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which if accepted as true will form a basis for the final decision in the interference.

Section 7 of the Trade-Mark Act provides, in part:

In every case of interference or opposition to interference he (the Commissioner) shall direct the Examiner in charge of interferences to determine the question of the right of registration of such trade-mark and of the sufficiency of the objections to registration in such manner and upon such notice to those interested as the Commissioner may by rules prescribe.

In the cases of Schuster v. Muller (C. D., 1907, 455; 126 O. G., 2192; 28 App. D. C., 409) and Levy & Co. v. Uri (C. D., 1908, 461; 135 O. G., 1363; 31 App. D. C., 441) the Court of Appeals of the District of Columbia held that because of the misleading statements on labels containing the trade-mark applicant for registration could claim no property right in such mark and was not entitled to the benefits provided by the Trade-Mark Act. It therefore follows that the question raised upon the motion for dissolution is one which may properly be considered upon the final hearing upon the question of the right to registration in the interference proceeding.

It is urged in behalf of the Kinney Tobacco Company that whenever it appears in any way during the course of an interference proceeding between an applicant and a registrant that a bar exists against the registration of the trade-mark to the applicant proceedings should be stopped and the interference dissolved, so that the holder of the registered trade-mark will not be subjected to needless cxpense in defending his prima facie right. In cases where such alleged facts are brought out during the taking of testimony the applicant should be given opportunity to explain, if possible, the character of the alleged deceptive matter. It therefore follows that a decision based upon such grounds should be rendered only at the final hearing at the interference.

The decision of the Examiner of Interferences is affirmed.

STEVENS V. PATTERSON.

Decided March 29, 1909.

142 0. G., 568.

1. BRIEF8—INTERLOCUTORY HEARINGS.

Where at a hearing on a motion for dissolution a brief was filed after the attorney had made his argument and near the close of the hearing, Held that this brief was filled in compliance with the ruling in Royce v. Kemp

shall. (C. D., 1905, 292; 116 O. G., 2011.) 2. SAME-SAME.

The question of allowing reply-briefs to be filled is one within the discre tion of the tribunal before whom the hearing is had. APPEAL ON MOTION.

SIGNALING SYSTEM FOR RAILWAYS.

Mr. George H. Benjamin and Mr. Eugene C. Brown for Stevens. Mr. Leonard Day and Mr. Melville Church for Patterson.

BILLING$, Assistant Commissioner:

This is an appeal by Patterson from the decision of the Primary Examiner holding that the brief filed by Stevens on the motion for dissolution should be retained.

It appears from the decision of the Primary Examiner that at the hearing on motion for dissolution both parties were represented by their attorneys and that after the attorney for Stevens had made his argument and near the close of the hearing he filed his brief and handed a copy of the same to the attorney for Patterson; that the attorney for Patterson did not indicate that he wished any further time to reply to anything contained in the brief and did not appear to regard the brief other than as substantially a transcription of the oral argument of Stevens's attorney.

Patterson's appeal is based on the ruling in Royce v. Kempshall, (C. D., 1905, 292; 116 O. G., 2011,) which requires that briefs on interlocutory motions be filed before the hearing. Rules 147 and 163, which relate to the filing of briefs, are as follows:

147. Appeals in interference cases must be accompanied by brief statements of the reasons therefor. Parties will be required to file six copies of printed briefs of their arguments, the appellant five days before the hearing and the appellee one day.

163. Briefs in all contested cases shall be submitted in printed form, and sball be of the same size and the same as to page and print as the printed copies of testimony. But in case satisfactory reason therefor is shown to the Office, type-written briefs may be submitted. Briefs shall be filed three days before the hearing, except as provided in Rule 147. By consent of the parties they may be iled later, but in any case must be filed before the hearing. If either party fail to comply with this regulation, no extension of time will be granted for the purpose, except upon consent of the adverse parties.

These rules were construed in Newcomb v. Lemp, (C. D., 1904, 134; 109 O. G., 2171,) where it was held that type-written briefs might be received on motions and on interlocutory appeals and that it was not necessary to file six printed copies, as required by Rule 147, except for the final hearing. The rule was also construed in Royce v. Kempshall, supra, where it was held that there was no necessity for filing briefs on interlocutory motions five days before the hearing and that such briefs might be filed at any time before the hearing. In the decision of the Commissioner in Thompson v. Bliss, (MS. Dec., vol. 92, p. 107,) rendered September 27, 1908, it was pointed out that the reason for requiring briefs to be filed before the hearing was to prevent one party taking an undue advantage over the other by preparing and filing briefs after the hearing which might be prepared in

the light of the oral argument of the opposing party. In the present case it is evident that the brief must have been prepared before the hearing and not in the light of the oral arguments. For this reason it is believed that Stevens's attorney has substantially complied with the ruling of Royce v. Kempshall as interpreted in Thompson v. Bliss, and that therefore the Examiner was right in holding that the brief would be accepted.

