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The ground of the refusal was that the mark includes the Russian coat-of-arms and that its registration is therefore prohibited by section 5 of the Trade-Mark Act of February 20, 1905.

This section reads, in part, as follows:

Sec. 5. 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(a) Consists of or comprises immoral or scandalous matter;

(b) Consists of or comprises the flag or coat-of-arms or other insignia of the United States, or any simulation thereof, or of any State or municipality, or of any foreign nation.

It is contended on behalf of applicants that this section does not positively prohibit registration of a coat-of-arms of a foreign nation, but merely indicates that registration may be refused on the ground that it includes such coat-of-arms and that, since the Russian Government has given applicants permission to use the Russian coat-of-arms as their trade-mark, as appears from certain documents on file, registration should not be refused.

It is true that the section does not say that registration shall be refused wherever the mark consists of or comprises a coat-of-arms of a foreign nation; but it is evident that the section with reference to such coats-of-arms was intended to be mandatory. The section states that registration shall not be refused

unless the mark

(a) Consists of or comprises immoral or scandalous matter; (b) Consists of or comprises the flag or coat-of-arms nation.

* of any foreign

There would be no more reason for holding the latter clause to be permissive than the first, and it is self-evident that it was never intended that a mark comprising scandalous or immoral matter might be registered.

It is further contended that since applicants have registered their mark in Russia they are entitled to registration in the United States under a treaty between the United States and Russia concluded January 27, 1868, and proclaimed October 15, 1868, article 1 of which reads as follows:

Article 1. With regard to trade-marks of goods or of their packages, and also with regard to marks of manufacture and of trade, the citizens of the United States of America shall enjoy in Russia, and Russian subjects shall enjoy in the United States, the same protection as native citizens.

It appears, however, from the opinion of the Attorney-General of the United States published in C. D., 1889, 253; 47 O. G., 398, that such a treaty is not self-executing, and as no legislation has been created to carry it into effect applicants cannot be held to be entitled to registration on this ground. In this connection attention is called

to ex parte Zwack & Company, (C. D., 1896, 683; 76 O. G., 1855) in which a mark was refused, notwithstanding the fact that applicant had registered its mark in a foreign country which was a member of the International Convention.

It must be held, therefore, that the action of the Examiner was right, and it is accordingly affirmed.

EX PARTE CIOLFI.

Decided November 23, 1908.

137 O. G., 1238.

ABANDONMENT-PREVIOUS ACTION NOT TAKEN TILL END OF STATUTORY PERIODSHOWING REQUIRED.

Where it appears that for several years action upon the case has been intentionally delayed until the latter part of the period allowed by law within which to take such action, failure to file an amendment within the statutory period after the last Office action can be considered unavoidable only in view of circumstances of a compelling nature which prevented such action.

ON PETITION.

SINK.

Messrs. Thurston & Bates and Messrs. Fouts & Hull for the applicant.

MOORE, Commissioner:

This is a petition to revive an abandoned application which became abandoned on November 5, 1908. It appears from the affidavit of J. P. Hull, a member of the firm of Fouts & Hull, attorneys of record in the case, that on October 28, 1908, said Hull prepared an amendment to this application, which is submitted with this petition, and placed the same on the mailing desk, from which amendments are forwarded to the Patent Office; but that through an oversight the amendment was not discovered until November 6, at which time the application was abandoned. The record shows that this application was filed on March 7, 1904, was acted upon by the Office April 12, 1904, amended April 10, 1905, acted upon by the Office June 27, 1905, amended June 25, 1906, acted upon by the Office July 30, 1906, amended July 19, 1907, acted upon by the Office November 5, 1907, and, according to the applicant's own statement, was not taken up again for action on the part of the applicant until October 28, 1908. It thus appears that for four years action upon the case has been intentionally delayed until the expiration of the time within. which amendments are required by law to save the case from abandonment.

Where an applicant delays in acting upon his case in this manner for the obvious purpose of prolonging the life of the case within the Patent Office, failure to file an amendment within the period prescribed by law after the Office action can be excused only upon a showing of compelling reasons which prevented action upon the case within the prescribed period. The mere failure to forward an amendment which was prepared at the end of the year from the Office action does not, in my opinion, constitute any sufficient showing of unavoidable delay which would warrant the revival of an application within the provisions of section 4894, Revised Statutes. The petition is denied.

MOFFATT v. WEISS.

Decided February 17, 1908.

137 O. G., 1481.

INTERFERENCE-APPEAL ON PRIORITY-PATENTABILITY OF ISSUE.

Where in an interference in which the junior party is defeated on the record the Primary Examiner held the issue patentable and the Examinersin-Chief refused to make a recommendation that the same is not patentable, there is no such manifest error as will warrant the consideration of this question upon appeal on priority under the Commissioner's supervisory authority.

APPEAL from Examiners-in-Chief.

BINDING AND FEEDING MECHANISM FOR SEWING-MACHINES.

Messrs. Sturtevant & Mason for Moffatt.

Mr. Charles McC. Chapman for Weiss.

MOORE, Commissioner:

This is an appeal by Moffatt from the decision of the Examinersin-Chief affirming the decision of the Examiner of Interferences that he is not the prior inventor of the subject-matter in issue.

