One of the oldest trade-marks in existence. Used for generations as a trade-mark of Johann Maria Farina toilet preparations.
It would be unfair to give an exclusive right to use any particular color to an individual, consequently a color is not a valid trade-mark.
A seed-grower, selling his product in bags, applied for registration of a red bag as a trade-mark, but registration was refused.
A fountain pen manufacturer was refused registration for a trade-mark for fountain pens, consisting of a red feed bar contrasted with a black reservoir of hard rubber. The applicant stated that the feed bar was colored red in the manufacturing process, and that it was composed of rubber made by a special formula. The Court of Appeals held that registration of this device would give the applicant a virtual monopoly of this feature.
The Underwood Typewriter Co. applied for registration of the face-plate of their machine as a trade-mark. It is a principle of the trade-mark law that a part of a machine, or the form of an article, cannot be a valid trade-mark. Reporting this case, the Bulletin of the United States Trade-mark Association for January, 1908, says:
"The applicant, in the instance under adjudication, sought to avoid this principle of law, by contending that the case did not fall within that doctrine, for the reason that the plate which he sought to register was not really a part of the machine, since it could be removed without changing the shape of the machine, or interfering with its operation, or altering its structure. It was held, however, that while the plate performed none of the mechanical functions of the machine it was nevertheless a part of the machine as actually constructed, and was as essential as the frame itself to the production of a commercial article. It was necessary to give a finished appearance to the machine, which would not be salable without it. To recognize the applicant's right to a trade-mark in that feature of the machine, would enable the applicant to prevent the manufacture of its machines as constructed to-day, after all the patents covering it had expired, since no salable machine could be produced without infringing the trade-mark."
Trade-Marks Are Not Registrable if against Public Policy
The common good takes precedence of the rights of individuals. This is a principle of equity which has run through the fabric of Anglo-Saxon law for a thousand years. We find it developed into diverse and widely separated forms. On one hand, it appears as the right of eminent domain; in another form we find it appearing in a law prohibiting the use of the national flag for advertising purposes.
This principle is observed by the Patent Office and the courts in dealing with questions relating to trade-marks.
A trade-mark, otherwise registrable, and consisting of a device or wording not prohibited by the statute, may be refused registration if opposed to public policy.