. 
 
 The assignment must be recorded in the United 
 States Patent Office within three months of its date; 
 otherwise it is void as against any subsequent innocent pur- 
 chaser for a valuable consideration. The Commissioner of 
 Patents is required to keep a record of such assignments. Our 
 usual fee for preparing and recording an assignment is $5.00. 
 
 Delays in registering trade-marks are often caused by the 
 1 formation ^ auure f trade-mark owners to supply us readily 
 Needed* Be- with all the information necessary to formulate an 
 fore an Ap- application for registration in proper form. 
 plication for jf y OU are contemplating the registration of a 
 
 CanBe* Pe" mark, note carefully the following data which must 
 pared be supplied : 
 
 1. Name of the owner of the trade-mark. 
 
 2. If the owner is a corporation, the State in which it has been 
 incorporated. 
 
 3. Residence of the owner. 
 
 4. Place of business of the owner. 
 
 5. Nationality of the owner. 
 
 6. Whether the mark is used in interstate or foreign commerce, 
 or commerce with the Indian tribes. 
 
 7. Class of merchandise on which the mark is to be used, and 
 the particular description of the goods comprised in that class. 
 Thus, the applicant must not state merely that a mark is to 
 be used with "Shirts," but should be more specific, and state 
 whether the shirts are outer or under garments, and of what 
 material they are made. 
 
 8. A statement of the manner in which the trade-mark is applied 
 to the goods. If by means of labels, six copies of the label 
 should be furnished; if otherwise, six specimens of the mark 
 as usually affixed. 
 
 9 . As nearly as possible the earliest date on which the mark was 
 used.
 
 40 Trade.-M.arks. 
 
 10. Whether or not the mark is registered in any foreign country; 
 and, if so, the date of registration or of the application for 
 registration. 
 
 11. If the applicant be not a resident of the United States, the 
 name and address of some person residing in the United 
 States upon whom process may be served or notice of pro- 
 ceedings affecting ownership. (If desired, we can appear on 
 the Patent Office records as the representative of a foreign 
 registrant upon whom papers may he served.) 
 
 Many American manufacturers and exporters do not realize 
 
 the importance of registering their trade-marks in 
 
 Registration the foreign countries which their goods are sent. 
 
 Countries Knowing only the trade-mark laws of the United 
 
 States, where the title is derived from first use and 
 
 is confirmed by registration, they often wait until it is too late 
 
 before attempting to comply with the registration laws in other 
 
 countries. 
 
 A fundamental difference between the trade-mark laws of 
 the United States and those of Germany, Austria, Hungary, 
 Argentine Republic, Bolivia, Brazil, Chili, China, Paraguay, 
 Peru, Venezuela, Uruguay, Costa Rica, Guatemala, Denmark, 
 Finland, Norway, Sweden, Spain, Japan and Cuba, is that in the 
 foreign countries named the first to register a trade-mark acquires 
 the property therein, to the exclusion of the rightful owner. 
 
 In many other countries the registration is, after a short 
 period, also conclusive proof of ownership. American exporters 
 will therefore see the importance of registering their marks in the 
 foreign countries to which they send their goods. 
 
 We are prepared to register American marks in any country 
 that has made provision for the registration of foreign-owned 
 marks. Upon application, we will send a list of fees for regis- 
 tration in each country. 
 
 Our organization is complete in every particular. We have 
 
 a highly trained staff of trade-mark specialists which 
 
 Facilities we pl ace at the service of our clients. Our branch 
 
 office in Washington, located just across the street 
 
 from the Patent Office, gives us unsurpassed facilities for rapid 
 
 and accurate work. We are always in close touch with new 
 
 trade-mark developments through being on the ground, and 
 
 being engaged in daily practice before the Patent Office. 
 
 Munn & Company solicit associate business from other attorneys 
 
 in patent and trade-mark matters. All opposition, 
 
 Legal Caue cancellation, and interference proceedings, together 
 
 with suits for infringement and unfair competition 
 
 and other legal matters, are handled by Munn & Munn, Attorneys 
 
 and Counselors at Law, 361 Broadway, who are specialists in 
 
 patent and trade-mark causes. 
 
 Under the present law those applications for the registra- 
 tion of trade-marks which have been passed and 
 Tr.de-Mark allowed are published in the Official Gazette, and, 
 within thirty days after the date of publication, 
 any person who believes he would be damaged by 
 the registration of a mark may oppose its registration by filing
 
 Trade-Names. 41 
 
 notice of opposition thereto. The opposer need not be the 
 owner of a registered trade-mark, but, if registration is sought 
 by another for a trade-mark so closely resembling one in use by 
 the opposer on goods of the same descriptive properties as to be 
 liable to cause confusion or mistake in the minds of the public 
 or to deceive purchasers, the registration of such mark to the 
 applicant would justify the opposer's belief that he would be 
 damaged thereby. 
 
 Notices of opposition to be effective must be filed within 
 thirty days after the date of publication of the mark sought to 
 be registered in the Official Gazette. 
 
 Our trade-mark protective bureau is designed to carefully 
 scrutinize the trade-marks published each week in the Official 
 Gazette, and to notify such of our clients as avail themselves of 
 our services of the publication of any trade-mark for which regis- 
 tration is sought which would b2 liable to conflict with any 
 trade-mark in use by such client, in order that he may interpose 
 opposition to registration if he so elects. We make a nominal 
 charge for these services of $10.00 a year for each mark sub- 
 mitted. The marks submitted are recorded and classified in 
 accordance with the official classification of the Patent Office, 
 so that each week a comparison with those published in the 
 Official Gazette may be readily had and resemblances discovered. 
 
 MUNN & COMPANY 
 
 Patent Attorney* 
 
 361 BROADWAY Branch Office, 625 F STREET 
 
 NEW YORK WASHINGTON, D. C.
 
 SOUTHERN REGIONAL LIBRARY FACILITY 
 
 000 696 320 1