that no necessity exists for the invasion of one trader upon even the
apparent rights of another, and that the broadest protection will be
afforded the purchasing, consuming public by the conrta" (*)/d.

5. Same. — ^A mark consisting of the representation of a nnmber of owls with

outspread wings grouped under the branches of a tree Held decep-
tively similar to a mark consisting of the representation of an owl
sitting upon a branch of a tree and the word " Ko* Ko Ko.'* Jackson
Company v. Rogers d Thompson^ 22.

6. Same. — ^A mark consisting of the pictorial representation of a man having

a joyful or hilarious expression, with the words '* O B Joyful " there-
over, Held not deceptively similar to a mark consisting of the letters
"O B". (Carmel Wine Co. v. California Winery, C. D., 1912, 428;
174 O. G., 586 ; 38 App. D. C, 1« distinguished.) The Alesfander MiXUng
Co, V. Vernier, 26.

7. Same. — ^A mark consisting of the picture of a bear standing upright, hold-

ing a gun, and the words " Teddy Bear Brand," Held deceptivdy simi-
lar to a mark consisting of the picture of a bear having one foot resting
on a fish, and the words "Pioneer Fisliery." {*) In re John Braad-
land, Limited, 432.

8. Same. — Two trade-marks each of which includes the picture of a peacock

with outspread tail Held so similar that their contemporaneous use
would be liable to cause confusion in the minds of the public. Bw parte
Reisch Brewing Co., 34.

9. Same—" BJOo " in a monogbam and " R J. Co."— The letters " EJOo **

arranged in the form of a monogram Held deceptively similar to the
prior registered trade-mark " E. J. Co." Ew parte Elliott Jewelry Com-
pany, 96.

10. Same—" Coro "— " Cobolla."— The word ** Coro " JSTeW to so nearly re-

semble tlie word " Corolla " that their simultaneous use upon goods of
the same descriptive properties would be likely to cause confusion.
Ex parte Thaddeus Davids Ce., 152.

11. Same— "PuBocK" and " Pureoxia."— The words "Purock" and "Pu-

reoxia " Held so similar that their concurrent use upon goods of the
same kind would be likely to cause confusion in the mind of the pur-
chasers. Ex parte Charles E. Hires Company, 203.

12. Same — " Durham-Domino " and " Domino."— A mark consisting of the

words " Durham-Domino " written with the initial letter of each word
including the remaining letters Held so similar to a mark consisting of
the word "Domino" and the representation of a domino that their
simultaneous use upon goods of the same descriptive properties would
be likely to cause confusion. Esd parte Durham Duplex Razor Com-
pany, 209.

13. Same.— The mark " Tika " Held unregistrable because of its similarity to

the registered mark " Swastika." Ex parte J, C, Blair Company, 244.

14. Same— "Amber Bead" and "Amber."— The mark "Amber Bead" Held

properly refused registration in view of the prior registration of "Am-
ber" as a trade-mark for goods of the same descriptive propertiea
i*) Jn re Independent Breweries Company, 569.

15. Same.— The title "The Automobile Trade Directory* as applied to a

publication Heid not so similar to the title " The Cyde and Automobile



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DlQBSl^ Of tBCiSIOKS. 71 7

Trade Joamal ** as applied to a publication of the same class as to be
likely to cause confusion in tbe mind of the public. ChUton Printing
Co. V. The Class Journal Co., 254.

16. Same— " Rex-O-Tone " and "Rex."— The marks "Rex" and "Rex-Q-

Tone" bear such a resemblance to each other as would be likely to
confuse purchasers if the two marks were concurrently used upon goods
of the same descriptive properties. Bw parte Allgoever, 2d3.

17. Same— *• Velvet ** and " Velvitina."— The marks "Velvet" and "Vel-

vetina " Held to be so similar that their use upon goods of the same de-
scriptive properties would be likely to cause confusion in the mind of
the public and deceive purchasers. Ex parte Goodrich Drug Co,, 303.

18. Same. — ^A mark consisting of the representation of a horse grazing Held

pr<H>erly refused registration in view of a registered mark consisting of
the word "Pony" and the representation of the head of a pony or
horse applied to goods of the same descriptive properties. Ex parte
The Utrecht Export Cy. Qriendt Brothers, Ltd., 304.

