The Statute of July 8, 1870, to which we have referred as the statute now governing the law of patents and of copyrights, also provides for and protects trade-marks. (a) 1 From

(a) The Act of July 8, 1870, §§ 77 to 84, inclusive, provides substantially as follows: § 77. That any person or firm domiciled in the United States, or any corporation therein, and any person, firm, or corporation belonging to any foreign country, which, by treaty or convention, affords similar privileges to citizens of the United States, who are entitled to the exclusive use of any lawful trademark, or who intend to adopt any trademark for exclusive use in the United States, may obtain protection for said trade-mark by complying with the following requirements: 1. By recording at the Patent-Office the names of the parties, their residences, and place of business. 2. The class of merchandise and the particular description of foods comprised in such class, by which the trade-mark has been or is intended to be appropriated. 3. A description of the trade-mark itself, with fac-similes thereof, and the mode in which it has been or is intended to be applied and used. 4. The length of time, if any, during which the trade-mark has been used. 5. The payment of a fee of twenty-five dollars, m the same manner and for the same purpose as the fee required for patents. 6. The compliance with such regulations as may be prescribed by the Commissioner of Patents. 7. The filing of a declaration, under oath, by the person claiming the trade-mark, that he has a right to the use of the same, and that no other person has the right to such use, either in the identical form, or having such near resemblance thereto as might be calculated to deceive, and that the description and far-similes presented for record are true copies of the trademark sought to be protected.

§ 78 provides that such trade-mark shall remain in force for thirty years from the date of registration, except when it applies to articles not manufactured in this country, and where it receives protection under the laws of a foreign country for a shorter period, in which case it shall cease to have any force under this act at the same time that it becomes of no effect elsewhere; while in force it shall entitle the person, etc, registering to the exclusive use thereof, so far as regards the description of goods to which it is appropriated in the statement filed under oath; and no other person can lawfully use the same or any colorable imitation thereof. Provided that, six months prior to the expiration of the thirty years, application may be made for a renewal of registration; and, on payment of the same fee as before, an extension shall be granted for the further term of thirty years. "And provided further, that nothing in this section shall be construed as abridging, or in any manner affecting unfavorably, the claim of any person, etc., to any trademark after the expiration of the term for which such trade-mark was registered."

§ 79. Any person counterfeiting such

1 United States v. Steffens, 100 U. S. 83, declared that property in trade-marks depended for its protection upon the common law and the various State statutes, and was neither created by, nor relied for its enforcement upon, this act of Congress, and decided that the legislation of Congress relating to trade-marks was unconstitutional, as being neither within the clause of the Constitution respecting patents or copyrights, nor that authorizing the regulation of foreign and interstate commerce or with the Indians.

* the language of the statute it would seem that "mer ba chandise" and "goods" were to be the subjects of trademarks; and it has been held that a mere "product of nature " could not be protected by a trade-mark. (aa) 1

A trade-mark may be defined as a name or device used by a seller in connection with goods sold by him, to indicate that they are made by him, or that he has some exclusive right to sell them, and thus to secure to him the profits arising from the peculiar character of the goods bearing that mark.

The right to be protected in the use of trade-marks, by which we mean the rule of law which prohibits the false assumption by a stranger of such a name or device, or, as it is called in the earliest case on the subject, such a mark, is very ancient. The first case, so far as we can learn from the reports, occurred in 22 Eliz. or 82 Eliz. It is mentioned by Doddridge, J., in Popham's Reports, (b) and again by the same judge, in a report of the same case in Croke. (c) Our * notes will show that Dod bb trade-mark shall be liable to an action for damages, and party aggrieved may also have a writ of injunction. The Commissioner of Patents shall not receive any proposed trade-mark which cannot become a lawful trade-mark, or which is merely the name of a person, etc, unaccompanied by any mark distinguishing it from the same name when used by other persons, or which is the same as or closely resembles a mark already registered.

§ 80 treats of evidence of registration, etc, in a trade-mark suit.

§ 81 gives authority to Commissioner to make roles and regulations, &c

§ 82. Person making fraudulent application for registry, making fraudulent entries, etc, liable in damages to any person injured thereby.

§ 88. "Nothing in this act shall prevent, lessen, impeach, or avoid any remedy at law or in equity which any party aggrieved by any wrongful use of any trademark might have had if this act had not been passed."

§ 84. No action shall be maintained under this act by any person claiming a trade-mark "which is used or claimed in any unlawful business, or upon any article which is injurious in itself, or upon any trade-mark which has been fraudulently obtained, or which has been formed and used with the design of deceiving the public in the purchase or use of any article of merchandise."

(aa) Hence the rights of a trade-mark were refused to "Congress Water" in Congress and Empire Spring Co. v. High Bock Congress Spring Co. 57 Barb. 526.