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The laws of foreign countries differ in their requirements as to the manner in which a mark shall be presented for registration, but all foreign countries with which the United States has reciprocal relations permit the registration of certain arbitrary marks which designate the origin or ownership of the merchandise to which they are applied, and it is believed to be sufficient to warrant registration in this country if the application for registration of a technical trademark in this country presents the arbitrary feature of the mark in the identical form in which it is presented in the country in which the applicant is located.

In the decision of the Court of Appeals in the Standard Underground Cable Co. (C. D., 1906, 687; 128 O. G., 656; 27 App. D. C., 320, 324) and Johnson v. Brandau, supra, it was held that Congress did not intend to confer upon the Commissioner of Patents authority to say to an applicant how much or how little of the embellishments appearing in connection with what may be called the essential feature of the trade-mark form an actual part of the trade-mark, but that the applicant had the privilege of designating the features of the mark shown upon his label which he deemed essential and that the Commissioner should thereupon consider the mark as a whole. If a mark so presented is not, in the opinion of the Commissioner, registrable, it is his duty to refuse to register the same, allowing the applicant the privilege of thereafter stating whether the objectionable features are or are not essential to his trade-mark.

In the present case the portion of the matter shown upon the label which is designated by the applicant as his trade-mark appears to be arbitrary and, so far as the record shows, registrable as a technical trade-mark. If the same mark used upon the same label had been presented for registration by a citizen of the United States, it undoubtedly would have been registered.

Inasmuch as the mark presented for registration complies with the requirements of the trade-mark laws applied to marks owned by citizens of the United States and is a replica of the arbitrary feature comprised in the mark registered in the country in which applicant is located, it is believed that registration should not be refused merely because the trade-mark sought to be registered differs from that registered in a foreign country by the omission of matter which in itself is non-registrable in character. The decision in ex parte Pietro, supra, is modified to the extent indicated.

The decision of the Examiner of Trade-Marks is reversed.

BARRATT v. SWINGLEHURST.

Decided June 3, 1909.

144 0. G., 818.

1. INTERFERENCE-DISSOLUTION—Non-PATENTABILITY OF ISSUE-EX PARTE AFFI

DAVITS—TRANSMISSION REFUSED.
A motion to dissolve an interference on the ground that the issue is not

patentable, based upon ex parte affidavits, should be refused transmission. 2. SAME-SAME-DELAY IN BRINGING MOTION-DELAY EXCUSED.

A delay of about six weeks in bringing a motion to dissolve, alleging non-patentability of the issue in view of a foreign patent, excused where the issue related to a knitted fabric and it appeared that the moving party had made a search through the patents in the United States Patent Office, in the classes where he thought the device of the issue should be found, and then communicated with various foreign manufacturers, inquiring about the novelty of the invention in issue, and finally learned by this means of the patent on which the motion was founded, which relates primarily to a knitting-machine capable of producing the fabric of the issue and not to the fabric itself.

APPEAL ON MOTION.

KNITTED FABRIC.

Mr. Charles S. Gooding and Messrs. Meyers, Cushman & Rea for Barratt.

Messrs. Smith & Frazier for Swinglehurst. BILLINGS, Assistant Commissioner:

This is an appeal by Barratt from the decision of the Examiner of Interferences refusing to transmit a motion to dissolve.

Transmission was refused on the grounds that the motion was brought more than six weeks after the expiration of the time fixed for bringing such motions and that no sufficient excuse was offered for this delay. So much of the motion as rests upon affidavits and facts outside the range of the judicial knowledge of the Patent Office was also refused transmission on the ground that a motion for dissolution on the ground of non-patentability, if granted, must be followed by a rejection, and no rejection can be based upon ex parte affidavits.

The motion was properly refused transmission so far as it related to the affidavits. As clearly pointed out in the decisions in ex parte Van Ausdal, (C. D., 1900, 74; 91 0. G., 1617,) and McKenzie v. Gillespie et al., (C. D., 1900, 188; 93 O. G., 2103,) a rejection cannot properly be based on ex parte affidavits, whether these affidavits be for the purpose of showing public use or for amplifying the disclosure set forth in certain patents.

The time within which to bring motions was first set to expire on January 11; but in view of a stipulation by the parties this was extended to expire on February 11. The motion to dissolve was filed March 29, 1909. It appears from the affidavit of the attorney for Barratt that when the claims were first suggested to him he had a search made through the United States patents and through the foreign patents relating to the invention in issue and was unable to find any anticipating patents. He thereupon had a further search made through patents on knitting-machines, and also wrote to various manufacturers in this country and abroad asking whether any fabric such as that disclosed in the issue had been known. It also appears from his affidavit that it was not until the latter part of March that he received a letter from an English manufacturer stating that a machine had been patented to him which was capable of making the fabric of the issue. It is upon this patent that the motion to dissolve is based.

The record discloses the fact that counsel has been diligently engaged in searching the prior art ever since the interference was first suggested to him.

The delay beyond the time allowed for bringing motions was only about six weeks, and in view of the character of the invention and of the fact that the alleged anticipating reference is not a patent for a fabric, but for a knitting-machine, it is believed that the delay has been sufficiently excused and that the motion, in so far as it is based on the patent cited, should have been transmitted.

The decision of the Examiner of Interferences in this respect only is reversed.

