in sound and appearance they are too near alike to allow the registration of one in view of the other, since the idea conveyed by the words is the same.

In considering infringement of marks, appearance, sound, and meaning must all be taken into consideration. If the words have the same meaning, even though they may appear very different or sound very different, they are held to infringe; as, for example, "Iwanta was held to infringe "Uneeda," (95 Fed. Rep., 135); but the present words have not only the same meaning but are similar in sound and should clearly be refused.

The decision of the Examiner of Trade-Marks must be affirmed.

EX PARTE BRADY.

Decided June 10, 1918.

253 O. G., 954.

1. TRADE-MARKS DESCRIPTIVE WORDS-"METALOID."

The word " Metaloid," as applied to a paste material for mending metal, Held to be not registrable, as it simply informs one that the paste is like a metal.

2. SAME-SAME-CORRECTNESS OF DESCRIPTION.

It makes no difference whether the mark actually describes the applicant's particular goods if it describes like goods of others.

ON APPEAL.

DRY POWDER AND A LIQUID TO BE USED TOGETHER IN REPAIRING LEAKS OR CRACKS IN LEAD OR IRON PIPES, ETC.

Mr. E. G. Siggers for the applicant.

CLAY, Assistant Commissioner:

On appeal the Examiner's refusal to register the word "Metaloid ” as a trade-mark for a paste material for mending metal, on the ground of descriptiveness, is affirmed. I think there can be no question that the alleged trade-mark simply informs one that the paste is like a metal, and this any other has the equal right to do. If a trade-mark is descriptive of metal mending-paste generally, I do not see how it makes any difference if it in fact describes falsely the particular paste this applicant has. There is nothing in the record to show that this paste is not like a metal, and manifestly the applicant might make it "like a metal" to-morrow if he chooses to do so. The vice of such marks is that they describe like goods of others; wherefore their registry would curtail the rights of others to free

use of the language. In the case of Adams-Jewel Co. (120 MS. Dec., 374) it was considered that there was not and never had been any actual thing which was described by the term "Plastic Fire Brick." Affirmed.

EX PARTE KAUPMANN.

Decided April 19, 1918.

254 O. G., 451.

1. DESIGNS-PATENTABILITY—INVENTION NECESSARY.

A design for a doll simulating a child and not substantially different from an ordinary doll Held unpatentable, as it did not call for anything like invention to produce it.

2. SAME-SAME-MUST DIFFER FROM OTHER DESIGNS.

The primary consideration in determining patentability in a design is whether it possesses a sufficiently different configuration from other designs. APPEAL from Examiners-in-Chief.

DESIGN FOR A DOLL

Mr. Percy B. Hills for the applicant.

NEWTON, Commissioner:

This is an appeal from a decision of the Examiners-in-Chief affirming an action of the Examiner of Designs finally rejecting the following claim:

The ornamental design for a doll, as shown.

There are no references. The drawings and the exhibits shown at the hearing represent a doll, which the Examiners-in-Chief admit is artistic, but hold that, being only an imitation of a living thing, it cannot be patentable.

They say:

In the present case, there is nothing below the head that may not represent any normal child. The hair is dressed in the prevailing fashion and, as stated, there is nothing in the face but the likeness of an ordinary child. If there had been some element of the grotesque or some deformity that would arrest and hold the attention, then we might find something patentable in the design; but as we find nothing but a clever and artistic representation of a child, with nothing to distinguish from the children one may see daily, we must hold the design to be lacking in invention.

This case raises the question what, if anything, is patentable as a design of a nude rubber doll in general shaped like a normal child? The Examiners-in-Chief call for something out of the ordinary in appearance

grotesque or with some form that would arrest and hold the attention.

They appear to follow that line of decisions holding, in effect, that imitation of any well-known thing cannot be patented as a

design. Hence a toy balloon shaped like a watermelon was held unpatentable. (Miller Rubber Co. v. Behrend, 242 Fed. Rep., 515. See also Denton et al. v. Fulda, 225 Fed. Rep., 537.)

The authorities hold, in effect, that there must be as much invention displayed in a design as in a mechanical patent. (Perry v. Hoskins, 111 Fed. Rep., 1002; ex parte Schraubstadter, C. D., 1906, 541; 120 O. G., 1167; 26 App. D. C., 331.)

This holding is vague, since the standard of measurement of invention in case of a design is entirely different from that of a mechanical case. For example, the invention displayed in a mechanical claim is frequently measured by the function performed; but this may be said never to be true in the case of a design. The soundrecord groove of Berliner, which was the same depth throughout, but cut with sidewise sinuations representing the variations of sound, was held patentable over the up-and-down record, varying in depth, of the Edison phonograph-record, (Victor Talking Machine Co. v. American Graphophone Co., 140 Fed. Rep., 860), because the needle would track the Berliner record without jumping out of the groove, whereas the Edison record required a feed-screw to keep the needle in the groove. The difference in the two inventions was a sidewise and equal-depth cut as distinguished from an up-and-down and varidepth gouged record; but the result was marked and practical, and it was on the result that the patentability was largely based.

In measuring patentability in a mechanical case we generally conclude, first, when the result is sufficiently new, even if the means are old, a claim should be granted; second, when the means are sufficiently new, even if the result is old, a claim should be granted; third, when the means and result both are new a claim should be granted; fourth, only when the means and result are old should a claim be refused; but no such considerations enter into the patentability of a design. The imaginative faculties of the mind produce designs, while the mechanical inventions are produced by the inventive faculties, and to compare the invention in a design to the invention in a mechanical case is similar to comparing the beauties of a picture to those of a machine.

