In cases of infringement, actual deception by the infringer need not be proven. The likelihood of deception is sufficient to war rant the interposition of a court of equity. So it is no defense that the infringing article is superior in quality to the genuine, nor is the absence of intent to deceive a defense. Laches or delay in asserting rights are generally held to depnve the owner of the right to claim dam ages or obtain a preliminary injunction. Aban donment is also a good defense, but strict proof of an intention to abandon ownership is essen tial to the establishment of this latter defense.
Patented Articles.— Where a new trade mark consisting of a word-symbol is affixed to a patented article, the right to use such name or title for such article will become public property upon the expiration of the letters patent, as was held in the °Castorie and “Singer Sewing Machine" cases. Otherwise the mon opoly enjoyed by the owner of a trade-mark is perpetual.
State Laws.— In many of the States, acts have been passed making it a criminal offense to refill or use again without the owner's con sent bottles or other packages which have been registered under what are known as ((Bottling Acts" or Trade-mark Registry Acts; so in many of the States the imitating or counterfeiting of trade-marks is made a criminal offense.
Labor Union Marks.— In many of the States labor unions or associations of work ing men are permitted to register their labels or trade-marks, indicating that the goods to which such labels or marks are affixed were manufactured by union labor, and such acts have been sustained as constitutional in most of the States.
Copyrighting of New labels, not previously used, and containing some artistic or novel character of design, may -be copy righted in the United States Patent Office and will be protected for 30 years. But labels which merely describe an article, or only indicate size, number or weight, or are only the result of the application of the typesetter's art, are refused copyright entry.
Unfair Trade Competition.— An article on the subject of trade-marks and their protec tion in this country would at the present time be incomplete without some mention of the cognate subject of °Unfair Trade Competition." The evolution of the law of trade-marks in course of time satisfied the courts of this country that the mere enforcement of strictly technical trade-mark rights fell far short of the practical requirements and necessities of our commerce, inasmuch as the purchasing pub lic was being constantly cheated and defrauded in having goods not of .a genuine source of origin foisted upon them, while the owners of such genuine goods, as well as the purchasing public, were frequently left without redress or legal protection. To remedy this defect of the
administration of justice, the restraining of unfair trade competition was applied to cases where technical trade-mark rights could not be enforced.
The essential difference between a case brought to restrain the infringement of a technical trade-mark, and to restrain a case of unfair trade competition, may be sum marized as follows: Both suits are brought to restrain a fraudu lent act of the defendant; both proceed on the theory that a court of equity will protect the property rights of the owner of the trade-mark, and at the same time, guard the purchasing public against being deceived; but while in a case brought to restrain the infringement of a trade-mark, no proof of actual deception is now required, nor is any proof of damage to the owner of the imitated trade-mark required to enable him to recover, in a case of unfair trade competition the essence of maintaining the suit is in the establishing of the fraud prac tised by the defendant and the actual deception caused thereby upon the purchasing public. Probable deception is ranked with actual de ception in constituting infringement. It is con strued as an attempt to steal the goodwill of an established business.
It thus follows that in the extension of the principles of doing equity and according the fullest protection to the purchasing public, a man may even be restrained from using his own name in the transaction of his business, where such use is of a fraudulent character, cal culated to breed trade confusion and designed to mislead and deceive the purchasing public, already accustomed to that name as connected with another line of merchandise.
History.— Trade-marks are of extreme antiquity, being found on bricks unearthed by explorers among Egyptian and Assyrian ruins, and upon Egyptian pottery dating back to 6000 s.c. Such marks have also been found on gold and silver ornaments and even upon carved jewels, and the containers used by the Roman pharmacists for their salves, creams and lotions. In more recent times historic mention of laws protecting workers in metals, smiths and armorers in such trade-marks as early as 1374. In the Middle Ages guilds of artisans in Germany, France and Italy compelled the use of trade-marks by their members as a protection to the purchaser as well as to the trade in general. Trade-mark protection in England did not begin until 1783, and it was not until 1838 that laws were passed which afforded really adequate protection. In the United States agi tation for a trade-mark law began in 1791, hut the Federal trade-mark law was not placed among the statutes until 1870. The present law bears date of 1905.