to know if you want your name on the label and your street address as it is on this one; or would you like the plain label "Star Brand of Condensed Milk." * * * The label will be made style of an inclosed large star in center Star Brand. In reply, Kenneweg & Co. said: 66 We prefer not to have our name or address on the label, simply Star Brand Condensed Milk" and a large cut of a star. Kenneweg testified that he had previously sent a rough sketch of the desired mark. This was denied by the opponent's general manager, Parsons. A shipment of twenty-five cases of milk, labeled as shown, was made to Kenneweg & Co. on May 19, 1891, and others thereafter during the several years that the parties did business with each other. Kenneweg testified that the figure of the star on these labels was colored red, with the surrounding words printed in blue upon white paper. The evidence on behalf of the opponent shows that Kenneweg was mistaken in the color of the star on the earlier shipments, as the labels printed at that time were entirely blue in color on white paper. It also shows that the first labels with the red star were not printed until 1893. Kenneweg may, however, have confused the labels of later shipments with those of the earlier ones, as they were identical save in the color of the representation of the star. However this may be, Kenneweg & Co. continued for several years to order and sell to their customers the "Star Brand Condensed milk." Sales were made in Maryland, West Virginia, and Pennsylvania, and one case was shipped to Canada. The evidence of the Michigan Condensed Milk Company showed that on the same day that the first shipment was made to Kenneweg & Co., another was made to a dealer in New Jersey having the same label. The name of the manufacturer did not appear on any of these labels. Other shipments were made to the New Jersey party during 1891 and some to a dealer in Boston in 1891. Eight hundred and fifty cases in all were shipped to Kenneweg & Co. after business with them commenced. No notice was given to Kenneweg & Co. of the use of the labels in shipments to others, and the fact did not become known to them until October, 1895, after they had registered the trade-mark under the former law. The Michigan Company never applied for registration, but printed a registration-number on their later labels. This was claimed as a registration trade-mark in later correspondence with Kenneweg & Co. after their relations became strained. The evidence showed that this so-called registration was in the office of some trade journal in New York which registered trade-marks at request of customers or subscribers. It is a fact admitted by the Michigan Company that during the several years that it dealt with Kenneweg & Co., it had shipped no milk with this label to any other dealer in the State of Maryland. The Michigan Company attempted to show that it had an agreement with Kenneweg & Co. by which the latter was to have the exclusive right to sell the "Star Brand Milk" in Cumberland and vicinity. This, Kenneweg, as a witness, expressly denied. As the parties had never met so as to have an oral agreement of any kind, it must have been made in writing, either through the execution of a formal agreement, or the correspondence of the parties. No attempt was made to show that such an agreement had ever been executed, and the only thing in the correspondence suggesting it, during the time the parties were doing business with each other, was contained in a sentence in a letter written by the Michigan Company to Kenneweg & Co. under date of August 17, 1891. This began with a reference to the fact that no order had been received for a long time, and the sentence referred to is this: We expected you to have a large sale in this brand as you have the exclusive control of it in your city. Kenneweg & Co. replied briefly saying that milk was too abundant to sell much of the condensed article, but expected to have usual trade for it in a month or two. As the Michigan Company was then actually selling and preparing to sell milk in large quantities under this brand, in other markets, there may or may not have been a design in this casual reference to an exclusive control in Cumberland. And Kenneweg & Co., not knowing of other sales under this label, may not have attached any significance to those words. While this reference in the letter and Kenneweg & Co.'s failure to dispute it in the reply might have become an important circumstance in corroboration of other testimony tending to show the agreement claimed, it is not sufficient, by itself, to constitute proof that an agreement in accordance with it had been previously made. The Michigan Company failed also to make good its allegation of adoption and use of the label before the request of Kenneweg & Co. for a private brand. As stated in the letter to Kenneweg & Co. before mentioned, the woodcut for printing this label was prepared thereafter. The Examiner of Interferences, who sustained the opposition on other grounds, found, as did the Commissioner, that there had been no such previous adoption of the trade-mark by the opposing company. In his decision, the Examiner of Interferences stated it to be the law that: Where a customer orders a manufacturer to put up goods under a certain brand which originates with the customer, that brand belongs to the customer and not to the manufacturer. The correctness of this proposition has not been controverted. His conclusion, however, was that there was sufficient evidence to show that the Michigan Company had used the brand as a trade-mark, and that Kenneweg & Co. only had the exclusive right to sell goods with the label upon them in Cumberland and vicinity. As shown hereinbefore, this conclusion was erroneous. It was not until October, 1895, about six months after the registration of the trade-mark, that Kenneweg & Co. discovered the fact that the Michigan Company had been selling and shipping milk, under this trade-mark, to Chicago. The later correspondence between the parties growing out of this discovery sheds no important light upon the necessary facts on which the controversy depends. It is enough to say that the Michigan Company declared its original adoption of the trade-mark, and maintained that the sole right of Kenneweg & Co. therein was to its exclusive use in Cumberland and vicinity-a mere license-while Kenneweg & Co. asserted their own right to ownership of the trade-mark. The opponent having, in our opinion, failed to overcome the right of the Kenneweg Company, it remains to consider whether the latter has lost that right by its laches. This contention is founded on the fact that the Kenneweg Company and its