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of considering public use or intervening rights, as these questions can. not properly be considered. Appeal from a Decision of the Acting Commissioner of Patents.

Interference proceeding in the Patent Office between Edward Hayes and Guy S. Davison. From a decision awarding priority to Davison, Hayes appeals. Affirmed.

Dyer Smith, of New York City, for appellant.
Frank Toohey, of Boston, Mass., for appellee.

SMYTH, Chief Justice. Hayes appeals from the decision of the Acting Commissioner of Patents awarding Davison priority in an interference relating to an invention expressed in the following count:

The combination, with the transmission and drive shafts of a motor vehicle, of mechanism adapted to lengthen the wheel base of said vehicle, comprising means to extend the rear wheels, supporting axle, and transmission shaft operatively connected therewith, from the motor drive shaft rearwardly, means carried by the side frames to support and maintain the transmission shaft at substantially the same angle with the rear axle, in said moved position, as in the former position, and means to connect the motor drive shaft with said transmission shaft in its new position.

(1) Hayes filed June 28, 1915, and Davison, May 4, 1916. The application of the latter was for a reissue of patent dated December 14, 1915, and issued on an application filed April 14, 1915. Davison is, therefore, the senior party by virtue of the filing date of his original application.

At first there were four parties to the interference-Howard, Beauchemin, Hayes, and Davison. Hayes moved to dissolve on the ground that neither Davison nor Howard had a right to make the claim, for reasons stated. The motion was denied by the Law Examiner.

[2] Hayes and Davison only took testimony. The Examiner of Interferences, the Examiners in Chief and the Acting Commissioner united in awarding priority to Davison. Hayes says that Davison should not prevail, because of the bar of public use and of intervening rights. But it has been held many times, as shown by the opinion of the Examiners in Chief, that an interference, being for the sole purpose of determining priority, will not be suspended, after testimony has been taken, for the purpose of considering public use or intervening rights. These questions cannot properly be considered in an interference. Burson v. Vogel, 29 App. D. C. 388; Norling v. Hayes, 37 App. D. C. 170.

It is further contended that Davison has no right to make the claims, because the invention is not disclosed in his application. The Acting Commissioner, approving the decision of the law examiner on this point, correctly held that the invention of the issue was disclosed in the application of both parties.

With respect to the argument that Davison's reissue application is not for the same invention as that disclosed in his original application, the Acting Commissioner, in line with the lower tribunals, held that it was directed to the same generic end as the narrower claims of the

(273 F.) first application, and therefore refused to yield to the argument. No reason appears for even doubting the correctness of this conclusion. A careful consideration of the other points raised by Hayes fails to reveal any reason for disturbing the decision of the Acting Commissioner, which is in harmony with that of each of the lower tribunals upon every point considered, and therefore it is affirmed.

Affirmed.

Mr. Justice HITZ, of the Supreme Court of the District of Columbia, sat in the place of Mr. Justice ROBB, in the hearing and determination of this appeal.

JOHN SEXTON & CO, v. SCHOENHOFEN Co. (two cases). (Court of Appeals of District of Columbia. Submitted March 15, 1921. De

cided April 4, 1921.)

Nos. 1390, 1391.' 1. Trade-marks and trade-names (61–Grape juice and root beer or ginger

ale are not goods of same descriptive properties.

Grape juice, a fruit beverage, and ginger ale or root beer, cereal bever ages, are not goods of the same descriptive properties, so that the owner of a trade-mark for grape juice cannot prevent its registration for root

beer or ginger ale. 2. Trade-marks and trade-names em 61–Use of root beer compound does

not establish prior use of beverage.

The use of trade-marks on a compound from which the beverage of root beer can be made does not establish prior use of the trade-mark on

the beverage. 3. Trade-marks and trade-names 61-User of trade-mark on beer can ex

tend it to root beer and ginger ale.

The user of a trade-mark for beer can extend his trade-mark to root beer and ginger ale, or other cereal beverages, which fall within the natural expansion of its business, especially since the Eighteenth Amendment has compelled transition from the production and sale of alcoholic beverages to nonalcoholic beverages, which calls for liberal protection of

rights affected by this enforced change. Appeals from the Commissioner of Patents.

