another has successfully worked out such ideas, the mists of uncertainty are immediately dissipated, vagueness takes definite form and the would-be inventor becomes, in his own mind, the actual inventor and acts accordingly. The danger and opportunity for fraud or mistake in such cases are so great that the proof should be very clear and very convincing to warrant an award to the dilatory party. The decision of the Commissioner of Patents is affirmed, and the clerk of the court will certify this opinion and the proceedings in this court to the Commissioner of Patents, as required by law. [Court of Appeals of the District of Columbia.] WALTER BAKER & COMPANY, LIMITED, v. HARRISON. Decided December 22, 1908. 138 O. G., 770; 32 App. D. C., 272. 1. TRADE-MARKS-SIMILARITY. There is conflict between a mark consisting of the word "Quaker" with the picture of a woman wearing a cap and apron and carrying a tray with a cup on it and a mark consisting of the picture of a woman wearing a cap and apron of the same style and carrying a tray with cups upon it which may be at once recognized as that of a Quaker lady. According to general knowledge and observation coffee and cocoa are goods of the same descriptive properties, and so far as there is any question of fact involved in this point it should not be decided on demurrer, but should be left for submission of proof. 3. SAME-SAME-SAME. Things may be said to possess the same descriptive properties when they can be applied to the same general use. Coffee and cocoa when used as beverages are at once associated as belonging to the class of beverages in general domestic use. They belong to the class of beverages universally used on the table and sold in prepared packages for that purpose. 4. SAME-SAME-REGISTRATION. A mark should be denied, not only when used on goods of the same descriptive properties as a similar registered mark, but when used on goods belonging to the same general class. Mr. H. A. Dodge and Mr. W. L. Putnam for the appellant. VAN ORSDEL, J.: This case comes here on appeal from a decision of the Commissioner of Patents affirming a decision of the Examiner of Interferences sustaining a demurrer to the opposition filed by appellant to the allowance of a trade-mark to appellee. It appears that the ap pellee filed an application in the Patent Office for the registration of a trade-mark for coffee. The mark consisted of the word "Quaker," together with the picture of a woman wearing a cap and apron and carrying a tray with a cup on it. The trade-mark, which the appellants are seeking to protect by the opposition, consists of the picture of a woman wearing a cap and apron and carrying a tray with cups upon it. The style of dress shown in each mark is the same, being the style at once recognized as that of a Quaker lady. Appellant, it appears, has used this mark on various cocoa products for many years, first registering it as a trade-mark in 1883, and registering it again in July, 1905. In the statement filed at the time of the application for registration, the use of the mark is described as follows: The classes of merchandise to which the trade-mark is appropriated are beverages, confectionery, and foods, and the particular description of goods comprised in said classes upon which said trade-mark is used is cocoa, chocolate, broma, and cocoa preparations. The registration of appellee's mark is opposed on the ground that, because of its similarity to appellant's mark, its use will tend to create confusion in trade and work serious injury and damage to appellant, and that the goods upon which the mark is sought to be used by appellee, are of the same descriptive qualities and contain the same descriptive properties as the goods upon which the mark of appellant is used. The question of the similarity of the marks is not an open one. They are so similar as to constitute substantially the same design, and, if sought to be used on goods of the same descriptive properties, such use would be prohibited. We think the opposition in this case is well founded, in so far as the use of the marks being upon goods of the same descriptive properties. This would seem clearly so as a matter of general knowledge and observation, and whatever question of fact is involved on this point should have been left open for the submission of proof. The products of the cocoa-bean and the products of the coffee-bean are applied to the same general use. Things may be said to possess the same descriptive properties when they can be applied to the same general use. Coffee and cocoa, when used as beverages, are at once associated as belonging to the class of beverages in general domestic use. They belong to the class of beverages universally used on the table and sold in prepared packages for that purpose. Should the same mark be granted to different persons for use on coffee and cocoa, respectively, the natural and certain result would be, that the one wishing to profit by the use of the same mark would adopt the style of package used by the other, and, by such unauthorized imitation, cause confusion in the mind of the purchasing, consuming public as to the quality of the goods so marked. The intent of the statute is to protect the rightful owners of trade-marks in their valuable property rights, and it seems to tax the courts to the utmost to protect those rights against the ingenuity of counsel and the designs of sharp competitors. A mark should be denied, not only when used upon goods of the same descriptive properties as a similar registered mark, but when used on goods belonging to the same general class. In the early case of Collins & Co. v. Oliver Ames & Sons, (18 Fed., 561,) decided by Mr. Justice Blatchford, it appeared that Collins & Co. were manufacturers of axes, hatchets, and other edged tools; and their products had high reputation, not only in this country, but in other countries, notably Australia. Oliver Ames & Sons were manufacturers of shovels, and wishing to build up a trade in Australia, marked their shovels " Collins & Co." Applying the law to this state of facts, the learned justice said: 66 It appears that the axes and other articles made by the plaintiff, and which before that time were known and used in Australia, were stamped "Collins & Co." Therefore, although the shovels made by Ames & Sons under this order and subsequently, and stamped "Collins & Co.," and sent to Australia and elsewhere, may intrinsically have been of high quality, yet the only object of the defendant in putting the stamp Collins & Co." upon them must have been to avail himself of the credit and reputation and market which the plaintiff had established for the articles it made and sold with the stamp "Collins & Co." upon them. There was no other purpose in this. Clearly, those who purchased shovels made by Ames & Sons and stamped "Collins & Co." would believe that such shovels were made by the plaintiff, for there was no other Collins & Co. than the plaintiff. This