SHEPARD, J.:

This is an interference proceeding involving rival claims to the registration of the word "Stage" as a trade-mark for playing-cards. November 29, 1904, C. M. Clark Publishing Co. registered the word, associated with the representation of a proscenium-arch with footlights in the fore-ground and scenery in back-ground, as used on cards of its manufacture. These cards are in packs like the common playing-cards, but contain no representations or devices on their face enabling them to be used in the ordinary games with such cards. They are intended for use in playing a novel game called "Stage," and having nothing on their face but pictures of actors, singers, and theater buildings.

April 15, 1905, the United States Playing Card Co. filed an application for the registration of the word "Stage" as a trade-mark appropriated to playing-cards of its manufacture, alleging that it had been used as such since August 1, 1896. On this the interference was declared with the C. M. Clark Co.

Evidence was introduced on behalf of the United States Co., consisting of two witnesses and certain exhibits of cards and printed matter. The C. M. Clark Co. took no testimony, and relied on its registered date. The Examiner of Interferences decided in favor of the United States Company, but on appeal to the Commissioner his decision was reversed. Appeal has been prosecuted from the Commissioner's decision.

The discussion has taken a wider range than we think is warranted by the issue and the evidence relating thereto. The validity of the word "Stage" as a trade-mark appropriated to playing-cards, has been settled, for all of the purposes of the interference proceeding, by the action of the Patent Office in registering it on the prior application of the appellee, and declaring the interference upon that of the appellant. Nor is the right of the appellant to have one general trade-mark for all cards of its manufacture, and a special one for each class or style thereof, one that need be considered. The single question is, whether the appellant has shown by its testimony such earlier use of the word "Stage" as a trade-mark for cards, as to entitle it to an award of priority over the registered claimant.

The printed exhibits of the appellant consist of circulars or tradelists issued at regular periods from and after January 1, 1897. These contain lists of about one hundred different styles of playing-cards, under distinct names or brands with wholesale prices set opposite, and arranged in classes designated as A. B. C. D.

The first entry in class D reads as follows:

65x. The Stage Playing Cards, gold edges_-_-_

72.00

Professional Stars, Actors and Actresses of the Stage. The most attractive edition of playing-cards ever issued. Beautiful Court card designs, showing

portraits of world-renowned celebrities of the stage. Handsome backs in gold and colors; finest linen stock; doubled enameled and highly finished, and put up in handsome, gold-stamped cases.

On the title page of each circular or list appears a conspicuous mark consisting of the ace of spades bearing a conventional figure of Columbia, together with the printed words "Trade-mark" thereunder. There is nothing whatever to indicate the use of " Stage" as an additional trade-mark. On the same page is printed the statement that "Bicycle' and other brands of U. S. and National' playing-cards (nearly one thousand different kinds) received the highest awards at the World's Fair Chicago." An exhibit pack of the "Stage" playing-cards is contained in a removable paper box, which has printed on one side, in large gilt letters, the following:

No. 65x. The Stage Playing Cards. Gold edges. Copyrighted 1896 by the U. S. Playing Card Co.-Cincinnati, U. S. A.

The pack is inclosed in a pasted paper wrapper with the same in print, and on the reverse side is a label showing the trade-mark ace before described. The face-cards of the pack show pictures of different actors and actresses with their respective names.

The superintendent of the American News Co., a large purchaser of cards, testified that he had ordered these " Stage" cards for eight years or more, from the price-lists, and that they were known to the trade as "Stage" playing-cards. The appellant alone manufactured them at the time. That this particular brand of cards was known as "Stage" cards, does not prove use of the name as a trade-mark to indicate origin and ownership. The same thing would be equally true of all the other brands described in the trade-lists, among which those designated as "Circus," " Vanity Fair," "Hustling Joe," etc., contain representative pictures on their faces. The testimony of the secretary of appellant contains the broad statement that the word "Stage" was adopted and used as a trade-mark; but this amounts to nothing more than a conclusion founded on what is disclosed in the trade-lists, and the testimony of the former witness. All that the testimony actually shows is that the real trade-mark, adopted, used and advertised as such is the ace of spades as before described, which appeared on every circular and trade-list, and on every pack of cards of whatever style. This trade-mark is a symbol that by long, exclusive use, and probable registration, indicated the origin and ownership of every style and grade of appellant's cards.

We think with the Commissioner, that the descriptive words, including "Stage," which appear on the particular packs of cards showing the pictures of actors and other performers on the stage, were for the purpose of indicating style, class, and grade. Words so used do not constitute a trade-mark. (Amoskeag Mfg. Co. v. Trainer, C. D., 1880, 464; 17 O. G., 1217; 101 U. S., 51, 54; Columbia

Mill Co. v. Alcorn, C. D., 1893, 672; 65 O. G., 1916; 150 U. S., 460, 463; Burton v. Stratton, 12 Fed. Rep., 696, 700.)

Having begun the manufacture of this novel style of card, the appellant affixed to it its long-established trade-mark, and undertook to secure additional protection, not by adopting a new and special trade-mark, but by securing a copyright for the cards as prints or pictorial illustrations This copyright, as we have seen, is advertised upon each pack of the cards containing the actors' pictures in large gilt letters.

We are of the opinion that the Commissioner was right and his decision is affirmed.

The clerk will certify this decision to the Commissioner of Patents as directed by the law. Affirmed.

[Court of Appeals of the District of Columbia.]

RIES v. KIRKEGAARD AND JEBSEN.

Decided December 11, 1907.

132 O. G., 845; 30 App. D. C., 199.

1. APPEAL-REVIEW BY COURT OF CONCURRENT DECISIONS OF PATENT OFFICE TRIBUNALS.

To justify the court of appeals in reversing the concurrent decisions of the Patent Office tribunals on a conclusion of facts, plain error must be shown.

