authors the sole right of performing their compositions, or representing their pieces for the same term for which copyright is granted (m).

Patents for inventions.

Such con

2. Patents for invention stand upon somewhat similar, though far from identical, grounds as copyrights. (398) The progress of inventions in matters relating to manufactures (to which the majority of inventions belong) is such, that many persons are at work at the same time in the same direction; and often the same idea is hit or conceived by several nearly simultaneously: moreover, the refinements and improvements upon each successive device follow each other so rapidly, that it is difficult to determine to whom of several inventors the chief or distinctive merit belongs. flicts as occur daily between rival inventors, can rarely take place between rival authors. Consequently, although a similar desire to give some reward to an inventor as is obtained by authors is naturally entertained, yet it is far less easy to put into practice. Moreover, the highly expensive nature of the litigation, which ensues upon questions of infringement of patents, is such as to preclude those whose means are small, *though their inventive facul[* 583] ties may be large, from successfully claiming the fruits of their labours. These considerations have led many to doubt the expediency of continuing the operation of patent laws. If they fail in their object of securing to a first and true inventor an adequate reward for his industry, the arguTheir expediency doubted. ment founded on the public policy of encouraging invention falls to the ground. Nevertheless, inasmuch as at present the law is in full force, some notice of the right thereby created is required here.

In ancient times the notion of giving a monopoly of a particular manufacture was familiar to many as a royal device of benefiting favourite subjects; but was one by no means looked upon with approbation by any but those whose interest was thus advanced. Their illegality was often insisted upon, both by charters and statutes, and was in the reign of Elizabeth solemnly declared (n). An exception was, however, made in the case of an introducer of a new trade, or the inventor of a new machine. The statute of monopolies (21 Jac. 1, c. 3), which was passed not long afterwards, adopted this view, and allowed a royal patent of privilege to be granted for fourteen years, to any inventor of a new manufacture, for the sole working or making of the same. This statute has been in this, as in other instances of tentative legislation, followed by numerous others, the details of which it is needless here to refer to. The whole right of patentees now depends upon an act passed in the year 1852 (o); for, though the act creates no right in the crown to grant a patent,-such right being inherent,-yet, unless the patent accords with the provisions of the act, it is declared to be void.

We can here only very shortly notice what these provisions are. The most important of them seem to be these. The subject-matter of the patent must be a new *manufacture, not used by others at the time of making the letters patent: the question whether any particular alleged invention is new has been one fruitful, to a remarkable extent, with litigation.

(m) Sect. 20, extending the privileges given by 3 & 4 Will. 4, c. 15.

[* 584]

(n) The case of monopolies, 11 Rep. 846, 44 Eliz. (0) 15 & 16 Vict. c. 83.

(398) See Act of Congress of July 8, 1872 (16 U. S. Stat. at Large, 198, ch. 230); 2 Kent's Com. 366-373; Curtis on Patents; Schouler on Personal Property, 654–671.

Next, the patentee must be the true and first inventor; but for the purpose of this requirement, the first introducer from abroad is considered to be the inventor of the subject of the patent.

Lastly, the patentee must, in a document called the specification, accurately describe the nature of his invention, and how it is to be performed, and state exactly what he claims as his invention. This must be filed in the Court of Chancery, within six months after the letters patent are granted; though it may be, and often is, filed with the petition for the grant (p). Should, however, the patentee afterwards find that he has claimed too much, he may disclaim the part which is in excess of his proper invention (q). Patents for warlike inventions may be purchased by the state, in which case they are kept secret, and no specification is filed (r).

Patterns or designs.

3. Patterns or designs for manufactures, such as for carpets, paperhangings, and the like, are also, when duly registered according to law, protected from being imitated without the permission of the designer. The act by which this right is conferred (s) distinguishes several classes of manufactures, the ornamentation of which is protected, and different periods, varying from nine months to three years, are assigned during which the protection applies.