Moffatt in his preliminary statement alleged a date of conception subsequent to the filing date of Weiss, the senior party. In response to an order to show cause why judgment should not be rendered against him under provisions of Rule 114 Moffatt moved to dissolve the interference, alleging, inter alia, that the issue was not patentable to either party. This motion was denied by the Primary Examiner, and the Examiner of Interferences thereupon rendered judgment of priority against Moffatt.

The record shows that on appeal to the Examiners-in-Chief Moffatt did not contest the question of priority of invention, but urged the non-patentability of the issue and requested the Examiners-in-Chief

to refer the case to the Commissioner under the provisions of Rule 126 upon the ground that the claims in issue were not patentable. The Examiners-in-Chief refused to make this recommendation.

Moffatt has again urged the non-patentability of the issue upon this appeal and requests consideration thereof under the exercise of my supervisory authority. The question raised in this case is similar to those considered in the Commissioner's decisions in Sobey v. Holsclaw (C. D., 1905, 523; 119 O. G., 1922) and Potter v. McIntosh, (C. D., 1906, 56; 120 O. G., 1823,) which decisions were affirmed by the Court of Appeals of the District of Columbia in Sobey v. Holsclaw (C. D., 1907, 465; 126 O. G., 3041) and Potter v. McIntosh, (C. D., 1907, 505; 127 O. G., 1995.) In the former decision the court stated in respect to the action of the Commissioner refusing to review the favorable decision of the Examiner in respect to the question of patentability:

The Primary Examiners, who are given statutory authority to decide questions of patentability are under the supervision of the Commissioner and it would seem to be not only his right but his duty to correct any manifest error committed by any of the Primary Examiners relative to the patentability of a supposed invention, or of the right of an applicant to claim it whenever such error was called to his attention. To warrant any action on his part in such a case the error must, we think, be so gross that it would be a wrong to the public to permit a patent to issue. It manifestly should not be based upon a mere difference of opinion. The rules of the Patent Office, as we have seen, provide means by which the Examiner of Interferences and the Examiners-inChief, can, in an interference proceeding, express their opinion upon the question of the patentability of the issues of an interference and upon kindred questions. In the present case the Primary Examiner has twice passed upon the patentability of the claims in issue, and the Examiners-in-Chief in their decision indicate that they have carefully considered this matter and refused to recommend that the issue is not patentable. In view of the unanimity of the lower tribunals in holding the issue of this interference patentable there is no such manifest error as would warrant the exercise of my supervisory authority. It is urged in behalf of Moffatt that the decision of Podlesak v. McInnerney (C. D., 1906, 558; 120 O. G., 2127; 26 App. D. C., 399) warrants the consideration of the Commissioner in this case, notwithstanding the decisions of the lower tribunals. The Court of Appeals said in respect to this question in the case of Potter v. McIntosh, supra:

The Commissioner added that the Primary Examiner had twice found the issue to be patentable and whatever objections there may be to the policy and rule preventing appeal from decisions affirming patentability or right to make claims, in those cases where affirmance may result in preventing the issue of a patent to a party who, in the event of a contrary decision, might have been entitled thereto, this policy and rule are believed to be in accordance with sound reason and unimpeachable in their application to cases like the present, where the would-be appellant upon patentability has in any event no standing before the Office as a claimant for a patent upon the matter in question.

Upon a petition by Potter for rehearing his counsel urge that the decision of this court in Podlesak v. McInnerney (C. D., 1906, 558; 120 O. G., 2127; 26 App. D. C., 399) sufficiently supported his contention, and the Commissioner adhered to his ruling correctly stating that the consideration of the questions of right to make the claim in issue and of identity of invention was undertaken by the court because the appellant in that case came before them seeking to have determined his right to a patent to which he was apparently justly entitled if there was error in the decisions below holding that his opponent was entitled to make the claim in issue and that there was interference in fact. In the present case the appellant is admittedly not entitled to a patent on the matter in issue and as was pointed out in my decision in this case, and in the case of Sobey v. Holsclaw, no good reason appears for hearing at this time the arguments of the appellant upon the patentability of his opponent's claims, or for reviewing the affirmative decision of the Primary Examiner on that question. We concur in this very satisfactory exposition of the view which this court so recently expressed in Sobey v. Holsclaw, supra.

There are no special circumstances presented in this case which would warrant a deviation from the practice announced in the decisions above cited.

The decision of the Examiner-in-Chief is affirmed.

EX PARTE SCOTT PAPER COMPANY

Decided July 18, 1908.

137 O. G., 1482.

1. TRADE-MARKS-DESCRIPTIVE—“ BESTOK."

The word "Bestok" Held descriptive, being a mere misspelling of the words best stock."

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2. SAME-SAME-SAME-ADDITION OF ARBITRARY FEATURES.

The word "Bestok" being descriptive and not registrable alone, it is not rendered registrable by the association therewith of the minor details of an ornamental border and a seal.

ON APPEAL.

TRADE-MARK FOR TOILET-PAPER.

Mr. Rudolph M. Hunter for the applicant.

MOORE, Commissioner:

This is an appeal from the action of the Examiner in refusing to register the mark shown in the drawing on the ground that it is descriptive of the character and quality of the goods.

The prominent feature of the mark, which is used on toilet-paper, is the word "Bestok." The word is evidently a mere misspelling of the two words "best stock," which words are clearly descriptive of the goods on which the mark is used, as they would indicate that the paper is made from the best stock—that is, that it is a high-grade

paper.

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