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59. UNFAIR COMPETITION—BURDEN OF PROOF.—The burden rests upon defend

ant when sued for an unfair use of the plaintiff's trade name to justify

his use of it. (**)Jacobs v. Beecham, 549. 60. SAME-PROPRIETARY MEDICINES-SECRET FORMULA.—Using the name of a

manufacturer of pills under a secret formula upon pills made by a competitor is not saved from being unfair because it is accompanied by a statement that the latter makes the pills, even if it be conceded

that he is using the other's formula. (**)Id. 61. SamE-FRAUD ON THE PUBLIC_USE OF THE WORD “PATENT.”—The use

of the word "patent” to indicate a medicine made by a secret formula when the medicine is in fact not patented is not such fraud as defeats the right of the manufacturer to relief in equity against unfair com

petition. (**)Id. 62. SAME-SAME-MISSTATEMENTS AS TO PLACE OF BUSINESS.—The con

tinued use of circulars and labels which suggest the foreign origin of a product after its manufacture had been begun in this country and the use of the name of the original proprietor for some time after the business had been transferred to his son are not such fraud as defeats the right of a manufacturer to relief in equity against unfair

competition. (**)Id. 63. DESCRIPTIVE-Words WRITTEN IN FOREIGN LANGUAGE.-It is well settled

that the foreign equivalent of a descriptive word is not registrable. (Ex parte Grocers Specialty Mfg. Co., Limited, C. D., 1903, 10; 102 0. G., 465; Dadirrian v. Yacubian et al., C. D., 1896, 713; 75 0. G., 1856; 72 Fed. Rep., 1010; Roncoroni v. Gross, 86 N. Y., Supp., 1112; 92 Apr.

Div., 22.) Ex parte Julius Wile Sons & Co., 81. 64. SAME—“ ELEGANCIA.”—The Spanish word “ Elegancia " Held not regis

trable as a trade-mark. Id. 65. SAME_" No Sag” FOR HAND-BAGS.—The words “No Sag” Held prop

erly refused registration as a trade-mark for hand-bags, since they are descriptive of the goods to which they are applied. (*)In re Freund

Bros. and Company, 405. 66. CHARTREUSE,” Not GEOGRAPHICAL.—The word “Chartreuse" as applied 69. INFRINGEMENT—INJUNCTION.–For many years the Order of Carthusian

to a liqueur or cordial Held not geographical and to constitute a valid trade-mark. (**) Père Alfredo Luis Baglin and Carthusian Monks v.

Cusenier Company, 552. 67. ABANDON MENT.—The loss of the right of property in trade-marks upon

the ground of abandonment is not to be viewed as a penalty either for non-user or for the creation and use of new devices. There must be found an intent to abandon, or the property is not lost; and while, of course, as in other cases, intent may be inferred when the facts are

shown, yet the facts must be adequate to support the finding. (**)Id. 68. SAME.—The Order of Carthusian Monks, which for many years had

made at La Grande Chartreuse, in France, and sold a liqueur under the name “ Chartreuse," was expelled from France by the Government, and possession of their property in France was taken by a liquidator of the French court. They established a factory in Spain and continued to manufacture a liqueur in accordance with the original formula. They used on their labels the words “ Pères Chartreux" and the words “Liqueur Fabriquée à Tarragone par le Pères Chartreux." They made vigorous efforts in this and other countries to prevent the use of the old marks by the liquidator. Held that these facts do not establish an abandonment by the monks of their rights in the trade-mark “ Chartreuse." (**)1d.

Monks, established at La Grande Chartreuse, in France, made and sold a liqueur under the name Chartreuse," claimed to have been made by a secret process. Such liqueur has long been sold and has become well known under such name in the United States, where the name is registered as a trade-mark. The order having been expelled from France by the Government, a liquidator was appointed who took possession of their property, including their liqueur factory. Such liquidator, although having no knowledge of the secret formula, commenced the manufacture of a similar liqueur, which he sold under the name · Chartreuse,” using the same bottles and labels as had been used by the monks. In the meantime the monks established a factory in Spain and continued to manufacture the liqueur in accordance with the original formula, using, however, a different label and style of package. Held that the action of the French Government and court did not affect the trade-mark rights of the Carthusian monks in the United States; that such rights were not dependent on the place or country in which their business was conducted; that the receiver did not succeed to such rights, but became their competitor, and that they were entitled to an injunction restraining the sale of his products in this country in competition with their own under their trade-mark

and dress and as the original and genuine Chartreuse. (**)Id. 70. REGISTRATION REFUSED BY COMMISSIONER-AMENDMENT OF LAW-CANNOT

