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the issue of a periodical entitled Annales de la Propriété, etc., principally composed of decisions of the tribunals of commerce and courts of France, and sometimes of Belgium, Switzerland, and other countries, in patent, copyright, and trade-mark cases. The publication still continues under the able editorship of M. Pataille, assisted by other jurists and writers of recognized ability. The seventeen volumes of this work contain a mine of wealth, not only in the terse, logical decisions of the courts, but also in the able contributions of essayists. It will be seen that many references thereto are made in the following treatise; for the principles involved in their deliberations are applicable to our own controversies.
In Belgium, in 1843, the zealous Jobard sent forth his Création de la Propriété Intellectuale, which, although mainly devoted to the discussion of patent and copyright matters, still incidentally furnishes food for reflection on the subject of our present investigation. The same may be said of more recent books by the same author.
Our libraries are not rich in the possession of German lore on this subject; and the few accessible books in the German language are mostly elementary, containing but little in the matter of judicial decisions. Klostermann's work, entitled Die Patentgesetzgebung aller Länder, etc. (Berlin, 1869), has enough upon the law of Trade-marks to satisfy any one that the principles thereof are understood and applied in all countries in the same way, and to the same extent.
In 1871 appeared a volume of nearly 800 pages, entitled "American Trade-mark Cases," gathered by Mr. Rowland Cox. This collection is convenient and valuable, inasmuch as it contains or embraces the principal published decisions of the courts of the various States of this Union; and in an Appendix the decisions of the English courts.
We have also Fisher's English Digest, and other Digests by able American editors. These all are useful, if they do no more than point the direction in which the inquirer shall seek more full and explicit authoritative enunciations of legal principles. It is, however, to be regretted that these collections of decisions are not carefully classified, so that a Trade-mark proper may at a glance be distinguished from analogous subjects. The titles are too general. This fault for so it must be termed is not attributable solely to the collectors of decisions, but in some measure to the judges and reporters, who do not properly label their wares before they send them forth to the world. These frequently bear false marks. In the hurry of practice, the counsel cites a case as authority, and to his chagrin finds that it will not bear the test of analysis. The supposed Trade-mark case turns out to be one of good-will of a hotel, a contest about the right to a sign over the door of a dry-goods shop, or something else quite valueless for the purpose required. Careless terminology is suspiciously like the outgrowth of a careless habit of thought.
The Law of Trade-marks must be gathered from the reports of judicial decisions of all civilized countries, not the least valuable of which are those of commercial tribunals of the Continent of Europe. In the discussion of ordinary legal topics, we must be content with the adjudications of courts. under the sway of the common law of England; but in this matter, with Mansfield, we go below the surface, and seek the origin of the fundamental rules of our subject in the immutable law that Nature herself ordained. Local law could do no more than affect the remedy for a violation of a Trade-mark proper. Therefore, we go to the very foundation of right, to the law that has no place nor time.
This work would have been incomplete without a brief history of proprietary-marks of various kinds. It includes, also, a statement of the foundation of title to a Trade-mark; by whom, and how, the same may be acquired; the characteristics that entitle it to protection; what is deemed a violation of the right; the remedies, preventive, remunerative, vindicatory; and the practice and forms.
It also treats of analogous subjects, as mere labels, stamps, envelopes, advertisements, and other things frequently mistaken for and cited as the universal mark of commerce; and also of the names of establishments of trade, of inns, &c.; of names of firms; of names of literary publications, and other matters, all controlled, more or less, by the same principles, although variant in nature.
Perhaps not the least interesting matter will be the decisions of the Patent Office in the treatment of applications for registration, mostly never before printed. The rules and forms of practice in the Office must, it is believed, prove to be of some value to the practitioner.
Much valuable material may be found in the Appendix, including an alphabetical list of eleven hundred registered cases, with short descriptions, &c.
So far as possible, the latest decisions of the courts of England, France, and other European nations, as well as those of our own land, have been consulted and cited.
WASHINGTON, D.C., January, 1873.
W. H. B.