Daily Kennebec journal., 1894-12-20
tive word, quotes the following among
others as having been held descriptive

tive word, quotes the following among
others as having been held descriptive
and therefore invalid as trademarks.
Cherry Pectoral, Aver VS.. Rushtol 4,
DAILY, 9; Taffe Tolu, Colgan VS.. Danheis,
35 +. X. $50; Rye and Rock, Van
Bell. vs. Prescott, 46 N. Y, Super Ct.,
542; Straight Cut, Ginter VS.. Kinney
Tob. Co., 12 f. R., 7S2; Mascassar, Row
land VS.. Breidenboch, Coke on Trade
marks, No. 1856; Cresylic Ointment, Car
bolic Soap Co. VS.. Thompson, 20 +. II.
625; Iron Bitters, Brown Chemical Co.
VS.. Meyer 139 U. S. $40; figures u ON
cigarettes composed of two kinds of to-
bacco; Kinney vs. Allin, Hughes, 106.
But in these cases add the others ci ted
by defendant the words claimed as trade
marks were either originally descriptive,
or had become Incorporated into the
English language so as to be recognized
as descriptive of the article, and therefore
incapable of exclusive appropriation.
The evidence shows that the word Cot
toleo' is not formed in accordance with
any established rules for the formation
of new word Cott is merely sugges-
tive of cotton OIL 1t does not describe
it, and oleo may describe or refer to oleo-
margarine, as well as to oleo-stearine, or
to other oils. Oleo is ordinarily used as
a suffix and not prefix, and 1t Is shown
to be the rule in coming compound words
that the name of the more important ar
ticle is placed last.
There were various other words in COM
mon use describing the product when the
defendant coined the word 1t does not,
therefore, come within the principle OF
those cases where there is only a single
name to designate the new article or
where the new name is used merely as de-
scriptive of the article.
Defendants theory that where sugges-
tive trademark has been adopted, another
desiring to obtain the benefit OF the trade
mark may coin a word not already in the
language, and not made according to the
regular rules for coming new words, yet
sufficiently indicative of the quality and
character of the article to be invalid as a
trademark and sufficiently like the trade
mark in use to obtain benefit of an in
fringement seems to open the door for in
genious frauds
Under the circumstances OF this case,
the conduct of the defendant in rejecting
all existing names, and in coming new
name which conveys to the eye and ear SO
close an imitation of complainant's trade
mark, seems to indicate design to i'm
pose his article upon the public as that of
the complainant or at least to obtain the
substantial benefit of complainant's S trade
mark.
1t is well settled that the inventor of an
arbitrary or fanciful name may apply it to
an article manufactured by him to dis
tinguish his manufacture from that of
others, and that the subsequent use of
such word by the public to denote the
article does not deprive the originator OF
such word of his exclusive right to its
use Selschow VS.. Baker, 93 n. Y. 90;
Ausable Horse Nail Co. VS.. Essex Horse
Nail Co., 32 F. r. "A; Celluloid Mfg
Co VS.. Read, AZ +. r. 712.
Neither does the fact that the defendant
sold under its own name; and made no
attempt other than by the use of the word
"Cottoleo" to palm off his goods as those
of the complainant, constitute defense.
Roberts VS.. Sheldon, IS o. G. 1877, and
cases there quoted. Sawyer VS.. Horn,
+. R., "a; Hier vs. Abrahams, 50 n. Y,
319; Battle VS.. Finlay, As +. r., 796.
1t seems to be the law that when manu-
facturers have educated the public to
ask for a certain article by its trade
mark name, they have acquired the
right to insist that products manufac-
tured by others shall not be given to the
public under that name. 1t is just that it
should be so for the benefit derived from
such name can only be obtained by faith
full service in furnishing articles of recog-
nized value Moreover, if the trade mark
name might be adopted by others, inferior
articles might then be produced and sold
under it; and thereby the value to manu-
facturers of the reputation of the name
used by them as trademark would be
destroyed.
There will be the usual decree for an in
junction and an accounting"