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by the original specifications. In either case they should be, as they are. rejected.

The Commissioner, after saying that the specification did not state whether the alternating current passes through the bath or not, and reciting the descriptive matter before quoted, said:

If the claims mean that the “fused conductor" is other than the “ substance" to be reduced, then there is no warrant for them in the original disclosure. On the other hand, if they mean the “ fused conductor" is the “ substance" itself, they are not patentable over the prior art.

The appellant complains that in view of the final rejection of his claims on new grounds, as he contends, based on the disclosures of the patents to Carlson and De Laval, he was entitled to the opportunity to withdraw his appeal and amend his claims. Being deprived of this right, he filed a petition for rehearing and attached thereto several affidavits of experts in the art in support of his contention.

This complaint comes rather late, as substantially the same ground was presented in the decision of the Examiner, who, for the reason that it had been raised for the first time in the proceeding, offered the applicant the opportunity then to withdraw his appeal, which he declined to do. These affidavits have no bearing on the point now under consideration. They state the performance of the process, but do not show how it was performed. They shed no light upon the question whether the alternating current was passed through the electrolyte or through some other conductor, but confine themselves to the statement that prior to applicant's performance it was unknown in the art that an alternating and a direct current could be operated simultaneously in the reduction of metals, without interference; that it had been generally believed by experts that it could not be done; and that it was not obvious until practically demonstrated by Black

more.

We are of the opinion that there was no error in the Commissioner's decision upon the point considered. There is, therefore, no occasion to consider the other ground to which these affidavits relate.

The decision will be affirmed. It is so ordered, and that this decision be certified to the Commissioner of Patents as the statute requires

(Court of Appeals of the District of Columbia.] IN RE CENTRAL CONSUMERS COMPANY.

Decided February 2, 1909.

140 O. G., 1211; 32 App. D. C., 523. 1. TRADE-MARKS-REGISTRABILITY-MUST BE ARBITRARY WORDS OR DESIGNS.

It was evidently the intention of Congress in placing these restrictions in the Trade Mark Act to prohibit any one from acquiring a propertyright, protected by law in its exclusive use, in a name possessing any

inherent signification that would, of itself, enhance the sale or value of the article or articles to which it may be applied. In other words, it was intended to limit the selection to mere arbitrary words or designs, the value of which should consist alone in their becoming Axed in the public mind through continued use on the goods of the owner. It was not intended that the mark should lend value to the goods, but that the quality of the goods and the reputation of the owner should ultimately make the mark valuable as a symbol in the connection in which it may be

used." 2. SAME_".NEXTOBEER" FOR MALT BEVERAGE_DESCRIPTIVE.

Held that the word “Nextobeer," used as a trade-mark for a nonintoxicating beverage, is descriptive, and therefore not registrable.

Mr. George H. Hamlin for the appellant.
Mr. Webster S. Ruckman for the Commissioner of Patents.

VAN ORSDEL, J.:

This is an appeal from a decision of the Commissioner of Patents refusing to register, as a trade-mark for a non-intoxicating malt beverage, the word “ Nextobeer." (C. D., 1908, 186; 135 O. G., 1581.) Registration was refused for the reason that the mark is descriptive of the character or quality of the goods upon which it is used.

It is well settled that a device, mark, or symbol which identifies the class, grade, style, or quality of the goods on which it is used is not subject to registration. (Columbia Mill Co. v. Alcorn, C. D., 1893, 672; 65 O. G., 1916.; 150 U. S., 460.) Neither are words that are merely descriptive of the character, qualities, or composition of an article registrable. (Brown Chemical Co. v. Meyer, C. D., 1891, 346; 55 0. G., 287; 139 U. S., 540.) Nor can a generic name descriptive of the qualities, ingredients, or characteristics of an article be registered. (Canal Co. v. Clark, 1 O. G., 279; 13 Wall., 311.)

The beverage on which it is proposed to use the mark here in question is described as a malt product containing two per cent. alcohol. Beer is a malt product containing about four per cent. alcohol. It requires no stretch of the imagination to understand how the public would at once draw the inference it is manifestly intended it should draw from the use of this mark, that the beverage on which it is used is almost the same as beer, or a good substitute for beer, or possesses almost the same ingredients and qualities as beer. Such a mark comes clearly within the prohibition of the statute.

It was evidently the intention of Congress in placing these restrictions in the trade-mark act to prohibit any one from acquiring a property-right, protected by law in its exclusive use, in a name possessing any inherent signification that would, of itself, enhance the sale or value of the article or articles to which it may be applied. In other words, it was intended to limit the selection to mere arbitrary words or designs, the value of which should consist alone in their becoming fixed in the public mind through continued use on the goods of the owner. It was not intended that the mark should lend value to the goods, but that the quality of the goods and the reputation of the owner should ultimately make the mark valuable as a symbol in the connection in which it may be used.

The decision of the Commissioner is affirmed, and the clerk is directed to certify these proceedings as by law required.

[Court of Appeals of the District of Columbia.]

IN RE HERBST.

Decided December 22, 1908.

141 O. G., 287; 32 App. D. C., 269.

TRADE-MARKS-INTERFERENCE-RES ADJUDICATA.

