would not be an infringement. To constitute an infringement there must be a publication of the stolen matter.

SECTION III.

TRADE MARKS.

The office of a trade-mark is to point out the true source, origin or ownership of the goods to which the mark is applied or to point out and designate a dealer's place of business, distinguishing it from the business locality of other dealers. A trade-mark may be applied to a manufactured or a natural product. In general, a person may adopt for a trade-mark whatever he chooses, but whether he can insist upon the exclusive right to its use will depend a good deal upon what he adopts. If the name, device or designation is purely arbitrary or fanciful, he has the right to the exclusive use of the same. "Only such names, words and devices as may be held to be adapted to point out the true source and origin of the goods upon which such trade-mark is used can constitute a valid trade-mark. Such words as are merely descriptive of the kind, nature, character, or quality of the goods cannot be exclusively appropriated and protected as a trade-mark. But a valid trade-mark may consist of some novel device, arbitrary character or fanciful word, applied without special meaning, which by use and reputation comes to serve the same purpose. Such words and devices are held to indicate sufficiently the true source and origin of the goods, without particular addition of the manufacturer or dealer." Our supreme court has held the words "Marvel", "Clymic", and "Bethesda" to be such arbitrary and fanciful words as to constitute them a good trade-mark, while the words "Lackawanna Coal", "Rheumatic Liniment," "Celebrated Liniment", "Liquid Glue," "Lake Shore Mackeral” have been held to be descriptive and could not be appropriated as a trade-mark. While the name of the maker or originator of goods is a good trade-mark and cannot be used by another of different name, still a person cannot, as a general thing, acquire an exclusive right to his own name as a trade-mark as against others of the same name who may see fit to engage in the same line of business, but the latter must not resort to any artifices or devices in connection with the use of their name calculated to lead the public to believe that their goods are the goods of another bearing a like name.

Usually, a geographical name, as a name of a city or county, cannot be appropriated as an exclusive trade-mark, yet if such name has been used as a trade-mark, and others are trying to pawn off their goods as the goods of another, by using a similar description or mark, courts will grant relief, but this would be on the ground of deceit and not because of the trade-mark being infringed. Thus, in an important United States supreme court case the court said: "The complainant cannot have an exclusive property in the word "St. Louis" as a trade-mark, or an exclusive right to designate its beer as "St. Louis Lager Beer", yet as its beer has always been made at that city, its use of the designation upon its labels is entirely legitimate; and if the defendant is diverting complainant's trade by any process designed to mislead its customers, whether these acts consist in simulating its labels or representing in any other way his products as those of the complainant, the latter is entitled to protection." In such cases, in order to avoid liability, the second party must so describe his goods as not to make a person of ordinary intelligence believe that they are the goods of another, and it seems a trade-mark of a geographical name in this country is not even protected if used by one at the designated place and infringed and used by a person living at a different place, but the English rule seems to be otherwise. However, in mans such cases there is also fraud or deceit and an action can be maintained on this ground.

The subject of trade-marks logically falls into three subdivisions, 1) Trade-marks under the United States law, 2) trade-marks under the state law, 3) and trade-names, and unfair competition, each of which will be considered.

Trade-marks under the United States Law.-Trademarks under the United States law are of no very great importance, as congress has no power under the constitution to pass a general trade-mark law. At most, its power is limited to trade-marks used in foreign commerce and commerce with the Indian tribes. The federal law being of so limited application, we shall not elaborate on the same but will content ourselves with giving the procedure for obtaining a trademark under the federal law:

A trade-mark may be registered by any person, or corporation residing in the United States or in any foreign country which grants similar privileges to citizens of this

