COMMERCIAL MARK OR NAME

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Commercial Mark or Name – A “trade-name” is the name or style under which a concern or firm does business; the name used in trade to designate a particular business of certain individuals considered somewhat as an entity which is adopted for the purpose of giving individuals an apparent standing in the business community, being synonymous with “business name” and “commercial name.” Plum v. Siekmann, 280 N.W. 264, 268, 135 Neb. 101.

The two terms “commercial mark” and “commercial name,” as used in the treaty with France of April 16, 1869, are translations of terms used in the civil law of France. The distinction between a trade-mark and a commercial mark is pointed out by Pouillet in his work on Marques de Fabrique, in which he says a trade-mark is not a commercial mark, and it is with reason that the law mentions both. The trade-mark is specially or purely the mark of the manufacturer, or him who creates the product or manufactures it; the commercial mark is that of the dealer, who, receiving the product of the manufacturer, sells it in turn to the consumer. The name of a town, or, more generally, the name of a locality, may serve as a trade-mark, yet here still it is on condition that the name shall be presented under a distinct special form, always the same. It is this peculiar expression which constitutes the mark, and not the name taken separately and for itself. The commercial name is the name of an individual, or any name which is the property of the merchant, without reference to its use as a mark or trade-mark in distinctive form. The name “Vichy” is a commercial name. La Republique Francaise v. Schultz, 57 F. 37, 41.

Words and Phrases, Permanent Edition, Vol. 7A, 1952, pp. 539-540.