Page:The Green Bag (1889–1914), Volume 18.pdf/672

 NOTES OF RECENT CASES TRADE MARKS AND TRADE NAMES. (De ception of Public.) Michigan. — Warren Brothers Company v. Barber" Asphalt Paving Company, 1 08 Northwestern 652, concerns the extent of the right acquired by the owner of a trade name. It appeared that complainant had employed as a trade name for a pavement which complainant was in the business of putting down, the word "Bitulithic," and had caused such word to be copyrighted and filed for record as a copyrighted word in the office of the secretary of state; that the city of Detroit through its department of public works called for proposals for the con struction of a large amount of bitulithic pavement, the proposals requiring the pavement to be made according to certain specifications, which showed the materials, manner of construction and vari ous details of the work, and that defendant con tracted with the municipality for the putting down of such pavement, whereupon complainant sought to obtain an injunction. The court con sidered the question before it as to whether the fact that complainant had employed such name and advertised it, prohibited defendant and others from offering to bid upon the construction of pavements called in the proposal " bitulithic," where the proposals went further and specified the method of construction, materials, etc. Com plainant was held not entitled to an injunction on the ground that a trade name does not give one the exclusive right to make or sell a given kind of goods, citing Globe-Wernicke Co. v. Fred Macey

633

Co., 119 Fed. 703, 56 C. C. A. 304; Fairbanks v. Jacobus, 14 Blatchf. 337, Fed. Cas. No. 4, 608; Putnam Nail Co. v. Dulaney, 140 Pa. 205, 21 Atl. 391, ii L. R. A. 524, 23 Am. St. Rep. 228; Powell v. Birmingham Vinegar Brewing Co., 2 Ch. Div. L. R. 1896, pp. 68, 72. The court quotes from Canal Company v. Clarke, 13 Wall. (U. S.) 311, 20 L. Ed. 581, where the court through Jus tice Strong said: " The office of a trade mark is to point out distinctly the origin or ownership of the article to which it is affixed, or in other words, to give notice who was the producer ... in all cases where rights to the exclusive use of a trade mark are invaded, it is invariably held that the essence of the wrong consists in the sale of the goods of one manufacturer or vendor as those of another; and that it is only when this false repre sentation is made, that equity can give relief." In conclusion the court states that no one can claim protection for the exclusive use of a trade mark or trade name, which would practically give him a monopoly in the sale of any goods other than those produced or made by himself, and that no generic name, or a name merely descriptive of an article of trade, of its qualities, ingredients, or characteristics, can be employed as a trade mark, and that hence defendant's offer did not amount to an offer to furnish a pavement made by defend ant as being a pavement made only by complain ant, any person having the right to make a pavement according to the specifications.