Project Gutenberg's Things to Know About Trade-Marks, by J. Walter Thompson This eBook is for the use of anyone anywhere in the United States and most other parts of the world at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of the Project Gutenberg License included with this eBook or online at www.gutenberg.org. If you are not located in the United States, you'll have to check the laws of the country where you are located before using this ebook. Title: Things to Know About Trade-Marks A Manual of Trade-Mark Information Author: J. Walter Thompson Release Date: May 21, 2015 [EBook #49016] Language: English Character set encoding: ISO-8859-1 *** START OF THIS PROJECT GUTENBERG EBOOK THINGS TO KNOW ABOUT TRADE-MARKS *** Produced by Chris Curnow, Craig Kirkwood, and the Online Distributed Proofreading Team at http://www.pgdp.net (This file was produced from images generously made available by The Internet Archive.) Title Page THINGS TO KNOW ABOUT TRADE-MARKS A MANUAL OF Trade-Mark Information PUBLISHED BY J. WALTER THOMPSON COMPANY 44 EAST 23rd STREET NEW YORK Branch Offices CHICAGO BOSTON CLEVELAND CINCINNATI ST. LOUIS DETROIT TORONTO LONDON [1] Copyright, 1911 By J. WALTER THOMPSON COMPANY [2] O The Purpose of This Book ur idea, in preparing this little book, is to set forth, in clear and simple language, the main features of the law relating to trade-marks and to illustrate its application by specific examples of well-known trade-marks now in use. To an advertiser who has had but little experience in registering trade-marks, the law, with a congested mass of precedents surrounding it, seems to be a legal maze. But its intricacy is more apparent than real. The law is quite clear and explicit when one has the patience and experience in such matters to get to the bottom of it. We have endeavored to write this book in language so clear that any business man will understand it, and we feel sure that it will give any one a good working knowledge of trade-mark requirements. It has not been our intention to produce an exhaustive treatise on the subject. Such a treatment of the law of trade- marks and its allied subject of unfair trade would require a large volume, and the long and intricate discussion of minor points necessary in a work of that kind would be wearisome and perhaps unintelligible to the lay reader. Nor have we discussed the origin of the custom of identifying merchandise by trade-marks. This phase of the subject— trade-marks in their historical aspect—is interesting in an academic sense, but it has little or no bearing on the trade- mark situation of to-day. For further study of the trade-mark law and the allied subject of the law of unfair trade, we advise the reading of Hesseltine's "Law of Trade-Marks and Unfair Trade" (Little, Brown & Co., 1906); and Nims on "Unfair Business Competition" (Baker, Voorhis & Co.). Both of these works are legal in their treatment of the subject and in their phraseology. Another work containing much information on this subject is Clowry Chapman's "Law of Advertising and Sales", in two volumes, published by the author. J. Walter Thompson Company J. Walter Thompson President. [3] [4] Table of Contents Chapter Page Introduction 7 I. Digest of The Trade-Mark Law 13 Property in Trade-Mark Rests Upon Common Law 13 Conditions of Registration 14 Ten-Years Clause 16 How to Apply for Registration 17 Procedure of the Patent Office 20 Registration in Foreign Countries 23 Classification of Merchandise 23 State Trade-Mark Laws 25 II. Essentials of a Valid Trade-Mark 26 Portrait of a Living Individual—When it may be Registered 27 Trade-Mark Must not be Descriptive 28 Trade-Mark Must not Misrepresent 31 Trade-Mark Must not Resemble Previously Registered Mark for Same Class of Merchandise 32 A Geographical Name is not Registrable 34 Trade-Mark Must not Contain Red Cross Insignia 36 Restrictions as to Registering Names 37 Trade-Mark Must not be Fraternal Society Emblem 39 Trade-Mark Must not Consist of Flag or Coat-of-Arms 40 A Form, Color, a Shape, or a Material Not Registrable 40 Trade-Mark Must not be Against Public Policy 42 Affixation 43 III. Advertising Characters 45 IV. Infringement 52 V. Assignment 69 VI. Trade-Marks in Canada 73 VII. How to Devise a Trade-Mark 76 [5] [6] I Introduction f you were to ask any dozen men among your acquaintances, or any hundred men, to name the greatest writer that has ever lived, the odds are perhaps as great as a hundred to one that every man would say "Shakespeare." This virtual unanimity of opinion would not have its origin in a conscious comparison of authors and their works, for we might as well be frank with each other and admit that not more than one of us in a thousand has ever read enough of Shakespeare to form any opinion that would be worth listening to. We take Shakespeare on faith. We have been taught that Shakespeare was a transcendent