Chapter VII: How to Devise a Trade-Mark

A Trade-mark may be a word, or words; or a device; or a device combined with a word or words.

It is often considered desirable to register the name of a product as a trade-mark. Consequently, in the case of new products, the selection of a trade-mark often means the selection of a name for the merchandise with which the trade-mark is to be used.

CREX
Grass Furniture
TRADE MARK

_A familiar and excellent example of a coined word used as a
trade-mark._

]

A trade-mark, to be valid, should not have any meaning obviously descriptive of the goods for which it is registered. The word "Crex", to illustrate our meaning, is an arbitrary coined word. As such it is registrable, and besides its undoubted validity, it has some of the best qualities that a trade-mark can possess, in that it is short--of one syllable--easy to pronounce and remember, and its sound is not displeasing to the ear. Note that in the name "Crex Grass Furniture", the word "Crex" is alone registrable. "Grass Furniture" is a descriptive term.

Coined words, like Karo, Onoto, Chiclets, Crisco, Uneeda, Jap-a-lac, Sapolio, are virtually infringement proof. The ownership of a coined word, as applied to the commodity with which it is associated, rests absolutely in the individual or concern that first uses it.

Many of these coined words are only fortuitous combinations of letters, arrived at after divers experiments. Such a word is "Onoto", applied to a fountain pen. It was selected from a list of hundreds of similar names, in which all sorts of curious arrangements of letters were set down.

In the creation of an artificial or "coined" word, a mere misspelling of a word or phrase does not make it registrable, if it would not be so otherwise. "Bestok", a misspelling of "Best Stock", was refused registration, as it is plainly descriptive.

"Omo" is the trade-mark of a dress shield; "Persil"--a coined word--is a washing compound; and "Steero" is the trade-mark and the name of bouillon cubes.

"Sealpackerchief" is a name made up of "Sealed", "Package" and "Handkerchief". It is the trade-name of a brand of handkerchiefs that are sold in clean sealed packages.

"Nabisco" is a name made by joining together the first syllables of the three words "National Biscuit Co."--Na-Bis-Co--Nabisco.

+---------------------------------------------------------------+
| =The Porto Rico Seal of Quality= |
| |
| |
| PORTO RICO ASSOCIATION |
| DISINTERESTED |
| INSPECTION |
| HONESTY |
| PURITY EFFICIENCY ENERGY EXCELLENCE |
| PROGRESS |
| ON THE SQUARE |
| GUARANTY |
| |
| The Government of the Island of Porto Rico has |
| given its encouragement and material support to the |
| formation of an association among the large planters, |
| shippers and manufacturers of the Island. This organization, |
| known as the Porto Rico Association, is active in promoting |
| the sale of Porto Rican products in the United States. As a |
| guaranty of the quality of the goods, each member of the |
| Association--after his shipment has been inspected and |
| approved--has the right to use the "Porto Rico seal of |
| quality", shown here. This seal is not a trade-mark in the |
| technical sense, but it is affixed to Porto Rican merchandise |
| of high quality, sold at the New York store of the Porto |
| Rico Association at 510 Fifth Avenue, New York, and |
| elsewhere, and in that relation it is a common law |
| trade-mark, with ownership vested in the Porto Rico |
| Association. |
+---------------------------------------------------------------+

The name "Roxonia", a registered trade-mark, applied to hosiery and underwear, is an evolution of the name Roxburghe. When the goods were first put on the market the Duke of Roxburghe was on a visit to the United States, "taking notice" of an heiress, and was, in virtue of this situation, much in the public prints. A manufacturer of underwear thought Roxburghe sounded pretty good, and he applied for registration of the name as a trade-mark. His application was refused on the ground that Roxburghe was the name of a person. Abandoning "Roxburghe", another cogitation of the subject brought to light the word "Saxonia", this name having been suggested by the fact that Saxony is one of the great centers of hosiery production. "Saxonia" was refused registration because it is a geographical term. The addition of two letters to the word "Saxon" does not make sufficient change to remove it from the prohibited class of geographical terms. With these two rejections before him, it occurred to the manufacturer that he could unite the two words, and get rid of the objectionable feature of each. This was done, and the result is "Roxonia", which is not only a valid trade-mark, but a very good one.

