The sun. [volume] (New York [N.Y.]) 1833-1916, 1877-09-09

The proprictors of that celebrated boy
erage. WoLFE's Schicdam Aromatic
Schnapps, may bc fairly enough supposed
to have been the chief promoters OF an act
Of the last Congress To which they are now
calling the attention of all and sundry of
those intcrlopcrs who may bc inclined to
dare the penalties Of $1,000 fine, or imprison-
ment for two years. We are not disposed TO
deny 10 the original concoctors Of that san
itary compound Of gin and other substances
reasonable amount Of protection against
% the scamps who have SO long prcycd upon
The reputation of honorable merchants
and traded upon the public health" In
our own persons, We are not qualified
h. judge whether the public health Is bcst
promoted 10y the spurious or the genuine ar
ficle On general principles we should say
that il might perhaps Toe six Of one and n
half dozen Of the other" a. between the
"ncfarious trafllc" and the sinon-pure COM
modify, So far as the public health is con-
ccrncd. But conccdug that Il tradesnan
who has created reputation for Il certain
article If his own manufacture il entitled to
be protected against fraudulent limitations
Of his trademark, which deludc the public
into the supposition that they are buying
his goods when they are not, the question
arises what are the reasonable limitations
Of the protection that should be given to
him
This matter Of trademarks is one Of those
incorpOrcal rights which had better be left
L. the civil remedies afforded by the com
mon law. To protect trademarks by
severely criminal legislation, is step la k
ward toward that state Of society in which
monopolics in trade were granted 10y the
sovereign power To favored individuals.
There is undoubtedly principle Of justice
which forbids that one man should reap the
fruits Of another mans brain; anl accord
lngly when, in the reign OF JAMES l.. trade
monopolies were abolished 10y act of Parla-
ment, and declared forever illegal, an
exception was allowed in favor of those
new manufactures which others had not
previous common law right to
use or vcnd, and the Crown was per-
mitted to grant monopolies IN new
Inventions for IA limited term. On this cx-
ception in the statute Of JAMES the whole
patent law system Of England and America
has been built up. But it must be rcmcm-
bercd that this system stands upon an ex-
coptlon, which limits the protection to
things which have been actually created by
the skill and ingenuity Of the person who
claims that protection. When our national
Constitution was made tho power to
grant these qualified and limited mOnopO-
lies 10 actual inventors was transferred by
the States to Congress, in order that
The monopolies and the remedies
might be made uniform throughout
the country But the subjects Of those mo-
nopolics were perfectly well understood to
be, what the language Of the Constitution
describes them to be, the discoveries Of
Inventors. 1t Is the concrete thing which
q man has discovered or invented and not
device which he may use TO mark that thing,
that Is the subject Of patent or exclusive
right, 70 be granted by Congress. II is
therefore, very doubtful whether picture
monogram a coat Of arms. or device Of
any kind, used TO mark the manufactures
nj particular person. is fright on which
Congress- has any power to lesi7latc
Al the same time it is entirely certain that
ut the common lava tradesman or manu-
hctnroi may acquire an exclusive right to
use n particular device to mark his own
goods, which becomes what is called his
trademark, or in other words, the stamp
which Informs the public that the goods
They are buying were made by him. 1t is
equally true that the common law affords
m acton for damages against any person
VINO, by fraudulent use of anothcr's
trademark, deludes purchasers into
tho belief that they ARE buying the
goods o. certain person, when they
are not; and that courts OF equity Will
enloln such fraudulent acts. Those civil
remedies arc ma much in the way Of pro-
lection as society ought to AFFORD. II thore