347. Registration of Trade=Marks. In 1906 the United States Congress passed the present statute relating to the registration of trade-marks. The act provides that the owner of a trade-mark used in commerce with foreign nations, the several states, or the Indian tribes may register said trade-marks by filing the same with the Commissioner of Patents. A trade-mark is acquired in the same manner as at common law. The United States act does not change the method of acquiring trade-marks, nor does it designate what constitutes trade-marks. It simply permits a person to register a trade-mark already acquired. In case of dispute, the owner has the advantage of a public record of his claim, and until he has lost his right in the trade-mark to some one who proves to have a better right, the registration is prima facie evidence of ownership.
Before registering a trade-mark, the owner is required to file with the Commissioner of Patents at Washington, an application showing the nature of the trade-mark, on what goods used, and when acquired. A fee of $10.00 is required. The owner must file a verified statement that he is the owner of the trade-mark sought to be filed. Trade-marks which consist of the name of an individual, firm, or corporation, or words descriptive of the articles manufactured or sold, a geographical term, or a photograph of any living person, except with such person's consent, shall not be registered as trade-marks. When such application is filed, if the Commissioner of Patents finds that it is proper to register the same as a trade-mark, he publishes the mark in the official gazette. Anyone may oppose the registration by filing objections within twenty days after said publication. If no objection is filed, the trade-mark is registered, and a certificate of registration is furnished the applicant.
If objection to the registration of a trade-mark is made, the applicant is notified by the Commissioner of Patents. If the trade-mark interferes with another, or is descriptive of the article to which it is to be applied, the commissioner will refuse to register it. A person whose application for registration of a trade-mark has been refused by the Commissioner of Patents may appeal from the decision of the Commissioner of Patents by filing applications of appeal with the Court of Appeals of the District of Columbia.
Registered trade-marks may be assigned in connection with the good will of the business in which the trade-mark is used. Notice of such assignment must be filed with the Commissioner of Patents within three months from the time the assignment is made, to render it valid as against other innocent purchasers. Certificates of registration shall be effective for twenty years, and may be renewed for like periods upon payment of the registration fee.
After a trade-mark has been registered, anyone who considers himself injured by said trade-mark may file complaint with the Commissioner of Patents, and if the latter determines that there is an infringement, or that someone has a prior right to the trade-mark, the registration may be cancelled. Notice of registration of a trade-mark is given the public by publishing the words, Registered U. S. Patent Office, with the trade-mark.
Most of the states have statutes making it a crime falsely to use the trade-mark or brand of another company. The use of labels by trade unions is protected in this manner in several states.
WILLS
348. Will Defined. A will has been defined to be a "disposition of real property to take effect after the death of the testator." Originally, the term will applied only to dispositions of real property, and the term testament applied to dispositions of personal property. At present, the terms will and testament are not uncommonly used. But the original limitation of the term, will, is no longer commonly recognized. The term, will, is now used to describe a disposition of personal as well as real property to take effect at the maker's death.
349. Names of Parties and Terms Commonly Used in a Will. The person who makes a will is called the testator or devisor. The term testator is more commonly used than the term devisor to designate the maker of a will. The term devise is used to designate the giving of real property. If A desires to give a farm to B by will, the language used in the will is, "I, A, devise to B my farm." Technically, the term devise means the giving by will of real estate, but it is commonly used to designate the giving by will of personal property as well. The term bequeath is used to designate the giving of personal property by will. If A desires to give by will a watch to B, he uses the language, "I, A bequeath to B my watch." The beneficiary, or person designated in the will to receive real property, is called the legatee.
350. Origin and Nature of Wills. At common law, a person was permitted to give by will a portion of his personal property. He was not permitted to give real property by will. In England, the right to give real property by will was given by statute. The law of this country has always recognized the right to give real as well as personal property by will. It is not regarded as a right but rather as a privilege extended to an owner of property. This privilege is controlled by the legislatures of the states.