Manufacture and sale of cards like plain tiff's, which latter are not copyrighted, is not unlawful competition; Bamforth v. Ma chine Co., 158 Fed. 355.
Where the plaintiff transferred baggage from landing places to hotels and placed upon the hat of each of his solicitors in conspicu ous letters the word "Morton," and the de fendant started a rival business and used a badge attached to his hat bearing the single word "Morton's," of the same size and ap pearance, there was an injunction issued: Morton v. Morton, 148 Cal. 142, 82 Pac. 664, I L. R. A. (N. S.) 660, with note.
The adoption by a telephone company for its trouble department of the number long in use by a rival company is not unlawful; Rocky Mountain Bell Tel. Co. v. Tel. Co., 31 Utah, 377, 88 Pac. 26, 8 L. R. A. (N. S.) 1153.
To constitute infringement of a trade-name, it is necessary that the two places of busi ness be in competition with each other, and if one is engaged exclusively in retailing shoes and the other in manufacturing and wholesale jobbing of shoes, there is no such competition as will warrant a restraining order, although the names of the firms have secondary import and the retail firm had legally acquired its trade-name before the wholesale company was organized; Regent Shoe Mfg. Co. v. Haaker, 75 Neb. 426, 106 N. W. 595, 4 L. R. A. (N. S.) 447.
A trade-mark is not subject to execution unless under authority of statute ; Prince Mfg. Co. v. Paint Co., 20 N. Y. Supp. 462. It cannot be seized and sold upon execution apart from the business or article with which it has been used ; 28 Am. & Engl. Encycl. L. 405.
The fact that a manufacturer has a rem edy under a patent does not preclude him from bringing a suit against another manu facturer for unfair competition ; FonotiPia Limited v. Bradley, 171 Fed. 951.
In a suit for infringement of a technical trade-mark, the owner is entitled, not only to an injunction, but to the recovery of profits issuing from the infringement, as incident to and a part of his property right ; while in suits for unfair competition complainant is entitled to only such damages as will compen sate him for the Injury actually suffered ; P. E. Sharpless Co. v. Lawrence, 213 F. 423. Where a decree awarding an injunction and damages was affirmed in a suit for unlawful competition, in which a recovery for infringe ment of a trade-mark was denied, an order for an accounting of profits made by defend ant was improper ; the word "damages" be ing limited to the indemnity recoverable for the injury sustained by complainants ; id.
The federal trade-mark act of February 20, 1905, as amended in 1906, 19Q7, and 1908, pro vides for trade-marks used in commerce with foreign nations or among the several states or with the Indian tribes, provided the owner shall be domiciled within the United States or reside in any foreign country which by any treaty, convention or law affords similar privileges to United States citizens.
Applicants for registration or renewal of registration, who are not domiciled within the United States, shall designate by writing filed in the patent office some person residing within the United States on whom process or notice of proceedings affecting the right of ownership may be served. Where the person has previously filed in any foreign country, which affords similar privileges to citizens of the United States, an application for registra tion of a trade-mark, his trade-mark shall be given the same force and effect as if tiled in this country, if filed within four months from the date of the application in such foreign country.
Section 5, as amended January 8, 1913, pro vides that "no mark by which the goods of the owner of the mark may be distinguished from other goods of the same class shall be refused registration as a trade-mark unless such mark—(a) Consists of or comprises im moral or scandalous matter. (b) Consists of or comprises the flag or coat of arms or other insignia of the United States or any simula tion thereof, or of any state or municipality or of any foreign nation, or of any design or picture that has been or may hereafter be adopted by any fraternal society as its em blem, or of any name, distinguishing mark, character, emblem, colors, Hag or banner adopted by any institution, organization, club or society which was incorporated in any state in the United States prior to the date of the adoption and use by the applicant: Pro vided, that trade-marks which are identical with a registered or known trade-mark own ed and In use by another and appropriated to merchandise of the same descriptive proper ties, or which so nearly resemble a registered or known trademark owned and in use by another and appropriated to merchandise of the same descriptive properties as to be like ly to cause confusion or mistake in the mind of the public • or to deceive purchasers shall not be registered: Provided, that no mark which consists merely in the name of an in dividual firm, corporation or association not written, printed, impressed or woven in some particular or distinctive manner, or in asso ciation with the portrait of the individual, or merely in words or devices which are desciip tive of the goods with which they are used, or of the character or quality of such goods, or merely a geographical name or term, shall be registered under the terms of this act: Provided further, that no portrait of a living individual may be registered as a trade-mark except by the consent of such individual, evi denced by an instrument in writing: And provided further, that nothing herein shall prevent the registration of any mark used by the applicant or his predecessors, or by those from whom title to the mark is derived, in commerce with foreign nations or among the several states or with Indian tribes which was in actual and exclusive use as a trade mark of the applicant, or his predecessors from whom he derived title, for ten years next preceding February 20, 1905: Provided further, that nothing herein shall prevent the registration of a trade-mark otherwise registrable because of its being the name of the applicant or a portion thereof." Applicants for registration or renewal, when refused, or parties to an applicatioh against whom a decision has been rendered or a party has filed notice of an opposition, may appeal from the examiner in charge of trade-marks or interferences to the commis sioner of patents. There is an appeal from the commissioner of patents to the court of Appeals of the District of Columbia.