The Federal Reporter Volume 181; With Key-Number Annotations (Paperback)

Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: of the applicant or his predecessor from whom he derived title, for ten years next preceding the passage of this act" Registration is made only prima facie proof under the statute in any case, and it would have been consistent with its general import for Congress to establish what should be prima facie proof of secondary meaning. I think by this section it intended to provide a period of time during which if an applicant himself made exclusive use of even a descriptive phrase as a trade-mark, it should be assumed to have acquired a secondary meaning. Any other person could, of course, meet that presumption by proof that it had in fact never acquired any such secondary meaning, but until he does, the mark is good under the act. In the earlier proviso of the same section Congress had forbidden the registration of any descriptive or geographical names, or names indicating character or quality, and the subsequent proviso I have quoted could only have meant to exclude from the operation of that prohibition such descriptive phrases as had been exclusively appropriated for more than 10 years prior to the act. The most reasonable inference is that, in analogy with the law as then settled, that period of exclusive use was to create a presumption of secondary meaning. Indeed it was a fair presumption in fact to suppose that such marks would have acquired a secondary meaning, if the applicant had used them exclusively for so long. It is true that Congress might well have made such a period of 10 years always constitute prima facie proof of secondary meaning whenever the period began, instead of limiting it to a use prior to April 1, 1895, but it is no ground for misapprehending their purpose that they might have made it more general. English-speaking people lived for several centuries und...