It is not thought that such "unusual and extraordinary circumstances" are presented in this case as to warrant a departure from the general rule stated above. It was urged by counsel for McKeen that under the rulings of the Court of Appeals of the District of Columbia in Allen v. United States ex rel. Lowry, (C. D., 1905, 643; 116 O. G., 2253,) and in United States, ex rel. Newcomb Motor Company, v. Moore, (post, 332; 133 O. G., 1680,) the Commissioner is without authority to grant Jerdone's motion. It is not thought that these decisions support this contention or are applicable to a case of this kind. However, in view of the holding supra-that Jerdone has not shown such circumstances as would warrant entertaining the appeal-it is unnecessary to further consider this contention. Where the meaning of a phrase used by an applicant is clear, no reason exists for delaying the prosecution of the case by insisting upon merely formal changes in the language used. ON PETITION. BOOK-SMASHING MACHINE. Messrs. Philipp, Sawyer, Rice & Kennedy for the applicant. BILLINGS, Assistant Commissioner: This is a petition from the action of the Examiner objecting to the expression "toggle made and broken," occurring on page 11 of the specification. The Examiner in his statement contends that this expression is inaccurate and does not properly describe the operation ordinarily known as "straightening a toggle." It is the well-settled policy of the Office to permit an applicant to select his own terms of reference, so long as their use does not lead to ambiguity. (Ex parte Hollis, C. D., 1899, 10; 86 O. G., 489; ex parte Welch, C. D., 1905, 136; 115 O. G., 1850.) In the present case the full text referred to is as follows: The operating means for the toggle may also be varied within wide limits, but in the best constructions the toggle will be made and broken by a slotted arm such as illustrated at 84, this arm being preferably formed in one piece with the short arm of the toggle. The slot in this arm 84 is engaged by a roller 85 mounted on the gear 24 before referred to. It is apparent that by this construction the toggle will be made and broken for each revolution of this gear 24. It is obvious that no misconstruction could occur from a reading of the terms "made and broken " in connection with the context. On the contrary, the meaning of the phrase as used by the applicant is quite clear. Where the meaning of an expression is clear, no reason exists for delaying the prosecution of a case by insisting upon merely formal changes in the language used. The specification of a patent is directed to persons skilled in the art, and it is sufficient if the terms used in the specification are such as may be readily understood by those to whom it is addressed. The Examiner calls attention to an objectionable phrase (" beyond the back") occurring in claims 39, 40, and 42. It is understood, however, that this objection will be corrected in the same manner as has already been done in several preceding claims. The petition is granted. EX PARTE SATZMAN & FORMAN. APPLICATION FOR REGISTRATION OF TRADE-MARK. TRADE-MARKS-ANTICIPATION. Decided April 2, 1908. 134 O. G., 2243. A trade-mark comprising the representation of an eagle standing on a rock and having on its breast a panel with "14 K" thereon is not registrable over the prior registration for goods of the same descriptive properties of two marks the essential feature of each of which is the representation of an eagle. ON APPEAL. TRADE-MARK FOR GOLD CHAINS AND BRACELETS. Mr. Alexander H. Kaminsky for the applicant. MOORE, Commissioner: This is an appeal from the refusal of the Examiner to register a trade-mark claimed by this applicant, which comprises the representation of an eagle standing on a rock and having on its breast a square panel bearing the numerals and letter "14 K," for gold chains and bracelets. Registration was refused in view of the regis tered trade-mark to Waite, Mathewson & Co., No. 12,807, November 24, 1885, in which the essential features of the trade-mark are described as "the representation of an eagle with a locket suspended from the bill," for lockets, bracelets, and lace-pins, and also upon the trade-mark registered by Henry Alkan, No. 25,767, January 1, 1895, which is described as the representation of a spread eagle carrying in its talons a ring mounted with a precious stone, for rings and other articles of jewelry of various descriptions, diamonds, and other precious stones. There appears to be no doubt that the trade-mark of the applicant is used upon goods of the same descriptive properties as those set forth in the registrations cited, and the sole question to be determined is whether the trade-mark of the applicant so nearly resembles the registered marks as to be likely to cause confusion or mistake in the mind of the public or deceive purchasers. The salient feature of each of the marks is clearly the representation of an eagle, and no doubt the goods upon which these marks are used would generally be known as the "Eagle" brand. The various accessories illustrated in the several marks are not deemed such as would serve to distinguish the marks from one another in the mind of the ordinary purchaser. In the case of McLean v. Fleming (C. D., 1878, 262; 13 O. G., 913; 96 U. S., 245) the Court said: What degree of resemblance is necessary to constitute an infringement is incapable of exact definition, as applicable to all cases. All that courts of justice can do, in that regard, is to say that no trader can adopt a trade-mark so resembling that of another trader, as that ordinary purchasers, buying with ordinary caution, are likely to be misled. In the recent