5. SAME-PUBLIC POLICY.-To use the names of ex-Presidents of the United States as trade-marks tends to detract from the dignity of the high office which they have held, and for that reason it is believed that it is against public policy for the Patent Office to encourage such use of their names by allowing them to be registered as trade-marks. Id. 6. "WEAREASE," FOR SHOES-DESCRIPTIVE.-The word Wearease" as a trade-mark for shoes Held to be descriptive, and therefore not registrable. Ex parte C. S. Sisson Company, 10.

7. 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. *Walter Baker & Company, Limited, v. Harrison, 284. 8. CLASS OF GOODS-COFFEE AND COCOA.-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. * Id.

9. 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. * Id.

10. 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. * Id. 11. OPPOSITION-BASED ON USE OF DESCRIPTIVE WORD AS A TRADE-NAME.Application having been made for the registration of a mark containing a descriptive word, it was permissible for a party who claimed to have used that word as a trade-name to file an opposition to the registration of the mark. * Johnson v. Brandau, 298.

12. DESCRIPTIVE WORD SHOWN IN DRAWING ESSENTIAL FEATURE.—Applicant having shown a mark consisting of the picture of an ass with a descriptive word written thereacross, he made all essential, and the mark must be treated as an entirety. *Id.

13. SAME PRACTICE.-In such a case registration should be denied as claimed. * Id.

14. GOODS OF SAME DESCRIPTIVE PROPERTIES.-Two trade-marks may be said to be appropriated to merchandise of the same descriptive properties in the sense meant by the statute when the general and essential characteristics are the same, the test being whether there is such sameness in the distinguishing characteristics of the goods as to be likely to mislead the public. * Phoenix Paint & Varnish Company v. John T. Lewis & Bros. Company, 303.

15. SAME-PASTE PAINTS AND READY-MIXED PAINTS.-Paste paints and ready-mixed paints are goods of the same descriptive properties within the meaning of the Trade-Mark Act. * Id.

16. INTERFERENCE-KNOWLEDGE BY LATER TO ADOPT OF PRIOR USE BY ANOTHER PARTY-PRESUMPTION.-The purpose of the act being to prevent and not to promote fraud and mistake, we would not feel inclined, even in a doubtful case, to grant registration to a claimant where it appeared, as here, that when he adopted the mark he knew of its prior

adoption and use by another firm in connection with goods of the same general character and properties. The opportunity for selection being as limitless as the human imagination, we have reason to question the motive prompting the adoption by one dealer of a mark previously applied by another dealer to like goods. * Id.

17. SAME-LACHES.-In an interference proceeding where the only question involved is whether the right of registration will be accorded either or both parties to the proceeding the question of laches is immaterial. * Id. 18. REJECTION OF APPLICATION ON PRIOR REGISTRATION-CANCELATION PROCEEDINGS. An applicant who has been rejected on a prior registration may contest with the registrant the question of priority of adoption and use in a cancelation proceeding brought under section 13 of the Trade-Mark Act of February 20, 1905, and is not obliged to enter an interference or an opposition proceeding provided for by sections 6 and 7 of that act. The E. T. Fraim Lock Company v. Reading Hardware Company, 29.

19. CANCELATION PROCEEDINGS-EFFECT OF LACHES.-The mere failure of the owner of a trade-mark through a period of years to assert his rights does not deprive him from bringing a proceeding for the cancelation of the registered mark, alleged to be the same in substance and to cover the same class of goods, for the purpose of determining the ownership of the mark. Id.

20. "ASK THE REVENUE OFFICER " FOR WHISKY-DECEPTIVE.-The words "Ask the Revenue Officer" as a trade-mark for whisky Held to be deceptive, and therefore not registrable, since the registration of this mark would tend to indicate that the Government had guaranteed the quality of the goods upon which the mark was placed. Ex parte R. M. Rose Company, 38.

decided by the "in which deci

21. COURTS-COMITY.-The question involved having been courts of appeals for the fourth and eighth circuits. sions we fully concur, we do not deem it necessary to discuss the propositions advanced by appellant in this appeal. (Brill v. Wash. Ry. & El. Co., C. D., 1908, 377; 134 O. G., 1573; 30 App. D. C., 255.)" *J. A. Scriven Company v. The W. H. Towles Manufacturing Company et al., 310.

22. BUFF-COLORED KNITTED STRIP INSERTED IN SEAM OF A GARMENT-EFFECT OF EXPIRATION OF PATENT.-The decision of the Commissioner of Patents refusing to register as a trade-mark for men's undergarments the representation of a buff-colored strip of knitted material interposed lengthwise thereof on the ground that the registration would extend the monopoly enjoyed by applicant under the Brown patent, which purported to cover such an inserted strip and which expired in 1898, Held to be founded in reason and sustained by authority. * Id. 23. "AMERICA'S STRENGTH FOR COFFEE-NOT REGISTRABLE.-The words "America's Strength" are not registrable as a trade-mark for coffee, since the word "America" is clearly geographical, and the word "Strength" as applied to coffee is descriptive of quality. * In re Meyer Brothers Coffee and Spice Company, 312.

