De quelques espèces de propriétés commerciales.

CHAP. 28: On some kinds of commercial properties.

A man creates, by his labor, a thing fit to satisfy his needs, or to obtain by exchange the objects he lacks; we say that this thing is his own, that it is his property. We recognize in him the power to enjoy and dispose of it as seems good to him, provided that he respects in others and in their goods rights that are like his own.

We therefore place certain things in the rank of properties, not because such is the will of the public authority, but because they hold from human industry the qualities that make them precious in our eyes; because it is impossible to infringe upon them without attacking a more or less considerable part of the population in its means of existence; finally, because they would cease to be formed or preserved if the enjoyment and disposition of them were not guaranteed to those who created them or to whom they have been regularly transmitted.

The public authority, in effect, can issue orders or prohibitions, grant or withdraw its protection, reward or punish, despoil some to enrich others; but it is not in its power to give to things, by its declarations, the qualities that make them fit to satisfy our needs; it cannot give existence to properties; its mission is not to create rights; it is to proclaim and guarantee those that result from the nature of man and the nature of things.

Whenever, therefore, we observe that one or several individuals form a new means of existence, which brings no infringement upon the person or security of others, and which in no way offends morality, we place this means in the rank of properties, whatever its nature may be; we recognize that those who are its authors can enjoy and dispose of it like all the other things we have designated by the same name.

In observing how properties are formed, we have remarked that two essential elements are found therein: some matter, and, in this matter, a quality proper to satisfy one or more of our needs. There are, however, among peoples who have reached a certain degree of civilization, things that are placed in the rank of properties, and which cannot be assimilated to a piece of land or a movable. Among all civilized peoples, for example, certain conceptions of the mind, such as literary or scientific works, musical compositions, drawings, and even simple inventions in the arts, are placed in the rank of properties. One does not recognize for the proprietor the faculty only of enjoying and disposing of the object on which he fixes his conceptions; one recognizes for him, moreover, the faculty of preventing others from reproducing, at least for a certain time, the same thoughts.

One likewise places in the rank of properties the name that a man has always borne, the reputation he has acquired for himself, or that he has given to certain industrial or commercial establishments, the clientele he has formed for himself. A person who succeeds in building up a clientele for a house of commerce, or an establishment of public instruction, for example, then sells his clientele, as he would sell a piece of land or a house. However, although he sometimes obtains a very great price for it, he has no pretension of being the master of the persons whose habits or confidence he in some way transmits.

Is it not, then, by a sort of abuse that these various things are placed in the rank of properties? One conceives very well that, when a man has traced on sheets of paper that are his own, thoughts that he has conceived, the book he has produced is his property; but if he sells copies of it, will not those who acquire them be able legitimately to reproduce them and sell them for their own profit as new properties that they have themselves created? He who gives to a material of which he is the proprietor a new value, by converting it into a tool hitherto unknown, remains master of the utility he has produced, as of the material on which he has fixed it. Does it follow that others will not be able to follow his example, by creating similar tools without infringing upon his rights? Is it not also by a sort of abuse that one places in the rank of properties the name, the reputation, the thoughts, or the discoveries of a person?

These questions present grave difficulties to resolve; however, it is possible to give a solution to them fit to satisfy the mind, if one observes well the fundamental principles of all property, and if one never loses sight of them. As there exists between them a certain analogy, and as they must be resolved by the same principles, we shall examine them successively.

The most general division that has been made in the science of law is that which ranges, under two great classes, the objects with which this science is concerned: persons and things. At first glance, nothing appears more clear-cut than this division; it seems impossible ever to confuse what belongs to the one with what belongs to the other. However, when one looks closely, one finds that persons are so narrowly united to things that it is impossible to establish an absolute separation between the ones and the others. Men live and multiply only by means of things, and by identifying themselves in a way with them. It is impossible to despoil a man of his properties without thereby infringing upon the existence of his person. One cannot, therefore, treat of the ones without speaking at the same time of the others.We have recognized that a person can never, according to the laws of our nature, be the property of another, and that no one has any master but himself; we have likewise recognized that all value or all utility created by an individual is his, and that no one other than he has the right to enjoy or dispose of it without his consent. But what is it, then, that forms a person? What constitutes his individuality? It is not only his material being; it is his thoughts, his feelings, his relations of family and society, his name, his reputation, in a word, all that makes him a particular being, all that distinguishes him from his fellows.

A person whose name and reputation were usurped, and from whom were stolen the rank she holds in society, and even the place she occupies in her family, would often find herself deprived of all means of existence or preservation; she would thereby be despoiled of most of her properties.

There is, in every civilized society, a multitude of families whose existence or fortune rests on the reputation attached to certain names or to certain establishments. A manufacturer, an artisan, puts his name or a particular mark on the objects that have come from his hands and been delivered to commerce. As long as experience has not ascertained the quality of their products, their name or the mark they have adopted is without influence on the public. As soon as it is recognized that the objects manufactured by them possess the qualities one desires to find in them, they are accepted with confidence. One very often limits oneself to verifying whether they bear the name or the mark of him who is supposed to be its author.

