﻿The 
  Blackwell 
  Litigation. 
  

  

  I 
  

  

  After 
  this 
  he 
  assigned 
  the 
  right 
  to 
  raanufacture 
  under 
  his 
  

   patent, 
  and 
  also 
  the 
  right 
  to 
  use 
  the 
  brand 
  " 
  Durham 
  Smok- 
  

   ing 
  Tobacco," 
  to 
  Armistead, 
  the 
  applicant. 
  If 
  Wright 
  had 
  

   an 
  exclusive 
  right 
  to 
  this 
  brand, 
  then 
  Armistead 
  is 
  entitled 
  

   to 
  have 
  it 
  registered 
  ; 
  otlierwise 
  not. 
  

  

  Armistead 
  attempts 
  to 
  fix 
  the 
  origin 
  of 
  this 
  label 
  ba^k 
  as 
  

   far 
  as 
  1860, 
  when 
  it 
  was 
  used 
  in 
  connection 
  with 
  the 
  words 
  

   " 
  Best 
  Spanish 
  Flavored 
  ;" 
  but 
  in 
  doing 
  so 
  he 
  shows 
  that 
  it 
  

   was 
  first 
  used 
  by 
  Morris 
  & 
  Wright, 
  and 
  by 
  proving 
  this 
  he 
  

   proves 
  that 
  Wright 
  did 
  not 
  have 
  the 
  exclusive 
  title 
  to 
  the 
  

   label. 
  If 
  this 
  is 
  the 
  origin 
  of 
  the 
  mark 
  claimed, 
  then, 
  to 
  

   make 
  Armistead's 
  title 
  to 
  the 
  same 
  good, 
  he 
  should 
  be 
  able 
  

   to 
  show 
  that 
  he 
  holds 
  under 
  Morris 
  as 
  well 
  as 
  under 
  Wright. 
  

   Wright 
  could 
  not 
  convey 
  to 
  Armistead 
  the 
  exclusive 
  right 
  

   to 
  use 
  what 
  belonged 
  to 
  Morris 
  & 
  Wright. 
  But 
  there 
  is 
  

   nothing 
  of 
  record 
  to 
  show 
  that 
  Armistead 
  holds 
  or 
  claims 
  

   to 
  hold 
  anything, 
  directl}^ 
  or 
  indirectly, 
  from 
  Morris. 
  An 
  

   exclusive 
  right 
  to 
  use 
  is 
  necessary, 
  under 
  the 
  statute, 
  to 
  se- 
  

   cure 
  registration. 
  

  

  Wright 
  used 
  the 
  word 
  "Durham" 
  upon 
  a 
  small 
  portion 
  

   of 
  the 
  smoking 
  tobacco 
  he 
  manufactured 
  during 
  the 
  year 
  

   18G1 
  near 
  Durham, 
  North 
  Carolina. 
  This 
  is 
  the 
  utmost 
  that 
  

   can 
  be 
  claimed, 
  from 
  the 
  testimony, 
  as 
  to 
  any 
  use 
  of 
  the 
  

   word 
  by 
  him 
  alone 
  before 
  1869. 
  That 
  such 
  use 
  of 
  the 
  name 
  

   of 
  a 
  town 
  where 
  he 
  did 
  business 
  should 
  give 
  him 
  the 
  right 
  

   to 
  carry 
  such 
  name 
  into 
  another 
  State, 
  and 
  to 
  use 
  it 
  to 
  the 
  

   exclusion 
  of 
  all 
  other 
  people 
  in 
  the 
  United 
  States, 
  even 
  the 
  

   citizens 
  of 
  the 
  town 
  of 
  Durham, 
  is 
  too 
  preposterous 
  to 
  re- 
  

   quire 
  more 
  than 
  a 
  simple 
  statement 
  for 
  its 
  refutation. 
  

  

  Blackwell 
  claims 
  under 
  an 
  assignment 
  from 
  one 
  J. 
  R. 
  

   Green, 
  and 
  proves 
  that 
  Green 
  first 
  used 
  the 
  word 
  "Durham" 
  

   upon 
  smoking 
  tobacco 
  in 
  ISGo. 
  ***** 
  

   The 
  words 
  "Durham 
  Smoking 
  Tobacco" 
  cannot 
  constitute 
  

   a 
  legal 
  trade-mark, 
  and 
  therefore 
  cannot 
  be 
  registered. 
  

   Neither 
  would 
  adding 
  the 
  name 
  and 
  place 
  of 
  business 
  of 
  the 
  

   manufacturer 
  help 
  the 
  matter. 
  There 
  is 
  nothing 
  registera- 
  

   ble 
  in 
  either 
  Blackwell's 
  or 
  Armistead's 
  labels, 
  and 
  the 
  

   Ofiice 
  blundered 
  when 
  it 
  gave 
  a 
  certificate 
  of 
  registration 
  to 
  

   Blackwell. 
  It 
  should 
  not 
  repeat 
  that 
  blunder 
  by 
  giving 
  a 
  

   like 
  certificate 
  to 
  Armistead. 
  

  

  The 
  Examiner, 
  it 
  seems, 
  refused 
  to 
  register 
  for 
  Blackwell 
  

   the 
  words 
  " 
  Durham 
  Smoking 
  Tobacco;" 
  but, 
  when 
  the 
  

   words 
  " 
  Manufactured 
  by 
  W. 
  T. 
  Blackwell, 
  Durham, 
  N. 
  C.," 
  

  

  