Lead Opinion
The findings of the trial court above set out give a sufficient statement of the material facts in the case. Findings 8, 10, 13, 15, 18, and 19 are attacked for want of evidence to support them. We think the findings challenged are well supported by the evidence and shall spend no time upon that point. It is also claimed that the ninth finding is inconsistent, since it finds that the word “Carbolineum” was-intended as a trade-mark and also a specific name and designation for a commodity, and that the word cannot serve-the double purpose of a trade-name and also the name of the-compound. It is not easy to reconcile the authorities upon the point, some cases holding that, when a new compound is-discovered and christened and given a name, the name cannot also be appropriated as a trade-mark, but the cases appear-to turn on whether the word denotes origin or ownership or is merely descriptive. The exclusive right to use words, letters, or symbols to indicate merely the quality of goods to-which they are affixed cannot be acquired. But the rule-seems to be otherwise if the primary object of the trade-mark 'be to indicate origin or ownership. Canal Co. v. Clark, 80 U. S. 311; Lawrence Mfg. Co. v. Tenn. Mfg. Co. 138 U. S. 537, 11 Sup. Ct. 396; W. R. Lynn S. Co. v. Auburn-Lynn S. Co. 100 Me. 461, 62 Atl. 499; Marshall v. Pinkham, 52
“Hence the trade-mark must either by itself or by association point distinctively to the origin or ownership of the article to which it is applied. The reason of this is that, unless it does, neither can he who first adopted it be injured by any appropriation Or imitation of it by others nor can the public be deceived. The first appropriation of a name or device pointing to his ownership, or which, by being associated with articles of trade, has-acquired an understood reference to the originator or manufacturer of the articles, is injured whenever another adopts the same name or device for similar articles, because such adoption is in effect representing falsely that the productions of the latter are those of the former.”
In Manufacturing Co. v. Trainer, 101 U. S. 51, 53, the court said:
“The general doctrines of the law as to trade-marks, the symbols or signs which may be used to designate products of .a particular manufacture, and the protection which the courts*262 will afford, to those who originally appropriated them, are not controverted. Every one is at liberty to affix to a product of his own manufacture any symbol or device, not previously appropriated, which will distinguish it from articles of the same general nature manufactured or sold by others, and thus secure to himself the benefits of increased sale by reason of any peculiar excellence he may have given to it.”
In Candee, S. & Co. v. Deere & Co. 54 Ill. 439, the question was whether one manufacturer of plows at Moline, Illinois, could appropriate as his own, to the exclusion of all other manufacturers at the same place, the name of the place, and thus prevent other manufacturers from designating their manufacture as of the place where they are actually made; and it is said the cases do not go to that extent. It is further said in the opinion that the words “Moline, 111.,” had acquired a generic meaning, and one manufacturer at Moline had the same right to use them that any other manufacturer there had.
In Royal B. P. Co. v. Sherrell, 93 N. Y. 331, it was held that the word “Royal,” as indicating quality or grade, could not be appropriated as a trade-mark, and it was said:
“The right to use a word or name as a trade-mark is the right which a person has to use a certain mark or name for articles which he has manufactured so that he may prevent another person from using it, because the mark or name denotes that articles so marked or named were manufactured by a certain person, and no one can have the right to put the same name or mark upon his goods and thus represent them to have been manufactured by the person whose mark it is. Per Sir V. Page-Wood, V. C., in Collins Co. v. Cowen, 3 K. & J. 428. But there can be no exclusive right to the use of words or marks which have no relation to the origin or ownership of the goods and are only meant to indicate their quality or grade.”
In Beadleston & Woerz v. Cooke B. Co. 74 Fed. 229, the majority of the court held that the word “Imperial” was a designation of quality in the connection used and therefore
In Chaffee Mfg. Co. v. Selchow, 131 Fed. 543, it was held that the word “Flinch” was generic and known to the public and therefore was not the subject of a trade-mark, citing Browne, Trade-marks, §§ 87-91; Paul, Trade-marks, § 35. The court said, pages 545, 546: .. .
“If chess or golf or whist were now invented and named, could any manufacturer or vendor of the implements with which such games are played obtain a trade-mark in their names by selling such implements put up in boxes marked with the names of the games ? He of course could adopt a trade-mark to distinguish the chessmen or the playing cards or the golf clubs which he made from those made by others, but I think he could not acquire a trade-mark in the names of the games by simply selling the games after they had become known to the public under such names.”
