New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1878-12-10
TRADEMARK LEGISLATION.
REVIEW OF ITS CoNsuTUTIoNALITY.

LAW PBOIECllNO hEhlolEhhD
MARKS.
Judge Dyer, of the United States Circuit
Court OF Wisconsin, recently ruled that the United States
law OF 1870 allowing the registration Of trademarks
and protecting them when registered was uncOnstitu
tOnal and void His that II did not come
within the clause OF the Constitution which authorizes
Congress "tO promote the progress OF science
and the useful arts by securing for limited
times to authors and inventors the exclusive
right to their respective writings and discoveries"
vOgeler Co.. Of Baltimore, being largely Interested
in trademarks submitted the whole question 10 William
Henry Browne lawyer OF Washington, who has made
special study ~ the law Of trademarks, and has pub
lshcd treatise The subject which Is frequently
quoted lie has given opinion. Of which the follow
lug il tho substance. e holds briefly that earlier de
cisious were wrong in reasoning but right IN conclu
ons and that Judge Over right IN his reasoning but
wrong his conclusions. Omittug the references to
authorities, his opinion as follows:
Judge Dyer by means Of ample authorities, demon
stIates the ia lacy dcducng legislative power from
the paragraph OF the Constitution relating 10 authors
aud inventors. His opinion on that point clear, we'll
written ana lnpIrRnaDie Ihe courts have settled ta'
doctrine 10y decisions the long current OF whcG Ia un-
broken ~ e; eTsePl ~ on inc i DuT To5 c sS
Judge SWING wrong. II the learned Judge IN
Wsrou,in had coUUtnted binself with stopping
t.erc tins dsquiston needed not 10 be infected IL
Is understood " lay men well a. lawyers, that IL tns
decide the lgnt In which they presented.
| Peadcrs adopt tncorirs, aud Jndges apply tho law,
|
theory adopted. II the Court had merely dismissed
suit based on iase theory, counsel would haze bccu
| much satisfactory argument, judge Dyer ap.
pIoaches puul evidently nnd not been considered
bY counsel. Le' IL examine sOpIetiuR that 10 mu;h
hike az OJier dici,'Bi. lis said:
"It may pc uddcd that the constltnuonality OF the
trademark statute cannot b. sustained under INC c'au-c
which gives 10 Con-rc-s the power 10 regulate COM
n.crce among the several SAFES, nor my opinion.
uudor any " he provisions Of The Constitution which
pitscrih. the LEGISLATIVE powers OF Congress"
Issue is joined nt!eun. Nov Tor proofs. An able
jurist another Federal judge who gwen this subject
ma attention mas several times passed on This q1es-
UGcd states against Watson Rider. October Z.
1873, indictment for cOuntcrelling trademark,
held, as be- had done before men, that te statute ia
sion is constitutional That came up on demurrer
He declined 10 Lcar toe Argument o. the prisoners oOuu
ST. saying substantially, mat u was 700 latc day 70
assert tn contrary; ana That the same statue mai IRE
duent!y been drawn an question not only IN the United
States iiIcHt IoHrts ont also III INC supreme court OF
toe United States, ana N al in''4aseS M wa
Congress derive It's power 10 egi,lae tradcmarksi
Answer Under the paragraph uL ArlclO TO regulate
Justice Marshall 1ild, undoubtedly traffic,
j. something more II describes the commerce u
s branches, aud u regulated BY prescribing rules Tor
cIrryIug tina; Intercourse IN that case 49, later
Caca the Supreme Court held that commerce includes
navigation. emDargoes aud all other necessary lucI.
us of co nlIcrcc. Trademark ~ nn Incident OF
| commerce. lti very Maine implies that Our trc4trs
IscriDe and treat OF it as sncn So DO treaties OF
European Lati0us with another 30 DO the saturcs
81 H countries Tho statute IN question purpOrts TO
be for the protection commercial rghts nothing
else The V-ry existence Of tIadr-uurk ucpCuds On
commerce. The drvcu-wuateyer II may be-a SEAL a
any al biirary sytDbol nae no legal vitanIy until
fixed 10 mercnapdse, and It ceases 70 exist the Instant
hht II Is dssOciitcd thercfrom on Tue strength OF
al II, index Of good ialtn and fair dealing,
goods TO the yaue OF millions OF dollars csangc ownrT-
ship II APPLIES to al Kinds OF goodh, Wrar5 aud ner'
cDahdse whether steel rails enough TO reach across
continent or paper Of cambro needles; cosby one
u toy whistle barrel OF hOur or an oyscr-crHcker
same p?r ns1 f ali bear the ns SS 81 a4s
o.lrd a trade marx. ms marx Is an essen.
