SEC. 4937 (Act of March 3, 1881, ch. 138, sec. 1, 22 Stat. 504). That owners of trade-marks used in commerce with foreign nations, or with the Indian tribes, provided such owners shall be domiciled in the United States, or located in any foreign country or tribes which by treaty, convention or law, affords similar privileges to citizens of the United States, may obtain registration of such trademarks by complying with the following requirements:

First. By causing to be recorded in the Patent Office a statement specifying name, domicile, location, and citizenship of the party applying; the class of merchandise and the particular description of goods comprised in such class to which the particular trade-mark has been appropriated; a description of the trade-mark itself, with fac-similes. thereof, and a statement of the mode in which the same is applied and affixed to goods, and the length of time during which the trade-mark has been used.

Second. By paying into the Treasury of the United States the sum of twenty-five dollars, and complying with such regulations as may be prescribed by the Commissioner of Patents.

Construction.

The statute does not define the word "trade-mark,” or say of what it shall consist. The term is used as though its signification were already well known in the law. Resort must therefore be had to the law outside of the statute, to ascertain what is or what may become a lawful trademark. Moorman v. Hoge, 2 Saw. 78.

If an arbitrary mark or device has been so long used in connection with an article of manufacture that it has become well known to the trade as designating a particular person's goods, it constitutes a lawful trade-mark. Morrison v. Case, 9 Blatch. 548; s. c. 2 O. G. 544.

A simple illustration of a crown in connection with an article, to designate its origin and ownership, is a lawful trade-mark. Smith v. Reynolds, 10 Blatch. 100; s. c. 3 O. G. 216.

The name of a town joined to the name of an article is not a legal trade-mark, nor can it be made so by adding the name and place of business of the manufacturer. Armistead v. Blackwell, 1 O. G. 603.

The word "centennial" applied to medals generally, is not a good trade-mark. Hartell v. Vinez, 2 W. N. 602.

A barrel of peculiar form and dimensions, without any marks, symbols, or devices of any kind impressed upon or connected with it, can not become a trade-mark or a substantive part of a trade-mark. Moorman v. Hoge, 2 Saw. 78.

A party can not claim an ornamented tin pail, when used to contain a certain article, as a trade-mark. Harrington v. Libby, 14 Blatch. 188; s. c. 12 O. G. 144; s. c. 4 A. L. T. (N. S.) 47.

A manufacturer can not by registering straight lines intersecting each other prevent another from using similar intersecting lines to indicate where the article must be cut in order to cut off a certain quantity. Dausman & D. T. Co. v. Ruffner, 15 O. G. 559.

If a trade-mark is claimed by a firm, it is sufficient to give the name of the firm, without giving the names of the individual members. Smith v. Reynolds, 10 Blatch. 100; s. c. 3 O. G. 216.

A statement of the number in the street, the city, county, and State where the firm is, is a sufficient statement of the residence and place of business of the firm. Smith v. Reynolds, 10 Blatch. 100; s. c. 3 O. G. 216. If a person is engaged in the manufacture and sale of paints generally, a designation of paints as the class of goods intended to be covered by the trade-mark is sufficient without further specification. Smith v. Reynolds, 10 Blatch. 100; s. c. 3 O. G. 216.

If different parties claim the same trade-mark, the commissioner may declare an interference between them. Hanford v. Westcott, 16 0. G.

A decision by the commissioner on an interference is conclusive in a subsequent action between the same parties or their privies. Hanford v. Westcott, 16 O. G. 1181.

SEC. 4938 (Act of March 3, 1881, ch. 138, § 2, 22 Stat. 503). That the application prescribed in the foregoing section must, in order to create any right whatever in favor of the party filing it, be accompanied by a written declaration verified by the person, or by a member of a firm, or by an officer of a corporation applying, to the effect that such party has at the time a right to the use of the trademark sought to be registered, and that no other person, firm, or corporation has the right to such use, either in the identical form or in any such near resemblance thereto as might be calculated to deceive; that such trade-mark is used in commerce with foreign nations or Indian tribes, as above indicated; and that the description and fac-similes presented for registry truly represent the trade-mark sought to be registered.

Construction.

The oath annexed to an application for a trade-mark is sufficient, although the seal of the notary is not attached, if that formality is not required by the law of the place where it was administered. Cochran, McLean & Co., 2 O. G. 520.

The statute does not require that the applicant's oath shall be in the exact words of the section. Vibbard & Sheehan, 8 O. G. 143.

If an applicant has not complied specifically with all the requirements of the statute, he will not be entitled to the registration of a trade-mark. Hankinson, 8 O. G. 89.

The law is as imperative in requiring a description of the trade-mark as in requiring a fac-simile thereof, and one will not supply the omission of the other. Volta Belt Company, 8 O. G. 144.

