30. SAME "WHITE LEAD" 66 AND CALCIMINE."-White lead and calcimine Held not to be goods of the same descriptive properties. (*) The 31. SAME-SAME.-"The question of confusion in trade between sales of white lead and calcimine cannot arise out of the difficulty in telling whether a given wall has been painted with oil-paint comprising white lead, or with calcimine dissolved in water. 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 calcimine. Bearing in mind the essential differences between the two articles, we think it impossible that such should be the case.” (*) Id. 32. INTERFERENCE-MOTION FOR DISSOLUTION-HOLDING BY EXAMINER OF TRADE-MARKS OF LACK OF JURISDICTION-PRACTICE.--Where in considering a motion to dissolve an interference the Examiner of TradeMarks holds that the question raised is not one which can be decided on such a motion, he should dismiss the motion and not set a limit of appeal. Wm. A. Coombs Milling Company v. Barber Milling Company, 58. 33. SAME DECEPTIVE USE OF MARK-NOT GROUND FOR DISSOLUTION.-The question whether there has been such a deceptive use of the mark by one of the parties as to bar his right to registration is not one to be determined on a motion for dissolution. Id. 34. SAME-SAME-CONSIDERED AT FINAL HEARING.-Where an interference involves a registration and an application for registration, the question of the deceptive use of the mark by the registrant is one that can be raised at final hearing in the interference. (In re J. Fred Wilcox & Co., ante, 264; 162 O. G., 539; 36 App. D. C., 107, construed.) Id. 35. OPPOSITION-PUBLICI JURIS-Star FOR BEER.-An opposition to the registration of a six-pointed star and the word "Star" as a trade-mark for beer Held properly sustained, since the representation of a star for beer has been so generally used as to become publici juris.. (*) Star Brewery Company v. Val Blatz Brewing Company, 326. 66 36. ANTICIPATION— SOZODONT," 'KALODONT."-Prior use of the word "Sozodont" as a trade-mark for tooth-paste Held to constitute no ground for refusing registration of the word "Kalodont" as a trademark for the same class, of goods, since there is no misleading resemblance between these words. (*) K. K. Landespriv. Milly-KerzenSeifen und Glycerin-Fabrik Von F. A. Sarg's Sohn & Co. v. Hall & Ruckel, 329. 37. SUIT TO RESTRAIN INFRINGEMENT AND UNFAIR COMPETITION-JURISDICTION OF SUPREME COURT.-Where in a suit between citizens of different States infringement of a registered trade-mark is alleged and also unfair competition in trade, Held that the Supreme Court has jurisdiction to review a decision of the circuit court of appeals holding the mark invalid and the defendant not guilty of unfair competition. (**) Standard Paint Company v. Trinidad Asphalt Manufacturing Company, 530. 38. DEFINITION OF.-The term "trade-mark" has been in use from a very early date, and, generally speaking, it means a distinctive mark of authenticity through which the products of particular manufacturers or the vendable commodities of particular merchants may be distinguished from those of others. (**) Id. 39. DESCRIPTIVE MARK-NOT SUSCEPTIBLE OF EXCLUSIVE APPROPRIATION.-The settled rule is that no one can appropriate as a trade-mark a generic name or one descriptive of an article of trade, its qualities, ingredients, or characteristics, or any sign, word, or symbol which from the nature of the fact it is used to signify others may employ with equal truth. (**) Id. 40. SAME MISSPELLING.-A mark which is descriptive of the goods upon which it is used does not lose such quality and become arbitrary by being misspelled. Bad orthography has not yet become so rare or so easily detected as to make a word the arbitrary sign of something else than its conventional meaning. (**) Id. 41. SAME-SAME-"RUBEROID" FOR FELT ROOFING.-The word "Ruberoid" Held to be a mere misspelling of "rubberoid" and not to constitute a valid trade-mark for a flexible roofing material. (**) Id. 42. UNFAIR COMPETITION.-Plaintiff used the word "Ruberoid" as a trademark for flexible roofing. Defendant used the word “Rubbero” as a trade-mark for similar goods; but there was no imitation of plaintiff's labels in their arrangement, color, or general appearance. Held, that defendant was not guilty of unfair competition. (**) Id. 43. SIMILARITY.