produce confusion in trade which it is the object of the Trade-Mark Act to prevent.

In respect to the identity of the merchandise it is pointed out that the appellant's merchandise is a hydrolithic cement, or what is known as a "waterproof cement," and differs from Portland cement. Appellant states in his brief that:

Waterproof cement is made from a specific kind of Portland cement; there being dozens of Portland cements varying substantially in composition; and the chemical and physical composition are entirely altered. It is then, although already very fine, reground to the finest possible degree,-so fine in fact as to float in air, and so that workers in it must wear breathing-masks.

In appearance it is different from the Portland cement from which it is made, being lighter in color and weight as well as in fineness.

The greatest distinction, however, is in its water-repellant nature. Where Portland or other hydraulic cement takes up water readily, waterproof cement cannot be mixed with water.

Its mixing and application have to be done by skilled workmen and under careful inspection. For ordinary "cementing" purposes it is not substantially better than hydraulic cement and cannot possibly enter into competition with it. On the other hand hydraulic cement cannot be used for the purpose for which waterproof cement is now applied. It is a matter of common knowledge among engineers and builders that hydraulic cement is not waterproof, but on the contrary has an affinity for water not only before but also after it is set.

For these reasons it is urged that the merchandise of applicant is of such different descriptive properties from that upon which the registrant's mark is used as to warrant registration of the mark. This contention is not believed to be well founded. In the case of Walter Baker & Company, Limited v. Harrison, (post, 284; 138 O. G., 770) the Court of Appeals of the District of Columbia said:

Things may be said to possess the same descriptive properties when they can be applied to the same general use.

A mark should be denied, not only when used upon goods of the same descriptive properties as a similar registered mark, but when used on goods belonging to the same general class.

The same Court also said in its decision in Phoenix Paint and Varnish Company v. John T. Lewis & Bros. Company, (post, 303; 139 O. G., 990:)

We think two trade-marks may be said to be appropriated to merchandise of the same descriptive properties in the sense meant by the statute when the general and essential characteristics of the goods are the same. To rule that the goods must be identical would defeat the purpose of the statute and destroy the value of trade-marks. The test is whether there is such a sameness in the distinguishing characteristics of the goods as to be likely to mislead the general public. If there is, only one mark should be registered. Congress evidently intended to prevent the second registration of a mark that would enable an unscrupulous dealer to obtain the benefit of a valuable trade reputation established by conscientious effort and fair dealing to the injury of the public as well as the owner of the mark.

In the present case it is well known that Portland cement and waterproof cement are used in building construction and, as admitted in applicant's brief above quoted, may be used for the same purpose. It is believed that under these circumstances any person having knowledge of the "Pyramid" Portland cement of the registrant would undoubtedly believe that the waterproof cement if bearing the same or a similar trade-mark would be the product of the registrant and that under the decisions above cited the goods are of substantially the same descriptive properties.

In view of the conclusions above reached it must be held that registration of the appellant's mark is prohibited by the provisions of section 5 of the Trade-Mark Act of 1905.

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

EX PARTE LUTZ.

Decided July 28, 1909.

145 O. G., 256.

LABELS AND PRINTS-REGISTRATION-APPLICATIONS FILED PRIOR TO JULY 1, 1909. The Copyright Act of March 4, 1909, construed and Held to permit the registration of all prints and labels the applications for the registration of which were on file and pending in the Patent Office on June 30, 1909, if otherwise registrable.

ON PETITION.

LABEL FOR TOOTH-POWDER,

Mr. I. D. Lutz pro se.

MOORE, Commissioner:

This is a petition for the registration of a certain label, the application for which was filed June 3, 1909. The Examiner of Trade-Marks refused registration in accordance with the notice issued May 11, 1909, which reads as follows:

Notice is hereby given that the act approved March 4, 1909, entitled "An act to amend and consolidate the acts respecting copyrights," will take effect on July 1, 1909, and repeals the act approved June 18, 1874, under section 3 of which labels and prints have been registered in the United States Patent Office. The registration of labels and prints in the United States Patent Office, therefore, will cease with the issue of June 29, 1909. Applications for the registration of labels and prints will not be filed in the Patent Office after June 25, 1909, and any received after that date will be forwarded to the Register of Copyrights, Library of Congress.

Upon a reconsideration of the provisions of the acts relating to copyright protection which were in force prior to July 1, 1909, when the act of March 4, 1909, became effective, it is noted that section 4957 of the Revised Statutes was in part as follows:

The Librarian of Congress shall record the name of such copyright book or other article, forthwith, in a book to be kept for that purpose * * *. And he shall give a copy of the title or description, under the seal of the Librarian of Congress, to the proprietor whenever he shall require it.

Section 4953 is as follows:

Copyrights shall be granted for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter directed.

The amendatory act of June 18, 1874, provides that the Commissioner of Patents shall supervise and control the entry or registry of prints or labels in conformity with the regulations provided by law as to copyright of prints.

except that there shall be paid for recording the title of any print or label not a trade-mark six dollars, which shall cover the expense of furnishing a copy of the record under the seal of the Commissioner of Patents, to the party entering the same.

