Section 212 of the act of 1917 (Comp. St. 1918, § 6336gm) is as follows:

"All administrative, special, and general provisions of law, including the laws in relation to the assessment, remission, collection, and refund of internal revenue taxes not heretofore specifically repealed, and not inconsistent with the provisions of this title are hereby extended and made applicable to all the provisions of this title and to the tax herein imposed, and all provisions of title I of such Act of September eighth, nineteen hundred and sixteen, as amended by this act, relating to returns and payment of the tax therein imposed, including penalties, are hereby made applicable to the tax imposed by this title."

In a communication addressed by the commissioner of internal revenue to all collectors of internal revenue dated October 16, 1917, and released for publication October 31, 1917, and known as T. D. 2561, the commissioner called attention to the fact that supplemental returns for the purpose of the excess profits tax would be required of corporations making returns for fiscal year ending in 1917. The last paragraph of this communication was as follows:

"Because of the desirability to have all returns made upon a prescribed form and in accordance with approved regulations, and because of the fact that it will be impossible for several weeks to put into the hands of such corporations the blank forms and instructions prescribed by this department for the use of such corporations in making excess profits tax returns, the time within which such returns may be filed in the case of those corporations whose returns are due to be filed on or before January 1, 1918, is hereby extended to that date. This extension is made pursuant to the proviso in subparagraph (c) of section 14 of title I of the Act of September 8, 1916, and applies also to those corporation income tax returns due to be filed on or before January 1, 1918, the correct preparation of which depends upon the excess profits tax returns."

On December 13, 1917, and again on January 22, 1918, T. D. 2561 (October 16, 1917) was amended extending the time for filing returns until March 1, 1918.

The act of 1917 further provided in section 207 (Comp. St. 1918, § 63363/h) that the term "invested capital" for any year means the average invested capital for the

year as defined and limited in this title averaged monthly. The section then goes on to further define invested capital, and provides that the term shall include among other things paid in or earned surplus and undivided profits earned during the calendar year. Although my attention has not been called to any ruling to that effect prior to February 17, 1919, the Department of Internal Revenue seems to have permitted corporations, for the purpose of determining invested capital under the Act of October 3, 1917, to carry amounts paid on account of income and excess profits tax for any year as a part of its surplus and undivided profits for the succeeding year up to the time when such taxes became due and payable. Whether such practice was consistent with good accounting is not now necessary to determine. It seems to have been the settled policy of the department and later found expression in T. D. 2791, issued February 17, 1919, which is as follows:

"To

"Washington, D. C. Collectors of Internal Revenue and Others Concerned:

"For the purpose of determining invested capital under title II of the act of October 3, 1917, income and excess profits taxes shall be deemed to have been paid out of the net income for the taxable year for which such taxes are levied. Amounts payable on account of income and excess profits taxes for any year may be included in computing surplus and undivided profits for the succeeding year only for the proportionate part of the year represented by the period of time between the close of the taxable year and the date or dates upon which such taxes become due and payable. (Read Question No. 71, 1918, Excess-Profits Tax Primer.)

"Daniel C. Roper,

"Commissioner of Internal Revenue. "Approved: February 17, 1919. "Carter Glass,

"Secretary of the Treasury." In any event, the plaintiff finds no fault with this departmental regulation, but contends that the department did not determine the invested capital of the plaintiff in accordance with the terms of the ruling.

The solicitor for the Department of Internal Revenue seems to have proceeded in both his argument and brief on the assumption that the tax became due and payable December 14, 1917. He throws very little light on the grounds upon which this assumption is based. If he is right, the plain

tiff cannot recover. But at the threshold of this case lies the question whether the war profits tax and the excess profits tax imposed under the Revenue Act of 1917 for the fiscal year ending June 30, 1917, became due and payable December 14, 1917, as the defendant claims, or on June 14, 1918, as the plaintiff contends. This is the only question presented by the case as I see it.

Plaintiff arrived at its date of June 14, 1918, by counting 105 days after March 1, 1918, the date to which the time for filing returns was finally extended by the commissioner of internal revenue. The commissioner had authority to grant these extensions under section 14 (c) of the act of 1916. While the purpose of the action may well have been to avoid penalties for failure to file earlier returns, the action would also have the effect of extending the time in which the plaintiff "was required to file its list or return."

