ROBB, J.: This appeal is from a decision of the Commissioner of Patents refusing to register, as a trade-mark for men's and young men's clothing, consisting of overcoats, raincoats, coats, vests, and trousers, the words "Gold Bond Clothes" printed across the symbol and figures "$15.00," the grounds of the refusal being that "Clothes" and "$15.00" are descriptive, as used by applicant, and that the words "Gold Bond" are anticipated by the registered mark of one Rosenthal. We agree with the Commissioner that the word "Clothes," in connection with the symbol and figures "$15.00," not only renders the mark descriptive of the goods with which it is used but also of the character or quality of such goods. See Winchester Repeating Arms Co. v. Peters C. Co., (C. D., 1908, 401; 134 O. G., 2030; 30 App. D. C., 505;) in re Meyer Bros. Coffee and Spice Co., (C. D., 1909, 312; 140 O. G., 756; 32 App. D. C., 277;) Johnson v. Brandau, (C. D., 1909, 298; 139 O. G., 732; 32 App. D. C., 348;) Planten v. Canton Pharmacy Co., (C. D., 1909, 408; 143 O. G., 1113; 33 App. D. C., 268;) in re Anti-Cori-Zine Chemical Co., (C. D., 1910, 291; 151 O. G., 452; 34 App. D. C., 191;) in re Meyer Bros. Coffee and Spice Co., (C. D., 1912, 490; 179 O. G., 579; 38 App. D. C., 520.) In Carmel Wine Co. v. California Winery (C. D., 1912, 428; 174 O. G., 586; 38 App. D. C., 1) we ruled that one has no right to incorporate the mark of another as an essential feature of his mark. It follows, therefore, that appellant has no right to register the words "Gold Bond" unless and until it is made to appear that the Rosenthal registration has been abandoned, and that question may be determined either by an interference or by the filing of Rosenthal's waiver of the mark. The decision is affirmed. [Court of Appeals of the District of Columbia.] THE PETER SCHOENHOFEN BREWING COMPANY v. JOHN SEXTON & COMPANY. Decided February 2, 1914. 200 O. G., 1117; 41 App. D. C., 510. TRADE-MARKS-Goods-GRAPE-JUICE AND BEER-NOT OF THE SAME DESCRIPTIVE PROPERTIES. Grape-juice Held not to constitute goods of the same descriptive properties as beer. Mr. C. C. Linthicum, Mr. W. O. Belt, and Mr. W. M. Fuller for the appellant. Mr. W. F. Murray for the appellee. SHEPARD, C. J.: The appellee's application for the registration of "Edelweiss" as a trade-mark for grape-juice, a non-alcoholic beverage, was allowed for publication. The appellant filed an opposition thereto alleging its long prior use, and registration of the same word as a trade-mark for lager-beer of its manufacture. Appellee's demurrer was sustained and the opposition dismissed on the ground that the goods of the respective parties are not of the same descriptive properties. We concur in this conclusion. (Muralo Co. v. National Lead Co., C. D., 1911, 324; 165 O. G., 475; 36 App. D. C., 541; Johnson Educator Co. v. Sylvanus Smith Co., C. D., 1912, 440; 175 O. G., 268; 37 App. D. C., 107; Hump Hairpin Co. v. De Long Hook and Eye Co., C. D., 1913, 393; 190 O. G., 1932; 39 App. D. C., 484.) The decision is affirmed, and the clerk will certify this decision to the Commissioner of Patents. Affirmed. [Court of Appeals of the District of Columbia.] COMPTOGRAPH COMPANY v. ADDER MACHINE COMPANY. Decided February 2, 1914. 200 O. G., 1391; 41 App. D. C., 427. 1. ABANDONMENT OF INVENTION. Where the evidence showed that the invention disclosed in the Felt Patent No. 628,176, was completed in 1890, but was deliberately cast aside by its owner and no further action taken for eight years, during which time other inventors had entered the field and exploited the idea exemplified in this device, Held that the invention was abandoned and the patent void. 2. PATENTABILITY-PRINTING AND CALCULATING MACHINE. The Felt Patent No. 568,021, for a printing and calculating machine, claims 47, 48, 49, and 52 Held invalid in view of the prior art. 3 INFRINGEMENT-CALCULATING-MACHINE. The Felt Patent No. 661,121, for a calculating-machine, claims 37, 38, 39, and 40 construed and Held not infringed. Mr, H. N. Low, Mr. J. W. Munday, Mr. H. L. Clarke, and Mr. E. H. Garnett for the appellant. Mr. J. B. Hayward, Mr. D. W. Cooper, and Mr. Melville Church for the appellee. ROBB, J.: This is an appeal from a decree in the Supreme Court of the District dismissing appellant's bill for the infringement of certain Letters Patent relating to adding-machines. Three patents are here involved: Felt Patent, No. 568,021, issued