[1] It is the contention of Pinkerton that the carton referred to in this letter disclosed the invention in issue, which differs from the prior art, in that the strap which overlies the display pin is provided with a struck-down portion or tongue, which passes between the prongs of the pin and through an opening in the side of the box, thereby eliminating the wooden dowel. It will be observed that no claim is made in this letter that the carton therein mentioned contained any novel features, nor is there any description of it. Right here it may be mentioned that Pinkerton had taken out 10 patents on other kinds of boxes, so that he must have appreciated the importance of describing and claiming any invention he was conscious of having made. Mr. Gibson, who opened the package containing the carton upon its receipt by the Sta-Rite Company, Miss Black, his stenographer, Mr. Girouard, foreman of the celluloid department, a Mr. Creech, a director of the company, and a Mr. Tallman, whose factory was near by, and who was a disinterested witness, all testified to the effect that the carton in question did not disclose the invention; that it did not differ from the cartons already in use. The Assistant Commissioner has very carefully and fairly reviewed this testimony, and we agree with him that it disproves Pinkerton's contention on this point.

Cogency is added to this view from Pinkerton's failure in the letter to describe the carton, from his failure to preserve it when returned personally by Mr. Gibson, and from the equivocal character of his testimony on cross-examination. Mr. Gibson, shortly after his company received this carton, went to Chicago and remained there several days, during which he frequently in

terviewed Mr. Pinkerton and other concerns dealing in wooden pins or dowels. Gibson contends that it was during this time that he made the invention. On cross-examination, Pinkerton was asked whether he did not suggest to Gibson that he get prices and quotations on wooden pins or dowels, and replied, "No; not that I remember of." He then was asked if Gibson had not reported to him that he had secured prices from one or two persons who owned the stock from which these wooden pins were made, and answered, "No; not in my memory." He again was asked whether Gibson did not come back to his (Pinkerton's) office after he had been in Chicago a couple

kerton he had cut out himself the night before, and responded, "I don't remember anything of the kind; we had got through with this box, as to my knowledge." Thereupon he was asked if Gibson did not submit this box for his examination, and whether, after carefully examining it, and taking it apart, and putting it together again, he did not say to Gibson, "You have got it.” To this inquiry he replied, "No; I don't remember that."

That Gibson did obtain prices on these dowels is clearly established, because he gave the names and addresses of the firms, and it is apparent from Pinkerton's crossexamination that he not only knew of what Gibson had done, but probably suggested it. Of course, if Pinkerton had made the invention, as he now contends, there was no necessity for this course of conduct on the part of Gibson.

[2] The Assistant Commissioner has so carefully and satisfactorily reviewed the evidence that we do not consider it necessary to dwell further upon it. The burden was upon Pinkerton, as the junior party, and he has not sustained it. We therefore affirm the decision. Affirmed.

GEORGE B. GRAFF Co. v. H. C. COOK CO. (two cases).

(Court of Appeals of District of Columbia. Submitted November 12, 1924. Decided December 1, 1924.)

Nos. 1674, 1675.

1. Trade-marks and trade-names and unfair competition -Object of "trade-mark" stated.

The object of a trade-mark is to distinguish the goods to which it is applied from similar goods, and to identify them with a particular

trader or his successors as owners of a particular business.

[Ed. Note.-For other definitions, see Words and l'hrases, First and Second Series, TradeMark.]

2. Trade-marks and trade-names and unfair competition 43-Manufacturer having stamped dealer's name on goods held estopped to register trade-mark under which goods were sold.

Manufacturer, which stamped dealer's name on goods for eight-year period, held estopped to register trade-mark under which goods were sold.

Appeal from Commissioner of Patents.

Trade-mark interference proceeding between the George B. Graff Company, for which the Graff-Underwood Company was

H. E. Rockwell and E. M. Bartholow, both of New Haven, Conn., for appellee..

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

ROBB, Associate Justice. These are trade-mark interference proceedings in which the Assistant Commissioner ruled that appellee was entitled to register the mark "Vise."

Originally Mr. Graff, as the exclusive licensee of the patentee, manufactured and sold paper clips under this trade-mark. In 1910 he sold his good will and business to the Cook Company. That company, failing to make a success of the business, entered into an arrangement with Graff in March of 1911, by which Graff undertook the sale of these clips, the same to be manufactured by the Cook Company. Thereafter, through quite extensive advertising and good business management, Graff built up a very considerable business, not only in these clips, but in other similar devices, all of which were sold under this trade-mark. The Graff Company and the Graff-Underwood Company have succeeded to the rights of Graff. Early in 1913, Graff wrote the Cook Company, requesting that the clips have stamped thereon "my name, G. B. Graff Co., Boston." The company responded in part as follows: "We agree with you that it would be a good thing to have your name on the Vise clips for these reasons, but in looking over the article and the tools we see no way of getting it there without adding a whole lot to the cost, which is prohibitive. The boxes and containers both have your name and address." A short time thereafter, however, the Cook Company did stamp on the clips themselves the name of the Graff Company, and that practice continued until 1921, a period of about eight years, during which the public had a right to assume that the origin of the goods. was the Graff Company, and not the Cook Company.

