Encyclopædia Britannica, Ninth Edition/Trade-Marks

TRADE-MARKS.There seems no reason to doubt that the practice of employing a mark to denote the goods of a particular trader (not necessarily the manufacturer) grew out of the use of signs, which, first affixed to the dealer's shop, were afterwards represented on his tokens, and eventually placed on the goods themselves. Trade marks proper appear to have been in use in England in the reign of Elizabeth. The first reported case was in 1783, when Lord Mansfield decided that the sale by the defendants of a certain medicine under the name or mark of the plaintiff was a fraud. By other decisions it was affirmed that the use of another's trade-mark was action able, even without the intent to defraud. The law, how ever, remained in an unsatisfactory condition till, by the Merchandise Marks Act in 1862, it was made a misdemeanour to forge or counterfeit a trade-mark, while penalties were inflicted for the sale of articles bearing a forged mark.

In 1875 the Trade Marks Registration Act established for the first time a registry of trade-marks in Britain, greatly facilitating the proof of title. A more precise definition of a trade-mark was also provided. In 1883 this Act was repealed by the Patents, Designs, and Trade Marks Act, in which its principal provisions were incorporated. All proceedings for the registration of trade-marks are now regulated by the Patents Act. A trade-mark may be a name printed or otherwise delineated in some particular or distinctive manner, or a signature, or a device, mark, brand, &c. Registration is compulsory, at least in the sense that the owner cannot prevent infringement or sue for damages for infringement unless he has registered, though it would appear that this disability exists only in the case of a mark capable of being registered under the Act. There are certain indicia which cannot be registered because they do not fall within the definition of a trade-mark, but which may yet be protected at equity. Registration is deemed equivalent to public use of the mark, and, after the expiration of five years, is conclusive evidence of right to exclusive use. Applications for registration have to be addressed to the comptroller of patents; should he refuse to register, there is an appeal to the Board of Trade. If there is opposition, the matter goes to the High Court of Justice. Registration holds good for fourteen years, at the end of which time it has to be renewed. Special provision is made in the Act for the retention of certain of the ancient privileges of the Cutlers Company of Sheffield. The total number of marks now upon the register is nearly 50,000.

The Customs Consolidation Act, 1876, forbids the importation of articles of foreign manufacture bearing any mark purporting to be the mark of manufacturers resident in the United Kingdom, or stating or implying that such articles were manufactured in the United Kingdom. The Merchandise Marks Act, 1887, consolidated and amended the law of offences relating to trade-marks and trade descriptions. It repealed the Act of 1862 and replaced it by fuller provisions. It is now an offence to forge a trade-mark, to falsely apply to goods any trade-mark or any mark so nearly resembling a trade-mark as to deceive, to make any die, &c., for the purpose of forging or for being used for forging a trade-mark, to apply any false trade description to goods, to dispose of or have in possession any die, &c., for the purpose of forging a trade-mark, or to cause any of the above-mentioned things to be done. There are special sections in the Act dealing with its application to watches and watch-cases. Where a watch-case is of foreign manufacture it must, if stamped at an assay office in the United Kingdom, bear a mark differing from the mark placed upon watches manufactured in the United Kingdom. A warranty is implied in the sale of goods bearing a trade-mark or trade description. See Warranty.

In most foreign countries provisions have long existed for the registration of trade-marks; and they also form one of the classes of "industrial property" for the protection of which an international convention was formed in 1883. This convention now includes sixteen states, the more important being Belgium, France, Great Britain, Italy, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, and the United States. The subjects of all the contracting states enjoy in each state the same rights and privileges as that state grants to its own subjects for the protection of trade-marks. Registration also in one of the states confers certain rights of priority in the others.

United States.—The legislation of the different States and Territories varies considerably, some providing for the registration of trade-marks either with or without protection for unregistered trade-marks, while others provide only for protection without registration. On March 3, 1881, Congress passed an Act "to authorize the registration of trade-marks and to protect the same," which provides that owners of trade-marks used in commerce with foreign nations or with the Indian tribes, provided such owners be domiciled in the United States or located in any foreign country or tribe which affords similar privileges to citizens of the United States, may obtain registration of trade-marks under the Act. Registration is not compulsory; failure to register a trade-mark, or to renew registration, does not deprive the owner of any remedy he might have at law or in equity; and the courts will, generally speaking, protect the unregistered equally with the registered.

For fuller information see L. B. Sebastian's Law of Trade Marks, or R. W. Wallace's edition of the Patents, Designs, and Trade Marks Act; and in America Rowland Cox's American Trade-Mark Cases. Cox's Manual of Trade-Mark Cases, and William Henry Brown's Treatise on the Law of Trade Marks.