Columbia in the case of Worcester Brewing Corporation v. Reuter & Company (post, 329; 133 O. G., 1190) as follows: 66 We think that the Commissioner of Patents erred in holding that the word exclusive," as used in the proviso of section 5, means "the right to exclude." It has no reference to any right possessed by the user. Since the word did not constitute a technical trade-mark, no right to exclude could be asserted. Inasmuch as the word is used in the statute in connection with the words "actual use and both expressions are used to qualify the special right conferred by this provision of the act, we hold that an actual use must be shown to have been possessed and enjoyed by the applicant to the sole exclusion of all others. The use could not be exclusive if, during the period, it appears that another was using the same word as a trade-mark upon the same character of goods. Also in the case of The Natural Food Company v. Williams, (post, 320; 133 O. G., 232,) where the Court said: Since these words accurately and aptly describe an article of food, which according to the testimony has been produced by Williams and others for more than ten years, it follows that they are descriptive within the meaning of the statute, and that they cannot be appropriated as a trade-mark by appellant unless it has been the exclusive user of the words during the ten-year period. Appellees have not possessed and enjoyed the actual use of the mark" to the sole exclusion of all others " during the ten-year period necessary to entitle them to registration under this proviso, for the evidence clearly establishes, as found by the Examiner of Interferences, that appellants have sold whisky bearing the mark in question continuously in this country since 1894. For the reasons heretofore stated it is held that Robert Sanderson & Co., Ltd., are not entitled to register the mark of the issue because they were not the first to adopt and use the mark in this country; also, that Charles Dennehy & Company are not entitled to register said mark as a technical trade-mark because of its descriptive character, nor under the ten-year proviso, for the reason that they have not had the necessary ten years exclusive use. The decision of the Examiner of Interferences holding Charles Dennehy & Company entitled to register the mark of the issue must be reversed, since neither party is found entitled to register said mark. UDELL-PREDOCK MANUFACTURING COMPANY V. THE UDELL WORKS. OPPOSITION. 134 O. G., 514. TRADE-MARKS-" EXCELSIOR "-USE ON ARTICLE COVERED BY PATENTS-EFFECT OF EXPIRATION OF PATENTS. Where a manufacturer sold several types of step-ladders 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 step-ladders of his manufacture. APPEAL from Examiner of Interferences. TRADE-MARK FOR LADDERS. Messrs. Hopkins & Eicks and Mr. William N. Cromwell for UdellPredock Mfg. Co. Messrs. Bradford & Hood and Mr. Ernest W. Bradford for The Udell Works. BILLINGS, Assistant Commissioner: This is an appeal by the Udell-Predock Manufacturing Company from the decision of the Examiner of Interferences dismissing its notice of opposition and holding that the Udell Works is entitled to register the mark for which it made application. The mark in issue is the word "Excelsior" as applied to stepladders. The opposition is based on the ground that the word "Excelsior was originally applied by Calvin G. Udell, a predecessor in business of the applicant, to step-ladders of the same type as those now manufactured by the applicant, that these step-ladders were made in accordance with certain patents granted to Calvin G. Udell, and that these patents having expired the applicant is not entitled to the exclusive use of the mark, under the rule of law laid down by the Supreme Court of the United States in Singer Mfg. Co. v. June Mfg. Co., (C. D., 1896, 687; 75 O. G., 1703; 163 U. S., 169.) From the testimony it appears that Calvin G. Udell took out several patents for improvements in step-ladders between 1870 and 1884 and that he manufactured step-ladders made in accordance with these patents and that he was succeeded in business by A. A. Barnes, who was in turn succeeded by The Udell Works, the present applicant. It appears further that Calvin G. Udell adopted the mark in issue and applied it to a step-ladder embodying some of the features of several of these patents and that other marks were adopted for other styles of ladders embodying some of the features of these and other patents, these marks being " Model," " Eclipse," "Anchor," and "Globe." In his decision disposing of certain objections to the answer the Examiner of Interferences correctly stated what cases come within the ruling in Singer Mfg. Co. v. June Mfg. Co., supra, in the following language: In order to bring this case within the ruling of the Singer Manufacturing Company v. June Manufacturing Company, supra, it must be shown that the mark in issue was the generic and identifying name of the invention shown in said patents. The decisions do not go so far as to hold that every trademark used in connection with a patented article becomes public property upon the expiration of the patent, but that such is the case. only when the mark applied to the patented article became the generic and identifying name of such articles. The mark in issue never became such a generic and identifying name. As pointed out above, Calvin G. Udell manufactured several different types of step-ladders all embodying features of his patents, and the mark in issue was applied to only one type. There is no proof that the public has come to recognize what may be called the "Udell construction" by the word "Excelsior," and this cannot be presumed. It must be held, therefore, that on the expiration of the Udell patents the word "Excelsior" as applied to step-ladders did not become public property. The decision of the Examiner of Interferences is affirmed. HANSEN V. INLAND TYPE FOUNDRY. OPPOSITION. Decided April 9, 1908. 134 O. G., 775. 1. TRADE-MARKS 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. 