"That no article of imported merchandise which shall copy or simulate
the name of any domestic manufacture, or manufacturer or trader,
or of any manufacturer or trader located in any foreign country
which, by treaty, convention, or law affords similar privileges
to citizens of the United States, or which shall copy or simulate
a trade-mark registered in accordance with the provisions of this
act, or shall bear a name or mark calculated to induce the public
to believe that the article is manufactured in the United States,
or that it is manufactured in any foreign country or locality other
than the country or locality in which it is in fact manufactured,
shall be admitted to entry at any custom-house of the United States;
and, in order to aid the officers of the customs in enforcing this
prohibition, any domestic manufacturer or trader, and any foreign
manufacturer or trader, who is entitled under the provisions of a
treaty, convention, declaration, or agreement, between the United
States and any foreign country to the advantages afforded by law
to citizens of the United States in respect to trade-marks and
commercial names, may require his name and residence, and the name of
the locality in which his goods are manufactured, and a copy of the
certificate of registration of his trade-mark, issued in accordance
with the provisions of this act, to be recorded in books which shall
be kept for this purpose in the Department of the Treasury, under
such regulations as the Secretary of the Treasury shall prescribe,
and may furnish to the Department facsimiles of his name, the name
of the locality in which his goods are manufactured, or of his
registered trade-mark; and thereupon the Secretary of the Treasury
shall cause one or more copies of the same to be transmitted to each
collector or other proper officer of customs."
+---------------------------------------------------------------+
| [Illustration] |
| |
| =Within This Circle= |
| |
| Eighty-five millions of people live within this circle. |
| It is the great battle-ground on which advertising |
| campaigns are won or lost. |
| |
| In this area are 42 cities of 100,000 or more inhabitants, |
| and 167 other cities with populations between |
| 25,000 and 100,000. |
| |
| The J. Walter Thompson Company knows this |
| territory from actual contact with the buying public |
| that lives in it. |
| |
| Our branch offices in the great mercantile centers, |
| as shown on the map, have been established for the |
| purpose of studying at first hand the conditions of |
| distribution and merchandising that must necessarily |
| figure with great weight in any national advertising |
| campaign. We have better facilities for acquiring |
| practical selling information than any other agency in |
| America. |
| |
| Most of the national advertisers in the United |
| States and Canada are within thirty minutes of one |
| of our eight offices. Ninety per cent of national advertisers |
| are within two hundred miles of a J. W. T. |
| office. |
| |
| =J. WALTER THOMPSON COMPANY= |
| |
| =New York: 44 East 23rd Street= |
| =Boston: 201 Devonshire Street= |
| =Cincinnati: First National Bank Bldg.= |
| =St. Louis: Odd Fellows Bldg.= |
| =Chicago: The Rookery= |
| =Cleveland: Swetland Bldg.= |
| =Detroit: Trussed Concrete Bldg.= |
| =Toronto: Lumsden Bldg.= |
| =London: 33 Bedford St., Strand= |
+---------------------------------------------------------------+
CHAPTER V
Assignment
It is a fixed principle of the law that a trade-mark cannot be
assigned, or transferred, without a transfer of the business with which
it is associated.
Trade-marks indicate origin. They are intimately associated with the
merchandise for which they are registered. This being a fundamental
principle of trade-mark law, it can be understood that a trade-mark
cannot pass from hand to hand, and transferred as a separate thing,
without losing its real function as a trade-mark.
The Act of 1905 (Section 10) provides that any registered trade-mark
may be assigned "in connection with the good-will of the business in
which the mark is used."
In the case of _MacMahan Pharmacal Co. v Denver Chemical Mfg. Co_. (113
Fed. R. 468), the court said:
"A trade-mark cannot be assigned, or its use licensed, except as
incidental to a transfer of the business or property in connection
with which it has been used. An assignment or license without such a
transfer is totally inconsistent with the theory upon which the value
of a trade-mark depends and its appropriation by an individual is
permitted. The essential value of a trade-mark is that it identifies
to the trade the merchandise upon which it appears as of a certain
origin, or as the property of a certain person.... Disassociated from
merchandise to which it properly appertains, it lacks the essential
characteristics which alone gives it value, and becomes a false and
deceitful designation."
