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tion and use of the trademark "Chologen" in the United States, long prior to a like use of "Chologestin" by any other person, as well as its continued use to date. He also alleged that "Chologestin" so nearly resembles his trademark as to be likely to cause confusion in trade. Both the Examiner of Interferences and the Commissioner, on appeal to him, found that Rosenberg had adopted and used his trademark long prior to that of Breitenbach, and that the two so nearly resembled each other as to be likely to cause confusion in trade. Hence the order for cancelation was entered.

The first contention of error in the decision appealed from is that the use of "Chologen" by Rosenberg had not been of sufficient extent, or of such a character, as to create a trademark right. As to the extent of the use, the testimony shows that Rosenberg manufactured his Chologen tablets in Germany. They were first introduced into the United States by Dr. Aaron, of Detroit, in 1903, who frequently prescribed them for patients. The Doctor read a The Doctor read a paper before the Detroit Academy of Medicine, October 23, 1905, describing the tablets and recommending them. He first bought ten packages of the tablets; each box containing one hundred, labeled "Chologen Tablets." The tablet is what is called an "ethical remedy,”—that is, one intended to be sold only on a physician's prescription, and not as a "patent medicine." The Doctor turned over some of the packages to a local druggist, Seltzer, who supplied them on his prescriptions. Seltzer began ordering the tablets from a Chicago dealer in 1904, and later direct from Rosenberg. They were then put up in glass bottles in quantity as before. Seltzer handled about 800 packages during 1905, and the same in 1906; a slight increase in 1907. They were sold on prescriptions, and to other druggists. Rhode, a Chicago druggist, ordered from Rosenberg about six dozen packages in 1903, repeating his orders, about nine months apart. He resold them only on physicians' prescriptions. Since 1906, he ordered the tablets, about two dozen bottles at a time, from Lehn & Fink of New York, and A. Bruckner of Chicago. He commenced to sell some to jobbers in 1904. In all, he had

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sold about 300 packages on prescriptions and about 250 to the trade. When sold on prescription they were a few at a time, and were taken from the original package and put up in the druggist's own boxes. Lehn & Fink, wholesale druggists of Hoboken, New Jersey, purchased from Rosenberg, under an arrangement including advertisement, and have been selling small quantities to the trade since 1903. The bottles always bore the label, "Chologen Tablets." While the testimony is uncertain as to the amount of sales, and indicates that they were neither very great, nor general, it shows that the goods, under the aforesaid label, were on sale by wholesale and retail druggists in Hoboken, Chicago, and Detroit, from 1903 to the time of taking testimony. The beginning of these sales long outdated the use of Chologestin by Breitenbach or his assignee. We agree with the Commissioner that the evidence is sufficient to establish a trademark use. It was affixed to the bottles containing the tablets, in good faith, and a trade was established in the goods in three States, though to a limited extent.

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Every trade must have a beginning, and it would be unreasonable and unjust to say that it must be general and the article widely known before the trademark in the name affixed to it,. and indicating its origin, can be acquired. The subject is so ably discussed, and the like conclusion so convincingly stated, in an opinion of the circuit court of appeals of the 7th circuit, that we shall content ourselves with the following extract therefrom, which we entirely approve: "It is enough, we think, if the article, with the adopted brand upon it, is actually a vendible article in the market, with intent by the proprietor to continue its production and sale. It is not essential that its use has been long continued, or that the article should be widely known, or should have attained great reputation. The wrong done by piracy of the trademark is the same in such case as in that of an article of high and general reputation, and of longcontinued use. The difference is but one of degree, and in the quantum of injury. A proprietor is entitled to protection from the time of commencing the use of the trademark." Kath-

Opinion of the Court.

[37 App. reimer's Malzkaffee v. Pastor Kneipp Medicine Co. 27 C. C. A. 351, 53 U. S. App. 425, 82 Fed. 321.

Apparently it was not feasible to label each tablet separately; the only practicable method was that adopted; namely, to affix the trademark to each small bottle containing one hundred of the tablets.

