7. Where no patent is held by the owner of plows, any one may make plows in ex-
act similitude, may brand the name of the manufacturer and the place of the
manufacture on such part of the plow as he pleases, taking care so to use the
brand as not to deceive the public into the belief that the plow is the manu-
facture of another. Id.
8. Although certain letters and numerals may have come to indicate to the public
the origin or ownership of appellant's plows, as they did not appropriate them
by adoption, use, or claim as a part of their trade-mark, they cannot be
treated as a part of it simply because they appear capable of serving the same
purpose. Id.
9. Courts of equity afford a remedy against the infringement of a trade-mark or of
the trade reputation of its owners, on the principle of protecting property, of
promoting fair dealing, and of protecting the public. Where a trade-mark
itself has been infringed, neither fraud nor the inferior quality of defendant's
article need be proved. But where a property right not amounting to a
trade-mark has been infringed, it is essential to show fraudulent intent. But
courts of law require proof of deceit, fraudulent intent, or special damage
(unless damage is presumed) in both cases. #Id.
10. Where the action is brought to restrain the fraudulent usurpation of plaintiff's
trade reputation, plaintiff need not make out a legal title to an exclusive
trade-mark, by the usurpation of which defendant has done the wrong. It is
enough that defendant sells his goods as those of plaintiff, either by the use
of plaintiff's trade-mark or any other means, that such fraudulent sales result
or are likely to result in damage to plaintiff. It is the purpose or design of the
act that constitutes the wrong, and though a man may use any letters and
figures (which are common property) to indicate the size, quality, and de-
scription of his goods, yet he cannot do this in such way as to mislead others
into the belief that goods made by himself were made by another. Id.
11. If one, with a bad motive, exercises his rights in a lawful and proper way, and
injury results, there is damage without legal injury; but if with a bad mo-
tive he exercises his rights in an unlawful manner, there is both damage and
legal injury. Id.
12. As to what facts constitute infringement of a trade-mark or trade reputation, no
rule can be formulated that will embrace every act of infringement, and the
original and alleged imitation are of primary importance. The resemblances
need not be such as would mislead an expert or could not be easily detected
if each case must depend mainly on itself. But resemblances and differences
between the original and the spurions were seen together. It is enough if
such resemblances exist as would lead an ordinary purchaser to suppose he
was buying the genuine article, and not an imitation. If the differences are
only colorable, and there is no reason for the resemblances, except the pur-
pose of deceiving the purchaser of one article into the belief of its being the
manufacture of another, the court will presume a fraud was intended. Id.
13. Though the particular combinations of letters and figures used by appellees
were not entitled to protection as part of appellants' trade-mark, yet it ap
pearing that appellees copied those combinatious, not for the purpose of in-
dicating the size and quality of their plows, but for the purpose of mislead-
ing the public into the belief that appellees' plows were of a kind made by
appellants, having an established reputation and large sale, Held appelles
are liable to appellants for damages resulting from loss of trade in conse-
quence of such copying, and to an injunction restraining the further sale of
such plows. Id.
14. The right to the exclusive use of a word or symbol as a trade-mark is insepar
able from the right to make and sell the commodity to which it has been
appropriated to designate the article as the production or article of the pro-
prietor, and would seem to be an incident to the business of the place or
establishment to which it owes its origin, and without which it can have no
independent existence. It should be deemed to pass with a transfer of the
business, because such an application is consistent with the character of the
transaction and the presumable intention of the parties. *The Atlantic
Milling Company v. Robinson, 277.
15. The complainant's damages are measured by the extent to which the unlawful
use of the word "Champion" has interfered with the sale of its flour. *Id.
16. The right to an injunction is not affected because the appropriation of their
trade-mark has been a limited one. *Id.
17. It is not incumbent upon the complainants to show that their trade-mark has
been copied in every particular. It is sufficient if it has been imitated to an
extent calculated to mislead purchasers and cause the article to which it has
been applied to pass as their article. *Id,
18. No applicant may register a trade-mark unless he can establish, first, that he
has the right to use it, and no one else has; second, that it is not identical
with the registered or known trade-mark of another person; and beyond this
he must show that he is using the trade-mark which he so owns in commerce
with foreign nations or Indian tribes. Ex parte Lyon, Dupuy & Co., 29.
19. The statute does provide that the trade-mark sought to be registered shall be
used in foreign commerce; but it does not in terms provide, nor in fair intend-
ment convey the idea, that a party may acquire the right to use somebody
else's trade-mark merely by using it in such trade. Id.
20. Where the records of this Office disclose that certain parties registered a trade-
mark under the law of 1870, that such trade-mark was their property, that
they had been using it in this country for ten years next preceding the date
of their application for registration, and there is no evidence that they have
ever abandoned such trade-mark, Held that section 3 of the act of 1881 and
the spirit of the whole statute authorize the Patent Office to take notice of
the facts recited in said records in determining "the presumptive lawfulness
of claims to the alleged trade-mark" by subsequent applicants for registra-
tion, and the Examiner was justified in rejecting the application for registra-
tion on the facts disclosed in said record. Id.
21. The leading principle of the law of trade-marks is that the honest, skillful, and
industrious manufacturer or enterprising merchant who has brought into
market an article which has found favor with the people, and who, by affix-
ing to it some name or device to distinguish it as his and from all others, has
furnished his guarantee of the quality and integrity of the manufacture,
shall receive the first reward of his honesty, industry, skill, or enterprise.