The plaintiff could not have been required to file its return, under the act of 1917, 105 days prior to December 14, 1917, because at that time the act of October 3, 1917, had not been passed. The act of 1916, by its express terms, fixes the due date of the tax at 105 days after the date upon which the defendant was required to file its return. I can see no escape from the conclusion that the tax did not become due and payable until 105 days after March 1, 1918. If any further support is needed for the conclusion above reached, it would be found in the provisions of the act of 1916, which made the assessment and notice of the amount a prerequisite to liability for the tax. Act of 1916, § 14(a). The contention of the government that the tax became due and payable December 14, 1917, rests on two equally untenable propositions: First, that the plaintiff was required to file its return of income before the enactment of the law calling for the return; and second, that the tax became due and payable before it was ascertained or assessed. These propositions need only to be stated; they carry their own refutation. The commissioner of internal revenue has seen fit in regulations to fix upon the due date of the tax as the date when the amount paid shall be taken from surplus for the purpose of ascertaining average invested capital. If full effect be given this regulation, the plaintiff was entitled to carry the amount of its surplus until the tax became due and payable, which, as above indicated, I find to be June 14, 1918.

The plaintiff therefore is entitled to re

2. Bankruptcy

413(4)-Specification of objections alleging concealment of accounts by bankrupt held sufficient.

Specifications of objections to discharge of bankrupt, which alleged concealment of accounts due bankrupt, which were collected after his adjudication, held sufficient, except one, which showed bankrupt had received payment before adjudication.

3. Bankruptcy 408(1)-False oath to schedule filed by bankrupt held ground for denying discharge.

Under Bankruptcy Act, § 29b, cl. 2 (Comp. St. § 9613), false oath, to bar discharge of bankrupt, must have been made in relation to some proceeding in bankruptcy; but false oath to schedule B was within such requirement, and was ground for denying discharge. 4. Bankruptcy

413(5)-That bankrupt destroyed, concealed, or failed to keep books of account is not good as specification of objection to discharge.

That bankrupt destroyed, concealed, or failed to keep books of account is not good as specification of objection to discharge.

5. Bankruptcy 413(4)-Specification of objection to discharge of bankrupt held insufficient.

Specifications of objection to discharge of bankrupt, that he had transferred, removed, destroyed, or concealed accounts due at time of adjudication, held insufficient for failure to inform the bankrupt or court of specific charge to be met as to each account.

In Bankruptcy. In the matter of W. T. Brinson, bankrupt. On motion of bankrupt to strike specification of objections of B. G. Waring to discharge. Motion denied in part, and allowed in part.

See, also, 1 F. (2d) 824

CALL, District Judge. This cause comes on for a hearing upon the motion of the bankrupt to strike the specifications of objections of B. G. Waring to the discharge of the bankrupt. The bankrupt was adjudicated February 16, 1924, upon his voluntary petition, and on November 12th filed his petition to be discharged. On December 19th B. G. Waring filed his specifications of objection to such discharge, and on January 5, 1925, the bankrupt filed his motion to strike same, as insufficient to bar the discharge. By stipulation the cause was submitted on brief.

The specifications of objections can be divided into four general classes. The first, second, third, and fourth urge the concealing of property from the trustee. The fifth, sixth, seventh, and eighth urge the false oath to schedule B. The ninth urges the destruction, concealment, or failure to keep books of account. The tenth, eleventh, and twelfth urge the transference, removal, destruction, or concealment of certain accounts due the bankrupt at the time of adjudica

tion.

[1] The specification, in its description of the person filing them, is as follows: "B. G. Waring, of Madison, in the county of Madison, and state of Florida, a party interested in the estate of 'the bankrupt,' does oppose the granting to him of a discharge from his debts"-and then proceeds to set out the grounds of such opposition as above noted. These specifications are signed and sworn to by Waring; his signature being "B. G. Waring." Official form 58 seems to have been followed, except the objector did not sign as "creditor," as therein provided.

One of the grounds urged for a dismissal of the specifications is that the interest of the objector in the estate is not shown. There are a number of cases which would seem to hold that the specifications must show facts from which this interest will appear, but it seems to me the later cases relax this rule. In Re Slatkin (D. C.) 286 F. 242, and in Re Wood (D. C.) 283 F. 565, it is held that a person scheduled as a creditor is a person having an interest in the estate and can object to the discharge. And in Freshmen v. Adkins, 294 F. 867, the Circuit Court of Appeals for this circuit holds that

upon that question. Other cases hold that the judge will look to the record of the particular case, on a motion to dismiss, to ascertain the interest of the objector. There can be no doubt but that, had the objector signed as "creditor," the interest would have appeared. The form is official and has the effect of law. And if the court is justified in taking notice of the records of the case, then the fact that Waring is scheduled as a creditor shows his interest in the estate. The objections on this ground will therefore be overruled.