Under the act, a registrar is appointed for the purpose of registering the design, and receiving copies, drawings, &c., of it: these are afterwards open for public inspection. These copies or drawings, which the act requires to be [* 585] deposited with the registrar, must accurately * describe the design (t), so that, as soon as the period of protection has expired, the public may be able to make free use of the design.

Sculptures, casts, Sculptures and casts are also protected from being copied by another series of acts (u), as also are paintings, engravings, and

paintings, &c.

photographs (v).

Trade-marks.

Lastly, trade-marks are protected by law. If a manufacturer uses a symbol to denote that certain goods upon which it is affixed are manufactured by him, and the goods are put into the market (w), a certain reputation, accompanied by substantial advantages, may be obtained. This the law protects, and the sole right to use the trade-mark will be vindicated (z). This right the law now regards as property (y). (399)

(v) 25 & 26 Vict. c. 68.

(20) No trade-mark can be acquired without actual sale; mere expenditure in advertisement does not confer it. Maxwell v. Hogg, L. R. 2 Ch. 307.

(x) See post, vol. iii. p. 69.

(y) Hall v. Barrows, 32 L. J. Ch. 548; 33 ib. 204; Leather Cloth Co. v. American Leather Cloth Co.. 11 H. L. 523. Formerly it was thought to rest upon fraud only, Blanchard v. Hill, 2 Atk. 484.

(399) In this country trade-marks are protected by courts of law, by courts of equity, as well as by statutes. An act of congress makes ample provision for securing the rights of persons having trade-marks. See Act of July 8, 1870 (16 U. S. Stat. at Large, 198, ch. 230, SS 77-84). But courts of law and of equity have furnished remedies to owners of trade-marks long before the enactment of statutes for that purpose. To discuss the subject at length in this place is not to be expected, yet a few of the more general principles may be noticed. A trade-mark is a name, letter, mark, symbol, or device, invented or used by a maker or

seller of the goods or things made or sold by him, to indicate that they are made or sold by him, or that he has some exclusive right to sell them, and thus to secure to himself the profits arising from the making or sale of the goods or things so bearing that peculiar character or mark. A trade-mark may be a device, character or symbol which is, in itself, without any definite meaning, or it may be a descriptive word indicating the origin, nature and character of the goods, or it may consist of the name of a person, or place, or thing, together with some device, character or symbol. The essential principle or element of a trade-mark is that it shall indicate the true origin or ownership of the article or goods protected. Amoskeag Manufacturing Co. v. Spear, 2 Sandf. Sup. Ct. 599; Gillott v. Esterbrook, 48 N. Y. (3 Sick.) 374, 376; 8 Am. Rep. 553; Falkinburg v. Lucy, 35 Cal. 52; Boardman v. Meriden Britannia Co., 35 Conn. 402; Ferguson v. Duval, 2 Brewst. (Pa.) 314; Filley v. Fassett, 44 Mo. 173; Delaware & Hudson Canal Co. v. Clark, 13 Wall. 311, 322, 323.

The name of a place may be adopted and used as a trade-mark; and where water-lime was made at Akron, N. Y., from quarries near that place, the plaintiff was protected in his trade-mark, which was "Akron," as against the defendant who made his water-lime from stone quarried at Syracuse, N. Y., a place quite distant from Akron, and who labeled his barrels "Alvord's Onondaga Akron Cement of Water-Lime, manufactured at Syracuse, N. Y." Newman v. Alvord, 51 N. Y. (6 Sick.) 189; 10 Am. Rep. 588; see Wotherspoon v. Currie, 42 L. J. Ch. 130; L. R., 5 H. L. 508; and stated, 51 N. Y. (6 Sick.) 197; Seixo v. Provezende, L. R., 1 Ch. App. 192; Lee v. Haley, L. R., 5 Ch. App. 155; McAndrew v. Bassett, 4 De Gex, Jones & Smith, 380. The principle upon which these cases were decided was that the defendant should not be permitted, by the adoption of a trade-mark which was untrue and deceptive, to sell his own goods as those of the plaintiff.

