While the doctrine of "Unclean has been carried to a very great extent by the courts, it has been held in many cases that too strict an application of such a rule would lead to the destruction of valuable industrial prop erty, and, at the same time, relegate the purchas ing public to the tender mercies of false, fraud ulent and infringing marks.
The courts have in many cases recognized the fact that where there is no vicious or wrongful intent on the part of a trade-mark owner, who is shown to conduct a legitimate and honest business, that slight lapses or im material misstatements, not persisted in or con tinued, and statements which are substantially true, although not entirely so, will be over looked and not visited with the punishment of denying equitable relief to the trade-mark owner who is guilty of such infractions.
The understanding which the public has of certain trade customs or usages are also al lowed to prevail; as witness the "Hennessy Brand? cases, decided by the New York courts of appeals, where the defense was interposed that the plaintiff's bottles were not full or actual pints or quarts in size, and that, therefore the owners of said trade-mark were guilty of in equity and misconduct; but the court held that inasmuch as such pints or quarts were known as (commercial)) pints or quarts, and understood so to be by the purchasing public, that no fraud was either contemplated or had been committed, even though the bottles to which the stark was attached were not of full measure.
Now Trade-mark Property is Acquired.— Property in a trade-mark is acquired by priority of adoption and continued use on the market. A mere announcement of an intention to adopt a certain title or symbol which is not followed or accompanied by use on the market does not confer any trade-mark rights. Moreover, the law requires that the trade-mark shall be in actual use in trade before application is made for its registry. The title to a mark may be lost by deliberate abandonment or the transfer to others of the title or goodwill of a business in which the mark has been used.
The person who adopts and first uses a certain distinguishing mark for his goods, be comes possessed with what is known as the common-law right of ownership thereof, and such right is an enforceable one, and will be protected by the courts of this country.
-Patent Office may be registered under the existing registra tion statutes only when the same are used in commerce with foreign nations, or among the several States or with Indian tribes. The provision for marks used among the several States is new and in force since 1 April 1905. Under this law marks exclusively used for 10 years preceding the passage of the law can be registered, irrespective of the prohibitions in the law, which would otherwise apply. Regis tration confers no greater property rights than are acquired under the common-law right of ownership, except that triple damages may be recovered in certain cases. Registration, how ever, does not create a right to a trade-mark; this is gained only by priority of adoption. The trade-mark thus signifies a public claim to such adoption and use; if it is not in accordance with the facts the registration may be canceled. Before registry a trade-mark is published 30 days in the Official Gazette of the Patent Office, during which period any person having good grounds for believing that its registration threatens his rights may oppose its registration. Besides the national law in the matter most of the States have trade-mark laws which pro tect the intrastate use of a trade-mark, a use which is not covered by the Federal law.
Assignment of Trade marks may be assigned with the goodwill of the business in which they are used, or a trans fer of the business itself ; or they may descend by inheritance; but such an assignment must be recorded in the ttnited States Patent Office within three months of its date or the good will thereof does not vest in the assignee any enforceable right or title. A trade-mark has no value or standing apart from the goodwill of the business of which it has been a part.
Partnership Upon the dissolution of a partnership, either partner may there after continue to use the trade-marks of the partnership, unless the same are otherwise dis posed of upon the dissolution, or where other contractual relations exist governing the future disposition of the same upon a dissolution.