-The marks "Optimates," "Optimo," and "La Optima" Held "so similar, not only in appearance but in meaning and origin. that they must be considered the same in law." (*) Justin Seubert, Incorporated, v. A. Santaella & Company, 341. 44. RIGHT TO REGISTRATION-PRIOR USE BY ANOTHER-LACK OF KNOWLEDGE BY APPLICANT OF SUCH USE IMMATERIAL.-Where in a trade-mark interference proof is offered that the mark in issue or one substantially identical therewith had been used by a third party prior to the date of adoption proven by one of the parties to the interference, Held that with respect to that applicant's right to registration it is immaterial that the mark had not been registered by such third party or that the use by him was unknown to the applicant. (*) ̃ ̄Id. 45. ABANDONED MARK-EXCLUSIVE USE BY ANOTHER AT TIME OF ABANDONMENT NECESSARY TO TITLE.-Where two parties are using a mark at the time of its abandonment by the original owner thereof, Held that neither party acquires title to such mark. (Mayer Fertilizer Co. v. Virginia-Carolina Chemical Co., C. D., 1910, 399; 156 O. G., 539; 35 App. D. C., 425, distinguished.) (*) Id. 46. NAME OF AN INDIVIDUAL-" DEACON BROWN."-The name Brown" is a common surname and is not rendered registrable by prefixing thereto the word "Deacon." (*) In re Artesian Manufacturing Company, 344. 47. SAME DISTINCTIVE MANNER OF WRITING OR PRINTING.-Where the name "Deacon Brown" is printed in script type, with a scroll extending across all the letters except the "D" and having the letters "D" and "B" connected across the top by two flourishes, Held not such a distinctive manner of printing as to render the name registrable as a trade mark, (citing ex parte Polar Knitting Mills, C. D., 1910, 62; 154 O. G., 251.) (*) Id. 66 48. CANCELATION-MARK PRESENTED UNDER "TEN-YEARS CLAUSE "-USE NOT EXCLUSIVE.-Held that the application for the cancelation of the mark registered by appellant under the so-called ten-years clause" of the Trade-Mark Act was properly sustained, since the evidence establishes that it did not have exclusive use of the mark during the ten years next preceding the passage of that act. (*) Duluth-Superior Milling Company v. Koper, 354. 66 49. SIMILARITY—“ CARBOLINEUM AND CREO-CARBOLIN."-Registration of the word "Creo-Carbolin" Held properly refused registration, since it is so similar to the previously-registered mark "Carbolineum" for the same class of goods as to be likely to cause confusion or mistake in the mind of the public. (*) In re Barrett Manufacturing Company, 356. 50. How ACQUIRED EXTENT OF USE.-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 trade-mark in the name affixed to it and indicating its origin can be acquired. It is enough if the article with the adopted brand upon it is actually a vendible article in the market, with the intent by the proprietor to continue its production and sale. (*) Breitenbach and F. H. Strong Company v. Rosenberg, 365. 51. SAME-SAME.-Testimony showing that goods bearing the mark "Chologen," which had been adopted by a German manufacturer, were on sale by wholesale and retail druggists in Hoboken, Chicago, and Detroit from the time the goods were first introduced into this country Held sufficient to establish a trade-mark use although the sales were neither very great nor very general. (*) Id. 52. SIMILARITY-" CHOLOGESTIN -"CHOLOGEN."-The mark "Chologestin " so closely resembles "Chologeń" as to be likely, where used upon goods of the same general description, to produce confusion in trade. (*) Id. 53. "CREAM" FOR BAKING-POWDER-NOT DESCRIPTIVE-The word "Cream," as applied to baking-powder, Held to constitute a valid technical trademark. (*) International Food Company v. Price Baking Powder Company, 368. 54. OPPOSITION RIGHTS LIMITED BY USE OF OTHERS.-Where opposer was not the originator of the trade-mark consisting of a waitress in Quaker or Puritan costume carrying a tray, Held that it has no right to exclude every one else from using the representation of a woman as a trademark upon goods similar to that manufactured by it. (*) Nestlé & Anglo-Swiss Condensed Milk Company v. Walter Baker & Company, Limited, 369. 