September 22, 1896; Felt Patent, No. 628,176, issued July 4, 1899; Felt Patent, No. 661,121, issued November 6, 1900. Both here and in the court below the controversy centered around the tabulator patent, No. 628,176, the issue as to the other two being submitted upon the briefs. We will, therefore, first consider this patent. Three claims are involved, claims 1, 2, and 4, which read as follows: 1. The combination with the printing mechanism adapted to print two or more characters side by side, of a laterally-movable paper carriage, devices for feeding the paper longitudinally mounted in said carriage, and automatic mechanism acting in any position of the carriage to actuate said feeding devices in the line-spacing movements, substantially as specified. 2. The combination with a series of type arranged to print side by side devices for impressing the paper upon the type, a laterally-movable paper carriage adapted to position the paper for the different columns, feed-rolls for moving the paper longitudinally past the type and means for actuating said rolls, substantially as specified. 4. The tabulating machine having in combination a laterally-movable paper carriage, means for feeding the paper vertically in any position of the carriage, and mechanism for shifting the carriage laterally the width of a column-space, substantially as specified. The controversy here, as stated in appellant's brief, relates— to the feature of providing an adding machine with a laterally-movable paper carriage adapted to handle wide sheets of paper and to print and add thereon a plurality of parallel columns of numbers, instead of just printing a single column of numbers on a long, narrow, continuous roll of paper. Mr. Felt was the inventor of the computing-machine called the comptometer, the patent upon which was issued in 1887. In 1888 he developed from his comptometer printing-adding machines, known as the roll-paper comptographs, which added and printed the numbers in a list on a continuous roll of narrow paper. One of these machines was sold and delivered to a bank in Pittsburgh in 1889. Prior to 1889 Mr. Felt had been in partnership with a Mr. Robert Tarrant and a Mr. De Berard, Mr. Felt being the inventor and Tarrant the financial backer of the partnership. In 1889 the Felt & Tarrant Mfg. Co., a corporation, was organized with Mr. Felt as president. The stock was divided as follows: Felt, nine-sixteenths; Tarrant, six-sixteenths; and De Berard, one-sixteenth. The indebtedness of twelve or fourteen thousand dollars of the old partnership was assumed by the partners according to their respective interests. The stock of the company was issued in payment for special tools, adding-machines, parts of adding-machines, and the patents owned by the old Felt & Tarrant partnership. In 1902 the appellant Comptograph Company was incorporated and the comptograph business of the Felt & Tarrant Mfg. Co. was turned over to it. Early in 1890 Mr. Felt completed the full-sized operative tabulator-adding machine introduced in evidence as "Felt's 1890 Model." This, appellant insists, was a reduction to practice of the claims of the tabulator patent now under review, and we shall assume that this contention is correct. This machine was operated in the presence of a reporter of the Chicago Tribune and an article describing the machine in general terms thereafter appeared in that paper. It appears that when Mr. Felt constructed this machine he hoped. to have it accepted by the United States Census officials, and early in February he personally exhibited it to them. This attempt of Mr. Felt, however, to have his machine adopted by the Census officials was unsuccessful and it was taken back to Chicago, the headquarters of the Felt & Tarrant Co. According to Mr. Felt's own testimony, Mr. Tarrant, while a minority stockholder, absolutely dominated the policy of the corporation. The reason for this was that he paid all bills of the company and furnished it quarters in his factory. These conditions remained unchanged until some time after the application for this patent was filed, May 31, 1898. In the brief of appellant it is stated: It is thus apparent that Tarrant, though only a minority stockholder in the Felt & Tarrant Co., entirely controlled Felt and the development of his inventions, and that Felt, being without money, as we will hereinafter show, and unable to secure any, was bound to submit to Tarrant's