19. Same— "E Ck)." and "E. J. Co."— A mark consisting of the letters

" E O).," the last two letters being placed between the extended upi)er
and lower arms of the first, Held so slmUar to a mark consisting of
the letters " E. J. Co." that their simultaneous use upon goods of the
same descriptive properties would be lik^y to cause confusion. Bx
parte Elliott Jewelry Co., 317.

20. Same — Featubes to be Considered. — In considering the question of simi-

larity of trade-marks three features must be considered — ^flrst, the ap-
pearance of the words; second, the sound of the words whoi spoken,
and, third, the significance or meaning of those words. Holt d Co. v.
Kansas Milling d Export Co., 388.

21. Same.— The owner of a mark consisting of a monogram made up

of the letters "U" and "T" filed an opposition to the registration of
a mark consisting of a monogram made up of the letters " T," " U,"
and " S " and the abbreviation " Co.," the configuration of the letters
TT" and "T" in the latter mark closely resembling that of these
letters in the mark of the opposer. Held that the applicant's mark is
not suflSciently different from that of the opposer to justify sustaining
a demurrer to the notice of opposition on the ground of the non-simi-
larity of the marks. Underwood Typewriter Company v. The Uni-
versal Btenotype Co., 385.

SPECinC CLAIMS. See Prosecution of Applications, 1, 80.

SPECIFICATIONS. See Abandonment of AppHcmtions, 14; Applications, 8;
Claims, 2; Drawings, 3; Interference, 20, 30; Priority of Invention, 51;
Prosecution of Applications, 14 ; Registration, 7 ; Reissue Applications,
8, 10; Right to Make Claims, 2.
Laudatobt Statements.— Purely laudatory statements have no place in
the specification of an application for patent B» parte Oreig, 224.

STATE OF THE ART. See Construction of Claims, 1, 4, 6, 7, 8, 10, 11, 12, 13,
16, 16, 17, 18, 21, 22; Designs, 1, 2; Motion to Amend Applications;
Motion to Dissolve Interference, 17, 26; PatentaHUty, 1^ 2, S, 4; Re-
issue AppHcaUons, 6; Right to Make Claims, 8.

STATE STATUTES. See PatenU, 8.

STIPULATION. See Infringement, 1.

SUBSTITUTION OF APPLICATION. See Interference, 88» Sa

SUBSTITUTION OF llATBRIAL. See Invention, 8.

SUBSEQUENT PATENTS. See Anticipation, 1.

SUITS FOR INFBINGBifENT. See Infringement, a



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718 DIGESI? OS* DBCISI0K8.

SUITS FOR VIOLATION OF LIGENSB. See Jurisdiction of the Federal

Courts, 1.
SUITS UPON CONTRACTS. See InfHngemerU, 1; Jurisdiction of Federal

Courts,

1. Suit to Compel Assignment — Jubisdiotion of State Oottst.— A salt to

compel assignment of a patent because the patent is an improvement
on an earlier one and included in a covenant to convey all snch im-
provements is based on general principles of equity and is within the
Jurisdiction of the State court {**)TJie 2few Marshall Engine Com-
pany and Marshall v. The MarsJiaU Engine Company, hy Van Blarcom,
its receiver, 617.

2. Same— Same. — Where the injunction granted against sale of articles

manufactured under a patent is only an incident to a decree for spe-
cific performance of a contract to convey the patent as an improvonent
of an earlier one, the relief is appropriate and is within the Jurisdic-
tion of the State courts. (♦♦) Id,

SUNDAYS. See Prosecution of Applications, 2.

SUN'DAYS AND HOLIDAYS. See Motion to Dissolve Interference, 2.

SUPERVISORY AUTHORITY OF THE COMMISSIONER OF PATENTS. See
Interference, 14, 25 ; Motion to Dissolve Interference, 4 ; Rehearing,

SURREBUTTAL TESTIMONY. See Reduction to Practice, 8.

SUSPENSION OF INTERFERENCE. See Interference, 8, 9; PubUo-Vae Pro-
ceedings, 1.

TECHNICAL T^DE-»L^.RKS. See DescHptive Marks, 10; Geographical
Terms, 1, 8.