2. INTERFERENCE-ORIGINALITY-ACTS INCONSISTENT WITH CLAIM TO ORIGINA

TION.

Where R., who was a patent solicitor, familiar with the patent law, both as inventor and solicitor, entered into a contract with K. and J., joint claimants of the invention in issue, according to the terms of which he was to attempt the sale of the invention and if he was successful he was to have one-third of the proceeds, Held to constitute a substantial acknowledgment that the invention was made by K. and J.

Messrs. Pennie & Goldsborough and Mr. Charles S. Champion for the appellant.

Mr. A. W. Proctor and Mr. W. M. Stockbridge for the appellee.

SHEPARD, C. J.:

This is an appeal from the decision of the Commissioner of Patents in an interference proceeding. (C. D., 1906, 485; 125 O. G., 1700.) The issue of the interference was declared in ten counts. Without setting them out, it is sufficient to say that the invention of the issue relates to improvements in crown-seal bottle-stoppers, and consists substantially of a metallic cap having a beaded split flange, a divided

ring inclosed in the bead, and a lever attached to one end of the ring and having a narrow eccentric slot engaging the other end of the ring. When the lever is moved in one direction the ring is contracted and the flange forced against an inclined shoulder near the mouth of the bottle causing the cap to firmly engage it. By moving the lever in the opposite direction the ring and flange are expanded, and the cap readily disengaged from the bottle.

Ries, the senior party, who filed application April 13, 1904, claimed conception between 1884, and 1887, drawings and disclosure in September, 1903, and reduction to practice in October, 1903. Kirkegaard and Jebsen who filed April 15, 1904, claimed conception, disclosure, construction and reduction to practice December 4, 1903. The tribunals of the Patent Office, unanimous in their award of priority to Kirkegaard and Jebsen, rejected the evidence of Ries's earliest alleged conception as wholly insufficient to establish his claim. In this they were undoubtedly right.

The real issue was whether Kirkegaard and Jebsen were real inventors, or derived their knowledge from the disclosures of Ries. Kirkegaard was the owner of a machine-shop, and had made some prior inventions. Ries was an inventor of a considerable number of devices, largely electrical, and was, moreover, a patent solicitor. While not a patent lawyer he had prepared statements in interference. He conducted the examination of witnesses, on his own behalf, and with some skill. He was on friendly terms with Kirkegaard and often engaged him to construct machines for him. During November and December of 1903, the latter was constructing a complicated machine for Ries, who was often in the shop. During this time Kirkegaard was working on a bottle-cap, for which he applied for a patent on December 16, 1903. Patent thereon was issued to him April 26, 1904. The invention of the issue is an improvement upon the patented construction, which appellees claim was suggested by Jebsen. Both stoppers include a metal cap having a slotted and flexible edge, a clamping-ring for this edge, and a cam-lever for drawing the ring tightly around, thereby compressing the flexible edge of the cap into a groove upon the bottle-neck. In the patented construction the clamping-ring is made of one piece of wire, has two free ends, and rests loosely on a flange or bead formed on the edge of the cap; there is also a single clamping-lever with a cam engaging a free end of the clamping-ring and adapted to contract but not to expand it. The clamping-ring of the improvement, of the issue, is a two-part wire inclosed in the bead of the cap, and having four free ends; the clamping-lever is in the form of a bail and has a cam-slot at each of its ends that is capable of both clamping and expanding the ring. The patented device was liable to become dismembered when not in

use. This was obviated in the improved structure by inclosing the two-part wire in a bead of the flange, and introducing the bail form of clamping-lever. The substitution of a double cam action secured both contraction and expansion as desired. Ries saw the patented construction, and claims to have substantially disclosed his former invention of the improvement. The appellees claim that upon seeing the same construction, Jebsen suggested the improved one, which Kirkegaard worked out. Hence the application as joint inventors. The case turns on this disputed point. The several tribunals, after a careful review of all the evidence, which it is unnecessary to repeat, came to the conclusion that Kirkegaard and Jebsen were the actual inventors.

There are some circumstances disclosed by the testimony, particularly as regards dates of drawings and work of construction, which involve this question in some doubt; and in such cases, it is the settled rule that the concurrent judgment of the Office tribunals will not be disturbed. To justify reversal, plain error must be shown in such a conclusion of fact.

Any doubt as to the point, however, is settled by subsequent transactions between the parties. Immediately after the construction, Ries entered into a contract with Kirkegaard and Jebsen to attempt the sale of the invention. If successful he was to have one-third of the proceeds of sale; the consummation he assumed at his own expense. He took sample-caps and exhibited them to a manufacturer, but failed to effect a sale. Reis who, as has been remarked, was a patent solicitor, drew this contract. Consequently, his attempt to give it a very restrictive, if not a concealed meaning, does not come in good grace. The substantial effect of the contract was an acknowledgment of the ownership by the other parties, not only of the patented construction but the improvement of the issue. Ries admitted that he was under the impression at the time that the appellees had filed their application for patent for the improvement. In this he was in error. Having failed to effect the sale, he filed his own application, which was followed two days later by the appellees. Ries's explanation of his motives in entering into this agreement is far from satisfactory. Being familiar with the patent law, both as inventor and solicitor, he must be presumed to have known, when attempting to sell the invention, that a patent to appellees for a device of which he, and not they were the actual inventors would be void.

The Commissioner was right in deciding the question of originality in favor of Kirkegaard and Jebsen; and without further discussion, his decision will be affirmed. It is so ordered, and that this decision be certified to the Commissioner of Patents as the law requires. Affirmed.