But no one can apply the name of a place, or of a district of country, to a well-known article of commerce, and thereby obtain such an exclusive right to the application as to prevent others inhabiting the same place or district, or dealing in similar articles coming from the same place or district, from truthfully using the same designation. Delaware & Hudson Canal Co. v. Clark, 13 Wall. 311; Newman v. Alvord, 51 N. Y. (6 Sick.) 189; 10 Am. Rep. 588, do not conflict with this rule; see Lea v. Wolff, 1 Pars. Sup. Ct. 626; 46 How. 157; 15 Abb. N. S. 1.

A natural product of a peculiar nature, such as a mineral water found in a spring upon a person's land, may be the subject of a trade-mark; and the owner will be protected in the exclusive use of a name given to it and employed as a trade-mark; and, therefore, the word "Congress," in the phrases "Congress Water," and "Congress Spring Water," is a legiti mate trade-mark, which will be protected by the courts. Congress & Empire Spring Co. v. High Rock Congress Spring Co., 45 N. Y. (6 Hand) 291; 6 Am. Rep. 82; 10 Abb. N. S. 348. The surname of an individual may be used as a trade-mark to designate or distinguish a machine manufactured by him; and another person of the same surname will not be permitted to use it in such a way as to deceive the public, and to deprive the other party of the benefit of the notoriety and market which his machines had gained. Howe v. Howe Machine Co., 50 Barb. 236; see also Curtis v. Bryan, 2 Daly, 312; 36 How. 33; Croft v. Day, 7 Beav. 84; Sykes v. Sykes, 3 Barn. & Cress. 541.

One who coins a new word and uses it to designate an article made or sold by him will be entitled to its exclusive use as a trade-mark. Caswell v. Davis, 4 Abb. N. S. 6; 35 How. 76; Wolfe v. Goulard, 18 id. 64; Burnett v. Phalon, 5 Abb. N. S. 212; 1 Abb. Ct. App. 267; 3 Keyes, 594; 3 Trans. App. 167; Davis v. Kendall, 2 R. I. 569.

But no manufacturer can acquire a special property in an ordinary term or expression, the use of which as an entirety is essential to the correct and truthful designation of a particular article or compound. Town v. Stetson, 3 Daly, 53; Corwin v. Daly, 7 Bosw. 222; Choynski v. Cohen, 39 Cal. 501.

Figures and numbers may be used as a part of a trade-mark. Boardman v. Meriden Britannia Co., 35 Conn. 402; Gillott v. Esterbrook, 48 N. Y. (3 Sick.) 374; 8 Am. Rep. 553; 47 Barb. 455.

As to the persons who may acquire a right to a trade-mark it is well settled that not only citizens of this country, but alien friends will be equally protected. Taylor v. Carpenter, 2 Sandf. Ch. 603; 3 Story's C. C. Rep. 450; 2 Wood. & M. 1; Coats v. Holbrook, 2 Sandf. Ch. 586; State v. Gibbs, 56 Mo. 133.

Any one may invent or adopt and use a trade-mark, and advertise or introduce it to the public as his own. But, under the recent statute of July 8, 1870 (U. S. Stat. at Large, 198,

Good-will.

Closely allied to trade-mark, is the good-will of a business, which also is now considered as properly part of the assets of a

trader (z). (400)

(2) Johnson v. Hellely, 2 De G. J. & S. 446.

ch. 230, §§ 77-84), such trade-mark must be duly recorded to render its provisions available. To entitle a person to the protection of a trade-mark it must be clear that it is an honest mark, and that an honest use is made of it; for if it appears that such mark is fraudulent, or that a fraudulent use is made of it, the courts will refuse to interfere for its protection. Fetridge v. Wells, 4 Abb. 144; 13 How. 385; Samuel v. Berger, 4 Abb. 88; 24 Barb. 163; 13 How. 342; Hobbs v. Francais, 19 id. 567; Partridge v. Menck, How. App. Cas. 547; Fowle v. Spear, 7 Penn. L. J. 176; Heath v. Wright, 3 Wall. Jr.; Phalon v. Wright, 5 Phila. 464; Palmer v. Harris, 60 Penn. St. 156.

