TERM OF PATENT. See Construction of Specifications and Patents, 6; Limitation of
United States Patent by Foreign Patent Previously Granted, 1, 2, 3, 5.
TERRITORIAL RIGHTS. See Use and Sale of Patented Articles, 2, 3.
TESTIMONY. See Appeal to the Secretary of the Interior, 2, 3; Expert Testimony;
Interference, 23, 24; Practice in the Patent Office.
THEORETICAL CALCULATIONS. See Invention, 5, 6.
TITLE TO PATENT. See Assignees, 1; Assignments, 1; Assignment of Patent by Order
of Court; Parties to Suit, 1, 2.
1. TRADE-MARK-"COUGH CHERRIES."-The words "Cough Cherries," as applied
to a confection, are not descriptive of the qualities of the article, but are
sufficiently arbitrary and fanciful to be appropriated as a Trade-Mark.
*Stoughton v. Woodard et al., 252.
2. INFRINGEMENT.-Complainant puts up its hair-crimpers in packages, in a red
pasteboard box, on the cover of which is a white label with a black border
and in the center the head of a woman with hair curled, together with the
words "Madam Louie, Common-Sense Hair-Crimper." Defendant dealt in
crimpers packed in a similar manner, in red boxes with white labels, and in
the center of the label is the head of a female surrounded by the words "The
Langtry, Elegantes. One gross, No. 1, Black, Hair-Crimpers." Complain-
ant's crimpers were smaller than defendant's and much heavier, and the
wrappers were unlike in length and in the words printed thereon. Defend-
ant had the prior right to the use of the white label and the central vignette,
and the labels were dissimilar in form, language, type, and general appear-
ance. There was no evidence that any one was ever misled by any resem-
blance between the two. Held that defendant did not infringe complainant's
Trade-Mark. *Philadelphia Novelty Manufacturing Company v. Rouss, 273.
3. "HYGIENIQUES."-The word "hygieniques" as applied to suspenders Held to
be a valid Trade-Mark. Bailly v. Nashawannuck Manufacturing Company,
597.
4. "ELASTIC."-The word "elastic" as applied to suspenders He'd to be descriptive
in the ordinary sense. Id.
5. FANCIFUL OR ARBITRARY WORDS.-Words which are but inferentially or remotely
descriptive, indicating neither origin nor ownership, but merely some special
quality or peculiarity of the article itself, may properly be regarded as fanci-
ful or arbitrary in the legal sense.
Id.
6. WORDS "WARREN HOSE-SUPPORTER," ETC.-The words "Warren Hose-Sup-
porter" in connection with the cut of a hose-supporter engaged with a stock-
iug. Held to be a valid trade-mark. *Frost et al. v. Rindskopf et al., 339.
7. INFRINGEMENT.—In a suit for infringement, although it seemed to be clear that
when the defendants made what are known as "Warren Hose-Supporters,"
they had the right to designate them as such, Held that that did not include
the right to represent in any manner that their goods came from others, and
that complainants' Trade-Mark was infringed by the use of the word “War-
ranted" in place of "Warren," with a cut similar to that of complainants'
label, and with numbers and words indicating sizes and quantity in similar-
ity to those on complainants' label. *Id.
8. WORD "DOVER" HELD TO BE REGISTRABLE.-The word "Dover" held to be
registrable as a Trade-Mark, it not being used by applicant in its geograph-
ical but in a fanciful or arbitrary sense. Ex parte Dover Stamping Com-
pany, 94.
9. GEOGRAPHICAL NAME.-The word "Cromarty," being the name of a town in
Scotland famous for its herring fisheries, is not registrable as a Trade-Mark
for cured fish. Others with at least equal truth might use it upon packages
containing the same article of merchandise. Ex parte Proctor, jr., 97.
10. STATUTORY BASIS OF THE RIGHT TO REGISTRATION.-The statutory basis of
the right to registration is the fact that the Trade-Mark is used in foreign
commerce or commerce with Indian tribes.
11. SAME.-Inasmuch as the applicant invokes the right as it stands related to
foreign commerce, it cannot be said that the absence of Cromarty herrings
from the home market authorizes registration. Id.
12. ASSIGNMENT-FORMULA.-Where the proprietor of a medicine transfers the
right to use his Trade-Mark and formula without transferring the place of
manufacture, or plant used, or the good will of the business, and there is no
exclusive right to manufacture the medicine in any one, and there is nothing
in the Trade-Mark to indicate that the medicine comes from a particular
manufactory, the grantee cannot restrain another person from using it, as the
only effect of the Trade-Mark is to indicate a class of goods which any one
who knows how may manufacture. Chadwick v. Covell, 598.
