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in the same general class of merchandise as the goods upon which it had used its registered trade-mark; and that the use of the word proposed by the Thomas Company would lead to confusion. The parties stipulated that the Aeolian Company had made and sold organs and playing mechanisms therefor since prior to 1894; pianos and playing mechanisms there for since prior to 1895; and phonographs since 1914; also that it had applied the trade-mark "Orchestrelle " to

organs comprising means for manual operation as well as automatic operation through perforated music sheets and has applied the same trade-mark * to said music sheets;

and that those instruments "bearing its trade-mark have been widely and largely advertised and sold" throughout the United States.

Would the use of "Orchestrola " by the Thomas Company, in the language of the statute

be likely to cause confusion or mistake in the mind of the public, or deceive purchasers? (34 Stat., L., 1251; 37 Stat. L., 649.)

If so, it should not be registered. This court has frequently held that, because the field of selection is so very wide, practically unlimited, there is no good reason why a person should be permitted to select a trade-mark similar to one already in use by another engaged in a business of the same general nature, where the likely effect would be to lead to confusion concerning the goods themselves or their origin. (Wayne County Preserving Co. v. Burt Olney Canning Co., C. D., 1909, 318; 140 O. G., 1003; 32 App. D. C., 279; Phoenix Paint and Varnish Co. v. John T. Lewis & Bros. Co., C. D., 1909, 303; 139 O. G., 990; 32 App. D. C., 285; Kaut-Reith Shoe Co. v. International Shoe Co., C. D., 1917, 162; 239 O. G., 939; 45 App. D. C., 545; Goodrich Drug Co. v. Cassada Mfg. Co., C. D., 1917, 133; 237 O. G., 918; 46 App. D. C., 146.) In the Goodrich case it was held that "Velvetina" applied to the same character of goods as "Velvelite " would be likely to cause perplexity in trade and therefore was not registerable. Assume that a person who had a good opinion derived from use or otherwise of an automatically operated organ produced by the Aeolian Company and marked "Orchestrelle" desires to purchase a phonograph (the Aeolian Company, as we have seen, now produces phonographs) and is shown one marked "Orchestrola," would he not be likely to think it was produced by the same company as produced the organ and buy it on that account? Perhaps if the two instruments were placed side by side, one marked "Orchestrelle" and the other "Orchestrola," he would be able to detect the difference between the marks; but where they were not so placed and he was compelled to rely upon his memory only, unless he pos

sessed one remarkably accurate in its impressions-the law considers the ordinary, not the extraordinary in cases like this-we believe he would not distinguish the one from the other. To be sure, they have points of differences, but the points of resemblances dominate and give character to the terms. (Swift v. Dey, 4 Rob., N. Y., 611; Florence Mfg. Co. v. Dowd, 178 Fed. Rep., 73.) Merely "arguable differences" are not enough to save from condemnation the encroaching mark. (Paris Medicine Co. v. Hill, 102 Fed. Rep., 148.)

We entirely agree with the Assistant Commissioner that the two words are "confusingly similar" and would be likely to mislead not only as to the goods themselves but also as to their source of manufacture, and hence his decision is affirmed.

Affirmed.

[Court of Appeals of the District of Columbia.]

THOMPSON v. STORRIE.

Decided February 4, 1918.

249 O. G., 506; 47 App. D. C., 383.

1. INTERFERENCE-PRIORITY-RES ADJUDICATA,

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The testimony in another interference between the same parties on same subject" adjudged to the appellee, being stipulated herein, “ tions of law and fact presented here (are) res judicata." 2. SAME-USELESS APPEAL.

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Where a case involving the same subject-matter and submitted on the same testimony had been decided in a former interference in favor of the appellee, we are at a loss to apprehend upon what theory of law the appellant has brought the cause here, thereby harassing the appellee and unnecessarily consuming our time."

Mr. H. A. Toulmin for the appellant.

Mr. A. F. Kwis and Mr. Robert Watson for the appellee.

SMYTH, C. J.:

This is an interference case involving an invention for a shockabsorber. Priority was awarded to William Storrie, the junior party, by all the tribunals of the Patent Office. No testimony was taken but the parties stipulated that the testimony in another case between the same parties comprehending the same subject should be used. The decision in that case was in favor of Storrie (C. D., 1917, 222; 245 O. G., 845; 46 App. D. C., 324) and is a dominant factor in this cause which the appellant makes no attempt to overcome, but ignores. It has made the questions of law and fact presented here res judicata. (Nalle v. Oyster, 36 App. D. C., 36, affirmed on this point in 230 U. S., 165; Southern P. R. Co. v. United States, 168 U. S., 1, 42, and cases cited.) In view of this we are at a loss to apprehend upon what theory

of law the appellant has brought the cause here, thereby harassing the appellee and unnecessarily consuming our time.

The Commissioner was right in awarding priority of invention to Storrie, and his decision is affirmed.

Affirmed.

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[Court of Appeals of the District of Columbia.]

IN RE KOHLER.

Decided February 4, 1918.

249 O. G., 1223; 47 App. D. C., 373.

1. PATENTABILITY-JUDGMENT OF THE PATENT OFFICE TRIBUNALS.

The concurrent judgment of the several tribunals of the Patent Office on the matter of patentable novelty "should not be overturned except where it is manifest that it rests on error."

2. SAME-SAME-RESOLVING DOUBTS.

While in case of doubt on the point of invention it should be resolved in favor of the applicant, yet "we are not permitted to doubt where the Patent Office tribunals are unanimous and there is nothing tending to show clear error on their part."

Mr. C. T. Milans for the appellant.

Mr. T. A. Hostetler for the Commissioner of Patents.

