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50. DECISION OF THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA ON

APPEAL FROM THE COMMISSIONER OF PATENTS-Nor FINAL—No APPEAL TO THE SUPREME COURT OF THE UNITED STATES.-A decision of the Court of Appeals of the District of Columbia on appeal from the Comniissioner of Patents is not final" within the meaning of sections 8 and 9 of the act of February 9, 1893 (27 Stats., 434, 436, chap. 74,) and therefore is not appealable to the Supreme Court of the United States.

** E. C. Atkins & Company v. Moore, Commissioner of Patents, 517. 51. SECTIONS 4914 AND 4915 OF THE REVISED STATUTES CONSTRUED.-Under

section 4914 of the Revised Statutes no opinion or decision of the court of appeals on appeal from the Commissioner precludes “any person interested from the right to contest the validity of such patent in any court wherein the same may be called in question," and by section 4915 a remedy by bill in equity is given where a patent is refused, and we regard these provisions as applicable in trade-mark cases under section 9 of the act of February 20, 1905.

**Id. 52.

• UNXLD”-DESCRIPTIVE.—The mark “UNXLD" Held to be a misspelling of the word “unexcelled," and therefore not registrable, since such word is “merely descriptive.” Ex parte Clark-Horrocks Com

pany, 83. 53. NAME OF A COPYRIGHTABLE ARTICLE—Not REGISTRABLE AS A TRADE

MARK.—The name given to a copyrightable article is not registrable as a trade-mark. (Black v. Ehrich, 44 Fed. Rep., 793.) Ex parte The

Craftsman's Guild, 91. 54. NAME OF AN ARTICLE COVERED BY A DESIGN PATENT.-The name by which

an article covered by a design patent is known is not registrable as a

trade-mark. Id. 55. INTERFERENCE-PARTIES_APPEAL.- Where in an interference between an

application and a registered mark the registrant does not appear, but others claiming as successors to the business and trade-mark rights of the registrant appear and seek to be made parties to the interference by filing a new application, which, however, the Examiner of TradeMarks holds does not interfere with the trade-mark claimed by the other applicant, and the Examiner of Interferences renders judgment of priority against the registrant, Held that an appeal to the Commissioner by the alleged successors is irregular, as they are not parties to

the proceeding. Yonkers Brewery v. Iler and Bergweger, 93. 56. SAME—APPLICANT AND REGISTRANT-SUCCESSOR TO THE REGISTRANT.

Before an alleged successor to the business and trade-mark rights of a registrant will be recognized in an interference proceeding such successor must either have an assignment from the registrant of record in this Office or he must file an application in his own name. (Frank &

Gutmann v. Alacuilliam, C. D., 1905, 17; 114 0. G., 542.) Id. 57. SAME-DECLARATION-DISCRETION OF THE EXAMINER—APPEAL.—The dec

laration of an interference between two trade-marks is a matter within the discretion of the Examiner of Trade-Marks, and his decision refusing to declare an interference will not be reviewed on appeal except

where it appears that such discretion has been abused. Id. 58. PRESUMPTION AGAINST RIGHT TO REGISTRATION RAISED BY A DECREE OF

A COURT.-Where an applicant is confronted with a decree of a court which at least raises a strong presumption against his right to registration, that presumption is not overcome by the formal statement contained in the affidavit in support of his declaration. *In re Johann Hoff, 390.

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59. SIMILARITY—“ HOFF's” AND “ LEOPOLD HOFF's.”—The words “ Hoff's"

and “Leopold Hoff's" are so similar as to be likely to cause confusion when applied to the same class of goods, the words “ Hoff's” being

the predominating feature. *Id. 60. IDENTITY" NAYASSETT ” AND “NASSAC.”—The word “Nayassett” so

nearly resembles a registered trade-mark, “Nassac," appropriated to goods of the same descriptive properties, as to be likely to cause confusion in the mind of the public. Registration was therefore properly

refused. Er parte Charles E. Brown & Company, 96. 61. NAME OF APPLICANT.—The word “Champion ” being substantially the

name of the applicant, The Champion Safety Lock Company, and not written in a distinctive manner, Held that its registration is prohibited by section 5 of the act of February 20, 1905. (Kentucky Distilleries and Warehouse Company v. Old Lexington Club Distilling Company, C. D., 1908, 417; 135 0. G., 220; 31 App. D. C., 223.) Er parte The

