with foreign nations, or among the several States and with the Indian tribes was concerned; that, as the legislation did not come within those limits, it was void for want of constitutional authority.

The court expressly avoided a direct decision as to the right to regulate trade-marks by treaties, the opinion saying: "In what we have here said we wish to be understood as leaving untouched the whole of the question of the treatymaking power over trade-marks, and of the duty of Congress to pass any laws necessary to carry treaties into effect."3

§ 447. Regulation and protection of trade-marks by treaty. Since that decision was rendered, however, the United States has entered into numerous treaties with foreign countries for the protection of trade-marks. During recent years our Government has made special efforts to extend international protection to industrial property throughout all of the civilized countries of the world in the same manner as postal facilities have been extended; it has not only been

3 This extract from the opinion is | patents, and the second to trade on p. 99, 82 U. S. § 447.

1 See TREATIES APPENDIX at end of this volume for some of these treaties.

See also Senate Document No. 20; 56th Congress, 2d Session; Report of the Commissioners Appointed to Revise the Statutes Relating to Patents, Trade and other Marks, and Trade and Commercial Names under Act of Congress Approved June 4, 1898. December 4, 1900. Referred to the Committee on Patents and ordered to be printed. Washington, Government Printing Office, 1900.

This is a report of Francis Forbes, Peter Stenger Grosscup and Arthur P. Greeley appointed under the Act of June 4, 1898, to revise the statutes relating to patents, trademarks, etc. The Report is divided into two parts; the first relating to

and other marks, and commercial names. The Act appointing the Commission will be found on p. 145.

The history of the treaty relations of the United States with foreign countries in regard to trademarks and patents and the mutual protection thereof, together with the legislation of the United States and of foreign countries affecting the same has been collated in the various appendices to this Report. This Report consists in all of 529 pages. On pp. 141-144 will be found a table of contents in which the laws of the many foreign countries in regard to trade-marks are collated, and chap. 18, pp. 325-337 contains an abstract of the existing "Treaty agreements relating to trade-marks between the United States and foreign nations" alphabetically arranged.

represented at, but has taken a prominent part in, the international congresses, which have been held for this purpose.

"2. A trade-mark is neither an invention, a discovery, nor a writing, within, the meaning of the eighth clause of the eighth section of the first article of the Constitution, which confers on Congress power to secure for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Pursuant to treaty stipulations the courts have protected the right of foreign holders of trade-marks in this country, and numerous decisions have been made as to the validity of trademarks and the rights of foreigners in this country under our treaty stipulations with foreign countries. If Congress has 2 Lacroix Fils vs. Sarrazin, U. S. |the registration of them in the Cir. Ct. E. D. La. 1883, 4 Woods, Patent Office. 174, 15 Fed. Rep. 489, PARDEE, J. The question involved in this action is stated in the opinion, the whole of which is as follows: "This court takes judicial notice of the public treaties between the United States and foreign countries. Where a citizen of France has, in compliance with the trade-mark laws of the United States, duly registered a trade-mark, he need not, in bringing an action against a citizen of Louisiana for violation of his rights in such trade-mark, allege that there is in force a treaty between the United States and France affording privileges in France to citizens of the United States similar to those given by the trademark laws of the United States." Trade Mark Cases, U. S. Sup. Ct.ulation thus limited, but in its lan1879, 100 U. S. 82, MILLER, J. guage embraces, and was intended In this case it was decided that to embrace, all commence, includthe trade-mark laws were uncon- ing that between citizens of the stitutional as being outside of the same State. power of Congress, except in so far as it related to commerce with foreign nations among the several states and with the Indian tribes. | The points decided in this case are stated in the syllabus as follows:

"1. Property in trade-marks has long been recognized and protected by the common law and by the statutes of the several states, and does not derive its existence from the act of congress providing for

"3. If an act of Congress can in any case be extended, as a regulation of commerce, to trade-marks, it must be limited to their use in 'commerce with foreign nations, and among the several States and with the Indian tribes.'