There is a silk fabric bearing a "Radium" trade-mark, and known in the
trade, and among consumers as "Radium Silk." The manufacturers of this
fabric, The Gilbert Manufacturing Company, assigned this trade-mark
in 1905 to another concern (Eiseman & Company). With the trade-mark
they turned over to Eiseman & Company all the manufactured and labeled
goods then in their possession. Thereupon the Gilbert Company ceased
to use the trade-mark, but did not stop manufacturing the goods, which
they put upon the market under the name "Electra". It seems to have
been understood by Eiseman & Company, according to the evidence, that
the Gilbert Company was to continue making the goods, provided they
gave their product some other name than "Radium". As soon as Eiseman &
Company obtained the assignment of the trade-mark they, too, began to
manufacture the fabric, and sell it under the "Radium" trade-mark.
[Illustration:
GENUINE
"BULL" DURHAM
SMOKING TOBACCO
STANDARD OF THE WORLD
_A trade-mark, or an advertising character, or a catch phrase, may
be so thoroughly advertised that it becomes better known than the
commodity to which it applies. A little New York girl, age six, who
had hardly passed a day of her young life without seeing a ferocious
Durham bull glaring from billboards and the fences of vacant lots,
gravely said to her mother one day: "Mamma, is all tobacco made from
bulls?"_
]
Now the matter comes into court through the suit of Eiseman & Company
to prevent a third manufacturer from using the "Radium" trade-mark.
They contended that the assignment of the mark to them by its original
owner, The Gilbert Mfg. Co., gave them the exclusive right to its use.
The court held that, in the first place, the assignment of the
trade-mark to Eiseman & Company was invalid, because it was not
accompanied by a transfer of the good-will; in the second place, the
fact that the Gilbert Company discontinued the use of the trade-mark,
constituted an abandonment. Injunction was denied.
In this case, the court said: "When a trader has sold some particular
article under a selected name to such an extent as to secure
registration, he has established a special business in which that
trade-mark is used, and if the trade-mark becomes so valuable as to
induce him to sell it, he must, as a condition of transfer under the
statute, assign that special business with the trade-mark of which it
was the parent. Eiseman & Company, therefore, acquired no rights under
the alleged assignment, which did not carry the special business."
[Illustration:
DAVOL
_While this trade-mark is simple, it lacks attractiveness and
euphony. It is without distinction, and is easily overlooked and
forgotten._
]
There are exceptions, however, to this rule. The nature of these
exceptions may be best shown by citing a case--that of _Witthaus v
Braun_ (44 Maryland--1875). In this case a tobacco dealer, who did
not manufacture goods himself, had special brands made for him by a
manufacturer. The tobacco dealer owned the brands, and merely hired the
manufacturer to make his goods. The dealer assigned to the manufacturer
"all his smoking tobacco brands", without transferring any other part
of his business. It was held that in this case the assignment was
valid, because the origin of the goods had not been changed by the
transaction. The same manufacturer continued to make the tobacco, the
only difference being that he now owned the business, instead of making
the goods on contract.
The right to use a trade-mark identified with a business location may
pass, under certain circumstances, to a purchaser of the building.
The purchaser of a hotel building, for example, buys with it the right
to use its name, unless a specific stipulation to the contrary is made.
A theatre building known as Booth's Theatre was owned and managed by
one Booth. After several years of occupancy, he leased the building to
another person, who proceeded to give theatrical performances there. In
his advertisements he referred to the place as Booth's Theatre, giving
his own name as lessee. Thereupon, Booth attempted to enjoin this use
of the name. The court held that the name passed with the lease of the
building.
In cases where the business is of such a personal nature that the
trade-mark or trade-name is identified in the public mind with the work
of some particular individual, it is obvious that deception would be
practised if the same identifying mark were used after that individual
had ceased his connection with the enterprise. In such cases, there can
be no valid transfer of the trade-mark even though the entire business,
including good-will, is sold. Such a trade-mark is personal. Its use on
goods indicates the special knack or skill of some one person.
