national, does not in itself, as already stated, vest the right to the trade-mark in the individual, but is merely a public notice and proof that the particular trade-mark is claimed by the person by whom it is registered. The right to register a trade-mark is attained by virtue of its use. No trade-mark will be registered "which has not been in bona fide use for one year in commerce with foreign nations, or among the several states, or with Indian tribes," and this use must have been prior to the use of the same mark for a similar purpose by others. The use of the mark must also have been on the trademarked article or its container and in connection with its sale. The registration of a trade-mark is a simple matter. Nevertheless if the matter is of any material importance the application should be made through an attorney. "The owner of a trademark may prosecute his own application for registration of such trade-mark, but he is advised, unless familiar with such matters, to employ a competent attorney." The government fee for registration is $10; the attorney's fee will range from $10 up according to the complexity of the case. Importance of Registration I While registration of a trade-mark does not in itself give ownership, the mark should be registered as a matter of public notice that it is in use and that its ownership is claimed. The great advantage of such registration appears in case of litigation. If other parties use the mark and the registered owners bring the matter into court, they merely file the evidence of registration and rest their case. The registration is considered prima facie evidence of ownership, and the parties against whom the suit is brought must then either show that they have a superior right to the ownership of the mark in question or lose their case. If, however, the mark is not registered, the burden of proof is reversed. Then the complainant parties, lacking the convenient 1 Rules of the United States Patent Office Relating to the Registration of Trade-Marks. evidence afforded by registration, must show that they have been using the trade-mark in question and that their use and right antedates and is superior to that, of the defendant parties. In other words, the registration of the trade-mark does not establish the ownership of the mark, but is a public notice that ownership therein is claimed, and a presumptive proof of such ownership; and any party infringing on or contesting this ownership must prove a superior right or relinquish his claims. It is a coign of vantage from which to fight in case of litigation, and a measure by which the burden of proof is shifted to the opposing parties. Term of a Trade-Mark Trade-mark ownership has the advantage of not expiring by time limitation as does a patent. It is not a special concession or a reward from the government to genius or enterprise. It is merely a private right in and to a property created by the energy and ability of the originator, and, like any other property right, inures to the benefit of the owner or his assigns in perpetuity or until lost by disuse or abandonment. The government certificate of trade-mark registration does, it is true, expire in twenty years from its date and must be renewed from time to time, but the actual ownership of the trade-mark does not expire so long as it is in active use. Establishing a Trade-Mark Given a good trade-mark with a fairly good article or product to support it, the establishment of the trade-mark and the successful sale of the article or product is merely a matter of skillful, extensive, and, usually, long-continued advertising, and in connection with this the proper distribution of the trade-marked article and the maintenance of its standard. There should be no failure of supply and no variation of quality. Nothing discourages the consumer more completely than the inability to get the article he wants when he wants it, or discourages him more quickly than VOL. 1-14 to find the article when he does get it, varying in some way from the old familiar standard-in appearance, taste, odor, or effect. Man may like variety, but not of just that kind. Value of Trade-Marks The holding power of an established trade-mark is surprising. Such a name stands for the formula of the preparation covered and all its qualities. Once fixed in the public mind and properly followed up, its displacement is almost impossible. The only way in which it can be overthrown is by the substitution of some other trade-marked article of the same nature and of equal or higher quality, and in this way only with extreme difficulty and with contributory laxness on the part of the owners of the established mark. We all recognize this in our personal experience. Some particular cough syrup suits our system; we get good results with a certain kind of shaving cream; we are accustomed to some make of tooth-paste; so we continue to buy and use these particular articles. Other articles may be equally good-perhaps better— but we are not concerned, much preferring to continue the use of those to which we are accustomed. In