the modern method of making flour by rolls came into use. Flour made by rolls was called "Patent Flour" to distinguish it from the flour made under the old bur process, and all roller mills began marking their flour with the word "Patent," for example, "Doe's Patent," "Roe's Patent," "Blish's Patent," etc. About this time the predecessors in business of the applicant conceived the idea of using the word "Copyright" as something novel and uncommon and being a change from the word " Patent," which was universally used by other manufacturers of flour.

The appellant has called attention to the fact that in the case of Loft v. Stevens Lithographing & Engraving Co. (38 Fed. Rep., 28), in a suit for penalty for inserting a false notice of copyright, it is asserted that the penalty is not recoverable for placing the notice on an article that can not be copyrighted. In that case the court said:

The law is designed to guard against deception, and no one is deceived when the word "Copyright" is placed upon an article that can not be copyrighted, such as a kitchen stove, etc,

66

While the appellant denies any intention upon the part of his predecessors in the business to deceive or defraud the public in the selection and use of the word Copyright" for a trade-mark for flour, it is quite obvious that the term was adopted to obtain whatever mystical influence might be carried by a word used to designate articles protected by the United States Government. The appellant, apparently recognizing the force of the examiner's objection, states in his brief:

66

While it may be possible that no one should be permitted to register the word Copyright" as a technical trade-mark, it is believed that if this word is used upon goods which are not the subject of copyright for a sufficient length of time to enable the applicant to make the affidavit under the ten-year proviso, that registration should be permitted as a matter of course.

The force of this argument is not at all conclusive, for it is manifest that if the term "Copyright" is not capable of being exclusively appropriated by the applicant, and especially if its use would have a tendency to deceive purchasers in the belief that the merchandise was subject to Government protection, the exclusive use of the term as a trade-mark for ten years could not confer the right of registration upon it. It must therefore be concluded that the word "Copyright" is prohibited registration as a trade-mark under the ruling of the Court of Appeals of the District of Columbia, in re Cahn, Belt & Company, supra.

Page 243.

It is also held that registration of this trade-mark should not be allowed for the reason that the use of this word, together with "Registered in the United States Patent Office" or "Reg. U. S. Pat. Off.," would be likely to convey to the mind of the purchasing public the fact that the merchandise upon which this mark is used had received the official approval of the United States Government.

Finally, it may be stated that the registration of the word "Copyright" as a trade-mark would place in the hands of the registrant a means by which he could prevent, or at least harass, registrants of labels. Under the copyright acts of 1874 and of 1909 labels are registered. in the United States Patent Office. In order to maintain suit under the copyright acts, it is required that notice of copyright of a label shall be given by the use of the word "Copyright," the date of the copyright, and the name of the owner printed upon such label. It is obvious, therefore, that if other parties have copyrighted fanciful labels used in connection with flour and have placed upon such labels the required copyright notice they might at least be charged with infringing the applicant's trade-mark and possibly put to the expense of a suit in defense of their legal rights.

For each of the reasons above given it is held that the action of the examiner of trade-marks refusing to register the word "Copyright" as a trade-mark for flour was right. His decision is accordingly affirmed.

[165 Patent Office Gazette, pp. 241–243.]

BOBBS-MERRILL CO. v. EQUITABLE MOTION PICTURES
CORP. et al.

(District Court, S. D. New York. May 17, 1916.)

Bobbs-Merrill COPYRIGHTS-INFRINGEMENT-PRELIMINARY INJUNCTION.

Co. v. Equitable Motion Pictures Corp., May 17, 1916.

Where neither complainant's novel nor defendant's photoplay was strikingly original, and, although they each dealt with circus life, the themes were differently treated, and there was sufficient difference between defendant's photo play and complainant's novel to make it doubtful whether there had been a piracy, a preliminary injunction restraining a production of the photo play will not be granted; a dramatization of the novel not being produced.

In equity. Suit by the Bobbs-Merrill Company against the Equitable Motion Pictures Corporation and another.

On motion for preliminary injunction to restrain de-
fendants from producing a motion picture photoplay.
Motion denied.

John L. Lockwood, of New York City, for the motion.
Nathan Vidaver, of New York City, opposed.

MAYER, District Judge. Plaintiff has the exclusive publication and dramatic rights of a novel called "Fran." The novel and the dramatization, for the purposes of this Page 792. discussion, are practically the same. The plot of the novel is banal, as is that of the photoplay, and both can be recommended as soporifics.

Fran, a whimsical, shrewd girl, suddenly appears at Littleburg and insists that Hamilton Gregory, church leader and philanthropist, shall take her in his home. She frightens Gregory into believing that she knows the hidden tale of his past life. That tale is the usual secret marriage of a millionaire's son, the desertion of the young wife, and the ignorance of the birth of a child.

