DYRENFORTH, Acting Commissioner : I have carefully read the specification presented in this application, in connection with the drawing forming a part thereof, and also carefully examined the argument made by the attorney in support of this appeal. To discuss separately each of the issues produced by the difference of opinion between the Examiner and the attorney would extend this decision to too great length, and therefore it will not be at tempted. I think all the objections urged by the Examiner against the fullness and sufficiency of the description of applicant's invention may be treated together. The statute requires a description of an invention to be in such full, clear, concise, and exact terms as will enable one skilled in the art to make, construct, and use the same, and the question first to be considered is whether the applicant has complied with such requirements in this case. The solution of this question turns upon the interpretation which should be given the words "persons skilled in the art." By these words I do not think is meant persons who excel their fellows in particular arts or sciences in which they are skilled, but merely men who have ordinary or fair information in that particular line. Nor do I think that the capacity of the inventor or his attorney to understand the invention described in the specification should be the standard by which to measure the ability of others skilled in the art to comprehend such specification. The inventor is of course fully acquainted with his invention before he undertakes to explain it, and is apt to ascribe to the dullness of others any failure to appreciate a description which in reality fails to express the ideas present in his mind and intended to be communicated. The lack of detail in the description which prevents others from getting a clear and exact understanding of the invention is not appreciated by the inventor, since all the minutiae of invention are always present in his mind. And so the attorney, having acquired an accurate and complete knowledge of the invention from an elaborate and exact disclosure of its parts, characteristics, and uses, aided perhaps by models or full-sized devices, is often misled into believing language which in fact conveys but a suggestion to contain a clear and full explanation of the invention intended to be set forth. Such seems to be the fact in this case. The attorney and inventor, having in their minds the actual invention, give greater force and effect to the language employed in describing it than does the examiner, who is obliged to rely upon that language alone. As before said, I have carefully examined this application; yet I think the examiner's objections to the lack of fullness and clearness in the description are well taken. The form of the claim will next be considered. An invention cannot, as formerly, be merely set forth in the description, but to this must be supplemented a specific and well-defined claim to the part, improvement, or combination which the inventor regards as his property. In the present case a claim is made which is in form to a combination of parts; but such claim is not specific and well defined as the law requires. The only parts specifically mentioned are "holes," "patterncards odd in number," and "cut," since the rest of the claim consists in a reference to the specification for further information. Now the gist of the invention lies in the construction and arrangement not definitely set out in the claim, and to be ascertained the specification must be resorted to and carefully examined. If such a claim were permissible, there would be no occasion for making a claim at all, for it would be just as well to search the description in the first instance for the invention, instead of looking at what is denominated a "claim," but in reality is a mere reference to such description. The aim, end, and purpose of the description under the present statute is not to point out the invention sought to be covered by the patent, but to describe the manner of making, constructing, and using the same. The claim in this case is therefore clearly insufficient. The next question is as to the pertinency of the English patent cited against the claim; but this is appealable in the first instance to the Examiners-in-Chief, and cannot be considered at this time by me. The decision of the Examiner is affirmed as to all formal objections. EX PARTE LYON, DUPUY & Co. Decided July 1, 1884. 28 O. G., 191. 1. No applicant may register a trade-mark unless he can establish, first, that he has the right to use it, and no one else has; second, that it is not identical with the registered or known trade-mark of another person, and beyond this he must show that he is using the trade-mark which he so owns in commerce with foreign nations or Indian tribes. 2. The statute does provide that the trade-mark sought to be registered shall be used in foreign commerce; but it does not in terms provide, nor in fair intendment covey the idea, that a party may acquire the right to use somebody else's trademark merely by using it in such trade. 