with the so-called doctrine of secondary names. This doctrine is that, while the primary and common use of a word or phrase may not be exclusively appropriated, there may be

Secondary meaning

of word.

a secondary meaning or connotation of a word or phrase which may belong inviolably to the person who has developed it. Where a word of general significance used in connection with a line of goods has become associated in the minds of the public with a certain origin, those words may not be used by another person in such a way as to deceive the public into thinking that goods produced by him spring from this origin. It is in this association this so-called secondary meaning that there exists a property right. For example, while the United States Supreme Court held that the words Singer SewingMachine have become the generic name of a certain article, and were dedicated to the public and could be used by any one making that kind of machine, yet they could not be used unless in some way surrounded by distinguishing marks to show clearly that the machine was not made by the original manufacturer.2 So, too, it was held that the second Baker' who made chocolate, while he had an absolute right to use his name in connection with his chocolate, could not use it in such a way as to make people think that his chocolate was the original Baker's Chocolate. He could stamp his chocolate "Made by Baker," but not "Baker's Chocolate." The second inhabitant of Waltham who made watches could use the name Waltham in connection with his goods, stamping them as being made in Waltham; but he could not call them Waltham watches, or use the word Waltham in such form as would fail to clearly distinguish between his manufactures and those of the original makers of Waltham watches.1

The same principle is applied not only to proper and geo

1 Hygeia Distilled Water Co. v. Hygeia Ice Co., 70 Connecticut Reports, 576; 72 id. 646.

2 Singer v. June Co., supra.

8 Walter Baker Co. v. Sanders, 80 Federal Reporter, 889.

4 American Waltham Watch Co. v. United States Watch Co., 173 Massachusetts Reports, 85.

graphical names, but to words which are merely descriptive of the composition of the articles to which they are attached. In one of the most interesting of the cases, the English courts held that where an article had become widely known under the name of Camel Hair Belting, no one else could stamp his goods with that name, though any one might advertise his belting as made of camel hair.1

In the case last mentioned, the English Court of last resort goes beyond any position as yet taken by our Supreme Court. Here the doctrine is that the secondary meaning of words which, in their primary meaning, cannot be trademarks, will be protected. In England, the courts have caught this suggestion from us, and gone beyond to the rule that no one may palm off his goods as those of another. Many of our lower Federal courts and of our State courts, however, go as far as the English courts in applying this simple rule of justice, and the latest Supreme Court decisions seem to recognize its validity. "Celery Compound," for instance, it has been held, has acquired such a secondary meaning as to entitle the makers to protection.2

While this principle is simple and within the comprehension of any man, its application is by no means always clear and easy. Many instances, of course, arise where there has been no conscious imitation, and a fraudulent intent is a necessary element of the offence. In many cases it is difficult to determine whether the alleged imitation is such a one as would deceive the public. The test is this: Would an ordinary man using ordinary care be deceived? What a court will determine on such a question depends a good deal on how closely the Judge can estimate the standard of an ordinary man. There are decisions which are hard to reconcile, and there are cases where equally able Judges will dissent on the same case. For example, the French Republic, owner of the springs from whence comes the original Vichy water, has recently brought suit to restrain the use of the 1 Reddaway v. Benham, 13 R. P. CC. 218.

2 Wells & Richardson Co v. Siegel, Cooper & Co., 106 Federal Reporter, 77.

word Vichy in connection with Saratoga Vichy Water. The Court held here that, while Vichy as a geographical term is not the proper subject of a technical trade-mark, it could not be used by any one else so as to deceive the public into thinking that the water in connection with which the word Vichy is used is the original Vichy water. The question in one of these cases turns, in the main, on whether the word Saratoga in the phrase Saratoga Vichy Water was sufficiently conspicuous to distinguish the two. Two Judges held that it was not; one Judge held that it was. Again we find a case which holds a maker of Gold Drop Washing Powder is trading unfairly on the name and reputation of Gold Dust Washing Powder, in this case there being some similarity in the labels. On the other hand, the makers of Cuticura Soap, a green-colored soap of peculiar shape, could not restrain the action of one who was making a Cuticle Soap made in somewhat similar shape in a different tint of green.2 Even more difficult problems than these occur in defining and laying down rules as to just how much distinction must be made in such cases as the Waltham watch case; a question which involves, on the one hand, protecting the reputation of the original makers, and, on the other, granting to other inhabitants of Waltham their unquestionable right to use the name of the place where they live in connection with their business.

