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Lotterhand's renewal motion to dissolve, which was refused transmission, sets forth four grounds, (numbered I, II, III, and III",) all of which were found informal by the Examiner of Interferences.
The first ground alleges that there was informality in the declaration because the claims are for incomplete combinations when read on Cornwall's disclosure and because the claims when read in the light of the two specifications and drawings are vague and Indefinite.
The question of the incompleteness of the claims in Cornwall's application is one of merits. As pointed out by the Examiner of Interferences, this question cannot be raised under the allegation of “ informality in the declaration." On the question of indefiniteness several expressions are pointed out which are claimed to be indefinite “ in view of Cornwall's drawings and specification." The expressions indicated, however, are obviously not vague in themselves. It seems likely, from the qualifying expressions, “ in the light of the two specifications” and “ in view of Cornwall's drawings and specification,” used by Lotterhand, that he thinks the elements mentioned in these expressions are not well identified in the disclosure of one or, perhaps, both cases. It is very clear that this ground of the motion is vague and indefinite. It was properly refused transmission.
The second ground of the motion is that the claims are unpatentable to Cornwall because
lacking in invention considered separately and in the light of the prior art as evidenced by patents cited against the respective applications of the parties and other patents known to the Examiner and the parties hereto.
This ground is so obviously indefinite as to need no comment. It is well settled that where patents are relied upon they must be named specifically and applied. (Brown v. Inwood and Lavenberg, C. D., 1907, 249; 130 0. G., 978; Phillips v. Scott, C. D., 1907, 270; 130 0. G., 1312.)
The third ground alleges that Cornwall has no right to make the claims because his device is inoperative. Eleven elements are pointed out by reference-numerals, which it is stated are “so constructed, mounted, and arranged " that it is impossible to perform any function with them. This amounts merely to a restatement that the specified parts are inoperative. The defects due to which the device is inoperative, if they exist, are matters which could and should have been clearly pointed out. This ground is therefore indefinite.
Ground IIIis hardly intelligible. It seems to be a restatement of ground III, inasmuch as it relates to inoperativeness. In any event it is clearly too indefinite to be transmitted.
The decision of the Examiner of Interferences is affirmed.
THE WARREN PAINT Co. v. REEVE & Co. v. DAVIDSON & KNOWLES Co.
Decided November 10, 1909.
148 O. G., 1845.
TRADE-MARK8—" WOOD-FILLERS “ WHITE LEAD"-GOODS OF THE SAME
DESCRIPTIVE PROPERTIES. Wood-Allers and white lead are goods of the same descriptive properties within the meaning of the Trade Mark Act of February 20, 1906. ON APPEAL.
TRADE-MARK FOR WHITE LEAD,
Messrs. Bates, Fouts & Aull for The Warren Paint Co.
TENNANT, Assistant Commissioner:
This is an appeal from the decision of the Examiner of TradeMarks refusing to dissolve this interference.
The trade-marks in controversy comprise in common the words “ White Seal," and this interference is declared between the application of The Warren Paint Co. for the registration of this mark for white lead, registration No. 29,324 by Reeve & Co. of the same mark for “wood-fillers," and the registration of Davidson & Knowles Co. for white-lead paint. The motion for dissolution was brought by Reeve & Co. and is based on the ground that “wood-fillers” are goods of different descriptive properties from white lead or white-lead paint, and it is asserted that in view of the fact that Reeve & Co. specifically disclaimed the use of this trade-mark in connection with paints the Patent Office is estopped from declaring an interference between this registration and the registration of Davidson & Knowles Co. and the application of The Warren Paint Co.
In this proceeding the only question to be determined is the right of registration of the applicant, The Warren Paint Co. No question is raised as to the interference between the registration of Davidson & Knowles Co. and the application of The Warren Paint Co. The only question before me is whether the mark of Reeve & Co. used on fillers is used upon merchandise of the same descriptive properties as white lead claimed by the applicant, The Warren Paint Co. Fillers are composed of several ingredients, among which white lead is in many instances not the least, as will be seen upon reference to the following patents: Tully, February 8, 1870, No. 99,610; Miller, May 13, 1873, No. 138,914; Sharp, August 5, 1873, No. 141,518; Wilber, January 27, 1885, No. 311,401; Klie, September 1, 1885, No. 324,415; Phillips, November 8, 1898, No. 614,024.
In view of this fact I am of the opinion that the merchandise of Reeve & Co. and of the applicant necessarily have the same general characteristics within the ruling of the Court of Appeals of the District of Columbia in the case of Phoenix Paint & Varnish Co. v. John T. Lewis & Bros. Co., (post, 303; 139 O. G., 990; 32 App. D. C., 285,) in which the Court said:
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.
It is therefore held that the decision of the Examiner of TradeMarks refusing to dissolve this interference was right. It is aocordingly affimed.
CALIFORNIA CANNERIES COMPANY w. KOTHE, WELLS AND BAUER
Decided November 13, 1909.
148 0. G., 1345.