In view of the fact that the law requires that the name of the copyright book or other article shall be recorded "forthwith" and that the term during which copyright protection is effective commences to run from the time of the recording of the title thereof, and in view of the further fact that the amendatory act of 1874 provides that the Commissioner of Patents shall register prints or labels designed to be used for any other article of manufacture

in conformity with the regulations provided by law as to copyright of prints. it is held that all applications for prints or labels which were on file in the Patent Office and pending therein on the 30th of June, 1909, may be registered, if otherwise registrable, in accordance with the law. The date of the issuance of the copy of the record, under the seal of the Commissioner of Patents, is not the effective date of registration.

The notice published in the Official Gazette regarding the "New Copyright Law" is modified to this extent.

EX PARTE SMART.

Decided July 12, 1909.

145 O. G., 256.

AMENDMENT AFTER DECISION OF THE EXAMINERS-IN-CHIEF-RECOMMENDATION UNDER RULE 139.

A statement in a decision of the Examiners-in-Chief that certain differences exist between applicant's device and the references which do not appear in the appealed claims does not amount to a recommendation under Rule 139 and furnishes no ground for the entry of an amendment contain/ing new claims.

ON PETITION.'

CUTTING-BLADE FOR RAZORS.

Messrs. Dunn & Turk and Messrs. Dunn, Turk & Clarke for the applicant.

BILLINGS, First Assistant Commissioner:

This is a petition that the Examiner be instructed to enter an amendment filed after the termination of an appeal to the Examinersin-Chief and containing, six new claims.

It is contended by applicant that the decision of the Examinersin-Chief is of a nature to warrant such an action because it points out in detail certain distinctions between his device and one or more of the references which fail to appear in the individual claims appealed. Rule 68 provides that

after decision on appeal amendments can only be made as provided in Rule 142 or to carry into effect a recommendation under Rule 139.

Rule 142 provides for the reopening of cases after appealonly for the consideration of matters not already adjudicated upon, sufficient cause being shown.

The new claims submitted cannot be considered to fall under this rule, for they relate to the same subject-matter prosecuted to final rejection and appeal. If a change in the scope or form of the claims could be construed as ground for reopening a case under this rule, it would be impossible ever to reach a final adjudication.

Rule 139, referring to decisions of the Examiners-in-Chief, provides in part:

Should they discover any apparent grounds not involved in the appeal for granting or refusing Letters Patent in the form claimed, or any other form, they will annex to their decision a statement to that effect, with such recommendation as they shall deem proper. ·

The decision of the Examiners-in-Chief is not found to contain any recommendation, either direct or implied, that modified claims should be allowed. It is certain that they did not " annex to their decision a statement to that effect," as provided by the rule. This rule was construed in the case of ex parte Leblanc, (C. D., 1902, 1; 98 O. G., 225,) which held that an indirect reference in the body of the decision to differences between the construction of the device claimed and that of the references did not amount to a recommendation under its provisions.

There is therefore no warrant in the rules for the entry of the amendment. Furthermore, it appears that the applicant received notice from the Examiner early in the prosecution of the case, which was quite the equivalent of the inference he draws from the decision of the Examiners-in-Chief-namely, a direct statement that while he device contained unquestioned features of novelty the claims were duly broad. The plea of surprise is therefore without force. The petition is denied.

COLUMBIA RIVER PACKERS ASSOCIATION v. NAVE-MCCORD MERCANTILE

COMPANY.

Decided July 28, 1909.

145 O. G., 511.

1. TRADE-MARKS—INTERFERENCE-DISCLAIMER OR CONCESSION OF PRIORITY AS TO A PART OF THE ISSUE-PRACTICE.

Where a party to an interference who has failed to invoke the remedy provided by Rule 49 of the Trade-Mark Rules presents a disclaimer or concession of priority as to the part of the issue which, if accepted, would in fact cause a dissolution of the interference without a decision of priority, the Examiner of Interferences should direct the attention of the Commissioner to these facts under the provisions of Rule 48.

2. SAME-SAME-SAME.

Where the Commissioner refers an interference to the Examiner of TradeMarks to consider disclaimers or concession of priority, the latter will hear the case inter partes, and his decision will be binding upon the Examiner of Interferences.

ON REFERENCE.

TRADE-MARK FOR FISH.

Messrs. Britton & Grey for Columbia River Packers Association. Messrs. Whittemore, Hulbert & Whittemore for Nave-McCord Mercantile Company.

MOORE, Commissioner:

This case has been referred to me by the Examiner of Interferences requesting jurisdiction to withdraw the judgment entered in the case on April 6, 1909, and to reset times for taking testimony.

The record shows that the issue of the interference as originally declared constituted the mark "Bumble Bee Brand" for fish. No motion for dissolution of the interference was made within the time permitted for such motions; but after the expiration of this time concessions were filed by the respective parties, the Columbia River Packers Association conceding priority of adoption and use of the mark in issue for canned sardines to the Nave-McCord Mercantile Company and a cross-concession by the Nave-McCord Mercantile. Company conceding priority of adoption and use of the mark in issue for canned salmon to the Columbia River Packers Association. Following the practice announced in Lewis & Brothers' Company v. Phoenix Paint & Varnish Company v. National Lead Company, (C. D., 1906, 133; 121 O. G., 1978) the Examiner of Interferences entered judgment of priority in accordance with the terms of the concessions above referred to, and in due course of time the interference was transmitted to the Examiner of Trade-Marks. The Examiner of Trade-Marks, however, being of the opinion that the