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application relating to the cake of soap was filed. No further steps were taken by Shaver toward obtaining access to the parent application until the filing of the petition of April 10, 1909, which petition, as above stated, was denied on April 16, 1909.
It is contended on behalf of Shaver that he is entitled to a complete copy of the parent application of Dilg and Fowler, first, because Rule 105 does not apply to the state of facts disclosed in this case, since Dilg and Fowler's earlier application is not “involved in interference;” second, on the broader ground that Dilg and Fowler are relying on this earlier application as a piece of evidence to establish a date of conception and constructive reduction to practice of the invention, and that Shaver, under the well-known rules of evidence, is entitled to see and examine this piece of evidence.
It is true that application No. 260,435 is not “ involved in the interference in the sense that the claims corresponding to the counts of the issue are claims of that application; but the facts of the case are identical with those in the case of Reece v. Fenwick, supra, in which it was held that access to a parent application would not be granted where a certified copy of all parts of the parent application except those which relate to a separate and independent invention had been filed. In that case it was pointed out that, under the decisions of in re Swihart (C. D., 1900, 10; 90 O. G., 601) and in re Gillespie, (C. D., 1900, 149; 92 0. G., 2159,) Reece would be entitled to inspect and obtain copies of Fenwick's parent application, upon which the latter relied to establish conception and constructive reduction to practice, if Fenwick had not taken further steps after the filing of his divisional application and had caused to be filed a certified copy of so much of the original application as was involved in interference, in accordance with Rule 105. The decision, furthermore, pointed out that Rule 105 did not contemplate the withholding by one party of any portion of his original or parent application fron the other which would preclude the latter from intelligently making any motion he was entitled to make under the rules, and stated that, where a certified copy of so much of the application as related to the application in interference was filed, the opposing party was given all the information to which he was entitled.
As stated above, the facts in this case are identical with the facts in Reece v. Fenwick, and having been given a certified copy of all that portion of the original application which relates to the disclosure here in interference Shaver is in a position to intelligently make any of the motions which he is entitled to make under the rules.
It is well settled that where certain evidence is offered and no objection is made thereto this objection is waived. If at the time the certified copy of the earlier application of Dilg and Fowler was filed counsel for Shaver had not been satisfied that he had obtained all of that application to which he was entitled, he could have brought a motion to obtain copies of other parts of the application, and this motion, under the practice set forth in Riker v. Law (C. D., 1906, 86; 120 O. G., 2754) and Kugele v. Blair, (C. D., 1906, 477; 125 0. G., 1350,) would have been determined after a hearing before the Primary Examiner. Without deciding the second ground urged by Shaver, it must be held that whatever rights he may have had to obtain access to other parts or all of the earlier application of Dilg and Fowler he waived that right by not making objection at the time that the certified copy was filed.
Counsel for Shaver further contends that when Dilg and Fowler made their motion to shift the burden of proof they thereby made profert of their earlier application and were not entitled later to withdraw this and file the certified copy referred to. This contention, however, is believed to be not well taken, since the record shows that at the time that the motion to shift the burden of proof was filed there was therewith filed a stipulation signed by counsel for both parties that counsel for Shaver might have access to so much of the earlier application as related to the issue of this interference.
In his brief counsel calls attention to the decision in the case of United States, ex rel. Pollok, v. Hall, Commissioner of Patents, (C. D., 1889, 582; 48 0. G., 1263,) in which the Supreme Court of the District of Columbia held that applications in the Patent Office were public records and that any one upon a proper request could obtain copies thereof under section 4892 of the Revised Statutes. The court stated in this decision that the only papers required by statute to be kept in secrecy were caveat applications and applications for patent interfering therewith. The holding in this decision was, however, overruled by later decisions of the same court in United States, ex rel. United States Electric Lighting Company, v. Commissioner of Patents, (C. D., 1891, 271; 54 O. G., 267;) United States, ex rel. Fowler, v. Commissioner of Patents, (C. D., 1893, 268; 62 0. G., 1968;) and United States, ex rel. Bulkley, v. Butterworth, Commissioner of Patents, (C. D., 1897, 685; 81 O. G., 505.)