But since the courts uniformly hold that under our design statute (sec. 4929, Rev. Stats.), there must be invention displayed to warrant patenting a design, how does this so-called "invention" manifest itself?

The so-called" invention " in a design is more similar to what might be termed the "invention" in a painting or statue than it is to the invention in a method or machine. Indeed, a statue or even a painting may be the subject-matter of a design patent, (Louis De Jonge & Co. v. Breuker & Kessler Co., 182 Fed. Rep., 150), and if a painting can be the subject-matter of a design patent why cannot a rubber doll,

even though it represents a natural object, if the lines, proportions, etc., manifest sufficient artistic merit on which to predicate invention?

I can compare this doll with other similar dolls and if I can see features which harmonize to produce the pleasing effect on my sense for the beautiful in this doll I see no reason for requiring, as the Examiners-in-Chief have done, that the grotesque or some deformity that would arrest and hold the attention should exist.

The primary consideration in determining patentability in a design is, does it possess a sufficiently-different configuration from other designs? (Williams Calk Co. v. Kemmerer, 145 Fed. Rep., 928.)

There is another attitude of the courts relative to passing on the patentability of designs that has always puzzled me. It is exceedingly difficult, if not impossible, for any one except an artist to appreciate the artistic. Statuary that would appeal to an artist frequently does not excite the interest of the ordinary observer, just as an ordinary person can fail to properly appreciate the best music or the best literary composition, and mechanical-patent specifications have been uniformly held to be addressed to those skilled in the art to which they belonged; yet the courts seem to take the position that the general public, not artists, must be the final arbiters of whether invention is displayed in a design. (Bevin Bros, Mfg. Co. v. Starr, etc., 114 Fed. Rep., 362.)

The features, proportions, cut of the hair, and general configuration of the doll under consideration seem to me to be, broadly speaking, those of the ordinary rubber doll, although it appears the designer is quite an artist in designing dolls. It may be that if I were an artist I could see enough artistic merit to warrant holding that invention was exercised; if so, a patent should be granted, even though the doll is a simulation of a child, a natural object; but I can see nothing sufficiently different from the ordinary doll to call for anything like invention to produce.

The decision of the Examiners-in-Chief must be affirmed.

EX PARTE CREW LEVICK COMPANY.

Decided July 12, 1918.

255 O. G., 161.

TRADE-MARKS-" CASHMERE FOR OIL-NOT GEOGRAPHICAL.

The word "Cashmere," used as a trade-mark for oil, Held not geographical and to constitute a registrable trade-mark.

ON APPEAL.

TRADE-MARK FOR GASOLENE, NAPHTHA, BENZIN, ETC.

Mr. Victor J. Evans for the applicant.

CLAY, Assistant Commissioner:

The applicant appeals from the Examiner's refusal to register the words "Cashmere " as a trade-mark for oil used to lubricate wool

fibers preparatory to spinning, on the ground that the mark is merely a geographical name under section 5 of the trade-mark statute. It seems that "Cashmere " is an Anglicized spelling of the name " Kashmir," which is a country in northern India. Of course it is well known that "Cashmere " is a peculiar kind of woolen cloth.

I think the Examiner is in error on this point of geographical significance. There is always danger of error in these cases of alleged descriptive or geographical words unless the reason for the law be constantly borne in mind. Whether a term is geographical or not must depend in the last analysis upon the question whether the public might suppose that the term indicated the place from which the goods came, and this because the only reason Congress had for prohibiting the registration of geographical names was that it would interfere with the rights of others who had an equal right with the applicant to say that their goods came from that place.

As the court said in Manitou Springs Mineral Water Co. v. Schueler et al. (239 Fed. Rep., 593, at page 601)—

geographical names are excluded only when they are merely such and are not selected, used, and appropriated under such special circumstances as to point distinctively to origin or ownership. Importance attaches to the fact conveyed by its primary meaning, whether the term in its entirety embraces primarily the notion of place or a distinctive designation of origin and ownership. It appears that the latter signification may, under certain conditions, be the primary one, even though the name was geographical and regional at the time of adoption as a trade-mark.

Judge Lacombe in Wertheimer et al. v. Batcheller Importing Co. (185 Fed. Rep., 850) held that "Riz de Java," for face-powder, had a sufficiently secondary meaning to uphold it, even though it is apparently both descriptive and geographical.

"Arab" as a trade-mark for sardines is not geographical, (see ex parte Seacoast Canning Co., C. D., 1914, 24; 199 O. G., 617), although "Arab" for dates might be, and one apparent reason is that sardines do not come from Arabia, and therefore nobody would suppose that the word "Arab" indicated the place. Similarly "Celtic," for tea, is not geographical. (Ex parte Acker, Merrall & Condit Company, C. D., 1911, 54; 165 O. G., 473.) Nobody would suppose that tea came from a place peculiarly inhabited by the Celts. Again, while there are towns named " Defiance," this is not geographical as a trade-mark for paper, because its primary meaning is that of a challenge and not of a place. (Ex parte Byron Weston Company, C. D., 1902, 149; 99 O. G., 861.) Again, "Aurora" means morning and not a place. (Ex parte Aspegren and Company, C. D., 1902, 265; 100 O. G., 684.)

The meaning must be taken in connection with the goods on which the term is used. In the use of the word "Gibraltar " as a mark for belting it is clear that the public would take the word to mean strength and not a place. (Ex parte Jewell Co., C. D., 1904, 150; 110 O. G.,