2. SAME-SAME-PREFIX "MENTHO" NOT A DISTINCTION. The prefix "Mentho" does not render the marks dissimilar. Moreover, it might be printed to give especial prominence to the word "Listine." Mr. George Ramsey and Mr. Geo. P. Burleigh for the appellant. VAN ORSDEL, J.: The Mentho-Listine Chemical Company, of Houston, Tex., applied for the registration of the word "Mentho-Listine" as a trade-mark for mouth-wash and tooth-powder. Opposition to the registration was interposed by the Lambert Pharmacal Company, a Missouri corporation, on the ground that it is the owner of a registered trademark consisting of the word "Listerine," which it has used as a trademark for tooth-powder since 1881, and that there is such a similarity between the words "Listerine" and "MenthoListine" that it is calculated to confuse the ordinary purchaser. From an order of the Commissioner of Patents dismissing the opposition and adjudging applicant's mark entitled to registration, this appeal was taken. It is agreed that the goods on which the marks are used are the same, and that the only question before the court is whether the marks are so similar as to be liable to create confusion in trade. Passing over the possible non-registrability of the mark because it is the name of the applicant company, we will dispose of the case on the single question of the deceptive similarity of the marks. The case is ruled by in re Barrett Mfg Co. (C. D., 1911, 356; 167 O. G., 513; 37 App. D. C., 111), where the word "Creo-Carbolin" was held to be deceptively similar to the word "Carbolineum." It was there held that the prefix "Creo" did not render the marks dissimilar, and the same is here true of the prefix "Mentho." Besides, there would be nothing to control the manner in which the prefix might be printed so as to give especial prominence to the word "Listine." Where there is doubt it should be resolved in favor of the protection of the public. As was said in the case of Lambert Pharmacal Co. v. Bolton Chemical Corp. (219 Fed. Rep., 325), where the court was considering whether the trade-mark "Listogen" was deceptively similar to "Listerine: " Of course, the burden of proof always rests upon the moving party, but having shown the adoption of a similar trade name, arbitrary in character, I cannot see why speculation as to the chance that it will cause confusion should be at the expense of the man first in the field. He has a right to insist that others in making up their arbitrary names should so certainly keep away from his customers as to raise no question. The decision of the Commissioner of Patents is reversed and the clerk is directed to certify these proceedings as by law required. Reversed. [Court of Appeals of the District of Columbia.] Decided January 7, 1918. 247 O. G., 965; 47 App. D. C., 251. (Memorandum opinion.) 1. COURT OF APPEALS OF THE DISTRICT OF COLUMBIA-RULES ARE NECESSARY. Rules are necessary to the orderly and expeditious despatch of business. Practitioners are conclusively presumed to know the rules, and if they fail to observe them then they and their clients must bear what follows, except where they are excused by cogent reasons. 2. SAME RULE XXI, SECTION 2, NOT WAIVED. The assembly of affidavits that could not be considered by the Court in reviewing a decision of the Commissioner rendered before they were filed Held insufficient to excuse the delay in not taking the appeal within forty days allowed by Rule XXI. Mr. F. W. Winter for the appellant. SMYTH, C. J.: This is an application to reinstate an appeal which was dismissed because not taken within the forty days allowed by Rule XXI governing appeals from decisions of the Commissioner of Patents. The applicant earnestly urges in his brief that the case should be restored to the docket, and for reasons assigns: (a) that he intended to take an appeal and notified the Commissioner of this intention; (b) that he was endeavoring to procure certain affidavits to be filed in the Patent Office after the Commissioner's decision; and (c) that he had inadvertently overlooked the requirement of the rule. An intention to appeal does not constitute an appeal, or even a step in that direction. If the applicant had done something, though imperfectly, in the way of perfecting his appeal, he might have come within the decision in Alaska Gold Mining Co. v. Keating (116 Fed. Rep. 561), strongly relied upon by him, but he did not. The affidavits which he was assembling could not, of course, be considered by us in reviewing a decision of the Commissioner rendered before they were filed; they were immaterial. If the fact that he overlooked the rule formed a sufficient ground for excusing his delinquency, we might as well abolish the rules, and this we are unwilling to do. They are necessary to the orderly and expeditious despatch of business. We find they serve that purpose, and they must be enforced. Nearly every week, one or more applications are made to us to relieve parties from the consequence of their failure to observe them. The most trivial excuses are offered, at times. We are compelled to deny most of the applications. This is not a pleasant duty, and we would like to be relieved from it, which can easily be done by attorneys giving heed to the rules. Practitioners at this bar are conclusively presumed to know the rules, and if they fail to observe them, they and their clients must bear what follows, except where they are excused by cogent reasons. The application is denied. [Court of Appeals of the District of Columbia.] RICE-STIX DRY GOODS COMPANY V. THE SCHWARZENBACH, HUBER COMPANY. Decided January 7, 1918. 247 O. G., 966; 47 App. D. C., 249. 1. TRADE-MARK INTERFERENCE-TITLE-ABANDON MENT OF MARK. The appellant claims its title by assignment in 1914 from one D., who is supposed to have succeeded to it upon the dissolution of a partnership be tween him and one S., which partnership had used the mark in 1904; but since D. did not continue the business of the firm or the use of the mark after 1905 he had abandoned it, and in 1914 his assignment of it was a nullity. 2. TRADE-MARKS-USE OF MARK-METHOD OF MARKING. 