REG. US ARCO PAT OFF
SPOTZOFF

_The clever trade-mark of a cleaning fluid._

]

A trade-mark may consist of a coined word which is suggestive, but not descriptive. An example of this is shown in the "Arco Spotzoff" trade-mark. This is the name, as well as the trade-mark, of a cleaning fluid. "Spots Off", spelled in any way whatsoever, suggests cleaning and cleanliness, but it does not describe the cleaning fluid. This is a very ingenious trade-mark. With a slight variation it would be unregistrable. For instance, "Spot Remover" would not be valid, because it is an ordinary descriptive term--an advertisement, in short.

RUBEROID
(Trade Mark. Reg. U. S. Pat. Office)

_Susceptible of mispronunciation._

]

Two other examples of coined words, suggestive but not descriptive, are "Sealpackerchief"--mentioned above--and "Hydegrade".

In some instances, there is a sort of tangential, or left-handed suggestiveness, about a trade-mark which gives it a significance quite different from the idea that was in its owner's mind when he adopted it. This is a defect in any trade-mark. An example of this is the "Ruberoid" trade-mark, applied to a high-quality, ready-to-lay roofing, sold in rolls. It is pronounced "Rue-ber-oid". The owners of this product state, in their advertising, that Ruberoid does not contain any rubber. It is not a rubber roofing. But a large percentage of the public pronounces the word "Rubber-oid", and many people have the impression that Ruberoid is a rubber roofing. The name is suggestive of rubber. This effect is not an intentional one, as is plainly shown by the widely advertised statement of the owners that Ruberoid contains no rubber, as well as by their taking the trouble to indicate the correct pronounciation in their advertisements.

WILBUR
TRADE MARK
Reg. in U. S. Pat. Off.

_The trade-mark of H. O. Wilbur & Sons._

]

A trade-mark name should not be easily susceptible of mispronunciation.

An arbitrary symbol may be a valid trade-mark. The Wilbur Chocolate trade-mark, showing a Cupid stirring a cup with a large spoon, is an example of an arbitrary symbol used for this purpose.

The McCutcheon trade-mark, consisting of the representation of an old-fashioned spinning wheel, is arbitrary in the sense of not being descriptive, but it is suggestive of flax and fine linen, which is a specialty of the McCutcheon store.

The trade-mark of Domino sugar is the picture of a red domino or mask.

Initials, like "E. & W."--used on Earl & Wilson collars; "G.E."--the trade-mark of the General Electric Company; and "R & G"--used on corsets, are valid as trade-marks.

SONOR

_A trade-mark in which the defects predominate._

]

A trade-mark may be the name of a fictitious person, like "Buster Brown", used in connection with hosiery, and "Dorothy Dodd" used as a trade-mark for shoes.

A famous example of initials used for this purpose is the "B.V.D." trade-mark.

RUBDRY
BATH TOWEL

_An excellent, distinctive trade-mark._

]

Good trade-marks are simple and distinctive. The mark should be of such a character that it can be easily retained in the purchaser's memory, and it is apparent that this is not readily done when it is complicated and commonplace.

Look at the "Sonor" trade-mark, reproduced on this page, as an illustration of this point. The lettering is so involved that it is difficult to read, and it looks like a pattern of some intricate fancy work. Compare it with the simple, clear-cut "Rub-dry" trade-mark.

BIRD
NEPONSET
PRODUCTS
TRADE MARK
Reg. U. S. Pat. Off.

_A trade-mark cluttered up with too much detail._

]

The "Neponset" trade-mark has so much in it, including the picture of a child in a rainstorm, that it loses its character when it is reduced to any practical, small size for advertising purposes. The single word "Neponset", enclosed in a simple design, would be much more effective--or the child holding the piece of roofing over her head would be equally effective, if shown alone, without a background.

An example of a commonplace trade-mark is the big "P" surrounded by a circle. This mark lacks distinction and originality. It makes but little impression upon a reader's mind, and is soon forgotten.

p
TRADE MARK

_A trade-mark that bears a startling resemblance to a soda-water
check._

]

Compare the big "P" with the admirable "Pacific" Mills trade-mark. The Pacific Mills emblem is graceful, simple, distinctive, and has a swing and a whirl to it that suggest motion. When a symbol is used as a trade-mark it is always advisable to put the suggestion of motion into it, if this can be done without the sacrifice of some other essential quality. A thing in motion arrests the eye, and holds the attention, much better than a still figure. Evidence of this is seen in the well-known Dutch Cleanser trade-mark, where the motion of the lady in wooden shoes dominates every other quality of the symbol.