The courts will protect the purchaser of a business in the use of its
trade-mark or trade-name against infringement by the former owner, even
though the trade-name is that of the former owner.
This principle is illustrated in the case of _Jergens Co. v Woodbury_,
given in the New York Law Journal (Nov. 1907). The Jergens Company was
the sales agent of John H. Woodbury, the celebrated dermatologist, in
the sale of "Woodbury's Facial Soap." In 1901 Woodbury assigned the
business to the complainant. Under the complainant's management a large
and profitable sale for the soap was established.
[Illustration: _The famous Woodbury trade-mark._]
In 1906, Woodbury started to manufacture soap again, calling his
product "Woodbury's New Skin Soap." This product, so far as the package
or wrappers were concerned, had no resemblance to the complainant's
soap, the only point of similarity being in the name.
In a suit brought in the New York Supreme Court it was held by the
court that there was ground for belief that the public would be misled
by defendant's use of the name Woodbury, and he was accordingly
enjoined.
This case went up to the Court of Appeals, and that court upheld the
decision of the lower court, in so far as the defendant was restrained
from using the name Woodbury in connection with the sale of soap in
such a way that the public would be led to believe that his product was
"Woodbury's Facial Soap" or a new brand thereof.
For the assignment of a trade-mark no particular form of assignment is
required except it must be in writing.
The law provides that assignments may be recorded in the Patent Office.
If any assignment is not recorded within three months after its date,
it will be held void as against a subsequent purchaser for valuable
consideration.
CHAPTER VI
Trade-Marks in Canada
Trade-marks are registered in Canada in the Department of Agriculture.
The Canadian law recognizes two kinds of trade-marks, viz.: General
Trade-marks and Specific Trade-marks. These two kinds of marks require
separate registrations.
A "general trade-mark" means a trade-mark used in connection with the
sale of various articles in which a proprietor deals in his trade,
business, occupation or calling generally.
A "specific trade-mark" means a trade-mark used in connection with the
sale of a class of merchandise of a particular description.
[Illustration:
_Corticelli_
SPOOL SILK
_The Corticelli kitten is both a trade-mark and an advertising
character._
]
In this respect the Canadian and American trade-mark laws differ
materially. The American law does not recognize a "general"
trade-mark--that is, a trade-mark applicable to any merchandise a
manufacturer may produce, irrespective of its class. An American
trade-mark is registered for use in connection with a specific product,
or for use in connection with a class of merchandise, all the units
of which have the same general descriptive qualities. The "specific
trade-mark" of Canada corresponds closely to the American trade-mark.
The Canadian definition of a trade-mark is as follows:
"All marks, names, labels, brands, packages or other business
devices, which are adopted for use by any person in his trade,
business, occupation or calling, for the purpose of distinguishing
any manufacture, product or article of any description manufactured,
produced, compounded, packed or offered for sale by him, applied in
any manner whatever either to such manufacture, product or article,
or to any package, parcel, case, box or other vessel, or receptacle
of any description whatsoever containing the same, shall, for the
purposes of this Act, be considered and known as trade-marks."
The Trade-mark Act of Canada is more broad and liberal than the
American Act, as is shown by this definition of trade-marks. Not
only are marks, names, labels and brands considered trade-marks, but
"packages" and "other business devices" are also included.
An applicant who seeks to register a trade-mark must state in his
application whether the trade-mark is intended to be general or
specific. If specific, a description of the merchandise on which it is
to be used must be made a part of the application.
A general trade-mark, once registered, shall "endure without
limitation."
The registration of a specific trade-mark expires in twenty-five years,
but it may be renewed at the end of that period, and so on from time to
time.
The registration fee for a general trade-mark is $30.00; for a specific
trade-mark, $25.00.
The Minister of Agriculture may refuse to register a trade-mark for any
one of the following reasons:
1st. If he is not satisfied that the applicant is undoubtedly
entitled to the exclusive use of such trade-mark.
2nd. If the trade-mark proposed for registration is identical with or
resembles a trade-mark already registered.
3rd. If it appears that a trade-mark is calculated to deceive or
mislead the public.
4th. If the trade-mark contains any immorality or scandalous figure.