13. SAME-SAME.-Where the said proprietor of said Trade-Mark and formula had
no exclusive right to the use of his formula, Held that his only right was to
prevent any one from obtaining or using said formula through a breach of
trust or contract, and that any one who came honestly to the knowledge of
it could use it without the proprietor's permission and against his will. Id.
14. "TYCOON" TEA.-Cowplainants have no Trade-Mark in the word "Tycoon,"
as applied to a certain kind of tea, it appearing that the word was in com-
mon and general use, as descriptive of a certain class of teas, for many years
before complainants' adoption of it. * Corbin et al. v. Gould et al., 295.
15. INJUNCTION.-The manufacturer of an uncooked pudding, put up in packages
under the Trade-Mark name of "Puddine," cannot enjoin the maker of a
similar preparation from using the word "Pudding" in describing it. *Clot-
worthy v. Schepp, 422.
16. SAME.-The use of the word "Rose" in connection with the word "Vanilla"
as a Trade-Mark is no ground for enjoining a rival maker of similar products,
containing those well-known flavors, from using those words in describing
his goods. Id.
17. SAME.-The manufacturer who falsely represents the composition of his goods
by the labels on his packages is in no position to enjoin a rival manufacturer
from using similar labels and packages, on the ground that the latter thereby
deceives the public. * Id.
18. SUIT FOR INFRINGEMENT-PRACTICE.-Where in suit for the infringement of a
Trade-Mark exhibits of the devices used by both complainant and defend-
ant accompany the bill, the Court will sustain a demurrer to the bill where
the exhibits show that there is no infringement. Collins Chemical and
Manufacturing Company v. Capital City Manufacturing Company, 424.
19. TRADE-MARKS INVOLVING Portraits.—The principles applicable to Trade-
Mark cases involving personal names are doubtless applicable to Trade-Mark
cases involving what may be called "portrait" Trade-Marks. Richmond v.
Dr. S. A. Richmond Nervine Company, 105.
20. TRADE-MARKS INVOLVING PERSONAL NAMES.-No person can acquire by adop
tion such an interest in the name of another person as to prevent that person
from using his own name in a fair and honest manner in the ordinary course
of business. Id.
21. EXCLUSIVE USE OF A PERSON'S NAME OR PORTRAIT.-To justify the exclu-
sive use by a person or corporation of any man's name or portrait as against
the man who bears the name or is represented by the portrait, some contract
relation or estoppel must be found to exist, operating to deprive the latter of
what would otherwise be his right. Id.
22. SAME-TRANSFER OF.-It is well established that a person may associate his
own name as a Trade-Mark with an article of trade manufactured by him.
self, and so transfer the business of manufacturing said article and using his
name thereon as to deprive himself of the right thereafter to use his own
name upon such articles. Id.
23. SAME-PRIORITY.-Where it appeared that as against the applicant a certain
corporation and its successors in business, down to and including the regis-
trant, were and are clothed with the exclusive right to make, sell, and use a
certain medical compound to which the portrait of the applicant had been
applied as a Trade-Mark, Held that as against the registrant the applicant
could not register said portrait for use in connection with the same medical
compound, and Held, also, that the use by the applicant of such portrait as a
Trade-Mark for a limited period before the actual incorporation of the regis-
trant, but at a time when the exclusive right to manufacture and sell the
article was in the successors of the original company, created no right in the
applicant. Id.
24. REGISTRATion Refused—“Red Cross.”—Registration of a Trade-Mark con-
sisting, essentially, of "the red cross on black ground in a diamond-shaped
border and accompanied by the words Red Cross," for a medical compound,
refused. Ex parte Chichester Chemical Company, 133.
25. MISLEADING TRADE-MARK.—Such a Trade-Mark would naturally lead the pur-
chaser to suppose that he was purchasing an article which, if not manufac-
tured by the well-known Red Cross Society, had at least its sanction or in-
dorsement. Id.
26. INFRINGEMENT JURISDICTION OF CIRCUIT COURT.-Under act of Congress
of March 3, 1881, relating to registration of Trade-Marks used in foreign
commerce, the circuit court has no jurisdiction of a bill for infringement
where both parties reside in the State and it does not appear that the Trade-
Mark is used in foreign commerce. *Gravely et al. v. Gravely et al., 461.
