A Trade-Mark Must Not Be Merely 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 the Portrait of the Individual
A surname cannot be the exclusive property of an individual, because there may be other persons who have an equal right to use the same name. A man by the name of Jones may go into the business of manufacturing cigars, for example, and he may call his product "Jones Cigars" and, by his industry and ability, create a valuable business.
But any other Jones has a right to manufacture and sell cigars, if he feels so inclined, and the first Jones cannot prevent it. It is true that, under the law of unfair trade, he may compel all other Joneses to mark their cigars in some distinctive manner, in order that purchasers may not be misled into the belief that they are buying the product of the original Jones, when such is not the case.
This principle is specifically illustrated in the famous Walter Baker cases, of which a brief resumé is given in another chapter.
An obvious intent of the framers of the Act of 1905 was to discourage the use of the names of "individuals, firms, corporations and associations" as trade-marks.
Consequently, it was provided in the act that names of this character should not be registered unless they were "written, printed, impressed or woven in some particular or distinctive manner, or used in connection with the portrait of the individual."
The ruling of the Patent Office, which has been sustained by the courts, is that the particular or distinctive manner of presenting the name must exhibit a peculiarity so pronounced that it dominates the name, and throws it into relatively secondary importance. In other words, a trade-mark of this character, to be registrable, must possess more of the quality of a device than of a name.
It is conceded that an autograph signature, like "Wilcox's", shown on this page, is entitled to registration.
Soon after the law went into effect a curious tangle developed in the application of this feature of the act.