24. COMBINATION OF NON-REGISTRABLE WORDS.-A registrable trade-mark cannot be made by combining two non-registrable words. *Id.

25. NAME OF PATENTED ARTICLE.-Between 1870 and 1884 several patents for improvements in step-ladders were issued to C. G. Udell, the predecessor in business of The Udell Works. Udell adopted as his trademark the word "Excelsior." The Excelsior ladder embodied features

of several, but not of all, of the patents. Six other styles of ladders were manufactured, some of which closely resembled the Excelsior ladder and all of which embodied features of the Udell patents. Held that the word "Excelsior" did not become during the life of the Udell patents the generic designation of ladders manufactured thereunder. * UdellPredock Manufacturing Company v. The Udell Works, 316.

26. SAME THAT A TRADE-MARK IS GENERIC NOT TO BE PRESUMED.-While care should be taken lest a monopoly be continued beyond the life of a patent through the agency of a trade-name which has come to indicate to the public the patented article, the Patent Office would not be justified in presuming that a trade-mark was generic. In the present case the appellee company has built up a trade in ladders because of the superior excellence of the product and the fair dealings of the company. Manifestly it would be unjust to deny the company the benefit of its reputation unless convinced that to do so would prolong a monopoly. * Id. 27. SIMILARITY-COLONIAL FIGURES.-A trade-mark for canned fruits consisting of a full-length figure of a colonial military officer, accompanied by the words "Col. Willett," Held so similar to a prior registered mark for the same goods consisting of a bust portrait of Gen. Anthony Wayne in a colonial military uniform as to be likely to cause confusion in trade. *Wayne County Preserving Company v. The Burt Olney Canning Company, 318.

28. SAME-DOUBT RESOLVED IN FAVOR OF PRIOR REGISTRANT AND USER." The property right in trade-marks is a valuable one, and is entitled to protection from those who would profit by its imitation and the courts should resolve the doubt, if any exists, in favor of the prior registrant and user in good faith." * Id.

29. "MOUNTAIN DEW" FOR WHISKY-DESCRIPTIVE.-The words "Mountain Dew as a trade-mark for whisky Held to be descriptive and regis. tration properly refused, for the reason that, however fanciful the term may originally have been, the words are now generally recognized as meaning whisky. * Charles Dennehy & Co. v. Robertson, Sanderson & Co., Limited, 323.

30. REGISTRABILITY-MUST BE ARBITRARY WORDS OR DESIGNS.-"It was evidently the intention of Congress in placing these restrictions in the Trade-Mark Act to prohibit any one from acquiring a property right, protected by law in its exclusive use, in a name possessing any inherent signification that would, of itself, enhance the sale or value of the article or articles to which it may be applied. In other words, it was intended to limit the selection to mere arbitrary words or designs, the value of which should consist alone in their becoming fixed in the public mind through continued use on the goods of the owner. It was not intended that the mark should lend value to the goods, but that the quality of the goods and the reputation of the owner should ultimately make the mark valuable as a symbol in the connection in which it may be used." * In re Central Consumers Company, 329.

31. "NEXTOBEER ' FOR MALT BEVERAGE-DESCRIPTIVE.-Held that the word "Nextobeer," used as a trade-mark for non-intoxicating beverage, is descriptive, and therefore not registrable. *Id.

32. DESCRIPTIVE "ANTIAQUA FOR AN ASPHALTIC CEMENT.-The word "Antiaqua" Held descriptive, and therefore not registrable as a trademark for an asphaltic cement, since the obvious meaning of the word is waterproof. Ex parte Union Fibre Company, 57.

33. SAME-WORDS WRITTEN IN FOREIGN LANGUAGE. It is well settled that descriptive words are not rendered less so by being written in a foreign language. (Grocers Specialty Mfg. Co., C. D., 1903, 10; 102 O. G., 465; Roncornoni v. Gross et al., 86 N. Y. Supp., 1112; 92 App. Div., 221.) Id. 34. CLASS OF GOODS.-Saws, tools, and files are goods of the same descriptive properties as hammers and hatchets. Ex parte Bindley Hardware Company, 58.