In Singer Mfg. Co. v. June Mfg. Co. 163 U. S. 169, 16 Sup. Ct. 1002, the question arose upon the expiration of a patent during the existence of which the word “Singer” as used to indicate style of the machine rather than as solely indicating the origin of manufacture had become public and constituted the generic description. It was held that at the expiration of the patent the right to make the patented article and to use the generic name passed to the public with the dedication resulting from the expiration of the patent.
In Holzapfel’s C. Co. v. Rahtjen’s A. C. Co. 183 U. S. 1, 22 Sup. Ct. 6, the right to manufacture the compound had become public, and it was held that the name by which it was known likewise became public. It is said in the opinion that there was no attempt to pawn off the composition of one for the composition of another, and no pretense of deception as to the person who in fact manufactured, and that the prin
Under the claim of appellant that a generic name or a name merely descriptive of an article of trade or its qualities or characteristics cannot be employed as a trade-mark and entitled to protection, a long list of authorities is cited as to what words have been held descriptive in the sense that they cannot be appropriated as trade-marks. We shall not attempt to review the numerous cases cited-by appellant upon this point. We believe it would be difficult, if not impossible, to reconcile all the authorities upon the subject. The general rule has often been stated, but the difficulty arises in applying it to the particular case." This court has stated the general rule as follows:
“It has often been decided that words which are merely descriptive of the kind, nature, style, character, or quality of the goods or articles sold cannot be exclusively appropriated and protected as a trade-mark. ... It seems to be the office of a trade-mark to point out the true source, origin, or ownership of the goods to which the mark is applied, or to point out and designate a dealer’s place of business, distinguishing it from the business locality of other dealers.” Marshall v. Pinkham, 52 Wis. 572, 578, 580, 9 N. W. 617, 618.
And in Dunbar v. Glenn, 42 Wis. 118, 137:
“Where the trade-mark in its original signification or by association distinctively points to the origin or ownership of the article to which it is applied, it will be protected. But where it is a generic or geographical name, designating a city or district or country, or is merely descriptive of the article manufactured, and can be employed with truth by other manufacturers, it is not entitled to legal protection as a trademark.”
That the word “Carbolineum” as applied to the facts in this case could be appropriated as a trade-mark we think is well supported by authority. The name was applied by the plaintiff in 1876 to a compound of his own invention,
An examination of the foregoing cases and many others which might be cited will clearly show that the word “Carbolineum” is not so descriptive of the quality of plaintiff’s 'compound as to make it obnoxious to the rule forbidding the use of descriptive words as trade-marks or trade-names. Newly coined words have been generally sustained as proper trade-marks, because such words, being meaningless, cannot be either descriptive or deceptive. In W. R. Lynn S. Co. v. Auburn-Lynn S. Co. 100 Me. 461, 62 Atl. 499, 960, the
“It is equitable that a manufacturer who has given reputation to any article should have the privilege of realizing the fruits of his labors by transmitting his business and establish; ment with the reputation which has attached to them on his decease to his legatees or executors, or during his lifetime to purchasers; and it is also in accordance with the principles of law and justice to the community that any trade-mark, including a surname, may be sold with the business or the establishment to which it is incident, because, while it may be that individual efforts give them their value at the outset, yet afterwards this is ordinarily made permanent as a part of the entire organization or as appurtenant to the locality in which the business is established, and thenceforward depends less on the individual efforts of the originator than on the combined result of all which he created.”
The point that, when the plaintiff gave his product a name and it was a new product and known by no other name, the name became publici juris, is not sustained by the great weight of authority. Some cases, it is true, support this idea. But where a product is manufactured and the compound is a secret invention, as in this case, the inventor may coin a new name for his product by which it is to be known, and he is entitled to protection of such name as his trademark or trade-name. The plaintiff’s compound of anthracine oil is one of the products included in the general designation. It is the plaintiff’s product — his own secret compound. Anthracine oil is the general name for the product, but the plaintiff’s manufacture of this general product invented by himself by a secret process is his manufacture, and his trade-name is entitled to protection. The purpose of the trademark is to give the plaintiff’s special invention a distinctive name for his anthracine oil to distinguish his manufacture and point to its origin. The court found that the plaintiff constructed the word to make his goods known by the name
“But a valid trade-mark may consist of some novel device, arbitrary character, or fancy word applied without special meaning, which by use and reputation comes to serve the same purpose. Such words and devices are held to indicate sufficiently the true source and origin of the goods without particular addition of the name of the manufacturer or dealer.”
