show that the petitioner has been injured by the registry of the mark he seeks to have canceled, and this fact must not be left to conjecture but must affirmatively appear.

In the present case the applicant for cancelation is claiming only the use of his trade-mark upon coffee and does not assert with any particularity that the trade-mark of the opposer is used upon goods of the same descriptive properties, except in so far as coffee and the goods for which the mark of Beckmann & Co. is registered are embraced in a single broad class of merchandise established by the Patent Office for its own convenience in classification.

Section 2 of the act of May 4, 1906, which provides for the establishment of classes of merchandise for the purpose of trade-mark registration provides in part

on a single application for registration of a trade-mark the trade-mark may be registered at the option of the applicant for any or all goods upon which the mark has actually been used comprised in a single class of merchandise, provided the particular descriptions of goods be stated. (Italics mine.)

It cannot be well asserted that because a merchant has adopted and used a trade-mark upon one kind of food or ingredient of foods he can thereby preclude any other person from using the same mark upon every other article of food or ingredient of foods. The last clause of the section above quoted clearly shows that the applicant should be required to assert in unmistakable terms the particular description of goods for which he claims ownership of the trade-mark, and while he is clearly entitled to protection against the registration of the same or a similar mark by another upon goods adapted to similar use (as coffee and cocoa, supra) he is clearly not entitled to a monopoly of the mark for all goods which may be included in a broad class established by the Patent Office by its use on one article. In a proceeding for the cancelation of a trade-mark upon the ground of prior adoption it is therefore incumbent upon the applicant for cancelation to set forth facts which if established will show that not only the registrant's mark is so nearly identical with that of applicant for cancelation as to be likely to be mistaken therefor, but that the registrant's goods are adapted to the same general use as those upon which the petitioner's mark is used. The allegations contained do not in my opinion contain any averment which will support an allegation of damage, which is a necessary basis for this proceeding.

The decision of the Examiner of Interferences is affirmed.

OPINION

OF THE

ATTORNEY-GENERAL

1909.

IN RE PHILIPPINE ISLANDS.

147 O. G., 239.

TRADE-MARKS-ACT OF 1905-RESIDENTS OF PHILIPPINE ISLANDS-ENTITLED TO

REGISTRATION.

The Trade-Mark Act of 1905, sections 1 and 29, construed and Held that under this act residents of the Philippine Islands are entitled to register trade-marks in this country. (Opinion of the Attorney-General, 23 Op., 635; C. D., 1902, 493; 98 O. G., 2175, distinguished.)

DEPARTMENT OF JUSTICE, Washington, September 24, 1909.

The SECRETARY OF THE INTERIOR. SIR: Your communication of September 20, 1909, in which you request an opinion as to whether a resident of the Philippine Islands has the right to register a trade-mark in the Patent Office of the United States, was received, and I have the honor to reply:

The act of March 3, 1881, (21 Stat., 502,) provided, with reference to the residence of those entitled to the registration of trade-marks, that they should

be domiciled in the United States, or located in any foreign country or tribe which by treaty, convention or law, affords similar privileges to citizens of the United States.

Attorney-General Knox held that under this provision a resident of the Philippine Islands was not entitled to the privileges of the Trade-Mark Law, because those islands were not a part of the United States. (23 Op., 634, 636; C. D., 1902, 493; 98 O. G., 2175.) But in the Trade-Mark Act of February 20, 1905, (33 Stat., 724,) this provision as to residence was so changed as to make it sufficient that the owner" be domiciled within the territory of the United States." Unquestionably the Philippine Islands, though not an organized

Territory of the United States, yet constitute "territory of the United States." (Dorr v. United States, 195 U. S., 138.) But if there were otherwise any doubt upon this question, it would be set at rest by the 29th section of the said act of 1905, which provides:

That in construing this act the following rules must be observed, except where the contrary intent is plainly apparent from the context thereof: The United States includes and embraces all territory which is under the jurisdiction and control of the United States

thus unequivocally declaring the purpose of Congress to bring within the provisions of the act all territory belonging to the United States, whether embraced within a State or organized Territory, or not.

I am, therefore, of the opinion that a resident of the Philippine Islands has the right to avail himself of the privileges of the trademark law.

Very respectfully,

LLOYD W. Bowers, Acting Attorney-General.

DECISIONS

OF THIE

UNITED STATES COURTS

IN

PATENT CASES,

1909.

[Supreme Court of the District of Columbia.]

THE UNITED STATES OF AMERICA, EX REL. BOYER, v. MOORE.

Decided July 16, 1908.

138 O. G., 529.

ACCESS TO PENDING APPLICATIONS-RIGHTS OF ASSIGNEE-JUDGMENT OF STATE COURT-MANDAMUS.

Where in suit in the Supreme Court of New York between the M. Co. and B. involving the title to certain inventions for which applications had been filed in the United States Patent Office it was held that B. was the owner of such inventions and it was ordered that such applications be assigned by the M. Co. to B., which order was finally complied with, and an appeal was taken from such decision, but no supersedeas of the order of the trial court was ever had, Held that the judgment of the Supreme Court of New York, until reversed or modified, was conclusive as between the parties on all questions of ownership of the applications, that it was the duty of the Commissioner of Patents to recognize this right and permit B. to inspect and obtain copies of such applications, and that a mandamus to this effect should issue.

Mr. C. L. Sturtevant for the relator.

Mr. W. S. Ruckman for the respondent.

WRIGHT, J.:

It appears from the pleadings herein that one Berger was the original owner of divided applications for a patent. Berger assigned the applications to the Metropolitan Sewing Machine Company upon certain conditions with which the Sewing Machine Company failed to comply; subsequently Berger transferred all his right, title and interest in his contract with the company and in the applications to