This defines what we conceive to be the purpose, both of the TradeMark Act and the pure-food law; to prevent unfair competition, and to protect the public from being imposed upon by designing manufacturers and traders.

We have held to a liberal interpretation of those clauses of the Trade-Mark Act, forbidding the registration of similar marks to be used on the same general class of merchandise. In the case of Phoenix Paint & Varnish Co. v. John T. Lewis & Bros. Co., ante, 303; 139 O. G., 990; 32 App. D. C., 285; we said:

We think two trade-marks may be said to be appropriated to merchandise of the same descriptive properties in the sense meant by the statute when the general and essential characteristics of the goods are the same. The rule that goods must be identical would defeat the purpose of the statute and destroy the value of trade-marks. The test is whether there is such a sameness in the distinguishing characteristics of the goods as to be likely to mislead the general public.

The statute requires exclusive use, which we have held to be sole use. In Worcester Brewing Corporation v. Reuter, (C. D., 1908, 329; 133 O. G., 1190; 30 App. D. C., 428,) this court, considering the meaning of the word "exclusive," as used in section 5 of the TradeMark Act, said:

Inasmuch as the word is used in the statute in connection with the words "actual use," and both expressions are used to qualify the special right conferred by this provision of the act, we hold that an actual use must be shown to have been possessed and enjoyed by the applicant to the sole exclusion of all others. The use could not be exclusive if, during the period, it appears that another was using the same word as a trade-mark upon the same character of goods.

We have 'adhered to this ruling in many decisions since rendered. It cannot be said that there has been sole use by E. H. Taylor, Jr., & Sons of the word "Taylor" as a trade-mark for whisky when the record discloses the use of this mark by at least three others during the ten-years period on goods of the same descriptive properties.

A non-technical mark cannot be registered under this provision of the statute, when it is so similar to another mark in use during the same period as to cause confusion in trade. Assuming that Wright & Taylor are producing a whisky compound, and should advertise and mark it as such, and C. H. Graves & Sons are producing a whisky blend, and should advertise and mark it as such, they would doubtless have the right to use their respective marks without infringing the use of the mark of E. H. Taylor, Jr., & Sons. Can it be said that these three brands of whisky, though marked as above described, could come into the market, all bearing the " Taylor " mark, and not create confusion? This is inconceivable, and this is what the statute aims to prevent. They are all whiskies" merchandise of the same descriptive properties "-produced and used for the same purpose. The difference is one of quality, and not of description. While it is

perhaps unfortunate that one honestly complying with the law is compelled to suffer at the hands of commercial sharks, there is no relief afforded in this proceeding. It must be found in another forum.

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

[Court of Appeals of the District of Columbia.]

MOORE v. UNITED STATES, ex rel. LINDMARK.

Decided November 2, 1909.

149 O. G., 310; 33 App. D. C., 597.

1. PATENT LEGISLATION-FUNCTION OF THE COMMISSIONER OF PATENTS. "The Commissioner of Patents in passing upon applications or deciding controversies between rival applicants for patent of the same invention, exercises power that is essentially judicial. For that reason, Congress has the power to provide for a review of his decisions by appeal to the courts." 2. MANDAMUS.

The writ of mandamus cannot be used to perform the office of an appeal or writ of error or granted in any case where there is another adequate remedy.

3. SAME-FINAL ORDER-RIGHT OF APPEAL.

In an interference between F. and L. the decision of the Commissioner in favor of L. was reversed by the Court of Appeals of the District of Columbia. Thereafter L. filed with the Commissioner a petition that the interference be reopened for the purpose of taking further testimony. This petition was denied, but an order directing a patent to issue to F. was not entered. Held that mandamus would not lie to compel the Commissioner to reopen the case, since upon the entry of such final order L. would have the right of appeal to the court of appeals.

Mr. Webster S. Ruckman for the Commissioner of Patents.

Mr. George R. Hamlin, Mr. Frank S. Busser, and Mr. George J. Harding for the appellee.

SHEPARD, C. J.:

This is an appeal by the Commissioner of Patents from an order directing a writ of mandamus to issue commanding him to vacate a decision rendered in an interference proceeding in the Patent Office.

It is unnecessary to recite the allegations of the petition and return as there is no dispute concerning the facts which are matters of record.

Relator, Lindmark, filed an application for a patent for an exhaustheater for compound motors on January 19, 1903. October 31, 1903, one de Ferranti filed an application for patent for an improvement in steam-turbines and on March 9, 1905, filed another application as a division of the first. Pending this rival application and without declaration of interference between the two, a patent was issued to

Lindmark, November 1, 1904. On August 8, 1905, an interference was declared between the divisional application of de Ferranti and the patent to Lindmark. Lindmark's preliminary statement alleged that he had filed an application in Sweden for a patent on June 18, 1902, and had disclosed his invention to others in the United States on or about October 15, 1902. The statement of de Ferranti alleged, among other things, that he had applied for a patent in Great Britain on November 11, 1902.

Rule 114, of the Patent Office, provides that if a preliminary statement of the junior party in interference fails to overcome the prima facie case made by the respective dates of the applications, the party will be notified by the Examiner of Interferences that judgment will be entered against him on the record. The Examiner gave no such notice in this case but issued notice on March 2, 1906, to take testimony. On the same day the parties stipulated that they should have until May 1, 1906, to enter motions to dissolve

or any other motions they may desire to make and that in the meantime all proceedings herein shall be stayed.

The Office then entered an order that no testimony be taken before May 1; that de Ferranti's testimony-in-chief closed July 2; that Lindmark's closed September 4; that de Ferranti's rebuttal closed September 19; and that final hearing be had on November 19, 1906. March 23, 1906, Lindmark moved for a judgment of priority on the record dates of Lindmark, and the allegations of de Ferranti's state

ments.

