New-York tribune., 1879-11-27
THE TRADE.MARKS OUTLOOK.

THE TRADE MARKS OUTLOOK.
Manufacturers and merchants should not
suppose, because the Supreme Court has pro-
nOunced the trademarks act of Congress un-
constitutional, that all Trademarks are ao0l-
ished, or even that the past registrations at
Washington are valueless. The gist of the
decision Is that the devices are to be pro-
tected by State courts and laws, not by Con-
eress. But the protection did not originate In
the National laws, and will not perish IN
their failure. Long before any official regis
tration was authorized there was we'll
established and toleraby efficient system,
loosely called, in popular discussion, protcc-
ton by the common law. More precisely,
courts of equity were accustomed to recognize
manufacturers or dealers exclusive right
to the trademark he had been the first to in-
troduce, and would give him the benefit OF an
Injunction restraining his rivals from imlta-
ting it.
A multitude of the more noted goods and
wares have had the benefit of this long-knOwn
equity doctrine in suits brought Independent
of any statute. All sorts of articles-bever-
ages, the "Schiedam Schnapps" and the
"Old London Dock" and Clubhouse " gins
medicines, the "Ferro-p -phosphorated Elixir
Vegetable Pain-kier" and "Stomach Bit
"tersr; provisions and household supplies,
Excelsior Washing Powder" "Self-raising
Flour and Worcestershire Sauce, perfum-
cry, the "Cocoaine and Balm of Thousand
Flowers, names OF newspapers, hotels and
establishments like "Chrlsty's Minstres y; and
every variety of pictured label and con-
figured device-have been brought INTO
court, like babies for christening, to
have their names adjudged the exclu-
sive property of their makers. Lately
a dealer In paper collars wanted the attrac-
tive parcel, in the simllitude of an ornamcnted
pail, in which he packed them, adiudged his
trademark but the Judge said, No; If the
shape of packages is called q trademark, be-
fore long some one will claim the exclusive
use Of brown paper and a bit OF twine, and
then there will be an end of retail trade.
These trials have been known long before
any Act of Congress, and have always at
tracted no little attention In the court-rOoms
from the display of the samples of the rival
goods and their snowy wrappers and odd
labels which the opposing lawyers produce for
inspection. More curious yet have been the
suits in which each parry claims to be only
now pending where father who years ago
dropped his baptismal name and adopted (by
assent of the Legislature, to be sure) his nom
dc plume as a business name now asks to
have his son enjoined from dong business
under the like change, because the name has
become the fathers trademark This whole |
branch of law is Independent of any statute |
The vital point in any such controversy has
Il. Al.
claimants priority in adopting and introduc-
ing his device. If lie was first in the market |
and the public is liable to be deceived by de-
fendaDt's imitation, the Court will protect him |
by an Injunction.
But this priority is difficult to prove; es-
pecially was it so before registration, and |
when trade marks grew into use and value in |
gradual, indefinite way. Many a complain |
ant lost his case because defendant stoutly /
swore he had used the device equally long. |
The original and leading object of trademark |
statutes was to relieve this difficulty. BY au-
thorizlng an official registration the law en-
abed a manufactures TO secure a permanent |
legal record of the very time when he intro
duced his mark and of Its precise form. Pun
ishing imitatOrs by specific penalties was a
later thought. The Supreme Court decision Is
understood to defeat prosecutions for penalties,
and to deprive United States Courts of the
power to grant inuncuons, at least when both |
parties reside in the same State. But St4te |
Courts will entertain these suits "a freely as
ever; and whoever sues III a State Court will |
probably find that the registration of his
marx at Washington will stand him in good
stead as proof that he designed and used it
earlier than his competitor. 1t will not have
the support and force of law, but it will be
good matter of fact to show that be was first
1t will be just as competent as and several de-
grees more persuasive and convincing than old
advertisements, account books and letters. or
recolections of witnesses, to prove priority
And upon proof of priority the complainant
may have very helpful and efficient decree
from State Court, with or without the aid
of State statutes, of which there are now
several, and probably will soon be more.