hofen Brewing Company v. The Maltine Company (C. D., 1908, 386; 134 O. G., 1805; 30 App. D. C., 340) the same court held that the words "Edelweiss Maltine," although associated with a fanciful picture, so nearly resemble the word "Maltine" as to be likely to cause confusion in the mind of the public. For similar reasons it must be held that the mark for which registration is applied so nearly resembles the registered marks as to be prohibited from registration by the provisions of section 5 of the Trade-Mark Act of 1905. The decision of the Examiner is affirmed. DEITSCH BROS. v. LOONEN. Decided April 5, 1909. 141 O. G., 1161. TRADE-MARKS-OPPOSITION-PLEA-APPEAL. There is no right of appeal from the decision of the Examiner of Interferences overruling a plea to a notice of opposition. ON PETITION. TRADE-MARK FOR TOOTH-BRUSHES. Mr. Joseph L. Levy for Deitsch Bros. MOORE, Commissioner: This is a petition by Loonen that an appeal be allowed from the decision of the Examiner of Interferences, dated March 6, 1908, overruling the plea filed in response to Deitsch Brothers' application for cancelation of Loonen's trade-mark involved herein. It is urged that in view of the decision of the Court of Appeals in the case of E. McIlhenny's Son v. New Iberia Extract of Tobasco Pepper Company, Limited (C. D., 1908, 325; 133 O. G., 995; 30 App. D. C., 337) Loonen was entitled to this appeal. While the preamble of the decision of the Court of Appeals referred to states that this is an appeal from a decision of the Commissioner of Patents overruling a general demurrer filed by appellant to a petition filed by appellee for the cancelation of the word "Tabasco," which appellant had registered in the Patent Office as a trade-mark for pepper-sauce the records of this Office show that after the demurrer had been overruled a time was set within which the registrant should file an answer to the application for cancelation. The registrant, however, filed no answer and permitted final judgment by default to be entered against him. Appeal was taken from this final decision, and f course the question involved was based upon the same grounds DECISIONS OF THE COMMISSIONER OF PATENTS. as those considered by the Examiner of Interferences in his decision overruling the demurrer. No similar proceedings have been had in the present case. The practice in applications for cancelation follow as nearly as possible the proceedings in equity cases. The rule relating to orders overruling or allowing pleas in equity cases, as stated in the Encyclopedia of Pleading and Practice, (vol. 16, p. 627,) is as follows: 9. Nature of order overruling or allowing plea.-An order overruling a plea is not appealable, the question decided being merely one of pleading and settling no rights between the parties, and an order allowing a plea does not of itself determine the cause without entry of an order dismissing the bill. This rule is clearly applicable to proceedings in applications for cancelation of trade-marks, and it follows that there is no right of appeal from the decision of the Examiner of Interferences overruling the applicant's plea. In view of the fact that the applicant was apparently misled into bringing this appeal by the language of the decision of the Court of Appeals of the District of Columbia, above quoted, and since the time set by the Examiner of Interferences for filing answer is now expired, it is directed that the applicant be given until April 13, 1909, to file an answer to the application for cancelation. The petition is denied. HOCH v. MCCASKEY v. HOPKINS. Decided April 6, 1909. 141 O. G., 1161. INTERFERENCE-MOTION UNDER RULE 109-DISCRETION OF THE EXAMINER OF INTERFERENCES. Where the Examiner of Interferences refused to transmit a motion under Rule 109 unless the moving party filed within a fixed time a statement pointing out the parts or elements of his application covered by the elements of the claims submitted, Held that this is a question of procedure which is clearly within the jurisdiction of the Examiner of Interferences and should not be reviewed unless there is a clear abuse of discretion on his part. ON PETITION. ADDING-MACHINE. Messrs. Foster, Freeman, Watson & Coit for Hoch. Mr. Philip Mauro for McCaskey. Mr. John D. Rippey and Mr. George R. Hamlin for Hopkins. MOORE, Commissioner: This is a petition by Hopkins that an appeal be entertained and heard from the decision of the Examiner of Interferences refusing 21895-H. Doc. 124, 61-2- -6 to transmit a motion under Rule 109 unless the moving party file within a fixed time a statement pointing out the parts or elements of his application covered by the elements of the claims submitted. It is urged that the question raised is a departure from the practice heretofore followed by the Office and that an appeal should be allowed in order that this question may be settled by the Commissioner in person. The Examiner of Interferences in his decision stated in part that I believe that when such a statement of facts is called for by opposing parties in connection with a motion of this kind and the invention is an unusually complicated one, the Office should require such a statement to be furnished before the motion is transmitted. That the invention is an unusually complicated one in this case is sufficiently indicated by the fact that the moving party has at present in his case over three hundred claims. Hopkins is therefore required to file a statement pointing out the parts or elements upon his drawing which correspond to the elements of the claims which he seeks to add. This statement must be filed, accompanied by proof of service, before April 8, 1909. If a sufficient statement is not filed, the motion to amend will be denied transmission. The parties will be heard upon the sufficiency of the statement upon April 12, 1909, at 10 a. m., or as soon thereafter as the case can be reached. It appears from the portion of the decision of the Examiner of Interferences above quoted that the moving party is not denied the right to make the claims and that the Examiner of Interferences has requested an explanation of the claims in order to indicate that the motion is brought in good faith and not for the purpose of delay and also to facilitate the disposition of the case by the Examiner on the matters presented before him. This is a question of procedure which is clearly within the jurisdiction of the Examiner of Interferences and which should not be reviewed unless there is a clear abuse of discretion upon his part. The question presented is one which is not appealable as a matter of course. The petition is denied, and the appeal which was filed on April 5 is dismissed. EX PARTE MCPHAIL. Decided April 15, 1909. 