The progressive farmer. [volume] (Winston, N.C.) 1886-1904, 1894-12-25


certainly a trade mark claimed in any
other word cannot prevent the defend
ant from using it.
He says that, as this was a new com
pound when compliments began to
manufacture it, they could not, by
their choice of a name adopted as a
trademark restrict any parties there
after manufacturing in their choice of
descriptive words.
He says that defendant was justified
''in using a word which was euphoni-
GUS, and which indicated the ingredi-
ents Of which the product was com
posed, and that no trademark claimed
or owned by the complainant a
abridge that right"
The questions as stated by defendant
then are: First. Is 'Cottoleo" 81 far a
descriptive word that it could not be
used as a trade mark3
Second. When a manufacturer origl-
mating a new compound has given it a
name suggestive of ONE of the ingre-
dents, but a valid trade mark, may a
later manufacturer adopt a name SINH
lar in appearance and sound, provided
the same is so, far descriptive of the
article that it would not be valid as a
trade mark7
Defendants counsel in support of his
contention that "Cottoleo" is a descrip
tive word, quotes the following among
others as having been held descriptive,
and therefore il valid as trademarks,
Cherry Pectoral, Aver Us. Rushton,
z DAILY, 9; Taffe Tolu, CoIgan Us. Dan
hels, So f. R $50; Rye and Rock,
Van Bell Us. Prescott, As N. Y. Super
Ct, $40; Straight Cut, Ginter Us. Kin
ney lob. Co., IL F. R., 1852; Mascassar,
Rowland as. Breidenboch, 1 Coke on
Trade marks, No. 1856; Cresylic Oint-
ment, Carbolic Soap Go. Us. Thompson,
25 f. R, 625; Iron Bitters, Brown
CHI mical Co. Us. Myer, 139 U. s., $40;
figures ] on cigarettes composed of
two kinds of tobacco; Kinney Us Allen,
1 Hughes, 1O6.
But in these cases add the others
cited by defendant the words claimed
as trademarks were either originally
descriptive, or had become incorpora
ted into the English language so as to
be recognized as descriptive Of the
article, and therefore incapable of ex
elusive appropriation.
The evidence shows that the word
"Cottoleo" is not formed in accordance
with any established rules for the for
nation of a new word. Colt is merely
suggestive of cotton oil. It does not
describe it, and olcO may describe Or
refer to olco margarine, as well as to
olco stearine, or to other oils. Olco is
ordinarily used as a sufix and not a
prefix, and it is shown to be the rule in
coming compound words that the name
of the more important article is placed
last.
There were various other words in
common use describing the product
when the defendant coined the word.
1t does not, therefore, come within the
principle of those causes where there
is only a single name to designate the
new article or where the new name is
used merely as descriptive of the arti
Gle.
Defendants theory that where a sug
gestive 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 coin
ing new words, yet sufficiently indica-
tive of the quality and character Of
the a ] ticle to be invalid as a trade
mark and sufficiently like the trade
mark in use to obtain benefit of an in
fringent seems to open the door for in
genius fraud.
Under the circumstances of this case,
the conduct Of the defendant in reject
ing all existing names, and in coming
a new name which conveys to the eye
and ear so closely an imitation of com
plainant's trade mark, seems to indi-
cate a design to impose his article upon
the public as that of the complainant,
or at least to obtain the substantial
benefit of co~mplainant's trade mark.
It is well settled that an inventor of
an arbitrary Or fanciful name may ap-
ply it to an article manufactured by
him to distinguish his manufacture
from that of others, and that the sub
sequent use of the word by the public
to denote the article does not deprive
the originator of such word of his ex-