country, and who has the exclusive right to use a trade-mark and uses the same in commerce with foreign nations or the Indians tribes. A trade-mark may also be registered by a citizen of this country when desiring the protection of a trademark in a foreign country and that foreign country requires that the trade-mark shall first be registered in this country. Application should be made to the Commissioner of Patents, signed by the applicant. The applicant must also make a statement specifying name, domicile, location and citizenship of the party applying, and, if a corporation, stating under what laws it was incorporated; 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 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. The applicant must also make a written verified declaration to the effect that he has at the time the right to use the trade-mark sought to be registered and that no other person, firm or corporation has a right to use the same, or anything such a near resemblance thereto as might be calculated to deceive; that such trademark is used in commerce with foreign nations or Indian tribes, and that the descriptions or fac-similes presented for registry truly represent the trade-mark sought to be registered. A pen drawing is also required, made with India ink alone on smooth white paper to the thickness of three sheets of Bristol board. Every line and letter, signature and shading must be black. The sheet must be 10x15 inches and a margin of one inch must be left on all sides, leaving the “sight" 8x13 inches. If the view is longer than this, the drawing may be turned over at the end. The signature of the proprietor and witnesses must be in the lower left hand corner but not within the 8x13 inches. The drawing must not be folded. A fee of twenty-five dollars should accompany the application. The trade-mark is then examined and if allowable, is registered; if not, the applicant is notified why it cannot be allowed. The protection remains in force for thirty years, and may, upon the payment of another fee, be renewed at any time during the six months prior to the expiration of the original registry, for thirty years longer, except where the trade-mark is applied to articles not made in this coun

try and upon which it receives protection under the laws of a foreign country for a shorter period, in which case it ceases to have force in this country when it ceases to be operative in the foreign country. A trade-mark may be assigned, but such assignment must be registered in the patent office within 60 days after its execution, otherwise it is void as to subsequent purchasers or mortgagees for value and without notice.

A label or print may also be registered under the federal law and such registry is good for twenty-eight years and may be continued for fourteen years longer. A label is defined as "an artistic representation or intellectual production, embraced or stamped directly upon the articles of manufacture or upon a slip or piece of paper or other material to be attached in any manner to manufactured articles, or to bottles, boxes and packages containing them, to indicate the contents of the packages, or name of the manufacturer, or place of manufacture, or quality of goods, etc." A print is not attached to the article itself.

Trade-marks under the state law. -The proceeding under our statutes is very simple.

How filed and recorded. -Any person, association, or union of workingmen which has heretofore adopted or used, or shall hereafter adopt or use any label, trade-mark, term, design, device or form of advertisement for the purpose of designating, making known or distinguishing any goods, wares merchandise, or other product of labor as having been made, manufactured, produced, prepared, packed, or put on sale by such person, association or union or by a member or members thereof may file the same for record in the office of the secretary of state by leaving two copies, counter-parts or facsimiles thereof with said secretary and by filing therewith a sworn statement specifying the name of the person, association or union on whose behalf such label, trade-mark, term, design, device or form of advertisement is to be filed, the class of merchandise and a separate description of the goods to which the same has been or is intended to be appropriated, that the party on whose behalf such label, trade-mark, term design, device or form of advertisement is to be filed has the right to the use of the same, and that no other person association, union or corporation has such right either in the identical form or in any such near resemblance thereto as

may be calculated to deceive, and that the copies, counterparts or fac-similes filed therewith are correct. The papers so required to be filed shall be recorded in a book kept for that purpose, and there shall be paid the secretary of state for such recording and filing one dollar.

Certificate; is evidence of adoption of trade-mark.—Said secretary shall deliver to the person, association or union so filing or causing to be filed any such label, trade-mark, term, design, device or form of advertisement so many duly attested certificates of the filing and recording of the same as may be desired, and shall receive for each such certificate a fee of one dollar. Any such certificate shall in all suits and prosecutions arising out of or depending upon any rights claimed under such label, trade-mark, term, design, device or form of advertisement be sufficient proof of the adoption thereof. Infringements. Every person, association or union adopting or using a label, trade-mark, term, design, device or form of advertisement as above provided may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof, and courts of competent jurisdiction shall grant injunctions to restrain such manufacture, use, display or sale, and may award the complainant such damages resulting from such manufacture, use, sale or display as may be deemed just and reasonable by such court, including all profits derived from such wrongful manufacture, use, display or sale; such court shall also order that all such counterfeits or imitations in the possession or under the control of any defendant be delivered to an officer of the court to be destroyed. In case such association or union is not incorporated, such actions may be commenced and prosecuted by an officer or member of such association or union on behalf of and for the use of such association or union. Our statutes also provide for a penalty and imprisonment in the county jail for counterfeiting or using a label or trademark without authority.

Trade names and unfair competition.-Closely allied to the infringement of a trade-mark, is the simulation of another's trade-name or business sign. This is often termed "unfair competition". A person has no property right in a tradename not registered according to statute, but an action for damages for the wrongful use of a trade-name may be brought which is an action for deceit. The fraud gives rise to the