5th. If the so-called trade-mark does not contain the essentials
necessary to constitute a trade-mark, properly speaking.
The "essentials necessary to constitute a trade-mark" are not defined
by the law, an omission which means that the English common law
definition of a valid trade-mark, as shown by the decisions of the
courts, must be the basis on which eligibility to registration is
based. No mark or symbol which has a designating or descriptive
quality may be registered.
When a descriptive word has been registered, through error of the
registrar, it does not give the owner of the mark exclusive right to
its use. As in the United States, registration is only _prima facie_
evidence of validity.
[Illustration:
AMERICAN SHEET & TIN PLATE CO.
APOLLO
BEST BLOOM
TRADE MARK REGISTERED
PITTSBURGH
_A trade-mark used on sheet tin. It is affixed by stenciling._
]
The right to a trade-mark belongs to the first user of the mark. If it
is registered by any other person than its first user, the registration
may be set aside as invalid upon the production of proof of its prior
use by any other person than the registrant.
The law states that "no person shall institute any proceeding to
prevent the infringement of any trade-mark, unless such trade-mark is
registered in pursuance of this act."
[Illustration:
TRADE
ELASTICA
MARK
FLOOR FINISH
_A well-advertised trade-mark._
]
This provision of the law would seem to exclude actions based on the
common law, but in practice the Canadian courts take cognizance of the
doctrine of unfair trade. The prime requisite of registration before
infringement proceedings can be instituted merely makes the mode of
procedure different from that in the United States. The complainant
must get his trade-mark registered before he begins his suit against
the infringement. If the mark alleged to infringe has already been
registered, the plaintiff moves to set the registration aside as
invalid, and have his own mark registered instead of it.
A circular containing the full provisions of the Canadian law, with
directions and forms for making an application for registration, may
be obtained by any person who will write for it to the Minister of
Agriculture, Ottawa, Canada.
CHAPTER VII
How to Devise a Trade-Mark
A Trade-mark may be a word, or words; or a device; or a device combined
with a word or words.
It is often considered desirable to register the name of a product as
a trade-mark. Consequently, in the case of new products, the selection
of a trade-mark often means the selection of a name for the merchandise
with which the trade-mark is to be used.
[Illustration:
CREX
Grass Furniture
TRADE MARK
_A familiar and excellent example of a coined word used as a
trade-mark._
]
A trade-mark, to be valid, should not have any meaning obviously
descriptive of the goods for which it is registered. The word "Crex",
to illustrate our meaning, is an arbitrary coined word. As such it
is registrable, and besides its undoubted validity, it has some of
the best qualities that a trade-mark can possess, in that it is
short--of one syllable--easy to pronounce and remember, and its sound
is not displeasing to the ear. Note that in the name "Crex Grass
Furniture", the word "Crex" is alone registrable. "Grass Furniture" is
a descriptive term.
Coined words, like Karo, Onoto, Chiclets, Crisco, Uneeda, Jap-a-lac,
Sapolio, are virtually infringement proof. The ownership of a coined
word, as applied to the commodity with which it is associated, rests
absolutely in the individual or concern that first uses it.
Many of these coined words are only fortuitous combinations of letters,
arrived at after divers experiments. Such a word is "Onoto", applied
to a fountain pen. It was selected from a list of hundreds of similar
names, in which all sorts of curious arrangements of letters were set
down.
In the creation of an artificial or "coined" word, a mere misspelling
of a word or phrase does not make it registrable, if it would not be
so otherwise. "Bestok", a misspelling of "Best Stock", was refused
registration, as it is plainly descriptive.
"Omo" is the trade-mark of a dress shield; "Persil"--a coined word--is
a washing compound; and "Steero" is the trade-mark and the name of
bouillon cubes.
"Sealpackerchief" is a name made up of "Sealed", "Package" and
"Handkerchief". It is the trade-name of a brand of handkerchiefs that
are sold in clean sealed packages.
"Nabisco" is a name made by joining together the first syllables of the
three words "National Biscuit Co."--Na-Bis-Co--Nabisco.
