It can be acquired only in connection with an established business, and retained only in connection therewith; Filkins v. Blackman, 13 Blatch. 440, Fed. Cas. No. 4,786. There is no such thing as an abstract trade-mark apart' from some business in which it is used; Weener v. Brayton, 152 Mass. 101, 25 N. E. 46, 8 L. R. A. 640; Witthaus v. Matt feldt & Co., 44 Md. 303, 22 Am. Rep. ,44; Morgan v. Rogers,. 19 Fed. 596, per Colt, J. A trade-mark will pass with the transfer of the business in which it was used; Rich mond Nervine Co. v. Richmond, 159 U. S. 293, 16 Sup. Ct. 30, 40 L. Ed. 155; Noera v. Mfg. Co., 158 Mass. 110, 32 N. E. 1037; whether specifically mentioned or not; Le Page Co. v. Cement Co., 51 Fed. 941, 2 C. C. A. 555, 17 L. R. A. 354; Allegretti v. Chocolate Cream Co., 177 Ill. 129, 52 N. E. 487; Morgan v. Rogers, 19 Fed. 596. The transfer of a busi ness (in which the owner's name is used as a , trade-mark) carries with it the use of the name ; Horton Mfg. Co. v. Mfg. Co., 18 Fed. 816; a transfer of all the property of a busi ness carries the right to use all the trade marks used in it; Williams v. Farrand, 88 Mich. 473, 50 N. W. 446, 14 L. R. A. 161; Fish Bros. Wagon Co. v. Wagon Works, 82 Wis. 546, 52 N. W. 595, 16 L. R. A. 453, 33 Am. St. Rep. 72. Where a trade-mark indi cates the product of a factory, it passes with the ownership of the factory, though the business formerly carried on there has gone elsewhere; 3 Myl. & C. 1; Carmichel v. Latimer, 11 R. I. 395, 23 Am. Rep. 481; Symonds v. Jones, 82 Me. 302, 19 Atl. 820, 8 L. R. A. 570, 17 Am. St. Rep. 485. In the sale of a going concern, an assign ment of trade-marks, patents, trade rights, good will and all assets carries a trade name; Herring-Hall-Marvin Safe Co. v. Safe Co., 208 U. S. 554, 28 Sup. Ct. 350, 52 L. Ed. 616.
A trade-mark may be part of the good will of a firm, and one who has come into an ex isting firm and after some years goes out, leaving it to carry on the business under the same title, does not take with him the right to use the trade-marks of the firm ; Menen dez v. Holt, 128 U. S. 514, 9 Sup. Ct. 143, 32 L. Ed. 526.
A trade-mark adapted to a brand of cigars is not assignable separate from the good will of the business; Falk v. Trading Co., 180 N. Y. 445, 73 N. E. 239, 105 Am. St. Rep. 778, 2 Ann. Cas. 216, 1 L. R. A. (N. S.) 704, with note on the assignability of trade-marks.
By the trade-mark act of April 20, 1905, a trade-mark is assignable, in connection with the good-will of the business in Which it is used, by an instrument in writing, acknowl edged according to the laws of the country or state in which it is executed; it is void, as against a subsequent purchaser for a valua ble consideration without notice, unless re corded within three months from its date. The ownership of trade-marks is consider ed as a right of property; Upton, Trade Marks 10. It is on this ground that equity protects by injunction against their infringe ment. It is, however, not property within the meaning of the constitution requiring all property to be taxed; Com. v. Warehouse Co., 132 Ky. 521, 116 S. W. 766, 21 L. R. A. (N. S.) 30, 136 Am. St. Rep. 186, 18 Ann. Cas.
1156, where it is said that the only other case on this subject is People v. Kelsey, 185 N. Y. 546, 77 N. E. 1195, where it was held that the value of a trade-mark might be tak en into consideration in determining the value of the franchises of a foreign corpora tion.
Trade names should be distinguished from trade-marks. A trade-mark owes its exist ence to the fact that it is affixed to a com modity; a trade name is more properly al lied to the good will of a business; Browne, Tr. Marks § 91.
The trade-name of a firm, a corporate name, and the name of a publication, though not strictly trade-marks, are nevertheless a species of property of the same nature as trade-marks, and will be protected in like manner; 33 Am. Rep. 335, note; 9 Am. Rep. 331, note. See NAME.
So a tradesman may adopt a fictitious name, and sell his goods under it as a trade mark, and the property ri;let he ti us ac quires in the fanciful name will be protected; Gouraud v. Trust, 6 Thomp. & C. (N. Y.) 133.
Equity will protect a corporation in the exclusive possession of its name. State au thorities will ordinarily not grant a charter to a new corporation under the name of an existing corporation. But equity will not re strain a corporation of the state of the forum from the use of its corporate name at the suit of a foreign corporation ; Thomp. Corp. §§ 296, 7903; Hazelton Boiler Co. v. Boiler Co., 142. Ill. 491, 30 N. E. 339. Ste International T. Co. v. Trust Co., 153 Mass. 271, 26 N. E. 693, 10 L. R. A. 758.
In a bill by the "Sun Life Assurance Com pany," long established in London, to enjoin the "Sun Life Assurance Company of Can ada" from doing business under that name in London, it was held that the defend nt's use of its full name was lawful, but that the use of the "Sun Life" alone could be en joined; [1891] 1 Ch. 537.
A corporation may not so use an indiv'd ual's name as to imitate a prior corporate name of a company engaged in the same business, if the pu'ilic is thereby deceived; Martin Co. v. Wilckes Co., 75 N. J. Eq. 39, 71 Atl. 409. A corporation cannot select a name which is the same as or similar to that of another cor "oration created miler the laws of the same sovereignty ; 44 Ch. Div. 678. It is held that priority of incorpo a tion determines the right to a corporate name; German H. & 0. C. H. Ass'n v. Coach Horse Ass'n, 46 Ill. App. 281.
The Continental Insurance Company can not obtain an injunction against another in surance company against using "Continen tal" In its corporate name, where there is no attempt to deceive the public; Continen tal Ins. Co. v. Fire Ass'n, 101 Fed. 255, 41 C. C. A. 326. The rules governing the right to trade-marks and trade-names should. not be applied with strictness to act'ons fpr in fringements upon a right to an exc usi ,re name between societies formed for patriotic and unselfish ends; Colonial De m of America v. Colonial Dames of New York, 29 Misc. 10, 60 N. Y. Supp. 302; and in New York, on the particular facts of the case, an injunction was refused against the New York Hygefa. Ice Company at the suit of Hygeia Water Ice Company; Hyge'a Water Ice Co. v. Ice Co., 140 N. Y. 94, 35 N. E. 417.