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11. "MAPLOMA"-" MAPLEINE "-SIMILARITY.-The word "Maploma" as a trade-mark for syrup Held properly refused registration in view of the prior registration of the word Mapleine" as a trade-mark for goods of the same descriptive properties. Ex parte Price Flavoring Extract Co., 29.
12. GOODS OF SAME DESCRIPTIVE PROPERTIES.-" Syrups, syrup compound and syrup substitutes" Held to be goods of the same descriptive properties as "A Harmless Vegetable Compound to impart a Flavor similar to Maple for Syrups, etc." Id.
13. OPPOSITION-ALLEGATION OF DAMAGE.-In order to sustain a notice of opposition to the registration of a trade-mark, it is not sufficient that the opponent state that he believes he would be damaged, but he must allege facts showing an interest in the subject-matter from which damage may be inferred. (McIlhenny's Son v. New Iberia Extract of Tabasco Pepper Co., Ltd., C. D., 1908, 325; 133 O. G., 995; 30 App. D. C., 337; Battle Creek Sanitarium Co., Ltd. v. Fuller, C. D., 1908, 370; 134 O. G., 1299; 30 App. D. C., 411.) (*) Underwood Typewriter Company v. A. B. Dick Company, 298.
14. SAME-SAME.-Where a notice of opposition does not allege that the opposer has put on the market an article similar to that upon which the trade-mark of the applicant has been used, but merely alleges that said trade-mark has become public property by reason of the expiration of a patent upon the machine upon which it is used, Held that such notice is fatally defective. (*) Id.
15. APPLICATION-PARTICULAR DESCRIPTION OF GOODS.-The definition of the particular description of goods must not be so broad as to obviously include many goods to which the trade-mark is not applied, yet it need not be so narrow as to necessarily exclude some goods to which the mark is actually applied. Ex parte Columbia Cotton Oil and Provision Corporation, 30.
16. SAME-SAME.-The labels filed in connection with an application for the registration of a trade-mark for a cotton-seed-oil compound defined the goods as Sterilized Cotton Seed Oil-Oleo Stearine." Held that the particular description of the goods in the application, "An oleaginous compound for use as a pastry shortening," is sufficiently definite. Id. 17. SAME OBJECTION-PETITION.-An objection to a particular description of goods merely on the ground of indefiniteness is reviewable on petition. (Pfister & Vogel Leather Company, C. D., 1905, 432; 118 O. G., 2250, distinguished.) Ex parte Windhorst & Company, 33.
18. SAME.-The terms “ pressure-lamps" and "portable merchandise units commonly known as gasolene, incandescent lighting systems" used in the particular description of the goods upon which the mark sought to be registered is used Held not indefinite. Id.
19. DRAWING ELIMINATION OF ARBITRARY FEATURES.-An applicant will not be permitted to modify the mark originally shown in the drawing by the elimination of a fanciful, arbitrary, and salient feature thereof unless there shall be filed a disclaimer of such feature duly verified by the applicant. Ex parte Wayne Poultry Tonic Co., 37.
20. SIMILARITY-" LADY LIKE"-" THE LADY LEE SHOE."-The words "Lady Like" Held properly refused registration as a trade-mark for shoes in view of the prior registration of a mark consisting of the words "The Lady Lee Shoe." Ex parte E. B. Piekenbrock & Sons, 40.
21. "LADY LIKE 99
FOR SHOES-DESCRIPTIVE.—The words "Lady Like” as applied to shoes Held descriptive of the character or quality of the goods, and therefore not registrable as a technical trade-mark. Id. 22. OPPOSITION-PRIOR SUIT FOR INFRINGEMENT BETWEEN THE SAME PARTIES-RES ADJUDICATA.-In a suit for infringement of a registered trade-mark involving citizens of the same State the Supreme Court of the United States held that the registration was invalid and that therefore the Federal courts had no jurisdiction. Subsequently the defendant in the suit filed an application for registration of the mark used by it, and an opposition to such registration was filed by the plaintiff. Held that as this opposition is based upon actual use of the mark, while the question before the Court involved solely the validity of the registration, the decision of the Court is not decisive in this case. (*) A. Leschen & Sons Rope Company v. Broderick & Bascom Rope Company, 312.
