dissolve the interference should be sustained or denied. At no stage of the proceedings was the question of priority tried or determined. An order sustaining a motion to dissolve an interference disposes of the interference, and leaves nothing on which to base a judgment of priority.. (Carlin v. Goldberg, C. D., 1917, 128; 236 O. G., 1222; 45 App. D. C., 540.) We have held in many cases that this court is without jurisdiction to entertain an appeal in an interference case except from a judgment of priority. (In re Fullagar, C. D., 1909, 270; 138 O. G., 259; 32 App. D. C., 222; Cosper v. Gold, C. D., 1910, 282; 151 O. G., 194; 34 App. D. C., 194; Carlin v. Goldberg, supra.) The motion to dismiss the appeal is sustained. Dismissed. [Court of Appeals of the District of Columbia.] IN RE THE PAGE COMPANY. Decided December 3, 1917. 247 O. G., 246; 47 App. D. C., 195. 1. TRADE-MARKS-TITLE OF A BOOK NOT REGISTRABLE" POLLYANNA." Where the word "Pollyanna " is the name of a particular book in a series consisting at present of two books, clearly the word is descriptive, and as such unregistrable. 2. SAME PUBLICATIONS-MUST NOT BE THE NAME OF ANY ONE OF A SERIES. Undoubtedly a trade-mark may be registered for a series of literary publications; but it must be arbitrary and not merely the name of any one or more of the series. 3. TRADE-MARK LAW-NOT TO CONFLICT WITH COPYRIGHT LAW. The trade-mark law is not intended to conflict with or extend the copyright law. The owner of a copyright enjoys the exclusive right as long as the copyright continues, and when it expires the privilege expires and the use of the descriptive name becomes publici juris. Mr. P. B. Turpin and Mr. J. K. Brachvogel for the appellant. VAN ORSDEL, J.: This appeal is from a decision of the Commissioner of Patents refusing registration of the word "Pollyanna" as a trade-mark for a series of books. The record discloses that the series of books consists of but two, the title of one being "Pollyanna" and the other "Pollyanna Grows Up." It may be inferred from the record that other volumes are to follow, and it is insisted that the series should be known as the "Pollyanna Series." It will be observed that "Pollyanna" is the name of a book, not an arbitrary mark to designate a series of publications, each bearing its individual title. In this respect the word is clearly descriptive. It is the name of a particular book, and the public has no way of describing the book but by the use of the name. Undoubtedly, a trade-mark may be registered for a series of literary publications, but it must be arbitrary, and not merely the name of any one or more of the series. The rule is well illustrated in the note by Mr. Rowland Cox to Clemens v. Belford (14 Fed. Rep., 728; Cox, Manual, 685), quoted with approval in Hopkins on Trade-Marks (sec. 85), as follows: Thus the term "Old Sleuth Library was distinctly arbitrary, and never the name of a particular book or literary production, and for this reason it was in an accurate sense a trade-mark, and must continue to be as long as the publication was continued. But if the publication of the periodical were discontinued for a period of years, the name would cease to be arbitrary and take its place in literature as indicating a definite collection of articles, pictures, etc., and as soon as it acquired that settled meaning, it would, in the absence of copyright, become publici juris. The trade-mark law is not intended to conflict with or extend the operation of the copyright law. If a copyright is taken for a book or particular publication, the owner of the copyright enjoys the exclusive right to the use of the name as long as the copyright continues; but, when it expires, the privilege expires and the use of the descriptive name becomes publici juris. In the Britannica case (Black et al. v. Ehrich et al., 44 Fed. Rep., 793) Judge Wallace stated the rule after expiration of copyright, as follows: Neither the author nor the proprietor of a literary work has any property in its name. It is a term of description, which serves to identify the work; but any other person can with impunity adopt it, and apply it to any other book, or to any trade commodity, provided he does not use it as a false token, to induce the public to believe that the thing to which it is applied is the identical thing which it originally designated. If literary property could be protected upon the theory that the name by whch it is christened is equivalent to a trade-mark, there would be no necessity for copyright laws. Clearly, the word "Pollyanna," being the title of the first volume of the series, is descriptive, and, as such, unregistrable. The decision of the Commissioner of Patents is right, and, therefore, is affirmed. The clerk is directed to certify these proceedings as by law required. Affirmed. [Court of Appeals of the District of Columbia.] BOSTON RUBBER SHOE COMPANY v. ABRAMOWITZ. Decided December 3, 1917. 247 O. G., 247; 47 App. D. C., 199. 1. TRADE-MARKS-INTERFERENCE-" HUB." On review of the record Held that the prior registration and use of the Boston Rubber Company's mark “Hub” on particular kinds of footwear (rubber boots and shoes) would entitle it to extend its use to other kinds of goods within the same particular classification, and give it sufficient standing to contest the right of A to registration. 