The steps taken to have the claim inserted in the allowed application therefore controlled and as the first petition was filed within nine months of the granting of the Barrett patent the ruling of Rowntree v. Sloan is inapplicable. The motion to dissolve the interference is denied and the motion to shift the burden of proof is granted. EX PARTE TAYLOR, CLAPP & BEALL. Decided May 21, 1918. 256 O. G., 451. 1. PRINTS AND LABELS-DESCRIPTIVENESS NECESSARY. Held that a print or label which does not describe the goods is not registrable in this Office. 2. SAME-SAME-MERE COLOR NOT SUFFICIENT. A print or label for cambric does not describe the goods merely because its color scheme is white. ON APPEAL. COTTON PIECE GOODS. Messrs. Munn & Co. for the applicant. CLAY, Assistant Commissioner: The applicant for registration of a "print used to advertise cambric" appeals from a refusal based on the two grounds that the picture presented is a label rather than a print and that it fails to identify the goods to which it refers. There is no error in either of these grounds. The applicant's contention that the Print and Label Copyright Act of 1874 does not provide that a print or label shall be descriptive of the goods is without force. Descriptiveness is the very essence of the meaning of the word "label" itself. A label has no other function but to inform of what is within; and the statute specifically deals with pictures, prints, and labels to be used for any articles of manufacture other than works of art per se. Of course this means that the art is not an end in itself, but is a mere means to name or advertise something else, and this it could only do by identifying and giving information about that something else. There has been considerable latitude as to how the print or label describes the goods, (Ex parte Ruppert, C. D., 1906, 142; 121 O. G., 2327); but there could be no reason or warrant for registering a copyrightable print or label which failed altogether to in some way describe the goods for which it is used. It cannot be seriously contended that the print or label in question describes cambric merely because its color scheme is white. I have noted the suggestion in De Jonge v. Breuker et al., 182 Fed. Rep., 150, that a design of holly, mistletoe, and spruce might be a print for Christmas boxes, supposedly on account of the plain suggestion of Christmas goods. The Examiner's ruling is sustained. STANDARD OIL COMPANY v. CREW LEVICK COMPANY. TRADE-MARKS Decided July 31, 1918. 256 O. G., 647. OPPOSITIONS-EQUITY PRACTICE FOLLOWED-RIGHT OF OPPOSER TO WITHDRAW OPPOSITION. The practice in opposition proceedings should follow the equity practice rather than the practice in patent interferences, and an opposer may withdraw his opposition unless it is shown that the applicant has been damaged by reason of the opposition having been filed. (The Cravenette Co. v. Rogers & Thompson, 102 MS. Dec., 127 overruled.) PETITION from Examiner of Interferences. TRADE-MARK FOR ILLUMNIATING, LUBRICATING, AND BURNING OILS AND GREASES. Messrs. Britton & Gray for Standard Oil Company. CLAY, Assistant Commissioner: The opposer of registration of a trade-mark petitions for correction of a ruling by the Examiner of Interferences denying the opposer's motion to dismiss its opposition. A simple question of law is raised. The Crew Levick Company applied for registration of a trade-mark for oil, which is an elaborate design, including, among other things, the word "Empire,” written on a bracket, which forms the pedestal of a spread-eagle mounted thereon. The registration was allowed and published November 13, 1917. The Standard Oil Company filed an opposition to registration, setting up, among other things, a prior use of the word "Empire" for the same goods and alleging probable confusion and consequent injury. The applicant and the opposer were notified in the usual way that answer must be filed before a certain date and that— the practice of the United States equity courts will be followed in pleading and procedure. The time set for answering passed without answer, and an order to show cause why the opposition should not be sustained was issued; but answer was filed, upon waiver of objection, two days late. Thereupon and before any proofs taken the applicant, Crew Levick Company, moved to dismiss the opposition on certain grounds of estoppel and on denial of confusion between the marks of the parties. This motion, which amounted to a demurrer, was overruled and times for taking testimony again set. A petition or attempt to appeal from the action overruling the demurrer was made by the applicant, but of course denied by the Commissioner. Thereafter and still before any proofs taken the opposer itself moved that the notice of opposition filed by it be dismissed without prejudice, in accordance with equity procedure. The Examiner of Interferences denied this motion, considering that the practice had been settled by the case of The Cravenette Co. v. Rogers & Thompson (102 MS. Dec., 127), whereupon the opposer, the Standard Oil Company, petitioned for a reversal of that ruling. The question seems to be simply whether the proceedings in an opposition are to be governed by the rules and practice in equity or by the rules and practice in patent interference proceedings, for on the point at issue the two practices are in conflict. The trade-mark statute provides for an opposition proceeding in section 6 as a preliminary to registration; but nothing is here specifically provided as to the procedure after opposition filed, except that the Examiner shall determine the sufficiency of objections to registration in such manner as the Commissioner may prescribe. Section 9, which provides for several appeals from the Commissioner to the court, refers to the rules in patent cases and says: The same rules of practice and procedure shall govern in every stage of such proceedings, as far as the same may be applicable. Under the authority of section 26 of the act the Commissioner of Patents has established certain rules relating to registration of trademarks, and among others Rule 55, which reads thus: The proceedings, on oppositions, and on applications for cancelation, shall follow, as nearly as practicable, the practice in interferences between applications for patents. The question is whether in an opposition it is practicable to follow the practice in interference proceedings provided by Patent Rule 125, that After an interference is finally