304 



GLEANINGS IN BEE CULTURE. 



May 15 



to determine how long these bees might have 

 liTtd. I finished setting out the bees. I winter- 

 td 100 colonies in the bee-house, and 14 outside, 

 all wintering perfectly and without loss. 

 Collins, Ohio, April 15. 



THE SCOPE OF THE NATIONAL 

 COPYRIGHT LAW AND ITS RELA- 

 TION TO HONEY LABELS. 



Can the Word " Alfalfa " be Copyrighted 

 •o a« to Become the Exclusive Property 

 of Any One Person or Company? 



BY CHARLES J. WILLIAMSON. 



[Some little time ago the Colorado Honey-producers' Associa- 

 tion, of Denver, of which Mr. Frank Rauchfuss is manager, was 

 notiied by the Frisbee Honey Co., of the same city, to discon- 

 tinue the use of the word " alfalfa," on the ground that they (the 

 Frisbees) had used the word longer than any one else, and were, 

 therefore, entitled to a copyright. Our opinion has been sought, 

 as to whether a common word like " alfalfa " could be copyright- 

 ed and thus become the exclusive property of one company or 

 perion. We placed the correspondence relating to the matter in 

 the hands of our patent attorney, Mr. Chas. J. Williamson, of 

 Washington, and asked him to prepare an opinion for us to pub- 

 lish. The following, just at hand, would seem to indicate be- 

 yond a question or doubt that the word " alfalfa " may be used 

 on honey-labels by any one, on several grounds. — Ed.] 



The A. I. Root Co.: — In accordance with your 

 request I have given consideration to the questions 

 which have arisen in regard to the use of the 

 word "alfalfa" as applied to honey, in connec- 

 tion with the claim of the Frisbee Honey Co., 

 thftt it has the exclusive right to the use of that 

 Dame for honey, and I beg leave to advise you as 



follows: 



In my judgment, based upon the facts and the 

 law applicable thereto, no one has the exclusive 

 right to use the word " alfalfa " as a trade name 

 or mark for the designation of honey, whether 

 that right be claimed on the ground that the word 

 is a trade-mark without reference to the national 

 or federal trade-mark law, or whether in respect 

 to a provision of that law which gives a right by 

 registration to trade names or marks that are not 

 cases of strict or pure trade-mark. Said provision 

 of the law is, that one who has had the exclusive 

 use of such a name or mark for more than ten 

 years prior to the passage of the Act of Feb. 20, 

 1905, shall have the right to register it in the 

 United States Patent Office. 



I will consider, first, whether or not the word 

 "alfalfa" is appropriable on the ground that it is 

 a strict or technical trade-mark; and, second, 

 whether or not it is the case of a name or mark to 

 which exclusive rights can be acquired under the 

 ten-year proviso of the Trade-mark Act of Feb. 

 20, 1905. 



1. It is elementary in the law of trade-marks 

 that no name or word or mark can be appropri- 

 ated exclusively by any one which is descriptive 

 of the nature or quality or properties of the in- 

 gredients composing the article to which the name 

 or mark is applied. Thus, the Supreme Court 

 of the United States, our highest tribunal, and 

 the court of last resort in this country, in the case 

 of Bronjon Chemical Co. ^s. Mever, 139 U. S., 542, 

 makes this statement: 



The general proposition is well established that words which 

 ate merely descriptive of the character, qualities, or composition 

 of ai article, or of the place where it is manufactured or produc- 

 ed, can not be monopolized as a trade-mark 



The word " alfalfa," applied to honey, of course 

 means honey obtained from alfalfa clover. As 

 it is well to be fortified with authorities wherever 

 it is possible, I quote in this connection from A 

 B C and X Y Z of Bee Culture, under the title 

 "Alfalfa, or Lucerne," at page 6, as follows: 



Alfalfa has, during late years, come to be one of the most im- 

 portant honey-plants of the great West. . . Of all the honey 

 I have ever tasted, 1 know of nothing, not even clover (which has 

 formerly held the first rank), that can equal it. . . 1 have al- 

 ready spoken of the superb quality of alfalfa honey. If everyone 

 takes a liking for it as I have done, he will be almost spoiled for 

 eating any other honey. 



The name "alfalfa," therefore, applied to hon- 

 ey, is descriptive of the " composition " of the 

 honey, for it means honey that is obtained from 

 alfalfa clover, and in a sense it is also descriptive 

 of the "character" or "qualities" of the honey. 

 Being thus a descriptive term, and, indeed, the 

 only term that can be employed to explain or an- 

 nounce that the honey made therefrom is made 

 from alfalfa, no argument is needed to show that 

 every producer and seller of honey that has been 

 made from alfalfa has an absolute right to use the 

 word to describe or designate his honey; and it, 

 therefore, can not be a trade-mark to which any 

 one user, such as the Frisbee Honey Co., can 

 claim or assert a right to as his own peculiar, ex- 

 clusive property. 



2. Can the Frisbee Honey Co., on the ground 

 that it used the name "alfalfa," as applied to 

 honey, for more than ten years prior to the pas- 

 sage of the Trade-mark Act of Feb. 20, 1905, 

 have or acquire any right to register the word un- 

 der the ten-year proviso of that Act.? The sec- 

 tion of that Act in question reads as follows: 



Sec. 5. That nothing herein shall prevent the registration of 

 any mark used by the applicant or his predecessors, or by those 

 from whom title to the mark is derived, in commerce with foreign 

 nations or among the several States, or with Indian tribes, which 

 was in actual and exclusive use as a trade-mark of the applicant 

 or his predecessors from whom he derived title for ten years next 

 preceding the passage of this act. 



The purpose of the above- quoted provision of 

 the statute is to afford protection in those cases 

 where names or marks have been used, which are 

 not strictly trade marks, or, as they are sometimes 

 termed, " technical " trade-marks, but which, by 

 reason of having been long in use — for at least 

 the ten years mentioned — are deserving of protec- 

 tion. An essential condition imposed by the 

 statute, however, is that the one claiming the 

 benefits of the provision of Section 5 shall have 

 had "exclusive " use of the mark in question. 

 Thus, though as I have herein before pointed 

 out, the word " alfalfa " can not be appropriated 

 by any one as a trade-mark to the exclusion of 

 its use by others, yet if the Frisbee Honey Co. 

 could show that it had had the exc/usife use of 

 that word applied to honey for more than ten 

 years prior to the passage of the Act of Feb. 20, 

 1905, said company would have the right to reg- 

 ister the word " alfalfa " in the Patent Office and 

 obtain the advantages which come from registra- 

 tion. It appears from the facts laid before me, 

 that you yourselves have made use of the word 

 "alfalfa" to designate a certain kind of Western 

 honey since 1880, and that others, for example 

 Mr. W. L. Porter, of Colorado, has used the 

 word " alfalfa " to designate alfalfa honey for 

 perhaps twenty-five years. It follows, therefore, 

 that the Frisbee Honey Co. has not had, and 

 could not have had, "exclusive use" of the word 