2. SAME-SAME-SIMILARITY OF GOODS. The use of leather and rubber footwear is so general and so interrelated in use by the public that the purchaser should not be called upon to discriminate between the goods put out by one of two users of the same mark. Mr. E. W. Vail and Mr. Clarence O. McKay for the appellant. VAN ORSDEL, J.: . This appeal is from the decision of the Commissioner of Patents in a trade-mark interference. The Boston Rubber Shoe Company filed an application on September 17, 1915, for the registration of the word "Hub" as a trademark for boots and shoes having canvas uppers and leather and rubber soles. Abramowitz applied on June 25, 1915, for the registration of the words "The Hub," together with a picture of a hub, as a trade-mark for "leather shoes." The Boston Company secured registration of its mark on June 4, 1912, for use on rubber boots and shoes. Abramowitz has used his mark since 1914. The Commissioner held that there was no interference in fact, and that the Boston Company having failed to show use of its mark on shoes of the character it specifies is not entitled to register. He further held that, in the absence of any interference the filing papers of Abramowitz are sufficient to support his case. The theory upon which this finding is based is expressed in the opinion of the Commissioner, as follows: There is no evidence that the Boston Company ever used the mark in either form on any leather shoes. Its mark is a mark for rubber goods. The very fact that for over thirty years the mark has been used on rubber goods would argue against its association with leather shoes, which are an entirely different class of goods, made by totally different processes. The testimony as to use of the mark in 1910 on tennis shoes is not material merely because these shoes had leather insoles. The testimony that the mark was used on lumbermen's rubber shoes with leather tops not only fails to state a date, but would not be material if it did; for such shoes are not leather shoes. The error into which the Patent Office has fallen is in a rigid adherence to the separate classification of rubber and leather goods. The particular subject-matter of this interference is whether or not the marks of the contending parties are so similar as to create confusion in trade when used on footwear generally or on particular grades of footwear. The use of leather and rubber, and partly leather and partly rubber, footwear is so general and so interrelated in use by the public that the purchaser should not be called upon to discriminate between the goods put out by one of two users of the same mark. The marks in question are the same, and we are disposed to hold that they are used upon goods of the same descriptive qualities within the provisions of the trade-mark law. That their use would be likely to lead to confusion in trade, we have no doubt. The prior registration and use of the Boston Company's mark on particular kinds of footwear would entitle it to extend its use to other kinds of goods within the same particular classification, and give it sufficient standing to contest the right of Abramowitz to registration. It is unnecessary for us to consider the question of the right of the Boston Company to have its mark registered for— boots and shoes having canvas uppers and leather and rubber soles. since its prior use on particular kinds of footwear is sufficient to forbid the registration of the Abramowitz mark for footwear generally or for particular grades thereof. The field of selection of an arbitrary mark is sufficiently broad to enable Abramowitz to select a mark which will have no tendency to conflict with the mark of the Boston Company. To impose this duty is only consonant with a due regard for the restrictions which the law has placed upon the selection of trade-marks sought to be registered. Public security is the first consideration, and the courts. should diligently seek to construe the law to that end. We are of the opinion that Abramowitz is not entitled to have his mark registered. The question of the right of the Boston Rubber Shoe Company to have its mark registered is left open for the further consideration of the Commissioner of Patents in the light of this opinion. With this qualification, the decision of the Commissioner is reversed, and the clerk is directed to certify these proceedings as by law required. Reversed. [Court of Appeals of the District of Columbia.] ELISHEWITZ v. LEYSER, GREEN Co. Decided December 3, 1917. 247 O. G., 479; 47 App. D. C. 193. 1. TRADE-MARKS-DESCRIPTIVE WORDS- "LEGHORNETTE. 66 The word Leghornette" as applied to hats Held to be descriptive and not registrable. 2. SAME-CANCELATION-INJURY PRESUMED. The petitioner for cancelation shows injury by the registration, though injury will be presumed to follow the improper registration of any descriptive word. Mr. A. D. Kenyon for the appellant. No appearance for the appellee. ROBB, J.: Appeal from a decision of the Patent Office canceling the registration of the word "Leghornette as a trade-mark for hats on the ground that it is descriptive. The Assistant Commissioner said: A Leghorn hat is a very well and widely known article of commerce, fully described by the name 'Leghorn," whether it is a woman's hat or a man's hat. * * * The real Leghorn hat is marked "Genuine Leghorn," and the sample hat bands filed in the application of Elishewitz are marked "Genuine Leghornette." The petitioner for cancelation shows injury by the registration, though injury will be presumed to follow the improper registration of any descriptive word. 66 I consider the word Leghornette to be clearly descriptive. The suffix ette " is very commonly and widely used to indicate a small edition or else an imitation. I think nobody would hesitate in assuming that a Leghornette hat was an imitation Leghorn hat. We agree with the Assistant Commissioner, for in our view "Leghornette" clearly would convey to the average purchaser the idea of the character or quality of the hat to which it was affixed, and therefore should not be registered. The decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] JOBSKI AND GRISWOLD, SPECIAL ADMINISTRATORS OF THE ESTATE OF RICHARD S. BRYANT, DECEASED, v. JOHNSON. Decided January 7, 1918. 247 O. G., 479; 47 App. D. C. 230. 1. INTERFERENCE-REDUCTION TO PRACTICE-TIRE-FASTENING DEVICE. In a test for a tire-holding device merely bouncing upon the floor a wheel having the tire and device attached thereto. Held, not to be a reduction to practice, as it would not demonstrate that the device would give the desired results when on a wheel supporting a car in motion. 2. SAME PRIORITY-UNIFORM DECISIONS OF THE PATENT OFFICE TRIBUnals. In order to secure a reversal of the uniform decisions of the Patent Office tribunals, Held that appellants must make out a very clear case of error. 3. SAME-SAME. The record reviewed and Held priority was properly awarded to J. as to counts 1 and 2. No appeal had been taken as to the remaining claims. Mr. J. B. Fay for the appellants. Mr. E. G. Siggers for the appellee. |