Interferences was affirmed by the Examiners-in-Chief, and their decision became final on June 26, 1913, through the failure of Cornwall to appeal therefrom.

The application of Frickey was filed on April 1, 1912, after testimony had been taken in the former interference and while it was awaiting final hearing. A motion filed on the same date as the Frickey application to add his application, which it is admitted is owned by the assignee of the Cornwall application, to the former interference was denied by the Examiner of Interferences on the following grounds: First, that inasmuch as Frickey was familiar with the entire situation he should have filed his application at once, if he desired to contest the interference, and not have waited until proofs had been taken, and, second, because of Frickey's admission in his testimony and in his brief that he abandoned the invention or conceded priority in favor of Cornwall. A petition for a review of the decision of the Examiner of Interferences was denied by the Commissioner.

In the briefs filed on behalf of Frickey in response to the order to show cause he admits that the Cornwall and Frickey applications are owned by a common assignee and recognizes that as a general rule two applications owned by a common assignee cannot be put in successive interferences with a third party; but he contends that the invention in issue was disclosed by Frickey to Ogden and that this disclosure could not be urged in behalf of Cornwall in the prior interference.

This case is believed to fall within the doctrine of res adjudicata set forth in ex parte Temple and Goodrum, (C. D., 1912, 70; 176 O. G., 526.) As stated in that case

This doctrine of res adjudicata is applied by the courts for the salutary purpose of preventing a successful party to litigation being vexed with subsequent litigations by the same party who contested the prior suit or by those in privity with him over the same cause of action.

Although the Frickey application was not filed until testimony had been taken in the former interference, it appears from the record therein that prior to the declaration of that interference the assignee of the Cornwall application had control of the Frickey invention; that it was familiar with the entire situation and knew of the filing of the Ogden application; that the question whether an application should be filed in the name of Cornwall or Frickey was considered, and that it was decided to file the application in the name of Cornwall, as he was thought to have made the invention prior to Frickey. (Cornwall's record, pp. 14 and 102.)

Having control of the inventions of both Frickey and Cornwall and having had the opportunity of filing the Frickey application in time for it to be included in the interference, it is held that the

assignee is now estopped from further contesting with Ogden the subject-matter of the interference based on the Frickey application. (Ex parte Temple and Goodrum, supra; Blackford v. Wilder, C. D., 1907, 491; 127 O. G., 1255; 28 App. D. C., 535; The New Departure Manufacturing Co. v. Robinson, C. D., 1913, 332; 188 O. G., 1055; 39 App. D. C., 504.)

The statement of counsel for Frickey that in the present interference he desires to show that Ogden derived his knowledge of the invention from Frickey does not bring this case outside of the ruling made in the case of ex parte Temple and Goodrum, supra, since the question of disclosure by one of the interferants to another, equally with that of priority in the dates of their original inventions, is involved in an interference proceeding.

The interference is dissolved upon the ground that the right of the common assignee of the Cornwall and Frickey applications, who is the real party in interest, to have a patent granted upon the Frickey application, containing the claims of the issue, is res adjudicata by reason of the adverse decision in the Cornwall v. Ogden interference, and the files are remanded to the Primary Examiner for further action in accordance with this decision.

THE REYNOLDS & REYNOLDS COMPANY v. J. C. BLAIR COMPANY.

Decided January 6, 1914.

199 O. G., 308.

TRADE-MARKS—INTERFERENCE-PRIORITY-ABANDONMENT.

Where it appears that R. & R. began the use of the mark prior to B. and that from the time of adoption thereof sold tablets bearing the mark or kept such tablets in stock or kept on hand the plates for marking paper with this trade-mark and supplied the tablets whenever called for by customers, Held that the mark had not been abandoned and that priority was properly awarded to R. & R.

APPEAL from Examiner of Interferences.

TRADE-MARK FOR PAPER.

Mr. Horace L. Beall for The Reynolds & Reynolds Company. Messrs. A. C. Fraser & Usina and Messrs. Fraser, Turk & Myers for J. C. Blair Company.

NEWTON, Assistant Commissioner:

This is an appeal from a decision of the Examiner of Interferences awarding priority of use of the trade-mark "White House," for writing-paper, to The Reynolds & Reynolds Company.

There were formerly four parties to this interference; but since the J. C. Blair Company alone has appealed from the decision of the Examiner of Interferences the interference is a contest now between the J. C. Blair Company and The Reynolds & Reynolds Company.

The proofs of the J. C. Blair Company are very definite, satisfactory, and conclusive that the Blair Company adopted the "White House" trade-mark in the spring of 1901 and has used the mark continuously ever since. Their testimony on pages 43 to 47, 69, 70, 76, and 77 of their record shows this continuous use not only in domestic but in interstate commerce.

The proofs of The Reynolds & Reynolds Company are not so definite or satisfactory. Indeed, the main point of attack by the Blair Company now is that The Reynolds & Reynolds Company have abandoned their mark.

It cannot be seriously questioned but that The Reynolds & Reynolds Company began the use of the mark sometime before the Blair Company began its use of it. The Reynolds & Reynolds Company's exhibit catalogues for the years 1890 and 1893 and several of its witnesses show that The Reynolds & Reynolds Company kept "White House" tablets for sale during those years. The main question to decide is whether they have proven continuous use since the Blair Company began using the mark or have proven facts which negative the theory of abandonment of the mark.

