In 1876, Congress enacted a law by which it was made a penal offense, punishable by fine not exceeding $1,000 or imprisonment not exceeding two years, to knowingly imitate any registered trade mark or deal in merchandise bearing such imitated marks without authority. Of course, the invoking of criminal law cannot be justified in this case merely as a protection to the private interests of those who hold trade marks, and it was not upon the theory that the law was passed. It was seen that those who acquire a reputation for their goods because of their superiority, have every incentive to preserve their purity, and that if they are protected in the use of their brands the public will have greater security for obtaining good qualities of the merchandise it may require. Hence it becomes a public injury to counterfeit these brands, and for the punishment of this the strong arm of the criminal law may be properly invoked.

Likewise it is a grevious public injury to have spurious trees and plants disseminated; and if the protection of the public from spurious brands of coffee and soap, for example, will justify the interposition of the criminal law, how much more will its protection from the yearly increasing damages resulting from the dissemination or spurious trees, plants and seeds, warrant a similar interposition of that law ?

As will be readily seen, when a variety has become so generally distributed, that all nurserymen have had an opportunity to obtain genuine stock and propagate liberally from it, the price of specimen trees or plants of that variety will drop to the general average for specimens of that species, and then there will be little inducement to supply spurious specimens of it. Hence if we prevent frauds in. the sale of new varieties, we shall put an end to the greater part of the frauds now practiced. The fact that with genuine stock from which to propogate any nurserymen can produce trees of the identical variety produced by another nurseryman, renders it impracticable to effect this reform by means of simple trade marks, indicating by whom the trees to which these marks may have been attached were grown. But a copyright law would give to an originator and his assigns, for a limited term, the exclusive use of the name he might originally adopt to indicate his variety. As this term would cover the entire period of the novelty of a variety, and it is only by the wrongful use of an established name that these frauds can be made profitable, the conclusion seems to me irresistible, that a properly guarded copyright law would afford substantial protection against such frauds.

As to the scope of that law I would suggest briefly, that any person who should make oath that he had originated a new and distinct variety of trees, shrubs, vines, plants, bulbs, tubers, seeds or cereals, which had never been disseminated, should, under proper conditions, receive a certificate entitling him to protection in the use of the name he might originally adopt to indicate that variety, for the period now given to authors under the copyright law, with appropriate damages in case of an infringement of his rights.

Provision should be made for declaring void certificates granted on varieties which should prove to have been previously disseminated in any degree, and also for requiring the originator to indicate on all specimens, and in all advertisements of the article, the fact and date of his copyright.

It should further provide that the willful use of a valid copyright name without authority in connection with the advertisement or sale of goods of the species to which the copyright name had been applied, should be a penal offense, punishable by fine or imprisonment, as in case of trade mark violations.

As I have already shown, the property in copyright thus created, if the variety to which it might have been applied was in fact superior, would become valuable; and it may be safely assumed that the self interest of those who hold copyrights upon names, which shall have acquired sufficient reputation to offer any temptation to their fraudulent use, will see that their rights are generally respected, and that the chances of having to surrender the profits of their fraudulent sales and be prosecuted criminally, will deter the great majority of those who now thrive by frauds from continuing the same. These two influences operating together cannot help securing to the public a much larger proportion of genuine stock than it now gets, or fail to give to honest members of the trade a better chance in the race than they now have.