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TRADE-MARK FOB CIGAB8.
Messrs. Mason, Fenwick & Lawrence for the applicant. MOORE, Commissioner:
This is an appeal from the refusal of the Examiner of TradeMarks to register the portrait and fac-simile-signature of Grover Cleveland as a trade-mark for cigars.
The ground of the refusal is that it would be against public policy to register the name and portrait of an ex-President of the United States as a trade-mark.
The Trade-Mark Act of 1905 prohibits the registration of the portrait of a living individual as a trade-mark except with his consent. This prohibition was not contained in the act of 1881; but in a case which arose under that act involving the name of the President it was held that it was against public policy for the Patent Office to lend its sanction to the use of the President's name without his express consent. (Ex parte The R. I. Sherman Manufacturing Company, C. D., 1902, 475; 101 O. G., 3105.)
To use the names of ex-Presidents of the United States as trademarks tends to detract from the dignity of the high office which they have held, and for that reason it is believed that it is against public policy for the Patent Office to encourage such use of their names by allowing them to be registerd as trade-marks.
It is true that the act of 1905 does not expressly prohibit the registration of such names; but it is thought that the Office is clearly justified in refusing their registration on the ground of public policy, as it was in refusing the registration under the act of 1881 of the name of the President in the case above cited.
The decision of the Examiner of Trade-Marks is affirmed.
EX PARTE C. S. Sisson COMPANY.
Decided December 26, 1908.
138 0. G., 528.
TBADE-MABK8- “ WEAREASE FOR SHOES-DESCRIPTIVE.
The word “Wearease" as a trade-mark for shoes Held to be descriptive, and therefore not registrable. ON APPEAL.
TRADE-MARK FOB MEN'S AND WOMEN'S LEATHER SHOES.
Messrs. Swain, Carpenter & Nay and Mr. James Hamilton for the Applicant.
BILLINGS, Assistant Commissioner:
This is an appeal from the action of the Examiner refusing to register the word “Wearease” as a trade-mark for shoes upon the
“ ground that the same is descriptive of the character or quality of the goods.
It is urged in behalf of the appellant that the mark is merely suggestive and does not in any way indicate the character of the shoes or the use to which they are to be put, the applicant citing in support of this argument the fact that the words “Waukeasy” and “Waukwell ” have been registered as trade-marks for corn-cures and for shoes in accordance with decisions in ex parte Peek (C. D., 1901, 65; 96 0. G., 425) and ex parte Parker, Holmes & Co., (C. D., 1902, 284; 100 O. G., 1111,) respectively. I am of the opinion that the reasoning set forth in these decisions should not be applied to the present case.
The conclusion of the Examiner that the word “ Wearease," which is comprised of the words “wear” and “ease,” clearly conveys the idea that goods upon which the mark is used will “ wear with ease or “ be easy to wear," and that therefore the word is descriptive of the merchandise, is believed to be well founded. This mark is obviously more than merely suggestive and falls within the purview of the character of the marks discussed by the Court of Appeals of the District of Columbia in re American Circular Loom Company, (C. D., 1907, 481; 127 O. G., 393; 28 App. D. C., 450,) in which the Court said, in part:
It is further contended that "the words 'Circular Loom' have never been used by the trade in a strictly descriptive sense, but have always been used in an arbitrary manner, and at the most are merely suggestive of one of the several parts of the appellant's conduit."
It would seem that what is “ suggestive" of an ingredient or characteristic of an article of manufacture is also descriptive of the same.
The following principles stated in the decision in ex parte Evans & Shepard (C. D., 1901, 64; 96 0. G., 425) in respect to the registration of the word " Pain-Ease" for a medical compound are applicable to the present case :
The mark would undoubtedly convey the impression to purchasers that a person suffering pain would be relieved by the use of the medicine, and there. fore, although it is not descriptive of the composition of the medicine, it is descriptive of a valuable quality or characteristic of it. It was apparently adopted for advertising purposes and not as a mere indication of origin or ownership, and it would be so understood by purchasers generally. Any manufacturer has the right to say that his medicine eases pain, and a mere reversal of the usual order in which the words are written does not give them such an arbitrary character as to make them registrable as a trade-mark.
For the reasons above stated it is clear that marks which are inherently descriptive and whose value depends mainly upon the advertising character of the mark and not upon the arbitrary designation of origin or ownership should not be registered.
The decision of the Examiner is affirmed.
Ex PARTE SIRL.
Decided December 30, 1908.
138 0. G., 529.
1. INTERFERENCE-ACCESS TO APPLICATION.
After an interference is finally decided the parties thereto are not entitled
to further inspect each other's application. 2. SAME-SAME-OBTAINING COPY OF DRAWING.
The fact that claims have been rejected as not patentable over the issue of the interference which has been finally decided does not entitle an appli. cant to obtain a copy of the drawing of his opponent in the interference.
Mr. Obed C. Billman for the applicant. BILLINGS, Assistant Commissioner:
This is a petition that applicant be furnished with a photographic copy of the drawings of the application of Henry L. Davidson.
