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PAGE

PAGE

Revised Statutes.

art. 100.
art. 102..

arts. 104-108.
§ 1361...
$ 2319.
68 2325, 2326
§ 4522.
§ 4524
§ 4527.
§ 4528.
§ 4558..

.395, 396
.370, 388

384
383
571

190 . 443, 463

465 .444, 465

465 .444, 465

Revised Statutes.
$ 4596.

444 § 4.399.

.444, 465 $ 5021.

195 § 5128.

196 § 5197.

134 5198

130, 134, 135, 136 § 5280.

.428, 430, 431,

434, 449, 463, 464, 466 $ 5438.

.392, 396 § 5442

396 § 5488.

...396, 398

- 72, 73

(B.) STATUTES OF THE STATES AND TERRITORIES. California.

| Massachusetts (cont.). 1870, April 4, Laws of 1869–

1898, Laws of 1898, c. 326... 140 1870, p. 883. .523, 524 Pub. Stat., c. 214..

139 Civ. Code, S 322.

146 Mississippi. Florida.

1850, Mar. 5, Laws of 1850, 1879, Mar. 7, Laws of 1879,

p. 324, c. 230..

69 c. 3099...

472 1854, Mar. 1, Laws of 1854, 1883, Mar. 5, Laws of 1883,

p. 168, c. 66..

69 c. 3413..

.471, 481, 482 1872, Apr. 1, Laws of 1872, 1885, Feb. 12, Laws of 1885,

p. 65, c. 73..

72, 73 c. 3558... ...471, 472, 482 1873, A pr. 17, Laws of 1873, 1891, June 8, Laws of 1891,

p. 212, c. 61..

. 72, 73 c. 4073...

472 1877, Feb. 1, Laws of 1877, Indiana.

P. 72, c. 44. Rev. Stat., $ 8560... .303, 304 1882, Feb. 23, Laws of 1882, $ 8587..

304

p. 849, c. 542.....67, 70, 74, 75 Kansas.

1884, Mar. 13, Laws of 1884, 1897, Mar. 3, Laws of 1897,

p. 971, c. 612.

70 p. 418, c. 240... ..79, 83 Code of 1857.

69 Comp. Laws of 1879, $ 5589 114 Code of 1880.

74 Kentucky.

Ann. Code of 1892, 1856, Feb. 14, Laws of 1855–

$ 3744.... 73, 74, 75, 78 1856, c. 148.

517 Missouri.
1860, Feb. 28, Laws of 1859–

Rev. Stat. of 1889,
1860, c. 812.
517 $S 2646, 2647..

54 1882, Apr. 6, Laws of 1881,

§ 2653..

54 c. 790..

502 Rev. Stat. of 1899, 1900, Mar. 10, Laws of 1900,

SS 1143, 1144.

54 c. 2......484, 486, 494, 497,

$ 1150..

54
498, 499, 502, 504, 505, 511 Nebraska.
Gen. Stat. of 1887, p. 1021,

1867, June 22, Laws of 1867,
c. 90a...
502

588 Gen. Stat. of 1894,

Comp. Laws of 1889, p. 628, § 816.... 489, 497, 498, 499, 505

$ 3..

584 § 817..

.489, 497 | New Mexico. § 818..

490, 497 1899, Laws of 1899, p. 47, § 819. 490, 497, 499, 500, 505

c. 22...

544 § 820.. .491, 498,

1899, Laws of 1899, p. 106, 500, 503, 504, 506, 511

c. 52.

544 § 821..

.492, 498 Comp. Laws of 1897, § 4035 543 $$ 820, 827.

492
§ 4066.

.543, 544 § 828

493 New York. $ 829.

493, 498 Tax Law, § 220. 281, 283 Massachusetts.

287 1894, Laws of 1894, c. 522

553, 556

p. 88..

§ 221

PAGE

PAGE Ohio.

Bates's Anno. Stat. (cont.). 1884, Mar. 20, 81 Laws, 67

$$ 4200-13, 14.

239 238, 243, 244 § 4200-16.

