considered as in any sense comprising a body portion and a coupon is by treating the line of p. m. figures as a coupon and the remainder (including the a. m. figures) as a body portion. This would be a forced and unreasonable construction..

In our opinion, the broad structural conception of the Pope transfer has not been anticipated.

3. Invention. Does the Pope device involve invention, or merely the expected skill of the printer or street-car man? It need not be said that this is a question of fact. The question is less difficult when considered in connection with the utility of Pope's device and the public favor it has met. In 1896 defendant began using the "709" transfers. So far as shown, no other company used that precise form. Until 1903 it used various unpatented forms, printed by the Webb Printing Company. In the latter year the Ham patent issued, the Pope patent issuing more than two years later. The Globe Printing Company had the sole right of manufacture under both patents. The defendant used the Ham ticket apparently until about the time the Pope patent issued, when it applied to the Globe Company for figures on a farm covered by the claims of that patent; the Globe Company having manufactured according to those claims for some months before the patent issued. It did not, however, buy of the Globe Company but of the Webb Company, against whom and another of its customers infringement suits are pending; the testimony herein being, by stipulation, applicable thereto. It has ever since used this form of transfer, which is clearly an infringement of the Pope patent. The "tribute of its imitation "1 is cogent evidence of the utility of the Pope transfer. Indeed, this utility is readily apparent as respects both facility and rapidity of use and effectiveness in preventing misunderstandings and misuse. It is novel and distinctive in form. It has been favorably received. Although its average price was slightly higher than that of the Ham, it has largely superseded that device, which was never used by more than twelve railway companies. The Pope transfer is used by forty-four railway companies, included within nineteen States, ranging from coast to coast and from Maine to Louisiana. Its annual sales are more than three times the sales of the Ham transfers during the entire period of two and one-half years between the issues of the Ham and Pope patents, and bear the same ratio to the period of two and one-half years following. From March 23, 1909, to February 1, 1910, the sales of the Pope transfers were twenty-one times greater than those of the Ham, which were then used by but three roads. Although the fact that an improvement has superior utility, and immediately supersedes other devices, is not material where the question of invention

1 Mr. Justice McKenna's expression in Diamond Rubber Co. v. Consolidated Tire Co., (C. D., 1911, 538; 166 O. G., 251; 220 U. S., 428; 31 Sup. Ct., 444; 55 L. Ed., 527.)

1

is not in doubt; yet in case of doubt these considerations may determine the question of invention. It may well be that, given the idea of the Pope patent, the expected skill of the printer or street-car man would have been sufficient to determine the arrangement of printed text, and even the form of legends; yet, in view of the history of the art, taking into account the apparent desire for a more effective transfer (as evidenced by the frequent changes in the use of unpatented devices,) the superior utility of the device in suit, its novel and distinctive character, and the extent to which it has been accepted by the public, we think the device of the structure of the Pope transfer must be held to involve invention.

4. Infringement. As appears from what we have already said, we have no difficulty in holding that the transfer in use by the defendant at the time of and since the commencement of suit is an infringement of the Pope patent.

The decree of the district court is affirmed, with costs.

[U. S. Circuit Court of Appeals-Eighth Circuit.]

ROSSMANN v. GARNIER.

Decided January 27, 1914.

205 O. G., 661; 211 Fed. Rep., 401.

1. COURTS-JURISDICTION OF UNITED STATES COURTS-CASES ARISING UNDER TRADE-MARK LAWS.

The Federal courts have jurisdiction of all matters arising under the trade-mark statute, even though both parties be citizens of the same State.

2. COMMERCE-STATUTORY PROVISIONS-VALIDITY—“ TRADE-MARK."

Congress had power under the Constitution of the United States (art. 1, sec. 8, cl. 3, authorizing it to regulate foreign and interstate commerce and commerce with the Indian tribes) to enact the trade-mark laws (act March 3, 1881, c. 138; 21 Stat., 502; U. S. Comp. St., 1901, p. 3401; act August 5, 1882, c. 393; 22 Stat., 298; U. S. Comp. St., 1901, p. 3404, and act February 20, 1905, c. 592; 33 Stat., 724; U. S. Comp. St. Supp., 1911, p, 1459) especially as a trade-mark" is a distinctive mark of authenticity through which the products of particular manufacturers or the vendible commodities of particular merchants may be distinguished from those of others.