TEN- YEARS CLAUSE. See Descriptive Marks, 6; €feographic(a Terms, 2;
Registration, 10 ; Trade-Marks, 1,
Opposition — "Ten-Yeab" Clause — Use Not Exclusive. — ^The evidence In-
troduced in an opposition to the registration under the ten-year clause
of the Trade-Mark Act of the word "Howard" as a trade-mark for
flour Held sufficient to establish that the applicant had not had exclu-
sive use of such mark during the ten-year period. (*)(7. A, GambriU
Manufacturing Company v. Waggoner-Gates Milling Company, 543.

TERMINOLOGY. See Abandonment of Applications, 1 ; Classes of Chads, 12 ;
Construction of Claims, 2, 19, 20 ; Infringement, 2 ; Prosecution of Ap-
plications, 18 ; Reduction to Practice, 3.

TESTIMONY. See Abandonment of Trade-Marks, 4; Amendment to Prelimi-
nary Statement, 4; Interference, 1, 5, 8, 9, 21, 23, 24, 81, 82, 83; Motion
to Amend Preliminary Statement; Priority of Invention, 3, 52, 54;
Public-Use Proceedings, 2; Reduction to Practice, 8, 9, 11.

1. Objection to Form of Questions — Dibbegarded Where Priobitt is Satis-

factorily Established. — Where S. objected to certain questions on the
ground that they were leading and to the instructions to other witnesses
by counsel for E. not to answer certain questions asked on crossrezami-
nation, but these objections were not urged before the Examiner of
Interferences or the Examiners-in-Chief, Held that as R had satis-
factorily established priority of invention by a preponderance of evi-
dence these objections would not be considered, and, further, that a
failure to insist upon these objections before the lower tribunals might
well be considered a waiver thereof. (♦) Sanders v. Emerson, 437.

2. I.£adino Question. — Certain questions considered and Held not leading.

(♦) Midgley v. Ward, 442.
8. Joint Inventorship. — Where W., who was under order to show cause why
Judgment should not be r^idered against him on the record, obtained
permission to take testimony to show that the senior parties oovld



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DIGEST OP DECISIONS. 719

not make the claims and in addition to this testimony Introduced testi-
mony for the purpose of showing that the senior parties were not Joint
Invoitors, Held that the latter testimony was properly excluded. " The
additional evidence sought to be Introduced was not pertinent to this
the sole Issue In the case. The case of Lemp v. Randall (C. D., 1900,
456; 146 O. G., 256; 33 App. D. C, 430-432) relied on by the appellant.
Is not in point All that was decided in that case was that on an Issue
requiring proof of conception of the Invention, evidence was admissible
to show that one only of the joint applicants was the actual Inventor."
(♦) Weintraub v. Hewitt and Rogers, 466.

4. Right to Make Claims. — ^The showing made in support of a motion by
the Junior party to be allowed to take testimony with referaice to the
right of the senior party to mal^e the claims, Held sufficient to Justify
granting the same. Nohle v. Levin, 198.

6. Foreign CJountry — ^Matebiality. — When a witness stated that prior to
his disclosure of the Invention In this country he had inspected In a
foreign country a machine alleged to embody the Invention In issue,
Held that testimony to corroborate this statement is not material to
the question of priority. Winn v. Thuillier v. Frishee and Baker, 210.

6. Motion fob Leave to Take. — A motion to take testimony in a foreign

country Held properly denied on the ground that it was not shown that
the testimony could not be taken in this country at all or that it would
work less hardship upon the opposing party to take it abroad than
upon the moving party to take it in this country and also on the
ground that the testimony was not material. Id,

7. Opposition — Motion to Suppress. — It is well settled tha^ no appeal lies

froAk the decision of the Examiner of Interferences denying a motion to
suppress testimony or postponing a consideration of such a motion to
final hearing. Reed d Carnrick v. Waterhury Chemical Company, 281.

8. Same — Same— Refusal to Answer Questions. — Where a witness re-

fusee to answer questions and no application is made to the district
court for an order compelling him to answer them, a decision on the
question of suppressing the testimony will be* postponed to final
hearing. Id.

9. Interference. — Where the witnesses testified to facts concerning the adop-

tion of a trade-mark which are peculiarly within their knowledge and
such testimony was not impeached, Held that it is sufficient to estab-
lish the use of the mark notwithstanding that it Is not supported by the
records of any sale or corroborated by the testimony of any customers
to whom sales were made. The Voegeli Brothers Drug Company v.
Know, 391.

TESTS. See Goods of the Same Descriptive Properties, 2; Interference, 24;
Pi-iority of Invention, 40 ; Reduction to Practive, 9, 13.

