Page:Harvard Law Review Volume 4.djvu/338

322 322 HARVARD LAW REVIEW, to practise such a deception, nor use the means which contrib- ute to that end;"^ and again in Croft v. Day, *'You may ex- press the same principle in a different form, and say that no man has a right to dress himself in colors, or adopt and bear symbols, to which he has no peculiar or exclusive right, and thereby personate another person, for the purpose of inducing the public to suppose, either that he is that other person, or that he is connected with and selling the manufactures of such other person, while he is really selling his own. It is perfectly manifest that to do these things is a fraud, and a very gross fraud." ^ This broad equitable principle is, however, limited in its appKcation by the nature of a trade-mark. A trade-mark has become an absolute right. It is a mark affixed to goods which pass from hand to hand, and is an exclusive right to that sign in connection with goods of a certain kind, — a right as against all the world. It is a right capable of registration, and its registration must be noticed under penalty of the law. It is a right for the infringement of which redress will be given, although the intention of the infringer is not fraudulent.^ A right so absolute could not be given without some quahfications, and we find that certain generic and geo- graphical names are not such as may be exclusively appropriated by an individual; that words or signs which are not sufficiently distinctive, or are by their nature the property of the whole world, may not thus be appropriated. Indeed, the courts have laid down certain technical rules which must be observed to obtain a valid trade-mark. In deciding whether there has been a breach of a trade-mark proper the courts are bound by these rules, and will grant no relief, whether they find fraud or not, unless there has been in use a trade- mark valid according to these rules, and unless there has been a technical breach. The only question is, whether the plaintiff has acquired an absolute right, and whether there has been an infringement of that right. What the rules of trade-marks are, what is a valid trade-mark, what is an infringement, are not within the scope of this article. What it is important to recognize is this: That the foundation of the law of trade-marks is natural 3 Millington v. Fox, 3 My. & Cr. 338; Edelsten v. Edelsten, i DeG., J. & S. 183; Cartier v. Carlile, 31 Beav. 292; McLean v. Fleming, 96 U. S. 245; Upmann v. Forester, 24 Ch. D. 231.
 * 6 Beav. (36. ^ 7 Beav. 84.