55. SAME SIMILARITY.-A mark consisting of the words "Milkmaid Brand " and the representation of a milkmaid in Swiss costume supporting one pail on her head and carrying another in her hand Held not so similar to a mark consisting of the representation of a waitress in Quaker or Puritan costume carrying a tray supporting cups as to deceive purchasers and cause confusion in the trade. (*) Id. 56. APPLICATION-DRAWING-LINING FOR COLOR.-Where the application states that the color of the mark is not claimed, Held that the Examiner properly objected to the lining of the drawing so as to indicate color. Ex parte Austin, Nichols & Co., 74. 57. COFFEE AND COCOA GOODS OF THE SAME DESCRIPTIVE PROPERTIES.-A trademark for coffee Held properly refused registration in view of a mark so similar thereto as to be liable to cause confusion which had been previously registered for cocoa, since these are goods of the same descriptive properties, (citing Walter Baker & Company v. Harrison, C. D., 1909, 284; 138 O. G., 770; 32 App. D. C., 272.) Id. 58. SIMILARITY-" SUNSHINE SUNBEAM."-The words "Sunshine" and "Sunbeam" Held to be so similar that their contemporaneous use upon goods of the same descriptive properties would be liable to cause confusion in the mind of the public and deceive purchasers. Id. 2097°-12 41 59. UNFAIR COMPETITION-BURDEN OF PROOF.-The burden rests upon defendant when sued for an unfair use of the plaintiff's trade name to justify his use of it. (**) Jacobs v. Beecham, 549. 60. SAME PROPRIETARY MEDICINES-Secret FORMULA.-Using the name of a manufacturer of pills under a secret formula upon pills made by a competitor is not saved from being unfair because it is accompanied by a statement that the latter makes the pills, even if it be conceded that he is using the other's formula. (**)Id. 61. SAME-FRAUD ON THE PUBLIC-USE OF THE WORD "PATENT."-The use of the word "patent" to indicate a medicine made by a secret formula when the medicine is in fact not patented is not such fraud as defeats the right of the manufacturer to relief in equity against unfair competition. (**) Id. 62. SAME-SAME-MISSTATEMENTS AS TO PLACE OF BUSINESS.-The continued use of circulars and labels which suggest the foreign origin of a product after its manufacture had been begun in this country and the use of the name of the original proprietor for some time after the business had been transferred to his son are not such fraud as defeats the right of a manufacturer to relief in equity against unfair competition. (**)Id. 63. DESCRIPTIVE WORDS WRITTEN IN FOREIGN LANGUAGE.—It is well settled that the foreign equivalent of a descriptive word is not registrable. (Ex parte Grocers Specialty Mfg. Co., Limited, C. D., 1903, 10; 102 O. G., 465; Dadirrian v. Yacubian et al., C. D., 1896, 713; 75 O. G., 1856; 72 Fed. Rep., 1010; Roncoroni v. Gros8, 86 N. Y., Supp., 1112; 92 App. Div., 22.) Ex parte Julius Wile Sons & Co., 81. 64. SAME ELEGANCIA."-The Spanish word "Elegancia" Held not registrable as a trade-mark. Id. 65. SAME" NO SAG" FOR HAND-BAGS.-The words "No Sag" Held properly refused registration as a trade-mark for hand-bags, since they are descriptive of the goods to which they are applied. (*)In re Freund Bros. and Company, 405. 66 66. CHARTREUSE," NOT GEOGRAPHICAL.-The word "Chartreuse" as applied to a liqueur or cordial Held not geographical and to constitute a valid trade-mark. (**) Père Alfredo Luis Baglin and Carthusian Monks v. Cusenier Company, 552. 67. ABANDONMENT.-The loss of the right of property in trade-marks upon the ground of abandonment is not to be viewed as a penalty either for non-user or for the creation and use of new devices. There must be found an intent to abandon, or the property is not lost; and while, of course, as in other cases, intent may be inferred when the facts are shown, yet the facts must be adequate to support the finding. (**)Id. 68. SAME.