3. Where the records of this office disclose that certain parties registered a trade-mark under the law of 1870, that such trade-mark was their property, that they had been using it in this country for ten years next preceding the date of their application for registration, and there is no evidence that they have ever abandoned such trade-mark, Held that section 3 of the act of 1881 and the spirit of the whole statute authorize the Patent Office to take notice of the facts recited in said records in determining "the presumptive lawfulness of claims to the alleged trade-mark," by subsequent applicants for registration, and the Examiner was justified in rejecting the application for registration on the facts disclosed in said record. APPEAL from the Examiner of Trade-Marks. TRADE-MARK FOR WHEATEN FLOUR, TRIUMPHANT. APPLICATION filed December 21, 1883. Mr. R. H. Eddy and Messrs. Voorhees & Singleton for the applicants. DYRENFORTH, Acting Commissioner: The applicants seek to register as a trade-mark for wheat flour the word "Triumphant." The Examiner refuses registration upon the ground that the mark too nearly resembles the trade-mark of Imbs, Meyer & Co. (the word "Triumphant" appropriated to flour), their certificate being No. 3,472, and dated February 29, 1876, in the application for which it is stated that the trade-mark had been "used ten years last past." The applicants do not deny the near resemblance of their trade-mark to the trade-mark registered by Imbs, Meyer & Co., that it so nearly resembles a mark appropriated to the same class of goods that one might be mistaken for the other, but contend, it is understood, that the citation is not proper, in that Imbs, Meyer & Co., having registered under the law of 1870, since held unconstitutional, and not having renewed their registration under the present law, there is no competent evidence that the word is still used as a trade-mark, the certificate and record under the old law not being competent evidence of ownership. The question is clearly raised on this appeal, whether the Examiner may properly reject an application for registration of a trade-mark on reference to a prior registration of the same thing by another party, made under the act of Congress approved in 1870, subsequently and recently declared to be unconstitutional. In other words, is the registration made under the act of 1870, which is on file in the Patent Office, and which was made in conformity to the law as it then stood, evidence of anything? If so, of what? The question is worthy of careful consideration, as it is arising constantly, and & precedent must be established. The act of Congress, approved March 3, 1881 (passed to cure the defects in the act of 1870), which provides for the registration of trademarks, is very carefully worded, and, in my judgment, was so worded with direct reference to preventing the practice of fraud upon those who had, under a prior law, and in accordance with the terms thereof, registered their trade-marks, and also to protect the public against imposition. No one adopts the trade mark of another, or a trade-mark which is similar in appearance to that of another, except for the purpose of deriving benefit therefrom. The benefit hoped for results from the reputation of the trade-mark. If it has not been in use except for a very short period, it is substantially worthless, since one device or symbol, when first appropriated, is about as good as another, the value of a trade-mark depending upon the superior quality of the article of commerce to which it is attached, or its desirability to the public, since it becomes indicative, after long use, of that peculiar quality, and the article in the market becomes known and designated by that particular trade-mark. If the trade mark is valuable, it is because of its use in connection with an article of peculiar quality. If it has been used in connection with an article of commerce which is of inferior quality or undesirable, the trade-mark is not only worthless, but it is palpable that its use would be absolutely injurious. So it follows as a corollary that where an applicant has adopted as his own and seeks to register a trade mark which is the fac-simile of that used by another, attached to the same class of merchandise, he does it, if knowingly, to avail himself of the property and rights of that other person or firm, and with intent "to deceive purchasers," and this is precisely what the law seeks to prevent. The question here raised is, what shall be regarded as sufficient evidence that an applicant is not entitled to the trade-mark he seeks to register. It is understood that the applicants in this case admit that their trade-mark is substantially the same as that registered in 1876 by Imbs, Meyer & Co., which is cited as a reference; but make the point that, inasmuch as the registration was not authorized by law, therefore it cannot be accepted by this office as evidence of the existence of such trade-mark, nor of prior use or ownership by others, nor, in fact, of any thing which could tend to defeat the registration of the trade-mark they present. Now, let me examine the case at bar in the light of what I regard as