The Liggett & Myers Tobacco Company v. Hynes, 349.
22. Such a person is not in any manner or extent to be deprived of the right he has
acquired by another who, to that end, applies to his own productions the
sanie mark or a colorable imitation thereof. *Id.
23. In considering an alleged imitation of a trade-mark sight must not be lost of the
character of the merchandise, the use to which it is put, the kind of people
who ask for it, and the manner in which they usually order it.
24. If the article on which the alleged infringing mark is placed resembles another
article bearing the trade-mark that is claimed to have been infringed, so that
this resemblance, when blended with the appearance of the device, has a tend-
ency to deceive the ordinary public, then the very nature of the article be-
comes potential evidence in the case to show a purpose to deceive. *Id.
25. While there is no trade-mark in the shape of complainant's plug of tobacco, yet
when defendant makes plugs of the same general appearance and puts on
them a device of such general resemblance to complainant's that the ordinary
customer is deceived thereby, there is clear ground for an injunction. *Id.
26. Congress intended to devolve upon the Commissioner of Patents the duty of
determining the character of the subject-matter offered for registration under
in the label and trade-mark law. Ex parte Moodie, 35.
27. The proper construction of the statute is that the subject-matter of an appli-
cation for a label shall be that which may be properly claimed as a label, and
not be merely subject-matter for a trade-mark. Id.
28. But the statute does not mean to imply that if certain subject-matter is found
to be incapable of registration as a trade mark it can nevertheless be regis-
tered as a label, for it may not be descriptive of the quality or nature of the
goods, and therefore fail to constitute a label. Id.
29. In the case at bar the Examiner properly refused to register as a label matter
which, guaged by the establish rules, constitutes only subject-matter for a
trade-mark. Id.
TRIAL BY JURY. See Jury Trials.
TRIAL OF ISSUE. See Practice in the Courts, 4.
TWO YEARS' PUBLIC USE. See Public Use.
UNITARY RESULT. See Joinder of Inventions.
UNITED STATES CIRCUIT COURTS. See Jurisdiction.
UNITED STATES SUPREME COURT RULES. See Practice in the Courts, 1, 9.
USE. See Experimental Use; Inventions, 4; Public Use; Use of Patented Articles.
USE OF PART OF AN INVENTION. See Damages and Profits, 8.
USE OF PATENTED ARTICLES.
1. The purchase of a patented article from the patentee confers upon the buyer the
right to use the article to the same extent as though it were not the sub-
ject of a patent, but the sale does not import the permission of the vender
that it may be used in a way that will violate his exclusive property in an-
other invention. *Roosevelt v. Western Electric Company, 357.
2. When the article is of such peculiar characteristics that it cannot be dealt in as
a trade commodity, and cannot be used practically at all unless as a part of
another patented article of the vender's, it would be against good conscience
to allow an injunction to a vender under such circumstances; but this is not
true of the article in question. *Id.
USE OF A PATENTED INVENTION IN CONSTRUCTING OTHER INVENTIONS.
See Infringement, 20, 23; Interfering Patents; Use of Patented Inventions, 1, 2.
USE OF PATENTED MACHINES. See Construction of Specifications and Patents, 8;
Damages and Profits.
VACATION OF PATENTS. See Invalid Patents, 1, 2.
VALID IN PART. See Construction of Specifications and Patents, 7, 8; Particular Pot-
ents: 56, Reay and Negbour; Reissues, 9.
VALIDITY OF PATENTS. See Damages and Profits; Evidence of Invention; Power of
Attorney to Amend; Priority of Invention, 6; Public Use; Reissues, 1, 3, 11; Sub-
squent Patents for same Invention, 1, 2.
VALID PATENTS. See Particular Patents: 2, Bauman; 6, Bostock; 7, Brown; 29, Ev-
crest; 31, Hicks; 32, Holmes and Brow &; 33, Illingworth: 37, Lloyd; 51, Nobel;
56, Reay and Negbour; 62, Smith; 63 Sullivan.
VIOLATION OF INJUNCTION. See Contempt.
Motion for punishment of the defendant for a violation of the injunction grauted
on final hearing denied, for the reason that the device employed by the de-
fendant is not the equivalent of the patented device. Fetter et al. v. New-
hall, 295.
VOID CLAIMS. See Subsequent Patents for Same Inventions.
VOID PATENTS. See Construction of Claims, 2; Construction of Specifications and
Patents, 2; Non-Invention: Particular Patents: 1, Barker; 5, Bostwick; 13,
Bull; 16, Burdett; 19, Cherry; 22, Eagleton; 23, Earle; 25, Forncrook; 26,
George; 27, Green; 39, 40, Matthews; 43, McMillin; 44, Milligan; 46, 47, Nation
and Little; 57, Robinson; 61, Smith; 65, Weir; Reissues, 7, 8, 16, 34, 41.
WAIVER. See Rehearing, 1.
WITNESSES. See Evidence, 2; Jury Trials; Testimony.
Where a witness falsifies a material fact in respect to which he cannot be presumed
to be liable to mistake, courts are bound, upon principles of law, morality,
and justice, to apply the maxim falsus in uno falsus in omnibus. "American
Bell Telephone Company v. The People's Telephone Company et al., 475.
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