66

1 Olin v. Timken, (C. D., 1894, 645; 69 O. G., 1361; 155 U. S., 141; 15 Sup. Ct., 49; 39 L. Ed., 100;) Adams v. Bellaire Stamping Co., (C. D., 1891, 546; 57 O. G., 1280; 141 U. S., 539; 12 Sup. Ct., 66; 35 L. Ed., 849;) Hollister v. Benedict, etc., Co., (113 U. S., 59; 5 Sup. Ct., 717; 28 L. Ed., 901;) Gould & Eberhardt Co. v. Cincinnati Shaper Co., (194 Fed. Rep., 680; 115 C. C. A., 74, and cases cited;) McClain v. Ortmayer, (C. D., 1891, 532; 57 O. G., 1129; 141 U. S., 419: 12 Sup. Ct., 76; 35 L. Ed., 800.) 2 Hollister v. Benedict, etc., Co., supra; Keystone Mfg. Co. v. Adams, (C. D., 1894, 141; 66 O. G., 654; 151 U. S., 139; 14 Sup. Ct., 295; 38 L. Ed., 103;) Potts v. Creager, (C. D., 1895, 143; 70 O. G., 494; 155 U. S., 597; 15 Sup. Ct., 194; 39 L. Ed., 275;) Hobbs v. Beach, (C. D., 1901, 311; 94 O. G., 2357; 180 U. S., 383; 21 Sup. Ct., 409; 45 L. Ed., 586;) Star Brass Works v. General Elec. Co., (111 Fed. Rep.; C. C. A. 6, 398; 49 C. C. A., 409;) Kalamazoo Ry. Supply Co. v. Duff Mfg. Co., (C. C. A. 6; 113 Fed. Rep., 264; 51 C. C. A., 221;) Dowagiac Mfg. Co. v. Superior Drill Co., (C. C. A. 6; 115 Fed. Rep., 886; 53 C. C. A., 36;) Electric Controller Co. v. Westinghouse Co., (C. C. A. 6; 171 Fed. Rep., 83; 96 C. C. A., 187.)

3. TRADE-MARKS AND TRADE-NAMES-STATUTORY PROVISIONS-VALIDITY.

The provision of Trade-Mark Act February 20, 1905, (c. 592, sec. 5; 33 Stat., 725; U. S. Comp. St. Supp., 1911, p. 1461,) that nothing therein shall prevent the registration of any mark used by the applicant or his predecessor or by those from whom title to the mark is derived in interstate or foreign commerce or commerce with Indian tribes which was in actual or exclusive use as a trade-mark of the applicant or his predecessor for ten years next preceding the passage of that act is not unconstitutional.

4. SAME-MARKS SUBJECT TO OWNERSHIP-DESCRIPTIVE WORDS.

Such provision of act February 20, 1905, (c. 592, sec. 5; 33 Stat., 725; U. S. Comp. St. Supp., 1911, p. 1461,) is not limited to technical trademarks, and a word used exclusively for ten years may be registered under that provision even though it is a descriptive word.

5. SAME-INFRINGEMENT-WHAT CONSTITUTES.

A trade-mark consisting of the word "Abricotine" in connection with the initials "P. G." on a tabret or shield and the facsimile of a signature was infringed by using the word "Abricotine" in connection with similar goods.

6. SAME-ACTIONS-NOTICE AS CONDITION PRECEDENT.

Under the express provisions of Trade-Mark Act February 20, 1905, (c. 592, sec. 28; 33 Stat., 730; U. S. Comp. St. Supp., 1911, p. 1470,) where the registrant neither gave notice of the registration by affixing a notice to that effect to the articles sold under such trade-mark nor notified defendant of the infringement, damages were not recoverable for the infringement. 7. EVIDENCE-JUDICIAL NOTICE-FOREIGN LANGUAGE.

In a suit for infringing a trade-mark judicial notice would not be taken that the word “Abricotine" is a word in general use in the French language in connection with French commerce and descriptive of apricot cordial, since, while the court is bound to take judicial notice of the ordinary meaning of words in our own language, it has judicially neither memory nor understanding of the French language, and judicial notice as to uses and customs is confined to our own country.

8. TRADE-MARKS AND TRADE-NAMES-ACTIONS-SUFFICIENCY OF EVIDENCE.

Under Trade-Mark Act February 20, 1905, (c. 592, sec. 5; 33 Stat., 725; U. S. Comp. St. Supp., 1911, p. 1461, authorizing the registration of any mark in actual and exclusive use as a trade-mark by the applicant or his predecessor in title for ten years next preceding the passage thereof, and sec. 16, making the registration of a trade-mark prima facie evidence of ownership,) the prima facie case made by the registration of a trade-mark containing as a part thereof the word "Abricotine," in connection with cordials, was not overcome by the presence of the word "Abricotine," as applied to liqueurs, in a French encyclopedia bearing a date subsequent to the date of the beginning of the ten-year period and more than twenty years after the original registration of complainant's French trade-mark, it not appearing that it was not complainant's product that placed the term in the encyclopedia.