the obvious intent and meaning of this statute. The application under consideration is in proper form, and, in the absence of any showing against it, entitles applicants to registration of the trade-mark as prayed. They are, however, met by a reference, which if at all competent as evidence, raises a presumption that applicants' declaration that "no other person, firm, or corporation has a right to such use [use of the trade-mark], either in the identical form or in such near resemblance thereto as might be calculated to deceive" the public, is erroneous; and further, the reference cited, if considered as evidence, negatives the allegation in the pending application that the trade-mark sought to be registered is not Identical with a known trade-mark owned by another and appropriate to the same class of merchandise, or which so nearly resembles some other person's lawful trade-mark as to be likely to cause confusion or mistake in the mind of the public or to deceive purchasers. If the reference is competent as evidence tending to establish the facts disclosed therein, clearly the applicants must be required to meet it by additional evidence to sustain the declaration contained in their application, or registration be refused. Applicants do not offer to meet the reference cited; do not intimate in reply to it that Imbs, Meyer & Co. have abandoned their trade-mark, or that they (the applicants) have in a lawful way, in view of any previous right of Imbs, Meyer & Co., acquired the right to use it now. Their answer to the reference is that the act of Congress, under the provisions of which Imbs, Meyer & Co. registered that trade-mark, was, by the Supreme Court, held to be unconstitutional, and therefore the registration was nil in law, and the Commissioner of Patents is not authorized to regard the record of registration at all for any purpose whatever; that to all intents and pur poses the applicants are in the same position, so far as the office can take notice, as if Imbs, Meyer & Co. had never registered or attempted to register the trade-mark in controversy, and the office had in no wise received any intimation whatever of the fact that they owned, or claimed to own, a property right therein. Is that position based on reason or authority? I am satisfied that it does not rest on sound reason, and hence, I think, not upon authority. A trade-mark becomes the exclusive property of one only when he has, prior to any one else, appropriated and used it to indicate the origin, ownership, and quality of an article to which it is attached. Its value rests on reputation and on its implied guaranty that the article is of a certain quality. Its object is to prevent one person from selling his goods as those of another of established reputation, to the injury of that other. See Avery & Sons v. Meikle & Co., 27 O. G., 1027. If the trade-mark in question, or one substantially the same, has been for many years in use by Imbs, Meyer & Co., on the same character of merchandise (flour), in connection with which applicants propose to use and do use it, one thing is clear, and that is that the trade-mark is of value, for no firm will use a trade-mark which has a bad reputation, as such would destroy the trade instead of building it up. If it is valuable, it may be assumed that value results from the fact that Imbs, Meyer & Co., have used it in connection with flour of a superior quality. It follows that if applicants use that identical trade-mark, or one substantially identical with it, the result must be to "cause confusion or mistake in the mind of the public or to deceive purchasers." In that case the law requires that registration should be denied. But it might be urged that the use and ownership mentioned in the statute have reference only to the right to use that particular trade-mark in commerce with the Indian tribes and foreign nations, and that no other character or quality of title or ownership or use can be considered. That view, in my judgment, were but a thin disguise and subterfuge under the protection of which one party would be seeking to appropriate property that does not belong to him, and by the same token to practice a fraud on the public. The statute does not say in words, nor does it by fair intendment convey the idea, that a party may appropriate and have registered as his own the old and well-established trade-mark of his neighbor by proving that he has sent a few (one or more) packages of goods with the trade-mark attached to the Indian tribes, or one or more to some foreign nation, and thereupon predicate a perfect right to register that trade-mark, thus clouding his neighbor's title to his property, if not in fact robbing him of it altogether. The statute does provide that the trade mark sought to be registered shall be used in foreign commerce or with the Indian tribes; but it does not provide that a party may acquire the right to register somebody else's trade-mark and so secure prima facie evidence of ownership, simply by using it in such trade. The statute provides that a trade-mark sought to be registered shall not be identical with a registered or known trade |