For the reasons above indicated it must be held that Shaver is not entitled to have access to Dilg and Fowler's application No. 260,435 or to obtain copies of parts of the specification and drawing other than those contained in the certified copy. He is, however, entitled to obtain a certified copy of the petition and the last page of the application, which includes the signatures of the applicants and witnesses and the oath, which were not included in the certified copy filed.
The decision of April 16, 1909, is therefore modified to the extent that Shaver will be allowed to have a certified copy of the petition and the last page of the application No. 260,435.
EX PARTE THE AMERICAN SUGAR REFINING COMPANY.
Decided May 28, 1909.
144 0. G., 562.
1. TRADE-MARKS-GEOGRAPHICAL-MAP OF THE UNITED STATES.
A mark consisting of a map of the United States, with the boundaries of the several States clearly indicated thereon and with the characters “H & E” appearing upon the face thereof, was properly refused registration on
the ground that it is geographical. 2. SAME-SAME-ALTERNATIVE.
A map of the United States and the words “ United States” are alternatives. ON APPEAL.
TRADE-MARK FOR GRANULATED SUGAR.
Messrs. Munn & Co. for the applicant.
BILLINGS, Assistant Commissioner:
This is an appeal from the refusal of the Examiner of Trade Marks to register a mark consisting of the representation of a map of the United States, surmounted by an eagle and having the letters and characters “H & E” appearing upon the face thereof, as a trademark for granulated sugar, upon the ground that the mark shown is geographical in character.
There can be no question that the words or term “United States” is geographical in character, and therefore not capable of appropriation as a trade-mark. In this respect such a mark is similar to the following marks, which have been held by the courts not to constitute valid trade-marks.“ Columbia," (Columbia Mill Company v. Alcorn, C. D., 1893, 672; 65 0. G., 1916; 150 U. S., 460;) “International," (122 N. Y., 65;) “ Continental,” (Continental Insurance Co. v. Continental Fire Association, 101 Fed. Rep., 255;) “East Indian," (Cornell et al. v. Read et al., 128 Mass., 477;) “Old Country,” (Allen B. Wrisley Co. v. Iowa Soap Co., 122 Fed. Rep., 796;) “ Orient,” (in re Crescent Typewriter Supply Co., C. D., 1908, 318; 133 0. G., 231; 30 App. D. C., 324;) “Oriental,” (in re Hopkins, C. D., 1907, 549; 128 O. G., 890; 29 App. D. C., 118;) “America,” (in re Meyer Bros. Coffee and Spice Co., post, 312; 140 O. G., 756.)
The contention of appellant is however that its mark does not consist of the geographical name or term “ United States” and that the mark does not therefore come within the prohibition of section 5 of the Trade Mark Act.
