I dissent from the opinion of the court. I am of the opinion that the alleged trade-mark of the complainant is public property — First, because the name was the generic description of a patented article, and passed to the public upon the expiration of the patent; and, secondly, because the name has long-ceased to denote the source of the manufacture of the article. Rahtjen and his sons were the original manufacturers and sellers in Germany of an article which they called “Rahtjen’s Composition,” made after a formula originated by one of them, and having properties peculiarly useful for preserving the hulls of vessels. In November, 1873, Rahtjen obtained a patent in England for the article. “Rahtjen’s Composition” gradually became known to the maritime world as the name of an article made according to the formula of the patent. The monopoly under the English patent expired in 1880. Thereafter the article was made and sold by manufacturers by the name of “Rahtjen’s Composition” in England and on the continent, and the name ceased to designate any particular source of manufacture. The successors of the original manufacturers, who had acquired the sole right to manufacture and sell the article in England, when they applied there for the registration of a trade-mark for tlje article, disclaimed the exclusive right to that name. When they sought in 1886 to prevent manufacturers in Belgium from selling the article as “Rahtjen’s Composition,” the Belgian courts refused relief; deciding that any person who,did not represent the article as purporting to be-manufactured by the Rahtjens or their successors *263in business had a right to sell it under the name by which it had become generally known. I am at a loss to understand why any different decision should be made in this country; but the court seems to be of opinion that the name is a good trade-mark here, because no patent was ever obtained for the article in this country, and because the successors in business of Baht jen have always sold, it here under the name originally applied to it. This means that a man can have a trade-mark in this country in a name which is common property everywhere else. If this is good law, then any person here buying in Belgium, or elsewhere in Europe, or in England, the article known as “Bahtjen’s Composition,” can be prevented from dealing in it here under the name by which he bought it. So -long as Bahtjen and his associates and successors in business enjoyed a monopoly of the manufacture of the article, the name not only identified the characteristics of the article, but also denoted the source of manufacture; but when, the monopoly ceased, and the article passed into the domain of public property, the name which had been its generic, designation also passed. Their monopoly has ceased to exist in this country as well as abroad, and the property in the name can no more survive here than it can abroad.
Irrespective of the effect of the expiration of the patent, the designation has become public! juris through its long use by dealers in the article which it describes; and whether this is attributable to the acquiescence of the complainant and its predecessors, or to their laches, is immaterial, since their conduct, active or passive, has led to the result.. One test by which to determine whether á word which was originally a trade-mark has become public! juris is whether the use of it; by persons other than the original owner is still calculated to mislead the public, and induce them to buy goods not made by the original owner, upon the supposition that they are his goods. Whenever the name has come to be, so generally understood by the public dealing in the article, as denoting the article itself, that nobody can be deceived by the use of it into the belief that it was made by any particular person, the right to it as a trade-mark is gone. Ford v. Foster, 7 Ch. App. 611. If that test is applied to this case, there can be no doubt the name is no longer a valid trade-mark.
There is no pretense that the defendants have represented their article to be the manufacture of the complainants, or of their predecessors in business. I think the case was properly decided in the court below, and that the decree should be affirmed.