T.M.

1

TRADE MARKS

AND

TRADE NAME.

WITH CHAPTERS ON TRADE SECRET AND TRADE
LIBEL, AND A FULL COLLECTION OF
STATUTES, RULES, FORMS AND
PRECEDENTS.

BY

D. M. KERLY, M.A., LL.B.,

SOMETIME FELLOW AND MACMAHON LAW STUDENT OF ST. JOHN'S COLLEGE, CAMBRIDGE;
AUTHOR OF "AN HISTORICAL SKETCH OF THE EQUITABLE JURISDICTION OF THE
COURT OF CHANCERY;" OF THE INNER TEMPLE, BARRISTER-AT-LAW.

FOURTH EDITION.

BY

F. G. UNDERHAY, M.A.,

OF THE INNER TEMPLE, BARRISTER-AT-LAW (One of the EDITORS OF THE
REFORTS OF PATENT DESIGNS AND TRADE MARK CASES).

LONDON:

SWEET & MAXWELL, LIMITED,
3, CHANCERY LANE, W.C.

TORONTO, CANADA:

THE CARSWELL COMPANY, LIMITED.

PREFACE.

THE third edition of this book was published in 1908, not long, therefore, after the commencement of the Trade Marks Act, 1908. Since its publication there have been many decisions on the Act, both of Courts of first instance and of the Court of Appeal, settling a considerable number of important questions of construction which arose under it and dealing with matters both of principle and procedure. The provisions of the Act which have most frequently come under the consideration of the Court are those of section 9, relating to the registration of distinctive marks, and especially of distinctive words. Very recently these have come before the House of Lords in a case relating to the registration of letters as trade marks. It cannot be said that the Act has been construed with the breadth of view which was hoped for by the commercial community, and the result is that some words and symbols that do effectively operate as trade marks are excluded from the scope of registrable trade marks. It is true that these may not be very numerous, and that there must necessarily be cases near the line, wherever it is drawn. But a less timorous solicitude as to possible dangers to rival traders, including persons who may hereafter enter a particular trade, would have been attended with no serious consequences to such persons, and might have gone far to satisfy applicants for trade marks. For instance, the doctrine. has been put forward that distinctiveness must be proved to exist, if not throughout the United Kingdom, at all events very widely indeed. Although this has not been adopted in its full extent by the Courts, it has influenced some decisions of the Court and has certainly affected the practice of the Board of Trade in cases which come before it. User and distinctiveness extending over large areas have, in more than one case, been