In Dunbar v. Glenn, 42 Wis. 118, the owner of the water-of a mineral spring applied the name of “Bethesda” to the-spring and used the mark “Bethesda” on barrels in which the water was shipped and recorded the word, and it was held that the name was a valid trade-mark and that the defendant, who owned another spring 1,200 feet from that of plaintiff, which was alleged to have exactly the same chemical constitution and curative properties, was not entitled to the use-of plaintiff’s trade-mark.
Actions to restrain the infringement of trade-marks are-based upon the doctrine that the law will not allow one person to sell his own goods as and for the goods of another; and this is to prevent not alone fraud upon private rights, but as
It may well be, as contended by appellant, that, when one •owning a newly patented product gives it a name, sixch name becomes publici juris on the expiration of the patent; but the .point has no hearing here. The patent which it is claimed ■covered the product was not put in evidence. There is no •evidence that it covered the plaintiff’s product, but only a part of the process of manufacture. It may have been on a mere detail. But more than this, the evidence as to the patent shows that, whatever it was, it was not granted until about ■•twelve years after plaintiff coined and adopted the word '“Oarbolineum” for his product. The trade-mark antedated by about twelve years the patent, whatever the patent was, .and the expiration of the patent in no way affected the trademark. Batcheller v. Thomson, 93 Fed. 660, 35 C. C. A. 532.
It is also argued that pláintiff abandoned the right to use •the word “Oarbolineum” as his trade-name. On this point, .also, the evidence and findings are against appellant. It is unnecessary to discuss the evidence. It fully supports the ■finding. Plaintiff constantly used the word as his trade-name and applied for registration of it in various foreign countries and was diligent in his efforts to protect it as his ■trade-name. The use of his name in connection with “Oarbolineum” did not amount to an abandonment. • Plaintiff is not confined to one form of his mark nor even to several marks. Morrison v. Case, 9 Blatchf. 518, Fed. Cas. No. 9,815; Hier v. Abrahams, 82 N. Y. 519; Ford v. Foster, L. R. 7 Ch, 611, 616; Johnson v. Bauer, 82 Fed. 662. In Dunbar v. Glenn, 42 Wis. 118, 135, this court said:
“It seems to be well settled that the owner of any original trade-mark has an undoubted right to be protected in the exclusive use of all the marks, forms; or symbols that he may appropriate as designating the true origin or ownership of the article or fabric to which they are affixed.”
“It is not necessary to constitute an infringement that every word of a trade-mark should be appropriated. It is-sufficient that enough be taken to deceive the public in the purchase of a protected article.”
The fact that plaintiff registered the words “Carbolineum Avenarius” in this country was no abandonment of the word “Carbolineum” as his trade-mark, at least unless it was shown that he intended such abandonment, and the court below found otherwise. The registration does not create nor destroy rights in a trade-mark. The right to use a device to-distinguish the goods made or sold by a person whose mark it is, has long been recognized by the common-law and chancery courts of England and this country. “This exclusive-right was not created by the act of Congress, and does not depend upon it for its enforcement. The whole system of trade-mark property and the civil remedies for its protection existed long anterior to that act, and have remained in full force since its passage.” The right depends upon priority of appropriation. Trademark Cases, 100 U. S. 82; Ex parte Carborundum Co. 118 Off. Gaz. 2250; A. Leschen & Sons R. Co. v. Broderick & B. R. Co. 123 Fed. 149.
Error is assigned because the trial court refused to find that Austria had canceled the plaintiff’s trade-name “Carbolineum,” and also because the court ¿refused to find that Presser had registered a trade-mark in Germany which included the word “Carbolineum.” It is at least very doubtful whether the evidence offered was competent to prove the facts-sought to be established under this head. But, even if so, the evidence offered was immaterial. The plaintiff advertised and sold his ,goods in Europe from the time he adopted his trade-name in 1876 until 1886 and endeavored in every way to protect it as his trade-name. Whether he could have-registered it in foreign countries under their laws as a trade-
The court below found that there was a material difference between the two products and this finding is clearly supported by the evidence. Nor is there any doubt under the proof made of the intention of the defendant to deceive and appropriate the trade-name of the plaintiff for his own benefit and to the damage of the plaintiff. It is unnecessary to go into & discussion of the evidence under this head.
