judges some forty years since, it is not remarkable that the bench and the profession have not yet drawn the line separating trademarks from tradenames with any degree of lucidity. The question of mere definition is nearly always a matter of secondary importance in the progress of any science. The want of an accurate distinction between trademarks and tradenames has not hampered the growth of this branch of the law; if it had, the distinction would long since have been drawn by the courts. The principles involved in trademark cases and tradename cases have been substantially identical. But with their development it has been necessary to sharply define the technical trademark, and if it were possible to draft as accurate a definition of tradename the result would be to measure the metes and bounds of the field of cases in which relief will be granted against the fraudulent use of a word or phrase used as the distinguishing identification mark of a commercial enterprise or article of trade. It is clear that words of common right ought not to be called tradenames. Thus, the word "cracker" imprinted on a soda cracker indicates merely that it is a soda-cracker. As the article itself conveys that knowledge, the word is superfluous. Mark the cracker "Uneeda" and an entirely different result follows. The word is a trademark.16 The word, so affixed, meets the requirements of all the definitions given herein. It is a distinguishing indication of origin and ownership. But take an example of another kind of word applied to a common staple article of merchandise. "Flour" stamped on a sack of flour is meaningless. "Patent Flour" means something more. "Minnesota Patent Flour" means patent flour made in Minnesota. Clearly the word "flour" alone, and the words "Patent Flour" together, can not be called tradenames, though they are names used in trade. They are of common right. They can be truthfully applied to flour regardless of the place where, or the person by whom, it is produced. “Minnesota Patent Flour" is not a trademark. It is of common right to all persons producing patent flour in Minnesota. But it is a tradename, because it will be a medium of fraud if persons producing flour elsewhere than in Minnesota are permitted to apply it to their flour.17 To use another example of a very common class. Any one can make soap and mark it "Soap." Any soap manufacturer 16-National Biscuit Co. v. Baker, 95 Fed. Rep. 135. Contra, see Re National Biscuit Co. (1902), 1 Ch. 783; 19 R. P. C. 281; refusing British registration upon the ground the mark was not "an invented word" within the meaning of Patents, etc., Act, 1883, § 64. 17--Pillsbury - Washburn Flour Mills Co. v. Eagle, 30 C. C. A. 386; 86 Fed. Rep. 608. can call his soap "Best Soap." A particular manufacturer adds his name to this mark and produces "Babbitt's Best Soap." He has not made a trademark but he has made a tradename.18 Another person named Babbitt entering the market subsequently must clearly distinguish his soap from that of the other Babbitt. An example of a word descriptive of the composition of the article itself is "Cellular Cloth," a cloth fabric having cells in its texture. This is not a tradename,19 while "Camel's Hair" belting is.20 The reason for the distinction lies solely in the fact that the latter words became established in the trade as designating the goods of the first introducer. While the two marks on their faces are in identically the same category, the circumstances surrounding their commercial use have rendered the first strictly of common right, and the second that sort of quasitrademark which for convenience, and because of the inadequacy of our vocabulary, we are constrained to call a tradename. With all of these distinctions before us, and having regard solely to the meaning which should attach to the word "tradename" if it is to be accurately differentiated from the technical trademark, on the one hand, and the names completely publici juris employed in commerce on the other, the author submits the following definition: A tradename is a word or phrase by which a business enterprise or business location or specific articles of merchandise from a specific source are known to the public, and which when applied to merchandise is generic or descriptive and hence not susceptible of appropriation as a technical trademark. This definition, the author confidently believes, will aid the reader in properly classifying and distinguishing the "trademark" and "tradename" cases, and that it properly includes not only commercial names other than those applied to merchandise, but those names applied to merchandise which though they are not trademarks have acquired a secondary meaning in the trade and hence are protected in equity against their use by another in fraudulent competition.21 18-Babbitt v. Brown, 68 Hun, 515. Other examples are the case of the "Dr. A. Reed Cushion Shoe," Dr. A. Reed Cushion Shoe Co. v. Frew, 162 Fed. Rep. 887; 89 C. C. A. 577, modifying Dr. A. Reed Cushion Shoe Co. v. Frew. 158 Fed. Rep. 552; the "Warner Corset" case. Warner Bros. Co. v. Wiener, 218 Fed. Rep. 635. 