New-York tribune., 1879-12-20

limited and doubtful power to award
damages, and none at all to inii'ct
punishment; and her authority is often
thwarted by lack of proof OF the plalntii's s
priority. TO cure these defects ought 10 be the
leading objects of u Trademarks law. 1t should
prescribe some means, such as registration, by
which manufacturer or merchant may make
his claim known to all rivals, and so assure
evidence of his priority; and it should author
izc an action for damages, and possibly infiict
punishment as well grant injunctions
1t is doubtful whether trademarks law
should attempt any complete, exhaustive deh-
milton of what devices may be protected. The
attempt is likely to embarrass the courts In
applying the principle of the law to new de-
velopments OF business ingenuity which are
constantly arising. The English laws en-
deavor to give definitions. but their clumsl-
ness, verbosty and incOmpletness show that
the task is difficult. The act of Congress prof.
fered no definition. but authorized the
Commissioner of Patents to register trade
marks, and left it to him, guided by the de-
cisiOus of the courts, to decide what might Oe
registered. grave detect in the New-fo
general act (1S7S), and the same is noticeable
in the California law, is that only merchan-
disc il protected; and other States for the
most part protect only particular kinds OF
merchandise, mineral waters. beer, butter, etc.
These laws overlook a sign on building,
the name of hotel, and the like. The
Oregon law is broader; any person may
secure the exclusive use of any name, mark,
brand or description "for any article of man
"ufacture or trade, or for any mill, hotel,
" factory, machine-shop, or other place OF
business But this would not protect
newspaper in its name yet the question has
arisen, and the courts have decided several
times that newspaper is within the law.
Other cases can be imagined the character
istic names gwen TO seedlings and new va
rieties of fruit and flowers. In the ma
ture of the case the protection cannot
be secured by labelling the parent plants n
articles of goods. Ii is not possible to antici-
pate all the cases likely to arise; and the Act
of Congress did we'll to leave to the courts
the question-What is trademark
That there will be registration is n matter
of course, but there is need of distinct
declaration of the effect of the record.
A good trademarks law will make the record
conclusive evidence of the date of the persons
claim to his mark of the time when he de-
vised and adopted it but. at the utmost, only
prObable evidence of aught else. If 1t is ncceS-
sary, under the Constitution, that the
country should have thirty-eight regis
trations, in as many different States, some
provision is needed TO prevent in New York
from registering here trade mark which
has already registered in New-Jersey or
further away. aud begun to introduce. The
Secretary of State can search his own record,
and refuse As application if he finds has
preceded A in this State hut he cannot search
the records of all the States; and it is too
much to expect that will register in all
the thirty-eight at once. good State
trademarks law should allow it as a valid de-
fence that defendants sales are under reg
istration Of the mark in another state, made
before the plaintiffs registration in this. Man
ufacturcrs and merchants are constantly de-
string to sell ont and to transfer their trade
marks with the goodwill and stock. good
trademarks law should provide for assignments
of the right. Much perplexity has been felt
about persons right to use his own Aame,
exclusively, as a trade mark, aud the claim of
another person bearing the same name TO
enter the same business and be acOmpetltor. A
good law will prescribe simple rules
on this subject. These laws generally limit the
claim to a term of years. they should also make
some provision to annul the exclusive right
when the first owner disuses it, This often
happens. man registers a mark, does busi-
ness a while but abandons the vocation and
disuses the mark, long before the statute time
expires. Proof of this ought to. be n good
defence.
TO what extent the law should be available
to protect dealers in other States and in for
elgn countries, who have 10 houses or agen-
cies in this State, but whose goods are on sale
here, Is topic to be carefully and prudently
treated. Treaty rights and the Constitutional
provision as to equal rights of citizens of the
States ought not to be overlooked. In Mis-
souri, makers of a spurious Worcestershire
sauce" were prosecuted. under the State
trademarks law, by Lea a. Perrin, the Eng
lish proprietors and the Court said the Eng
lishmen had good case.
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If man desired TO make prosperous leap from
an express train which was running at the rate of
thirty or forty miles hour, he would hardly elect
In be chained fast TO another man by the wrists and