ROBB, J.:

This is an appeal by the Brown-Forman Company from the decision of the Commissioner of Patents, in a trade-mark-interference case, that it is not entitled to register under the so-called ten-years clause the words "Old Tucker" as a trade-mark for whisky. (C. D., 1907, 146; 128 O. G., 1293.)

The Commissioner held that inasmuch as the Beech Hill Distilling Company, the junior party to the interference, had used the words "J. C. Tucker" as a trade-mark as early as January 15, 1902, and the Brown-Forman Company since December 1, 1903, had acquiesced in such use, appellant was not entitled to registration under the ten-years' clause because it had not been the exclusive user of the mark for ten years prior to 1905. The application of the Beech Hill Distilling Company was for registration as a technical trade-mark. This application was denied, and the applicant acquiesced in the decision of the Commissioner.

It is not denied that appellant used this mark for ten years prior to 1905, the sole question being whether its use was exclusive within the meaning of the statute. The originator and sole owner of the Beech Hill Distilling Company testified that he originated the brand " J. C. Tucker Rye" in December, 1901, and that he first used it January 14, 1902, and that its use continued without interruption from that time. The witness produced sample labels and a bill dated January, 1902, from the lithographing company that furnished this first order of labels. The bookkeeper of the company next testified that she had been employed by the company since December, 1901, and that the brand or trade-mark “ J. C. Tucker Rye " had been used continuously by the company since January 15, 1902. She produced the salesbook, which enabled her to fix definitely the date of the first sale. Another witness testified that he had manufactured cases and bottles for the company since the early spring of 1902, and that the brand "J. C. Tucker Rye" had been used continuously since that time.

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The president of the Brown-Forman Company admitted that he learned of the use of the trade-mark " J. C. Tucker" by the Beech Hill Distilling Company in December, 1903, and that he wrote the company about the matter, but made no further objection thereafter.

The facts bring this case within the rulings in Natural Food Co. v. Williams, ante, 320; 133 O. G., 232; and Worcester Brewing Co. v. Rueter, ante, 329; 133 O. G., 1190. Registration was denied in both cases because of an adverse use of the mark.

The decision of the Commissioner was right, and, therefore, is affirmed. The clerk of the court will certify this opinion and the

proceedings in this court to the Commissioner of Patents, in accordance with law. Affirmed.

[Court of Appeals of the District of Columbia.]

THE PETER SCHOENHOFEN BREWING COMPANY v. THE MALTINE COM

PANY.

Decided February 4, 1908.

134 O. G., 1804; 30 D. C., 346.

TRADE-MARKS" EDELWEISS-MALTINE" ANTICIPATED BY

"MALTINE."

A trade-mark consisting of the compound word "Edelweiss-Maltine was properly refused registration in view of the prior use of the word "Maltine" as a trade-mark for goods of the same descriptive properties.

Mr. T. A. Banning for the appellant.

Mr. J. R. Edson, Mr. D. H. Decker, and Mr. W. W. Thompson for the appellee.

VAN ORSDEL, J.:

This is an appeal from the decision of the Commissioner of Patents refusing to grant the application of appellant for the registration of a trade-mark. The application was filed September 5, 1905, Serial No. 12,233.

The appellant filed an application in the Patent Office for the registration of the trade-mark in question described as follows:

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The trade-mark consists of the hyphenated word “Edelweiss-Maltine," the word Edelweiss" being written in script with a scroll thereunder, and the word Maltine" being written in block letters.

The appellee opposed the registration of the mark for the reason that it is the owner of the trade-mark "Maltine." The ground of opposition is that the use of appellant's mark would create confusion in the trade, and interfere with the established trade of appellee. The goods of the contending parties to which the respective marks are applied have the same descriptive properties. The same questions are here presented and the same record relied upon as in Patent Appeal No. 448. In that case, we have this day affirmed the decision of the Commissioner of Patents refusing the registration of a similar mark. The parties are the same in both cases, and the issues are substantially the same. For the reasons set forth in our opinion in No. 448, the decision of the Commissioner of Patents is affirmed. The clerk will certify these proceedings as required by law.

[Court of Appeals of the District of Columbia.]

THE PETER SCHOENHOFEN BREWING COMPANY v. THE MALTINE

COMPANY.

Decided February 4, 1908.

134 O. G., 1805; 30 App. D. C. 340.

1. TRADE-MARKS-OPPOSITION-CLASS OF GOODS.

For the purpose of registration a fermented malt liquor which is advertised as a "pleasing tasteful invigorating tonic as well as a pleasant beyerage, for strengthening and building up the system recommended for convalescents and nursing mothers by all leading physicians," must be considered as goods of the same descriptive properties as a non-alcoholic viscous syrup sold as a medicine and tonic, notwithstanding the fact that in the application for registration the former is designated as lager-beer. 2. SAME-SAME-MISREPRESENTATION IN ADVERTISING.

The fact that a fermented malt liquor to which applicant applied its mark was advertised as a tonic and as a product entirely different from that described in the application is sufficient ground for the refusal of registration.

3. SAME-SAME" EDELWEISS-MALTINE" SET IN AN ELABORATE DESIGN ANTICIPATED BY 'MALTINE."

A trade-mark consisting of the compound word 'Edelweiss-Maltine " set in an elaborate picture or design was properly refused registration in view of the prior use of the word "Maltine" as a trade-mark for goods of the same descriptive properties.

