INTRODUCTION. BEFORE entering upon the examination of the authorities, it may be convenient to the reader, to give a general outline of the principles, on which the Law of Trade Marks principally rests. Any particular fancy name or special mark or figure, put upon goods or on the wrappers or packets in which they are sold by the maker, becomes a trade mark in point of law, when the goods have acquired a reputation, and the public take goods so marked, on the faith of their being the goods made by the maker or dealer, who has adopted the particular trade mark. Thus: if an ironmaster marks his goods with an "anchor," and the iron sold with that mark has obtained a reputation in the market, so that purchasers take iron thus marked, to be of the manufacture of that particular firm; then the anchor is a trade mark. So, if a mustard manufacturer marks the cases containing his packets of mustard, with the figure, say of a bull, and the mustard so marked, acquires a reputation in the market, so that purchasers believe when they buy bottles or cases of mustard so marked, that they are buying the mustard of that particular maker, the bull becomes his trade mark. Of course the variety of such trade marks is almost infinite. They sometimes are pertinent to the nature of the goods marked; and sometimes are purely fanciful, as in the case of the "Eureka" Shirt. But, inspection and comparison of the articles, can fairly infer that other persons might be deceived. A reference to the cases actually decided, will, however, throw a clearer light than any general maxims, on the principles and distinctions observed, in the exercise of this jurisdiction of the Courts. It has been decided, that a man's own name affixed to goods sold by him, is as much a subject of trade mark as any fanciful mark; assuming of course, that the goods marked with the particular name, have acquired a reputation in the market. If the possessor of a trade mark adds to it the word "patent," with a view to holding himself out to the public as a patentee, when in fact he is not so; that is fraud on the public, and will in general deprive him in Equity, of his right to protection for his trade mark. But there is this distinction, that where it is to be collected from the evidence, that, in using the word patent, the person possessing the trade mark, is not intending to deceive the public, and that the public is in fact not actually deceived; then he does not forfeit his right to protection. Thus, if a person sells thread, and takes as his trade mark "A.'s patent thread," and it is shewn that the thread so called, had long been known in the trade by that name; and that the words "patent thread" merely indicate a certain class of thread, and are so understood by the public; the plaintiff in such a case would be entitled to an injunction. It would be superfluous, and, indeed, impracticable in this introductory chapter, to refer to the numerous cases upon trade marks, which will be examined in subsequent pages; but the following rules may be perhaps correctly stated, as the broad and general rules acted upon by Courts of Equity. 1. That when a manufacturer or dealer, has acquired a reputation with the public, for goods bearing a particular mark, he acquires an exclusive right to the use of that mark as a trade mark. 2. That when any person uses a mark, so far approaching the trade mark of another, that purchasers may be deceived, he will in general be treated as an infringer; or, at any rate, he will incur great risk of being so treated. 3. That in determining what is a sufficient approximation towards imitation, to call for the interference of the Courts of the Chancery Division, those Courts proceed very much on the principle previously referred to, viz. that if the defendant had no intention whatever, of acquiring for himself the benefit of the reputation attaching to the trade mark of another, he should avoid all similarity, and use a trade mark clearly and obviously distinct. : The foregoing general observations upon the Law of Trade Marks, relate principally, if not wholly, to the Law as it stood before the Act of 38 & 39 Vict. c. 91, "The Registration of Trade Marks Act," and it does not appear to the writer, that that Act is intended to reverse any of the doctrines established before the Act, by judicial authority. On the contrary, the last paragraph in clause 10 of the Act, seems intended to recognise the Law as previously established. In fact, that clause taken as a whole, seems rather to extend, than to weaken the definition of what might constitute a trade mark under the old law. THE LAW OF TRADE MARKS. CHAPTER I. OF THE NATURE OF A TRADE MARK. THE recent Act of Parliament respecting trade marks (38 & 39 Vict. c. 91, 1875) directs what shall henceforth constitute a trade mark, but it does not define the legal nature of a trade mark. That question must therefore be determined by reference to the authorities. By sect. 10 of the Act it is enacted that for the purposes of the Act A trade mark shall consist of one or more of the following essential particulars, viz. : A name of an individual or firm, printed, impressed, or woven in some particular and distinctive manner; or, A written signature, or copy of a written signature, of an individual or firm; or A distinctive device, mark, heading, label, or ticket; And there may be added to any one or more of the said particulars, any letters, words, or figures; also any special and distinctive word or words, or combination of figures or letters, used as a trade mark, before the passing of the Act, may be registered as such under the Act (a). There does not appear to be any thing in the subsequent Act of 1876 varying the definitions thus given in the Act of 1875 as to what shall constitute a trade mark; nor does there, it is submitted, appear any (a) A single letter of the alphabet cannot be registered as a trade mark; under the Act of 38 & 39 Vict. c. 91. Re Mitchell's Trade mark, Law Rep. 7 Ch. p. 36. B |