CHAPTER XIV NECESSITY AND METHODS OF PROTECTION The Competition of Business An eminent military commander, well-qualified to express an opinion, is credited with the terse but forceful characterization— "War is hell." The truth of his statement is generally admitted. It is also admitted that business competition is a form of war. The reason for the clean-cut separation that so often exists between the private and the commercial life of the man of business is not clearly apparent. Just why the kindly, helpful pater-familias of home life should, in so many cases, by the brief transition to his office be converted into a business barbarian of distinctly predatory habits-hard, unscrupulous, and commercially cruel-is one of the anomalies of modern civilization. All that can be said is that such is the nature of the game "as it is played." Possibly the conditions give zest to business. Be this as it may, as most of us have to play the game, we should, even if we do not choose to be commercial savages, play with a clear recognition of the fact that some of our competitors at least, prefer the "back to nature" part and that our actions must be regulated in accordance with this condition. But Ex-Secretary Redfield says, "I wish emphatically to protest against the idea which prevails too much today that the business world is largely a world of plunder.. the business men of America are, with rare exceptions, upright and highminded men, respecting the rights of others, conscious of their duties to their fellows, seeking prosperity through service rather than through selfishness, and with personal consciences never so active, and with public ideals never so high as today." I"New Industrial Day."! Why Protective Measures Are Necessary Granting the general correctness of this pleasant optimism, a glance at the court calendars is convincing proof that there are yet in America many men of business who could not qualify under Ex-Secretary Redfield's generalization. Further it must be remembered that no man leaves his door unbarred at night if there is one doubtful character at large in the community. It is also true that, in practice and rightly enough, too—these same men of character and high ideals employ the most able lawyers they can find to protect their interests as against those of others, and in their dealings with these others, hedge themselves about with every precautionary measure-memoranda, contracts, escrows, indorsements, penalties, and guaranties-that their lawyers can devise. It must be remembered, too, that opinions as to what is right and what is wrong frequently differ widely; that, entirely apart from considerations of character, honest mistakes are always liable to occur and that business precautions are taken as much to guard against such differences of opinion, mistakes, and misunderstandings as against actual dishonesty. Speaking generally, man's memory is too fallible and too easily misled to entrust to it alone important business data and undertakings. Contracts must then be made in writing not only that we may enforce them if they be not voluntarily performed, but also that both parties to them may understand and understand alike—the terms of the undertaking. Even with this precaution, misunderstandings are frequent, owing to the ambiguity of the language employed. It is to be borne in mind also that many protective measures are necessary to put possible trespassers "on notice" and to prevent invasion or infringement from lack of knowledge. A granted patent is notice to the world that the invention it protects has been made and that the inventor claims the exclusive right to its manufacture, use, and sale. The same idea obtains in the registry of a trade-mark. As a matter of fact a trade-mark could be held successfully without registry, but no good business man would leave a valuable trade-mark without such protection. Its registry gives no rights that did not exist before, but it is the formal and authoritative notice to all concerned that the particular mark is pre-empted. It is the "ounce of prevention." Without it unintentional infringements would inevitably occur, and, entirely apart from the advantage it gives in event of litigation, the rightful owners by giving proper notice in the form of registration not only save themselves from the expense and annoyance of unnecessary litigation, but also save others from the expensive mistake of adopting-in good faith-trade-marks already in use. Methods of Protecting Business Interests As a matter of practice, the proper protection of a business enterprise is of the greatest importance, not only on account of the dishonest practices occasionally to be encountered, but also, as already suggested, as a matter of notice, and to avoid the undesirable results of the differences, the mistakes, and the carelessnesses that are continually encountered. In other words, the business man must hold and defend what he has by every means at his command. The better the defense, the better and more effectively may he go forth to wage his own commercial warfare. The more formal protection of business interests, as far as may be, from competition and unfair or dishonest attacks, is effected by various methods. For mechanical devices, the patent is usually relied upon. Certain processes may be patented, or, in cases where such governmental protection is not available or is inadequate, they are sometimes held most successfully as secret processes. The registry of trade-marks is somewhat akin to the patent in its protective nature and is used to safeguard those distinctive names and insignia through which a particular concern is brought distinctively before the public, or its goods are differentiated from those of similar character that may be exploited by |