240 1886, May 17, 83 Laws, 178

$ 4200-30

239 239, 243 Oregon. 1890, Mar. 7, 87 Laws, 51

Code, $ 500...... ... 572

242, 243 Tennessee. 1894, May 16, 91 Laws, 274

1883, Mar. 30, Laws of 1883, 239, 242, 243, 244, 245 p. 331, c. 251..

417

1899, Mar. 17, Laws of 1899, Bates's Anno. Stat., § 4200-7 2:39

p. 17, c. 11..

..17, 23

(C.) FOREIGN STATUTES. Germany.

Hawaii (cont.) Gen. Merc. Law, art. 532.... 412 § 1136.. Great Britain.

$S 1144, 1145.
1697, 8 & 9 Wm. III, c. 11

$ 1164
060, 061, 602 $ 14:30
1854, 17 & 18 Vict., c. 104... 443 SS 1133, 1434.

1894, 57 & 58 Vict., c. 60... 443 Holland. Hawaii.

Code, art. 402.
Ballou's Civ. Laws of 1897,
§ 1105...

547

547 547 547 547 547

443

CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES,

AT

OCTOBER TERM, 1901.

HOLZAPFEL'S COMPOSITIONS COMPANY V. RAHT

JEN'S AMERICAN COMPOSITION COMPANY.

CERTIORARI TO THE COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 54. Argued April 25, 26, 1901.--Decided October 21, 1901.

This was a controversy relating to a trade-mark for protective paint for

ships' bottoms. The Court held: (1) That no valid trade mark was proved on the part of the Rahtjens

Company in connection with paint sent from Germany to their agents in the United States, prior to 1873, when they procured a

patent in England for their composition; (2) That no right to a trade-mark which includes the word “ patent,"

and which describes the article as “patented,” can arise when

there has been no patent; (3) That a symbol or label claimed as a trade-mark, so constituted or

worded as to make or contain a distinct assertion which is false, will not be recognized, and no right to its exclusive use can be

maintained; (4) That of necessity when the right to manufacture became public, the

riglit to use the only word descriptive of the article manufactured

became public also; (5) That no right to the exclusive use in the United States of the words

“Rahtjen’s Compositions " has been shown.

The respondent, a New York corporation, commenced this suit in equity in the Circuit Court for the Southern District of VOL. CLXXXIII-1

(1)

Statement of the Case.

New York, against the petitioner, which is a foreign corporation, organized under the laws of the Kingdom of Great Britain, and having a place of business in the city of New York, to restrain it from the use of the trade-mark which the respondent averred it bad acquired in the name “Rahtjen’s Composition and to obtain an accounting of the profits and income which the petitioner had unlawfully derived from the use of such trade-mark, and which it had by reason thereof diverted from the respondent. Issue was taken on the various allegations in the bill, and upon the trial the Circuit Court dismissed the same, 97 Fed. Rep. 949; but upon appeal to the Circuit Court of Appeals the decree of the Circuit Court was reversed and the case remanded to that court with instructions to enter a decree enjoining the petitioner from selling or offering to sell Rahtjen's Composition under that name, and from using the name upon its packages or in its advertisements.' 101 Fed. Rep. 257; 41 C. C. A. 329.

Judge Wallace dissented from the judgment and opinion of the Circuit Court of Appeals, holding that the case was properly decided in the court below, and that the decree ought to be affirmed.

The defendant and petitioner then prayed this court for a writ of certiorari, which was granted, and the case thus brought here.

The trade mark in regard to which this contest arises pertains to a certain kind of paint for the protection of ships' bottoms from rust and from vegetable or animal growth thereon, either in salt or fresh water. The paint was of three kinds, numbered, respectively, Nos. 1, 2 and 3. The evidence in the record shows that some time between the years 1860 and 1865, one John Rahtjen invented in Germany a particular kind of paint for the purpose above mentioned. In connection with his sons he began in 1865 to manufacture the paint for general use, and it speedily acquired a high reputation among owners of shipping as valuable for the purposes intended. The elder Rahtjen never obtained a patent for the article in Germany, neither did he or his sons apply for or obtain one in the United States. They first shipped some of the paint manufactured by them in Ger

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