vincingly established that one party is the prior inventor of the broad subject-matter of that improvement, the more specific counts should be interpreted in the light of the general disclosure. While no drawing accompanied Burt's provisional specification, he did say that— the sleeve is slightly longer than the full length of the cylinder, the extra length projecting beyond the lower or outer end of the cylinder itself where it is provided with a pin, projecting from and jointed to its outer circumference, which pin is engaged by a crank disk, or the like. In his American application Burt describes the crank-pin as having Its projecting outer end, hinged to the ears aforesaid on the lower end of the sleeve, but having in mind that these specifications are addressed to those skilled in the art, it would be giving the word "jointed " in the British specification a strained and unnatural interpretation, we think, to hold that it meant anything other than a hinge-joint. Of course, a rigid joint would have made impossible the desired motion of the valve-sleeve. Giving the word "jointed" the meaning which it would convey to any one familiar with the art, we have the hinge-pin which connects the crank-pin to the valve-sleeve. In other words, the statement in Burt's provisional specification that the crank-pin is jointed to the valve-sleeve and the disclosure as to how the valve-sleeve is to move when the crank-pin is actuated by the crank-disk, is a sufficient disclosure of the pin to which the Commissioner refers. It will not be denied that a hinge-joint is a well-known device, and, in employing such a joint, Burt disclosed a pin projecting eccentrically and longitudinally from said sleeve, for the hinge-joint pin is such an element. The decision is affirmed as to count 2 and reversed as to count 3. [Court of Appeals of the District of Columbia.] BORDEN'S CONDENSED MILK COMPANY v. EAGLE MANUFACTURING COMPANY. Decided December 3, 1917. 247 O. G., 245; 47 App. D. C., 191. 1. TRADE-MARKS-OPPOSITION. Court refused to consider evidence of registration that was not offered in evidence and brought to the attention of the Patent Office tribunals. 2. SAME DIFFERENT CLASS OF GOODS-ICE-CREAM CONES AND DAIRY PRODUCTS. Held that a trade-mark for ice-cream cones does not come in competition with a similar trade-mark for dairy products. Mr. W. D. Edmonds for the appellant. Mr. E. T. Fenwick and Mr. L. L. Morrill for the appellee. ROBB, J.: This is a trade-mark opposition proceeding in which the Patent Office dismissed appellant's opposition to the registration by the appellee of of the word "Eagle" as a trade-mark for ice-cream cones. The case was heard upon an agreed statement of fact, and where such an agreement has been entered into the case must be determined in the light of it. (District of Columbia v. Lee, 35 App. D. C., 341.) Turning to the statement in the present case we find that appellant and its predecessors for many years have used the trade-mark "Eagle" on dairy products, comprising condensed milk, evaporated milk, milk, cream, evaporated cream, buttermilk, and compounds of milk and a food product as, for example, malted milk and condensed coffee. In 1905, a date long subsequent to the adoption and use by appellant, the appellee adopted it, as a trade-mark on ice-cream cones. These cones are a bakery product consisting of a dough, made wholly without milk or any dairy product, and are used as containers for ice cream. In the agreed statement it was stipulated that copies of all certificates of registration of trade-marks "necessary or desirable in this proceeding" might be offered and marked in evidence. Attached to appellant's brief is a copy of a registration on June 17, 1913, of the word "Eagle" as a trade-mark for ice cream. In this registration it is alleged that the mark has been used since November 18, 1912. We can not consider this registration. In the first place, it was not offered in evidence and brought to the attention of the Patent Office, since the Examiner of Interferences states that opposer has not shown that it has ever used the mark "Eagle" on ice cream; it has not even alleged that it has made or sold ice cream. The Assistant Commissioner in his decision said: The opposer not only does not deal in ice-cream cones, but this record does not indicate that it deals in ice cream itself. The stipulation to which we have referred in the agreed statement of fact was not intended to broaden the scope of the issue. Obviously, the registrations there referred to were intended to be limited to the specific issues agreed upon. Moreover, since appellee adopted its mark in 1905 and appellant, according to the registration referred to, did not commence to use the word as a trade-mark for ice-cream until seven years later, it acquired no rights thereby. The sole question to be determined, therefore, is whether the use of the mark by appellee on ice-cream cones and the use of the same mark by appellant on the dairy products heretofore mentioned will be likely to cause confusion. We agree with the Patent Office that it will not. In Borden Ice Cream Co. v. Borden's Condensed Milk Co. (201 Fed. Rep., 510) the Circuit Court of Appeals for the Seventh Circuit ruled that the former company, which made commercial ice-cream, did not come into competition with the latter company which sold dairy products, even though both used the same trade-mark. There is too much difference between dairy products and ice-cream or ice-cream cones to make applicable the rule announced in Simplex Co. v. Gold Car H. & L. Co. (C. D., 1915, 100; 213 O. G., 1117; 43 App. D. C., 28), Fischbeck Soap Co. v. Kleeno Mfg. Co. (C. D., 1915, 158; 216 O. G., 663; 44 App. D. C., 6), and Canton Culvert & Silo Co. v. Consolidated Car Heating Co. (C. D., 1916, 177; 226 O. G., 1799; 44 App. Dec., 491), to the effect that the owner of a trade-mark will not be unduly restricted in the legitimate and natural extension of his business by the registration of the mark to another. The decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] FIELD et al. v. COLMAN. Decided December 3, 1917. 247 O. G., 246; 47 App. D. C., 189. 1. JURISDICTION-COURT OF APPEALS OF THE DISTRICT OF COLUMBIA, This court is without jurisdiction to entertain an appeal in an interference case except from a judgment of priority. 