Champion Safety Lock Company, 99. 62. PUBLICATION.—The question of republication, whatever may be the

ground therefor, is one that should be left to the discretion of the Examiner of Trade Marks, and his action on such question will not be disturbed unless it be shown that such discretion has been abused.

Er parte Barclay and Barclay, 100. 63. REGISTRATION OF SEPARATE FEATURES OF A TRADE-MARK.-A party may

not segregate his trade-mark and by registering each of its features separately thereby prevent the registration by another of any particular part of the mark as actually used notwithstanding that such registration and use would cause no confusion to the trade and no prejudice to the first registrant. * John Rutgert Planten (H. R, Planten substi

tuted) v. Canton Pharmacy Company, 408. 64. SAME-PROOF OF L'SE of Such FEATURES.—By the passage of the Trade

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Mark Act Congress did not intend to confer upon any dealer the right to register fictitious marks for the purpose of limiting and restricting the field of registration of others. When, therefore, the Commissioner is satisfied that the applicant is attempting to register a particular feature of a registered mark, he should require evidence that the mark of the application has actually been used as a trade-mark. Not having limited his claims in his original application, the applicant cannot prove statutory use of the mark of the second application by showing such

use of the registered mark. *Id. 65. BLACK CAPSULES” FOR A MEDICINE-DESCRIPTIVE.—The words “ Black

Capsules” are not registrable as a trade-mark for a medicine of a dark color which is put up in transparent capsules, since these words

are clearly descriptive of the filled capsules. *Id. 66. INTERFERENCE-OPPOSITION-RES ADJUDICATA.—Where after the ter

mination of an interference between two applicants for trade-mark registration the unsuccessful party files an opposition to the registration by the other party, Held that the opposition was properly dismissed, as the judgment in the interference was conclusive as to every question that was or might have been presented therein. *Bluthenthal

E Bickart v. Bigbie Bros. & Co., 411. 67. “ OUR WORTH” ANTICIPATED BY “ WORTH." --The marks “Worth” and

“Our Worth" when appropriated to goods of the same descriptive properties would be likely to cause confusion in the mind of the public

and deceive purchasers. "In re Nash Hardıcare Co., 413. 21895-II. Doc. 124, 61-2--40

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68. SIMILARITY OF MARKS.—The representation of a Quaker associated with

the word “ Penn's ” Held to so nearly resemble a mark consisting of a bust picture of a Quaker with the name Wm. Penn ” written thereover as to be likely to cause confusion in the mind of the public when applied to merchandise of the same descriptive properties. Er parte

Penn Tobacco Company, 106. 69. CLASS OF GOODS—CIGARS AND SMOKING AND CHEWING TOBACCO.-Cigars

Held to be merchandise of the same descriptive properties as smoking

and chewing tobacco. Id. 70. 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. Es parte The American Sugar Refining Com

pany. 116.

71, SAME-ALTERNATIVE.-A map of the United States and the words

“United States " are alternative. Id. 72. REGISTRATION BY FOREIGNERS—NEED NOT INCLUDE NON-REGISTRABLE FEA

TURES 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 which 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.) Ex parte Soc.ta Prod.ti

Chim.co Farmac.ci A. Bertelli & C., 118. 73. ANTICIPATION.-A trade-mark comprising a representation of a desert

scene in which prominently appear three pyramids Held to have been properly refused registration in view of two prior registrations, the one showing a pyramid and certain descriptive matter and the other the word “ Pyramid ” applied to goods of the same descriptive proper

ties. Ex parte The Waterproofing Company, 123. 74. CLASS OF GOODS.-Hydrolithic or waterproof cement Held to be of the

same descriptive properties as Portland cement. Id. 75. OPPOSITION-NON-TECHNICAL MARK-EXCLUSIVE USE—CHARACTER