Mr. T. A. Banning for the appellant.

Mr. J. R. Edson, Mr. D. H. Decker, and Mr. W. W. Thompson for the appellee.

VAN ORSDEL, J.:

This is an appeal from the Commissioner of Patents refusing an application for the registration of a trade-mark.

The appellant, The Peter Schoenhofen Brewing Company, on September 25, 1905, filed its application, Serial No. 12,952, for the registration of a trade mark or name consisting of the compound or hyphenated word "Edelweiss-Maltine" set in an elaborate picture or design described in the application as follows:

The trade-mark consists in a transversely-elongated right panel having a narrow center and rounded ends and having a gold border. Upon the panel appears in script letters the word "Edelweiss" and in block letters the word "Maltine" located somewhat below the word "Edelweiss." Above the right panel is a segmental gold-bordered blue panel having in its center a medallion bust-portrait of a woman with edelweiss-flowers in her hair, and around the portrait are vines, grain, etc. Within the upper panel appear the words, A

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superior extract of barley, malt and imported hops." Below the right panel is a lower rounded panel having a yellow center and a blue exterior with a gold border. Within the lower panel appear the words, "Bottled only by the Malt Extract Dep't of The P. Schoenhofen Brewing Co., Chicago." This trade-mark has been continuously used by appellant since December 15, 1900.

The appellee on April 17, 1906, filed its opposition to the registration of this trade-mark and assigned as a reason for such opposition that its use by appellant was "calculated to create confusion in the trade, and to interfere with the established trade." A large amount of evidence was taken in the case. It appears that three different certificates of registration on the trade-mark "Maltine" were obtained by the appellee and its predecessors between the years 1875 and 1905. It may be stated that the specification upon which the trade-mark "Maltine" was registered provided in general terms for its use on medicinal preparations containing malt extract. It is claimed by appellee that the word "Maltine was originally coined and applied as a trade-mark to the product which is now widely known to the public by that name. The same person coined the word who discovered the product. "Maltine" has gained a wide use as a medicine and tonic, and is prescribed extensively by physicians, and sold generally by druggists. The record discloses an analysis of the respective products of the parties to this interference. The analysis is as follows:

It will be observed that the products possess in varying percentages the same properties, except that "Maltine" contains no alcohol or carbonic acid, but it does contain a plain trace of diastase, while "Edelweiss-Maltine" contains both alcohol and carbonic acid, but no

diastase.

A trade-mark is registered for the purpose of enabling the owner to use it exclusively as a distinguishing name for a certain product, and thereby enable him to gain the advantages that follow such a distinct designation in extending and enlarging his business. The purpose of the trade-mark is to get before the public, in a unique and impressive manner, the goods on which the mark is used and to distinguish such goods from all other goods on the market of the same class or description. It serves a twofold purpose, to protect the owner from unfair competition and the public from being deceived. Being

devoted to this twofold use, it is important to keep in mind, that it is the design appearing on the goods, and not the specifications filed in the Patent Office on which the trade-mark was registered or is sought to be registered, that affects the public mind and protects the trade of the owner. It is the trade-mark and not the specifications that is exposed to public inspection. People generally are not interested in what the specifications contain. In the case at bar, while the applicant's specifications allege that

the class of merchandise to which the trade-mark is appropriated is fermented liquors, and the particular description of goods comprised in said class, upon which said mark is used is lager-beer

there is nothing on the face of the mark or design in which it is used, or on the packages or bottles to which it is applied, to indicate that they contain either fermented liquor or lager-beer. The exhibits of the applicant's goods on which the mark "Edelweiss-Maltine" is used, which were introduced in evidence, show that labels are used thereon describing the contents as follows:

A superior extract of barley, malt and imported hops, bottled only by the Malt Extract Dep't of The P. Schoenhofen Brewing Co., of Chicago.

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The bottles also bear a caution" label which states that

Edelweiss-Maltine is the highest concentration of the pure health-giving properties of selected malt and hops. Edelweiss-Maltine will promote perfect and restful sleep, quiet the nerves, aid digestion, will restore and assist nature in the action of the stomach, liver and kidneys, without any after-effects. Edelweiss-Maltine is an invaluable aid to men and women in convalescence, a boon to nursing mothers. It is simply a perfect food for brain, body and mind. Drink a glass at meals and before retiring, and as a beverage it is good for you. Keep in a cool dark place.

There was also introduced in evidence a blotter that had been issued by the appellant company on which appeared the design described in the application in this case, except that on the blotter the word. "Maltine" is by far the most prominent feature, the word "Edelweiss" being obscure and partially inclosed within an initial curve of the letter "M" of "Maltine." The product of appellant is described on the blotter as follows:

A pleasing, tasteful, invigorating tonic, as well as a pleasant beverage, for strengthening and building up the system, recommended for convalescents and nursing mothers by all leading physicians. 12 bottles $1. Prepared by The P. Schoenhofen Brewing Co., Malt Extract Dep't.

We are impressed with the discrepancy between the language used by appellant in its application, which describes a fermented alcoholic beverage, and the labels on the packages and bottles, on which the trade-mark sought to be registered is used, and the blotter, which attributed to the product purely medicinal qualities. In other words, it is apparent that appellant, in its application filed in the Patent 69025-H. Doc. 1349, 60-2-26