the trade-mark consisted of the figures "303." Figures, all the numerals, are the common property of all, and all have the right to use them generally in any sort of combination. It cannot be doubted that the general public had the right to use the figures "303" for any useful purpose, except to designate their own goods or goods of their own manufacture after the plaintiff had appropriated those numerals as his trade-mark. I do not see that the complainant here was debarred from appropriating this peculiar check-mark as his trade-mark for the reason that similar check-marks and the general use thereof for other purposes was a right common to the general public. The general public has the right, as stated, to use the numerals and all combinations. thereof; to use the pictures and figures of elephants and the figures and pictures of oxen, etc.; but if one firm or person has appropriated such pictures or symbols to his exclusive use, as his trade-mark, and the general public has permitted him to do so until the picture, symbol, or combination of numerals so selected by him has come to distinguish the goods of his manufacture from all others of the kind, I cannot see why he is not entitled to protection. So here, while the general public has the right to use this check-mark to form a gripping surface to hold the article to be gripped or to prevent the hand of the user of the tool from slipping thereon, and perhaps for other purposes, I do not see that this fact prevented the complainant from appropriating it as a trade-mark. All the world may use the check-mark except as a trade-mark. This would reduce the proposition here, on this branch of the case, to the question whether the defendant used the check-mark, in manufacturing horseshoe nails, as a gripping surface, or for the purpose of imitating the complainant's mark and manufacture so as to pass off his nails as those of the complainant company.

That question was argued before this court at great length and with great ability. The record contains a large amount of evidence on that subject. The defendant contends that, in manufacturing the nail, experience had proved that it was necessary to harden and toughen it next the head as well as to roll it into proper shape; that in passing the nail between the rollers at a certain stage of manufacture it was found that the nail was liable to jump or slip from its proper position, and that this jumping or slipping would produce a defective nail; that it was therefore necessary at this stage of manufacture to provide on the roller a gripping or holding surface which would prevent the nail from jumping or slipping between the rollers. The complainant produced in court a section of the machine which performs this operation of impressing what it contends is its trade-mark on the head of the nail. This section of machinery also showed to the court the manner in which the nail passes between the rollers. It would not be profitable to discuss the evidence bearing on this question pro and con, or to enter upon a description of the machinery. I have studied the evidence as well as the machine produced. The defendant contends that the machine produced does not fairly and fully show the operation of defendant's machine used for the manufacture of horseshoe nails. I have not placed great reliance on the machine exhibited, except as it illustrates the way in which nails must pass between the

rollers. From the evidence contained in the voluminous records of the parties I have arrived at the conclusion, and am satisfied that it was not necessary for the defendant to use the check-mark of the complainant as a gripping or holding surface in the manufacture of horseshoe nails, or, rather, to use rollers having a gripping surface thereon which would produce the complainant's check-mark on the nail. The defendant has used rollers which, in gripping the nail at this stage of manufacture, imprint thereon the exact duplication of the complainant's trade-mark. It was unnecessary to do this, even if it was necessary to have a gripping surface on the roller to prevent the slipping or jumping of the nail as it passed between the rollers. Some other of the many forms of gripping surfaces could have been used. It is significant that a gripping surface was used which produces upon the nail an exact copy of complainant's trade-mark. The complainant had made its nail with this distinguishing mark thereon for many years before the defendant claims to have discovered that a gripping surface was necessary. The complainant had built up its trade in horseshoe nails on this particular kind of nail with this check-mark thereon, which had come to be well known among all dealers and users as the distinguishing mark of the complainant's product. I am satisfied from the evidence as a whole that the nail in passing between the rollers at this stage of manufacture neither jumps nor slips, and that the use of the gripping surface, other than the rollers themselves, is entirely unnecessary, and that the defendant adopted the gripping surface which produces on the nail the check-mark in question for the purpose of producing a nail which would so closely imitate or simulate complainant's nail that to the eye of the observer the one could not be distinguished from the other, and for the purpose of selling his product on the market as nails of complainant's manufacture. If it was necessary to have a gripping surface on the roller, it was not necessary to use the only one of the many which would produce on the nail the exact counterpart of complainant's distinguishing mark, which had come to be well known in the trade and among manufacturers and dealers in and users of horseshoe nails. I therefore must find that the production of this check-mark on defendant's nails is not a necessary incident of manufacture.

