It is a simple but too often little understood principle that when a manufacturer ceases to have any interest in his own trade-mark ( as, for instance, when leasing it to another without retaining any direct interest in it himself) and it is continued by others, they take his place before the community as the responsible persons behind the trade-mark, and his right in it lapses as theirs becomes established by custom. Indeed, a trade-mark cannot be legally transferred or its use licensed unless there goes with it the business or good-will which it embodies ; for, unless there is transferred with the trade-mark that which makes the representation it conveys true in the hands of the person to whom it is transferred, it is only a license to lie, which the law will not tolerate. The transferee gets nothing, and the original owner has abandoned his trade-mark.
An article cannot be trade-marked and patented and still hold both protections. Such an attempt at a double protection has not infrequently been made by over-careful manufacturers, or those who did not have proper counsel. When a man patents an article, the name he gives to it becomes the name of that thing. When the patent expires, everyone may make the thing and call it by its name.
A trade-mark belonging to a partnership will generally belong equally to both partners upon dissolution, unless an agreement assigns it to one or the other. In case of death the survivor owns it absolutely, except where an arrangement of part nership otherwise provides, or its value can be appraised as part of the estate.
A trade-mark must be truthful, although the truth is sometimes regretfully slender. The law will not protect an article trade-marked as an "Oil of Almonds" when there is no oil of almonds in it, but the truth may be technically saved, as Wil liam Dreydoppel used to say of his rival's soap: "Youst a pinch of borax in it, youst enough to swear to"; nor will the law protect a brand of "California Oil" if it can be shown that it has no connection with California.
These few instances show that trade-mark law stands for truth, for personal responsibility, for an honest individuality and for exact dealing with the public and the trade; but those who own, or intend to own, trade-mark property should seek the highest advice, as surely as they would take that of a banker if they were about to invest, or of a doctor if they were ill.