the application which was involved in the interference, Held that C. is not entitled to have the question reviewed on an ex parte appeal from a decision in that earlier application, denying his right to make the claims therein. 2. ELECTION-RHEOSTAT AND SYSTEM. Where C. elected to claim a system of which the carbon rheostat is an element, Held that he is estopped from afterward claiming the rheostat per se in that application. Mr. Chas. McC. Chapman and Mr. Delos G. Haynes for the appellant. Mr. T. A. Hostetler for the Commissioner of Patents. ROBB, J.: This appeal is from a decision of the Commissioner of Patents rejecting claims Nos. 7 to 16, inclusive, of appellant's application for patent. We reproduce claims Nos. 7, 13, and 16, as sufficiently illustrative: 7. In an arrangement of the class described, a carbon pile, a lever operating upon one end of said pile and extending toward the other end of the pile, and a second lever operating on the second-mentioned end of said pile and extending toward the first mentioned end of said pile. 13. In an arrangement of the class described, a carbon pile, a lever having an arm operating upon one end of the pile and another arm extending toward the other end of the pile, a second lever having an arm operating upon said second-mentioned end of the pile and another arm extending toward the firstmentioned end of the pile, an electroc-magnetic device, and means coöperating with the said levers and electro-magnetic device for actuating said levers. 16. In an arrangement of the class described, a carbon pile, a lever arranged to operate upon one end of the pile, a second lever arranged to operate upon the opposite end of the pile, an electro-magnetic device connected to one of the levers for operating the latter, an electro-magnetic device and connections between the latter and the other lever whereby the latter may be actuated, the combination being such as to vary the action of the two levers upon the carbon pile. Each of the three tribunals of the Patent Office, including the Commissioner in person, rejected claims Nos. 7 to 13, inclusive, on the ground that they cover substantially the same subject-matter of invention as was involved in interference No. 36,115, and each tribunal required all the claims here involved to be erased from this case because they are limited to the details of a carbon-pile rheostat, whereas claims Nos. 1 to 6 are limited to a system of which the rheostat is an element, the Office holding that, by electing to claim a system of which the carbon rheostat is an element, appellant is estopped from now claiming the element per se. The first ground of rejection clearly was correct. Interference No. 36,115 (Creveling v. Jepson) involved an application filed by Creveling September 22, 1911. Prior to the interference a patent to Sherbondy, No. 989,305, was cited against the Creveling application, and to overcome that patent Creveling directed attention to two previous applications filed by him, the earlier of which is the one here involved. Thereupon the interference, with a count identical in language with claim No. 7, here appealed, was declared. Upon motion by Jepson the interference was dissolved on the ground that the subject-matter was not disclosed in the Creveling application at bar, nor in the other Creveling application referred to. An appeal was taken to this court, which was dismissed on the authority of in re Fullagar (C. D., 1909, 270; 138 O. G., 259; 32 App. D. C., 222) and Cosper v. Gold (C. D., 1910, 282; 151 O. G., 194; 34 App. D. C., 194). In those cases it was ruled that an order dissolving an interference may not be appealed from independently of a final decision putting an end to the litigation; that, when that decision has been made, the interlocutory order may be reviewed under an appeal from that decision. When Creveling's appeal was dismissed he abandoned it and thereafter, in the present ex parte case, attempted to raise the same question that had been raised and determined in the interference proceeding. That, we have held, may not be done. (Newcomb Motor Co. v. Moore, C. D., 1908, 332; 133 O. G., 1680; 30 App. D. C., 464; Sutton v. Wentworth, C. D., 1914, 210; 204 O. G., 320; 41 App. D. C., 582.) In the Newcomb Motor Co. case we said: The remedy of the defeated party is by way of appeal. He has no right whatever thereafter to prosecute the claims of the issue in an ex parte case. The remedy of appellant, therefore, was to await a final decision in the interference proceeding, whatever might be the form of that decision (Moore v. Heany, C. D., 1909, 488; 149 O. G., 831; 34 App. D. C., 31; in re Selden, C. D., 1911, 306; 164 O. G., 741; 36 App. D. C., 428), and appeal therefrom to this court. We have carefully read appellant's criticism of the decision of the Patent Office on the second ground of rejection, but we find no error in that decision. As originally filed appellant claimed a system, of which the rheostat is an element. We agree with the Patent Office that he now is estopped from claiming an element per se which has attained a distinct status in the art, as has this one. The decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] LAMBERT PHARMACAL COMPANY v. MENTHO-LISTINE CHEMICAL COMPANY. Decided December 3, 1917. 247 O. G., 965; 47 App. D. C., 197. 1. TRADE-MARKS-SIMILARITY—“ LISTERINE" AND "MENTHO-LISTINE." The word " Mentho-Listine" refused registration as a trade-mark in view of the prior registration of the word "Listerine " for the same class of goods. 2. SAME-SAME-PREFIX "MENTHO NOT A DISTINCTION. The prefix "Mentho " does not render the marks dissimilar. Moreover, it might be printed to give especial prominence to the word "Listine." Mr. George Ramsey and Mr. Geo. P. Burleigh for the appellant. Mr. Percy H. Moore for the appellee. VAN ORSDEL, J.: The Mentho-Listine Chemical Company, of Houston, Tex., applied for the registration of the word "Mentho-Listine" as a trade-mark for mouth-wash and tooth-powder. Opposition to the registration was interposed by the Lambert Pharmacal Company, a Missouri corporation, on the ground that it is the owner of a registered trademark consisting of the word "Listerine," which it has used as a trademark for tooth-powder since 1881, and— that there is such a similarity between the words "Listerine" and "MenthoListine" that it is calculated to confuse the ordinary purchaser. From an order of the Commissioner of Patents dismissing the opposition and adjudging applicant's mark entitled to