+---------------------------------------------------------------+
| =The Porto Rico Seal of Quality= |
| |
| [Illustration] |
| PORTO RICO ASSOCIATION |
| DISINTERESTED |
| INSPECTION |
| HONESTY |
| PURITY EFFICIENCY ENERGY EXCELLENCE |
| PROGRESS |
| ON THE SQUARE |
| GUARANTY |
| |
| The Government of the Island of Porto Rico has |
| given its encouragement and material support to the |
| formation of an association among the large planters, |
| shippers and manufacturers of the Island. This organization, |
| known as the Porto Rico Association, is active in promoting |
| the sale of Porto Rican products in the United States. As a |
| guaranty of the quality of the goods, each member of the |
| Association--after his shipment has been inspected and |
| approved--has the right to use the "Porto Rico seal of |
| quality", shown here. This seal is not a trade-mark in the |
| technical sense, but it is affixed to Porto Rican merchandise |
| of high quality, sold at the New York store of the Porto |
| Rico Association at 510 Fifth Avenue, New York, and |
| elsewhere, and in that relation it is a common law |
| trade-mark, with ownership vested in the Porto Rico |
| Association. |
+---------------------------------------------------------------+
The name "Roxonia", a registered trade-mark, applied to hosiery and
underwear, is an evolution of the name Roxburghe. When the goods were
first put on the market the Duke of Roxburghe was on a visit to the
United States, "taking notice" of an heiress, and was, in virtue of
this situation, much in the public prints. A manufacturer of underwear
thought Roxburghe sounded pretty good, and he applied for registration
of the name as a trade-mark. His application was refused on the ground
that Roxburghe was the name of a person. Abandoning "Roxburghe",
another cogitation of the subject brought to light the word "Saxonia",
this name having been suggested by the fact that Saxony is one of the
great centers of hosiery production. "Saxonia" was refused registration
because it is a geographical term. The addition of two letters to the
word "Saxon" does not make sufficient change to remove it from the
prohibited class of geographical terms. With these two rejections
before him, it occurred to the manufacturer that he could unite the two
words, and get rid of the objectionable feature of each. This was done,
and the result is "Roxonia", which is not only a valid trade-mark, but
a very good one.
[Illustration:
REG. US ARCO PAT OFF
SPOTZOFF
_The clever trade-mark of a cleaning fluid._
]
A trade-mark may consist of a coined word which is suggestive, but
not descriptive. An example of this is shown in the "Arco Spotzoff"
trade-mark. This is the name, as well as the trade-mark, of a cleaning
fluid. "Spots Off", spelled in any way whatsoever, suggests cleaning
and cleanliness, but it does not describe the cleaning fluid. This
is a very ingenious trade-mark. With a slight variation it would be
unregistrable. For instance, "Spot Remover" would not be valid, because
it is an ordinary descriptive term--an advertisement, in short.
[Illustration:
RUBEROID
(Trade Mark. Reg. U. S. Pat. Office)
_Susceptible of mispronunciation._
]
Two other examples of coined words, suggestive but not descriptive, are
"Sealpackerchief"--mentioned above--and "Hydegrade".
In some instances, there is a sort of tangential, or left-handed
suggestiveness, about a trade-mark which gives it a significance quite
different from the idea that was in its owner's mind when he adopted
it. This is a defect in any trade-mark. An example of this is the
"Ruberoid" trade-mark, applied to a high-quality, ready-to-lay roofing,
sold in rolls. It is pronounced "Rue-ber-oid". The owners of this
product state, in their advertising, that Ruberoid does not contain
any rubber. It is not a rubber roofing. But a large percentage of the
public pronounces the word "Rubber-oid", and many people have the
impression that Ruberoid is a rubber roofing. The name is suggestive of
rubber. This effect is not an intentional one, as is plainly shown by
the widely advertised statement of the owners that Ruberoid contains no
rubber, as well as by their taking the trouble to indicate the correct
pronounciation in their advertisements.
[Illustration:
WILBUR
TRADE MARK
Reg. in U. S. Pat. Off.
_The trade-mark of H. O. Wilbur & Sons._
]
A trade-mark name should not be easily susceptible of mispronunciation.