The following excerpts from their proofs are taken as examples of the whole:

Whitmore, employed by The Reynolds & Reynolds Company for thirty-seven years, testifies:

Q. 8. How long, to your knowledge, has the Reynolds & Reynolds Company used the trade-mark" White House" and representation of the White House? A. About 22 years, as near as I can recall.

Q. 9. Then, as near as you can recall, the company has used this trade-mark since about the year 1890?

Objected to as leading.

A. About 1890 or 1892.

Stolz, the secretary and treasurer of The Reynolds & Reynolds Company, testifies:

Q. 25. Between the year 1893 and the year 1908, did your company continue to use the trade-mark shown in catalogue "Exhibit B "?

A. Yes, to the best of my ability [knowledge].

Q. 26. Do you know that ever between the years 1893 and 1908, the company discontinued the use of the trade-mark shown in catalogue "Exhibit B "? A. No.

*

Q. 31. Has the trade-mark "Exhibit A" been used continuously since 1908? A. No.

Q. 32. Did you use it in 1909?

A. Yes, sir.

Q. 33. Did you use it in 1910?

A. Yes, sir.

Q. 34. Did you use it in 1911?

A. Yes, sir, on an assortment line of tablets.

Q. 35. Are you using it now?

A. Have not put it on any tablets in 1912, up to the present time.

Q. 36. Do you intend to fill orders for this line of goods?

A. Yes.

*

X-Q. 61. In 1910 and 1911, did sales of White House tablets show a falling off? A. Yes, over the years 1908 and 1909.

X-Q. 62. About what were your sales of White House tablets in 1907?

A. About $30,000.

X-Q. 63. About what were the sales of White House tablets in 1908 and 1909 respectively?

A. 1908 about 12,000 and 1909 about 2,000.

Edwin S. Reynolds, vice-president and general manager of The Reynolds & Reynolds Company, testifies:

Q. 11. Did your company ever, so far as you are aware, discontinue the use of the trade-mark "White House" for any length of time?

A. We have never considered it as a discarded design.

X-Q. 19. Are you personally aware of the use of the "White House" trademark, on tablets, in each and every year, from 1892 to 1911, inclusive?

A. Since the adoption of the White House design, this particular tablet has been subject to sale, continuously.

66

X-Q. 20. Is it your personal knowledge that besides being subject to sale, tablets bearing the White House" trade-mark have been used and sold in the period mentioned?

A. They have been sold whenever ordered.

I cannot come to the conclusion urged by the Blair Company that these proofs show or even indicate abandonment of this mark by The Reynolds & Reynolds Company. These witnesses impress me as desirous of telling the exact truth and are guarded and careful in their statements and convince me that the truth about the use of the mark by The Reynolds & Reynolds Company is that it actually sold paper tablets or kept the paper tablets carrying the "White House" mark in stock most, if not all, of the time intervening between 1890 and the date of taking this testimony, or if there ever was a time when the sale was temporarily discontinued or the paper was not kept in stock with the mark on it the plates, etc., for marking the paper with this trade-mark were kept on hand and whenever a customer called for paper with this mark or brand it was supplied to him by The Reynolds & Reynolds Company.

I cannot conclude from this state of facts that Reynolds & Reynolds have ever abandoned the use of this trade-mark, and if there has been no abandonment priority should clearly be awarded to The Reynolds & Reynolds Company.

The decision of the Examiner of Interferences is therefore affirmed.

EX PARTE SEACOAST CANNING CO.

Decided December 26, 1913.

199 O. G., 617.

TRADE-MARKS" ARAB," FOR SARDINES-NOT GEOGRAPHICAL.

The word Arab" Held not geographical and properly registrable as a trade-mark for sardines.

ON APPEAL.

TRADE-MARK FOR CANNED SARDINES.

Mr. Samuel T. D. Jones for the applicant.

FRAZIER, First Assistant Commissioner:

This is an appeal from the refusal of the Examiner of TradeMarks to register a mark comprising the representation of an Arab upon a horse in a desert scene, surmounted by the word "Arab."

The refusal is based upon the ground that the word "Arab” is a geographical term and should either be removed from the drawing or disclaimed. The Examiner cites in support of his action a recent decision-ex parte U. H. Dudley & Company, (C. D., 1913, 128; 191 O. G., 586)—refusing registration of the word "Arab,” applied to dates, as either a descriptive term or misdescriptive. That decision, it is observed, does not hold the term "Arab" as a geographical term. Nor is it believed that such a holding in this case is correct. Applicant contends that instead of being geographical the word "Arab," in its primary sense, refers merely to a race of people, a typical representative of which appears in the picture. The Standard Dictionary defines the word as

a member of the Arabic division of the Semitic race sprung from Arabia and since the rise of Mohammedanism scattered in Europe, Asia and Africa.

The Century Dictionary contains a similar definition of the word

as

a native of Arabia or a member of the Arabic race now widely separated in Asia and Africa and formerly in southern Europe.

It is observed under these definitions that the primary sense of the word does not locate the race in Arabia, but scatters it through. parts of several continents. Nor is the word, in its ordinary meaning, the name of the country or any portion thereof.

It is noted that the word "Yankee" has been registered recently— No. 89,265, December 3, 1912; No. 92,794, July 29, 1913, and No. 93,342, September 9, 1913, and the words "Red Turk," No. 83,379, September 10, 1912.

All of these words, in my judgment, stand upon the same or similar basis as the word "Arab," and hence are free from the objection