19-Cellular Clothing Co. v. Maxton, L. R. (1899) App. Cas. 326. 20-Reddaway v. Banham, L. R. (1896) App. Cas. 199. 21-"A tradename does not have to be identical with that of another in order to justify a court in denying its use because calculated to produce unfair competition." Lansing, J., in Newport Sand Bank Co. v. Thus Judge Wolverton, speaking of the words "Turpentine Shellac' applied to a wood filler, has said, “As a tradename, it may be properly so employed, but within itself it is inapt for exclusive appropriation as a trademark. Beyond this, however, words or symbols naturally descriptive of the product, while not adapted for exclusive use as a trademark, may yet acquire, by long and general usage in connection with the preparation and by association with the name of the manufacturer, a secondary meaning or signification, such as will express or betoken the goods of that manufacturer only, and in this sense he will be entitled to protection from an unfair use of the designation or tradename by others that may result in his injury and in fraud of the public. "'22 1123 It has been asserted that as a general rule a trademark has reference to the thing sold, while a tradename embraces both the thing sold and the individuality of the seller.' This may be true if the tradename happens to be a proper name; otherwise it is an absolute mis-statement. distinction can be found in the cases, or in reason. A trademark concerns the individuality of the dealer quite as much as a tradename. No such As to the relative scope of tradenames as compared with trademarks, the question presented is wholly academic. From a careful study of the cases it would seem clear that the trademark right is the broader and by far the more valuable; though the Kansas court has held the contrary, and the Iowa court places them on a parity, thus: "That a tradename, as well as a trademark, symbol or device, is entitled to protection by courts of equity, is the general rule. The English text-writer, Mr. Kerly, has included this class Monarch Sand Mining Co., 144 Ky. 7; 137 S. W. Rep. 784. 22-Standard Varnish Works v. Fisher, 153 Fed. Rep. 928, 930. To same effect, Industrial Finance Corp. v. Community Finance Co., 294 Fed. Rep. 870, 872, C. C. A. 5. 23-Gose, J., in Eastern Outfitting Co. v. Manheim, 59 Wash. 428; 110 Pac. Rep. 23; following Armington v. Palmer, 21 R. I. 109; 42 Atl. Rep. 308; 43 L. R. A. 95; 79 Am. St. Rep. 786. 24 "The difference between a trademark and a tradename is emphasized in some of the authorities. The former relates chiefly to the thing sold, and the latter involves also the individuality of the maker both for protection in trade and to 7724a avoid confusion in business, as well as securing the advantages of a good reputation. It is said that a tradename, therefore, has a broader scope than a trademark. These observations are found, in substance, in the opinion in Armington v. Palmer 21 R. I. 109; 42 Atl. 308; 43 L. R. A. 95; 79 Am. St. Rep. 786. That opinion is authority for the proposition that, in seeking an injunction in such cases, it is not necessary to show damages nor fraudulent intent." Benson, J., in Harryman v. Harryman, 144 Pac. Rep. 262; 93 Kas. 223. 24a-Citing Sections 1, 9 and 69 of this book; Sherwin, J., in Atlas Assur. Co. v. Atlas Ins. Co., 138 Iowa 228; 112 N. W. Rep. 232. of words in his treatment of "tradenames." He says: "A name which is applied or attached to a trader's goods when they are offered for sale, so as to distinguish them from similar goods, and to identify them with him, or with his successors as the owners of a particular business, as being made, worked upon, imported, selected, certified, or sold by him or them, is a trademark. And if it is within any of the classes enumerated in Sec. 64 (of the British Patents, Designs and Trademarks Acts), it may be registered as a trademark. But whether or not the name is applied or attached to the goods, so as to conform to the definition just stated, or registered as a trademark, if it is in fact known in the market as the distinctive name of the goods of a particular trader, no one else may use it for dealings in other goods of the same class as those in connection with which it has acquired its distinctive significance. The qualified right in the tradename-a right to prevent a defendant from passing off his goods as those of the plaintiff by the use of it-exists only with regard to goods of the kind for which the plaintiff uses it, and to which the connection with his business suggested by the use of the name extends. ''25 Trade Slogans.