TRADE-MARKS.

Section numbers to notes refer to the Revised Statutes of 1914 and sections herein.

[Acts 1903, p. 282. In force April 23, 1903.]

10435. Bottles stamped with trademark, protection.

10436. Ownership, agreement to return.

10437. Unlawful possession.

10439. Filling or sale of bottles.

The above sections 10435 to 10439 inclusive, Revision of 1914, are declared unconstitutional. State v. Wiggam, 187 Ind. 159, 118 N. E. 684.

See note to Const., art. 4, section 22.

Under the above sections and sections 10439 which relates to trade-marks on bottles, syphons, and "all other enclosures made of glass, metal or wood," it was held that the quoted words are limited to containers of the classes previously enumerated and do not include pasteboard boxes or earthenware jugs. State v. Wiggam, 187 Ind. 159, 118 N. E. 684.

These sections and section 10439 violate Const., art. 1, section 23, guaranteeing equal privileges and immunities to all citizens. State v. Wiggam, 187 Ind. 159 118 N. E. 684.

[Acts 1917, p. 689. In force May 31, 1917.]

10440a. Trade mark, bottles, name, filing descriptions.-1. That any person, firm or corporation engaged in manufacturing, bottling or selling soda waters, minerals or aerated waters, porter, ale, beer, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, white beer or other beverages or medicines, medical preparations, perfumery, oils, compounds or mixtures, in bottles, siphons, tins or kegs,

with his or its name or other marks or devices branded, stamped, engraved, etched, blown, impressed or otherwise produced upon such bottles, siphons, siphon heads, tins or kegs, or the boxes used by him or it, may file in the office of the clerk of the circuit court of the county in which his or its principal place of business is situated, or if such person or corporation shall manufacture or bottle out of this state, then in any county in this state, and also in the office of the secretary of state, a description of name, marks or devices so used by him or it, and cause such description to be printed once in each week, for three (3) weeks successively, in a newspaper published in the county in which said notice may have been filed as aforesaid, and he shall thereupon be deemed the proprietor of such name, mark or device, and of every vessel or receptacle upon which it may be branded, stamped, engraved, etched, blown, impressed or otherwise produced.

10440b. Penalty for violation.-2. It shall be unlawful for any person, firm or corporation to fill with soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer, or other beverages, or with medicine, medical preparations, perfumery, oils, compounds or mixtures, any bottle, box, siphon, siphon heads, tin or keg so marked or distinguished as aforesaid, with or by any name, mark or device, of which a description shall have been filed and published, as provided in section one (1) of this act, or to deface, erase, obliterate, cover up or otherwise remove or conceal, any such name, mark, or device thereon, or to sell, buy, give take or otherwise dispose of or traffic in the same without the written consent of, or unless the same shall have been purchased from the person, firm or corporation whose mark or device shall be or shall have been in or upon the bottle, box, siphon, siphon head, tin or keg so filled, trafficked in, used or handled as aforesaid. Any person, firm or corporation violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction, shall be punished for the first offense by imprisonment in the county jail for not less than ten (10) days nor more than one (1) year, or by a fine of fifty cents (50c) for each and every such bottle, box, siphon, siphon head, tin or keg so filled, sold, used, disposed of, bought or trafficked in, or by both such fine and imprisonment, and for each subsequent offense by imprisonment in the county jail for not less than twenty days nor more than one (1) year, or by a fine of not less than one dollar ($1), nor more than five dollars ($5) for each and every bottle, box, siphon, siphon head, tin or keg so filled, sold, used, disposed of, bought or trafficked in, or by both such fine and imprisonment, in the discretion of the court before whom the offense shall be tried.

10440c. Use by other persons forbidden.-3. The use by any person other than the person, firm or corporation whose device, name or mark shall be or shall have been upon the same without such written consent or purchase as aforesaid, of any such marked or distinguished bottle, box, siphon, siphon head, tin or keg, a description of the name, mark or device whereon shall have been filed and published, as herein provided, for the sale therein of soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer or other beverages, or any article of merchandise, medicines, medical preparations, perfumery, oils, compounds, mixtures or preparations, or for the furnishing of such or similar beverages to customers or the buying, selling, using, disposing of or trafficking in any such bottles, boxes, siphons, siphon heads, tins or kegs by any person other than said persons, firms or corporations having a name, mark or device thereon of such owner without such written consent, or the having by any junk dealer or dealers in secondhand articles, possession of any such bottles, boxes, siphons, siphon heads, tins or kegs, a description of the marks, names or devices, whereon shall have been so filed and published as aforesaid, without such written consent, shall, and is hereby declared, to be presumptive evidence of the said unlawful use or purchase of and traffic in such bottles, boxes, siphons, siphon heads, tins or kegs.

