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used by other persons; and then it is only the combined mark that is protected.
479. Article 478 does not apply to any unlawful business, or to any material which is injurious in itself, or to any trade-mark which has been fraudulently obtained, or which is used with the design of deceiving the public in the purchase or use of any material.
Act of Congress of the United States concerning patents, &c., July 8, 1870, Art. 81, U. S. Stat. at L., vol. 16; Leather Cloth Co. v. American Leather Cloth Co., 11 Jur., (N. 8.,) 513; 35 L. J., Chanc., 53; 13 W. R., 873; 12 L. T., (N. S.,) 742 ; 11 H. L. Cas., 523; Hobbs v. Francis, 19 How. Pr., 567.
It was held in Curtis v. Bryan, (36 Hor. Pr., 33,) that the principles upon which courts have refused to protect a trade-mark which involved a deception upon the public, do not extend to cases where the deception alleged is not in the trade-mark itself, but in advertisements used to ad. vance the sales of the article; but the provision of the act of Congress of the United States, mentioned above, seems to refuse protection in such a case.
The use of the word “patent,” however, on goods not actually patented, but which by long usage are known by that name in the trade, is not such a misrepresentation as deprives the user of protection. Marshall 0. Rogs, 8 L. R. Eq., 651 ; 17 W. R., 1086; Stewart v. Smithson, 1 Hilton, 119.
Registry of foreign trade-mark.
480. To enjoy the protection afforded by this Title, in any nation other than that in which the claimant is domiciled, the trade-mark must be registered in such nation, with a statement of the following particulars :
1. The name of the party who desires the protection of the trade-mark, and his residence and place of business;
2. The class of merchandise, and the particular description of goods comprised in such class, for which the trade-mark has been or is intended to be appropriated ;
3. A description of the trade-mark itself, with a facsimile thereof, and the mode in which it has been or is intended to be applied and used ; and,
4. The length of time, if any, during which the trade-mark has been used. Act of Congress of the United States, July 8, 1870, $ 77.
This leaves it to each nation to protect domestic trade-marks to such extent as may be deemed suitable. Thus, in France, certain tradesmen in particular cities enjoy the exclusive use of a mark peculiar to articles of their trade produced in that city.
481. There inust also be filed in the same office with the registry, a declaration, under the oath of the party or his agent, to the effect that the claimant has a right to the use of the same in such nation, and that no other person or corporation has a right to its use there; and that the description and fac-simile presented for registry are true.
Offices where registry is to be made.
482. The registry of trade-marks under this title, in each nation, is to be made in the office of the chief secretary of state for the interior or home department, and in such other offices as shall from time to time be designated by the legislative authority of the nation.
In the HANSEATIC CITIES, the tribunal of commerce is designated as the place of registry.
Treaty of commerce and navigation between France and the Free Cities of Lubeck, Bremen and Hamburg, March 4, 1865, Art. XXIV., (9 De Clercq, 187, 195.)
In the NETHERLANDS, two copies in the registry of the tribunal of the arrondissement at Amsterdam.
Treaty of commerce and navigation between France and the Nether lands, July 7, 1865, Art. XXIV., (9 De Clercq, 337, 343.)
In AUSTRIA, two copies in the chamber of commerce of Vienna.
Treaty of commerce between France and Austria, December 11, 1866, Art. XII., (9 De Clercq, 646, 649.)
In the Grand Duchy of BADEN, “au bureau bailliage de la ville du Carlsruhe."
Convention between France and the Grand Duchy of Baden, July 2, 1857, Art. II., (7 De Clercq, 298.)
In Russsa, in the department of manufactures and internal commerce, at St. Petersburg.
Treaty of commerce and navigation between France and Russia, Art. XXII., (7 De Clercq, 278, 286.)
In PORTUGAL, at the registry of the tribunal of commerce de première instance.
Convention between France and Portugal, April 12, 1851, Art. XVII., (6 De Clercq, 101, 107.)
