27. SAME-APPEAL FROM DECISION DENYING MOTION TO DISMISS.-An appeal from a decision of the Examiner of Interferences denying a motion to dismiss a notice of opposition will not be allowed. Id.

28. SAME AMENDMENT TO NOTICE OF.-An amendment to a notice of opposition setting forth that the opposer believes he would be damaged by the registration of the mark Held to have been properly admitted. Id.

29. SAME-RESEMBLANCE OF MARKS.-Applicant's mark consists of the representation of two hands above the figure "5" and the words "To One" associated therewith. The mark of the opposer consists of the numeral "1," with the numeral "3" and the word "In" contained within the numeral “1” and the words "Three in One" associated therewith. Held that these marks do not so resemble each other that purchasers would be likely to be deceived thereby. G. W. Cole Co. v. Marshall Oil Co., 88.

30. SAME ACTUAL CONFUSION.-Where the marks of the opposer and the applicant do not so nearly resemble each other that it is apparent that confusion in trade would be likely to arise from their use, registration of applicant's mark will not be refused in the absence of proof that confusion has taken place. Id.

31. CANCELATION-PLEADING-SUFFICIENCY OF PETITION.-As the statute providing for the cancelation of registered trade-marks (act of Feb. 20, 1905, sec. 26, 33 Stat. L.) does not contemplate that any one may petition the Commissioner to cancel a trade-mark regularly registered, but it does provide that any one who "shall deem himself injured" may do so, the petition for cancelation must contain a statement of fact on this jurisdictional question sufficiently full to show that the petitioner has been injured by the registration, and this fact must not be left to conjecture, but must affirmatively appear, and where such a statement of fact is lacking the petition is demurrable. *E. McIlhenny's Son v. New Iberia Extract of Tabasco Pepper Company, Limited,

325.

32. SAME-SAME.-An averment in a petition for the cancelation of the registered trade-mark "Tabasco" for pepper-sauce that petitioner has used such trademark is not sufficient, for the reason that unless the word has been used in the same business no injury contemplated by the statute would have followed.

*Id.

33. SAME-SAME. In a petition for the cancelation of a registered trade-mark a general averment that the registration "has been much to the prejudice, damage, and loss" of the petitioner unsupported by averments of facts is merely the conclusion of the pleader and is not a sufficient averment of damage to give petitioner a standing in a cancelation proceeding. *Id. 34. INTERFERENCE-MOTION TO DISSOLVE-TRANSMISSION REFUSED.-The question of the right of an applicant for registration of a trade-mark to demand an interference with another party because of his failure for more than two years to file a notice of opposition to the registration of the mark of such party is a question for the determination of the Examiner of Interferences at final hearing after opportunity has been had for the presentation of testimony and is not a proper question for transmission to the Examiner of Trade-Marks on a motion to dissolve. Graham Paper Co. v. National Blank Book Co., 90. 35. DESCRIPTIVE -"STERLING."-The word "Sterling" as a trade-mark for ale or for any other kind of goods is descriptive of the quality of the articles on which it is used, as it denotes that the article is genuine, pure, and of superior quality, and it is therefore ineligible for registration as a technical mark. *Worcester Brewing Corporation v. Rueter & Company, 329.

36. NON-TECHnical Marks—TEN-YEAR PROVISO-EXCLUSIVE USE.-A nontechnical mark is not entitled to registration under the ten-year proviso of

section 5 of the Trade-Mark Act of February 20, 1905, unless it is shown that the applicant possessed and enjoyed an actual use of the mark for the specified period to the sole exclusion of all others, and if it appears that during such period another was using the same word as a trade-mark upon the same character of goods the use cannot be considered "exclusive" within the meaning of the statute. *Id.

37. “FITS-U”—DESCRIPTIVE.—The word "Fits-U" as a trade-mark for eye glasses and spectacle frames and mountings is a mere misspelling of the descriptive words "fits you" and is not registrable as a technical trade-mark. Ex parte American Optical Company, 102.

