or to legalize in any form or measure piracy in trade-marks. Property in a trade-mark is acquired at common law only by appropriation and use, and then only of such names, words, and devices as may be held to be adapted to point out the true source and origin of the goods to which such marks are applied. The statute widens the range of selection, and authorizes the mechanic or manufacturer to adopt any name or device he pleases, and to foreclose any controversy on the subject by writing out and filing with the recorder, as the law provides, an accurate description of the name, device, &c., that may have been chosen. But such paper is to be filed in the county where the goods, &c., are to be manufactured or prepared. It is not perceived how this can be made to apply to Rosenbaum & Co.'s stoves, which are manufactured in another state. The statute has no application to the facts of the present litigation. Nor will any fair construction of it warrant the appropriation by one party of an existing trademark, the title and ownership of which is in another party.

But it is objected that the words "Charter Oak," with the accompanying device, lack the requisite ingredients or characteristics of a trade-mark, and therefore it is insisted that the plaintiff could acquire no exclusive right to their use for that purpose.

The books are full of authority establishing the proposition that any contrivance, design, device, name, symbol, or other thing, may be employed as a trade-mark which is adapted to accomplish the object proposed by it; that is, to point out the true source and origin of the goods to which said mark is applied; or even to point out and designate a dealer's place of business, distinguishing it from the business locality of other dealers. The mark, however, must possess the requisite characteristics, pointing out the source and origin of the goods, and not be merely descriptive of the style, quality, or character of the goods themselves. Thus it has repeatedly been held that where the name or device employed had, from use or other cause, come to be descriptive of the goods manufactured or sold, their quality and use, such name or device was ineffectual and could not be upheld as a trade-mark. It was so as to the letters "A. C. A.," in the leading and famous case of The Amoskeag Manufacturing Co. v. Spear, 2 Sandf. S. C. R. 599, as also in Stokes v. Landgraff, 17 Barb. 608, and in various other cases cited by the defendants. But these authorities have no application to the mark claimed by the plaintiff. For the

name "Charter Oak," with the combined device, in no possible view or application of them, are either descriptions or suggestive of the style, character, or qualities of a cast-iron cooking-stove. In their natural significancy, import, or symbolism, or in the use made of them prior to the plaintiff's appropriation of them as a trade-mark, they were as far removed as can well be imagined from conveying any such application or meaning. And that constitutes one of their virtues as a trade-mark: Fetridge v. Merchant, 4 Abb. Prac. R. 158; 6 Beav. 66; 4 McLean 516.

The general rule respecting the characteristics of trade-marks has already been given. The following names and designations, among many others, have been held to come within that rule. As pointing to a hotel, "Irving House," (3 Sand. S. C. 726); "Revere House," (7 Cush. 322). As pointing to a manufacturer or dealer, "Cocoaine," (9 Bosw. 192); "Howe," (50 Barb. 236); "Akron," the name of a town, (19 Barb. 599); "London Conveyance Company," (2 Keene 220); "303," the designation of a particular pen, (47 Barb. 471); "Bell's Life," the name of a newspaper, (22 Law Rep. 428); "Roger Williams Long Cloth," (6 R. I. 434); "Day & Martin," (7 Beavan 89).

The name and device selected by the plaintiff were adopted to point out the true source and origin of the stoves to which he applied them, and were therefore possessed of the requisite characteristics of a trade-mark. By the adoption and use of that mark he acquired a property interest therein which the courts will protect. Have the defendants invaded the rights of the plaintiff in this behalf?

The defendants accumulated in the St. Louis market a quantity of the Rosenbaum & Co. stoves, with the name "Charter Oak" upon them, which they held for sale as "Charter Oak" stoves. They were aware of the plaintiff's proprietorship of the "Charter Oak" trade-mark, and were proceeding to sell in defiance of plaintiff's rights.

In this condition of things the present suit was instituted and an injunction granted restraining the defendants from the proposed sale. The only question raised on this branch of the case is, whether the use of the name "Charter Oak," separated from the other parts of the plaintiff's mark, amounted to an infringement of his rights, assuming his ownership of the name as a trade-mark in combination with the device of oak leaves.

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On this point there can be no reasonable doubt. The plaintiff's stoves were not conspicuously known by the particular device which surrounded the name upon them, but by the name itself. That was the conspicuous element in the mark. By that name the stove was bought and sold, and known in the Western and Southern markets. It was the prominent essential and vital feature of the plaintiff's trade-mark. That name the defendants and their principals appropriated bodily, and applied it to their stoves, and sought to acquire the sole and exclusive use of it by filing their claim in the recorder's office under the statute. That shows their appreciation of the value of the name, and of their purpose not only to use it themselves, but to exclude the originator of it from its use. Granting Filley's exclusive right, there can be no doubt that the things done and purposed by the defendants were of injurious tendency, and that the name "Charter Oak," as employed by them, was eminently calculated to mislead buyers as to the true source and origin of the stove to which the defendants applied that name. If the name as used by them was calculated to mislead, the intention to deceive is to be inferred therefrom: Fetridge v. Merchant, 4 Abb. Pr. R. 159; 4 Mann. & Gr. 385.