case in re Indian Portland Cement Co., decided by the Court of Appeals of the District of Columbia post, 361; 134 O. G., 578; the trade-mark comprising an Indian's head shown in profile with a conventional feather head-dress within a circle, surrounded by the words "Indian Portland Cement Co., Neodesha, Kansas," was refused registration in view of a prior trade-mark, which was described as the representation of an Indian's head with a feather head-dress. In the latter mark a front view of the Indian's head was shown. In that case the Court said: While a comparison of the two marks as represented shows difference in details, the feature of each is a conventional Indian head, calculated to make the manufactures on which they are used known to the public as Indian-head cement. We agree with the Commissioner that the resemblance is such as to produce the confusion in trade which it is the object of the Trade-Mark Act to prevent. Since in the present case the eagle is the predominating feature of the mark and suggests the name by which the merchandise of the applicant would be known to the public, and as the representation of an eagle is the essential feature of each of the registered marks, it is held that the applicant's mark so nearly resembles the registered trade-marks cited as to be likely to cause confusion in the mind of the public and to deceive purchasers. The decision of the Examiner is affirmed. RAYMOND v. KITSELMAN v. SOMMER, SOMMER, Sommer, and SOMMER V. CLAUDIN. PATENT INTERFERENCE. Decided June 5, 1908. 134 O. G., 2243. INTERFERENCE-MOTION TO DISSOLVE-TRANSMISSION. A motion to dissolve on the ground of non-patentability based on patents granted on applications filed subsequently to the date of invention alleged by one of the parties to the interference in his preliminary statement should not be transmitted. APPEAL ON MOTION. WIRE-FENCE MACHINE Messrs. E. S. Wheeler & Co. for Raymond. Mr. E. G. Siggers and Mr. Charles W. La Porte for Kitselman. Mr. Charles W. La Porte for Claudin. BILLINGS, Assistant Commissioner: This is an appeal by Raymond from a decision of the Examiner of Interferences refusing to transmit a motion to dissolve. The motion to dissolve alleged that the issue was not patentable in view of certain patents to Snedeker, which were cited. The Examiner of Interferences refused to transmit the motion on the ground that it was filed after the thirty days allowed by the rules for bringing such motions and on the further ground that the applications upon which the Snedeker patents were granted were filed subsequently to the date of invention alleged in Kitselman's preliminary statement. Since the dates on which the Snedeker applications were filed are subsequent to the date of invention alleged in Kitselman's preliminary statement, the patents cited are not valid references. (Forsyth v. Richards, C. D., 1905, 115; 115 O. G., 1327.) It is contended by Raymond that the decision in Forsyth v. Richards is not applicable to this case, because the Snedeker patents not only show the invention in issue, but claim it, and therefore cannot be overcome by affidavits, as was the case with the reference cited in Forsyth v. Richards. He argues, therefore, that there was such irregularity in declaring the interference as to preclude a proper determination of the question of priority. The motion to dissolve, however, did not set up irregularity in the declaration, but nonpatentability of the issue, and as under the decision cited the patents cited in the motion are not valid references the Examiner of Interferences properly refused to transmit the motion. It may be stated, however, that even if the parties to the interference could make the claims of the Snedeker patents it would afford no ground for the dissolution of the interference, since an interference could not be declared between the patents to Snedeker and the applications involved here on the issue of this interference. The refusal to transmit the motion on the ground that it was filed late was clearly correct, for the letter of March 11, 1908, stated that the preliminary statements had been approved and fixed the period within which to bring motions to expire on April 11, 1908. The decision of the Examiner of Interferences is affirmed. EX PARTE BARCLAY & BARCLAY. APPLICATION FOR REGISTRATION OF TRADE-MARK. Decided June 25, 1908. 135 O. G., 217. 1. TRADE-MARKS-REFUSAL TO REGISTER-NOT REVIEWABLE ON PETITION. An action by the Examiner of Trade-Marks which constitutes a reJection of an application is appealable under section 8 of the act of 1905 and is not therefore a matter which is entitled to consideration on petition. 2. SAME-SAME-" FOOD AND DRUGS ACT." It is incumbent upon the Patent Office in considering the registration of trade-marks to coöperate with the other departments of the Government in the observance of the provisions of the Food and Drugs Act of June 30, 1906, and to that end it is the duty of the Examiner of Trade-. Marks to refuse to register a mark when in his opinion statements are contained in the labels presented which fall under the category defined as "misbranded" in that act. 3. SAME REJECTION AFTER PUBLICATION-PRACTICE. The fact that a mark has been published in the OFFICIAL GAZETTE and thereafter opposition proceedings successfully defended does not preclude the Examiner of Trade-Marks from refusing to register the mark where a statutory bar is found or where by reason of the interpretation of the statutes relating to trade-marks in decisions rendered by the court and by the Commissioner subsequent to the publication of the mark he is of the opinion that registration of the mark should be refused. ON PETITION. |