The Court of Appeals of the Seventh Circuit, speaking by Judge Jenkins, held that the validity of the Act of 1881 was "fairly doubtful.” 7 In the same case, the United States Supreme Court expressly declined to pass upon the question of constitutionality. So the Act of 1881, more limited in its scope, and essentially a mere registration act, has been superseded by an act of much wider scope, while as yet the power of congress to create any enactment whatever relative to the registration of trademarks was not only undetermined, but clouded by the doubt expressed in the language of the Court of Appeals of the Seventh Circuit. The labor performed by that court in the development of the law of unfair competition entitles its dictum to high respect; and because of the doubt which that court had seen fit to express, as well as the likelihood that the broad scope of the present trademark act would cause its constitutionality to be determined at no distant date, it may be well to note the argument which suggested itself as that which must be overcome if the present act was to be held constitutional. It being conceded that the jurisdiction of congress over the subject of trademarks, if it has any at all, aside from the treaty-making power, arises solely by authority of the commerce clause of the federal constitution, it was urged that unless trademarks themselves are the subjects of interstate commerce, the jurisdiction of congress fails. A trademark, as we have seen elsewhere, is an incorporeal hereditament, having no independent life or existence of its own, but existing only as appendant to the goodwill of a business, or as an integral part of that goodwill. When the trademark is applied to an article of commerce, that article may be the subject of interstate commerce, but it by no means follows that the trademark affixed upon the article, or the package containing the article, is itself being dealt with as 7-Illinois Watch Case Co. v. Elgin National Watch Co., 94 Fed. Rep. 667-669; 87 Off. Gaz. 2323; 35 C. C. A. 237. 8-Elgin National Watch Co. v. Illinois Watch Case Co., 179 U. S. 665-667; 45 L. Ed. 365. a subject of interstate traffic. This distinction, it has been urged, is amply supported by the language of the supreme court in Champion v. Ames, 188 U. S. 321, 47 L. Ed. 492, where it is said that "Lottery tickets are subjects of traffic, and therefore of commerce." The status thus fixed upon lottery tickets as the subjects of interstate commerce is curiously distinguished from policies of fire and marine insurance by the supreme court; but the language which that tribunal has more than once employed in reference to insurance policies is instructive as indicating its probable attitude toward trademarks. Thus in one of the later insurance cases, Mr. Justice McKenna says: "The contract of insurance is not an instrumentality of commerce. The making of such a contract is a mere incident of commercial intercourse. 9 The distinction between lottery tickets and insurance policies is one which has not only baffled the layman, but aroused much discussion between members of the bar; but in the language of the supreme court in the lottery cases, and in the insurance cases, the court has uniformly held that nothing which is not an instrumentality of commerce can come within the purview of the interstate commerce clause of the constitution. In Williams v. Fears, 179 U. S. 270, 45 L. Ed. 186. Mr. Chief Justice Fuller has emphasized "the difference between interstate commerce or an instrumentality thereof on the one side, and the mere incidents which may attend the carrying on of such commerce on the other.' It would seem clear that the sharpest attack upon the constitutionality of the present act would be along the line of the cases referred to, and if the court determined as a matter of fact, that trademarks were mere incidents attending the carrying on of interstate commerce, it would necessarily follow that the present act, as well as its predecessor, has been founded upon a misconception of the jurisdiction of congress. Without weighing the argument, or pursuing it in the light of other decisions of the supreme court, such as those which relate to bills of lading and the like, and without ven 9-New York Life Insurance Co. v. Cravens, 178 U. S. 389-401; 44 L. Ed. 1116. turing a personal opinion upon the merits of the argument, it will suffice to say that the present act is of extremely doubtful constitutionality, and that sec. 17, giving jurisdiction to certain courts over trademarks registered in accordance with the provisions of the act, without regard to the amount in controversy (a provision incorporated from sec. 7 of the Act of 1881) offers the opportunity of readily raising the constitutional question. It is manifestly desirable that the question should be raised and finally disposed of in the near future, that it may be definitely settled. This argument is substantially embodied in the report of the Committee on the Judiciary of the House of Representatives during the Forty-sixth Congress, as a result of the deliberations of that committee upon a resolution to amend the constitution, and a proposed bill for which the Act of 1881 was subsequently substituted. The proposed amendment to the constitution is embodied in the committee's report, a portion of which