Applications by the Schoenhofen Company for the registration of the word “Edelweiss” as a trade-mark for root beer, and for the registration of the same word as a trade-mark for ginger ale, opposed in each case by John Sexton & Co. From decisions allowing the registration, the opposer appeals. Affirmed.

Walter F. Murray, of Cincinnati, Ohio, for appellant.
William 0. Belt, of Chicago, Ill., for appellee.

VAN ORSDEL, Associate Justice. These are trade-mark oppositions, in which appellant Sexton & Co., in case No. 1390, opposes the registration of the word "Edelweiss" as a trade-mark for root beer, and, in case No. 1391, the registration of the same word as a trademark for ginger ale.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexed

[1] It appears that appellant company has never used the mark on ginger ale, and the only use has been on a compound from which root beer is made. It has never used the mark on root beer as a beverage. Its position, therefore, is confined to its use of the mark on grape juice. In the case of Schoenhofen Brewing Co. v. John Sexton & Co., 41 App. D. C. 510, we held that grape juice and beer were not goods of the same descriptive properties. This distinction is not alone based upon the theory that one is an alcoholic and the other a nonalcoholic beverage, but that one is a cereal and the other a fruit beverage. The same distinction applies in the present case, and is determinative of the issue before us.

[2,3] The alleged trade-mark use by appellant of "Edelweiss" on a root beer compound cannot be used as a basis for establishing prior use on the beverage. Besides, the prior use by appellee of the mark on beer would protect it in the extension of its use to other cereal beverages, which would fall within the natural expansion of its business. The Eighteenth Amendment to the Constitution and the laws for its enforcement, relating to the subject of prohibition, have compelled transition from the production and sale of alcoholic beverages to nonalcoholic beverages, which calls for liberal protection of trade-mark rights affected by this enforced change. The decisions are affirmed. Affirmed.

Mr. Justice HITZ, of the Supreme Court of the District of Columbia, sat in place of Mr. Justice ROBB in the hearing and determination of this appeal.

BERGHOFF BREWING ASS'N v. POPEL-GILLER CO., Inc. (Court of Appeals of District of Columbia. Submitted March 16, 1921. De

cided April 4, 1921.)

No. 1402. 1. Trade-marks and trade-names Cw26Use of abbreviation by customers is

not adoption of trade-mark.

The use of the word “Burg," as an abbreviation for the word "Burgmeister," in conversation, or in written orders for goods, by the customers of the owner of the trade-mark “Burgineister," without proof that the owner of the trade-mark ever applied the abbreviation to its goods, does

not establish the adoption of the abbreviation as a trade-mark. 2. Trade-marks and trade names w61–Use of trade mark in extension of

business applies only to goods of same descriptive properties.

The rule relating to the use of trade-marks in the natural development of business applies only to the use of the same mark on goods of the

same descriptive properties. 3. Trade-marks and trade-names Om61-Right to extend use applies only to

particular mark.

The right to extend the use of a trade mark in the natural extension of the owner's business applies only to the extension of the particular mark, and not to a similar mark, so that the use of the trade-mark “Burg” on nonalcoholic beverages would not come within the rule as an extension of the trade-mark "Burgmeister" used on beer. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(273 F.) 4. Trade-marks and trade-names Om 59 (5) _“Bergo" not infringement of

"Burg Brau."

The use of the trade-mark "Bergo" on nonalcoholic cereal beverages would not cause confusion with the use of the trade mark “Burg Brau" on lager beer, or its extension to nonalcoholic cereal beverages.

Appeal from the Commissioner of Patents.

Trade-mark interference proceeding between the Berghoff Brewing Association and the Popel-Giller Company, Incorporated, which had applied for registration of similar trade-marks for goods of the same descriptive properties. From a decision allowing the registration by the Popel-Giller Company, Incorporated, the Berghoff Brewing Associa-, tion appeals. Reversed.

H. J. Jacobi, of Washington, D. C., and James L. Steuart and S. R. Perry, both of New York City, for appellant.

Arthur E. Wallace, of Chicago, Ill., for appellee.