was an unlawful appropriation of the plaintiff's trademark. It is true that the plaintiff up to that time had made no shovels. It is also true that Ames & Sons and the defendant have built up a business in shovels stamped "Collins & Co." But the plaintiff had a right to make shovels, and it had made kindred articles of metal, and its good name and reputation in its business were wholly connected with the use, in its trade, of the mark" Collins & Co." The decision, we conceive, would have been the same had Ames & Sons attempted to use the mark on any other implement belonging to the general class of tools manufactured for and dealt in as a part of the hardware business. In the case of Church & Dwight Co. v. Russ (C. D., 1900, 260; 91 O. G., 228; 99 Fed., 276) the plaintiff was a manufacturer of saleratus who had adopted a certain trade-mark. This mark was imitated by defendant on baking-powder. The Court said: Soda and baking-powder are used for the purpose of leavening or lightening dough in the manufacture of bread and cakes, as well as for other domestic uses. They are generally handled by the same class of dealers and are purchased by the same class of customers. Either is indifferently used, as may be most convenient, to accomplish the same object. To the extent that bakingpowder is used to that extent it will necessarily displace the use of soda for baking purposes. They belong to the same class of goods, coming in direct competition with each other in sale and use for the same purpose. The public will readily suppose that the baking-powder bearing the complainant's trademark was either manufactured by it or by some one having its authority and consent and that it vouched for the superiority and high character of the goods bearing such trade-mark. Goods are in the same class whenever the use of a given trade-mark or symbol on both would enable an unscrupulous dealer readily to palm off on the unsuspecting purchaser the goods of the infringer as the goods made by the owner of the trade-mark or with his authority and consent. This case is directly in point. Coffee and cocoa are used to a large extent for the same purposes. In the language of the case just cited They are generally handled by the same class of dealers and are purchased by the same class of customers. Any one seeing on a package of appellee's coffee the mark used so long and so extensively by appellant, would naturally draw the inference, as was done in the case just quoted, that coffee bearing the complainant's (appellant's) trade-mark was either manufactured by it, or by some one having its authority and consent, and that it vouched for the superiority and high character of the goods bearing such trade-mark. It is not a debatable question that coffee and cocoa both belong to the same class of goods that may be described generally as household beverages. The injury which appellant would sustain by granting registration to appellee consists chiefly in the possibility of appellee's using the mark on an inferior quality of coffee, and thereby, by association in the mind of the public, injure the standing of appellant's goods. The public are entitled to protection against such a result. The court in this case, as in many trade-mark cases upon which we are called to pass, is forced to the conclusion that appellee has some sinister motive in seeking to register this mark. If not, it is strange that out of all the hundreds of thousands of designs that are available for his use as a trade-mark on his goods, he accidentally should have selected the same mark that appellant has used so long and so extensively on a line of the same general class of goods. We are not the first to draw this inference. In a very early decision, (Carroll v. Ertheiler, 1 Fed., 688,) where it was held that "Lone Jack," a trade-mark for smoking-tobacco, could not be used by defendant on cigarettes, the Court, speaking of the motive that permeated such an attempt, said: If the public and the trade do not suppose the defendant's cigarettes to be made of the plaintiff's tobacco, and the defendant so understands, why does he adopt the designation by which this tobacco is familiarly known and persist in using it? We are forced to the same inquiry in this case. The decision of the Commissioner is reversed, and the clerk is directed to certify these proceedings as by law required. [Court of Appeals of the District of Columbia.] MARK v. GREENAWALT. Decided December 22, 1908. 138 O. G., 965; 32 App. D. C., 253. 1. INTERFERENCE-EVIDENCE-TESTS. G. built a furnace and made certain tests thereof to show that the furnace described in M.'s application was inoperative. M. was not present or represented at the tests, and the furnace was dismantled before he had an opportunity to inspect it. While this did not render the testimony incompetent, it is of great importance in determining the weight to be given to the evidence relating to the tests. 2. SAME-SAME-SAME. A party deeply interested in showing that his rival's device will not operate or accomplish the object claimed for it who secretly tests the same with the aid of an expert who had previously testified to the opinion that it would not operate must necessarily rest under the burden of showing, with great certainty, that they conformed strictly with all the requirements of the description and in good faith and with great care took all the steps necessary and important to obtain fair and accurate results. Mr. C. D. Davis and Mr. C. C. Bulkley for the appellant. SHEPARD, C. J.: This is an appeal from a decision of the Commissioner of Patents in an interference case, having the following issue: 1. In a furnace, the combination of a porous hearth supporting the material to be treated, and means for passing the air or gases through the porous hearth to the material. 2. In a reverberatory furnace, the combination of porous material for supporting the material to be treated, an air chamber or passage underneath said porous material, and means for introducing air or other gases to said chamber or passage. Mark's application, filed November 8, 1897, claimed an improvement in reverberatory furnaces for melting and purifying metal through a porous hearth. Greenawalt's application filed December 27, 1901, claimed an improvement in reverberatory furnaces, for roasting ores, with a like introduction of air through a porous hearth. An earlier interference than this was declared between the two applications with a narrow issue relating particularly to a furnace for roasting ores as described by Greenawalt. Questions were raised as to the operativeness of Mark's furnace for the purpose described by him, and as to his right to make the narrow claims of the issue. When the case reached the Commissioner he dissolved the interference on the ground that Mark's furnace was inoperative as a melting-furnace for metals, and remanded the application for a further consideration of the question of operativeness. Affidavits of |