2. OPPOSITION-OPPOSER NEED NOT BE ENTITLED TO REGISTRATION.

In order that an opposition shall be sustained it is not necessary that the opposer himself shall be entitled to registration.

3. SIMILARITY OF Marks—" BLAKE'S BELT STUDS."

A mark comprising the words "Genuine Blake's Belt Fasteners," the word "Genuine" being printed with a large "G" which almost completely incloses the remainder of the word, and across which there is vertically arranged the representation of a belt-fastener, Held not entitled to registration in view of the prior adoption and use by another of the words “Blake's Belt Studs."

APPEAL from Examiner of Interferences.

TRADE-MARK FOR BELT-FASTENERS.

Mr. Arthur E. Parsons and Mr. John M. Coit for Greene, Tweed & Co.

Messrs. Dyrenforth, Lee, Chritton & Wiles and Messrs. Dudley, Browne & Phelps for Manufacturers' Belt Hook Company.

MOORE, Commissioner:

This is an appeal by the Manufacturers' Belt Hook Company from a decision of the Examiner of Interferences sustaining the opposition filed by Greene, Tweed & Co. holding that the Manufacturers' Belt Hook Company is not entitled to register the mark shown in its application.

This mark comprises the words "Genuine Blake Belt Fasteners," the word "Genuine " being printed with a large "G" which almost completely incloses the remainder of the word and has the representation of a belt-fastener crossing it vertically. On each end of the said fastener appears two stars with the numeral "1" therebetween.

With the answer of the Manufacturers' Belt Hook Co. is filed a certified copy of a decision of Judge Kohlsaat of the United States Circuit Court of the Northern District of Illinois rendered on a motion for preliminary injunction in a suit between the parties to this opposition. It is contended on behalf of the applicant that this decision determines that the words " Blake's Belt Studs" are common property owing to the fact that these words were applied by Greene, Tweed & Co. and its predecessors in business to an article manufactured under a patent, which patent has since expired. It is further contended that applicant's mark so differentiates from this mark as to be entitled to registration.

There is no testimony now in the case on behalf of the Manufacturers' Belt Hook Co., and it has therefore, established no date of adoption and use of its mark, as its application is not under the act of February 20, 1905, even prima facie evidence of ownership. The

earliest date of adoption and use, however, alleged in the application is October 12, 1904.

The testimony offered on behalf of the opposer establishes the fact that since at least as early as 1903 Greene, Tweed & Co. has been selling belt-fasteners of substantially the configuration of the beltfasteners shown in applicant's mark. The cartons in which these fasteners are packed are marked on one side "Blake's Belt Studs.” It also appears that Greene, Tweed & Co. has for several years sent out circulars in which their product has been advertised as the "Genuine Blake's Belt Studs."

It having been thus established that Greene, Tweed & Co. used this mark, the question of applicant's right to registration resolves itself into the question whether the mark shown in the application so nearly resembles this mark that confusion would be likely to be caused in the mind of the purchasing public; and this is true whether the words "Blake's Belt Studs," as contended by the applicant, are public property or not, because it is not necessary, in order that an opposition should be sustained, that the opposer himself shall be entitled to register his mark for, if the opposer has used this mark prior to the time of its use by the applicant, the applicant is not entitled to the exclusive use of it, even though he may be entitled to use it in common with the rest of the public.

Coming, then, to the comparison of the two marks, the words "Blake's Belt Studs" used by the one are practically the same as "Blake's Belt Fasteners" used by the other, as the word "studs " and the word "fastener" are interchangeably applied to this article. The use of the word "Genuine " does not distinguish from the mark used by the opposer, nor does the fact that this word is written in a more or less fanciful form distinguish the two marks. Taking the mark as a whole, the effect of writing the word "Genuine" with a big "G" inclosing the rest of the word is not sufficient to distinguish the marks one from the other. (Ex parte The Columbia Incandescent Lamp Company, C. D., 1901, 89; 96 O. G., 1036.) Nor is the fact that a belt-fastener is placed transversely across this "G" sufficient to distinguish the two marks, for the belt-fastener shown in the mark is practically a facsimile of the fastener sold by Greene, Tweed & Co., and the effect of using it as a part of applicant's mark would be to add to the confusion in the mind of the purchasing public.

For these reasons it is held that the action of the Examiner of Interferences in sustaining the opposition was clearly right, and the same is affirmed.

THE NORTHWESTERN CONSOLIDATED MILLING COMPANY v. WILLIAM
CALLAM & SON.

Decided November 27, 1908.

137 O. G., 2222.

1. TRADE-MARKS-OPPOSITION—SIMILARITY OF MARKS-PROOF OF ACTUAL CON

FUSION.

