and ceased to use the mark thereafter. Disposing of the business of the firm, the mark was turned over to Duncan, but Duncan in no way continued the business of the firm. In 1914 Duncan assigned the mark to appellant corporation. The property right of Duncan & Stenz in the mark was dependent upon the continuous use of the mark in their business. When they ceased to continue the business, the mark was abandoned, and was subject to appropriation by any one. It follows that the assignment of the mark in 1914 was a mere nullity, so far as establishing an earlier use by appellant. Duncan & Stenz had no property right in the mark separate and apart from their business. A transfer of the business could have carried the mark with it, and the purchaser would succeed to all the rights of the vender in the mark. But when they abandoned their business, the mark became abandoned. (Eiseman v. Schiffer, 157 Fed. Rep., 473.) It is clear, therefore, that July 1, 1914, is the earliest date available for appellant. We think appellee has established a trade-mark use of the word "Society" on silk goods since 1912. Appellant, however, contends that appellee's use amounted to nothing more than a grade-mark, since the mark was written on the wrapper with a pencil, instead of being printed on the label, and was appplied only to a particular style or weave of silk goods. Whether the mark be printed or written. on the goods, or on the container in which the goods are sold, is immaterial, so long as the mark conveys to the purchaser knowledge of the origin or source of manufacture of the goods to which it is applied. (Hopk. on T. M., p. 65.) The evidence conclusively shows, not only such a use of the mark by appellee company, but that it was regarded as a trade-mark use by the trade generally. The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed. [Court of Appeals of the District of Columbia.] CHAS. A. SCHIEREN COMPANY v. WHITTEMORE BROS. CORPORATION AND SULLIVAN. Decided January 7, 1918. 247 O. G., 966; 47 App. D. C., 247. 1. TRADE-MARKS-USE OF MARK-APPLYING TO DIFFERENT GOODS. The appellee, who prevailed in the interference, used the term “Duxbak as a mark for a liquid dressing for shoes. It dealt in dressing per se. The appellant did not use the term "Duxbak" as a trade-mark for leatherdressing by marking it on leather belts treated with the dressing. It used the mark for belts and not to distinguish the dressing, and by this use it cannot extend the mark to the dressing, 2. SAME-SAME-SHIPPING TO A BRANCH HOUSE, No statutory use of a mark is effected by shipping a barrel per year of a liquid dressing to a branch house abroad, where the dressing was to be applied to belts. Mr. F. B. Brock for the appellant. Mr. F. F. Crampton for the appellee. VAN ORSDEL, J.: This appeal is from the Commissioner of Patents in a trademark interference, in which appellant Chas. A. Schieren Company, a New York corporation, appellee Whittemore Bros. Corporation, a Massachusetts corporation, and one Sullivan were claiming the word "Duxbak" as a trade-mark for leather-dressing. Sullivan took no part in the case, and has dropped out, this appeal being between the Schieren Company and Whittemore Bros. Corporation. The Commissioner awarded registration to Whittemore Bros. Corporation, from which this appeal was taken. It appears that appellees have used the mark continuously since February, 1915, and through its predecessor, the Raven Gloss Manufacturing Company, since March, 1908, as a trade-mark for paste or liquid dressing for shoes. About the same date (1908) the Schieren Company alleges that it adopted the word "Duxbak" as a trade-mark for dressing for fabrics, including leather belts. While the mark is the same, the controlling feature of the case resides in the distinct character of the goods of the contending parties. As was said by the Assistant Commissioner: The Schieren Company does not deal in leather dressing per se, whereas Whittemore Bros. Corp. deals in nothing else. Appellant puts its mark on leather belts treated with its dressing, but the mark is used on the belt, and not to distinguish the dressing. Appellee puts the mark on a dressing for shoes and leather goods, and the mark is used to distinguish the dressing, not the goods on which the dressing is used. No interstate use of its dressing was shown by appellant, its trade being confined to the goods upon which the dressing was used. It does appear that it shipped about one barrel of the dressing per year, the mark being stenciled on the barrel-heads, to a branch house in Germany, for use there in finishing and repairing belts. This, however, does not establish such a use of the mark as the law requires to secure registration. This shipment to Germany amounted only to a transfer of the dressing from one hand to the other. The dressing was not made to be put on the market as such, but to be used as an element in the manufacture of the belts on which the mark was used. The use of the mark as a trade-mark for belts is not in conflict with the use made by Whittemore Bros. Corporation, but appellant cannot extend the use to a mere element of its manufacture to the damage of appellee or to the confusion of the public. The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed. [Court of Appeals of the District of Columbia.] IN RE CROSBY STEAM GAGE AND VALVE Co. Decided February 4, 1918. 248 O. G., 769; 47 App. D. C., 382. TRADE-MARKS-DESCRIPTIVENESS. 