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VOL. LXXXII. No. 6 Piblished Every Saturday. Edward Lyman Bill, Inc., 383 Madison Ave., New York, N. Y. Feb. 6,1926
Single Copies 10 Cents
$3.00 Per Tear
Names of Artists or Musical Bodies
May Not Be Trade-Marks
In Denying Right to Use "California Ramblers" as Trade-Mark for Talking Machine Records, Federal Of-
ficials Establish What Appears to Be Precedent—Ruling Does Not Affect Names of
Famous Artists or Composers Who Are Dead—A New Supreme Court Decision
NEW and significant principle, of mo-
ment to the trade, has just been estab-
lished at Washington by an official rul-
ing that the name of an orchestra may not be
used as a trade-mark for music industries prod-
ucts. This notable addition to the code gov-
erning the identification of musical wares takes
on the deeper meaning because it comes at a
juncture when there is a distinct trend in the
industry to the use of varietal marks, supple-
mentary and subordinate trade-marks.
This is the answer, here at the start, to the
objections of the tradesman who cannot con-
ceive, for instance, that any piano manufacturer
should ever desire to christen his product with
the name of a musical artist or organization
It is quickly conceded that, in all probability,
primary reliance in the task of distinguishing
the make or indicating the origin of musical
instruments will continue to rest on one of two
classes of trade-marks: on the one hand, the
coined or converted word, such as has proven
so popular in the talking machine field; on the
other, the surname of manufacturer of a piano
or the founder of a musical instrument house.
This leaves for our reckoning the amplifying
marks which reinforce the main badges of busi-
ness.
Several influences account for the drift to the
new vogue of pyramiding music marks. One
explanation of the fresh fashion is the discov-
ery, but lately made by many members of the
music trades, that there is no objection on the
part of Federal censors or United States courts
to the use of two or more different trade-marks
on the same article. A second factor is seen
in the commercial mergers, consolidations and
reorganizations of the present era, which oper-
ate to link together various individualistic marks
under a parent mark or house mark. Third,
and by no means least, is the latter-day impulse
to differentiate styles and models of musical
instruments,- etc., not by numbers, alphabetical
letters or other commonplace keys, but by
means of trade-marks that, incident to indicat-
ing source, also indicate variety.
It is entirely logical that the new practice
and the new possibilities in applying clues and
bywords for items of musical commerce should
multiply the demand for distinctive trade-marks
and trade names. And, this turn of affairs be-
ing coincident with an era of unparalleled pub-
licity for musical artists, it is wholly consistent
A
that branders of music trade products should
turn to the headliners for advertising support
and good will capitalization. That is where the
veto at Washington comes in as a pacemaker.
The stage was set for a test as soon as Kirke-
r
HE denial of the right to register the
name "California Ramblers" as a trade-
mark for talking machine records, opens up
an interesting side of trade-mark procedure
especially for the music trades. The de-
cision, which was based on the fact that
such a name does not indicate ownership
nor origin of the goods but merely signifies
who recorded them, indicates that the Gov-
ernment will only register marks when they
both look like trade-marks and what is
more important when they act like such
marks. The decision opens up an interest-
ing
field.
—EDITOR.
by & Hand, Inc., of New York, made applica-
tion at the United States Patent Office for the
registration of the words "California Ramblers'
as a trade-mark for talking machine records.
The Examiner of Trade-marks declined to issue
a certificate of exclusive ownership on the
ground that the name does not indicate owner-
ship or. origin of the goods but merely signifies
that the records were produced by an orchestra
known as the California Ramblers. The Fed-
eral trade-mark censors, be it here explained,
are very insistent that a trade-mark, in order
to obtain credentials from Uncle Sam, shall
both look like a trade-mark and act like one.
The latter count, in particular, was a stumbling-
block for "California Ramblers."
To support his theory that the name "Cali-
fornia Ramblers," as used on the records, does
not perform a trade-mark function the Exam-
iner collected a number of newspaper clippings
of advertisements showing that an orchestra
called the California Ramblers is well known
and has toured the country, appearing in motion
picture theatres and elsewhere. Kirkeby &
Hand, Inc., did not dispute this, but urged in
justification that it owns and controls the or-
chestra, which has appeared under this title.
In his comeback, the Trade-mark Examiner
insisted that it is immaterial that the record
manufacturer owns or controls the orchestra,
since it is the significance of a trade-mark to
the public that makes or mars it as a sign of
origin of the goods. He reasoned that the
public would buy "California Rambler" records
because the organization produces the music,
not because the records are made by any specific
manufacturer.
Continuing his exposition of the proprieties
of branding the products of the music indus-
tries, the head of the Trade-mark Division
said: "The Victor Talking Machine Co. has the
exclusive right to make records from music pro-
duced by Fritz Kreisler and many other artists
and organizations, but certainly would not have
the right, because of that fact, to register or
use their names as trade-marks.
"Nor," continued this expert in his verdict
of rejection, "would the public buy such records
because they were made by the Victor Co., but
because they reproduced music of the artist or
organization which it admired. Moreover, the
orchestra called 'California Ramblers' is known
apart from phonograph records. In advertising
its appearance, no connection was mentioned
with Kirkeby & Hand, so that the orchestra is
known to thousands of people on its own merits
and not indicative of origin in Kirkeby &
Hand."
Failing in all efforts to persuade the Trade-
mark Examiner to relent, the record manufac-
turers carried their case on appeal to the "higher
up," i. e., the office of the Commissioner of Pat-
ents, where the last word has just been said
by the First Assistant Commissioner. Answer-
ing, in his appeal, the criticism of the Examiner
of Trade-marks, the spokesman for Kirkeby &
Hand, said: "It may be true that the Victor
Talking Machine Co. has made records played
by the California Ramblers, but there is noth-
ing in the case to indicate the extent of this
practice, nor to indicate that this name, as used
by Victor Talking Machine Co., was a trade-
mark use. The Victor Talking Machine Co.
has its own trade-mark." The New York firm
further emphasized the fact that inasmuch as it
is the owner of the organization whose name is
"California Rambler," "no injustice could be
done the orchestra." Finally, the record pro-
(Continued on page 18)