66 It is immaterial that in the appellee's use of its mark it merely wrote the mark in pencil on the paper wrapper of the goods, so long as the mark conveyed to the purchaser knowledge of the origin or source of manufacture of the goods to which it is applied." Mr. James A. Carr for the appellant. Mr. E. T. Fenwick and Mr. L. L. Morrill for the appellee. VAN ORSDEL, J.: This is a trade-mark interference, in which the contending parties are each claiming the prior right to the use of the word "Society” as a trade-mark for silk piece goods. Appellant, a Missouri corporation, was granted registration of the mark in January, 1915. Appellee, a New Jersey corporation, is seeking registration of the mark, and, from the decision of the Commissioner granting its request, this appeal was taken. Both the mark and the use are the same. The sole question is, which one used it first in such a manner as to constitute, under the law, a trade-mark use? Appellant's registration of the mark establishes prima facie ownership, and places the burden upon appellee as the junior party. The use by appellant, prior to July 1, 1914, is dependent upon a purchase of the mark from one Duncan. Witnesses were produced to show use of the mark by the firm of Duncan & Stenz in 1904 and 1905. Duncan and Stenz dissolved partnership in the latter part of 1905, and ceased to use the mark thereafter. Disposing of the business of the firm, the mark was turned over to Duncan, but Duncan in no way continued the business of the firm. In 1914 Duncan assigned the mark to appellant corporation. The property right of Duncan & Stenz in the mark was dependent upon the continuous use of the mark in their business. When they ceased to continue the business, the mark was abandoned, and was subject to appropriation by any one. It follows that the assignment of the mark in 1914 was a mere nullity, so far as establishing an earlier use by appellant. Duncan & Stenz had no property right in the mark separate and apart from their busiA transfer of the business could have carried the mark with it, and the purchaser would succeed to all the rights of the vender in the mark. But when they abandoned their business, the mark became abandoned. (Eiseman v. Schiffer, 157 Fed. Rep., 473.) It is clear, therefore, that July 1, 1914, is the earliest date available for appellant. ness. 66 We think appellee has established a trade-mark use of the word Society" on silk goods since 1912. Appellant, however, contends that appellee's use amounted to nothing more than a grade-mark, since the mark was written on the wrapper with a pencil, instead of being printed on the label, and was appplied only to a particular style or weave of silk goods. Whether the mark be printed or written on the goods, or on the container in which the goods are sold, is immaterial, so long as the mark conveys to the purchaser knowledge of the origin or source of manufacture of the goods to which it is applied. (Hopk. on T. M., p. 65.) The evidence conclusively shows, not only such a use of the mark by appellee company, but that it was regarded as a trade-mark use by the trade generally. The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed. [Court of Appeals of the District of Columbia.] CHAS. A. SCHIEREN COMPANY v. WHITTEMORE BROS. CORPORATION AND SULLIVAN. Decided January 7, 1918. 247 O. G., 966; 47 App. D. C., 247. 1. TRADE-MARKS-USE OF MARK-APPLYING TO DIFFERENT GOODS. The appellee, who prevailed in the interference, used the term "Duxbak" as a mark for a liquid dressing for shoes. It dealt in dressing per se. The appellant did not use the term "Duxbak" as a trade-mark for leatherdressing by marking it on leather belts treated with the dressing. It used the mark for belts and not to distinguish the dressing, and by this use it cannot extend the mark to the dressing. 2. SAME-SAME-SHIPPING TO A BRANCH HOUSE. No statutory use of a mark is effected by shipping a barrel per year of a liquid dressing to a branch house abroad, where the dressing was to be applied to belts. Mr. F. B. Brock for the appellant. Mr. F. F. Crampton for the appellee. VAN ORSDEL, J.: This appeal is from the Commissioner of Patents in a trademark interference, in which appellant Chas. A. Schieren Company, a New York corporation, appellee Whittemore Bros. Corporation, a Massachusetts corporation, and one Sullivan were claiming the word "Duxbak" as a trade-mark for leather-dressing. Sullivan took no part in the case, and has dropped out, this appeal being between the Schieren Company and Whittemore Bros. Corporation. The Commissioner awarded registration to Whittemore Bros. Corporation, from which this appeal was taken. It appears that appellees have used the mark continuously since. February, 1915, and through its predecessor, the Raven Gloss Manufacturing Company, since March, 1908, as a trade-mark for paste or liquid dressing for shoes. About the same date (1908) the Schieren Company alleges that it adopted the word "Duxbak" as a trade-mark for dressing for fabrics, including leather belts. While the mark is the same, the controlling feature of the case resides in the distinct character of the goods of the contending parties. As was said by the Assistant Commissioner: The Schieren Company does not deal in leather dressing per se, whereas Whittemore Bros. Corp. deals in nothing else. Appellant puts its mark on leather belts treated with its dressing, but the mark is used on the belt, and not to distinguish the dressing. Appellee puts the mark on a dressing for shoes and leather goods, and the mark is used to distinguish the dressing, not the goods on which the dressing is used. No interstate use of its dressing was shown by appellant, its trade being confined to the goods upon which the dressing was used. It does appear that it shipped about one barrel of the dressing per year, the mark being stenciled on the barrel-heads, to a branch house in Germany, for use there in finishing and repairing belts. This, however, does not establish such a use of the mark as the law requires to secure registration. This shipment to Germany amounted only to a transfer of the dressing from one hand to the other. The dressing was not made to be put on the market as such, but to be used as an element in the manufacture of the belts on which the mark was used. The use of the mark as a trade-mark for belts is |