To constitute an infringement of a trade-mark it is not necessary that the imitation should be so close as to deceive a person who sees the original and the imitation side by side, for it will be sufficient if the resemblance is such that ordinary purchasers, proceeding with ordinary caution, would be likely to be deceived. Seixo v. Provezende, L. R., 1 Ch. App. 192;

1 Jur. (N. S.) 215; 14 W. R. 357; 14 L. T. (N. S.) 314; Partridge v. Menck, 2 Barb. Ch. 101; How. App. Cas. 558; 2 Sandf. Ch. 622; Coffeen v. Brunton, 4 Mc Lean, 516; Walton v. Crowley, 3 Blatchf. C. C. 440; Bradley v. Norton, 33 Conn. 157; Filley v. Fassett, 44 Mo. 173; Hostetter v. Vowinkle, 1 Dillon, 329.

Where the imitation is not close, but is such that ordinary purchasers who were paying ordinary attention to their purchases would not be deceived, there is no infringement. Ib.; Fetridge v. Wells, 4 Abb. 144; 13 How. 385; Calladay v. Baird, 4 Phila. 139; Swift v. Day, 4 Rob. 611; Falkinburg v. Lucy, 35 Cal. 52; Rowley v. Houghton, 2 Brewst. (Pa.) 303.

The remedy given by law to an injured party for an infringement of a trade-mark is by an action for the recovery of damages, or by injunction to restrain the continuance of the injury. As to remedy by action see Thomson v. Winchester, 19 Pick. 214; Marsh v. Billings, 7 Cush. 322; Lemoine v. Gauton, 2 E. D. Smith, 343; Derringer v. Plate, 29 Cal. 292.

As to remedy by injunction see Hostetter v. Vowinkle, 1 Dill. 329; Rowley v. Houghton, 7 Phila. 39; Burnett v. Phalon, 1 Abb. Ct. App. 267; 5 Abb. N. S. 212; 3 Keyes, 594 ; 3 Trans. App. 167; Wolfe v. Burke, 7 Lans. 151; Wolfe v. Barnett, 24 La. Ann. 97; Coats v. Holbrook, 2 Sandf. Ch. 586; Taylor v. Carpenter, 11 Paige, 292; 2 Sandf. Ch. 603; Morrison v. Case, 9 Blatchf. 548; Ellis v. Zeilin, 42 Ga. 91; McCartney v. Garnhart, 45 Mo. 593.

Where it is clear that there has been an infringement by the defendant of the plaintiff's trade-mark, it will not be any defense that the defendant's goods are as good as those made or sold by the plaintiff. Coats v. Holbrook, 2 Sandf. Ch. 586; Taylor v. Carpenter, 11 Paige, 292; Thomson v. Winchester, 19 Pick. 214.

(400) In the sale of property or of any kind of trade, profession, or business, it is quite common for the vendor to sell the " good-will" of such property or business; and sometimes, if not generally, to agree not to establish or carry on a rival business at the same place. Such agreements, when founded upon a sufficient consideration, are valid, and will be enforced unless the restraint is so unlimited as to territory as to be void.

The good will of a business may be valuable, and it may form, in whole or in part, the subject-matter of a contract of sale, therefore a representation as to its value is material, and a misrepresentation, knowingly made by the vendor, is a fraud upon the purchaser which will entitle him to rescind the contract if it is an entire one. Creuss v. Fessler, 39

Cal. 336.