38. "MERELY DESCRIPTIVE"-SECTION 5 OF THE ACT OF 1905 CONSTRUED.— The registration of words or devices which are "merely descriptive" being prohibited by section 5 of the act of 1905, an arrangement of the letters of such a word in a particular way or a mere misspelling thereof does not avoid the prohibition. Id.

39. "HOLD ON"-DESCRIPTIVE.-The words "Hold On" as a trade-mark for clutches for scarf-pins and hat-pins properly refused registration, since it is descriptive of the character or quality of the goods to which it is applied. Ex parte C. P. Goldsmith & Company, 104.

40. OPPOSITION-TIME FOR FILING.-The thirty days allowed by statute for filing a notice of opposition include Sundays and holidays. Robert A. Keasbey Company v. Portland Cementfabrik Hemmoor, 106.

41. CANCELATION-MARKS NOT IDENTICAL.-The registration of a trade-mark consisting of a comet having the representation of a star at its head instead of the usual nebulous mass and associated therewith the words "The Comet" will not be canceled upon the application of the owner of the registered mark "Star" for the same class of goods, as there is no such near resemblance between the marks as to cause confusion in trade. Hutchinson, Pierce & Co. v. Loewy, 112.

42. SAME RIGHT TO PREVENT USE OF MARK BY ANOTHER IN COMBINATION WITH OTHER FEATURES.-The owner of a technical trade-mark consisting of the representation of a star and the word "Star" has no such right therein as would warrant the cancelation by the Patent Office of a registered mark for the same class of goods adopted at a later date consisting of a star and other features forming a part thereof which clearly distinguishes as a whole from the prior mark. Id.

43. OPPOSITION-USE OF ACCESSORIES BY ANOTHER.-Section 5 of the TradeMark Act permits the registration of a mark the controlling and distinguishing feature of which is an arbitrary symbol, although such symbol is accompanied by accessories which in themselves are not registrable, and the use by the opposer of such non-registrable accessories prior to applicant's use of his mark does not defeat the latter's right of registration. Johnson v. Brandau, 114.

44. "ASBESTOS "DESCRIPTIVE.-The word "Asbestos" as applied to shoes made of leather and asbestos is clearly descriptive. Id.

45. "MOUNTAIN DEW"-DESCRIPTIVE.-The words "Mountain Dew" as a trade-mark for whisky Held to be descriptive in character, and therefore not registrable, these words as commonly used meaning whisky or a particular kind of whisky. Robertson, Sanderson & Company, Ltd., v. Charles Dennehy & Company, 117.

46. APPLICATION-ALLEGATION OF EXCLUSIVE USE-CONSIDERATION AS TECHNICAL MARK.—The amendment of a trade-mark application by the addition of a statement that the mark has been in exclusive use by the applicant for ten years next preceding the passage of the Trade-Mark Act after refusal to

register the mark as a technical mark will not preclude consideration on appeal on priority of the question whether the mark is in fact a technical mark. Id.

47. "EXCELSIOR"-USE ON ARTICLE COVERED BY PATENTS-EFFECT OF EXPIRATION OF PATENTS.-Where a manufacturer sold several types of stepladders embodying features covered by several patents owned by him, to each of which types a different trade-mark was applied, one of such marks does not become public property upon the expiration of the patents where it appears that it was never used as a generic and identifying name of stepladders of his manufacture. Udell-Predock Manufacturing Company v. The Udell Works, 120.

48. ANTICIPATION.-A trade-mark the distinguishing feature of which consists of an Indian's head showing profile with the conventional feather headdress, within a circle, was properly refused registration in view of the prior use on the same class of goods of a mark showing a front view of an Indian's head with a feathered head-dress. *In re The Indian Portland Cement Co., 361.

49. SAME.-Where the mark of an applicant so resembles a prior registered mark that the goods of each would be likely to be known to the public by the same name, the registration of the former should be refused. *Id.

50. OPPOSITION-NOTICE OF AMENDMENTS.-Where the allegations of a notice of opposition were sufficient, if true, to defeat the application for registration, an amendment which set forth that the opposer believed he would be damaged by the registration was properly allowed. Hansen v. Inland Type Foundry, 122.

51. SAME JURISDICTION OF EXAMINER OF INTErferences.-A judgment was rendered against the opposer for failure to file a replication within the time set, and within the limit of appeal from such decision a replication and a motion to set the judgment aside were filed. Held that the case was in the jurisdiction of the Examiner of Interferences until the expiration of the limit of appeal, and it was within his discretion to reopen the case. Id. 52. SAME "STANDARD LINE" DESCRIPTIVE.-The words "Standard Line" as applied to type made according to the "lining system" are descriptive and cannot be registered as a technical trade-mark. Id.

53. SAME-REGISTRATION UNDER THE "TEN-YEAR" PROVISO.-The evidence considered and Held to show that applicant did not possess and enjoy the actual use of the mark "to the sole exclusion of all others" during the tenyear period necessary to entitle him to registration under the ten-year proviso. Id.

54. CLASS OF GOODS-PASTE PAINTS AND READY-MIXED PAINTS.-Ready-mixed paints and paste paints Held to be goods of the same descriptive properties. John T. Lewis & Bros. Company v. Phoenix Paint & Varnish Company, 128. 55. APPARENT ACQUIESCENCE NO GROUND FOR REFUSING REGISTRATION.-The fact that the owner of a trade-mark knowingly permits the use thereof by another upon goods and in advertisements for years without protest furnishes no sufficient ground for refusing registration, as it is well settled that mere delay in asserting a trade-mark right does not work a forfeiture thereof. (Menendez v. Holt, C. D., 1889, 344; 46 O. G., 971; 128 U. S., 514; McLean v. Fleming, C. D., 1878, 262; 13 O. G., 913; 96 U. S., 245, 253.) Id. 56. INFRINGEMENT NAME OF INDIVIDUAL.-Where the Hall's Safe and Lock Company, a corporation, the stock of which was largely owned by Joseph L. Hall, the founder of the business, and his sons, sold all its property, including trade-marks, trade-rights, good-will, and its business as a going concern, to

another company, which subsequently conveyed such rights to the HerringHall-Marvin Safe Company and agreed to go out of business, which it did with the assent of all its stockholders, such transfer did not preclude the sons of Joseph L. Hall from subsequently engaging in the same business and using the name of Hall as a part of the corporate name, particularly where it is shown that the purchasing company had before its mind the possibility of competition by the Halls and gave the measure of its expectations and demands by personal contracts that it required, which were limited in time and scope and were discharged before the new company was formed; but such name must not be used by the new company in such a way as to represent that it is the successor of the original company, or that its goods are the product of that company or its successors, or interfere with the good-will bought from it. **Donnell v. Herring-Hall-Marvin Safe Company and Hall Safe and Lock Company, 587. 57. SAME-SAME.-The Hall's Safe and Lock Company, a corporation, the stock of which was largely owned by Joseph L. Hall, the founder of the business, and his sons, sold all its property, including trade-marks, trade-rights, goodwill, and its business as a going concern, to another company, which subsequently conveyed such rights to the Herring-Hall-Marvin Safe Company and agreed to go out of business, which it did with the assent of all its stockholders. Therafter the sons formed another corporation under the name “Hall's Safe Co." and began the manufacture of the same class of goods. Held that while the Halls had a right to engage in the same business after such transfer, the use of the name selected would of itself deceive unless explained, and that the company purchasing the rights of the original company was entitled to an injunction forbidding the use of the name Hall, either alone or in combination, in corporate name, on safes, or in advertisements, unless accompanied by information that the defendant is not the original Hall's Safe and Lock Company or its successor, or, as the case may be, that the article is not the product of the last-named company or its successors. **Herring-Hall-Marvin Safe Co. v. Hall's Safe Co., 590.

