A type-writer ribbon depends for its value largely upon the quality of the ink or dyes used for the purpose of impression or printing. It is well known that most valuable inks and dyes are produced and imported from some of those Oriental countries. Even though the applicant might have no intention of using any such articles in producing its ribbon, still it might reap a great advantage by having a name protected in its trade-mark that would suggest to the public such a use. The purpose of the statute is to prevent a manufacturer or dealer from gaining such an advantage, either directly or by subterfuge. The question before us was conclusively disposed of by this court in the case of in re Hopkins, (C. D., 1907, 549; 128 O. G., 890; 29 App. D. C., 118,) where the Commissioner had refused to register a trademark described by the words "Oriental Cream," and associated with an eagle holding a scroll in its beak. Chief Justice Shepard, stating the opinion of the court, affirmed the refusal of the Commissioner to register the trade-mark on the ground that the term "Oriental" is a geographical term, and therefore prohibited from registration by section 5 of the Trade-Mark Act of February 20, 1905. In that case, the Commissioner said: The word "Orient" is a term used to indicate the East, Eastern countries, and specifically the regions to the east and southeast of the leading States of Europe. Century Dictionary. The term "Oriental" is in general use in commerce to indicate goods that are manufactured in this region, as, for example, Oriental rugs. As applied to a cream, it would indicate that the cream came from the Orient. On the face of the proposed trade-mark, the brand of the ribbon and paper is designated as "Orient Brand," which would convey to the public mind but one meaning, namely, that the goods manufactured by the appellant company, possessed qualities or elements that distinctively belong to the Oriental countries. The word "Orient," we think, is such a geographical term as comes clearly within the prohibition of the statute. The decision of the Commissioner of Patents is affirmed, and the proceedings in this court will be certified to him by the clerk, as required by law. Affirmed. [Court of Appeals of the District of Columbia.] THE NATURAL FOOD COMPANY v. WILLIAMS. 1. TRADE-MARKS Decided February 4, 1908. 133 O. G., 232; 30 App. D. C., 348. “SHREDDED WHOLE WHEAT "-DESCRIPTIVE. The words "Shredded Whole Wheat" as applied to certain food preparations Held to be descriptive, and therefore incapable of appropriation as a trade-mark. 2. SAME-OPPOSITION-EXCLUSIVE USE-CHARACTER OF USE BY OPPOSER. In determining if applicant's use of a mark has been "exclusive" within the meaning of section 5 of the Trade-Mark Act it is immaterial whether the opposer used the mark as a trade-mark or merely in a descriptive sense. 3. SAME-SAME-TESTIMONY. The fact that the opposer built machines to produce shredded whole wheat and actually produced and sold such an article is sufficient corroboration of his testimony that the boxes in which the product was packed were marked "Shredded Whole Wheat." Mr. H. A. Seymour for the appellant. Mr. Wallace Greene for the appellee. ROBB, J.: This is an appeal from a decision of the Commissioner of Patents sustaining the opposition to the registration of the words "Shredded Whole Wheat” as a trade-mark for biscuits or crackers. Appellant in June, 1905, filed an application for the registration of these words under the so-called "ten-years clause" found in the act of February 20, 1905. (33 St. at L., pt. 1, 724.) Subsequently William E. Willams, the appellee here, filed a notice of opposition, in which he averred that the applicant, the Natural Food Company has not in fact used the words constituting the alleged trade-mark, as a supposed trade-mark, for ten years; that the said applicant has not been the exclusive user of the words constituting the alleged trade-mark, upon the specified goods, for the time of the alleged use by said company. He also averred that he made a machine for producing shredded whole wheat as early as the early part of 1894; and that he had produced and sold the product of that and other improved machines, which he subsequently constructed, as shredded whole wheat. We have carefully examined the record in this case and unhesitatingly sustain the view entertained by the tribunals of the Patent Office. It appears that the appellee Williams, who as a boy learned the miller's trade in a flour-mill and who later became a civil engineer, early in 1894 built a machine "the function of which was to convert the whole grains of wheat into shreds." That he constructed and operated this machine at that time is established beyond question since he is corroborated by two disinterested and intelligent witnesses. Williams endeavored to interest capital in his invention and succeeded to some extent. At all events, in 1902 he was enabled to build an improved machine and has since constructed others. The capacity of the 1902 machine was much greater than that of the earlier machine, and from that time Williams has continued without interruption to manufacture and sell shredded whole wheat. He is corroborated by the machinist who worked on the 1902 machine, and who testified in detail as to its capacity and to the extent to which it was operated after its completion. The proprietor of a large restaurant in Chicago testified to having purchased regularly shredded whole wheat from Williams since as early as 1903. Williams himself testified that the words shredded whole wheat accurately and properly describe the product of his machine; and that he had always marked the boxes containing such food products as shredded whole wheat. He said: In my opinion should anybody get a monopoly of the words "shredded whole wheat" it would be impossible to mark the shreds made of whole wheat or describe them in an intelligent way without being considered by the owner of such a trade-mark as the words "shredded whole wheat" considering that his rights were being infringed and thereby he might worry and annoy an innocent manufacturer in the proper description of his goods. He also offered in evidence several patents, some of which were granted in 1894, which disclose machines for converting cereals including whole wheat into shreds. 