Page:Federal Reporter, 1st Series, Volume 8.djvu/57

PEPPER V. liABROT. 43 �tinct property, separate from the article created by the original producer or manufacturer, it may net be the subject of sale. But when the trade-mark is affixed to articles manuf?,ctured at a particular establishment, and acquires a special reputation in connection with the place of manufacture, and that es- tablishment is transferred either by contract or operation of law to others, the right to the use of the trade-mark may be lawfully transferred with it. �"Its subsequent use by the person to whom the establishment is trans- ferred, is considered as only indicating that the goods to which it is affixed are manufactured at the same place, and are of the same cfiaracter as those to which the marie was attached by its original designer. Such is the purport of the language of Lord Cranworth in the case of Leather Cloth Co. v. Ameri- can Leather Cloth Co., reported in 11 Jur. (N. S.) 513. See, also, Ainsworth v. Walmesley, 44 L. J. 355, and Saii v. Burrows, 10 Jur. (N. S.) 55." �The observations of Lord Cranworth in the Leather Cloth Case, re- f erred to in this citation, are as follows : �"But I fuxther think that the right to a trade-mark may, in general, treating it as property, or as an aocessory of property, be sold and transferred upon a sale and transf er of the manuf actory of the goods on whioh the mark has been used to be affixed, and may be lawfully used by the purchaser. Difflculties, however, may arise where the trade-mark consists merely of the name of the manufac- tnrer. When he dies those who succeed him (grand-children or married daugh- ters, for instance,) though they may not bear the same name, yet ordinarily con- tinue to use the original name as a trade-mark, and they would be protected ' against any infringement of the exclusive right to that mark. They would be so protected, because, according to the usages of trade, they would be under- stood as meaning no more by the use of their grandfather's or father's name than that they were carrying on the manufacture formorly carried on by him. Nor wOuld the case be necessarily different if, instead of passing into other hands by devolution of law, the inanuf actory was sold and assigned to a pur- chaser. �" The question in every such case must be, whether the purchaser, in con- tinuing the use of the original trade-mark, would, according to the ordinary usages of trade, be understood as saying more than that he was carrying on the same business as had been formerly carried on by the person whose name constituted the trade-mark. In such a case I see nothing to make it improper for the purchaser to use the old trade-mark, as the mark would, in such a case, indicate only that the goods so marked were made at the manufactory whieh he had purchased." " �In the foregoing cases, the trade-mark consisted either in some arbitrary and fancif ul name given to the product, or in the name or initiais of the original producer, and it was held, even in respect to them, that the exclusive right to continue their use toight pass to a purchaser of the place of production, carrying on the business of pro- dueing the same article. �It is a fair inference from these authorities that when, as in the present case, the trade-mark consists merely in the name of the ��� �