Under article 6 of the convention of March 20, 1883, (25 Stat., 1376,) for the protection of industrial property, providing that every trade-mark regularly deposited in the country of origin shall be admitted to deposit and so protected in all other countries of the Union thereby constituted,

the owner of a trade-mark registered in France was entitled to protection in this country, whether or not such mark would have been allowed under the laws of this country.

APPEAL from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.

Mr. James A. Carr (Mr. Albert C. Davis on the brief) for the appellant.

Mr. James L. Hopkins (Mr. A. Parker Smith on the brief) for the appellee.

Before Hook and SMITH, Circuit Judges, and VAN VALKENBURGH, District Judge.

SMITH, Cir. J.:

This suit was brought by the appellee, Caroline Henriette Garnier, to enjoin the appellant, Tekla Rossmann, from infringing a registered trade-mark, to restrain her from unfair trade, and for an accounting, and resulted in a decree as prayed.

November 1, 1910, Caroline Henriette Garnier registered in the Patent Office as a trade-mark for cordials the following:

PG

ABRICOTINE
$' Carnions

She alleged in her statement that she was a citizen of France residing at Enghien-les-Bains, France, and the trade-mark had been used. in her business and that of her predecessor, Andre Georges Garnier, since on or about the 1st day of August, 1872. She alleged in her declaration that said trade-mark had been registered in France and that the same had been in actual use as a trade-mark of the appellant and her predecessor from whom title was derived for ten years next preceding the passage of the act of February 20, 1905, and to the best of her knowledge and belief such use had been exclusive. In her bill of complaint Mrs. Garnier says that defendant Tekla Rossmann is engaged in selling a cordial under the name "Abricotine" upon which the complainant claims a trade-mark in commerce between the several States.

72367°-15-15

The appellant first denies that the court had any jurisdiction of this suit except under the trade-mark law because it is not shown that the complainant is a citizen of France.

In the view taken by the court it is sufficient to say that all the matters which will be passed upon arise under the trade-mark law, and it is therefore unnecessary to consider this question.

(1) The Federal court has jurisdiction of all matters arising under the trade-mark statute even though both parties be citizens of the same State. (Elgin National Watch Co. v. Illinois Watch Case Co., C. D., 1901, 273; 94 O. G., 755; 179 U. S., 665; 21 Sup. Ct., 270; 45 L. Ed., 365.)

(2) The defendant claims the entire trade-mark law of 1905 (33 Stats., 724) is unconstitutional, and inferentially the same contention is made as to the act of 1881 (21 Stats., 502) and of 1882, (22 Stats., 298.)

The first trade-mark legislation passed by Congress was in 1870 (c. 230 of the Laws of the Forty-first Congress) and is found in 16 Stats., 198. That was entitled "An act to revise, consolidate, and amend the statutes relating to patents and copyrights."

Sections 77 to 84 of this act referred exclusively to trade-marks. There was nothing in the act to refute the presumption quite apparent from its title that it was enacted by Congress in the supposed exercise of its powers under the eighth clause of the eighth section of the first article of the Constitution.

SEC. 8. The Congress shall have power:

To promote the progress

of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

In 1876 (19 Stats., 141) Congress passed an act to punish the counterfeiting of trade-mark goods and the selling or dealing in such goods. This act was for the further security or protection of trademark holders under the act of 1870.

In the Trade-Mark Cases (C. D., 1879, 619; 16 O. G., 999; 100 U. S., 82; 25 L. Ed., 550) the Supreme Court held that no power to pass trade-mark legislation was conferred by the provision of the Constitution quoted and that, as the laws of 1870 and 1876 made no distinction between trade-marks used in intrastate commerce and those used in foreign commerce, interstate commerce, and commerce with the Indian tribes, both of said acts were necessarily void. This decision was rendered in October, 1879, and it was in conformity with what was supposed to have been laid down by the Supreme Court in those cases that all the subsequent legislation upon the subject has been enacted. It is probably true that the constitutionality of the more recent legislation has never been expressly passed upon by the Supreme Court of the United States, but that legislation has now stood for more than thirty years. It has been enforced by the