(b) Southern v. How, Popham, 144. "Doderidge said that, 22 Eliz. an action on the case was brought in the Common Pleas by a clothier, that whereas he had gained great reputation for his making of his cloth, by reason whereof he had great utterance, to his great benefit and profit; and that he used to set his mark to his cloth, whereby it should be known to be his cloth; and another clothier, perceiving it, used the same mark to his ill-made cloth, on purpose to deceive him; and it was resolved that the action did well lye."

(c) Southern v. How, Cro. Jac 471. "Doderidge cited a case to be adjudged, 88 Elis. in the Common Pleas. A clothier of Gloucestershire sold very good cloth, so that in London, if they saw any cloth of his mark, they would buy it without searching thereof; and another who made ill cloth put his mark upon it without his dridge's words are reported in the two books quite differently. As given in Popham, they would leave it uncertain whether the action were brought by one whose trade-mark had been falsified, or by a purchaser who had been deceived by this falsification and led by it to purchase goods of inferior quality. But, as reported in Cro. James,- and it must be the same case, although Popham dates it ten years earlier than Croke, and the name of it is given by neither, - it is certain that the action was case on the deceit, and was brought by the purchaser of the goods. This is important, as showing that the foundation of the law of trade-marks was not a property in them by the trader, but the injury to the purchaser of the goods caused by the fraudulent falsification of the mark.

1 But Congress Spring Co. v. High Bock Spring Co. 4ft N. Y. 291, on appeal, reversed Congress, etc. Co. v. High Bock, etc Co. 67 Barb. 526, supra, and decided that the owner of a peculiar product of nature like natural mineral water, who has applied to it a conventional name, as "Congress," by which it has become generally known, and under which it has been extensively sold by him as a useful article, is entitled to be protected in the exclusive use of such name as his trade-mark in the sale of the article.

A trade-mark may be a device or symbol which may be in itself meaningless, or it may as a descriptive word indicate the origin, nature and character of the chattel, or it may consist of the name of a person together with some device. In these respects, they are of indefinite variety. The essential point is, that it should be used to designate the true origin and ownership of the article to which they are affixed. (d) 1 Whatever they are, whether names, words, figures or symbols, if they do not relate to or indicate the origin and the ownership of the article, but are intended only to express their name or describe their quality, they are not, properly privity; and an action upon the case was brought by him who bought the cloth, for this deceit; and adjudged maintainable." Com. Dig. Action on the case for Deceit A. 9, thus cites the same case from Cro. Jac.: "So (i. e., an action will lie) if a clothier sell bad cloths, upon which he put the mark of another who made good cloths." The same case is also reported in 2 Rolle, 28, where, after stating that it was held that an action on the case lay against the clothier, the reporter says: "But Mr. Justice Doddridge did not say whether the action was brought by the clothier who originally had the mark, or by the vendee, but semble que gist pur le vendee."

(d) Fetridge v. Wells, 4 Abb. Pr. 144 ; Stokes v. Landgraff, 17 Barb. 608; Amoskeag Man. Co. v. Spear, 2 Sandf. Sup. Ct. 609; Corwin v. Daly, 7 Bosw. 222; Falkinburg v. Lucy, 35 CaL 64; Newman v. Alvord, 49 Barb. 588; Filley v. Fassett, 44 Mo. 168; Ferguson v. Davol Mills, 2 Brews. 316; Dixon Crucible Co. v. Guggenheim, 2 Brews. 321. The name of a place where goods are manufactured may be adopted as a trade-mark, as against a person living in another place, Newman v. Alvord, 49 Barb. 588. but not against one living in the same place. The Brooklyn White Lead Co. v. Mesury, 26 Barb. 419.

1 It is not essential to property in a trade-mark that it should indicate any particular person as the maker of the article to which it is attached; it may represent to the purchaser the quality of the thing offered for sale, and in that case is of value to any person interested in putting the commodity to which it is applied upon the market, and he is entitled to protection in its use, Godillot v. Harris, 81 N. Y. 263; thus, numerals arbitrarily selected, used in combination with other devices to denote origin of goods form a valid trade-mark, Lawrence Mfg. Co. v. Lowell Mills, 129 Mass. 326; or the name of a place, as "Akron Cement," Newman v. Alvord, 51 N. Y. 189; or pictures, symbols, or a peculiar form or fashion of label, or simply of a word or words, Hier v. Abrahams, 82 N. T. 519.

257 bc speaking, trade-marks. (e) l If, however any one invents a * new word to designate an article made by him, he bc may obtain an exclusive right to it as his trade-mark, although the word indicates the nature or composition of the article. (ee) This principle has been adopted in England, although held not to apply where the article is patented, as the name then becomes identified with the goods. (ef) Although words in common use and not of themselves denoting ownership or origin cannot generally be appropriated, it has been held that where the use imparted a new attribute, meaning, or office to the word, in no way trenching upon any previous use or purpose to which it had been applied, it might be adopted as a trade-mark. (eg)

(e) See cases cited in note (d). In Town v. Stetson, 5 Abb. Pr. (n. s.) 218, protection was sought for the name "Desiccated Codfish," but this was held a mere term of description, and an injunction was refused. So in Wolfe v. Goulard, 18 How. Pr. 64, the name "Schiedam Schnapps " was refused protection for a similar reason; while in Corwin v. Daly, 7 Bosw. 222, the words "Club-House," applied to gin, was considered indicative of quality only, and, as such, not capable of exclusive appropriation as a trade-mark. In this case, Judge Robertson, after an elaborate examination of the authorities, in which he shows that, in many cases where injunctions were granted, the imitation was in the manner and form of presenting the words, and not merely in the use of the words themselves, concludes by saying : "None of the cases enumerated impugn the doctrine, that names having a definite and established meaning in the language, which do not indicate ownership or origin, or something equivalent, cannot be appropriated by one so as to exclude a similar use by others." See also Bininger v. Wattles, 28 How. Pr. 206; Gillott p. Esterbrook, 47 Barb. 455, affirmed in 48 N. Y. 874; The Leather Cloth Co. v. The American Leather Cloth Co. 11 H. L. C. 523; Liebig's Extract of Meat Co. v. Hanbury, 17 L.T. Rep. (n. s.) 298. But in Braham v. Bustard, 1 Hem. & M. 447, the defendants were restrained from using the word "Excelsior," as applied to a particular kind of soap. And see Boardman v. Meriden Britannia Co. 85 Conn. 402.