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35. SIMILARITY.-A mark consisting of the representation of a keystone with a diamond-shaped figure placed horizontally across the same and a scroll beneath the keystone, the words "Albion" appearing upon the diamond, Bindley's Ever Satisfactory Tools" upon the keystone, and "Quality Counts upon the scroll, is anticipated by the marks of a prior registrant containing the representation of a keystone. Id. 36. INTERFERENCE-RES ADJUDICATA.-In a trade-mark interference the Commissioner held that none of the parties thereto were entitled to registration. No appeal was taken from his decision, but thereafter H. applied to the Examiner of Trade-Marks for allowance of his original application, and from refusal of the Examiner appeals were presented to the Commissioner and the court of appeals. Held that if H. was aggrieved by the decision of the Commissioner in the interference his remedy was by way of appeal from that decision, and when the time within which such an appeal might have been taken expired the decision became final and was res adjudicata. *In re Herbst, 331. 37. SAME PRACTICE." In a trade-mark interference proceeding the issue, which the Commissioner is called upon to determine, is not merely one of priority as in a patent interference proceeding, but involves any question that might be raised in an ex parte case." *In re Herbst, 333. 38. OPPOSITION PROCEEDINGS AMENDMENT OF NOTICE.-A refusal by the Patent Office to permit an amendment of a notice of opposition after the expiration of the thirty days allowed by the statute approved on the ground that if the amendment did not set up new grounds of opposition no advantage could result from the amendment, and if it did set up new grounds it was brought too late. *The Hannis Distilling Company v. George W. Torrey Company, 338.

39. ABANDONMENT OF MARK-STATE LAW.-The non-user of a trade-mark for liquor for a period of years, caused by a restriction upon the sale thereof by a State law, did not operate as an abandonment of the property rights in the mark which were acquired prior to the passage of the said law. *Id.

40. SAME-SAME-USE IN INTERSTATE TRADE.-The non-user of a trade-mark for liquor for a period of years, caused by a restriction upon the sale thereof by a State law, should not be held to operate as an abandonment of the property rights in the mark which were acquired prior to the passage of the State law where it appears that the owner of the mark was engaged in interstate trade and there was nothing in the restricting act to prevent the manufacture of the liquor bearing the mark and the disposal of it in other States. *Id.

QUAKER MAID" ANTICIPATED BY "QUAKERESS AND BY QUAKER."A trade-mark for hosiery, etc., consisting of the words "Quaker Maid' and the representation of two keystones, Held anticipated by two prior registrations, one consisting of the word "Quakeress" printed upon a distinctive background, and the other consisting of the word “Quaker" alone. Ex parte Young, Smith, Field Company, 68.

42. ANTICIPATION-DETERMINED BY OFFICE-CONSENT OF REGISTRANT NOT CONCLUSIVE.-Where in the opinion of the Commissioner a mark sought to be registered so nearly resemble a prior registered mark as to be likely to cause confusion in the mind of the public, registration will be refused, notwithstanding the consent of the registrant to the registration of such mark. Id.

43. OPPOSITION-PLEA-APPEAL.-There is no right of appeal from the de cision of the Examiner of Interferences overruling a plea to a notice of opposition. Deitsch Bros. v. Loonen, 70.

44. PATENT OFFICE PROCEEDINGS-COMITY.-The principle of comity under which one court suspends all action in a case where another court has assumed jurisdiction of the subject should be given proper recognition in the Patent Office. Palestine Hebrew Wine Company v. Carmel Wine Company, 74. 45. CANCELATION PROCEEDINGS-SUSPENDED PENDING DETERMINATION OF INFRINGEMENT SUIT.-Where, pending a suit for infringement of a registered trade-mark, the respondent in that suit files an application for cancelation of such mark, Held that the cancelation proceeding will be suspended pending the determination of the suit for infringement. Id. 46. "CRYSTAL"-DESCRIPTIVE.-The word "Crystal" for beer Held to be descriptive. "As applied to beer the word would import that it is clear, transparent, that is, light, clear beer as distinguished from other beers that are dark or black. That it was intended by the applicant to represent this quality is apparent from the figure on the label, of a woman holding up a glass of the beverage and examining it in the rays of the sun." In re The New South Brewery and Ice Company, 364. 47. INTERFERENCE-MOTION FOR DISSOLUTION BASED ON TESTIMONY-TRANSMISSION. A motion to dissolve a trade-mark interference based on the ground that the labels introduced during the taking of testimony contain certain deceptive statements should be denied transmission. Falk Tobacco Company v. Kinney Tobacco Company, 79.

48. SAME-USE OF THE MARK-EVIDENCE. In an interference proceeding relating to a trade-mark for toilet powder where it clearly appears from the evidence that a large number of cans bearing the trade-mark were made and delivered to the junior party (a corporation) prior to the date which can be accorded to the senior party and from that time on cans were made and delivered to the junior party bearing the same mark, the general testimony of an officer of the corporation that these cans were filled with powder and sold to the drug trade through the regular channels, without specifying any particular persons or firms to whom it was sold, in connection with the testimony of a witness that he saw some of the cans filled with powder, is sufficient to establish priority of use of the mark by the junior party. The continuous purchase of cans bearing the mark is not sufficient alone to prove actual sales; but it is such a strong circumstance that very little additional proof is necessary. *Johnson & Johnson v. Whelan, 365.

49. DESCRIPTION OF THE MARK-DISCRETION OF THE COMMISSIONER.-Held that the Commissioner in refusing to allow, under the act of May 4, 1906, in an application for the registration of a trade-mark, a description of the mark acted within his discretion, and in the absence of a gross abuse of that discretion his action will not be disturbed. * In re E. C. Atkins & Company, 368.