(ee) In Burnett v. Phalon, 9 Bosw. 192, the court say: "Every man has a right to the reward of his skill, his energy, and his honest enterprise, and when he has appropriated as his trade-mark letters combined into a word before unknown, and has used that word, and long published it to the world as his adopted trade-mark, he has acquired rights in it which the courts will protect." In this case the word in question was the word "Cocoaine," which had been invented by the plaintiff, and applied by him to a peculiar preparation for the hair, made in part from cocoa and oil. So in Caswell v. Davis, 4 Abb. Pr. (n. s.) 6, the term "Ferro-phosphorated," forming a part of the name of a medicine, was protected as being a new word, although it indicated the ingredients of which the article were composed. In Davis v. Kendall, 2 R. I. 569, the name of the plaintiff's medicine, "Vegetable Painkiller," was Held a good trade-mark. So of a new combination of words forming the name of a newspaper. Matsell v. Flanagan, 2 Abb. Pr. (n. s.) 459. See also Wolfe v. Goulard, 18 How. Pr. 64. But in Fetridge v. Wells, 4 Abb. Pr. 144, the doctrine laid down in Burnett v. Phalon, is considered as doubtful in point of principle. The plaintiff gave his book-store the name of "Antiquarian Book-store," and used this name in his advertisements and business transactions. Held, that he had no exclusive right to it as a trade-mark. Choynski v. Cohen, 89 Cal. 501.

(ef) In an English case, where an inventor had for many years called his manufacture "The Original," another manufacturer was enjoined against using those words. Young v. MacRae, 9 Jur. (n. s.) 822.

1 Gilman v. Hunnewell, 122 Mass. 189; Van Beil v. Prescott, 82 N. Y. 680. But Dunbar v. Glenn, 42 Wis. 118, decided that the word "Bethesda," as applied to plaintiffs spring, to indicate its origin and ownership, and not as a generic or geographical name, or as merely descriptive of the article, was a valid trade-mark, and would be protected. The mere idea represented by some figure on an article sold for polishing purposes, that it will make things bright enough to be used as mirrors, was held not to be a subject for appropriation as a trade-mark, in Enoch Morgan's Sons' Co. v. Troxell, 89 N. Y. 292.

Some difficulty has been found in applying the general rule above stated. If a man, by greater care, skill or bd * honesty makes a certain article better than others make it, and informs all purchasers by a mark on the article that it is of his make, a purchaser who wishes to buy that article must not be cheated into buying another article, by some one who falsely puts upon it the mark used by the maker to designate his work. And if the maker profits by his reputation, and puts the mark to secure this profit, he must not be cheated out of it.

But if a maker chooses to assert that his wares are of extraordinary excellence, and puts a label on them simply expressing this, as "extra superfine all-wool broadcloth," another may say his cloth is quite as good, and assert this by affixing to them the very same label; and the purchaser must look out for himself. The distinction is this: - the law does not undertake to guard any one against or give him compensation for the inferior quality of the goods he buys; it says to him caveat emptor; he must ascertain for himself the quality of the goods, or take a warranty. But the law will protect him against the deception which would cause him to buy a certain article when he supposed he was buying and paying for a different article. If A has a high reputation for making, we will say, gloves, and B sells to C other gloves, falsely asserting that they were made by A, it might be that C would have his remedy for the fraud; but it is certain that A would be without remedy, unless he had the practice of placing a definite mark upon his own gloves by which they might be known and recognized as of his manufacture, and in that way distinguished from all others, and this mark were falsified by B. Such a mark would be A's trade-mark. It must be intended by him as his trade-mark, and known and recognized as such. And the fraud, for which he has his remedy, consists in the use by another of this mark, for the purpose of deception, or in such a way as to lead to deception.

(eg) Messerole v. Tynberg, 4 Abb. Pr. (n. s.) 459; Newman v. Alvord, 49 Barb. 688; Barrows v. Knight, 6 R. L 434; Howard v. Henriques, 3 Sand. Ch. 725;

McAndrew v. Bassett, 10 Jur. (n. s.) 492. In all these cases proper names, either of men or of places, were used as trademarks.

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The legal test must always be, Did the mark itself ascribe the manufacture to him who used the mark? It might be that a mark would do this, or might after a while become capable of doing this, because of the general recognition of this meaning, although it contained no name nor initials nor * other indication of a name. But such cases must be be rare; if a man used a mark which in no way referred to him, the reasonable presumption would be against his intention to mark the thing in that way as his own. (f) But it would seem to be now well settled by the decisions, that any arbitrary symbol, though in itself meaningless, may be adopted as a trade mark, if it has never before been applied to a similar purpose. (g) The safest course is to follow the custom which is now nearly if not quite universal; and that is, to connect with a mark a name or designation which should connect the thing bearing the mark, with the man who uses the mark.

(f) "The moment," says Judge Robertson, "that the straight-forward and simple mode of indicating ownership by the owner's name, is abandoned, the burden is thrown upon the complaining party of showing that the designation used does not mean something relating to the quality of the article, or some other attribute." Corwin v. Daly, 7 Bosw. 222. So Hobbs v. Francais, 19 How. Pr. 567. On the other hand, in Williams v. Johnson, 2 Bosw. 1, Judge Woodruff says: "If the plaintiffs had chosen to stamp their soap with some impression, having no other meaning than to distinguish their manufacture from that of others, and had given it out as their mark, and, by this discrimination, soap of their manufacture had acquired reputation and sale, they would be plainly entitled to protection. And, in this case, it was considered a proper question for a jury, whether the words "Genuine Yankee" had been used by the plaintiffs to designate ownership, or merely as words of quality. So in Barrows v. Knight, 6 R. I. 434, plaintiffs claimed a trade-mark in the words, "Roger Williams Long Cloth," as applied to goods of their manufacture, and it was held to be a question for the jury, whether the goods bearing that mark were known by the public as the manufacture of the plaintiff.

(g) Thus, in Gillott v. Esterbrook, 47 Barb. 455, affirmed in 48 N. Y. 374, the number 303, used as a trade-mark on pens, was protected. In Harrison v. Taylor, 11 Jur. (n. s.) 408, the figure of an ox was placed by the plaintiffs on the boxes of mustard put up by them, and held a good trade-mark. In Edleston v. Edleston, 9 Jur. (n. s.) 479, the figure of an anchor was used to designate the plaintiff's iron. And in Kinahan v. Bolton, 15 Irish, Ch. 75, the letters L. L. used to designate a particular brand of whiskey, were considered a good trade-mark, although the plaintiffs always placed their own name upon their labels in addition. See also, Motley v. Downman, 3 My. & Cr. 1; Hall v. Barrows, 10 Jur. (n. s.) 55; Carrier v. Carlile, 8 Jur. (n. s.) 183; Ransome v. Bentall, 3 L. J. (n. s.) Ch. 161; McAn-drew v. Bassett, 10 Jur. (n. s.) 492; Mes-serole v. Tynberg, 4 Abb. Pr. (n. s.) 459; Davis v. Kendall, 2 R. I. 569; Dale v. Smithson, 12 Abb. Pr. 237; Seizo v. Provezende, Eng. Eq. Rep. 1 Ch. Ap. 192.

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