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3. SAME-REVIVAL-VERIFIED SHOWING NECESSARY.
In a petition to revive an abandoned application the bare statement of counsel as to the existence of facts which would excuse the delay is insufficient. A verified showing has been uniformly held by the Office as requisite to the revival of an abandoned application, except where the records of the
Office disclose a reason for the delay. 4. POWER OF ATTORNEY-JOINT APPLICANTS-ORDINARILY Both APPLICANTS MUST
JOIN IN POWER, “It seems to be well settled that one of two joint applicants cannot appoint an attorney without the concurrence of the co-applicant, except upon a showing of inability to obtain such concurrence, (citing ex parte Benjamin and Bailey, C. D., 1892, 85; 59 0. G., 298; ex parte Barrett and Alter,
C. D., 1907, 76; 127 O. G., 847.)” 5. SAME_CONCURRENCE OF ALLEGED ASSIGNEE-EVIDENCE OF ASSIGNMENT.
A power of attorney given by one of two joint applicants, with the concurrence of an alleged assignee, cannot be recognized in the absence of evi
dence of the assignment. ON PETITION.
Mr. Samuel E. Darby for the applicants. MOORE, Commissioner:
This is a petition asking that the Primary Examiner be instructed that the application has not become abandoned and to proceed with the examination thereof.
In response to the rejection of the Examiner, dated October 21, 1907, an amendment was presented September 22, 1908, signed by the attorney who presents this petition. It appears from the record that a power of attorney accompanied this amendment signed only by one of the joint applicants, de Forest. This power of attorney was returned on September 26, 1908, by the Chief Clerk of this Bureau with the statement that it was necessary that the other joint applicant, Horton, join in the execution thereof. On November 13, 1908, the Examiner wrote a letter in the case, stating that it appeared that the attorney who signed the amendment of September 22, 1908, had no power to act, that the amendment had not been entered, and that the case was abandoned. On December 11, 1908, the power of attorney previously submitted was returned, together with a power of attorney from the other joint applicant, Horton, and a ratification of the amendment of September 22, 1908.
It seems to be well settled that one of two joint applicants cannot appoint an attorney without the concurrence of the co-applicant except upon a showing of inability to obtain such concurrence. Ex parte Benjamin and Bailey, C. D., 1892, 85; 59 O. G., 298; ex parte Barrett and Alter, C. D., 1907, 76; 127 O. G., 847.) It follows that the attorney had no power to act in this case prior to December 11, 1908, and the action of September 22, 1908, cannot be considered as a proper response to the Examiner's action. While the other joint applicant, Horton, on December 11, 1908, ratified the act of the attorney, this ratification did not have the effect of making the action effective as of the date of September 22, 1908. On applicant's theory that the ratification made the amendment effective as of September 22, 1908, if applicant had waited until October 20, 1909, and then filed the power of attorney signed by Horton, with a ratification of the amendment filed September 22, 1908, that amendment would have become cffective as of the earlier date and constituted a proper response to the Office action of October 21, 1907. Obviously a ratification cannot have * retroactive effect to defeat the express provisions of the statute relating to the time within which a party must prosecute an application to save it from abandonment.
It is noted that the power of attorney given by de Forest, which was filed in the Office on September 22, 1908, and which was returned and refiled on December 11, 1908, contains the concurrence of an alleged assignee; but it does not appear that any assignment affecting this application has ever been recorded in this Office, and hence there is no evidence of an assignment of which this Office can take cognizance.
There is no showing as to why applicant did not file a responsive action prior to October 21, 1908, except the bare statement by counsel that Horton was in Europe at the time he received notice from the Office that the power of attorney given by de Forest alone would not be recognized. A verified showing has uniformly been held requisite to the revival of an abandoned application, except where the records of the Office disclose a reason for the delay. No such showing has been filed herein. Had applicant accompanied the power of attorney executed by Horton, filed December 11, 1908, with a verified showing that this applicant had been abroad and was not previously available, the application would probably have been revived; but no such showing was made at that time, nor has applicant up to the present time accounted for the delay between September 26, 1908, and December 11, 1908, nor is there any showing of unavoidable delay from December 11, 1908, up to the present time.
