Page 696.

"At Bay." Mr. Scarborough wrote act I, and Mr. Thomas wrote acts III and IV; all of the new or revised work being done in accordance with a plan agreed on after joint consideration. Much of the "City of Indiscretion" was abandoned, and it is urged that there are striking similarities between "Threads of Destiny" and "At Bay." I have no doubt that "At Bay" was the result of the independent effort of Mr. Scarborough and Mr. Thomas, precisely as they have testified.

What has aroused the suspicions of Mr. Vernon is an incident or series of incidents now quite familiar to me in this class of litigation. The defendant Mr. Huffman acts, at times, as stage director for Messrs. Shubert. Mr. Huffman is sui generis, and cannot be appreciated unless seen and heard. He works when he feels like it, does or does not do what his employers desire as his fancy may suggest, answers or does not answer telephones as he may be inclined, and tells budding authors anything pleasant or unpleasant which for the moment will relieve him of further conversation or of the necessity of reading a play. In fact, he so completely separates business from recreation that the one thing which evidently he dislikes to do is to witness a play. At times he is compelled to do this in those productions where he is acting as stage director, but once this task is performed Mr. Huffman goes his way, dismissing from his mind the stage, the play, the managers, and the actors.

In some casual way Mr. Vernon met Mr. Huffman, and that meeting together with the unsolicited sending of the manuscript to Huffman, unanswered telephone calls, and one telephone conversation, would naturally arouse suspicion in the mind of a layman; but it is quite apparent that Huffman never read the play "Threads of Destiny," and certainly never communicated its contents nor its substance to any of the other defendants, and had no part whatever in or in relation to its production. Of course, as so often happens, there are some characters in both plays having a similarity, and there are here and there some instances of similar phraseology. But that is a very old story in playwriting, because, after all, there are not so many themes around which a play may be plotted. Secret marriages, district attorneys, murders, office boys, blackmailers, good people, and bad people have walked about behind the footlights for many a day; but the only

way to arrive at a conclusion on the merits in a case like this is to endeavor to discover the theory of the play and, generally speaking, the method of its execution. Concededly the "Threads of Destiny" is crude in workmanship, but that would not necessarily defeat the plaintiff. But the theory of the two plays is different. In the "Threads of Destiny" the author attempts to enforce the theory that destiny is all-controlling. The central figure is the district attorney, the woman is placed in most unenviable environment, and at the end of the play the father gives a demonstration of how the love of a child is greater than ambition or desire for worldly progress. In "At Bay" the authors had no mission. Their purpose was to provide an evening's entertainment which would bring customers to the box office and thereby royalties to the authors. In "At Bay" the district attorney is an incidental figure, and the hero is a courageous, manly, refreshing young gentleman who, to protect his fiancée, is engaged in a battle of wits with the supposedly shrewd officers of the law. Broadly speaking, the method of execution is entirely different, and the play, as Mr. Thomas said, is built around the flashlight incident, because from that time on the whole effort is to destroy the units which, if combined, would make the evidence of the supposed crime.

The case possibly might go off on technical grounds suggested by defendant Shubert Corporation, but these need not be considered because, on the merits, there is no infringement.. Mr. Thomas, like other well-known men who are writers or producers of plays, receives many communications. His only protection is to pursue the course which he testified was pursued in this case, namely, not to read unsolicited manuscripts. It is not at all clear that the manuscript of plaintiff ever reached the now deceased secretary of Mr. Thomas; but, assuming that it did, it is entirely clear that Mr. Thomas never saw this manuscript.

[2] Yet I can see how the plaintiff, by a combination of circumstances, was led to the belief that his work had been appropriated, and how, therefore, the suit was earnestly brought and in good faith, and under all these circumstances costs will not be awarded against him. The bill will be dismissed, without costs.

[220 Federal Reporter, pp. 694–696.]

WAGNER v. WILSON.

(District Court, Eastern District New York. July 15, 1915.)

Wagner v.1. COPYRIGHTS-INFRINGEMENT ACTIONS-JURISDICTION. Wilson, July 15, 1915.

An action for infringement of a copyright, under act March 4, 1909, ch. 320, 35 Stat. 1084, may, under section 35 thereof (Comp. St. 1913, sec. 9556), be maintained in the district court of the district where there is infringement by the principal or his agent.

2. COPYRIGHTS-ACTIONS FOR INFRINGEMENT-SERVICE OF PROCESS. In an action for infringement of copyright, under act March 4, 1909, brought in the district court of the district where there is infringement by the principal or his agent, service of summons on the agent is sufficient; but service of summons on defendant in another district in the same State must be set aside.

At law. Action by Daniel C. Wagner against William W. Wilson. Service of summons set aside.