In an opposition proceeding where marks are so alike that it is evident that confusion is likely to arise it is not necessary for the opposer to prove actual confusion in order to prevent registration, (citing G. W. Cole & Company v. Marshall Oil Company, ante, 88; 133 O. G., 994.)

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2. SAME-SAME—“ CERTOSA" AND CERESOTA."

The word "Certosa" as a trade-mark for flour so nearly resembles the word "Ceresota" used for the same class of goods as to be likely to cause confusion in trade.

ON APPEAL.

TRADE-MARK FOR WHEAT-FLOUR.

Mr. Patrick H. Gunckel for The Northwestern Consolidated Milling Company.

Mr. John F. O'Keefe and Messrs. Hopkins & Hopkins for William Callam & Son.

BILLINGS, Assistant Commissioner:

This is an appeal by William Callam & Son from a decision of the Examiner of Interferences sustaining the opposition of The Northwestern Consolidated Milling Company and holding that William Callam & Son are not entitled to registration of the mark shown in their application.

The testimony taken on behalf of the opposer shows that it adopted the word "Ceresota as a trade-mark for flour in 1891 and has continuously used it since that time. The applicant does not claim to have adopted its mark "Certosa " until about May 1, 1906. The only question to be determined, therefore, is whether these marks so nearly resemble each other as to be likely to cause confusion in trade. There was no proof of actual confusion, but it is well settled that in cases where the marks are so alike that it is evident that confusion is likely to arise it is not necessary for the opposer to prove actual confusion in order to prevent registration. (G. W. Cole & Company v. Marshall Oil Company, ante, 88; 133 O. G., 994.)

It is evident from an inspection of these two marks that confusion would be likely to arise, the marks resembling each other both in appearance and sound. In the case of The Northwestern Consoli

P

dated Milling Company v. Mauser and Cressman, (162 Fed. Rep., 1004,) decided July 31, 1908, Judge Archibald said:

That "Cressota" is an infringement of “Ceresota" needs no argument. Indeed the resemblance is so close as to suggest that it is deliberate.

Applicant's mark "Certosa " more nearly resembles "Ceresota " than does the mark "Cressota," considered in the above-cited decision. The question was raised at the hearing before the Examiner of Interferences that it appeared from the testimony taken on behalf of William Callam & Son that their mark had not been used in commerce with foreign nations or Indian tribes or in interstate commerce. He declined to pass on this question, as it was not raised in the notice of opposition, but recommended that registration be refused on this ground. The case was referred to the Examiner of Trade-Marks, who held that the testimony showed that the mark had not been used in such commerce and that therefore a statutory bar existed to the registration of the mark. This furnishes another ground for holding that William Callam & Son are not entitled to the registration of the mark shown in their application.

The decision of the Examiner of Interferences is affirmed.

EX PARTE DAVIS.

Decided December 14, 1908.

137 O. G., 2222.

ABANDONED APPLICATION-DELAY NOT UNAVOIDABLE.

The fact that an applicant who has allowed an application to lapse by failure to prosecute becomes involved in an interference on a subsequently filed application in no way shows that the delay in prosecuting the earlier application was unavoidable.

ON PETITION.

DEPURATOR.

Messrs Chandlee & Chandlee for the applicant.

BILLINGS, Assistant Commissioner:

This is a petition that the above-entitled application be held not abandoned.

The record shows that on June 7, 1905, a letter was written stating that the claims appeared to be allowable, but that a new oath was necessary owing to the delay between the date of the execution of the oath and the date of filing of the application.

In the present petition the attorneys state that on June 8, 1905, a new oath was sent to the applicant with instructions to execute the same, but that this was not done, and that on March 3, 1906, a second

oath was sent by the attorneys with the statement that the allowance of the case could not be obtained until the oath was filed in the Patent Office, and that such oath was not returned until June 22, 1906. It is stated further that an application has been filed as a refiling of the present application, and that the later application has become involved in an interference. The petition is based on the ground that the later application was filed within two years from the date upon which the present application became abandoned and on the further ground that it is desired that the applicant may obtain the benefit of the filing date of this application in the above-mentioned interference.

Clearly the facts above stated afford no ground for the grant of this petition. No reason whatever is given why the applicant was unable to execute an oath and file it within one year from the date of the Office action, nor is any reason given for the delay in filing the present petition after the receipt of the oath properly executed on June 22, 1906.

The fact that an applicant who has allowed an application to lapse by failure to prosecute becomes involved in an interference on a subsequently filed application in no way shows that the delay in prosecuting the earlier application was unavoidable, nor does the fact that the second application was filed within two years from the lapse of the first constitute any ground for holding that applicant is entitled to the date of the filing of such earlier application as a date of constructive reduction to practice.

The petition is denied.