even though it represents a natural object, if the lines, proportions, etc., manifest sufficient artistic merit on which to predicate invention?

I can compare this doll with other similar dolls and if I can see features which harmonize to produce the pleasing effect on my sense for the beautiful in this doll I see no reason for requiring, as the Examiners-in-Chief have done, that the grotesque or some deformity that would arrest and hold the attention should exist.

The primary consideration in determining patentability in a design is, does it possess a sufficiently-different configuration from other designs? (Williams Calk Co. v. Kemmerer, 145 Fed. Rep., 928.)

There is another attitude of the courts relative to passing on the patentability of designs that has always puzzled me. It is exceedingly difficult, if not impossible, for any one except an artist to appreciate the artistic. Statuary that would appeal to an artist frequently does not excite the interest of the ordinary observer, just as an ordinary person can fail to properly appreciate the best music or the best literary composition, and mechanical-patent specifications have been uniformly held to be addressed to those skilled in the art to which they belonged; yet the courts seem to take the position that the general public, not artists, must be the final arbiters of whether invention is displayed in a design. (Bevin Bros, Mfg. Co. v. Starr, etc., 114 Fed. Rep., 362.)

The features, proportions, cut of the hair, and general configuration of the doll under consideration seem to me to be, broadly speaking, those of the ordinary rubber doll, although it appears the designer is quite an artist in designing dolls. It may be that if I were an artist I could see enough artistic merit to warrant holding that invention was exercised; if so, a patent should be granted, even though the doll is a simulation of a child, a natural object; but I can see nothing sufficiently different from the ordinary doll to call for anything like invention to produce.

The decision of the Examiners-in-Chief must be affirmed.

EX PARTE CREW LEVICK COMPANY.

Decided July 12, 1918.

255 O. G., 161.

TRADE-MARKS-" CASHMERE FOR OIL-NOT GEOGRAPHICAL.

The word "Cashmere," used as a trade-mark for oil, Held not geographical and to constitute a registrable trade-mark.

ON APPEAL.

TRADE-MARK FOR GASOLENE, NAPHTHA, BENZIN, ETC.

Mr. Victor J. Evans for the applicant.

CLAY, Assistant Commissioner:

The applicant appeals from the Examiner's refusal to register the words Cashmere as a trade-mark for oil used to lubricate wool

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fibers preparatory to spinning, on the ground that the mark is merely a geographical name under section 5 of the trade-mark statute. It seems that "Cashmere " is an Anglicized spelling of the name "Kashmir," which is a country in northern India. Of course it is well known that" Cashmere " is a peculiar kind of woolen cloth.

I think the Examiner is in error on this point of geographical significance. There is always danger of error in these cases of alleged descriptive or geographical words unless the reason for the law be constantly borne in mind. Whether a term is geographical or not must depend in the last analysis upon the question whether the public might suppose that the term indicated the place from which the goods came, and this because the only reason Congress had for prohibiting the registration of geographical names was that it would interfere with the rights of others who had an equal right with the applicant to say that their goods came from that place.

As the court said in Manitou Springs Mineral Water Co. v. Schueler et al. (239 Fed. Rep., 593, at page 601)

geographical names are excluded only when they are merely such and are not selected, used, and appropriated under such special circumstances as to point distinctively to origin or ownership. Importance attaches to the fact conveyed by its primary meaning, whether the term in its entirety embraces primarily the notion of place or a distinctive designation of origin and ownership. It appears that the latter signification may, under certain conditions, be the primary one, even though the name was geographical and regional at the time of adoption as a trade-mark. *

Judge Lacombe in Wertheimer et al. v. Batcheller Importing Co. (185 Fed. Rep., 850) held that "Riz de Java," for face-powder, had a sufficiently secondary meaning to uphold it, even though it is apparently both descriptive and geographical.

"Arab" as a trade-mark for sardines is not geographical, (see ex parte Seacoast Canning Co., C. D., 1914, 24; 199 O. G., 617), although "Arab" for dates might be, and one apparent reason is that sardines do not come from Arabia, and therefore nobody would suppose that the word "Arab" indicated the place. Similarly "Celtic," for tea, is not geographical. (Ex parte Acker, Merrall & Condit Company, C. D., 1911, 54; 165 O. G., 473.) Nobody would suppose that tea came from a place peculiarly inhabited by the Celts. Again, while there are towns named " Defiance," this is not geographical as a trade-mark for paper, because its primary meaning is that of a challenge and not of a place. (Ex parte Byron Weston Company, C. D., 1902, 149; 99 O. G., 861.) Again, "Aurora" means morning and not a place. (Ex parte Aspegren and Company, C. D., 1902, 265; 100 O. G., 684.)

The meaning must be taken in connection with the goods on which the term is used. In the use of the word "Gibraltar as a mark for belting it is clear that the public would take the word to mean strength and not a place. (Ex parte Jewell Co., C. D., 1904, 150; 110 O. G.,

309.) Nobody would suppose that the belting was made at Gibraltar, and therefore the mark is not merely geographical. The reason why “Lackawanna" coal was not registrable as a trade-mark in Canal Company v. Clark (1 O. G., 279; 80 U. S.; 13 Wall., 311) was that it was the name of a place from which coal was derived, and others living at that place had an equal right to say that their coal came from there. The name, in fact, had no signification except that of place. The reported cases run the gamut from this instance of solely geographical significance to such instances as "Defiance " paper, where the term virtually has no geographical significance, and each case must be treated in the light of the probable meaning the term would have in the minds of the public.