the kitchen Dr. Blank's baking-powder has been introduced. The cook likes it and uses it with excellent results-or results that she esteems excellent. Thereafter no other bakingpowder appeals to her, no matter what its claims. Ordinarily she will not even try another powder. If she is persuaded to do so, not understanding the new powder nor how it is best used, her results are hardly likely to be satisfactory. She prefers old friends to new anyway, and joyfully returns to the familiar brand. Further, she is a zealous champion of her own particular baking-powder and in season and out of season is always ready to recommend it and to fight for it. As an advertising agent she is invaluable and, once obtained, quite inexpensive. All this is merely a manifestation of the natural conservatism of human nature-a following of the lines of least resistance. Once started in a particular direction or in the use of a particular article, an individual may be depended upon to continue in that direction, or to continue the use of that particular article, until some other influence is strong enough to effect a change and substitute some other direction or article. Furthermore, if the individual is a free agent with no preferences, and has not yet adopted an article that he must sooner or later use as for instance a youth approaching maturity who has not yet sworn allegiance to some particular brand of shaving soap or make of razor-when the need arises he will almost invariably select the article recommended by his friends. This being recognized as true, the enduring value of an established trade-mark will be realized. As to the dollar and cents value of a trade-mark, "Mr. Duke has stated on the witness stand that he regarded the name 'Bull Durham' as worth at least $10,000,000 and probably nearer to $20,000,000. The R. J. Reynolds Tobacco Company, it is reported, have been offered $10,000,000 for the Camel Cigarette good-will. . . . It is a common saying in advertising circles that such well-known trade-marks as Ivory Soap, Victrola, Kodak, and Uneeda are worth a million dollars a letter."2 Persistence of a Trade-Mark Mr. Rowell in "Forty Years an Advertising Agent" discourses interestingly on this subject. Speaking of Pond's Extract, he says that Dr. Humphreys of homeopathic specific fame, who then owned the trade-name mentioned, was glad to part with a business associate even though this involved the most valuable trade-name the concern possessed-no less a trade-name than "Pond's Extract," a preparation of witch hazel used as a household remedy from one end of America to the other. What a commentary it is on the value of a trade-mark! The 2 Printers' Ink, November II, 1920. mittedly a preparation of witch hazel. They could no longer sell it as Pond's Extract; that privilege had passed to Mr. Hurtt, but dozens of other people were selling extracts of witch hazel, and the Humphreys people had still just as good a right to make and sell an extract as anybody else. They could call it Humphreys' extract but not Pond's. Everybody had heretofore bought Pond's extract of the Humphreys concern; now they could buy Humphreys' extract there but not Pond's. To get Pond's they must go elsewhere. And yet the Humphreys' extract was identical in composition with Pond's; was made by the same people that had always made Pond's and was sold in larger bottles and at a lower price; and for all that the people would have none of it. They had learned to use Pond's and would have no other. I had knowledge in the earlier days of a similar case. Two men were part owners of a preparation for the hair called Hall's Hair Renewer. They were not agreed on business methods, and one disposed of his interest in the concern to the other and that other became a millionaire. The first man knew just as well how to make the preparation and did make it, put it on the market and advertised it, too, only it was Plummer's Hair Renewer and not Hall's. Everybody wanted Hall's, nobody would have Plummer's, and the money spent in advertising it was wasted. After a time the owner of Hall's Hair Renewer, having become wealthy had social aspirations that the patent medicine business did not aid, and the renewer was sold for a great price to J. C. Ayer and Company, of Lowell, who had already exploited with some success practically the same thing under the name of Ayer's Hair Vigor, but could not make it compete with Hall's that had been earlier in the field. Patents vs. Trade-Marks Mechanical inventions and processes may be protected by patent. The mechanism or product may be sold under a trade-mark, thus having the double protection of patent and trade-mark. But if the invention or process is patented and the mechanism or product is also sold under a trade-mark with which it has become so closely identified as to be inseparable, on the expiration of the patent not only does the invention or process become the property of the public, but, as discussed under "Trade-Names" later in the chapter, so does the trade-mark by which it is known. For this reason in the case |