is as follows: "The bill seeks to re-enact substantially the trademark legislation of 1870 (Rev. Stat., secs. 4937-4947, inclusive) save that it is confined to foreign and interstate commerce. Its theory is that by thus separating them from interstate commerce the objections of the supreme court as to constitutionality will be removed. "The resolution to amend the constitution is as follows: "ARTICLE XVI. "Section 1. Congress for promotion of trade and manufacture, and to carry into effect international treaties, shall have power to grant, protect, and regulate the exclusive right to adopt and use trademarks. "It is based upon the idea that such legislation, though confined to foreign and interstate commerce, is unconstitutional, or its advocates may only fear that that may be so, and wish the amendment ex abundante cautela, and to give confidence to those using trademarks. "If the Congress of the United States now has power to pass such laws, the amendment would be useless. Has it that power? "After careful consideration we are of the opinion that it has not. The supreme court in the foregoing opinion avoided deciding that question. A trademark is a convenience of commerce. Its purpose is to identify the thing to be sold. "But it is no more than the guaranty in writing, or by some words, sign, or device, attached to the thing to be sold, that it is what the seller represents it to be by such writing, etc. By themselves they are not merchandise. Their only use is to attach to merchandise for such identification. They are not necessary to commerce. On the countless things sold in this country, foreign and domestic, there are no trademarks but on about 8,000. "In Paul v. Virginia (8 Wallace 168, 19 L. Ed. 359), the court held that congressional control did not cover policies of insurance sent from one state of the Union into another where a premium was paid therefor. They said the policies were but 'mere contracts of indemnity against loss by fire.' We think trademarks mere contracts of indemnity against loss by fraud. "Thus the supreme court has held a contract to be within federal control in Almy v. California. That was a bill of lading for goods to be shipped out of the state. But that decision rested solely upon the ground that 'a bill of lading or some other instrument of the same import is necessarily always associated with every shipment of articles of commerce from the ports of one country to another. The necessities of commerce require it.' (See Almy v. California, 24 Howard, 170, 16 L. Ed. 644.) And that decision rests not on the power of congress over commerce, but on the prohibition against the states taxing exports, etc. The bill of lading was but evidence of the contract of shipping. Taxing it, taxed the exported article. And in the Pensacola Telegraph Company v. Western Union Telegraph Company (96 U. S. 9, 24 L. Ed. 710) the court pronounced the telegraph 'one of the necessities of commerce. It in indispensable as a means of intercommunication, but especially so in commercial transactions.' We think this last case could better stand on the power to establish post offices and postroads.' Yet, if put on the commerce clause, like Almy v. California, it is based on the necessity of the thing legislated upon to foreign or interstate or Indian commerce. As we have said, trademarks are not necessary to such commerce. But even if they were, our opinion would be unchanged. In the case of Steffens, quoted above, the court said: "It is not every species of property, which is the subject of commerce, or which is used or even essential in commerce, which is brought by this clause of the constitution (commerce clause) within the control of congress. The barrels and casks, the bottles and boxes in which alone certain articles of commerce are kept for safety, and by which their contents are transferred from the seller to the buyer, do not thereby become subjects of congressional legislation more than other property.' "But while we think congress can not so legislate with regard to trademarks under the power to regulate commerce with foreign nations, and among the several states and with the Indian tribes' (art. I, sec. 8, constitution), trademarks, in commerce with foreign nations and with the Indian tribes, can be protected under the treaty-making power." 10 It therefore appears that the Act of 1881 was passed on the theory that it came within the treaty-making power of congress. The present act can not be sustained upon that theory; it must be sustained, if at all, as a regulation of interstate commerce.11 § 164. The advantages of registration. The local registration statutes of the several states are too numerous and involved to be treated here.12 The federal courts can not enforce rights created by state registration, at least as to alleged infringements occurring outside the state in which registration was had.13 As to federal registration, Judge Hawley has said that "registration under the Act of 1881 is of but little, if any, value, except for the purpose of creating a permanent record of the date of adoption and use of the trademark, or in cases where it is necessary to give jurisdiction to the United States 10-Con. Record, Vol. 10, part 2, p. 1514. 11-See Rossmann V. Garnier, 128 C. C. A. 73; 211 Fed. Rep. 401; Thaddeus Davids Co. v. Davids, |