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Kohler asserts that he invented a sanitary bathtub with certain features disclosed in his claims of which there are eight. We give the first which is characteristic of the others:

An enameled iron bathtub provided with an integral enameled flat rim approximately rectangular in shape with one or more of the edges of the rim continuing downwardly to a plane near the bottom of the tub to form an inclosure integral with the tub and adapting the integral rim of the tub to be tiled into the floor and walls of a room.

All the tribunals of the Patent Office denied the patentability of the claims over the six references appearing on the record of the Patent Office. This placed a heavy burden on Kohler, for we have repeatedly held

that where patentable novelty has been denied by all the expert tribunals of the Patent Office, it is incumbent upon one appealing therefrom to make out a clear case of error in order to obtain a reversal. (In re Beswick's appeal, C. D., 1900, 294; 91 O. G., 1436; 16 App. D. C., 345; see also in re Smith's appeal, C. D., 1899, 313; 87 O. G., 893; 14 App. D. C., 181; Seeberger v. Dodge, C. D., 1905, 603; 114 O. G., 2382; 24 App. D. C., 476.

This is as it should be. The members of the different boards are specialists and their judgment should not be overturned except where it is manifest that it rests on error. This does not ignore the other rule that where there is doubt it should be resolved in favor of the applicant. (In re. Thomson, C. D., 1906, 566; 120 O. G., 2756;

26 App. D. C., 419.) We are not permitted to doubt where the Patent Office tribunals are unanimous and there is nothing tending to show clear error on their part. We have read the record carefully, and adopt this statement of the Assistant Commissioner:

Bathtubs of similar construction, with the entire exposed surface enameled, are old, as shown in the patent to Clifford, No. 1,116,015, Nov. 3, 1914. Applicant contends that it is invention to do away with the joint between the skirt and the top of the tub and to make a continuous enameled surface. The ⚫ patent to Stephenson, No. 1,020,324, March 12, 1912, however, shows a wash bowl in which there is a smooth, unbroken, enameled surface over the top edge and depending skirt, and it is suggested as the proper construction for a bathtub. The prior art therefore teaches the mechanic how to make the applicant's construction, and no invention is required.

The decision of the Assistant Commissioner rejecting all the claims of the applicant is affirmed.

Affirmed.

[Court of Appeals of the District of Columbia.]

LAUTENSCHLAGER v. GLASS.

Decided March 4, 1918.

249 O. G., 1223; 47 App. D. C., 443.

1. INTERFERENCE-PRIORITY.

Record reviewed and Held that priority was properly awarded to G.

2. SAME QUESTION OF PATENTABILITY NOT CONSIDERED BY COURT.

The question whether the patent involved in the interference was rightfully issued may not be raised on appeal.

Mr. F. J. V. Dakin for the appellant.
Mr. A. D. Salinger for the appellee.

ROBB, J.:

This interference is between an application filed by Lautenschlager on August 11, 1914, and a patent granted Glass July 7, 1914, on an application filed October 31, 1913, which was a division of an application filed May 15, 1913.

The invention relates to a method of folding the upper or inner edges of closed vamps and is expressed in five counts, of which the following, count 1, is sufficiently illustrative:

1. The method of finishing the edge of a vamp which consists in stitching the rear ends of the vamp together so that its upper edge will present an endless outline, cementing said edge for its entire length, and finally folding the edge in a step-by-step manner progressing from a given starting point entirely around said edge and back to the starting point.

The Examiner of Interferences and the Examiners-in-Chief awarded priority to Glass and Lautenschlager practically abandoned

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his appeal before the Assistant Commissioner, for that official in his opinion states:

Neither orally nor by brief has any attempt been made to show that the lower tribunals were in error in holding that Glass was entitled to the award of priority. No appeal was taken within the time set in the decision of the Examiners-in-Chief. The limit of appeal, however, was extended by the Commissioner in view of a petition brought in the companion interference No. 37,185. (Lautenschlager v. Glass, post, 162; 249 O. G., 1224; 47 App. D. C., 444.) The only purpose of taking the appeal seems to have been that an argument in the other interference might be based on the testimony in this interference.

The Assistant Commissioner thereupon affirmed the prior decisions.

In this court the sole question presented, according to the brief of counsel for appellant, is whether a prior application of Lautenschlager constitutes an anticipation of this invention; in other words, whether the patent was rightfully granted in view of the prior art. Such question, we have ruled, may not be raised here. (Slingluff v. Sweet, C. D., 1916, 224; 230 O. G., 659; 45 App. D. C., 302.) The decision is affirmed.

Affirmed.

[Court of Appeals of the District of Columbia.]

LAUTENSCHLAGER V. GLASS.

Decided March 4, 1918.

249 O. G., 1224; 47 App. D. C., 444.

INTERFERENCE-PRIORITY-EDGE-FOLDING MACHINE.

Where there is a unanimity of decisions in the Patent Office, Held that the burden is heavily upon the appellant to establish error.

Mr. F. J. V. Dakin for the appellant.

Mr. A. D. Salinger for the appellee.

ROBB, J.:

This is an appeal from concurrent decisions of the Patent Office tribunals awarding priority of invention to Glass.

The issue is expressed in three counts, of which the following, count 1, is sufficiently illustrative:

1. A machine for folding the edges of sheet material having, in combination, edge turning and loop-forming means, a hammer, and an anvil having its face disposed obliquely to the body portion of the work.

The earliest date claimed by Lautenschlager was March 21, 1913. Each of the three tribunals of the Patent Office has accorded Glass a prior date of conception and has found due diligence thereafter on his part. The question is purely one of fact and in such a case where, as here, there has been unanimity of decision in the Patent Office, the

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