The attorney for Patterson has requested as an alternative to the briefs being stricken out that he be allowed the privilege of submitting a reply-brief. As pointed out in Thompson v. Bliss it was the duty of counsel for Patterson at the time of the hearing to have requested permission to see the brief filed by Stevens and to make such reply thereto as he might see fit. If the Examiner had refused this request, he might then have been in a position to urge the technical objection that the brief was not filed before the hearing, as required by Royce v. Kempshall. Furthermore, if counsel for Patterson wished to file a reply-brief he should have requested permission of the Primary Examiner to do so when the brief of Stevens was filed, and it was within the discretion of the Examiner to grant such request. No reason is seen for granting this request at this time.

The decision of the Primary Examiner is affirmed.

EX PARTE DIETERICH.

Decided April 6, 1909.

142 0. G., 568.

RECOMMENDATION OF THE EXAMINERS-IN-CHIEF-ACTION BY PRIMARY EXAMINER

REOPENING OF THE CASE. Where the Examiners-in-Chief stated that a claim was patentable over the references cited against it, but recommended that it be rejected upon another reference, and the Examiner rejected the claim on this reference, Held that while this action reopened the case such reopening was merely as to the subject matter of the rejected claim.

ON PETITION.

PNEUMATIC EXPANSION-TANK WITH LIQUID-RELIEF,

Messrs. Fred. G. Dieterich & Co. for the applicant. BILLINGS, Assistant Commissioner:

This is a petition from the action of the Examiner refusing to enter and consider a certain amendment filed in the above-entitled application.

This case was appealed to the Examiners-in-Chief, who rendered a decision affirming the rejection by the Examiner as to all of the

appealed claims except claim 6. As to that claim they held that it was not met in the reference cited against it by the Examiner, but was met in another reference of record and should have been rejected thereon. When the application came before the Examiner, he adopted the suggestion of the Examiners-in-Chief and rejected the claim. Applicant thereafter filed the amendment above referred to, which the Examiner refused to admit.

The Examiner based his objections on Rules 68 and 139. Rule 68 provides, in part, as follows:

After decision on appeal amendments can only be made as provided in Rule 142, or to carry into effect a recommendation under Rule 139, and Rule 139 provides, in part, as follows:

The Examiners-in-Chief in their decision will affirm or reverse the decision of the Primary Examiner only on the points on which appeal shall have been taken. (See Rule 133.) Should they discover any apparent grounds not involved in the appeal for granting or refusing Letters Patent in the form claimed, or any other form, they will annex to their decision a statement to that effect, with such recommendation as they shall deem proper.

As pointed out in ex parte Burrowes, (C. D., 1904, 155; 110 O. G., 599,) the Examiner by adopting the suggestion of the Examiners-inChief to a certain extent reopened the case. He did not, however,

, reopen the case for general prosecution, but merely as to the subjectmatter of claim 6, which he rejected on a new reference. The applicant was therefore clearly entitled to amend that claim, so as to avoid the reference, if possible, or to present another claim or claims in lieu thereof; but he was not entitled to present claims directed to subject-matter other than that covered by this claim and to obtain further prosecution of such subject-matter. The amendment which the Examiner refused to admit was not limited as above indicated, and for that reason it was properly refused admission. If, however, the applicant will present an amendment either amending claim 6 or presenting a claim or claims limited to the subject-matter covered by that claim, the same may be entered and considered.

The petition is denied.

EX PARTE CLARK-HORROCKS COMPANY.

Decided March 6, 1909.

142 0. G., 855.

TRADE-MARKS—“UNXLD"-DESCRIPTIVE.

The mark “UNXLD" Held to be a misspelling of the word "unexcelled," and therefore not registrable, since such word 18 “merely descriptive."

ON APPEAL.

TRADE-MARK FOR FISHING-TACKLE,

Me8878. Robinson, Martin & Jones for the applicant.

MOORE, Commissioner:

This is an appeal from the decision of the Examiner of TradeMarks refusing registration of the mark “UNXLD” as a trade-mark for fishing-tackle. Registration of the mark was refused by the Examiner upon the ground that it is a misspelling of the word "unexcelled ” and is “merely descriptive” within the meaning of those words as used in section 5 of the act of February 20, 1905.

In my opinion the decision of the Examiner of Trade-Marks is right. The mark“ UNXLD ” when pronounced has the same sound as the word "unexcelled.” The mark is clearly a misspelling or a phonetic spelling of the word “unexcelled.” To the purchaser the mark would ordinarily suggest that the goods upon which it is applied are “unexcelled ” in quality.

A case similar to that of applicant's is in re Central Consumers Company, (post, 329; 140 0. G., 1211,) decided by the Court of Appeals of the District of Columbia on February 2, 1909, in which the mark “Nextobeer” was held a misspelling of the words“ next to beer” and descriptive of the character or quality of the goods upon which it was used. In this decision the court said:

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 Company v. Alcorn, C. D., 1893, 672; 65 0. 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, 373; 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, 13 Wall., 311.)

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.

In the case of Trinidad Asphalt Mfg. Co. v. Standard Paint Co. (163 F. R., 977) the Court of Appeals for the Eighth Circuit held the mark “ Ruberoid" a misspelling of “rubberoid” and descriptive of the goods--roofing—to which it was applied. The court in this case held:

To the contention that “ruberoid" is fanciful or arbitrary it must be said that no can restrict or destroy the public right by the coinage and monopoly of a word that is a near imitation of one the use of which is open to all for the truthful description of articles of trade and commerce.

The decision of the Examiner of Trade-Marks is affirmed.

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