The imitation of an original trade-mark need not be exact or perfect. It may be limited and partial; nor is it requisite that the whole should be pirated. Nor is it necessary to show that any one has, in fact, been deceived; or that the party complained of made the goods: 2 Sand. S. C. 607; 25 Barb. 79; 23 Eng. L. & E. 53-4; 2 Sand. Ch. 597. Nor is it necessary to prove intentional fraud. "If the court sees that complainant's trademarks are simulated in such a manner as probably to deceive customers or patrons of his trade or business, the piracy should be checked at once by injunction:" 4 McLean 519; 2 Barb. Ch.

103.

The result is, that the judgment of the Circuit Court must be affirmed.

The other judges concur.

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The right of a party to protection in the use of his trade-mark, meaning thereby any names, signs, marks, brands, labels, words, or devices of any kind, which can be advantageously used to designate his goods," though of com

paratively recent origin in its fulness and perfection, was foreshadowed as early as the time of the Year Books, in the case of Sothern v. How, 2 Croke 468.

Although the recognition of this right by courts of equity, and its consequent

watches made by him, the plaintiff having long used such word as a mark for his watches.

In Croft v. Day, 7 Beavan 89, "Day & Martin," as a trade-mark for blacking, was sustained against a firm, the real name of which was Day & Martin.

"Bismarck" as name of paper collars, was upheld in Messerole v. Tynberg, 4 Abb. Pr. N. S. 414, the court remarking: "There is no reason for making any distinction between a common word or term used for an original purpose, which has accomplished its object, and a new design adopted by a manufacturer." In Farina v. Silverlock, 39 Eng. Law & Eq. 517, an injunction was granted against the engraver who made simulated labels to sell to third parties.

There seems to be no more restriction against the choice of a name for a trademark than the choice of a symbol. It is sufficient that the name in its application to the goods be so far original and peculiar as to be capable of distinguishing when known in the market one manufacturer's goods from those of another: Ainsworth v. Walmsley, 1 Law Rep. Eq. Cas. 252; Amoskeag Manufacturing Co. v. Spear, 2 Sandf. S. C. 605; Newman v. Alvord, 49 Barb. 592; Williams v. Johnson, 2 Bosw. 1.

A party being fully possessed of this right of property in his trademark, will not be held to have waived such right by reason of his neglect to restrain others from its use. "It is no excuse that others have used or are using such trade-mark: Taylor v. Carpenter, 3 Story 462; Coates v. Holbrook, 2 Sandf. Ch. 596; Taylor v. Carpenter, 2 Wood. & Min. 8.

Where the use by others is with the knowledge of the original owner of the mark, his consent, if implied at all in the knowledge of such use, can be revoked at any time: Gillott v. Esterbrook, 47 Barb. 471.

fringement, it is settled that "The whole trade-mark need not be pirated:" Ibid. 469.

"An injunction ought to issue when ever the design, either apparent or proved, is to impose on the public, and the imitation is such that the success of the design is a probable or possible consequence: Amoskeag Manufacturing Co. v. Spear, 2 Sandf. S. C. 607.

"If the wholesale buyer, who is most conversant with the marks, is not misled, but the small retailer or the consumer is, the right of action must exist:" Clark v. Clark, 25 Barb. 79.

"It is not necessary that any proof should be made of any one having been deceived, but the court will examine the two things, and see if they are not calculated to deceive." When there is a strong resemblance the court will presume it is not fortuitous, but that it was intentional with a view to mislead purchasers: Eddleston v. Vick, 23 Eng. Law & Eq. 53-4.

Nor is it necessary that the one infringing upon the trade-mark should

be shown to offer the articles as those of the plaintiff's manufacture, for even where the contrary appeared, an injunction was ordered in the case of Sykes v. Sykes, 3 Barn. & Cress. 543.

And even where the defendant expressly informed the purchaser that the trade-mark placed on the goods was an imitation of the plaintiff's mark, an injunction was granted, on the ground that succeeding dealers might not make a similar disclosure: Coates v. Holbrook, 3 Sandf. Ch. 586.

It is not necessary that the defendants should be the manufacturers of the goods. They can be enjoined although only commission merchants, selling in the strict line of their business: Ibid.

It is not necessary to prove intentional fraud on the part of defendant to warrant equitable relief. It is the probaIn relation to what constitutes an in- bility of deception which justifies the