genius, the greatest man that ever put pen to paper, and we believe it. Shakespeare is in evidence on every hand. We quote him every day. He is well advertised. And, needless to say, his reputation as a writer is far greater to-day than when he lived over a wig-maker's shop in London, or even when his fortune had been made, and he had retired with his jig-saw coat-of-arms to the "lordly mansion" on the hill back of Stratford. He has been advertised for three centuries with praise originating from a thousand sources, and his reputation is now steeped head and ears in Cumulative Results. Shakespeare's name has become a sort of trade-mark of good literature. If a meddling antiquarian should thoughtlessly add to the afflictions of the intellectual life by unearthing a doggerel sonnet of Thomas the Rhymer to which some clerkly scribe had affixed, in error, the name of William Shakespeare, learned men would read it, and nodding wisely, would doubtless say, "Pretty good stuff"—or the scholarly equivalent of that phrase. The force of recognized distinction is tremendous, not only in literature, but in business, in science—in short, it is one of the most valuable assets in every field of human endeavor. A commodity may attain a height of distinction, in the public's estimation, that places it, among other commodities of its class, on the level attained by Shakespeare in literature. Apollinaris among table waters; Heinz "57" among pickles; Hartshorn rollers among window shade appliances; Coca- Cola among soda fountain drinks; Huyler's among candies; Uneeda Biscuit among soda crackers; Horlick's among malted milks—each of these products has become, by reason of advertising combined with intrinsic merit, the standard of quality in its own class. It is interesting and easy to make practical tests to ascertain what advertised commodities have made a genuine and far- reaching impression on the buying public. Take talcum powder, for example. Ask your wife, daughter, sister, stenographer—and as many other women as are necessary to strike a general average —to write down the name of what each of them considers the standard talcum powder. Then, when all the returns are in, figure up the result. There are hundreds of brands of talcum powder sold in the United States; but you will find in your canvass that only three or four are mentioned at all, and that one of them leads all the rest by a decisive majority. We could tell you what the figures produced by your experiment would show the leading brand to be, but a modest reserve in self-assertion forbids us to say more than that its name begins with the letter M. The enviable position of this particular talcum powder is the sum total of many years' advertising and trade-mark publicity. It has become a permanent feature of our commercial life; a sort of Bunker Hill in the history of advertising. The natural result is that its trade-mark is enormously valuable. Advertising capitalizes human faith, and faith is a mental impression. It is a quality of the human mind that the most profound impressions are made by things—not by abstract ideas. Consequently, successful advertising must be tied hard and fast to a name (or trade-mark) and this trade-mark must be distinctive, and not easy to confuse with something else. It must be easy to remember, and it must identify the advertised product. The functions of a trade-mark in advertising may be concisely stated as follows: 1st. As a certificate of genuineness of the product to which it is affixed. This protects the public. 2nd. As an identifying mark, owned by the manufacturer, and in the ownership of which the law protects him in order that no competitor may reap the advantage of the selling effort and advertising put forth by the owner of the trade-mark. This protects the manufacturer. In its legal aspect, a trade-mark is therefore a device for protecting both the manufacturer and the public from fraud. In this connection, we quote the legal definition of a trade-mark as given by the Federal Court in the case of Shaw Stocking Company vs. Mack: "Broadly defined, a trade-mark is a mark by which the wares of the owner are known in trade. Its object is twofold; first, to protect the party using it from competition with inferior articles; and second, to protect the public from imposition.... The trade-mark brands the goods as genuine, just as the signature of a letter stamps it as authentic." [7] [8] [9] The law of trade-mark usage, reinforced by a vast array of legal decisions, is a growth of the last sixty years. When trade was restricted within narrow geographical limits by formidable conditions; when both goods and news traveled slowly; when selling effort was principally made by word of mouth, there was no genuine need in the commercial world for the legal regulation of trade-marks, or for laws designed to repress unfair trade. In the days of our forefathers