trade

transmitted only in connection with the goodwill of the ment of business concerned in the particular goods, or classes of mark. goods, for which it has been registered, and is determinable with that goodwill (s. 70); and, further, where a person becomes entitled by assignment, transmission, or other operation of law, to a registered trade mark, the comptroller shall on request, and on proof of title to his satisfaction, cause the name of such person to be entered as proprietor of the trade mark in the register. The person for the time being entered in the register of trade marks as proprietor of a trade mark, shall, subject to any rights appearing from such register to be vested in any other person, have power absolutely to assign, grant licenses as to, or otherwise deal with the same, and to give effectual receipts for any consideration for such assignment, license or dealing. Provided that any equities in respect of such trade mark, may be enforced in like manner as in respect of any other personal property (s. 87, and see s. 78).

Where several trade marks have been registered in a series, under s. 66, such series of trade marks is assignable and transmissible only as a whole, but for all other purposes each of the trade marks composing a series shall be deemed and treated as registered separately.

There shall not be entered in any register kept under the Act, or be receivable by the comptroller, any notice of any trust expressed, implied, or constructive (s. 85).

mark

Trade marks properly so called consist of some descrip- Trade tion or device in some way or other affixed to the article proper sold, and that description or device may be either must be affixed. affixed to, or impressed upon, the goods themselves by means of a stamp or an adhesive label or ticket, or it may be made to accompany the goods by being impressed or made to adhere to an envelope or case containing them (Singer Manufacturing Co. v. Wilson, 2 Ch. D.

forth to the world.

And by the Patents, Designs, and Trade Marks Act, 1883, the name of an individual or firm used as a trade mark, must be printed, impressed, or woven in some parAnd pt ticular and distinctive manner (sect. 64). Under the Trades Mark Registration Act, 1875, the plaintiff's mark must, in order to support an action, have been put forth to the world by the party complaining of the misuser of it (Lawson v. Bank of London, 18 C. B. 93), that is to say, it must have been affixed to a vendible article actually in the market (McAndrew v. Bassett, 4 De G. J. & S. 386); but no questions of this kind can now arise under the new Act, as it is provided that "registration of a trade mark shall be deemed to be equivalent to public use of the trade mark" (46 & 47 Vict. c. 57, s. 75), and in order to con

But see

46 & 47

8. 75.

Vict. c. 57, stitute a public user it is sufficiently plain that the trade mark must be actually in the market, for so it was held with respect to the public user of goods (McAndrew v. Bassett, supra; Maxwell v. Hogg, L. R. 2 Ch. 307). The section of the Act therefore provides in effect that registration of a trade mark shall be equivalent to placing the class of articles protected by it in the market as vendible articles.

Length of user of

tion.

The question as to what constitutes a sufficient length trade name of user to give the plaintiff an exclusive right to a trade or designa- name or designation not registered under the Act, may be resolved by reference to the judgment in Hall v. Barrows, 32 L. J. Rep. 551, in which a decided opinion was expressed that the interference of a Court of Equity does not depend on the length of time the name has been used, and that although it might not have been adopted a week, and might not have acquired any reputation in the market, still the right to use it would be protected. It is to be observed, however, that in order to make out a case for the interference of the Court, it must be shown that there is at least a probability of pecuniary loss or damage resulting

from the wrongful act (Leather Cloth Co. v. American Leather Cloth Co., 33 L. J. Ch. 200, per Westbury, L.C.), and, therefore, if a plaintiff can show that the defendant has copied his trade name or designation under circumstances calculated to deceive the public, he proves in effect that such name and designation were sufficiently identified with his business, otherwise the public could not possibly suffer, nor would he himself sustain any loss prospective or otherwise. And again, the mere fact of a person imitating the name of another would seem to show that such name is known in the market, for in any other event the plagiarist would gain nothing by his pains.

to obtain

If a person should endeavour to use his right in a trade Endeavour mark for the purpose of getting a monopoly in particular monopoly. articles, as if he had a patent for the manufactured goods, such trade mark will not be protected (Singer Manufacturing Co. v. Wilson, 2 Ch. Div. 456, per Mellish, L.J.: Morgan v. McAdam, 36 L. J. Ch. 228, per Wood, V.-C.; Flavel v. Harrison, 10 Hare, 467; Linoleum Manufacturing Co. v. Nairn, 7 Ch. Div. 834, and refer also to Wheeler & Wilson v. Shakespear, 39 L. J. Ch. 36). The name by which a patented article is generally known becomes publici juris at the expiration of the patent, and cannot properly be registered as a trade mark (Re Ralph, 53 L. J. N. S. (Ch.) 188).

Where also the inventor of a new substance had given it a name and taken out a patent for his invention, he is nevertheless not entitled to the exclusive use of that name after the expiration of the patent (Linoleum Manufucturing Co. v. Nairn, 7 Ch. D. 834).

Acts.

There is no advantage to be gained by registering a Copyright trade mark under any of the Copyright Acts (Maxwell v. Hogg, L. R. 2 Ch. 307; In re Meikle, 46 L. J. (Ch.) 19), Publicaand irrespective of the Copyright Law, the Court will newspaper.

tion of

restrain a person from publishing a newspaper or periodical, purporting to be a continuation of the plaintiffs, or intituled in such a way as to lead the public to purchase it as such (Hogg v. Kirby, 8 Ves. 215; Prowett v. Mortimer, 2 Jur. (N. S.) 414; Kelly v. Hutton, L. R. 3 Ch. 703; Bell v. Locke, 8 Paige (Amer.) 75).

CHAPTER IX.

THE PATENTS, DESIGNS, AND TRADE MARKS ACT, 1883.

By the 77th section of the Patents, Designs, and Trade Section 77. Marks Act, 1883 (46 & 47 Vict. c. 57), it is provided that a person shall not be entitled to institute any proceeding to prevent or to recover damages for the infringement of a trade mark, unless, in the case of a trade mark capable of being registered under the Act, it has been registered in pursuance of the Act, or of an enactment repealed by the Act; or in the case of any other trade mark in use before. the 13th August, 1875, registration thereof under the Act or of an enactment repealed by the Act, has been refused. The comptroller may on request, and on payment of the prescribed fee (£1, see Trade Mark Rules, 1883, 1st Schedule), grant a certificate that such registration has been refused.

The owner of a mark in use before the 13th August, 1875, and who has obtained such a certificate will stand, it would seem, in precisely the same position as he would have done if the Registration Act had never been passed (In re Barrows, L. R. 5 Ch. D. 353-359, per Malins, V.-C.).

Upon registering any trade mark, the comptroller shall Rule 32. enter in the register the date on which the application for registration was received by the comptroller (which day shall be deemed to be the date of registration), and such other particulars as he may think necessary (r. 32). This rule would not, however, appear to justify the comptroller in entering a note of a private arrange

R