23. SAME-SIMILARITY OF MARKS.-A trade-mark for wire rope consisting of "a yellow stripe of uniform width spirally disposed around the surface" of the rope Held so similar to a mark consisting of a red stripe similarly placed on a rope, that the contemporaneous use of the two marks would be likely to cause confusion in the mind of the public and deceive purchasers. (*) Id.
24. SAME-SAME.-A trade-mark for wire rope, consisting of a blue stripe of uniform width spirally disposed around the surface of the rope, Held to so resemble a mark consisting of a red stripe similarly placed on a rope, that the contemporaneous use of the two marks would be likely to cause confusion in the mind of the public and deceive purchasers. (*) A. Leschen & Sons Rope Company v. American Steel & Wire Co. of New Jersey, 315.
25. SIMILARITY-"AI" AND "AA".-The marks "AI" and "AA" Held so similar that their concurrent use upon goods of the same descriptive properties would be likely to cause confusion in the minds of purchasers. Craver's Sons v. Conklin & Son, 50.
26. REGISTRABILITY" COPYRIGHT."-The word "Copyright" Held properly refused registration as a trade-mark, since its use in connection with the words " Registered in the United States Patent Office" or their equivalent would be likely to convey to the mind of the purchasing public the impression that the merchandise upon which the mark is used had received the official approval of the United States Government. Ex parte The Blish Milling Company, 51.
27. "CELTIC "-NOT GEOGRAPHICAL.-The word Celtic" used as a trademark for tea Held not geographical and to constitute a registrable trade-mark. Ex parte Acker, Merrall & Condit Company, 54.
28. SIMILARITY.-A mark consisting of an ornamental panel having in the center thereof the representation of a lion surrounded by a smaller ornamented panel and having the words "Lion Brand" and "Illeone," respectively, above and below it Held properly refused registration in view of the prior registration of a mark consisting of the representation of a lion rampant upon a shield surrounded by a circle and the words "Puritas et Cura S. S. P. & Co." Ex parte Fortuna and Magro, 55.
29. GOODS OF THE SAME DESCRIPTIVE PROPERTIES.-Olive-oil and cotton-seed oil for culinary purposes Held to be goods of the same descriptive properties. Id.
"WHITE LEAD" AND "CALCIMINE."-White lead and calcimine Held not to be goods of the same descriptive properties. (*) The Muralo Company v. National Lead Company, 324.
31. SAME-SAME.-"The question of confusion in trade between sales of white lead and calcimine cannot arise out of the difficulty in telling whether a given wall has been painted with oil-paint comprising white lead, or with calcimine dissolved in water. The real question is whether the use of the figure of a Dutch boy on one package and that of a Dutchman on the other is calculated to mislead an ordinary person seeking to buy white lead, into buying a package of calcimine. Bearing in mind the essential differences between the two articles, we think it impossible that such should be the case." (*) Id.
32. INTERFERENCE-MOTION FOR DISSOLUTION-HOLDING BY EXAMINER OF TRADE-MARKS OF LACK OF JURISDICTION-PRACTICE.-Where in con sidering a motion to dissolve an interference the Examiner of TradeMarks holds that the question raised is not one which can be decided on such a motion, he should dismiss the motion and not set a limit of appeal. Wm. A. Coombs Milling Company v. Barber Milling Company, 58.
33. SAME DECEPTIVE USE OF MARK-NOT GROUND FOR DISSOLUTION.-The question whether there has been such a deceptive use of the mark by one of the parties as to bar his right to registration is not one to be determined on a motion for dissolution.
34. SAME-SAME-CONSIDERED AT FINAL HEARING.-Where an interference involves a registration and an application for registration, the question of the deceptive use of the mark by the registrant is one that can be raised at final hearing in the interference. (In re J. Fred Wilcox & Co., ante, 264; 162 O. G., 539; 36 App. D. C., 107, construed.) Id.