There are to-day, then, as we have seen, two distinct principles to be invoked in protecting a trade-mark or tradename. On the one hand, are the doctrines of technical trade-mark, still of considerable importance, because they determine what may and what may not be registered as a trade-mark under State and national laws. On the other hand, the doctrine so-called, of unfair trade, is a broader principle, which requires no technical considerations of whether a trade-name is a geographical, or a proper, or a

1 Fairbank v. Luckel, 102 Federal Reporter, 327.

2 Potter, etc. Co. v. Pasfield Soap Co., 102 Federal Reporter, 790.

to himself.

descriptive name, but simply asks: Is this defendant palming off his goods as those of the plaintiff? Where there is a technical trade-mark, the courts will interfere to prevent the violation of the right of property therein. When unfair trade is claimed, the Court acts to prevent the deception and fraud, and a fraudulent intention must be shown. Even such deception will not be punished, however, if merely the public are deceived. The courts will not interfere unless the complainant has some property right which Plaintiff must is injured by the deception. In a case where the show injury manufacturer of a genuine aluminum washboard sought to enjoin the sale of a so-called Aluminum Washboard, which was not made of aluminum, but did not show that the defendant was palming off his wares as those of the plaintiff, the Court refused to act to prevent the deception.1 But wherever a well-won reputation of one man is being used fraudulently to aid in selling the goods of another, by whatever art the deception is accomplished, there the courts will interfere, acting on the principle that such deception is unfair trade. Not yet fully adopted by all the courts, still to be developed in its application to particular circumstances and conditions, this broad principle of business integrity and common justice is the product and the triumph of the development of the law of trade-marks in the last half-century, and the bulwark which makes possible and protects the world-wide business reputations common and growing more common in this new century.

1 American Washboard Co. v. Saginaw Manufacturing Co., 103 Federal Reporter, 281.

XVII

ADMIRALTY

1701-1901

BY WILLIAM K. TOWNSEND, D.C.L.

"It has been remarked with truth, by very high authority, that no man ever studied the Admiralty jurisdiction without being a lover of it; and, certainly, no branch of jurisprudence with which I am acquainted possesses, in an equal degree, qualities that may be called fascinating. The antiquity of its origin; the growth of its doctrines, expanding with the exigencies and growth of commerce and maritime adventure; the constant aim of its tendencies towards equity and principle, and the very important and interesting objects that fall under its cognizance, render it attractive, when the harsher features and more rigorous rules of other systems have wearied and repelled the student."

GEORGE TICKNOR CURTIS.

It is only since the birth of the American republic that an independent Admiralty jurisdiction has been in existence upon this continent. For more than a century subsequent the English and American courts have jointly and severally built up the law of Admiralty by their decisions. Owing to these two circumstances, in preparing this chapter a topical rather than an historical treatment of the subject has been adopted.

Admiralty is that branch of the law which enforces maritime rights and redresses maritime wrongs. It is a system sui generis. It differs from the law obtaining on land as the conditions of the sea differ from the conditions of the land. Its subject-matter is the changeless yet ever-changing sea, owning no sovereign and uncontrolled by physical force of man; its jurisdiction extends over the men and ships that travel the common highway of nations; its laws are customs of commerce, crystallized under the sanction of the civil law; its practice is free from the artificial technicalities of the common law; its object is substantial justice.