manufacturers made goods; they did not sell them. Goods sold themselves. And, consequently, the expanding circle of a manufacturer's trade rippled out with exceeding slowness. A national sale of any product was the result of perhaps several generations of slowly expanding effort—and when once established, it was generally entrenched far beyond the reach of competitors or substitutes. People lived simply, and manufactured articles were few. It is true that trade-marks existed then—as they have since the beginning of organized commerce—but they were few in number, compared with their multiplicity to-day, and their owners were adequately protected by their ordinary common law rights. Quickly moving transportation and highly developed methods of distribution and sale have changed these conditions. To-day the swift shuttle of commerce flies to the ends of the world. Advertising has arisen, and has become, in a generation, the most important of selling forces. People read and believe the printed word, and they buy goods manufactured a thousand miles away by some advertiser of whom they had never heard until they read of him and his wares. Society has become intricate and complicated. Thousands are striving to do what one man strove to do a hundred years ago. From this criss-cross of human activities has been woven the fabric of the law of unfair trade, which is the progenitor of the trade-mark statutes. The intent of this body of law is to give the widest possible freedom to the play of individual energy in business consistent with justice to others in trade, and to the public. The trade-mark is the connecting link between the manufacturer and the ultimate consumer. By the use of trade-marks, widely advertised, manufacturers are able to build up a trade that becomes, to a great degree, independent of jobber, wholesaler, and retailer. In the public mind a trade-mark grows, in time, to mean a certain standard of quality, workmanship and material. Advertised products are generally higher in quality than similar products that are not advertised. The reason is that an investment in enough advertising space to make any commodity known nationally requires a considerable outlay of money, besides a well-developed selling organization to coöperate with the advertising, and harvest its results. And this must be done continuously, and that means that the combined advertising and selling effort must be permeated with a sense of stability and permanency. The manufacturer who is investing money in advertising, year after year, feels that he has too much at stake to endanger his possibilities by putting out inferior goods. Advertising is a systematic method of creating Good Reputation—but when Reputation is only an empty form of words, with nothing tangible behind it, the chances of its lasting are rather slight. The manufacturer of inferior goods is not looking very far into the future. He is not trying to build permanently on the basis of reputation, but to squeeze out Right Now every cent of possible profit. The result of this attitude of mind is that he does not advertise. Consequently it is not surprising to find that the best merchandise on any retailer's shelves consists of advertised goods, and that, moreover, concerns that advertise have the most efficient sales organizations, as well as the most enlightened relations with retailers and the public. The best trade-mark ever devised is not worth a cent until it has become known as an identifying mark of a commodity. A trade-mark has no inherent, natural value. Whatever it is worth is the result of advertising in some form, plus the desirable qualities of the goods that it represents. Some trade-marks are words which have a natural affinity for the language, and they slide into common speech as easily as a cupful of water melts into the ocean. A notable instance of this is "Cracker Jack." This word has become an integral part of our common language, and is used to mean a hustler, a thing of excellence, a fellow who gets there, a machine that runs smoothly, a well-played game, and in other senses. But it is probable that not one person in a hundred who uses this word knows that it is a registered trade-mark, and that it is a name applied to a mixture of popcorn and peanuts, combined with molasses, or some other sweetening. It is a delicious concoction, as any reader of this book may ascertain for himself. The owners of Cracker Jack have not advertised. They have allowed the immense asset of their trade-mark—a by- word on the tongues of millions—to go to waste. The word "Celluloid" is protected by the trade-mark law. The article celluloid can be manufactured by any one who cares to go into the business of making it, but only the owners of the trade-mark can call their product celluloid. This is not generally known, probably not even by the well-informed class of readers among whom this