TRADE MARK, the name or mark under which any one trades. It is a mode of connecting certain goods in the mind of the public with a particular manufac turer or seller; and its function is to give a purchaser a satisfactory assurance of the make and quality of the article he is buying. A trade mark is the prop erty of the person legally adopting it and he has a right—antecedent to and independent of the various trade mark acts—to prevent any one else from us ing it to his prejudice.
Water marks on paper, dating from the 14th century, are among the oldest trade marks. Trade marks appear to have become a prominent feature in the industrial life of England in the early part of the 18th century. The law re lating to them has pursued the following course of development: (1) At first no right of property in a trade mark was recognized, and only the actual, fraudu lent, and injurious use by one person of the mark of another was restrained and punished. (2) In 1838, however, in the case of Millington versus Fox, Lord Chancellor Cottenham granted a perpet ual injunction against the defendant, though no intentional fraud was estab lished. Since that time the English Court of Chancery has uniformly inter fered to prevent the infringement of trade marks on the principle of protect ing property alone, and it was unneces sary for the plaintiff to prove that his rights had been intentionally invaded. (3) The Courts of Common Law did not imitate the wise liberality of the Court of Chancery, and down to 1873 proof of fraud on the part of an infringer was of the essence of a common-law action for damages. The Judicature Act of 1873 provided, however, that in any conflict between the rules of law and of equity the latter should thenceforth pre vail.
The Registration of Trade Marks.— At common law a trade mark could be acquired only by actual user; it must have been "so applied in the market as to indicate to purchasers that the goods to which it was attached were the manu facture of a particular firm." By the English Trade-marks Registration Act, 1875, a Register of Trade Marks was established at the Office of the Commis sioner of Patents (now the Patent Office), and it was provided that the reg istration of a trade mark should thence forth be equivalent to public user. This provision is in substance repeated in the Patents Acts, 1883-1888, by which the registration of trade marks is now regu lated. The registration of a person as proprietor of a trade mark is prima facie, and after five years is conclusive evi dence of his right to the exclusive use of the said mark (subject to the provisions of the acts); and no person can institute proceedings for infringement unless the mark alleged to be infringed has been registered, or—in the case of marks in use prior to the Act of 1875—has been declared by the certificate of the comp troller-general to be non-registrable.
Under the provisions of the Interna tional Convention for the Protection of Industrial Property an applicant for registration of a trade mark in any one of the contracting States may obtain pro tection in any of the other contracting States by application there within three or, in the case of countries beyond the seas, four months from the date of the first application. The subsequent appli
cation is antedated to the date of the first, and is consequently not defeated as otherwise it might have been by prior user in the protected interval. In the United States there is a good deal of dif ference between the laws of the various States on this subject.
Registration in the United States.— The following are the regulations for registration for foreign countries: Own ers of trade marks used in commerce with foreign nations or with Indian tribes, if such owners be domiciled in the United States or located in any for eign country or tribe which by treaty, convention, or law affords similar privi leges to citizens of the United States, may obtain registration of their trade marks by filing in the Patent Office a statement specifying name, domicile, lo cation, and citizenship of the party ap plying, the class of merchandise, and the particular description of goods comprised in said class to which the trade mark has been appropriated, a description of the trade mark itself, a drawing illus trating it, which drawing must be of a standard size, and a statement of the mode in which the trade mark is applied or affixed to the goods, and of the length of time during which the trade mark has been used. This statement must be signed by the owner of the trade mark and must be accompanied by a written declaration, verified by the person or by a member of the firm or by an officer of the company applying, to the effect that such party has at the time a right to the use of the trade mark sought to be regis tered and that no other person, firm, or corporation has the right to such use.
The fee for examining and registering a trade mark is $25, which includes the certificate. This fee should accompany the application. The certificate of regis tration is issued in the name of the United States of America, under the seal of the Department of the Interior, and signed by the Commissioner of Patents. It remains in force for 30 years from its date, except in a case where the trade mark is claimed for and applied to an article not manufactured in this country, but receives protection under the laws of a foreign country for a shorter period. In that case it ceases to have any force in this country at the time the trade mark ceases to be protected in the for eign country.
At any time during the six months previous to the expiration of the 30 years the mark may be re-registered for the same term. The right to the use of a trade mark is assignable by an instru ment in writing, which instrument may be recorded in the Patent Office, but said instrument will not- be recorded prior to the filing of an application, and it must identify the application by serial num ber and date of filing, or, where the mark has been registered, by the certificate number and the date thereof. Consult Elfretti's "Patents, Copyrights, and Trade Marks." See COPYRIGHT: PAT ENT.