of contemporaneous use by the opposer after the passage of the act is not sufficient to negative the "exclusive" use required by the statute. In order to negative exclusive use, contemporaneous use within the ten years next preceding the passage of the act must be shown.

2. SAME

SAME-Grounds FOR REFUSING REGISTRATION.

While the statute provides that any one who believes he would be damaged by the registration of a mark may oppose registration of the same, registration cannot be refused by the Office unless the opposer shows that the mark does not come within the registrable marks specified in section 5 of the Trade-Mark Act.

APPEAL from Examiner of Interferences.

TRADE-MARK FOR LAUNDRY STARCH.

Mr. Archibald Cox for Oswego Maize Products Company. Messrs. Dickerson, Brown, Raegener & Binney for National Starch Company.

BILLINGS, Assistant Commissioner:

This is an appeal by the Oswego Maize Products Company from a decision of the Examiner of Interferences dismissing its notice of opposition to the registration by the National Starch Company of the word "Oswego" as a trade-mark for corn-starch.

The mark claimed is geographical, being the name of a well-known city of the State of New York. Registration can be granted, therefore, only under the "ten-years" clause of section 5 of the present Trade-Mark Act.

The record is clear that applicant used the mark claimed as a trademark for more than ten years next preceding the passage of the Trade-Mark Act, and appellant does not appear to be contesting this question.

But it is contended that such use was not exclusive, because the evidence shows that opposer used this word prior to April 1, 1905, the date of the passage of the act, or at any rate that opposer began the manufacture and sale of starch before such date, as is conclusively shown by the fact that it registered the mark "Velvet" for starch in January, 1905.

The Examiner of Interferences discussed the evidence relative to the question of opposer's use of the mark prior to April 1, 1905, and concluded that it failed to prove such use. Appellant points out that the witness called on behalf of the opposer testified that the use of the word "Oswego" began very soon after the business of opposer began, and that in view of the fact that the opposer registered the mark "Velvet" for starch in January, 1905, on an application filed December 28, 1904, in which the accompanying affidavit stated that such mark had been used since about December 1, 1904, it must be concluded that opposer's business began before April 1, 1905, and it

is argued that if this evidence proves that the business began before April 1, 1905, it also sufficiently proves the use of the word "Oswego before this time, since opposer could not carry on business without using its corporate name and address, each of which includes the word "Oswego;" but this evidence is not regarded as sufficient to discharge the burden of proof resting upon the opposer upon the issue of contemporaneous use within the ten-year period thus raised by the

opposer.

It is also urged that it is not necessary to show use by the opposer prior to the passage of the Trade-Mark Act, but that it is sufficient to negative exclusive use by the applicant if it is shown that another began the use of the mark after the date of the passage of the act and before the filing of the application against which the opposition is directed. Upon this point I am of the opinion that the meaning of the statute is clear. The statute clearly specifies the "passage of the act" as the end of the period within which exclusive use is required, and I am unable to see how the plain wording thereof can be construed in any other way.

The contention which appellant characterizes as involving the real merits of the opposition is that, as section 6 of the present Trade-Mark Act provides that any one who "believes he would be damaged by the registration of a mark may oppose the same," if an opposer shows that he would be damaged by the registration such registration must be refused unless the applicant has a monopoly in the use of the mark for which registration is asked. Appellant then points out reasons why he would be damaged and endeavors to show that the applicant has no right to a monopoly of the mark claimed, from which he concludes that registration should be refused; but it is thought that this argument misconceives the purpose and effect of the present statute. While the statute provides that any one who believes he would be damaged may oppose a registration, it seems clear that an opposition cannot be successful unless the opposer shows that the mark does not come within the registrable marks specified in section 5 of the act. Section 5 states that

No mark by which the goods of the owner of the mark may be distinguished from other goods of the same class shall be refused registration as a trade-mark on account of the nature of such mark unless such mark

is of specified character. After specifying certain marks which shall not be registered this section concludes as follows:

And provided further, That nothing herein shall prevent the registration of any mark used by the applicant or his predecessors, or by those from whom title to the mark is derived, in commerce with foreign nations or among the several States, or with Indian tribes which was in actual and exclusive use as a trade-mark of the applicant or his predecessors from whom he derived title for ten years next preceding the passage of this act.

The applicant herein having made the necessary allegations to bring his case within this proviso, registration can be refused only upon evidence showing that he has not complied with some of its conditions. The notice of opposition sets forth only two grounds which bring in question applicant's non-compliance with such conditions, one of such grounds being that applicant has not used the mark as a trade-mark, and the other that the applicant has not had exclusive use of the mark during the ten-year period specified. As stated above, the evidence is regarded as clearly showing applicant's use of the mark as a trade-mark. The record also fails to show that any person, firm, or corporation other than the applicant used the mark as a trade-mark within the ten years next preceding the passage of the act, as above pointed out, and hence there is nothing in the record to overcome applicant's prima facie right to registration.

The decision of the Examiner of Interferences dismissing the opposition is affirmed.

