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though not a picture of applicant's particular plaster. § 41. Descriptive by long use. A mark originally arbitrary may become descriptive by long use and association by the public, as for example: "Albany Beef" became descriptive for canned sturgeon (13); and "New Manny" for harvesting machines.

§ 42. Word in foreign language. A name in a wellknown foreign language, descriptive of a certain product, cannot be a valid trade-mark on that product in this country, as where it was held (14) that "Matzoon," meaning (in Armenian) fermented milk, is descriptive and cannot be appropriated as a trade-mark; and that the party who introduced the beverages into this country is not entitled to the exclusive use of the name.

§ 43. Descriptive word on another kind of article. A descriptive word may be registered as a trade-mark on an article other than that of which it is descriptive, as where "Napthol Methane" was held (15) registrable for carbon black, on the ground that it is well known that such substance does not contain the chemicals indicated by the trade-mark.

§ 44. New article. When a new article is produced and is given an arbitrary name by those producing it for the first time, such name, being the only name by which that particular kind of an article is known, may thereafter be descriptive. Accordingly the word "Leclanche" was held to have become thus descriptive of a certain kind of battery, the court saying: "When an article is

(13) Ames, ex parte, 23 O. G. 344.

(14) Dadinian v. Yacubrian, 72 Fed. 1010; 90 Fed. 812; 98 Fed. 872. (15) Castle Brook Carbon Black Co., ex parte, 100 O. G. 683.

made that was theretofore unknown, it must be christened with a name by which it can be recognized and dealt in; the name thus given to it becomes public property, and all who deal in the article have the right to designate it by the name by which alone it is recognizable” (16). § 45. Test. And in general, it may be said that the test is to consider whether the public will on the whole regard the mark as an arbitrary symbol denoting only the origin and ownership of the goods, or as an advertisement of some desirable quality of the goods themselves (17); it is not whether the words are exhaustively descriptive of the article designated, but whether, in themselves and as they are commonly used by those who understand their meaning, they are reasonably indicative and descriptive of the thing intended (18).

§ 46. What marks are geographical? A geographical name applied in its ordinary signification to merchandise is not a valid trade-mark, as for example, "York," as a trade-mark for stoves and ranges; "Clinton," as a trademark for wagons; and "Elgin," for watches, as against manufacturers residing in the locality (19).

The name of a people has been held to be geographical, as for example, "Grecian" (20), and "French."

But a nickname has been upheld, as for example, "Hoosier," for machinery, and "Yankee," for soap (21).

(16) Leclanche Battery Co. v. Western Elec. Co., 23 Fed. R. 276, 277. (17) Brigham, ex parte, 20 O. G. 891.

(18) Rumford Chem. Wks. v. Muth, 35 Fed. 524.

(19) Illinois Watch Case Co. v. Elgin Nat. Watch Co., 94 Fed. R. 667, reversing 89 Fed. R. 487.

(20)

Classic Corset Co. ex parte, 100 O. G. 1329. (21) Williams v. Adams, 8 Biss. 452.

§ 47. Proceedings in Patent Office. An application for registration of a trade-mark in the Patent Office is in its essential respects similar to an application for a patent, and comprises a formal petition requesting registration, a statement of certain formal matters, a sworn declaration as to facts upon which the right to a registration is based, a drawing of the trade-mark, five specimens (22) of the trade-mark as actually used upon the goods, and a fee of ten dollars. The rules of the Patent Office establish classes of merchandise for the purpose of trade-mark registration, and determine the particular descriptions of goods comprised in each class. On a single application for registration, a trade-mark may be registered, at the option of the applicant, for any and all goods upon which the mark has actually been used, comprised in a single class of merchandise (23).

On the filing of such application, an examination is made, and if it appears that the applicant is entitled to a registration, the mark is accordingly published in the Official Gazette of the Patent Office. Thereupon any person who believes that he would be damaged by such registration may, at any time within thirty days, file a notice of opposition, duly verified, stating the grounds for such opposition. In all such cases, and in cases where an application interferes with a pending application in the Patent Office or with a certificate of registration previously issued to another, an interference proceeding, similar to an interference proceeding in the case of applications for

(22) Or facsimiles, when, from the mode of applying or affixing the trade mark to the goods, specimens cannot be furnished. (23) Sec. 2, Act of May 4, 1906; Rule 30.

patents, is conducted, and it is thereby determined which party is entitled to registration. If no notice of opposition is filed within the time stated, or if the interference is decided in favor of the applicant, a certificate of registration is issued in due course. For details of the corresponding proceedings in patent cases, see Patent Law, §§ 34-35, elsewhere in this volume.

§ 48. Term. A certificate of registration remains in force for twenty years, but may be renewed from time to time for like periods upon payment of a renewal fee of ten dollars in each case.

§ 49. Cancellation. Any person deeming himself injured by the registration of a trade-mark in the Patent Office, may, at any time, make application to the Commissioner to cancel such registration. In such case an interference proceeding is conducted, in the same manner as noted above, and, if determined adversely to the registrant, his registration is cancelled (24).

§ 50. Appeals. An appeal lies from an adverse decision of the examiner in charge of trade-marks upon an applicant's right to register a trade-mark or to renew the registration of a trade-mark, or from a decision of the examiner in charge of interferences, to the Commissioner in person; and from an adverse decision of the Commissioner upon the right of an applicant to register a trademark or to renew the registration of a trade-mark, or from a decision of the Commissioner in cases of interference, opposition, or cancellation, to the court of appeals of the District of Columbia (25).

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§ 51. Assignment of trade-marks. The Trade-Mark Act provides that a registered trade-mark, or a mark for which application for registration has been made, together with the application for registration of the same, may be assigned in connection with the good will of the business in which the mark is used (26). Such assignment must be in writing and duly acknowledged according to the laws of the country or state in which the same is executed. Any such assignment is void as against any subsequent purchaser for a valuable consideration, without notice, unless it is recorded in the Patent Office within three months from its date.

It will be noted that the act provides for assignments only in connection with the good will of the business in which the mark is used. This is in accord with the common law rule that trade-marks can be assigned only in such manner, the reason being that a trade-mark is analogous to the good will of a business, and can exist only in connection with the good will, and therefore cannot be separately assigned.

In Dixon Crucible Co. v. Guggenheim (27), it was said: "As a mere abstract right, having no reference to any particular person or property, it is conceded that it cannot exist, and so cannot pass by assignment, or descend to a man's legal representatives," and in Bulte v. Igleheart Bros. (28) it was said: "A trade-mark is analogous to the good will of a business. Whoever heard of a good will being sold to one while the original owner continues

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