United States v. Braun
| Decision Date | 02 September 1889 |
| Citation | 39 F. 775 |
| Parties | UNITED STATES v. BRAUN. |
| Court | U.S. District Court — Eastern District of Missouri |
George D. Reynolds, U.S. Atty.
John M Holmes and Kerr & Kerr, for defendants.
These are indictments under section 1 of the act of August 14 1876, to punish counterfeiting of trade-marks that have been registered in accordance with the laws of the United States. The section is as follows:
'Be it enacted that every person who shall, with intent to defraud, deal in or sell * * * any goods of substantially the same descriptive properties as those referred to in the registration of any trade-mark, pursuant to the statutes of the United States, to which, or to the package in which the same are put up, is fraudulently affixed said trade-mark, or any colorable imitation thereof, calculated to deceive the public, knowing the same to be counterfeit or not the genuine goods referred to in said registration, shall, on conviction thereof, be punished,' etc. Vide 1 Supp.Rev.St.U.S. 241.
The law was evidently designed to punish those who, with fraudulent intent, pirate a valid trade-mark which has been duly registered by the commissioner of patents. If a person, by any means, secures the registration of a mark, symbol, word, or device, claiming it to be a trade-mark, which, according to the rules of the common law, is not a valid trade-mark, another person who affixes the same mark, symbol, or device to his own goods, and sells them, cannot be punished under the penal statute above quoted. Registration does not create a trade-mark; nor is it conclusive proof that the person procuring registration has a valid trade-mark. Property in a trade-mark can only be acquired by the adoption of some mark, symbol, sign, or word susceptible of being used as a trade-mark, and by the actual application of the same to goods, wares, or merchandise of a certain class, so that it serves to indicate the origin or ownership of the particular commodity. Congress, by the act of March 3, 1881, (1 Supp.Rev.St.U.S. 606,) has merely provided for the registration of a certain class of trade-marks used in commerce with foreign nations or Indian tribes, when, according to common-law tests, a right to use the mark, symbol, or word as a trade-mark is established to the satisfaction of the commissioner of patents. Admission to registration under the act of March 3, 1881, is merely an admission on the part of the government that the applicant for registration is the owner of a valid trade-mark. The certificate of registration granted by the commissioner is only prima facie evidence of that fact, but it does not conclude a third party. The certificate is not a grant of any right or privilege; it is merely a recognition on the part of the government of the existence of an asserted exclusive right to affix a certain mark, symbol, word, or device on certain goods, as a trade-mark. Browne, Trade-Marks, Secs. 338, 374-378, inclusive.
Necessarily therefore, in a criminal proceeding under the act of August 14, 1876, the question whether the trade-mark involved (it having been admitted to registration) is valid, is an issuable question. In view of...
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... ... Cigar Makers' International Union of America. United ... States v. Braum, 39 F. 775. (6) The state failed to ... prove that at the date of the sale ... ...
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Oakes v. St. Louis Candy Company
...in giving it the quality of a trade-mark if it was not already such according to the principles of law governing this subject. U. S. v. Braun, 39 F. 775. remains only to be seen whether the views hereinbefore expressed collide with the opinion of this court in State v. Bishop, 128 Mo. 373, ......
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Victor Tool and Machine Corp. v. Sun Control Awnings, Inc.
...goods—that is to say, identify them with the particular manufacturer or trader—and to distinguish them from similar goods. United States v. Braun (D.C.) 39 F. 775; 28 Am. & Eng.Enc.Law, p. 346. The mere advertisement of the words or symbol, without application to the goods themselves, is in......
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State v. Hagen
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