[1] The object of a trade-mark is to distinguish the goods to which it is applied from similar goods, and identify them with a particular trader or his successors as owners of a particular business. Elgin Nat. Watch Co. v. Ill. Watch Case Co., 179 U.

S. 665, 21 S. Ct. 270, 45 L. Ed. 365; Columbia Mill Co. v. Alcorn, 150 U. S. 460, 14 S. Ct. 151, 37 L. Ed. 1144; Amoskeag Mfg. Co. v. Trainer, 101 U. S. 51, 25 L. Ed. 993; 38 Cyc. 678. It has been described as the commercial substitute for a signature, certifying to the genuineness of the goods to which affixed. See Menendez v. Holt, 128 U. S. 516, 9 S. Ct. 143, 32 L. Ed. 526.

[2] In the present case, for about eight years the public was given to understand that the origin or ownership of the goods, to which the mark was applied, was the Graff Company. Under such circumstances, we think the Cook Company is estopped to prevent the continued use of this mark by the Graff Company, provided the mark is so used as clearly to indicate that the product is that of the Graff Company. Under the original arrangement between Graff and the Cook Company, the company had the right to restrict Graff to the mere use of the mark, and, in addition, to insist that the name of the Cook Company appear as the source of the product. This the Cook Company did not do, but, on the contrary, permitted the Graff Company to build up a business upon the reputation of the latter company. Now to permit the Cook Company to register the mark, upon the basis of its exclusive right to use it, would be inequitable and violative of the underlying purpose of the Trade-Mark Act. See Hanover Milling Co. v. Metcalf, 240 U. S. 403, 36 S. Ct. 357, 60 L. Ed. 713. The decision is reversed. Reversed.

Appeal from Commissioner of Patents. Application by Lucien Levy for patent. From decision rejecting certain claims, applicant appeals. Reversed.

W. R. Ballard, of New York City, and L. H. Sutton, of Washington, D. C., for appellant.

T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Jus

tices.

ROBB, Associate Justice.

Appeal from a decision of the Patent Office rejecting claims numbered 26 to 35, inclusive, in appellant's application. Claim No. 32 is sufficiently illustrative and is here reproduced: "32. The method of receiving and amplifying high frequency oscillations whereby the incoming energy is utilized to produce oscillations of a different locally predetermined high frequency which are then amplified and the resultant energy utilized to produce oscillations of a second different, locally determined, high frequency, which are then amplified, detected, and indicated."

These claims were copied from the patent to Armstrong, No. 1,342,885, filed February 8, 1919. As the present application was filed August 12, 1918, it is apparent that, if there was interfering subject-matter, the Armstrong patent was inadvertently issued.

[1] The Assistant Commissioner ruled that Armstrong had in mind the employment of very high frequency, and he therefore read that limitation into the claims. But, over and over again, we have ruled that claims must be given the broadest interpretation which they reasonably will support, and that a party will not be permitted to narrow his claims to suit the exigencies of a particular situation. Miel v. Young, 29 App. D. C. 481; Lindmark v. Hodgkinson, 31 App. D. C. 612; Cox v. Headley, 49 App. D. C. 341, 265 F. 981. The party who states his claims before the Patent Office in broad language is not in a position, when thrown into interference, to read limitations into them. The reason is obvious. If he has asked too much, he may reform his claims in an appropriate proceeding. When he takes claims broader than his invention, however, he thereby is enabled unduly to harass the public.

The Examiners in Chief, in their first decision, had no difficulty in finding that applicant's disclosure was sufficiently broad to entitle him to make these claims, and their later decision was based upon a ruling in

"The

another case, which they conceived to be in conflict with their earlier decision here. In the earlier decision they said: Examiner further holds that the claims, closure, are anticipated by the prior art. if construed to read on appellant's disHowever, it appears from the Examiner's that some modification of the references at answer, as well as from appellant's brief, least is essential in order to literally meet the terms of the appealed claims, and it further appears from a comparison of Levy's disclosure with that of Armstrong that their constructions, so far as the claims here under consideration are concerned, are substantially the same, and are inherently capable of the same uses.'

In his opinion the Assistant Commissioner said that, "notwithstanding the small change necessary to adapt applicant's apparatus to carry out Armstrong's method, it is believed applicant lacks a disclosure of a conception of that method."

[2, 3] It appearing that the Assistant Commissioner failed to give these claims the broad interpretation of which they reasonably were capable, and that when so interpreted they probably would have been allowable to the applicant, we follow our usual course and resolve any doubt in applicant's favor.

The decision is reversed.
Reversed.

