TRADEMARK. A mark, name, emblem, or device adopted by a tradesman or manufacturer and attached to or stamped upon his goods in some manner for the purposes of identification by the public, and protection against the sale of fraudulent imitations. The law of trademarks is of modern development. In 1742 Lord Hard wick declared that he could not protect a trade mark adopted by a trader from being used by another. It was not until 1S03 that the English courts attempted to prevent the fraudulent use of an adopted trademark. Since that. time the law on the subject has developed rapidly. The statute now in force in England is known as the 'Merchandise Act.' It provides for regis tration. and makes the registry conclusive evi dence of title after five years' use of the regis tered trademark.
The first trademark statute in the United States was passed in 1870. Under the decisions of the United States courts, the office of a trademark is to indicate the origin or owner ship of an article on which it is found. There fore, it follows that a valid trademark must fulfill one of the above essentials either from its own nature or by reason of association with the article itself and the maker's name. A name which is merely descriptive of the qualities or nature of an article, cannot constitute a valid trademark, as its use as such might tend to create a perpetual monopoly in the sale of the article described. For example, the United States courts held that the words 'acid phos phate' could not be protected as a trademark. as they were considered to be descriptive of the essential charaeleristies of the preparation sold under that name, and as it was a known form of chemical combination, it would prevent others from describing accurately a similar combina tion.
In general, a geographical name cannot be used as au exclusive trademark. However, a person not doing business in a locality known for a certain product will not be permitted to use the name of that locality as a trademark on similar products handled by him, but not coining from that locality where the name is already in use by a tradesman in the well-known district.
A person's own name will not be protected as a trademark as against a person of the same name, who, acting in good faith, desires to use his name on his own goods. A trade name is, Lherefore, to he distinguished from a trademark, and can only be protected by a court of equity where some one attempts to deceive the public and take another person's trade by adopting his trade name. A close imitation of a trade mark may amount to an infringement. especially if there are other circumstances tending to show that there is an intention to deceive the public and take advantage of the business reputation of another.
Any one who handles goods may impress his trademark upon them, and be protected in its use, if lie has exercised any peculiar skill or judgment. in their selection, care, or alteration. The right to an exclusive trademark may lie lost by abandonment, but the evidence of the inten tion to discontinue using it must be very clear. A trademark is not generally considered to he property in the sense that it call be taken under an execution, hut it may be transferred from one person to another, unless it is of such nature that to allow it to be used on the goods of a person other than the one who • adopted and used it would tend to deceive the public. The sale of a business, good will, etc., usually includes the trademarks under which goods were sold by the owners. For the law in the United States, see Browne, Law of Trade marks (Boston, ISS5) ; for the English law, Se bastian, Lou' of Trademarks (London, 1890) ; Barclay, Law of France Relating to Trademarks (2d ed., London, 1899). See also COPYRIGHT; PATENT.