declared it will not, except as herein otherwise provided, be determined without judgment of priority founded either upon the evidence, or upon a written concession of priority, or upon a written disclaimer of the invention, or upon a written declaration of abandonment of the invention. * * * (It should be noted that none of these grounds exists in the case at bar.) I am unable to see any close parallel between a patent interference and a trade-mark opposition proceeding. The interference is instituted by the Patent Office itself, in order to determine which of two applicants for patent was the first inventor, which question must be determined in the public interest, because the patent is by law to be granted to none but the first inventor, and the Commissioner cannot escape the duty of determining which of the two applicants must be awarded the patent, it being presumed that a patent is to be granted to one or the other. It is not a complaint or a setting up of cause of action by one party against another, nor is it the challenging by one party of an asserted right set up by the other. An opposition, on the other hand, is a challenge of the right of registration brought forward by one who claims he would be injured by the registration. The proceeding is not instituted by the Patent Office and is not primarily a question in which the public is interested. The opposer says, in effect, I object to the applicant registering this mark because it will injure, trespass upon, or endanger my prior rights. The question for the Patent Office is simply that of determining on evidence whether the objection is sufficient, in order to decide whether to allow or refuse registration. To my mind the opposition proceeding is entirely parallel to an equity suit. It is well established that any one who files a bill in equity may, even after answer filed, withdraw his bill without prejudice unless there is a showing of damage to the defendant up to that time by reason of the bill having been filed. Even then the dismissal of the bill at plaintiff's motion is generally without prejudice so far as the plaintiff's rights are concerned. In the present case the applicant appeared at the oral argument to insist that this case should proceed to proofs or judgment by default of proofs; but I can see no showing of injury to the defendant, (the applicant,) and as far as the opposition is concerned the moving party is already barred of again raising exactly the same question, because the time for opposition to registration of this trade-mark has passed. In the case cited by the Examiner of Interferences-The Cravenette Co. v. Rogers & Thompson-there was a situation somewhat dissimilar. The case was up on a motion by the opposer to dismiss and a motion by the applicant "that the case be set for hearing upon bill and answer." The applicant claimed to be damaged by holding up his registration six months, and there seems to have been contemplated a new publication and a possible renewed opposition. The Assistant Commissioner took up the question whether the opposer was entitled as a matter of right to dismiss the opposition when no testimony had been taken, and though he recognized the settled practice in equity that a bill could be dismissed upon payment of costs he proceeded, after quoting Trade-Mark Rule 55 and Patent Practice Rule 125, to say that this Rule 125 should be followed so far as it is applicable, and then cited the case of Outcault v. The New York Herald (C. D., 1908, 204; 136 O. G., 437) as a guiding authority. He said that should the present proceeding be dismissed and it be found necessary to republish the applicant's mark, (the opposer) could again oppose registration and thereby not only work a hardship on the applicant but also add an unnecessary burden to the work of the Patent Office. It is contrary to the policy of the Patent Office to encourage the institution of proceedings of this character which not only result in an injury to the applicant for registration but also place an unnecessary burden upon the Office. It will be noticed that in effect this is a holding that the defendant has already been injured and corresponds to the case in equity where the court would allow the defendant his costs upon the dismissal of the bill at the plaintiff's motion. (I presume the Assistant Commissioner meant that it was contrary to the policy of the Patent Office to encourage useless oppositions, for certainly it is not against the policy of the Office to encourage oppositions, since the law provides for and the Office makes every invitation to the filing of oppositions.) But I cannot escape the conclusion that the Assistant Commissioner was misled as to the parallelism between The Cravenette Co. v. Rogers & Thompson case and that of Outcault v. New York Herald above. In the latter case the Herald Company had registered" Buster Brown" as a trade-mark for comic sections of newspapers and Outcault had applied for cancelation of the registered mark. He took proofs, and after proofs taken and the case was in condition for a judgment on the merits he undertook to terminate the proceedingswithout prejudice to his right to file a new application for cancelation. This corresponds to the case in equity, which is an exception to the general rule. The character of these exceptions is perhaps best defined by Judge Colt in Western Union Tel. Co. v. American Bell Tel. Co. (50 Fed. Rep., 662): These exceptions are based upon the principle that a complainant should not be permitted to dismiss his bill when such action would be prejudicial to the defendant. But this does not mean that it is within the discretion of the court to deny the complainant this privilege under any circumstances, where it might think such dismissal would work a hardship to the defendant, as, for example, where it might burden him with the trouble and annoyance of defending against a second suit; but it means that if, during the progress of the case, the defendant has acquired some right, or if he seeks or has become entitled to affirmative relief, so that it would work an actual prejudice against him to have the case dismissed then, the complainant will not be permitted to dismiss his bill. In City of Detroit v. Railway (55 Fed. Rep., 569) Judge Taft reviewed the cases, showing that the right of plaintiff to dismiss his bill when the case is ready for trial is sometimes denied and gives various reasons. On examination it will be found that in that case there was, |