27. CIGAR-MAKERS' UNION LABELS.-A label adopted by the International Cigar-
Makers' Union, to be pasted on boxes containing cigars made by members, is
not a legal Trade-Mark, it not indicating by what persons the cigars are
made, but only that they are made by members of one of the local unions, the
right to use it belonging equally to all members and continuing only while
they are members. Weener et al. v. Brayton, 615.
28. INJUNCTION.—An injunction against the wrongful use of such label cannot be
granted on the ground of special injury to plaintiffs, who are officers and
members of the union, but are not manufacturers of or dealers in the cigars
on which such label is used. ‡ld.
29. WORD" VIENNA" AS TRADE-MARK FOR FLOUR.-The word "Vienna" declared
entitled to registration as a Trade-Mark for flour, it appearing that no flour
made in any town called "Vienna" in this country has been placed upon the
market under the name “Vieuna;” that no flour is upon this market coming
from Vienna, Austria; that the word was arbitrarily selected by the peti-
tioner, and that it is the custom in the flour trade to use fanciful names to
designate flour, rather than the names of places of production. Ex parte
Jenkins, 161.
30. SAME-FOREIGN COMMERCE AS A BASIS OF REGISTRATION.-While the fact that
flour from Vienna, Austria, is not on sale upon this market would not of itself
authorize registration, when foreign commerce is invoked as a basis of regis-
tration, it does not appear in the present case that flour from Vienna, Aus-
tria, has any reputation in the markets of the world, or that the word
"Vienna" would indicate to a purchaser that the flour upon which it was
used came from that city. Id.
31. INJUNCTION.—Where a bill was filed for the purpose of enjoining the defend-
ants from using the word "Rosendale" in describing their cement, and to
obtain damages and an accouut of profits for such use, and it appeared that
the suit was brought at the instance of a private party, who was only one
of the many who manufactured cement at Rosendale and truly denominated
their cement "Rosendale cement, "Held that the bill should be dismissed,
although conceding that the name "Rosendale cement" was understood
by the public as designating the place where it was made and came from,
and that the defendants untruly called their cement by that name. "New
York and Rosendale Cement Company v. Coplay Cement Company, 550.
32. SAME.-If a person seeks to restrain others from using a particular trade-mark,
trade-name, or style of goods, he must show that he has an exclusive owner-
ship or property therein. To show that he has a mere right. in common with
others, to use it is insufficient. *Id
33. INFRINGEMENT-PLEADING-Demurrer.-Where in an action for infringe-
ment the complaint alleged that defendants had appropriated and used on
their advertisements, circulars, letter-heads, etc., relating to their publica-
tion, the device of an open book which complainants had theretofore been
in the habit of using for like purposes; that defendants used the words
"Webster's Dictionary" or "Webster's Unabridged Dictionary" placed in
the same relation to their publication that complainants placed them, and
that the date of defendants' publication on the title-page was given as of the
year 1890, when, in fact, the book was a reprint or photolithographic copy of
the edition of Webster's Dictionary of 1847, Held that, as there might be some
evidence of a fraudulent intent on defendants' part to get the benefit of the
reputation of the edition of Webster's Dictionary published by complainants,
and as the public might possibly be deceived and the complainants damaged to
some extent in consequence of the facts averred, a demurrer to the complaint
should be overruled. * Merriam et al. v. Holloway Publishing Company, 553.
34. SAME-WEBSTER'S DICTIONARY.-The complainants have no special property
in "Webster's Dictionary," since the copyright has expired. *Id.
TRANSFER OF FEES FROM ONE APPLICATION TO ANOTHER. See Fees.
TRANSFER OF TITLE TO PATENT BY ORDER OF COURT. See Assignment of
Patent by Order of Court.
USE AND SALE OF PATENTED ARTICLES. See Licenses, 1.
1. SALE OF IMPORTED ARTICLES PATENTED IN THE United StatES.-A dealer re-
siding in the United States cannot purchase in another country articles pat-
ented there, from a person authorized to sell them, and import them to and
sell them in the United States, without the license of the owners of the
United States patent. *Boesch et al. v. Graff, et al., 287.
2. TERRITORIAL RIGHTS OF ASSIGNEES.-One who purchases a patented article
from the owner of the patent-right for a certain territory has no right to sell
the same in the course of trade in territory for which another owns the ex-
clusive territorial right. *Standard Folding Bed Company v. Keeler et al., 295.
3. INFRINGEMENT-SALE AND USE OF PATENTED ARTICLES-VIOLATION OF TER-
RITORIAL RIGHTS.-The sale of a patented article by an assignee of the patent
within his own territory carries the right to use it within territory owned
by another, though it be known to both parties that a use outside the ven-
der's territory is intended. Hobbie et al. v. Jennison, 300.