book will circulate—a state of public ignorance due to lack of advertising. "Kodak," an artificial word—a registered trade-mark—widely advertised, has grown into common use, and is now [10] [11] [12] "KODAK" Is our Registered and common-law Trade-Mark and cannot be rightfully applied except to goods of our manufacture. If a dealer tries to sell you a camera or films, or other goods not of our manufacture, under the Kodak name, you can be sure that he has an inferior article that he is trying to market on the Kodak reputation. If it isn't an Eastman, it isn't a Kodak. EASTMAN KODAK CO., ROCHESTER, N. Y., The Kodak City. Special advertising to counteract the indiscriminate use of the word "Kodak." used by many persons to mean a small hand camera of any make, though (as every reader of this book knows) a real Kodak is made only by the Eastman Company. In this case the owners of the trade-mark have made their advertising keep pace with the diffusion of the word. It is easier to say Kodak than it is to say "portable camera". There is a real need in the language for such a word, and "Kodak" has come to supply it. Trade-marks of this character, which seem to supply a genuine linguistic need, are, in a sense, too good. The indiscriminate application of "Kodak" to a certain class of cameras, irrespective of origin, has caused the Eastman Kodak Company to publish many advertisements with the special purpose of calling attention to the correct use of the word. The word "O'Sullivan" is another instance of a trade- name acquiring a secondary meaning through advertising. It instantly brings to mind the thought of rubber heels. In a popular play an actor says, "I got away from there on my O'Sullivan's" and every one in the audience knows that he means to say that he left as quietly as he could. There comes a time, in the history of every manufacturer who advertises extensively and successfully for a long period, when his trade-mark, and the name of his product (in many cases they are the same), become by-words of common speech, known to all men, and incorporated into our fluid and elastic language. When an advertiser reaches this point, he has generally attained the highest possible advertising success. In other words, advertising has done for him all it can do, and he has only to keep the stream of advertising going to hold what he has. I CHAPTER I A Digest of the Trade-Mark Law n February, 1905, Congress passed an act entitled "An act to authorize the registration of trade-marks used in commerce with foreign nations or among the several states or with Indian tribes, and to protect the same." This act went into effect on April 1, 1905. With its amendments it is known as the United States Trade-Mark Law. Its provisions should be known by every manufacturer or advertiser who is using, or who intends to adopt, a trade-mark. Property in Trade-Marks Does Not Rest upon the Statute, But upon the Common Law. It should be stated here that ownership in a trade-mark is a property right resting in the common law. This right is, therefore, not a creation of the statute. The purpose of the statute (or Act of 1905) is to systematize the registration of trade-marks, and to provide a definite procedure both for recording and protecting them. A trade-mark may be legally valid without having been registered, and on the other hand, a registered mark may be proved legally invalid. Registration is prima facie evidence of validity, but it is not conclusive evidence. Upon this subject the Supreme Court of the United States has said, "The right to adopt and use a symbol or device to distinguish the goods or property made or sold by the person whose mark it is, to the exclusion of use by all other persons, has been long recognized by the common law and the chancery courts of England and of this country. It is a property right for the violation of which damages may be recovered in an action at law, and the continued violation of it will be enjoined by a court of equity with compensation for past infringements. This exclusive right was not created by the act of Congress and does not now depend upon it for its enforcement." The common law rights of the owner of a trade-mark are the same now as they were before the passage of the act. In fact, the statute itself contains this provision: "Nothing in this act shall prevent, lessen, impeach or avoid any remedy at law, or in equity, which any party aggrieved by any wrongful use of any trade-mark might have had if the provisions of this act had not been passed". (Section 23 of Act of 1905.) The advantages of registration are readily apparent, however. In an action at law against infringement, the owner of a registered trade-mark can produce at once the record of its adoption and legal registration. Without registration, it would be necessary for him to go through an involved legal process to prove his rights in the