2. SAME-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. 3. SAME-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. 66 4. SAME-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 ten-year period necessary to entitle him to registration der the ten-year proviso. APPEAL from Examiner of Interferences. TRADE-MARK FOR PRINTERS' TYPE. Messrs. Crosby & Gregory for Hansen. Messrs. Carr & Carr and Mr. E. S. Clarkson for Inland Type Foundry. MOORE, Commissioner: This is an appeal by the Inland Type Foundry from the decisions of the Examiner of Interferences sustaining the opposition of Hans C. Hansen and adjudging that appellant is not entitled to register the words "Standard Line" as a trade-mark for printers' type. The notice of opposition as originally filed did not contain the jurisdictional averment that the opposer "believed he would be damaged by the registration of the mark," nor did it allege any fact from which it would necessarily follow that he would be damaged. In so far as it set forth any allegations of fact upon this jurisdictional question it is contained in paragraphs 10 and 11 of the notice of opposition, which read as follows: (10) That applicant is not entitled to register said mark because your petltioner, as well as a number of other type-manufacturers in the United States, are and always have been entitled to use the said phrase "Standard Line" in connection with type manufactured by them. (11) That it is and always has been the universal and common custom of purchasers and users throughout the country of type made on a standard line to designate such type by the descriptive phrase "Standard Line," and to order and designate type of petitioner and of other type-founders in the United States by such name. Appellant demurred to the notice of opposition upon the ground, among others, that it did not contain such an averment nor set forth such facts as would warrant the Patent Office in taking jurisdiction thereof. This ground of the demurrer was sustained by the Examiner of Interferences, but the opposer was given permission to amend his notice of opposition. As amended the opposition contains the following allegations upon this question: (9) That the petitioner verily believes that he will be damaged by the registration of the mark in question. (10) That the petitioner has used the said mark upon and in connection with type manufactured and sold by him in the United States without license from the applicant, and at various times within the ten years prior to the passage of the Trade-Mark Act of 1905. A demurrer to these allegations of the amended notice of opposition was overruled by the Examiner of Interferences. Appellant contends that the original notice of opposition was fatally defective in omitting a jurisdictional averment and that the order of the Patent Office authorizing its insertion by amendment after the statutory period of thirty days was void. While it is apparently true that the notice of opposition as filed was defective in that it did not set forth facts showing an interest from which damage might be inferred, it is believed that it was within the discretion of the Examiner of Interferences to permit the amendment made by the opposer. (McIlhenny's Son v. New Iberia Extract of Tabasco Pepper Co. Ltd., post, 325; 133 O. G., 995, and the decision cited in the following paragraph.) In the case of Battle Creek Sanitarium Company v. Fuller the Court of Appeals of the District of Columbia said, in a decision rendered March 9, 1908, (post, 370; 134 O. G., 1299:) The Examiner of Interferences overruled grounds 1, 2, and 4 of the demurrer, but sustained grounds 3 and 5. Without asking leave to amend the allegations of the opposition to which the said objections applied, the opponent appealed to the Commissioner. The Commissioner affirmed the decision and denied the opponent leave to amend the opposition in order that it might allege the use of the trade-mark by it upon its merchandise. This objection was called to the attention of the opponent by the fifth ground of demurrer, and the appropriate time to ask leave to amend was when the Examiner of Interferences sustained that ground of the demurrer. When the case came before the Commissioner on appeal it was discretionary with him to allow or to refuse the leave to amend. Under the conditions stated there was no abuse of that discretion, and we need not pause to consider whether such an amendment, setting up a new ground of opposition, would be equivalent to a new opposition, and therefore not permissible because the period within which opposition can be made had elapsed. This decision clearly states that "the appropriate time to ask leave to amend was when the Examiner of Interferences sustained that ground of the demurrer" and indicates that "it was discretionary with him to allow or refuse leave to amend " unless "the new ground of opposition would be equivalent to a new opposition." It is thought that the amendment permitted by the Examiner of Interferences was not equivalent to a new opposition. The allegations in the original notice, if true, were sufficient to defeat appellant's application for registration. The amendment merely permitted the opposer to show that he came within the class of persons entitled to file oppositions under section 6 of the Trade-Mark Act. (Robertson v. Crease, 97 U. S., 646.) Appellant further contends that the Examiner of Interferences had no jurisdiction to set aside his judgment of September 18, 1906, dismissing the opposition, because of the failure of Hansen to file his replication within the time set. On the day this judgment was rendered Hansen filed his replication, together with a motion that said judgment be set aside. The case was within the jurisdiction of the Examiner of Interferences until the limit of appeal, October 8, 1906, had expired, and it was clearly within his discretion within this time to reopen the case. (Richards v. Meissner, C. D., 1905, 595; 114 O. G., 1831; Donning v. Fisher, C. D., 1906, 524; 125 O. G., 2765. |