SEC. 4939 (Act of March 3, 1881, ch. 138, § 3, 22 Stat. 503). That the time of the receipt of any such application shall be noted and recorded. But no alleged trademark shall be registered unless the same appear to be lawfully used as such by the applicant in foreign commerce or commerce with Indian tribes as above mentioned,

or is within the provision of a treaty, convention, or declaration with a foreign power; nor which is merely the name of the applicant; nor which is identical with a registered or known trade-mark owned by another and appropriate to the same class of merchandise, or which so nearly resembles some other person's lawful trade-mark as to be likely to cause confusion or mistake in the mind of the public, or to deceive purchasers. In an application for registration the Commissioner of Patents shall decide the presumptive lawfulness of claim to the alleged trademark; and in any dispute between an applicant and a previous registrant, or between applicants, he shall follow, so far as the same may be applicable, the practice of courts of equity of the United States in analogous cases.

Construction.

The proceeding before the commissioner is purely ex parte. Other parties have no notice, actual or constructive. The decision of the commissioner is not conclusive that the party is entitled to a trade-mark. Moorman v. Hoge, 2 Saw. 78.

If a person has registered a trade-mark for a certain article generally, and the same symbol had been in use before he adopted it for certain descriptions thereof, the registration is void, for it is broader than his right. Smith v. Reynolds, 10 Blatch. 100; s. c. 3 O. G. 216.

A party who purchases a trade-mark from one partner can not have it registered, for he has not an exclusive right to use it. Armistead v. Blackwell, 1 O. G. 603.

No person is entitled to a trade-mark in a numeral which only indicates but does not express the quality of the goods. Kinney v. Allen, 1 Hughes 106; s. c. 4 A. L. T. (N. S.) 258.

If a person uses a numeral of a certain form, size, color and style, he may be entitled to use that as a trade-mark. Kinney v. Allen, 1 Hughes 106; s. c. 4 A. L. T. (N. S.) 258.

The commissioner may refuse to register alleged trade-marks which are clearly not valid. Kipling, 24 O. G. 899.

Parties who employ a word in an experimental way in five or six instances only, do not thereby gain a title to it as a trade-mark, in opposition to one who has, in the meantime, adopted it and put it into general use. Sternberger v. Thalheimer, 3 O. G. 120.

A person who is the first to preserve and can an article is not entitled to a trade-mark in the name by which the article has been previously known. Ams, 23 O. G. 344.

He who was the first to actually adopt and use a trade-mark for the purpose of indicating ownership or proprietorship of the articles to which the mark is applied, is entitled to it as against the person who was the first to suggest and urge its adoption. Swift v. Peters, 11 O. G. 1110.

The law does not require a description of every actual and possible matter that can be used in connection with the mark. The thing of value in the matter of registration is the trade-mark itself. No protection is afforded for the use of scrolls, fanciful figures, or other words which are not an essential part of the mark, and a full description of them will not be allowed. William S. Kimball, 11 O. G. 1109.

The production of a judgment establishing the validity of the trademark is not essential. The fact that the trade-mark was rightfully in use on the eighth day of July, 1870, may be established by the affidavits of disinterested parties, who have knowledge of the facts, setting forth the length of time the mark has been in notorious use, whether or not it has obtained a commercial value, and is considered by the trade as an indication of the origin and ownership of the articles to which it is affixed. Rubber Clothing Co., 10 O. G. 111.

The right to registration is founded on the adoption of a proper trademark, not the property of another party, and the declared intention to use it. Rothschild, 7 O. G. 220.

It is no bar to the registry of a trade-mark that it has already been used as such on articles of a different character. R. W. English, 2 Dec. Com. 142.

It is only necessary that trade-marks shall be so far original as that when known in the market the goods of one merchant or manufacturer may be distinguished from those of another. Porter Blanchard's Sons, 3 Dec. Com. 97; R. J. Roberts, 3 Dec. Com. 100; Dutcher Temple Co., 3 Dec. Com. 248; George E. Glines, 8 O. G. 435; Robert Rohland, 10 O. G. 980.

A trade-mark that is descriptive can not be registered. Smith, 16 O. G. 679; Cohn, 16 O. G. 680; Strasburger & Co., 20 O. G. 155.

A word which is descriptive of the quality of the article can not be used as a trade-mark. Goodyear Rubber Co., 11 O. G. 1062; Dole Brothers, 12 O. G. 939.

A word which is merely inferentially or remotely descriptive may be registered as a trade-mark. Heyman, 18 O. G. 922.

The word "crystalline" can not be registered as a trade-mark for artificial stones, because it is descriptive. Kipling, 24 O. G. 899.

A barrel constructed of light and dark staves alternately can not be registered as a trade-mark for packages of flour, for it is descriptive. Halliday Bros., 16 O. G. 500.

A device which does not perform the sole office of a trade-mark, but enters into the mechanical structure of the article, can not be registered as a trade-mark. Jacob Gordon, 12 O. G. 517.

The word " evaporated" is at once generic and descriptive and can not be registered. Alden, 15 O. G. 389.

The word "safety" cannot be registered as a trade-mark applicable to powder, fuse lighters and explosive caps, for it is descriptive. Safety Powder Co., 16 O. G. 136.

The word "swing" cannot be registered as a trade-mark applicable to the socket of a scythe snath. Thompson, Derby & Co., 16 O. G. 137.

A simple outline figure surrounding words purely descriptive of the quality of the article can not be registered as a trade-mark. G. W. Rader & Co., 13 O. G. 596.