possibilities. As a result, the patent which would have been of only minor value if promptly allowed, now gave promise of enormous profits.

The Selden patent was granted in 1895. At the time, the automobile industry had already attained to a considerable annual volume of business and was growing rapidly. Mr. Selden at once "threw his hat in the ring" and demanded royalties. The Selden patent was then considered basic and royalties were forthcoming from many of the manufacturers in large amounts. Some of them were recalcitrant, however, and a fight began. All the suits were finally merged in one test case, and it is doubtful if a patent suit was ever more vigorously fought than this. The testimony was voluminous, filling thirty-six octavo volumes. In the lower court the Selden claims were upheld. In commenting on the delay in the patent office, Judge Hough said:

Without prolonged discussion it may be held briefly that Selden did not overstep the law. He did delay. He was not in a hurry. He could not get anyone to back him and doubtless appreciated that if he was ahead of the times it was wise not to let his patent get ahead. If he had gotten his grant in 1880 without a moneyed backer, the patent might and probably would have expired, or nearly so, before anyone saw its possibilities, and if the business world had seen them within seventeen years, that term would then so nearly have expired that Selden would never have been able to get the final hearing before it ran out. At best, an accounting and not an injunction would have been his lot. The difference he may have well considered as a lawyer, and personally, I believe he did think of it. . .

...

No litigation closely resembling this case has been shown to the court, and no instance is known to me of an idea being buried in the patent office until the world caught up to and passed it, and then embodied in a patent only useful for tribute. But patents are granted for inventions. The inventor may use his discovery, or he may not; but no one else can use it for seventeen years. That seventeen years begins whenever the United States so decrees by its patent grant. That the applicant for patent rights acquiesces in any delay, or even desires delay is immaterial to the courts so long as the statute law is not violated. On these principles complainants are entitled to a decree.

An appeal from this decision was at once taken to the higher court. Here it was again held that the inventor was within his rights in delaying action in the patent office, the court stating that the patent must be "viewed without prejudice and with absolute judicial impartiality." In its decision, however, the higher court took a different view of the patent from that held in the lower court. It held that the patent itself was valid but restricted to the one type of engine referred to therein, and that for this reason the later automobiles using a different type of engine were not in violation of the Selden patent and that their manufacture and use could not be restrained. Thus ended one of the most remarkable patent cases ever brought before the courts.

CHAPTER XVII

TRADE-MARKS, TRADE-NAMES, AND COPYRIGHTS

TRADE-MARKS

Definition

A trade-mark is a distinctive name, expression, device, or motto, used to designate a particular product, or class of products, or line of goods, marketed under that distinctive mark or designation, or as defined by the Supreme Court of the United States, "A trade-mark is a word, letter, device or symbol, or some combination of these, used in connection with an article, and either inherently or by association pointing distinctly to the origin or ownership of the article to which it is applied."

Under proper conditions the parties originating and using any such distinguishing name or mark and thereby giving it a value, acquire the right to its use as against any others attempting to employ it for the same purpose. This right is not gained by virtue of a government grant or permission as in the case of a patent, but is a clearly defined common law right, i.e., a right arising from the use of the mark itself, which is recognized by the common law, and, as stated in some detail later, is not dependent upon registration.

Nature of the Trade-Mark

A well-established trade-mark is not infrequently the most valuable asset of a flourishing business, practically representing its good-will. In the case of process products its protective value is frequently greater and far more desirable than that of the ordinary patent.

A trade-mark does not in itself confer any exclusive right to the article it protects. On the contrary, it usually—though not

necessarily indicates that the same or similar articles or products are manufactured by others, the trade-mark having been adopted to distinguish the particular manufacturer's article or product from these others. Given an attractive article or product, the value of the trade-mark is given to it by the reputation of the concern, by a maintenance of standard, by aggressive advertising, by efficient distribution, and not usually by any exclusive right to or control of the product. For instance, anyone familiar with the art can make soap "991 per cent pure" and having every other distinguishing features of Ivory Soap as far as shape, size, and composition are concerned, but there they are estopped -they cannot use the term "Ivory Soap" or any of its other distinctive insignia. The competing soap may not only be just as good; it may be the same, but it cannot be sold as "Ivory Soap" save by the owners of the trade-mark.

The right to or ownership in a trade-mark is not of a nature to permit its sale or transfer independently of the article which it designates. For instance, if a certain kind of liquid cement were distinguished by a blue star printed on the container, this trademark might be registered and might be claimed as the property of the concern manufacturing the "Blue Star Liquid Cement." The blue star, however, indicates that particular kind of liquid cement, and the right to use the blue star cannot be sold to someone else for the purpose of designating a different kind or grade of liquid cement. The concern might sell its formula for the cement it produced, including with it the trade-mark by which that cement was designated, or it might sell the blue star trademark to another concern already making the same liquid cement, but it could not legally transfer the blue star trade-mark to designate some liquid cement of different composition or properties from those of the true Blue Star Liquid Cement.

As the converse of this, the sale of a business and goodwill carries with it the brands and trade-marks used in that business.

Selecting a Trade-Mark

The selection of a trade-mark is too extended a subject to be discussed here in detail. The national law is very explicit as to what may not be registered and thus delimits the field very sharply. Perhaps the most important prohibition is the requirement that no words or devices descriptive of the goods to be trade-marked may be used. If words are employed they must in their ordinary use indicate something else than the article or goods to be designated, or otherwise in themselves mean nothing at all. Under this provision of the law the trade-mark must derive its value from its arbitrary association with the article or goods to be designated. Thus the term "sea-foam" with a distinct meaning of its own, well-understood wherever the English language is employed, was used to designate and did designate very specifically a certain brand of baking-powder—an arbitrary association brought about entirely by long use and active advertising. Similarly “Kodak" and "Sapolio," with no independent meanings of their own, have come to stand specifically for the articles or products with which they have been associated. Indeed this may be carried so far that in some cases the word is finally incorporated in and becomes part of the language. Thus the trade-mark "vaseline," with no meaning outside of its trademark use, will be found listed among the other good English words in any up-to-date American dictionary.

Under these conditions it is obvious that the trade-mark should be distinctive and striking so that it may be readily fixed in the public mind. If, while retaining these essentials it can be made attractive and pleasing, as in the case of "sea-foam," its value is greatly enhanced.

Registering a Trade-Mark

In most of the states the laws provide for the registration of trade-marks and a national law permits their registration in the patent office at Washington. This registration, whether state or