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

by J. Walter Thompson Company

Conditions of Registration

An individual or a corporation has a right to register a trade-mark under the United States law if the trade-mark for which registration is sought belongs to the applicant and is used by him:—

1st. In commerce among the several states;

2nd. Or, in commerce with foreign nations;

3rd. Or, in commerce with the Indian tribes;

Provided the owner of the trade-mark resides within the territory of the United States (which includes all territory under United States control), or has a manufacturing establishment situated in United States territory, or resides in any foreign country which affords, by treaty, similar privileges to citizens of the United States.

The law states, as a condition of validity, in explicit terms that the trade-mark must not only belong to the applicant, but must be "used by him." A trade-mark cannot be registered until it has actually been used on goods, and the use must be continued long enough, and must be of such a nature as to indicate a genuine intention on the part of the owner to adopt the trade-mark as a permanent accessory of his business.

The reason for this is evident. If any citizen could appropriate and sequester a trade-mark by paying the registration fee of ten dollars, without an intention of using it for its legitimate purpose, it does not take much imagination to foresee a Trade-Mark Trust, with most of the desirable trade-marks in the hands of a monopoly, to be farmed out at a profit.

To be Registrable A Trade-Mark Must Be:

1st. An arbitrary symbol, or word, or words, or a combination of a device and wording, not obviously descriptive of the commodity to which it is to be applied.

2nd. Unlike any other trade-mark, already in use, and applied to the same class of goods. It must not resemble the trade-mark of a competitor, or of a potential competitor, to such an extent that the buying public is likely to be deceived or confused by the resemblance.

3rd. Used in lawful trade.

4th. Of such a character that it may be affixed, printed upon, woven, sewed, branded or otherwise impressed upon the product with which it is used, or upon the package or container of the product.

A Trade-Mark Must Not Be:

1st. A portrait of a living individual unless the application for registration is accompanied by the written consent of the individual whose portrait is used.

2nd. Scandalous or immoral matter of any description.

3rd. The flag or coat of arms of the United States, or of any state, or of any municipality, or any of the insignia thereof.

4th. The insignia of the American National Red Cross Society.

5th. The flag or coat of arms of any foreign nation.

6th. Any design or picture which has been adopted by a fraternal society as its emblem.

7th. A design or wording identical with a registered or known trade-mark owned and in use by another, and appropriated to merchandise of the same descriptive qualities, or which so nearly resembles a registered or known trade-mark owned and used by another, and appropriated to merchandise of the same descriptive qualities, as to be likely to cause confusion or mistake in the mind of the public, or to deceive purchasers.

8th. Any mark which consists merely in the name of an individual, firm, corporation, or association, unless said name is written, printed, impressed or woven in some particular or distinctive manner, or is used in connection with a portrait of the individual.

9th. Any arrangement of words or devices descriptive of the goods with which they are used, or of the character or quality of such goods. In other words, a trade-mark must not be an advertisement in the ordinary sense of the word.

10th. Any geographical name or term.

11th. A misrepresentation of the quality, composition, character, origin, or nature of the commodity with which it is used.

This looks like a problem in geometry, but it isn't.

This diagram shows at a glance how Trade-Mark Advertising draws a straight line between the manufacturer and the consumer.

The manufacturer who doesn't advertise has to depend on the jobber and the retailer. In the majority of cases his name never reaches the consumer. His trade is necessarily precarious, and he is constantly in danger of the kind of cut-throat competition that shaves the lowest margin of profit to nothing.

But the manufacturer who advertises has his name and the name of his goods on the lips of millions of people. The retailer who attempts to keep advertised goods from selling is like the man who cuts off his nose to spite his face. People will go elsewhere and get what they want.

We would like to talk with you about advertising. Among our clients are some of the largest and most successful advertisers in the United States. It will cost nothing to have a talk with us—and we may be able to suggest an idea or plan that will simplify your sales problem.

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

A special provision of the Act of 1905 legalized all trade-marks that had been in exclusive use by the applicant for ten years prior to the passage of the act, and this provision applies even to trade-marks of ten years' standing that, because of their character, could not be registered under the act. The language of the act dealing with this subject is as follows:

"Nothing herein (in the Act of 1905) shall prevent the registration of any mark used by the applicant or his predecessors, or by those from whom title to the trade-mark is derived, in commerce with foreign nations or among the several states, or with Indian tribes, which was in actual and exclusive use as a trade-mark of the applicant or his predecessors from whom he derived title for ten years next preceding the passage of this act." (Section 5, Act of 1905.)

"It Bends with your Foot."

The trade-marks of the Red Cross Shoe are the Red Cross shown below and the design shown above.

There are many trade-marks registered under this ten years' clause.

Manufacturers are prohibited from using the insignia of the Red Cross Society as a trade-mark, but there is a Red Cross Shoe, and the products of the well-known druggists' specialty house of Johnson & Johnson bear a Red Cross symbol. In both cases, their right is based on long and continuous use antedating the act of 1905, which especially exempts such cases.