BE REOPENED IN VIEW THEREOF.-Where a trade-mark was refused registration by the Commissioner on the ground that it was merely the name of the applicant and thereafter the Trade-Mark Act was amended so as to permit the registration of an applicant's name or a portion thereof if otherwise registrable, Held that this amendment constitutes

no ground for reopening the case. Er parte The Willowcraft Shops, 96. 71. “ COLLIER" FOR DYNAMITE-DESCRIPTIVE.—The word “Collier” as ap

plied to dynamite Held descriptive, and hence not registrable, since it would indicate to the trade that it was intended for use in coal-mining.

Ex parte Sinnamahoning Powder Mfg. Co., 99. 72. SamE-ORDINARY SURNAME-MANNER OF WRITING.–The ordinary sur

Collier" is not rendered registrable by placing it on a red pack

name

age. Id.

73. DESCRIPTION-COLOR OF PACKAGE.—The color of the package in which

goods are placed cannot constitute a trade-mark for such goods, and the Examiner properly refused to allow applicant to describe the mark

as appearing on a red package. Id. 74. “TROPHY”_DESCRIPTIVE.—The word “ Trophy” is not registrable as a

trade-mark, since it would indicate to the purchaser that the goods to which it was applied had been recognized as of superior quality by the presentation of a prize or trophy. Ex parte Meyer Brothers Coffee &

Spice Co., 109. 75. MOTION TO DISSOLVE-TRANSMISSION.—The Examiner of Interferences

should take cognizance of the merits of motions to dissolve sufficiently to enable him to refuse transmission to motions which are wholly groundless. Stollwerck Brothers, Inc. v. Lucerna Anglo-Swiss Milk

Chocolate Company v. Hoffman, 112. 76. SAME-SAME.-A motion to dissolve an interference on the ground that

coffee and cocoa are goods of different descriptive properties Held properly refused transmission in view of the ruling of the Court of Appeals of the District of Columbia in the case of Walter Baker & Co., Ltd., v. Harrison, (C. D., 1909, 284; 138 0. G., 770; 32 App. D. O,

272.) Id. 77. OPPOSITION-ISSUE NOT TO BE MODIFIED BEFORE JUDGMENT.--After an

opposition to the registration of a trade-mark has been filed the opposition proceedings should not be terminated without a formal order sustaining or dismissing the opposition. Wm. A. Coombs Milling Com

pany v. The Dewey Bros. Company, 129. 78. SIMILARITY-DUPLICATION.-The fact that one mark shows a duplica

tion or multiplication of the sole or predominating feature in another mark is obviously not in itself conclusive against registration, since the arrangement or manner in which the units are displayed may become the predominating feature in such a mark. Ex parte The Dry

Milk Company, 132. 79. SAME-SAME.-A trade-mark for desiccated milk or milk-powder con

sisting of the representation of twenty milk-cans arranged in the arc of a circle and a tub or firkin lying upon its side at the middle of the row Held to so nearly resemble a registered mark consisting of the representation of a single milk-can as to be likely to cause confusion

in the mind of the public. Id. 80. DESCRIPTIVE-WRITTEN IN A DISTINCTIVE MANNER.-Writing a descrip

tive word in a distinctive manner does not render it registrable as a

trade-mark. Ex parte Loft, 193. 81. SAME—“ PENNY A POUND PROFIT.”—The phrase " Penny a Pound Profit”

Held descriptive as applied to candy. Id. 82. OPPOSITION-FILING OF NOTICE.—Where a notice of opposition was filed

signed by the attorney and within two days thereafter duly verified by an authorized officer of the corporation in whose behalf it was filed, Held that there was no irregularity in filing the same. Collins and

Company v. Meyer, 201. 83. SAME-DISSIMILARITY OF MARKS OF OPPOSER AND APPLICANT—No LIKE

LIHOOD OF DAMAGE.-Where the mark of the applicant consists of the representation of an elephant standing upon its hind legs wearing trousers and a coat and holding in one elevated foot a pair of scissors, a piece of cloth being thrown over the other elevated leg, and the mark of the opposer consists of a conventional representation of an elephant and the words “ Elephant Brand,” Held that there is no likelihood that opposer would be damaged by the registration of applicant's mark, especially as the former was not the first to use the repre sentation of an elephant upon goods of the same character as appli

cant's. Id. 84. SIMILARITY—"AMBER” AND “AMBER BEAD.”—The mark. "Amber Bead"