An arbitrary symbol may be a valid trade-mark. The Wilbur Chocolate
trade-mark, showing a Cupid stirring a cup with a large spoon, is an
example of an arbitrary symbol used for this purpose.
[Illustration: _The McCutcheon trade-mark. Suggestive of fine linen._]
The McCutcheon trade-mark, consisting of the representation of an
old-fashioned spinning wheel, is arbitrary in the sense of not being
descriptive, but it is suggestive of flax and fine linen, which is a
specialty of the McCutcheon store.
The trade-mark of Domino sugar is the picture of a red domino or mask.
Initials, like "E. & W."--used on Earl & Wilson collars; "G.E."--the
trade-mark of the General Electric Company; and "R & G"--used on
corsets, are valid as trade-marks.
[Illustration:
SONOR
_A trade-mark in which the defects predominate._
]
A trade-mark may be the name of a fictitious person, like "Buster
Brown", used in connection with hosiery, and "Dorothy Dodd" used as a
trade-mark for shoes.
A famous example of initials used for this purpose is the "B.V.D."
trade-mark.
[Illustration:
RUBDRY
BATH TOWEL
_An excellent, distinctive trade-mark._
]
Good trade-marks are simple and distinctive. The mark should be of such
a character that it can be easily retained in the purchaser's memory,
and it is apparent that this is not readily done when it is complicated
and commonplace.
Look at the "Sonor" trade-mark, reproduced on this page, as an
illustration of this point. The lettering is so involved that it is
difficult to read, and it looks like a pattern of some intricate fancy
work. Compare it with the simple, clear-cut "Rub-dry" trade-mark.
[Illustration:
BIRD
NEPONSET
PRODUCTS
TRADE MARK
Reg. U. S. Pat. Off.
_A trade-mark cluttered up with too much detail._
]
The "Neponset" trade-mark has so much in it, including the picture
of a child in a rainstorm, that it loses its character when it is
reduced to any practical, small size for advertising purposes. The
single word "Neponset", enclosed in a simple design, would be much more
effective--or the child holding the piece of roofing over her head
would be equally effective, if shown alone, without a background.
An example of a commonplace trade-mark is the big "P" surrounded by
a circle. This mark lacks distinction and originality. It makes but
little impression upon a reader's mind, and is soon forgotten.
[Illustration:
p
TRADE MARK
_A trade-mark that bears a startling resemblance to a soda-water
check._
]
Compare the big "P" with the admirable "Pacific" Mills trade-mark.
The Pacific Mills emblem is graceful, simple, distinctive, and has a
swing and a whirl to it that suggest motion. When a symbol is used as a
trade-mark it is always advisable to put the suggestion of motion into
it, if this can be done without the sacrifice of some other essential
quality. A thing in motion arrests the eye, and holds the attention,
much better than a still figure. Evidence of this is seen in the
well-known Dutch Cleanser trade-mark, where the motion of the lady in
wooden shoes dominates every other quality of the symbol.
An arbitrary number may be a valid trade-mark. The number "830" has
been judicially held to be a good trade-mark for a brand of hosiery.
The number "4711"--an arbitrary arrangement of figures--has been in use
since 1792 as a trade-mark for toilet preparations. The numerals "1"
to "35" are valid trade-marks, as applied to Humphrey's Homeopathic
Remedies.
A numeral indicating quality or composition cannot be protected against
infringement.
[Illustration:
TRADE
PACIFIC
MARK
_This design is very attractive. A fine example of a symbol with
wording._
]
A trade-mark may be the name of a mythological character, like Juno,
Venus--there is a Venus lead pencil--Hercules, or Apollo, this last
name being used in connection with a player-piano. It may be the
name of an historical character, like Voltaire, Buckingham, Mazarin,
Napoleon--used with a brand of flour--or Champlain; or Samson, used
as a name of a clothes-line sold in a package. It may be the name
of a character in fiction, like Hamlet, David Copperfield, Hypatia
or Portia. "Pequot", the name of an extinct Indian tribe, is the
trade-marked name of a brand of sheets and pillow cases. The name of
an existing Indian tribe is not valid as a trade-mark, as it has a
geographical significance.
