The only case decided by the United States Supreme Court in which this question has been in volved is popularly known as the Robbins decision. Robbins was a salesman in Tennessee for an Ohio stationery concern. A local ordinance in Tennessee required the payment to the county of a certain sum weekly by persons who offered goods for sale by sample. Robbins was arrested for refusing to pay the tax, and the ease was carried to the United States Supreme Court, which held that this amounted to a tax on interstate commerce and was therefore illegal.
The prohibition of the statutes denies the second class-rate postage to publications "designed prima rily for advertising purposes," or to give them the characteristics of books or other third-class matter.
7. Protection of trade-marks.—A brief summary of trade-marks as they relate to the unfair trade law follows: • Trademark law is only a particular phase of unfair trade law. Unfair trade law relates to all matters by which the trade of one person is unfairly obtained by another. Trade mark law pertains to a special agency used in trade in rela . timi to which certain rules have been established.
It is unfair trade for one dealer under certain circum stances to use the particular shape of a bottle or other con tainer of the same design of label which is owned and used by another, altho there may be no technical trademark right in any of these. . . . The question of unfair trade is often raised in those cases in which one trader in his business uses colors, designs or shapes similar to those used by his neighbor. No question of trademark infringement is in volved in such cases.
It will thus be seen that adequate protection of what the trade-mark stands for embraces more than the mere protection of the mark itself. It is only at the point where the trade-mark itself is actually in fringed that the law becomes general. Trade-mark infringement assumes that the trade-mark identifies and protects the rightful owner. Unfair competi tion may, and often does, exist where no trade-mark is imitated, but where one attempts to pass off his goods as the goods of another. The proof of such an attempt is based on the likelihood that the purchaser may be deceived. Imitation of a trade-mark is prac tical evidence that an attempt is to be made to pass off the goods under the imitative brand for those k of the original trade-mark. Unfair competition, on the other hand, commonly must be proved from the evi dence of those who know whether or not deception has been practised.
An interesting case has just been decided in the Montreal courts which illustrates what is meant by unfair and fraudulent competition. The Molson's Brewery Company, Limited, entered an action to pro tect its rights in a trade-mark attached to bottles con taining Molson's India Pale Ale. The complaint of the company was that the defendant, a saloon keeper, had infringed its trade-mark by attaching to bottled ale of an inferior quality a label in similar form to Molson's, but bearing the title "Nelson's India Pale Ale"; that bartenders and others had been instructed to place their thumb over the first two letters of the name when serving the ale, so that the customer would see only " . . lson's India Pale Ale." This it was alleged was an illegal and fraudulent act and consti tuted an infringement of the trade-mark of Alolson, for which a sum of $5000 damages was asked, to gether with an injunction to restrain the defendant from such illegal acts. Judgment was rendered con demning the defendant to pay damages of $100 and costs, and restraining him from using the Nelson la bel or any label resembling or in any way similar to it upon any goods made, -bottled or sold by him.
8. Registration regulations.—Section 3 of the United States Statutes concerning the Registration of Trade-Marks gives in details the restrictions thrown about registration. Djstinctiveness is the first essen tial of a trade-mark. Resemblance between trade marks so close as to produce confusion is forbidden. The mark must consist of matter neither immoral nor scandalous. Flags, coats of arms or other insignia of any state are non-registrable as trade-marks for goods. The emblem or device of any fraternal society, any institution or corporation must not be adapted or imitated.
The portrait of an individual cannot be registered without the individual's consent.
Section 11 of the Canadian Trade Mark and De signs Act provides that the Minister (the minister of agriculture is in charge of the department) may re fuse to register any trade-mark: (a) If he is not satisfied that the applicant is un doubtedly entitled to the exclusive use of such trade mark; (b) If the trade-mark proposed is identical with or resembles a trade-mark already registered; (c) If it appears that the trade-mark is calculated to deceive or mislead the public; (d) If the trade-mark contains any immorality, or a scandalous figure; (e) If the so-called trade-mark does not contain the essentials necessary to constitute a trade-mark, speaking.