Held to so nearly resemble the mark “Amber" as to be likely to cause confusion by their contemporaneous use on goods of the same descrip

tive properties. Ex parte Independent Breweries Company, 206. 85. GOODS OF THE SAME DESCRIPTIVE PROPERTIES-BEER AND A MALT BEVER

AGE.—Beer and a beverage “prepared in part from malt and containing less than one-half of one per cent alcohol" Held to be goods of the same descriptive properties within the meaning of section 5 of the

Trade-Mark Act. Id. 86. FOREIGN LANGUAGE—“ ESPERANTO.”—Esperanto Held to be a language

within the meaning of the ruling that the equivalent in a foreign language of a descriptive word is unregisterable. Er parte Sanitary Knitting Co., 220.

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87. SAME_"Saniga.”—The word “Saniga,” which is the Esperanto word

for sanitary, Held unregisterable as a trade-mark for underwear and

hosiery, since the word " sanitary is descriptive of such goods. Id. 88. DESCRIPTIVE—“ INTER-PHONE" FOR TELEPHONE SWITCHING APPARATUS.

The mark “Inter-Phone” Held not registerable as a trade-mark for telephone switching apparatus, since it is descriptive of the goods to

which it is applied. Er parte Western Electric Company, 221. 89. SAME—“ SCOTISSUE TOWELS."--A mark consisting of the words Scotis

sue TowelsHeld properly refused registration as a trade-mark for

paper toweling. Ex parte Scott Paper Company, 224. 90. SAME-DISTINCTIVELY DISPLAYED.-A mark which is descriptive is not

made registrable by displaying it in a distinctive manner. Id. 91. “ ORANGE GROVE"—Not GEOGRAPHICAL.-A mark for wheat-flour con

sisting of the words "Orange Grove" and the representation of a twig having oranges thereon Held to be a fanciful mark and not to fall within the prohibition of the statute against the registration of marks which are merely geographical. C. A. Gambrill Manufacturing Com

pany v. H. Becker & Company, 236. 92. SIMILARITY—Test THEREOF.—In considering whether two marks are de

ceptively similar the true test is whether a purchaser looking at an article offered to him would naturally be led from the mark impressed upon it to suppose it to be a production of a rival manufacturer with

whose mark he was familiar. Ex parte Seabury & Johnson, 241. 93. GOODS OF THE SAME DESCRIPTIVE PROPERTIES—“ Wood-WOOL" AND

PER-Wool."—“ Wood-wool" used as a medicinal preparation Held to constitute goods of the same descriptive properties as paper-wool"

used for bandages, etc. Id. TRANSMISSION OF MOTIONS. See Interference, 8, 9, 10; Motion to Dis

solve Interference, 2, 7; Oath, 1; Trade-Marks, 75. TRIBUNALS OF THE PATENT OFFICE. See Certiorari, 4; Interference,

18, 21. TRUSTEES. See Assignment, 1. UNFAIR COMPETITION. See Trade-Marks, 37, 38, 42, 59, 60, 61. UTILITY. See Commercial Success; Construction of Specifications and Pat

ents, 1; Particular Patents, 9, 11; Priority of Invention, 3; Reduction

to Practice, 2, 3. VALID PATENTS. See Particular Patents, 5, 13; Rcissue, 1. VALID TRADE-MARKS. See Trade-Marks, 53, 66. VALIDITY OF PATENTS. See Divisional Applications; Fraud; Grant of

Patents; Jurisdiction of the Commissioner of Patents; Reissue, 6. VALIDITY OF TRADE-MARK REGISTRATION. See Trade-Marks, 4, 22,

37, 41. VOID PATENTS. See Injunction; Particular Patents, 1, 2, 6, 7, 8, 10, 12;

Reissue, 4. WITNESSES. See Construction of Statutes, 3, 4, 5; Drawings, 2; Reduction

to Practice, 1. WRIT OF CERTIORARI. See Certiorari. WRIT OF MANDAMUS. See Mandamus. WRITS. See Construction of Statutes, 3, 4. WITHDRAWAL OF ALLOWED APPLICATIONS FROM ISSUE. See Prose

cution of Applications, 13, 20.

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