VAN ORSDEL, Associate Justice. This is a trade-mark interference, in which the appellant, Berghoff Brewing Association, applied to register the word “Bergo” as a trade-mark “for a nonalcoholic, maltless, cereal beverage, sold as a soft drink." Appellee, Popel-Giller Company, Incorporated, applied to register the word "Burg" as a trademark for a "nonintoxicating, nonalcoholic, cereal, maltless beverage sold as a soft drink.” It is conceded, as, indeed, it must be, that the goods are of the same descriptive properties, and that the marks are deceptively similar. Appellant adopted and used the mark "Bergo" in 1917, while appellee did not show use of its mark "Burg” prior to 1918.

[1] At this point, the controversy could be easily disposed of in appellant's favor; but it appears that in 1916 appellee company was using the word "Burgmeister" as the dominating feature of a mark for beer. It appears that customers occasionally ordered "Burgmeister” beer by the abbreviated name of "Burg." It is therefore urged that appellee company has established a prior use of the word "Burg," and should be accorded registration. On this point the Examiner of Interferences turned the case in favor of appellee company.

We are not impressed by this contention. The mere use of “Burg,” as an abbreviation for the word "Burgmeister," in conversation, or in written orders for goods, is not sufficient to establish a trade-mark use.

"It is settled law in this court that a trade-mark is not acquired by the invention or discovery of a word or symbol, or by advertisement. It only becomes a trade-mark by attaching or affixing it to certain articles of merchandise." Consumers' Co. v. Hydrox Chemical Co., 40 App. D. C. 284.

There is no proof that appellee ever attached the word to goods of the kind for which it is sought to register it as a trade-mark prior to 1918. Its adoption, if adopted at all, was by its customers, not as a mark to designate the goods, but as a name to designate goods bearing the mark "Burgmeister." This did not, therefore, constitute a trademark use. Coca-Cola Co. v. Branham (D. C.) 216 Fed. 264.

[2] There is no room for the assumption of confusion between the OnFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

marks “Bergo” and “Burgmeister.” There is testimony however, by witnesses for appellee, that since 1907 it has used the trade-mark "Burg Brau" on lager beer. It is accordingly insisted that it may now claim “Burg” as a logical extension of the use of the original mark to nonalcoholic cereal beverages. The rule relating to the use of marks in the natural development of business extends only to the use of the same mark on goods of the same descriptive properties. In the case of In re Independent Breweries Co., 39 App. D. C. 118, we held that beer and a beverage containing less than one-half of 1 per cent. alcohol are goods of the same descriptive properties, and in Sexton & Co. v. Schoenhofen Co., 50 App. D. C. 363, 273 Fed. 327, this day decided we held cereal beverages, alcoholic and nonalcoholic, to be goods of the same descriptive properties within the Trade-Mark Act (Comp. St. § 9492). We also upheld the right of the owner of a trade-mark to extend its use from alcoholic to nonalcoholic cereal beverages

[3, 4] But the right of extension applies only to the specific mark, and not to a similar mark. The extension of the mark “Burg Brau" on beer to “Burg" on nonalcoholic beverages, would not come within the rule, since the marks are radically different. Nor would the use of the mark "Burg Brau" on lager beer, or its extension to nonalcoholic cereal beverages, lead to confusion with the use of the mark "Bergo" on nonalcoholic cereal beyerages.

It therefore follows that registration should be accorded appellant company, and denied to appellee company.

The decision is reversed.
Reversed.

Mr. Justice HITZ, of the Supreme Court of the District of Columbia, sat in the place of Mr. Justice ROBB in the hearing and determination of this appeal.

HENRY V. UNITED STATES.

(Court of Appeals of District of Columbia. Submitted April 5, 1921. Decided

May 2, 1921.)

No. 3471.

1. Principal and agent Cw102(1) -Authority to sell stock includes authority

to employ an agent to sell.

A power of attorney to transfer title to stock impliedly authorized the agent to do all things necessary in the usual course of business to efectuate the sale, including the employment of a subagent to make the sale, and the subagent employed would be the agent of the principal, and not of

the agent. 2. Embezzlement 44 (1)–Evidence held to show agency.

In prosecution for embezzlement of stock certificates, evidence held to

show that accused was employed as agent to sell the certificates. 3. Embezzlement One 10—Property coming into agent's possession contempora

neously with creation of agency may be embezzled.

Under Code of Law, $ 834, defining embezzlement, agency need not exist prior to the coming into accused's possession of the property alleged to For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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