2. SAME-SAME. "Some cases have permitted the registration of geographical terms where they considered them to refer to a period of history rather than a geographical area. This is a tenuous distinction which we do not think should be expanded." APPEAL from the District Court of the United States for the District of Columbia. Affirmed. Mr. Cyril A. Soans (Mr. Thomas L. Mead, Jr., of counsel) for Kraft Cheese Company. Mr. W. W. Cochran (Mr. R. F. Whitehead of counsel) for the Commissioner of Patents Before MILLER, EDGERTON, and ARNOLD, Associate Justices ARNOLD, A. J.: The sole question involved is whether the plaintiff is entitled to the words "Old English" in Gothic letters as a registered trade-mark for its cheese under the act of 1905.1 The Patent Office refused registration on the ground that the mark was merely geographical. The district court dismissed the complaint seeking adjudication of the plaintiff's right to this trade-mark on the ground that the word "English" was geographical and the word "Old" was descriptive. [1] We believe the district court was clearly right. Section 5 of the act provides in part: "That no mark which consists * * merely in words or devices which are descriptive of the goods with which they are used * * * or merely a geographical name or term, shall be registered under the terms of this subdivision * The phrase "Old English" is clearly within this proviso. This court has repeatedly held that such terms cannot be registered.2 [2] It is true that some cases have created a twilight zone by permitting the use of geographical terms which have acquired a secondary meaning in connection with a particular product. These are ordinarily the names of comparatively unknown places such as "Tabasco"3 as applied to a pepper sauce or the arbitrary use of the term "American 133 Stat. 725 (1905) as amended, 15 U. S. C. § 85 (1940). 2 "America" as applied to clocks, American Watch Import Co. v. Western Clock Co., 356 O. G. 498, 57 App. D. C. 7, 16 F. (2d) 347 (1926); "Black Band" as applied to coal, Black Band Consol. Coal Co. v. Glenn Coal Co., 365 O. G. 478, 57 App. D. C. 268, 20 F. (2d) 284 (1927); "House of France" as applied to dresses, In re Deutz & Ortenberg, Inc., 325 O. G. 463, 54 App. D. C. 265, 296 Fed. 1012 (1924); “Oriental Cream" as applied to a cosmetic lotion, In re Hopkins, 128 O. G. 890, 29 App. D. C. 118 (1907); “Quaker City" as applied to flour, Quaker City Flour Mills Co. v. Quaker Oats Co., 214 O. G. 684, 43 App. D. C. 260 (1915); "Old Lexington Club" as applied to whiskey, Kentucky Distilleries & W. Co. v. Old Lexington Club Distilling Co., 135 O. G. 220, 31 App. D. C. 223 (1908). 3 McIlhenny Co. v. Gaidry, 253 Fed. 613 (C. C. A. 5th, 1918). Contra: E. McIlhenny's Son v. B. F. Trappey & Sons, 299 O. G. 461, 51 App. D. C. 273, 278 Fed. 582 (1922); McIlhenny Co. v. Trappey, 297 O. G. 800, 51 App. D. C. 216, 277 Fed. 615 (1922); McIlhenny v. New Iberia Extract of Tabasco Pepper Co., 153 O. G. 547, 34 App. D. C. 430 (1910). Girl" as applied to shoes. In view of the wealth of possibility in the arbitrary use of artificial terms there seems little reason for a court to permit the registration of words which have a common ordinary significance to the casual purchaser. Some cases have permitted the registration of geographical terms where they considered them to refer to a period of history rather than a geographical area. This is a tenuous distinction which we do not think should be expanded. 5 Plaintiff relies upon the Supreme Court opinion in the Beckwith case in which it was held that the phrase "Moistair Heating System" could be registered as part of a composite mark comprising the head of an Indian Chief named "Doe-Wah-Jack" even though the phrase itself was descriptive. No doubt if the phrase "Old English” had been an integral part of some peculiar design or seal such an arbitrary arrangement could have been registered. But that is not the case here. The only peculiarity of this trade-mark is the fact that plaintiff uses a familiar Gothic type. The judgment of the court below is affirmed. [U. S. Court of Appeals for the District of Columbia] COMPANHIA ANTARCTICA PAULISTA v COE, COMMISSIONER OF PATENTS No. 8,796. Decided January 15, 1945 573 O. G. 3; 146 F. (2d) 669; 64 USPQ 109 1. TRADE-MARKS GEOGRAPHICAL-“ANTARCTICA”. "Antarctica," as the name of a continent, Held to be merely a geographical term, and therefore not registrable as a trade-mark under the act of 1905. 2. SAME-SAME. Held that an exception cannot be read into the Trade-Mark Act of 1905 so as to entitle a geographical term, the use of which is fanciful, to registration. APPEAL from the District Court of the United States for the District of Columbia. Affirmed. Mr. Gilbert P. Ritter (Mr. Henry K. Muir of counsel) for Companhia Antarctica Paulista. Mr. W. W. Cochran (Mr. E. L. Reynolds of counsel) for the Commissioner of Patents. Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 225 O. G. 1441, 240 U. S. 251 (1916). * "Old South" as applied to beer, Southeastern Brewing Co. v. Blackwell, 80 F. (2d) 607 (C. C. A. 4th, 1935), cert. den. 297 U. S. 717 (1936); Gerhard Lang Brewery v. Phoenix Brewery Corp., 29 T. M. Rep. 439 (N. Y. Sup. Ct., 1939) (infringement action). See Illinois Watch Case Co. v. Shulton, Inc., 40 USPQ 560 (1939), rev'd on other grounds, 520 O. G. 261, 111 F. (2d) 299 (C. C. P. A. 1940) ("Early American" as applied to toiletries.) • Estate of P. D. Beckwith, Inc., v. Commissioner, 274 O. G. 613, 252 U. S. 538 (1920). Before MILLER, EDGERTON, and ARNOLD, Associate Justices PER CURIAM: This is an action brought under section 4915 R. S. seeking registration of the word "Antarctica" as a trade-mark. The court below held that since the term was the name of a continent it came within the proviso1 of section 5 of the Trade-Mark Act, 15 U. S. C. § 85, making merely geographical terms not entitled to registration. [1] [2] Appellant insists that the use of "Antarctica" as applied to its product is not "merely geographical" within the terms of the proviso. It argues that the public knows that Antarctica is an uninhabited country and therefore cannot be the origin of the productsince the use of the geographical term is fanciful it is more than "merely geographical." We cannot read such an exception into the plain language of the act.2 Affirmed. [U. S. Court of Appeals for the District of Columbia] F. J. STOKES MACHINE COMPANY v. COE, COMMISSIONER OF PATENTS No. 8,715. Decided January 22, 1945 573 O. G. 168; 146 F. (2d) 866; 64 USPQ 203 1. PATENTABILITY-PROCESS FOR PRESERVING BIOLOGICAL PRODUCTS. Certain claims to a process for preserving biological products Held unpatentable over the prior art. 2. SAME-SAME-PERMISSIBLE SCOPE OF PROTECTION. "Even if we were of a different opinion as to the patentability of the process disclosed by these claims we could scarcely grant them under the doctrine of Monsanto Chemical Co. v. Coe *. The claims in issue attempt to extend the control of appellant over a process beyond that which has been allowed by the Patent Office. There is no explanation as to the practical effect which these claims will have in extending appellant's control over the art, and no showing that the scope already granted by the Patent Office is not an adequate reward for the discovery." APPEAL from the District Court of the United States for the District of Columbia. Affirmed. 1 "No mark by which the goods of the owner of the mark may be distinguished from other goods of the same class shall be refused registration as a trade-mark on account of the nature of such mark unless such mark-* "(b) Consists of or comprises the flag or coat of arms or other insignia of the United States or any simulation thereof. *: Provided, That no mark which consists merely in the name of an individual, firm, corporation, or association not written, printed, impressed, or woven in some particular or distinctive manner, or in association with a portrait of the individual, or merely in words or devices which are descriptive of the goods with which they are used, or of the character or quality of such goods, or merely a geographical name or term, shall be registered under the terms of this subdivision 2 Kraft Cheese Co. v. Coe (No. 8717, decided December 18, 1944); In re Kraft-Phenix Cheese Corporation, 531 O. G. 7, 120 F. (2d) 391 (C. C. P. A., 1941); In re Crescent Typewriter Supply Co., 133 0. G. 231, 30 App. D. C. 324 (1908). Mr. Roger T. McLean (Mr. Clarence M. Fisher of counsel) for F. J. Stokes Machine Company. Mr. W. W. Cochran (Mr. R. F. Whitehead of counsel) for the Commissioner of Patents. Before MILLER, EDGERTON, and ARNOLD, Associate Justices ARNOLD, A. J.: Appellant seeks a patent on a process for preserving biological products, such as sera, vaccines, antitoxins, and the like. As originally produced these products contain 90% water and deteriorate on storage. In the process involved in this case the material is frozen and then subjected to a high vacuum below the freezing point which evaporates the frozen water and removes over 99.9% of it, leaving a dry product which is remarkably stable. The case is presented as if the two claims set out in appellant's brief constituted a separate and distinct invention on which it had been denied a patent. Actually it has not been denied a patent. Six claims on the apparatus, and ten claims on the method or process, have been allowed. The issue, therefore, as we pointed out in Monsanto Chem ical Co. v. Coe, 566 