Adoption of Symbols and Arbitrary reach and remedy these difficulties, manufacturers then began to adopt and use wmbols consisting of pictures or devices, at first simple in their nature, such as shields, stars, geometrical figures or representations of animals and the like; they also coined arbitrary and fanciful names, not descriptive of kind or origin, which were generally used in connection with the name and address of the manufac turer; and so it came to pass that symbols, devices and arbitrary designations or titles were slowly, gradually, but generally substituted in the place of the mere name and address of the manufacturer; the goods in due course of time becatne laiown by such marking; the marks, in tum, served to indicate origin, as well as to guarantee the peculiar excellence which the pur chasers or consumers expected and had a right to find in their purchases with respect to qual ity, purity, measure or value.
So public usage has also often given an accidental meaning to a trade-marlc, not at all contemplated onginally; as witness the case in France, where a man named Jean Bardon manu factured cigarette paper, marking it with his initials, °J. B.,° which he separated by a lozenge, so that the mark appeared to be the word °JOB.° The public became accustomed to call for °JOB° paper, and that name was duly pro tected as a trade-mark, although it had never been intended to invent or use the word °JOB° in connection with Jean Bardon cigarette paper.
Requirements of a Valid Inasmuch as the markets of commerce are °markets overt° or °open markets,* it soon became evident that, in order to secure a trade mark which would be unique, and the exclusive property of the person or firm originating and adopting it, such mark would of necessity have to be one which others did not have an equal right in law to use for the same class of mer chandise; so that it became an established rule of construction of the law of trade-marks that no mark would be protected as the exclusive property of any one person which others had an equal right to use; as, for instance, a mark indicating quality, or a geographical mark, in dicating that the goods bearing the mark were made or produced in a certain locality; or a mark which merely consisted of the statement of ingredients, or the generic or class title of the article; to be perfectly plain, every person living in New York, making hats or shoes. or other articles of commerce, would have the right to label and mark such articles as °New York Hats* or °New York Shoes* or the like; so every person would have the right to make the *Best Quality Hats* or the °Best Quality Shoes* or °Superior Hats* or *Superior Shoes* or the like.
Kinds of Trade-marks.—There are two distinct kinds of trade-marks, to wit, a mark consisting of a word or words, or a mark consisting of a symbol or picture.
The former kind may be designated as an aear-mark,* and being mainly distinguished, when used, by its sound, it has been held by high authority that the use by another of a similar word, alone or in any form or com bination, or in connection with any style of label or form of package, is unlawful, and would constitute an infringement upon the original mark.
The other kind of a mark, consisting of a symbol or picture, may be designated as an °eye-mark,* because it appeals to the sense of sight. To constitute an infringement upon such a mark, the defendant's mark must be of so close a resemblance as to be likely to mislead a purchaser using ordinary attention. There may be also an infringement upon important parts of a trade-mark, without the whole of the mark being copied. This will be restrained, because the law does not look for complete identity in the imitation trade-marks, but similarity will be held sufficient to warrant the interposition of a court of equity.
'Secondary Meaning)) Phrases Protected. —In dismissing this branch of the subject, it may be stated that no mark which merely indicates an essential element or quality of the article to which it is applied can be exclusively appro priated as a trade-mark, subject, however, to one important qualification which has attended the evolution of the law of proteCting industrial property in this country, and which was ren dered necessary by the natural and proper de sire on the part of our courts and judges to do equity and to protect the purchasing public.
The exception to which we refer is when a term, phrase, title or designation which is used in connection with a trade-mark acquires what is known as a *secondary meaning)) in the market.
By this we mean that when a phrase, title or designation, which of itself could not be protected- as a technical trade-mark, because primarily conceived and designed to merely in vite trade or catch and engage public atten tion, becomes in time so identified and associ ated with the articles of merchandise to which it is affixed, that the public, on seeing it, at once recognizes that it stands for the goods to which the trade-mark proper is usually at tached, even though that mark should be absent.