Nor Eas any laches been shown upon the part of the plaintiff. On the contrary, from first to last plaintiff appears to have been diligent in endeavoring to protect his use of the trade-name “Carbolineum.” He could not protect it further than he did in foreign countries under their laws. In October, 1886, he applied for registration, and in Eebruary, 1887, his trade-name was registered in the United States, and at the time plaintiff first used the word “Carbolineum” it had ■not been used by any other person for any purpose and was wholly unknown. It follows that the judgment of the court below must be affirmed.
By the Court. — The judgment is affirmed
Dissenting Opinion
(dissenting). The pivotal facts in this case are established beyond controversy, although not all included in the findings of fact of the trial court.
1. The plaintiff is a citizen and resident of the municipal
“I constructed this word out of my own fancy in analogy to the Latin words ‘earbo,’ coal, and ‘oleum,’ oil, and in doing so it was my purpose to make my goods; known by this word, which up to that time had not been in existence, and to use the word as a trade-mark. I called my goods by the name ■‘Qarbolineum,’ offered them for sale under that name in letters, circulars, and advertisements and invoiced them as such, .and marked the packages, so far as possible, with this name. Under the early German trade-mark law the protection of word trade-marks was not feasible, and legal protection could not be obtained there for the word ‘Qarbolineum’ I had created. Legal proceedings against its misuse were useless.”
The ninth finding of the circuit court was as follows:
“That during all said time of plaintiff’s said use of said word, both in said European countries and in the United States, said plaintiff has claimed and intended said word as his trade-mark, and as a specific name and designation for his said product, to indicate that the article to which the same was so applied and affixed was the manufacture of said plaintiff, and that said plaintiff has relied upon said name and designation to distinguish his said product with the public and to indicate its origin, and that his said product is so distinguished with the trade by said name and designation, as thus indicating its origin.”
“Undoubtedly, in my opinion, when a man invents a new article, and invents a word as descriptive of that article, which all the world are at liberty to make, he stands in a very great difficulty as regards claiming for himself the exclusive use of that name which he has invented to describe the article which he himself has invented.”
Ery, L. J., said:
“Now, when a new material is invented, and at the time a new single word is invented which is applied to that material alone, I am by no means satisfied at present that that single word can be treated as a special and distinctive word within the meaning of the section I have read. It is difficult to suppose that one word can both describe the thing as made by anybody and the thing as made by a particular maker.”
See, also, Linoleum Mfg. Co. v. Nairn, 38 L. T. Rep. n. s. 448, 47 L. J. Ch. 430; also Holzapfel's C. Co. v. Rahtjen’s A. C. Co. 183 U. S. 1, 22 Sup. Ct. 6.
As I understand the case last cited, there is properly deducible therefrom the fourth proposition of the syllabus, viz.:
“When the right to manufacture became public, the right to use the only word descriptive of the article manufactured became public also.”
This rule is not limited to the case of patented articles upon which the patent has expired. Such cases are merely illustrative of the rule — a narrow application of the more general rule that the right to use the only word descriptive of the article manufactured is the right of the public. It cannot make any difference how this word became the only word descriptive of the article. Oglivie v. G. & C. Merriam Co. 149 Fed. 858 (expiration of copyright); Warren F. Co. v. Am. F. Co. 141 Fed. 513 (expiration of some patents); Singer Mfg. Co. v. June Mfg. Co. 163 U. S. 169, 16 Sup. Ct. 1002
In In re Chesebrough Mfg. Co.’s Trade-mark, 19 Rep. Pat. Cas. (1902) 342, this question is suggested in the majority opinion at page 353, but it was not decided, because there was evidence that the word “Vaseline” was used originally to denote the goods manufactured by the Chesebrough Company. In the opinion of Justice Cozens-Hardy it is said:
“I have reluctantly come to the conclusion that it appears from the appellant’s own evidence that the word ‘Vaseline’ was an invented word to describe an invented thing, and, if so, I think it follows that any one was at liberty to make the invented article, which was not protected by patent in England, and at liberty to call it by the name attributed to it by the inventor. In the case of Linoleum Mfg. Co. v. Nairn, L. E. 7 Ch. D. 834, Mr. Justice Fry applied this principle to the case of a patented article after the expiration of the patent, but I think it cannot be limited to that case.”
No one can claim protection for the exclusive use of a trade-mark.or trade-name which would practically give him a monopoly. Canal Co. v. Clark, 13 Wall. 311, 323.
