Page:Harvard Law Review Volume 12.djvu/264

244 The inherent difficulty in dealing with such cases has been frequently increased by speaking as if they involved questions of trademark, a closely analogous, but yet materially different subject.

A trademark is an arbitrary, distinctive mark affixed to the goods by the manufacturer or distributor to indicate their origin. The first person to use such a mark has an exclusive right to it as applied to the particular articles in question, so that it has even been said that he has a property right in it, and that it is because imitations interfere with this right that the court protects him against them. The more accurate opinion, both historically and as a matter of principle, is that the injury to the plaintiff's trade by any uncalled-for imitation of his names, colors, or other indicia, causing the defendant's goods to pass as the plaintiff's is a fraud, and that this fraud is the basis of the court's jurisdiction. But as applied to a true trademark, consisting of an arbitrary name or symbol, the latter opinion usually leads to the same practical results as the former, because the imitation of such a distinctive mark by a competitor is never justifiable, and, if continued after notice that it deceives, is clearly a fraud, so that on either view an injunction necessarily follows. The result is that, for many purposes, and subject to certain qualifications, there is practically property in a trademark strictly so called.

It is not, however, every name or mark which can be thus appropriated to the exclusion of the rest of mankind; such a monopoly of any word which a new maker would naturally wish to use in describing his product would be intolerable. For example, there can be no trademark in geographical names indicating the locality where the product to which they are applied grows or is manufactured, nor in words indicating that an article is made under certain patents, or, more correctly, the presumption of fraud which arises from the imitation of a peculiar and distinctive mark does not arise when the word copied is a natural and appropriate appellative. In the latter case the mere use of the word is not necessarily wrongful; the plaintiff must show something more in

1 See opinion of Lord Westbury, in Hall v. Barrows, 4 DeG. J. & S. 150, 158, and opinion of Fuller, C. J., in Lawrence Manufacturing Co. v. Tennessee Manufacturing Co., 138 U. S. 537, 548.

2 See per Holmes, J, in Chadwick v. Covell, 151 Mass. 190, 193; per Blackburn, in Singer Mfg. Co. v. Loog, L. R. 8 App. Cas. 15, 29, et seq.

3 Cf. Coffman v. Castner, 87 Fed. Rep. 457.