A party who has sold the good-will of a business for a valuable consideration will be restrained from holding himself out as continuing his former business. Elliott's Appeal, 60 Penn. St. 458; Spier v. Lambdin, 45 Ga. 319.

An action lies to recover the sum agreed to be paid for the "good-will" of a physician's practice. Hoyt v. Holly, 39 Conn. 326.

A good-will is held to be the mere probability that the old customers will continue to come to the old place; but the good-will is the good-will as the vendor used it, and is only co-extensive with the business carried on. Bradford v. Peckham, 9 R. I. 250.

* CHAPTER XXV.

PROPERTY IN THINGS PERSONAL.

[*586]

HAVING in our last chapter distinguished the various kinds of personal property, we now come to deal with the nature of the interest which may be had in them. As to chattels real, or interests in land, nothing need be added to what has already appeared.

As to all things in possession of an inanimate nature, as plate, money, jewels, and the like, as also fixtures and plants when severed from all connection with the soil, we need only remark that they cannot be removed out of the owner's possession without his own act or consent, or, at least, without doing him an injury, which it is the business of the law to prevent or remedy.

But with regard to the property in animals, which have in themselves a principle and power of motion, and (unless particularly confined) can convey themselves from one part of the world to another, there is a great Property in animals. difference made with respect to their several classes, not only in our law, but in the law of nature and of all civilized nations. (401)

(401) The common law of England and of this country regards animals as a subject of ownership or property, either qualified or absolute; and they are divided into two principal classes, one of which is wild, and the other tame. Animals of a wild nature, at liberty and unreclaimed, are not subjects of absolute property. Tame animals are subjects of absolute property. An animal, once wild, may become tame, and thus become a subject of ownership like other tame animals. So wild animals may be captured, and thus become the property of the captor; or, they may be killed and thus become property.

The mere pursuit of a wild animal is not alone sufficient to confer ownership upon the pursuer; and he must have wounded the animal, or in some other manner have brought him within his control. Pierson v. Post, 3 Caines, 175; Buster v. Newkirk, 20 Johns. 75; Young v. Hichens, 6 Ad. & El. (N. S.) 606.

If the animal is brought within the pursuer's control, as by mortally wounding it, or by inclosing it in a net, or otherwise securing it so as to deprive it of its natural liberty, he may acquire a property in it. Ib.

Bees are of a wild nature, but they may be reclaimed and hived, and thus become the property of the possessor. And if a swarm of reclaimed bees leave the hive of the owner, his property in them will continue as long as he can keep them in sight and identify them; and if they enter the tree of another person, and a stranger cuts the tree and takes the bees, he will be liable to the owner whose hive they left. Goff v. Kilts, 15 Wend. 550. Merely finding a tree on the land of another person, in which tree there is a swarm of bees, and marking the tree with the initials of the finder's name, is not reclaiming the bees, nor does it vest in him any title to the bees. Gillet v. Mason, 7 Johns. 16. Wild bees in a bee tree belong to the owner of the land upon which such tree stands. Ferguson v. Miller, 1 Cow. 243; Goff v. Kilts, 15 Wend. 550; Adams v. Burton, 43 Vt. 30; Idol v. Jones, 2 Dev. L. (N. C.) 162; Cock v. Weatherby, 5 Smedes & Marsh. 333.

If a person discovers a swarm of bees in a bee tree upon the lands of another person, who gives him permission to take the bees, and he then marks the trees with his initials, but does nothing more, this will not enable him to recover the value of the bees as against a third person who afterward took them by the permission of the owner of the tree. Ferguson v. Miller, 1 Cow. 243. But, if the finder of the bees is engaged in the act of cutting down the tree, by the permission of the owner, and while thus engaged, he is driven away from such work and prevented from cutting down the tree, by a third person, who, subsequently to the first license, obtained a license from the owner of the tree to take the bees, but without revoking the first license, the person first beginning to cut the tree will have