-The Order of Carthusian Monks, which for many years had made at La Grande Chartreuse, in France, and sold a liqueur under the name "Chartreuse," was expelled from France by the Government, and possession of their property in France was taken by a liquidator of the French court. They established a factory in Spain and continued to manufacture a liqueur in accordance with the original formula. They used on their labels the words Pères Chartreux" and the words "Liqueur Fabriquée à Tarragone par le Pères Chartreux." They made vigorous efforts in this and other countries to prevent the use of the old marks by the liquidator. Held that these facts do not establish an abandonment by the monks of their rights in the trade-mark "Chartreuse." (**) Id. 66 69. INFRINGEMENT INJUNCTION.-For many years the Order of Carthusian Monks, established at La Grande Chartreuse, in France, made and sold a liqueur under the name "Chartreuse," claimed to have been made by a secret process. Such liqueur has long been sold and has become well known under such name in the United States, where the name is registered as a trade-mark. The order having been expelled from France by the Government, a liquidator was appointed who took possession of their property, including their liqueur factory. Such liquidator, although having no knowledge of the secret formula, commenced the manufacture of a similar liqueur, which he sold under the name Chartreuse," using the same bottles and labels as had been used by the monks. In the meantime the monks established a faetory in Spain and continued to manufacture the liqueur in accordance with the original formula, using, however, a different label and style of package. Held that the action of the French Government and court did not affect the trade-mark rights of the Carthusian monks in the United States; that such rights were not dependent on the place or country in which their business was conducted; that the receiver did not succeed to such rights, but became their competitor, aud that they were entitled to an injunction restraining the sale of his products in this country in competition with their own under their trade-mark and dress and as the original and genuine Chartreuse. (**) Id. 70. REGISTRATION REFUSED BY COMMISSIONER AMENDMENT OF LAW-CANNOT BE REOPENED IN VIEW THEREOF.-Where a trade-mark was refused registration by the Commissioner on the ground that it was merely the name of the applicant and thereafter the Trade-Mark Act was amended so as to permit the registration of an applicant's name or a portion thereof if otherwise registrable, Held that this amendment constitutes no ground for reopening the case. Ex parte The Willowcraft Shops, 96. COLLIER FOR DYNAMITE-DESCRIPTIVE.-The word "Collier" as applied to dynamite Held descriptive, and hence not registrable, since it would indicate to the trade that it was intended for use in coal-mining. Ex parte Sinnamahoning Powder Mfg. Co., 99. 71. 66 99 72. SAME ORDINARY SURNAME MANNER OF WRITING.-The ordinary surname Collier" is not rendered registrable by placing it on a red package. Id. 66 73. DESCRIPTION-COLOR OF PACKAGE.-The color of the package in which goods are placed cannot constitute a trade-mark for such goods, and the Examiner properly refused to allow applicant to describe the mark as appearing on a red package. Id. 66 74. TROPHY "-DESCRIPTIVE.-The word "Trophy" is not registrable as a trade-mark, since it would indicate to the purchaser that the goods to which it was applied had been recognized as of superior quality by the presentation of a prize or trophy. Ex parte Meyer Brothers Coffee & Spice Co., 109. 75. MOTION TO DISSOLVE-TRANSMISSION.-The Examiner of Interferences should take cognizance of the merits of motions to dissolve sufficiently to enable him to refuse transmission to motions which are wholly groundless. Stollwerck Brothers, Inc. v. Lucerna Anglo-Swiss Milk Chocolate Company v. Hoffman, 112. 76. SAME-SAME.-A motion to dissolve an interference on the ground that coffee and cocoa are goods of different descriptive properties Held properly refused transmission in view of the ruling of the Court of Appeals of the District of Columbia in the case of Walter Baker & Co., |