A trade-mark has been defined as "the name, symbol, figure, letter, form or device, adopted and used by a manufacturer, or merchant, in order to designate the goods that he manufactures, or sells, and distinguish them from those manufactured or sold by another; to the end that they may be known in the market as his, and thus enable him to secure such profits as result from a reputation for superior skill, industry, or enterprise."7

Unlike patents and copyrights, the right in a trade-mark is given by the common law instead of by statute.

"As a general rule, any name, mark, symbol, or device which is capable, when known in the market, of distinguishing one person's goods from those of another, and which other persons cannot use with equal truth as applied to their own goods, may be appropriated as a trade-mark.8 But no sign, symbol, or form of words can be appropriated, as a valid trademark, which, from the fact conveyed by its primary meaning, others may employ with equal truth and with equal right for the same purpose.9 Such words, which may not be monopolized as technical trademarks, may by use acquire a secondary meaning, as designating the goods of a particular person, which will entitle him to protection against their use by another upon the ground of unfair competition.10 The use of descriptive and geographical terms furnishes familiar illustrations of this principle.

7 Upton on Trade-Marks, p. 9.

8 Shaver vs. Shaves, 54 Iowa, 208,

37 Am. Rep., 194.

9 Babbitt vs. Brown, 68 Hun. (N. Y.), 515.

Words or phrases which are purely arbitrary or fanciful as applied to the goods in question may constitute a valid technical trade-mark.11 Words and phrases of this class are those which do not by their usual meaning, denote origin, ownership, quality, materials, or grade, but which by mere application and association with a particular class of goods have come to indicate ownership or origin.12 The word 'star' as applied to skirts, and other furnishing goods,13 'Ideal' as applied to fountain pens,14 'Pride,'15 or 'Elk' as applied to Cigars,16 and other similar words or phrases,17 are illustrations of this class of trademarks." 18

Devices or symbols are the most usual forms of trade-marks. Letters or initials may constitute trademarks,19 as may also numerals, if used arbitrarily, and not to designate grade or quality.20 Color,21 form or size,22 cannot be protected in a trade-mark. It is well settled that every one has the absolute right to use his own name honestly in his own business, even though he may thereby incidentally interfere with and injure the business of another having the same name. In such case the resulting inconvenience or loss is damnum absque injuria.

10 Draper vs. Skerrett, 116 Fed.

Rep., 206.

11 Selchow vs. Baker, 93 N. Y., 59,

45 Am. Rep., 169. 12 Lorillard vs. Pride, 28 Fed. Rep.,

434. 13 Hutchinson vs. Blunberg, 51

Fed. Rep., 829. 14 Waterman vs. Shipman, 130 N.

Y., 301. 15 Hier vs. Abrahams, 82 N. Y.,

519, 37 Am. Rep., 589. 16 Litchtenstein vs. Goldsmith, 37

Fed. Rep., 359.

17 Burt vs. Tucker, 178 Mass., 493,

86 Am. St. Rep., 499.

18 Lever vs. Smith, 112 Fed. Rep.,

998; Noel vs. Ellis, 89 Fed. Rep., 978.

19 Motley vs. Dawman, 3 Myl. & C.

I; Lawrence Mfg. Co. vs. Tennessee Mfg. Co., 138 U. S., 537.

20 Burton vs. Stratton, 12 Fed.

Rep., 696.

21 Coats vs. Merrick Thread Co., 149

U. S., 562. 22 Harrington vs. Libly, 14 Blatcilf.

"It may be that a trade is of such a nature that the products of that trade, when used in connection with a particular trade-name, have become almost indissolubly connected with the business carried on by a certain manufacturer who has created that particular business. But still, even though that may be so, and even though the nature of the trade must be taken into consideration in an action for an injunction, there never has been a case yet where an order has been made restraining a man altogether from carrying on a particular trade in his own name. Every decision up to the present time has been limited to restraining him from carrying on a trade which has thus become so identified with the business of another person, without taking such steps as any honest man would wish to take to prevent his goods being confounded with the other person's goods which have become so identified with the name." 23

"A person who uses his own name in connection with an article manufactured by him cannot, by extensively advertising such article, acquire the right to an injunction restraining another person with the same name from manufacturing and selling a similar article under his own name, when such other person has been engaged in such manufacture for many years, and there is nothing to indicate a purpose on his part to confuse the two products with each other.24

But although a person may use his name honestly in his business or on his goods, he cannot resort to any artifice or do any act calculated to delude the public into the belief that his business or goods are those of some other person, and thus cause an injury to the latter beyond that which necessarily results from the mere similarity of name."

23 Cash vs. Cash, 86 L. T. N. S., 211. 24 American Cereal Co. vs. Eli Pettijohn Cereal Co., 72 Fed. Rep., 903.

It is unfair competition for a person to adopt as a business name for his goods a personal name other than his own, when the name so adopted is that of a business rival, his predecessor in the field, and has been used by such rival to designate his own goods of a similar character.25

An injunction will be granted on the ground of unfair competition, when the defendant's right to use a name similar to the plaintiff's rests solely on an agreement with a third person of that name permitting its use, and the right to use the name was thus procured for the purpose of deceiving prospective purchasers as to the identity of the goods designated thereby.

Trade-marks may be acquired by any person, either natural or artificial, who is capable of acquiring and possessing other kinds of personal property.26