ground of his motion is that he contends that the counts have a different meaning when read upon Carpenter's structure from what they have when read upon his own. Neither of these reasons is proper subject-matter to urge under the head of informality in the declaration of the interference. (Corey v. Eiseman and Misar, C. D., 1906, 201; 122 O. G., 2063; Danquard v. Courville, C. D., 1907, 427; 131 O. G., 2421.) The decision of the Examiner of Interferences is affirmed. LOWRY v. RUPING. PATENT INTERFERENCE.. Decided May 1, 1908. 135 O. G., 662. INTERFERENCE-TESTIMONY- LETTERS ROGATORY. The fact that a witness is not an employee of the party calling him and cannot leave his employment for a sufficient time to come to the United States to testify is sufficient to warrant the issuance of the letters rogatory to take nis testimony in a foreign country. APPEAL ON MOTION. WOOD IMPREGNATION. Mr. J. Nota McGill for Lowry. BILLINGS, Assistant Commissioner: This is an appeal from the decision of the Examiner of Interferences denying a motion by Ruping to take the testimony abroad by letters rogatory of witnesses Ruping, Grumbacher, Rucker, and Golz. The record shows that during the time set for taking Ruping's testimony a motion was brought by him to take the testimony abroad by letters rogatory, and the Examiner of Interferences in his decision upon that motion rendered April 4, 1908, found that the facts which Ruping proposes to establish by testimony taken abroad are relevant under the special circumstances of the case brought out at the bearing upon the motion. It was held, however, that the showing in support of the motion was not sufficient to comply with the requirements of Rule 158, in that the moving party did not present the affidavits of the witnesses themselves that they could not come to this country for the purpose of testifying in this case. The motion was supported by affidavit of Mr. Samuel T. Fisher, of counsel for Ruping, to the effect that— an effort has been made to have the witnesses named in the accompanying motion come to this country for the purpose of giving their testimony, but he is informed and believes that the two principal witnesses, namely, Ruping and Grumbacher, have positively and finally refused to come to this country, and that the other two witnesses, Rucker and Golz, object to come to this country. Promptly after the denial of this motion a renewed motion for leave to take testimony by letters rogatory was filed which is accompanied by an affidavit of one Lembcke, a member of the firm of C. Lembcke & Co., Inc., the exclusive agents in the United States of Hulsberg & Cie., M. b. H., the assignee of the entire interest of Ruping's application, to the effect that said Lembcke & Co., Inc., have charge of all patent matters relating to the interference and have made repeated efforts to secure the attendance of both Grumbacher and Ruping in this country for the purpose of testifying in this case. This affidavit is accompanied by a sworn translation of a letter received from said Hulsberg & Cie., M. b. H., which states, in part, as follows: Your cable of the 14th inst. “Can you arrange it that Mr. Grumbacher comes here was not received by us till the 16th of March, early in the day, and we answered "It is impossible to send Grumbacher. Arrange for taking of testimony here in Berlin." It is impossible for Mr. Grumbacher to absent himself from his present position for so long a time, as even the shortest trip to America would take, and we must request you to use every effort in your power to arrange it to have him give testimony before the American consul here and in the presence of a lawyer of the contesting party, for we have not the slightest doubt that Mr. Grumbacher's testimony, taken even in this form, will be of value in our litigation. Lembcke avers that this letter was received in the regular course of business and is in response to a telegram inquiring whether Mr. Grumbacher could be sent to the United States to testify. It appears that Grumbacher is not employed by the company which is the assignee of Ruping's invention, and therefore that company has no such control over him as would make it incumbent upon them to send him to this country. A party who has regular employment cannot be presumed to be willing to give up that employment for the purpose of giving his testimony in a case in a foreign country. Such a case differs from one in which the inventor himself or a witness in his employ declines to leave his business for the purpose of testifying in a foreign country. In the Hulsberg & Cie. letter, above quoted, it appears that Mr. Grumbacher is unable to absent himself from his present position for a sufficient time to come to this country, and under the circumstances of the case it is believed that this showing is sufficient to warrant the issuance of letters rogatory to take his testimony in Germany. It appears that the testimony of the inventor Ruping cannot be taken in this country without greater hardship to the moving party than would be placed upon his opponent, for the reason that the facts sought to