I do not believe the public would ever attach any geographical significance to the word " Cashmere " used on oil, and this is because the vastly-predominating meaning of the word is the name of a cloth, and even if there are some who know that "Cashmere " means "Kashmir " and that this latter is a place it would probably never occur to them that oil came from Kashmir. As a matter of fact it does not.

The applicant's mark is far more liable to criticism on the ground of being descriptive, indicating oil to be used in the making of cashmere; but the file contains affidavits, which I have no reason to doubt, that it is not generally known that any oil is used in making cashmere, and no particular oil is used for that purpose. I therefore would resolve any doubt on the point of descriptiveness in favor of the applicant.

The mark may be registered, and the Examiner's ruling is reversed.

EX PARTE ADAMS.
Decided April 6, 1918.

255 O. G., 609.

1. TRADE-MARKS-MARK NOT USED ON GOODS-NOT REGISTRABLE.

Where a trade-mark on and for a wrapper on its face refers to the article within the wrapper rather than to the wrapper itself, Held that the mark is not registrable as a trade-mark for the wrapper.

2. SAME-NO TRADE-MARKS AT LARGE.

Held that there is no such thing as a trade-mark at large or unassociated with particular goods.

ON APPEAL.

TRADE-MARK FOR BREAD-WRAPPERS, BREAD-LABELS, ETC.

Messrs. Mason, Fenwick & Lawrence for the applicant.

CLAY, Assistant Commissioner:

The applicant for registration of the words "Butter Krust as a trade-mark for bread wrappers and packages appeals from a refusal

of registration on the ground that he has not used the mark on the goods claimed.

It appears that the applicant is not a maker of bread and apparently not a maker of paper or any material for any packages. What he sells is wrappers, of which the peculiar virtue is that they are marked with the name "Butter Krust.' Some of the labels on file show the term "Butter Krust Bread" and a picture of a cow, with the words "Its Made with Milk," and underneath this the words "C. E. Adams, Originator of Butter Krust Bread." What the applicant seems to have done is to invent a catchy name for bread, and undertakes to promote the sale of oil-paper wrappers by the use of this name. The question is may a trader in wrappers register as a trade-mark for wrappers a device which is obviously intended for one particular article of trade and on its face refers to the article within the wrapper rather than to the wrapper itself? While no exact precedent has been found, this question must be answered in the negative. The meaning of a trade-mark, like a reputation, grows out of the opinions of others and not the opinion or intent of the owner. The ultimate consumer is the man who buys the bread, and he would never suppose this mark to refer to the wrapper. Even the baker, the immediate consumer of the applicant's goods-wrappers-understands the term to refer to the bread, and buys the wrapper for no other purpose than to use the name "Butter Krust as a name for bread. The only thing in the wrapper over and above the making of the paper (which the applicant does not make) is the affixing of the name "Butter Krust." Probably the baker has little interest in knowing who made the paper, and the goods he buys are not bought because of the applicant's reputation for making paper, but because they contain this fancy name. In Pioneer Co. v. Oppenheimer's Sons (C. D., 1907, 144; 128 O. G., 1293), the alleged trademark "Combination Sets," for paper boxes, was canceled because the mark itself represented something other than boxes-namely, suspenders, garters, and armbands-for which the applicant had not registered it, (and probably could not register it because it was descriptive.)

In the present case it is clear that the applicant deals in nothing but wrappers. There is no objection to the mark as a mark for bread; but the point is, it is obviously not a mark for wrappers, because the consumer could not so understand it. What the applicant presents is a disembodied spirit—a maker's mark for something he does not make. There is no such thing as a trade-mark at large or unassociated with particular goods. "Butter Krust" is not a trademark at all. One might, for example, have a good trade-mark for ax-handles, but not if the mark were the words "Keen Cutter," because this term obviously refers to the ax and not to the handle,

whereas the supposed trader does not trade in axes. In fine, one may not register as a mark for a vehicle for goods a device which on its face refers to the goods and not to the vehicle itself. The Examiner's decision is affirmed.

EX PARTE PRIOLEAU AND PRIOLEAU.

Decided June 13, 1917.

255 O. G., 1053.

APPLICATIONS-JOINT AND SOLE-SOLE APPLICATION NOT A CONTINUATION OF

JOINT APPLICATION.

Where after the filing of a joint application an application is filed by one of the applicants alleging that he in fact was the sole inventor, Held that this application cannot be regarded as a continuation of the joint application.

ON PETITION.

METHOD OF CARRYING AND CONDENSING THE VOLATILE GASES DISTILLED FROM CARBONACEOUS MATERIAL.

Messrs. Wiedersheim & Fairbanks and Mr. Wm. W. Deane for the applicant.

EWING, Commissioner:

This is a petition that the Examiner be directed to enter an amendment filed April 14, 1917, and that the petition and oath filed on that date be substituted for the original petition and oath and that the preamble and signing clause and signature of the specification filed on that date "be substituted for the corresponding portions of the substitute papers" filed February 26, 1916.

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The application, which was filed November 24, 1915, is an application for patent on the alleged joint invention of J. R. H. Prioleau and Wm. Louis St. Julian Prioleau. It is signed J. R. H. Prioleau, by his attorney in fact, W. L. St. J. Prioleau, and W. L. St. J. Prioleau.

On February 26, 1916, prior to any action by the Office, complete papers were filed, signed by the two parties. These papers were accompanied by a statement as to the reason of filing the informal application and by a certified copy of a power of attorney granted by John Randolph Hamilton Prioleau to Wm. L. St. Julian Prioleau. On April 15, 1916, the Examiner called attention to certain informalities in the case and stated that one of the claims covered an old process. An amendment was filed on April 6, 1917; but before that amendment was acted upon a complete set of papers was filed by Wm. L. St. J. Prioleau, who alleged that he was the sole