matter. Registration in the United States Patent Office brings any litigation involving the right to use the trade-mark within the scope of the Federal court, with a judiciary trained in such cases. When a trade-mark is not registered under the Federal law a suit pertaining to it cannot be heard in the United States courts, unless the amount in dispute exceeds two thousand dollars, and the parties on the opposing sides are not citizens of the same state. Under the Act of 1905 about 39,000 trade-marks had been registered, up to September 1, 1911. Conditions of Registration An individual or a corporation has a right to register a trade-mark under the United States law if the trade-mark for which registration is sought belongs to the applicant and is used by him:— 1st. In commerce among the several states; 2nd. Or, in commerce with foreign nations; 3rd. Or, in commerce with the Indian tribes; Provided the owner of the trade-mark resides within the territory of the United States (which includes all territory under United States control), or has a manufacturing establishment situated in United States territory, or resides in any foreign country which affords, by treaty, similar privileges to citizens of the United States. The law states, as a condition of validity, in explicit terms that the trade-mark must not only belong to the applicant, but must be "used by him." A trade-mark cannot be registered until it has actually been used on goods, and the use must be continued long enough, and must be of such a nature as to indicate a genuine intention on the part of the owner to adopt the trade-mark as a permanent accessory of his business. The reason for this is evident. If any citizen could appropriate and sequester a trade-mark by paying the registration fee of ten dollars, without an intention of using it for its legitimate purpose, it does not take much imagination to foresee a Trade-Mark Trust, with most of the desirable trade-marks in the hands of a monopoly, to be farmed out at a profit. To be Registrable A Trade-Mark Must Be: 1st. An arbitrary symbol, or word, or words, or a combination of a device and wording, not obviously descriptive of the commodity to which it is to be applied. 2nd. Unlike any other trade-mark, already in use, and applied to the same class of goods. It must not resemble the trade-mark of a competitor, or of a potential competitor, to such an extent that the buying [13] [14] [15] public is likely to be deceived or confused by the resemblance. 3rd. Used in lawful trade. 4th. Of such a character that it may be affixed, printed upon, woven, sewed, branded or otherwise impressed upon the product with which it is used, or upon the package or container of the product. A Trade-Mark Must Not Be: 1st. A portrait of a living individual unless the application for registration is accompanied by the written consent of the individual whose portrait is used. 2nd. Scandalous or immoral matter of any description. 3rd. The flag or coat of arms of the United States, or of any state, or of any municipality, or any of the insignia thereof. 4th. The insignia of the American National Red Cross Society. 5th. The flag or coat of arms of any foreign nation. 6th. Any design or picture which has been adopted by a fraternal society as its emblem. 7th. A design or wording identical with a registered or known trade-mark owned and in use by another, and appropriated to merchandise of the same descriptive qualities, or which so nearly resembles a registered or known trade-mark owned and used by another, and appropriated to merchandise of the same descriptive qualities, as to be likely to cause confusion or mistake in the mind of the public, or to deceive purchasers. 8th. Any mark which consists merely in the name of an individual, firm, corporation, or association, unless said name is written, printed, impressed or woven in some particular or distinctive manner, or is used in connection with a portrait of the individual. 9th. Any arrangement of words or devices descriptive of the goods with which they are used, or of the character or quality of such goods. In other words, a trade-mark must not be an advertisement in the ordinary sense of the word. 10th. Any geographical name or term. 11th. A misrepresentation of the quality, composition, character, origin, or nature of the commodity with which it is used. Jobber Retailer, Manufacturer Trade-Mark Advertising Consumer This looks like a problem in geometry, but it isn't. This diagram shows at a glance how Trade-Mark Advertising draws a straight line between the manufacturer and the consumer. The manufacturer who doesn't advertise has to depend on the jobber and the retailer. In the majority of cases his name never reaches the consumer. His trade is necessarily precarious, and he is constantly in danger of the kind of cut-throat competition that shaves the lowest margin of profit to