35. OPPOSITION-PUBLICI JURIS-Star for BEER.—An opposition to the regis
tration of a six-pointed star and the word "Star" as a trade-mark for beer Held properly sustained, since the representation of a star for beer has been so generally used as to become publici juris. (*) Star Brewery Company v. Val Blatz Brewing Company, 326.
36. ANTICIPATION—“ SOZODONT," KALODONT."-Prior use of the word "Sozodont" as a trade-mark for tooth-paste Held to constitute no ground for refusing registration of the word "Kalodont" as a trademark for the same class, of goods, since there is no misleading resemblance between these words. (*) K. K. Landespriv. Milly-KerzenSeifen und Glycerin-Fabrik Von F. A. Sarg's Sohn & Co. v. Hall & Ruckel, 329.
37. SUIT TO RESTRAIN INFRINGEMENT AND UNFAIR COMPETITION-JURISDICTION OF SUPREME COURT.-Where in a suit between citizens of different States infringement of a registered trade-mark is alleged and also unfair competition in trade, Held that the Supreme Court has jurisdiction to review a decision of the circuit court of appeals holding the mark invalid and the defendant not guilty of unfair competition. (**) Standard Paint Company v. Trinidad Asphalt Manufacturing Company, 530.
38. DEFINITION OF.-The term "trade-mark" has been in use from a very early date, and, generally speaking, it means a distinctive mark of authenticity through which the products of particular manufacturers or the vendable commodities of particular merchants may be distinguished from those of others. (**) Id.
39. DESCRIPTIVE MARK-NOT SUSCEPTIBLE OF EXCLUSIVE APPROPRIATION.-The settled rule is that no one can appropriate as a trade-mark a generic name or one descriptive of an article of trade, its qualities, ingredients, or characteristics, or any sign, word, or symbol which from the nature of the fact it is used to signify others may employ with equal truth. (**) Id.
40. SAME MISSPELLING.-A mark which is descriptive of the goods upon which it is used does not lose such quality and become arbitrary by being misspelled. Bad orthography has not yet become so rare or so easily detected as to make a word the arbitrary sign of something else than its conventional meaning. (**) Id.
41. SAME-SAME-" RUBEROID" FOR FELT ROOFING.-The word "Ruberoid" Held to be a mere misspelling of "rubberoid" and not to constitute a valid trade-mark for a flexible roofing material. (**) Id.
42. UNFAIR COMPETITION.-Plaintiff used the word "Ruberoid" as a trademark for flexible roofing. Defendant used the word "Rubbero" as a trade-mark for similar goods; but there was no imitation of plaintiff's labels in their arrangement, color, or general appearance. Held, that defendant was not guilty of unfair competition. (**) Id. 43. SIMILARITY.-The marks "Optimates," Optimo," and "La Optima ” Held " so similar, not only in appearance but in meaning and origin, that they must be considered the same in law." (*) Justin Seubert, Incorporated, v. A. Santaella & Company, 341.
44. RIGHT TO REGISTRATION-PRIOR USE BY ANOTHER-LACK OF KNOWLEDGE BY APPLICANT OF SUCH USE IMMATERIAL.-Where in a trade-mark interference proof is offered that the mark in issue or one substantially identical therewith had been used by a third party prior to the date of adoption proven by one of the parties to the interference, Held that with respect to that applicant's right to registration it is immaterial that the mark had not been registered by such third party or that the use by him was unknown to the applicant. (*) Id.
45. ABANDONED MARK-EXCLUSIVE USE BY ANOTHER AT TIME OF ABANDONMENT NECESSARY TO TITLE.-Where two parties are using a mark at the time of its abandonment by the original owner thereof, Held that neither party acquires title to such mark. (Mayer Fertilizer Co. v. Virginia-Carolina Chemical Co., C. D., 1910, 399; 156 O. G., 539; 35 App. D. C., 425, distinguished.) (*) Id.
