Projection engineering (Sept 1929-Nov 1930)

Page 26 Projection Engineering, March, 1930 Trade-Marks Their Character and Protection By Richards & Geier* THERE is 110 longer any question that a prosperous business should have some distinctive word or symbol — a trade-mark which will identify the products of the business, and when wisely employed in advertisements and pamphlets, will foster their sale. In many large business enterprises today trademarks have been conspicuous factors in the expansion of the business and the increase of sales. Every once in a while you read of large sums being paid for "The good-will of the business including the Trade-Mark." Frequently the trade-mark is the most valuable asset in a business. Such notable trade-marks as "B V D," "KODAK," "COCA-COLA" are valued by their owners at princely sums of money, and are undoubtedly the most important asset in the business in which they are used ; one cannot imagine carrying on the business without the trade-mark. In the business of merchants and importers trade-marks have played a conspicuous part in the commercial development of the enterprises they serve. A trade-mark grows with the business, and, gaining celebrity with the passing years, places the business on a firm foundation which spasmodic business depressions will not be able to seriously affect. In times of stress and meagre profits the business whose trade-mark is a familiar sight to the public and the trade, will always enjoy some volume of business while the manufacturers or merchants who have not adopted a trade-mark to identify their goods are in a far less fortunate position. Sooner or later every expanding business invokes the aid of advertising in one form or another. It is here where a trade-mark is almost indispensable since the article should be impressed upon the public mind through some definite symbol, or some expressive term which will impress itself indelibly upon the public mind. The trade-mark must be sufficiently striking to linger in the memory of the purchaser if the advertising is to serve its purpose. This involves a discussion of the selection of appropriate trade-marks. Trade-marks are not only for experts, but for the public in general, which includes "the ignorant, the unthinking and the credulous, who in making purchases do not stop to analyze but are governed by appearances and general impressions." In the selection of a trade-mark of character, the habits and the intelligence of the purchasers should be considered. Thus, different * Patent and Trade-Marh Attorneys New York. circumstances should govern the adoption of a trade-mark for a product intended primarily for children, and an article destined for the adult trade. Particular care should be exercised by merchants and manufacturers who export, or import their wares. The trade-mark must be one that will easily be retained in the memory of the citizen of the country where the goods are sold. Thus, a manufacturer or merchant located in Germany who sells a market in the United States and other English speaking countries, should not select a trade-mark which could not be readily pronounced or remembered by those who speak English. Then again, a complicated Anglo-Saxon word trade-mark would be ill-chosen for the Spanish speaking countries of Central and South America, where a more simple but expressive word or symbol would best serve. The proper protection of valuable trade-marks by registration is a subject which even in these enlightened days does not receive the attention and consideration it deserves. A trade-mark, as soon as adopted and used, should be properly safeguarded by registration ; the cost of which is about Two to Five Dollars per year, when apportioned over the full time of registration. A trade-mark that has been registered may be marked with a notation to that effect, and this has a deterrent action on competitors who have a habit of simulating trademarks. Any reputable manufacturer would hesitate to adopt a trademark which is identical with, or confusingly similar to a mark preempted by reason of its registration by another party. There are numerous benefits accruing from registrations of trade-marks under our Federal Law. Registration in the U. S. Patent Office enables the owner of the trademark to sue infringers in the United States Courts. The registration of a trade-mark at Washington makes a public record of the owner's claimed rights, and serves to guide others who, in quest of a trade-mark, search the records at Washington. In a suit for infringement of a trade-mark registered under the Trade Mark Act of 1905, registration in the Patent Office at Washington is accepted by the Court as prima facie evidence of ownership of the mark. In the event a trade-mark suit is successful, the Federal Court is empowered to grant an accounting of the infringers profits to be paid to the owner of the trade-mark, together with the damages sustained by reason of the infringement. Furthermore, registration of a trade-mark in the United States is a prerequisite in many countries, when an American merchant or firm seeks registration of its trademark abroad. This leads to a discussion of the protection of trade-marks abroad. In a great many countries outside the United States, the first one to register a trade-mark is regarded as the owner thereof. In many instances the failure of manufacturers or merchants to register their trade-mark under the laws of a particular country has resulted in the appropriation and registration of the mark by some agent or trade-mark pirate who has then demanded substantial sums from the owner of the mark before they would return the same. Since in many countries the registrant of the mark may prevent the entry of goods bearing the same mark, some agreement with the trade-mark pirate is necessary. In a number of cases the trade-marks of American manufacturers have been registered in Central and South American countries by the agent of the manufacturer, thus making the agent the owner of the mark, and placing him in a position to perpetuate his agency, as well as compelling the American manufacturer to agree to his terms. For this reason American manufacturers, or those of other countries, should without delay register their trade-marks in all countries to which their trade extends, or where it is likely to extend. A trade-mark may be a word, sign, emblem or combination of these elements. It must be distinctive, and either by itself, or by association and use, indicate the origin or ownership of the goods to which it is attached, so that it will perform its function of distinguishing the owners goods from those of other persons. A trade-mark is an asset — an integral part of the good-will of the business. Trade-marks are intended to be attached to articles of merchandise and their special function is to indicate origin or ownership of the goods to which they are applied. The use of a trade-mark does not necessarily imply that the articles upon which it is used are manufactured by the owner of the mark. It may be that they are manufactured for him, or that he controls their production — what is necessary is the actual sale of articles by the owner, accompanied by labels, tags or other suitable specimens showing the trade-mark. It is clear, therefore, that a jobber, wholesaler or retailer may be the owner of a trademark. An example will illustrate our point ; very often a wholesale dealer in garments does not manufacture himself. A contractor performs the service for him. The wholesaler, however, applies his own trade-mark to the garments and sells them to the