As the statute provides that a trade-mark, when duly recorded, shall "remain in force for thirty years," and then be extended on "application" for thirty years more, it must be regarded as contemplating its continuance beyond the life of its original proprietor. But it is wholly silent as to who shall succeed the original proprietor. A man who possesses this right may have a son, bearing his name, who, in his father's life or at his death, makes the same goods, of the same quality, and affixes to them the same mark.1 If so, * it would be safer for him to re bp cord the trade-mark anew, as his own. But his exclusive right to use it might undoubtedly be respected; this would be a very different thing from his procuring this right by inheritance. For, if the right were inherited, it would go to all the heirs, or next of kin; for we have used the word inheritance, not in its technical sense, in which it attaches only to real estate, but in its more popular sense. This right would go, then, to all the children alike, and be shared among them without reference to the question whether they made the article or not; and this would be unreasonable and indeed impossible. We apprehend that supplementary legislation must provide for this. We should make the same remark in reference to the subject of testamentary disposition, unless in connection with a bequest of property or means of manufacture and a continued use of those means by the devisee. (q) It may be that the

(q) We know of no case in which an express decision has been given upon either of the questions discussed in this section. In Singleton v. Bolton, 3 Dong.

293, the plaintiff claimed by inheritance from his father the exclusive right to make a certain medicine, and, in connection therewith, to use a certain name as a

1 M, having a recipe (not discovered or invented by himself, or protected by a patent) for a liniment, gave it to members of his family, and permitted each to make and sell it with a label attached, furnished by himself, in words, "Old Dr. M.'s Celebrated Liniment," and other descriptive words, a certain vignette, and with the address of maker at the bottom, and each member, including M. himself, confined his sales to particular territory. After M.'s death, his widow continued to make and sell on M.'s territory, attaching the same label, and then sold her material and outfit to one of M.'s sons. Held, that such son had no right as against the other children, their assigns, or the public generally, to make the liniment, and use the label or M.'s name as descriptive of the article. Marshall v. Pinkham, 62 Wis. 572.

♦267 bq long period of validity given to trade-marks by the statute, will lead the courts to treat the right as in some way inheritable and subject to testamentary disposition.

bq C. Of the Acquisition of this Right by Assignment.

If the statute has, as we believe, made the exclusive right to use as trade-mark a property, it would have, by implication, given to the proprietor a right to transfer it. Even before the statute, courts have regarded the right in a trade-mark as a valuable right, and considered that a certain interest attached to it. But the statute goes farther than this implication. By the 81st section, the Commissioner of Patents is authorized to make rules and regulations for such transfer. Although the 78th section, concerning the extension of the right, does not give the commissioners similar authority. In regard to inheritance or descent, or the persons who may profit by the extension, it may be hoped that he will find his general authority sufficient to embrace this subject also. Until such rules are made, we are much in the dark as to transfer of the right.

It may be said, however, that the right to a trade-mark may not be purely personal; it may be connected in some way with machinery and capital, and the sagacious employment of skilled labor, and with all that is understood by the now common word, trade-mark, and in Canham v. Jones, 2 V. & B. 218, a similar right was claimed under a will; but in each case it was held, that the plaintiff had no exclusive right to manufacture, and that consequently he had no exclusive right to use the name which appears to have become by use the distinctive name of the article, and therefore incapable of exclusive appropriation as a trade-mark. In Croft v. Day, 7 Beav. 64, an injunction was granted in favor of executors who were earning on the business for the benefit of their testator's estate, and using his trade-mark in connection therewith. But where the business and the means of manufacturing the article to which the mark is applied descend to an heir, or pass by will to a devisee, it would seem, in conformity with recent cases, that the right to use the trade-mark might in some cases pass also; and this view is confirmed by the following dictum of Lord Cranworth, in The Leather Cloth Co. v. The American Cloth Co. 11 H. L. C. 523,

11 Jur. (n. s.) 513. He says: "I further think that the right to a trade-mark may, in general, treating it as property, or as an accessory of property, be sold or transferred upon a sale and transfer of the manufactory of the goods in which the mark has been used to be affixed, and may lawfully be used by the purchaser. When he dies, those who succeed him (grandchildren or married daughters, for instance), though they may not bear the same name, yet ordinarily continue to use the original name as a trade-mark; and they would be protected against any infringement of the exclusive right to that mark. They would be protected, because according to the usages of trade they would be understood as meaning no more by the use of their grandfather's or father's name, than that they were carrying on the manufacture formerly carried on by him." See Hine v. Lart, 10 Jur. 106 Also, note (y), infra.

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"the Plant" All this may be sold. And not only may the seller agree that the buyer may use the recognized trade-mark, but that he will not use it himself; and for a breach of this promise he would be liable in damages. (r)