See Infringement, 20. 21.
USE OF MACHINE WITH INVENTOR'S CONSENT.
USE OF PATENTED ARTICLES. See Infringement, 2.
1. RIGHTS OF Purchaser of Patented or Unpatented MACHINE OR DEVICE.-
The purchaser who buys a machine or device, patented or unpatented, with-
out any restrictions as to the mode or extent of the use to which he may
apply it, acquires all the rights of the seller and may do with it whatever
the seller might have done if he had not parted with it. *Morgan Envelope
Company v. Albany Perforated Wrapping Paper Company et al., 203.
2. USE OF PATENTED ARTICLES-SALE OF MACHINE Before APPLYING FOR Pat-
ENT.—If an inventor construct and sell a new machine or put it into use
USE OF PATENTED ARTICLES-Continued.
before applying for a patent thereon, he cannot afterward take out a patent
and maintain a suit against his purchaser or user for infringement thereof
by use of such machine. "Dable Grain Shovel Company v. Flint et al., 460.
3. SAME-SAME.-In such a case a demand for compensation made by the inventor
after he receives his patent will not affect the rights of the purchaser or user
of the machine, because if the inventor had no right to compensation a de-
mand therefor would not give him any such right.
UTILITY. See Validity of Patents.
VALIDITY OF PATENTS.
See Construction of Specifications and Patents, 17; Re-
issues, 1, 2; Suits for Infringement, 23.
INVENTION EVIDENCE OF.-Where a patented improvement possessed such
marked utility and so speedily and universally came into public use as the
Pullman vestibule system, Held that the court should hesitate to declare the
patent invalid for want of utility, because these circumstances tended strongly
to prove invention. *Pullman's Palace Car Company v. Boston and Albany
Railroad Company et al., 533.
VALID PATENTS. See Particular Patents, 4, 6, 9, 25, 30, 34, 47, 49, 52, 58, 60, 62.
VOID PATENTS. See Construction of Specifications and Patents, 3; Invention, 7; Par-
ticular Patents, 1, 3, 11, 14, 15, 17, 18, 19, 20, 21, 24, 26, 27, 28, 31, 32, 35, 36, 37,
38, 41, 42, 43, 44, 45, 46, 51, 53, 54, 55, 56, 66, 67.
WITHDRAWAL OF CASE FROM ISSUE. See Forfeited Cases.
1. WITHDRAWING CASE FROM ISSUE FOR REINSTATEMENT OF CLAIM DELIBER-
ATELY ERASED.-Where it appeared that the petitioner had erased a certain
claim from his application for a specific purpose and had specifically abandoned
it, so far as said application was concerned, in order to obtain an allowance, and
subsequently desired to withdraw the case from issue for the purpose of rein-
stating said claim, Held that the petition should be denied. Ex parte Potter, 163.
2. SAME-RULE 165.-There is no warrant in Rule 165 for withdrawing an applica-
tion which has been passed to issue and allowed to enable a party to preserve
rights to patents in foreign countries when it appears that the six months
within which the final fee must be paid under the statute would necessarily
elapse before the expiration of the time during which the case would be with-
drawn from issue. Ec parte Simonson, 177.
3. SAME-SAME.-Rule 165 only provides for a new notice of allowance when appli-
cations are "withdrawn for further action on the part of the office," and no
provision exists in the rule for a new notice where the effect of the petition
to withdraw the application from issue, if granted, is intended to be and
would be to permit the final fee to be paid more than six months after that
allowance of the application which resulted from proceedings in the Office. Id.
WITNESSES.
REFUTATION OF WITNESSES.-Refutation of witnesses may take place by counter-
vailing conduct as well as by contradictory statements. "The ordinary laws
governing human conduct" must often be permitted to have the effect of dis-
crediting a witness not otherwise impeached. Zwietusch v. Stockheim, 151.
WITNESSES TO SIGNATURE.
REVISED STATUTES, SECTION 4889.-While the grammatical construction of section
4889, Revised Statutes, seems to indicate that the drawing or the document
signed by the applicant and not his signature is the thing which is to be
attested by two witnesses, the uniform practice of the Office has been to
regard the attestation as referring to the signature, and accordingly to require
two competent witnesses for each signature. Held, therefore, that a member
of the firm of applicant's attorneys who signs the firm name to the drawing
is not also a competent witness to the signature of the firm. Ex parts
Kyle, 84.
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