An arbitrary number may be a valid trade-mark. The number "830" has been judicially held to be a good trade-mark for a brand of hosiery. The number "4711"--an arbitrary arrangement of figures--has been in use since 1792 as a trade-mark for toilet preparations. The numerals "1" to "35" are valid trade-marks, as applied to Humphrey's Homeopathic Remedies.

A numeral indicating quality or composition cannot be protected against infringement.

TRADE
PACIFIC
MARK

_This design is very attractive. A fine example of a symbol with
wording._

]

A trade-mark may be the name of a mythological character, like Juno, Venus--there is a Venus lead pencil--Hercules, or Apollo, this last name being used in connection with a player-piano. It may be the name of an historical character, like Voltaire, Buckingham, Mazarin, Napoleon--used with a brand of flour--or Champlain; or Samson, used as a name of a clothes-line sold in a package. It may be the name of a character in fiction, like Hamlet, David Copperfield, Hypatia or Portia. "Pequot", the name of an extinct Indian tribe, is the trade-marked name of a brand of sheets and pillow cases. The name of an existing Indian tribe is not valid as a trade-mark, as it has a geographical significance.

A phrase in common use may be registered as a trade-mark, provided it has none of the qualities prohibited by the Act of 1905. For example, "Yours Truly" is the registered trade-mark of an article of food.

A word in common use may be valid as a trade-mark if it has no defects under the act. There is, for instance, an "Arrow" collar, a "Lion" collar, and a "Velvet" smoking tobacco. If careful consideration is given to the selection, it is sometimes possible to find an ordinary word that may be very effective as a trade-mark. There is, for example, the word "Rainbow", used as a name for dyes. This word is not descriptive of the dyes, but it is tremendously suggestive of their quality and their wide range of colors.

"Gold Cross" is the trade-mark of a brand of condensed milk.

"Skidoo" is the particularly happy name of a rough-and-ready soap, and this is also used as the trade-mark of a marine engine. "Flash" is the name of a soap. "Bread Winner" is the trade-name of a line of children's suits.

There are many trade-marks made up of two or more words, such as "Bachelor's Friend", for hosiery; "Iron-Clad", also a hosiery trade-mark, and "Porosknit"--a coined word made up of "Porous" and "Knit".

The portrait and name of a living person may be registered as a trade-mark, provided the application is accompanied by the written permission of the person whose name and portrait are shown. There is a "Maxine Elliott Soap", and a "Mrs. Rorer's Coffee".

The name of a natural object used in a fanciful sense, may be registered. There are many examples of this usage, such as "Beech-Nut" bacon, "Ivy" corset, "Hawkeye" camera, and "Eagle" condensed milk.

A trade-mark may consist of a fanciful combination of words, like "Blue Jay", applied to corn plasters; "Red Devil", "Silver Moon", and "Flying Cat".

IPSWICH
HOSIERY

_A well-balanced and handsome design._

]

When a design and wording are used in combination, care should be taken to make them fit together without discord. Attractiveness is a quality that is desirable in a trade-mark if it can be attained without a sacrifice of more virile features. The Ipswich Hosiery trade-mark is eye-catching and attractive. It contains as much in lettering and in illustration as the Neponset trade-mark shown on page 80, and it is much more attractive. This trade-mark--as shown in the accompanying engraving--is descriptive, as it contains the word "hosiery", and it contains a geographical term--"Ipswich". These features would probably prevent its registration under the general Act of 1905, but not under the ten years' clause of that act, provided it could fulfil the requirements of that clause.

COPYRIGHT 1903

_Swift & Co.'s trade-mark._

]

The trade-mark of Swift & Company, of Chicago, is unusually distinctive. Its symbolism is interpreted in a circular issued by Swift & Company, of which the following is an excerpt:

"Four factors intimately combined enter into the symbol. They are: (1) the 'S', (2) the dart, (3) the circle, (4) the pivot.

"The 'S', combined with the dart in one piece, is a personality symbol, serving to set forth the name 'Swift', both accurately and generally, since the dart is an ancient and world-wide symbol of swiftness.

"The dart by itself is a humanity symbol, carrying the thought of speed and directness. In its position in the symbol it indicates high aim and rectitude.

"The circle is a humanity symbol, carrying the thought of universality, and everywhere recognized as the perfect form.

"The pivot symbol is beautifully developed by the 'S' which centers in the circle, and is itself a form of the pivot symbol.

"The black and red color scheme accentuates the pivot and gives the thought of day and night, of life and death, of heaven and hell--in short, the thought of dualism in life."