A phrase in common use may be registered as a trade-mark, provided it
has none of the qualities prohibited by the Act of 1905. For example,
"Yours Truly" is the registered trade-mark of an article of food.
A word in common use may be valid as a trade-mark if it has no defects
under the act. There is, for instance, an "Arrow" collar, a "Lion"
collar, and a "Velvet" smoking tobacco. If careful consideration is
given to the selection, it is sometimes possible to find an ordinary
word that may be very effective as a trade-mark. There is, for
example, the word "Rainbow", used as a name for dyes. This word is not
descriptive of the dyes, but it is tremendously suggestive of their
quality and their wide range of colors.
"Gold Cross" is the trade-mark of a brand of condensed milk.
"Skidoo" is the particularly happy name of a rough-and-ready soap,
and this is also used as the trade-mark of a marine engine. "Flash"
is the name of a soap. "Bread Winner" is the trade-name of a line of
children's suits.
There are many trade-marks made up of two or more words, such as
"Bachelor's Friend", for hosiery; "Iron-Clad", also a hosiery
trade-mark, and "Porosknit"--a coined word made up of "Porous" and
"Knit".
The portrait and name of a living person may be registered as a
trade-mark, provided the application is accompanied by the written
permission of the person whose name and portrait are shown. There is a
"Maxine Elliott Soap", and a "Mrs. Rorer's Coffee".
The name of a natural object used in a fanciful sense, may be
registered. There are many examples of this usage, such as "Beech-Nut"
bacon, "Ivy" corset, "Hawkeye" camera, and "Eagle" condensed milk.
A trade-mark may consist of a fanciful combination of words, like "Blue
Jay", applied to corn plasters; "Red Devil", "Silver Moon", and "Flying
Cat".
[Illustration:
IPSWICH
HOSIERY
_A well-balanced and handsome design._
]
When a design and wording are used in combination, care should be taken
to make them fit together without discord. Attractiveness is a quality
that is desirable in a trade-mark if it can be attained without a
sacrifice of more virile features. The Ipswich Hosiery trade-mark is
eye-catching and attractive. It contains as much in lettering and in
illustration as the Neponset trade-mark shown on page 80, and it is
much more attractive. This trade-mark--as shown in the accompanying
engraving--is descriptive, as it contains the word "hosiery", and it
contains a geographical term--"Ipswich". These features would probably
prevent its registration under the general Act of 1905, but not under
the ten years' clause of that act, provided it could fulfil the
requirements of that clause.
[Illustration:
COPYRIGHT 1903
_Swift & Co.'s trade-mark._
]
The trade-mark of Swift & Company, of Chicago, is unusually
distinctive. Its symbolism is interpreted in a circular issued by Swift
& Company, of which the following is an excerpt:
"Four factors intimately combined enter into the symbol. They are: (1)
the 'S', (2) the dart, (3) the circle, (4) the pivot.
"The 'S', combined with the dart in one piece, is a personality symbol,
serving to set forth the name 'Swift', both accurately and generally,
since the dart is an ancient and world-wide symbol of swiftness.
"The dart by itself is a humanity symbol, carrying the thought of speed
and directness. In its position in the symbol it indicates high aim and
rectitude.
"The circle is a humanity symbol, carrying the thought of universality,
and everywhere recognized as the perfect form.
"The pivot symbol is beautifully developed by the 'S' which centers in
the circle, and is itself a form of the pivot symbol.
"The black and red color scheme accentuates the pivot and gives the
thought of day and night, of life and death, of heaven and hell--in
short, the thought of dualism in life."
This design is simple, graceful, distinctive, and appropriate. In a
business as far-reaching and as complex as that of Swift & Company,
the quality of adaptability in a trade-mark is highly desirable.
This trade-mark is of such a character that it may be used with
appropriateness upon merchandise, stationery, packages, boxes, sides of
cars, and in advertisements.
[Illustration: _No. 1._]
The engravings Nos. 1, 2, 3, and 4, illustrate the various steps taken
in devising the trade-mark of the W. H. McElwain Company, of Boston.
The fundamental idea was to incorporate the initials of the firm, W.
