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THE
MUSIC TRADE
REVIEW
VALUE OF TRADE-MARKS IN BUSINESS
W h y it is Necessary to Go to the Expense and Trouble of Securing Registration—How the Same
Mark is Used on Various Classes of Goods—The Legal and Business
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Aspects of the Trade-Mark Defined. s
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HE trade-mark is often referred to as "one's commercial
_ There are also several proceedings that may be instituted in
signature." That commercial signature has now become
connection with trade-mark registration. One is called interference
one of the most important factors in the business world.
proceedings and is instituted when two or more persons apply for
the same trade-mark at the same time.
One trade-mark must, of course, be different from every other.
That is a first requisite. Immoral trade-marks are barred. Also
There is an important difference between trade-marks and pat-
a trade-mark must not be a coat of arms, flag, or other insignia of
ents. There are nine circuit courts in this country. In the case
either this or any other country. Some instances are on record
of trade-marks when suit is instituted in one court for infringement
where the coats of arms of several of our States were sent up to be
the decision brought by that court must be recognized by all thg
registered as trade-marks.
others. With patents one court may render a decision and anothejif
court render an entirely different decision in the same; case, the
A trade-mark must not be simply a name of a person or a de-
decisions being binding in the respective circuit courts otily.
scriptive or geographical word. These last two requirements have
been and are the cause of much discussion at various times, as it is
When an applicant applies for the registration of his trade*
a mooted question in some cases as to just what is and is not de-
mark that mark is published in the Patent Office Gazette, issued
scriptive.
weekly, and if during the next thirty days anyone wishes to object
to its registration he can do so. He must, of course, pro^e his case
When one desires to register a trade-mark he should send to
or his objections are not sustained. Not only is it possible by
the trade-mark division an application consisting of a statement,
registration to keep other persons in this country from using a
petition and declaration. The first is a statement of the goods upon
similar mark, but it is also possible to keep foreign merchants frorn
which it is desired to use the trade-mark; the petition is a request
sending goods into the United States under a similar trade-mark.
for its registration, and the declaration is an oath as to the truth of
This is accomplished in the following manner: When a regis-
the preceding statements. With this must go a pen-and-ink drawing
tration has been granted a copy of the proceedings and several of
of the device it is desired to register and also a fee of $10.
the marks may be left with the Secretary of the Treasury. H^
But one thing else has to accompany all this and one which is
sends to each collector one or more copies, and they in turn see that
the most important of all. This is either a label or outer package
no goods bearing a similar, trade-mark are allowed to enter their
cover, or whatever is used to cover the goods sold, showing that
port.
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the trade-mark for which registration is sought has been in actual
use before the application is made. The length of time it has been
Since the trade-mark has been in use in this country there
in use is immaterial; it may be ten years or a single day.
have been three laws passed regarding it. The first was in July,
There is, however, another way of securing the exclusive right
1870, which provided that trade-marks should be registered. Under
to use a trade-mark, and that is by using it. If after it has been
this law about 8,000 marks were registered. This original law
used on your goods another attempts to use it likewise he can be
continued in force until 1879, when through the case of the United
prosecuted on the ground of attempt at fraud under the common
States vs. Steffens the Supreme Court found it unconstitutional.
law. This is one instance where the common law holds and in
The next law was passed in 1881.
which the claim or priority stands good.
In February, 1905, the last of the trade-mark laws was passed.
Why then is it necessary to go to the expense and trouble of
None of the trade-marks registered under the previous act was to
securing registration for a trade-mark? The answer is twofold.
be discontinued until after thirty years. Until this time the regis-
When a trade-mark has been duly registered it is prima facie evi-
tration fee had been $25 ; but with the enactment of this law it was
dence that it is your property.
reduced to the present figure, $10.
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In case of suit, if your case is won, three times the cost or
In the office in which the trade-marks under consideration are
damages may be obtained. In case of winning the suits, too, all
kept are rows and rows of shelves which contain the applications
dies, copies, etc., of the trade-mark similar to yours will be de-
of those seeking registration and where, too, are filed the pen-and-
stroyed. And perhaps most important of all is the fact that in the . ink sketches of the trade-marks. Many of these files have been there
case of a registered trade-mark s.uit can be brought in the Federal
for years, while others are but a few hours old. Here, too, is to
courts and the outcome thus be made a public record.
be found a difference between the patent division and tha,t of trade-
marks.
There are two terms applied to trade-marks to determine their
character. A trade-mark is either technical or non-technical. A
If a patent case is not prosecuted within a year the case
technical trade-mark is one which is purely imaginative and has no
dies; but a trade-mark case remains alive Fbrafl time; that is one
absolute meaning when by itself. In other words, it is some fanci-
of the points on which a new law is sought.
ful picture of value only when associated unmistakably with certain
The trade-marks are filed first under their respective classes.
goods.
Of these there are forty-nine. All trade-marks are considered as mer-
On the other hand, a non-technical trade-mark is one that has
chandise and are classified as foodstuffs, medicine, oil and grease,
direct reference to the goods on which it is used. It may, for ex-
furniture, machinery, etc. An interesting point here is the fact
ample, claim certain qualities for the goods. In 1905, the date of
that a trade-mark of a certain design may be registered for use in
the enactment of the last trade-mark law, it was ruled that no non-
connection with glassware, for instance, while another may register
technical trade-mark should be registered unless it had been used
the same mark in connection with medicine. Each class may have
prior to 1895.
a trade-mark similar to that used in any other.
When the examiner of trade-marks has examined a mark sent
With the.ca.ses nowlpjending-there-are ahautaJiundredJjiousand
in for registration and rejected it as not fulfilling the necessary re-
things registered or about to be registered, says the Textile Manu-
quirements it is dropped, so to speak. If, however, the owner of
facturers' Journal. The millionth patent was recently issued;
the mark wishes to press matters further he may apply to the Com-
so it would appear that the trade-mark business is only one-tenth
missioner of Patents himself, and ask an opinion in the matter.
that of the patent business; but this is not actually the case, as
Last resort .can be had to the Court of Appeals of the District of
many concerns with only one trade-ra
Columbia, whose decisjpn is final.
ents marketed uri^er that one trade-mark.