141 O. G., 1162. EXAMINATION OF APPLICATION-SECOND REJECTION-RIGHT OF APPEAL. Where after a thorough discussion of the references the claims have been twice rejected upon the same references, the applicant has a right of appeal from such rejection even though the Examiner did not designate his second rejection a "final rejection." ON PETITION. HEAT-CONTROLLING DEVICE FOR METAL-MELTING APPARATUS. Mr. A. H. Spencer for the applicant. BILLINGS, Assistant Commissioner: This is a petition from the action of the Examiner holding the above-entitled application to be abandoned. The record shows that the case as originally filed contained three claims. The Examiner in his first action upon the application rejected these claims in view of certain stated references. Applicant thereupon filed an amendment modifying claim 2. The Examiner then rejected the claims upon the same references as before. The applicant then amended each of the claims and filed an argument discussing the pertinency of each of the references of record. In his next action the Examiner stated that "the rejection of each of the claims is repeated." He further rejected each claim in view of two additional patents to Frolich and Rundquist. Following this action by the Office the applicant amended his specification and discussed the pertinency of the patents to Frolich and Rundquist to his amended claims. The Examiner thereupon rejected each of the claims in view of the references which had hitherto been applied to such claims and further discussed the pertinency of the patents to Frolich and Rundquist to applicant's invention. On the last day of the year following this rejection the applicant filed an appeal to the Examiners-in-Chief. The Examiner, however, refused to forward this appeal upon the ground that the appeal was not such an action as the condition of the case required and that the Office letter of January 27, 1907, was not a "final" rejection and held the case to be abandoned. It is urged in behalf of the applicant that he has had two rejections of the claims upon the same reference and is entitled to the appeal provided by section 4909, Revised Statutes. The Examiner, upon the other hand, contends that the last action upon the claims was merely a rejection and that the case was open to further amendment and was not in readiness for appeal. The Examiner cites several decisions in which it is held that the letter intended to close the consideration should contain a positive statement that the claims are finally rejected. The decisions cited by the Examiner are to the effect that the applicant should be notified when a final rejection is entered in order that he may be advised that his right to amend had ceased and that appeal was in order. It is believed, however, that where, after thorough discussion of references with an Examiner, as has been had in this case, an issue has been. reached and the applicant has received a second rejection upon the same claims in view of the same references he has a right to appeal at that time, notwithstanding the fact that the Examiner did not designate his action as a final action. It is therefore held that in the present case the appeal was a properly responsive action to the Examiner's rejection and that the appeal should have been forwarded. Under these circumstances the application is not abandoned. The petition is granted. PALESTINE HEBREW WINE COMPANY v. CARMEL WINE COMPANY. Decided April 24, 1909. 142 O. G., 287. 1. TRADE-MARKS-Patent OFFICE PROCEEDINGS-CɔMITY. The principle of comity under which one court suspends all action in a case where another court has assumed jurisdiction of the subject should be given proper recognition in the Patent Office. 2. SAME-CANCELATION PROCEEDING-SUSPENDED PENDING DETERMINATION OF INFRINGEMENT SUIT. . Where, pending a suit for infringement of a registered trade-mark, the respondent in that suit files an application for cancelation of such mark, Held that the cancelation proceeding will be suspended pending the determination of the suit for infringement. ON PETITION. TRADE-MARK FOR WINES. Palestine Hebrew Wine Company pro se. Mr. Walter F. Rogers for Carmel Wine Company. MOORE, Commissioner: This is a petition by the Carmel Wine Company that the aboveentitled cancelation proceeding be suspended pending the determination of the suit Carmel Wine Company v. Palestine Hebrew Wine Company in Equity 2-157, now pending in the United States Circuit Court for the Southern District of New York. The record shows that on February 18, 1908, petitioner was granted registration of two trade-marks for wines, Nos. 67,755 and 67,757, consisting of the words "Rehoboth" and "Rishon," respectively. On June 18, 1908, the Palestine Hebrew Wine Company filed application No. 91 for the cancelation of the registered mark No. 67,755 and application No. 92 for the cancelation of the registered mark No. 67,757. Said cancelation proceedings have proceeded to the point where the applicant has taken and filed his prima facie testimony. On March 8, 1908, shortly after the registration of the above-mentioned marks and some three months prior to the filing of the appli |