PAPENDELL v. BUNNELL v. REIZENSTEIN v. GAISMAN v. GILLETTE.

PATENT INTERFERENCE.

Decided January 15, 1908.

132 O. G., 1837.

INTERFERENCE-MOTION TO DISSOLVE-DELAY IN BRINGING.

The fact that an appeal had been taken from a decision refusing to transmit a former motion to dissolve and that applicant was awaiting a decision thereon Held insufficient to excuse delay in bringing a second motion.

APPEAL ON MOTION.

SAFETY RAZOR.

Messrs. Redding, Kiddle & Greeley for Papendell.

Messrs. Redding, Kiddle & Greeley and Mr. Arthur P. Greeley for Bunnell.

Messrs. Wiedersheim & Fairbanks for Reizenstein.

Mr. T. F. Bourne for Gaisman.

Mr. E. D. Chadwick and Messrs. Bacon & Milans for Gillette.

MOORE, Commissioner:

This is an appeal by Bunnell from a decision of the Examiner of Interferences refusing to transmit a motion to dissolve.

It appears that on July 26, 1907, an order was issued against Bunnell to show cause why judgment on the record should not be rendered. against him. On August 22, 1907, Bunnell brought a motion to dissolve, which the Examiner of Interferences, in a decision rendered

August 26, 1907, refused to transmit, on the ground that the allegations upon which the motion was based were not sufficiently specific. Upon appeal this decision was affirmed by the Assistant Commissioner on October 29, 1907. On November 21, 1907, Bunnell brought another motion to dissolve, which was denied by the Examiner of Interferences in a decision rendered November 29, 1907, on the ground that the motion was brought long after the time allowed for bringing such motions and that the facts set up in excuse of the delay did not cover the whole period of delay. It is from this decision that the present appeal was taken.

The excuse offered for the delay is that the present attorney was not actively called into the case till after the first decision of the Examiner of Interferences; that it seemed to him that an appeal from that decision was proper; that the decision of the Assistant Commissioner indicated that a second motion might be filed if accompanied by a sufficient excuse for the delay; that the present motion was filed as soon as it could be prepared thereafter.

The decision of the Examiner of Interferences, holding this excuse insufficient was correct. As pointed out in Rockstroh v. Warnock, (ante, 10; 132 O. G., 234,) where a motion to dissolve is refused transmission as being not sufficiently specific an amended motion curing the informalities of the first may be transmitted if filed within the limit of appeal. If filed thereafter, it can be transmitted only when accompanied by a sufficient excuse for the delay. Clearly the fact that an appeal had been taken from the first decision and that applicant was awaiting a decision on the appeal before he began to prepare the amendment is not a sufficient excuse for the delay.

The decision of the Examiner of Interferences is affirmed.

EX PARTE DILG AND FOWLER, Jr.

APPLICATION FOR PATENT.

Decided January 30, 1908.

132 O. G., 1837.

ABANDONMENT OF APPLICATION-DELAY NOT UNAVOIDABLE.

Where an applicant delays action on an application beyond the statutory period in order to prevent another party from securing access thereto by reason of its being the parent case of an application involved in interference with such party, Held that the failure to act was not unavoidable within the meaning of section 4894 of the Revised Statutes and that the applica tion is abandoned.

ON PETITION.

SOAP-SUPPLIER.

Mr. J. Odell Fowler, Jr., for the applicants.

MOORE, Commissioner:

This is a petition requesting that an application be held not abandoned although action therein was delayed beyond the statutory period of one year.

It appears that petitioners have a copending application covering matter disclosed in this application and which was divided out for the purposes of interference. During the progress of the interference the opposing party requested access to the present or parent applica tion, which was refused. Petitioners aver that they understood from the decision denying access that the matter was not determined by such action, but that a final decision would be later rendered by the Commissioner.

The year allowed for action in this case expired on December 26, 1907. Petitioners state that they did not wish to amend the application until after the question of access thereto was finally determined, because if they did amend and access was granted the opposing party would have knowledge of such amendment contrary to their desires. It is averred that the amendment, which it is now sought to have considered in the case, was prepared long before the expiration of the year and that petitioners were ready to file the same as soon as the question of access was finally determined.

It is believed that the delay in this case was not unavoidable within the meaning of section 4894 of the Revised Statutes. Although petitioners were aware that action was required on or before December 26, 1907, they deliberately let this time pass without action in order to prevent the possibility of an opposing party to a related interference securing access to such amendment. Petitioners' understanding regarding the determination of the motion for access in the interference proceeding has nothing to do with this case and cannot affect the decision herein. Even if petitioners' understanding were correct and the Commissioner had, in fact, taken up the petition for access and determined the questions presented they could not have deferred action in this case beyond the year whether such decision had been rendered before or after the expiration of the year. If the Commissioner had decided the matter before the expiration of the year, action would have been necessary before the end of that period and if he had decided it after such period petitioners could not successfully excuse inaction because the matter was not decided earlier.

The petition is denied.