TRADE MARKS. A "trade mark" may be defined as a symbol, consisting in general of a picture, a label or a word or words, applied or attached to the goods of a trader for the purpose of distinguishing them from the similar goods of other traders, and of identifying them as his goods, or as those of his successors, in the business in which they are produced or put forward for sale.
A trade mark differs in its legal character both from a patent and from a copyright. In the case of a trade mark the property and the right to protection are in the device or symbol adopted to designate the goods to be sold, and not in the article which is manufactured and sold.
The article is open to the whole world to manufacture and sell and all that the owner of the trade mark is entitled to prevent is such use of his mark by other traders as will lead purchasers to buy, as his, goods which are not his.
On the other hand, patent-right and copyright protect the sub stance of the article; and any unauthorized manufacture of it in the former case, or reproduction of it in the latter, while the pro tection lasts, is prohibited.
The grounds, however, on which trade marks, patent-right and copyright obtain legal recognition, though they are to a certain extent dissimilar, have a common element.
Patent-right and copyright rest upon the view that the results of the original labour of the inventor and the author ought, as a matter alike of justice and of public policy, to be secured against piracy; while, as regards the proprietor of a trade mark, the ques tion of originality does not arise so long as the mark is sufficiently distinctive really to identify his goods and, for purposes of regis tration, to satisfy the Trade Marks Acts.
In truth, the registration of a trade mark is rather the recogni tion of a fact than the grant of a privilege (Kerly and Underhay, Trade Marks Act, 1905, p. 3).
The law as to trade marks as well as that as to patents or copy right is based on a man's rights to have guaranteed to him the profit derivable from his own property.
British Trade Marks Before the Registration Acts.— English trade-mark law practically commences with the first years of the i9th century. The use of trade marks was indeed of far earlier date, for in 1742 we find Lord Hardwicke declaring that "every particular trader had some particular mark or stamp."
But in the very case in which Lord Hardwicke made that state ment (Blanchard v. Hill, 2 Atkyns, 484) he refused to protect the "Great Mogul" stamp on cards, being apparently under the influ ence of the notion that the legal recognition of trade marks would involve the creation of a new species of monopoly. But although the actual law of trade marks cannot be traced farther back than the beginning of the i9th century, Lord Eldon repeatedly granted injunctions to restrain one trader from fraudulently "passing off" his goods as those of another, and thus laid a foundation on which the present law has been built up. It was decided by Lord Cotten ham in 1838, in the leading case of Millington v. Fox (3 Mylne and Craig 338), that an injunction to restrain the infringement of a trade mark could be obtained, even although the defendant had acted without fraudulent intent. On the common law side, on the other hand, fraud was an essential ingredient in the cause of action, and remained so till the fusion of law and equity by the Judicature Acts.
The effect of Lord Cottenham's decision in the case of Milling ton v. Fox clearly was to recognize a right of property in trade marks, and the action for infringement became a familiar species of litigation. Under the then existing law, however, the plain tiff in such actions generally found himself in a very disadvan tageous and unsatisfactory position. The basis of his action was the reputed association between his trade mark and his goods. This association the defendant—often a person of no means— would deny, and it had to be proved as a fact by witnesses at a cost to the plaintiff which there was little hope of his recovering. Moreover, even if the trade mark proprietor secured a judgment in his favour, it carried with it no immunity from the obligation of again establishing his right to the mark against any subsequent infringer who chose to dispute it. To complete this statement of the shortcomings of the law before the Merchandise Marks Act, 1862, it should be noted that the infringement of trade marks— except in cases where the seller of spuriously marked goods cheated the buyer—was not a criminal offence.