UNFAIR COMPETITION. 291 above reasons, then it is free to the pubh'c, as well before as after the expiration of the patent upon the thing.^ The argument in support of allowing public appropriation of a trade name to operate to divest the owner's right is, that to protect such a name would practically prolong the monopoly of the patent. To which the obvious answer may be made, that it is not true, for the right to make the thing and the right to represent it as made according to the expired patent, being free, the only advantage that the patentee would have over his competitors would be that arising out of the good will created by the excellence and reliability of his wares,^ and the further advantage that under Morgan v. Wendover,^ dealers could not substitute the new make of goods without expla- nation.* That the question of descriptiveness is one of fact will appear from a comparison of Singer v. Kimball & Morton ^ with the Singer cases already cited, for, while in the latter cases the court found that the name had become indicative of a principle of construction and therefore descriptive, and refused protection, in the former case the court found that the name was indicative of origin, and granted an injunction. The distinction is to be observed, that, when an article to which a trade name is given is a mere improvement upon existing things, the name given to it by the first producer will not become descriptive.^ It is usually laid down as a general proposition, that no exclusive right can be acquired in a geographical name as a trade name,'^ 1 Young V. Macrae, 9 Jur. n. s. 322. 2 Edelsten v. Vick, 11 Hare, 78 ; s. c. i Eq. Rep. 413.
- 43 Fed. Rep. 420.
- See Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 Fed. Rep. 94, in which it is said
(per Mr. Justice Bradley), that a right to use a name as a trade mark might coexist with a right in the public by appropriation to use it as a trade name, and consequently that competitors might use the name for advertising purposes though forbidden to affix it to the goods. See also Gray v. Taper Sleeve Pulley Works, 16 Fed. Rep. 436, in which it was held that a right to use a descriptive phrase as a business name might coexist with a right in the public to use the phrase as a trade name, and Gebbie v. Stitt, 82 Hun, 93, in which the defendant had appropriated a geographical business name and trade mark, and in which an injunction only against the use of the geographical name as a trade mark was granted. s 10 Scot. L. R. 173. 6 Barlow & Jones, Ld. v, Johnson & Co., 34 Sol. Journ. 298 ; Ct. of App., W. N. 1890, p. no ; Hiram Holt Co. v. Wadsworth, 41 Fed. Rep. 34. 7 Canal Co. v. Clark, 13 Wall. 311 ; Glendon Iron Co. v. Uhler, 75 Pa. St. 467 ; N. Y. Cement Co. v. Coplay Cement Co., 45 Fed. Rep. 212; Genesee Salt Co. v. Burnap, 67 Fed. Rep. 534 ; Bulloch v. Gray, 19 Journ. of Juris. 218 ; Candee, Swan & Co. v. Deere & Co., 54 111. 439.