nothing. But the manufacturer who advertises has his name and the name of his goods on the lips of millions of people. The retailer who attempts to keep advertised goods from selling is like the man who cuts off his nose to spite his face. People will go elsewhere and get what they want. [16] Red Cross Shoe "It Bends with your Foot." The trade-marks of the Red Cross Shoe are the Red Cross shown below and the design shown above. We would like to talk with you about advertising. Among our clients are some of the largest and most successful advertisers in the United States. It will cost nothing to have a talk with us—and we may be able to suggest an idea or plan that will simplify your sales problem. J. WALTER THOMPSON COMPANY New York: 44 East 23rd Street Boston: 201 Devonshire Street Cincinnati: First National Bank Bldg. St. Louis: Odd Fellows Bldg. Chicago: The Rookery Cleveland: Swetland Bldg. Detroit: Trussed Concrete Bldg. Toronto: Lumsden Bldg. London: 33 Bedford St., Strand A special provision of the Act of 1905 legalized all trade-marks that had been in exclusive use by the applicant for ten years prior to the passage of the act, and this provision applies even to trade-marks of ten years' standing that, because of their character, could not be registered under the act. The language of the act dealing with this subject is as follows: "Nothing herein (in the Act of 1905) shall prevent the registration of any mark used by the applicant or his predecessors, or by those from whom title to the trade-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 the passage of this act." (Section 5, Act of 1905.) There are many trade-marks registered under this ten years' clause. Manufacturers are prohibited from using the insignia of the Red Cross Society as a trade-mark, but there is a Red Cross Shoe, and the products of the well-known druggists' specialty house of Johnson & Johnson bear a Red Cross symbol. In both cases, their right is based on long and continuous use antedating the act of 1905, which especially exempts such cases. How to Apply for Registration The registration of trade-marks is under the supervision of the Commissioner of Patents, and regular forms for registration are prescribed. Copies of these forms may be obtained by applying to the Patent Office. In applying for trade-mark registration, the following provisions of the law must be observed: 1st. The applicant must file a Petition in the Patent Office, addressed to the Commissioner of Patents. This petition must be in regular form, and should be signed and dated. [17] Chiffonette, Veilinette, Malinette Trade-marks applied to fabrics and registered by Theo. Tiedemann & Co. B.V.D. A valuable and widely advertised trade-mark. Can you guess what the three letters mean? A trade-mark of the Keystone Watch Case Co. 2nd. With the petition a Statement must be forwarded. This document must give the name, domicile, location and citizenship of the applicant; the class of merchandise and the particular description of goods comprised in such class to which the trade-mark is appropriated; a statement of the mode in which the trade-mark is to be affixed to the goods; and the length of time during which the trade-mark has been used. It is not necessary to give a written description of the trade-mark itself except when it contains colors not shown in the drawing. This statement must be signed by the applicant. Where a corporation is the applicant, the secretary should sign the statement. When a partnership is the applicant, any partner can sign, but the names of all the members of the firm must be given. 3rd. There should also be forwarded to the Patent Office, at the same time, a Declaration of the applicant, sworn to before a notary public, to the effect that he believes the statements made in his application are true; that he believes himself to be the owner of the trade-mark sought to be registered; and that said trade-mark is used by him in commerce among the several states of the United States, with the Indian tribes, or with foreign nations; and that the drawing sent with the application truly represents the trade-mark sought to be registered. 4. With this application there must be filed a Drawing of the trade-mark, made according to the following specifications: The size of the sheet on which the drawing is made must be exactly 10 x 15 inches, and the sheet must be of pure white paper, corresponding in thickness to two-sheet Bristol board. The surface of the paper must be calendered and smooth. India ink must be used. One inch from its edges a single marginal line must be drawn, as shown in the accompanying cut, leaving the dimensions inside the border exactly 8 x 13 inches. The distinctive and eye-catching trade-mark of 20-Mule Team Borax. Within this border, the drawing and signatures must be included. One of the shorter sides of the sheet is regarded as its top, and