In a trade mark interference the Commissioner held that none of the parties thereto were entitled to registration. No appeal was taken from his decision, but thereafter H. applied to the Examiner of Trade-Marks for allowance of his original application, and from refusal of the Examiner appeals were presented to the Commissioner and the Court of Appeals. Held that if H. was aggrieved by the decision of the Commissioner in the interference his remedy was by way of appeal from that de cision, and when the time within which such an appeal might have been taken expired the decision became final and was res adjudicata.

Mr. L. S. Bacon for the appellant.
Mr. Frederick A. Tennant for the Commissioner of Patents.

ROBB, J.:

This is an appeal by Solomon C. Herbst, one of the parties to a trade-mark interference proceeding, from a decision of the Commissioner of Patents refusing to register the words “Old Judge” as a trade-mark for whisky. (C. D., 1908, 277; 137 O. G., 1939.)

There were three parties to the interference: Herbst, Records & Goldsborough, and the Rothenberg Co., rival claimants for the mark. During the taking of testimony the fact developed that the mark was adopted and used by the firm of Kane, O'Leary & Company prior to the earliest date of adoption established by either of the contending parties. Thereupon the Examiner of Interferences adjudged that none of the parties to the interference was entitled to registration. From this decision an appeal was prosecuted to the Commissioner, who affirmed the decision of the Examiner of Interferences and denied registration to each party. After the Commissioner's decision had become final appellant made application to the Ex

aminer of Trade-Marks that his original application be allowed. The Examiner denied this application on the ground that the decision of the Commissioner in the interference proceeding was final and controlling. An appeal was thereupon taken to the Commissioner, who affirmed the decision of the Examiner. The Commissioner also determined that, independently of the question of res adjudicata, Herbst was not entitled to registration.

Section 7 of the Trade-Mark Act of February 20, 1905, requires the Commissioner to give notice when an opposition has been filed and the grounds therefor. The section also provides for the declaration of an interference in certain cases. The section further provides that in every case of interference the Commissioner shall direct the Examiner in charge of interferences, to determine the question of the right of registration to such mark in such manner and upon such notice to those interested as the Commissioner may by rules prescribe.

The section further provides that the Commissionermay refuse to register both of two interfering marks

unless an appeal is taken as hereinafter provided for, etc.

Section 8 gives every applicant for registration, or for the renewal of registration, whose application is refused, or a party to an interference against whom a decision has been rendered, or a party who has filed a notice of opposition to the registration of a trade-mark, an appeal from the decision of the lower tribunals to the Commissioner in person.

Section 9 provides for appeals to this court.

It affirmatively appears in the present case that the interference proceeding followed the requirements of the statute. The Examiner of Interferences determined that neither party to the interference was entitled to register the mark, and the Commissioner on appeal sustained that decision and denied registration to each party. Appellant's remedy, if he was aggrieved by the decision of the Commissioner, was by way of appeal to this court. When the time, within which an appeal might have been taken from that decision, expired, the decision became final and was res adjudicata, and appellant had no more right to prosecute his original application before the Examiner of Trade-Marks than he would have had to prosecute his application before the Examiner for the second time after an adverse decision by the Commissioner in an ex parte case. (Newcomb Motor Co. v. Moore, C. D., 1908, 332; 188 O. G., 1680; 30 App. D. C., 464.)

The case of Union Distilling Co. v. Schneider (C. D., 1907, 613; 129 O. G., 2503; 29 App. D. C., 1) is not in conflict with our conclusion in the present case. In that case the Commissioner merely dissolved the interference on the suggestion of the Examiner that the mark had been registered to a company not a party to the interference. The Commissioner said:

The appellant's remedy would seem to be not an interference, but a showing in the form of affidavits tending to overcome the presumption that the registrant under the act of 1870 18 still the owner of the mark. If such affidavits are filed, a continuance of the present interference will necessarily follow.

In other words, the Commissioner did not finally determine the question of the right of the appealing party to registration, but gave him the opportunity to present further proof.

In the present case all the facts were before the Commissioner and it was within the scope of his authority finally to determine the question here sought to be reviewed, and he exercised that authority. Appellant did not petition the Commissioner for leave to file additional evidence tending to overcome the evidence of prior use by a stranger to the interference, but proceeded to retry his case before the Examiner on the identical record that had already been finally passed upon by the Commissioner.

The decision of the Commissioner was right, and is affirmed. The clerk of the court will certify this opinion and the proceedings in this court to the Commissioner of Patents, as required by law.

[Court of Appeals of the District of Columbia.)

IN RE HERBST.

Decided March 2, 1909.

141 O. G., 286; 82 App. D. O., 585.

TRADEMARKSINTERFERENCE-PRAOTICE.

“ In a trade-mark interference proceeding the issue, which the Commissioner is called upon to determine, is not merely one of priority as in a patent interference proceeding, but involves any question that might be

raised in an ex parte case." Mr. L. S. Bacon for the appellant. Mr. Frederick A. Tennant for the Commissioner of Patents.

ROBB, J.:

This application for rehearing is based upon the erroneous assumption that the Trade-Mark Act prescribes the same procedure in the Patent Office that the law requires in patent cases. Congress, on the contrary, recognized a distinction between the two classes of cases, and hence enacted a law that would enable the Commissioner of Patents expeditiously to dispose of trade-mark cases. The reason for this distinction is not far to seek. Patent cases involve novel discoveries and frequently intricate questions of law and fact, while in

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