TRADE-MARKS-OPPOSITION—JURISDICTION OF THE EXAMINER OF INTERFERENCES.
The jurisdiction of deciding all questions raised on opposition proceedings, including that of the similarity of the marks of the applicant and the
opposer, is vested in the Examiner of Interferences. ON PETITION.
TRADE-MARK FOR FLAVORING EXTRACTS USED AS FOODS AND INGREDIENTS OF FOODS.
Messrs. Mason, Fenwick & Lawrence for California Canneries Company.
Mr. Elwin M. Hulse and Messrs. Steuart & Steuart for Kothe, Wells & Bauer Company.
TENNANT, Assistant Commissioner:
This is a petition by Kothe, Wells and Bauer Company that this opposition be referred to the Examiner of Trade-Marks for the purpose of determining whether or not there is an interference in fact between the trade-marks claimed by the respective parties. It is asserted that in view of certain demurrers which were sustained in part against the notice of opposition as originally filed the only grounds of opposition which now remain to be determined are whether the marks are so nearly identical as to cause confusion in trade and whether the opposer was the first to adopt and use a mark of that character, and it is urged that the former should be decided by the Examiner of Trade Marks.
It is noted that during the progress of this proceeding three demurrers have been filed by the applicant and that following the decision of the Examiner overruling the last demurrer in part the applicant filed an answer to the notice of opposition, and the replication of the opposer has also been filed. It is therefore obvious that the applicant has exhausted its rights under the present practice of the Office. This petition must be treated, therefore, as a request for the exercise of the supervisory authority of the Commissioner.
It is urged that when the identity of trade-marks in an opposition proceeding is raised by demurrer the question should be determined in the first instance by the Examiner of Trade-Marks in analogy to interference practice. This contention is believed to be without force. The statute provides for an opposition proceeding as an independent remedy from interference. Interference proceedings are declared by the Office to enable the parties to present testimony upon which the Office may base an adjudication as to the title of the marks, and as stated in the Robert Smith Ale Brewing Company v. Beadleston & Woerz, (C. D., 1905, 468; 119 O. G., 341:)
A motion for dissolution of an interference before the taking of testimony, is in effect, a request for reconsideration of the action declaring the interference. Since the Examiner of Trade-Marks declared the interference, he is the one who should give reconsideration in the light of argument by both parties.
Opposition proceedings are, however, instituted not by the Office, but by the opposer himself, and it is believed that the jurisdiction of deciding all questions raised on opposition proceedings is by the statute vested in the Examiner of Interferences as the tribunal of original jurisdiction.
The Court of Appeals of the District of Columbia has recognized his authority to decide questions of the character presented in the present case. (Battle Creek Sanitarium Company, Limited, v. Fuller, C. D., 1908, 370; 134 O. G., 1299; 30 App. D. C., 411; The Hall's Safe Company v. Herring-Hall-Marvin Safe Company, C. D., 1908, 473; 135 O. G., 1804; 31 App. D. C., 498.)
In view of the facts above stated I find no reason for exercising the supervisory authority of the Commissioner in this matter.
The petition is accordingly denied.
IN RE Ives.
Decided November 22, 1909.
149 O. G., 309.
ASSIGNEE OF APPLICATION-BANKBUPT_TITLE OF TRUSTEE.
Where an application for patent is assigned and prior to the issuance of a patent thereon the assignee is declared a bankrupt, Held that the trustee in bankruptcy acquires no title to such application.
Mr. F. H. Stevens for the petitioner.
This is a petition by Howard R. Ives for access to certain applicatións filed by John S. Cantelo.
It appears that these applications were assigned by Cantelo to the Cantelo Manufacturing Company, such assignments being of the entire interest, with request that the patents issue to the assignee. According to the certificate of the clerk of the District Court of the United States for the District of Maine, which accompanies the petition, the Cantelo Manufacturing Company was declared a bankrupt and Howard R. Ives was appointed its trustee.
In the decision in re McDonnell (101 Fed. Rep., 239) it was held that where an inventor who had filed an application for patent was adjudged a bankrupt before the issuance of a patent on such application the interest of the bankrupt in such patent did not pass to the trustee in bankruptcy. This decision was based on the ground that the term “ patents and patent rights" as used in section 70 of the Bankruptcy Act did not include pending applications for patents.
In the case of in re Dann (129 Fed. Rep., 495) the question certified to the court was:
Can a bankrupt be compelled to assign to the receiver or to the trustee all his rights, title and interest in, to and under applications pending in the Patent Office for Letters Patent upon alleged inventions?
The court held that this question must be answered in the negative, citing with approval the decision in re McDonnell, supra, and also holding that such pending application could not be reached under the terms of section 70a (5) of the Bankruptcy Act asproperty which prior to the filing of the petition he could by any means have transferred or which might have been levied upon or sold under Judicial process against him.
In the former case the bankrupt was the applicant for patent; but it is not stated in the second case whether he was the applicant or an assignee, and neither the question certified nor the decision is limited to the case of an applicant for patent, nor is any reason seen for mak