measuring downwardly from the marginal line, a space of not less than 1 1/4 inches is to be left blank for the heading of title, name, number and date. All drawing must be made with the pen only. Every line and letter, including signatures, must be absolutely black. The name of the proprietor of the trade-mark, signed by himself, or his attorney of record, must be placed at the lower right-hand corner of the sheet within the marginal lines. [18] [19] Trade-mark moulded into the reverse side of every Tapestry Brick. The size of the sheet must be exactly 10 x 15 inches. A Diagram Showing Method of Making Drawing The drawing that accompanies an application for registration of a trade-mark must be made exactly on this pattern. It is essential that these directions be followed. Onoto Coined word used as the name of a fountain pen. The stork is the appropriate and suggestive trade-mark of the Stork Co. manufacturers of baby things. 5th. With the application five Specimens, or facsimiles, of the trade-mark as actually used upon the goods, must be sent to the Commissioner of Patents. 6th. The Fee for registering a trade-mark is ten dollars, and this amount should be sent with the application. The foregoing is a brief resumé of the rules for registration. Those intending to register trade-marks should obtain exact forms from the Commissioner of Patents. A certificate of registration remains in force for twenty years, and it may be renewed from time to time, upon expiration, for like periods of twenty years, upon payment of a renewal fee of ten dollars. The owner of a trade-mark may prosecute his own application for registration, but he is advised, unless familiar with such matters, to employ a competent attorney. A register of attorneys is kept in the Patent Office, on which is entered the names of all persons entitled to represent applicants before the Patent Office in the prosecution of applications for patents, and any registered attorney will be recognized in the prosecution of applications for registration of trade-marks. Procedure of the Patent Office [20] A Sherwin-Williams advertising symbol. The well-known trade-mark of the National Lead Company. All men, and some women, know what this stands for. F A, TRADE MARK A weak and unimpressive trade- mark. The examiner in charge of trade-marks examines all applications for registration. If, after examination, registration is refused, the applicant will be notified, and the reasons for refusal stated, in order that the applicant may judge of the propriety of prosecuting his application further. If, on examination of an application, it appears that a trade-mark is entitled to registration, the mark will be published at least once in the Official Gazette of the Patent Office. Such publication shall be at least thirty days prior to the date of registration. If no notice of opposition be filed within thirty days after such publication, the applicant or his attorney will be notified of the allowance of his application, and a certificate of registration will be granted. Under certain conditions amendments may be made in an application. Every applicant whose mark has been twice refused registration by the Examiner of Trade- marks for the same reasons upon grounds involving the merits of the application, may appeal to the Commissioner, in person, upon a payment of a fee of fifteen dollars. From an adverse decision by the Commissioner of Patents an appeal may be taken to the Court of Appeals of the District of Columbia. If, upon examination of an application to register a trade-mark, the examiner in charge finds that the mark for which registration is sought is identical with, or essentially similar to, a trade-mark appropriated to goods of the same descriptive qualities, for which a certificate of registration has been already issued, an interference will be declared. When an interference is declared, the matter in dispute is referred to the Commissioner of Patents, who, under the rules of the Patent Office, passes judgment upon the points at issue. Any person who believes he would be damaged by the registration of a mark may oppose the same by filing a written notice of opposition, stating the grounds therefor, within thirty days after the publication of the mark sought to be registered, which notice of opposition shall be accompanied by the fee required by law ($10.00) and shall be verified by the person filing the same before one of the officers mentioned in Section 2 of the Act of February 20, 1905.