It is held that the Primary Examiner was right in holding the amendment dated September 22, 1908, insufficient to save the case from abandonment. It is also held that the delay in prosecuting the application has not been shown to have been unavoidable within the meaning of the statute, and the petition is therefore denied without prejudice.
EX PARTE LAKE CHEMICAL COMPANY.
Decided March 29, 1909.
141 O. G., 567.
PRINT—USE OF LEGEND “GUARANTEED UNDER THE FOOD AND DRUGS ACT”–REGIS
For the reasons stated in ex parte Tennessee Brering Company (C. D.,
1908, 227; 136 0. G., 1999) and ex parte Ruppert (ante, 43; 140 0. G., 755) a print containing the words “ Guaranteed under the Food and Drugs Act, June 30, 1906,” was properly refused registration.
Messrs. Mason, Fenwick & Lawrence for the applicant. MOORE, Commissioner:
This is an appeal from the decision of the Examiner refusing to register a print for the reason that it contains the so-called guaranty legend in the form, namely, “ Guaranteed under the Food and Drugs Act, June 30, 1906,” held to be objectionable in my decisions in ex parte Alart and McGuire, (C. D., 1907, 409; 131 O. G., 2145;) ex parte Tennessee Brewing Company, (C. D., 1908, 227; 136 O. G., 1999;) ex parte Ruppert, (ante, 43; 140 O. G., 755;) also for the reason that the clause is not in the form required by Inspection Decision 99 of the Department of Agriculture of all guarantees filed after January 1, 1909.
The action of the Examiner is believed to be correct. In the case of ex parte Tennessee Brewing Company, supra, I stated:
This arrangement of subject-matter is in my opinion likely to cause a purchaser to believe that inasmuch as the label is registered by the Government the character or quality of the goods described as “Guaranteed under the Food and Drugs Act, June 30, '06, Serial No. 19733,” is approved by the Government. It is insisted, however, that the guaranty clause above quoted is in the precise form prescribed by the “Rules and Regulations for the Enforcement of the Food and Drugs Act" and that the use of these words in the present form cannot be objected to. This contention is believed to be untenable. It is easily possible for the guarantor to so place the prescribed legend upon its labels that there can be no likelihood that its use will mislead the public in respect to the actual guaranty.
Since the above decision was rendered section b, Regulation 9, of the “Rules and Regulations for the Enforcement of the Food and Drugs Act,” has been amended to read as follows:
A general guaranty may be filed with the Secretary of Agriculture by the manufacturer or dealer and be given a serial number, which number shall appear on each and every package of goods sold under such guaranty with the words “Guaranteed by (insert name of guarantor) under the Food and Drugs Act, June 30, 1906." (Food Inspection Decision 99, issued by the United States Department of Agriculture December 12, 1908.)
The contention of appellant that while the requirements of this Office concerning the form of the legend noted in the above-mentioned decisions may be proper as to trade marks and labels they are not applicable to prints is not well taken. The statutes and rules concerning the registration of labels and prints by the Commissioner of Patents places labels and prints upon the same footing and furnishes no foundation for appellant's contention.
The decision of the Examiner is affirmed.
Ex PARTE YOUNG, SMITH, FIELD COMPANY.
Decided March 25, 1909.