JOSEPH v. KENNEDY v. McLAIN.

Decided July 10, 1909.

144 0. G., 1089.

INTERFERENCE-MOTION FOR DISSOLUTION--TRANSMISSION-INDEFINITENESS.

Where a motion for dissolution refers only to "the old form of hickey " as evidence of unpatentability and merely alleges irregularity in the declaration, without showing wherein it consists, Held that the motion is too indefinite, and transmission thereof on these grounds was properly

refused. APPEAL ON MOTION.

HICKEY.

Mr. Theodore H. Joseph pro se.
Mr. Walter H. Pumphrey for Kennedy.

Messrs. Macleod, Calver, Copeland & Dike for McLain.
BILLINGS, First Assistant Commissioner:

This is an appeal by Kennedy from the decision of the Examiner of Interferences refusing to transmit his motion to dissolve in so far as it relates to the non-patentability of counts 1 and 2 and to irregularity in the declaration of the interference.

The only showing in support of the motion is an affidavit filed subsequently to the motion itself, but admitted by the Examiner of Interferences upon reasons duly appearing.

The only reason set forth in that showing for the unpatentability of counts 1 and 2 is that they “ fail to distinguish the new from the old form of hickey." What the old form of hickey referred to is does not appear. No patent, publication, or other evidence is cited to show what old form is depended upon. Granting that there is an 6 old form,” it is quite conceivable and highly probable that there are many variations in the form of hickey heretofore used. It is clear that there is here no such full statement of the grounds relied upon as required by Rule 122. The ground is stated even less definitely than in Brown v. Inwood and Lavenberg, (C. D., 1907, 249; 130 O. G., 978,) where unpatentability was alleged in view of the prior art as cited in the respective applications, yet it was there beld that the motion was too indefinite and transmission properly refused.

It also appears that nothing whatever is presented tending to show such irregularity in the declaration of the interference as would preclude a proper determination of the question of priority. Transmission on this ground was therefore also properly refused. (Vreeland v. Fessenden v. Schloemilch, C. D., 1905, 315; 117 O. G., 2633.)

The decision of the Examiner of Interferences is affirmed.

FX PARTE THE WATERPROOFING COMPANY.

Decided April 9, 1909.

145 O. G., 255.

1. TRADE-MARKS—ANTICIPATION.

A trade-mark comprising a representation of a desert scene in which prominently appear three pyramids Held to have been properly refused registration in view of two prior registrations, the one showing a pyramid and certain descriptive matter and the other the word “Pyramid" applied

to goods of the same descriptive properties. 2. SAME-CLASS OF GOODS.

Hydrolithic or waterproof cement Held to be of the same descriptive properties as Portland cement.

ON APPEAL.

TRADE-MARK FOR WATERPROOF CEMENT.

Messrs. Arthur C. Frasier & Usina for the applicant.

MOORE, Commissioner:

This is an appeal from the decision of the Examiner of TradeMarks refusing to register a trade-mark comprising the representation of a desert scene in which prominently appear three pyramids.

The picture is inclosed in concentric circles between which are the words “ Hydrolithic Cement. Permanent as the Pyramids. Dry as the Desert.”

Registration is refused in view of trade-marks of Knight, Bevan and Sturge, No. 11,787, registered December 16, 1884, and No. 13,782, registered November 2, 1886, for Portland cement. In the first of these registrations the mark is described as beingessentially of the representation of a pyramid as shown in the accompanying facsimile. This has been arranged as shown in the said facsimile in the central field of a circular label and inclosed within two concentric circles; around the sides of and over the trade-mark has been placed a semicircular band upon which is the firm-name “Knight, Bevan & Sturge" and below the trade-mark has been placed a similar band on which is the word “ London." On the left side of the trade-mark below the upper band is the word “Trade" and in a corresponding position on the right of the mark is the word Mark." Below the trade-mark and just above the lower band is the word " Pyramid." On the space between the concentric circles at the left and right respectively almost in a line with the center, is a star-like ornamentation. Between the circles at the top is the word “Portland” and between them at the bottom is the word “Cement." The word * Portland” may however be altered to " Roman," Keenes" or other words commonly used in the cement trade according to the nature of the goods upon which the label is used.

But all the above-mentioned words and features except the representation of a pyramid may be omitted and changed at pleasure without materially altering the character of our trade-mark the essential feature of which as aforesaid is the representation of a pyramid.

The later registration above referred to covers merely the word “Pyramid.” It is contended on behalf of the appellant that the mark sought to be registered does not so nearly resemble either of the registered marks as to cause confusion in the mind of the public and also that the merchandise on which this mark is used by appellant differs from that upon which it is used by the registrant.

In respect to the identity of the marks it is clear that the goods of the applicant, as well as those of the registrant, would be known to the public as the “Pyramid” brand, since this suggestion is carried both by the name and by the picture. Under these circumstances the reasoning of the Court of Appeals in the case in re Indian Portland Cement Company (C. D., 1908, 361; 134 0. G., 518; 30 App. D. C., 463) is applicable to the present case. In that case the Court said:

While a comparison of the two marks as represented shows difference in details, the feature of each is a conventional Indian head, calculated to make the manufactures on which they are used known to the public as Indian-head cement. We agree with the Commissioner that the resemhlanno is such as to

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