66 'High-Efficiency as a mark for valves is "more descriptive than suggestive and hence-" not registrable. Mr. R. W. Foster for the appellant. Mr. T. A. Hostetler for the Commissioner of Patents. ROBB, J.: This is an appeal from a decision of the Patent Office denying registration of the words "High-Efficiency" as a trade-mark for safety relief-valves. We agree with the Patent Office that this mark is more descriptive than suggestive and hence that, under the numerous decisions of this court, it is not subject to exclusive appropriation. The decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] F. P. KIRKENDALL & COMPANY v. F. MAYER BOOT & SHOE COMPANY. Registration of "Dri-Shod" as a trade-mark for boots and shoes canceled because too similar to "Dry-Socks," previously used. These terms "not only sound alike but obviously are intended, when applied to shoes, to convey the same idea." Mr. W. F. Small and Mr. W. K. Small for the appellant. ROBB, J.: The Patent Office, upon the petition of appellee, canceled the word "Dri-Shod," which it previously had registered for appellant as a trade-mark for boots and shoes, and this appeal followed. From the petition for cancelation the following facts appear: Appellee is a corporation, with its principal place of business in Milwaukee, Wis. Since about 1898 it has sold shoes under the trademark "Dry-Socks." This mark appellee applied to have registered but the application was refused on the ground that it is descriptive. It is alleged that appellant's mark so nearly resembles that of appellee as to cause confusion in the public mind, to appellee's injury. To this petition appellant filed a general denial. Testimony was taken by appellee establishing the averments of its petition and that it had extensively advertised the "Dry-Socks" shoe in the West through the medium of newspapers, magazines, and trade journals. Appellant also is a corporation with its principal place of business at Omaha, Nebr., and the earliest date claimed for the adoption of "Dri-Shod" is 1915. We agree with the Patent Office that these marks are altogether too much alike to entitle appellant to registration. They not only sound alike but obviously are intended, when applied to shoes, to convey the same idea. It is the old story of an attempt by a rival firm to reap where it has not sown, and certainly such attempts ought not to be sanctioned by the Patent Office. The decision was right, and is affirmed. [Court of Appeals of the District of Columbia.] 248 O. G., 1004; 47 App. D. C., 428. 1. INTERFERENCE-RIGHT OF APPLICANT TO CLAIMS OF A PATENT-ESTOPPEL. The failure of an applicant during a period of more than a year following the grant of a patent to assert his rights to claims in that patent Held to estop him from making them at all unless he shall satisfy the Commissioner that the delay was unavoidable. (Rowntree v. Sloan, C. D., 1916, 192; 227 O. G., 744; 45 App. D. C., 207, construed.) 2. SAME JURISDICTION OF THE COURT of Appeals OF THE DISTRICT OF COLUMBIA. Held that the Court of Appeals of the District of Columbia has jurisdiction to consider, on an appeal from an award of priority in an interference involving an applicant and a patentee, the question of the applicant's laches in copying the claims of the patent. (For Commissioner's decision, see ante, 9; 248 O. G., 1003.) Mr. Paul Synnestvedt and Mr. H. L. Lechner for the appellant. Mr. John L. Jackson for the appellees. SMYTH, C. J.: This is an appeal from the decision of the Commissioner of Patents in an interference case. Appellant obtained his patent in 1913. In 1909 appellees filed an application for a patent which disclosed the invention of the issue but did not claim it. On July 6, 1915, twenty months after the granting of the Wintroath patent, and more than six years after the filing of their parent application, the appellees filed a divisional application embracing the claims of the issue. An interference having been declared, appellant asserted that because appellees were remiss in making their claims, they were barred. In support of this, appellant points to our decision in Rowntree v. Sloan (C. D., 1916, 192; 227 O. G., 744; 45 App. D. C., 207), where it was held that, in analogy to the time allowed by the statute for amendments to applications (Rev. Stats., sec. 4894), a failure for more than one year to make a divisional application amounted to laches and barred its allowance. The Commissioner refused to follow the decision on that point, saying it was obiter and ruling that in his judgment the time should be two years instead of one, on the analogy of the statute which gives an inventor that length of time after a patent has emerged to another for his invention before it is necessary for him to file his own application. (Rev. Stats., sec. 4886.) He therefore decided that the appellees were not chargeable with laches and awarded them priority. We do not think the decision in the Rowntree case on the point referred to is obiter. The delay in that case was for thirty-six months. It was necessary to decide whether or not it constituted laches and in doing so it was proper to indicate the limit-one year— beyond which delay would amount to laches. Nor do we believe that the two-year rather than the one-year period should prevail. True, there is some resemblance between the divisional application of the Chapmans and an application of an inventor whose invention has been patented to another, but it is not as intimate as that which exists between their application and one for leave to amend. Their application, if granted, would be in the nature of an amendment to their parent application and would date back to it, (Lotz v. Kenny, C. D., 1908, 467; 135 O. G., 1801; 31 App. D. C., 205), while there is no element of an amendment in the application of an inventor under the two-year statute. In the one case there is something to amend, in the other nothing. We therefore adhere to the ruling in the Rowntree case, but with this modification however:-The period should be one year unless the applicant shall satisfy the Commissioner that the delay was unavoidable. This brings the holding into closer harmony with the statute governing amendments (Rev. Stats., sec. 4894) than is done by the Rowntree case. |