I do not think the complainant ever adopted or used a roller that would produce this check-mark as an incident of manufacture, for the purpose of gripping or holding the nail in position while passing through or between the rollers. The evidence establishes to my satisfaction that the original or primary design and purpose was to impress upon the nail itself, at the place designated and mentioned, at mark of peculiar form and design, which should distinguish a certain. class or certain classes of nails manufactured by complainant from those of all other manufacturers.

Hesseltine's "The Law of Trade-Marks and Unfair Trade," says (page 6):

"A trade-mark is an arbitrary sign affixed by a proprietor to his goods with the intention of designating their origin by a use thereon: (1) An arbitrary sign is a word, a combination of words, letters, a name, a number, a figure or

symbol, not necessarily disclosing on its face the origin of the goods, affording by association a ready means of recognition of their origin."

In Columbia Mill Co. v. Alcorn, 150 U. S. 460, 14 Sup. Ct. 151, 37 L. Ed. 1144, the court said, amongst other things:

"That to acquire the right to the exclusive use to a name, device, or symbol, as a trade-mark, it must appear that it was adopted for the purpose of identifying the origin or ownership of the article to which it is attached. or that such trade-mark must point distinctively, either by itself or by association, to the origin, manufacture, or ownership of the article on which it is stamped. It must be designed, as its primary object and purpose, to indicate the owner or producer of the commodity, and to distinguish it from like articles manufactured by others. That if the device, mark, or symbol was adopted or placed upon the article for the purpose of identifying its class. grade, style, or quality, or for any purpose other than a reference to or indication of its ownership, it cannot be sustained as a valid trade-mark. That the exclusive right to the use of the mark or device claimed as a trademark is founded on priority of appropriation; that is to say, the claimant of the trade-mark must have been the first to use or employ the same on like articles of production."

These principles are sustained in numerous adjudicated cases. However, it is to be kept in mind that while the primary purpose of the adoption of the particular symbol, device, or mark must have been to indicate and identify the origin or ownership of the article to which it is attached, it is all-sufficient if the particular mark, or symbol, or device used by a manufacturer has come to point distinctively, either by itself or by association with the goods of that particular manufacturer to which attached, to the origin and manufacture of the article on which stamped, and the manufacturer of those particular goods has thereupon adopted it as his trade-mark, no other person having adopted or used it to designate his goods. If the manufacturer had originally two or more purposes or objects in adopting the particular mark, as, for instance, to indicate the quality and also the origin, and also to ornament the article, the idea being that with this particular mark the article would be more attractive when exposed for sale, and the goods of this manufacturer, bearing this particular mark, and by reason thereof, had come to be known as the goods or manufacture of that particular manufacturer, irrespective of grade or quality, and he thereupon adopted such mark, symbol, or device as his trade-mark to indicate origin solely, no other person or persons having adopted or used it, I do not see that such mark did not on such adoption become his valid trade-mark, or that the trade-mark is not valid as such. There is a difference between the original use of the mark, or symbol, or device, and its adoption as a trade-mark, and the primary purpose of its adoption as a trade-mark. Within the language of the cases, if the trade-mark points distinctively by itself, not being merely descriptive or indicative of quality, or by association to the origin, manufacture or ownership of the article on which stamped, and on which placed by the manufacturer, or it was adopted by him for the purpose of identifying the origin or ownership of such article, and it is a mark which may be lawfully so appropriated, then, in either event, it is a lawful trade-mark. "The primary object of a trade-mark is to indicate origin, and if the primary object be to in

dicate quality, then the exclusive right to use cannot be acquired." Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537, 11 Šup. Ct. 396, 34 L. Ed. 997.

The check-mark in question is not in any sense descriptive of a horseshoe nail. It does not describe its qualities, ingredients, characteristics, or uses. A horseshoe nail would. So it was held that the picture or representation of a book was not a valid trade-mark. Merriam v. Famous Shoe & Clothing Co. (C. C.) 47 Fed. 411, 413, 414. In Lawrence Manufacturing Co. v. Tennessee Manufacturing Co., 138 U. S. 537, 546, 11 Sup. Ct. 396, 400, 34 L. Ed. 997, Mr. Chief Justice Fuller said:

"The trade-mark must therefore be distinctive in its original signification, pointing to the origin of the article, or it must have become such by association."