[1] An opposition may be filed by a duly authorized attorney, but such opposition shall be null and void unless duly verified by the opposer, within a reasonable time after such filing. A duplicate copy of the notice of opposition must be filed, either with the notice of opposition or within a reasonable time after the filing of the same. Any person, deeming himself to be injured by the registration of a trade-mark in the Patent Office, may, at any time, make application to the Commissioner to cancel the registration thereof. Such application shall be filed in duplicate, shall state the grounds for cancelation, and shall be verified by the person filing the same, before one of the officers mentioned in Section 2 of the Act of February 20, 1905. If it shall appear, after a hearing before the examiner of interferences, that the registrant was not entitled to the use of the mark at the date of his application for registration thereof, or that the mark is not used by the registrant, or has been abandoned, and the examiner in charge of interferences shall so decide, the Commissioner shall cancel the registration of the mark, unless appeal be taken within the limit fixed. In cases of opposition, and of applications for cancelation, the examiner in charge of trade- marks shall forward the files and papers to the examiner in charge of interferences, who shall give notice thereof to the applicant or registrant. The applicant or registrant must make answer at such time, not less than thirty days from the day of the notice, as shall be fixed by the examiner in charge of interferences. The law directs that the owner of a registered trade-mark print, or impress, or affix, in legible letters, the words: Registered in U. S. Patent Office or Reg. U. S. Pat. Off. upon such trade-mark wherever it is used, or sufficiently near it to be discerned whenever the trade-mark is seen. The manner in which this should be done is shown in connection with the "Fine-Form" Maternity Skirt trade-mark on this page. When, from the character or size of the trade-mark, or from its manner of attachment to the article, this cannot be done, a label containing a like notice should be affixed to the package or receptacle wherein the article is enclosed. It is important that this be done, otherwise, in a suit for infringement by a party who has failed to give such notice of registration no damages shall be recovered, except on proof that the defendant was duly notified of infringement, and [21] [22] [23] Shows method of exhibiting registry notice in connection with a trade-mark. continued the same after such notice. Registration in Foreign Countries American owners of trade-marks who expect to do business in foreign countries should not neglect the registration of their trade-marks abroad. A failure to observe this precaution has led, in some cases, to a situation where the American owner, entering the foreign field, found his trade-mark already appropriated. The trade-mark laws of various foreign countries differ greatly, in some instances, from the United States law. A manufacturer who desires to do business in a foreign country should consult a trade-mark attorney who specializes in foreign trade-mark registration and protection, and be guided by his advice. Classification of Merchandise The right to use a trade-mark is limited to the class of merchandise for which it is registered, and to the goods, falling within that class, on which it has been actually used. For the purpose of classification the Patent Office has issued a list of forty-nine general classes of merchandise. An applicant for the registration of a trade-mark must specify the class of merchandise with which his mark has been used, and must describe the particular goods in that class on which it has been used. In case his application is granted, his right to use the trade-mark is confined to the line of products named in his application. The list follows: 1. Raw or partly prepared materials. 2. Receptacles. 3. Baggage, horse equipments, portfolios, and pocket-books. 4. Abrasive, detergent, and polishing materials. 5. Adhesives. 6. Chemicals, medicines, and pharmaceutical preparations. 7. Cordage. 8. Smokers' articles, not including tobacco products. 9. Explosives, firearms, equipments, and projectiles. 10. Fertilizers. 11. Inks and inking materials. 12. Construction materials. 13. Hardware and plumbing and steam-fitting supplies. 14. Metals and metal castings and forgings. 15. Oils and greases. 16. Paints and painters' materials. 17. Tobacco products. 19. Vehicles, not including engines. 20. Linoleum and oiled cloth. 21. Electrical apparatus, machines, and supplies. 22. Games, toys, and sporting goods. 23. Cutlery, machinery, and tools, and parts thereof. 24. Laundry appliances and machines. 25. Locks and safes. 26. Measuring and scientific appliances. 27. Horological instruments. 28. Jewelry and precious-metal ware. 29. Brooms, brushes, and dusters. 30. Crockery, earthenware, and porcelain. 31. Filters and refrigerators. 32. Furniture and upholstery. 33. Glassware. 34. Heating, lighting, and ventilating apparatus, not including electrical apparatus. 35. Belting, hose, machinery packing, and non-metallic tires. 36. Musical instruments and supplies. 37. Paper and stationery. [24]