141 O. G., 865.
1. TRADE-MARKS—“QUAKER MAID' ANTICIPATED BY "QUAKERESS
“QUAKER." A trade-mark for hosiery, etc., consisting of the words "Quaker Maid" and the representation of two keystones, Held anticipated by two prior registrations, one consisting of the word "Quakeress" přinted upon a distinctive background and the other consisting of the word “Quaker "
alone. 2. SAME—ANTICIPATION-DETERMINED BY OFFICE-CONSENT OF REGISTBANT NOT
CONCLUSIVE. Where in the opinion of the Commissioner a mark sought to be registered so nearly resembles a prior registered mark as to be likely to cause confusion in the mind of the public, registration will be refused, notwithstanding the consent of the registrant to the registration of such mark.
TRADE-MARK FOR HOSIERY AND UNDERWEAR
Mr. George R. Hamlin for the applicant. MOORE, Commissioner:
This is an appeal from the decision of the Examiner of TradeMarks refusing to register the words “Quaker Maid” and the representation of two keystones as a trade-mark for hosiery, ladies', misses', and children's net undershirts and drawers. Registration is refused in view of the registered marks of Pilling and Madeley, No. 37,777, registered February 11, 1902, and No. 38,602, registered July 15, 1902. The former of these marks consists of the word “ Quakeress" printed upon a distinctive background. The latter consists of the word “Quaker" alone.
Evidence has been furnished by the applicant to the effect that the registrants have no objection to the registration by the applicant of the trade-mark claimed, and it is contended, in view of this fact, that there is no such likelihood of confusion in the mind of the public as to warrant the denial of registration. While such consent by a registrant is persuasive where the marks are not identical, it cannot be considered as controlling. As was stated in the decision of Wright & Taylor v. Bluthenthal & Bickart v. Mayer, Sons & Company v. Cushman & Company, (C. D., 1905, 540; 119 O. G., 2234:)
In determining the question of identity this Office must exercise its own judgment, and it will not dissolve an interference and register to two or more parties marks which it regards as substantially identical.
This conclusion was reached notwithstanding the apparent willingness of the parties involved in the interference to have the interference dissolved and all of the interfering marks registered. The decisions in Kops Bros. v. Royal Worcester Corset Co. (C. D., 1905, 516; 119 O. G., 1584) and The Windsor Milling and Elevator Com pany v. Brunner (C. D., 1906, 128; 121 O. G., 1676) are to the same effect. The principle stated in these decisions is believed to be well founded and is applicable to the present case.
The word “Quaker” is a predominant feature of the applicant's mark, and therefore, in my opinion, the public would be likely to be misled into believing that the merchandise sold under the mark
Quaker Maid” were goods of the same manufacture as those sold under the trade-mark “ Quaker” or “ Quakeress."
The Supreme Court of the United States said in the case of Saxlehner v. Eisner & Mendelson Company, (C. D., 1900, 362; 93 0. G., 940; 179 U. S., 19, 33 :)
It is not necessary to constitute an infringement that every word of a trade mark should be appropriated. It is sufficient that enough be taken to deceive the public in the purchase of a protected article. It was said by Vice-Chancellor Shadwell, in 1847– " that if a thing contains twenty-five parts and but one is taken, an imitation of that one will be sufficient to contribute to a deception, and the law will hold those responsible who have contributed to the fraud. (Guinness v. Ulmer, 10 Law Times, 127.) ”
While this may be a somewhat exaggerated statement, the reports are full of cases where bills have been sustained for the infringement of one of several words of a trade-mark. (Shrimpton v. Laight, 18 Beav., 164; Clement v. Maddick, 1 Giff., 98; Hostetter v. Vowinkle, 1 Dill., 329; Morse v. Worrell, 9 Am. Law Review, 368; Grillon v. Guenin, Weekly Notes, 1877, 14; American Grocer Pub. Co. v. Grocer Pub. Co., 25 Hun., 398.)
The Court of Appeals of the District of Columbia in re Herbst Importing Company (C. D., 1908, 383; 134 O. G., 1565; 30 App., D. C., 297) held that the words“ Chancellor Club” so nearly resemble the word “ Club” as to be likely to cause confusion in the minds of the public and deceive purchasers. In the Peter Schoen