USE BY OPPOSER.-Applicant's mark consisted of the word “Asbestos," the letters of the word being constructed in a peculiar manner. The opposer used the word “Asbestos " not as a trade-mark, but merely to designate engine and machinery packing sold by it. Held that this was a sufficient use of the word “Asbestos” to prevent the registration of applicant's mark under the “ ten-years” clause of the Trade Mark Act, since the predominating characteristic of that mark is the same word. *H. W. Johns-Janville Company v. American Steam Packing

Company, 425. 76. “ASBESTOS "-DISTINCTIVE LETTERING-DESCRIPTIVE OF ASBESTOS PACK

ING.–The word “Asbestos," the letters of which are formed in a peculiar manner, is not registrable as a technical trade-mark for asbestos engine and machinery packing, since the predominant feature of the mark is the word Asbestos,” which is descriptive of the goods to

which it is applied. Id. 77. INTERFERENCE-DISCLAIMER OR CONCESSION OF PRIORITY AS TO A PART OF

THE ISSUE-PRACTICE.---Where a party to an interference who has failed to invoke the remedy provided by Rule 49 of the Trade Mark Rules presents a disclaimer or concession of priority as to the part foreigner applies for registration of a trade-mark, it is not sufficient that he merely file a certified copy of the registration of such trademark in the country in which he resides or is located, but the declaration must set forth that the mark was registered in such country upon the date shown in the certificate. Ex parte Konigliches Hofbrauamt Munchen, 154,

OF

of the issue which, if accepted, would in fact cause a dissolution of the interference without a decision of priority, the Examiner of Interferences should direct the attention of the Commissioner to these facts under the provisions of Rule 48. Columbia River Packers Association

v. Nave-McCord Mercantile Company, 129. 78. SAME-SAME.—Where the Commissioner refers an interference to the

Examiner of Trade-Marks to consider disclaimers or concession of priority, the latter will hear the case inter partes, and his decision

will be binding upon the Examiner of Interferences. Id. 79. SAME-JURISDICTION OF THE EXAMINER OF INTERFERENCES.—Where in an

interference between an applicant and a registrant the Examiner of Interferences decides that the applicant is not entitled to registration by reason of the manner in which the mark was used, Held that the application will not be returned to the Examiner of Trade-Marks for a further consideration of that question ex parte, since in a trade-mark interference it is within the jurisdiction of the Examiner of Interferences to decide the right of a party to registration, and applicant's remedy is either by appeal or motion to reopen the interference.

Mathy v. The Republic Metalware Company, 132. 80. APPLICATION FOR REGISTRATION_DESCRIPTION OF GOODS.-An applica

tion for the registration of a trade-mark should state in unequivocal language the particular description of goods to which the trade-mark

is appropriated. Ex parte Empire Knife Company, 135. 81. ALLEGED GENERIC TERM.—The fact that manufacturers and dealers may

regard the word Diamond as having lost its distinctive character when used in trade-marks for flour constitutes no ground for registering the trade-mark “ Diamond Jo" when it so nearly resembles several registered marks as to be likely to cause confusion and mistake in the mind of the purchasing public. Ex parte Sheffield Mill &

Elevator Company, 140. 82. REGISTRABILITY—“ GOVERNMENT."-A mark the distinguishing feature

of which consists of the word Government,” for loose-leaf binders, refused registration on the ground that, in association with the words " Registered in the United States Patent Office" or an abbreviation thereof, which the law requires to be a.sxed to the mark to give notice of the registration, it would tend to mislead the public into the belief that the goods to which the mark is affixed have received the approval of the United States Government. Ev parte Sieber & Trussell Manu

facturing Company, 145. 83. “OOLITIC" For Paint_DESCRIPTIVE OR DECEPTIVE.—The word “Oolitic”

as applied to a paint is either descriptive or deceptive, and therefore not

registrable. Ex parte The A. Burdsal Company, 505. 84. NAME OF APPLICANT.—Where the mark includes the name of the applicant

not itself written, printed, impressed, or woven in a particular or distinctive manner, the fact that the name is associated with arbitrary features does not render the mark registrable. Er parte The Amulet