-The catch-phrases, advertising phrases or slogans used in trade are governed by precisely the same legal doctrines as tradenames. "No distinction in fact or principle can be found between a tradename and a trade slogan.''25a The slogan of a retail shoe dealer being "We fix 'em quick,” defendant adopted "We fix 'em quicker." In granting the injunction the court referred to the former dictum "when there is a marked similarity in the labels, signs, literature and devices for attracting custom, but little weight is attached to precautionary differences or denials of a purpose to deceive the public. 25e 25b § 5. Earliest recognition of trademarks. While the reports of the first English trademark case are not harmonious, it is probable that the report of Popham is substantially correct. It is as follows: "An action upon the case was brought into the common pleas by a clothier that whereas he had gained great reputation for his making of his cloth by reason of which he had great utterance to his great benefit and profit, and that he used to set his mark to his cloth whereby it should be 25-Kerly on Trademarks, 2nd ed., London, 1901, p. 475. 25a-Richards, J., in Yellow Cab Co. v. Sachs, Cal. ; 216 Pac. Rep. 33, 35. - 25b-Boston Shoe Shop v. Mc Broom Shoe Shop, 196 Ala. 262; 72 25c-Tyson, J., in Kyle v. Perfection Mattress Co., 127 Ala. 39, 51; 28 So. Rep. 545, 547; 50 L. R. A. 628; 85 Am. St. Rep. 78. known to be his cloth and another clothier perceiving it used the same mark to his ill made cloth on purpose to deceive him, and it was resolved that the action did well lie.' '26 § 6. The evolution of the law of trademarks.-This decision, rendered in 1590, was the first legal recognition of trademarks. The growth of that recognition was very gradual, however, for as late as 1742 we find Lord Hardwicke saying that he "knew no instance of restraining one trader from making use of the same mark with another," although the learned chancellor takes judicial cognizance of the wide-spread use of trademarks, observing that "every particular trader had some particular mark or stamp." And a century later Lord Langdale said: "It does not seem to me that a man can acquire property merely in a name or mark."'28 §7. The relative protection given by patents and trademarks. "Usually the protection given by the patent is far greater though of less duration in time than that obtained. by the use of a trademark, because if an article is patented, nobody but the owner of the patent can without his consent make or sell anything embodying the same principles or elements, while a trademark only secures one in the use of the name or emblem adopted by him and applied to the article. ''20 "We see no sufficient reason for holding that the monopoly of a trademark, so far as it goes, is less complete (than that of a patent). It deals with a delicate matter that may be of great value, but that easily is destroyed, and therefore should be protected with corresponding care. ''29a Leather Cloth Co., 4 DeG. J. & S. 141; Lord Cranworth, in House of Lords, s. c., 11 H. L. C. 533; Lord Kingsdown, in House of Lords, s. c., 11 H. L. C. 544; Messerole v. Tynberg, 4 Abb. Pr. N. S. 410; 36 How. Pr. 14; Cox, 479; Gilman v. Hunnewell, 122 Mass. 139; Cox, Manual, Case No. 541; Fish Bros. Wagon Co. v. Fish Bros. Mfg. Co., 95 Fed. Rep. 457, 461; 37 C. C. A. 146. 26-Southern (or Southerne) v. in Leather Cloth Co. v. American How, 2 Popham, 144; Cro. Jac. 471; 2 Rolle, 28; Cox, 633; Seb. Dig. 1. 27-Blanchard v. Hill, 2 Atk. 484; Cox, 633; Seb. Dig. 2. Mr. Sebastian observes of this decision: "The decision seems in a great measure to have been founded upon a dread of setting up a monopoly, the distinction between a trademark and a patent not being clearly present to his lordship's mind." Sebastian, Trademarks (4th ed.), p. 6. 28-1842. Perry v. Truefitt, 6 Beav. 66; 1 L. T. N. S. 384; Seb. 73; Cox, 644, 646. It is now clearly established that the right to a trademark is a property right. Hall v. Barrows, 4 DeG. J. & S. 150; 33 L. J. Ch. 204; 10 Jur. N. S. 55; 9 L. T. N. S. 561; Cox, Manual, Case No. 215. Opinion of Westbury, L. C., 29-Allen, J., in Dover Stamping Co. v. Fellows, 163 Mass. 191; 40 N. E. Rep. 105; 47 Am. St. Rep. 448; 28 L. R. A. 448. 29a-Mr. Justice Holmes, in Bourjois & Co. v. Katzel, 260 U. S. 689, 692; 67 L. Ed. 464, 466. Followed in Le Blume Import. Co. v. Coty, 293 Fed. Rep. 344, 349, C. C. A. 2. |