interpretation. In that case the applicant defined his particular goods by stating that the class of goods to which the trade-mark was applied was that in which pocket-knives, scissors, and shears were included. It is clear from this statement that if there were any other goods than pocket-knives, scissors, and shears to which the mark was applied that fact was left open to conjecture. In the present case the definition of the oleaginous compound to which the trade-mark is applied is limited in two ways, first, by the article “an” and, second, by the phrase "for use as a pastry shortening." The definition of the particular description of goods must not be so broad as to obviously include many goods to which the trademark is not applied, yet it need not be so narrow as to necessarily exclude some goods to which the mark is actually applied. In the present case the definition used in particularly describing the goods is sufficiently specific to meet the requirements of the law. The decision of the Examiner of Trade-Marks is reversed. LEONARD V. PARDEE. Decided February 17, 1911. 164 O. G., 249. 1. INTERFERENCE-MOTION UNDER RULE 109-No APPEAL FROM A FAVORABLE DECISION. No appeal lies from a decision granting a motion to add counts under Rule 109 whether rendered by the Primary Examiner or the Examinersin-Chief. 2. SAME-SAME-RULE 130. Where a party to an interference opposes the granting of a motion to amend under Rule 109 on the ground that the moving party has no right to make the proposed claims, Held that under the provisions of Rule 130 he can urge this at final hearing. ON PETITION. ACCOUNT-REGISTER. Messrs. Wilhelm, Parker & Hard for Leonard. Mr. Edw. R. Alexander for Pardee. MOORE, Commissioner: This is a petition to dismiss an appeal from the decision of the Examiners-in-Chief reversing the action of the Primary Examiner holding that Pardee has a right to make certain claims presented under the provisions of Rule 109. It is well settled that the proceedings on a motion to add counts under Rule 109 should follow that on motions to dissolve. (Joselyn v. Hulse, C. D., 1908, 34; 132 O. G., 844.) The decision of the Ex aminers-in-Chief being favorable to the right of a party to make the claims, there is under the well-established practice no appeal therefrom. In opposing this petition Leonard has urged that if this appeal be not entertained he is wholly without remedy. It does not appear, however, that this case presents any exceptional circumstances. The question which Leonard seeks to have again reviewed by this appeal has been twice passed upon, and a favorable decision as to the right of a party to make the claims, after such consideration, is deemed sufficient to warrant the continuance of the interference. Leonard's remedy will be, as pointed out in Josleyn v. Hulse, supra, to urge under Rule 130 at final hearing that Pardee has no right to make the claims. The petition is granted and the appeal dismissed. EX PARTE WINDHORST & COMPANY. Decided January 31, 1911. 164 O. G., 249. 1. TRADE-MARKS-PARTICULAR DESCRIPTION OF GOODS-OBJECTION-PETITION. An objection to a particular description of goods merely on the ground of indefiniteness is reviewable on petition. (Pfister & Vogel Leather Company, C. D., 1905, 432; 118 O. G., 2250, distinguished.) 2. SAME-SAME. 66 The terms pressure-lamps" and "portable merchandise units commonly known as gasolene, incandescent lighting systems used in the particular description of the goods upon which the mark sought to be registered is used Held not indefinite. ON PETITION. TRADE-MARK FOR GRAVITY AND PRESSURE LAMPS AND SYSTEMS, STOVES, Messrs. Carr & Carr for the applicant. MOORE, Commissioner: GAS This is a petition from the action of the Examiner of Trade-Marks requiring that the particular description of goods to which applicant's mark is applied be made more definite. The Examiner in his statement on this petition recommends that the petition be dismissed on the ground that it relates to matter of merits, which is not reviewable upon a petition without fee. In support of this recommendation he cites ex parte Pfister & Vogel Leather Company (C. D., 1905, 432; 118 O. G., 2250) and other cases in which petitions of a similar nature have been dismissed on the ground mentioned. In the case of the Pfister & Vogel Leather Company, supra, upon the authority of which the other cases cited appear to have been decided, the applicant described the goods simply as "leather," and the Examiner held that this word was so broad as to include various classes of goods which are not of substantially the same descriptive properties-in other words, that the application covered, in fact, several trade-mark rights instead of one and that the applicant was not entitled to secure a single registration covering these several rights. This decision was rendered prior to the act of May 4, 1906, giving the Commissioner authority to establish classes of merchandise for the purpose of trade-mark registration. This act provides that- 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. In applications filed under this law the question of indefiniteness in the description of the goods cannot relate to the merits of the application in the same sense as it did in the case of Pfister & Vogel Leather Company. In that case the Examiner's action was equivalent to a requirement for division; but under the present practice as outlined in the law above quoted no question of division can arise as long as the goods described fall within one of the classes established by the Commissioner, and the objection of indefiniteness raises merely the formal question whether the language used is properly descriptive of the goods in that class upon which the mark has been actually used. It must be held, therefore, that under the present practice a question as to the definiteness of the particular description of the goods such as here raised