show that this case would have been one in which an appeal would have resulted in a new trial in any State of the American Union; and that " the certificate of reasonable doubt " required under American practice on an appeal in criminal procedure would have been granted by any impartial judge.
LONDON LEGAL LETTER.
LONDON, MARCH 6, 1897.
А MATTER of very great importance to Americans having business relations with England has been de cided within a few days past by Mr. Justice Kekewich of the Chancery Court, in a trade-mark case. As American lawyers know, the registration of trade-marks is now regu lated by statute, and, as not infrequently happens, the act of the legislators, conceived in a desire to simplify the law, has in this instance only added to its complexity — at least if the amount of litigation which it has provoked is any criterion to judge by. The Trade Marks Act of 1888 provides inter alia, that a trade-mark " must consist of or contain at least one of the following particulars" —"A word or words having no reference to the character or quality of the goods and not being a geographical name." So rigidly has this provision been construed, that the word "camel," relating to the humped-backed quadruped of the desert and used in connection with belting made of camel's hair, has been refused registration by the Registrar because it was discovered that there was a small hamlet or parish in the west of England by that name! And the decision was sustained on appeal to the Board of Trade. So, too, a word was successfully objected to when it was discovered that it was identical with the name of a little-known place in Italy. Mr. Justice Chitty, now Lord Justice Chitty, two or three years ago, very truly said (in the Eboline case, 189 & 3 Ch. 169) that "the object of the Legislature was to prevent a trader from acquiring a monopoly on the name of a place, and from thereby suggesting that the goods had a local origin or a local connection, which in fact they might not have." It was also necessary to illustrate the danger by pointing out the harm that might be done if the pro prietors of a sauce should be allowed to register the trade name " Worcester Sauce," which would prevent any other sauce maker in Worcester calling his sauce by that name, or the still more pertinent case of a merchant in Stafford shire registering the name " Newcastle coals," when in fact his coals did not come from Newcastle, and thus prevent any colliery proprietor in Newcastle calling his coals by their true and proper name. Notwithstanding this ditta of Lord Justice Chitty, the mere fact that a name was geographical, no matter what its primary signification, has heretofore been sufficient to keep it on the register. Relying upon this, certain parties moved to rectify the register by removing the word " Magnolia," and the design of the magnolia flower, which had been registered in con nection with anti-friction metal, on the ground ( i l that the
word was geographical; (ii) that it was descriptive; and (iii) that the flower had been registered in the wrong class. In support of the first contention, Lippincott's Gazetteer was relied upon to show that at the time the word was admitted to the register, there were twenty-two villages and towns in the United States, and Rand & McNally's Atlas to prove that the number has since been increased to over forty. Not withstanding this, Mr. Justice Kekewich refused to sustain the motioh on this ground. He said, " Was the word 'Magnolia' here a 'geographical name' in the sense of that being the primary meaning of the word, or the mean ing which would occur to an Englishman of ordinary in telligence and education? If the word had a double mean ing, the question was whether the primary meaning was the meaning that would occur to people in ordinary so ciety." He therefore decided that, as no Englishman in the general walk of life had ever heard of the two score Magnolias in the United States, and that everyone knew of the magnolia tree and blossom, the latter was the true meaning of the word. While the decision will be gratifying to the commercial world, the trade-marks were nevertheless expunged, and for a reason that will doubtless cause no little perturbation among Americans whose goods, protected by trade-marks, are sold in this country. And this was because those who registered the design of the flower, the Magnolia Anti friction Metal Company, a New York Corporation, had not any good-will in the goods or class of goods in respect of which the trade-mark had been registered. It appears that the New York Company had sent over samples of bearings to an agent in this country who took orders for them, and then instead of ordering the goods themselves from New York, ordered the metal of which the bearings are made and had it made up into bearings in Cardiff. From this it appeared that the New York Company had never sold any bearings, as such, in England, although it had sold hun dreds of thousands of dollars worth of the Magnolia metal here. Therefore, as the design was registered in Class 6, which is for " parts of machinery," it must be taken off the register. If, however, the design had been registered as for metals or alloys, in Class 5, it would have been good. The moral of this to the American manufacturer is that the strictest caution must be exercised in the registration of a trade-mark, as the severest tçst of technicalities will be invoked to prevent the registration or to rectify the register if once admitted to it.
STUFF GOWN.
