United States ex rel. Schumacher v. Marble

14 D.C. 32

• Court: District of Columbia Court of Appeals
• Decided: December 13, 1883
• Docket: No. 23,990
• Status: Published

Opinion

Mr. Chief Justice Cartier,

after stating the case, delivered the opinion of the Court.

It is objected in behalf of the Commissioner of Patents that the act of Congress of June 18, 1814, providing for the registration of labels is unconstitutional and therefore void. A very elaborate, ingenuous, and perhaps, under appropriate circumstances, successful argument, has been made to sustain this position. But we think the point raised has no application to this case. We- do not think it lies in the mouth of a government official to call in question the constitutionality of a law directing him to perform a purely ministerial duty. If the question was raised between other parties, as for instance, in a suit for infringement in the use of a label, and the constitutional rights of the parties were involved in it, that is to say whether one man was prohibited from using it because another man had registered it as a label, tbe argument might bé pertinent, but we do not think it is a question which can be raised here.

The next reason assigned by the Commissioner for his refusal to comply with the petitioner’s demand is that the design offered for registration is a mere fanciful sketch which, while it may be used as a trade-mark, has none of those descriptive features about it characteristic of a label. A label, it is contended, consists of a pictorial representation or a written description of the article to which it is affixed ; and that a fancy picture, such as this, having no connection with its proposed use or application, cannot be registered as a label. This question has been settled by this court in the case of the Sewing Machine Co. vs. Marble.

* We decided in that case that the duty of the Commissioner of Patents, on the application to him to register a label, is a purely ministerial one, as much so as the act of a recorder of deeds in placing upon public record a muniment of title. The statute has not defined what shall be considered a label, whether it shall be a picture or a writing; whether it shall be descriptive of the article to which it is affixed, or whether it may be a mere arbitrary design. If the applicant presents it as a label, and appeals to the Commissioner to give it the protection which the law provides for it as a label, the duty of the Commissioner is to register it, and in doing so he gives it only the protection which the statute provides. It is not protected as a trade-mark nor as a copyright. The public at large may use and enjoy it, but qua label it is restricted to the use of the party who has regis- ■ tered it for that purpose and no other. With the character of the device the Commissioner is not at all concerned. His function is as purely ministerial as it is capable of be ing. The writ will issue.

1 Mackey, 284.