[2] Now, taking up the first, second, third, and fourth. The property alleged to have been concealed in each specification is an account due the bankrupt from a party, which debt, except the one mentioned in specification No. 2, was collected by the bankrupt after his adjudication. These accounts do not appear in schedule B of his petition so far as my examination shows. These accounts were property of the bankrupt and should have gone to the trustee, who took title as of the date of adjudication, February 16, 1924. Specification No. 2 shows that the same was paid to the bankrupt before adjudication, so I do not think that specification alleges concealment; there fore objection to specification No. 2 will be sustained, and overruled as to specifications Nos. 1, 3, and 4.

[3] Specifications Nos. 5, 6, 7, and 8 are based upon the verification to schedule B, made February 14, 1924, before adjudication. As I understand the meaning of clause 2, § 29b, of the Bankruptcy Act (Comp. St. § 9613), the false oath must be made in or in relation to any proceeding in bankruptcy. The oath attached to the petition to be adjudged a bankrupt is, under the case to which I have access, such an oath as, if false, will prevent his discharge. It is a step in the proceedings to be declared a bankrupt, and a very important one. The objections to specifications 5, 6, 7, and 8 will be overruled.

[4] The ninth specification is that the bankrupt destroyed, concealed, or failed to keep books of account. The specification is not good, and the objection will be sustained.

[5] The tenth, eleventh, and twelfth specifications each charge the transference, removal, destruction, or concealment, or permission to do so, of these accounts due to

AUTOLINE OIL CO. et al. v. INDIAN REFINING CO., Inc.

(District Court, D. Maryland. December 30, 1924.) No. 351.

1. Trade-marks and trade-names and unfair competition ~3(5)—Mark denoting grade or quality not valid trade-mark.

A mark or symbol, used primarily to denote grade or quality and not origin, cannot become a valid trade-mark.

2. Trade-marks and trade-names and unfair competition 45-Registration raises strong presumption of validity.

The allowance of a trade-mark by the Patent Office furnishes a strong presumption of its validity.

3. Trade-marks and trade-names and unfair competition 55-Wrongful intent not essential to infringement of registered trade

mark.

In a suit for violation of a properly registered trade-mark, it is not necessary to show wrongful intent or facts justifying an inference of such intent.

4. Trade-marks and trade-names and unfair competition 6-Letters may constitute valid trade-mark.

Letters or initials in combination, and in some cases a single letter, if used by a manufacturer to designate the goods he manufactures and to distinguish them from those made by another, may constitute a valid trade-mark. 5. Trade-marks and trade-names and unfair competition 6-A trade-mark held invalid as indicating grade or quality and not origin.

Complainant for several years manufactured and sold lubricating oils for automobiles under the trade-mark "Autoline," which it registered. Later it compounded a nonchatter oil, especially adapted for Ford cars, which it sold at first under the name "Ford Autoline," and later "F Autoline." It registered as a trademark a symbol consisting of the letter "F," in connection with the words "Autoline" and "For Ford Cars." In its advertising it printed lists in which it recommended F. Autoline for Ford

cars, and each of several other grades, designated by numerals for different makes of car. the kind or grade of oil and not origin, and was invalid as a trade-mark.

Held that the letter "F" as so used designated

6. Trade-marks and trade-names and unfair competition 32-Trade-mark is abandoned by its use as a grade mark.

The use of an established trade-mark on a new product as a grade mark is an abandonment of the symbol as a trade-mark, and justifies its use in the same way by any one else.

7. Trade-marks and trade-names and unfair competition 68-"Unfair competition" defined.

Nothing else than conduct tending to pass off one man's merchandise or business as that of another will constitute "unfair competition."

[Ed. Note. For other definitions, see Words and Phrases, First and 'Second Series, Unfair Competition.]

8. Trade-marks and trade-names and unfair competition 93 (3) — Unfair competition held not established.

Evidence held insufficient to establish unfair competition, in the use of the letter "F" in sale of oil for Ford cars.

In Equity. Suit by the Autoline Oil Company and the Wm. C. Robinson & Son Company against the Indian Refining Company, Inc. Decree for defendant.

John E. Cross, Albert E. Donaldson, and Jesse N. Bowen, all of Baltimore, Md., for complainants.

Bartlett & Brownell, of New York City, and Haman, Cook, Chesnut & Markell, of Baltimore, Md., for defendant.

