The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1879-11-18
THE TRADE MARK LAWS.

DECISION OF THE UNITED STATES SUPREME
COURT ADVERSE TO THE CoNsTIrUTIoNALITY
OF THE srATUTE--oPINIoN OF THE COURT AS
DELIVERED.
WASHINGTON, Nov. II, 1879.
The following were among the business transac-
lions in the United States supreme Court to-day
No. soS. The United States. plaintiffs. vs. Emil
No, III The United States. plaintiffs. Adolph
Wtteman On certificates of division from the Cir
ea, court OF the United States for the Southern
no. Io9 The United States. psintiffs. VS. W. W.
Johnson ct al. On certificate of division from the
CS1rt OF the United states tor the Southern
These three cases are prosecutions for violations
OF VIVA. are Known US the trade mark laws embodied
~ sections 4S3i TO 4.947 OF the Revised Statutes
Inc question upon which the judges Of the lower
courts were divided In opinion is whether the acts
OF congress on the subject OF trade marks are
founded on any riehtful authority in the consttu-
ton OF the United States"
THE DECISION.
1t was maintained here by counsel who sought an
afhrmative answer this question that there
two clauses Of the federal Constitution which fur
pute The first is the eighth clause OF section g. art
Gle which provides that Congress shall power
sciences pSs and w the TO promote the progress OF
t tnn ,, lines TO authors and inventors
tine eSo omn N,so right 70 their respective
tue Court holds that the ordinary trade mark has
no necessary relation to invention discovery 1t
40 bohSA"Ay ehS outSroWtu OF considerable period
of rather than OF sudden invention and Is often
the result OF accident rather than design. The at
tempt to classify trade mark with the writings OF
authors Is open to objections equally strong.
The latter involve an element Of originality
as do also Inventions, while the trade
marx Is generally nothing than an
adoption OF something already in existence as
the distinctive symbol Of the person using it. 1t
does not depend upon novelty. invention. discovery
upon priority Of appropriation The Court is there
fore OF the opinion that while such legislation as
n noQf b.o n
mon law on the subject OF trade marks and may be
within the competency Of legislatures. whose gen.
authorized by the constitutional provision con-
corning authors and inventors. and their writings
aud discoveries.
THE POWER TO REGULATE COMMERCE..
The other clause OF the constitution relied on to
support this legislation the third Of the
ton. which provides that Congress shall have power
among the several States and with the indian
tribes The argument Is that the trade mark IL
used to identify . particular class or quality Of
goods and that used 1t is valuable aid or in
strument of commerce, and comes within the
gard this point the Court observes :-First-That
the clause quoted does not bring within the control of
Congress every species Of property which IL the sub
(Wallace VS. Louisiana. How. Is; Paul Vir-
gnia. WALL. 1851 and second, that the legisl.-
ton now in question does limit the Of trade
marks to Interstate or international commerce,
as 1t should do IL 1t be based the
stitutiOnal provision now quoted in its sup
merce between all points. 1t is obviously the
exercise OF power not conferred upon Congress.
That this Is the purpose Of this legislation seems,
in the opinion Of the Court. to be evident 1t
templates the establishment of univeral system OF
trade mark registration for the benefit of all who
have already used q trade mark who wish to
adopt one in future, without regard to the char
actor Of the trade to which it is to be
applied to the locality OF the owner.
Such legislation IL. in the opinion of this
Court in excess Of Congressional power. 1t has
been argued that il Congress have power to regulate
trade marks used in commerce with other nations
and among the several States, its legislation far
it relates to that class Of cases. should be held
valid; but to this the Court holds there two
objections. First. that there il nothing to show
that the trade marks in the three causes now
OF commerce, and second that it is not within the
Judicial province to give the words used by Congress
q narrower meaning than they manifestly in
tended to bear. To do would be virtually to
make law which would be only partial In its oper
ation and which would complicate the rights which
parties would hold in some instances under the act
Of Congress and in others under State laws.
TREATY QUESTION.
The Court wishes. however. to be understood as
leaving the whole question Of the treaty making
power OF the general government over trade marks
and the duty OF Congress to pass any laws
sary to carry such treaties into effect untouched.
The question in each OF these cases-v1z., whether
these statutes can DO upheld. In whole part
valid and constitutional--must DO answered IN the
negative, and 1t will be certified to the Circuit
Courts. Opinion by Justice Miller.
Under the provisions OF the Federal Trade Mark
law thus pronounced unconstitutional about eight
thousand trade marks have been registered at the
Patent Office. and about two hundred applications
for registry are now pending.