"4. The legislation of Congress in regard to trade-marks is not, in its terms or essential character, a reg

"5. That legislation is void for want of constitutional authority, inasmuch as it is so framed that its provisions are applicable to all commerce, and cannot be confined to that which is subject to the control of Congress."

In regard to the right to regulate trade-marks by a treaty, the court expressly left that point undecided, the opinion closing with the following words (p. 99):

"In what we have here said we

not the general power to regulate and protect trade-marks, it does possess the power to protect the citizens of foreign

wish to be understood as leaving | was considered by the court below, untouched the whole question of but the brief for the complainant the treaty-making power over trade-marks, and of the duty of Congress to pass any laws necessary to carry treaties into effect.

"While we have, in our references in this opinion to the trade-mark legislation of Congress, had mainly in view the act of 1870, and the civil remedy which that act provides, it was because the criminal offenses described in the act of 1876 are, by their express terms, solely referable to frauds, counterfeits and unlawful use of trade-marks which were registered under the provisions of the former act. If that act is unconstitutional, so that the registration under it confers no lawful right, then the criminal enactment intended to protect that right falls with it.

informs us that the treaty which he invokes was made between the United States and Germany in 1871, to remain in force for ten years, and in case neither party gave notice was extended each year for an additional year.' The brief adds: 'it is therefore understood that its terms are still effective.' Article 17 of the treaty is quoted as follows: With regard to the marks of labels of goods, or of their packages, and also with regard to patterns and marks of manufacture and trade, the citizens of Germany shall enjoy in the United States of America, and American citizens shall enjoy in Germany, the same protection as native citizens.' We accept this statement and the quotation; but what stipulation does the latter disclose of which the complainant has not had the benefit? His right to enjoy the same protection as, under the laws of the United States, is enjoyed by citizens of the United States has been fully recognized and the question raised by him as to the effect in this country of his alleged acquisition of a right in Germany to the mark which he claims in this suit has been adjudicated in a manner, and under the laws of this country, precisely the same as any similar question would be adjudi"The courts of the United States cated if presented to the same court take judicial notice of its treaties for decision by one of our own citwith other countries, but where a izens. To more than this the comtreaty is relied on the burden is plainant was certainly not entitled. on the party asserting it to inform | The plain intent of the treaty is to the court when in fact without insure reciprocally to the citizens knowledge of the subject, of its of the respective countries the proexistence and terms. In this case tection of the laws of the other. it does not appear that the point It was not intended to give to the

"The question in each of these cases being an inquiry whether these statutes can be upheld in whole or in part as valid and constitutional, must be answered in the negative; and it will be so certified to the proper circuit courts." Richter vs. Reynolds, U. S. C. C. A. 3d Circ. 1893; 17 U. S. App. 427, DALLAS, J. Trade-mark case under treaty with Germany, 1871.

The point involving treaty rights is disposed of in the opinion as follows (pp. 434, 435):

countries in their property rights in trade-marks, in accordance with the terms and stipulations of the treaties that have been entered into between the United States and their respective governments. The Courts in many instances have upheld this power, as appears by the decisions cited in the notes. The digests should be consulted for the most recent cases, as many interesting points are constantly arising. Treaty provisions in regard to copyright are not referred to in this chapter because copyrights is a matter under the control of the Federal Government by express Constitutional provisions.

official acts or laws of either coun | Ct. App., 2d Circ. 1899, 63 U. S. App. try any peculiar extraterritorial 139, et seq., LACOMBE, J. Held, that effect.

"It follows from what has been said that the mark used by the defendants is not used in violation of any right of the complainant, and therefore the decree of the Circuit Court dismissing his bill with costs is affirmed."

La Republique Francaise vs. Schultz, U. S. Cir. Ct., S. D. N. Y. 1893, 57 Fed. Rep. 37, TOWNSEND, J. Article XIII of the general trademark treaty of 1883 with France, and general protection of trademarks thereunder, discussed.

Baltz Brewing Co. vs. Kaiser Brauerei, Beck & Co., U. S. C. C. A., 3d Circ. 1896, 39 U. S. App. 229, WALES, J.