It is not enough, to exercise an art or a profession in an advantageous manner, to have acquired the capacity for it; one must have obtained, moreover, the confidence of a more or less considerable part of the public. Now, to obtain this confidence, it often takes more time and sacrifices than were needed to put oneself in a state to exercise one's art or profession well. It sometimes happens that persons of an incontestable probity or merit have exhausted their resources before having been able to succeed in making themselves known. Almost never, on the contrary, does one see a person draw somewhat considerable profits from the exercise of his art or his profession, without having made great expenditures.

This kind of property in question is therefore formed, like all others, only by giving to a name or a sign, which in itself is of no importance, a more or less considerable value. To give this value to a name, to a sign, one must devote oneself to long labors, and make certain expenditures. When it is formed, it is for him who is its author a property no less incontestable than any material object whose utility he might have created.

If one admits that each is master of himself, of his name, and of all the values to which he gives existence, it is not possible to contest that a person is not also master of his reputation and of all the advantages he can derive from it. The reputation of a person, when it is acquired by legitimate means, such as talents, probity, or by other individual qualities, is even the most incontestable of properties. It is a necessary consequence of the faculty that belongs to each to dispose of himself in the manner he judges most advantageous, provided that he respects in others the same liberty.

It often happens that reputation, instead of attaching to the name of a person, attaches to an establishment. A house of commerce, when it has a clientele, is often transmitted from one man to another, without losing any of its advantages. The reason is that he who receives it takes care to preserve the practices, the conditions, and the employees that have made its prosperity. He draws his merchandise from the same factories; he is content with the same profits, and puts into his sales the same good faith, the same probity. He thus preserves the same practices.

From the moment a commercial establishment is formed, until that when it is well known, a rather long interval sometimes elapses. During this interval, one must pay rents, clerks, servants, and bear all the costs of a house that would already have a clientele. One must also bear losses on the merchandise that has been stocked and which does not sell, or which sells only very slowly. It sometimes happens that, in making these various sacrifices, one does not succeed in forming a commercial establishment, and that one is obliged to abandon the enterprise. All the costs one has incurred are then irrevocably lost.

When the enterprise has succeeded, one has created what is called a goodwill, whose value is independent of the value of the merchandise or the various objects that furnish the establishment. This goodwill is not fixed on a matter that can be assigned, and which is susceptible of being transmitted from one hand to another like a movable. It consists in the confidence one has inspired, in the habits one has caused to be formed, in the reputation one has created; in a word, in the clientele. It has a value, since one finds people who consent to buy it, and this value, like all others, is created only by cares and expenditures. It is therefore the property of him who has formed it or legitimately acquired it.

The French laws have taken care to guarantee to each the advantages of the reputation he has acquired in industry and commerce; they have established penalties against any individual who would usurp the mark or the sign that another had already appropriated. A decree of 23 Nivôse, Year IX [13 January 1801] [^209], in order to preserve for the manufacturers of hardware and cutlery the particular marks intended to attest the origin of their works, had obliged them to have these marks imprinted on common tables, deposited in a public place. A decree of 5 September 1810 then forbade any person from counterfeiting these marks, under penalty of a fine of three hundred francs for the first time. In case of recidivism, the culprit was to be punished by a double fine, and an imprisonment of six months. In all cases, the counterfeited objects were to be seized for the profit of the proprietor of the mark.

The law of 22 Germinal, Year XI [12 April 1803] [^210] made these dispositions more general: it declares that the counterfeiting of the particular marks that every manufacturer or artisan has the right to apply to the objects of his factory, gives rise to damages in favor of him whose mark has been counterfeited; it provides, moreover, that the individual guilty of counterfeiting is punishable by the same penalties as one who commits a forgery of a private document. This law authorizes manufacturers and artisans to complain of counterfeiting only insofar as they have previously made their marks known in a legal manner, by the deposit of a model at the clerk's office of the commercial court on which the headquarters of the manufactory or workshop depends [^211].

The English appear to have thought that one did not need a special law to prevent one person from harming another by making use of the mark that the latter has appropriated to distinguish the products of his industry. They admit that, according to the rules of common law, the man who counterfeits the mark of another must be condemned to pay him the damages he has caused him. This kind of usurpation does not appear, moreover, to have been placed by them among the number of offenses: it gives rise only to civil damages.

There may be other cases where a person seeks to enrich himself by usurping the reputation of another. A painter whose name was little known could, for example, seek to sell his paintings by inscribing at the bottom the name of a famous painter; a writer could put on his writings the name of an author esteemed by the public; a doctor or a lawyer without a name could give consultations under the name of a renowned physician or jurisconsult. In these cases and in other similar ones, the persons whose name and reputation are usurped experience a damage analogous to that which the violation of any other kind of property would cause them. They are harmed in their interests, not only in that a part of the fruits of the reputation they have acquired is stolen from them, but also because their reputation can be altered by the fact of the usurpation.

There exists no special law to guarantee properties of this kind; but they are guaranteed by the dispositions of the general laws. Having admitted as a general principle that any act of man that causes damage to another obliges him who is its author to repair it, it was useless to descend to the applications of this principle.

It remains to examine whether certain conceptions of the mind, when they have been realized, ought to be placed in the rank of properties.

---

Notes

[^209]: January 13, 1801. [^210]: April 12, 1803. [^211]: Art. 16, 17, and 18.