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-years period. The evidence above briefly reviewed, we think, clearly establishes the fact that appellant was not the exclusive user of these words during the ten-years period. No claim is made of any attempt on the part of Williams to deceive the public, or that the product of his machines is not in fact as much entitled to be called shredded whole wheat as is the product of appellant's machines. That he did not use the words as a trade-mark, but merely in a descriptive sense is of no moment. He in common with all other manufacturers of shredded whole wheat had the same right to properly designate their product as did The Natural Food Company. The fact that the Patent Office for more than ten years has been granting patents for machines for converting cereals into shreds adds cogency to the contention that the words "shredded whole wheat" properly describe the product of Williams's machines. It is urged that the Patent Office erred in ruling that Williams used the words "shredded whole wheat" in marking his goods, because his testimony was not corroborated. As above stated, it clearly appears that Williams constructed a machine in 1894 for the manufacture of this product, and that he did in fact produce shredded whole wheat at that time, and that he has continued to do so since that time. It is clearly established by the testimony of several witnesses that he referred to the product of his machines as shredded whole wheat; that he sold it as such, and that it was known as such. It is true that Williams is the only witness who testified that the boxes in which it was packed were marked "shredded whole wheat," but we think the circumstances so strongly corroborate his testimony that further corroboration is unnecessary. It being established that he was the inventor and builder of machines to produce shredded whole wheat, and that he actually produced and sold it, it necessarily follows that he would be likely to designate the product of his machine by its proper name. The appellant for ten years prior to 1905 had not exclusively used the words which it sought to have registered, and its application, therefore, was properly denied. Moreover, it is open to question whether appellant in fact used these words as a trade-mark until after the enactment of the "tenyears clause" in 1905. The carton used by appellant prior to 1905 contains the figure of a woman holding a torch and a sheaf of wheat. The word "trade-mark" appears immediately under this figure, indicating quite clearly that The Natural Food Company claimed the figure as its trade-mark and not the words "shredded whole wheat which were apparently then used to merely describe the contents of the package. The decision of the Commissioner of Patents was right, and is, therefore, affirmed. The clerk of the court will certify this opinion and the proceedings in this court to the Commissioner of Patents in accordance with law. Affirmed. [Court of Appeals of the District of Columbia.] Decided February 4, 1908. 133 O. G., 517; 30 App. D. C., 334. PATENTABILITY-NOVELTY-ANTICIPATION. Held that a method of covering playing-balls consisting of knitting separately a wrapper leaving a slit therein, inserting a deflated rubber ball through said slit, closing the slit by meshes of the same material as that forming the cover, and finally inflating the ball is anticipated by certain patents showing the idea of covering inflated rubber balls with a crocheted or knitted cover and another patent which contains the idea of inserting a deflated ball in a cover, inflating the ball, and then closing the aperture. Mr. J. L. Norris for the appellant. Mr. Frederick A. Tennant for the Commissioner of Patents. ROBB, J.: This is an appeal from the refusal of the Commissioner of Patents to issue Letters Patent to Paul Emil Droop upon a method of cover ing and inflating playing-balls for tennis and other games, as described in the following counts: 1. The herein-described method of covering playing-balls for tennis and other games, consisting in knitting separately a spherical wrapper and leaving a slit therein, inserting the elastic shell of the ball through said slit and then uniting the edges of the slit. 2. The herein-described method of covering playing-balls for tennis and other games, consisting in knitting separately a spherical wrapper having juxtaposed edges, placing the elastic ball within the wrapper, and then drawing together the edges of the wrapper by making new meshes of the same material as the wrapper and so inclosing the elastic ball. 3. The herein-described method of covering and inflating playing-balls for tennis and other games, consisting in knitting separately a spherical wrapper and leaving a slit therein, inserting the elastic shell of the ball through said slit and then closing the said slit by making new meshes between the edges thereof, and thereafter inflating the inner elastic ball. These claims were severally rejected because of the following references: Allerton, July 14, 1868, No. 79,933; Esty, July 22, 1884, No. 302,388; Washington, Feb. 26, 1889, No. 398,558; Bissell, Oct. 30, 1900, No. 660,787; British patent to Lord, May 11, 1898, No. 10,796. In the British patent to Lord is found the idea of covering an inflated rubber ball with crocheted or knitted material, and thereby dispensing with the necessity of using cement or other adhesive. The Lord application contains the following: I am aware that india-rubber balls have previously been covered with a case of material, the latter being usually attached to the ball by means of a cement or other adhesive. My invention, however, differs essentially from this, in that I use no adhesive, and also in the fact that I do not use a material, but crochet or otherwise knit a strip of tape or other like substance on to the ball. The American patent to Bissell discloses: a tether-ball comprising a resilient ball, a cover of fibrous material inclosing the same, and a ring or loop attached to said cover and having a surface composed of a continuation of the threads of the cover. There is nothing new, therefore, in the idea of a knitted cover, nor is there anything new in the idea of inserting a deflated ball in the cover and then fully inflating it, as that idea is disclosed in the Allerton patent. Allerton in his application says: The nature of my said invention consists in an india-rubber bag, or other article to be inflated or distended, in combination with a separate covering of cloth, felt, or similar material, that supports the rubber fabric, and prevents injury to the same by the pressure or by wear, and such covering, not having been exposed to heat, retains its original strength and color, and the rubber being separate, can be cured by heat in the most perfect manner. The tribunals of the Patent Office found nothing new in the idea of closing the slit in the cover, through which the deflated ball has been passed, "by making new meshes between the edges thereof." The Commissioner said: It is well known that fabrics may be knitted to any desired form and their free edges secured together by knitted stitches. |