The Elementary Rule in Trade Marks

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The elementary rule in trade‑marks

By

S J Tubrazy

The elementary rule in trade‑marks, in the language of Lord Langdale all the case of Perry v. Truefitt is that one man has no right to put off iris goods for sale as the goods of a rival trader, and he cannot, therefore, be allowed to use names, marks, letters or other indicia, by which he tray induce purchasers to believe that the goods which he is selling are the manufacture of another man. A man may mark his own manufacture, either by his name, or by using for the purpose of any symbol or emblem, however unmeaning in itself, and if such symbol or emblem comes by use to be recognized in trade as the mark of the goods of a particular person, no other trader has a right to stamp it upon his goods of a similar description.

Normally a trade‑mark will consist of a picture, symbol, label, word or words which the owner will give to his girds for distinguishing them from the similar ‑goods of others so that they are identified as his goods. However, to fulfil these attributes, his “trade‑mark” must be distinctive. In this paper I propose to first present before you some facets of this attribute of “distinctiveness”, particularly the interpretations of distinc­tiveness and then briefly refer to the grounds for rectification of the register wherein the trade‑mark is entered.

The concept of “distinctiveness” in relation to trade marks as under­stood in the English Common Law countries today has its origin in the enactments of their Legislatures and the interpretations made from time to time by eminent Judges of those countries.

Lord Halsbury while intervreting the U. K. Acts of 1883 to 1886, in Perry Davis v. Harborb2said: “The word distinctive means distinguishing a particular person’s from somebody else’s goods not a quality attributed.

Elaborating the concept of distinctiveness Lord Russel, in the case of “The Canadian Shredded Wheat Co. Ltd. v. Kellog Co. of Canada Ltd.’ observed that “Distinctiveness must carry with it the feature that the goods distinguished are the goods manufactured by a particular person and by no other. A word or words to be really distinctive of a person’s good must generally speaking be incapable of application to the goods of any else”. While according to Lopez L. J. the meaning of the word “distinctive” I understand to be this, that it must be a mark or device of such a kind that in case of infringement it shall be clear what it is that is being infringed, and that the mark is something different from all other marks used in the same class of goods.

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