TITLE TO PATENT. See Bankruptcy, 1.

TRADE-MARKS. See Abandonment of Trade-Marks; Anticipation, 2, 3, 4, 5, 6 ;
Assignment of Trade-Marks; Cancelation of Trade- Mark Registration;
Classes of Goods; Descriptive Marks; Foreign Applicants; Geographical
Terms; Goods of Same Descriptive Properties; Interference, 29; Mo-
tion to Dissolve Interference, 6 ; Opposition to Registration; Priority of
Adoption and Use; Registration; Similarity of Marks; Testimony,
7.8.9.
1. Appuoation— Declaration — Exclubivs Use. — ^A statement that a mark
has be^i in exclusive use for ten years next preceding the passage of
the Trade-Mark Act of February 20, 1905, Held not sufficient to bring



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720 DIGEST OF DECI8I0KS.

the case under the proTlsions of that act as amended February 18, 1911,
since the original act went into effect April 1, 1906, and the term
** passage of the act" refers to tliat date, {ex parte Joseph P. Funke
Company, G. D., 1906, 413; 124 O. O.. 2902,) whereas the amendment
specifies that the use must have been exclusive for "ten years next
preceding February 20, 1905." Ex parte Soci^t^ J^nonyme Det Usines
Remy, 8.
2. Samb — Act of 1905 Ck)NSTBUED. — Where it was contended that the regis-
trant, who is a citizen of France, is not entitled to the benefit of the
registration of October, 1905, because his application was not filed in
this country within four months after his French registration. Held
that "the act does not malce it compulsory for a foreign applicant to
file his application in this country within four months after the appli-
cation in the country in which he is located, but merely states that
unless so filed it will not be entitled to the t>enefit of the date of the
foreign application." {*)Deitsch Brothers v. Loonen, 631.
8. Use of on a Few Samples — Insufficient to Establish Right. — Where
it appeared that the only use made by an applicant for the registration
of a mark for a liquid binding agent for roads, etc, had been upon a
small number of gallon cans of the solution which were shipped as
samples. Held that this use is not such that any trade-mark right can
be based thereupon. Pateraon v. Hay, 320.

TRANSFER OF BUSINESS. See Assignment of Trade-Marks, 2.

TRANSMISSION OF MOTIONS. See Interference, 26, 28; Motion to Amend
Applications; Motion to Dissolve Interference, 5, 6, 7, 9, 10, 11, 13, 15,
16, 17, 18, 19, 20, 21, 22, 23, 24, 26.

TRIBUNALS OF THE PATENT OFFICE. See Interference, 8, l8; PriorUy of
Invention, 20; Testimony, 1.

TRUSTEES. See Bankruptcy,

TWO APPLICATIONS, SAME INVENTOR. See Interference, 1, 18.

USB AND SALE OF PATENTED ARTICLES. See Monopoly; Patent Rights,

USB OF PATENTED ARTICLES BY THE GOVERNMENT. See Construction
of Statutes; Jurisdiction of the Court of Claims.
Patents — ^Act of June 25, 1910 — Eminent Domain — Injunction Against
Use of Patented Device. — ^A decree of the Court of Appeals of the
District of Columbia granting a writ enjoining the Chief of the Ord-
nance of the United States Army from making, using, or causing to be
used any guns or gun-carriages containing certain patented devices re-
versed in view of the act of June 25, 1910. (♦♦) Crozier v. Fried, Krupp
Akti^geseUschaft, 638.

UTILITY. See Invention, 4.

VALIDITY OF ASSIGNMENT. See Assignments, 2.

VALID PATENTS. See Particular Patents.

VALID REGISTRATION OF TRADE-MARKS. See Cancelation of Trade-
Mark Registration, 2.

VALID TRADE-MARK. See Descriptive Marks, 14.

WAIVER. See Testimony, 1.

WITHDRAWAL OF ALLOWED CASES FROM ISSUE. See Prosecution of
Applications, 41.

WITNESSBS. See Interference, 81; Priority of Invention, 8; Reduction to
Practice, 9 ; Testimony, 1, 6, 8, 9.

WRIT OF BRBO&. See Mandamus.



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N9 662571

U.S. Patent Office.

Decisions of the
Coonissioner of Patents.



T223

114

1912



LIBRARY

UNIVERSITY OP CALIFORNIA

DAVIS




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