It seems that Examiner of Interferences required a stipulation as to certain facts before passing on this motion. The following stipulations were then signed by the parties and filed:

It is hereby stipulated and agreed by and between the respective parties to the above-entitled interference that the parties de Ferranti and Lindmark are the same parties, de Ferranti and Lindmark, who filed the applications for foreign patents specified in the oaths attached to their respective United States applications, and in their preliminary statements, and that de Ferranti and Lindmark, named herein, are the same de Ferranti and Lindmark named in interference No. 25,459.

The Examiner of Interferences held that neither party was entitled to the filing date of his foreign application, under the provision of the act of Congress, approved March 3, 1903; and inasmuch as Lindmark was the first to file his application in the United States, he awarded priority to him on the motion aforesaid.

This decision was affirmed in succession on de Ferranti's appeal by the Examiners-in-Chief and the Commissioner. On appeal to the court of appeals, by de Ferranti, the decision of the Commissioner was reversed. The court of appeals was of the opinion that the act of March 3, 1903, had no retroactive effect so as to authorize

Lindmark to claim the benefits of his foreign application in support of his United States application filed before the statute was enacted. Therefore, as de Ferranti had filed since the enactment, he was entitled to the benefits of the date of his foreign application, which was prior to the United States application of Lindmark. (De Ferranti v. Lindmark, C. D., 1908, 353; 134 O. G., 515; 30 App. D. C., 417.)

On March 5, 1908, after the filing of the mandate, in the said case, Lindmark filed a motion to the effect that the motion having been decided adversely to him, the Examiner of Interferences shall set times for taking testimony in the interference proceedings. This motion was denied on March 12, 1908, by the Examiner of Interferences, whose conclusion was that the decision of the court of appeals was upon the merits, and final, and the Patent Office was without. authority to reopen the case for further evidence. An appeal from this decision was taken to the Commissioner, Lindmark contending that the decision of the court of appeals was

not that de Ferrant! was the first inventor but simply that he had the right to tie his United States application to his British application under the statute of March 3, 1903.

The Commissioner in a decision reciting the history of the case, showing the order and agreements for taking testimony, the presentation of the motion for judgment in the record, the stipulation of the parties thereon, and the various orders and decisions therein, concluded that the effect of the decision of the court of appeals was a final declaration of priority in favor of de Ferranti and deprived the Office of power to reopen the case for a presentation of further evidence. Hence, the decision appealed from was affirmed. Thereafter, in May, 1908, Lindmark filed a petition in the court of appeals praying that court to instruct the Commissioner that its judgment was not a final judgment awarding priority to de Ferranti and that he allow petitioner to proceed with the taking of testimony to establish his right of priority over de Ferranti. The petition was dismissed on June 2, 1908, on the ground that said court had no original jurisdiction to direct and supervise the administration of the Patent Office. (C. D., 1908, 546; 137 O. G., 733; 32 App. D. C., 6.)

Thereafter, Lindmark filed a petition with the Commissioner in the nature of a petition for rehearing, asking him to vacate his former order denying the right to take testimony. (C. D., 1908, 234; 137 O. G., 731.) This was dismissed October 3, 1908. No further proceeding appears to have been prosecuted in the Office and there is no record of any further order in an interference case.

November 14, 1908, this petition was filed in the Supreme Court of the District, praying a writ of mandamus to compel the Commis

sioner to vacate his said orders and to issue a notice to the parties fixing times for the taking of testimony and for a final hearing in the interference proceeding.

This petition, and the return of the Commissioner thereunto, disclose the facts hereinbefore recited. The plaintiff moved for an order issuing the writ notwithstanding the return.

On the record, the court granted the motion and entered a judgment directing the writ to issue. From that order the Commissioner of Patents has prosecuted this appeal.

The Commissioner of Patents in passing upon applications or deciding controversies between rival applicants for patent of the same invention, exercises power that is essentially judicial. For that reason, Congress has the power to provide for a review of his decisions by appeal to the courts. (U. S. v. Duell, C. D., 1899, 287; 86 O. G., 995; 172 U. S., 576.) And in the exercise of that power an appeal has been given to this court from his order finally rejecting an application for a patent and from his final orders in interference proceedings.

When the decision of the Commissioner, in favor of Lindmark, was reversed by this court and certified to him, he construed it to be a final determination of the controversy between the parties and in fact an award of priority to de Ferranti. The contention of Lindmark that the decision was merely on the merits of his motion for judgment was overruled, and his motion to set a time for taking testimony on other issues in the case, and for a final hearing thereon, was consequently denied.

Nothing is better settled than that the writ of mandamus cannot be used to perform the office of an appeal or writ of error, or granted in any case where there is another adequate remedy. (U. S. v. Duell, C. D., 1899, 287; 86 O. G., 995; 172 U. S., 576, 586; in re Key, 189 U. S., 84; ex parte Newman, 14 Wall., 152, 165; Seymour v. U. S., ex rel. South Carolina, C. D., 1894, 174; 66 O. G., 1167; 2 App. D. C., 240, 245; Seymour v. U. S., ex rel. Brodie, C. D., 1897, 372; 79 O. G., 509; 10 App. D. C., 567, 569.)

In ex parte Newman, supra, the circuit court had reversed a decree of the district court sustaining a libel for wages due certain foreign seamen, and dismissed all libel for want of jurisdiction. The amount involved was not sufficient to authorize an appeal to the Supreme Court, and the libellants filed a petition for a mandamus in that court. In an opinion denying the writ, Mr. Justice Clifford said:

Applications for a mandamus to a subordinate court are warranted by the principles and usages of law, in cases where the subordinate court having jurisdiction of a case, refuses to hear and decide the controversy, or where such a court, having heard the cause, refuses to render judgment or enter a decree in