lished literary work has the choice of either taking no steps whatever to secure his rights, relying upon his right at common law to prevent unauthorized copying and publication; or of copyrighting his work, as an unpublished work, under the Act. Probably in the great majority of cases the latter course is advisable.

CHAPTER II.

TRADE-MARKS.

§ 27. Definition, origin, and nature. A trade-mark is a sign, mark, symbol, word or words, or device attached to goods, and adopted by the manufacturer or seller thereof to distinguish his production from other productions of the same article. Its purpose is to indicate, not quality, but the origin and ownership of the article to which it is attached. It may consist of any design, mark, symbol, word or words, or device not previously appropriated by another, and not barred from use as a trademark by some rule of law (1). Trade-marks are of common law origin, and were recognized in a decision (2) as early as 1590, but did not obtain a very firm footing in the law until two centuries later.

§ 28. Unfair competition distinguished from infringement of trade-mark. Until comparatively recent times, the courts have often confused certain kinds of causes of action arising out of unfair competition in trade, with causes of action arising out of the infringement of trademarks, although there is a distinction between the two. A cause of action arising out of a given state of facts may, however, often be based on either ground, for a case of infringement of a trade-mark ordinarily constitutes unfair competition also.

(1) Newman v. Alvord, 51 N. Y. 189. (2) Southern v. How, Popham, 144.

The essence of an action for unfair competition, of the kind here considered, is that the defendant has wrongfully represented to the public, expressly or by implication, that the goods sold by him are the goods of the plaintiff; the remedy which the courts afford being based upon the theory that the plaintiff has acquired in his business a reputation and good will which is property, and which they will protect from appropriation by another, and also partly upon the theory of protecting the public against fraud (3). If the action arises out of the use by the defendant of words or devices which have not been exclusively appropriated by the plaintiff as trademarks, the plaintiff must show that such words have acquired a peculiar significance in connection with his business, and he must also show that the defendant has fraudulently used the same or like words for the purpose of unfairly taking advantage of plaintiff's reputation; although the deliberate and obvious simulation of plaintiff's device may create a sufficient presumption of fraud where no other sufficient reason for such simulation is shown.

The gist of an ordinary action for infringement of a trade-mark is that the defendant has used, or is using, on his goods, a mark which belongs to the plaintiff, and ordinarily it is not necessary for the plaintiff to show that he has built up a reputation under such mark, or that there was any knowledge or wrongful intent on the part of the defendant. But he must establish his trade-mark.

§ 29. Trade names. Trade-marks are also occasionally

(3) 28 Am. & Eng. Ency. Law, 2nd ed. 345.

confused with trade names, but more properly the latter are names used to designate the particular business of certain individuals; or the place where a particular business is carried on; or a class of goods; but are not technical trade-marks either because they are not applied or affixed to the goods, or because they have not been or cannot be appropriated as trade-marks.

§ 30. Scope of this article. Actions arising out of unfair trade competition, with no element of trade-mark infringement, are discussed in the article on Torts in Volume III, § 343, of this work. This article is confined to the subject of trade-marks alone, and more especially to the latter in so far as they are the object of Federal legislation and of Federal procedure.

§ 31. How exclusive right to trade-mark is acquired. The exclusive right to a particular word, device, or sign as a trade-mark, by a manufacturer, merchant, or trader, is acquired either by priority of appropriation, or by transfer or succession to one such party from another who has previously acquired it. The claimant of a trademark by user must have been the first to use or employ it on goods, manufactured or dealt in by him. A single instance of use, with accompanying circumstances evidencing an intent to continue that user is sufficient to establish the right, and there is no requirement that the use shall continue for any prescribed or definite length of time (4).

The United States Trade-Mark Act (5), which will be

(4) Hopkins, Trade Marks, 57. (5) U. 8. R. 8. Secs. 4937-4947.

considered further on in these pages, does not confer un any one the exclusive right to a trade-mark, but merely provides for the registration of a trade-mark by one who has acquired the exclusive right to it; and that such registration shall be prima facie evidence of his right. As a trade-mark has no necessary relation to invention or discovery, as between two rival claimants it is the party who first actually uses a mark, and not the one who first thought of it or designed it, who is entitled to protection in its use as a trade-mark; and a mere declaration of intention to use a mark in the future does not create a right to its exclusive use as a trade-mark (6).

§ 32. What marks may be acquired. The rules of the common law as to what marks may or may not constitute valid trade-marks are substantially preserved in the Trade-Mark Act discussed hereinafter, section 5 of which declares what kinds of marks may be registered as trademarks, and what kinds not.

§ 33. Federal statutes relating to trade-marks. The first attempt by Congress to legislate upon the subject of trade-marks is found in the act of July 8, 1870 (7), which provided for the registration in the Patent Office of any device in the nature of a trade-mark to which any person had by usage established an exclusive right, or which the person so registering intended to appropriate by that act to his exclusive use; and made the wrongful use of a trade-mark, so registered, by any other person, without the owner's permission, a cause of action in a civil suit

(6) Hopkins, Trade Marks, 63, and cases cited.