58. COPY OF APPLICATION-WHEN GRANTED.-A petition for a copy of an application for registration of a trade-mark for use in a suit between the applicant and petitioner will be denied when not accompanied by a certificate of the judge before whom the suit is pending. In re John C. Dowd & Company, 134. 59. ASSIGNMENTS NOT CONVEYING THE GOOD-WILL OF BUSINESS-NOT RECORDABLE.-Section 10 of the Trade-Mark Act provides that a registered trademark or a mark for the registration of which application has been made shall be assignable in connection with the good-will of the business in which the mark is used, and it is only such assignments which are recordable in this Office. In re National Chemical Company, 138.

60. OPPOSITION-LEAVE TO AMEND.-A demurrer to a notice of opposition having been sustained by the Examiner of Interferences on the ground that the opponent did not allege that it had used the mark on goods of substantially the same descriptive properties as applicant's, the appropriate time to ask leave to amend was when the demurrer was sustained, and when the case came before the Commissioner on appeal it was discretionary with him to allow or to refuse the leave to amend. *Battle Creek Sanitarium Company, Limited, v. Fuller, 370.

61. SAME "HEALTH FOOD" DESCRIPTIVE.-The words "Health Food" as applied to bread, crackers, etc., are clearly descriptive of the goods with which they are used and cannot be appropriated and registered as a technical trade-mark. *Id.

62. SAME NECESSARY ALLEGATIONS.-It is not sufficient for an opponent to say that he believes he would be damaged by the registration of applicant's mark.

He must allege some fact showing an interest in the subject-matter from which damage might be inferred. *Id.

63. Same Same.-A party who has not used a mark as a trade-mark upon goods of a like description to applicant's can suffer no damage from its registration by the latter (McIlhenny's Son v. New Iberia Extract of Tabasco Pepper Co., ante, 325; 133 0. G., 995,) and a notice of opposition which alleges merely that the opponent used the mark in its advertising matter is demurrable. *Id. 64. ACTION OF Examiner Refusing to Register a Mark Not Reviewable ON PETITION.-The action of the Examiner of Trade-Marks objecting to the specimens filed, upon the ground that they do not show the use of the mark claimed as a trade-mark, constitutes a refusal to register the mark, which is reviewable upon appeal and not upon petition. Ex parte Barclay and Barclay, 142. 65. ANTICIPATION "CHANCELLOR CLUB" AND "CLUB."-Held that mark "Chancellor Club" for cocktails so nearly resembles the prior registered mark "Club Cocktails" for the same goods as to be likely to cause confusion in the mind of the public, and is therefore not registrable. *In re S. C. Herbst Importing Company, 383.

66. REGISTRATION-EXCLUSIVE USE.-Where the appellant applied under the ten-year proviso of the act of February 20, 1905, for the registration of the words "Old Tucker" as a trade-mark for whisky and it was shown that the appellee had used the words "J. C. Tucker" as a trade-mark for whisky since January 15, 1902, Held that the appellant is not entitled to register the mark, since it had not had exclusive use of its trade-mark for the statutory period. *Brown-Forman Company v. Beech Hill Distilling Company, 384.

67. PUBLICATION.-The question whether any substantial change has been made by amendment after publication in the class of goods stated in an application for registration which warrants a republication of the mark is one which should be left to the discretion of the Examiner of Trade-Marks. Ex parte The American Wringer Company, 145.

68. "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. *The Peter Schoenhofen Brewing Company v. The Maltine Company, 386.

69. 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 beverage, 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. * The Peter Schoenhofen Brewing Company v. The Maltine Company, 387.

70. 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. *Id.

71. SAME "Edelweiss-MALTINE" SET IN AN ELABORATE DESIGN ANTICIPATED BY "MALTINE."-A trade-mark consisting of the compound word "EdelweissMaltine" 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. * Id.

72. "SELF-LOADING "-DESCRIPTIVE.-The words "Self-Loading" as applied to a cartridge adapted for use with an automatic gun are descriptive and not