BILLINGS, First Assistant Commissioner:

The records show that a notice was sent out to the parties that this interference was transmitted to the Examiner for the purpose of adding new parties and that this notice was promulgated subsequent to the promulgation of a notice for the hearing on a motion for dissolution. Under these circumstances the parties were justified in believing that the hearing was superseded by the subsequent notice. If new parties are to be added to the interference, this should be done prior to the hearing on the motion to dissolve. The Examiner should add the new parties, if any there be, and set the motions which may hereafter be taken, as well as the motion which has now been filed in the case, for hearing on the same day, so that all matters for consideration on motion may be argued at the same time.

The motion is granted to this extent.

WM. A. COOMBS MILLING COMPANY v. BARBER MILLING COMPANY.

Decided January 18, 1911.

163 O. G., 727.

TRADE-MARKS OPPOSITION AND INTERFERENCE-INTERFERENCE NOT SUSPENDED. Where after the filing of a notice of opposition to the registration of a trade-mark by the owner of a registered trade-mark an interference is declared between the registration of the opposer and the application, Held that the interference should not be suspended pending the final determination of the opposition except by consent of the parties.

APPEAL ON MOTION.

TRADE-MARK FOR WHEAT-FLOUR.

Mr. F. F. Reed, Mr. E. S. Rogers, and Mr. Francis M. Phelps for Wm. A. Coombs Milling Company.

Mr. Wm. Furst and Messrs. Herrick & Herrick for Barber Milling Company.

TENNANT, Assistant Commissioner:

This is an appeal by the Wm. A. Coombs Milling Company from the decision of the Examiner of Interferences denying its motion for a suspension of this interference pending the final determination of an opposition proceeding instituted by the Barber Milling Company against the registration of the mark of Wm. A. Coombs Milling Company involved in this interference.

The Barber Milling Company is a registrant. The trade-mark of the Wm. A. Coombs Milling Company was published in the OFFI2097°-12- 4

CIAL GAZETTE of April 21, 1908. Within the period allowed by law the Barber Milling Company filed its opposition to the registration of this mark. Thereafter this interference was declared between the registration of the Barber Milling Company and the application of Wm. A. Coombs Milling Company.

It is urged in behalf of the applicant that the opposition is a broader proceeding in which certain questions may be raised which would not be pertinent to the interference and that all the questions which might be raised in this interference may be decided in the opposition. It is therefore contended that the interference proceeding should be suspended pending the determination of the opposition. The force of this argument is not apparent. Section 7 of the TradeMark Act of 1905 provides that in every case of interference or opposition to registration the Commissioner shall

direct the Examiner in charge of interferences to determine the question of the right of registration to such trade-mark, and of the sufficiency of objections to registration, in such manner and upon such notice to those interested as the Commissioner may by rules prescribe.

In the decision upon rehearing in in re Herbst (C. D., 1909, 331, 333; 141 O. G., 286, 287; 32 App. D. C., 269, 565) the Court said:

As pointed out in the opinion, section 7 of the Trade-Mark Act in terms clothes the Commissioner with power to refuse to register both of two interfering marks" or to "register the mark, as a trade-mark, for the person first to adopt and use the mark, if otherwise entitled to register the same."

It will thus be seen that 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.

It would therefore appear that all questions which might be raised in the opposition proceeding could be determined in the interference. In the case of Bluthenthal & Bickart v. Bigbie Bros. & Co. (C. D., 1909, 411; 143 O. G., 1346; 33 App. D. C., 209) the same Court said:

The parties to the opposition being the same as in the interference proceeding, and the subject-matter being the same, the judgment in the former is conclusive as to every question that was or might have been presented and determined therein.

The first ground of the opposition was substantially presented and determined in the interference proceeding. ( (Bluthenthal & Bickart v. Bigbie Brothers & Company, C. D., 1907, 665; 130 O. G., 2068; 30 App. D. C., 118.) The second ground as to fraudulent use of the trade-mark by Bigbie Bros. & Co. could have been determined in the interference proceeding also, though it was not actually presented. (Schuster Co. v. Muller, C. D., 1907, 455; 126 O. G., 2192; 28 App. D. C., 409; Levy v. Uri, C. D., 1908, 461; 135 O. G., 1363; 31 App. D. C., 441)

Aside, however, from this consideration, section 7 of the TradeMark Act provides that whenever an application is made for the registration of a trade-mark which is substantially identical with a trade-mark appropriated to goods of the same descriptive properties

for which a certificate of registration has been issued to another the Commissioner shall declare that an interference exists as to such trade-mark and shall direct the Examiner of Interferences to determine the right of registration of such mark.

It is therefore the duty of the Office under circumstances such as obtain in the present case to institute an interference proceeding. Such an interference should not be suspended or terminated without the consent of the parties in favor of an opposition proceeding, which is one dependent upon the act of an opposer who believes he will be damaged.

Furthermore, the Office has in its possession a registration which under the law shows that the Barber Milling Company is prima facie the owner of its trade-mark involved herein. Under such circumstances, manifestly, the burden of proof should be placed upon a later applicant for registration.

The decision of the Examiner of Interferences refusing to suspend the interference is affirmed.

1. TRADE-MARKS

EX PARTE PRICE FLAVORING EXTRACT Co.

Decided January 31, 1911.

163 O. G., 728.

"MAPLOMA "—" MAPLEINE"-SIMILARITY.