Fran, of course, is Gregory's daughter; but this fact is not known until later on. With an ease customary in novels, Gregory represents Fran as the daughter of a friend of his youth, and unwillingly takes her into his household, now adorned by Mrs. Gregory No. 2, a sweet, patient woman, her mother, an invalid wheeled about in a chair, and Grace Noir, a designing secretary, with whom Gregory is in love, to add to his troubles.

Ashton, the young, colorless school superintendent, and Fran fall in love with each other in a perfectly routine way; it being necessary, for fiction purposes, that Fran fall in love with somebody.

Fran becomes devoted to Mrs. Gregory No. 2 and determines to drive Grace Noir out of the household. A stupid person named Clinton is in love with Grace, and when she thinks she is losing Gregory she dispatches Clinton off to look up Gregory's history, as the result of suspicions to which her keen and calculating mind has been directed.

Clinton returns with the secret, and it is so maneuvered, with the aid of Ashton, who is trying to save the situation from scandal, that Gregory, for fear of exposure, promises to dismiss and does dismiss Grace, so that Clinton can marry her.

Now, Fran was a circus girl, having been thus brought up because her deserted and now deceased mother was

Page 793.

compelled to resort to the circus for her livelihood as a lion tamer, and Fran, in due course, became known as Fran Nonpareil, the famous child animal tamer. Therefore the circus opportunely arrives in Littleburg for purposes of the plot infra.

Just about this time Gregory finds that life without Grace Noir would be a wretched blank, wherefore they conclude to elope. This man of large affairs, with the best standing in town as a highly respected religious citizen, concludes to give up everything which men hold dear, to run away with his former secretary, being argued into that conclusion by Grace, who points out to him, inter alia, that because he married Mrs. Gregory No. 2 when Mrs. Gregory (of the circus) No. 1 was alive, therefore he really is not married to Mrs. Gregory No. 2 and is free to depart.

Having made this decision, they find that the train will not go for an hour, and, therefore, in order thoroughly to conceal themselves, proceed to the circus, where the whole town is gathered.

Fran has been to see her old friends at the circus, and, finding that one of them has been injured, determines to fill her old rôle in the lions' cage and do a little lion taming. The lions, however, are very much annoyed, due probably to the fact that Fran wears a mask in order to keep her identity from the populace of Littleburg. The lions behave so badly that they are disposed to eat up Fran; but, throwing off her mask, she, by her skill and will power, forces the lions into submission, much to the gratification of Littleburg, including father and Ashton.

While Fran was in her greatest danger, Grace Noir expresses her satisfaction to Gregory at Fran's impending destruction (for Fran had always been her bête noir), and thus Gregory sees Grace in her true light, declines to elope any further, has done with her, and is quite overjoyed that his daughter is alive and well.

Gregory presumably thereafter becomes a model husband, Grace and Clinton leave Littleburg to be married and live in Chicago, and Fran, of course, marries Ashton, remarking, with striking originality after looking at the moon, at page 380, "The world is good enough for me." Finis.

་་་་།

There are, of course, some minor characters and numerous dialogues, which neither add to nor detract from this absorbing story.

In the photoplay, Babette is the circus girl. She loves Pete, the acrobat, who dreams of the day when he will marry Babette and have a farm with chickens. She also had a deserted mother, a fortune teller in the circus, who had been secretly married, and, like Fran's mother, driven from home. The next stop of the circus is to be Middleboro, where Ezra Butterworth, president of the bank, is a pillar of the church, a leading citizen, and wears very good clothes. His wife is also a sweet, patient woman, as was Gregory's; but she, and not the motherin-law, as in "Fran," is the invalid in the wheeled chair, for Butterworth has no visible mother-in-law.

The religious people of the town are opposed to the circus, but the mayor stands his ground and determines to let the circus go on.

Babette and her fortune-telling mother have an affectionate scene in the fortune teller's tent, wherein the mother makes the extraordinary observation, "This is the key to the box hidden in my trunk." Then, after Babette goes out, mother dreams the scenes of her past, thus giving opportunity for what I am told is called in the language of the photoplay a "throw back."

Mother now dies, Pete sees her marriage certificate, and so, of course, does Babette, and thereon it appears that Butterworth is the other contracting party. The circus reaches Middleboro. Babette reads Butterworth's name in a newspaper as the donor of $5,000 for the home for widows and orphans.

In due course Babette introduces herself to Butterworth as his daughter. Butterworth is a person good to his wife and not possessed of a female secretary. His main concern is not to shock his wife. He is kind to his daughter and installs her in his home. Babette is not popular with some of the church attendants, when it is discovered that she is a circus girl. Butterworth, toward the end of the fourth reel, tells his wife about his early marriage, and she, being a most agreeable person, immediately forgives him. Babette, however, yearns for the circus and Pete, and, leaving an affectionate note for Mrs. Butterworth, Arab-like silently steals away and returns to the circus.