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It is contended that Felsing fails to describe and claim“ hoppers.” While this is true, the construction shown necessarily forms “rear hoppers," and Felsing is not barred from making such claim in his reissue application by his failure to designate his construction by the term “hoppers." This count comes under the decision in in re Briede, supra.

It was held by the Commissioner that the count just considered covers substantially the same invention as count 3 of the former interference. This count reads as follows:

3. In a device of the class described, a frame, a hopper, fan-casings supported in front of said hopper and discharging into the front end of the latter, said fan-casings having upper inverted-V shaped portions and air-intakes in the sides thereof, a shaft journaled upon the sides of the frame and extending through the fan-casings, and fans upon said shaft within the fan-casings.

With the Commissioner, we must agree. The two counts are so nearly identical that the invention covered by count 6 must necessarily have been tried and determined by the prior interference.

Nelson has offered evidence to prove that the concession of priority filed in the former interference was obtained from him by duress, and, for that reason, the judgment rendered thereon is not res ad judicata. It is unnecessary for us to consider this evidence. The question is not properly before us. A judgment obtained by fraud or duress must be attacked in a direct proceeding, and not collaterally,

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

[Court of Appeals of the District of Columbia.]

IN RE THE NEW SOUTH BREWERY AND ICE COMPANY.

Decided March 2, 1909.

142 0. G., 291; 32 App. D. C., 591.

TRADE MARKS-"CRYSTAL"-DESCRIPTIVE.

The word “ Crystal" for beer Held to be descriptive. “As applied to beer the word would import that it is clear, transparent, that is, light, clear beer as distinguished from other beers that are dark or black. That it was intended by the applicant to represent this quality is apparent from the figure on the label, of a woman holding up a glass of the beverage and ex

amining it in the rays of the sun." Mr. E. T. Fenwick for the appellant. Mr. W. S. Ruckman for the Commissioner of Patents.

SHEPARD, C. J.:

This is an appeal from the denial of the registration of a trade-mark. The application when filed was accompanied by a label which had been used on bottles or packages of beer. It contains a female figure holding aloft and inspecting a glass of the beer in the rays of a blazing sun. Above her appears the words“ Crystal Pale” and on a scroll beneath appears the word " Beer” in gilt letters over the name of the applicant. Upon objection raised to “ Crystal Pale,” the appellant amended so as to claim the word “ Crystal ” and filed a drawing showing that word only.

The application having been finally denied by the Examiner, appeal was taken to the Commissioner who affirmed the decision of the Examiner. The denial was on the ground that the word “ Crystal ” is descriptive of the characteristic or quality of the goods upon which it is used. It is shown by reference to the Century Dictionary, and certain others therein quoted, that the word crystal is frequently if not commonly used as clear, transparent, pellucid. The expression “ clear as crystal” is frequently applied to liquids by persons who, probably have no idea of the primary or technical meaning of the word. As applied to beer the word would import that it is clear, transparent, that is, light, clear beer as distinguished from other beers that are dark or black. That it was intended by the applicant to represent this quality is apparent from the figure on the label, of the woman holding up a glass of the beverage and examining it in the rays of the sun.

We think that the Commissioner was right in holding it descriptive within the meaning of the statute. (See in re American Circular Loom Co., C. D., 1907, 452; 126 O. G., 2191; 28 App. D. C., 450; in re National Phonograph Co., C. D., 1907, 550; 128 O. G., 1295; 29 App. D. C., 142; Worcester Brewing Corporation v. Reuter & Company, C. D., 1908, 329; 133 0. G., 1190; 30 App. D. C., 428; Winchester Repeating Arms Co. v. Peters Cartridge Co., C, D., 1908, 401; 134 0. G., 2030; 30 App. D. C., 505; Kentucky Distilleries & W. Co. v. Old Lexington Club, C. D., 1908, 417; 135 0. G., 220; 31 App. D. C., 223.)

The decision must be affirmed. It is so ordered, and that the clerk certify this decision to the Commissioner of Patents as required by law.

[Court of Appeals of the District of Columbia.)

JOHNSON & JOHNSON v. WHELAN.

Decided March 2, 1909.

142 0. G., 569; 33 App. D. C., 4.

TRADE-MARKS—INTERFERENCE-USE OF THE MARK_EVIDENCE.

In an interference proceeding relating to a trade-mark for toilet powder where it clearly appears from the evidence that a large number of cans bearing the trade mark were made and delivered to the junior party (a

corporation) prior to the date which can be accorded to the senior party and from that time on cans were made and delivered to the Junior party bearing the same mark the general testimony of an officer of the corporation that these cans were illed with powder and sold to the drug trade through the regular channels, without specifying any particular persons or irms to whom it was sold, in connection with the testimony of a witness that he saw some of the cans filled with powder, is sufficient to establish priority of use of the mark by the Junior party. The continuous purchase of cans bearing the mark is not sufficient alone to prove actual sales; but It is such a strong circumstance that very little additional proof is necessary.

Mr. W. G. Henderson for the appellant.
Mr. G. A. Prevost for the appellee.

SHEPARD, C. J.:

This is an interference involving the right to use the representation of a red Greek cross as a trade-mark for toilet powder.

The mark was registered by Mary C. Whelan, February 21, 1899, under an application filed August 26, 1898.

Johnson & Johnson, a corporation, filed application for registration October 17, 1905.

