Page:Harvard Law Review Volume 10.djvu/316

290 2go HARVARD LAW REVIEW. "Cross" cotton,^ "Bethesda" water,^ ''Lightning" hay knife,^ or " Extra Dry " * Champagne, will be protected ; but on familiar prin- ciples merely descriptive names, such as " Desiccated Codfish,"^ or "Cherry Pectoral,"^ will not be. But it seems that by long user an exclusive right in a descriptive trade name may be acquired,^ and that a descriptive trade name will be protected against the sale of inferior goods ^ under the descriptive name. Very hard cases have arisen where the article to which the name has been applied has been patented, as to the right of the public, not only to make the thing upon the expiration of the pat- ent, but also to call it by a particular name. As a general prop- osition, it may be laid down that the fact that a patent has been taken upon an article does not affect the rules of law which govern the decision when the question arises whether the patentee's name for the article is entitled to protection. The question in all cases, both when the article has been patented and when it has not, is simply one of fact; Has the name become descriptive? It may become descriptive in either of two ways; first, because it has come to indicate a new principle of construction, as was held in the cases in the note,^ where the name was applied to a new machine; or second, because the article named is a new product, upon which the first producer has bestowed a name which has become identified with the product.^*^ If it is found as a fact that the name has become descriptive for either of the 1 Cartier v. Westhead, Sebast. Trade Mark Cases, 199 (i86r). 2 Dunbar v. Glenn, 42 Wis. 118 ; The Congress Spring Co. v. The High Rock Spring Co., 57 Barb. 526. 3 Hiram Holt Co. v Wadsworth, 41 Fed. Rep. 34. 5 Town V. Stetson, 5 Abb. Pr. n. s. 2t8. ^ Ayer v. Rushton, Codd. Dig. 221. "' New Home S. M. Co. v. Bloomingdale, 59 Fed, Rep. 284 ; Powell v. Birmingham Brewery Co., [1894] 3 Ch. 449; Bennett v. McKinley, (C. C. A.) 65 Fed. Rep. 805; Jaros Hygienic Co. v. Fleece Hygienic Co., 65 Fed. Rep. 424. See Social Register Assoc. V. Howard, 60 Fed. Rep. 270. 8 Dr. Jaeger's Sanitary System Co. v. Le Boutillier, 24 N. Y. Supp. 890; Carlsbad V. Tibbetts, 51 Fed. Rep. 852. ^ Fairbanks v. Jacobus, 14 Blatch. 337; s. c. Fed. Cas. 4608; Singer Mfg. Co. v. June Mfg. Co., 16 Sup. Ct. Rep. 1002 ; Singer v. Loog, 8 App. Cas. 376; Gaily t/. Colts Mfg. Co., 30 Fed. Rep. 122; Dover Stamping Co. v. Fellows, 163 Mass. 191. 1*^ The Tucker Mfg. Co. v. Boyington, 9 Pat. Off. Gaz. 1875 ; Cheavin v. Walker, 5 Ch. D. 850; Young V. Macrae, 9 Jur. n. s. 322 ; I^inoleum Mfg. Co. v. Nairn, 7 Ch. D. 834 ; In re Consol. Fruit Jar Co., 14 Pat. Off. Gaz. 269; Leibig v. Hanbury, 17 L. T. n. s. 298 ; Leclanche Battery Co. v. West. Elec. Co., 21 Fed. Rep. 538 ; St. Louis Stamping Co. V. Piper, 33 N. Y. Supp. 443.
 * Von Mumm v. Frash, 56 Fed. Rep. 830.