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§ 192. “Trade Marks.”

A trade mark is some name, symbol, or device, consisting in general of a picture, label, word or words, which is applied or attached to a trader's goods so as to distinguish them from the similar goods of other traders, and to identify them as his goods, in the business in which they are produced or put forward for sale. (Leather Cloth Co. v. American Leather Cloth Co., 11 H.L. Cas. 523; Richards v. Butcher, 1891, 2 Ch. at pp. 532 and 543, per Kay, J., and Lord Esher, M.R.)

“Any symbol may become a trade mark if it is capable of distinctive user in accordance with the definition, but only symbols which consist of or contain at least one of the essential particulars enumerated in the Acts, 1883, s. 64, as amended by 1888, s. 10, are capable of registration. The essence of a trade mark is that it distinguishes the owner's goods, and the essence of an infringement (where the essential particulars are not bodily appropriated) is that the use of the mark upon the defendant's goods is calculated to lead purchasers to buy them as being the plaintiff's goods. A trade mark must therefore be a distinctive symbol. A word or device which is common to the trade or is in general use, mere descriptive matter, or the name of the goods themselves, are the principal examples of marks which are not distinctive.” (Encyc. of the Laws of Eng., xii. p. 223.)




  ― 599 ―

Prior to trade mark legislation, property in a trade mark could only be acquired by actual user of the mark for such a length of time as to be evidence of appropriation of the badge distinguishing the owner's goods. Under the English Acts, registration can be procured of any trade mark, and registration is evidence of the proprietor's right to its exclusive use. A right to a trade mark can now be obtained by the registration of a new and unused mark, provided that the applicant has a real intention to use the mark upon the description of goods for which it is registered. (Hudson's Trade Marks, 1886, 32 Ch. D. 311.)

By the International Convention of 1883, the signatory Powers agreed to reciprocally admit to registration and protection trade marks registered in their several countries. This has not, so far, been fully carried out by English law. (Californian Fig Syrup Co.'s Trade Mark, 1888, 40 Ch. D. 620; Carter Medicine Co.'s Trade Mark, 1892, 3 Ch. 472.) But foreigners may register their trade marks in England, giving an address within the Kingdom for service on the same terms as English subjects. In the case of a signatory Power, if any of its subjects who has registered a mark at home, which is capable of registration in England, applies for a registration in England within four months of his application to register at home, he is entitled in priority to other applicants, and is not prejudiced by the use of the mark by others during the period. Germany is the only important non-signatory Power. Section 8 of the Act of 1888 is applicable to the principal Colonies. Under the Convention of Madrid, 1891, a trade mark may be registered as the result of a single application in the countries of the signatory Powers. Great Britain has not acceded to this Convention. (Encyc. of the Laws of Eng., xii. p. 234.)

51. (xix.) Naturalization194 and aliens193:

HISTORICAL NOTE.—The Constitution of the United States empowers Congress “to establish a uniform rule of naturalization throughout the United States.” (Art. I. sec. viii. sub-sec. 4.) “Naturalization and aliens” is specified in sec. 91, sub-sec. 25, of the British North America Act. “Naturalization of aliens” was a subject which might be referred to the Federal Council under the Act of 1885. The sub-clause was introduced in its present form in 1891, and was adopted in 1897–8 without debate.

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