may be considered upon petition without the payment of an appeal fee. In the case of The Empire Knife Company, (C. D., 1909, 135; 145 O. G., 763,) a question similar to that here raised was so considered and determined. The particular description of the goods in this instance to which the Examiner objects reads as follows: Gravity and pressure lamps, the portable merchandise units commonly known as gasolene incandescent lighting systems, gas-generating machines, incandescent-lamp mantles and blow-torches for illuminating purposes, the same being specified as falling within official Class No. 34, "Heating, lighting, and ventilating apparatus, not including electrical apparatus." In this description the Examiner holds that the expressions "pressure-lamp" and "portable merchandise units commonly known as gasolene incandescent lighting systems" are too indefinite to particularly indicate the goods to which the mark is applied. Applicant maintains, on the other hand, that the expression " pressure-lamp" is a term in common use in the trade and while perhaps of rather recent origin is well understood to apply to lamps using gasolene or similar oil and with which a tank is associated containing air under pressure. He makes substantially the same allegation as to the expression "gasolene incandescent lighting systems," which are described as comprising a lamp of the general type above referred to in combination with a pressure-tank which is connected to the lamp by suitable tubing rather than being made a part of the lamp itself. He has filed with this petition circulars illustrating the lamp and the system thus described and states that the system is a commercial unit manufactured and sold as a whole. In view of these allegations it is thought that the Office should accept the terms used by applicant as sufficiently definite for the purpose of trade-mark registration. It is suggested by the Examiner that the "system" referred to by applicant very likely comprises separate elements which would be classified elsewhere than in Class 34. This, however, is not controlling, since the same objection might obviously be made to many other commercial articles in connection with which trade-marks are commonly used. If the device here called a 'system" is made and sold as a unit and is so recognized by the trade, the trade-mark used thereon may properly be registered. It must therefore be held that the language adopted by applicant is sufficiently definite for the purpose of this application. The petition is granted. 66 EX PARTE LEON. Decided January 24, 1911. 164 O. G., 250. 1. APPEAL QUESTION RELATING TO MERITS-APPEAL LAES TO EXAMINERS-IN CHIEF. Whether claims are drawn to incomplete and inoperative combinations and whether the references are pertinent are questions relating to the merits and are reviewable in the first instance by the Examiners-in-Chief. 2. CLAIMS ALTERNATIVE, The phrase "brake or locking device" Held either alternative or so inapt to define the desired construction as to the objectionable on the ground of indefiniteness. 3. SAME-SAME. The words "button or hand wheel," referring to a member shaped to resemble the head of a hat-pin and used for revolving certain parts of a hat-fastener, Held to be unobjectionable on the ground of alternativeness, since they refer to the same element, (citing Phillips v. Sensenich, C. D., 1908, 14; 132 O. G., 677.) ON PETITION. LADY'S HAT-FASTENER. Mr. Joseph G. Parkinson for the applicant. TENNANT, Assistant Commissioner: This is a petition from the action of the Primary Examiner and requests that he be advised that certain information asked for by the applicant should be given; that his objection to the tenth, eleventh, and twelfth claims as for inoperative combinations be not insisted upon; that his objection to the tenth and twelfth claims as alternative is erroneous, and that the references for claims which are not for mechanical movements should be from clearly analogous classes. As to the request for information, the Examiner has conceded in his answer to this petition that it should have been given and that the failure to do so was an oversight. The holding of the Examiner that claims 10, 11, and 12 are drawn to incomplete and inoperative combinations relates to the merits and will not be reviewed upon petition. It is ground for rejection, and appeal from such holding lies to the Examiners-in-Chief in the first instance. The alternative expression objected to in claim 10 is as follows: a brake or locking device acting as a check against accidental displacement. The phrase "brake or locking device" is either alternative or so inapt to define the desired construction as to be objectionable on the ground of indefiniteness and should be revised in either case. The expression in claim 12 which has been held alternative is the button or hand wheel on the farther end of said shaft. It appears that the words " button or hand wheel " refer to a member on the outside of the hat, shaped to resemble the head of a hat-pin, but which is used as a hand-wheel for revolving certain parts of the hat-fastener. Both words therefore clearly refer to the same element, and both may be said to properly describe it. The expression seems to fall within the class mentioned in Phillips v. Sensenich (C. D., 1908, 14; 132 O. G., 677) and is unobjectionable for the reasons there stated. The Examiner's objection that the word "train " in line 4 of claim 11 has no antecedent is clearly well taken. A request to have the Examiner instructed that references for claims which are not for mechanical movements should be from clearly analogous classes obviously relates to the merits of the claims and will not therefore be reviewed upon petition. If the applicant is of the opinion that the references cited are not pertinent, his remedy is by appeal to the Examiners-in-Chief. The petition is granted to the extent indicated. |