vegetables, the trade-mark of Foster, Caldarera & Company, registered July 27, 1909, No. 74,609, consisting of the word "Arkoma,” for flavoring extracts and canned tomatoes, and an application of Foster, Caldarera & Company for the registration of the same word for canned pork and beans, salmon, corn, hominy, and peaches.

The assignments of error upon this appeal are briefly that the Examiner erred in holding that the words "Arkoma" and "Armona " are so nearly identical as to be likely to cause confusion in the mind of the public; that the Examiner erred in holding that the statement of the particular description of goods of the California Fruit Canners Association—namely, “canned fruits and canned vegetables is such a particular description of goods as is required by section 1 of the Trade-Mark Act of 1905; that the Examiner erred in holding that registration of the word "Armona " is not prohibited by section 5 of the act of 1905, it being the name of a post-office and town in Kings county, Cal.

As to the first allegation of error, I am of the opinion that no sufficient ground exists for reversing the Examiner's decision. The words "Arkoma " and "Armona" are quite similar in appearance and sound, and in the absence of any other evidence than the marks themselves it is believed that the interference should not be dissolved. The contention that the terms "canned fruits" and "canned vegetables" do not sufficiently define the particular description of goods. within the meaning of section 1 of the Trade-Mark Act of February, 1905, is immaterial to the controversy, since it appears that the specimens filed by the California Fruit Canners Association as illustrating the manner in which the mark is used upon the merchandise, and which form part of the application for registration, bear inscriptions indicating that these labels are used upon tomatoes and peaches, which are among the goods to which the trade-mark "Arkoma " claimed in the Foster, Caldarera & Company registration and application, respectively, is said to be applied.

Finally, the holding of the Examiner that the question whether "Armona" is merely geographical in significance is not material to the determination of this interference is clearly right. The application of the California Fruit Canners Association is presented under the ten-year proviso of the Trade-Mark Act of February 20, 1905, and the question whether this mark is barred by reason of its use by others in that period is one which may be determined in this interference proceeding.

I find no error in the decision of the Examiner of Trade-Marks, and it is accordingly affirmed.

1. TITLE OF INVENTION.

EX PARTE MACKINTOSH.

Decided January 7, 1911.

162 O. G., 783.

Under the ruling in ex parte Becker (C. D., 1893, 95; 64 O. G., 559) an applicant should be allowed within reasonable limits to name the title of the invention.

2. SAME.

Where the claims were directed to the bearings and mode of connecting the driving device of a centrifugal machine, Held that the title "Centrifugal machines" did not correctly indicate the nature and design of the invention, as required by section 4884, Revised Statutes.

ON PETITION.

CENTRIFUGAL MACHINE.

Mr. Edward D. Mackintosh pro se.

MOORE, Commissioner:

This is a petition from the requirement of the Examiner that the title of the invention be changed from "Centrifugal machines" to "Bearings for centrifugal machines" or like expression.

As pointed out by the Examiner, where the claims relate to the construction of the basket of the centrifugal machines or the methods and devices for feeding liquid thereto the case is classified under Centrifugal Machines" in Division VI. in Division VI. Where, however, the claims are directed to the bearings and mode of connecting the driving device and the basket is only included generally, the case is classified in "Journal-Boxes," Division XII. This application was originally examined in Division VI, where a requirement for division and restriction of the claims was made. As a result of applicant's compliance with this requirement, the case was transferred to Division XII.

The object of the invention, as stated in the specification, isthe supporting and driving of single-shaft centrifugal machines— and the claims allowed in the case are directed to this structure. The criticism of the Examiner that the present title does not correctly indicate the nature and design of the invention, as required by section 4884, Revised statutes, is well taken. Under the ruling in ex parte Becker (C. D., 1893, 95; 64 O. G., 559) the applicant should be allowed within reasonable limits to name the title of the invention. In the present case it is noted that the Examiner has not attempted to arbitrarily fix the title, but requires that it be changed to "Bearings for centrifugal machines " or a like expression. If applicant has any well-grounded objection to the title "Bearings for centrifugal machines," he may suggest such a variation thereof as will come within the requirement of the Examiner.

The petition is denied.

EX PARTE GILMAN.

Decided January 6, 1911.

162 O. G., 783.

1. PROSECUTION OF APPLICATION-RESPONSIVE AMENDMENT.

Where in response to an action rejecting two claims on a patent to L and other claims as stating aggregations of features shown in certain prior patents, one of which was the patent to L., the applicant within the year filed a slight amendment and a more or less extended argument discussing the pertinency of the patent to L. and contrasting what was shown therein with what was shown in the application, but not specifically referring to the two claims rejected on the patent to L., Held that the amendment was responsive.

2. SAME-Same.

"The fact that an argument is not a convincing one should never be urged in support of an objection that the action containing that argument was not responsive, except possibly in some extreme case where the argument on its face is directed to a discussion of subject-matter which is entirely beside the case."

ON PETITION.

LUBRICATING DEVICE FOR PNEUMATIC TOOLS.

Messrs. Emery & Booth for the applicant.

BILLINGS, First Assistant Commissioner:

This is a petition from the action of the Examiner holding the above-entitled application to be abandoned for lack of proper prosecution.