It may be said that the inventor of a new compound who at the same time invents a new name for such compound does not thereby prevent others from devising other new and fanciful names for the same compound, and this is true. This privilege on the part of others would be of little practical use to them, but that is quite immaterial. The real objection is that such use of a newly coined word as a trade-mark enables the owner at once to describe the new compound by that name without reference to who makes it or where it is made, and at the same time appropriate that word as a sign to the pub-
2. But the facts in this case additional to those above noted are that after plaintiff had been engaged for more than ten years in the manufacture and sale in Germany of “Carbolineum,” and on February 8, 1887, he registered in the Patent Office of the United States as his trade-mark for preservative liquids the word “Carbolineum.” Two years thereafter and on April 19, 1889, he registered in the same office as his trade-mark for preserving paint the words “Carbolineum Avenarius.” Prior to such registry the word “Carbolineum” had become known in Germany and elsewhere in Europe as a name descriptive of this product of coal tar. George Presser, who lived in the same village with plaintiff, according to plaintiff’s testimony began in 1882 to use the word “Carbolineum” as the name of a commodity which he, Presser, manufactured and sold and continues the same up to the present time. Exhibit A, a circular which the plaintiff issued to the German trade in 1885, complains that certain parties “continue to advertise with unbecoming praises preparations of demonstrably inferior value, under the same designation, using the name ‘Carbolineum’ chosen by us about ten years ago for our product.” It further sets forth that “prominent in the class pointed out is the firm of Presser, a firm which goes so far in charlatanry as to advertise its product as being of ‘worldwide fame,’ and does not shrink from designating the ‘Carbolineum Presser as the only right impregnated oil.’ ” Again:
“A ‘Carbolineum Lendle’ has lately also been offered for sale, which announces its advantages in like ‘modest’ manner, without the least restraint, and which might be regarded as*276 passable, if its manufacturers had copied the qualities of our antisepticum as well as the prospectuses concerning it. Lendle’s imitation differs from Oarbolineum Avenarius similarly to the surrogate of Presser. Erom all this it appears that our original product, which by way of distinction we now call ‘Oarbolineum Avenarius,’ has not been approximately reached in any quarter. The name ‘Oarbolineum’ is our intellectual property, the composite parts and the composition of our product are our secrets, and in view of its recognized qualities attested by numerous and unusually favorable testimonials, partly founded upon ten years’ use, given by state and civil authorities, by railroad administrations, by construction engineers, manufacturers, in agricultural articles, etc., it is not to be wondered at that here and there are found imitators which — if we did not put up a front against them— would be able to bring the name of ‘Oarbolineum’ into discredit within a short time. Our three factories are fully occupied with the manufacture of Oarbolineum Avenarius, and the extent of our sales offers the best proof of the general approbation which our antisepticum is finding at home and abroad. Eor the benefit of those interested, who are not intimately acquainted with our product, we would add that Oarbolineum Avenarius is an antiseptic, thin liquid used for coating and impregnating, instead of oil paint or tar,” etc.
To my mind the foregoing proves to a demonstration that in 1885, prior to the registration in the United States Patent Office by the plaintiff of the word “Oarbolineum:” (1) That the word was in common use in Germany to designate a preservative liquid. Only Presser and Lendle are named, but-the circular also speaks of a class. These two with their clients or customers were enough. (2) Prior to the registry in the United States Patent Office the plaintiff had adopted as his trade-mark, not the word “Oarbolineum,” but the words “Oarbolineum Avenarius,” to designate his particular product of antiseptic, thin liquid used for coating and impregnating instead of oil paint or tar.
The plaintiff produced another circular issued by him in Germany in 1890, in which, among other things, he accused
“To this paint invented by us whose composition is known to ourselves alone we gave the name of Carbolineum, a name which was not in existence before. We wanted to indicate thereby that this paint was an oleaginous liquid (oleum) derived from coal (carbo).”
To me this circular indicates in 1890 a disclaimer of any trade-mark consisting of the word “Carbolineum” and a claim that the plaintiff’s trade-mark consists of the words “Carbolineum Avenarius,” and a concession that the word “Oarbolin■eum” was descriptive only. The defendant is shown to have been dealing in and selling Presser’s Carbolineum manufactured by George Presser at the German municipality mentioned and exported therefrom to this country to the defendant to sell under the name of “Carbolineum Presser,” and George Presser has a trade-mark officially registered in the proper department of the German Empire containing a center wheel with scrolls in an oval and the words “Schutzmarke für das Carbolineum. Georg Presser. Gau-Algesheim.”
