The Washington times., 1901-10-13
A STRANGE PATENT LAW.
No Man Has the Right to Use His
Own Name.

Must Register Trade Marks Under
Some other Cognomen-Smith Must
Prot. ct Himself Under the Jones
Title workings of the Rule.
Ought a man to have a better right
to the name of some one else than to
his own name in his own business?
This is the question which a good
many manufacturers and solicitors are
trying to answer. The sharp reversal
of the policy which had prevailed for
nearly twenty years in the registration
of trademarks in the Patent Office is
responsible for the discussion.
To put it in nutshell, the Patent Of
flee now allows a man to register some
other mans name as a trademark, but
not his own. For instance, Commits
sioner Duell refused to allow the Gale
Manufacturing Company to register the
name Gale" used by it for many years
previous as a trademark. He also re-
fused to permit the Buffalo Pitts Com
pany to register the words Buffalo
Pitts" More recently the present Com
missioner refused TO allow the Burt
Shoe Company to register the word
Burt" used by them for more than
half a century.
On the other hand, many surnames
have been registered during the same
period. A large tobacco company was
allowed to register the name Under
bag" not its own. The American To-
bacco Company was allowed TO register
the words wv. Duke & Sons" Percy
Shelley, a London manufacturer of
china, was allowed to register the sur
name Foley" From this practice the
inference naturally follows that a busi-
ness man has better right TO the name
of some one else than to his own.
Trade marks are registered under the
acts of 1881 and 1882 The first act had
clause providing that the Commis-
sioner of Patents should not register a
trademark which Mas merely the
name of an applicant"
Many surnames had become irrevoc-
ably attached to certain articles of
manufacture. Therefore, to prevent
any injustice, Congress the following
year passed short act providing that
nothing in the preceding act should
prevent the registration of any lawful
trademark rightfully used before the
passage Of the former act. Therefore
from almost the beginning of the regis
tration OF trademarks up to the middle
of 1898 the Patent Office at Washington
allowed the registration of trade marks
consisting of surnames that had been
In use long prior to the registration
act, so that they had become associated
with the goods of a certain person.
As late as the first half OF 1898 seven
teen surnames We're registered as
name Among these was the name
Skinner" registered by the Skinner
Manufacturing Company; the word
"Burdette," registered by the Burdette
Manufacturing Company, and THE
Wanamaker Store, registered by John
Wanamaker.
Then the policy of the Patent Office
suddenly changed; the letter of the
main act of Congress was stuck to like
grim death, but the spirit of the sup
Elemental act was entirely crushed out
of it.
The reason at the base of the princi-
pie that a surname must not be used as
trademark is that a surname cannot
be the exclusive property Of any one
person as against all others who own
the name This is reasonable enough.
say these interested, if applied alike to
all surnames But why frown upon u
mans own name, and allow him to take
that of his next door neighbor perhaps?
The Patent Office cannot prevent the
use of a trademark, the validity of the
latter being decided by the courts. Its
registration does not affect its use in
this country, but 1t enables American
citizens to protect their interests IN the
many foreign countries where registra-
ton is necessary, but is not granted to
foreigners until they have first obtained
home registration.
Therefore, the Patent Office, while ii
protects in this country the interests of
the Englishman, Shelley. who registers
another name as his trademark, re-
fuses to give numerous American com
panies the means of protecting their in
terests in England.
The courts of this country have con-
tinuaIly granted the exclusive use OF
surnames in the form of trademarks,
when such name ~ long-continued use
| in connection with certain article, has
come to be known as applying TO the
output of one establishment. Cases IN
point are Clark's thread, Bakers choc-
olate. Mrs. Winslow's soothing syrup,
Burt shoes, and numerous others. In
| the Burt case the Superior Court OF the
City of New York pronounced the name
a valid trademark as far back as lS'S
while this year the Patent once mas
| refused to register it,
According TO the courts, II mar be
| longing TO the multifarious Smith lam
ily should make g certain class Of goods
famous under that name, he would
have a right to the use of the name
| smith" as a trademark for that par
ticular class of goods, to the exclusion
| of all the other Smiths. But the Pat
ent Office doesn't think so. 1t is con
ducting its affairs now on the principle
that this particular Smith couldn't take
the name Smith for a trademark
but might cut over the Jones family
and register an exclusive right to that
almost equally popular and prevalent
surname.
HAY BRICKS FOR HORSES.