It appears that the Examiner on November 4, 1909, rejected all the claims on certain references specifically cited and also rejected some of the claims on the ground that they covered mere aggregations. In this letter of rejection claims 9 and 10 were rejected on the patent to Lunken alone, which patent had been cited in connection with other patents as anticipating all the other claims in the case.

On October 3, 1910, the applicant responded by filing a slight amendment and a more or less extended argument. At the beginning of the argument it was stated:

In accordance with oral interview recently had with the Principal Examiner in charge, reconsideration is requested for the rejection upon the ground of aggregation which ground of rejection as we understand it, applies to all claims excepting the 9th and 10th.

On November 14, 1910, the Examiner stated that

applicant's argument appears to be directed to claims 1 to 8, inclusive, and to claim 9. No action is made as to claims 9 and 10,

and held that the application was therefore abandoned for failure to make responsive action. It is to be noted, however, that in the

argument of October 3, 1910, the applicant discusses the pertinency of the citation of the patent to Lunken, stating what Lunken shows and contrasting what is shown by the applicant with the Lunken patent.

The applicant states in the petition that he intended to be very careful in complying with all requirements of the Patent Office practice in respect to responsiveness of action and that if such requirements were not fully complied with it was due to a failure to completely and adequately express the meaning intended to be expressed at the time the amendment and argument were prepared, October 3, 1910, and that—

* at the time the said amendment and argument was prepared the rejection of claims 9 and 10 was considered and the said argument was supposed to cover such rejection and secure a reconsideration thereof, either in the form of an allowance, a final rejection, or a modification of the rejection already made.

While it is true that the applicant in the argument of October 3, 1910, did not specifically recite claims 9 and 10, it is nevertheless true that the patent to Lunken, the only reference cited against these two claims, was discussed. The Examiner does not appear to be absolutely certain that the pertinency of the Lunken patent to these two claims was not discussed, for he says in his statement:

It does not appear to the Examiner that the argument can be interpreted in any manner so as to have any bearing on claims 9 and 10 as the specific form of the passages and throttle-valve are not set forth and the claims are directed to the specific form of the lubricating device.

In a case such as the present one any doubt as to the completeness of the response made by the applicant as covering all the questions raised by previous rejection should have been waived in the applicant's favor before declaring forfeiture.

The Examiner raises a new ground in his answer for holding the application to be abandoned, stating:

It furthermore appears to the Examiner that the responsiveness of the action as to claims 1 to 8, inclusive, and 11 cannot be accepted for the reason that the parent case of this application was involved in an interference which claimed specific structure of passage-ways and throttle-valve now claimed in this case in connection with a lubricator. Judgment was rendered in said interference adversely to applicant prior to the filing of the amendment of November 14. 1910. It must therefore be presumed that applicant knew that the differences of operation urged in the argument over the patent to Taylor were in reality the invention of another.

It appears from this quotation from the Examiner's answer that the ground urged by him for holding the argument not to be responsive is that the argument does not meet the views of the Examiner and that it does not convince him that he should allow the claims.

The fact that an argument is not a convincing one should never be urged in support of an objection that the action containing that argument was not responsive, except possibly in some extreme case where the argument on its face is directed to a discussion of subjectmatter which is entirely beside the case.

The petition is granted.

EX PARTE THE LUFKIN RULE CO.

Decided January 7, 1911.

TRADE-MARKS—“ INSTANTANEOUS

162 O. G., 784.

For Measuring-Tapes-DESCRIPTIVE.

The word "Instantaneous used in a trade-mark for measuring-tapes Held properly refused registration, since it is descriptive of a character or quality of the goods to which it is applied.

ON APPEAL.

TRADE-MARK FOR MEASURING-TARES.

Mr. Jesse B. Fay for the appelicant.

TENNANT, Assistant Commissioner:

This is an appeal from the decision of the Examiner of TradeMarks refusing to register the word "Instantaneous" for a trademark for measuring-tapes upon the ground that the word "instantaneous" indicates a characteristic or quality of the goods claimed.

The Examiner holds that the word "Instantaneous" as applied to measuring-tapes conveys the idea that the measuring units on the tape may be read without any loss of time or instantly, and in this connection he cites several patents for improvements in tape-measures for the express purpose of enabling accurate and rapid reading.

It is contended in behalf of the appellant that the word "Instantaneous as applied to measuring-tapes can at most be only considered as suggestive, it being asserted that it must necessarily take an appreciable time to read the measurement indicated upon the tape, and certain decisions are cited in support of this contention, including the cases Pennsylvania Salt Mfg. Co. v. Myers, (79 Fed. Rep., 87,) in which an injunction was granted restraining an infringer from using the word "Saponifier;" Hiram Holt Co. v. Wadsworth et al., (41 Fed. Rep., 34,) in which the words "Lightning HayKnives" were held to be a valid trade-mark; The Globe Wernicke Co. v. Brown, (121 Fed. Rep., 185,) in which the word "Elastic " as applied to sectional bookcases was held valid.

I have carefully considered these decisions in connection with appellant's argument, but am of the opinion that the rulings con