Things to Know About Trade-Marks: A Manual of Trade-Mark Information

by J. Walter Thompson Company

A Valid Trade-Mark Cannot Be any Arrangement of Words or Devices Descriptive of the Goods with which They are Used, or of the Character or Quality of the Goods

The intent of the law here is to prevent the individual appropriation of general terms descriptive of a class of goods. If it were allowable to register and protect such phrases as "The Best Soap in the World", applied to a certain brand of soap, for instance, it is easy to see that all desirable superlatives and descriptive words would soon be appropriated, to the detriment of other concerns in the same line of trade. Therefore, the law makes strict provision that a trade-mark shall not be descriptive in any sense.

Though this is the intent of the law, in its working out the line seems to be finely drawn in some cases.

"Royal" has been held to be a valid trade-mark for a baking powder on the ground that it has been long used as the name of the total output of a factory, and that it has become to the public mind a designation of origin. It seems difficult for a layman to reconcile this decision with that of another court, which held that "Royal" is not a valid trade-mark for flour, as it indicates "quality and is incapable of exclusive appropriation."

The word "Ideal" is held to be a valid trade-mark for a fountain pen, its use in this connection being fanciful and not descriptive.

The word "Naphtha", used as a name for a soap with naphtha as an ingredient, was held to be descriptive, and therefore not registrable as a trade-mark, to the exclusion of the goods of other manufacturers, although the owners, Fels & Company, of Philadelphia, had advertised it extensively throughout a considerable period of time.

"Fitmeeasy", as applied to corsets, was considered descriptive.

"Maltha" was refused registration for a brand of paving asphalt. It appears that "Maltha" means liquid asphalt and is in general use in the trade with that meaning.

"Elastic Seam", a name used to designate drawers having an elastic seam at the side, is purely descriptive, and was so considered by the court in the case of Scriven v North.

On the other hand, the word "Elastic", when applied to bookcases, is held to be a fanciful word, not descriptive, and is a valid trade-mark.

Application was made by a brewer for the registration of the word "Star", accompanied by a picture of a six-pointed star, as a trade-mark for beer. Opposition by another brewer was filed, and it was shown that both the word "Star" and the symbol had been used for ages in Germany, the home of beer, as a general sign of the brewing business, in the same sense that a striped pole denotes a barber. It was claimed, and the claim was judicially sustained, that both the word "Star" and its symbol are indicative of the brewing business in general and, as such, are common to the trade, and cannot therefore be considered valid trade-marks for beer.

Some Portland Cement Trade-Marks.

A flour manufacturer conceived the idea of selling his product in barrels made by staves of alternately light and dark wood—striped barrels, in fact. He then desired registration for a trade-mark which consisted of a pictorial representation of this form of barrel. It was held that this mark was not registrable, as it was descriptive of the barrel.

"Better than Mother's" Mince Meat was held to be invalid as a trade-mark, as it is obviously indicative of quality.

A complicated and involved trade-mark.

A descriptive word in a foreign language cannot be exclusively, appropriated as a trade-mark. The word "Matzoon" in Armenian means "fermented milk". It was held, in the case of Dadirrian v Yacubian that this word, applied to a preparation of fermented milk, was not a valid trade-mark.

Arbitrary symbols, numbers or words in common use in any line of trade to designate grades, or varieties, of products, are held to have become descriptive by usage. "Lake", "Cylinder", and "New York" are trade names used to indicate qualities of glass. They were refused registration on the ground that they were descriptive appellatives. Note that one of the names, "New York", would have been considered invalid on the ground of being a geographical term.

"A No. 1", "A X No. 1" and "No. 1", used by a plow manufacturer to indicate size and shape of plows, were considered descriptive terms, and, therefore, not valid trade-marks.

While descriptive numbers cannot be registered as trade-marks, it is permitted to register numbers that are used as arbitrary symbols. A celebrated instance of a number used as a trade-mark is "4711" used to designate a line of toilet articles. When the manufacture of the famous "4711" Perfume began, the owner's place of business was at 4711 Glockengasse, in Cologne. The street number "4711" was placed on the label, and it is to-day one of the oldest trade-marks in existence, having been used for about one hundred and twenty-five years. The house at 4711 Glockengasse has long since disappeared, and "4711" is now only an arbitrary symbol.

A manufacturer of hooks and eyes applied for registration of the phrase "Rust? Never!" as a trade-mark. Registration was refused, as the mark was held to be descriptive, indicating that the hooks and eyes would never rust.

The
J. W. T.
Advertising
Service

An advertising agency's claim to an advertiser's consideration must be based on the service that it gives.

Service consists of:—

1st. Information as to advertising mediums, their circulations, rates and qualities.

2nd. Advice resting on actual experience.

3rd. Knowledge of commodities, their composition, prices and methods of sale.

4th. Knowledge of merchandising conditions.

5th. Knowledge of the buying public, its needs, its habits and its income.

6th. The ability to plan advertising campaigns—that is, to grasp the whole subject and work out its details in conformity with a general principle.

7th. Knowledge of trade-marks, their use in advertising, and methods of protecting them from infringement.

8th. The ability to write advertising that will create a desire for the advertised product.

9th. The artistic ability to make advertising attractive.

The service of the J. Walter Thompson Company covers all these functions of an advertising agency.

We have had a continuous experience of forty-six years in planning and carrying out advertising campaigns.

We have reached the stage of development where we know advertising as a swimmer knows the water.

Doesn't it seem good business to entrust your advertising to an agency that really knows?

J. WALTER THOMPSON COMPANY

New York: 44 East 23rd Street
Boston: 201 Devonshire Street
Cincinnati: First National Bank Bldg.
St. Louis: Odd Fellows Bldg.

Chicago: The Rookery
Cleveland: Swetland Bldg.
Detroit: Trussed Concrete Bldg.
Toronto: Lumsden Bldg.

London: 33 Bedford St., Strand

It should be noted that there are valid trade-marks that seem to be descriptive, and which no doubt convey to the purchaser the suggestion of quality, but which are not really descriptive, but merely suggestive. An example of this is "Hydegrade" as applied to fabrics. This word is a combination of "Hyde" (the name of the proprietor) and "Grade". The word, by virtue of its sound, brings to the mind the idea of "high-grade"—a very fortuitous circumstance, doubtless, in the opinion of the owners.

Affixed by using perforated letters. Trade-mark appears on every yard of Brenlin window shades.

Names, descriptive in their nature, and therefore not registrable under the Act of 1905, may, nevertheless, be protected by the law of unfair competition, if the circumstances are such as clearly to indicate that a new user of the name has adopted it for the purpose of trading upon the reputation of an older or more widely known concern.