“Aspirin”—A Common Name
“Aspirin” as a trademark will no longer exist if the recommendation of the Examiner of Interferences of the United States Patent Office is upheld, as it probably would be, should the matter be taken to the courts. The opinion of the Patent Office was the result of a petition by the United Drug Company in the case of that company against the Bayer Company, or, as it was called at the time the suit was brought, the Farbenfabriken of Elberfeld Company. The stand taken by the Patent Office is directly in line with that that has been held in this and other cases by The Journal, which has for years insisted that it was against public policy to permit patentees to extend the seventeen-year monopoly, which the patent laws grant, to a perpetual monopoly by the simple device of obtaining a trademark for the name of the thing patented. It is a fundamental principle in law that “no one can have a monopoly in the name of anything.” This, of course, has been recognized and admitted even by those manufacturers who have attempted to invoke the trademark laws to obtain an unwarranted advantage.
The manufacturers of aspirin have held that the chemical name “monoaceticacidester of salicylic acid” was the true name of the patented article, and was the only name which became public property when the patent right expired. The Patent Office points out, however, that for years the only name that the public ever saw on the brand of monoaceticacidester of salicylic acid made by the holders of the patent on this product was “Aspirin.” The Examiner of Interferences in his decision points out that, previous to 1915, the Bayer Company sold no tablets to the retail-purchasing public, but marketed its product as a powder; further, that it did sell vast quantities of the powder to tablet-makers, who sold “Aspirin Tablets,” and that the consuming public knew the product only by the name “Aspirin.” This name, then, had a significance to the purchaser, similar to that of the word “quinin” on a package of quinin tablets, or the word “calomel” on a package of calomel tablets. As the Patent Office says: “In other words, the prima facie significance of this word ‘Aspirin’ to such purchasers was that of a name”—and as a name it is “necessarily incapable of exclusive use by any one.”
The Patent Office’s decision also brings out the fact that, until the owners of the aspirin patent commenced making tablets themselves, the aspirin tablets on the market were not uniform, and that this lack of uniformity was a fraud on the public which the owners of the aspirin patent should have prevented. The concern did prevent it when it began to make the tablets itself, but maintained in its contention against the United Drug Company that it was unable to control the matter previously—a contention to which the Patent Office gives short shrift. It is further pointed out that the Bayer Company evidently recognized the weakness of its contention by the emphasis it placed through its advertising on the “Bayer Cross.”
When the Bayer Company began manufacturing its own aspirin tablets, it made a pretense of complying with the letter of the law, while violating its spirit, by placing on the label under the word “Aspirin,” the statement that “the monoaceticacidester of salicylic acid in these tablets is the reliable Bayer manufacture.” Says the Patent Office: “With regard to the expression ‘monoaceticacidester of salicylic acid,’ a mere inspection of it is sufficient to apprise any one of its inherent unsuitability for use as a name by the lay purchasing public.” This attempt on the part of the company to “beat the devil around a stump” tended, in the opinion of the Patent Office decision, “to show that the respondent was familiar with the methods of some modern traders to meet the trend of the law.” And, discussing such methods, the Examiner of Interferences says: “A very popular one is for a trader to seemingly bend to the necessity of the situation by placing on the label a notation which in theory, but not in practice, may be used by the public to identify the article after the monopoly has expired. To the examiner this practice seems to be merely a manifestation of that keen commercial instinct which endeavors to keep just ahead of the law. This instinct is fairly common in traders, and is clearly disclosed in trademark infringement cases.”
Summed up, the decision is to the effect that, as in any case prior to 1915, the public had been driven to look on the word “Aspirin” as the name of a thing, and as the Bayer Company had not used the word as a “trademark” within the meaning of the law, the Patent Office recommends that the registration of “Aspirin” as a trademark be canceled. If no appeal is taken from this decision, or in case an appeal is taken, should the opinion be sustained, the attempt on the part of the patentees of aspirin to get a perpetual monopoly on their product through the trademark laws will have been definitely defeated.—(Editorial from The Journal A. M. A., Jan. 11, 1919.)
“Aspirin Bayer” and the Sterling Products Company
A correspondent, who asks that his name be not published, writes:
“Your editorial on ‘Aspirin or Acetylsalicylic Acid—An Important Court Decision’ is timely. Too often, I fear, physicians forget ‘what’s in a name.’ I have been told that the Sterling Products Co., the present owners of the Aspirin-Bayer rights, are manufacturers of other ‘patent medicines.’ Are they interested in the Winthrop Chemical Company, which firm seems to be using the much vaunted ‘Bayer Cross’ on the labels of the products formerly imported from Germany by ‘The Bayer Company’? If you answer this in The Journal, kindly omit my name.”
The recent history of Bayer & Co., is somewhat as follows: Shortly after the United States entered the war, the Alien Property Custodian took over the property of Bayer & Co. (Inc.) and its subsidiary, the Synthetic Patents Co. In his report to congress the Custodian said: