registrable as a technical trade-mark. *The Winchester Repeating Arms Com- 73. INTERFERENCE-IDENTITY OF GOODS-THE QUESTION SHOULD NOT BE 76. REGISTRATION UNDER INVALID ACT OF 1870-EVIDENCE OF CLAIM OF Owner- 77. VAPOR-STOVES AND COAL-STOVES GOODS OF SAME DESCRIPTIVE PROPERTIES.-Gasolene and vapor stoves are used for the same purpose as coal and wood stoves and belong to the same genus. One who adopts the word "Jewel" as a trade-mark for gasolene and vapor stoves with full knowledge of the use at that time of the same word for coal and wood stoves is not entitled to registration. *Id. 78. SAME TESTIMONY SHOWING MANUFACTURE OF ARTICLES SALES AS- 79. SAME-WEIGHT OF ORAL EVIDENCE WHEre Record EVIDENCE EXISTS.-The 81. SAME "FOOD AND DRUGS ACT."-It is incumbent upon the Patent Office 82. 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 ren dered 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. Id. 83. NAME OF APPLICANT.-Where the applicant is a corporation a trade-name which is substantially a reproduction of the corporate name cannot be registered as a technical trade-mark. *Kentucky Distilleries & Warehouse Company v. Old Lexington Club Distilling Company, 417. 84. COMBINATION OF DESCRIPTIVE AND GEOGRAPHICAL TERMS NOT REGISTRABLE.-The word "Club" as applied to liquors having become descriptive and the word "Lexington" being geographical, the term "Old Lexington Club" as applied to whisky is not registrable as a technical trade-mark. *Id. 85. EXCLUSIVE USE.-A mark cannot be registered under the "ten-years' " clause of the act of February 20, 1905, where a mark so nearly identical thereto as to be likely to confuse and mislead the public has been used by another during the ten years next preceding the passage of the act. *Id. 86. REGISTRATION-CONTROLLING FEATURES.-A mark is not registrable unless its controlling features are registrable. (In re Hopkins, C. D., 1907, 549; 128 O. G., 980; 29 App. D. C., 118; in re Crescent Typewriter Supply Company, ante, 318; 133 O. G., 231.) Ex parte Union Carbide Company, 160. 87. "UNION CARBIDE -DESCRIPTIVE AND GEOGRAPHICAL.-The words "Union Carbide" are not registrable as a trade-mark for calcium carbid, as the word "Union" is geographical and the word “Carbide" is descriptive. Id. 88. "UNION CARBIDE" MERELY THE NAME OF APPLICANT.-The words "Union Carbide" Held not registrable by the Union Carbide Company as a trademark for calcium carbid, as these words substantially constitute the name of the applicant. Id. 89. OPPOSITION-MARK ORIGINATING WITH CONSUMER USED BY MANUFACTURER. Where a customer orders a manufacturer to put up goods under a certain brand, which originated with the customer, the brand belongs to him and not to the manufacturer. *Michigan Condensed Milk Company v. The Kenneweg Company, 423. 90. SAME EVIDENCE CONSIDERED.-The evidence considered and held not to establish that Kenneweg & Company, the predecessor in business of the applicant, with whom the mark in issue originated had only an exclusive license to use the mark in a limited territory. *Id. 91. SAME LACHES.-The fact that after discovering that the opponent was using the mark in issue applicant took no steps to prevent this use does not constitute such laches as will defeat its right of registration. *Id. 92. USE AS A TRADE-MARK A PREREQUISITE TO REGISTRATION.-Where the specimens filed with the application for registration show that the words alleged to constitute the trade-mark have not been used as a trade-mark, registration should be refused. Ex parte The Magazine and Book Company of New York, 163. 93. "LIBRARY SLIP" DESCRIPTIVE.-The words "Library Slips" are descriptive of trading-coupons to be used in the purchase of books, libraries, etc., and cannot be registered as a technical trade-mark. Id. 94. REGISTRABILITY-NAME OF PATENTED ARTICLE.-Applicant adopted as a trade-mark for injectors the word "Monitor." These injectors were of the type shown in the Gresham patent, which had expired prior to that time, and also embodied the features of the Wohlers patent, which was of limited scope. Later other styles of injectors were made and designated by various names, of which "Monitor" was a part. None of these injectors embodied the features of the Wohlers patent. Held that these facts do not bring the case within the ruling of Singer Mfg. Co. v. June (C. D., 1896, 687; 75 O. G., 69025-H. Doc. 1349, 60-2--43 * 1703; 163 U. S., 169), and applicant is entitled to register the mark. The Edna Smelting & Refining Company v. Nathan Manufacturing Co., 436. 95. SAME-SAME.-Where a trade-mark had been applied to an article prior to the adoption of features covered by a patent, the expiration of the patent does not terminate the exclusive right to the use of the mark. (Bechelder v. Thomsen, 93 F. R., 660.) *Id. 96. ANTICIPATION "OLD DUTCH BLEND"- 'ROYAL DUTCH."-The words "Old Dutch Blend" as a trade-mark for coffee Held to be anticipated by the words "Royal Dutch" for the same class of goods. Ex parte The Dayton Spice Mills, 167. 97. "F F F" "F F F G"-INTERFERENCE IN FACT.-An interference in fact exists between the marks‘F F F" and "F F F G," since there is not enough difference between the two marks to prevent the ordinary buyer from being deceived. *The William Lea & Sons Company v. H. C. Cole & Company, 168. 98. COMBINATION OF NON-REGISTRABLE MARKS.-A registrable trade-mark cannot be made by combining two non-registrable words. Ex parte Meyer Brothers Coffee and Spice Company, 169. 99. "AMERICA'S STRENGTH"--NON-REGISTRABLE.- "America's Strength" is not registrable as a trade-mark for coffee, the word "America's" being geographical and the word "Strength" being descriptive of a quality of the goods. Id. 100. OPPOSITION-VERIFICATION.-Section 6 of the Trade-Mark Act as amended March 2, 1907, construed and held not to require that a notice of opposition filed by an attorney shall be verified by him. Wellcome v. Baum, 170. 101. APPEAL-REFUSAL TO DISMISS OPPOSITION-NON-APPEALABLE.-No appeal lies from a decision of the Examiner of Interferences refusing to dismiss a notice of opposition on the ground that the notice was not signed in conformity with the law. George Wostenholm & Son, Limited, v. Crowley, 174. 102. CANCELATION-SECTION 13 OF THE TRADE-MARK ACT CONSTRUED.—The term "entitled to use in section 13 of the Trade-Mark Act means exclusive use, and where it appears that the registrant was not the first to adopt and use a mark the registration should be canceled. Familton v. The Alonzo 0. Bliss Medical Company, 180. 103. SAME-REGISTRATION UNDER THE "TEN-YEAR" CLAUSE.-Where a nontechnical mark is registered under the "ten-years" clause and it appears that the registrant did not during the ten years next preceding the passage of the act have sole use of the mark, the registration should be canceled. Id. 104. SAME-USE OF MARK BY APPLICANT.-The fact that a mark which is registered under the "ten-years" clause is descriptive and that therefore the applicant for cancelation can acquire no property rights therein is of no moment so far as the rights of the registrant are concerned. Id. 105. FALSE REPRESENTATION ON LABELS-MARKS NOT REGISTRABLE.-The use of the words “Pure Old Rye Whiskey" in connection with a trade-mark on labels placed on bottles containing whisky which is part rye and part bourbon and contains neutral spirits and coloring-matter is such false representation as will disentitle the user of the mark to register the same. *Levy & Co. v. Uri, (N. M. Uri & Co., Substituted,) 461. 106. PURPOSE OF THE TRADE-MARK ACT.-It was the purpose of the Trade-Mark Act to protect manufacturers and dealers, because in so doing the public would in turn be protected. It was not the purpose of the act to recognize the right of any person, firm, or corporation to deceive the public by the use of a deceptive mark. *Id. 107. RegistraBILITY-DESCRIPTIVE MARK—“NEXTOBEER.”—A trade-mark consisting of the word "Nextobeer" with a paraph thereunder for a "non-intoxicating malt beverage" Held merely descriptive and not registrable. Ex parte Central Consumers Company, 186. 108. OPPOSITION-VERIFIED BEFORE OPPONENT'S ATTORNEYS INVALID.--Held that an opposition which was verified before a notary who was at the same time attorney for the opponent is invalid. *The Hall's Safe Company v. Herring-Hall-Marvin Safe Company, 473. 109. SAME-SAME-NOT CURED BY AMENDED OPPOSITION FILED LATE.-Where an objection was raised in the Office that the attempted verification was invalid because made before and certified to by a notary who was at the same time the attorney of the opponent for the prosecution of the opposition and no leave was applied for to cure the defect by verifying it before a qualified notary, but the action taken was to file a new opposition, entitled an amendment, which was signed by the same authorized representative officer of the corporation and verified before a proper notary, Held that this was practically a new opposition and as such came too late. *Id. 110. PRIORITY.-The evidence reviewed and Held to establish that M. & Co. were the first to adopt and use the word "Eureka" as trade-mark for pressboards. Case Brothers v. E. W. Murphey & Company, 196. 111. GRADE-MARK.-Where it was impossible from the nature of the goods to put the trade-mark thereon, the fact that the mark was not placed on the cases in which the goods were shipped and that M. & Co. sent out a circular describing four grades of press-boards, of which Eureka" was one, Held insufficient to establish that this mark was used merely to indicate grade or quality. Id. 112. Use of tHE MARK ON SAMPLES A TRAde-Mark Use.-M. & Co. placed the mark "Eureka" on samples of press-boards which were distributed to the trade and which were identical with the boards furnished to customers in all respects except as to size. Held that this was such an association of the mark with the goods as to confer upon M. & Co. the exclusive right to the use thereof. Id. 113. CANCELATION-USE OF Mark on Goods OF DIFFERENT DESCRIPTIVE PROPERTIES.-The use by the applicant for cancelation of a mark on a dyspepsia remedy furnishes no ground for canceling the registration of substantially the same mark for tooth-powder, since these articles are manifestly of different descriptive properties. Graves v. Gunder, 201. 114. SAME-REGISTRATION UNDER THE "TEN-YEARS" CLAUSE-APPLICANT'S USE SUBSEQUENT TO THE PASSAGE OF THE TRADE-MARK ACT.-Where a mark was registered under the "ten-years" clause of the Trade-Mark Act, the use of that mark by the applicant for cancelation after the passage of that act is no ground for canceling the registration. Id. 115. SAME-MARK USED NOT SAME AS MARK REGISTERED-UNESSENTIAL FEATURES. The mark registered was "Graves Tooth Powder." Held that no ground for canceling said mark would be established by showing that the mark actually used was "Dr. E. L. Graves Tooth Powder." (Standard Underground Cable Co., C. D., 1906, 687; 123 O. G., 656; 27 App. D. C., 320.) Id. 116. SAME PRIOR REGISTRATION BY SAME PARTY.-The fact that a party registered the words "Dr. E. L. Graves Tooth Powder" and "Dr. E. L. Graves Unequalled Tooth Powder" does not constitute a ground for canceling his registration of the words "Graves Tooth Powder." (Anheuser-Busch Brewing Association v. D. G. Yuengling et al., C. D., 1907, 232; 129 O. G., 3501.) Id. 117. PRIORITY.-Assuming, as held by the Commissioner of Patents, that the word "Eureka" is a valid trade-mark for press-boards and that its use on samples of such boards was a trade-mark use, the evidence is sufficient to justify the holding that M. & Co. were entitled to register this mark. *Case Brothers v. E. W. Murphey & Co., 479. 