While it is true that appellant's mark does not consist of the words “ United States," nevertheless it is a correct representation of a map of the United States. It clearly indicates the United States and would be recognized as having such meaning as readily as the words themselves. The mark not only shows the outlines of the United States, but each State is indicated by its boundary-lines and by its initials placed thereupon, the whole unmistakably constituting the United States. In other words, the map of the United States and the words “United States” are merely alternative forms and mean the same thing. It is well established that such alternative forms constitute the same mark. Thus in Morrison v. Case (2 O. G., 544) it was held that whether a mark included the word “ Star" alone or the figure of a star it constituted one and the same trade-mark. See, also, Hutchinson et al. v. Blumburg (C. D., 1892, 652; 61 0. G., 1017; 51 Fed. Rep., 829.) In ex parte Weaver (C. D., 1876, 139; 10 O. G., 1) it was held that the word “Lion” and the picture of a lion should be treated as one trade-mark. In ex parte Gregoire and Company (C. D., 1903, 39; 102 O. G., 1293) one ground on which a mark consisting of a cluster of maple-leaves was refused registration was because of its descriptive element when applied to maple syrup. In ex parte Woolwine (C. D., 1901, 185; 97 0. G., 1373) the word “ Donkey ” was held to constitute the same trade mark as the pictorial representation of a donkey. In ex parte Hecht & Son (C. D., 1901, 115; 96 0. G., 1648) it was held that the word " Ivy" and the representation of an ivy-leaf were alternative. In ex parte Taylor & Lockett (C. D., 1900, 198; 93 0. G., 2531) applicant was permitted to register "the word-symbol Rabbit' or the representation of a rabbit.” See, also, cases cited in Johnson et al. v. Bauer et al., (62 Fed. Rep., 662.) In the case of Crescent Typewriter Supply Company, supra, the Court of Appeals of the District of Columbia held a mark consisting of the word "Orient" inclosed in a wreath and with the letters “E” and “I” printed as a monogram to be geographical in character and not registrable as a trade-mark. In this case the Court said:
It will be noted that this section of the Trade-Mark Act does not permit the use of a geographical name or term.” We think this provision of the statute is broad enough to prohibit the use of any word that has an exclusive geographical significance, or that would suggest any particular geographical location.
In re Hopkins, supra, a mark consisting of the words “ Oriental Cream,” in connection with the figure of an eagle, was held not registrable as a trade-mark, on the ground of its geographical character.
For the reasons stated, the decision of the Examiner of TradeMarks is affirmed.
EX PARTE Soc. TA PROD.TI CHIM.CO FARMAC.CI A. BERTELLI & C.
Decided July 9, 1909.
144 0. G., 817.
TRADE-MARKS-REGISTRATION BY FOREIGNERS—NEED NOT INCLUDE NON-RECIS
TRABLE FEATURES OF FOREIGN REGISTRATION. When a foreign applicant presents for registration a mark which is a replica of the arbitrary features comprised in the mark registered in the country in whieh applicant is located, registration should not be refused merely because such mark differs from that registered in the foreign country by the omission of matter which is itself non-registrable in character.
(Ex parte Pietro, C. D., 1907, 107 ; 127 0. G., 2394, modified.) ON APPEAL.
TRADE-MARK FOR SOAP.
Messrs. Wilkinson, Fisher & Witherspoon for the applicant. MOORE, Commissioner:
This is an appeal from the action of the Examiner of Trade Marks refusing to register a trade-mark for abrasive, detergent, and polishing materials, the mark consisting of the representation of a comet upon which is printed the word “ Sapol.”
The applicant is a corporation duly organized and existing under the laws of Italy and is located at Milan, Italy. The mark is described in the foreign registration as follows:
A rectangular label with a background covered with stars and minute lettering, saying “ Sapol A. Bertelli & C.,” carrying at the top the figure of a comet containing the word “ Sapol" and accompanied by the inscription "Marca Oro" and “ Deposited," by the facsimile of the firm, A. Bertelli & C., and by the indication of the perfume of the soap. Then below there is read, in five rectangular spaces, an inscription relative to the quality of the product repeated in various languages, and at the bottom there is found the indication “ Societa di Prodotti Chimico-Farmaceutici A. Bertelli e C. Milan (Italy)."
The specimens filed include the features thus described, but the mark shown in the drawing of the application consists merely in the representation of a comet containing the word “ Sapol."
The action of the Examiner is based upon the decision of the Commissioner in ex parte Pietro, (C. D., 1907, 107; 127 O. G., 2394,) in which it is held that under section 4 of the statute the mark which the applicant is entitled to register in this country is the identical mark which he has registered in Italy. In that case it was said that,
The mark registered in Italy is presumably that set forth and shown in the Italian registration, and the Office must so assume until furnished with proofs to the contrary. There appears to be no evidence in this case that the Italian registration is a registration of a trade-mark right in that country in the mark shown upon the drawing of this application.
Under the decision of the Court of Appeals of the District of Columbia in the case of Johnson v. Brandau (post, 298; 139 O. G., 732) an applicant may not be permitted to include as a part of the regis