2. SAME-SAME. "We think the word 'class,' as used in the statute, means broadly a genus including as species any goods upon which the use of the same mark, when the goods are exposed side by side, would tend to mislead the purchasing public." 3. SAME-SAME-" HOSIERY " AND "KNITTED UNDERWEAR." Hosiery and knitted underwear Held to constitute goods of the same descriptive properties within the meaning of the Trade-Mark Act. Mr. John M. Coit for the appellants. Mr. Odin Roberts for the appellees. VAN ORSDEL, J.: This is a trade-mark opposition in which appellee company is opposing the registration by appellant company of a trade-mark consisting of a rayed medallion having the word "Onyx" prominently displayed thereon, the medallion being suspended by a link or clasp from an eagle's beak. The registration is sought for use on knitted and textile undershirts, drawers, and union suits. The appellee's mark is identically the same as that sought to be registered by appellant. It appears that appellee registered the mark in 1887, when it was adopted and used as a trade-mark upon men's, women's, and children's stockings. In 1907, a second registration was secured by appellee, in which it was stated: The class of merchandise to which the trade-mark is appropriated is Class 41, Knitted, netted, and lace goods, and the particular description of goods comprised in said class upon which said trade-mark is used is hosiery. It appears that appellee at one time used the mark upon black underwear. This use was begun in 1897, and continued for several years. Its use on underwear was discontinued, which it is urged by appellant constituted an abandonment of the mark for underwear. It is also contended by appellant that appellee's use must be limited to stockings, and, therefore, its use upon knitted underwear, drawers, and union suits deprives appellee of no rights. It is unnecessary to indulge in nice distinctions as to the exact meaning of the term "hosiery." If appellee had never applied the mark to underwear, appellant's position would not be improved. The classes of goods are so similar as to bring appellant's right to registration within the inhibition of the Trade-Mark Act. Much evidence was adduced by appellee to show that appellant's use of the mark on underwear would be likely to create confusion in trade. It also appears that stockings and underwear are generally handled by the same dealers and retailed together over the same counter under one general classification of hosiery and underwear. It is a recognized rule that different species of goods are of the same class when a certain trade-mark used on them would enable an unscrupulous 72367°-15-12 dealer to readily palm off on an unsuspecting purchaser the goods of one make when he supposed he was receiving the goods of another. (Church & Dwight Co. v. Russ, C. D., 1900, 260; 91 O. G., 228; 99 Fed. Rep., 276.) The issue here is the old one so often decided by this court, Would appellant's use of the mark on underwear lead the ordinary purchaser to believe that he was buying the goods of appellee? We think the word "class," as used in the statute, means broadly a genus including as species any goods upon which the use of the same mark, when the goods are exposed side by side, would tend to mislead the purchasing public. We have no difficulty in applying this rule to knitted and textile undershirts, drawers, and union suits on the one hand, and men's, women's, and children's stockings on the other. But it is urged by counsel for appellant that it has not been shown that appellee would be damaged. The conflict implies damage, not only to the party whose right to the mark is invaded, but to the public; and it is the duty of the Commissioner of Patents in passing upon the registration of a trade-mark to guard jealously the rights of the public. In this view of the case, it is unnecessary to consider the question of appellee's alleged abandonment of the use of the mark on underwear, since the ruling would be the same if appellee had never so used the mark. 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 O'CONNOR. Decided April 6, 1914. 202 O. G., 632; 42 App. D. C., 219. PATENTABILITY-REFRIGERATOR-CAR-DOOR PACKING. Claims for a refrigerator-car-door packing Held unpatentable in view of the prior art. Mr. H. N. Low and Mr. G. I. Haight for the appellant. VAN ORSDEL, J.: This is an appeal from a decision of the Commissioner of Patents refusing a patent to appellant for a device for making refrigeratorcar-doors air-tight. It consists of a metal Z-shaped spring set in a recess in the edge of the door extending continuously around the door. A packing of yielding material covers the outer face of the spring, which is held in place by a strip of canvas or other flexible fabric stretched across the packing and secured to the edge of the door on either side of the recess. In operation, when the door is closed, the pressure upon the canvas strip and packing causes them to be forced against the spring, which yields sufficiently to permit the door to be closed, but having sufficient strength to keep the packing forced securely against the door-frame, thus keeping the space between the door and the frame so tightly filled as to render it air-tight. The following claims sufficiently describe the invention. 1. In a refrigerator car, the combination with the doors and surrounding stationary wall having a packing recess formed in the meeting edges of one of said members, a flexible fabric strip bridging said recess and secured to the member in which the recess is formed, a packing of yielding material on the inner face of said strip and a combined sheet metal backing strip and spring fitting in said recess and affording a yielding support at both edges of the recess for the yielding packing material, substantially as specified. 4. In a refrigerator car, the combination with the doors and surrounding stationary wall having a packing recess formed in the meeting edges of one of said members, a flexible fabric strip bridging said recess and secured to the members in which the recess is formed, a packing of yielding material on the inner face of said strip and a combined sheet metal backing strip and spring fitting in said recess and affording a yielding support at both edges of the recess for the yielding packing material, said strip being of Z form in cross section, substantially as specified. 