The word "Kaiser" can be adopted as a trade-mark. The intent of article XVII of the German treaty of 1871 and of article I of the Austrian Convention of 1871 is to insure reciprocally to the cit izens of the respective countries protection of the laws of the other concerning trade-marks; it is not intended to give to official acts or laws of the other country any peculiar extraterritorial effect.

Saxlehner vs. Eisner, etc., Hunyadi Janos Water cases, U. S. Cir.

the Trade-Mark Convention with the Austria-Hungarian Emperor of 1872 is not to be construed as holding that when the public in this country has acquired through the owner's laches the right to use a trade-mark, and a trade name, that such right is overcome whenever by the operation of some subsequent Hungarian Act, the trade name and trade-mark is secured to him in Hungary.

Holzapfel's Compositions Co. Ld. vs. Rahtzen's American Composi tion Co., U. S. Sup. Ct. (decided Oct. 21, 1901, not yet reported) PECKHAM, J. In this case the rights of English manufacturers to a trademark were not sustained.

3 For protection of copyright internationally is largely provided for by reciprocal legislation and executive proclamation, see note under § 460, chapter xvi, post.

The copyright laws of the United States have been compiled recently and issued as bulletins Nos. 1, 2, 3, 4 (three parts), by the Copyright Office of the Library of Congress.

The Revised Statutes, §§ 4948, et seq., as amended in 1891 provide for reciprocal protection. See 26 U. S. Stat. at L., pp. 1106, et seq.

§ 448. Ex-Territoriality; consular courts of foreign countries in the United States. It is a well-settled rule of American law that foreign countries cannot establish tribunals of any nature within the limits of the United States without the consent of this Government.' Grave interna

§ 448.

1 The Antelope, U. S. Sup. Ct. 1825, 10 Wheaton, 66, MARSHALL, Ch. J. In this case a slave ship found hovering near the American coast was brought into port and an effort was made to condemn the vessel under the general law of nations on the ground that the slave trade was contrary thereto. The vessel being Spanish and Portuguese was not affected by any treaty or by any of the municipal laws of this country, and Chief Justice Marshall held, following Sir William Scott (Lord Stowell's) opinion, in The Louis, 2 Dodson's Reports, 238, that although any nation might denounce the slave trade for itself and its own citizens, it could not go beyond that except by a treaty, and could not condemn a vessel belong ing to another nationality in the absence of a treaty. See especially p. 122 as to the equality of nations and the rule that one nation cannot enforce its laws in the territory of another.

discretion take jurisdiction; that there were various circumstances which might determine a court to refuse, in its discretion to take jurisdiction; but that when the controversy between foreign vessels arises under the common law of nations, the court should take jurisdiction in the absence of special reasons shown to the contrary.

One of the reasons given why a court might exercise this discretion not to take jurisdiction was the existence of treaty stipulations in regard to which the court says (p. 363):

"For circumstances often exist which render it inexpedient for the court to take jurisdiction of controversies between foreigners in cases not arising in the country of the forum; as where they are governed by the laws of the country to which the parties belong, and there is no difficulty in a resort to its courts; or where they have agreed to resort to no other tribunals. The cases of foreign seamen suing for wages, or because of

The Belgenland, U. S. Sup. Ct. 1883, 114 U. S. 355, BRADLEY, J.ill treatment, are often in this catIn this case the general right of United States courts to take jurisdiction in cases of collision upon the high seas between vessels of different nationalities, both foreign, was discussed at length, and according to the syllabus it was held that such a matter was a proper subject of inquiry in any Court of Admiralty which first obtained jurisdiction; that the United States courts might in their

egory; and the consent of their consul, or minister, is frequently required before the court will proceed to entertain jurisdiction; not on the ground that it has not ju risdiction, but that from motives of convenience or international comity, it will use its discretion whether to exercise jurisdiction or not; and where the voyage is ended, or the seamen have been dismissed or treated with great cruelty, it