be established by his testimony do not necessitate an exhaustive examination and seem to be such as might be stipulated. If no stipulation can be had, there appears to be no good reason why this testimony cannot be taken by letters rogatory without imposing a special hardship on the opposing party. In view of the facts above stated it is held that letters rogatory should issue for the purpose of taking the testimony of Grumbacher and Ruping. The testimony sought to be adduced by the witnesses Rucker and Golz does not appear competent, much less material. Furthermore, it does not appear that these witnesses cannot readily be called to testify in the United States if the testimony desired is deemed of sufficient importance. No sufficient reason therefore appears for the issuance of letters rogatory to take the depositions of the two lastnamed witnesses. The decision of the Examiner of Interference is reversed to the extent indicated. EX PARTE THE DAYTON SPICE MILLS Co. APPLICATION FOR REGISTRATION OF TRADE-MARK. Decided April 29, 1908. TRADE-MARKS-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. ON APPEAL. TRADE-MARK FOR COFFEE Mr. Richard J. McCarty for the applicant. MOORE, Commissioner: This is an appeal from the decision of the Examiner of TradeMarks refusing the registration of the words "Old Dutch Blend" as a trade-mark for coffee. Registration was refused in view of the prior registration of the words "Royal Dutch" for coffee by W. McEwan, No. 16,160, January 18, 1889. It is believed that the Examiner of Trade-Marks properly refused registration under section 5 of the Trade-Mark Act which prohibits the registration of a mark which— so nearly resembles a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties as to be likely to cause confusion or mistake in the mind of the public. In each of the marks the prominent word is "Dutch," and although the registered mark has some additional matter it is regarded as unimportant as compared with this dominant word. It seems likely that coffee sold under either of these marks would become known as the "Dutch" brand and that the ordinary person would probably purchase the goods of the proprietor of one of these marks thinking it was the goods of the other. The decision of the Examiner of Trade-Marks is affirmed. THE WILLIAM LEA & SONS COMPANY v. H. C. COLE & COMPANY. TRADE-MARK INTERFERENCE. Decided May 2, 1908. 135 O. G., 893. TRADE-MARKS-"F F F" "F FFG"-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. ON APPEAL. TRADE-MARK FOR WHEAT-FLOUR. Mr. T. W. Johnson for The William Lea & Sons Company. BILLINGS, Assistant Commissioner: This is an appeal from a decision of the Examiner of Trade-Marks refusing to dissolve the above-entitled interference. The mark which The William Lea & Sons Company seeks to register consists of the letters "FF F." The mark of the H. C. Cole & Company consists of the letters "F F F G." The William Lea & Sons Company moved to dissolve on the ground that there was no interference in fact. The Examiner refused to dissolve the interference, holding that there was not enough difference between the two marks to prevent the ordinary buyer from being deceived. This holding was clearly right. A purchaser might not be deceived if he saw the two marks side by side; but, as pointed out in Godillot v. American Grocery Co., (71 F. R., 873,) this is not the true test of similarity, but whether the resemblance is such as to deceive the ordinary purchaser, giving such attention as such a purchaser usually gives. 66 In that case the court held that a trade-mark consisting of the letters "A" and "G" combined in a monogram were infringed by a monogram trade-mark composed of the letters "A" and "G" and Co." In the case of American Tin Plate Company v. Licking Roller Mills Co. (158 F. R., 690) a mark consisting of the letters "M F" in monogram inclosed within a circle was held to have been infringed by a mark consisting of the letters "M. F. H." The resemblance of the marks in this case is certainly no less than in those above cited. The decision of the Examiner of Trade-Marks is affirmed. EX PARTE MEYER BROTHERS COFFEE AND SPICE COMPANY. APPLICATION FOR REGISTRATION OF TRADE-MARK. Decided May 21, 1908. 135 O. G., 893. 1. TRADE-MARKS-COMBINATION OF NON-REGISTRABLE MARKS. A registrable trade-mark cannot be made by combining two non-registrable words. 2 SAME "AMERICA'S STRENGTH "-NON-REGISTRABLE. 66 "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. ON APPEAL. TRADE-MARK FOR COFFEE, Messrs. Carr & Carr for the applicant. BILLINGS, Assistant Commissioner: This is an appeal from the decision of the Examiner of TradeMarks refusing to register the words "America's Strength as a trade-mark for coffee. The ground upon which the Examiner based his action is that the word "Strength" is descriptive of a characteristic or quality of the goods, and the association of the word with the geographical term "America's" does not render the combination registrable. The word "Strength" as applied to coffee is descriptive for the reason that although it is not usual to speak of coffee-berries as |