8. In a door packing, the combination of a member furnished with a recess, a flexible fabric strip bridging said recess, a resilient metal strip fitting in said recess and a packing of yieldng material between the metal strip and the fabric strip, said metal strip being of Z form in cross section, said yielding packing material being secured to the fabric strip on the inner face thereof, said metal strip affording a yielding support at both edges of said recess for said fabric strip and packing material, substantially as specified. 9. In a refrigerator car door packing, the combination with a member furnished with a recess, a flexible fabric strip bridging said recess, a packing of yielding material beneath the flexible fabric strip and a resilient bent metal plate placed in the recess and between the packing and the member and serving both as a backing and a spring, substantially as specified. A patent to one Le Flare, No. 562,001, June 16, 1896, shows a door-packing generally used on refrigerator-car doors at the present time, in which the packing, covered on the outside by canvas or other flexible fabric, is forced outwardly by a wooden strip fitted so as to operate in the recess and supported on the inside by resilient coilsprings. The only difference between Le Flare's device and appellant's is that, in the latter, the packing is forced out by the face of the continuous Z-shaped spring; while, in the former, the strip of wood takes the place of the outer face of the Z-shaped spring, and is forced outwardly against the packing by the series of coil springs. A patent to one Jones, No. 399,414, March 12, 1889, discloses a weather-strip in which a resilient spring performing much the same. function as the spring in appellant's device is interposed between the sash and window-frame. We agree with the Commissioner of Patents that what appellant has accomplished does not, in the light of the prior art, rise to the dignity of invention. His device seems to be an improvement over Le Flare, whose invention is now in general use, but the improvement is not such as to entitle him to a patent. Invention or discovery is the requirement which constitutes the foundation of the right to obtain a patent, and it was decided by this Court, more than a quarter of a century ago, that unless more ingenuity and skill were required in making or applying the said improvement than are possessed by an ordinary mechanic acquainted with the business, there is an absence of that degree of skill and ingenuity which constitute the essential elements of every invention. (Dunbar v. Myers, C. D., 1877, 140; 11 O. G., 35; 94 U. S. 187.) What appellant here did was only the taking of a step in advance, which we think was obvious to any one skilled in the art. 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.] STEWART V. THOMAS. Decided April 6, 1914. 202 O. G., 1263; 42 App. D. C., 222. 1. INTERFERENCE-PRIORITY-REDUCTION TO PRACTICE-WHAT CONSTITUTES. Where T. made a device which did not contain all the elements included in the issue, but did contain all the elements of the real invention, tested it, and found that it did what it was expected and required to do, Held that this constituted a reduction to practice. 2. SAME SAME. Evidence reviewed and Held that T. was the first to conceive the invention in issue and the first to reduce to practice and priority awarded to him. (For Commissioner's decision see ante, 51; 202 O. G., 1259.) Mr. V. D. Borst for the appellant. Mr. Hubert Howson for the appellee. ROBB, J.: Appeal from a decision of the Commissioner of Patents in an interference proceeding in which priority of invention was awarded the appellee, Thomas. The invention involves an electric-lamp socket adapted for use on electric sign-boards and of such a construction that it may be mounted and adjusted from the rear of the sign-board, where the wiring is done. The sockets of the prior art were so constructed that their securing means were partly adjusted from the front of the signplate and partly from the back. This construction often required two men to adjust the socket, whereas, under the construction of the issue, one man can do the work. The invention is set forth in one count, as follows: An electric sign receptacle comprising an insulating body carrying within it lamp receiving terminals and having also wire terminals, outwardly projecting claws carried by the receptacle and adapted to be inserted through the sign plate from the rear in any position rotarily, and means in connection with said claws to grip said sign plate so as to hold the receptacle against rotation. Mr. Thomas is a mechanical engineer of the Bryant Electric Company, the owner of his invention. His duties consisted in supervising inventions and models, instructing model-makers, and designing new models and electrical devices. About July 20, 1908, he made pad sketches of the invention in issue and, on July 23d, commenced a model which was completed on the 24th. The model card which was made at the time was introduced in evidence, as was the model itself, which was marked with his name and the date of its completion. The model card, containing a sketch of the invention, was witnessed at the time by Mr. F. E. Seeley and Mr. G. W. Goodridge, to whom the invention was fully explained by Mr. Thomas. The model contains an insulating body or receptacle, has outwardly-projecting claws carried by the receptacle and adapted to be inserted through the sign-board from the rear, in any position rotarily, and means in connection with the claws to grip the sign-board and hold the receptacle against rotation. In short, it fully embodies every real element of the invention. Mr. Thomas, Mr. Seeley, and Mr. Goodridge, tested this device and found that it did what it was expected and required to do, namely, that it was capable of being inserted from the rear of the plate and there adjusted as called for by the issue. The tribunals of the Patent Office refused to accept this model as a reduction to practice because it did not have within it lamp-receiving and wire terminals. While those elements are mentioned in the issue they were both well known to the art and really form no part of the invention. Mr. Thomas explains that he did not stop to put in the screw-shell or lamp-receiving terminal and the wire-terminals, for the simple reason that in common practice all such receptacles contained them. What he was endeavoring to demonstrate, and what he did demonstrate, was that his device would overcome the limitations of prior devices. That having been demonstrated, it was merely necessary for him to attach the screw-shell and wire-terminals of the common and well-known type, as any mechanic with any knowledge of the art could have done. If the claim read— an insulating body capable of carrying within it a lamp-receiving terminal and capable of having attached wire terminals. |