Interference having been declared, testimony was taken by Johnson & Johnson, upon whom was cast the burden of proof of earlier adoption and use of the mark. None was taken by Whelan.

The Examiner of Interferences and the Commissioner concurred in holding that Johnson & Johnson's testimony was not sufficient to show prior adoption and use, and priority was awarded to Whelan.

We cannot agree with the Commissioner in regard to the sufficiency of the proof offered by Johnson & Johnson.

There can be no possible doubt that Johnson & Johnson had ordered the construction of 10,000 cans for putting up toilet and baby powder in October, 1894. These were manufactured by Somers Brothers and delivered in December, 1894. These cans bore printed labels showing the character of the goods, the name of the manufacturer, and the red cross mark. Somers Brothers have been making the same cans for Johnson & Johnson continuously since. This testimony was given by Miller, the superintendent of Somers Brothers. Some slight changes have been made in the construction of the cans, and in certain words on the label, but the red cross mark has always been used. The witness also testified to seeing the same cans filled with baby-powder at Johnson & Johnson's factory.

James W. Johnson testified for the appellant. He was interested in the partnership of Johnson & Johnson, which was merged in the corporation before 1890, and was vice-president of the latter. He said that the corporation had been engaged in manufacturing the powder and putting it up in cans manufactured by Somers Brothers,

since the latter part of 1894. The cans produced by Miller are the same. When these were received from Somers Brothers we filled them with antiseptic tollet powder or baby-powder and sold them to the drug trade or any other trade, for that matter, through our regular channels,

That it had been soldgenerally to wholesale and retail drugglsts throughout the United States and foreign countries.

He also produced a price list of the corporation, printed in the latter part of 1895, for the year 1896. On page 22 of the same is displayed a can, bearing the same label and trade-mark, that had been made by Somers Brothers. Previous price-lists did not contain a similar cut or illustration. He said, further, that Johnson & Johnson had continued to sell toilet powder in similar cans since the time when such cans had been manufactured and delivered. Some invoices from Somers Brothers for the cans were produced by Johnson and offered in evidence. A question has been raised on their competency as evidence. We do not consider it necessary to consume time with a discussion of the point. They were excluded on the hearing below. Putting them aside altogether, the fact that the cans were made and delivered by Somers Brothers in 1894, and contained the trade-mark, is established by the direct testimony beyond question. The tribunals below were of the opinion that the testimony of Johnson as to the sale of the powder was too general, and indefinite; and that he ought to have been able to, and should have produced documentary evidence of particular sales to named persons, on specified dates.

To establish a right to a trade-mark it is necessary to show, to the reasonable satisfaction of the tribunal passing on the same, that it has been actually applied to the goods and used in trade. The required particularity and certainty of such proof varies with the circumstances of each particular case. In some, greater particularity and certainty are required than in others. Under the circumstances of this case, the general testimony, we think, was sufficient. It is to be remembered that 10,000 of the cans with this label had been furnished to the applicant in December, 1894, and some of them had been seen by a disinterested witness, filled with the toilet or baby powder. Not only were these then furnished, but they had been continuously made and delivered to the appellant in quantities from that time down to the taking of the testimony. The price list of 1896, issued for the information of the trade, contained an illustration of the can and label. The appellant had no other use for the cans than as packages to contain powder for sale to the trade throughout the country. It is unreasonable to believe that they ordered 10,000 cans in 1894, and continued to order and pay for others without making sales of the article which they were intended to contain, in the meantime. While the continuous purchase of the cans from 1894 to the time of taking the testimony would not be sufficient, alone, to prove actual sales of the goods to the trade, it is so strong a circumstance, that little additional proof is required. General and indefinite as the testimony of the witness is, we think it sufficient under all the circumstances.

We think there was error in refusing registration to the applicants, and that the decision should be reversed. It is so ordered, and that this decision be certified to the Commissioner of Patents, as the law requires.

[Court of Appeals of the District of Columbia.]

IN RE E. C. ATKINS & COMPANY.

Decided April 2, 1907.

142 0. G., 570; 29 App. D. C., 385. TRADE-MARKS_DESCRIPTION OF THE MARK-DISCRETION OF THE COMMISSIONER.

Held that the Commissioner in refusing to allow, under the act of May 4, 1906, in an application for the registration of a trade-mark, a description of the mark acted within his discretion, and in the absence of a gross abuse of that discretion his action will not be disturbed.

Mr. Chester Bradford and Mr. Arthur M. Hood for the appellant.

Mr. Fairfax Bayard for the Commissioner of Patents. ROBB, J.:

Appeal from a decision of the Commissioner of Patents in a trademark case. (C. D., 1907, 67; 126 O. G., 3424.)

The material facts are as follows: Appellant applied for the registration of the trade-mark “AAA” for saws, and in its application set forth thatit has adopted for its use a trade-mark of which the following is a description: The trade-mark consists of a symbol composed of the letters "AAA."

To this description the Examiner made objection and directed the petitioner to amend its petition so that the portion above quoted would read has adopted for its use the trade

mark shown in the accompanying drawings. But for the fact that the petitioner in the hearing before the Commissioner proceeded upon the assumption that the hearing was a final adjudication of the case by the Patent Office, the fact that the Commissioner appears to have acquiesced in that assumption, and the further fact that counsel in the arguments at bar so treated the

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