This check-mark of the complainant is not distinctive in its original signification. It, of itself, does not point to the Capewell Company, or any company or corporation, or to any particular article of manufacture. By association with the horseshoe nails of the Capewell Horse Nail Company, this check-mark became distinctive in its signification, and points unerringly to the origin of the horseshoe nails to which it is applied. It came to mean, when imprinted on a horseshoe nail, or a package containing such nails, "made by Capewell Horse Nail Company." It meant no others, for it was not used by any other person or company who manufactured nails. Capewell's nails were of a high grade and known so to be, hence incidentally this mark indicated a first quality of nail. But this fact does not debar the complainant from protection. Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537, 547, 548, 11 Sup. Ct. 396, 100, 34 L. Ed. 997. The court said:

"Nothing is better settled than that an exclusive right to the use of words letters, or symbols, to indicate merely the quality of the goods to which they are affixed, cannot be acquired. And while, if the primary object of the mark be to indicate origin or ownership, the mere fact that the article has obtained such a wide sale that it has also become indicative of quality is not of itself sufficient to debar the owner from protection, and make it the common property of the trade (Burton v. Stratton [C. C.] 12 Fed. 696), yet if the device or symbol was not adopted for the purpose of indicating origin, manufacture, or ownership, but was placed upon the article to denote class, grade, style, or quality, it cannot be upheld as technically a trade-mark.”

In this case, under the evidence, it is a question of fact whether or not the primary purpose of the adoption of this check-mark as a trade-mark was to indicate and identify the origin, the particular manufacturer of these nails, or to indicate quality, or to ornament the nails merely.

In Lawrence Mfg. Co. v. Tennessee Mfg. Co., supra, the alleged trade-mark consisted of the letters "L. L." used on sheetings. There was evidence that these letters were adopted and used by complainant to indicate quality and weight, and that they were and had been used generally in that business and trade to indicate quality, form, and weight. The court so held the facts to be (pages 541, 545, of 138 U. S., page 400 of 11 Sup. Ct. [34 L. Ed. 997]), and decided, not that the letters "L. L." may not be the subject of a valid trade-mark,

but, first, that the complainant did not adopt them primarily to show the origin or ownership, and, second, that in that business those let-. ters could not be appropriated by any one as a valid trade-mark, inasmuch as they indicated quality, form, and weight to all and by whomsoever used when applied to sheetings, and that for such purpose in that business all had the right to use them; that they could not be appropriated exclusively by any one; and that, as the mark, sign, or symbol was one which, from the nature of the fact it was used to signify, others might employ with equal truth, others in the same business had an equal right to use it for the same purpose.

I think the evidence ample and convincing that the complainant not only adopted this peculiar check-mark, covering as it does the under or beveled side or face of the head of the nail, as a distinguishing mark, but that it did it to indicate the origin and manufacture of the nail, and that this was its main and primary object. It is also shown by ample evidence that this nail with this mark became known to the public as the principal and leading nail made by the Capewell Horse Nail Company. Horseshoe nails bearing this mark on the head came to be generally and universally known as nails made by that company. Dealers and users called for them and demanded them, and received and used them, as the nail made by that company. Nails bearing this mark were associated in the public mind with those of complainant's manufacture. In my judgment it is not pertinent to inquire why the complainant did not call or advertise these nails, bearing this mark, "Check-Mark Nails," or "Check-Mark," or by some other name, or why it did not print these or similar words on the package containing them. If the complainant adopted this check-mark of this shape, the same shape and dimensions of the beveled face of the nail, as its trade-mark to indicate and identify the origin of the nail, and placed it upon all its nails of that grade and kind, and all its packages containing them, and placed them, bearing this mark, so adopted, on the market, and, because of this mark, these nails became associated in the public mind with the Capewell Horse Nail Company as the sole maker thereof, and the public relied on the mark as the distinguishing mark of the Capewell Horse Nail Company for its nails, or nails of its manufacture, so that when it called for nails of this company it identified their genuineness by this mark and relied thereon, it seems to me that it is entirely immaterial that the complainant did not impress on each nail or each package or carton the words "This check mark is our trademark," or advertise the fact that it had adopted the check-mark as its trade-mark. It is true that such a notice would have given notice to all who read it that the check-mark was claimed as a trade-mark, but I know of no law which requires a person to advertise his trademark, or to put a notice on it or on the goods on which it is found stating that the trade-mark imprinted or attached is a trade-mark. Of course, when it is denied that a person has adopted or claimed a certain mark as his trade-mark, an old written or printed notice that he had adopted and was claiming the mark as his trade-mark might be potent and convincing evidence that the claim had been in fact made. To my mind, evidence that a person did not do something which, how