We also agree with the conclusion of the Commissioner that "Chologestin" so closely resembles "Chologen" as to be likely, when used upon goods of the same general description, to produce confusion in trade. The contention of the appellant, that nonresemblance between the marks has been conclusively established by the decision in the opposition proceeding, is untenable. Rosenberg did not deny that there was this resemblance between the two marks in his answer. Evidently, the only question there decided was priority of adoption and use. If that decision should have any weight at all on that point, it would be against Breitenbach's present contention, rather than in its support.

The special ground of his contention was, that having registered "Chologestin," he would be damaged by the registration of "Chologen" by Rosenberg, because of the similarity of the two marks. Rosenberg did not deny this, but based his right to registration on prior adoption and use, which fact he established in that proceeding as well as in this.

There was no error in the decision, and it will be affirmed. It is so ordered, and that this decision be certified to the Commissioner of Patents.

Affirmed.

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JOHNSON EDUCATOR FOOD COMPANY v. SYLVANUS SMITH & COMPANY, INC.

TRADEMARKS: SIMILARITY OF NAMES.

The general and essential characteristics of the two products being dissimilar, an opposition to the registration of the word "Educator," as applied to salted, smoked, or canned fish, is properly dismissed when based upon the registration of the same word as a trademark for crackers, biscuits, bread, and breakfast cereals. (Following Phanix Paint & Varnish Co. v. John T. Lewis & Bros. Co. 32 App. D. C. 285; Walter Baker & Co. v. Harrison, 32 App. D. C. 272; Muralo Co. v. National Lead Co. 36 App. D. C. 541.

No. 688. Patent Appeals. Submitted March 13, 1911.

1911.

Decided April 3,

HEARING on an appeal from a decision of the Commissioner of Patents, dismissing an opposition to the registration of a trademark. Affirmed.

The facts are stated in the opinion.

Messrs. Macleod, Calver, Copeland, & Dike, for the appellant.

Mr. Owen H. Fowler and C. A. Barnard, for the appellee.

Mr. Justice ROBв delivered the opinion of the Court:

This is an appeal from a decision of the Commissioner of Patents, dismissing the opposition of appellant, Johnson Educator Food Company, to the registration of the word "Educator" as a trademark for salted, smoked, pickled, and canned fish. Appellant had previously registered the same word as a trademark for crackers, biscuits, bread, and breakfast cereals,

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and had built up an extensive trade in those products. The opposition is based upon the contention that the preparations of appellant are "of the same descriptive properties" as the fish products of appellee.

This is a statutory proceeding, and we must, of course, be governed by the provisions of the statute relating thereto. Section 4 (b) of the trademark act of February 20, 1905 (33 Stat. at L. 724, chap. 592, U. S. Comp. Stat. Supp. 1909, p. 1275), prohibits the registration of two marks "appropriated to merchandise of the same descriptive properties," and sec. 7 of the same act permits a prior registrant or applicant to oppose the registration of a mark “appropriated to goods of the same descriptive properties" as his own. "We think two trademarks 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 of the goods are the same.

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* * The test is whether there is such a sameness in the distinguishing characteristics of the goods as to be likely to mislead the general public." Phoenix Paint & Varnish Co. v. John T. Lewis & Bros. Co. 32 App. D. C. 285; Walter Baker & Co. v. Harrison, 32 App. D. C. 272.

Unless, therefore, there are no distinguishing characteristics between the goods of the respective parties, we have no authority to interfere with the award of registration to appellee. We think the case ruled by our decision in the Muralo Co. v. National Lead Co. ante, In that case the Muralo Company sought registration of a mark for kalsomine. The opposition was upon the ground that kalsomine was of the same descriptive properties as white lead, to which the opposer's mark applied. The court, speaking through Mr. Chief Shepard, said: "The real question is whether the use of the figure of a Dutch boy on one package and that of a Dutchman on the other is calculated to mislead an ordinary person seeking to buy white lead, into buying a package of kalsomine. Bearing in mind the essential differences between the two articles, we think it impossible that such should be the case. The purchaser has some definite use in view, and must know whether he wants white lead

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