Rufus Lewis Perry, of Brooklyn, N. Y., for plaintiff. Edmund Fletcher Driggs, of Brooklyn, N. Y., for defendant.

CHATFIELD, District Judge. [1, 2] The court has jurisdiction over an action for infringement of copyright (35 Stat. 1075), and by section 35 this action can be maintained in a district where there is infringement by the principal or his agent. Service on the agent is sufficient.

Whether the present action can be maintained is not to be decided upon the present motion. Motion to dismiss as to jurisdiction over the alleged cause of action is denied.

This is not a "local" suit, and hence the service did not give jurisdiction over the person of the defendant. Even in a patent case the plaintiff can not have process served in another district in the same State (judicial code, act Mar. 3, 1911, ch. 231, 36 Stat. 1100, sec. 48, Comp. St. 1913, sec. 1030), but must make service of the alleged agent. Service of summons will be set aside.

[225 Federal Reporter, p. 912.]

EX PARTE WAHRMANN.

(Decision of the Commissioner of Patents. Decided

June 12, 1914.)

LABELS SUBJECT MATTER-REGISTRATION.

Wahrmann,

Where the matter presented is properly a label and is Ex parte distinctively original, Held that the statute does not deny June 12, 1914. registration because the feature thereof which imparts originality is used or is capable of being used as a trademark.

On appeal.

LABEL FOR METAL-POLISH.

Mr. E. G. Siggers for the applicant.

EWING, Commissioner. This is an appeal from the refusal of the examiner of trade-marks to register a label. The ground of the refusal is that the distinctive matter which makes it registrable as a label is marked "Trade-mark."

The provision under which this registration is pending is section 3 of the act of 1874, which reads as follows:

en

SEC. 3. That in the construction of this act the words graving, cut, and print" shall be applied only to pictorial illustrations or works connected with the fine arts, and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the Patent Office. And the Commissioner of Patents is hereby charged with the supervision and control of the entry or registry of such prints or labels, in conformity with the regulations provided by law as to copyright of prints, except that there shall be paid for recording the title of any print or label, not a trademark, six dollars, which shall cover the expense of furnishing a copy of the record, under the seal of the Commissioner of Patents, to the party entering the same.

It has been held by the Attorney General that this act of 1874 was not repealed by the copyright act of 1909 (35 Stats. at L. 1075).

In the brief for the appellant it is argued that the only artistic feature of the label, the picture of a bank building, is not a trade-mark. It is, however, marked "Trademark," and doubtless without respect to whether it is registered here the attempt is made to acquire trademark rights under the common law. The applicant can hardly be permitted to mark the picture of the bank building on his label a trade-mark and contend here that he does not mean it for a trade-mark.

The early authorities bearing upon the broad question presented are Ex parte Godillot (6 O. G. 642), Ex parte Orcutt & Son (8 O. G. 277), Ex parte Park (12 O. G. 2), Ex parte Simpson & Sons (10 O. G. 333), and Ex parte Davids & Co. (15 O. G. 94).

In United States, ex rel. The Willcox & Gibbs Sewing Machine Co. v. E. M. Marble (22 O. G. 1366) the Supreme Court of the District of Columbia issued a peremptory writ of mandamus requiring the commissioner to register a label. The court held that the commissioner was not authorized to determine that a label should not be admitted to registration because its distinctive feature might constitute a trade-mark, that the Librarian of Congress had no such authority before the matter was transferred to the Patent Office by the act of 1874, and that by this act the Commissioner of Patents is given "control of the entry or registry of such prints or labels in conformity with the regulations provided by law as to copyright of prints." (See also U. S., ex rel. Schumacher and Ettlinger v. Marble, commissioner, 3 Mackey, 32.)

In Ex parte Moodie (28 O. G. 1271) Commissioner Butterworth declined to follow this opinion, and upon application to the court it was held that the commissioner cannot be mandamused to register a label.

In Ex parte Wiesel (36 O. G. 689) Commissioner Montgomery, following the doctrine laid down in the Moodie case, held that an alleged label which is in fact a trademark is not entitled to registration as a label.

In Ex parte Mahn (82 O. G. 1210) it was held by Acting Commissioner Greeley that a label of artistic merit, indicating pictorially or otherwise the article or the contents of the article to which it is intended to be applied, is registrable regardless of the fact that it may include matter capable of sequestration as a trade-mark. Mr. Greeley says:

* If the subject matter itself is purely trade-mark matter and does not come within the recognized requirements of the label as to indication of contents as well as originality and artistic merit it cannot be registered as a label.

*

I think this an accurate statement. A trade-mark and a label differ in that a label must include descriptive matter which a trade-mark may not include; and a label must be a writing of an author, a condition which does not apply in the case of a trade-mark.

It being established, however, that the matter presented is properly a label and that it is distinctively original, so