This design is simple, graceful, distinctive, and appropriate. In a business as far-reaching and as complex as that of Swift & Company, the quality of adaptability in a trade-mark is highly desirable. This trade-mark is of such a character that it may be used with appropriateness upon merchandise, stationery, packages, boxes, sides of cars, and in advertisements.

The engravings Nos. 1, 2, 3, and 4, illustrate the various steps taken in devising the trade-mark of the W. H. McElwain Company, of Boston. The fundamental idea was to incorporate the initials of the firm, W. H. M., into the design in some effective way. From a large number of suggestions the design marked No. 1 was selected. It can be seen that the three bars shown in No. 1 make the initials W. H. M.--but somebody has to tell you before you see it.

THE
McELWAIN
MARK

_No. 2._

]

The next step, shown in No. 2, was to put in the sole of a shoe, as the trade-mark is intended for shoes, and to letter "The McElwain Mark" across the face of the bars.

The design shown in No. 2 lacks cohesion and finish. To hold it together, a border was put around it and a Ben Day background thrown in. This produced the figure shown in No. 3.

THE
McELWAIN
MARK

_No. 3._

]

The design marked No. 3 is quite striking, but if you look at it awhile you begin to see defects in it. The black initial bars are too strong and glaring. They push the rest of the design out of the picture. This defect was cured by putting the initial bars in white with the sole of the shoe in black, and making the background darker. By doing this, the proper balance between white and black was obtained.

THE
McELWAIN
MARK

_No. 4._

]

The design shown in No. 4 is the finished trade-mark.

In devising a trade-mark, any one who does not clearly keep the requirements of the law in mind is likely to fall into one or another of three classes of errors.

First, there is a natural tendency to make a trade-mark descriptive, to insert in the wording some phrase like "Best Quality", "Sold the World Over", or "Fits the Figure" or "Good for Children"--all of which are descriptive phrases. You cannot register or protect an advertisement used as a trade-mark, and such phrases are advertisements. A trade-mark is a thing to be advertised. It must not be an advertisement itself.

Second, there is a tendency on the part of many advertisers to incorporate their own names into their trade-marks. This often leads to interminable and costly litigation.

Third, there is a tendency among manufacturers to select geographical terms as their trade-marks, to use the name of the towns or cities where their plants are located, or the names of states, or of rivers or oceans. The trade-name, "Baltimore" hosiery, has a good sound, and the word "Baltimore" is easily remembered, simple and euphonious. But if you are a hosiery manufacturer, and adopt it, you do so at your peril, even if you do business in Baltimore. You cannot protect it against any other manufacturer of hosiery who has a plant in Baltimore, even on the grounds of unfair competition, unless you have used the name exclusively, and for such a long period of time, that it has lost most of its geographical sense in the hosiery trade, and has developed into a word of restricted meaning in that line of business.

* * * * *

P.S. A manufacturer who intends to apply for the registration of
a new trade-mark should take the precaution to have the files of
the Patent Office searched to ascertain if a trade-mark like his,
or similar to it, has been already registered for the same class of
merchandise. This should be done before application for registration
is made.

When application to register a trade-mark is filed, the trade-mark
must be already in use. This use may be limited to affixation upon a
small consignment of goods, but it must be a genuine and actual use
of the trade-mark.

This being so, it is worth while to ascertain if the proposed
trade-mark has already been registered. There are 39,000 registered
trade-marks in existence, divided among forty-nine classes of
merchandise. Thousands of trade-marks have been registered for
some classes. It is not unusual for an applicant to find that the
trade-mark he has intended to use has been adopted by someone else.

* * * * *

Transcriber's Notes:

Footnotes have been moved to the end of each chapter and relabeled consecutively through the document.

Illustrations and sidebars have been moved to paragraph breaks near where they are mentioned.

Punctuation has been made consistent.

Variations in spelling and hyphenation were retained as they appear in the original publication.

The wording of the chapter section titles in the Table of Contents differs from the actual section titles in many cases.

There is no Chapter I section title corresponding to the Table of Contents entry "Ten-Years Clause."

p. 29: The "ORMROD" is not completely legible in the original publication and may not be exactly correct. (ORMROD LEHIGH CO)

p. 68: The Chapter IV section title "Infringement by Foreigners Through Importation" is not included in the Table of Contents.

p. 82: The 3 in 1903 in the "Swift & Co.'s trade-mark" figure on this page is not completely legible in the original publication and may not be correct. (COPYRIGHT 1903)