ever clearly the subject-matter might place it in the latter class of subjects.

I regard the eleventh section of the act of 1861 as distinct from the remainder of the law as if it formed the subject of a separate statute, and the codifiers of the patent laws evidently so regarded it, for they collected all the matter relating to design patents in a separate chapter. (Root v. Ball, 4 McLean, 180.)

281. FORM OF PETITION FOR LETTERS PATENT FOR A DESIGN.

To the Commissioner of Patents:

Your petitioner prays that letters patent may be granted to him for the new and original design set forth in the annexed specification.

THOMAS TASTY.

282. FORM OF SPECIFICATION FOR A DESIGN.

I, Thomas Tasty, of New Haven, in the county of New Haven, and State of Connecticut, have invented and produced a new and original design for carpets, of which the following is a specification:

The nature of my design is fully represented in the accompanying photographic illustration, to which reference is made:

Claim.

I claim as my invention the design for a carpet, as shown.

Thomas Tasty, the above-named petitioner, being duly sworn, (or affirmed,) deposes and says, that he verily believes himself to be the original and first inventor of the design for carpets described in the foregoing specification; and that he does not know and does not believe that the same was ever before known or used; and that he is a citizen of the United States. THOMAS TASTY.

Sworn to and subscribed before me this 13th day of March, 1869.

SIMON SHALLOW,

Justice of the Peaec.

SEC.

XVII. Trade-Marks.

284. Act of July 8, 1870.

285. Object and effect of the law. 286. Patent Office requirements. 287. Duplicate copies.

SEC.

288. Record of assignment.

289. Form of petition and oath. 290. Form of transfer.

291. Form of certificate.

284. ACT OF JULY 8, 1870.-For the provisions of the act of July 8, 1870, concerning trade-marks, see Part I, p. 36. 285. OBJECT AND Effect of THE LAW.-In the case of King ex parte, (Commissioners' Decisions, September 19, 1870,) the Commissioner says: "Applicant tenders $30 and asks for a patent for fourteen years for a design for a trademark.' He says: "The distinctive features of my design consist of my portrait, placed in the center lengthwise, and surmounted by the British coat-of-arms, about which is arranged, in a semicircular form, the words "King's Sauce Royal." Upon the left of my portrait is a shield or tablet, containing the words "Shake well the bottle before using," and upon the opposite side a similar tablet, containing the words "None genuine without my portrait and signature, W. King," said signature being a fac simile of my handwriting. Although the above-named tablets are used, they are not considered as essential to the design, and may be omitted if desired.

"Having thus fully set forth the nature and merits of my invention, what I claim as new, is: The hereinbefore described design, substantially as shown.'

"Prior to the act of July 8, 1870, no protection was afforded by statute for trade-marks eo nomine. They were left to the protection of the common law, except where the design was of such character as to fall properly within

the subjects patentable as designs. In such case they have been patented, usually with the addition of the words for a trade-mark.' These words were, however, merely descriptive, and carried with them no guaranty as to the use of the trade-mark. In other words, if goods had been sold with such a design affixed, the only penalty that could have been recovered, under the statute, would have been for the infringement of the design as an ornament, and no recovery could have been had of the damage resulting to the injury to the trade of the manufacturer by a violation of his trade-mark in the sale of the articles to which it was attached.

"It was to remedy this evil, and to give promptly, by statute, that protection to trade-marks which the common law tardily afforded, that Congress passed so much of the act of July 8, 1870, as relates to this subject. By the provisions of that act, a trade-mark, whether old or new, may be registered in the Patent Office by its owner, and by the payment of $25 protection is afforded for thirty years. As this protection is more ample, and covers more than double the time for less money, it is difficult to see why applicant, or any one else, should now seek a design patent for a trade-mark. The folly of the application does not, however, relieve me from the necessity of deciding upon its legality.

"The only clause of the designs act under which trademarks can possibly fall is that which enumerates' any new and original impression, ornament, pattern, print, or picture, to be printed, painted, cast, or otherwise placed on or worked into any article of manufacture.' This manifestly refers to the external ornamentation of manufactured articles, and it requires, first, a specific article

of manufacture to be ornamented; and, second, an impression, ornament, pattern, print, or picture to be placed upon it. It was only by a forced construction of this clause that designs which were to be used only as trademarks or selling labels could be included within it.

"But the subject is relieved of all difficulty by § 77 of the late statute. It is there enacted 'that any person, corporation, &c., who are entitled to the exclusive use of any lawful trade-mark, or who intended to adopt and use any trade-mark, for exclusive use within the United States, may obtain protection for such lawful trademark by complying with the following provisions.' This provision, by prescribing the statutory mode of obtaining protection for a trade-mark, excludes all other modes not expressly provided for, and operates as a construction of § 71, in excluding trade-marks from the list of subjects intended to be protected as designs.

"In accordance with this opinion, the present application, and all others which are intended to cover trademarks, or 'designs for trade-marks,' must be presented under the provisions of §§ 77-84 of the act of July 8, 1870, and not otherwise."

286. PATENT OFFICE REQUIREMENTS.-As to who are entitled to trade-marks, requirements of the law, &c., see Part I, page 36, et seq.

Under the provisions of §§ 77 and 81 of the act authorizing the Commissioner to make rules, &c., the following requirements, in addition to those prescribed by law, have been established:

287. DUPLICATE COPIES.-Five duplicate copies of the proposed trade-mark, in addition to the one accompanying the statement and oath of applicant, must be depes

ited with each application. Certified copies will be furnished at the usual rates. (Patent Office Rules, July, 1870.)

288. ASSIGNMENT OF TRADE-MARK TO BE RECORDED SIXTY DAYS AFTER ITS EXECUTION.-The right to the use of any trade-mark is assignable by any instrument of writing, and such assignment must be recorded in the Patent Office within sixty days after its execution. The fees will be the same as are prescribed for recording assignments of patents. (Ib.)

289. FORM OF PETITION AND OATH.

To the Commissioner of Patents:

Your petitioners, Martin Scott and Henry Newman, partners under the firm name of Scott & Newman, residing in Peacedale, Washington county, Rhode Island, and engaged in the manufacture and sale of cotton sheetings at said Peacedale, represent that they have used for ten years last past, are now using, and have the right to use, a trade-mark for said sheetings, of which the design shown in the annexed drawing is a true copy; which trade-mark has been printed in blue ink upon the outside of each piece of sheetings. They further represent that no other person, firm, or corporation has a right to the use of said trade-mark, or of one substantially the same. They therefore pray that said trade-mark may be registered and recorded in the Patent Office according to law, they having paid into the treasury of the United States the sum of twentyfive dollars, and otherwise complied with the regulations in such case made and provided.

MARTIN SCOTT.

HENRY NEWMAN.

say, that

Martin Scott and Henry Newman, being sworn, make oath and the foregoing statement by them subscribed is true in substance and in fact, as they verily believe.

MARTIN SCOTT.
HENRY NEWMAN.

Sworn to and subscribed before me this 15th day of July, 1870.

JOHN JURAT,

Justice of the Peace.