registration, this appeal was taken. ( It is agreed that the goods on which the marks are used are the same, and that the only question before the court is whether the marks are so similar as to be liable to create confusion in trade. Passing over the possible non-registrability of the mark because it is the name of the applicant company, we will dispose of the case on the single question of the deceptive similarity of the marks. The case is ruled by in re Barrett Mfg Co. (C. D., 1911, 356; 167 O. G., 513; 37 App. D. C., 111), where the word "Creo-Carbolin" was held to be deceptively similar to the word “Carbolineum." It was there held that the prefix " Creo " did not render the marks dissimilar, and the same is here true of the prefix "Mentho." Besides, there would be nothing to control the manner in which the prefix might be printed so as to give especial prominence to the word "Listine." Where there is doubt it should be resolved in favor of the protection of the public. As was said in the case of Lambert Pharmacal Co. v. Bolton Chemical Corp. (219 Fed. Rep., 325), where the court was considering whether the trade-mark "Listogen" was deceptively similar to "Listerine: " Of course, the burden of proof always rests upon the moving party, but having shown the adoption of a similar trade name, arbitrary in character, I cannot see why speculation as to the chance that it will cause confusion should be at the expense of the man first in the field. He has a right to insist that others in making up their arbitrary names should so certainly keep away from his customers as to raise no question. The decision of the Commissioner of Patents is reversed and the clerk is directed to certify these proceedings as by law required. Reversed. [Court of Appeals of the District of Columbia.] Decided January 7, 1918. 247 O. G., 965; 47 App. D. C., 251. (Memorandum opinion.) 1. COURT OF APPEALS OF THE DISTRICT OF COLUMBIA-RULES ARE NECESSARY. Rules are necessary to the orderly and expeditious despatch of business. Practitioners are conclusively presumed to know the rules, and if they fail to observe them then they and their clients must bear what follows, except where they are excused by cogent reasons. 2. SAME-RULE XXI, SECTION 2, NOT WAIVED. The assembly of affidavits that could not be considered by the Court in reviewing a decision of the Commissioner rendered before they were filed Held insufficient to excuse the delay in not taking the appeal within forty days allowed by Rule XXI. Mr. F. W. Winter for the appellant. SMYTH, C. J.: This is an application to reinstate an appeal which was dismissed because not taken within the forty days allowed by Rule XXI governing appeals from decisions of the Commissioner of Patents. The applicant earnestly urges in his brief that the case should be restored to the docket, and for reasons assigns: (a) that he intended to take an appeal and notified the Commissioner of this intention; (b) that he was endeavoring to procure certain affidavits to be filed in the Patent Office after the Commissioner's decision; and (c) that he had inadvertently overlooked the requirement of the rule. An intention to appeal does not constitute an appeal, or even a step in that direction. If the applicant had done something, though imperfectly, in the way of perfecting his appeal, he might have come within the decision in Alaska Gold Mining Co. v. Keating (116 Fed. Rep. 561), strongly relied upon by him, but he did not. The affidavits which he was assembling could not, of course, be considered by us in reviewing a decision of the Commissioner rendered before they were filed; they were immaterial. If the fact that he overlooked the rule formed a sufficient ground for excusing his delinquency, we might as well abolish the rules, and this we are unwilling to do. They are. necessary to the orderly and expeditious despatch of business. We find they serve that purpose, and they must be enforced. Nearly every week, one or more applications are made to us to relieve parties from the consequence of their failure to observe them. The most trivial excuses are offered, at times. We are compelled to deny most of the applications. This is not a pleasant duty, and we would like to be relieved from it, which can easily be done by attorneys giving heed to the rules. Practitioners at this bar are conclusively presumed to know the rules, and if they fail to observe them, they and their clients must bear what follows, except where they are excused by cogent reasons. The application is denied. [Court of Appeals of the District of Columbia.] RICE-STIX DRY GOODS COMPANY V. THE SCHWARZENBACH, HUBER COMPANY. Decided January 7, 1918. 247 O. G., 966; 47 App. D. C., 249. 1. TRADE-MARK INTERFERENCE-TITLE-ABANDON MENT OF MARK. The appellant claims its title by assignment in 1914 from one D., who is supposed to have succeeded to it upon the dissolution of a partnership between him and one S., which partnership had used the mark in 1904; but since D. did not continue the business of the firm or the use of the mark after 1905 he had abandoned it, and in 1914 his assignment of it was a nullity. 2. TRADE-MARKS-USE OF Mark-METHOD OF MARKING. It is immaterial that in the appellee's use of its mark it merely wrote the mark in pencil on the paper wrapper of the goods, "so long as the mark conveyed to the purchaser knowledge of the origin or source of manufacture of the goods to which it is applied." Mr. James A. Carr for the appellant. Mr. E. T. Fenwick and Mr. L. L. Morrill for the appellee. VAN ORSDEL, J.: This is a trade-mark interference, in which the contending parties are each claiming the prior right to the use of the word "Society" as a trade-mark for silk piece goods. Appellant, a Missouri corporation, was granted registration of the mark in January, 1915. Appellee, a New Jersey corporation, is seeking registration of the mark, and, from the decision of the Commissioner granting its request, this appeal was taken. Both the mark and the use are the same. The sole question is, which one used it first in such a manner as to constitute, under the law, a trade-mark use? Appellant's registration of the mark establishes prima facie ownership, and places the burden upon appellee as the junior party. The use by appellant, prior to July 1, 1914, is dependent upon a purchase of the mark from one Duncan. Witnesses were produced to show use of the mark by the firm of Duncan & Stenz in 1904 and 1905. Duncan and Stenz dissolved partnership in the latter part of 1905, |