O. G. 511, 79 U. S. App. D. C. 155, 145 F. (2d) 18 (1944), is whether the patent which had been granted on appellant's discovery is of sufficient scope to constitute an adequate reward for its discovery and, conversely, whether the claims which it now seeks would give it a control over the art which would discourage invention by others and thereby impede the progress of science and the useful arts. It is impossible to answer that question on the record before us. From a mere comparison of the claims which have been allowed with those which have been refused we are unable to tell what additional scope or control over the art appellant expects to obtain from the claims denied. For example, claim 18, which was granted, and claim 35, which was refused, read as follows: Claim 18. The method of treating and packaging biological material for preservation which comprises, filling at least one clinical dose into a receptacle to not more than 75% of its capacity, said receptacle being suitable as a final container adapted for protection, distribution and restoration for use of contents, dehydrating the biological material by sublimation through the action of a regenerable chemical desiccant and vacuum until dry, admitting dry sterile air to said receptacle, and sealing said receptacle to produce a final package ready for storage or distribution. Claim 35. The method of treating and packaging biological material for preservation which comprises filling at least one clinical dose into a receptacle to not more than 75% of its capacity, said receptacle being suitable as a final container adapted for protection, distribution, and restoration for use of the contents thereof, dehydrating the biological material by sublimation through the action of (1) a solid, porous chemical desiccant heat-regenerable without fusion and (2) vacuum until dry, and sealing said receptacle to produce a final package ready for storage or distribution. [1] From a mere reading of these claims it would appear that every argument which the Patent Office uses against the granting of claim 35 tends to show that the Patent Office was in error in granting claim 18. There is no attempt on the part of the Patent Office to explain this apparent inconsistency. The same may be said of the other claim on which this appeal is taken. However, we have held that the persuasive value which should be given to the action of the Commissioner in respect to allowed claims is a matter which must be determined in each case on its own facts. Sharp v. Coe, 535 O. G. 687, 75 U. S. App. D. C. 118, 125 F. (2d) 185 (1941). On the evidence before us we are inclined to agree with the Patent Office that the claims do not represent an advance over the prior art. [2] Even if we were of a different opinion as to the patentability of the process disclosed by these claims we could scarcely grant them under the doctrine of Monsanto Chemical Co. v. Coe, supra. The claims in issue attempt to extend the control of appellant over a process beyond that which has been allowed by the Patent Office. There is no explanation as to the practical effect which these claims will have in extending appellant's control over the art, and no showing that the scope already granted by the Patent Office is not an adequate reward for the discovery. Affirmed. [U. S. Court of Appeals for the District of Columbia] POLAROID CORPORATION AND SMITH V. MARKHAM, ALIEN PROPERTY CUSTODIAN, AND COE, COMMISSIONER OF PATENTS No. 8,854. Decided February 19, 1945 573 O. G. 545; 151 F. (2d) 89; 64 USPQ 360 1. SUIT UNDER SECTION 4915 R. S.-INTERFERENCE-JURISDICTION. Where the Board of Interference Examiners decided an interference between an application of appellant Smith, assigned to the Polaroid Corporation, and a patent to one Sauer, vested in the Alien Property Custodian, in favor of the patentee; and Smith and Polaroid commenced a suit under section 4915 R. S. against the Commissioner of Patents, and named the Custodian a party defendant, and that suit was dismissed on its merits by the district court; and after appeal, the Custodian moved to dismiss the case for lack of jurisdiction in the appellate court and likewise in the district court on the ground that the suit was a suit against the United States and the United States had not consented to be sued, Held that said motion would be denied. 2. SAME-SAME-SAME. Held that the suit "is an effort on the part of Polaroid to invoke in the protection of its rights the statutory remedies provided by the Patent Laws, which commence in the Patent Office and may be re-activated by an R. S. 4915 proceeding to enable one having rights as a prior inventor to have the same officially recognized and declared," and that "the United States under R. S. 4915 |