views as to what should be done with the 1890 invention. Mr. Felt was asked by counsel for appellant to state the attitude of Mr. Tarrant toward the 1890 machine when it was brought back from the Census Office at Washington, and answered: He said I mustn't do anything more with it and that what time and money we had must be devoted entirely to the machines we then had on the market; namely, the comptometer and the comptograph. He seemed to regard me as merely an inventor who had no business judgment, and whenever I wanted to talk about the wide paper machine to him he treated the subject with contempt and wouldn't talk about it. Whatever may have been the personal attitude of Mr. Felt toward this alleged invention, there is no doubt whatever that the attitude of the corporation toward it remained unchanged until sometime subsequent to the issuance of the patent to Hiett on April 20, 1897, and the patent to Pike on December 21, 1897. Each of these patents described but did not claim the wide-frame feature of the claims in issue. Mr. Felt procured a copy of the Hiett patent soon after its issuance and while he and a workman by the name of Ziehm testify that just before the issuance of this patent they added a sheet-end-warning device or alarm on Felt's 1890 model, we are not satisfied that this was done prior to the date of the Hiett patent. Mr. Felt, testifying several years after the event, says that this device was put on while the application therefor— was being prepared or was pending in the Patent Office. and, inasmuch as the patent was issued March 16, 1897, he therefore concludes that the work was done prior to the issuance of the Hiett patent. Just why he remembers that the work was done before rather than after the issuance of the patent he does not explain, and the testimony of the witness Ziehm is even more vague and unsatisfactory. Mr. Felt testifies that between the construction of this model in 1890 and the time the patent was applied for, he made several efforts to interest other capital in the machine and that had he succeeded he would have insisted upon an application being made for this alleged invention. He says that he did not have sufficient funds of his own to apply for a patent. But, even if we accept this statement it does not appear that the idea of filing an application for his own benefit ever occurred to him, nor does it appear that he attempted to obtain outside aid to that end. While, as we have seen, the Hiett patent which fully disclosed the issue herein came out in April, 1897, Felt's application was not filed until May 31, 1898, and the application was then filed in behalf of the Felt & Tarrant corporation, to which belonged all of Felt's inventions. In other words, the corporation that for a period of eight years had treated with contempt the alleged invention, filed an application covering it after two other inventors had taken the corporation at its word and incorporated, without claiming the wide-carriage idea in their own improvements. The expenses of building the 1890 model were met by Mr. Tarrant and charged to the Felt & Tarrant Co., and the expenses of applying for and obtaining the patent in suit, amounting to $539, were met by the same company. The attitude of the company is further apparent from the fact that six other applications were filed between 1890 and the filing of the présent application. The patent in issue was declared void in Universal Adding Machine Co. v. Comptograph Co., (present appellant,) (146 Fed. Rep., 981.) Speaking of the Hiett patent the court said: Indeed, Felt's only escape from the Hiett patent, as an anticipating device, lies in the claim that although the Felt patent was not applied for until 1898, the idea was conceived and put into process of mechanical development in 1889 and 1890. Assuming that this concept of the patentee was complete when the patent was exhibited to the Census Office in 1890, so as to be practicable and operative, the machine was sufficiently completed to obtain a patent (if the feature were patentable at all) upon the broad feature claimed. The court found that either the mechanism of 1890 was a mere inoperative and impracticable experiment and hence supplanted by the Hiett patent, or else for the purposes of the broad claims allowed, the mechanism of 1890 was operative and practical, and therefore abandoned or lost through the eight years of inaction that followed. |