The ground upon which this petition is based is that the application of Sirl was at one time in interference with the application of Davidson referred to, that this interference was decided adversely to Sirl, that thereafter the power of the attorney then representing Sirl was revoked and a power given to the present attorney, that subsequently certain claims of the Sirl application were rejected on the ground that they are not patentable over the issue of the interference taken in connection with certain patents, and that a copy of the Davidson drawing is necessary in order to intelligently amend the application.
It is well settled that after an interference is finally decided the parties thereto are not entitled to further inspect each other's application, (Herr v. Herr, Groves, and Foreman v. Dodds, C. D., 1907, 20; 126 O. G., 758,) and no special circumstances are present in this case which would warrant a departure from that rule.
The claims were rejected as being not patentable over the issue of the interference that is, over applicant's claims which were in the interference, as interpreted in view of his own specification and drawing—and it is not seen that a copy of the Davidson drawing is necessary in order for him to decide what action should be taken on the claims in response to this rejection.
The petition is denied.
EX PARTE CURTIS.
Decided December 19, 1908.
138 0. G., 767.
1. ABANDONED APPLICATION-INSUFFICIENT ACTION.
Where an applicant was notified that certain interferences had been decided in his favor and that the case awaited action in response to previous Office actions, the filing of an amendment containing the claims of a patent and requesting an interference therewith is not such action as the condition of the case required and did not operate to stay the running of
the year from the date of the previous Office action. 2. SAME-EXCUSE FOR DELAY.
Delay in prosecuting a case occasioned by the fact that the attorney's fle of the application was placed in the file of an interference involving a divi. sional application which was kept in a part of the attorney's office other than that where his application files were kept, so that his attention was not called to it by his clerk until after the expiration of the year, Held una voidable.
Messrs. Dyer & Dyer for the applicant. MOORE, Commissioner:
This is a petition from the action of the Examiner holding the above-entitled application to have been abandoned by failure to take proper action within one year from the Office letter of June 8, 1907, and asks that the Examiner be instructed to enter the amendment of July 9, 1908, or that the case be held to be not abandoned in view of the showing made that the delay was unavoidable and that the amendments of July 9 and October 26, 1908, be entered.
The part of the record of this application which is pertinent to this petition is as follows: On June 6, 1903, certain claims were rejected. On November 10, 1903, the case having meantime been amended, two claims were rejected and all the claims except one were objected to. On December 3, 1903, the objections were withdrawn and the rejections of June 6, 1903, and November 10, 1903, were repeated. The case ther became involved in three interferences with applications of Hedlund, Cartwright, and Meden, respectively. These interferences were all terminated in applicant's favor, and on June 8, 1907, applicant was informed this fact and was notified that the case awaited action in accordance with the Office letters of November 10, 1903, and December 3, 1903. In the meantime a patent had been issued to Hedlund on the application which had been involved in interference with this application, and on July 10, 1907, an amendment was filed containing five claims copied from this patent and requesting an inter
ference therewith. On July 15, 1907, applicant was notified that such an interference could not be had under the ruling of the Court of Appeals in Blackford v. Wilder, (C. D., 1907, 491; 127 O. G., 1255; 28 App. D. C., 535.) The claims were rejected on the ground of new matter, and attention was called to the Office letter of June 8, 1907. No further action was taken in the case until July 9, 1908, when an amendment was filed canceling all the rejected claims. This amendment the Examiner, on July 27, 1908, refused to enter, holding the case to be abandoned, as the amendment of July 10, 1907, was in no way responsive to and did not operate to stay the year then running from the date of the action of June 8, 1907. This action was repeated and made final on October 8, 1908, and the present petition was then taken.
This action of the Examiner was clearly right. The letter of June 8, 1907, stated that the case awaited action in accordance with the actions of November 10 and December 3, 1903, and the only action responsive thereto would have been an action on the claims rejected in the letters referred to. The filing of claims for the proposed interference with the patent to Hedlund was clearly not such a responsive action and under the second paragraph of Rule 171 did not operate to stay the running of the year from June 8, 1907. It might perhaps have been better practice for the Examiner to have specifically stated in the letter of July 15, 1907, that the year in which applicant could take action ran from June 8, 1907, but such statement was not absolutely necessary.
It appears, however, from the affidavits of the attorney accompanying this petition that the Examiner, after an oral interview, withdrew his objections on the ground of new matter, but held that applicant could not prosecute the invention set forth in the claims filed July 10, 1907, in this application, as he had already prosecuted therein claims to a different species. Thereafter the applicant filed a divisional application on August 1, 1907, which was treated both by the applicant and the Office at that time as a true division of this application and was later put into interference with the Hedlund patent. It further appears that it is the practice of the attorney to keep the cases awaiting action by the Office and those involved in interferences in separate files and in different parts of his office; that it is also his practice several times a year to have his clerk call his attention to such cases as have been acted on by the Office and are awaiting action by the attorney; that in some way the file of the present application was placed in the interference file of the interference involving the later application, and that for that reason his attention was not called to it until the 7th of July, 1908, when an amendment was immediately prepared and filed on July 9, 1908. In