SOPER, District Judge. The bill of complaint alleges the infringment by the defendant of two registered trade-marks belonging to the complainant Wm. C. Robinson & Son Company, and also acts of unfair competition, and prays for an injunction, for an accounting of profits, and for other relief. The first trade-mark consists of the letter "F" inclosed within the outline of a diamond-shaped figure as a trademark for engine and machine oils. The seeond trade-mark consists of the letter "F" somewhat ornamental in design, but unaccompanied by the diamond-shaped figure as a trade mark for lubricating oils. There are two complainants. Wm. C. Robinson & Son Company, hereinafter called the Robinson Company, was incorporated in 1901. It operates a plant for the blending of oils in Baltimore, and is the successor in business of the former copartnership known as Wm. C. Robinson & Son, long established in that city. When the automobile business became

active, it adopted the name "Autoline Oil Company," which it advertised as the "automotive oil sales' department" of its business. In 1924 the Autoline Oil Company was incorporated and acquired all of the stock of the Robinson Company. When the complainant is referred to in this opinion, the latter company is meant.

In the year 1887 the firm, which preceded the corporations, adopted and used the diamond "F" as a trade-mark for engine and machine oils, and in 1914, upon the application of the Robinson Company, the trade-mark was duly registered. At this time the principal business of the company was the distribution and sale of general lubricating oils to industrial plants, mills, machine shops, etc. "Diamond F" engine and machine oils became known to the oil, trade in the northern, eastern, and southern states, and as far west as Chicago, and the trademark indicated to the trade in this territory not only an engine or machine oil, but one manufactured by the Robinson Company. This product became an important part of the business, and amounted to 30 per cent. of the output. Business conditions became somewhat unfavorable during the World War, so that "Diamond F" machine and engine oils were not so easily marketed as in previous years, but the product still remained the best seller of the complainant's oils of this description.

The trade-mark "F," unaccompanied by the diamond-shaped figure, is of more recent origin. It was registered in the Patent Office on February 20, 1923. The Robinson Company, in the meantime, had embarked upon the business of the blending and sale of lubricating oils for internal combustion engines and automobiles. These oils it sold under the trade name "Autoline," which, upon the company's application, was duly registered in the Patent Office on November 7, 1905. The trade-mark was adopted as an arbitrary word indicating the origin of the oils, and has been continuously used by the Robinson Company in connection with the sale and distribution of its automobile lubricants.

For some eighteen months prior to January 1, 1922, the Robinson Company was endeavoring to discover a lubricating oil especially adapted to Ford automobiles. It was common experience that because of the construction of the Ford car ordinary lubricating oils, suitable for other automobiles, were not entirely satisfactory for Fords. The foot or service brake on a Ford car op

erates upon the transmission, which is of the planetary type. Leather bands surround and contract upon a drum in the transmission when the brake is applied. It was found that in the use of lubricants generally employed the bands acquired a hard, glazed surface so that when the brake was applied and the bands were contracted they would alternately slip and hold in contact with the drum, and a more or less violent vibration of the transmission and of the whole car would ensue. This vibration was known as chattering, and the problem to which the complainant, as well as others in the oil trade, devoted themselves was the discovery of a nonchatter oil.

In the latter part of 1921 the Robinson Company perfected a nonchatter oil at its Baltimore plant by combining with a petroleum base a small percentage of animal oil known as degras, consisting of refined wool grease. In December of that year samples were furnished to local Ford dealers and repair shops, and found to be satisfactory. When the new oil was used, the transmission bands were kept soft and pliable so that too sudden gripping was avoided. In January, 1922, the Robinson Company began to advertise the new oil. It adopted the name "Ford Autoline" to distinguish the product from other kinds of Autoline which it was advertising for automobiles of other makes, and to indicate to Ford owners that it was especially suitable to their cars. The advertisements took the form of articles in the Baltimore newspapers, of circulars or broadsides sent to Ford dealers in the eastern half of the United States, and of other advertising devices which were sent to owners of Ford cars.

The interest of Ford dealers and owners was elicited, and the Robinson Company determined upon a campaign of national advertising. On January 22, 1922, an extended conference was held between officers, employees, and advertising men to determine finally upon the name of the new oil and the details of advertisement. It was decided to abandon the name "Ford Autoline" for fear that its use might infringe upon the rights of Henry Ford, since the name would probably be understood as indicating an oil manufactured by Ford. See Ford Motor Co. v. Wilson (D. C.) 223 F. 808. Nevertheless the Robinson Company was greatly desirous of adopting a mark that would attract the attention of Ford owners and dealers. Indeed the importance of the venture rested largely upon the fact that approximately