Odger's English Common Law

Chapter XIV.
INFRINGEMENT OF PATENTS, COPYRIGHTS, &C.
There are certain rights which are growing more and
more important every day, and to which we must devote a
separate chapter. We refer to the exclusive right to manu-
facture and use a particular invention, the exclusive right
to make copies of a book, poem, play, picture or design,
and the exclusive right to attach to goods a particular trade
mark, or to prevent any one else from selling goods under
a name well known in the trade. Such acts may be innocent
in themselves, but they become wrongful whenever the law
has given to another person the sole right to' do these acts.
These exclusive rights are sometimes disrespectfully styled
" monopolies." They are really a kind of intangible
property, and it is on that ground that they are protected
by our Courts. Formerly our judges refused to regard an
exclusive right to prevent others from doing something as
property at all, though they granted protection on other
grounds.
But the correct view was stated by Lord Westbury, L. C,
in the case of The Leather Cloth Co. v. The American Lenther
Cloth Co., 1 where, speaking of a trade mark, he makes use
of the following words :— " I cannot assent to the dictum
that there is no property in a trade mark. It is correct to
say that there is no exclusive ownership of the symbols
which constitute a trade mark apart from the use or applica-
tion of them, but the term ' trade mark ' is the designation
of marks or symbols when applied to a vendible commodity,
and the exclusive right to make such user or application is
rightly called property. The true principle therefore seems
to be, that the jurisdiction of the Court in the protection
i (1863) 33 L. J. Ch. at p. 201.