No disclaimer of common bearing two co-axial ovals, with the words Worth's Corsets in ordinary type, and four dots arranged as a star at each end printed between them, ovals being common marks in the trade (p). In the last case, Chitty, J., held that the addition of the trade-name of the owner of the mark made it neither better nor worse, and he approved and followed Price's Case (q). Common words, that is, words which any one is at parts of label. liberty to use, which appear in a label, need not be disclaimed, for they are not essential parts of the label, and sect. 74, which provides for disclaimers, applies only to additions to the trade-mark, and the whole label is itself the trade-mark (). So, in The Apollinaris Case, it was held, by the Court of Appeal, that the name Friedrichshall occurring on a label need not be disclaimed (s), and this was followed by Chitty, J., in the case of the Smokeless Powder Co.'s trade-marks, where he refused to order the words Smokeless Powder to be disclaimed on the application of rival makers of similar powder (†). A dictum of Cotton, L.J., in an earlier case (u), decided under the Act of 1875, that such words ought to be disclaimed, was cited in the last-mentioned case; but Chitty, J., declined to follow it. The decision of Stirling, J., in Edge's Case (r), that the words Filtered Blue, which he held to be bad as a separate trade-mark, must be disclaimed when registered on a label, is also in conflict with the rule stated above. None of the abovementioned cases were, however, cited in Edge's Case, and it was not cited in the Smokeless Powder Case. A dis (p) Bradley's Tm., 9 R. P. C. (g) 27 C. D. 686; cited p. 137. (s) (1891) 2 Ch. p. 233; 8 R. P. P. C. 164 (1886), C. A. ; and Paine & Co. v. Daniells & Sons' Breweries, (1893) 2 Ch. 567; 10 R. P. C. 71, 217. (t) (1892) 1 Ch. 590; 9 R. P. C. 109. (u) Hudson's Tm., 32 C. D. 311; 3 R. P. C. 155 (1886), C. A. (x) 8 R. P. C. 207 (1891). 139 TICKET. tinctive label may accordingly be properly registered, although it contains words or names to the exclusive use of which no claim could be maintained (y). in another label is no The presence of common words in a registered label Similar comdoes not prevent any trader registering a different label mon words with the same or similar words. Thus Valvoleum printed registered across a label with a particular device was allowed, objection to although Valvoline was already registered upon a label with registration. a different device (2), Jessel, M.R., holding that each word was merely equivalent to valve oil. registered It is a common practice to register labels with blank Blanks in spaces which in use are filled up by matter which is either labels. not capable of registration, or which for some other reason it is not convenient to register, because, for example, it is changed from time to time (a). The practice is unobjectionable, and the use of the added matter, which forms, of course, no part of the trade-mark protected by registration, does not interfere with the protection of the label. as registered (a). But in considering whether a mark is a proper mark to register regard must be had to the appearance it will present in actual use (b). Ticket. The only difference between a label and a ticket seems to be that a label is attached by sticking it on to the goods or their envelope, and a ticket by tying (c). (y) Hudson's Tm., Atkins' Tm., and Paine & Co. v. Daniells & Sons' Breweries, supra. (2) Re Horsburgh & Co.'s Application, 53 L. J. Ch. 237 (1878); see Leonard & Ellis's Tm., 26 C. D. 288 (1884), C. A.; Loftus' Tm., (1894) 1 Ch. 193; 11 R. P. C. 29; North, J. (unco' guid whisky). (a) Hammond v. Brunker, 9 R. P. C. 301 (1892); Melachrino & Co. v. Melachrino Egyptian Cigarette Co., 4 R. P. C. 215 (1887), both p. 195. (b) Christiansen's Tm., 3 R. P. C. 54 (1886), C. A., the Taendstikker Match Case. And see Chap. X., p. 192. (c) The words are used alternatively in Orr-Ewing v. The Registrar of Tms., 4 App. Cas. 479; and Great Tower Tea Co. v. Smith, 6 R. P. C. 165. Words as Word-Marks. Words are highly valued as trade-marks, since when trade-marks. well chosen they combine the necessary quality of dis tinctiveness with a capacity for being remembered and referred to, which is only equalled by such simple devices as from their resemblance to common objects, or to familiar geometrical figures, at once suggest appropriate names, and, while in many of the classes all, or almost all, the suitable devices are either already appropriated or have ceased to be distinctive, the number of new words which may be invented is practically unlimited. Word-marks were common enough before the Registration Acts, and provision has been made in all of these for the registration of any special and distinctive word or words used as trade-marks before the 13th of August, 1875, when the Act of 1875 came into operation, and also, under sections already considered, for the registration of the name of an individual or firm printed, &c. in some particular and distinctive manner, and of a written signature or copy of a written signature. Except such old marks, names, and signatures, no other word-marks could be registered under the Act of 1875 (d). This was altered by the Act of 1883, which allowed the registration of "a fancy word or words not in common use." The expression "fancy word," however, gave rise to considerable differences of opinion as to its meaning, and after the report of Lord Herschell's Committee it was struck out of clause (c), and the two new clauses (d) and (e) were substituted for it. They allow the registration of: (d) "an invented word or invented words "; and (e) a "word or words having no reference to the character or quality of the goods, and not being a geographical name." (d) Exp. Stephens, 3 C. D. 659 (1876), Jessel, M.R., (Aeilyton); Rose v. Evans, 48 L. J. Ch. 618 (1879), Hall, V.