STRAUGHAN v. METROPOLITAN R. CO. (Court of Appeals of District of Columbia. Submitted November 6, 1924. Decided December 1, 1924.)

No. 4093.

Dismissal and nonsuit 81(3)-Motions to open up judgment of nonsuit and order refusing to vacate judgment after lapse of 35 years held properly denied.

Plaintiff's motions for writ of inquiry and for judgment of fraud, wherein he sought to open up judgment of nonsuit for want of prosecution and order refusing to vacate such judgment after lapse of 35 years after entry of such judgment and order, held properly denied because of lapse of time.

of Columbia. Appeal from Supreme Court of District

Action by Charles W. Straughan against the Metropolitan Railroad Company. Judg. ment of nonsuit for want of prosecution. From an order denying his motions for writ of inquiry and for judgment of fraud, plaintiff appeals. Affirmed.

petition for a writ of mandamus to compel the Commissioner of Pensions to restore her name to the pension roll and påy her alleged accrued pension.

Appellant's husband, a Civil War veteran, died in 1895. In 1896 she was granted a pension as his widow. In 1897 it was brought to the attention of the Pension Bureau that appellant had brought herself within the provisions of the Act of August 7, 1882 (22 Stat. 345), providing that "the open and notorious adulterous cohabitation of a widow who is a pensioner shall operate to terminate her pension from the commencement of such cohabitation." Section 2 (Comp. St. § 8989). A preliminary investigation was made, and it is contended that appellant thereupon was duly served with notice to show cause why her name should not be dropped. Within the 30 days allowed, a showing was made, although appellant now contends that such showing was not authorized by her.

In

The Commissioner weighed the evidence, and found that it justified the termination of appellant's pension, and on August, 11, 1897, an order to that effect was duly entered. Thereafter appellant's minor children were pensioned, payment being made to their guardian and not to appellant. These payments terminated in 1903. 1908 appellant filed a series of petitions for review and an application for restoration, all of which were rejected. Thereupon, in 1919, the petition herein was filed. The trial court found that appellant had due notice of the proceeding which resulted in the discontinuance of her pension.. This finding was so clearly justified by the record that we adopt it without discussion.

[1, 2] It is apparent from the foregoing statement that the judgment below was correct. Appellant having been accorded an opportunity to be heard, the most that can be claimed is that the department erred in its conclusions of fact. It is axiomatic, however, that a writ of mandamus will not serve the purpose of an appeal; in other words, that the writ cannot be converted in to a writ of error. The department having had jurisdiction of the party and the subject-matter, its determination is not subject to review by mandamus. Donner Steel Co. v. Interstate Commerce Commission, 52 App. D. C. 221, 285 F. 955; Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 23 S. Ct. 698, 47 L. Ed. 1074; Hall v. Payne, 254 U. S. 343, 41 S. Ct. 131, 65 L. Ed. 295. Judgment affirmed, with costs. Affirmed.

AMERICAN DRUGGISTS' SYNDICATE v.

UNITED STATES INDUSTRIAL
ALCOHOL CO.

(Court of Appeals of District of Columbia. Submitted November 17, 1924. De

cided December 1, 1924.)

No. 1692.

1. Trade-marks and trade-names and unfair competition 44-Opposer need not have similar trade-marks to justify opposition.

Opposer need not have similar trade-mark to justify opposition, but it is sufficient that similar word has been used as trade-mark prior to adoption of mark by applicant. 2. Trade-marks and trade-names and unfair competition 43-Word "Al-Kol" held not registerable as trade-mark for alcohol prepa. rations for massage.

Word "Al-Kol" held not subject to registration as trade-mark to be used on alcohol preparations for massage, being merely a phonetic spelling of and confusingly similar to descriptive word "alcohol," used by opposer on goods possessing similar descriptive qualities.

Appeal from the Commissioner of Pat

ents.

Application by the American Druggists' Syndicate for registration of trade-marks, opposed by the United States Industrial Alcohol Company. From a decision of the Commissioner of Patents, sustaining opposition, applicant appeals. Affirmed.

W. E. Warland, of New York City, for appellant.

Arthur Wright, of New York City, for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

VAN ORSDEL, Associate Justice. This is a trade-mark opposition, resulting from the application by appellant for the registration of the word "Al-Kol" as a trademark to be used on alcohol preparations for massage, containing 92.5 per cent. alcohol. Appellee company filed its opposition to the registration of the mark on the ground that the word "Al-Kol" is merely a misspelling of the word "alcohol," and that the mark "Al-Kol," if granted, would conflict with the right of the opposer to the use of the word "alcohol," associated with and upon various products placed upon the market by it, particularly compositions containing alcohol which are used for bathing and massaging, and other external uses, which it is alleged it has manufactured and sold in large quantities since February,

1921.

[1] The contention that the opposer has no standing in an opposition proceeding to