2. SAME-SAME-MOTION TO DISSOLVE. An appeal to this court involving the sole question of whether the decision of the Patent Office tribunals on a motion to dissolve an interference should be sustained or denied will not be entertained. Mr. I. U. Townsend for the appellants. Mr. L. L. Miller, Mr. L. S. Bacon, Mr. J. H. Milans, Mr. L. B. Smith, and Mr. W. Orison Underwood for the appellee. PER CURIAM: This is an appeal from the Commissioner of Patents in an interference proceeding affirming the decision of the Board of Examinersin-Chief, which, in turn, affirmed the decision of the Primary Examiner dissolving the interference. A motion to dismiss has been interposed, on the ground that we are without jurisdiction to entertain the appeal, because there was no judgment of priority entered by the Commissioner. Not only was there no judgment of priority entered by the Commissioner, but such a judgment could not have been entered, since the case was appealed through the various tribunals of the Patent Office upon the sole question of whether the motion to dissolve the interference should be sustained or denied. At no stage of the proceedings was the question of priority tried or determined. An order sustaining a motion to dissolve an interference disposes of the interference, and leaves nothing on which to base a judgment of priority.. (Carlin v. Goldberg, C. D., 1917, 128; 236 O. G., 1222; 45 App. D. C., 540.) We have held in many cases that this court is without jurisdiction to entertain an appeal in an interference case except from a judgment of priority. (In re Fullagar, C. D., 1909, 270; 138 O. G., 259; 32 App. D. C., 222; Cosper v. Gold, C. D., 1910, 282; 151 O. G., 194; 34 App. D. C., 194; Carlin v. Goldberg, supra.) The motion to dismiss the appeal is sustained. Dismissed. [Court of Appeals of the District of Columbia.] IN RE THE PAGE COMPANY. Decided December 3, 1917. 247 O. G., 246; 47 App. D. C., 195. 1. TRADE-MARKS-TITLE OF A BOOK NOT REGISTRABLE" POLLYANNA." Where the word "Pollyanna" is the name of a particular book in a series consisting at present of two books, clearly the word is descriptive, and as such unregistrable. 2. SAME PUBLICATIONS-MUST NOT BE THE NAME OF ANY ONE OF A SERIES. Undoubtedly a trade-mark may be registered for a series of literary publications; but it must be arbitrary and not merely the name of any one or more of the series. 3. TRADE-MARK LAW-NOT TO CONFLICT WITH COPYRIGHT LAW. The trade-mark law is not intended to conflict with or extend the copyright law. The owner of a copyright enjoys the exclusive right as long as the copyright continues, and when it expires the privilege expires and the use of the descriptive name becomes publici juris. Mr. P. B. Turpin and Mr. J. K. Brachvogel for the appellant. VAN ORSDEL, J.: This appeal is from a decision of the Commissioner of Patents refusing registration of the word "Pollyanna " as a trade-mark for a series of books. The record discloses that the series of books consists of but two, the title of one being "Pollyanna" and the other "Pollyanna Grows Up." It may be inferred from the record that other volumes are to follow, and it is insisted that the series should be known as the "Pollyanna Series." It will be observed that "Pollyanna" is the name of a book, not an arbitrary mark to designate a series of publications, each bearing its individual title. In this respect the word is clearly descriptive. It is the name of a particular book, and the public has no way of describing the book but by the use of the name. Undoubtedly, a trade-mark may be registered for a series of literary publications, but it must be arbitrary, and not merely the name of any one or more of the series. The rule is well illustrated in the note by Mr. Rowland Cox to Clemens v. Belford (14 Fed. Rep., 728; Cox, Manual, 685), quoted with approval in Hopkins on Trade-Marks (sec. 85), as follows: Thus the term "Old Sleuth Library was distinctly arbitrary, and never the name of a particular book or literary production, and for this reason it was in an accurate sense a trade-mark, and must continue to be as long as the publication was continued. But if the publication of the periodical were discontinued for a period of years, the name would cease to be arbitrary and take its place in literature as indicating a definite collection of articles, pictures, etc., and as soon as it acquired that settled meaning, it would, in the absence of copyright, become publici juris. The trade-mark law is not intended to conflict with or extend the operation of the copyright law. If a copyright is taken for a book or particular publication, the owner of the copyright enjoys the exclusive right to the use of the name as long as the copyright continues; but, when it expires, the privilege expires and the use of the descriptive name becomes publici juris. In the Britannica case (Black et al. v. Ehrich et al., 44 Fed. Rep., 793) Judge Wallace stated the rule after expiration of copyright, as follows: Neither the author nor the proprietor of a literary work has any property in its name. It is a term of description, which serves to identify the work; but any other person can with impunity, adopt it, and apply it to any other book, or to any trade commodity, provided he does not use it as a false token, to induce the public to believe that the thing to which it is applied is the identical thing which it originally designated. If literary property could be protected upon the theory that the name by whch it is christened is equivalent to a trade-mark, there would be no necessity for copyright laws. Clearly, the word "Pollyanna," being the title of the first volume of the series, is descriptive, and, as such, unregistrable. The decision of the Commissioner of Patents is right, and, therefore, is affirmed. The clerk is directed to certify these proceedings as by law required. Affirmed. [Court of Appeals of the District of Columbia.] BOSTON RUBBER SHOE COMPANY V. ABRAMOWITZ. Decided December 3, 1917. 247 O. G., 247; 47 App. D. C., 199. 1. TRADE-MARKS-INTERFERENCE- -"HUB." On review of the record Held that the prior registration and use of the Boston Rubber Company's mark "Hub" on particular kinds of footwear |