DOUBLE-DECK DRAWBRIDGE. Mr. Myron F. Hill for the applicant. NEWTON, Commissioner: Petitioners ask that I overrule the Primary Examiner's holding that certain claims which petitioners contend are drawn in accordance with what was permitted in ex parte Brown (C. D., 1917, 22; 235 0. G., 1355) are indefinite, as they refer to a plurality of other claims for their full disclosure. Claims 1 and 2 are for combinations in the usual form. Claim 3 is for “the combinations above set forth, each having the parts,” etc. ́ This evidently imports into claim 3 an alternative meaning, depending on whether the additional element is to be combined with the features of claim 1 or claim 2. The combinations set up in the remaining claims by reference to several previous claims become still more complex in meaning. Thus claim 9 calls for "the combinations set forth in claims 6, 7, and 8, each having the means," etc. Thus claim 9 is for either one of three different combinations, and claim 10 specifies "the combinations set forth in claim 9 each having means," etc. To clearly comprehend each of the separate and alternative combinations set up for example in claim 10 would require more mental effort than if each of the combinations were set forth in a separate self-contained claim of the ordinary type. I am unwilling to extend the practice outlined in ex parte Brown, supra, beyond what was indicated therein-viz., that a subsequent claim can only refer back to a single combination for additional matter. It should never involve alternative combinations. This is only adhering to the long-established practice against allowing alternative claims. (Ex parte Hulbert, C. D., 1893, 74; 63 O. G., 1687.) The petition is denied. EX PARTE VACUUM OIL COMPANY. Decided July 3, 1918. 253 O. G., 953. 1. TRADE-MARKS-APPLICATION-MUST BE RESTRICTED TO ONE CLASS OF GOODS. Action of Examiner of Trade-Marks requiring applicant to restrict the use of his mark to a single class of goods affirmed. 2. SAME FEES-ACT OF MAY 4, 1906, SECTION 2, CONSTRUED. Act of May 4, 1906, section 2, construed and Held to require an applicant to pay a fee for the registration of his mark for every class of articles on which the mark is used. ON APPEAL. 84150°-196 TRADE-MARK FOR LUBRICATING-OILS, ETC. Messrs. Davis & Simms for the applicant. NEWTON, Commissioner: This is an appeal from the decision of the Examiner of TradeMarks requiring applicant to restrict the use of its mark to a single class of articles. Applicant states that its goods are oils used indiscriminately as lubricating oils, oils for finishing and dressing leather, as batching oils for softening jute and hemp fiber, and as wool oils for scouring, in Class No. 15, Oils and greases. The Examiner states that lubricating-oils are classified in Class 15, Oils and greases; oils for finishing and dressing leather are classified in Class 4, Abrasive, detergent, and polishing materials, and other oils for softening jute and hemp fiber and wool-oils are classified in Class 6, Chemicals, medicines, and pharmaceutical preparations. Applicant's contention is that 66 the trade mark "Vacmul" is used by the Vacuum Oil Company as a trade mark brand for oil of a certain kind made according to a certain formula and process of manufacture. Vacmul' "oil is made in several different grades, and is branded "Vacmul A," "Vacmul B," "Vacmul X-35," "Vacmul X-40," etc. Primarily, the "Vacmul" brands of oil are cutting oils, and a cutting oil is, broadly speaking, a lubricating oil. Some of these oils are, however, suitable for and are sold for other lubricating purposes also: for example, "Vacmul F." Some of these oils are also suitable for and are sold as batching oils for softening jute and hemp fiber: for example, "Vacmul X-40" and "Vacmul X-35." Some of these oils are also suitable for and are sold as wool oils for scouring; for example, "Vacmul 40" and "Vacmul 35." Section 2 of the act of May 4, 1906, is as follows: SEC. 2. That the Commissioner of Patents shall establish classes of merchandise for the purpose of trade-mark registration, and shall determine the particular descriptions of goods comprised in each class. On a single application for registration of a trade-mark the trade-mark may be registered at the option of the applicant for any or all goods upon which the mark has actually been used comprised in a single class of merchandise, provided the particular descriptions of goods be stated. The object of this statute was to require an applicant to pay a fee for the registration of his mark for every class of articles on which the mark is used, and to thus locate a mark, so that it can be readily found in case some one else applies for registration of the same or a similar mark for the same class of goods. Were it not followed, one would have to search through the entire list of trade-marks to find whether any particular mark has been registered; but by requiring registration for each class only that class need be searched to find it. If applicant is allowed to register this mark for goods found in the three classes specified, a search would have to be made through the three classes enumerated by the Examiner, and this is contrary to the intent of this statute. Applicant contends that making it split up its registration in this country would necessitate doing likewise in case it files foreign applications; but, in the first place, it is questioned whether the foreign country would follow our classification, even if a single registration be allowed here, and, second, whether the foreign country would not require it to be split up, even if we allowed a single registration to include all the three classes here; but be that as it may, the statute is binding on the Office to require a separate fee for each class in which the mark is registered. The statute is based on sound reason-indeed, on a practical necessity-and the Examiner was right in his refusal to register the trade-mark in all three classes under one application and for one fee, and his action is affirmed. EX PARTE BLOOM & MILLMAN. / Decided July 31, 1918. 253 O. G., 954. TRADE-MARKS-SIMILARITY-" JACKIE " AND "JACK TAR." The word "Jackie" refused registration as a trade-mark in view of the prior registration of the words "Jack Tar Togs" for the same class of goods (the word "Togs" being disclaimed). ON APPEAL. TRADE-MARK FOR WAISTS AND BLOUSES FOR MISSES AND LADIES. Mr. Solomon K. Lichtenstein for the applicants. NEWTON, Commissioner: This is an appeal from the decision of the Examiner of TradeMarks refusing registration of the word "Jackie " over the head of a sailor-boy, used on blouses and waists, on the prior mark of The Strouse-Baer Co., No. 112,329, for the words "Jack Tar Togs," used on several kinds of goods, including blouses and waists. The word "Togs" being disclaimed, the rejection is based on the similarity between the words "Jackie" and "Jack Tar" on the same kind of goods. Funk & Wagnalls's dictionary, published in 1917, defines "Jackie ” as meaning a sailor, and under the word "Tar" it gives " Jack Tar ” also as meaning a sailor. The words "Jackie" and "Jack Tar" have practically the same meaning, and although they vary slightly 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 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 |