predecessor took no steps, after discovering the use of the trade-mark by the Michigan Company to prevent that use. Consent to the appropriation of his trade-mark by another is not to be inferred from long knowledge and silence. The use of one's trademark by another is a continuing wrong and the right to prevent its continuance can rarely be lost by mere delay of assertion. There must be some element of estoppel. Clearly, the Kenneweg Company has never abandoned the trade-mark. It protested against its use by the Michigan Company, but for some reason has never brought suit. It is well settled that delay will not prevent an injunction against an infringement, though it may have been so long continued as to deprive the complainant of his right to past damages. (McLean v. Fleming, C. D., 1878, 262; 13 O. G., 913; 96 U. S., 245, 251; Menendez v. Holt, C. D., 1889, 344; 46 O. G., 971; 128 U. S., 514, 523.) If mere delay would not protect an infringer from an injunction against further use of a trade-mark it necessarily follows that it cannot be made on the ground of successful opposition to its registration by the owner. Being of the opinion that the Commissioner's decision was right, it will be affirmed. It is so ordered, and that this decision be certified to the Commissioner of Patents as required by law. Affirmed. [Court of Appeals of the District of Columbia.] BOSSART v. РоHL. Ронl v. BOSSART. Decided April 7, 1908. 135 O. G., 453; 31 App. D. C., 218. INTERFERENCE-ORIGINALITY-ADMISSION OF PRIOR INVENTION BY ANOTHER. Mr. W. N. Cromwell and Mr. J. W. Steward for Bossart. VAN ORSDEL, J.: This is an appeal from the Commissioner of Patents, in interference proceedings, awarding priorities to the respective parties upon the following issues: 1. In combination, a means for treating the threads with a finishing solution, and a heated metallic body over which the threads are adapted to be drawn after leaving said means, the approach end of the surface portion of said body being removable. 2. In combination, a means for treating the threads with a finishing solution, a heated metallic body over which said threads are adapted to be drawn after leaving said means, said body having a recess in its approach end, and a removable metallic plate arranged in said recess. 3. In a machine for finishing and lustering textile filaments, a heated body having a contact-surface for the threads, and having a part thereof which goes to make up the said surface at the approach end thereof removable. 4. In a machine for finishing and lustering textile filaments, a heated body having a stationary contact-surface for the threads, and provided also at its approach end with a removable contact-surface, said stationary and removable surfaces retained in register during the normal operation of the device, whereby the two said surfaces are at such times substantially continuous. 5. The combination of a suitable support, means for treating the threads in a suitable solution, a heated thread-contact surface, and means for subjecting the threads to a steam bath subsequent to receiving the solution treatment and before reaching said heated surface. 6. The combination of a suitable support, a heated thread-contact surface, a solution-containing receptacle, and means for subjecting the threads to a temperature intermediate between that of the solution and that of said surface and for steaming the threads. 7. The combination of a suitable support, a heated thread-contact surface, a solution-containing receptacle, and means for subjecting the threads to a temperature intermediate between that of the solution and that of said heated surface and for simultaneously moistening the threads. 8. In a machine for finishing and lustering textile filaments, the combination with a bath for containing liquid in which the filaments are to be immersed, and a heated contact-surface over which the filaments are arranged to travel of an absorber arranged between the bath and the contact-surface, said absorber provided internally with heating means. 9. In a machine for finishing and lustering textile filaments, the combination with a bath for containing liquid in which the filaments are to be immersed, and a heated contact-surface over which the filaments are arranged to travel of a heated absorber comprising a felt-covered steam-pipe arranged between the bath and the contact-surface. The inventions involved in this controversy consist of improvements on a silk-finishing machine. The machine consists of a tank containing a solution, through which the silk threads are drawn, and a heated table, over which the threads are passed for the purpose of drying the solution. The inventions in question are intended to prevent a deposit or accumulation of the solution on the end of the table next to the tank, which becomes soiled and sticky in the course of use, and thereby prevents the proper operation of the machine. To overcome this defect, the two inventions here in controversy were made. One of the inventions consists of a movable plate inserted in the end of the table in such a manner that, when an accumulation occurs, the plate can be removed and cleaned. This device is set forth in counts 1, 2, 3, and 4 of the issue. The second invention in issue consists of a steam-pipe having a felt-cloth covering called an absorber, which is placed between the tank and the table. The threads, after passing through the tank, pass over this device, which absorbs the surplus solution. This invention is embraced in counts. 5, 6, 7, 8, and 9. Both parties to the interference claim the invention of both devices. As to the removable plate, Pohl alleges conception of the invention on October 1, 1904; disclosure January 16, 1905, and reduction to practice February 1, 1905. Bossart alleges conception of the invention about January 18, 1905; disclosure about January 20, 1905, and reduction to practice on April 11, 1905. As to the absorber, Pohl alleges conception of the invention on October 1, 1904, disclosure January 1, 1905, but no actual reduction to practice is alleged. Bossart alleges conception about February 20, 1905; disclosure about February 25, 1905, and reduction to practice on April 11, 1905. The matter comes here on appeals by both Pohl and Bossart from the decision of the Commissioner of Patents affirming the decision of the Examiners-in-Chief, who, in turn, affirmed the decision of the Examiner of Intereferences, awarding priority of invention to Pohl as to counts 1, 2, 3, and 4, and to Bossart as to counts 5, 6, 7, 8, and 9 of the issue. The contestants appear to be experts in silk manufacture, and were employed during 1904 at the Meding Mills at Paterson, N. J. Bos |