The opinion of the Court was delivered by
Bermudez, C. J.The plaintiff appeals from a judgment which dismisses his petition, on the grounds of vagueness and no cause of action.
Plaintiff alleges that lie has, for many years past, manufactured cigarette papers; that he has adopted a trade mark for said papers, of which he gives a full description in his petition; that the papers are put up in the form of small books, using the trade mark on the covers of the books, in manner and form shown in said books, of which one is filed with the petition and is annexed to the transcript in this Court; that he invented the trade mark, and was the first person to use it. The customary allegations in trade mark suits fcdlow, including the allegation that defendant is engaged in the sale of cigarette papers in books resembling those used by petitioner, and so colored, stamped and labelled as to resemble the books and envelopes used by plaintiff. The prayer is for an injunction (which, however, was not insisted upon and not issued) and for damages and an account of profits made by defendant’s violation of plaintiff’s trade mark.
In support of his exceptions, the defendant charges that the plaintiff does not aver that ho has used the alleged trade mark in the United States; that he is entitled to the exclusive use of it; that the averment that he is the first person to use, is insufficient as a basis of title; that the plaintiff is not the owner of the. trade mark; that he has not averred compliance by him with essential prerequisites, exacted by the law of France and the convention between that country and the United States, as conditions precedent, to preclude the use of it even as charged, in this State and country.
We do not propose to state, consider and pass upon the numerous and interesting propositions of law in which the able counsel have engaged, as no practical good would be accomplished in doing so.
*536We will even abstain from determining whether we should or not take judicial notice of what the law of Prance, on the subject, provides—the more so, as counsel who would seek an expression of opinion, has not volunteered to whisper its behest and has remained content with a quotation from a learned commentator on the Napoleon Code.
The merits of the contention in the present controversy as exhibited by the pleadings (the petition and the exceptions) can well be determined on superior and more substantial grounds.
The following is the text of the convention between the United States of America and Prance, concerning trade marks, proclaimed April 16, 1869.
Article 1. “Every reproduction in one of the two countries of trade marks, affixed in the other to certain merchandise to prove its origin and quality, is forbidden, and shall give ground for an action for damages in favor of the injured party, to be prosecuted in the courts of the country in which the counterfeit shall be proven, just as if the plaintiff were a subject or citizen of that country.
“The exclusive right to use a trade mark, for the benefit of citizens of the United States in Prance, or of French subjects in the territory of the United States, cannot exist for a longer period than that fixed by the law of the country for its own citizens.
“If the trade mark has become public property in the country of its origin, it shall be equally free to all in the other country.
Art. 2. “If the owners of trade marks, residing in either of the two countries, wish to secure their rights in the other country, they must deposit copies of these marks in the Patent Office at Washington, and in the Clerk’s Office of the Tribunal of Commerce of the Seine, at Paris.” See treaty; Appendix to Brown on Trade Marks, p. 558.
It is apparent, that if this convention be law, the plaintiff, who is a citizen of the Republic of France, should have deposited a copy of the trade mark in question as indicated in the last article, if he wished to secure his right to it in this country, and, having done so, he should have averred accordingly that material fact, in his petition, which he has not done.
Counsel for plaintiff, when thus confronted with the treaty, returns that, if it has any other object in view, than a mere regulation of commerce, it would be open to the same objections successfully raised to the legislation of Congress of July 8, 1870, and August 14, 1876, which was pronounced void in the Steffers’ case. (Y. Trade Mark Cases, 100 U. S. 82-99.)
*537A reference to the decision in that memorable case, shows that the court substantially held: that if an act of Congress can, in any case, be extended to trade marks, as a regulation of commerce, it must be limited to their use in “commerce with foreign nations, and among the several States and with the Indian tribes;” that the legislation is not in its terms or essential character, a regulation thus limited; but in its language it embraces and was intended to embrace all commerce including that between citizens of the same State; that the legislation-is void for want of constitutional authority, in as much 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.
The convention is not an act of Congress. It is a contract or pact between the United States and France, for the security of the rights of their respective citizens on the matters agreed upon. It is a treaty made under authority of the United States, that is by the President and the Senate. 16 How. 657-8.
Courts have no doubt the right and, therefore, the power to declare in proper cases that acts of Congress are null and void, as not having been made in furtherance of the Constitution; but, they have several times questioned their authority to pronounce a treaty unconstitutional and surely would not attempt to do so, unless the treaty violated the organic law of the general government. 3 Dali. 237; 14 Pet. 338, 412; -415-6, 18 How. 349, 357 ; 3d Elliots’ Deb. on Const. 368, et seq.; Federalist, 614.
It cannot be questioned that in a treaty entered into between two nations, the subjects or citizens of each nation are represented therein by the organ of each country, and that what is there stipulated as rights and obligations of such subjects or citizens respectively is binding on the two governments and on such subjects or citizens.
Treaties have been given force and effect, when legislation would have proved unavailing.
Before concluding his opinion in the trade mark cases, Mr. Justice Miller, who was the organ of the court, used the following language, having no doubt in his mind, the convention above recited, which had already been proclaimed, when the legislation of Congress was adopted, which was subsequently by the judgment in said case, pronounced unconstitutional. He wrote:
“In what we have said, we wish to be understood as leaving untouched the whole power of the treaty making power over trade *538marks and of the duty of Congress to pass any law necessary to carry the same into effect.” (100 U. S. p. 99, § 1).
In the controversy now pending in this Court and now under consideration, we fail to see in what respect the convention in question violates the Constitution, and do not hesitate to say that even had we any doubt on the subject, we would not undertake to exercise such transcendent authority in the present case.
Judgment affirmed.