H. M., into the design in some effective way. From a large number of
suggestions the design marked No. 1 was selected. It can be seen that
the three bars shown in No. 1 make the initials W. H. M.--but somebody
has to tell you before you see it.
[Illustration:
THE
McELWAIN
MARK
_No. 2._
]
The next step, shown in No. 2, was to put in the sole of a shoe, as the
trade-mark is intended for shoes, and to letter "The McElwain Mark"
across the face of the bars.
The design shown in No. 2 lacks cohesion and finish. To hold it
together, a border was put around it and a Ben Day background thrown
in. This produced the figure shown in No. 3.
[Illustration:
THE
McELWAIN
MARK
_No. 3._
]
The design marked No. 3 is quite striking, but if you look at it awhile
you begin to see defects in it. The black initial bars are too strong
and glaring. They push the rest of the design out of the picture. This
defect was cured by putting the initial bars in white with the sole of
the shoe in black, and making the background darker. By doing this,
the proper balance between white and black was obtained.
[Illustration:
THE
McELWAIN
MARK
_No. 4._
]
The design shown in No. 4 is the finished trade-mark.
In devising a trade-mark, any one who does not clearly keep the
requirements of the law in mind is likely to fall into one or another
of three classes of errors.
First, there is a natural tendency to make a trade-mark descriptive, to
insert in the wording some phrase like "Best Quality", "Sold the World
Over", or "Fits the Figure" or "Good for Children"--all of which are
descriptive phrases. You cannot register or protect an advertisement
used as a trade-mark, and such phrases are advertisements. A trade-mark
is a thing to be advertised. It must not be an advertisement itself.
Second, there is a tendency on the part of many advertisers to
incorporate their own names into their trade-marks. This often leads to
interminable and costly litigation.
Third, there is a tendency among manufacturers to select geographical
terms as their trade-marks, to use the name of the towns or cities
where their plants are located, or the names of states, or of rivers or
oceans. The trade-name, "Baltimore" hosiery, has a good sound, and the
word "Baltimore" is easily remembered, simple and euphonious. But if
you are a hosiery manufacturer, and adopt it, you do so at your peril,
even if you do business in Baltimore. You cannot protect it against
any other manufacturer of hosiery who has a plant in Baltimore, even
on the grounds of unfair competition, unless you have used the name
exclusively, and for such a long period of time, that it has lost most
of its geographical sense in the hosiery trade, and has developed into
a word of restricted meaning in that line of business.
* * * * *
P.S. A manufacturer who intends to apply for the registration of
a new trade-mark should take the precaution to have the files of
the Patent Office searched to ascertain if a trade-mark like his,
or similar to it, has been already registered for the same class of
merchandise. This should be done before application for registration
is made.
When application to register a trade-mark is filed, the trade-mark
must be already in use. This use may be limited to affixation upon a
small consignment of goods, but it must be a genuine and actual use
of the trade-mark.
This being so, it is worth while to ascertain if the proposed
trade-mark has already been registered. There are 39,000 registered
trade-marks in existence, divided among forty-nine classes of
merchandise. Thousands of trade-marks have been registered for
some classes. It is not unusual for an applicant to find that the
trade-mark he has intended to use has been adopted by someone else.
* * * * *
Transcriber's Notes:
Footnotes have been moved to the end of each chapter and relabeled
consecutively through the document.
Illustrations and sidebars have been moved to paragraph breaks near
where they are mentioned.
Punctuation has been made consistent.
Variations in spelling and hyphenation were retained as they appear in
the original publication.
The wording of the chapter section titles in the Table of Contents
differs from the actual section titles in many cases.
There is no Chapter I section title corresponding to the Table of
Contents entry "Ten-Years Clause."
p. 29: The "ORMROD" is not completely legible in the original
publication and may not be exactly correct. (ORMROD LEHIGH CO)
p. 68: The Chapter IV section title "Infringement by Foreigners Through
Importation" is not included in the Table of Contents.
p. 82: The 3 in 1903 in the "Swift & Co.'s trade-mark" figure on this
page is not completely legible in the original publication and may not
be correct. (COPYRIGHT 1903)