10440d. Issue of search warrant.-4. Whenever any person, firm or corporation mentioned in section one (1) of this act, or his or its agent shall make oath before any circuit or superior court that he or it has reason to believe, and does believe, that any of his or its bottles, boxes, siphons, siphon heads, tins or kegs, a description of the names, marks or devices whereon has been so filed and published as aforesaid, are being unlawfully used or filled, or had, by any person, firm or corporation manufacturing or selling soda, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, white beer or other beverages or medicine, medical preparations, perfumery, oils, compounds or mixtures, or that any junk dealer or dealer in second-hand articles, vendor of bottles, or any other person, firm or corporation has any such bottles, boxes, siphons, siphon heads, tins, or kegs in his or its possession or secreted in any place, the said court must thereupon issue a search warrant to discover and obtain the same, and may also cause to be brought before him the person in whose possession such bottles, boxes, siphons, siphon heads, tins or kegs may be found, and shall then inquire into the circumstances of such possession, and if such court finds such person has been guilty of a violation of section two (2) of this act, he must impose the pun

ishment herein prescribed, and he shall also award possession of the property taken upon such warrant to the owner thereof.

10440e. Deposit does not constitute possession.-5. The requiring, taking or accepting of any deposit, for any purpose, upon any bottle, siphon, siphon head, tin, keg, freezer, can, block, mould, tray, brick, pan, tank, pail, keg, tub, refrigerator, box, spoon, cutlery, glass, china, chair, table or sign, shall not be deemed or constitute a sale of such property, either optional or otherwise, in any proceeding under the provisions of this act.

10440f. Old filings and publications not repeated.-6. Any person, firm or corporation that has heretofore filed in the offices mentioned in section one (1) of this act, a description of the name or names, marks or devices upon his or its property, therein mentioned, and has caused the same to be published according to the law existing at the time of such filing and publication, shall not be required to again file and publish such description to be entitled to the benefits of this act.

[Acts 1917, p. 82. In force May 31, 1917.]

10441. Filing with secretary of state.-1. Any firm, person, corporation or voluntary association that are citizens of the State of Indiana, or of the United States, and who are entitled to the exclusive use of any lawful trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan, may obtain protection for such lawful trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan by complying with the following requirements: First, by causing to be filed with the secretary of state a statement specifying the names of the parties, and the residences and places of business, who desire the protection of the trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan, the class of merchandise and the particular description of goods comprised in such class by which the trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan has been, or is intended to be protected; also a description of the trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan, with fac-simile thereof, showing the inode in which it has been and is intended to be applied and used, and the length of time, if any, during which the trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan has been in use. Second, by making a payment of a fee of two dollars to the secretary of state, whose duty it will be to file and record said statement in a book kept for the purpose, to be procured by him as other books in his office of like nature are procured. Provided, that whenever an ap plication is made for the registration of a trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan, which is so like

a previously registered or known trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan, as in the opinion of the Secretary of State will likely result in confusion or mistake, that he shall determine the right of registration in such manner, and upon such notice to those interested, as he may by rule prescribe; and he may refuse to register any such trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan, or may cancel any registration already issued if it appear that such trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan, was improperly registered. Provided, that from the decision of the Secretary of State, an appeal may be taken, by any party interested, to the courts. This act amends section 10441 Revised Statutes of 1914.

The above act, sections 10441 to 10452 inclusive, amends each section from 1 to 12 inclusive of the act 1891, p. 317.

10442. Written declaration.-2. Any certificate or statement prescribed in the preceding section must, in order to create any right whatever in favor of the party filing it, be accompanied by a written declaration verified by the person, or some member of the firm or officer of the corporation or voluntary association by whom it is filed, to the effect that the party claiming the protection for the trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan, has a right to the same, and that no other person, firm, corporation or voluntary association has the right to such use, either in the identical form or in any such near resemblance as might be calculated to deceive; and that the description and fac-simile presented for record are true copies of the trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan sought to be protected.

This section amends section 10442 Revision of 1914, being section 2, Acts 1891, p. 317.

10443. Recording prima facie evidence.-3. The time of the receipt of any trade-marks, label, brand, stamp, wrapper, original advertising phrase or slogan at the office of the secretary of state for registration shall be noted and recorded. Certified copies of the trademark, label, brand, stamp, wrapper, original advertising phrase or slogan, and the date of the receipt thereof, and of the statement and affidavit filed therewith shall be prima facie evidence of the facts and statements and affidavit record in any suit in which such trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan shall be brought into controversy.

This section amends section 10443 Revision of 1914, being section 3, Acts 1891, p. 317.

10444. Continuous use, change of ownership.-4. A trade-mark, label, brand, stamp, wrapper, original advertising phrase or slogan