The word "Maploma as a trade-mark for syrup Held properly refused registration in view of the prior registration of the word “Mapleine” as a trade-mark for goods of the same descriptive properties.

2. SAME GOODS OF SAME DESCRIPTIVE PROPERTIES.

"Syrups, syrup compounds, and syrup substitutes" Held to be goods of the same descriptive properties as "A Harmless Vegetable Compound to impart a Flavor similar to Maple for Syrups, etc."

ON APPEAL.

TRADE-MARK FOR FLAVORING EXTRACTS.

Messrs. Taylor & Hulse and Mr. Homer C. Underwood for the applicant.

TENNANT, Assistant Commissioner:

This is an appeal from the action of the Examiner of Trade-Marks refusing to register as a trade-mark for "flavoring compounds" the word "Maploma."

Registration is refused in view of the registered trade-mark of the Crescent Manufacturing Co., No. 63,545, June 25, 1907, of the word "Mapleine," for syrup, syrup compounds, and syrup substitutes. It is urged in behalf of the applicant that the trade-marks are not so similar as to be likely to cause confusion in the mind of the public and that the goods are not of the same descriptive properties.

In my opinion it cannot be successfully maintained that the marks are so dissimilar as to be unlikely to cause confusion in the minds of the public. The first syllable of each mark is the same, and the marks are substantially the same in appearance, sound, and in significance when the latter is considered in its relation to the product to which the marks are applied.

The contention in behalf of the applicant that the marks are not used upon goods of the same descriptive properties is believed to be untenable. The mark of the registrant is stated to be used upon syrups, syrup compounds, and syrup substitutes. The specimens filed as a part of this application illustrate the manner in which the trademark is actually used upon the goods and contain the following state

ment:

"A Harmless Vegetable Compound to impart a Flavor similar to Maple for Syrups, Ice Creams, Candies, Frostings, or for any article where that Flavor is desired."

Clearly this merchandise is of substantially the same descriptive properties as a syrup or a syrup substitute. It must be held that registration of the applicant's mark is prohibited by the provisions of section 5 of the Trade-Mark Act of 1905.

The decision of the Examiner of Trade-Marks is affirmed.

EX PARTE COLUMBIA COTTON OIL AND PROVISION CORPORATION.

Decided February 6, 1911.

163 O. G., 977.

1. TRADE-MARKS-APPLICATION-PARTICULAR DESCRIPTION OF Goods.

The definition of the particular description of goods must not be so broad as to obviously include many goods to which the trade-mark is not applied, yet it need not be so narrow as to necessarily exclude some goods to which the mark is actually applied.

2. SAME-SAME-SAME.

The labels filed in connection with an application for the registration of a trade-mark for a cotton-seed-oil compound defined the goods as "Sterilized Cotton Seed Oil-Oleo Stearine." Held that the particular description of the goods in the application, “An oleaginous compound for use as a pastry shortening," is sufficiently definite.

ON APPEAL.

TRADE-MARK FOR COTTON-SEED-OIL COMPOUND.

Mr. E. G. Siggers and Mr. John II. Siggers for the applicant.

BILLINGS, First Assistant Commissioner:

This is an appeal from the decision of the Examiner of TradeMarks refusing to register the trade-mark of the applicant.

The ground for refusing the registration is that applicant has failed to properly describe the goods to which the mark is applied. Section 2 of the Trade-Mark Act of May 4, 1906, provides thatThe Commissioner of Patents shall establish classes of merchandise for the purpose of trade-mark registration, and shall determine the particular descriptions of goods comprised in each class. On a single application for registration of a trade-mark the trade-mark may be registered at the option of the applicant for any or all goods upon which the mark has actually been used comprised in a single class of merchandise, provided the particular descriptions of goods be stated.

The applicant has stated that the goods to which he applies his trade-mark are those comprised in "Class 46, Foods and ingredients of foods," and the particular description is "An oleaginous compound for use as a pastry shortening."

The Examiner has held that the applicant has not described the goods with sufficient particularity and that he should state in his application the goods as defined on the label—namely, “Sterilized Cotton Seed Oil-Oleo Stearine," citing in re A. G. Spalding and Bros. (C. D., 1906, 674; 123 O. G., 321; 27 App. D. C., 314) and ex parte The Empire Knife Company (C. D., 1909, 135; 145 O. G., 762). In the case of in re A. G. Spalding and Bros., supra, the court of appeals held that the phrase "Implements, apparatus, and goods used in athletic games and sports was too indefinite to meet the requirements of the law, for the reason that it—

embraces within its terms all the various articles used in every conceivable athletic game and sport.

The mark sought to be registered was the name "Spalding," and registration was therefore applied for under what is commonly known as the ten-year proviso of the Trade-Mark Act. The Court said:

Many athletic games and sports have been invented or devised within the past ten years, as have also the implements and apparatus and goods used in connection with them. Manifestly, applicant has not used its mark for a period of ten years next preceding the passage of the act in question, in connection with such implement, apparatus, and goods. This being so, applicant has no right to ask for a registration which in terms is broad enough to cover such implements, apparatus, and goods used in such athletic games and sports, in connection with which it has not used the mark for the required time.

It is to be noted in this case that the court reasoned from the facts present that the definition of the particular description of goods was necessarily too broad, for it was not in accordance with existing conditions in trade.

In the case of ex parte The Empire Knife Company, supra, the Commissioner held that the phrase " including pocket-knives, scissors, and shears, kitchen and table knives" was not sufficiently specific under the law, for the reason that the language used required judicial