46. NAME OF AN INDIVIDUAL-" DEACON BROWN."-The name Brown is a common surname and is not rendered registrable by prefixing thereto the word "Deacon." (*) In re Artesian Manufacturing Company, 344. 47. SAME--DISTINCTIVE MANNER OF WRITING OR PRINTING.-Where the name "Deacon Brown" is printed in script type, with a scroll extending across all the letters except the “D” and having the letters "D" and "B" connected across the top by two flourishes, Held not such a distinctive manner of printing as to render the name registrable as a trademark, (citing ex parte Polar Knitting Mills, C. D., 1910, 62; 154 O. G., 251.) (*) Id.
48. CANCELATION-MARK PRESENTED UNDER "TEN-YEARS CLAUSE"-USE NOT EXCLUSIVE.-Held that the application for the cancelation of the mark registered by appellant under the so-called "ten-years clause" of the Trade-Mark Act was properly sustained, since the evidence establishes that it did not have exclusive use of the mark during the ten years next preceding the passage of that act. (*) Duluth-Superior Milling Company v. Koper, 354.
49. SIMILARITY—“ CARBOLINEUM AND "CREO-CARBOLIN."-Registration of the word "Creo-Carbolin" Held properly refused registration, since it is so similar to the previously-registered mark "Carbolineum" for the same class of goods as to be likely to cause confusion or mistake in the mind of the public. (*) In re Barrett Manufacturing Company, 356. 50. How ACQUIRED EXTENT OF USE.-Every trade must have a beginning, and it would be unreasonable and unjust to say that it must be general and the article widely known before the trade-mark in the name affixed to it and indicating its origin can be acquired. It is enough if the article with the adopted brand upon it is actually a vendible article in the market, with the intent by the proprietor to continue its production and sale. (*) Breitenbach and F. H. Strong Company v. Rosenberg, 365.
51. SAME-SAME.-Testimony showing that goods bearing the mark "Chologen," which had been adopted by a German manufacturer, were on sale by wholesale and retail druggists in Hoboken, Chicago, and Detroit from the time the goods were first introduced into this country Held sufficient to establish a trade-mark use although the sales were neither very great nor very general. (*) Id.
52. SIMILARITY-"CHOLOGESTIN "—"CHOLOGEN."-The mark "Chologestin so closely resembles " Chologen as to be likely, where used upon goods of the same general description, to produce confusion in trade.
(*) Id. 53. CREAM" FOR BAKING-POWDER-NOT DESCRIPTIVE.-The word "Cream," as applied to baking-powder, Held to constitute a valid technical trademark. (*) International Food Company v. Price Baking Powder Company, 368.
54. OPPOSITION RIGHTS LIMITED BY USE OF OTHERS.-Where opposer was not the originator of the trade-mark consisting of a waitress in Quaker or Puritan costume carrying a tray, Held that it has no right to exclude every one else from using the representation of a woman as a trademark upon goods similar to that manufactured by it. (*) Nestlé & Anglo-Swiss Condensed Milk Company v. Walter Baker & Company, Limited, 369.
55. SAME-SIMILARITY.-A mark consisting of the words "Milkmaid Brand" and the representation of a milkmaid in Swiss costume supporting one pail on her head and carrying another in her hand Held not so similar to a mark consisting of the representation of a waitress in Quaker or Puritan costume carrying a tray supporting cups as to deceive purchasers and cause confusion in the trade. (*) Id.
56. APPLICATION-DRAWING-LINING FOR COLOR.-Where the application states that the color of the mark is not claimed, Held that the Examiner properly objected to the lining of the drawing so as to indicate color. parte Austin, Nichols & Co., 74.
57. COFFEE AND COCOA GOODS OF THE SAME DESCRIPTIVE PROPERTIES.-A trademark for coffee Held properly refused registration in view of a mark so similar thereto as to be liable to cause confusion which had been previously registered for cocoa, since these are goods of the same descriptive properties, (citing Walter Baker & Company v. Harrison, C. D., 1909, 284; 138 O. G., 770; 32 App. D. C., 272.) Id.
58. SIMILARITY-" SUNSHINE "—" SUNBEAM."-The words "Sunshine" and
"Sunbeam" Held to be so similar that their contemporaneous use upon goods of the same descriptive properties would be liable to cause confusion in the mind of the public and deceive purchasers. Id. 2097°-12-41