Chemical Company, 151. 85. FOREIGN APPLICANT-DECLARATION-FOREIGN REGISTRATION.--Where a

AND

BY

OF

86. SAME-SAME-SECTION 2 OF TRADE-MARK ACT CONSTRUED.—The word

statement as used in the latter portion of section 2 of the TradeMark Act refers to the matters of fact set forth by the applicant in the declaration and not to the particular paper which is ordinarily referred

to as the “ statement” of the application. Id. 87. REOPENING CASE AFTER APPEAL TO THE COURT.--After a decision of the

Commissioner refusing to register a trade-mark has been affirmed by the Court of Appeals of the District of Columbia an amendment will not be admitted and the case reopened for further prosecution. EJ

parte IIerbst, 158. 88. “Parisian IVORY" FOR Tooth-BRUSHES--Not REGISTRABLE.—The words

“ Parisian Ivory” are not registrable as a trade-mark for tooth-brushes, since the word “ Parisian” is geographical and the word “ Ivory" as applied to tooth-brushes is either descriptive or deceptive. Ex parte

Loonen, 159. 89. INTERFERENCE-REOPENING TO TAKE TESTIMONY.-From a refusal of the

Examiner of Interferences to reopen the case for the purpose of extending the times to take testimony no appeal lies (citing Goodfellow V. Jolly, C. D., 1905, 105; 115 0. G., 1064, and others.) California

Fruit Canners Association v. Ratcliff-Sanders Grocer Company, 160. 90. SAME-APPEAL-DELAY.—Where the circumstances of the case indicate

a fixed policy of delay by a party to opposition and interference proceedings and his appeal is filed outside the limit set, a motion to extend the limit to include the appeal will be denied and the appeal

dismissed. Id. 91. SAME-APPLICANT

REGISTRANT--AFFIDAVITS APPLICANT ABANDONMENT OR NON-USE BY REGISTRANT_REPLY AFFIDAVIT REQUIRED.—Where in an interference between an application and a registration the applicant files a sworn statement of facts tending to show that the registrant does not use or has abandoned the mark in issue, it is proper to require that the registrant file a sworn statement in reply or in event of the failure to file such statement that a judgment by default be rendered against him. The Ozo Remedy Com

pany v. Carnrick & Co., Ltd., 162. 92. “IF Not RIGHT-WRITE-WILL MAKE Right"-ADVERTISING PHRASE

Not. REGISTRABLE.—The phrase “ If Not Right-Write Will Make Right” is in the nature of a guaranty that the merchandise to which it is applied is of good quality, and it is not the proper subject of technical trade-mark protection (citing in re Central Consumers Company, ante, 329; 140 0. G., 1211; 32 App. D. C., 523.) Ex parte Sumner Iron

Works, 171. 93. CONTAINING DESCRIPTIVE PHRASE-Not REGISTRABLE.-A mark compris

ing a circular figure bearing a monogram and the legend "If Not Right-WriteWill Make Right" is not registrable, since the legend is a descriptive phrase (citing Johnson v. Brandau, ante, 298; 139

0. G., 732; 32 App. D. C., 348.) Id. 94. OPPOSITION-FAILURE TO TAKE TESTIMONY-REOPENING.—Where a party

to an opposition proceeding failed to take testimony, under the belief that a concession would be filed by the other party which would be advantageous to its interests, Held that it took the risk of the loss of its rights by such failure to take testimony and that jurisdiction would not be restored to the Examiner of Interferences to consider a motion to reopen and set new times for taking testimony. California Fruit Canners Association v. Ratcliff-Sanders Grocer Company, 172.

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