In FRANCE, in the registry of the tribunal of commerce [of the Seine,] or the council of prud'hommes.
Free Cities of Lu.)
beck, Bremen Mar. 4, 1865, Art. XXIV., 9 De Clercq, 187, 195.
& Hamburg, )
Dec. 11. 1866. " XII., 9 Id., 646, 649.
" II., 7 ld., 298.
June 14, 1857, “ XXII., 7 Id., 278, 286. The convention between France and Portugal, April 12, 1851, Art. XVII., (6 De Clercq, 101,) designates the registry of the tribunal of the Seine,
The Act of Congress of the United States concerning “patents," July 8, 1870, provides for the registration of trade-marks in the Patent Office in Washington, D. C.
Equal privileges of foreigners.
483. Every nation party to this Code, which provides for the registration of domestic trade-marks, must allow, upon the same terms and with the same effect, the registration of foreign trade-marks by members, and domiciled residents of the other nations.
The International Copyright Congress, held at Brussels in 1858, resolved:
1. On the principle of an international recognition of property in works of literature and art, in favor of their authors;
2. This principle ought to be admitted, even in the absence of reciprocity ;
3. Foreign authors should be on the same footing as native;
4. Additional formalities should not be required of foreign authors; it should be enough to comply with the formalities of the law of the place of first publication ;
5. It is desirable that all countries should adopt legislation on an uni. form basis.
France (says Blaine, in paper in Transactions of National Association for Promotion of Social Science, 1862, p. 868,) has adopted the first four rules, and alone has dispensed with conditions of reciprocity.
Under the French law it is unlawful, without the permission of the author, to publish a work already published in a foreign country with which no copyright convention exists. Vopinger on Copyright, ch. XVIII., p. 240.
The principal French conventions are with
Mecklenburg- / June 9, 1865, 9 Id., 303.
- Sept. 19, 1865, 9 ld., 372.
May 26, 1865, 9 ld., 286.
May 12, 1865, 9 ld., 244.
Mar. 24, 1865, 9 Id., 222.
Aug. 2, 1862, 8 Id., 495.
-(extended to) Electorate of Hesse, 9 ld., 205 ; Principalities of Reuss, 9 Id., 221, 283 ; of Schwartzburg-Rudolstadt, and of Schwartzburg-Sondershausen, 282 ; of Waldeck and Pyrmont, 284 ; of Lippe and of Anhalt, 373 ; of Lippe Detmold, 470 ; of Schaumbourg Lippe, 471 ; to the Duchies of Saxe Altenbourg, 228; of Brunswick, 232 ; of Saxe Coburg Gotha, 285 ; of Anhalt Dessau, 472; and to Hesse Hornbourg, 284.
England has international copyright conventions (less complete and liberal than those of France,) with Prussia, France, Italy, Belgium, Spain and some other Powers.
ARTICLE 484. Ownership of products of the mind.
Oronership of products of the mind.
484. The author of any product of the mind, whether it be an invention, or a composition in letters or art, or a design, with or without delineation, or other graphical representation, has an exclusive ownership therein, and in the representation or expression thereof; and the sole right to copy the same or reproduce it in any form, or to modify or adapt it or any part of it to new circumstances, subject to the provisions of this Title.
The Cioil Code, reported for New York, S 429.
This provision establishes an international recognition of property in works of literature and art, in favor of their authors, and without reference to reciprocity (except to the extent to which all provisions of this Code are reciprocal,) which are the first two principles agreed upon by the International Copyright Congress of Brussels, of 1858.
The Civil Code, reported for New York, (8 430,) also provides for joint ownership.
It has been held in the New York Superior Court, that the common law right of the author of a dramatic composition is not affected by the ordinary public representations, and that a spectator's reproducing the composition from memory was an infringement. Palmer o. De Witt, 40 Howard's Pr. (New York) Rep., 293.