-C., (Limetta); see per Lindley, L.J., in Van Duzer's Tm., 34 C. D. 623; 4 R. P. C. 31 (1887). of Lord word-marks. names. The portion of the report above referred to, which relates The report to this subject, was as follows (e) :-"It will be convenient Herschell's to consider first what words ought to be allowed as trade- Committee on marks. There can be no objection to permitting the registration of an invented word not to be found in the vocabulary of our own or any other country. It seems, further, that existing words may with advantage be permitted as trade-marks, subject to limitations which at once suggest themselves. It is manifest that no one ought to be granted the exclusive use of a word descriptive of the quality or character of any goods. Such words of description are the property of all mankind, and it would not be right to allow any individual to monopolise them and exclude others from their use. Again, geographical words, Geographical which can be regarded as descriptive of the place of manufacture or sale of the goods, are open to obvious objections. One manufacturer or merchant cannot properly be allowed. to prevent all his competitors from attaching to their goods the name of the place of their manufacture or sale. The mischief would not be the same where the person seeking to register was the first person who had manufactured or sold the goods in the place the name of which he seeks to appropriate as a trade-mark. But there are objections to giving a monopoly even in that case, and to attempt to draw any such distinction would be likely to lead to difficulty and litigation (f). We think, therefore, that geographical names ought only to be permitted where they clearly could not be regarded as indicative of the place of manufacture or sale. We would add upon this Translated point that we think that where any English word would be rejected as not entitled to registration, no person ought to be permitted to register its translation into any other language. The question has been raised whether a word Phonetic having the same sound as one entered on the register, equivalents. though spelt differently and with a different meaning, should be registered. The question in such a case would seem to be whether the resemblance between the old mark Report of 1888, p. xi. (f) See Chap. II. p. 44. words. Fancy words. "and that applied for was such as to be calculated to deceive; if it were it ought, of course, to be rejected." A Fancy Word or Words not in common use (ƒ). As already stated, the meaning of these expressions gave rise to considerable differences of opinion, and since the marks registered under the Act of 1883 are still governed by that Act, and the principles employed in the interpretation of these expressions will be employed also in construing the amending Act (g), it is necessary to consider the cases. A definition of fancy word was ultimately laid down by the Court of Appeal, which seems to be both clear and precise, and it is perhaps to be regretted, after this had been done, and as no great substantial change was desired to be made, that the expression, which was, no doubt, an ill-chosen one, should have been abandoned for another which will in all probability itself require and receive explanation. In the latest reported case on the subject (1), Chitty, J., summed up the result of the decisions in the following passage: "To be a fancy word, the word must be obviously meaningless as applied to the article in question. On that principle the Court has held that the term Gem (i), with reference to a gun, is not a registerable fancy word; with reference to hair restorer, that the word Melrose (k) is not a fancy word; with reference to velveteen, that the word Electric (k) is not a fancy word; and with reference to lace, the opinion of Lord Justice Cotton appears to have been that the term Alpine (1) was not a fancy word. be These are some of the numerous illustrations that may given of what may be thought by some to be the severe (f) A fancy word was a good trade-mark before the Acts. "The more ridiculous it is, the better it is." Wood, V.-C., in Young v. Macrae, 9 Jur. N.S. 322 (1862). (g) Meyerstein's Tm., 43 C. D. 604; 7 R. P. C. 114 (1890), Kay, J., (Satinine). (h) Lloyd & Sons' Tm., 10 R. P. C. 281 (1893), Carnival not a fancy word. (i) Re Arbenz's Application, infra. (k) Van Duzer's Tm. and Leaf's Tm., infra. (7) 34 C. D. p. 639. |