A Trade-Mark Must Not Be a Form, a Color, a Shape, or a Material
It is clear that a trade-mark must be a "mark"—not a box, or an envelope, or container of any kind. In a case where it was sought to register a drum-shaped box used to contain "Drum Collars", it was held that, "if such claims were allowed, the forms and materials of packages to contain articles and merchandise would be rapidly taken up, and appropriated by dealers, until some one bolder than the others, might go to the very root of things, and claim the primitive brown paper and tow strings."
A product itself cannot be registered as a trade-mark, for the "mark" must be different and separate from the thing marked.
One of the oldest trade-marks in existence. Used for generations as a trade-mark of Johann Maria Farina toilet preparations.
It would be unfair to give an exclusive right to use any particular color to an individual, consequently a color is not a valid trade-mark.
A seed-grower, selling his product in bags, applied for registration of a red bag as a trade-mark, but registration was refused.
A fountain pen manufacturer was refused registration for a trade-mark for fountain pens, consisting of a red feed bar contrasted with a black reservoir of hard rubber. The applicant stated that the feed bar was colored red in the manufacturing process, and that it was composed of rubber made by a special formula. The Court of Appeals held that registration of this device would give the applicant a virtual monopoly of this feature.
The Underwood Typewriter Co. applied for registration of the face-plate of their machine as a trade-mark. It is a principle of the trade-mark law that a part of a machine, or the form of an article, cannot be a valid trade-mark. Reporting this case, the Bulletin of the United States Trade-mark Association for January, 1908, says:
"The applicant, in the instance under adjudication, sought to avoid this principle of law, by contending that the case did not fall within that doctrine, for the reason that the plate which he sought to register was not really a part of the machine, since it could be removed without changing the shape of the machine, or interfering with its operation, or altering its structure. It was held, however, that while the plate performed none of the mechanical functions of the machine it was nevertheless a part of the machine as actually constructed, and was as essential as the frame itself to the production of a commercial article. It was necessary to give a finished appearance to the machine, which would not be salable without it. To recognize the applicant's right to a trade-mark in that feature of the machine, would enable the applicant to prevent the manufacture of its machines as constructed to-day, after all the patents covering it had expired, since no salable machine could be produced without infringing the trade-mark."