A witness for the plaintiff testified that he knew carbolineum from different factories in Switzerland in 1883, and there is in evidence a judgment of one of the imperial courts ■of Austria rejecting the word “Carbolineum” as a trademark because a word descriptive of a known compound, in .an action in which this plaintiff herein was plaintiff and several other persons were defendants. Several books were in-, troduced in evidence containing the word “Carbolineum” and definitions thereof, but none of them published earlier than 1900. It was admitted in the case that there is a large number of manufacturers in Germany manufacturing a product called “Carbolineum.” It was shown that the plaintiff •had procured in Germany in 1888 a patent on some part of
The judgment of the court below prohibits the defendant from advertising, offering for sale, or selling any preservative paint or liquid other than the product of the plaintiff by or under the name or designation of “Carbolineum.” It seems to me that in rendering this judgment the court below treated the alleged trade-mark consisting of the word “Carbolineum” as still in force, notwithstanding the later registration of the trade-mark “Carbolineum Avenarius,” and treated the German trade-mark of George Presser as having no force or effect, and ignored the evidence that prior to' plaintiff’s registration of the word “Carbolineum” as a trademark in the United States this word had become in Germany and elsewhere in Europe a common noun word descriptive of this compound, and throughout the case seems to consider a trade-mark somewhat analogous to a patent or copyright, and to depend upon priority of discovery of the compound or upon priority of invention of the name. Certainly the situation in which the case is left declares it to be the law of Wisconsin that Avenarius can exclude from Wisconsin all other German or European imports of this preservative substance under the name “Carbolineum” because, notwithstanding that Avenarius has no right to this trade-mark at the place of his residence and citizenship as against George Presser, he is given the right as against the consignee of Presser in Wisconsin by this decision. Supp. to Browne, Trade-marks (2d ed.) 161— 164. But without going into this question of international regulations respecting trade-marks, I must upon the foregoing facts record my second ground of dissent; and that is that upon the uncontroverted evidence the word “Carbolineum” had become in Germany and elsewhere in Europe prior to the registration of that word as a trade-mark in the United States a common noun word descriptive of this certain liquid
Concurrence Opinion
(concurring). In 1876 the plaintiff invented or discovered a compound, of which coal oil formed an important part, which was valuable as a preservative of wood, and also invented and applied .to this article a new and arbitrary name, viz., “Carbolineum,” under which name it was sold in Germany for ten years and acquired a reputation. Under the laws of Germany this arbitrary word could not become a trade-mark. In 1886 the plaintiff commenced to sell the article in this country and at once registered the word as his trade-mark. Should he he protected in its use ? This is the question presented in this case, and it seems that it must be answered' in the affirmative. It would be impossible to harmonize all of the trade-mark decisions nor need the attempt be made. The principle is very well established that he who invents and applies a new word or name to an article which he makes or sells, not descriptive of the article or its qualities, nor deceptive, but fanciful and arbitrary, though perhaps suggestive, will be protected in the use of the word or name as a trade-mark. Browne, Trade-marks (2d ed.) § 219. This court has adopted this doctrine. Gessler v. Grieb, 80 Wis. 21, 48 N. W. 1098; Listman M. Co. v. Wm. List
The appellant claims that the sale of the article under this name for ten years has made the word descriptive and deprived the plaintiff of the fruits of his ingenuity and business sagacity. With reference to this contention it is well said in Belchow v. Baker, 93 N. Y. 60 (cited with approval in Gessler v. Grieb, supra):
“It cannot be true as a general proposition . . . that when a manufacturer has given to his products a new name invented by himself for the purpose of distinguishing them as his, and the article becomes generally known to the trade and to the public by that name, the name becomes public property and every one has a right to use it. That proposition can be sustained only in respect to names which are descriptive of the article and incapable of being appropriated as trademarks. The value of a trade-mark consists in its becoming known to the trade as the mark of the manufacturer who has invented or adopted it and in being known to the public as the name of an article which has met with popular favor. It cannot be that the very circumstances which give it value operate at the same time to destroy it.”
The words “Cocaine,” “Cottolene,” “Valvoline,” and “Saponifier” are precisely parallel to the word “Carbolineum.” All are arbitrary words, coined by the maker of a compound as a name for his special product, suggestive but not descriptive, and all have been sustained as valid trade-marks. In the Coilolene Case it is said (N. K. Fairbank Co. v. Central L. Co. 64 Fed. 133):
*280 “It is well settled that the inventor of an arbitrary or fanciful name may apply it to an article manufactured by him to distinguish his manufacture from that of others, and that the
Both upon principle and authority it seems that the trial court was right in its conclusions.