118. CANCELATION-WITHDRAWAL OF APPLICATION THEREFOR.-After pleadings have been filed, proofs taken, and the case ready for final hearing an appli cant for cancelation will not be permitted to withdraw his application without prejudice to his right to file a new application. Outcault v. The New York Herald Company, 204. 119. OPPOSITION-“ VICTORIA" ASSOCIATED WITH MEDALLION AND "VICTOR" UPON PEDESTAL SUPPORTING FIGURE OF MOUNTED KNIGHT-DISSIMILAR.— Held that a trade-mark consisting of the word "Victoria," associated with a medallion bearing the representation of the head of the late Queen Victoria and surmounted by a crown suspended from the letter "t" of said word, does not so nearly resemble the mark of the opponent, which consists of the figure of a knight on horseback resting upon an ornamental pedestal bearing the inscription "The Victor," as to be likely to cause confusion in the mind of the public. *Andrew McLean Company v. Adams Manufacturing Company, 487. 120. SAME-BURDEN OF PROOF.-Where the Patent Office has decided that the trade-mark of each party is registrable, the burden is on the opponent to show that as a matter of fact there is such similarity between the marks as to be likely to cause confusion and deceive ordinary purchasers. *Id. 121. APPLICATION-DECLARATION.-The requirements of the sworn declaration prescribed by Rule 32 of the Trade-Mark Rules for marks sought to be registered under the ten-years proviso of section 5 of the act of 1905 must be complied with. The filing of a certified copy of registration in a foreign country for a stated period does not constitute evidence of exclusive use of the mark for ten years next preceding February 20, 1905, and is not the equivalent of the sworn statement of the applicant as to the exclusive use during that period. Er parte Bechstein, 209. 122. CANCELATION-SECTION 13 OF THE TRADE-MARK ACT.-The Commissioner has no authority to cancel a certificate of registration of a trade-mark except in accordance with the provisions of section 13 of the Trade-Mark Act of February 20, 1905. Case v. Quirk, 221. 123. INTERFERENCE-MARKS INCLUDING STAR AS PRINCIPAL FEATURE.-Held that a trade-mark consisting of a six-pointed star with the letters "G E" inscribed in monogram in the center so nearly resembles the trade-mark consisting of a six-pointed star surrounded by two circles, having inscribed between the inner and outer circles the words "The Celebrated Star Lager Beer," as to cause confusion in the mind of the public and deceive purchasers. *Ehret v. Star Brewery Company, 511. 124. REGISTRABILITY-THE LETTERS "U. S." ON A CONVENTIONAL SHIEld.— A mark consisting of the letters "U. S. on a conventional representation of a shield Held not registrable on the ground that the letters "U. S. " by reason of their common usage by the Government on army accouterments and upon other articles of merchandise, particularly when placed upon a simulation of the United States shield, should be regarded as public insignia, which can never become the exclusive property of the applicant, and on the further ground that the use of such a mark would tend to induce the public to believe that the goods bearing the same were made by or had the official approval of the United States Government. Ex parte United States Sanitary Manufac turing Company, 230. 125. OPPOSITION-APPEAL FROM DECISION OF EXAMINER OF INTERFERENCES.An appeal will not be allowed from a decision of the Examiner of Interferences granting a motion to amend a notice of opposition nor from a decision denying a motion to dismiss a notice of opposition. Peerless Rubber Manufacturing Company v. Gorham Rubber Company, 239. 126. DESCRIPTIVE WORDS PRINTED IN FANCIFUL LETTERS-EXCLUSIVE USE.The fact that the mark used by applicant for registration is printed in fanciful letters Held insufficient to justify the registration of the same under |