Ice frtheis Of the commercial paragraph supposed
that they had made t perfectly plain aud intchtibe
sran tue pnyer as 10 ono desciptoI or Inti, MT Of
commerce grants 1t az 10 alt The purpOses OF com
Wclce WOuid be TO great degee urirale huthcnii-
eating marEs-caled By an eminent French political
ECONOMIST tue honorable Of confidence and II
JutIre Iuhus ,1J; Commerce In is sitnrleat rig.
nIhcatOD. means exchange OF g"Ojs but IA The ad-
yanCem"Dt OF sOccy labor. transportation, lnlelI-
gomez care and various mediums OF exchAns brcou
GOnInOuti aud enter into commerce Tie subject the
vehcc. the agent. aud their various op atOus become
the subject Of commercial regulation" II ID diCdi 10
cOmPTchcnl commerce can be iuJ prO1octed, II u,
lnseUarto and trtisty nAndnaden ami symbol. TO hsS
die ,r1de- mark-s to Do eft q prNy 10 pirates
The power W regulate commerce l. exclusively IN
Congress aud Ia IL terms unlHit d. ana includes AL
usually been exorted undUr the pUweTs Tho lgcA OF
Tat uOWsr says tue supreme Court, WAS Que OF ths
plLcpaI deIocis OIL tho Goa, slu pIObaD9 -
much Ally cause cOnduoed to tue establishment VI ID
Constitution. Toe pOW0r 10 regulate commerce 10 FL.
ciusivelY IN Congress, for the iLdifouIi states are
unknown 10 iurosu naliUns. said Culri-Justco Mar
uont 10 b. uctOa Is 10 Do aIpnrd 10 Ali
wHch ueot the States generally; but
Dot 10 Tnoso wnICu completely WITHIN particular
state, wien d. not a ct states aud wIIh Sih
Is not necessary interfere Tor the purpose Of c1ecu
toe LGIGersdUrl case not OF Internal com
ercc LILO packages VI tobacco thai bear lLs marks.
II II had b~1D made that the goods were in
tonded exclusively Tor consumption NiIt the state q
hihOOnsn, Ia OF uiusfaI water dppCa irUln o
spring 60 be quacd tho spot OF refreshments sold Al
! II an inn, Lieu tGc casO would be dinerent.
In fux IlIH
authority 10 legislte tho subject OF rtdenarks,
IN not irrelevant rGirr 10 treaties and equivalent
Daiionai acts Trademark protection. Equally with
t5o the Constitution says tndt All trea c' IN ode,
which AhaII be made uader tho authority of tAy Utd
sg4tcs, si. DO tue supreme Jaw land" by
" Add tiondl Ar,le 10 the Treaty o, Navigation and
Commerce." between our country AID Russia Oi 1892
| which ArLcl0 concluded and signed January II,
| l56S-t "As provided thai, To secure compete ana
efncIen protection. tho traoenarks Of RUSS subecs
must TO lodged oIclus!yely at our Patent ONCE 10
also, BY TIE terms OF the Trademark ,OnNcuOn OF
Apfi4 III, 1859, nit1 France Ana again the SAINT 10y
tho Aud tiOnai Article 10 the Treaty OF Commerce snd
Navigation" with Belgium, proclaimed july 80. 1859.
diSputs d. IL Is axiom that the powers 20 make
treaties ana statues ale commensurate. Inr
subsequent rcglstra'lOn act eHbrHtes . HGlls
| guaranteed "by treaty or convention" Tue
act intended IN part 70 eneetuato those
IeatleH. IL IL treaty IA Yalid 50 mustsbe statute
passed accordance with IT, COuceding The prOposi-
lion tnat our Government can anu musi III Otec or'sn
Crs Ia t.eir rEnts to their TRADEMARKS, how can
benencent protection 10 the same extent be denied 10
our own ci.Izcnsi GOV runent without power 10 Jd-
dcay prot, CT lis own Incidents OF commerce "hrh
can project those vi Strangers and acus Is all iucnn'
| treaties meutuned. TIE declaration trrB Nv an
other nane) between tGe ULed states and Geat Brl-
tain, proclaimed july ~, 1878, says that 1t IL or tue
protection Of every Thug Relating 10 property IN trade
marks ana Tade-bels. IL Is undrrstOod that per
wnO desIres 10 obtain tho Aforesaid protection must
\ ulbl the 1OnnalIties required by the Laws VI
| tho respective cOuntries" The "forma ilies"
| Ierred u tuOse that requ red b. The
| registration statue then and now IN force ~
cJuGtTy. Why mat solemn declaration madei
IL iu order o secure the adytutAges one red
through Registration III corOary from the furego-
ing, that the statute IS treaties con-
venOns, and declarations. Oh tDU same suoecnatter
are nOckeres and cosby deusiUns. The preamble 10
tnc Constitution declares that II ordained "es-
taDhsh JustlcC,' ana promote the general welfare
The II OF thai Instrument duuUt INTENDED the
i III nlL.iI 10